Full opinion text
OPINION AND ORDER RAYMOND L. ACOSTA, District Judge. The Court having presided over the non-jury trial in this case hereby makes the following Findings of Fact and Conclusions of Law based on the extensive evidence presented by the parties, particularly the testimony of the multiple expert witnesses. PROCEDURAL BACKGROUND These three consolidated cases arise out of an aircraft crash that occurred on January 5, 2002, in the vicinity of the peak of El Yunque, Puerto Rico. The aircraft was owned by Alexander Leasing, LLC and flown by decedent Alexander Wojciechow-icz. In addition to the pilot, four passengers were also killed in the accident. These were: (1) Katherine Wojciechowicz Angrick (pilot’s daughter), (2) Mark R. Angrick (Katherine’s husband), (3) Heath Gnagy (Katherine’s son) and (4) Lois An-grick (Mark’s mother). Two separate wrongful death and survival damages suits were filed in New Jersey by the respective executors of the estates of Mark R. Angrick and his mother, Lois. One action was instituted against the United States and the other against Carol Wojciechowicz, as Executrix of the estate of Alexander Wojciechowicz and Alexander Leasing, LLC. Both these cases were settled between the respective parties. Carol Wojciechowicz, as Executrix of the Estate of Alexander Wojciechowicz and Alexander Leasing, LLC, instituted Civ. No. 04-1846(RLA) seeking contribution from the United States for the settlement monies paid to the Angricks in the New Jersey proceedings. Plaintiffs in Civ. No. 04-1856(RLA) are the surviving relatives of decedents Alexander Wojciechowicz and Katherine Wo-jciechowicz Angrick who demand compensation from the United States for the damages resulting for their alleged wrongful deaths. As a result of the accident, U.S. Specialty Insurance Company was obligated to pay to its insured, Alexander Leasing, LLC, the agreed value of the destroyed aircraft pursuant to the terms of the policy in effect at the time. Through Civ. No. 04-2342(RLA) the insurer now seeks contribution from the United States for the aforementioned payment. FINDINGS OF FACT Introduction On January 5, 2002, at approximately 2:23 p.m. a twin-engine Cessna Conquest bearing registration number N441AW (hereinafter the “aircraft”) crashed in the Caribbean National Forest near Rio Grande, Puerto Rico, 1.43 miles from the peak of El Yunque Mountain, at an elevation of 1561 feet (hereinafter the “accident”). The aircraft was enroute from the island of Culebra, off the eastern coast of Puerto Rico, to the Luis Muñoz Marín International Airport located in Carolina, Puerto Rico and was being operated as a personal flight under 14 C.F.R. Part 91. Decedent Alexander Wojciechowicz was the pilot-in-command of N441AW. On-board the aircraft on the date of the accident, in addition to Alexander Wojcie-chowicz, were passengers Katherine N. Wojciechowicz Angrick, Alexander’s daughter; Mark R. Angrick, Katherine’s husband; Heath Gnagy, Katherine and Mark’s minor son and Lois Angrick, Mark’s mother. Plaintiffs seek damages for the wrongful deaths of pilot Alexander Wojciechowicz and his daughter passenger Katherine N. Wojciechowicz Angrick and contribution for the settlement monies paid in a New Jersey State Court action for the deaths of passengers Mark R. Angrick and Lois An-grick, as well as for the destruction of the aircraft. Decedent pilot, Alexander Wojciechow-icz, held a Commercial Pilot Certificate. He had flown the aircraft for 1,494 hours and had accumulated a total of 3,935 hours as PiloL-in-Command in various aircrafts. Mr. Wojciechowicz had completed his most recent Biennial Flight Review on December 10, 2001, a few weeks prior to the accident. He also held all necessary certificates and met all current requirements to operate the aircraft on January 5, 2002. The aircraft’s registered owner was plaintiff Alexander Leasing LLC, a privately held limited liability corporation incorporated under the laws of the State of New Jersey. Mr. Wojciechowicz held the following ratings at the time of his death: lighter than air free balloon limited to hot air balloons with airborne heater, airplane single engine land, airplane multi-engine land and instrument airplane. Additionally, he possessed a commercial pilot certificate since 1990. Further, he held a third-class medical certificate with a restriction requiring him to wear corrective lenses for near and distant vision. Mr. Wojciechowicz began visiting Puerto Rico in 1971 and was familiar with the Island’s terrain, including the location of the mountains within the Caribbean National Forest, inasmuch as he had previously flown between San Juan and Culebra approximately 200 times. During these flights, he typically flew at an altitude of 1,500 feet above Mean Sea Level (“MSL”). On those occasions when plaintiff Susan Wojciechowicz Caldwell flew with her father over the island of Puerto Rico, she could easily see the El Yunque mountain range through small windows in the back of the plane. The Terminal Area Chart for the area over which Mr. Wojciechowicz actually flew and intended to fly on the day of the accident depicted the terrain and also provided information such as terrain features, obstacles, and the Maximum Elevation Figures (MEF) for all areas of his intended flight. Although Mr. Wojciechowicz was rated for flight under Instrument Flight Rules (IFR), he chose to fly under Visual Flight Rules (VFR) on the accident flight. Mr. Wojciechowicz did not file an IFR flight plan prior to departing Culebra Airport, or at any time subsequent thereto. Nor did he request clearance from Air Traffic Control to fly under IFR during the accident flight. The Accident Flight N441AW departed the Culebra Airport at approximately 2:00 p.m. on January 5, 2002, with the Luis Muñoz Marín International Airport (hereinafter “SJU” or “San Juan Airport”) as its final destination. The island of Culebra is approximately 18 nautical miles east of the east coast of Puerto Rico. The purpose of the flight was to transport four members of Mr. Wojcie-chowicz’s family from Culebra to the San Juan Airport, where they planned to catch flights to the mainland United States on commercial airliners departing from SJU. Mr. Wojciechowicz intended to return to Culebra after dropping off the passengers at SJU. Mrs. Wojciechowicz, who watched N441AW depart Culebra Airport, believed that there was no sense of urgency with respect to the flight because it was a very short trip — which she estimated at 20 minutes-and which Mr. Wojciechowicz had flown numerous times over the years for the same purpose. Mr. Wojciechowicz contacted the San Juan CERAP East Control position at 2:18:00 p.m. that is, approximately 18 minutes after departing the Culebra Airport, from a location approximately ten miles east of Fajardo and twelve miles west of the Culebra Airport. Upon contact, the aircraft was flying at approximately 190 knots, or about three miles a minute. No evidence was offered during trial as to the aircraft’s path during the 18 minutes which elapsed between its departure from Cule-bra and a point only 12 miles from the Culebra Airport. At 2:18:30 p.m. Mr. Santiago, the air traffic controller assigned to the San Juan CERAP East Control position, directed Mr. Wojciechowicz to “squawk” 0477 in the aircraft’s radar transponder. The first radar information from N441AW was recorded at 2:18:52, when the St. Thomas radar (“STT”) detected the aircraft climbing through 