Full opinion text
Before RITTER, District Judge. A Douglas DC-6, VHBPE, owned and operated by British Commonwealth Pacific Airlines, Ltd. (BCPA), crashed near Half Moon Bay, California, at approximately 0844 Pacific Standard Time, October 29, 1953. The aircraft was destroyed by impact and subsequent fire. The eight crew members and eleven passengers were killed. Plaintiffs’ testate, William Kapell, was one of those passengers. This action is brought to recover damages for the death of William Kapell. It was tried to the court and jury and resulted in a verdict for the defendants, no cause of action. The plaintiffs have moved the court, pursuant to Rule 50(b)_of the Federal Rules of Civil Procedure for the following relief: (1) A directed verdict in favor of the plaintiffs on the issue of liability, and a new trial, limited to the issue of damages only. (2) Judgment non obstante veredicto for the plaintiffs on the issue of liability, and a new trial, limited to the issue of damages only. (3) A new trial on all issues. The issues presented by the foregoing motions, of course, require for their determination an examination of all of the evidence. Since this .was an international flight, and there was a contract of carriage between the deceased and the airline, the provisions of the Warsaw Convention govern. The flight was scheduled between Sydney, Australia, and San Francisco, California, with intermediate stops at Nandy, Figi Island, Canton Island, and Honolulu, T. H. The flight to Honolulu was without incident, and the pilot who flew the aircraft during this entire period stated that the aircraft was normal in all respects. In Honolulu a new crew came aboard after a 36 hour rest period. They were briefed on expected en route and terminal weather by U. S. Weather Bureau personnel. The crew filed an IFR (Instrument Flight Rules) flight plan with ARTC (Air Route Traffic Control) which indicated a rhumb line course was to be flown to San Francisco, with Sacramento, California, the alternate airport. The estimated flying time of the flight was nine hours and twenty-five minutes. And, there was fuel on board for twelve hours and fifty-three minutes. The aircraft departed Honolulu at 2259, October 28, 1953. According to company records, the gross take-off weight of the aircraft was 90,166 pounds, which was below the allowable gross take-off weight of 95,200 pounds, and the load was distributed properly with respect to the center of gravity of the aircraft. Propeller difficulty reported shortly after take-off from Honolulu probably had no bearing on this accident. The trouble was reported by the flight to have been eliminated, and no further reference was made to it in the numerous communications throughout the extensive flight. No claim for it has been made by defense counsel. No reference in those numerous communications was made to any trouble of any kind. (Exh. 64, Trip following form; Exh. 65, Post flight analysis: “Aircraft normal up to Half Moon Bay. Reported to tower over HMB at 0839”). The flight from Honolulu to Half Moon Bay fan marker was uneventful. I. The Clearances. As the flight proceeded across the Pacific Ocean, from Honolulu to San Francisco, hourly routine position reports were made to OFACS (Overseas Foreign Aeronautical Communication Station), to Honolulu before the aircraft reached the half-way point, 138 degrees west longitude, and to San Francisco after that point was passed. The chief, at the time of the accident, of the Air Route Traffic Control Center at Oakland — a federal government agency to provide air traffic separation to en route aircraft — testified: We communicated with aircraft over the ocean in 1953 in this fashion: The crew aboard the airplane would report by code ordinarily to a CAA communications facility which was located at San Francisco Airport. This report would be copied by the communicator and immediately telephoned to the Oakland Traffic Control Center. If we had advice or clearance for the aircraft, the procedure would be reversed. We would call the CAA communication station in San Francisco. They would copy the clearance, call the pilot by radio-telephone, and deliver it. When an airplane received a message from the San Francisco overseas radio, the plane acknowledged receipt of the message. It was the custom and practice, though there was nothing on the messages to indicate whether or not such acknowledgment was made in each case. In 1953 we didn't communicate directly with any aircraft. Oakland Traffic Control followed the plane in from 138 west. The Traffic Control Center releases jurisdiction of an inbound flight to the destination tower fifteen to twenty-five miles away from the airport. In this particular instance, as I recall, the traffic control responsibility was changed over at Half Moon Bay. Ordinarily we would clear him to a fix called the approach control holding fix, which at the time of this incident was the outer marker of the ILS system, and, as I recall, this aircraft was cleared to that fix. The route specified was Half Moon Bay direct to the outer marker, as I recall. The altitude was given, at least 500 feet on top. At 0550 Pacific Standard Time, the flight sent the following message: “VHBPE position 32.39 N. 134.40 W. Time 1350 Z (0550). Altitude 11,500. Track 064 degrees. Ground • speed 225 knots. Wind 030 degrees 25 knots. (Estimating over SFO at 1640 Z (0840). Estimating arrival at blocks 1650 Z (0850).” This report indicated there was no trouble, and that the crew thought the flight was going to continue according to schedule, as it had all the way across from Honolulu. And, of course, as it did until it arrived at Half Moon Bay. Communications to and from the flight were changed from code to voice after that message. In answer to a request from the flight, San Francisco ARTO (Air Route Traffic Control Center at Oakland), at 0807, Pacific Standard Time, cleared it to descend in accordance with Visual Flight Rules and to “Maintain at least 500 on top” of the clouds. This was by voice contact with the flight. The flight reported that it was starting descent at 0815, and at that time was given the San Francisco 0800 weather: “Measured ceiling 1,200 feet, broken, visibility nine statute miles, temperature 54, dew point 50, wind west 12 knots and altimeter 30.13.” This, also was by voice contact with the flight. As the aircraft approached the California coast, Western Air Defense Force Radar identification zone personnel, “Sliphorn”, located at Mount Tamalpais, ordered it to execute the check turn, which it did. It was thought there might be foreign aircraft flying near our coast at that time. The check turn was executed between 150 miles out and 60 miles out. It was identified and released from corridor assignment at 0821 Pacific Standard Time. Both of these communications, again, were by voice contact with the flight. Western Air Defense Force Radar personnel reported the position of this BCPA aircraft 0821, Pacific Standard Time, at 36 degrees 38 minutes north, one hundred twenty three degrees 31 minutes west. Within a minute or two of that time, the aircraft reported its ground speed at 225 knots and estimated its arrival over SFO at 0840 and at the blocks at 0850. There was a definite fix on her at 0821. At that time, eighteen minutes before the pilot reported over Half Moon Bay, the flight was about 70 miles off the coast. At 0827, Pacific Standard Time, Air Route Traffic Control Center