Full opinion text
MEMORANDUM MORTON, District Judge. This is a suit against the United States under the Federal Tort Claims Act arising out of an incident of air piracy which occurred on October 4, 1971. The hijacker commandeered a chartered twin-engined aircraft in Nashville, Tennessee, and holding his estranged wife, a male associate, and two pilots hostage, proceeded towards the Bahamas. The aircraft landed for fuel in Jacksonville, Florida, and was confronted by waiting agents of the Federal Bureau of Investigation. The agents refused the hijacker’s demands for fuel and ultimately disabled the aircraft by gunfire to prevent its departure. His plans frustrated, the hijacker took his own life, but not before killing his wife and the pilot. Charging negligence in the manner of FBI intervention, the pilot’s wife, hijacker’s daughter, and aircraft owner seek damages for wrongful death and injury to the aircraft. This case poses the important question of whether this tragic event of October 4, 1971, can provide the basis for a damage suit against the United States under the Tort Claims Act. For reasons hereinafter developed, the court holds it can, but that plaintiffs are not entitled to the relief sought. FACTS I During the mid-afternoon of October 3, 1971, George Giffe, Jr. called the office of Big Brother Aircraft, Inc. (hereafter “BBAI”) at Nashville Metropolitan Airport and inquired about chartering a flight to Atlanta, Georgia, later that evening. He received a price quotation for the proposed trip, but made no commitment. At approximately 5:00 p.m. that day, Giffe visited BBAI’s office and restated his interest in the charter, telling BBAI employees that he needed to leave Nashville around 1:00 a.m. the following morning with a business associate, drop him off in Atlanta, and pick up another passenger for the return trip to Nashville. While at the office, Giffe discussed his plans over the telephone with Randall Crump, the eventual co-pilot on the trip, and agreed to charter a Hawk Commander Aircraft numbered N9058N (hereafter “58 November”) for $417. Giffe paid a $200 deposit with two $100 bills and left, but made three additional visits to the BBAI hangar before arriving for departure shortly after 1:30 a.m. on October 4. During these subsequent trips, Giffe placed three pieces of luggage aboard the chartered aircraft — a small metal box, a black attache case, and a suit bag. In addition, he paid the balance due on the charter of $217, again utilizing $100 bills, asked about the aircraft’s range and baggage capacity, and sought to insure that the airplane would be ready for a 1:00 a.m. departure. After being notified that 58 November had been chartered for the flight to Atlanta, Randall Crump called fellow BBAI pilot Brent Downs and informed him of the charter scheduled for early the next morning. Crump was not pilot-in-command rated on the Hawk Commander and would therefore serve as co-pilot to Downs, who was a regular first pilot on this aircraft. The two pilots arrived at the airport by midnight and completed their preparations for the flight. An IFR (instrument flight rules) flight plan was filed for the round trip to' Atlanta and back to Nashville, and Downs issued fuel instructions to BBAI linemen. At approximately 1:00 a.m. Giffe drove his late-model Cadillac to a Nashville hotel and picked up his wife, who was just getting off work as cashier in the hotel dining room. With him was a short-time acquaintance, Bobby Wayne Wallace, whom Giffe had solicited to accompany the couple to the airport and drive Giffe’s car back to town after they departed on a flight to Atlanta. Susan Lakieh Giffe was separated from her husband, as she had been several times before in their often tempestuous marriage, and knew nothing about the upcoming flight. When told of the trip while en route to the airport she protested vigorously and demanded that she be taken home. But Giffe had other plans, and, if all went according to schedule, both he and his wife would be dead in the very near future. The three reached BBAI a little after 1:30 a.m., and Giffe parked his car a short distance behind the chartered aircraft. Leaving his two passengers in the front seat, he got out and walked to where Downs and Crump were standing. As he approached the pilots, Mrs. Giffe began screaming and was attempting to get out of the ear. Giffe, claiming to be a physician, told the pilots that the girl was a patient being transported to Atlanta for hospitalization. Crump expressed concern over flying the woman in her hysterical condition, and told Downs that the flight should wait until the police could check out the situation. Hearing this, Giffe pulled a gun and ordered the pilots, his wife, and Wallace to board the plane. All did so, and by this time Wallace was also holding a pistol. After a brief struggle between them, Giffe and his wife took seats in the rear of the aircraft, and Wallace took up a position directly behind the pilots. With Downs occupying the left front seat as first pilot and Crump the right as co-pilot, the aircraft taxied away from BBAI after receiving the flight plan and taxi clearances from airport ground control. While the aircraft taxied towards Runway 31, a BBAI employee who had witnessed the prior events rushed to a telephone and alerted the airport security police dispatcher to the situation. The control tower was notified and told to hold takeoff clearance, and two vehicles carrying security police were dispatched to intercept the aircraft prior to takeoff. As the vehicles converged on the aircraft at the approach end of Runway 31, Giffe ordered the pilots to make an immediate takeoff. Downs complied and, at 1:59 a.m. CDT, 58 November began its ill-fated journey. Once airborne, ground control instructed the pilot to “squawk” the hijack code, and to contact Memphis Center on an assigned radio frequency. The aircraft climbed to and leveled off at 13,000 feet, the cruising altitude specified in the IFR clearance, and headed towards Atlanta. The seating arrangement remained the same, with Giffe in the right rear seat, his wife in the left rear, and Wallace stationed generally behind the co-pilot but close enough to observe the pilots’ actions and to hear comments between them and radio transmissions to ground stations. The pilots did not utilize headsets to receive incoming radio transmissions, which meant that radio communications to the aircraft were broadcast through cabin speakers and were thus monitorable by all aboard. Ground controllers never requested that headsets be used, nor is there any direct evidence that Giffe or Wallace demanded they not be. However, Crump has indicated that Giffe wanted to hear what the pilots said to one another and presumably what was being said duripg radio communications. Giffe apparently had very little direct contact with the pilots, but employed Wallace to relay messages back and forth. Before departing Nashville Giffe informed his audience that he had brought on board 12% pounds of plastic explosives fused with a timing device which required resetting every ten minutes or so to prevent detonation. In referring to the threat of explosion, Giffe pointed to the small metal box which he had placed on the aircraft during one of his visits to the airport several hours before departure. According to Crump, Giffe