1,100 feet above mean sea level (“MSL”) at a speed of 190 knots. At 2:19:54 p.m., Mr. Santiago established radar contact with N441AW at a point three miles east of the Fajardo Airport. In response to Mr. Wojciechowicz’s stated desire to land at the San Juan Airport, Mr. Santiago instructed N441AW to enter a right downwind for Runway 10 south of Plaza Carolina. The controller provided Mr. Wojciechowicz with the current weather for the San Juan Airport and requested the pilot to state his altitude. The pilot replied that he was at 1,600 feet MSL and that he would stay south at Plaza Carolina. The speed of N441AW continued to increase to as fast as 218 knots as the aircraft traveled westward. As the aircraft traveled westward, its altitude above the ground (“AGL”) decreased as the aircraft maintained a more- or-less constant altitude above mean sea level while the elevation of the terrain along its flight path increased. At approximately 2:21:18, about one minute prior to the crash, N441AW was at 600 feet AGL. Successive radar data, plotted on a map showing terrain elevation, portray the aircraft’s altitude above the ground rising and falling as it crossed over the rugged terrain. The separation between the aircraft and the ground increased to 778 feet AGL, then decreased to 616 feet AGL, then decreased further to 352 feet AGL, then 317 feet AGL, then increased to 580 feet. Approximately 30 seconds, or one and one-half miles before the crash, the aircraft was being flown as low as 150 feet above the ground, not including the height of the trees. From that point to the crash, the altitude above the ground increased again to as high as 711 feet AGL as the aircraft crossed a valley, with the last radar data preceding the crash indicating an altitude of 366 feet AGL as the terrain rose again. This above ground level altitude information was not available to the air traffic controller, whose radar only displayed altitude of the aircraft above mean sea level. The aircraft collided with the ground in an area of rising terrain west of Road 191 near the La Muralla Restaurant in the Caribbean National Forest near coordinates 18°19'21"N/65°46'10"W at an elevation of approximately 1,561 feet. The terrain along the extended flight path of the aircraft continued to rise to about 2,300 feet just west of the crash site along the projected flight path. The crash site was 1.43 miles northeast of the peak of El Yunque, which was passing to the left of the aircraft. Despite the fact that N441AW was equipped with various types of avionics equipment that afforded the pilot precise information about the location and altitude of the aircraft during this flight, at no time during the accident flight did Mr. Wojcie-chowicz communicate to the controller that he was unable to provide his own separation from terrain. Nor did he advise Mr. Santiago that he was lost, having any problems controlling the aircraft, or that he needed assistance in finding his location. Neither did Mr. Wojciechowicz advise the controller that he was uncertain on how to get to Plaza Carolina or had problems regarding the traffic pattern entry point for Runway 10 south of Plaza Carolina. To the contrary, the pilot’s transmissions indicate that he was familiar with the area including Plaza Carolina as well as the traffic pattern for Runway 10. The Court finds Mr. Edwards’ opinion to the effect that Mr. Wojciechowicz must not have known exactly where he was because, had he known, he would not have been there, speculative. This testimony is also at odds with the pilot’s apparent certainty about his position when he checked in with East Control (“ten miles east of Fajardo”) and the confirmation of his position by the East Control air traffic controller just minutes before the accident (“[Rjadar contact three miles east of Fajardo”). At both those points, the aircraft was in clear air below clouds with at least 10 miles visibility, with the north coast of Puerto Rico visible to the pilot. Mr. Wojciechowicz first entered Class G airspace at 2:21:18 p.m., or approximately one minute before the collision, at about the same time that there was loss of radar contact. He flew in and out of Class G airspace from 2:21:18 p.m. until the accident. The pilot flew in Class G airspace for at least the 10 seconds prior to colliding with the terrain. The Pilot-in-Command of Aircraft Flying Under Visual Flight Rules Chose the Aircraft’s Course, Speed, and Altitude Without Direction From Air Traffic Control Piloting under VFR, Mr. Wojciechowicz was free to fly any route of his choice, even after contacting air traffic control. He was able to do so without the need to inform the controller of his intentions at any given moment. At no time during the accident flight did the controller provide Mr. Wojciechowicz with a “vector” (an assigned heading), nor did Mr. Wojciechowicz ask the controller for one. Even though the pilot was directed to enter the right downwind south of Plaza Carolina, when it came time for Mr. Wo-jcieehowicz to enter the airport traffic pattern at SJU, he was given no instructions as to the particular route to take or altitude to fly. He was free to choose his own desired routing to the traffic pattern entry point (Plaza Carolina), as well as any altitude at any given point. The only pertinent limitation on Mr. Wo-jciechowicz’s ability to fly and land at the SJU airport was that he enter the traffic pattern for Runway 10 south of Plaza Carolina. By instructing Mr. Wojciechowicz to enter the traffic pattern south of Plaza Carolina, the controller reasonably understood that it was within the VFR pilot’s sole discretion to choose the appropriate altitude to fly because the VFR pilot is in a better position to see the clouds and terrain and to adjust the altitude accordingly. At no time during the accident flight did the controller direct the pilot to fly at any particular altitude. Mr. Wojciechowicz had the full discretion to fly at any altitude of his choice. As a matter of fact, he altered the altitude of N441AW several times during the accident flight without the need or requirement of seeking the controller’s prior authorization to do so. Because the area where the accident occurred and the area along the aircraft’s flight path leading to it were sparsely populated, Mr. Wojciechowicz had the legal right to fly as close to the ground as he desired so long as he remained at least 500 feet laterally from persons, vehicles, or structures. There is no evidence from which the Court can conclude that Mr. Wojciechow-icz did anything other than consciously choose to fly the course, altitudes and air-speeds that he desired during the accident flight. At All Times During the Flight of N441AW, the Pilot-in-Command Was Solely Responsible for Maintaining Safe Separation Between The Aircraft and Terrain A VFR pilot who is receiving basic radar service (as was Mr. Wojciechowicz in this case) has the sole responsibility to avoid colliding with the terrain because he “has the best seat in the house” to see and avoid the ground. Moreover, “[t]here is no one else who knows his proximity to the ground. That responsibility rests at all times with the pilot.” The pilot has the “minute to minute, second to second, capability and obligation to see that he is clearing the terrain.” The Aeronautical Information Manual “AIM” at ¶4-1-17 entitled “Terminal Radar Services for VFR Aircraft” specifically advises and emphasizes in uppercase letters