Full opinion text
TAVARES, District Judge. 1. For convenience of cross-reference in this necessarily lengthy decision each paragraph is given a consecutive number. It should be specially noted that where quotations are hereinafter made from statutes, regulations, or other exhibits, unless otherwise indicated, the italicized portions of the quotations signify emphasis added by the Court. This will avoid repetitious notations to that effect under each quotation. 2. This is a civil action for damages resulting from the death of Robert Takeo Furumizo (hereinafter called “decedent”) as a consequence of an airplane crash at Honolulu International Airport on June 19, 1961. The action is maintained by Betty K. Furumizo, widow of decedent, in three counts: (1) As Ad-ministratrix of the Estate of Robert Takeo Furumizo, the decedent, having been so appointed on October 5, 1962, by order of the Circuit Court of the First Circuit, State of Hawaii, in Probate No. 23390; (2) in behalf of herself individually; and (3) by the said Betty K. Furu-mizo, as parent and guardian ad litem and in behalf of Cynthia H. Furumizo (hereinafter called “Cynthia”), a minor born January 4, 1961, the daughter of the decedent, said Cynthia having no other legal guardian of her estate or person. 3. The action is brought against the defendant United States of America (sometimes hereinafter called the “defendant USA” or “the government”) under the Federal Tort Claims Act (28 U.S.C., Chapter 171, § 2671 et seq.) and against the defendant Baker Aircraft Sales, Inc., now known as Alaska Transportation Company (hereinafter called Baker), based upon diversity of citizenship and the amount in controversy. (28 U.S.C. § 1332) The action was tried by the Court without a jury. 4. This type of joinder is permitted by Rules 17 to 20 inclusive of the Federal Rules of Civil Procedure. Jurisdiction is conferred on this Court by 28 U.S.Code, § 1346, insofar as the defendant USA is concerned, and the cause is triable without a jury under Section 2402 of Title 28. 5. From facts stipulated and other evidence, it is found by the Court that, as between the plaintiffs and defendant Baker, there is diversity of citizenship in that the plaintiffs are all citizens of the State of Hawaii and the defendant Baker is a California corporation with its principal place of business in the State of California. At the time of the accident Baker was authorized to do business in the State of Hawaii and was doing business therein as Hawaiian Aircraft Sales. The Court also finds that the amount in controversy does exceed $10,-000.00. 6. Liability is denied by the defendants Baker and USA. Baker has raised as special defenses those of contributory negligence and assumption of risk by the decedent. Defendant Baker has also under Rule 14 brought in defendant USA as a third-party defendant, contending that if there was any negligence which caused the accident, it was the negligence of the third party defendant USA and that, even if Baker is found to be negligent, the alleged negligence of the defendant USA contributed to the accident and therefore any judgment in favor of the plaintiffs should be either paid by the USA or contributed to in such proportion as the Court finds is justified. 7. The defendant USA denies any negligence on the part of its agents or employees and denies any liability to plaintiffs. It also raises three affirmative defenses, namely: (1) that the amended Complaint fails to state a claim upon which relief can be granted against the said defendant, (2) that the Court does not have jurisdiction over said defendant because the Amended Complaint does not set forth a claim for which defendant would be liable to decedent had he survived, in accordance with the law of the place where the alleged negligence of the defendant occurred, and (3) that the Court does not have jurisdiction over the defendant USA because the alleged claims come within the exception contained in 28 U.S.Code, § 2680(a). 8. The defendant Baker also sets up several affirmative defenses in its answer to the Amended Complaint, including the two, hereinabove mentioned, of contributory negligence and assumption of risk, a third being that the Amended Complaint fails to state a claim upon which relief can be granted against the defendant. 9. All of the three affirmative defenses raised by the defendant USA (para. 7 supra), and the third affirmative defense raised by defendant Baker, (para. 8 supra) were disposed of adversely to the defendants raising the same and in favor pf the plaintiffs by the Court’s decision on motion for judgment on the pleadings filed herein on June 24, 1963, and by judgment thereon entered on July 3, 1963. 10. The overall theory of the plaintiffs is substantially as expressed in paragraph 1 of the theories of the parties set forth in the Pretrial Order as follows: “Plaintiffs contend that as citizens of the United States they have a claim against the Defendant USA under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. for the negligence of the agents or employees of the Defendant USA while acting within the scope of their employment, having full knowledge of the hazards involved, in negligently failing to provide proper and adequate safeguards for the protection of the decedent from the hazards of ‘turbulent wake’ at the time of the accident and for negligently clearing the small aircraft in which the Decedent was a student pilot receiving dual instruction, for takeoff directly into the ‘jet wash’ of a DC-8 which had just previously taken off at Honolulu International Airport on June 19, 1961, thereby causing the aircraft to crash, resulting in the death of the Decedent and damages to the Plaintiffs as hereinafter more fully set forth.” 11. The plaintiffs’ claim against Baker is substantially set forth in the same Pretrial Order as follows: “Plaintiffs further contend that under 28 U.S.C. § 1332 as citizens of the State of Hawaii they have a claim in an amount exceeding, exclusive of interest and costs, the sum of $10,000, against the Defendant BAKER as a California corporation with its principal place of business in California, for the negligence of its employee CHARLES ISAMU SHIMA (hereinafter referred to as ‘SHIMA’) while acting within the scope of his employment, as pilot in command of the aircraft in which he was giving dual instruction for hire to the Decedent as a student pilot, in taking off or allowing the Decedent to take off directly into the jet wash of the DC-8 aforesaid in spite of his knowledge as well as a specific warning given to him of the hazard Involved, and in failing thereafter to maintain safe control of the aircraft under the circumstances, thereby causing the aircraft to crash, resulting in the death of the decedent and damages to the plaintiffs * 12. On June 19,1961, at Honolulu International Airport in the District of Hawaii the decedent was a student pilot receiving instruction for hire from Charles Isamu Shima, hereinafter called Shima, an employee of the defendant Baker acting within the scope of his employment in a Piper PA-18 Super Cub 95, Reg.No.N-3299Z, which was then owned and being maintained by defendant Baker, its agents, servants or employees. George R. Carter was an employee and the managing agent in Honolulu of defendant Baker at that time. For brevity, this Piper PA-18 Super Cub 95 will be hereinafter sometimes called simply the Piper. 