Full opinion text
CANNELLA, District Judge. In January, 1963, Lieutenant Colonel Joe R. Simpson, Jr. and Major William W. Gabriel of the United States Air Force arrived from Walker Air Force Base, New Mexico to instruct instructor crews for B-52 bombers at Westover Air Force Base, Massachusetts in “terrain avoidance procedures” through the use of “advance capability radar” or ACR, which was a relatively recent development at the time and which was being installed in B-52’s. Two “standardization” crews were to make a checkout flight together, starting at 8 a. m. on January 24, 1963, but maintenance problems with regard to the plane to be used, a model B-52C, number 53-406, necessitated a delay of about four hours. Once the plane finally had become airborne shortly after noon with the two instructors and both crews aboard, it remained in the Westover vicinity for the next one and a half hours or so while an attempt was made to calibrate and correct the ACR equipment, whereupon the following radio conversation took place between the plane and the Westover weather station: 1830 Frosh 10 — Westover Metro, this is Frosh 10 Metro — Aircraft calling Westover Metro, this is Westover Metro go ahead. Frosh 10 — Roger, this Is Frosh 10 and we are still In the local area here, will you give me a reading on the northern Pokerdeck Area at the present time, is that improving any up there. Metro — Roger 10 this is Westover Metro, stand by while I check the very latest on that. Roger stand by. 1831 Metro 1832 — Westover, this is Westover Metro, (Pause), Pokerdeck _ generally scattered in the flatlands _ still looks like however, it will be scattered to broken with bases from around 2,000 to 2,500 in the south, in the hills, with tops around 6,500 MSI. Also received a report, expect anyway, moderate turbulence, with occasionally severe turbulence in some of the hills. We do not have Mt. Washington to the south, It Is still zero, zero, fog, and blowing snow. And we also have a report on Greenville, showing that it is scattered, the restricted visibility is down and blowing snow. But the general condition at Greenville Is 2500 scattered and ten. It looks like the flat country will be scattered, occasionally broken in the hills and some of the hills obscured over. Ten this is Westover Metro did you read, Over. Frosh 10 — Roger, 10 here, be advised you are coming in, your transmissions are very, very garbled and chewed up, and hard to read. Metro — 10, Westover Metro, 10 West-over Metro, how do you read me now. 1833 Frosh 10 • — ■ Your coming in better now, Metro. Metro — This is Westover Metro, I repeat, the flatlands in the northern pokerdecks route is generally high thin scattered clouds, bases around 2500 feet, tops about 5,000. In the higher terrain you can expect 2500 scattered to broken with a few isolated snow showers, that is MSI on the 2500 feet. Tops about 6,000 still expect moderate turbulence change to occasionally severe turbulence in the hills. We have a report from Mt. Washington to the south of your route It shows that they are still zero, zero and fog and blowing snow. Over. 1834 io this is Westover Metro, did you read me that time, Over. Frosh 10 —■ Thank you very much Metro, this is Frosh 10 out. The background of this conversation was that two alternate routes had been planned for the low altitude training mission, one over central Maine, classified “Poker Deck 8-3” or northern route, and the other over the Carolinas, classified “Poker Deck 8-5” or southern route. The primary determining factor as to which route would be flown was apparently to be forecast(s) of weather conditions in the given area, and they resulted in an initial determination to fly the southern route. However, the delay in taking off combined with the airborne delay, the fact that the particular route was to be flown three or four times and under visual flight rules, and the seeming inaccuracy of the forecast with respect to the weather in the immediate Westover area led Colonel Bulli to opt to fly Poker Deck 8-3. The plane then proceeded to enter this route by way of the Princeton, Maine VOR at about 2:30 p. m., assuming an altitude of 500 feet above the terrain lying below the route flight path of 45° 07' N 67° 57' W to 45° 35' N 69° 26' W. Indicated airspeed was 280 knots. The aircraft encountered light to moderate turbulence right from the start, and Colonel Bulli elected to terminate the run as the plane approached the vicinity of Elephant Mountain. He caused the plane to assume a nose-up angle, and just as it began to climb, there occurred what sounded like an explosion to him; the aircraft went into a bank to the right with the nose down. The crew’s immediate efforts to get the right wing and the nose up proved to no avail, and the plane crashed. Colonel Bulli and Captain Adler survived. The team sent by the Air Force to investigate the mishap arrived at the crash site near Upper Wilson Pond on January 26, 1963 and discovered that the wreckage was at the one place except for the vertical tail which was subsequently found essentially intact approximately a mile and a half back along the flight path. I. The plaintiffs filed their complaint on January 23, 1964, alleging that B-406 crashed as a result of negligence and/or breach of warranty on the part of the defendant. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. The defendant argues that the various claims asserted by the plaintiffs are barred by the applicable statute of limitations. Since jurisdiction herein is based solely upon diversity of citizenship of the parties, this court must look to the pertinent state statute of limitations. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Hodge v. Service Machine Co., 438 F.2d 347 (6th Cir. 1971). B-406 was designed, manufactured and sold by the defendant in Washington. It was also turned over to the Air Force in Washington. The plane was subsequently stationed in Massachusetts; it crashed in Maine while being manned by military personnel whose assignments with the Strategic Air Command (SAC) caused them to continually traverse, if not live in, numerous states of the Union. This action was brought in New York, and the court is therefore required to refer to New York’s conflict-of-laws rules in order to determine which period of limitation is controlling. The New York “borrowing statute,” N.Y.C.P.L.R. § 202, which applies to this case, reads as follows: An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. The threshold issue then is what cause or causes of action accrued as a result of the crash on January 24, 1963. The plaintiffs allege causes of action for wrongful death and for personal injury. The rule once firmly settled with respect to such actions was that, being unknown to the common law, they derive solely from statutes and that the statute which governs is that of the place of the wrong. See, e. g., Turner v. Capitol Motors Transportation Co., 214 F.Supp. 545, 547 (D.Me.1963); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 38, 211 N.Y.S.2d 133, 135, 172 N.E.2d 526, 527 (1961). In this case, or course, all of the injuries and deaths complained of occurred in Maine, which, like most states, had statutory provisions for the maintenance of the causes of action alleged herein. See Me.Rev.Stat.Ann. title 18, §§ 2501, 2551-53. The present case is typical of most, if not all, cases involving complex choice of law considerations in that the positions of the parties plaintiff and defendant vary with regard to the traditional rule from one locus delicti to the next. It is the defendant here which argues that this court is compelled to apply Maine law. However, after the New York Court of Appeals (per Desmond, C. J.) had first unsettled in Kilberg the “law long settled,” it rendered an even more famous decision in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), holding that “[jjustice, fairness and ‘the best practical result’ may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.” 