that, although the VFR pilot may be receiving basic radar services, it is the “PILOT[’S] RESPONSIBILITY” and that the provision of basic radar services is “NOT TO BE INTERPRETED AS RELIEVING PILOTS OF THEIR RESPONSIBILITIES ... TO MAINTAIN APPROPRIATE TERRAIN AND OBSTRUCTIONS CLEARANCE,” and “TO REMAIN IN WEATHER CONDITIONS EQUAL TO OR BETTER THAN THE MINIMUMS REQUIRED BY 14 CFR SECTION 91.155.” Pilots understand that this section means that they may not abrogate their duty to maintain appropriate terrain separation. The AIM makes it clear at ¶4-1-176 that the responsibilities of a VFR pilot who is receiving basic radar services are no different from those of a VFR pilot who is not receiving those services. These responsibilities include the duty to maintain vigilance so as to see and avoid the terrain. The VFR pilot’s primary and continuing duty to see and avoid the terrain is not diminished in any degree simply because the pilot may be in radar contact with and in radio communication with an air traffic controller. Under the circumstances of this type of flight, the pilot would be expected to devote 90 percent of his time to looking outside the aircraft. While doing so, he is identifying landmarks and features to create situational awareness. This pattern of scanning outside the cockpit allows the pilot to see the terrain features. Pilots flying VFR are compelled to use the vigilance required to see and avoid terrain. Avoiding terrain is the VFR pilot’s continuing responsibility and that responsibility cannot be delegated in whole or in part to air traffic control, regardless of whether or not the pilot is in communication with an air traffic control facility. However, this does not relieve an ATC from issuing a safety alert if he is aware that the aircraft is at an altitude which, in the controller’s judgment, places the aircraft in unsafe proximity to terrain obstructions or other aircraft. Accordingly, it is the Court’s task to determine, based on the evidence presented at trial, whether given the extant circumstances at the time of the accident there was sufficient cause to trigger such an awareness on the part of Mr. Santiago. Pilot-in-Command Flew N441AW into a Cloud With Low Visibility, in Violation of the Federal Aviation Regulations Governing Flight Under Visual Flight Rules Because Mr. Wojciechowicz was flying under VFR, the provisions of Federal Aviation Regulation (“FAR”) 14 C.F.R. § 91.155 applied. This regulation required that he avoid clouds by certain minimum distances and to fly only in areas where the in-flight visibility met the regulatory mínimums. Through the FARs and the AIM pilots are advised of the minimum visibility requirements for flight under VFR. In pertinent part, the AIM provides: (A) No person may operate an aircraft under basic VFR when the flight visibility is less, or at a distance from clouds that is less, than that prescribed for the corresponding altitude and class of airspace. Bernard Coogan, a pilot expert with over 28,000 hours of experience as pilot-in-eommand, testified that “a VFR pilot has a continuing responsibility under the concept of see and avoid to avoid getting into closer, or involved with clouds below the criteria spelled out in [14 C.F.R. § 91.155], which gives [the pilot] the cloud separation and visibility requirements in all of the air spaces from [Class] A to [Class] G.” The pilot must “continually monitor the weather systems ... to make sure that he flies a flight path to avoid the clouds by the criteria spelled out under the regulation.” WTien the pilot of N441AW entered the clouds about one-half mile before impacting the ground the aircraft, as stated above, was operating in Class G airspace. While in Class G airspace, Mr. Wojcie-chowicz was prohibited from flying into an area if the visibility was less than one mile. He was strictly prohibited from entering clouds. Dr. Lee Branscome, an expert meteorologist, investigated the weather along the flight route as well as at the accident site. Based on his review of satellite images and other meteorological data Dr. Branscome concluded that, at all pertinent times, the area along the flight path of N441AW leading to the accident site and the accident site itself were overcast. Dr. Branscome concluded that the cloud base in the vicinity of the crash was 1,200 to 1,300 feet MSL. The tops or height of the clouds in the area through which Mr. Wojciechowicz flew and at the crash location was approximately 6,500 feet MSL. At the altitude, time and location that the East Control position at the San Juan CERAP established radar contact with N441AW, when N441AW was approximately three miles east of Fajardo, the visibility looking forward from N441AW was at least ten miles. At that location, there were scattered cloud cover and the base of the clouds was 2,000 feet MSL. Looking straight ahead from this position and altitude, the pilot would see the rising green terrain and the cloud base intersecting the rising terrain in the distance. At that point, the pilot would also have ten miles visibility to his north (or three o’clock position). At about one minute prior to the crash, N441AW was approximately three nautical miles from the crash site. At that altitude, time and location, the forward visibility from the cockpit of N441AW was at least three nautical miles. The aircraft was approximately 500 feet below the cloud ceiling and had not yet entered the clouds ahead that intersected with the rising terrain. Approximately one minute before the crash, the pilot, if he were looking directly ahead of the aircraft and at his altitude, would have seen the base of the clouds intersecting with the terrain at 1,200 to 1,300 feet AGL. At about one minute before the crash, when the pilot could see clouds intersecting the uprising terrain at his twelve o’clock position three miles ahead, the visibility to the one, two, and three o’clock positions from the aircraft (to the right) was at least three miles. Because the terrain to the right from N441AW’s position was also lower then the aircraft’s altitude and because the aircraft was operating under VFR, the pilot could have safely turned to fly in that direction if he so desired without seeking permission from air traffic control. Approximately one-half mile before the point where N441AW impacted the terrain, the aircraft entered clouds. When it entered the clouds, N441AW was approximately 200 feet above the bottom of the cloud. This is consistent with the eyewitness observations of Luis Morales and Jose Saldaña. Inside the cloud, the visibility was only 300 to 1400 feet. N441AW was flying in cloud for approximately ten seconds before colliding with the terrain. Mr. Luis Morales testified at trial that he was standing outside his home and garage located on Road 191 in the Caribbean National Forest at the time of the accident. He saw the aircraft fly over his house at a low altitude and estimated that it was as close to his house as 300 feet. He indicated that the entire day had been rainy with lots of clouds and fog. When he saw N441AW fly overhead, Mr. Morales reported that it was raining lightly and there was “fog all around.” The witness was standing approximately 500 feet from the crash site. He heard an explosion and saw a ball of fire and smoke coming from the crash. Immediately after the crash, Mr. Morales ran to the La Muralla Restaurant about one hectometer away, where it was also rainy and foggy. Jose Saldaña was