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November 16, 1984


The opinion of the court was delivered by: GOETTEL



 This Court must determine the liability, if any, of the United States of America for an airplane crash.The following are the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a):


 On February 11, 1981, a Lockheed JetStar, owned and operated by Texasgulf Aviation, Inc., crashed at approximately 6:40 p.m. EST during an instrument landing system approach, a mile short of Runway 16 at the Westchester County Airport, White Plains, New York. All six passengers on board and the two man crew perished in the crash.

 Actions were filed against several parties: the owner/operator of the aircraft, Texasgulf, Inc. and Texasgulf Aviation, Inc.; four product defendants, Colt Electronics Co., Inc., Phoenix Aerospace, Inc., the Garrett Corporation, and the Lockheed Aircraft Corporation; and the United States of America. The plaintiffs are representatives of the six passengers on board the aircraft, *fn1" and Texasgulf, Inc. and Texasgulf Aviation, Inc. (the "Texasgulf Companies") for the loss of "the hull" (i.e., the aircraft). The United States is a direct defendant in Federal Tort Claims actions brought by these plaintiffs, and a third-party plaintiff, third-party defendant, and fourth-party defendant in other actions based on claims for contribution and indemnity. Allegations against the United States pertain to negligence on the part of air traffic controllers at the Westchester Air Traffic Control Tower. *fn2"

 The consolidated actions were tried before a jury over a period of two months and two weeks, *fn3" with the Court reserving the claims against the United States for its decision. The jury returned a verdict for the plaintiffs, finding the Texasgulf Companies 70% responsible, Garrett 20% responsible, and Colt and Phoenix each 5% responsible.

 The plaintiffs claimed, inter alia, that the aircraft crashed due to a loss of electrical power approximately three miles *fn4" from the end of Runway 16 and while the aircraft was in instrument meteorological conditions. Claims against the product defendants rested, inter alia, on allegations that generator control units installed on the aircraft some two weeks before the accident were incompatible with the Lockheed JetStar electrical system, that the installation was negligently performed, and that the generator control units caused generators on board the aircraft to trip off the line resulting in a loss of electrical power when the back up batteries, which were worn down by earlier usage, also failed. Various claims were made by some of the plaintiffs, and all of the defendants, against the Texasgulf Companies charging negligence in the maintenance and operation of the plane. The theory against the United States was that the air traffic controllers at the Westchester County tower saw on their radar scopes the aircraft begin to deviate to the right of the localizer course, and negligently failed to warn the aircraft of its position in relation to the localizer course. The product defendants and the United States claimed that the cause of the accident was not an electrical failure, but was negligence on the part of the crew in continuing the approach into wind shear and severe turbulence which caused the aircraft to crash about one mile from the runway threshold and one-third of a mile right of course. *fn5"

 The Aircraft

 The accident aircraft was a Lockheed 1329-731 JetStar, serial number 5084, civil aircraft registration number N520S. From 1974 until the time of the accident, Texasgulf Aviation, Inc. ("TGA"), a wholly owned subsidiary of Texasgulf Inc., was the registered owner of the aircraft. *fn6" The aircraft originally was manufactured and sold by the Lockheed Corporation in 1966 as a Lockkheed Model 1329 JetStar. In 1976, the aircraft underwent a conversion at the Garrett Corporation AiResearch facilities in California, wherein the original engines were replaced with four Garrett TFE-731 fan jet engines. The JetStar 731 aircraft is a transport category aircraft, a model and type frequently used in corporate or business jet operations. It is certificated by the Federal Aviation Administration ("FAA") for operation by two pilots, and is equipped with dual controls so that each pilot has the ability to fly and operate the aircraft from either seat.

 The aircraft, as originally equipped, was intalled with carbon pile generator control units ("GCUs"). This component part provides the basic functions of regulating voltage produced by a generator and sensing voltage abnormalities. There are five generators on the aircraft that produce electrical energy -- four powered by the ship's jet engines and an auxiliary fifth that provides power on the ground when the engines are not running. The electric power so generated is used to heat and light the aircraft and operate the communications, navigation, and electronic equipment. Both the accident aircraft and its sister ship, N320S, were identically equipped. *fn7" In June 1980, Garrett installed on N320S solid state GCUs designed by Phoenix Aerospace and sold by Colt Electronics under a Supplemental Type Certificate held by it. This installation was ordered by J. Morgan "Lefty" Gregory, President of TGA and pilot-in-command on the accident flight. There were a few incidents of generators tripping on N320S. Garrett repaired the system. *fn8"