13. At the same time and place, and before, during and immediately after the accident, the defendant USA in connection with its prescribed air traffic activities was operating an air traffic control facility at Honolulu International Airport through air traffic controllers who were regularly in the service and employ of the Federal Aviation Agency (hereinafter called FAA) of the defendant USA. William R. Humphreys was the local controller-trainee operating the “local control” position under the direct supervision of Porfirio Garcia, the chief controller, who’ had overall charge of all the controllers, Donald H. Capellas, who was handling the “ground control” position, and another FAA employee, Mr. Severn Krogh. 14. At approximately 18:56 Honolulu Standard Time (6:56 P.M. local time) on said date, the Piper was involved in an accident at Honolulu International Airport, as a result of which a conflagration occurred causing the death of the decedent Furumizo, and of Shima, the employee of the defendant Baker. 15. The Piper was a two-place tandem (fore and aft seating) aircraft with a full set of controls at each of the two positions and at the time of the accident the decedent was in the forward cockpit and Shima was in the rear cockpit. 16. The purpose of the flight which resulted in the accident was “dual instruction” in takeoffs and landings for the student pilot decedent, with Shima as the flight instructor, and immediately prior to the accident the Piper had made a series of takeoffs and landings while remaining in the airport traffic pattern. 17. At the time of the accident the decedent had received a total of ten hours and forty-five minutes of dual instruction over a period of the immediate past two months, but had not yet soloed. Decedent held an FAA Student Pilot’s License and a current Second Class Medical Certificate. 18. At the time of the accident the weather report taken at 18:55 Honolulu Standard Time, or 6:55 P.M., was: estimated scattered clouds at 3,000 feet, visibility over 15 miles, temperature 78 degrees, dew point 66 degrees, wind 6 knots from the East Northeast. Sunset on that date was at 19:16 Honolulu Standard Time (7:16 P.M.) or within two minutes of that time. 19. The Piper in which Furumizo was riding as student pilot, and Shima was riding as instructor, had previously been given clearance or authorization by the control tower to make practice landings and takeoffs, which ordinarily are done in a continuous series of motions, that is, the plane lands, rolls on the runway, and takes off again without coming to a stop. Just before the final landing of the Piper and thereafter the following radio or tower transmissions were made by the Tower Controller to the Piper (as per Exhibit P-5, which numbers consecutively each of a series of transmissions preceding, leading-up-to, and following the accident. The numbers preceding each of the following quotations for Exhibit P-5 are penciled numbers written in by plaintiffs’ counsel with the Court’s approval, to identify each transmission): “4. PIPER NINE ZULU [referring to the Piper here involved] CONTINUE DOWNWIND.” * * * * * * ■ “8. PIPER NINE ZULU NUMBER TWO FOR FOUR LEFT FOLLOW THE DC THREE TURNING A SHORT FINAL FOR FOUR LEFT.” '}$■ ^ “11. PIPER NINE NINE ZULU CONTINUE APPROACH NOW FOR FOUR LEFT.” “14. PIPER NINE NINE ZULU CONTINUE APPROACH NOW FOR FOUR LEFT DC THREE RIGHT BASE THE OTHER RUNWAY.” ****** “19. PIPER NINE NINE ZULU MAKE THIS A FULL STOP HOLD SHORT OF EIGHT IF POSSIBLE.” 20. The Piper then landed on runway 4-L and stopped at the midway taxi strip short of the intersection of 4-L and runway 8. 21. The next tower transmission to the Piper was: “28. PIPER NINE NINE ZULU PULL AHEAD SLIGHTLY ALLOW THE DC THREE TO PASS BEHIND YOU.” This transmission was complied with, and after the next three tower transmissions, the DC-8 was cleared for takeoff by transmissions reading: “30. JAPANAIR EIGHT ZERO ZERO FIVE WIND NORTH NORTHEAST SIX CLEARED FOR TAKE-OFF.” [The reference to Zero Zero Five is admittedly an error and should have been Zero Zero Six] ****** “32. JAPANAIR EIGHT ZERO ZERO SIX CLEARED FOR TAKEOFF.” 22. After the next four transmissions the tower instructed: “37. PIPER NINE NINE ZULU HOLD YOUR POSITION.” From this it is inferable and was assumed by the witness Garcia, that the Piper had continued to taxi forward after transmission No. 28. 23. Apparently at this time a C-47, which is the military equivalent of a DC-3, was waiting at the approach end of runway 4-R for a takeoff. It was then being operated by two officers, McCann and Garland, Garland being pilot and McCann co-pilot at the time. Having asked for and been denied clearance because of the imminence of the takeoff of. a JAL DC-8, the following tower transmission then was given, referring to-the said C-47: “43. AIR FORCE SIX THREE THREE EIGHT CAUTION TURBULENCE DEPARTING DC EIGHT CLEARED FOR TAKEOFF.” 24. The next transmission which followed immediately after the clearance of the C-47 was: “44. PIPER NINE NINE ZULU CAUTION TURBULENCE DEPARTING DC EIGHT CLEARED FOR TAKE-OFF.” 25. It will be noted that under then standard procedure the recording mechanism at this tower did not pick up and record messages received from the airplanes to which the messages were addressed. Only outgoing messages from the tower were recorded. 26. The Piper’s specifications were: (a) gross weight approximately 1,-500 pounds when fully loaded with a 700 pound load; (b) top speed 112 miles per hour; (c) cruising speed at 75% power, 100 miles per hour; stalling speed, 42 miles per hour. 27. The specifications for the Japan Airlines DC-8 in the wake of which the Piper was caught, as hereinafter found, were as follows: 1. Flap setting and air climb-out speed (if R/W Temp, was 15° C) 15° flap; V2=166 knots. 2. Gross take-off weight; 310,262 lbs. 3. Wing span: 142 feet, 4.5 inches. 28. At the Honolulu International Airport, where the accident occurred, Runway 4 is a complex of runways having two main center runways which run in an approximate Northeast-Southwest direction; this complex intersects a much longer jet runway, being runway 8, which runs in a rough East-West direction. The two longer runways of the runway 4 complex, each of which is approximately 180 feet wide are denominated Runway 4 Left and Runway 4 Right (hereinafter called 4-L and 4-R), which runways are approximately 280 feet apart, and which intersect runway 8 at an angle of about 40 degrees near its easterly end. 29. The Court finds from the evidence, that the assumptions made by the expert witness Professor Lissaman, called by the plaintiffs, whose qualifications, candor and reasons for his opinions strongly impressed this Court, were sound and amply supported by the evidence, insofar as the assumptions were material to the conclusions reached by this expert. This was the only expert witness called on the scientific aspects of wake turbulence. Hence, his conclusions stand uncontradicted by any competent expert. 