12 N.Y.2d at 481, 240 N.Y.S.2d at 749, 191 N.E.2d at 283. Thereafter, the Court held in Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965), that a New York forum, essentially neutral in a given death action, need not necessarily look at all to the lex loci delicti. The Court’s opinion concludes as follows: There was no suggestion in Babcock that its approach and principle were inapplicable to actions for wrongful death, and indeed, in a number of cases in which the question has been considered, the courts — including the Supreme Court of Pennsylvania (Griffith v. United Air Lines, Inc., 416 Pa. 1, 7, 203 A.2d 796 .. .) — have indicated that the law to be applied is the law not necessarily of the place where the fatal accident occurred but rather of the place having the most significant relationship with, and the greatest interest in, the issue presented. (See, e. g., Fornaro v. Jill Bros., 22 A.D.2d 695, 253 N.Y.S.2d 771, affd. 15 N.Y.2d 819, 257 N.Y.S.2d 938, 205 N.E.2d 862; Tramontana v. S. A. Empresa De Viacao Aerea Rio Gran-dense, [121 U.S.App.D.C. 338] 350 F. F.2d 468, 471; Gianni v. Fort Wayne Air Serv., 7 Cir., 342 F.2d 621; Watts v. Pioneer Corn Co., 7 Cir., 342 F.2d 617; Mertens v. Flying Tiger Line, Inc., 2 Cir., 341 F.2d 851, 858, cert. den. 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed. 2d 64; Fabricius v. Horgen, [257 Iowa 268] 132 N.W.2d 410). It would be highly incongruous and unreal to have the flexible principle of Babcock apply in a case where the victim of the tort is injured but not where he is killed. Maine’s relationship to the case at bar is certainly no less accidental nor more significant than Maryland’s relationship to Long. For example, a B-52 is hardly an instrument of commercial carriage flying regularly scheduled commercial routes. And while Poker Deck 8-3 may have been a regularly used training route, it was flown on January 24, 1963 only after an airborne change of plan by the flight commander. Then again, there is no contention that any of the members of the crew(s) were citizens of Maine. In short, the inescapable conclusion to be drawn is that this court is not compelled to refer to any part of the law of Maine in this case. But this does not mean that the deaths and injuries in Maine did not give rise to the causes of action for wrongful death and personal injury asserted by the plaintiffs since all of the states with more significant relationships to B-52 bombers in general and B-406 in particular allow for such actions, to wit, California, Kansas, Massachusetts, Nebraska, Ohio, Oklahoma and Washington. See Cal.Code Civ.Proc. § 377; Kan.Stat.Ann. §§ 60-1801 to 60-1905; Mass.Ann.Laws chs. 228, 229; Neb.Rev.Stat. §§ 30-809, 30-810; Ohio Rev.Code Ann. §§ 2125.01-2125.04; Okla. Stat. tit. 12, §§ 1051-54; Wash.Rev. Code §§ 4.20.010, 4.20.020, 4.20.046. And New York, the forum state, also provides for such actions. See N.Y. Decedent Estate Law §§ 119, 130 (superseded Sept. 1, 1967 by N.Y.E.P.T.L. §§ 5-4.1, 11-3.2 (b)). Within the Air Force, responsibility for the design conformance, “depot level” maintenance, use and safety of B-406 was divided, respectively, among the B-52 Systems Project Office (SPO) at Dayton, Ohio, the Oklahoma City Air Materiel Area (OCAMA) at Tinker Air Force Base, Oklahoma, SAC headquarters in Omaha, Nebraska and the Office of the Inspector General at Norton Air Force Base in California. Routine maintenance of the plane while stationed in Massachusetts was the responsibility of SAC. “Engineering responsibility” within the defendant corporation for all B-52’s, including the ill-fated B-52C herein, was apparently transferred in 1958 from Seattle, Washington to the defendant’s installation at Wichita, Kansas. Quite unsurprisingly in view of the complexity of the B-52’s, their apparent importance to the United States, and the large number produced, the defendant maintains “direct relationships” on a “first name basis” with all of the above Air Force commands, with the Air Force maintaining, in turn, a “plant representatives office” (AFPRO) in Wichita. The plaintiffs set forth in their brief 18 ways in which they contend the defendant was negligent. Two of these presumably relate ultimately to activities in California. Eleven of the alleged acts of commission or omission appear to relate to the defendant’s activities at the Air Force bases in California, Nebraska, Ohio and Oklahoma and at the defendant’s facility at Wichita, as well as possibly to Westover in Massachusetts. The plaintiffs propose as their initial conclusion of law, however, that the “law of Washington applies to issues of liability.” And not only do their remaining five allegations of negligence appear to relate essentially to the defendant’s activities in Washington, but with the possible exception of the two relating to California, the other eleven contentions appear to relate as much to activities in Washington as to acts in the other states. The specific question here then is not whether the defendant was negligent in any of the ways alleged or whether or not the standard of care varies among any of the above-mentioned states, but rather whether the plaintiffs’ first proposed conclusion of law is correct. The court concludes that it is. If in a case such as this the “niceties of . legal legerdemain do not concern us,” but rather justice, fairness and the best practical result, then the law of Washington must apply here. B-406 was designed, manufactured, sold and delivered in Washington. If the defendant did not live up to a duty to manufacture it free from latent defect(s), that duty was breached in Washington. Almost all of the alleged acts of negligence on the part of the defendant are referable, directly or indirectly, to Washington which is the defendant’s principal place of business. Then again, the defendant is one of Washington’s principal businesses. In short, the court concludes that Washington is the state with the greatest concern with the specific issues raised in the litigation at this time. Of the other states, only Kansas appears to have a very significant concern with the issues raised in view of the shift of engineering responsibility for the B-52’s from Seattle to Wichita in 1958 — or prior to the accident complained of. Only one of the two theories of liability raised by the plaintiffs relates to Kansas, however, and, in any event, the court is not persuaded that the interests of Kansas outweigh those of Washington. The liability questions are therefore controlled by Washington law. The court concludes further that for purposes of applying the New York borrowing statute the plaintiffs’ causes of action accrued in Washington as a result of the crash in Maine. The Court of Appeals for the Second Circuit predicted in George v. Douglas Aircraft Co. that for borrowing statute purposes New York would hold that the cause of action “arose” in the state of manufacture, sale and delivery and compare that state’s statute of limitations. So far as this court is aware, the New York Court of Appeals has not yet specifically affirmed the prediction, but the decision in Long clearly underscored its logic. Cf. Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 430 (2 Cir.), cert. denied sub pom. Addabbo v. Curtiss-Wright Corp., 400 U.S. 829, 91 S.Ct. 59, 27 L.Ed.2d 59 (1970). Thus, even if New York courts, would consider the issue of the statute of limitations separate and apart from the issue of which wrongful death statute applies, this court is not persuaded that the “decision of reasonable intelligent lawyers, sitting as judges of the highest New York court, and fully conversant with New York ‘jurisprudence’ ” would be to refer to the statute of limitations of any state other than Washington. Referring then to Washington, the statutory period applicable to - the causes of action asserted by the plaintiffs is three years which began to run at the time of the crash, January 24, 1963. See Wash.Rev.Code § 4.16.080; Robinson v. Baltimore & S. Mining & Reduction Co., 26 Wash. 484, 67 P. 274 (1901). Returning to Section 202 of the N.Y.C.P.L.R., the New York limitation periods apply to plaintiff O’Keefe, a New York resident. These periods are two years for the wrongful death action and three years for the personal injury or survival action, and they normally begin to run as of the date of death or injury. See N.Y. Decedent Estate Law § 130; N.Y.C.P.L.R. §§ 214, 203. Plaintiff O’Keefe and all of the other plaintiffs base their causes of action, however, on two theories of liability, one predicated on negligence and the other sounding in products liability. Insofar as their causes of action are based on negligence, they are not time-barred by the statutes of limitations of either New York or Washington, the plaintiffs’ complaint having been filed within one year of the accident. On the other hand, the New York Court of Appeals held in Blessing-ton v. McCrory Stores Corp. that a cause of action for breach of implied warranty of fitness for use “gets the benefit of the six-year limit of subdivision 1 of section 48 of the Civil Practice Act, as being an implied contract obligation or liability.” 305 N.Y. 140, 147, 111 N.E.2d 421, 423 (1953). The Court of Appeals, relying in part on Blessington, subsequently held that insofar as a cause of action for personal injury was based on a claim of breach of implied warranty of a product, the period of limitation runs from the date of the sale. See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, motion to amend remittitur granted, 12 N.Y.2d 1073, 239 N.Y. S.2d 896, 190 N.E.2d 253, cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (1963). In 1969, the Court refused to overrule Blessington, albeit by the narrowest of margins, 4-3. See Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 (1969). The majority’s opinion reads, in part, as follows: The appellants argue that Blessing-ton does not apply to the instant case because our decision in Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81, created in favor of the third-party strangers to the contract, a cause of action in tort and not in warranty and, therefore, the three-year-from-the-time-of-the-injury, rather than the six-year-from-the-time-of-the-sale, limitations period should apply. We do not agree. When Goldberg was before us, we were confronted with the issue of whether or not a cause of action other than in negligence should exist in favor of those persons not in privity, with the contract of sale. After determining that the cause of action should exist, two avenues were open to us — either to establish, as other jurisdictions already had, a new action in tort, or to extend our concept of implied warranty by doing away with the requirement of privity. While there is language in the majority opinion in Goldberg approving the phrase “strict tort liability,” it is clear that Goldberg stands for the proposition that notwithstanding the absence of privity, the cause of action which exists in favor of third-party strangers to the contract is an action for breach of implied warranty. The instant action being one for personal injuries arising from a breach of warranty, it is our opinion that Blessington controls and, therefore, the applicable Statute of Limitations is six years from the time the sale was consummated (CPLR 213, subd. 2). We would merely add that both parties appear to agree, and we believe correctly, that strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action. The Court also relied on subdivisions (1) and (2) of Section 2-725 of the N.Y. U.C.C. to support its decision although that section and its 4-yr. period of limitation did not specifically apply to the case, which is also true here. See N.Y.U.C.C. §§ 10-101, 10-105. The causes of action the Court of Appeals dealt with in both Blessington and Mendel were for personal injuries, although the former case did involve a death. However, whatever the degree of persuasiveness and logic in the dissenting opinion in Mendel, this court, to paraphrase Long, supra, concludes that it would be highly incongruous and unreal to have the rule for which the two cases stand apply where a person is injured but not where he is killed or to apply only to plaintiff Adler but not to the other plaintiffs. Hence, the plaintiffs in this case were required to assert their products liability claims within six years of the date of delivery of B-406 to the Air Force. That date was August 17,1956. The plaintiffs argue that “even if New York’s contract statute of limitations applies, the statute was tolled because of defendant’s modification of the airplane throughout its existence.” While there may be some authority generally supporting this type of proposition, the court is unaware of any precedent controlling the type of ease at bar. More importantly, however, liability in this case, as will be seen hereinafter, relates specifically to one section of an empennage bulkhead, and there is no showing that this particular section of the bulkhead was modified in any way subsequent to the date of delivery and prior to the date of the accident. Indeed, the plaintiffs claim that the defendant was negligent in not modifying the bulkhead. Thus, whether or not the defendant modified or improved upon other parts of B-406 or even other sections of the bulkhead in question, there is no showing (or even contention) that any such changes affected or changed the section at issue from the date of delivery until the crash. In view of the foregoing, the court is constrained to conclude that plaintiff O’Keefe’s causes of action, insofar as predicated upon products liability, are time-barred under the law of New York, and the court reaches the same conclusion through application