Full opinion text
OPINION CAFFREY, Chief Judge. I. INTRODUCTION All of the above-captioned cases arise out of the tragic crash of a Delta Airlines, Inc. (Delta) DC-9 twin-engine jet airliner at approximately 11:08 a. m., July 31,1973, at Logan Airport, Boston, Massachusetts. The aircraft, which was identified as Delta Flight 723 (hereafter D 723) was scheduled to fly that morning from Burlington, Vermont to Logan Airport. It made an unscheduled stop at Manchester, New Hampshire, and then flew from Manchester to Boston. In attempting to effectuate an Instrument Landing System (ILS) ap-proach at Runway 4-R at Logan Airport, the aircraft smashed into a seawall along the edge of the airport. The elevation of the runway is 16 feet above sea level, and the elevation of the ground at the point of impact with the seawell is 11.45 feet above sea level. The aircraft impacted 4153 feet short of the so-called ILS touchdone point, and about 165 feet to the right of the center line of the runway. The wreckage of the aircraft was scattered along a magnetic heading of 017° in an area 250 feet wide and 790 feet long. The heading of Runway 4-R is 035°. All 89 persons aboard the aircraft died as a result of the crash. A large number of lawsuits were filed against Delta by representatives of the estates of the 82 passengers: Delta, in turn, commenced litigation charging the United States with liability premised on the alleged negligence of various air traffic controllers employed at Logan Airport. Additional suits were filed directly against the United States on behalf of the estates of all members of the crew of D 723, as well as a suit on behalf of the estate of Joseph E. Burrell who was occupying the jump seat in the cockpit of this aircraft. Litigation is still pending between the Burrell estate and Delta to determine whether his status at the time of the crash was that of a passenger entitled to sue Delta in a common law action for tort, or that of a crew member whose recovery is limited to that available under the applicable workmen’s compensation law. Direct suits against the United States were also filed on behalf of the estates of several conceded passengers and Burrell. The above-captioned actions were consolidated for purposes of a non-jury trial on the issue of liability only. Delta has brought a direct action against the United States claiming a right of contribution equal to 50 per cent of the total amount Delta is required to pay out in settlement to the estates of the passengers. Delta also seeks to recover herein the value of the airplane destroyed in the crash. The jurisdiction of all claims against the United States is premised on the Federal Tort Claims Act, 28 U.S.C. § 1346(b). At the trial the parties called 26 witnesses and introduced into evidence portions of eight depositions, and a number of documentary exhibits including manuals, air navigation maps and charts, and graphs. They also introduced photographs, tape recordings and transcripts of radio communications between ATC and various aircraft and the transcript of the cockpit voice recorder (CVR) found in the wreckage of D 728. The evidence includes a transcript of all communications between D 723 and ATC, and between ATC and other aircraft in the vicinity, as well as a transcript of all intracockpit conversations during the last 17 minutes of the flight. Also admitted were a flight profile and a flight data graph preserved by a flight data recorder device salvaged from the wreckage. The foregoing are reliable evidence of the flight path, headings, air speeds, altitudes, cockpit conversations and radio communications during relevant portions of this ill-fated flight. Additionally, the Court took a view of some duration of actual operations in the TRA-CON room and in the cab of the new control tower at Logan Airport. The Court also spent about one half hour in the pilot’s seat of a Delta DC-9 examining at close range the instrument panel and other portions of the cockpit under the tutelage of a Delta captain. Plaintiffs’ theory of negligence is premised on the claim that the air traffic controllers on duty at the Logan Airport control tower the day of the accident, all of whom were concededly Government employees acting within the scope of their official duties, were negligent in the following ways: (1) they violated the provisions of the Terminal Air Traffic Control Manual in effect on the day of the accident by failing to provide the crew of D 723 with accurate, complete and current advice that banks of sea fog were obscuring visibility at the approach end of Runway 4-R on which D 723 was about to attempt a landing; (2) they violated the provisions of the Manual by failing to advise D 723 to intercept the localizer course at least two miles from the approach gate at an altitude not above the glide slope; (3) they violated the provisions of the Manual by failing to order D 723 to intercept the localizer at an angle of 30° or less; (4) they violated the provisions of the Manual by failing to provide D 723 with information establishing (a) its position relative to the final approach, (b) a proper approach clearance, and (c) instructions to contact the tower on local control frequency or to monitor local control frequency; and (5) they issued non-standard, confusing and distracting radio communications during the final phase of D 723’s approach. The United States takes and maintains the position that this unfortunate disaster was caused solely and exclusively by the negligence of the crew of D 723. Specifically, the Government argues that the negligence of the Delta crew was gross in nature, in that the data obtained from the flight path and voice recorders establishes that this crew: (1) failed to scan their instruments and/or chose to ignore the information reflected thereon; (2) intercepted the localizer at an excessive rate of speed; (3) failed to maintain the localizer course; (4) failed to intercept and maintain the glide slope; (5) failed to make the required course deviation call-outs and the required altitude call-outs; (6) relied on information provided from a flight director which was found in the wreckage to have been set to the wrong mode; (7) failed to heed conflicting information being supplied by the more reliable primary instruments; (8) assigned a non-crew member the responsibility of participating in the approach-checklist and descent-checklist in violation of Delta’s procedural manual; (9) failed to stabilize the aircraft during the approach both altitude-wise and speed-wise; (10) allowed the aircraft to dive below the glide slope during the last three miles of the approach; (11) ignored warnings from the decision height flashing light and the fact that that light illuminated prior to the middle marker light; and (12) failed to make the required decision regarding continuing the approach when they reached decision height (DH). The witnesses who testified at the trial fall into the following categories: air traffic controllers, pilots qualified on the DC-9, air traffic control experts, an expert weather observer, an engineering expert, four lay witnesses who were in the vicinity of the crash and testified as to their observations of the prevailing weather, and four other witnesses, who were employed at Logan and were among the first persons to arrive at the scene of the accident and to report the crash. II. WEATHER A. Official Observations A very substantial portion of this trial was concerned with conflicting testimony about the weather which prevailed on the morning of July 31, 1973, both up to and after the time of this crash. It has been stipulated that the crash occurred at 11:08.