declared that he was a member of the CIA with orders to carry out and he would destroy the aircraft should anyone attempt to interfere. Wallace apparently spoke rather casually with the pilots during much of the flight about matters other than the hijacking, and placed his pistol in the small of his back between his body and trousers. Giffe, on the other hand, apparently held his gun during most of the trip and also held in his lap the metal box which ostensibly contained the plastic explosives. The men had drunk a few beers together earlier in the evening, and during the flight Wallace drank one more while Giffe consumed a quantity of some other alcoholic beverage he found on the aircraft. A short while after takeoff, Downs and Crump began to ask whether Atlanta was to be the actual destination. Following one such inquiry, Wallace discussed the matter with Giffe and then asked the pilots what the aircraft’s range was with the fuel remaining. When told that sufficient fuel was available for the trip to Atlanta and back to Nashville, Wallace then asked whether the aircraft could make it to Jacksonville, Florida. Crump checked the mileage from the aircraft’s position near Chattanooga, Tennessee, and advised Wallace that the aircraft could make Jacksonville, but would have only about thirty minutes fuel remaining upon arrival. Following further discussion with Giffe, Wallace told the pilots to fly towards Jacksonville. Jacksonville weather and clearance to the new destination were received from Atlanta Center, and the aircraft altered course, climbing to a higher en route altitude of 17,000 feet. It was not until the aircraft was in the vicinity of Atlanta that either Wallace or Giffe expressed any concern over the possibility that ground controllers might be aware that 58 November was being hijacked. At this point, however, Wallace asked the pilots if the persons to whom they were communicating knew the situation, and Downs reportedly replied that they did and had known ever since the aircraft left Nashville. Further, Downs said that “someone” would be waiting for them at Jacksonville or wherever they landed. This statement prompted further discussion in the rear of the aircraft, and Wallace then inquired about Jamaica as an alternate destination. Downs indicated that the aircraft could not reach Jamaica, but that by refueling at Jacksonville the plane could reach Freeport, Bahamas. In addition to fuel, Giffe was informed that navigation charts and flotation gear would be needed for the overwater flight to Freeport, and that Downs could request these items be made available upon landing. Giffe apparently concluded that a stop in Jacksonville was necessary, and the following conversation took place between the pilots (P) and Jacksonville Center (ATC): P: Jax Centei', 58 November. ATC: 58 November, go ahead. P: All right, sir; we’ve got kind of unusual situation here, uh-uh, we’re going to need some fuel at Jackson and, uh, we can’t have anybody around except the fuel truck and the man fueling. Uh, nobody else in the area. We will need flotation gear and, uh, if there’s any way possible I need some charts and approach plates for Freeport. Yeah, we need jet fuel. And if you can’t, wish you could work out some kind of flight plan — vestor us to Free-port, and we need to make sure that there is nobody, and I emphasize that, nobody around the aii'plane except the fuel truck and the attendant. ATC: 58 November, Jacksonville copied it all, copied it all. P: All right. We need flotation gear. This is a, uh, this is an eight place aii'plane. Just make flotation gear for that will be sufficient. ATC: 58 November. Wilco. Wilco. P: Call me back on that if you can and let me know if there is going to be any delays at all in the fuel truck waiting on us when we get there. ATC: 58 November. Everything will be ready. Everything will be ready as specified. P: All right and, uh, all right, they say to clear the area for at least 200-300 yards around the airplane and make sure there is nobody around it. ATC: 58 November. Copied. Copied. P: Thank you, sir. P: Center, have another unusual request. Uh, two bottles of Scotch. ATC: 58 November. Understand. P: Chevas 12 if you can get it. And also on that routing I would prefer to stay over land as much as possible until we make the direct entry to Freeport there and if you could give me the mileage since I don’t have the chart-s I would appreciate that so I can kind of figure some fuel here. ATC: 58 November. Will work on that and advise. •X- * -X- # * -X P: Center, 58 November. We’d like an APU [auxilliary power unit] for a restart after we get there at Jacksonville. ATC: 58 November. Copy, APU. P: Roger. Soon after these requests were made and acknowledged, at approximately 4:45 a. m. EDT on October 4, 58 November began a descent for landing at Jacksonville. A few minutes later Jacksonville Center handed off radar control of the aircraft to Jacksonville Approach Control. After approach control issued heading instructions, the following remarks were exchanged with the pilot: P: 58 November. • Roger. Has our request been complied with ? T: We’re checking on it for you right now, sir. We’ve been advised by Aircraft Services that they’re trying to, attempting to get your request completed. P: Thank you. * * * * * * P: One three 0, 58 November. Y’all going to maintain clearance around the plane about 200-300 yards ? T: That information has been forwarded. P: Roger. The aircraft continued its descent and approach, and at approximately 5:05 a. m. EDT touched down on Runway 7 at Jacksonville International Airport. After landing, the tower issued taxi instructions directing the aircraft to a vacant parking pad adjacent to Air Kaman, Inc., a fixed base operator at the airport. While taxiing, the following conversation took place: P: Is the fuel truck here ? T: You say is it a fuel truck? P: I say is the fuel truck here ? T: Affirmative. ***** * P: OK. We’re going to turn it around and head it back out. T: You want to park right there, 58 November, for fueling? P: That’d be fine. T: OK. That’s fine. Right there. Park right where you’re at. P: 58 November. They are going to keep this area clear. Is that correct. T: That’s affirmative. As these transmissions were being made, 58 November had reached the designated parking area, made a 180-de-gree turn, and came to a stop, engines running, pointed down the taxiway just traveled. Looking outside, the airplane’s occupants saw an automobile parked nearby. II Special Agent Roger A. Myers of the Nashville office of the FBI became that agency’s first employee to learn of the hijacking when, at approximately 2:15 a. m. CDT on October 4, he was awakened at his home by a telephone call from Willis Walker, a security officer at Nashville Metropolitan Airport. Myers was informed that a few minutes earlier two men armed with guns had forced a female companion and two pilots onto a BBAI Hawk Commander aircraft and taken off for an unknown destination. In rapid sequence Agent Myers ihade numerous telephone calls to persons possessing pertinent information about the event, and by shortly after 2:30 a. m. CDT had transmitted the known facts to FBI regional headquarters in Memphis, Tennessee. In addition to the information he had received from Walker, Myers was able to tell Memphis personnel that one of