of Section 202, N.Y.C.P.L.R. with respect to the products liability claims of the other plaintiffs. See Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2d Cir.), cert. denied, 396 U.S. 959, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969), modified on petition for rehearing, supra. II. OCAMA B-52 structures engineer Kenneth Denney, who was sent to Maine as a member of the team investigating the crash, testified that he went to the site where the vertical tail of B-406 had been found and determined that the “fin had failed from the left side and folded toward the right side” of the aircraft. The fin apparently bore markings which indicated that it had struck the vortex generators on the right horizontal stabilizer in separating from the plane. In any event, this case is unlike many tragedies involving men and their complex machines in that there is no dispute about how B-406 crashed; the court finds that it crashed due to a loss of directional stability as a result of the vertical tail’s separation from the fuselage during flight. There is a very definite dispute, however, as to what caused the tail to break away. The vertical fin (and rudder) on a B-52C, representing a total area of some 555 square feet and a total exposed area of 460 square feet, is attached to the fuselage at three primary points — two forward at “body station” 1655 and one aft at station 171 9 — with all of the loads on the exposed area being transmitted into the fuselage through these three points. See, e. g., TM, p. 2364. There are bulkheads at both stations, with the function of the station 1655 bulkhead characterized as follows by its designer, the Airframe Components Division of the A. O. Smith Corporation: Station 1655 Bulkhead is the empennage support bulkhead. Its function is to distribute fin loads, stabilizer jack screw loads, and ground handling loads into the body structure. The bulkhead must also sustain the longitudinal components of above mentioned loads, which are reacted by main and auxiliary longerons, stabilizer jack screw support tube, and lower beam stability reinforcement. The 1655 bulkhead in B-406 was manufactured by the Rohr (Aircraft) Corporation from AOS 4405, 4335 — AMS 6428, 6434 steel alloy, with the crown of the bulkhead an open web type, pin-ended truss welded together with SW — 151 welding rod. Attached to and part of the crown assembly were two fin attachment lugs. * -x- # On January 19, 1961, a model B-52B bomber, number 53-390, was engaged in a celestial navigation run at an altitude of about 36,000 feet when it suddenly went out of control and crashed north of Monticello, Utah. The team which investigated the accident was able to determine that the “vertical fin failed first. It failed sharply to the right and contacted the horizontal stabilizer resulting in [the] vertical fin leading edge being smashed to the left. [The] fin failed in [the] steel bulkhead adjacent to fin terminals.” Exhibit BH; TM, p. 2257. Parts of the crown of the 1655 bulkhead in plane 53-390, which was also manufactured by Rohr, were examined and tested thereafter in laboratories of both the defendant and the Air Force, as well as the National Bureau of Standards (NBS) in Washington, D.C. The examination and tests conducted at NBS under the auspices of its Chief of the Mechanical Metallurgy Section, John A. Bennett, led to a conclusion that the origin of the plane’s downfall was a “fatigue crack” .008 of an inch deep in a fillet weld located near the bottom of a vertical weld relief hole below and immediately outboard of the left fin attachment lug. The summary of the NBS report, dated April 16, 1961, reads as follows: 1. The primary fracture in the parts submitted had originated at a small fatigue crack in a weld bead. 2. The design of the part resulted in significant stress concentration, and this was an important factor in the initiation of the fatigue cracks. 3. A large section of the fractured member had been fabricated by building up with weld metal. 4. The relatively small growth of the fatigue crack prior to the initiation of fast fracture is attributed to the presence of the stress concentration and to the very low fracture toughness of the weld metal at the operating temperature. 5. It is believed that the presence of the fatigue crack caused a significant decrease in the static strength of the part. 6. The results of the examination provide no basis for believing that this failure is unique. * * -X- Mr. Denney testified and the court so finds that the 1655 bulkhead of B-406 was found generally intact with the exception of the left hand fin attachment lug which remained attached to the fin when it separated from the plane. A subsequent examination at NBS led to a conclusion on its part that the fracture of the butt-welded heavy members just below the heretofore mentioned weld relief hole was “nearly identical” to that which had occurred earlier in bomber 53-390 over Utah. For a rough sketch of the approximate planes of the two fractures of the butt welds and heavy members, see line A-A on Exhibit 21 * * * The plaintiffs argue that there was a defect in the fillet weld of the B-406 1655 bulkhead. They further argue that the defendant was negligent in “specifying and using a welded, rather than a forged, bulkhead; designing a bulkhead with welds in close proximity to each other; burning a weld relief hole through the bulkhead and thereby creating local stresses and areas of severe stress concentration; designing a bulkhead which, because of its geometry, the proximity of the welds, and existence of the weld relief hole, contained an area of severe stress concentration; improperly welding, so as to create a defect; failing to use accepted and available inspection techniques, such as zyglo, magnaflux, dye penetrant, and x-ray to discover the existence of flaws or defects; failing to discover the existence of the defect during the manufacturing proeess and before the bulkhead boxed section was completed; removing the web, or part of the web, from the bulkhead, in all production bulkheads, after the 1954 static tests showed that a crack developed at 75% of ultimate load; failing to install an access hole or otherwise make it possible to inspect the weld relief hole area on the bulkhead, in the design of the aircraft, even after the 1954 static tests showed that a crack developed there at 75% of ultimate load; failing to order or recommend the installation of an access hole, or other adequate means of inspection, after cyclic tests also demonstrated that a crack developed at the weld relief hole; failing to order or recommend the installation of an access hole, or other adequate means of inspection, after the Montieello, Utah accident in January, 1961 when the bulkhead failed at the weld relief hole area in the same place as the crack had developed in the 1954 static test and in the cyclic tests; failing to take other appropriate measures, such as recommending modifications to or replacement of the welded bulkhead, and relating such modifications or replacement to the Montieello accident and the occurence [sic] of cracks in the same area as the Montieello failure, following receipt of information and opinions indicationg [sic] a weakness of the