30. These assumptions included, or coincide with, or are not inconsistent with, some or all of the following, which are found by this Court to be facts, as well as the other facts found in this decision: a. That the DC-8 had a wing span of 142 feet 4% inches, a gross takeoff weight of 310,262 pounds, as it commenced its takeoff roll, after receiving a takeoff clearance. b. That the accident occurred 20 minutes before sunset at approximately 6:56 p. m. Honolulu Standard Time on June 19, 1961, at Honolulu International Airport, as depicted by Exhibit P-1, under the conditions stated in the preceding paragraphs of this decision. c. That the DC-8 with the aforesaid wingspan and takeoff load, after receiving its takeoff clearance as hereinabove found, with a flap setting of 15 degrees, and with a north, northeast wind of 6 knots, commenced its takeoff run at 6:55 p. m. d. That it reached an air speed of 100 knots on the ground in approximately 29% seconds; that its rotation speed was about 156 knots, and that it broke ground at approximately 160 knots prior to the intersection of runways 4 with runway 8, in approximately the vicinity of the midfield taxi strip shown in Exhibit P-1; that it passed over the intersection of runway 4 right, at approximately 150 to 200 feet altitude; that it passed the end of runway 8 with its landing gear either retracted or in the course of being retracted, that it accelerated to a speed of approximately 176 knots, making a normal climb-out, and turning to its departure heading of 150 degrees substantially as depicted by the red broken line on Exhibit P-1, running from the end of runway 8 to a spot marked X and identified with the letter G with an arrow pointing to said X. e. That immediately after the DC-8 cleared the intersection of runways 4 and 8, the C-47 with a wing span of 94 to 95 feet and a gross takeoff weight of approximately 22,000 pounds, and a climb-out speed of approximately 120 miles per hour, was given a takeoff clearance from its position at the southwesterly end of runway 4 right, being the down-wind end; the C-47 did not immediately take off, but waited from 30 to 40 seconds longer than it normally would have because of the warning on turbulence issued by-the tower. That immediately after clearing the C-47, the control tower, through Humphreys, supervised by Garcia, cleared the Piper for takeoff with the same warning on turbulence given the C-47, and hereinabove quoted, and the Piper immediately commenced its takeoff roll at the approximate spot marked G-2 on Exhibit P-1, at approximately 1,000 feet from the point where it finally crashed on the ground later. 31. The sequence of time in connection with the takeoff roll was as follows: a. As soon as the DC-8 crossed the intersection of runways 4 and 8, the Local Controller Humphreys, who was backed up by Garcia with an overriding mike, and who had been told by Garcia to issue a turbulence warning, issued in immediate sequence the takeoff clearances, first to the C-47 and then to the Piper, as hereinabove quoted (paras. 23 and 24 ante). b. Garcia gave two somewhat conflicting versions of the sequences: (1) In one of them, on direct examination, he said that he had been watching the DC-8 and, as it passed the intersection of runways 4 and 8, he heard Humphreys give the clearance to the C-47 and immediately turned his attention back to the area of the C-47; that he saw the Piper commence its takeoff roll following its clearance, and immediately turned back and looked at the DC-8 and found at that moment that it was over the Bascule Bridge at Sand Island at a heading of approximately 150 degrees. (2) On cross-examination by Padgett for Defendant Baker, Garcia admitted that in his previous deposition he had said he had observed the DC-8 retracting its landing gear and passing over the end of runway 8. c. In an attempt to reconcile his testimony on direct examination by Crum-paeker with his deposition in this respect, Garcia said that he watched the DC-8 pass the intersection of runways 4 and 8 and retracting its landing gear as it passed over the end of runway 8, and that at that moment he heard Humphreys give the clearance to the C-47 and immediately looked back to the area of the C-47 and observed the Piper commence its takeoff roll, at which moment he immediately looked back to the DC-8 and saw it approximately over the Bascule Bridge. d. Taking into consideration normal reaction time, this Court believes that what happened was that Humphreys gave the clearance just as soon after the DC-8 cleared the intersection as he could with normal speed, that by the time he got through giving the clearance to the C-47 and was in the process of giving the clearance to the Piper, somewhere about this time Garcia reacted and turned his eyes back to the C-47 and incidentally to the Piper, because both were within the same general direction of vision, and he could undoubtedly see both at the same time. The normal reaction time and the time it took for Humphreys to say the words for clearance would account for the DC-8 commencing to retract its landing gear and passing or being about to pass over the end of runway 8. In either event, the difference would be a matter of a very few seconds. After observing the Piper commence its takeoff roll, and immediately thereafter looking back to the DC-8 and observing it approximately over the Bascule Bridge, Garcia turned his attention back to the general area of the C-47 and Piper and at that moment observed the Piper in an attitude such that its fuselage was parallel to the surface of the runway and its right wing at right angles to the surface, with the plane falling rapidly to the ground, and saw it hit the ground. 32. The only testimony we have from an eye-witness of the Piper’s movements from the commencement of takeoff until the crash is that of the witness Capellas who was Ground Controller. From this witness’s statements, as well as other evidence, the Court finds that the Piper started its takeoff roll from the point indicated by both Garcia and Capellas, approximately 1,000 feet from the point of the actual crash, that it made a good takeoff run and a good normally appearing initial climb, that thereafter it assumed an attitude abnormally nose-high as it was about to pass the tower, which is practically at right angles to the northeasterly, southwesterly line of runway 4-L, at an altitude between 50 and 75 feet, that its right wing then dropped until it was practically perpendicular to the runway and the Piper fell off to the right and crashed at the intersection of runways 4-L and 8, where it burst into flames. 33. There is a great deal of testimony from this witness as to whether he had said the plane was a “little” nose-high, or “excessively” nose-high, and the Court gained the distinct impression that this witness, although trying to be honest, was nevertheless slanting his testimony toward creating an impression — which the government has throughout this case attempted to sell to this Court — that the cause of the accident was a mere stall, rather than the turbulence caused by the departing DC-8. 