the hijackers’ names was George Giffe and that the flight was en route to Atlanta, Georgia. Memphis agents were soon advised that 58 November was en route to Jacksonville, Florida, and, according to a clerk in the Memphis office, available information was telephonically communicated to the FBI’s night duty agent in Jacksonville at approximately 3:05 á. m. CDT. At that time 58 November was one hour away from its 5:05 a. m. EDT landing in Jacksonville. The person handling communications that morning in Jacksonville was Special Agent Russell J. Pardee. His initial notification of the hijacking came in a 3:55 a. m. EDT call from Carroll Bright, an FAA control tower supervisor at Jacksonville International Airport. Bright related that a twin-engine Hawk Commander aircraft carrying two men and a woman had been hijacked at gunpoint in Nashville, Tennessee, was expected to land at Jacksonville at 5:00 a. m. EDT, and after landing would be directed to the Air Kaman ramp. Pardee immediately called James J. O’Connor, Assistant Special Agent in charge of the Jacksonville FBI office, and relayed this information. O’Connor instructed Pardee to alert Special Agents Francis Burns, Dalton Mayo, James McBride, John Saalfield, and George Murphy, and have them meet him at the airport as soon as possible. By 4:30 a. m. EDT these five FBI agents were converging upon Jacksonville International Airport; except for Bums, it was to be each agent’s first response to an act of air piracy. O’Connor was the first to reach the airport when he arrived at Air Kaman in his personal automobile at approximately 4:50 a. m. EDT. He checked in with Pardee by telephone, and was advised that 58 November’s pilot wanted fuel upon landing, and a clearance of 200-300 yards maintained around the aircraft. The pilot had also requested over-water gear for eight people, navigation charts to Freeport, and two bottles of Chevas Regal scotch. By 5:00 a. m. Agents Burns and Murphy had arrived at the airport control tower in an FBI automobile. Leaving Burns in the tower to coordinate radio communications, Murphy drove to meet O’Connor as 58 November was making its final approach to Runway 7. Murphy met O’Connor at Air Kaman, and the two agents parked their Bureau vehicle, headlights out, just off the southeastern corner of the Air Kaman ramp and faced the hijacked aircraft which was now being taxied towards them. From their homes Agents McBride and Mayo proceeded first to the FBI office and secured a radio-equipped automobile and a telescoped .308 rifle. Their arrival at the airport coincided with that of 58 November and, upon directions from Burns in the tower, they made their way towards Air Kaman and parked behind a group of fuel trucks some 200 yards to the northeast, or right-front of 58 November which had just come to a stop on the ramp facing north. It was now approximately 5:15 a. m. EDT. Ill Following his initial transmission of data to FBI agents in Memphis at 2:30 a. m. CDT, Agent Roger Myers continued his efforts in Nashville to gather information pertinent to the hijacking. His most valuable sources of information during this period were Major and Mrs. Joseph Lakich, parents of the hijacker’s wife. They had known George Giffe for several years, and during the course of telephone conversations on the morning of October 4, Myers learned from the Lakiches that Giffe frequently carried a pistol, and had spoken at times of an association with the mafia; that Giffe and their daughter had a long history of marital difficulty; and that Giffe had told Mrs. Lakich the preceding day he planned to leave the country. In their opinion, Giffe was a psychopathic liar and neurotic, and coupled with an expressed concern for the safety of their daughter was the advice that the FBI should use caution in handling Giffe. After speaking with the Lakiches, Myers called the Memphis FBI office again at approximately 3:45 a. m. CDT, and related the substance of his conversations to Agent Thomas Isely. For unknown reasons, these revealing observations about George Giffe never reached O’Connor at the Jacksonville International Airport. Isely testified that he telephoned Myers’ message to the Jacksonville FBI office at approximately 4:00 a. m. CDT. Pardee, on the other hand, has stated that the call he received from Memphis at approximately 5:00 a. m. EDT included only such information as a brief description of the two armed hijackers and their female hostage, that one of the hijacker’s names was “Giffe,” and that the woman dragged aboard the aircraft in Nashville was Giffe’s wife with whom he had been having marital difficulty. This was the information which Pardee radioed to O’Connor shortly after 5:00 a. m. EDT, and thus O’Connor was somehow deprived of a potentially valuable insight into the man he was about to confront. IV It was probably O’Connor and Murphy who the occupants of 58 November spotted as the aircraft taxied to a halt on the Air Kaman ramp. P: . . What’s the car sitting back off to our right? T: It’s just an airport vehicle as far as I know, sir. P: Does he have a radio in it ? T: Say again, 58 November. P: Can you have it moved away from over there, maybe have Air Kaman find someone. T: 58 November? P: Yes. T: 58 November. This is the FBI speaking. Cut your engines. With this statement from Agent Burns in the tower, the FBI assumed command of the hijacking at approximately 5:15 a. m. EDT. Burns was the only agent in direct radio communication with the hijacked aircraft; through a separate radio hookup he relayed messages to and received instructions from O’Connor. As 58 November taxied towards Air Kaman, O’Connor radioed Burns that the pilot’s requests for fuel and other items would not be granted. To his other agents, O’Connor remarked that this would be a “waiting game.” Burns relayed the fuel decision to the aircraft in the course of the following conversation: P: 58 November. This is the captain speaking. We’re going to cut the engines and we’re gonna need some fuel but I request that everyone stay away. T: 58 November. Advise when your engines have been cut. T: 58 November? P: This is 58 November. Uh, this gentleman has about 12.5 pounds of plastic explosives back here, and (pause) uh, I got no (pause) uh, yen to join it right now so I would please expr, uh, appreciate it if you would stay away from this airplane. T: That’s a roger, 58 November. Are your engines cut? P: Negative. T: Standby. P: Where’s the fuel truck ? T: 58 November? P: 58 November. Go ahead. T: This is the FBI. There will be no fuel. Repeat. There will be no fuel. There will be no starter. Have you cut your engines ? P: Uh, look, I don’t think this fellow’s kiddin’ — I wish you’d get ■ the fuel truck out here. T: 58 November. There will be no fuel. I repeat. There will be no fuel. P: This is 58 November. You are endangering lives by doing this, and uh, we have no other choice but to go along, and uh, uh, for the sake of some lives we request some fuel out here, please. T: 58 November. What is the status of your passengers? P: Ah, uh, well, they’re that’s what you mean. okay, if T: Are they monitoring this conversation ? P: Yes, they are. T: Do you have two passengers aboard ? T: 58 November. What’s your present fuel status on that aircraft? P: We’re down to about thirty minutes. T: 58 November. The decision will be no fuel