-05 Eastern Daylight Savings Time (1508:05 GMT). To place the testimony relative to prevailing weather in perspective, and more importantly to place in perspective the amount of information about the weather which was, or should have been, known by the pilot and co-pilot of D 723, the following information established either by exhibits or testimony should be understood. This flight originated in Burlington, Vermont and made an unscheduled intermediate stop in Manchester, New Hampshire. While the aircraft was still at the Manchester Airport, the following exchange took place between ATC of the Manchester tower and the crew of D 723 at 1404: Tower: 723 . . . Boston can’t handle you right now so there will be a little delay Tower: Boston advises there will be right now at least a 30 minute delay with the delay on ground at Manchester 723: You want us to hold on the runway Tower: Whenever Boston tower can take you will advise 723: OK, thank you sir, little cluttered up this morning Tower: Getting missed approaches at Boston, that seems to be the problem 723: Ah, so. At 1423 the Manchester tower called Boston and then advised the crew of D 723 “just called Boston tower, they advised indefinite delays, no time.” The Manchester weather station reported patchy ground fog that morning. At 1500 Manchester reported, “partial obscuration estimated 1000' ceiling, overcast, 3 miles visibility in fog.” The weather station at Bedford, Massachusetts, which is on the route of this plane’s flight from Manchester southward, reported “indefinite 400' ceiling, full obscuration, IV2 mile visibility in fog.” The official area weather forecast issued for the period 7:00 a. m. to 12:00 noon, July 31, 1973, was “ceiling 200' full obscuration, visibility within V2 mile in fog, occasionally ceiling 400' full obscuration visibility, 1 mile in fog.” Air Met, a weather warning issued by the United States Weather Bureau, stated for the period 9:00 a. m. to 12:00 noon that day: “coastal waters, coastal New England, New Jersey and lowlands into New England, eastern New York, ceilings and visibility well below 1000 feet, 2 mile visibility in fog, coastal waters and coastal sections and ground fog elsewhere. Fog continuing coastal waters becoming patchy outer Cape Cod with fog patches occasionally drifting over immediate coastal sections and remainder of Massachusetts, New Hampshire and Maine, and dissipating elsewhere.” The Air Met contained a section captioned “Clouds and Weather.” It provided for the time period 9:00 a. m. to 12:00 noon that day: “coastal waters zero or near zero ceilings and visibilities in fog. New rain showers, possibly a few thunderstorms outer coastal waters.” The last official observation made by the U. S. Weather Bureau at Logan Airport prior to the accident was made at 1453 (15 minutes before the crash) by Harry Terban, a veteran weather observer who has been employed by the National Weather Service for 24 years. Mr. Terban, who I find to be a highly credible and well qualified weatherman, was responsible for taking all weather observations that were subsequently sent out for transmission as the prevailing weather for Boston. To the extent that there is a contradiction between Mr. Terban’s testimony as to the state of the weather at Logan that day and the testimony of other witnesses thereto, I believe Mr. Terban’s testimony. His 1453 observation, which he made at Logan Airport, read as follows “partial obscuration, estimated 500, broken, 25,000 overcast. The surface visibility one and one half miles, tower visibility one and one half miles, the obscuration to vision fog, air temperature 68° dew point 64° wind estimated at 100° at 2 knots.” Mr. Terban also testified that his observation point is on the roof of a building which is approximately 7500 feet from the approach end of Runway 4-R and that there was a fog condition at the entire airport until after the taking of the 1453 observation. He explained that a partial obscuration exists when at least Vio but not more than 9/io of the sky is obscured by a surface-based phenomenon. He also explained that the visibility quoted in the weather report is the maximum which an observer can see in at least 50% of the horizon circle. The first observation he made after the time of the accident was at 1512 when he determined an estimated ceiling of 400 feet and surface visibility to be 1 mile. He sent out this information on the teleautograph system, which sends the latest weather information to other weather stations, airports and major airlines. He also made a special observation at 1533 at which time he did not observe any definable bank of fog approaching the runway end of 4-R. In fact, he testified that he did not observe any definable bank of fog at any earlier time that day. B. Regulations It is significant to note at this point the requirement that the pilots of all commercial passenger-carrying planes have a specific obligation to fully apprise themselves of prevailing and expected weather conditions along the route of their flights. The pertinent regulations are as follows: 14 C.F.R. 91.5, which provides “Each pilot in command shall before beginning a flight, familiarize himself with all available information concerning that flight. This information must include (a) for a flight under IFR . weather reports and forecasts, fuel requirements, alternatives available if the planned flight cannot be completed 14 C.F.R. 121.599, which requires: “No aircraft dispatcher may release a flight unless he is thoroughly familiar with reported and forecast weather conditions on the route to be flown.” 14 C.F.R. 121.601, which requires: “(a) The aircraft dispatcher shall provide the pilot in command all available current reports or information on airport conditions and irregularities of navigation facilities that may affect the safety of the flight. (b) During a flight, the aircraft dispatcher shall provide , the pilot in command any additional available information of meteorological conditions that may affect the safety of the flight.” 14 C.F.R. 121.603, which provides: “(a) Before beginning a flight, each pilot in command shall obtain all available current reports or information on aircraft conditions . . . that may affect the safety of the flight.” While still climbing after takeoff from Manchester to the assigned altitude near Lawrence, the crew of D 723 was advised by Boston approach control at 1451 as follows: “ . . . the Boston altimeter is 30.11, weather is partial obscuration, estimated 400' ceiling, overcast a mile and a half and fog.” The foregoing establishes the contents of the various weather reports, knowledge of which was made obligatory on the crew by the above-quoted requirements from 14 C.F.R. C. Lay Opinions A number of witnesses testified about the nature and extent of the fog which prevailed at, on above, or near Logan Airport on July 31,1973. Their testimony leaves no doubt that it was an unusually foggy day. However, the degree of density of the fog, the altitude of the lowest portion thereof, and whether or not it was in the configuration of a definable bank were the subject of conflicting testimony. Among those witnesses who testified were several men who, in the course of their normal employment either in the