34. At any rate, regardless of what Mr. Capellas or Mr. Garcia or any other witness has testified to, along any line which might tend to indicate a mere stall, this Court finds that the evidence overwhelmingly proves that the cause of the accident was turbulence caused by the departing DC-8. More specifically, this Court is fully convinced that the little Piper encountered the left vortex of this large departing DC-8 and that the turbulence caused by this vortex fully accounts for all of the abnormal activities of the Piper from the time it assumed its unnaturally nose-high attitude until it crashed. This Court is also fully convinced from the evidence, including especially that of the expert witness Lis-saman, that the turbulence encountered was so violent that the little Piper once caught in it had no chance of avoiding a crash — in other words, that the strength of the turbulence was so great as to overcome any ability of the Piper to overcome it. 35. In this connection, this Court has carefully considered, along with every other aspect of the evidence, the testimony of the expert witness Alfred Anthony who testified to the conditions he found in the burned Piper after the accident, including such matters as the folded-up right wing, the angle of the Piper with respect to the longitudinal axis of runway 4-L, the position of the throttle, the appearance of the propeller blades, etc. None of these impressed the Court in the light of all the evidence, as indicating any negligence on the part of Shima or Furumizo in the actual operation of the Piper, other than the possibility of negligence in taking off when the Piper did. 36. The Court’s ultimate ruling in this case may be summed up thus: Baker had the duty, equal to the highest duty a commercial airline owes to its passengers, of care in furnishing instruction to Furumizo, the student pilot who had not yet soloed. Shima, the instructor pilot, although apparently otherwise well qualified, quite evidently had not sufficiently absorbed the dangers of vortex turbulence from large planes, such as the DC-8, to tiny planes like the Piper to realize that by taking off from a point as close to the intersection as it was, and crossing runway 8 at an angle of only 40 degrees, with a cross-wind of the type shown, he would be almost certain to encounter such turbulence at its maximum degree of danger. Therefore Baker was negligent in not having furnished an instructor who was so fully aware of such dangers that he would have avoided taking off when and under the circumstances he did. 37. Furumizo was not negligent in any manner in this respect, since his instructor was in charge of the plane, and at takeoff especially would be the one to exercise judgment in accepting clearance from the tower. 38. This negligence of Baker, since it antedated the actual takeoff of the Piper, was not the sole and last independent cause of the accident, but continued as a contributing cause from before the accident until it happened. Had Shima been an adequately trained pilot, and had he been adequately instructed and made fully aware of the dangers of large plane wake turbulence to small planes, the Court cannot believe that he would have taken off at the time and under the circumstances he did, the evidence indicating that he was a careful and prudent person, not one given to taking undue chances. A well-trained pilot, adequately schooled in the actual dangers to planes of the size of this Piper of turbulence created by planes of the size of the DC-8, would have done what the pilots of the C-47 did — wait until a reasonable time had elapsed to allow the most violent aspects of the turbulence to dissipate before taking off at an angle that would most certainly cross the path of the turbulence, and most likely in the actual vicinity of it, and at an angle so closely parallel to the path of the turbulence, as to increase the danger of turbulence to its extreme degree. 39. The government was negligent in that under then existing laws and regulations it had a duty to exercise judgment to attempt to avoid danger where such danger was, or should have been, obviously imminent under the circumstances — namely, a takeoff from a point in close proximity to an intersecting runway, at a sharp, acute angle less than 45 degrees, with a 6 knot wind blowing close to the same direction as the turbulence would be running along the runway of the takeoff of the large plane, at a time less than one minute after the creation of the turbulence at the intersection, and noting and observing that the Piper immediately took off upon receiving clearance which was given immediately after the large plane cleared the intersection, so that it should have been obvious to a well-trained tower controller that under such circumstances the little plane must almost inevitably encounter extremely violent turbulence at an angle to be destructive and to be imminently dangerous to the plane and its occupants. 40. The government attempted to justify its controllers by the claim that they did everything they were required to do under the circumstances. This Court holds otherwise. The mere statement of a warning as to turbulence, with full knowledge that the little plane was taking off immediately, should have indicated to the tower personnel that regardless of what they thought well-trained pilots generally ought to know, the pilot of this tiny plane either did not know it, or was commencing a takeoff that can only be described as extremely hazardous, or suicidal. 41. Had the tower personnel attempted to exercise their reasonable judgment and attempted to hold up the clearance a sufficient time to minimize the acute danger at this point of the intersecting runway, and had the accident happened nevertheless, it might then be argued that the government should not be held liable for a mere mistake exercised in good faith, but with the wrong result. Here, however, this Court finds that there was a complete and callous disregard of any duty to exercise judgment whatsoever, and from the lips of Garcia himself, the man in charge of the tower, no judgment was exercised. There was simply a slavish purported following of the “book”, with no attempt to exercise a judgment, which under the circumstances it was the duty and within the power of the controller to exercise, and which would and could have avoided this accident. 42. The Court holds that this failure to exercise any judgment under the circumstances constituted negligence on the part of the tower controllers and was a contributing cause of the accident, along with the negligence of the defendant Baker in not furnishing in Shima an adequately informed and trained pilot, and finds that each is equally liable, and that each should pay one half of the judgment to be entered pursuant to this decision. 43. In an effort to persuade this Court to change its thinking about the liability of the government, the latter filed two memos after the Court announced its tentative oral ruling. The Court has carefully studied every decision cited and every argument of the government and is not persuaded that its original impression and finding of liability on the part of the government was erroneous. Among the decisions so cited by the government are those hereinafter next cited. 