standing outside his restaurant, La Muralla, at the time of the crash. He heard the sound of trees falling, then the explosion and felt the heat from the explosion. The witness testified that it was so foggy at that time that he was unable to see a large parabolic antenna on his property that was approximately 100 to 150 feet from where he was standing. Nor could he see the tree tops behind his house and restaurant. Mr. Saldaña described the conditions at the time of the crash as “like being inside a cloud.” Lt. Cruz Cartagena, a Puerto Rico State Police helicopter pilot, departed the Isla Grande Airport at approximately 2:30 p.m. in order to search for N441AW. He was unable to see El Yunque mountain in the Caribbean National Forest when he departed because of the rain and low visibility. The rain and low visibility also prevented Lt. Cartagena from searching for N441AW in the vicinity of the crash. He was forced to hold north of the crash site clear of the weather. The witness was flying at approximately 500 feet and the rain and clouds obstructed his view of both the crash site and El Yunque Mountain. Lt. Cartagena was able to locate the crash site and fly over it only after the clouds dissipated. Had Mr. Wojciechowicz not entered the clouds he would have had ample time to see and avoid the terrain with which he ultimately collided. Mr. Coogan calculated that the average speed flown on this flight was about 206 knots. Just before N441AW collided with the terrain, its speed was 212 knots. The aircraft could have been flown safely at half this speed. Mr. Wojciechowicz failed in his duty to fly the aircraft in a prudent manner when he neglected to slow down, particularly when he was at a distance of approximately three miles from the crash site, given the decreasing visibility and the proximity of the cloud that was intersecting the rising terrain directly ahead of the aircraft. Mr. Wojciechowicz again failed to act prudently when he continued to fly at the same speed, which he did not reduce, when he was but one mile from the clouds. By slowing the aircraft’s speed from 212 to 150 knots, the pilot would have doubled his available reaction time while flying at a speed that would have enabled him to safely control the aircraft and avoid colliding with the terrain. Mr. Wojciechowicz failed to act in a reasonably prudent manner when he “put[ ] himself or allow[ed] his aircraft to fly into a condition of weather where he deprived himself of a view of the path in which he was flying.” W. Jeffrey Edwards, Plaintiffs’ pilot expert, testified that the crash “had nothing to do with the weather” and that “there was no real obstruction as far as the weather was concerned, like fog.” This assertion is directly contradicted by the only expert meteorological testimony in the case, as well as by the testimony of disinterested eyewitnesses who saw N441AW flying in the fog and clouds and heard and saw the explosion following the aircraft’s collision with the ground. Furthermore, Mr. Edwards’ testimony was in itself contradictory as he also testified that there was fog in the area of the crash, although he could not “say exactly with any certainty ... the fog was X thick, the visibility was X number of miles or whatnot.” Indeed, he had previously stated in his deposition that, around the time and vicinity of the crash, Mr. Wojciechowicz flew into patchy fog. Mr. Edwards further indicated that even though, in his opinion, VFR conditions were present at all times during the accident flight, he could not explain why Mr. Wojciechowicz was unable to see El Yun-que mountain. Similarly, Mr. Edwards could not explain why, if Mr. Wojciechow-icz was flying in Visual Meteorological Conditions, he did not become aware of the high terrain until a few seconds before he collided with the ridge. Mr. Edwards’ opinion that the pilot’s ability to see the terrain ahead of the aircraft may have been impeded by the position of the sun was directly contradicted by the testimony and evidence presented by Dr. Lee Branscome, an expert meteorologist. Dr. Branscome demonstrated that the sun was obscured at the crash site by a 5,000-foot-thick layer of clouds above the aircraft. The Court, therefore, does not credit the testimony by Mr. Edwards in this regard. Situational awareness is the basic notion that a pilot should be aware of all the circumstances around the flight, including awareness of the terrain, the weather, and the control of the aircraft. Mr. Edwards admitted that Mr. Wojciechowicz “lost situational awareness about exactly where his flight path was taking him.” Mr. Edwards testified that Mr. Wojciechowicz first lost situational awareness shortly after passing Fajardo Airport. How the pilot could have lost situational awareness of his position and the terrain when, in Mr. Edwards’ opinion, VFR conditions persisted throughout the flight, has not been explained. Moreover, Mr. Edwards contradicted himself by testifying that there were “rain showers in the vicinity[,][and][w]e know that they will reduce visibility somewhat.” Mr. Edwards acknowledged that the pilot’s actions caused this accident because Mr. Wojciechowicz was “responsible for the safety of his flying” and he was not aware of the proximity of his aircraft to the terrain. Plaintiffs’ expert testified that Mr. Wojciechowicz was able to see the ridge with which he collided but that he flew N441AW in such a manner that “it was too late to avoid the collision” without offering any explanation as to why the pilot had placed the airplane into that situation. In summary, the Court finds based on the evidence presented at trial that Mr. Wojciechowicz had the experience and equipment to know, with precision, his location, flight path, altitude and speed at all times during this flight. He also knew, or should have known, that it was his continuing responsibility to remain clear of all clouds and areas of low visibility. The pilot had, or should have had, the ability to look outside the aircraft and see the terrain over which the aircraft was flying and which the aircraft was approaching ahead and to adjust the aircraft’s course and/or altitude to avoid it. Mr. Wojciechowicz flew N441AW on a course of his choosing, south of the most direct and unobstructed course to San Juan from Culebra, at a very low altitude, at an unnecessarily high speed, over ever-rising terrain he could easily see into an area of cloud and low visibility, which he could notice from miles away before he entered it. Flying into this area of adverse weather obstructed the pilot’s view of the rising terrain to the point that the aircraft impacted the terrain shortly after the aircraft entered the cloud. Mr. Wojciechowicz’s choice to fly at an unnecessarily high speed at low altitude significantly reduced his chances of seeing the terrain in time to avoid it. His actions in entering this type of weather were in clear violation of 14 C.F.R. § 91.155, a special regulation designed to prevent the very harm which occurred in this case. The Air Traffic Controller Owed No Duty to the Pilot or Passengers to Issue a Safety Alert to N441AW During the Accident Flight FAA Order 7110.65M, entitled “Air Traffic Control,” prescribes air traffic control procedures and phraseology for controllers, who are required to be familiar with those portions of the Order that pertain to their operational responsibilities. This Order instructs air traffic controllers to give first priority to separating