transmitted to this aircraft through OFACS (Overseas Foreign Aeronautical Communication Station) the following clearance: “ATC clears VHBPE to the San Francisco ILS outer marker via the Half Moon Bay fan marker direct to the San Francisco ILS outer marker. Maintain at least 500 feet above all clouds. Contact San Francisco approach control after passing the Half Moon Bay fan marker. Cloud tops reported in the Bay area 1700 feet.” This message, also, was by voice contact with the flight. Moreover, it was acknowledged and repeated back by the flight. At this time the Air Route Traffic Control Center at Oakland estimated the arrival of the BCPA aircraft at the San Francisco outer marker at 0849, Pacific Standard Time. In its 0827 clearance ARTC transferred control of the flight to San Francisco Approach Control. It was the custom for the flight on crossing the coastline to transfer to San Francisco Approach Control pursuant to the terms of such clearance. At 0839, the flight called San Francisco Approach Control on 3105 kilocycles, identified itself as “Air Pacific Echo” and advised that it was over Half Moon Bay, 500 on top and was listening on 278 kilocycles. Approach Control acknowledged, and repeated, the pilot’s report over Half Moon Bay, and sent a clearance all in one transmission: “A-P-E, San Francisco Approach Control, Half Moon Bay three nine at least five hundred on top; cleared for an ILS approach to the airport, Runway two eight right, wind west one five; cross the outer marker initial(ly) at least five hundred on top, report when inbound; ceiling one thousand two hundred, visibility nine, altimeter 30.14, over.” That message also, was by voice contact with the flight, was acknowledged, by the flight and repeated back. Approximately three minutes later, the flight made a report which was acknowledged by the controller as “Air Pacific Easy, Roger, southeast, turning inbound” ; the controller then added, “check passing the ILS outer marker inbound.” At 0845 a call to the flight was unanswered as were all subsequent calls. The evidence is that this aircraft crashed at approximately 0844 on King’s Mountain, about ten and one-half miles from the ILS outer marker. The aircraft was flying on an approximate heading of northeast by north when it first struck the trees. The elevation of the first tree struck was 2020 feet. A telegram from the Manager at the San Francisco office to the General Manager of British Commonwealth Pacific Airlines in Australia, dated October 30 at 0240 time, stated: “Aircraft apparently heading parallel range leg, but about eight miles south of same just prior to crash.” The landing gear was down and locked at impact. The flaps were extended between 15 and 20 degrees. The major portions of the control surfaces were located with the main wreckage. Many-broken and burned control cables were examined and these, together with other components of the control system, failed to reveal any evidence of failure or malfunction prior to impact. At far as could be determined from an examination of the damaged airframe components, there was no evidence to indicate that the aircraft was not airworthy prior to the crash. The propeller governors from Nos. 2 and 3 engines were found and although badly burned, comparative tests were possible which revealed r. p. m. settings of approximately 2400. As far as could be determined from an examination of the damaged engines and components, there was no indication that a malfunction or failure had occurred prior to impact. The aircraft was in an airworthy condition according to the laws of the Australian Government when it departed Sydney. Two communication receivers were found tuned to 278 kc., the frequency of the San Francisco tower. The marker beacon receiver hi-lo switch was in the “hi” position. The ADF receivers were so badly damaged it was impossible to determine their settings. One altimeter was recovered with a barometric setting of approximately 30.12; the latest setting given the flight was 30.14. This difference amounts to approximately 20 feet of altitude. A clock was impact stopped at approximately 1640 (0840). Three times the flight was ordered to maintain at least five hundred feet above all clouds. Twice — at 0827 by ARTC to fly from the Half Moon Bay fan marker “direct to the San Francisco ILS outer marker; maintain at least 500 above all clouds”, and, at 0839 by San Francisco Approach Control to “cross the outer marker initial(Iy) at least 500 on top”— twice the flight was ordered to fly to the ILS outer marker, and to maintain at least 500 feet above all clouds between Half Moon Bay fan marker and the ILS outer marker. All three of these clearances were by voice contact with the crew, and the two clearances directing the flight to go to the ILS outer marker were acknowledged and read back by a crew member, no doubt the pilot. No one, seriously, could urge that the crew did not receive or understand these three clearances. And, there could have been no doubt in this pilot’s mind as to what he should have done. Nevertheless, it is obvious that the flight did not maintain at least 500 on top. And, neither did it fly from the Half Moon Bay fan marker “direct to the San Francisco ILS outer marker”, nor “cross the outer marker initial (ly) at least 500 feet on top.” When you are given a clearance direct from Half Moon Bay fan marker to the ILS outer marker, you cannot go in any other direction than a straight line, one to the other. The pilot did not maintain five hundred feet above all clouds until he had crossed the ILS outer marker. The pilot did not fly that aircraft to the ILS outer marker at all. For a time, defendants urged that he might have flown from the Half Moon Bay fan marker, or intersection, to the ILS outer marker, made the required turn, and returned to the crash site. But, they have given that up, and now admit that the time interval was too short, and that he didn’t do that. All of the pilot witnesses on both sides said he could not have done that. Under the clearance given this pilot by San Francisco Approach Control he could not, without violating his clearance, have descended into the clouds before receiving the signals of the ILS outer marker. He could not have let down into the clouds until he established himself over the ILS outer marker, at the west end of the San Mateo bridge. II. The ILS Outer Marker Signals. The ILS outer marker, to which this flight was cleared, is the key to the Instrument Landing System at the San Francisco International Airport. So, it is necessary to examine the evidence in respect to that marker in detail and with some particularity. There are two transmitters at the ILS outer marker: (1) the 75 megacycle marker beacon transmitter, and (2) the compass locator transmitter. First, the 75 megacycle marker beacon transmitter is a 5 watt transmitter. It has low power to radiate the signal over a small area, with narrow and precise limits. The pattern of the signal is more in an upward direction than outward, and it gives the small elipse that is shown on the chart. (Appendix “A”, Exhibit 55). The objective in the design of this equipment is to provide a location in space over a point on the ground so that the pilot may, when he is over the place, know precisely when he is there. This is the function of the device. When the pilot flies over this geographical location, and passes through the cone of the signal pattern he receives the signals from the 75 