for that aircraft. No starter. Run it out, any way you want it. Passengers, if you are listening — the only alternative in this aircraft is to depart the aircraft, to depart the aircraft. Crump recalls that Giffe, upon hearing that refueling would not be permitted, said “Let’s get out of here,” or made a statement to that effect. The pilots made no attempt to comply with this instruction, and one or the other told Giffe that the aircraft could not take off from its position on the ramp, and that at any rate the plane would be unable to go anywhere with only 30 minutes of fuel remaining. A few moments later Crump requested that he be allowed off the aircraft to negotiate for fuel. Giffe assented, and the left engine was shut down to permit a safe deplaning. As the co-pilot was preparing to depart, the hijacker, belying a new and strangely quiescent mood, pointed to the metal box in his lap and said, “I’ll blow the airplane up.” Crump then exited 58 November shortly before 5:25 a. m. In the tower, Burns observed Crump’s departure. T: 58 November? P: Yeah. T: Did someone deplane from your aircraft ? P: That’s affirmative. The copilot. Crump proceeded to the rear of the aircraft and was met immediately by O’Connor and Murphy. He identified himself as the co-pilot, and after a brief exchange of remarks was placed in Murphy’s car. There is some dispute as to what information was supplied by or elicited from Crump during this conversation. He remembers saying or being asked very little about the situation inside the aircraft, and his principal recollection was of being told by O’Connor that the existence of explosives aboard the aircraft was a “bunch of malarky.” O’Connor, on the other hand, relates that Crump told him there had been drinking aboard the aircraft, the woman had been hysterical but was now quiet, both hijackers were armed, and he feared Giffe would force Downs to take off due to the delay. In any event, the court finds that O’Connor did not attempt to solicit information descriptive of the mental state of Giffe or his supposed accomplice. Crump was told he could not return to the aircraft, and Burns relayed this decision. T: 58 November? P: [inaudible reply] T: The copilot is in the car and will not return to the aircraft. He will not return to the aircraft. According to Wallace, Giffe became excited upon hearing this transmission, and again made the statement that if they didn’t get fuel he would blow up the aircraft. Wallace then suggested that he get off to see about getting fuel, and after an initial refusal, Giffe consented. It was a minute or two before 5:30 a. m. EDT when Wallace left the plane and walked toward O’Connor and Murphy. He was quickly disarmed, arrested for air piracy, and placed spreadeagled on the ground behind the aircraft. In accordance with customary procedures, O’Connor had little or no discussion with Wallace subsequent to his arrest, but Wallace did apparently manage to say that he had come out to negotiate for fuel and that Giffe had been drinking, was upset, and appeared desperate. At this point, which would have been approximately 5:30 a. m. EDT, or some 15 minutes after 58 November reached Air Kaman, O’Connor decided that the aircraft would be disabled to prevent departure. First, leaving Murphy with Wallace, he walked back to his car and radioed Agents Mayo and McBride to position their automobile directly in front of the aircraft so as to block its avenue of escape down the taxiway. Following this transmission, he returned to Wallace and instructed Murphy to move up and shoot the aircraft’s right tire. Murphy walked up to within ten feet of the right landing gear, fired two bullets into the tire, and came back to where O’Connor stood guard over Wallace. After their initial stop behind the gasoline trucks, Mayo and McBride moved their car west of the trucks to an improved vantage point approximately 400 feet from the aircraft. Mayo remained in the car to receive radio communications and McBride got out and moved several feet away to view the aircraft through his rifle scope. He heard O’Connor’s blocking instruction and, as he ran back to the car, heard what sounded like two “muffled” shots. The two agents drove quickly around to the Air Kaman taxiway and stopped, headlights on bright, at a point about 50 feet in front of and facing the aircraft. As they arrived, O’Connor was approaching the aircraft from the rear; the left engine was stopped but the right was still running and making considerable noise. McBride hurried to a position approximately 25 feet away from the left side of the forward section of the fuselage to provide coverage for O’Connor, who by now was making his way along the right side of the aircraft towards the cockpit. As he surveyed the scene, McBride observed the pilot, wearing a headset, sitting almost motionless except for a slow turning of his head towards the left and then back to the front. Mayo took up a station to the right and front of the aircraft, slightly forward of the cockpit, and saw O’Connor appear to take a quick look in the right cockpit window, and then proceed in a crouched position around the nose of the aircraft shouting out his identity and instructing the occupants to come out. As he rounded the nose O’Connor heard two shots ring out from within the aircraft as bullets pierced the windshield above his head. As O’Connor continued on towards the door of the aircraft, McBride heard three to four more shots and simultaneously saw the pilot slump over to his right and out of view. Curiously, O’Connor did not hear this next sequence of shots from his position adjacent to the door, and he proceeded to take his revolver and fire two rounds into the aircraft’s left tire. O’Connor then returned to the right side of the aircraft and was met by McBride. Acting on O’Connor’s instructions, McBride fired two rounds from his rifle into the forward section of the right engine. O’Connor explained that he wanted the engine silenced to permit communication with the hijacker and, more importantly perhaps, to further insure that the aircraft could not be moved, since he had observed no deflation in either tire which had been shot. Spewing fuel, the engine stopped running and O’Connor walked back to the left side of the aircraft, again shouting his identity and ordering the occupants out. As he approached the door he heard a groaning sound, and looking inside saw that the pilot and woman passenger were apparently dead and the hijacker alive, but mortally wounded. At approximately 5:34 a. m. EDT, or some 19 minutes after the FBI assumed control of the incident, the flight of 58 November was over. THEORIES OF RECOVERY-DEFENSES Plaintiffs Mrs. Brent Quinton Downs, widow of Brent Quinton Downs, and Major and Mrs. Joseph S. Lakich, as legal guardians and adoptive parents of Susan Germaine Lakich, minor child of Susan Germaine Giffe, deceased, sue the United States to recover for the wrongful deaths of their respective decedents. Each action is founded upon allegations of negligent conduct by government employees during this incident of hijacking, with particular emphasis being placed on the decisions and actions of Agent James O’Connor. Plaintiff BBAI, a Tennessee corporation engaged in the business of fixed base operations and the owner of 58 November on October 4, 1971, sues the Government