aircraft and issuing safety alerts as mandated in the Order. FAA Order 7110.65M requires controllers to issue a terrain/obstruction safety alert to an aircraft if the controller is aware that the aircraft is in a position or altitude which, in the controller’s judgment, places the aircraft in unsafe proximity to terrain or obstructions. The responsibility to issue a safety alert applies to VFR and well as IFR aircraft. Air traffic controller Marcos Santiago, who was on duty at the East Control position at the time of the accident, testified he would issue a Safety Alert to an aircraft operating under VFR if, in his judgment, the aircraft were in unsafe proximity to terrain. Plaintiffs’ attorneys attempted to demonstrate Mr. Santiago’s “mindset” with regard to his purported disregard for the rules under which he is to render services as an air traffic controller. In this vein, Mr. Martinez asked Mr. Santiago at trial the following question: [B]ut if the VFR pilot is squawking a discrete code and you have communicated with that pilot and he displayed on your scope as the data block with altitude information speed, would you then provide a Safety Alert to that pilot if, in your opinion, that pilot is in unsafe proximity to terrain and obstruction? Mr. Santiago responded: I would only if he had requested it. However, when asked the same hypothetical question again by Mr. Martinez, Mr. Santiago responded: If, in my judgment, he is in an unsafe proximity to the terrain, I would issue it. While the responses to these hypothetical questions may seem contradictory, the questions are just that — hypothetical. Consequently, the Court will disregard these answers and concentrate instead on the actual facts presented during the course of the trial. An air traffic controller at the East Control position at the San Juan CERAP does not have a way of knowing how high above the surface of the terrain or above any trees or other objects on the terrain for that matter an aircraft may be flying. That is because the controller’s radar display does not provide the controller with the aircraft’s altitude above ground level (AGL). Rather, the controller’s radar display provides only the aircraft’s altitude above mean sea level (MSL). The radar scope at the East Control position at the San Juan CERAP does not display terrain features which means that the controller has no way of knowing what the terrain beneath the pilot is. Nor does the controller know the VFR pilot’s intentions as to his intended route of flight. Rather, the controller expects a VFR pilot to maintain visual contact with the terrain and avoid it. The last full radar data block with a valid radar return displayed to Mr. Santiago on his radar by the San Juan (SJU) radar sensor was received from N441AW at 2:21:18 p.m., approximately one minute preceding the accident, at a position approximately 4.7 miles from El Yunque. This location would not be a cause for Mr. Santiago to trigger an alert or even to turn on the St. Thomas (STT) sensor. The last “coast” data block on N441AW was seen at 2:21:42 p.m., approximately 45 seconds prior to the crash. Therefore, no information was displayed on Mr. Santiago’s radar scope showing either an actual or predicted position of N441AW for 45 seconds before the accident and no terrain in the vicinity was ever depicted on the scope. The East Control air traffic controller generally cannot be aware that a VFR aircraft is in “unsafe proximity” to terrain because the controller does not have the terrain depicted on the scope. The controller is expecting the pilot to see the terrain; keep the aircraft at a safe altitude in reference to the terrain and to inform the controller if unable to do so. The only way a controller would know that a VFR pilot may be in unsafe proximity to terrain is if the pilot himself informs the controller that he or she is unable to maintain safe terrain clearance. This is precisely what the controller expects the pilot to do. An air traffic controller expects pilots flying under VFR to advise the controller if the pilot is unable to provide his or her own separation from the terrain for any reason. At no time during the accident flight did Mr. Wojciechowicz advise the controller that he was unable to or was having any difficulty in keeping his own separation from the terrain. At no time during the accident flight did Mr. Wojcie-chowicz advise the controller that he was having any visibility problems as a result of the weather or that his intended route of flight would place N441AW in instrument meteorological conditions, or that he was having difficulty seeing the terrain because of the sun angle. Nor did the pilot give any indication that he was unsure of the aircraft’s position with reference to his intended route of flight or destination. A VFR aircraft approaching higher terrain is not a cause for an air traffic controller to be concerned, as the pilot is expected to have the terrain in sight and to avoid it. The Court finds that controller Santiago was under no duty to issue a safety alert to N441AW under the circumstances of this case. N441AW was being flown under VFR, which means that the pilot was responsible for selecting an altitude and course that enabled him to comply with the Federal Aviation Regulations regarding weather minima and terrain avoidance. Although an air traffic controller must issue a safety alert to a VFR aircraft if the controller is aware the aircraft, in the controller’s judgment, is in unsafe proximity to terrain, the rules of VFR flight necessarily shift the awareness of what might be “unsafe proximity” to terrain to the pilot. Moreover, with neither terrain nor an aircraft target depicted on Santiago’s radar scope, only the pilot was in a position to know whether the aircraft was located at an unsafe proximity to terrain. Even if Santiago was aware of the high terrain in the El Yunque rain forest area, he was under no duty to issue a safety alert to a VFR pilot whom the controller may have reasonably presumed was complying with the Federal Aviation Regulations by flying in clear air, maintaining sight of the terrain ahead of the aircraft, and avoiding it. The Court rejects the testimony of Mr. Parham, Plaintiffs air traffic control expert, that a VFR aircraft flying level and heading toward higher terrain invokes the air traffic controller’s duty to issue a safety alert. Mr. Parham’s opinion is directly contrary to the pilot’s responsibility when flying VFR to see and avoid terrain and to remain clear of weather. Moreover, the dearth of information available to the controller about the specifies of the terrain in the vicinity of the VFR pilot, as well as the controller’s inability to know the pilot’s intentions or capabilities, make it impossible for the controller to know if the pilot is in “unsafe proximity” to terrain. The pilot has the best, indeed, the only perspective from which such a determination can be made. The Court also rejects Mr. Parham’s opinion that the presence of the aircraft’s MSL altitude on the controller’s scope, combined with the presence of the high terrain and mountains of the El Yunque rain forest, also required that Santiago issue a safety alert. The Court cannot credit this testimony because there was no terrain depicted on the controller’s radar scope and although the positions of obstructions atop El Yunque and Pico del Este are marked on the scope, Mr. Par-ham admitted there is no information