On Appeal from the United States District Court for the District of New Jersey (Newark), D.C. Civil Nos. 83-3829, 84-0805.
Before: SLOVITER, STAPLETON, Circuit Judges, and ROTH,*fn* District Judge.
On a clear summer day, approximately seven private airplanes were practicing landings and take-offs at a New Jersey airport. After another plane received permission from the control tower to join the airport traffic pattern, it collided in midair with one of the planes already in the pattern. The two pilots in the incoming plane were killed. The ensuing litigation implicates the obligation of pilots operating under visual flight rules to see and avoid other aircraft.
This appeal arises from the district court's finding that the air traffic controller's negligence was the sole cause of the collision. The district court awarded the survivors of the two pilots killed in the collision a total of $2,786,634 in damages from the United States. The appeal raises three issues. First, is the district court's finding that negligence on the part of the air traffic controller was a cause of the collision clearly erroneous? Second, are its findings that the United States failed to prove negligence on the part of the pilots in each of the two planes in the collision clearly erroneous? Third, did the district court err in determining the amount of damages?
Many of the facts concerning the circumstances leading up to the collision are undisputed. On the morning of August 29, 1982, Carlos Rodriquez and Haynesly Thomas left Teterboro Airport, approximately ten miles east of Caldwell Airport (Caldwell), flying a Cessna 172M aircraft, call number 98998V (hereafter 98V). Both Rodriquez and Thomas were certified pilots, and the purpose of the flight was for Rodriquez, a certified flight instructor, to administer to Thomas a biannual flight review required by Federal Aviation Administration (FAA) regulations. On the same morning, Mario Diaz, a student pilot certified for solo flight, was practicing touch and go landings at Caldwell.*fn1 Diaz was flying a Cessna 150M aircraft, call number N912IU (hereinafter 21U), leased by Liberty Aviation, Inc., Diaz's flight instructor.
Whether conditions at Caldwell were clear with visibility of 25 miles, and air traffic was flying under visual flight rules (VFR).*fn2 Traffic was using runway 22, which runs south-southwest at a heading of 220 degrees, and was flying a right hand traffic pattern.*fn3 On duty in Caldwell's air traffic control tower was Michael Finneran, an FAA certified air traffic controller, who was being observed by a trainee. Communications between the tower and Caldwell traffic are recorded. The recording of communications in the time period surrounding the collision was transcribed as part of the FAA package prepared after the collision.
At 1317:40, Greenwich Mean Time,*fn4 21U was cleared by Caldwell tower to execute its third touch and go landing. 21U did so and, after takeoff, climbed to the specified altitude and executed a 90 degree turn onto the crosswind leg. 21U was sequenced in the traffic pattern behind another Cessna (737), which had been cleared for takeoff at 1317:37. Ahead of 737 was another Cessna (4TF). Behind 21U was another Cessna (40G). 737, 4TF and 40G were all making touch and go landings in the traffic pattern.
98V first reported to Caldwell tower at 1319:19 when it entered Caldwell's traffic control area inbound to Caldwell and five miles east. The tower instructed 98V to execute an overhead approach to the airport. It was standard for aircraft coming from the east to cross over the tower on a course perpendicular to runway 22, descend to pattern altitude and enter the traffic pattern on the downwind leg by executing a 90 degree turn to the right. A similar overhead entry was successfully performed by another Cessna, call number 3729F, which began its approach at 1319:01 and was cleared to land and exit the traffic pattern at 1321:14.
Many of the additional facts surrounding the midair collision were disputed. The district court made findings as to the positions of various planes at relevant times on the basis of the FAA transcript of controller communications, testimony of eyewitness pilots including Diaz, and testimony of experts who attempted to reconstruct the aircraft positions. These findings are not challenged on appeal as clearly erroneous, and will be used throughout.
At 1321:30, 98V reported overhead the tower prefatory to beginning its approach and engaged in the following colloquy with the air traffic controller:
1321:32 LC Nine eight victor roger, do you have the traffic coming up on midfield?
1321:35 98V Roger sir, affirmative.
1321:36 LC OK . . . Can you follow that traffic?
1321:39 98V OK . . . Nine eight victor, request touch and goes, over.
1321:41 LC Roger, closed traffic's approved.