on a theory of trespass to chattels for damages resulting from the shooting of the hijacked aircraft by FBI agents. The Government interposes numerous defenses to plaintiffs’ claims. Principal among these is the assertion that the allegedly wrongful acts occurred during the performance of a discretionary function and are therefore exempted from Tort Claims Act coverage by 28 U.S.C. § 2680(a). In conjunction with this defense, the Government argues that the individual FBI agents would be immune from personal liability in this case, and the United States is therefore likewise immune under the Act’s doctrine of respondeat superior. Other defenses raised by defendant are that plaintiffs Downs and Lakich failed to file proper administrative claims prior to instituting this action; that these plaintiffs are improper claimants under the Florida Wrongful Death Act; that the FBI agents were not guilty of negligence; and that at least a portion of the BBAI claim is precluded by the interference with contract rights exemption of 28 U. S.C. § 2680(h). In addition to the above, the Government contests the measure of damages claimed by plaintiffs as allowable under the Florida Wrongful Death Act. In the event of liability, the Government has filed third party complaints which seek indemnity and/or contribution from plaintiffs Downs and BBAI on the basis of alleged contributorily negligent acts or omissions by the deceased pilot and other BBAI officers and employees. The Tort Claims Act renders the United States liable for its employees’ torts “in accordance with the law of the place where the act or ommission occurred.” 28 U.S.C. § 1346(b); see generally, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The rights of the parties are therefore to be determined in reference to the law of Florida, the place where both the allegedly wrongful acts and their operative effects took place. As previously adverted to, the court shall find that plaintiffs have failed to establish negligence or actionable trespass on the part of the United States through its employees. Nevertheless, in order to achieve a complete resolution of all issues presented and for thé sake of judicial economy, the court has included in this opinion its findings on the issue of damages. ADMINISTRATIVE CLAIMS The Government has moved to dismiss the Downs and Lakich cases on the ground that the administrative claims filed in these actions do not comply with the requirements of the Tort Claims Act. The Act, in 28 U.S.C. § 2675(a), makes the filing of an administrative claim a prerequisite to maintaining a civil action against the United States. The claim must be filed and denied, either expressly or by failure of the Government to take action within six months, before suit may be commenced. . The regulations implementing the administrative claim requirement, 28 C.F. R. § 14.1, et seq., provide in pertinent part: “§ 14.3 Administrative claim; who may file. -X- -X- * * -X- * “(c) A claim based on death may be presented by the executor or administrator of the decedent’s estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law. •X- * -X* * -X- -X- “(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.” Initially, the Government asserts noncompliance with subparagraph (e) of this requirement. The claims were first presented to the involved federal agencies in letter form on October 15, 1971. This letter, signed by plaintiffs’ attorneys, set forth the plaintiffs’ names, a brief description of the acts upon which the claims were based, and the amount of damages sought in each of the three cases. By telegram and supporting letter, the Department of Justice notified plaintiffs’ attorneys that the purported claims did not satisfy the requirements of 28 C.F. R. § 14.3(e) since they were not accompanied by evidence of the attorneys’ authority to act in a representative capacity for the plaintiffs. Enclosed with the Government’s letter were copies of Form SF-95, the standard claim form, for use in resubmission of plaintiffs’ claims. These forms were completed, signed by the individual claimants,- and returned to the Government together with authorization from Mrs. Downs and the Lakiches for their attorneys to act for them in the case. Plaintiffs, through their attorneys, also specifically requested to be advised should the claims be found to be invalid for any other reason, but received no further communication from the Government. Considering these documents, the court finds that plaintiffs provided ample evidence of their representatives’ authority to present claims on their behalf. As a further defect in the Downs case, the Government apparently contends that Mrs. Downs’ capacity, as set forth in her administrative claim, is not that in which she commenced suit or at least is not a capacity in which she is entitled to the relief sought under the Florida Wrongful Death Statute. This raises the question of what detail is required to fulfill the administrative claim requirement. A principal purpose of this requirement, as reflected in the legislative history of the 1966 amendment, is to establish a means of efficiently settling meritorious accident claims without resort to expensive and time-consuming litigation. To effect this purpose the Government needs notification of an accident, the amount of damages sought to be recovered, and sufficient factual information to enable the appropriate federal agency to conduct an investigation to determine if the claim justifies settlement. The plaintiffs’ claims provided information sufficient to enable the Government to investigate the incident, weigh the merits of the claims, and to effect attempts at prelitigation settlement, if desired. So advised, it will not do for the Government to import into the administrative claim • process a requirement that these claimants have anticipated and resolved in their claims every potential obstacle to a successful action under the Florida Wrongful Death Act. The sufficiency of the administrative claims should also be viewed against the background of the Tort Claims Act itself. Given the remedial nature of the Act, there has been said to exist a “judicial unwillingness to permit the United States to stand on technicalities once a claim has been filed.” Locke v. United States, 351 F.Supp. 185, 187 (D. Hawaii 1972). In essence, this is what the Government attempts to do here. The court finds no merit whatever in this defense, and holds that the administrative claim requirement has been satisfied in this case. WRONGFUL DEATH CLAIMANTS Section 768.02 of the Florida Statutes, F.S.A., sets forth, in order of preference, the classifications of persons who possess the cause of action for another’s wrongful death. The Florida courts have consistently held that the nonexistence of persons in a higher, or perferred, class is substantive to the plaintiff’s cause of action. E. g., Love v. Hannah, 72 So.2d 39 (Fla.1954); Benoit v. Miami Beach Electric Co., 85 Fla. 395, 96 So. 158 (1923); Louisville & N. Ry. Co. v. Jones, 45 Fla. 407, 34 So. 246 (1903). The Government contends that neither Mrs. Downs nor Susan Lakich qualifies as the proper wrongful death claimant, and that consequently each of their actions must be dismissed. “Every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed The Downs Case Mrs. Downs instituted suit for herself as