given on the scope as to the elevation of these obstructions. Once again, the pilot is the only person in a position to judge whether the altitude and route he has chosen place the aircraft in unsafe proximity to the terrain which he is, or should be, observing outside the aircraft. The Presence of Minimum Vectoring Altitudes on the Controller’s Radar Display Did Not Create a Duty To Issue a Safety Alert Minimum Vectoring Altitudes, or “MVAs,” are depicted on the East Control radar display and show geometric blocks of airspace with associated altitudes. The associated altitude in each block is the lowest altitude which a controller can assign to an aircraft flying under IFR in that particular airspace. The Court rejects Mr. Parham’s opinion that because Mr. Santiago had the MSL altitude of N441AW available to him and that the aircraft was flying through areas where the minimum vectoring altitude was above the aircraft’s altitude, Mr. Santiago should have issued a safety alert. The evidence at trial, including Mr. Parham’s own admission, was that MVAs apply only to airplanes flying under IFR whereas pilots flying VFR are allowed to fly below the MVA. Moreover, almost all VFR aircraft in the CERAP’s airspace fly below the MVA. It is not alarming to an air traffic controller to see VFR aircraft flying below the MVA in his radar scope because the VFR pilots are expected to maintain visual contact with the terrain and avoid it. An air traffic controller does not know what “too far below the MVA” is because VFR pilots are allowed to fly below the MVA and they are responsible to look out and keep the terrain in sight. Based on the foregoing, the Court finds that the depiction of the aircraft’s MVAs on controller Santiago’s radar scope did not give rise to a situation which would have caused him to believe that N441AW was in danger. Consequently he had no duty to issue a safety alert to the pilot based on this data. No Alleged Deficiencies in the Training of Controller Santiago Were a Cause of the Accident The Court disagrees with Mr. Parham’s opinion that if certain training had been given as he believed it should have, Mr. Santiago would have had more specific knowledge of the elevations of the three mountain peaks in the Caribbean National Forest. Mr. Santiago testified that he was generally familiar with the location of the Caribbean National Forest on his radar, which he referred to as “El Yunque,” as well as the general location of the mountains. The Court finds credible as well as understandable that Mr. Santiago did not know the details of the peaks and valleys that might have been in the area. The evidence at trial showed that the training the controllers receive at the CERAP concerning terrain is accomplished by requiring them to know the Minimum Vectoring Altitudes for the various areas within their fields of jurisdiction. The controllers are expected to be aware generally of the location of the El Yunque mountain range. The evidence also showed that in the FAA system, the facility manager is given leeway in adapting nationally-directed training programs to local requirements. At San Juan, controllers receiving initial training were instructed on the presence of “significant terrain areas” through memorization of the Minimum Vectoring Altitudes. This is so because in Puerto Rico, all the significant terrain is reflected in the MVAs and IFR aircraft are kept above the MVAs. As to VFR aircraft, there are no requirements for issuing altitudes based on the MVAs. Mr. Henderson, the Government’s air traffic control expert who held several positions in the FAA which required him to develop and implement training programs, testified that the methods the San Juan CERAP used to train controllers on terrain in their areas of jurisdiction complied with the national FAA requirements. This is so because the requirement is for controllers to be generally familiar with the terrain, as Santiago was. The training does not require the controllers to know the elevation of specific terrain features like hills, valleys, and ridge lines. Moreover, the Court also finds, consistent with the Court’s Conclusions of Law, that the general terrain knowledge required of controllers does not give them superior knowledge of the terrain to that of a VFR pilot, who is required to keep the terrain in sight at all times and to avoid it. The VFR pilot can fly down into valleys or circle mountains if he so desires or if he needs to do so to maintain VFR. Therefore, a controller’s general knowledge of the terrain underlying his area of jurisdiction does not provide him with sufficient information regarding a VFR aircraft’s “unsafe proximity” to terrain to mandate issuance of a safety alert. Accordingly, the Court concludes the training given Mr. Santiago on significant terrain features in the East Control area of responsibility complied with the FAA’s requirements. The “Seven-Sided Polygon” Depicted on the East Controller’s Radar Display Does Not Represent the Caribbean National Forest Flight Avoidance Area and Did Not Create a Duty for the Controller To Issue a Safety Alert The Court finds immaterial Plaintiffs’ suggestion that the MVA described as the “seven-sided polygon” depicted on radar scope represents the boundaries of the Caribbean National Forest Flight Avoidance Area. It is uncontroverted that N441AW never entered this area. The only evidence presented at trial was to the effect that the “seven-sided polygon” is an MVA area, not a depiction of the Caribbean National Forest Flight Avoidance Area. Plaintiffs’ counsel did not ask their air traffic control expert whether the “seven-sided polygon” represented the Caribbean National Forest area. Rather, Mr. Parham testified incorrectly that the figure is an MVA of 5,700 feet. Prior to trial Plaintiffs abandoned any claim that air traffic controllers at the San Juan CERAP had a duty to prevent N441AW from flying into the Caribbean National Forest Flight Avoidance Area at an altitude less than 2,000 feet above the ground. However, Plaintiffs maintained their allegation that controllers had or should have had knowledge of the Flight Avoidance Area and that this knowledge gave or would have given them better awareness of the higher terrain elevations in that area. Even assuming this allegation to be true, such knowledge would not have given the air traffic controller in this particular case any more reason to issue a safety alert to a VFR aircraft under its own navigation, transiting the area of the Caribbean National Forest. Consequently, the issue of the size of the seven-sided polygon as depicted on radar scope, be it as small as a pencil eraser or substantially larger as the Court was able to personally observe at the CERAP site inspection, is immaterial. The Lack of an Emergency Obstruction Video Map (“EOVM”) at the San Juan CERAP at the Time of the Accident Was Not Negligence and the Lack of an EOVM Was Not a Cause of the Accident In February 2000, FAA Headquarters conducted a “Full Facility Evaluation” of the San Juan CERAP. At that time, FAA Order 7210.3R required that an EOVM be installed at terminal facilities with designated mountainous terrain within their radar coverage if the facility had an “available channel in their video mappers.” An EOVM is a video map that depicts some contour lines and obstacles on a controller’s scope when it is called up for display by the controller. The team conducting the Full Facility Evaluation