bulkhead at the weld relief hole; failing to alert the Air Force to the existence of a safety in flight problem relating to the bulkhead, and failing to relate such a problem to the need for a retrofit on B-52s in service; affirmatively advancing theories on the cause of the Montieello accident to the Air-Force-industry investigating board on that accident, which theories were known to be tenuous, and contradicted by the known facts and circumstances of that accident; advancing ‘overload’ as a cause of the Montieello, Utah accident when the known weather data would not support such a theory and when it was known that the aircraft had not yawed to the left as it would have done in an overload situation; affirmatively excluding, from discussions of the 1655 bulkhead, reference to the Montieello, Utah, failure . ; ignoring the warnings of Berman, Bennett, and others that there was an area of severe stress concentration in the bulkhead, that the Montieello fracture was not unique, and that other aircraft would fail in the same way, despite knowledge that there was no evidence of overload failure in the form of ductility or permanent deformation on the Montieello fracture face; [and] failing to adequately review and reconsider the manufacturing processes of the bulkhead, including the burning of the weld relief hole, following the Montieello accident and failing to discover those processes which were creating severe stress concentrations.” Plaintiffs’ Brief, pp. II — 3 to II — 5. III. At the outset, the court takes note of the fact that, even if the plaintiffs’ causes of action based on breach of warranty and/or strict liability are time-barred, as indeed the court has concluded, failure to consider these alternate theories on the merits would be to presume that the court’s conflict-of-laws analysis is infallible and to do a disservice to both sides who so thoroughly prepared the case. Moreover, products liability is almost invariably related to negligence, or stated another way, “an honest estimate might very well be that there is not one case in a hundred in which strict liability would result in recovery where negligence does not.” Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1114 (1960). In referring initially to the law of Washington as the state with the most significant relationship to this case, the court has not found a recent aviation case tried and decided in a Washington forum, applying the law of that state, nor have the parties cited any such precedent. Looking elsewhere then, perhaps the most succinct statement of the rules applicable to a case such as this is to be found in the opinion of the U.S. Court of Appeals for the Eighth Circuit in Nicklaus v. Hughes Tool Co., 417 F.2d 983 (8th Cir. 1969); it reads as follows: A manufacturer has a duty to exercise reasonable skill and care in the design and manufacture of its product, commensurate with the risk of harm flowing from normal use of that product. . . . This duty also binds the manufacturer with respect to component parts incorporated into its final product, but manufactured by another. . . . As a necessary corollary, a manufacturer has an affirmative duty to make such tests and inspections, during and after the process of manufacture, which are commensurate with the dangers involved in the intended use of the product. Where, as here, the plaintiff’s claim against the manufacturer sounds in both negligence and breach of implied warranty, he must establish by a preponderance of the evidence these basic elements: (1) that the product was defectively designed or manufactured . (2) that the defect was the proximate cause of the damage complained of . . . and (3) that the defect existed at the time the manufacturer parted with possession of the product ... To permit recovery for negligent manufacture, ordinarily plaintiff must show, in addition to lack of reasonable skill and care in the process of manufacture, that the manufacturer failed to make a reasonable inspection or test to discover defects. The law of Washington is in general accord. See, e. g., Di Pangrazio v. Salamonsen, 64 Wash.2d 720, 393 P.2d 936 (Dep’t 2 1964); Sutton v. Diimmel, 55 Wash.2d 592, 349 P.2d 226 (Dep’t 2 1960). In addition, on March 29, 1969, the Supreme Court of Washington rendered its en banc “decision to discard the terminology of ‘implied warranty’ and adopt the language of strict liability contained in the Restatement (Second) of Torts § 402A,” to wit: . (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought' the product from or entered into any contractual relation with the seller. Since this decision, parties plaintiff have been free to assert strict liability as well as negligence and/or breach of warranty, and the complaint herein has been amended by way of the Pre-Trial Order to incorporate this change of nomenclature. The Washington Supreme Court had earlier adopted the language of Section 395 of the Restatement of Torts in Di Pangrazio. The section reads as follows: A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured. In addition to the specific acts of negligence alleged above, the plaintiffs also seek to rely on the doctrine of res ipsa loquitur. New York law determines whether this approach is permissible or not here, and the New York Court of Appeals has concluded that “the introduction of some evidence does not render an instruction [to a jury] on res ipsa impermissible or improper.” Abbott v. Page Airways, Inc., 23 N.Y.2d 502, 514, 297 N.Y.S.2d 713, 722, 245 N.E.2d 388, 395 (1969) (emphasis added). The dilemma posed by the case at bar then is whether the significant amount of evidence adduced at trial on the issue of the defendant’s negligence or lack thereof precludes the plaintiffs from attempting to rely on the res ipsa inference. The court concludes that it does not, if only because of the perhaps unfounded assumption that this juror is capable of distinguishing the logical nuances of such an approach. See generally Trihey v. Trans-ocean Air Lines, Inc., 255 F.2d 824 (9th Cir.), cert. denied, 358 U.S. 838, 79 S. Ct. 62, 3 L.Ed.2d 74 (1958), and the cases cited therein. The within-the-exclusive-control-of-the-defendant requirement of the res ipsa doctrine is satisfied in a products liability context “if there is evidence of control by the defendant at the time of the negligent act complained of, i. e., creation of the defect ... although the defendant’s control is not exclusive at the time of the accident, provided plaintiff proves that the condition of the product had not been changed after it left defendant’s control.” The defendant “takes the position that the decedents and the injured plaintiff assumed the risk of the happening of the accident” and “contends that decedents Morrison, Hanson, Simpson, Gabriel and plaintiff Adler were contributorily negligent in that they were in positions of responsibility and could have prevented the aircraft from going into an area of severe turbulence.” Pre-Trial Conference Memorandum Submitted on Behalf of the Boeing Company, pp. 4-5. Unfortunately, the defendant has never seen fit subsequent to trial to provide the court with the benefit of its briefed reasoning on these points, which remain issues to be determined pursuant to