megacycle marker beacon transmitter. The signals received from this facility are both aural and visual. In the earphones the pilot receives a continuous series of Morse Code dashes: da da da da da da da. And, at the same time he sees a blue or blue-purple light flashing the Morse Code signal on his marker beacon receiver on the dashboard in the cockpit. The marker beacon receiver in the aircraft receives both of these signals. Second, the compass locator transmitter is on 350 kilocycles. It radiates a signal in every direction. It is a non-directional signal, that can be picked up any place within range of the station, in 1953 as far as twenty five miles. This signal is picked up on the automatic direction finding equipment in the aircraft —the ADF. The compass locator transmitter activates the needle on the ADF in the cockpit, so that the needle points to the station. The pilot tunes the ADF to 350 kilocycles and identifies the station by its identifier — in this case it is “SF”. The compass locator transmitter sends out a signal which is Morse Code for “SF” — three dots, a pause, then two dots, a dash, and a dot. The station is “SFO”, that is, San Francisco. No matter where the pilot picks this up, when he tunes to 350 kilocycles the needle will point to the station. And, that is why, when the aircraft flies across and passes over the station the needle reverses, and points back toward the station. The reversal of the needle signal comes from this facility. If the aircraft passes to the side of the station, the ADF will eventually get a needle reversal, but it will be different. If the aircraft passes directly over the station, the needle will waver as the flight gets over it and then the needle will reverse immediately after the aircraft passes over the station, and will point back to it. If, however, the aircraft passes to the side of the station, the needle will continue to point to the station as the flight goes by. Therefore the pilot knows that he isn’t passing over. He doesn’t get the waver and turn; instead he gets a continuous pointing to the station and the bearing continually changing over a considerable period of time. That is why, in order to identify this particular place, it was required that the flight receive a signal from both of these facilities. And, in this case BCPA had two ADF’s on board the aircraft which could have been pointed to this station —could have been tuned to this station, and the pilot would, therefore, have gotten two needle reversals, and the aural or visual signal on the marker beacon receiver. Before the pilot could have let down, according to all of the witnesses on both sides who were airline captains, and defense counsel as well, who admitted it when he summed up to the jury, he was required to receive a signal from both of those facilities, both the marker beacon transmitter and the ILS compass locator transmitter. Without receiving an indication fi'om both, he could not have let down. And there is no testimony anywhere in the record that there is any place in this area, other than directly over that facility at the west end of the San Mateo bridge, that he could possibly have received both of those signals. III. How Far From the ILS Outer Marker Could Its Signals Be Received? The distance between the crash site and the ILS outer marker, at the west end of San Mateo bridge is about 10% miles. Defendants called Captain Warren L. Smith, Chief Flight Instructor, Pacific sector, for Pan-American World Airways. He said he had made “thousands” of instrument let-downs in the San Francisco area, (T. 1487), and testified as follows: (T. 1405) “The Court: Is there any testimony anyone ever got the ILS outer marker except where it is supposed to be ? My understanding is there is no evidence in this case and none offered. “Mr. Magner: In connection with that point, I might ask the witness over what size area you would receive the ILS outer marker, at, say, 3000 feet? “The Witness: It would depend on what position you had your mode selector in, whether it is high or low. “By Mr. Gerry: “Q. Take first for high and then low? “A. Low at 3000 feet you wouldn’t pick it up more than possibly a half mile off, and if you had it in high you could probably pick it up in a matter of a mile and a half, two miles. “Q. On either side? “A. Yes. The mode selection is the deciding factor.” Defendants argue that this testimony was in an offer of proof and cannot be considered by the court. To a large extent this case was tried twice, once before the court, out of the presence of the jury, and then, before the jury. The expert witnesses were examined on voir dire to determine the admissibility of their testimony. And, in connection therewith offers of proof were made. In accordance with his practice, the court ruled that the offers be made by calling the witness to the stand where he was sworn, examined and cross-examined, out of the presence of the jury. The foregoing testimony of Captain Smith came in on such an offer of proof by defendants’ counsel, Mr. Magner. The offer covered several subjects. And, at the end thereof plaintiffs’ counsel made his objection which follows: (T. 1407-8) “Mr. Gerry: I would, at this time, your Honor, object to the introduction of this evidence relative to the Salinas range leg and the Half Moon Bay fan marker on the grounds that it is incompetent, to prove any issues in this case, irrelevant, immaterial, no foundation laid, indefinite and uncertain as to time, place and circumstances.” (Emphasis supplied). “The Court: The objection is sustained.” The objection Mr. Gerry made, and which the court sustained, was not to the introduction of the witness’s testimony on page 1405 of the transcript, about the area in which the ILS outer marker signal could be received. That was not objected to, and was not excluded by the court. Mr. Gerry’s objection was limited to the introduction of evidence “relative to the Salinas range leg and the Half Moon Bay fan marker.” Obviously, there were other portions of Captain Smith’s testimony to which plaintiffs had no objection, because Smith flew over the area of the crash between 9 and 9:30 the morning of October 29, 1953 (T. 1487), and plaintiffs developed from him part of their own ease. After the proceedings in chambers, the jury was called in, and Captain Smith took the stand and was examined again. (T. 1483) Defense counsel examined him: (T. 1492-3) “Q. Will you tell us the effect of the high and the low position when used by a pilot on the marker beacon receiver and the lights being operated by the marker beacon receiver? “A. The function of the light is the same in either case, whether it is on low or high mode. The only difference is — if you are flying cross country and flying high altitude, a high mode is selected for that type of work. It enables you to pick up the marker in a larger area. “In the low mode, you generally use it — at least it is used by us — on final approaches where you want more accuracy.” The CAB investigated the accident and found the marker beacon receiver “hi-low switch” was in the “hi” position. (CAB Investigation Report). | Defense counsel were given an opportunity to question Smith before the jury on the subject of the offer of proof, but chose not to do so. The Court of Appeals for the Second Circuit has held, pursuant to Rule 43(c) of the Federal Rules of Civil Procedure, that the court may consider an offer of proof even though it is excluded. F. H. McGraw & Co. v. Milcor Steel Co. (2 Cir., 1945), 149 F.2d 301, 305. Captain Smith’s testimony, above, is before the court for his decision of a question of law: whether to direct the verdict for plaintiffs, or grant them a judgment non obstante veredicto. If the ease should not have been submitted to the jury in the first place, what difference does it make whether Smith’s testimony was taken out of the presence of the jury? He was sworn, examined and cross-examined before the court. The court asked for this information. Defense counsel examined the witness on it, and offered this matter in proof, by his own witness. The proof was offered by the defendants as the fact in the case through a highly competent and experienced witness, whom they may not, in any event, impeach. They have vouched for the truth of his statements and they are bound by them. We do not have an attack upon the verdict on the ground, merely, that the jury had made a mistake on the evidence. We have an attack upon the verdict on the ground that the trial judge made a mistake in leaving it to the jury at all. Neither is this a case where the proof was developed by plaintiffs’ counsel on cross-examination which was outside the scope of the direct. The defendants opened wide the area covered by the cross. Captain Smith’s testimony, above, is not the only evidence in this case that the pilot of the BCPA plane could not have received the ILS outer marker signals in the vicinity where he crashed. (1) Captain Brand testified that the BCPA plane “could not have been in the ILS approach or pattern, if it was up in the area of the Sierra Morena, at the crash site.” And, this stands uncontradicted. (2) Captain Lucas, cross-examination: “Question: He has to establish that he passed over it by the reversals, and they are not going to reverse until he passes over it? “Witness: As you pass directly overhead.” (3) Captain Smith, cross-examination: “Question: Now, the fact of the matter is that you have never in your vast experience in this area picked up that ILS outer marker at any place but where it is, have you ? “Witness: Not the marker itself, no.” (This is the Captain who had made “thousands” of instrument let-downs in the San Francisco area). (4) There is an illuminating colloquy between the court and defense counsel at (SLT 117-118 and 122-124): “The Court: But he couldn’t get the other unless he is over that ILS outer marker. “Mr. Magner: He couldn’t get — • you mean the blue light? “The Court: The blue light. “Mr. Magner: Not probably. “The Court: Well, ‘not’. “Mr. Magner: Well, there was other testimony as to that, that at a heterodyne frequency of the proper audio value it would light the blue light. And I was the first to say that it was not probable. But if we are going to talk about possibilities, it is possible, and the heterodyne is usually stronger than a modulation signal.” Again at page 119: “Mr. Magner: We are talking about this case, and I say it is a small possibility, but there was testimony in my recollection that a heterodyne of that frequency will light the light.” Again, at page 121: “Mr. Magner: I have said that it can be received in an area rather than at a point. “Mr. Belli: Is it your contention now that you could pick it up at King’s Mountain? “Mr. Magner: He wouldn’t even want to pick it up at King’s Mountain. “Mr. Gerry: Do you agree with Captain Smith that it would be a mile, a mile and a half or two miles with the marker set at high mode? “Mr. Magner: I would say in that radius. “Mr. Gerry: So we agree. “Mr. Magner: That would be in conformity with the testimony I heard. “Mr. Gerry: All right, that is a place to start from right there.” With respect to what Mr. Magner, in the foregoing, says: “There was other testimony that at a heterodyne frequency of the proper audio value it would light the blue light,” the record is found at (T 1597-1608). Counsel said he was not going to pursue it; he was not going to contend a heterodyne beat can light up that blue light; he was not going to argue that; he was not contending anything for the heterodyne beat business. And, the court excluded the evidence. “The Court: What do you claim for it? “Mr. Magner: We ivill never argue a heterodyne beat will give a repeated signal, because it does not, such as a marker beacon flasher or marker beacon aural tone, because it doesn’t, because it is a steady tone. We have no intention of arguing a ridiculous proposition when the fact is it is a steady tone, and I think we have had testimony to that. “The Court: What is the color? Do you light up a light with a heterodyne beat? “Mr. Magner: Mr. Crosby could tell better, but I think I am right in saying it would light up a light if that happens to be the one frequency that will light the light. In other words, if a 400-cycle note came through — I am being very frank about this — if a 400-cycle note came through it would light a light. “The Court: A blue one? “Mr. Magner: If it were a blue one. “The Court: Do we have any evidence of that? “Mr. Gerry: No, we have no evidence from anybody it ever happened here. “Mr. Magner: Your Honor asked me if it would light a blue light, and I say that is the only condition that I know of that it would light a blue light. “The Court: That is wholly theoretical, isn’t it, Mr. Magner? “Mr. Magner: It is a tenuous thing. In other words, he is saying — I would not xoant to argue that the one heterodyne which would produce a blue light produced it at that moment. I think that I would feel that this was a tenuous argument. But I am frank in saying that a hetero-dyne can under one condition light a blue light, and I think that is what you are asking. “Mr. Crosby, you have heard this discussion. Is it possible for that heterodyne beat to light up a blue light? “The Witness: May I comment first? “The Court: Surely. “The Witness: The attorney used a good word. He said ‘tenuous.’ And the answer is it could light a blue light, but this is a tenuous argument. “The Court: Have you ever seen it do it? “The Witness: No, sir, I have not. “The Court: It is wholly theoretical? “The Witness: Yes, it is, sir. “The Court: Thank you. “Mr. Magner: I had not proposed to get into that, your Honor. “The Court: Well, we are in it. “Mr. Magner: I do not believe I got into it. My purpose here was to explain the operation. “The Court: You go into it when you got into the heterodyne beat. I will hear from you, Mr. Magner. I am tentatively thinking about sustaining the objection and granting the motion to strike. If you have anything further to say against that position, you may do so. “Mr. Magner: Merely that a suggested argument that I had not advanced that a heterodyne beat would light a blue light was not part of the reason he was called. “The Court: If there is any facility anywhere else in this vicinity, or any combination of facilities, that would produce that kind of signal out there at the Half Moon Bay area in this vicinity which might have misled him, and which might have confused him and brought him down into that cloud layer at the wrong place, that I think is very material and relevant and ought to come in here, and I have been listening for it. “Now, if your purpose here is to suggest from this testimony of Mr. Crosby that that signal could have been received out there over the Half Moom Bay area, then we are going to have to look into it. “Mr. Magner: This testimony is designed to show this is an area, and an area that varies