trucking industry or the maritime industry, were located in the Castle Island section of the City of Boston on the morning of July 31, 1973. Warren Hutchins, an engineer employed by the Boston Towboat Company, testified that he was aboard the tug MARS which was tied up at a pier at Castle Island because of the fog from 9:30 until 11:20 a. m. on July 31, 1973. He testified that because of the fog he could not see the airport from his position at Castle Island, which was about 3000 feet from the airport and directly across the channel from the approach end of Runway 4-R. Mr. Hutchins said that shortly before the crash he saw a plane pass directly overheard for about a second or two and then he lost it in the fog. He said he has made a hobby of watching planes land and he believed this one to be extremely low as it passed over him. Richard F. Giroux testified that he was on a coffee break about 11:00 a. m. at Castle Island and saw a plane go overhead on which he could read “Delta.” It then disappeared into the fog about halfway across the channel. He heard a crash-like sound about five seconds after last seeing the plane. Two or three minutes later, he heard another plane which sounded as if it were a lot higher than the Delta plane. It was on approximately the same course as the Delta plane. Thomas Karacoudas testified that at about 11:00 a. m. he observed a plane go over Castle Island toward the airport and disappear into the fog as it crossed the channel. He said he could observe the word “Delta” on the plane, and he also said that fog obscured the whole airport as he looked toward it from where he was on Castle Island. He expressed the opinion that this was the lowest airplane he had ever seen making an approach. William Rae testified that he was at Castle Island and could not see the airport because of the fog condition until an improvement occurred at about 11:20 a. m. He observed the plane go over and noted the word “Delta” on its tail section. It disappeared into the fog in a matter of seconds. I find that these four witnesses at Castle Island establish that at the time they made their observations fog obscured their view of the airport. I find that their testimony that the Delta aircraft which passed over them shortly after 11:00 a. m. was making an abnormally low approach to the runway to Logan is factual and corroborated by the evidence supplied by the flight recorder. Additional testimony as to the nature and extent of the fog prevailing that morning came from two witnesses, Geoffrey P. Keating and Harris Cusick, who were present at the airport in the course of their employment on a construction project at the airport, and from Chief Charles T. Arena and Deputy Chief Peter Cutrone of the Airport Fire Department. Still additional testimony as to the prevailing fog conditions came from First Officer Keith Chappell, copilot of Eastern Airlines (EAL) Flight 572, the last plane to land on Runway 4-R prior to the accident, and from Captain Vernon H. Young, the pilot in command of EAL 945 who was waiting at the end of Runway 15-R for that flight to receive a clearance to take off for San Juan, Puerto Rico. This group testified as follows: Geoffrey F. Keating, an engineer employed on a construction project at Logan Airport, testified that because of the fog conditions, gravel-hauling trucks were stopped that morning at about 9:00 a. m. because their route normally took them across active runways. He stated that the fog condition varied all through the morning, that at times the airport tower and the downtown Boston skyline were visible and that at other times his view of those buildings was obliterated by fog. He stated he could not see Castle Island from Logan Airport at any time that morning, and he expressed the opinion that when he saw flame near the approach end of Runway 4-R he also saw fog which he estimated to be at a height equivalent to two light poles. Mr. Keating first went to the end of 4-R, observed the flames, then went to the fire station and reported the accident to Chief Arena. Mr. Keating testified that the first time he went to the vicinity of Runway 4-R, and about five minutes before he saw the flames, he did notice that the old control tower was visible, but that the upper half of the new tower was not visible. The new tower is about 500 feet high. He did not look toward the tower the second time he went to the approach end of 4-R. On the day of the accident Harris Cusick was a fellow employee of Mr. Keating. Mr. Cusick grew up in Winthrop, the town abutting Logan Airport. He had been working at the airport for about six years prior to the crash. His background included attendance at an Air. Force Weather Observation School and three years service on active duty as an Air Force weatherman. He expressed the opinion that the visibility improved somewhat around 10:00 a. m., but began to deteriorate again before 11:00. He expressed opinions as to the ceiling and visibility near the end of Runway 4-R when he arrived there some ten or fifteen minutes after the crash had occurred. I do not credit this witness’ testimony since I find him to be strongly biased in favor of plaintiffs, as he conceded under cross-examination. He likewise conceded, in substance, that he was “miffed” because the National Transportation Safety Board did not call him but did call Mr. Keating as a witness at the post-accident hearing it held in Peabody, Mass, in August 1973. Mr. Cusick resented this because he felt that his training and experience in the United States Air Force made him a far more qualified and reliable witness than Mr. Keating as to the weather conditions prevailing at the time of the accident. Mr. Cusick showed further bias by making an attack on what he believed to be the deficiencies of the transmissometer system for Runway 4-R. His attack was based primarily on his own ipse dixit I totally discount Mr. Cusick’s testimony. Chief Arena and Deputy Chief Cutrone testified in substance that in their opinion the fog was thick at the approach end of Runway 4-R at the time they arrived there, more than ten minutes after the crash. I find that the condition at the time they arrived there does not establish what the conditions were at 1508, and more particularly, that it does not establish any inaccuracy on the part of the RVR readings. Nor does it cast any light on what slant view was available to the crew of D 723 during the course of the approach, nor, most importantly, as to what the available visibility was at the time the plane reached DH and proceeded on down to impact. Captain Vernon H. Young, of Eastern Airlines, testified that on July 31, 1973 he was in command of EAL 945 to San Juan, Puerto Rico, which was scheduled to depart at 1320. In fact, he did not “push off” from the gate until 1453, and as he taxied away from the Eastern Airlines terminal, heading toward the outer runway, he was facing the approach end of 4-R and Castle Island, at about 1458 or 1459. He saw fog between 4-R and Castle Island which he considered unusually dense for that time of year. When he reached the far end of Runway 15-R and was facing down the runway, his view of the approach end of 4-R was obstructed by some of the terminal buildings. He estimated that at 1505 about half the airport was obscured, including all but the most northern end of 4-R. He said that he did not see EAL 572 pass him on its roll-out to the taxiway, although he was facing the runway on which it