Full opinion text
OPINION FOX, Chief Judge. This case is brought under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. The action arises out of an accident which occurred on November 17,1968, when plaintiffs’ decedents died in a crash caused by their light aircraft flying into a guy-wire of a tall television broadcasting tower located near Rhinelander, Wisconsin. Plaintiffs are Gertrude Reminga, wife of Thomas H. Reminga and executrix of his estate; and Barbara Sue Breeden, wife of James Robert Breeden and administratrix of his estate. The respective claims herein were timely filed with the appropriate federal agency. Final administrative action was taken on these claims, and this action was timely filed in accordance with 28 U.S.C. § 2675, therefore giving this court jurisdiction of this action. Plaintiffs base their claim for recovery on several different grounds: (1) The United States was negligent in that it improperly marked the tower in question on the official sectional air map. (2) The government failed to issue a Notice to Airmen (NOTAM) warning pilots of the alleged misplacement. (3) The government improperly granted permission for the construction of this tower. (4) The government failed to issue a NO-TAM warning that the tower in question had “unusually long” guy-wires. (5) The Federal Air Administration (FAA) and the Federal Communications Commission (FCC) failed to require proper marking of the television tower. The Government asserts that plaintiffs failed to meet their burden of proof in several respects concerning duty, breach thereof and proximate cause, and that allegations concerning the failure to regulate fall within the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The Government further asserts that the sole proximate cause of the accident was the negligence of all of the occupants of the airplane in commencing and continuing the flight in dangerous weather conditions, and that such conditions were the cause of their inability to see and avoid the obstacle in question. -After extensive discovery, the matter was set for bench trial on November 15, 1976. The parties filed both pre-trial and post-trial proposed findings of facts and conclusions of law. At the close of trial the record was left open so that the parties could take and submit the depositions of two young eyewitnesses to the accident. This step was necessary to prevent prejudice, as neither party had fully complied with the court’s pretrial order to list witnesses to be advanced at trial. These depositions were filed December 13, 1976. Based upon the testimony given at trial, the evidence introduced, and the stipulated facts presented to this court by the parties, I make the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT I. Facts Surrounding the Crash. 1. Gertrude Reminga is the Executrix of the Estate of Thomas H. Reminga, deceased; she is the widow of Thomas H. Reminga, deceased, and Thomas H. Reminga was the father of three children, whose ages at the time of death were as follows: Thomas — 21 years; Susan — 17 years; and Mary — 15 years. 2. Barbara Sue Breeden is the Executrix of the Estate of James Robert Breeden, deceased; she is the widow of James Robert Breeden, deceased, and there is no issue from this marriage. 3. Thomas H. Reminga was 44 years of age at the date of his death, and his life expectancy, according to life tables of the United States Vital Statistics, was 28.2 years. 4. James Robert Breeden was 29 years of age at the date of his death, and his life expectancy was 41.7 years. 5. Thomas H. Reminga and James Robert Breeden were citizens and residents of the State of Michigan at the time of their deaths, and their respective families were likewise residents of the State of Michigan. 6. During the course of their business Thomas H. Reminga and James Robert Breeden had dealings with the Cadillac Company, Inc. (now Shustrom Company, Inc.). This company owned a Mooney M-20C, single engine, four seat aircraft, which was primarily for the use of the company owner’s son, Mr. Jerome Shustrom, who like Mr. Reminga and Mr. Breeden held a private pilot’s license. 7. None of the three men were instrument rated; that is, none of the men were qualified and certified to fly an aircraft using only instruments for navigation. 14 C.F.R. 91.115-91.129. Neither Mr. Reminga nor Mr. Breeden was checked out (and hence neither was qualified) to be a pilot in command of the above aircraft. 8. At the time of the accident, Mr. Thomas H. Reminga held a private pilot’s license and had accrued approximately 1000 hours of flying time. He was a military pilot during World War II and had a commercial pilot certificate with a multi-engine rating. James Robert Breeden held a private pilot’s license with a single-engine rating. Additionally, he had attended commercial ground school and had his commercial pilot’s rating almost completed. He had accumulated 515 hours of flying time. Jerome Shustrom held a private pilot’s license with a single-engine rating, and had accumulated approximately 187 hours of flying time. 9. Plaintiffs’ decedents and Jerome Shustrom had flown to Wisconsin on a hunting trip. They departed from Land O’Lakes Airport in Wisconsin on November 17, 1968 at approximately 2:30 P.M. C.S.T. intending to return home to Kalamazoo, Michigan. This flight was to be conducted in accordance with Federal Aviation Administration General Operating and Flight Rules, 14 C.F.R. 91.