App. at 2441.*fn5 At this point, 737 had just passed midfield. Immediately prior to 98V reporting overhead, however, at 1321:16, 737 had reported midfield and had identified itself to the controller by rocking his wings as instructed at 1321:20. The only other plane on the downwind in a position prior to midfield was 21U which at 1321:30 was completing the crosswind leg and turning onto the downwind. Of the planes surrounding 21U and 737, at 1321:30, 40G was on the crosswind leg while 4TF was near completion of the downwind leg.
Subsequently, 98V adjusted its heading to enter the pattern behind 737. As it began its entry to the pattern, it was at or slightly above, by a maximum of 200 feet, pattern altitude. Following the course adjustment, the trainee in the Caldwell tower pointed out to the controller the dangerous course that 98V was on with respect to 21U. The controller then engaged in the following exchange with 98V:
1321:44 LC Nine eight victor, roger start a right turn now sir.
1321:48 98V Nine eight victor, roger.
App. at 2441. The tone of the controller's voice indicated no urgency. A right turn was already contemplated by 98V as part of the standard overhead entry. An immediate right turn would have placed 98V inside of 737, creating a potentially dangerous situation when 737 turned from the downwind to the base leg. Whether for these or other reasons, 98V did not execute an immediate right turn.
After the controller instructed 98V to turn right at 1321:44, he inexplicably looked away from 98V, despite, as he later testified, having concluded that 98V was on a collision course with 21U. When he looked back, he gave the following instruction supposedly addressed to 21U:
1321:50 LC On the downwind, watch the traffic coming in from overhead sir!
App. at 2241. AT the time of this instruction there were at least three planes on the downwind, 21U approaching midfield, 737 approaching the turn to the base leg, and 40G having just turned off the crosswind.
The controller's warning did not avert the collision. At 1322:00,*fn6 98V collided with 21U at some point on the downwind leg immediately before midfield. 98V struck 21U from approximately the 4:00 o'clock position with respect to 21U, that is, from behind and to the right. The left wing tip of 98V struck the right door of 21U, 98V lost control and crashed, killing its two occupants, Rodriquez and Thomas. 21U was able to land on Caldwell's other runway.
The survivors of the deceased pilots brought suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that the collision was caused by the air traffic controller's negligence. In addition, the survivors named as defendants Mario Diaz, the pilot of 21U, the flight school, Liberty Aviation, Inc., that had trained Diaz, and Days Flying Service, Inc., alleging that their negligence had also caused the collision.*fn7 Diaz and the United States cross-claimed against each other.
After a bench trial, the district court found in favor of the survivors and Diaz, concluding that the negligence of the air traffic controller was the sole cause of the midair collision. The court awarded the survivors total damages of $2,786,634 to be paid by the United States. The United States appeals.*fn8 We have jurisdiction under 28 U.S.C. § 1291.
Under the FTCA, the state law that would apply to determine the liability of "a private individual under like circumstances" applies to determine the liability of the government. 28 U.S.C. § 2674. Here, the applicable law is that of New Jersey, the place of the collision.
The duties of pilots and air traffic controllers are prescribed by federal law pursuant to the Federal Aviation Act, 49 U.S.C. §§ 1301-1557. Under 49 U.S.C. §§ 106(g), 1348(c), the Administrator of the Federal Aviation Administration (FAA) is authorized to promulgate air traffic rules and regulations. The Administrator has exercised this authority by promulgating the Federal Aviation Regulations (FAR's) and by establishing the procedures to be followed by air traffic controllers. The FAR's have the force and effect of law. See In Re N-500L Cases, 691 F.2d 15, 28 (1st Cir. 1982); Tilley v. United States, 375 F.2d 678, 680 (4th Cir. 1967). The FAR's in turn require pilots to know and follow the Airman's Information Manual prepared by the FAA and FAA Advisory Circulars. 14 C.F.R. § 61.105(a) (1987).
Under New Jersey law, violation of the FAR's or other regulations does not require a finding of negligence as a matter of law. Rather, such violations are treated as evidence that must be considered in determining negligence. See Horbal v. McNeil, 66 N.J. 99, 103-04, 328 A.2d 604, 606-07 (1974). Compare Gatenby v. Altoona Aviation Corp., 407 F.2d 443, 446-47 (3d Cir. 1969) (under Pennsylvania law violation of FAA regulations is negligence as a matter of law).
This case comes before us following a bench trial. Our review of the district court's finding of facts, therefore, is under the "clearly erroneous" standard. Fed.R.Civ.P. 52(a). See generally Anderson v. City of Bessemer City, 470 U.S. 564, 573, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985).
With these legal principles in mind, we proceed to consider the relevant regulations, the district court's ...