executrix of her husband’s estate and as next friend of two minors, and the defect found by the Government is the existence of a higher category of claimant, namely, Mrs. Downs as widow. This defense would hardly seem to warrant comment were it not for the rather narrow construction traditionally given § 768.02 by Florida courts. Plaintiff denies that Mrs. Downs’ suit would not be entertained in a Florida court as filed, but at any rate moved at trial to amend the complaint to reflect Mrs. Downs’ capacity as widow. The Government, citing Rule 82, Fed.R.Civ.P., opposes the amendment, apparently on the basis that to allow such would alter the jurisdictional requirements of § 768.02 and thereby exceed the jurisdiction of this court. Therefore, two questions are presented in reference to Mrs. Downs’ capacity as the proper party plaintiff: Is her complaint sufficient under § 768.02 as filed? If not, would her requested amendment be granted under Florida law? Initially, it seems likely that the defect found by the Government in the style of the case is thereafter cured in the description of parties section. As stated in Benoit v. Miami Beach Electric Co., supra, 96 So. at 159, “ . the declaration, in order to show a cause of action, should affirmatively show the nonexistence of any other person having a precedent right of action over the plaintiff . . . . ” (Emphasis supplied.) This language clearly implies that a plaintiff’s status as the preferred claimant need be alleged somewhere. in the complaint or initial pleading, of which the style is only a part. Although Mrs. Downs is designated as “executrix” in the style of her complaint, the description of parties section denotes that she is the widow of Brent Downs. Thus, since her complaint, taken as a whole, does allege the nonexistence of any preferred class of plaintiff, it would appear that the requirements of § 768.02 have been met. In addition, ample proof of Mrs. Downs’ status as widow was adduced during the course of trial. Nevertheless, even if this matter must be resolved in reference only to Mrs. Downs’ designation in the style of her complaint, the court concludes that the alleged defect does not call for dismissal. It is true that Florida courts have traditionally construed § 768.02 rather strictly. As might be expected, most of the decisions considering a challenge to the plaintiff’s standing involved situations where there was in existence at the time of decedent’s death a person other than the plaintiff with a preferred status under the wrongful death statute. For instance, a person claiming as one dependent upon the deceased for support would have no cause of action if the deceased died leaving a spouse. The reasons underlying the strict application of statutory priorities are obvious; the Florida courts have taken care to insure that the individual who recovers for another’s wrongful death is that person the legislature intended to receive compensation. The Downs situation is somewhat unique in that the person of preferred status under the statute is the one who brought suit, but styled as one of a subordinate class of claimants. Although it would seem logical to overlook the defect since in either event the person intended by the legislature to seek recovery is doing so, the Government points out that Florida courts have been strict enough in their interpretation of § 768.02 to deny recovery in situations similar to the instant case. Benoit v. Miami Beach Electric Co., supra, is such an example. There, the deceased’s mother brought suit as administratrix of his estate. At the time of death her son was unmarried, had no children, and contributed a portion of his mother’s support. Plaintiff’s action was dismissed since as one dependent upon the deceased for support she occupied a preferred status above her capacity as administratrix. Benoit is similar to the situation in Downs in that the person of a preferred class under the statute whose nonexistence was not alleged was the same person who brought suit, but as one of a lesser priority. The case is the only one cited by the Government which carried the literal interpretation of § 768.02 to such an extreme, but the general philosophy is to be found in numerous other cases. See, e. g., Love v. Hannah, supra; Holland v. Hall, 145 So.2d 552 (Fla.App.1962). Plaintiffs contend that more recent cases reflect a disposition of Florida courts to take a more liberal approach to the issue of proper claimants under § 768.02 in order to achieve the remedial purposes of the Wrongful Death Act. In 1972 the Florida legislature enacted a new wrongful death statute under which Mrs. Downs’ standing here would not be questioned, and plaintiff claims that the later, more liberal interpretations of § 768.02 by the Florida Supreme Court gave rise to the new statute and should control the instant case. Of principal significance in this regard are Garner v. Ward, 251 So.2d 252 (Fla.1971) and Powell v. Gessner, 231 So.2d 50 (Fla.App.1970). The facts in Garner were as follows. Decedent had been married twice, and at the time of his death had children by his first marriage dependent upon him for support. His surviving spouse brought the wrongful death action, and his first wife sought to intervene individually and on behalf of the dependent minor children. The trial court denied intervention and the decision was upheld upon appeal. The Florida Supreme Court reversed, and allowed the divorced wife and dependent minor children to participate as plaintiffs together with the deceased’s second wife. The court condemned the harsh results which had frequently been brought about by strict interpretations of § 768.02, and noted that “ . . . the primary purpose [of the wrongful death statute] is to create a cause of action for wrongful death, and secondarily to specify who may bring the action to implement the greater purpose.” Garner v. Ward, supra, 251 So.2d at 256. The court found it clear that the wrongful death action was designed to protect the family and dependents of an individual in event of wrongful death, and stated that the intent of a statute susceptible of more than one construction- controls over a strict interpretation which would defeat the statute’s purpose or achieve absurd results. In the case before it, the Garner court then found that the legislature could not have intended that the deceased’s minor dependent children, who would have benefited by their mother’s recovery, should be deprived of their statutory rights merely because their mother and father were divorced. In Powell v. Gessner, supra, the father of a deceased son, upon whom the father was dependent for support, was given preference in bringing a wrongful death action over the deceased’s minor children who had been adopted by others prior to their father’s death. The holding was a departure from traditional decisions since, under a strict interpretation of § 768.02, minor children of a deceased have a superior right of action over dependents, regardless of whether the children were adopted by others prior to the natural parent’s death. The Powell court reasoned that the legislative history of § 768.02, reflected that a minor child’s priority over one dependent for support presupposes the existence of a normal parent-child relationship, not one in which the family relationship has been ruptured