successfully landed and rolled out. It should be noted that his failure to see EAL 572 is inconsistent with the testimony of Flight Officer Chappell, the copilot on EAL 572, which I believe, to the effect that when he landed the RVR reported a visibility of 6000 feet and that, in fact, the actual RVR was even greater along 4-R at the time he touched down and rolled out. Captain Young, who appeared voluntarily at the request of a pilot employed by Delta, testified that he is aware that there is a regulation which requires pilots to report to the tower any change in weather conditions that may be essential to the safety of others. He did not report the above-described condition and his failure to do so is one of the reasons why I do not accept his testimony as factual. In testimony which I find highly significant, Captain Young conceded that the only person who could determine whether or not the visibility at DH enabled a pilot to land would be the pilot himself. This is true, he testified, no matter what anyone other than the pilot saw or reported about the visibility. He testified unequivocally that it is completely up to the pilot to make a decision at DH as to whether a safe landing can be executed and this decision is to be based on what he then can or cannot see of the runway or its environment. He testified that the RVR value is important primarily because it establishes whether it is legal to pass the outer marker, i. e., whether a pilot must execute a missed approach because told the RVR is less than 2400 feet at the time he passes the outer marker. If the RVR is more than 2400 feet as he passes the outer marker, he may continue with the approach even if the RVR decreases thereafter. Keith Chappell, who was the Flight Officer on EAL 572 which landed on Runway 4-R (at about 1506 or 1507) immediately prior to the crash of D 723, also appeared voluntarily as a witness for Delta. He testified that he and the Captain of EAL 572 (a DC-9) were well aware “that there was weather around,” i. e., of the foggy conditions then generally prevailing along the Massachusetts coast. After leaving the Whitman holding point and beginning their final approach, the crew of EAL 572 discussed DH and the procedure for executing a missed approach. He testified that after his flight passed inside the outer marker the local control coordinator advised him that fog was moving back inside the airport and was approaching Runway 4-R. He testified that he established visual contact with the runway just before DH and never lost visual contact with 4-R thereafter. He also said that the visibility on 4-R was good as he touched down. Flight Officer Chappell said that in his experience a pilot frequently encounters weather which differs from what has been described in the last official weather bureau release, and further that experience has taught him to take all weather forecasts with a grain of salt, and to pay strict attention to what he can actually observe shortly before and at DH. He testified that when EAL 572 landed, immediately prior to the crash of D 723, weather conditions as reported by the tower were different from those encountered on landing, but, significantly, not so different as to cause him to report them to the tower as required by an FAA regulation. I do not credit Mr. Chappell’s testimony that any significant weather change had occurred since he received his last weather advisory. He testified that the receipt of information about a fog bank when the plane was at an altitude of 400 feet en route to a DH of 216 feet would not cause a competent pilot to crash the airplane, but that it was preferable to get such information earlier, if possible. In another telling piece of testimony he expressed the opinion that it is preferable for the tower to give additional weather information at a late stage of approach rather than not give it at all. D. Air Traffic Control Opinions James R. Morrissey testified that on the day of the crash he was working the position of approach control coordinator in the TRACON room. He heard no messages about the fog which indicated any significant change in previously existing weather conditions. He heard internal transmissions from the tower cab which he considered as merely messages for internal use, such as alerting controllers that incoming airplanes might begin executing missed approaches again as had been done earlier that morning. He expressed the opinion that any pilot flying a plane that day would have been well aware that there was fog all around Logan Airport. He further testified that he would not consider the internal message which he heard at 1507:03, “that fog’s coming right back across again, so you can get ready for some, it’s real thick again,” to be a “significant weather report,” within the provisions of the Terminal Air Traffic Control Manual. This was so, he testified, particularly in light of the fact that pilots had already been given a weather report of 400 feet ceiling and fog. He believed that fog coming back in would be a weather condition that should have been expected by any pilot who had been receiving regular reports while flying that morning. On July 31, 1973, Jeoffrey McDonald worked part of the morning in the TRA-CON room and later moved, a few minutes before the crash, to the tower cab to the position of local controller. He adopted his deposition testimony that on the day of the crash he observed fog moving from the south-southeast quadrant of the airport toward the north-northeast quadrant over Runway 4-r, and back and forth across the outer parts of the airport. He testified that at the time he cleared D 723 to land he could not see all of Runway 4-L from the cab, but only that part of 4-R which was near Taxiway C. He put to rest and rendered academic a line of questions trying to elicit testimony that ATC was somehow negligent in not using Runway 15-R for landings that morning, by establishing that the electronic instrumentation associated with 15-R was inadequate to meet minimum standards for ILS landings on that day. The witness Mr. Keepers corroborated this testimony. Mr. McDonald cleared EAL 572 to land at 1505:37 and in so doing volunteered the following information to that pilot: “The fog is moving back in from the south across the airport and is just approaching Runway 4-R. Your RVR, for 4-R is showing more than 6000.” He expressed the opinion that the quoted information was not a “pertinent” airport condition within the meaning of ¶ 305 of the Terminal Air Traffic Control Manual (PX-9), which in relevant part provides: “Issue airport condition information necessary for an aircraft’s safe operation in time for it to be useful to the pilot. Include the following as appropriate: (g) Other pertinent' airport conditions.” Mr. McDonald gave the explanation, which I accept, that the phrase “airport condition” in ¶305 pertains to land mass, construction going on, snow piled along the runway, or a parked aircraft or other vehicle on the runway, but not to weather. Mr. McDonald also testified that at no time did he see an RVR readout of a value lower than 6000 feet for 4-R when he was working the local control position, and that the lowest RVR reading he saw at any time during that day while in the radar room was 3000 feet. He expressed the opinion that when he left the TRACON room to begin working in the cab as local controller he had no obligation to inform the TRA-CON room personnel about whatever fog he observed