44. This Court has no quarrel with the principle claimed by the government as held in Social Security Administration Baltimore F. C. U. v. United States, D.C., 138 F.Supp. 639, 645, (which was not an accident case and did not involve aircraft or the F.A.A. or its predecessor) to the effect that a plaintiff suing under the Federal Tort Claims Act (FTCA) must prove all three of the elements of actionable negligence: (1.) a duty on the part of the government to protect plaintiff from the injuries suffered; (2) the government’s failure to perform that duty; and (3) an injury to plaintiff proximately caused by such failure. Unlike the situation in the Social Security Administration case where there was no law casting upon the government any duty to make a comprehensive and active audit of Federal Credit Union accounts for the protection of credit unions, in this case we have a statutory duty imposed upon the F.A.A. to provide for safety of aircraft, and a rule having the force and effect of law prescribing the same thing, with other indications hereinafter mentioned, of duties relating to safety of the aircraft. While quoting various portions of 49 U.S.C. § 1348(b) as to the administrator being authorized within the limits of congressional appropriation to operate air navigation facilities and provide necessary facilities and personnel for the regulation and protection of “air traffic”, the government significantly omits paragraphs (a) and (c) of that section which emphasize the safety and protection of aircraft through air traffic rules and regulations, Thus, we find the government emphasizing traffic regulation pure and simple as the only criterion by which to judge the duties and performance of control tower operators, whereas the statute and the regulation having the force of law adopted pursuant thereto, equally stress the safety and protection of aircraft. 45. Smerdon v. United States (D.C. Mass.1955), 135 F.Supp. 929, is not persuasive in this case. There the administrator of deceased passenger Barnes sued under the Federal Tort Claims Act. The plane, a Beechcraft Bonanza, a four-place, low-wing monoplane, capable of instrument as well as visual rules flight, and actually on an instrument rules flight plan; approached Logan International Airport, a fogged-in airfield, and was duly warned as to insufficient visibility conditions and the fact that they were unable to furnish a ground control approach due to precipitation clouding the scope of their radar equipment. Nevertheless, the pilot, Smith, insisted on asking Logan International Airport for V.F.R. landing permission, because the pilot had heard the control center finish broadcasting a proper and accurate report of good visibility weather conditions at Bedford airport (a different airport from that over which the pilot was), and mistakenly understood the broadcast to refer to the Logan Airport. This misunderstanding was due in no way to the fault of the Logan control official. The pilot himself reported to the tower officials, who were under a tent to facilitate radar viewing and did not have visual access to the field, that he could see certain landmarks near Logan and the end of one runway at the airport itself, and based upon his own mistaken belief that the weather report for Bedford represented the weather for Logan Field, and his own visualization of the Logan Airport, which he reported to the Logan people, he requested and received visual flight rules clearance to enter an approach at Logan. Smith believed that any obscuration that he observed on the harbor was thin and would be a temporary impediment to visibility and therefore entered the approach for landing and commenced his gliding path from 500 feet altitude, meanwhile letting down his landing gear from their retracted position. This created a drag on the plane which, unless countered by trimming the horizontal stabilizers or otherwise offsetting them by steering devices, would tend to cause the nose of the plane to dip. When the plane was a half a mile from the end of the runway, Smith entered an area of fog, but mistakenly believing it to be a temporary obscuration, he continued and crashed into the water of the harbor, resulting in drowning his passenger Barnes, although he and another passenger escaped. As the court in that case said: “In this case Smith furnished the information to the Logan tower operator that from where he was flying visibility was within the minimum for VFR. The tower operator had furnished and continued to furnish the official Boston Weather Bureau reports to indicate that at the field the weather was below the minimum for VFR.” (p. 932). The court said there was no negligence on the part of the Tower Control Operators under the facts of that case. This Court believes that the dicta set forth in the reasoning of the court in that case are based on an insufficient consideration of all the Federal laws, rules and regulations, as demonstrated in this opinion, and that the duties of tower control operators are not limited to purely preventing physical collisions of aircraft and pure traffic control as between air traffic and other air traffic objects. If this were so, the administrator would have been in error both before and after the accident here involved, in telling control operators that they could and should take into consideration possible turbulence in clearing and landing aircraft. On the other hand, even the Smerdon decision recognizes that “The case of Eastern Air Lines, Inc., v. Union Trust Co. [95 U.S.App.D.C. 189] 221 F.2d 62, is persuasive in determining that Congress has consented for the government to be sued for damages resulting from the negligence of its tower operators acting within the scope of their employment.” 46. Martens v. United States, USDC SC Cal., 1957, 5 Aviation Cases 17,465, is not available to this Court, but from the government’s own statement of the facts indicating that the law and regulations did not place any duty upon a tower controller to ascertain the type of flight license held by the pilot before giving him a clearance, obviously distinguishes that case from this. 47. Braniff Airways, Inc. v. United States, S.D.Fla.1961, 203 F.Supp. 602, is obviously inapplicable. There, the plane caught fire after it was in the air, apparently from a defective engine, and crashed. Under no rational basis could any negligence be imputed to tower personnel who only saw a glow after the fire started when the plane was two or three miles in the air and who could have done nothing to help. The quotation that the case comes within the exception found in Section 2680(a) of Title 28 U.S.C., is pure dictum. 48. In United States v. Miller (9 Cir. 1962) 303 F.2d 703, two actions against the United States, as the result of a midair collision of two privately owned light aircraft near Boeing Field, Seattle, in broad daylight, with perfect visibility and ideal weather conditions, were brought, one by the executrices of the estate of Miller, the pilot of one of the planes, who was killed by the accident, and the other by the owner of the plane and employer of Miller. No passenger was involved in this case. The lower court found the tower personnel negligent in eight different respects, including failure to maintain proper or any control over the two aircraft as to proper spacing in the traffic pattern, and found the pilot Miller not guilty of contributory negligence in failing to observe the other aircraft and avoid the accident. The appellate court found it unnecessary to decide whether the trial court erred in its findings and conclusions as to negligence of the tower operators, and found the pilot Miller guilty of contributory negligence in that under the applicable flight rules the other aircraft, the Cessna, approaching on his right, had the right of way and he had failed to maintain a sufficient lookout to see the plane as he should have. The court says at page 711: “The optimum of safety is sought to be achieved by imposing concurrent duties on the pilots and tower personnel. In any given case, one, both, or neither could be guilty of a breach of the duties imposed. This view is implicit in the decision of the court in Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, affirmed, sub nom., United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796. The ultimate result reached in that case recognized that both the Government and the airline had concurrently breached their duties, and each was held liable.” 