-91.51 and Visual Flight Rules (VFR), 14 C.F.R. 91.115-91.129. 10. Jerome Shustrom occupied the left front seat, commonly known as the pilot’s seat, Thomas H. Reminga was in the right front seat, and James Robert Breeden was in one of the rear seats when the men departed from Land O’Lakes Airport. Because Mr. Shustrom was sitting in what is commonly acknowledged as being the pilot’s seat, because his father’s business owned the aircraft, and because neither of the plaintiffs’ decedents was checked out to fly the aircraft, the preponderance of the evidence points to the fact that Mr. Shustrom was in fact the pilot of the airplane. 11. Seventeen miles south-southeast of the airport the airplane carrying the three men collided into a guy-wire of a 1720 foot broadcasting tower. The guy-wire was struck at an approximate altitude of 450 feet above ground level, and about 1850-1900 feet from the base of the central part of the structure. As a result of this collision, the airplane crashed, and plaintiffs’ husbands were killed. The accident occurred at approximately 2:52 P.M. C.S.T. 12. The center part of this television broadcasting tower was lighted, but the guy-wires were neither lighted nor marked. The tower was not a free-standing tower; it was supported by guy-wires that extended in three directions from near the top of the 1720 foot tower to anchors approximately one-half mile away from the base of the tower. 13. Federal Aviation Regulation (FAR) 91.3,14 C.F.R. § 91.3, states that the pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. Since it has been determined that Mr. Shustrom was the pilot of the plane involved in this action, he assumed this responsibility. 14. In executing his responsibilities under FAR regulations, the pilot in command has certain limitations within which he must operate his aircraft. He is under greater restrictions within a control zone than he is outside such zone. In either case he must adhere to the flight mínimums set forth by the FAR regulations, unless he is faced with an emergency, whereupon he must use his best judgment. 15. The flight mínimums which Mr. Shustrom had to comply with in order to be legal were: (1) be free of clouds, and (2) have one mile visibility, so long as he flew outside of controlled airspace: “Outside controlled airspace at an altitude of 1,200 feet or less above the surface, unless the aircraft is clear of clouds. “Outside controlled airspace, unless flight visibility is at least one statute mile.” (F.A.R. § 91.105(a) (Emphasis added). Mr. Shustrom was flying less than 1,200 feet at the site of the accident and the flight was outside of controlled airspace. (FAR 91.105; 14 C.F.R. 105). Further, the tower structure was located outside of the control zone of the Rhinelander Oneida County Airport control zone. 16'. 14 C.F.R. 91.5 states that a pilot in command shall, before beginning the flight, familiarize himself with all available information concerning that flight, including available weather reports and forecasts and alternatives in the event the planned flight cannot be completed. 17. The weather conditions, as shown by the weather reports, the defendant’s answers to plaintiffs’ requests for admissions, and the testimony of Mr. Leslie N. Krosschell, were above the minimums required by the regulations at takeoff. Prior to the flight at 1:37 P.M. C.S.T., an occupant of the airplane, who identified himself as a pilot, called the flight service station at Wausau, Wisconsin for flight information and a weather briefing; during this call the flight service station at Wausau, Wisconsin asked the caller if he could make the flight under instrument flight rules, to which the caller replied, “No.” During this call to the flight service station at Wausau, Wisconsin, the person who called was given the current Rhinelander and Wausau weather reports and terminal forecasts for Wausau, whereupon the caller stated that he was undecided as to whether or not to go and that he would call again. The Rhinelander weather, as reported at 12:45 P.M. C.S.T. was overcast 800 feet estimated, visibility 3 miles, very light snow, fog, a temperature of 32° Fahrenheit, wind from 090° at 5 knots, a dew point of 29° Fahrenheit and an altimeter setting of 29.76 inches of mercury. The Wausau weather as reported at 1:00 P.M. C.S.T. was a ceiling of 300 feet, indefinite with obscuration visibility of IV2 miles, light rain, light drizzle, fog, a temperature of 36° Fahrenheit, a dew point of 35° Fahrenheit, a wind from 120° at 8 knots and an altimeter setting of 29.72 inches of mercury and rain which began at 12:48 A.M. C.S.T. (Dew point is the temperature to which the air must be cooled to become saturated and is of significance to the pilot in that when the temperature reaches the dew point, water vapor can no longer remain invisible, but is forced to condense, becoming visible on the ground as dew or frost, or appearing in the air as fog or clouds, or falling to the earth as rain, snow or hail. Pilots are taught to expect that when the temperature and dew point are within 4 degrees of each other that precipitation or fog may be expected and that it will restrict visibility.) 