because that fog condition had persisted essentially unchanged all morning. He further testified that he gave the same further information about the fog and RVR reading to D 723 and to EAL 572 which landed safely immediately ahead of it. Demetrios J. Merageas was on duty in the TRACON room as Arrival Data No. 1 man on July 31, 1973. His duties included updating the arrival strips which are handled by the approach controllers. In the radar room a separate strip is printed out, usually by computer, for each incoming flight. The information which appears on the strip is prepared by the air traffic center prior to its “handing off” a plane to approach control at Logan tower. The information on the strip includes the name of the airline, the flight number, e.g., D 723, the name of the airport at which it contemplates making a landing, the aircraft’s altitude expressed in feet and its air speed expressed in nautical miles per hour as of the time when the aircraft is handed off by the Center to approach control. Mr. Merageas testified that he did not hear the message “fog is coming right back across again so you can get ready for some,” but had he done so he would have interpreted it merely as a warning for the controllers to prepare for the possibility that pilots would again execute missed approaches. He would not have considered this as a message which should be transmitted to incoming pilots. He further testified that he would advise incoming aircraft of any pertinent major change in the weather but did not consider the return of fog under that day’s prevailing weather to be such. I find that in controllers’ jargon “you can get ready for some” refers to their preparing to get ready to handle aircraft which have executed missed approaches, not to “some” fog. The senior FAA representative at Logan Airport is William C. Keepers, Chief of the control tower at Logan Airport, who testified, and I find, that the controllers in the cab are physically located about one mile from the approach end of Runway 4-R, and % of a mile from the RVR transmissometer. The transmissometer is 692 feet from the center line of the runway. It follows that the transmissometer is substantially closer to the runway than are the controllers in the cab and, for that reason, the transmissometer is in a significantly better position to measure and report the visibility along the runway than are the controllers who must make a subjective judgment from a distance of a mile away. Mr. Keepers testified that the RVR reports for Runway 33-L were no better on the morning of July 31, 1973 than the RVR reports for 4-R. This testimony taken together with that of Jeoffrey McDonald, discussed supra, disposes of the contention that it was negligent to use Runway 4-R rather than some other runway that morning. Mr. Keepers also testified that in his career he personally has worked thousands of landings in which a plane has come down safely in fog conditions, and for that reason does not consider fog in and of itself to be a hazard to air safety. He further testified that the RVR readings are intended to give the pilot the average visibility conditions on the ground along the runway for the preceding 52 seconds prior to the time of the particular RVR readout. He confirmed that it is not possible for tower personnel to determine with absolute certainty the visibility conditions along a runway when fog is present. Perforce they must rely on and relay the RVR reading. Mr. Keepers also established that there is no way in which tower personnel can know what slant vision is available to a pilot in the course of his approach, and that there is no equipment which provides such information to tower personnel. Alfred T. Lynch, Jr. testified that on July 31, 1973, he was working Arrival Radar position No. 2 (AR-2) in the TRAGON room from about one-half hour before the accident until substantially afterwards. He testified that at 1508:30, 25 seconds after the stipulated time of the crash, he sent a message to all planes in his frequency, “All aircraft, RVR has just gone down to 2000 feet.” He said it was possible the RVR had dropped directly to 2000 feet from a prior reading of either 3500 feet or 6000 feet. Mr. Lynch likewise expressed the opinion that had he heard the transmission that fog was coming back in, he would have considered it to be internal advice to the controllers to prepare for the possibility of missed approaches. He would not have considered the information contained in that transmission to be a report of a significant weather change, required by the manual to be transmitted to incoming pilots. However, he distinguished this information from the information about the drop in the RVR, which he did transmit to incoming pilots. Charles M. Taylor, an ATC specialist supervisor at Logan Airport, was serving in the approach control position as arrival radar one (AR-1) on July 31, 1973. As such he was responsible for issuing orders to approaching aircraft, including D 723, which were in the area west of the localizer course for Runway 4-R. Mr. Lynch was responsible for approaching aircraft east of that localizer. As of that date Mr. Taylor had 17 years prior experience at Logan Tower, and 4 years experience as a United States Air Force air traffic controller. He had previously worked all positions at Logan Tower, both operational and supervisory. Mr. Taylor testified that he knew that D 723 would be coming to Logan directly from Manchester, and that it would be under his jurisdiction immediately after its takeoff from Manchester. He testified, and the exhibits establish, that D 723 contacted him on his radio frequency as it was climbing to 4000 feet after takeoff from Manchester as it approached Lawrence, Massachusetts. In response to that initial contact he furnished it with the most recent weather advisory which had been posted at his position in the TRACON room. At 1451:21 he told D 723 “723 Roger, cleared to Lawrence. No delay. Planned vectors ILS 4 right. The Boston altimeter is 30.11. Weather is partial obscuration, estimate 400 overcast a mile and a half and fog.” He further testified, and I find, that this weather advisory was not changed between the time of his transmission to D 723 and the time of the crash. He testified that he did not hear the internal message, “that fog is coming right back across again . it’s real thick again,” nor did anyone who may have heard it tell him about it. More significantly he said that if he had heard it, he would not have relayed it to D 723 because, like other controllers who testified, he merely considered it an advisory to alert the controllers to get ready for possible missed approach situations. He likewise did not consider the information about fog moving back in to be a report of a significant change in weather conditions within the meaning of the manual. E. Conclusions On the basis of the above-summarized testimony, I find that all relevant weather advisories prior to the accident unequivocally reported the existence of fog conditions in the entire New England Coastal area. I specifically find that the crew of D 723 was well aware that an abnormally foggy condition existed and persisted at Logan all morning which, indeed, had substantially delayed the progress of their flight from Burlington to Logan. I further find that the crew of this flight was well aware that the fog was of sufficient severity to require the execution of missed approaches by other pilots