through adoption or divorce. Unlike the normal family relationship, an adopted child is not financially dependent upon its natural father following adoption, nor is the child then entitled to support from its natural father under Florida law. In such a case, the court found that a literal application of § 768.02 would deprive the decedent’s parents, who were dependent upon him for financial support, of their cause of action — a result which the court found the legislature would not have intended had it envisioned the situation. The Government argues that the liberal approach of Garner and Powell is inappropriate in the instant case since those decisions are restricted to situations in which the fundamental family relationships contemplated by the legislature have been destroyed through divorce and adoption. Evans v. Atlantic Cement Co., 272 So.2d 538 (Fla.App. 1973) is cited in support of this contention. Evans was itself a liberal interpretation of § 768.02, holding that a decedent’s dependent children by a common law marriage could participate in a wrongful death action along with decedent’s legal wife and children. However, the Government relies upon Evans’ statement, referring to Garner, that “we believe the literal wording of the statute to be still applicable where fundamental family relationships still obtain.” Id., at 541. Despite this purported restriction, the court concludes that, under the Garner rationale, the technical defect raised by the Government is not sufficient to warrant dismissal of the complaint in the Downs case. First, Garner makes it clear that the harshness of strictly applying § 768.02 ought to be avoided in cases where the obvious intent of the legislature would otherwise be frustrated. Garner sought to avoid absurd results, and to deprive Mrs. Downs of her cause of action in the instant case on the basis of the alleged defeet would be, in the court’s opinion, absurd. Secondly, since Garner went so far as to permit persons of a subordinate class of claimants to participate in a wrongful death action with other persons of a higher class, it seems reasonable to conclude that the Garner court, notwithstanding its immediate concern with disrupted family circumstances, would have permitted suit by a person of the highest statutory priority who inadvertently sued as one of a lesser class. This result would certainly require a less liberal approach to § 768.02 than that which the Garner court actually took, and it is not inconsistent with the Evans view that the literal wording of the statute is still applicable where fundamental family relationships still exist. Evans says no more than, except where family relationships have been disrupted in a way unforeseen by the legislature, courts will still apply the statute literally to insure that the cause of action vests in the proper statutory claimant. In other words, the continuing concern involves different persons in different classifications, not the same person in two separate categories. When it is obvious that the plaintiff is the preferred claimant for another’s wrongful death, then technicalities should not provide an obstacle to pursuing the cause of action. Accordingly, the court holds that the complaint in the Downs action complies with the requirements of the Florida Wrongful Death Act in respect to Mrs. Downs’ right to maintain this action. However, even were this not so, the court further finds that plaintiff’s motion to amend the complaint so as to reflect in the style Mrs. Downs’ identity as widow should be granted. Gamer held that “[a]ny person may at any time be made a party if his presence is proper to a complete determination of the cause.” Garner v. Ward, supra, 251 So. 2d at 257. See also, Hall v. Louisville & N. R. Co., 157 F. 464 (C.C.N.D.Fla. 1907). Furthermore, apart from the Florida courts’ characterization that the nonexistence of persons in a higher § 768.02 classification is substantive, under Rule 15, Fed.R.Civ.P., this court is empowered to grant an amendment amounting to a mere change in the description of a party which does not prejudice the defendant’s case. Longbottom v. Swaby, 397 F.2d 45 (5th Cir. 1968). The Lakich Case In this case the parents of a decedent are suing on behalf of their granddaughter whom they adopted subsequent to her mother’s death. Once again, the Government claims that the situation is one of an improper wrongful death plaintiff, and that under either of two theories recovery is impermissible. First, it is said that if the child’s status under § 768.02 is determined at the time suit is filed, then the action is barred under Powell v. Gessner, supra, since she had been adopted then. As a part of this argument, the Government reads Powell as barring an adopted child’s suit for the wrongful death of a natural parent, regardless of whether adoption occurred before or after the parent’s death. Alternatively, the Government contends that if the child’s status is determined at the date of the mother’s death, then the cause of action belonged to either the administrator of the mother’s estate, the father, who outlived the mother by a few seconds, or the administrator of his estate. It is clear under Florida law that the status of a child’s right to sue for the wrongful death of a parent is determined at the parent’s death. Powell v. Gessner, supra; Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938). Therefore, if the Government’s first theory has any merit, it must be found in the contention that adoption of a child after its parent’s death bars suit by the child for the parent’s wrongful death. This is a novel argument indeed, and it formulates an interpretation of Powell v. Gessner which the court fails to discern. Powell stands for the proposition that dependents of a decedent occupy a higher priority under § 768.02 than do natural minor children of the decedent adopted by others prior to the parent’s death. But here, the adoption not only occurred aft-' er the parent’s death, but it was also the very act sued upon which made the subsequent adoption necessary. As pointed out by plaintiffs, the Government’s position would require every minor child of deceased parents to remain an orphan in order to retain a cause of action for wrongful death. The subsequent adoption might conceivably affect the measure of damages, but it certainly does not destroy the cause of action itself. Since adoption of the Giffe child by her grandparents does not disqualify her under § 768.02, the Government’s second theory must fall if the child is not preceded by any other preferred statutory claimant. The Government suggests that the administrator of the mother’s estate, the father, or, since the father had died, his personal representative, all have priority. That none of these persons would qualify as plaintiffs in this case is apparent from the Florida Wrongful Death Act itself. First, under § 768.02 the mother’s administrator is a subordinate claimant to the mother’s minor child whose cause of action, as found above, has not been destroyed by her adoption. Secondly, under no circumstances would the father’s personal representative be a proper claimant under § 768.02, which provides that: “ ... In case of the death of any person solely entitled, or of all the persons jointly entitled to sue, before action brought or before the recovery