18. Because the weather was worse over Northern Wisconsin, Northern Lake Michigan, and Northern Michigan, the decedents probably intended to fly south to the Chicago area and from there to Kalamazoo, Michigan. Plaintiffs introduced evidence that in fact the weather may have been improving to the south: AIRMET Echo 15. Valid 1150-1600: over the northeast three-quarters of Wisconsin, Upper Michigan, Lake Michigan, and the north three-quarters of Lower Michigan ceilings generally below 1000 feet and occasional visibilities below 2 miles. Conditions slowly improving from the south but conditions continuing over the northeast two-thirds Wisconsin, Upper Michigan, north and central Lake Michigan, and the north two-thirds of Lower Michigan through 1600. Continue advisory beyond 1600. An AIRMET identifies to the pilot the existence of weather phenomenon that is important to the safety of light aircraft and covers such things as moderate icing, moderate turbulence, existence areas of visibility less than two miles and/or ceilings less than 1000 feet. 19. The weather in the area where the aircraft crashed was marginal for flying. At 2:45 P.M. C.S.T. the weather reported at Rhinelander was 600 feet overcast as measured by balloon, visibility of two miles, very light snow, fog, temperature of 33° Fahrenheit, dew point of 31° Fahrenheit, wind from 090 degrees at 4 knots, altimeter setting 29.77 inches of mercury. The Wausau weather at 3:00 P.M. C.S.T. was estimated 700 feet overcast, 10 miles visibility, 36° Fahrenheit, dew point 36° Fahrenheit, wind 220° at 05 knots, altimeter setting 29.71 inches, rain ended at 2:15 P.M. However, the airplane was flying above minimal flying conditions. Mr. Shustrom in fact confirmed that he was flying within the legal limits when he reported back by radio after he was twelve miles out from the Land O’Lakes Airport that he was at 600 feet, with three miles visibility. He also had to be free of clouds at that time in order to have three miles visibility. 20. The manager of the Land O’Lakes Airport, Leslie Krosschell had a commercial pilot’s rating for single and multi-engine aircraft and was a certified flight instructor. At the time of departure of the plane, he observed the ceiling at the airport to be approximately 600 feet with variable visibility from 1 to 3 or 4 miles, and was able to pick out snow storms in the areas surrounding the airport, although there was no snow storm at the airport at the time of the departure. Prior to the flight, he advised at least one of the occupants of the aircraft that they should obtain additional weather information from the pilot of an incoming flight which was being flown under Instrument Flight Rules and Regulations. After this incoming plane had completed its landing, it turned around on the active runway towards the taxiway on which the subject aircraft was waiting. It continued to taxi off the active runway onto the taxiway and in doing so passed by the subject aircraft at a distance of approximately 25-30 feet. At that point Leslie Krosschell observed the landed aircraft to have ice accumulations. The significance of this fact lies in the implication that weather conditions were conducive to icing on an aircraft, a dangerous condition for small planes. However, under VFR flight rules a pilot is forbidden to fly in clouds. This plane which had landed was flying IFR (on instruments) through the clouds, and it was this that was probably responsible for the icing conditions. Because the pilot of the plane involved in this action, when he reported back to Land O’Lakes Airport at the 12 mile point (5 miles from the scene of the accident) did not report icing conditions, but did report visibility of 3 miles, the preponderance of the evidence establishes that there was no icing on the aircraft before the crash. ’ 21. The weather conditions were marginal enough to prevent two instrument rated pilots from deciding to take off. Additionally, both of plaintiffs’ experts agreed that the decision to take off in such weather may have been poor judgment. 22. All three persons aboard the aircraft were experienced pilots and knowledgeable enough to be deemed to have participated equally in the gathering of weather information, navigation, and the decision to depart from Land O’Lakes on the fatal flight. 