with consequent traffic delays. I find that en route from Manchester to Boston D 723 flew over and through fog. More significantly, I find that Mr. Taylor transmitted the last official United States Weather Bureau advisory to the crew of D 723 as it was approaching Lawrence at 1451:21 approximately 17 minutes before the crash. I am not persuaded that any weather information which came to the attention of Mr. Taylor before the crash amounted to a “difference [in] weather elements observed from the tower and those .reported by the weather station” within the meaning of ¶ 361 of the Terminal Air Traffic Control Manual (PX-9), which provides in pertinent part: 361. DISSEMINATING WEATHER INFORMATION c. Differences between weather elements observed from the tower and those reported by the weather station shall be reported to the official observer for the element concerned. In so finding, I have determined that plaintiffs have failed to prove that the weather observed from the tower up to 1508:05 was different than that reported previously by the weather station on July 31, 1973, or that if such a change occurred that it did so sufficiently prior to the crash to enable Mr. Taylor to learn of it in time which was adequate for him to transmit it to the traffic under his control. Paragraph 28 of the Terminal Air Traffic Control manual, captioned “Duty Priority,” allocates three separate priorities to various of the duties to be performed by air traffic controllers. That section gives first priority to separation of aircraft, second priority to services which are required but do not involve separation, and third (and last) priority to items classified as “additional services.” Paragraph 361 of the same manual, supra, captioned “Disseminating Weather Information,” is characterized by the manual as an “additional service.” Therefore, it is a third priority item. For reasons which will appear infra in the discussion of Allegheny Airlines (AL) Flight 666 and its relationship to Mr. Taylor’s duties, I further find that even had there been a significant weather change, under the circumstances which obtained in the five minutes just prior to the accident and thereafter, it was not obligatory on Controller Taylor to divert his attention from the problem caused by AL 666 in order to issue a fog warning to D 723. It is clear from the record before this Court that an experienced crew, particularly one trained to the level of proficiency claimed by Delta for its pilots, had no more need to be told that there was fog in the vicinity of Logan Airport than did they need to be told that airplanes fly in the air and above the ground! In questioning the various witnesses in this case, Delta has implied that fog took this crew by surprise. This contention is without credible support in the record, and does not warrant further discussion herein. Accordingly, I rule that plaintiffs have failed to establish any negligent conduct on the part of Mr. Taylor or any breach of any duty he owed to the crew or passengers of D 723 by reason of his not making any additional weather transmissions to D 723 after his 1451:21 weather message. Even assuming, arguendo, that there had been a significant weather change which for some reason enjoyed a higher priority under ¶28 of the manual than the “additional services” third priority, on the facts of this case the failure to report such a change could not be found to be a proximate cause of the crash of D 723. The record is replete with explanations by various pilots who testified that during an ILS approach the crew is to conduct an altitude countdown prior to arriving at DH. I find that the normal procedure, as testified to by several witnesses, is for the pilot who is not physically handling the operative controls of the aircraft, to orally call out various altitudes above the DH as the aircraft passes down through those altitudes in the course of its final approach. There was evidence from some witnesses that it is customary to make an oral call-out at 1000 feet above DH and at 500 feet above DH, and all witnesses who testified agreed that a call-out is mandatory at 200 feet above DH, at 100 feet above DH, and at DH. It was also established, without contradiction, that when the aircraft arrives at DH the DH light on the instrument panel becomes illuminated, thus giving another reminder to the pilot and the copilot that they have arrived at DH altitude. It is mandatory for the person making the oral call-out to state at DH either “Decision Height, Contact,” which means “I can now see the runway or its environment, it is safe to continue with the landing,” or “Decision Height, No Contact,” which means “I cannot see either the runway or its environment and therefore it is not safe to continue this attempted landing. Start to execute a missed approach, climb up, and head for the designated holding point,” i. e., execute a go-around. The transcript of the CVR establishes that no oral countdown whatsoever took place in the course of this unfortunate approach. In fact, the only mention of the words “decision height” appearing at all in the transcript of the CVR is a reference at 1459 by the man in the jump seat, “Check the radio altimeter, needs a DH . you know it is 4-R.” An examination of the tape shows that there was no transmission from the tower which could possibly have rendered inaudible a countdown had one taken place at either 200 feet above DH or at DH. While it is not as clear that the same situation is true at the altitude of 100 feet above DH, I am persuaded and find that no countdown occurred at that time which was masked over by any transmission from the control tower. In drawing this inference, I have in mind both the absence of a countdown at other critical altitudes and the fact that the CVR was in fact able to pick up other overlapping transmissions. Even assuming that an extremely thick fog developed at the last minute, I find that the presence of such fog would not and could not have caused the crash of this plane had the crew followed the approved navigational procedures of making call outs down to DH. I find that it was totally and solely within the discretion of Captain Streil, and no one else, to determine at DH whether visibility was such that he could see the runway or its environment, and to decide whether the plane was then in a configuration vis-a-vis the localizer course and the glide slope from which a safe landing could be made. Nothing emanating from the tower had any input into this decision. I find that the fact that radio transmissions as to fog were or were not made had no causal relationship whatsoever to the crash of D 723. I further find it grossly negligent for this crew to have continued its descent (1) without ever mentioning DH after 1459, (2) without ever making the required call outs at altitudes above DH and at DH, (3) without ever discussing slant view or the visibility of the runway or its environment prior to or at DH, (4) or without ever reacting in any way to the claimed presence of fog at the approach end of 4-R. This apparent indifference to DH, fog, visibility and altitude is still more shocking in light of the fact that a transmission was recorded on the CVR at 1507:45.5 which specifically said “A fog bank is moving in. It is pretty heavy across the approach end.” After it was acknowledged this message incredibly elicited no comment from pilot, copilot or jump seat occupant! There is ample evidence in the