49. United States v. Schultetus (5 Cir. 1960) 277 F.2d 322, 86 A.L.R.2d 375, although closer to the present case, is still distinguishable. It is to be noted first, that the suit was not brought by the student pilots’ heirs (two student pilots were killed), but by the widow of Sen and Aero Enterprises, Inc. (the employer of Sen and owner of one of the planes) who sued American Flyers, Inc., owner of the other plane involved in the accident, and the United States. This case involved a collision between a Cessna 170 and a Cessna 140, the former owned by American Flyers, Inc., a flying school (hereinafter called American) and piloted by instructor-pilot Schultetus and a student pilot, and the latter owned by Aero Enterprises, Inc., also a flying school (hereinafter called Aero) and operated by instructor-pilot Sen and a student pilot. All four occupants were killed, but apparently neither of the student pilots was involved in this case. Aero and Sen’s widow for self and children sued American and United States, claiming the pilots of the 170 were negligent and that the U. S. was negligent in giving improper signals, and failing to give proper signals from the control tower. American cross-claimed for the value of its Cessna 170 against Aero and the United States, alleging negligence, and also cross-claimed against the United States for indemnity. The United States cross-claimed against American for indemnity or contribution. Schul-tetus’s widow for self and child sued Aero and the United States and Aero cross-claimed against the United States, which cross-claimed against Aero for indemnity and contribution. An insurance company intervened for workmen’s compensation paid for Schultetus. The significant thing is that this case decides nothing as to the liability of the United States under similar circumstances for the death of a student pilot who would not ordinarily, as this Court sees it, be held guilty of contributory negligence, even if the instructor-pilot of his plane was. This alone possibly distinguishes the Schultetus case. However, we will discuss it in more detail. The district court had held in Aero Enterprises, Inc. v. American Flyers, Inc., 167 F.Supp. 239 that there was no negligence in the operation of either aircraft but that the CAA employees were negligent in what they did and failed to do. The United States appealed. In reversing the judgment against the United States the court did not specifically reverse any of the findings as to lack of negligence of any of the operators of the two airplanes, but simply held that the court had erred in finding that the U. S. employees were negligent. The appellate court said that although the 170 was being operated by a student pilot under IFR rules, the instructor-pilot had full visibility and was operating in fact under VFR conditions. It was pointed out that tower clearances were permissive in nature and did not relieve a pilot from exercising a reasonable degree of caution in executing the provisions of a clearance; that the information given by the tower to the Cessna 170 as to the presence of the 140 in the traffic pattern culminating in its express warning “TRAFFIC CESSNA CROSSING IN FRONT OF YOU” was in full discharge of the responsibility of the tower to give information in preventing collision between aircraft. Also, it is to be noted that the Cessna 170 had the Cessna 140 in sight, or had said that it did, and hence the tower operators had no reason to believe that a collision between the two planes was imminent. It is true that the court in that case said (277 F.2d p. 327), “The theory followed by the district court would place upon the operators of control towers the primary responsibility for the operation of aircraft at the field. Governmental regulations, having the force of law, have assigned this responsibility to the operators of aircraft.”, citing 49 U.S.C.A. §§ 551, and 560(a), both since repealed, and Section 1421 (presumably for its provision in paragraph (b) that, “In prescribing standards, rules, and regulations * * * the Administrator shall give full consideration to the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest * * * ”; it also cites Section 1430(a) (5) making it unlawful, “(5) For any person to operate aircraft in air commerce in violation of any other rule, regulation, or certificate of the Administrator under this subchap-ter ; * * * ”. It also cites Allegheny Airlines v. Village of Cedarhurst, (2 Cir. 1956), 238 F.2d 812, (which simply holds that the federal laws and regulations concerning air traffic are constitutional and supersede regulations of villages over which the traffic passes). The court found that the tower was under no duty under the circumstances to use its red general warning light to the Cessna 140, which was not radio-equipped, because it had good reason to believe that the 170 which had been warned, and acknowledged seeing the HO, would avoid it, “in the exercise of his direct and primary responsibility.” The court did say that “the district court has overlooked the principle that the direct and primary responsibility for the operation of aircraft over or in the vicinity of an airport rests upon the pilots of the aircraft,” in holding that the tower operators were negligent in failing to control the separation of the aircraft. It seems clear to this writer that in this case the real reason why the court reversed the judgment below was in fact contributory negligence on the part of Schultetus insofar as he and his employer were concerned, and that the other pilot was also contributorily negligent, as neither of them apparently observed the other, although there had been due warning that they were in each other’s traffic pattern. The court also held that there was no obligation on the part of the tower personnel to warn the Cessna 140 with its red signal light to give way to the Cessna 170 because they had duly warned the 170, it had acknowledged seeing the 140, and they had a right to believe that the 170 would avoid the 140. Incidentally the appellate court noted that by the time there might have been any thought of using a general warning signal light, the 140 had passed the tower and those in it would have had to look backward to have seen any signal, hence a warning would have been futile anyway. Finally, one might note that at least it was possible for each of the two Cessnas to see each other in broad daylight under ideal weather conditions and traveling at moderate speeds, whereas in the case of the Piper, the turbulence was invisible and not obvious to the naked eye. 50. New York Airways, Inc. v. U. S., (2 Cir. 1960) 283 F.2d 496 is also distinguishable. There the plaintiff’s helicopter was engaged in a scheduled passenger and baggage service between Idle-wild Airport and a designated gate at Newark Airport. The touchdown area at Newark was in a part of the field where service vehicles passed and re-passed. On the flight in question the only occupants of the helicopter were the pilot and a flight attendant. After having radioed for, and received clearance to, land at a particular area, the pilot glided in on an angle which, because of a blind spot on the helicopter, of which he must obviously