23. One eyewitness to the accident, Ronald Dickinson, age seven at the time of the accident, was playing outside his house located one mile south, southeast of the tower. His attention was drawn to the plane because it “sounded pretty low” and he observed it flying in and out of clouds. It was foggy at the time of the accident with a mixture of snow and rain falling. At least half the tower was obscured by clouds and the guy-wires were not visible due to the weather conditions. Only the bottom tower lights were, visible. The plane was obscured by clouds from Dickinson’s vision at the time of the accident, although he did hear it strike the guy-wire. 24. A second eyewitness, Julie Zdroik, was eight years old at the time of the accident and lived 1 and Vi miles northeast of the tower. She, too, remembers that less than half the tower was visible due to the clouds and that only the lower lights on the tower were visible. Due to the weather conditions the guy-wires, normally visible in good weather, could not be seen very well. Zdroik recalls seeing the plane from the time it flew over her until it struck the guy-wire. She also remembers the plane going “up and down” until it hit the wire. She confirms that snow was falling at the time of the accident and at times the ground fog and low clouds would merge. II. Facts as to the Allegedly Improper Marking of the Official U.S. Aeronautical Map. 25. Before the flight, one of the occupants of the subject aircraft asked Leslie Krosschell of Land O’Lakes Airport to purchase a current U.S. Aeronautical Sectional Chart for the local area, but was told that there were none available. Instead Mr. Krosschell gave to the occupants of the subject aircraft a then current State of Wisconsin Aeronautical Chart published by the Williams and Heintz Map Corporation. The State of Wisconsin chart was intended by its printers for use in aerial navigation and could be used for that purpose. 26. The United States Government disseminated its aeronautical maps covering the Green Bay area, the area wherein the accident occurred, in the states of Wisconsin and Michigan during the years of 1967 and 1968. 27. The location of the subject antenna structure was inaccurately depicted on the 1967 Green Bay Sectional Chart put out by a department of the United States Government. Although the Green Bay Sectional Chart depicted the tower as being west of the town of Starks, Wisconsin, and south of the railroad tracks, the actual location of the tower was north of Starks and north of the railroad tracks. The reason for the error was that the Sectional Chart depicted the location of the tower as it was originally planned. However, the actual location of the tower was moved for engineering reasons. 28. Apparently the 1967 Green Bay Sectional Chart showed the location of the tower as originally proposed and was not changed to show the actual location until some time after the accident in question here. No evidence was introduced to show that the displacement was corrected on the 1968 Green Bay Sectional Chart. In fact, the 1968 Chart, which would have been current for use at the time of the accident, showed the same displacement of the tower. 29. The displacement was material because it was on the wrong side of railroad tracks which pilots often use as reference points when flying by visual flight rules (VFR). The erroneous marking of this tower on the aeronautical maps normally used by pilots constitutes a real and foreseeable danger to pilots flying VFR. 30. The same error in placement of the tower was made on the State of Wisconsin Chart received by plaintiffs’ decedents. 31. The type size on the Sectional Chart of the elevation figure for the subject tower indicates that it is one of the highest obstructions on the chart. At the time of the accident there were also marked on the Wisconsin Aeronautical Chart towers located in Northern Wisconsin of 1625 feet located north of LaCrosse, Wisconsin; of 1166 feet located south of Green Bay, Wisconsin; and of 2000 feet located southwest of Eau Claire, Wisconsin. 32. The Green Bay Sectional Chart covers only Northern Wisconsin and the Northern Lower Peninsula of Michigan. The Wisconsin Aeronautical Chart covers all of Wisconsin and includes Northern Illinois and the Chicago area. Either chart was perfectly acceptable for use in navigation, although many pilots prefer the Sectional Charts over State Charts. 33. The Wisconsin Aeronautical Chart may have been used by the occupants of the plane to navigate towards the Chicago area, which is not mapped on the Green Bay Sectional. This is because the weather sought of plaintiffs’ area was improving. See finding of fact # 18. 34. Barbara Breeden had returned to her, at some time shortly after the accident, a briefcase belonging to her husband which had evidently been aboard the aircraft in question at the time of the accident. Mrs. Breeden was unable to trace the chain of custody of this briefcase and map. Inside the briefcase was a Green Bay Sectional Chart, neatly folded, which shows a displacement of the subject tower. This map was marked as obsolete for use in navigation after December 7, 1967. 