record that it is good practice during an ILS approach for the crew to keep in mind the possibility that the weather will not be the same as that reported in the last weather advisory. Delta pilots, in particular, are taught that this is true when the temperature and dewpoint are within a few numbers of each other and when there is little or no wind. The evidence shows that both conditions obtained on July 31, 1973 and this should have been known to the crew of D 723. At the time of the 1507:45.5 transmission noted above, the aircraft was at an altitude of approximately 325 feet (109 feet above DH) and at a point in the flight at which I find that a missed approach could have been executed safely had any consideration been given to the four factors noted above. Cockpit discipline is an extremely important aspect of flying safety and the lack of it is inexcusable. These four points noted above, and the fact that the CVR shows that the captain undertook to imitate the sound of a bugle at 1452:24 and again at 1501:59, prove that there was a serious lack of discipline in the cockpit of D 723. Finally and most significantly, the record is replete with pilot testimony, including that from Delta supervisory pilots, that its pilots have the capacity to execute missed approaches at least at altitudes as low as only 5 feet and there is evidence in the record that a missed approach can be executed by a DC-9 even as its wheels touch the ground. I find no merit in plaintiffs’ contention that the 1507:45.5 transmission came too late to be of use to an alert crew following approved procedures. I find that there is no causal relationship whatsoever between the weather and the presence or absence of weather transmissions from the tower, and this crash. It also should be noted that the crews of EAL 572, of American Airlines (AM) 400, and of EAL 1020, all handled their flights safely within minutes before and after this crash, with no better or different information than was received by D 723. These crews followed prescribed procedures, with the latter two flights electing to execute missed approaches at or before reaching DH immediately following the crash of D 723. III. THE APPROACH INSTRUCTIONS GIVEN TO DELTA 723 Plaintiffs allege that there was ATC negligence in the handling of D 723’s landing approach in the following respects: 1. The aircraft was vectored by Mr. Taylor to intercept the localizer course at an interception angle in excess of 30 degrees contrary to ¶ 1351 of the Terminal Air Traffic Control Manual. 2. The aircraft was vectored by Mr. Taylor to intercept the localizer at an altitude above the glide slope contrary to ¶ 1352 of the manual. 3. The aircraft was not advised of its position relative to the final approach fix — the outer marker — before it reached the approach gate — a point 6.3 miles from the glide slope touchdown point — contrary to ¶ 1360(a) of the manual. 4. The aircraft was not issued an approach clearance by Mr. Taylor until such clearance was requested by Captain Streil. 5. The aircraft, prior to reaching the approach gate, was not instructed by Mr. Taylor when over the outer marker either to monitor the local frequency, or contact the tower on the local control frequency, contrary to ¶ 1360(d) of the manual. 6. The aircraft was cleared to land and instructed to contact the tower by Mr. Taylor only when it was inside the outer marker at a point 2.6 miles from the glide slope touchdown point. Plaintiffs thus allege that D 723 was provided with non-standard ATC service. They argue that the failure to provide adequate ATC service in the above-numbered respects had a “snowballing” effect on the crew of D 723 as the aircraft proceeded into its final approach course after intercepting the localizer. Plaintiffs argue that the cumulative effect of these non-standard instructions did not become apparent to the crew until the aircraft passed through DH and entered a fog bank which the plaintiffs say obscured the approach end of Runway 4-R and destroyed the previously acquired visual contact with Runway 4-R. Crucial to the determination of the causal relation of the alleged violations of ATC procedure and the crash is an understanding of those components of the instrumentation of the DC-9 aircraft which are designed to enable a pilot to “stabilize” his aircraft. In general, when an aircraft is “stabilized” on a particular approach course, its configuration is such that a landing may be safely executed. Much of the testimony regarding the instrumentation of the DC-9, the procedure followed in a standard ILS approach of a DC-9, and the importance of being stabilized on the approach course came from Captain Thomas P. Ball. Captain Ball retired in 1971 as vice president of flight operations of Delta Air Lines. He testified that he has been a pilot since 1929, and is “rated” on 11 different commercial aircraft including the DC-9. While actively employed by Delta he was, inter alia, responsible for hiring and training Delta pilots. His experience includes 11 years flying assigned routes as a line pilot for Delta. He is the person responsible for the compilation of the flight operation manuals which pertain to Delta DC-9’s. Captain Ball testified that navigation in IFR flights is primarily dependent upon the aircraft’s radio instrumentation system. One instrument in this system called the PDI (pictorial deviation indicator) is used in connection with certain radio transmitters located at various fixed ground-points across the United States. These transmitters are referred to as VOR stations (very high frequency omni-range stations). The exact locations of these transmitters are designated on air navigation maps and charts used by pilots and carried with them in flight. These VOR transmitters send out a radio signal in a 360° arc. By selecting the frequency of a particular VOR transmitter on the VOR receiver in his aircraft, a pilot can, by using his PDI indicator ascertain whether he is flying a heading toward or away from that VOR transmitter, and also determine whether his aircraft is to the left, right, or on the center line of the radio beam transmitted from that VOR station. One such VOR station transmits what has been referred to as the localizer course for the runway being approached. A vertical needle on the PDI dial graphically displays the aircraft’s position relative to the localizer course. PDI dials are on the panels in front of both the pilot and the copilot. If the needle on the PDI is displaced to the right, this tells the pilot that the center line of the localizer is to his right and that in order to regain the localizer a right turn should be made until the PDI needle becomes centered. The dial on the PDI indicates whether the deviation from the center line is in the magnitude of “one dot” or “two dots.” Two dots is the maximum deviation discernible from this particular instrument, i. e., once an aircraft goes far enough off course to produce a two dot deviation on the dial, the dial has been exhausted and will not indicate whether and to what extent the plane goes still further off course. The PDI also has a horizontal needle which informs the pilot of the aircraft’s location vis-a-vis the glide slope in much the same way as does the vertical needle vis-avis the localizer. It too will depict a deviation from the established glide slope up to a maximum of two dots. The two dot deviation thus is the maximum readable on this particular