with altitude. “The Court: This testimony is theoretical. “Mr. Magner: There is nothing theoretical about the area of radiation of these transmitters. “The Court: I am talking about lighting up that blue light with a heterodyne beat. That is the only thing I am addressing myself to. “Mr. Magner: I did not mention 400 cycles in my testimony. Somebody else brought that out. “The Court: You are going to pursue it, aren’t you? Isn’t that your idea? “Mr. Magner: No, sir. “The Court: You are going to contend a heterodyne beat can light up that blue light, aren’t you? “Mr. Magner: No. “The Court: You are not going to argue that? “Mr. Magner: No, sir. “The Court: Then we won’t talk about that any more. “Mr. Gerry: Is it going to be a contention that the heterodyne beat could be mistaken for a continuous series of dashes? “Mr. Magner-: I just said, I think a few minutes ago, that a heterodyne beat is steady, and it is not given in a series of blips or bursts. Now, that is my knowledge. You may want to ask Mr. Crosby about that. “Mr. Gerry: No. “Mr. Magner: I think it is pretty generally known the heterodyne beat is a steady signal. “The Court: I think you are entitled to show, Mr. Magner, how these cones from the radio facility come up, and that is what Mr. Crosby was doing the other day. I think that is certainly admissible. “Now, .you have solved the hetero-dyne beat business. He isn’t going to contend anything for it. “Mr. Gerry: Then why put it in, except for confusion? “Mr. Magner: I mentioned 200. I did not say anything about 400. “The Court: I am correct in what I said. You are not contending anything for the heterodyne beat business? “Mr. Magner: That’s right. “The Court: All right, then that goes out. You make no contention for it, and that evidence goes out.” So, defense counsel gave up this reason for believing the blue-purple light of the ILS outer marker could be received anywhere near the vicinity of the crash site. There was one other small suggestion which turned out to be no more than a pretense of proof. This is discussed at length in Appendix B, pp. 32-38. In short, the court had asked defense counsel Parker upon what facts he relied for moving a proposed overlay down on the chart, to which he replied: “Mr. Parker: We have evidence in this record that if there was mis-keying that you would get the outer marker signal at the Half Moon Bay marker. That is one test.” (T. 1285) To which Mr. Gerry replied that he would like to read what Mr. Parker was talking about, because it is a very good •example, as indeed it is, of the “Comment” under Rule 303, American Law Institute Model Code of Evidence. Gerry says: “This is the evidence, your Honor, my questions on cross-examination of Captain Lucas: (T. 1063) “ ‘Q. Just so we are clear, this fan marker never lights a blue light, does it ? “ ‘A. Not to my knowledge, it shouldn’t. “ ‘Q. This fan marker never gives a consistent series — a continuous series of dashes, does it? “ ‘A. A continuous series of dashes? “ ‘Q. It gives da da da da da da ? “ ‘A. If there was any mis-keying, there would be a continuous series, if. “ ‘Q. You never heard it. “ ‘A. I never heard the Half Moon Bay marker give a continuous series of dashes.’ “THE COURT: Is that all that was said about mis-keying? “MR. GERRY: That’s correct. “MR. PARKER: That’s all. “THE COURT: You say there is evidence of mis-keying? “MR. PARKER: No, I didn’t say there was evidence of mis-keying, if the court please. I said there was evidence that if there was mis-keying that Half Moon Bay fan marker would give a continuous series of dashes. “MR. GERRY: But there is no such evidence.” The only evidence about this in the record is summarized in this opinion, VII, sub-paragraphs (1), (12), (14), and (15). There had not been any failure of the Half Moon Bay fan marker equipment in the keying or in the signal for at least a whole week. The testimony in the record is, if it misfunctions at all, it switches over to the standby equipment automatically, and, it had not switched over. It was flight checked and ground checked right after the accident and found functioning normally. A United Airlines flight came in from Honolulu over the Half Moon Bay fan marker 10 minutes before this aircraft. Everything was normal. There was a plane that flew out to Honolulu over the Half Moon Bay fan marker 15 minutes after the crash. Everything was normal. All of the records show everything was normal. There was no evidence of mis-keying, whatsoever. On the contrary, Lucas, when asked “This fan marker never lights a blue light, does it?”, replied: “Not to my knowledge. It shouldn’t.” And, when Lucas was asked, “you never heard it”, he replied: “I never heard the Half Moon Bay fan marker give a continuous series of dashes.” And, Mr. Gerry says: “That is the evidence on mis-keying, your Honor.” Even Parker (T. 1328) backs away from it: “The Court: You say there is evidence of mis-keying? “Mr. Parker: No, I didn’t say there was evidence of miskeying, if the court please.” So, there is absolutely no evidence whatsoever that the Half Moon Bay fan marker ever gave a continuous series of dashes. (5) There is further discussion about the pattern and objective of the marker beacon transmitter under “II”, above, page 295. This reflects testimony from both Captain Brand and Mr. Crosby. Brand said the ILS outer marker is “a smaller radiation of signal than the Half Moon Bay fan marker would be, because it has narrower limits. It is more precise. And, it has to cover a smaller area”. (T 440) The area of receptivity of the Half Moon Bay fan marker, on the minor axis, which is the course an aircraft flies coming in from the ocean, is 3 to 4 miles, (Brand and Campbell). The objective in the design of the equipment is to provide a location in space over a point on the ground so that the pilot may, when he is over the place, know precisely when he is there. “It will light a light where you want it, which is the point you are trying to mark.” (T. 911, witness Crosby). (6) Defense witness Robert C. Crosby, further testified, that the 75 megacycle marker beacon transmitter makes a pattern which is generally upward as shown on the chart, but it has “minor” amounts of signal going outward. (T 915-919). There are certain radio waves, that the antenna does not quite successfully put into the upward pattern, but they go out a little to the sides. There are certain filters in the marker beacon receiver equipment in the aircraft. The purpose of these filters is to filter out all the signals except the one you want to get. This is what they are there for. Their purpose is so that if you pass over the outer marker you get the signal radiated up from the outer marker which is permitted through, and the others are filtered out. They also apply a different modulation frequency to the signal. And that is why the outer marker lights only the blue light, the middle marker the amber, and the fan markers light the white one, because of the modulation frequency. Also there are two sensitivity input adjustments. The purpose of the input sensitivity adjustments is that you will only pick up the signal when it is of a certain intensity. And the purpose of the input sensitivity adjustments also is to cut down on the possibility of picking up these other waves that are not bent up into the pattern. These signals that are bent in an upward direction and sent up in a pattern — are sent up at a greater intensity than the few rays that