35. There was evidence introduced that the pilots always carried a standard U.S. government sectional map when flying. The pilots arrived at the Land O’Lakes Airport without the use of the Wisconsin map, therefore in all probability they had the old sectional in use, (the one which was returned to Mrs. Breeden) which placed the tower in the same location as the current sectional. 36. Before take off from the Land O’Lakes Airport the pilot, Jerome Shustrom, was warned not to go inside of the control zone at the Rhinelander Airport, which in turn would most probably force the pilot to fly in the area of Starks, the area where the tower was located. There is evidence that if the pilot was cognizant of the town of Starks and of the relative geographical relationship of the tower on the aerial maps, that pilot would not be negligent in flying on the east side of Starks, the side where in fact the tower was located. 37. The U.S. Sectional Chart for Green Bay was used as a source of reference in the production of the Wisconsin aeronautical map, and the error on the Wisconsin map is identical to that on the Sectional Map. Hence it is reasonable to conclude that the error on the Green Bay Sectional Chart was responsible for the error in placement of the tower on the Wisconsin state map. III. Failure to Warn of Such Improper Marking. 38. At no time was a NOT AM published warning pilots of the construction or presence of this 1700 foot tower and supporting guy-wires. 39. At no time was a NOTAM published warning of the displacement of the tower on the Sectional Chart. 40. There is no evidence that it is common practice for the FAA to issue NO-TAMs regarding the presence of communications towers already charted on the Section Chart. 41. There was no evidence presented that NOT AMs are used to warn pilots of navigational chart errors such as occurred here. IV. Facts as to the Allegedly Improper Grant of Permission for Construction of the Tower. 42. The subject tower was owned and operated by Northland Television, Inc. (Northland). Northland’s president and sole stockholder was Congressman Alvin E. O’Konski. It is an understatement to say that Congressman O’Konski attempted to use his position to influence and speed the granting of the necessary permits from the FAA and FCC for the construction of the tower. Congressman O’Konski prominently displayed as his return business address on the application forms his House Office Building address. Congressman O’Konski sent letters to the FAA officials on his Congressional stationary asking for “priority” on the matter and reminding them of the support he had given the FAA during his 23 years in Congress. The application was referred to officially in the FAA notices as the application of Congressman O’Konski rather than as the application of Northland. This type of dealing with government agencies is improper. . 43. Congressman O’Konski received a determination of “no hazard” from the FAA on June 15, 1965 for the originally proposed location of the tower, one-tenth mile west of Starks, Wisconsin. Due to engineering requirements, the location of the tower had to be changed to one-tenth mile north of Starks, Wisconsin. A new determination was made by the FAA on March 28, 1966 that the new location “would have no adverse affect on aeronautical operations, procedures or minimum flight altitudes” as compared to the originally planned location and would present “no hazard” to air navigation in the area, “provided the structure is obstruction marked and lighted in accordance with FAA standards.” 44. Before building the proposed tower, the FAA, in conformity with 14 C.F.R., Part 77, solicited the general aviation public in connection with its determination of no hazard for the construction of the proposed tower, whereupon it received various objections and concurrences to the building of the proposed tower. The Airline Pilots Association on March 11, 1965, wrote to the Chief of the Air Space Branch, Air Traffic Division, of the Federal Aviation Agency stating that “the Airline Pilots Association objects to the erection of this tower and the proposed site because of the extreme hazard of (sic) all aircraft operating in the vicinity of Rhine-lander, Wisconsin, and on the direct route between Rhinelander and Iron Mountain. * * * A tower of this height must be located where airplanes seldom, if ever, fly. ♦ * # yy The Gran-Aire, Inc. of Milwaukee, Wisconsin, objected on February 24, 1966, to the FAA as follows: “Gentlemen: During the original aeronautical study on this proposal I offered no objection and in fact gave my tacit approval. However since than I have been advised that the tower would not be a rigid self-sustaining tower but would be supported by long guy-wires. These guy-wires supporting a tower that is excessively high above ground greatly enhances (sic) the probability of a collision by a VFB aircraft during marginal weather conditions. The hazard will exist the year around but will jeopardize flying