the Pre-Trial Order. Assumption of risk is a defense in a products liability case under Washington law. See, e. g., Stark v. Allis-Chalmers & Northwest Roads, Inc., 2 Wash.App. 399, 402, 467 P.2d 854, 856 (Div. 1 1970). See also Northwest Airlines, Inc. v. Glenn L. Martin Co., 224 F.2d 120 (6th Cir. 1955), cert. denied, 350 U.S. 937, 76 S.Ct. 308, 100 L.Ed. 818 (1956). On the other hand, the Washington Supreme Court has pointed out that: the fact that a danger is patent does not automatically free the manufacturer from liability, but does so only if the plaintiff voluntarily and unreasonably encounters it. Restatement (Second) of Torts § 402A, comment n at 356 (1965). It could never be said as a matter of law that [one] whose job requires him to expose himself to a danger, voluntarily and unreasonably encounters the same. The court finds that plaintiff Adler and his fellow servicemen were doing nothing more than their duty on January 24, 1963, which was, of course, to conduct inflight training at low level. That this assignment involved peril is history; that plaintiff Adler and the plaintiffs’ decedents did not assume the risk as a matter of law in this case is patent, and assumption of risk is therefore not a viable defense. To be sure, it is a matter of record that the B-52 Flight Manual warns pilots to avoid clear air turbulence “whenever practical by all means available,” that experienced pilot Bulli was well aware of this, that turbulence is encountered more frequently at low altitude than at high altitude and that disaster followed Colonel Bulli’s decision to fly Poker Deck 8-3. It is also history that Colonel Bulli’s guess as to the nature of the weather over Maine based on the discovered discrepancy between the Westover forecast and fact was wrong. However, before the conclusion could be drawn that the erew(s) of B-406 unreasonably exposed themselves to danger, there would at least have to be a showing that there were no reasonable grounds for the flight commander’s guess, that training flight(s) over Poker Deck 8-5 were still possible that afternoon (or that none at all were really necessary on January 24, 1963) and that the military minds aboard could have functioned in an abnormal fashion. The evidence adduced at trial does not even support inferences in this respect. As for the defense of contributory negligence, even if Colonel Bulli’s decision amounted to negligence (although the court makes no such finding ), such negligence would not bar the crew’s present suit. On the other hand, even if it is contributory negligence to fail to look out for danger when there is reason to apprehend it, there is again no showing that those individuals among the crew(s) who should have had reason to apprehend danger could have countermanded the flight commander’s decision. The court therefore concludes that contributory negligence is not a viable defense in this case either. The court further concludes that the concept of “obviousness of the peril” is inapposite here. See generally Pike v. Frank C. Hough Co., 2 Cal.3d 465, 473-474, 85 Cal.Rptr. 629, 634-635, 467 P.2d 229, 234-235 (1970), cited with approval in Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 517, 476 P.2d 713, 719 (Div. 2 1970). The record is utterly devoid of anything showing that the crew(s) had or should have had reason to suspect that B-406 would never return to Westover. Colonel Bulli, by way of example, had had more than 3,000 hours of flying time in B-52’s prior to January 24, 1963. * * =x= American military planners apparently first conceived the design of the B-52 in the late 1940’s. Intended by the government to be a high altitude, long range bomber, the first prototype built pursuant to government contract specifications by the defendant flew in 1952, and many of the later models are still in constant use today. At trial, there was no refutation of the boast on the part of the defendant’s military programs manager that of the “major airplanes in the Air Force inventory, the B-52’s . . . have had the best safety record.” TM, p. 1699. But this obviously provides no solace to the plaintiffs, nor can there be any consolation in the fact that the crew(s) in B-406 on January 24, 1963 were learning to fly in “a completely new environment” as a result of improved Sino and Soviet high altitude electronic detection capabilities. There is no question, and the court so finds, that ultimate responsibility for the design and use of the B-52 bomber rests and always has rested with the United States government. The court concludes, however, that this fact, in itself, neither exonerates the defendant, nor has it in any way altered the defendant’s duty as a manufacturer in this case where there has been no showing that the defendant was totally oblivious of and/or aloof from the genesis of the design specifications in the first place or that the specifications represented either something less than the uppermost level of the art or a compromise of safety. Cf. Littlehale v. E. I. du Pont de Nemours & Co., 268 F.Supp. 791, 804 n. 17 (S.D.N.Y.1966), aff’d, 380 F.2d 274 (2d Cir. 1967). On the other hand, this does not mean that the court has overlooked the relevant axioms herein that the lighter the plane, the longer its range or the lower the altitude, the rougher the ride. See, e. g., TM, pp. 921, 934, 2794. Cf. id. at 1727. Indeed, the court finds that B-406 was not specifically designed and built for sustained flying at low altitude. IY. The court does not find that the evidence adduced in this case supports the plaintiffs’ allegations that the defendant was negligent in specifying and using the welded 1655 bulkhead in B-406 containing welds in close proximity to each other and the weld relief hole(s) alluded to heretofore. This is so even though the evidence clearly shows that a forged 1655 bulkhead is superior to the welded assembly because the evidence shows, in addition, and the court finds, that heavy-duty, precision presses of the size and number capable of forging the quantity of- 1655 bulkheads needed in the early to mid-1950’s were unavailable in the United States. See, e. g., TM, p. 1704. To be sure, the record indicates that this situation had changed prior to January 24, 1963, that is, that there was no reason from a technological standpoint why B-406 could not have been retrofitted with a forged bulkhead before it crashed. See TM, pp. 1048, 2218. But, it is also clear, on the one hand, that the defendant was not called upon to effect a retrofit while it is anything but clear, on the other hand, that a retrofit would have made a difference in this case. To deal first with the defendant’s inability to effect a retrofit, the defendant sent the following communication to the B-52 SPO on July 28, 1961 (or after the crash at Montieello, Utah): . . . The contractor proposes a review of the fuselage station 1655 bulkhead to determine the practicability of a redesign to a forging as discussed herewith. 