 In January 1981, Gregory sent N520S to Garrett's AiResearch facility at MacArthur Airport, Islip, Long Island, for the purpose of having extensive maintenance and inspections performed. (The Texasgulf maintenance crew was capable of doing only routine minor maintenance.) This maintenance also included replacement of the existing carbon pile GCUs with installation of the Phoenix solida state GCUs. Problems arose during the installation process. After the installation, a ground run-up of the new GCU installation was performed on January 30, 1981. The number four generator tripped off the line, the number of four GCU smoked and was replaced, and other problems were encountered. After some further adjustments to the installation were made, test flights were conducted on January 31, 1981, by the Chief Pilot of TGA, Jimmy Markham. On the first two test flights, there were generator trips, including one instance when all four generators were off line. (They were reset by battery power.) Additional maintenance was performed. On the third test flight, the crew attempted to overload the electrical system of the aircraft to see if generators would trip. The generators did not trip, and Markham accepted the aircraft and flew it back to the Texasgulf hangar at Westchester County.

 On February 1, 1981, Markham flew N520S to Midway Airport, Chicago, Illinois. During the flight, the number two generator tripped off the line twice and was reset without difficulty both times. On the return flight on February 3, the weather conditions required that the pilot fly under Instrument Flight Rules ("IFR"). *fn9" Markham experienced three generators tripping on climbout; two were reset and another was left off. Later in the flight, these two generators tripped again. Markham again reset two of the generators. After this flight, Markham told his superior, Gregory, that he (Markham) would not fly the aircraft again unless the generator tripping situation was corrected.

 On February 5, 1981, the aircraft flew to Wilmington, Delaware, during daylight visual conditions. On the return flight, first one and then two generators tripped off line and were reset.

 When the aircraft returned from Wilmington, the Chief of Maintenance of TGA, Silvio Buccieri, telephoned Phoenix Aerospace technician Robert Shankle and Colt Electronics technician Charles Hayden. *fn10" He reported the continued tripping problem to them, and requested that they come to the TGA hangar at Westchester County Airport to inspect the aircraft electrical system and determine the cause of the generator trips. On February 5-6, 1981, Hayden and Shankle did an analysis of the GCU installation performed by Garrett, and found some wiring discrepancies. Garrett was infromed of these problems and the generator trippings. The wiring discrepancies were corrected by Buccieri and Hayden. Shankle and Hayden told Buccieri that the ground fault transformer on the number two GCU could be a cause of the tripping of the number two generator due to a higher than normal resistance.

 The February 6th test flight was made with Shanley Sorenson, co-pilot on the accident flight, as pilot-in-command. Shankle was also on board. (Hayden declined to fly in the aircraft.) The number two generator tripped and was reset. After the test flight, Hayden and Shankle told Buccieri that the number two ground fault transformer had excessively high resistance, which could have been a cause of tripping, and that it should be replaced. They also told Buccieri that the number three ground fault sensor had a higher than normal resistance and should be changed.

 Neither the number two nor number three ground fault transformer was changed before the last outbound flight. (To change them conveniently would have required removing an engine, which was an operation beyond routine maintenance capabilities.) No maintenance of any type was performed on the aircraft from February 6, 1981, the date of the Hayden-Shankle visit, to February 11, 1981, the date of the accident. The aircraft was not flown during this period.

 The Pilots

 Gregory was the pilot-in-command, and Sorenson the co-pilot, of the accident flight. Both Gregory and Sorenson held Airline Transport Pilot ("ATP") certificates. This rating is the highest that a pilot can obtain. In order to get an ATP certificate, a pilot must demonstrate extensive knowledge and skill in the fundamentals of air navigation, instruments, navigational aids, and weather observation and evaluation. The flight skills to be demonstrated include the ability to successfully complete instrument approaches, including missed approach procedures.

 In addition to his ATP certificate, Gregory had a flight instructor rating which had expired. He also had a type rating in the Lockheed JetStar, and had accumulated approximately 24,000 total flying hours, of which some 4,500 were in the JetStar. He was considered an extremely experienced pilot, and had made thousands of landings at Westchester County Airport, many under instrument landing conditions.

 In addition to his ATP certificate, Sorenson also possessed an Airplane and Powerplant Mechanic certificate. This certificates authorized Sorenson to perform aircraft maintenance. Soreson accumulated nearly 9,000 total flying ...

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