have been aware, prevented him from seeing a service truck which was proceeding at a moderate speed in that area. The truck had no radio, so he had no instructions. The pilot landed on the truck, damaging the helicopter, whose owner thereupon sued the United States, on the ground that the Ground Controller was negligent in clearing the helicopter to land under the circumstances. The pilot had heard nothing from the control tower since getting the clearance to land and testified he did not see the truck until after the impact. However, if he had banked to the right rather than glided straight in, he could have noticed the truck. The court held that the pilot was not relieved from a duty to watch the landing area for passing vehicles and the Controller could not be expected to watch him at all times. The court cited the Flight Information Manual to the effect that a clearance was permissive and did not relieve the pilot from exercising a reasonable degree of caution in executing the provisions of the clearance, and said that the standard of a pilot’s vigilance must be even higher than that with respect to collisions between aircraft where the anticipated danger is from ground vehicles, which, unlike aircraft, the Flight Controller cannot warn by radio. The plaintiff’s operations manager admitted that he continuously instructed his pilots to survey the area where they were going to land to see that it was clear, in spite of any clearance that they might get from the tower, and to observe the landing area at all times. It seems clear to the writer that the touchdown area for this helicopter, unlike that for regular airplanes, was known by the helicopter owner and pilots to be one that was not necessarily cleared of all land vehicles, whenever a helicopter was to land, so that the helicopter had no right to assume that all ground traffic was stopped and the area kept clear of vehicles whenever a clearance was given for it to land. The appellate court sustained the lower court in its holding that the plaintiff had failed to prove freedom from contributory negligence. 51. As this Court reads Eastern Airlines, Inc. v. Union Trust Company, and United States v. Union Trust Company, 95 U.S.App.D.C. 189, 221 F.2d 62 the case does not, as far as this Court can see from reading the opinion, hold as the government contends “that the duties of Government control towers to pilots are confined to the obligations imposed on the controllers by the manual containing air traffic control procedures.” Actually, as the government concedes, the judgment against the government for negligence of the tower in granting clearance to two planes to land on the same runway at approximately the same time, was sustained. And furthermore, it was held that: “The three negligent omissions and the one affirmative negligent act found by the court were not ‘decisions responsibly made at a planning level’ and did not involve any consideration important to the practicability of the Government’s program of controlling air traffic at public airports. The tower operators acted, and failed to act, at an operational level. While they were in a sense exercising discretion as to what they should and should not do, they were not performing the sort of discretionary functions contemplated by § 2680(a) and clearly described in the Dalehite decision. “It is therefore our opinion that, if a Government towerman negligently clears two planes to land on the same runway at the same time, or is guilty of some other negligent act or omission in doing his work, the Government is liable for resulting injury in the same manner and for the same reason that it is liable for injury done by the driver of a mail truck who, in exercising discretion as to how to drive, negligently runs through a red traffic light.” (p. 78) The Eastern Airlines decision, therefore, is one which fully supports this Court’s ruling. 52. Johnson v. United States (E.D. Mich.1960) 183 F.Supp. 489, also holds that while the existence of many variables affect the creation, position, intensity and persistency of turbulence, and while the existence of these variables perhaps prevents the setting up of absolute limits for safe separation with respect to turbulence hazards, rough rules of thumb to determine such separation are available, and that: “The fact that variables prevent the fixing of limits with certainty does not absolve the control tower from a duty to take the turbulence hazard into consideration, but this is merely one factor that may be considered in determining whether under a given set of facts the employees of the control tower did meet the standard of reasonable care.” (p. 492) This Court agrees with the Johnson decision that: “In any event, the safety of those using air lanes is not to be sacrificed to traffic expediency.”, (p. 493) and that control tower employees in the exercise of reasonable care do have a duty to take into consideration turbulence hazards when giving clearance to take off, as well as to land. Although in that case the court found for the defendant United States on the basis of contributory negligence of the pilot of the plane, it nevertheless is authority for the position here taken and taken in that case as to the duties of tower controllers. 53. The Dalehite v. U. S. (1953) 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, case also relied upon by the government, involved the question of liability of the United States for what had been done under applicable regulations and laws relating to the fertilizer program. The majority in that case held that every decision on the part of governmental personnel claimed to have been negligent was made at a high policy level and not in the field, hence the government was exonerated under the exception as to the discretionary functions set forth in 28 U.S.C. § 2680(a). Even this decision, however, is weakened by the fact that it was made by only seven justices, who divided four to three, with a vigorous dissent by the three non-concurring justices, who felt that even under the circumstances of that case, the government should have been held liable. 54. Powell v. U. S. (10th Cir. 1956), 233 F.2d 851, Dupree v. U. S. (3rd Cir. 1957), 247 F.2d 819, and Builders Corp. of America v. U. S. (9 Cir. 1963), 320 F.2d 425, are obviously inapplicable to this case on their facts, as they do not deal in any way with airplane accidents, or the powers and duties of the F.A.A. The same can be said of Weinstein v. U. S. (3rd Cir. 1957), 244 F.2d 68. 55. The government’s contention that the alleged negligence of the tower controllers, even if they were negligent, was not the proximate cause of the accident, but rather an alleged intervening cause — namely the negligence of the pilot Shima, is rejected. As this Court has held, the basic negligence on the part of defendant Baker was in failing to furnish to Furumizo, to whom it owed the highest degree of care, an adequately trained and informed instructor pilot having a full realization of the extent of the danger to planes of the size of the Piper, of turbulence in situations where such small plane would cross at an acute angle an intersecting runway on which the turbulence had been created, almost immediately after the turbulence was created. 