found ambiguity in FAA Order 7210.3R because the CERAP did not have a “video mapper.” Instead, the CERAP was using a “Micro-EARTS” system which used digitally-generated video maps. However, digitally-generated maps are unrelated to “video mappers.” Because of this ambiguity, the evaluation team rated the lack of EOVM as “Informational” thereby identifying it as an item of interest to higher headquarters and seeking resolution, rather than using a stronger rating such as “Problem.” The “Informational” item identified in the 2000 Full Facility Evaluation did not put the CERAP in violation of, or in noncompliance with, FAA Order 7210.3R. Because the “Informational” item demanded resolution by the FAA before an EOVM would be required at the CERAP, managers at the CERAP took no action to install the system at that time. Having heard further factual details on the issues involved during trial, the Court finds that the CERAP was justified in its position in 2000 that it was not required to install an EOVM at that time because a genuine incertitude existed within the FAA as to whether or not installation was mandated. Even assuming the claims based on the lack of an EOVM at the San Juan CERAP are not barred by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), the Court concludes that this absence did not constitute negligence. Based on the evidence presented at trial, the decision of the managers of the San Juan CERAP not to install the EOVM while awaiting FAA Headquarters’ resolution of the Full Facility Evaluation “Informational” item arose from a genuine doubt as to its applicability to the local facilities and was, therefore, reasonable. Moreover, the Court finds that the lack of an EOVM was not a cause, proximate or otherwise, of the accident and rejects Mr. Parham’s opinions to the contrary. Based on the Court’s CERAP’s site inspection and opportunity to view an EOVM, the Court further notes that the terrain, as depicted on the EOVM, simply consists of contour lines without elevation annotations and obstruction symbols with elevation figures. Moreover, the aircraft accident site is not within the terrain outlined by the contour lines. Mr. Parham opined that had the EOVM been locally available, Mr. Santiago would have received training concerning the EOVM which would have increased his knowledge of the high terrain in the East Control area under his responsibility. However, Mr. Parham was never a training specialist or manager and never worked at an FAA terminal facility. Rather, his opinion was based on the training Mr. Parham claims to have received and was given at the Atlanta Center when he was a controller at that location. In contrast thereto, Mr. Henderson, the Government’s air traffic control expert, who was also a former training manager and manager of a terminal air traffic control facility, testified that the training a controller would receive on EOVM would not increase the controller’s knowledge of terrain under his airspace beyond what was already known. Moreover, nothing about the EOVM puts the controller in a better position than a VFR pilot to determine “unsafe proximity” from terrain and cue the controller to issue a safety alert. The Court rejects Mr. Parham’s opinion to the effect that, had the equipment been available, controller Santiago could have or would have called up the EOVM map and recognized that N441AW was in danger. This opinion disregards FAA Order 7110.65M as well as FAA Order 7210.3R which provide that the EOVM “shall only be used” if the aircraft cannot maintain safe terrain clearance altitudes and the pilot declares an emergency, or if the controller determines an emergency exists because of the pilot’s inability to maintain an appropriate terrain clearance altitude. At no time during the accident flight did Mr. Wojciechowicz declare an emergency or indicate that he was unable to maintain a safe altitude nor was there any evidence concerning the trajectory or altitude of the aircraft that would have caused a controller to believe that an emergency existed. The Court declines to accept Mr. Par-ham’s opinion that N441AW was not able to maintain a safe altitude and that an emergency existed because the aircraft maintained a constant altitude while the terrain below it was rising. No evidence was introduced at trial indicating that the controller was privy to this information. Nothing about EOVM puts the controller in a better position than the VFR pilot to determine “unsafe proximity” from terrain at any given moment during a flight under VFR or in any way cue the controller to issue a safety alert. Absent evidence that Mr. Wojciechowicz experienced an emergency and was unable to maintain altitude or that he notified anyone of such problems, the Court finds that there would have been no reason for Mr. Santiago to refer to the EOVM to determine if N441AW, a VFR flight whose pilot was responsible for maintaining safe separation from the terrain, was in unsafe proximity to terrain and issue a safety alert. The Lack of a Pilot Weather Report During the Accident Flight Was Not a Cause of the Accident The Court rejects Mr. Parham’s opinion that the lack of a pilot weather report concerning visibility in the vicinity of El Yunque was a cause of the accident. The Court initially notes that Mr. Par-ham’s testimony that a PIREP would have prevented the accident is contradicted by the testimony of Mr. Edwards, Plaintiffs’ pilot expert. Mr. Edwards testified that weather was not a factor in the accident. Thus, there would have been no PIREP weather report to relay to Mr. Wojcie-chowicz which could have been a cause for concern. Mr. Santiago came on position at the East Control sector at 2:12 p.m. on January 5, 2002. The accident occurred only ten minutes later, at 2:22 p.m. The lack of a request or receipt by the controller of a PIREP in the ten-minute interval prior to the accident has not been shown to have any bearing on the accident. The Court also finds that it is a VFR pilot’s responsibility to avoid weather that is below the mínimums for VFR flight in the airspace in which the pilot is operating. These weather mínimums are prescribed in the FARs and the AIM. Furthermore, the evidence received at trial establishes that, when N441AW was abeam Fajardo several minutes before the crash, the pilot had a 10-mile visibility and that in the distance, he could see the clouds as they intersected the green rising terrain. The pilot’s ability to continue to see the clouds as the aircraft approached the crash site was also established. The Court rejects Parham’s opinion that a PIREP about the very weather that Mr. Wojcie-chowicz could clearly see would have prevented the accident both as illogical and speculative. Controller Santiago Was Under No Duty To Issue A So-Called “Safety Advisory,” and the Lack of Such an Advisory Was Not a Proximate Cause of the Accident The Court also rejects Mr. Parham’s opinion that Mr. Santiago should have issued what the expert referred to as a “safety advisory” concerning the high terrain in Puerto Rico at about the time N441AW was crossing the shoreline near Fajardo. Plaintiffs failed to introduce evidence demonstrating that a “safety advisory” is a service that controllers provide. On cross-examination, Mr. Parham admitted that such a “safety advisory” was not identified in any of the services provided to pilots by air traffic control as described in either FAA Order 7110.65, in the PiloNController Glossary