sneak out around the sides. (7) The clearances to the BCPA pilot import a narrow and precise geographical location: At 0827, “ATC clears VHBPE to the San Francisco outer marker via the Half Moon Bay fan marker direct to the San Francisco ILS outer marker.” At 0839, * * * “cross the outer marker initial (ly) at least five hundred on top.” The controller in the approach control position at the San Francisco International Airport, and who was in communication with the BCPA plane the morning of the crash (Mr. Stone) explained the clearance, and emphasized the import: “ 'Cross the outer marker initial (ly) at least five hundred on top’ means for the aircraft pilot to proceed over the outer marker compass locator, which is a marker of the ILS system. “At ‘initial altitude’ means to pass over there initially at this point over the outer marker at least 500 feet on top of the cloud condition.” “Q. Now, with an ILS approach clearance, does this clearance to the BCPA flight permit the flight to descend into the clouds before it reaches the ILS outer marker ? “A. No. Not before it reaches the outer marker, initially, no.” “Q. He would have to pass over the outer marker, correct? “A. Yes. “Q. Now, after making that pass over the outer marker, then would be the time that he would be northeast of the outer marker ? “After the initial pass over the outer marker, where would he be? “A. Northeast.” (8) The Instrument Approach Chart— LOM “Appendix ‘A’ ”, drawn to scale, shows the little elipse marked “OM continuous dashes.” The radius shown on its major axis is between a mile and a half and two miles, which is Smith’s testimony. (9) If defense counsel in this case have any knowledge that the ILS outer marker signals are not confined in an area pretty close to its geographical location at the west end of San Mateo bridge, they haven’t communicated that information either to us or to the industry. Captains Smith and Lucas, Brand and Campbell, apparently haven’t heard about it. Neither have the San Francisco International Airport communications people, nor Mr. Lucas, the electronics expert from Massachusetts. Counsel, three of whom are pilots, who put the questions to the witnesses seem often to have forgotten about it. Time and time again in this record, is clear language of reference to the narrow and precise geographical location of the ILS outer marker signals. Captain Smith, cross-examination by Mr. Gerry, (T. 1503-5): “Q. Captain, under the clearance which I read you that this pilot had on October 29, 1953, could he, without violating the clearance given him by the tower, descend into the clouds before passing over the ILS outer marker? “A. No.” RECROSS EXAMINATION BY MR. GERRY: “Q. Just so we are clear on that, Captain, the signals that he would get on going over the outer marker would be the aural signal da da da da da — a continuous series of dashes ? “A. Yes. “Q. At the same time, he would get the blue light flashing, da da da da da da? “A. That’s right. “Q. At the same time, if he would have his two ADFs tuned to the station — according to Captain Lucas, that is their custom and practice ? “A. That’s right. “Q. And as he passed over the station, the needle would waver somewhat and then reverse and point behind him? “A. If he passed over the station, that is correct. “Q. It would point directly ahead or to what would be zero on the dial as he was headed toward the station? “A. That’s right. “Q. And as he got over the station, it would waver back and forth a little bit? “A. That’s right. “Q. And then would gradually, within a couple of seconds, turn around and point behind him or at 180? “A. That’s right.” Witness John Campbell, chief of the Flight Inspection Branch of the CAA, now FAA, on October 29, 1953, date of the accident checked all of the components of the ILS system. He testified: “Q. Where are the compass locators? “A. The compass locators are placed, normally, at 3500 feet and five and a half miles from the end of the runway to define a certain point in the approach area. “Q. If you pass over that facility, what happens to the pointer? “A. The pointer reverses itself 180 degrees and points backward. “Q. The indication in passing over these facilities, you have an audio and also a light that lights on the dash of the instrument panel of the aircraft. “Q. Is there any difference in color between the lights that you pick up passing over these? “A. Yes. The outer marker is purple. “Q. In 1953, what audio signal did you get when you passed over the San Francisco ILS outer marker? “A. The outer marker is a series of dashes. “Q. If you were coming from the coast, and you maintain your heading in .until passing over to the outer marker, what indications would you have on your two ADF dials as you passed the outer marker? “A. In passing over the outer marker the pointer would reverse. “Q. Then if you made a turn after passing over the compass locator, in which direction would your pointers point ? “A. They would point to the rear. “Q. Both? “A. Both.” Defendants Offer of Proof On False Compass Reversals On The ADF The defendants made an offer of proof, through Captain Warren L. Smith, touching the subject of false compass reversals on the ADF. This appears in the transcript in four places: (1) pages 681-698, (2) pages 1254-1275, (3) pages 1376-1415, and, (4) pages 1483-1507. Captain Smith testified that the ADF can give a false overhead. (T. 686). It indicates in the same manner it actually would going over the station. He testifled that it had happened to him. in the San Francisco Bay area, on the northwest course of the San Francisco range, and on the northeast course of the Oakland range. That it had happened 4, 5, 6 times, but as to the number he was guessing. ON CROSS-EXAMINATION: (1) The witness said he had never had that experience on the southwest leg of the San Francisco low frequency range. And, he could not tell of his own knowledge whether that phenomenon has occurred on that leg. He had never had the experience of the ADF reversal on that leg. The southwest leg of the San Francisco low frequency radio range station, is the course the BCPA pilot should have been on, the morning of the accident, as he came in from the ocean to Half Moon Bay. (2) The witness said, also, there was a “Z” marker at the San Francisco radio range, at the time of the accident. And, if the range has a “Z” marker, it doesn’t tend to confuse you a bit. There are methods of proof, should you receive a false overhead and the sole purpose of giving those to a pilot in training is to induce him to make a secondary check before he accepted it. We train our pilots to take care of the situation. So, if a pilot got one of those, when flying the southwest leg of the San Francisco radio range, knowing there was a “Z” marker there, he would not be confused. He wouldn’t get his light, unless he was over the station, and he wouldn’t get the “Z” marker tone. So, he wouldn’t be confused. Not if he were flying the leg over the station. And, not if he knew everything pertinent there was to know about this area. (Which BCPA admitted their Captain did). (3) Captain Smith testified: When you pass over a marker, or come to a marker, before you go into a different pattern, you would have to be certain that you identified it both by the aural and visual signals. (4) Cross-examination: “Q. You don’t receive those on your ADF going into the outer marker, do you? “A. That I never in my own experience had happen