56. In its attempt to exonerate the control tower operators and thereby exonerate the government, reliance is placed by the government upon alleged compliance by its employees (FAA employees, the control tower operators) with procedures prescribed by the Administrator of the FAA. This will next be examined in detail. 57. As the overall statutory authority for the functions of controlling air traffic, the government, as well as other parties, cites the basic provisions of 49 U.S.C.A. § 1348, reading in part as follows: “Airspace control and facilities — ■ Use of airspace (a) The Administrator is authorized and directed to develop plans for and formulate policy with respect to the use of the navigable airspace; and assign by rule, regulation, or order the use of the navigable airspace under such terms, conditions, and limitations as he may deem necessary in order to insure the safety of aircraft and the efficient utilization of such airspace. He may modify or revoke such assignment when required in the public interest. “Air navigation facilities (b) The Administrator is authorized, within the limits of available appropriations made by the Congress, (1) to acquire, establish, and improve air-navigation facilities wherever necessary; (2) to operate and maintain such air-navigation facilities; * * * and (4) to provide necessary facilities and personnel for the regulation and protection of air traffic. “Air traffic rules (c) The Administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection, and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision between aircraft, .between aircraft and land or water vehicles, and between aircraft and airborne objects. “Applicability of Administrative Procedure Act (d) In the exercise of the rule-making authority under subsections (a) and (c) of this section, the Administrator shall be subject to the provisions of the Administrative Procedure Act, notwithstanding any exception relating to military or naval functions in section 1003 of Title 5.” 58. The accident in question occurred on 19 June 1961. At that time there were in effect Civil Air Regular-tions adopted by the Federal Aviation Agency including Air Traffic Rules. These are set forth in Exhibit G-l constituting Part 60 Civil Air Regulations in effect June 20, 1961. For aught that appears, these regulations had been in effect for some years prior to 1961 and thereafter insofar as provisions relevant to this case are concerned. In addition to promulgating such Air Traffic Regulations which have been duly adopted in accordance with the Administrative Procedure Act, pursuant to Section 1348(d), the Administrator has also issued Air Traffic Control Procedures for the use of its employees, the controllers. These Procedures, as stated in the memorandum filed by the defendant after trial on May 6, 1964 (which have been carefully studied) were contained in the ATM— 2 — A Manual at the time of the accident (Ex. G-5). Whatever may be the effect of these Air Traffic Control Procedures, they are obviously not adopted in accordance with 49 U.S.C.A. § 1348(d), but as stated in the foreword in Exhibit G-5: “This manual prescribes procedures, with accompanying phraseology, to be used by personnel of all facilities providing Air Traffic Control service and is one of the Air Traffic Control Manuals of the Federal Aviation Agency referred to in Part 26 of the Civil Air Regulations.” ; therefore, as this Court sees it, they do not have the force and effect of law as do the regulations. We now proceed to consider these Air Traffic Control Procedures. 59. Section 100.1 of the Air Traffic Control Procedures provides: “Except where special procedures are set forth in Operations Letters or Letters of Agreement which supplement those herein, personnel engaged in the provision of air traffic control service shall provide such service in accordance with the procedures and minima contained in this manual.” 60. Section 100.7 provides: “While every effort has been made to prescribe complete procedures and phraseology, it is manifestly impossible to provide them to cover every circumstance. Therefore, when situations arise which are not provided for herein, personnel are expected to use their best judgment, both as to the procedure employed and the phraseology in which it is expressed." 61. In definitions under Section 120 of the Manual (Ex. G-5): (a) Air Traffic Clearance is defined as: “Authorization by air traffic control facilities, for the purpose of preventing collision between known aircraft, for an aircraft to proceed under specified traffic conditions within controlled airspace.” (b) Air Traffic Control Service is defined as: “A service provided for the purpose of promoting the safe, orderly and expeditious flow of air traffic, including airport, approach and en route air traffic control services.” (c) “Separation” is defined in Section 120, ATM-2-A, 1-5, as: “Spacing of aircraft to achieve their safe and orderly movement in flight and while landing and taking off.” (d) “Separation minima” are defined in the same manual as: “The minimum longitudinal, lateral, or vertical distances by which aircraft are spaced through the application of air traffic control procedures.” (e) Section 400.1 of the ATM-2-A provides: “Airport traffic control towers shall provide airport traffic control service, and in so doing shall issue and relay such clearances and information as will facilitate use of airports by aircraft.” (f) Section 411.1 provides: “Clearances, instructions and information issued by airport traffic controllers shall be predicated solely upon observed or known traffic or airport conditions which, in their judgment, may constitute collision hazards to aircraft. This may include the positions of aircraft in flight within the control zone or operating on the movement area, and observed or known vehicular traffic and temporary obstructions on or immediately adjacent to said area.” (g) Section 411.2 provides: “Except as set forth in 205 A and B and 411.&, denial of clearance for an aircraft to land or take off shall be based solely on considerations of traffic." (h) Section 411.3 provides: “Whenever practicable, an alternative clearance or instruction may be issued to a pilot who so requests.” (i) Section 411.7 provides: “When controllers foresee the possibility that departing or arriving aircraft might encounter rotorcraft downwash, thrust stream turbulence or wing tip vortices from preceding aircraft, cautionary information to this effect should be issued to pilots concerned. “NOTE. — Since the existence and effect of turbulence is unpredictable, the provision of the above information does not constitute the placing of responsibility on controllers to anticipate in all cases the need for such information.” (j) The following sections of the Manual relate to separation of aircraft, clearances, and definitions : “420 Separation Separation of aircraft landing and taking off shall be governed by the procedures and minima set forth below. “421 Procedures: * * * “421.1 Separation shall be effected by establishing the sequence of arriving and departing aircraft and advising pilots thereof to make such adjustments in flight or ground operation as may be necessary to accomplish the desired spacing between aircraft in accordance with the mini-ma in 422 or 423. Where control tower siting precludes accurate determination of the separation existing between actual or projected flight or ground paths of aircraft, caution shall be exercised to avoid issuance of clearances or instructions which may increase the potent