2. The subject bulkhead for the XB-52 airplane was designed of heat-treated welded steel in the upper portion for attaching the fin spar and the horizontal stabilizer jack screw. However, as tooling and the development of a heat-treating and welding technique made steel bulkheads unavailable in time for the first production airplanes, all B-52A airplanes and the first six B-52B airplanes were equipped at considerable cost with an aluminum alloy assembly in the upper portion of the bulkhead instead of the welded assembly. The aluminum alloy assembly was machined from a very large hand-forged billet. The bolted on fin lugs were of steel. Due to insufficient large forging press capacity at that time, the design was not changed from the welded assembly to a better and less costly aluminum alloy forging on the later B-52 airplanes. The welded steel assembly was continued, beginning with B-52B, 52-010. Several of these early airplanes with the machined aluminum alloy assembly in station 1655 bulkhead are still in service with no reported difficulties. 3. After approximately sixty B-52 airplanes were assembled, sufficient forging press capacity became available and many of the large welded steel assemblies were changed to aluminum alloy forgings, namely, the fuselage landing gear bulkheads. As very large precision forgings were relatively new to the aircraft industry and in order to avoid exceeding the press capacity, station 1655 bulkhead was not redesigned at that time. 4. To date, difficulties, such as small cracks, have been experienced in this welded assembly in approximately forty-five B-52C through B-52F airplanes. These cracks have been repaired by grinding and stop drilling. Production ECP 951 and 951M (KIT), and ECP 951-12-M (KIT) have been issued to improve this bulkhead. 5. At the time improvements were engineered for the B-52G, the cracks in the B-52C through B-52F bulkheads noted in paragraph 4 above had not been found. Accordingly, the station 1655 welded bulkhead for the B-52G was only revised to facilitate manufacturing. To date only one minor crack has been reported on the B-52G aircraft. However, with more flight time on the B-52G and B-52H airplanes, especially low-level time, additional structural maintenance is expected. 6. When this bulkhead was designed for the XB-52 and early production airplanes, the- use of a heat-treated welded steel assembly was the only practical approach from a size, load, and cost standpoint. It has now been determined that the type of service presently being experienced on the aircraft and the planned long term usage will result in a significant increase in structural maintenance in this area. Further, the internal portions of the welded box section cannot be visually inspected, and the entire assembly is difficult and/or nearly impossible to repair in certain critical areas. We are of the opinion that the design of the bulkhead should be reviewed to determine if an increase in reliability of follow-on, follow-on B-52H airplanes is desirable considering their anticipated more severe service use. The objective in a redesign to less costly aluminum alloy forging of 7079-T6 with bolted on fin lugs of heat-treated steel would be trouble-free structure from a maintenance standpoint. The properties and consistency of forgings can be more uniformly controlled during processing than is possible on welded assemblies. The use of a forging will allow compíete surface inspection of the part in the field and in many cases can be repaired with straps or angles by bolting and/or riveting if required. This new forging would also be designed to repair any station 1655 bulkhead on existing B-52 airplanes by replacing the welded assembly if required. 7. If action on this matter is not started until a follow-on follow-on B-52H contract is received, insufficient lead time will exclude the production incorporation of an improved station 1655 bulkhead. The results of a preliminary engineering investigation of the cost difference between the welded bulkhead and a forged bulkhead, including new tooling, appear favorable. Accordingly, the contractor requests authorization to submit an ECP for the subject change so that the cost difference, design practicability, testing requirements, and the feasibility of production incorporation may be determined. Appended to the message was the following comment from the AFPRO: To the best of our knowledge, the only signs of fatigue damage to the 1655 bulkhead are the area already covered by the 951 and the 951-12 fixes. We believe the cyclic testing done on the fin revealed satisfactory proof of the 951 change up to the limit of the testing done (10,000 cyclic test hrs.). We have never been completely convinced that 951-12 was even required, as these cracks on the cyclic test were stop drilled about midway thru the test and showed no progression from the stop drilling at the end of the test. We further believe that the contractor is optomistic [sic] in saying that the cost for the new forging would compare favorable [sic] with existing part because of the limited number of parts over which the die casts would have to be ammortized [sic]. Therefore, we cannot recommend the expenditure of effort on the proposed ECP. On August 30, 1961, the Air Force denied the requested authorization. See Exhibit Y; TM, p. 1741. Cf. id. at 1742-43. The weld relief holes were clearly points of stress concentration, but the court does not attribute any specific significance to this fact, in itself, since all holes are points of stress concentration, namely, “region[s] of discontinuity in a structure where the stresses are higher than the average [load] P divided by the average area [A],” nor does the court find that it was negligence to have incorporated them into the design of the crown assembly. Indeed, it appears that the weld relief holes were necessary to avoid creation of other stress concentrations. Cf. TM, p. 2119. As originally designed, the crown assembly of the 1655 bulkhead centered on a solid plate of steel .179 of an inch thick. However, at the request of the defendant, the outboard panels on this plate delineated by the truss members were cut out to within approximately one inch of these members “with a view to eventual weight reduction .on the upper crown section” prior to static testing of a 1655 bulkhead in 1954 by the A. O. Smith Corporation. The plaintiffs, as set forth above, allege that it was negligence to have subsequently used bulkheads with the reduced webs when crack(s) developed during the static testing at approximately 75 percent of design ultimate load- — -the load which will break a structure. But the crack(s) which developed were in an external fillet weld at the top of the box assembly, and the plaintiffs have not proven that the reduction of the area of the web plate caused the craek(s). Compare photo 1731 contained in Exhibit 25 with page 7 thereof and TM, p. 2795. Then again, there is no contention that the crash of B-406 stemmed from that particular fillet weld. This is yet another case of extraordinary technological subtilization. B-406, a machine made up of untold numbers of component parts, was found in Maine in a shattered (and burned) condition by the investigators. Numerous parts fractured, resulting in myriad so-called fracture faces. Even the vertical fin, essentially anchored at only the three points heretofore described, left nevertheless numerous such faces when it tore away from the fuselage. Still, the scientists (and the lawyers) have