instrument. For either type of a course deviation. The PDI is referred to in the trade as the “raw data” and the two terms are used' interchangeably. Captain Ball testified that also in front of both the pilot and the copilot there is an additional indicator called the flight director. This instrument is referred to in the trade jargon as the “black box” or computer and it provides more information to the pilot than does the PDI. For example, if the plane were off course to the left, the PDI would merely tell the pilot turn right and you will regain the localizer at some point. The flight director, however, not only tells the pilot to turn right but also computes for him the rate of turn necessary to center his aircraft on the localizer. There was evidence from the CVR from which it could be inferred that during the late stages of the approach the crew of D 723 felt they were getting improper or faulty readings from their flight director. Several pilots testified that they believed that the flight director was supplying erroneous information to the crew particularly because of the comment of First Officer Burrill at 1507:05 “this goddamn command bar shows (unintelligible)” and the subsequent comment of Captain Streil at 1507:40 “you better go to raw data, I don’t trust that thing,” both of which are contained in the CVR transcript. If such were the case, this might at least partially explain the evidence from the flight profile which established that the crew of D 723 did not stabilize their aircraft on either the localizer or the glide slope. However, even if the crew was receiving inaccurate information from the aircraft’s flight director, this fact could not and does not in any way establish ATC negligence. But for the stipulation, made by Delta and the United States, but not by the other claimants against the United States, that the flight director was found to be in good operating condition after the crash, such misinformation might tend to establish the negligence of Delta in failing to properly maintain the aircraft’s equipment. It more probably establishes the negligence of the crew of D 723 in failing to recognize the fact that the flight director was operating improperly and in failing to adjust their approach procedures accordingly. There was evidence that the switch of the flight director was found in or near the “go-around” mode instead of the “approach” mode. If that condition existed during the approach, as several pilot witnesses believed it did, the flight director did indeed provide erroneous course and descent guidance to the crew. It should first be noted that a flight director is not a required instrument for making an instrument approach (14 C.F.R. 91.33(d)), In addition, Captain Ball testified that a pilot is trained to rely on the PDI whenever any discrepancy becomes apparent between the readings on the flight director and the PDI. This testimony was corroborated by all the DC-9 pilots who testified. Captain Ball further testified that when he was a DC-9 pilot, he frequently intercepted localizer courses, after having been given a heading by ATC, using only the PDI. He then explained the procedure he would follow in such cases in great detail. I thus find that a properly trained crew, by a constant scan of the instrument panel and particularly the PDI, would and should have detected that the flight director was mis-set, and would and should have either reset it or ignored its indications, and relied on the PDI (or “raw data”) without jeopardizing the safety of the aircraft. In so finding I am mindful of Captain Ball’s candid testimony that a qualified pilot constantly scans all of his instruments and “fairly well has as a second nature a translation of his scan of instruments”, that is, he does not have to think of the information being supplied individually by each instrument, but, on the contrary, simultaneously reads, assimilates, understands, and correlates all of the information being fed to him. Captain Ball also stated that a pilot’s proficiency in this regard is similar to a person’s ability to think in a foreign language, and that Delta requires its pilots to understand the instruments so thoroughly that they can touch all instruments required by the checklist with them eyes closed. Additional testimony by Captain Ball which supports the above finding also indicates the degree to which the crew of D 723 was negligent in the conduct of the ill-fated approach. Captain Ball testified that it is important for a pilot to stay along the glide slope so that if visual contact with the ground is lost, the aircraft will be at a proper altitude and attitude to execute a missed approach. He testified that the instrumentation in D 723 was adequate to advise the crew of their altitude. He made the candid admission that if Captain Streil knew the altitude and knew he was more than two dots below the glide slope at a late stage of his approach “he should have done something about it.” He further conceded that late in the approach between the times 1506:22 and 1506:43, when the PDI indicator was advising the crew that they were off course two dots or more to the left, and thus that a right turn was necessary to recapture the localizer course, this crew proceeded to make a further turn to the left! On the basis of this evidence (clearly established by the flight profile) Captain Ball made the highly significant admission that there was error by the pilot in not ordering the copilot to rely on raw data earlier than he did. I find that, even assuming the crew was getting misinformation from the flight director, proper scanning of their instruments would have indicated to them how far off course they had strayed. Captain Ball explained that there is contained on the instrument panel a light which becomes illuminated when the aircraft descends to 268 feet at the inner marker. The inner marker is located near the approach end of the runway 0.6 miles before the intended touchdown point. There is likewise located on the panel, a few inches away, a different color light which becomes illuminated when the plane descends to 216 feet (the DH for Runway 4-R). Captain Ball said that if, as the flight profile indicates happened, the DH light illuminated prior to the inner marker light illuminating, this fact should have alerted the crew that there was something seriously wrong with their approach. The premature illumination of the DH light should have told this crew that they were already down to an altitude much lower than the altitude at which they should have flown over the inner marker, yet they had not proceeded as far as the inner marker. Finally, with regard to D 723’s deviation from both the established localizer course and glide slope for ILS approaches to Runway 4-R, it should be noted that the record establishes that ATC personnel do not have the instrumentation available to them to monitor the deviation from the localizer by an in-coming plane except in the most extreme of cases. Although Captain Ball testified that D 723 was on a deviation of at least two dots for 4V2 of the last 5,3 miles of its approach and was on a deviation in excess of two dots for 3.3 of those 5.3 miles, Delta did not prove by a preponderance of the evidence that ATC was in any way responsible for the deviation, or had a duty to warn D 723 of the deviation. Indeed, the evidence established that air traffic controllers are not to “get into the cockpit and fly the plane” for the pilo