vacationers the warmer seasons when they fly in great numbers through this area. Flying during good weather requires all the skills of a private pilot over this terrain. My objection is offered. W. J. Lotzer.” (Emphasis added.) The Aircraft Owners and Pilots Association, Washington, D. C., in a letter to the FAA wrote “ * * * There are some 2440 private and business aircraft owned by citizens of Wisconsin, many of whom would be exposed to the hazard of such a tall structure. To the immediate south in Illinois, there are some 5800 privately owned aircraft. To the east and to the west we have Michigan 5150 general aviation aircraft, with 3270 more owned by citizens of Minnesota. Many of these aircraft can also be expected to be exposed to this hazard. While these 16,600 aircraft are located nearby, it should be remembered that any of the more than 110,000 aircraft in the United States General Aviation Fleet can, and many do, bring vacationers through this area. “The Aircraft Owners and Pilots Association, a non-profit corporation, established to represent the interests of the private and business aircraft owner and pilot, objects on behalf of our more than 127,000 members, to the construction of a 1707 foot high structure as proposed. Our objection would be withdrawn if the proposed structure is reduced in height to 1029 feet above the ground.” In addition to the above, there were other objections as well as inter-agency communications which expressed great concern about the tower being built too close to the railroad and highway which they recognized were identifying routes for VFR pilots. 46. Congressman O’Konski apparently had the approval of North Central Airlines, Oneida County officials, Oneida County Airport officials, the Regional Manager of the Air Transport System, and the President of the Wisconsin Professional Aviation Association. 46. The FAA in a release dated March 8, 1965, made a statement of approval which this Court determines was inconsistent with the evidence before it and which indicated favoritism to the applicant. The report said: “Such a structure will be a definite hazard to non-IFR general aviation aircraft because of aviation activity in the area when ceiling and visibility are down. The real problem is when the pilot who becomes lost or confused which can happen so easily in the north woods (sic). However television is also very important to the many residents and tourists in the north that I feel it’s worth the chance so long as it remains the only one to be approved.” (Emphasis added.) 47. - The FAA is limited in its authority to control the construction of such broadcast towers. The FAA is authorized to conduct aeronautical studies to determine the effect of a proposed tower on air navigation. 14 C.F.R. § 71.31. If the FAA determines that the antenna presents no hazard, then the FCC will proceed to determine the application for radio station authorization without further considering its effect upon air navigation, 47 C.F.R. § 17.-4(d) (1972). If the FAA determines that the tower will be a hazard, “the Commission will take further appropriate action.” 47 C.F.R. § 17.4(e) (1972). Thus although neither the FAA nor the FCC is authorized to prohibit the construction of such a tower per se, the FCC is authorized to determine whether a license for the use of such a tower for radio broadcasting should be granted, and included within such a determination is whether the tower has been found by the FAA to be a hazard to navigation. Assuming that the tower is intended to be used for radio and/or television broadcasting, such a denial of a broadcasting license by the FCC on the basis of the FAA hazard determination is in effect a denial of construction of the tower by the FCC. V. Facts as to the Alleged Failure of the FAA to Require Proper Markings on the Tower. 48. The tower could probably be seen for a distance of at least ten miles when visibility is not a problem. 49. .The tops of the guy-wires and the tower were completely covered with clouds at the time of the accident. 50. The steel structure part of the tower was painted with alternate bands of red and white paint, and had lights installed on it. These lights included flashing lights,' and were operating at the time of the accident. 51. The guy-wires on the tower were neither painted nor had lights attached. 52. The FAA through its publications to pilots warns them of the dangers of tall communications towers and their attached guy-wires. 53. These guy-wires become almost invisible under marginal weather conditions. 54. The FAA does not require specific lighting on towers because it does not have the authority to do so. However, the FAA does put out recommendations as to lighting, FAA Advisory Circular AC 70/7460-1 entitled “Obstruction Marking and Lighting.” 