melted down all of the fractures in this case to one through the butt weld and heavy members on the left-hand side of the crown of the 1655 bulkhead and, at least insofar as the plaintiffs are concerned, to what amounts to a speck in the fillet weld alluded to above. The defendant does not dispute the plaintiffs’ contention that there was a flaw in the fillet weld at or near the bottom of the forward weld relief hole below and immediately outboard of the left-hand fin attachment lug, and the court finds that the defendant could not dispute the contention since the record is replete with evidence supporting it. For example, Professor Charles Nash of the Department of Mechanical Engineering at the University of Maine examined the pertinent fracture face under magnification on January 29, 1963 and discovered what he characterized as a “definite flaw ... a very dark flaw.” Mr. Bennett testified at trial as follows with respect to his subsequent inspection of the fracture: Q . tell us what you observed on the part that was submitted to you. A ... I observed the marked similarity between the fracture in this assembly and that which I had examined two years previously which was reported to be from the Monticello, Utah accident. In each case there were chevron markings on the fracture surface which I felt gave me the opportunity to determine accurately the area where the fracture had started. On looking more closely at that area I realized that the detailed features at the origin weren’t similar to the Monticello accident exactly in that . . . I had observed a small fatigue crack at the origin of the Utah accident, and I didn’t observe any such feature at the origin of this fracture. When I say a fatigue crack I refer to what is known as a high cycle fatigue crack which has a characteristic appearance. However, in the origin area on the fracture from the Maine accident I did observe a discolored area which I believed to be a flaw that had existed prior to the time that the fracture had occurred. Q Would you describe the flaw to us? A Well, it was a dark area which had a surface texture quite different from the rest of the fracture face. It was irregular in outline. . . . But the outstanding feature was the dark surface layer which I interpreted to be an oxide layer, and the definitely different texture of the surface as compared with the remainder of the fracture face. Q Can you estimate the size of the flaw that you observed ? A . The depth of the flaw was about 500ths of an inch, somewhat longer than that on the surface . . . about a tenth of an inch. . . , In other words, he found what he considered to be a “welding defect” in the 1655 bulkhead crown of B-406 as opposed to what he considered to be a “fatigue crack” in plane 53-390. See TM, p. 590. See also id. at 726, 728, 729. Mr. Bennett further testified that he believed that the oxide formed when the bulkhead was originally heat treated and that it couldn’t have formed subsequent to the crash on January 24th and prior to his examination. Compare page 330 of the trial minutes with page 329. The court finds in view of this and other testimony that the flaw or discontinuity originated during the process of manufacturing by the Rohr Corporation. Rohr’s manufacture of the particular bulkhead in question here was carried out under the auspices of the defendant’s quality control personnel. But even if the fabrication of the part had been carried out completely independently, the defendant would still be responsible for any deficiency in it. See, e. g., Nicklaus v. Hughes Tool Co., supra; Boeing Airplane Co. v. Brown, 291 F.2d 310, 313 (9th Cir. 1961). The plaintiffs’ position is that the court “can infer negligence, for which the defendant is responsible, from the mere existence of th[e] defect.” Plaintiffs’ Brief, p. 10. Indeed, they produced no evidence at trial tending to detail the methods and procedures utilized by Rohr. As has been alluded to above, the plaintiffs are entitled to rely on such a position “if the facts and circumstances of the case raise a reasonable inference that the defendant must have been negligent,” but the mere permissibility of drawing such an inference does not necessarily make that inference decisive where inferences of a lack of negligence are equally permissible and of equal or greater reasonableness or where there is specific evidence tending to refute the plaintiffs’ inference. Cf. Montgomery v. Goodyear Aircraft Corp., 392 F.2d 777, 779 (2d Cir.), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); Trihey v. Transocean Air Lines, Inc., 255 F.2d at 827. The court finds that the existence of the flaw does give rise to a reasonable inference of negligence on the part of the defendant, but the court also concludes that it is not the most probable (and reasonable) inference and therefore it is not decisive in this case in view of the applicable standard of care. One point the plaintiffs sought to emphasize via Mr. Bennett as a witness in rebuttal to the defendant’s case is the “inherent variability” of east metal alloys, both in composition and mechanical attributes. The court finds that the homogeneity of weld metals is generally even less perfect and that this fact, combined with the inherent difficulty (if not impossibility) of drawing perfect weld beads under all circumstances, often results in welds with certain discontinuities. Thus, it is not only conceivable, but probable, that discontinuities will occur from time to time in weldments which have been made as carefully as is humanly possible. In short, the inference asserted by the plaintiffs is by no means more reasonable than an inference that Rohr (and the defendant) fabricated the bulkhead with reasonable care. The court, in fact, finds the latter to be more probable. Even if the standard of care for aircraft manufacturers is or ought to be as near to perfection as possible and failure to live up to this standard is negligence, the court is not aware that the standard is perfection. If this be true, then the court is unable to conclude that the defendant was negligent, that is, that the defendant failed to live up to a lesser standard of care, be it more-than-reasonable-eare or otherwise, in the fabrication of B-406. However, this fact does not exonerate the defendant under the concept of strict liability, which will be dealt with hereinafter. * * * In Noel v. United Aircraft Corp., 342 F.2d 232 (3d Cir. 1964), the Court of Appeals held, in effect, that the defendant propeller system manufacturer was under “a continuing duty” to improve the system after sale and delivery. See especially the various opinions with regard to the petition for rehearing, 342 F.2d at 240-244 (1965). The Court of Appeals for the Second Circuit has not found it “necessary to adopt the rule” of Noel. See Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d at 453. However, the court finds that the record in this case reflects an apparent assumption of such a continuing duty by the defendant, and the defendant’s conduct will therefore be measured against this duty with respect to the plaintiffs’ allegations of post-manufacture negligence. The NBS’s analysis of the crash of plane 53-390 in Utah was that it was caused by the fat