appended to FAA Order 7110.65 or the AIM. The only support proffered by Mr. Par-ham for his opinion on this issue was that he had seen an entry entitled “traffic and safety advisories” in the training records of Mr. Ortiz in 1993 and 1996. However, Plaintiffs failed to present the contents of this training course even though they called Mr. Ortiz as a witness at trial. On the other hand, Mr. Henderson, a training specialist and manager during his FAA career, credibly testified that he was unaware of “safety advisories” and that he knew of no such training, surmising that the designation in Mr. Ortiz’s training record was simply a label. Mr. Henderson had never heard of a “safety advisory” during his career and could not find any reference to this term in either the Pilot-Controller Glossary, the AIM, or FAA Order 7110.65. The Court further finds that Mr. Santiago’s failure to issue an undefined, general “safety advisory” to Mr. Wojciechowicz about high terrain as the pilot crossed the coast near Fajardo did not cause or contribute to the accident. The uncontro-verted evidence showed that Mr. Wojcie-chowicz had previously flown an aircraft between Culebra and San Juan on at least 200 occasions. The general area of El Yunque was visible from the aircraft during those trips. Moreover, during the accident flight, the pilot would have been able to see the up sloping terrain leading to the Caribbean National Forest when N441AW crossed the coast. Based on the foregoing, the Court concludes that there was no duty to issue a “safety advisory” as proffered by Mr. Par-ham. Controller Santiago Was Not Observing N441AW on the St. Thomas Radar Sensor The Court finds that at the time of the accident Mr. Santiago was monitoring radar data originating from the San Juan (SJU) sensor and not from the St. Thomas (STT) sensor. At the outset, Plaintiffs failed to introduce evidence showing why or when Mr. Santiago would have switched his scope to the STT sensor. Even though Plaintiffs’ counsel speculated that the switch could have been made because Mr. Santiago lost radar contact with N441AW, the evidence shows that the loss of radar contact is not uncommon and that pilots are warned about this possibility in the AIM Pilot-controller Glossary. Moreover, Mr. Santiago credibly testified that, during the period he served as a controller at the San Juan CERAP, he never used the STT sensor when working traffic at the East Control position nor did he know of anyone else at the CERAP using it. Further, the air traffic controller indicated that he remembered specifically using the San Juan sensor on the day of the accident. Additionally, local operating procedures applicable at the CERAP at the time required the East Control position to switch to “MOSAIC,” not STT, if the San Juan radar went down. Plaintiffs’ contention that Mr. Santiago was using the STT radar is also belied by the uncontroverted fact that two seconds after the STT radar data indicated it still had radar contact with N441AW, the transcript shows that Mr. Santiago transmitted that he had lost radar contact with N441AW. Under Plaintiffs’ premise that Mr. Santiago was watching N441AW while using the STT radar, he would have made the aforementioned transmission while a valid beacon target and data block were still displayed on his radar scope. However, according to the undisputed evidence, an air traffic controller would not issue a “radar contact lost” transmission while a valid radar beacon target or data block was being displayed on the radar for that aircraft. Indeed, plaintiffs’ witness, Mr. Parham, agreed that he would never issue “radar contact lost” if he still had a valid data block and beacon target. Accordingly, the pertinent radar data and transcripts demonstrate the lack of merit in Plaintiffs’ allegation that Mr. Santiago was watching the STT radar data and not the SJU radar data when radar contact with N441AW was lost. Moreover, the substantial operational effects which would result from a controller’s decision to unilaterally change the sensor — and the absence of evidence of any such effects occurring in this case — further confirm our conclusion that Mr. Santiago did not use the STT sensor on January 5, 2002. Changing to the STT sensor eliminates the capability of East Control to provide Class C services to aircraft and also changes the minimum vectoring altitudes. No evidence was introduced at trial indicative that any such operational results occurred during the period that Mr. Santiago was on duty on the day of the accident. Another significant operational effect of moving from one sensor to another is that the controller would not be able to monitor all of the aircraft in his sector during the switching procedure. Switching between the SJU and STT sensors causes the controller’s display to re-align itself and center on the STT radar 40 miles away, thereby losing more than half the East Control area of responsibility from the scope. To adjust the display to again show all of the East Control required airspace requires ten or more keyboard entries ranging from 15 to 20 seconds to carry out the operation. Throughout this period of time, the controller would not be able to monitor all of the aircraft in his sector. The Court also finds unpersuasive Plaintiffs’ argument that Mr. Santiago had been using the STT radar because he was able to state the location of the crash by reference to communications with other aircraft several minutes after he had transmitted that radar coverage had been lost. Mr. Edwards testified that he considered Mr. Santiago’s statement that he lost radar contact with N441AW at a position 15 miles east-southeast of San Juan to be the most accurate estimate of where the controller last saw the aircraft. However, Mr. Santiago himself testified that these measurements were only estimates and approximations from the “general area” where he lost contact. The overwhelming evidence indicates and the Court so finds, that Mr. Santiago was not observing N441AW using the STT radar on the day of the accident. Rather, he was viewing instead the SJU data in accordance with the San Juan CERAP’s standard operating procedures. Controller Santiago Did Not Owe a Duty to Separate N441AW from Obstructions The Court finds unpersuasive Plaintiffs’ argument, introduced during Mr. Henderson’ cross examination, that Mr. Santiago owed a duty under the circumstances of this case to separate N441AW from “prominent obstructions” depicted on the controller’s radar scope by a distance of three or five miles, depending on which radar antenna was providing information to Mr. Santiago’s scope. According to ¶ 5-5-9 of the Air Traffic Control Manual, FAA Order 7110.65M, controllers must “separate aircraft” from “prominent obstructions” as described in the provision by a distance of three or five miles, depending on the distance the obstacle is from the radar antenna providing data to the controller. Even assuming arguendo that ¶ 5-5-9 were applicable to the facts in this case, the Court, as an initial matter, finds that its requirements were not violated. Mr. Santiago was using the San Juan radar antenna during his handling of N441AW. The radar target for the aircraft dropped from the San Juan radar before N441AW came within three miles of the obstacle depicted on controller Santiago’s radar scope representing the antennas on El Yunque. Without the aircraft remaining in radar contact it would have been impossible fo