in that immediate vicinity. (T. 691) “Q. And that was talking about ADF reversals going into the outer marker. So that we are not confused here, you have not had that experience when tuned to the outer marker, have you? “A. It was my contention that you had reference based on this approach that you are talking about. In that area, no, I have not. “Q. Fine, just so we know where we are.” (5) The witness received the false reversal of the ADF needle on the northwest course, and on the northeast course over the Oakland hills — in all, 4, 5, 6 times. “Q. How many times do you think you have flown those two courses? “A. Thousands.” (6) One of the things that will give a false reversal is improper tuning of your instrument. When he checked, sometimes it was properly tuned, and sometimes it was not. About half of these, 4, 5, 6 times were caused by improper tuning. (7) When asked if they happened in the area we are talking about, the witness said: “A. I have not experienced any of that from the Half Moon Bay fan marker direct to the outer marker. It is not in our operating specifications, and I have not made that approach.” (T. 1264) (8) When asked, “did you ever have a situation where you had two ADFs on the same station and got a reversal on both of them at the same time ?” the witness replied: “A. Both ADFs on a station, no. I don’t ever recall that.” (T. 1265) (9) On cross-examination: “Q. Did you ever come into this area and pick up the northwest leg of the Salinas range four miles from its location, geographical location, on the chart, at the same time pick up the Half Moon Bay fan marker eight to ten miles from its geographical location on the chart, and at the same time get an ADF reversal, all three at the same time? “A. No. “Q. It is practically impossible, isn’t it, in your experience ? “A. In my experience, yes.” (T. 1275) (10) On cross-examination: “Q. You did not at that time get any signal on your marker beacon receiver set that would lead you to believe that you were over the middle marker, did you ? “A. No. “Q. And you always do as Captain Lucas tells us that the captains of BCPA did, you always double cheek, don’t you ? “A. Correct. ‘Q. So that if you did get a momentary false reversal of your ADF, this did not lead you to think you were over the middle marker at all, did it? “A. Not without the double check on the facility, the fan marker. “Q. And did you have one ADF tuned to the station or two ? “A. In this particular instance, one ADF on the outer marker. This was a VFR flight coming over the hills. (T 1379) “Q. You got a momentary reversal and back ? “A. Just about 10 seconds and back. “Q. And no blue lights? “A. No. “Q. And no continuous series of dashes ? “A. No. “Q. You never had an experience in that area where you had both ADFs tuned, and they both reversed on you, did you ? “A. You are speaking of that immediate area where I experienced these separately? “Q. Yes. “A. No. (11) The court asked the witness: “THE COURT: What we are talking about are false reversals of the radio compass; is that right? “THE WITNESS: That is correct. “THE COURT: How does that mislead you? (T 1380) “THE WITNESS: If you had one radio facility, which is a compass locator itself, and the letdown was predicated on that installation only, there is a possibility of being misled by a false reversal. If you have more than one aid, of course, as Captain Lucas said, you have to check both of them. There are still areas that we fly that we have one ADF to make our instrument approach with. “BY MR. GERRY: “Q. But that isn’t this area, is it? “A. No; I said we have other areas. “Q. So that in this area that we are talking about, you are not going to be misled by that, are you ? “A. Not if you have two facilities and things are working. “Q. Not if you have two ADFs pointing to the station, and your marker beacon receivers, and lights, it is not going to mislead a pilot who knows everything about the area, as BCPA admits their pilots knew; it is not going to mislead a pilot who made 118 approaches in there, is it? “A. As I said before, if all the components, airborne and on the ground, are working, no. (T 1381) “Q. Do you know whether at the time you got that false reversal, or those false reversals, the components on the ground were working? “A. Yes, they were working. “Q. Do you know whether or not there might have been a momentary something that happened to them? “A. No, I wouldn’t have that knowledge, no. “Q. So it is impossible then for us to state whether the conditions were the same at that time as they were at the time of the accident, isn’t it, without going through all these records? “A. You mean— “Q. Whether the ground components were the same. “A. Well, we assume they are the same at all times, yes. “Q. But it is an assumption we have to make? “A. That’s right.” (T 1382) “MR. GERRY: I object, your Honor, on the grounds that this evidence is incompetent, irrelevant, immaterial, too remote, no foundation laid as to circumstances, times and places. “THE COURT: The objection is sustained.” (T 1383) The objection was sustained to this and other offers of proof by the defendants upon the authority of Judge Learned Hand’s opinion in United States v. Krulewitch, (2 Cir., 1944) 145 F.2d 76, 80, 156 A.L.R. 337: “* * * yet, here as always, the competence of evidence in the end depends upon whether it is likely, all things considered, to advance the search for the truth; and that does not inevitably follow from the fact that it is rationally relevant. As has been said over and over again, the question is always whether what it will contribute rationally to a solution is more than matched by its possibilities of confusion and surprise, by the length of time and the expense it will involve, and by the chance that it will divert the jury from the facts which should control their verdict.” Wigmore Sec. 39(2). The probative value of this evidence is outweighed by the risk that its admission will (a) necessitate undue consumption of time, and, (b) create substantial danger of undue prejudice and of confusing the issues and of misleading the jury. Rule 303, American Law Institute Model Code of Evidence, pages 180-182. IV. Approach From Ocean to Half Moon Bay. Starting at the point where the flight was released from its corridor assignment, 70 or 75 miles out, the pilot would tune to the low frequency radio range station, located at what is marked on the chart as San Francisco Radio range. By tuning his ADF to 227 kilocycles — that is the frequency of the San Francisco low frequency radio range — he would be able to identify the range station. And, he would be able to determine whether he was in the “A” or the “N” quadrant. When he is on the on-course of the southwestern leg of the San Francisco low frequency radio range, he would hear a continuous on-course signal for a period of 30 seconds, and then followed by the identification signal of the range station repeated. Proceeding from the release point and using the low frequency range leg as a guide, he would know when he was on a heading of 020. Should he get one side or the other of the range leg and not be on the on-course, he will receive a signal. In this particular case, if he were to the northerly side of the southwestern leg of the San Francisco low frequency range, he would receive an “A” signal; it would be an “A” in Morse Code, i. e., “dit da”. And, on the southerly side he would receive an “N” signal, in Morse Code, which