of a final judgment in action brought by him or them, the right of action or the action as the case may be, shall survive to the person or persons next entitled .to sue under this section ft Therefore, assuming that George Giffe, who momentarily survived his wife, ever had a cause of action for his wife’s wrongful death, upon his death the right survived to his minor daughter, not to the administrator of his estate. It might also be worthwhile to note in this regard that George Giffe could not have maintained this wrongful death action against the Government had he survived his self-inflicted wound. This is so because Florida, as do most states, adheres to the philosophy that one should not be allowed to profit financially by his wrong. This principle is codified in § 731.31 of the Florida Statutes, F.S.A., which prohibits a murderer from inheriting from his victim, or from taking any portion of the deceased’s estate as legatee or devisee. All death benefits pass through the murderer as though he had died during the decedent’s lifetime. Florida has applied this principle in denying a wife the life insurance proceeds of her husband who she allegedly murdered, and this result would undoubtedly extend to bar a murderer’s wrongful death action based upon his victim’s death. The right of action, if any, would pass to the next preferred claimant who, in this case, is the murdered wife’s minor daughter. Though not raised by the Government, there remains for brief disposition the question of whether the doctrine of inter-spousal immunity poses a bar to suit in this situation. Assuming, for instance, that spousal immunity would have prevented Susan Lakich Giffe from suing her husband for his tort, then is their child subject to the same disability, and if so, does the immunity extend to the United States, in essence an alleged joint tortfeasor with the father? The rule in Florida apparently is that inter-spousal immunity does not bar suit by a child against the father for the wrongful death of the child’s mother. Shiver v. Sessions, 80 So.2d 905 (Fla.1955). Shiver, which involved a wrongful death action by a child against the estate of its father who had murdered the child’s mother, stated that not only did the traditional reasons for spousal immunity no longer exist, but also that the Wrongful Death Act creates a separate cause of action in specified parties for injury to them occasioned by the decedent’s wrongful death. Further, even were the father immune from suit by his child, the United States would not be since Florida apparently follows the general rule that a joint tortfeasor will be liable for his own tortious conduct notwithstanding the immunity of the spouse who joins with him in producing an injury. See, May v. Palm Beach Chemical Co., 77 So. 2d 468 (Fla.1955); Prosser, Torts, at 868 (4th Ed. 1971). DAMAGES In Florida, damages for death by wrongful act arise under two distinct statutory rights of action. The Wrongful Death Act, §§ 768.01, 768.02, Florida Statutes, F.S.A., is patterned after the English “Lord Campbell’s Act” and creates in certain beneficiaries a cause of action for damages they sustain by reason of the decedent’s death. A separate right of action exists under the Survival Statute, § 46.021, Florida Statutes, F.S. A., which revives in a decedent’s personal representative the cause of action which the deceased could have brought had he survived his injury. In this instance, the representative may recover on behalf of the estate what the deceased could have recovered in his action, and includible are such elements as the deceased’s pain and suffering, medical and other expenses necessitated by the injury, and earnings lost between the dates of injury and death. A person entitled to sue under both statutes may bring a combined wrongful death-survival action and thereby be afforded a complete recovery of damages in a single proceeding. The measure of damages in a widow’s wrongful death action has been set out to be: “(1) Her loss of the comfort, protection and society of the husband in the light of all the evidence in the case relating to the character, habits, and conduct of the husband as such. (2) The marital relations between the parties at the time of and prior to his death. (3) His services, if any, in assisting her in the care of the family. (4) The loss of support which the husband is legally bound to give the wife, which is based on his probable future earnings and other acquisitions. (5) The station in society which his past history indicates that he would probably have occupied and his reasonable expectations in the future, such earnings and acquisitions to be estimated upon the basis of the deceased’s age, health, business capacity, habits, experience, and energy, and his present and future prospects for business success at the time of his death— all of these elements to be based upon the probable joint lives of the widow and husband. (6) She is also entitled to compensation for loss of whatever she might reasonably have expected to receive in the way of dower or legacies from her husband’s estate in case her life expectancy be greater than his — the sum total of all these elements to be reduced to a monetary value, and its present worth to be given as damages.” Dina v. Seaboard Air Line Ry. Co., 90 Fla. 558, 106 So. 416, 417 (1925). Although damages are measured by the loss to the statutory beneficiary personally, the Florida- courts have construed § 768.02 to include as an element of damages recoverable by a widow with a minor child or children-fathered by deceased the loss of financial support and care and attention that her husband would have provided the children during the period of their minority. Director General of Railroads v. Into, 83 Fla. 377, 91 So. 269 (1922); Slaughter v. Cook, 195 So.2d 6 (Fla.App.1967). The Florida cases are a bit confusing on the question of whether a decedent’s lost future earnings and estate are proper elements of recovery in a wrongful death action. It is well settled Florida law that an administrator suing under § 768.02 is entitled to recover “the present value of the prospective earnings and savings which the evidence indicates the decedent could reasonably have expected to have accumulated during his life expectancy . . . and to have left to his heirs or beneficiaries at his death.” Hardison v. Threets, 241 So.2d 694, 695 (Fla.App.1970), rev’d. on other grounds sub nom Threets v. Hardison, 255 So.2d 267 (Fla.1971), citing Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 So. 755, 757-758 (1908); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1945). It has not always been made clear, however, whether such an award may be claimed by the statutory beneficiaries of higher priority, i. e., surviving spouse, minor children, or dependents. Plaintiffs rely on Hardison v. Threets, supra, in contending that Mrs. Downs and Susan Lakich are entitled to recover their decedents’ lost future earnings. While Hardison is miscited for this proposal since suit there was by a father as administrator of the estate of his deceased minor son, the Florida Supreme Court in Dobbs v. Griffith, 70 So.2d 317 (Fla.1954) apparently did approve a widow’s recovery of her husband’s prospective earnings in a combined suit brought by her as widow and administratrix under the wrongful death and survival de