would be “da dit”. If a pilot, coming in from the ocean, were flying on top of the clouds and could not see the ground, Captain Lucas tells us how he would find the Half Moon Bay intersection (T. 988-990): “Witness: He would have one of his automatic direction finding receivers tuned into the San Francisco low-frequency range. He would be listening to the audio signal from the range. It will show he is maintaining himself on course on the southwestern leg. And also, at the same time, he would be continuously monitoring — his co-pilot might help him in this duty of continuously monitoring — the Salinas radio range so that when he also received the steady signal, the on-course of the northwestern leg of the Salinas range, he would then fix himself by his radio over the Half Moon Bay intersection. “Question: You mentioned his copilot might help him. It is mandatory that he receive the signals if he is captain; is that correct? “Witness: Yes, he would be listening to the signals himself. It would be his responsibility to fix himself at that position. “Question: Normally, over how long a geographical area would he receive the on-course of the Salinas range? How far either toward the San Francisco radio station or away from the San Francisco radio station, from the little pyramid indicating the Half Moon Bay intersection? “Witness: It could vary a couple of miles either side of the Half Moon Bay intersection; just depending on the reception on that day.” V. The Half Moon Bay Fan Marker Signals. Captain Brand’s testimony was: (T. 803-812) “At the time you came over the Half Moon Bay intersection or fan marker, you would report that you were over the Half Moon Bay. In this particular case, the gentleman making the position report said ‘Half Moon Bay’. So, he reported over that position on a heading towards the station, and reported to the San Francisco tower itself at that time, that he was at that intersection.” (about a mile further out, offshore, than the Half Moon Bay fan marker). “Question: How does he tell when he is over Half Moon Bay fan marker? “Witness: As he gets over the Half Moon Bay fan marker the marker beacon receiver, which is on whenever the radio switch is on, will light up the white light and he will see the light on the instrument panel which is directly in front of him, and he will also hear the tone, the identifying keying system, in his earphones, and they will be synchronized or they will be seen and heard together. “Question: What is the tone and signal in this area? “Witness: The identifying tone or signal, which ever you want to call it, or the combination of the two, was three dashes, and a short pause, and then three clashes again. So you would hear this and see it as you came over the Half Moon Bay fan marker. “As you would be coming in in a northeasterly direction, a northeasterly heading, as you came in the signal area, which would be the limits that the antenna emitted the signal in, you would begin to hear it faintly, then louder, and then still' louder, and, at the same time, your marker light would first flash softly,, and then — not softly — in low intensity, and then the closer you came to the center of it, until over the very center of it, it would get stronger and stronger; and then, after you, passed over the center, it would begin to decrease in intensity, both in light and sound, until you went past it, and it would gradually fade out to nothing again. “Question: How would he tell when he was at the Half Moon Bay intersection ? “Witness: At the Half Moon Bay intersection there was a radio range coming from Salinas, approximately 120 miles southeasterly, which would give him a cross bearing or a reference point which, when he was tuned to that station, he could get an on-course or a continuous tone from that radio frequency range at Salinas that would tell him that he was passing over the intersection at Half Moon Bay. “Now, I would also like to mention that there is another radio receiver he could be using which was his BC348, there is a low-frequency band in that, so between the combination of the two ADFs and the low-frequency band of the BC348 he would have sufficient radio to give him adequate receiving facilities to cross check and use each one individually and still be able to positively identify his position. “Question: Could he, under the company regulation that we talked about, as I read to you, the regulation about leaving that area (Exh. 66), start his next leg of the journey into the ILS outer marker without a positive identification of those radio signals? “Witness: No, he couldn’t. “Question: After he leaves that Half Moon Bay area on this approved approach, what then is his flight path from there and what is his next fix? “Witness: His flight path would be directly from the Half Moon Bay fan marker or intersection directly on a heading of 034 degrees, with a small — it could be a small correction for wind allowance, to the ILS outer marker compass locator. “Question: How does he find his way there with that blanket of clouds over that area that you just showed us? How does he find his way to that other fix, the ILS outer marker? “Witness: Well, at the Half Moon Bay intersection or fan marker he would re-tune both of his ADFs, or only one, if need be — I might say would re-tune both of them — to the frequency of the ILS compass locator outer marker, positively identify it, in the tuning device which they have. “Question: How would you identify it? “Witness: They have a coding signal which, when you tune to the correct frequency, in this case it was 350 kilocycles, they have a Morse code signal, and in this particular case it is S.F. That would be three dots, a pause, then two dots, a dash and a dot, which would be the identifying signal which you would positively have to tune for to make sure you were on the correct frequency. Then after you identified it, you would put it on the automatic direction finding position, and then the needle would point directly to the ILS outer marker compass locator at this point (indicating). “Question: Then would you also use your watch in making this approach? “Witness: Well, when you reported over the Half Moon Bay fan marker, or intersection, to the tower, you would — normally give — a time. In this case, it was 39. “Question: What does “PTA” mean? Is that a sort of check list you have? “Witness: PTA? “Question: Position, time and altitude. “Witness: Yes, yes. The normal terminology at intersection is to give a sequence of events or a form which the receiving station will be able to follow, and it is usually referred to as PTA, position, time ••and altitude. So you would say: Half Moon Bay, 39, in this particular case, at least 500 feet on top. “Question: What altitude would you maintain between Half Moon Bay and ILS outer marker under the clearance given this day? “Witness: The minimum en route altitude between those two points is 3,500 feet, so you would have "to maintain at least 3,500 feet or, if the clouds were higher, you would have to maintain 500 feet, at least 500 feet, on top of these clouds. “Question: Now, when you got to the ILS outer marker, assuming that .you did go, how would you identify it? '“Witness: As you approached the ILS outer marker, you would have .your needles pointing to the station. As you progressed and went over :it, they would point from a direction ahead to a direction behind you. At the same time you would hear the :signal of continuous da