55. The Federal Communications Commission (FCC) does require specific lighting of antenna structures, 47 C.F.R. § 17.21; 47 C.F.R. § 17.35. The latter regulation requires a beacon at the top of the structure, flashing beacons spaced along the antenna and placed “within the tower proper,” and red obstruction light globes spaced intermittently along the tower and “installed on each outside corner of the structure.” The FCC lighting regulations are identical to the FAA recommendations for lighting. 56. These FCC regulations define “antenna structures” as including “the radiating system, its supporting structures and any appurtenances mounted thereon.” 47 C.F.R. § 17.2. 57. The FCC has the power to require additional lighting on an antenna: “If an antenna installation is of such a nature that its painting and lighting in accordance with these specifications are confusing, or endanger rather than assist airmen, or are otherwise inadequate, the Commission will specify the type of painting and lighting or other marking to be used in the individual situation.” 47 C.F.R. § 17.22. 58. The FAA in an advisor circular, AC 70/7460-1, dated 2/29/68, stated that “the FAA will recommend appropriate marking in an area where towers, poles, and similar obstructions are so grouped as to present a common hazard to air commerce; where the hazard of a particular obstruction is increased by guy-wires or other appurtenances; or where invisible'hazards to aircraft in flight may exist.” 59. There is no policy by the FAA at the present time to require lights or other markings on guy-wires supporting broadcast towers. VI. Facts as to the Failure to Issue a NOTAM Warning of the Unusually Long Guy-wire. 60. The FAA had issued no Notice to Airmen (NOTAMs) warning pilots of the long guy-wires present on this broadcasting tower. 61. NOTAMs are intended to handle “time critical information which would affect a pilot’s decision to make a flight,” according to the Flight Services Manual published by the FAA. Examples of such temporary hazards or new obstructions given in the manual include obstruction warning light outages, airport light outages, bird activity, aircraft jettisoning fuel, and new construction such as TV towers and tall buildings for which no obstruction lighting has been installed yet. 62. The existence of the unusually long guy-wires on this particular tower were in place long enough to have disseminated this information to pilots by other means than by NOTAMs; there existed no such time critical need as to require the use of NO-TAMs. VII. Facts as to Damages. 63. At the time of his death, Mr. Thomas Reminga was self-employed in the Valley City Enterprises in Kalamazoo, Michigan. He was a stockholder in this company along with James R. Breeden and a Mr. Charles Keckler. Reminga was president of the company. 64. Decedent Thomas Reminga and plaintiff Gertrude Reminga had never been married to any other spouse at the time of death. 65. Decedent James Robert Breeden and plaintiff Barbara Breeden had never been married to any other spouse at the time of death. 66. Thomas H. Reminga was the father of three children, whose ages at the time of death were as follows: Thomas, 21 years; Susan, 17 years; and Mary, 15 years. 67. James Robert Breeden had no children. 68. Thomas H. Reminga was 44 years of age at the time of his death; the life expectancy according to the life tables of the United States Vital Statistics of a man 44 years old- is 28.2 years. 69. James Robert Breeden was 29 years old at his death. The life expectancy of a 29 year-old man is 41.7 years. 70. The combined income tax returns for James R. and Barbara Breeden from 1964 through the accident are as follows: 1964 - $10,179.10 1965 - 10,948.54 1966 - 11,326.15 1967 - 5,554.19 1968 - 9,996.43 The average income for James Breeden therefore in this five-year period was $9,601.00. 71. The combined income tax returns for ten years prior to the accident indicate that Thomas H. Reminga had an average income of $10,135.00 for that period. 72. The plaintiffs each received the sum of $25,000.00 from the Cadillac Company, Inc. (now the Shustrom Co., Inc.) because of the accident. 73. It is established that the decedents were reasonably successful in their business operations, and would probably have continued to prosper therein over the years. 74. The children of Thomas Reminga were deprived of the guidance and support of their father by reason of this accident and his resulting death. 75. Similarly, Marjorie Breeden, the mother of James Breeden, was deprived of the services and companionship of her son as a consequence of this accident and his resulting death. CONCLUSIONS OF LAW I. Conflict of Laws. This court has jurisdiction of the action under 28 U.S.C. § 1346 et seq., commonly referred to as the Federal Tort Claims Act. An initial question which faces this court concerns a conflict of laws. On January 24, 1975, this court denied the government’s motion to strike and/or reduce the ad damnum clause of plaintiffs’ complaint; the government had argued that the Wisconsin wrongful death statute, W.S.A. §§ 895.04-.05 was applicable. If so, this statute would have substantially limited plaintiffs’ possible recovery. As the following analysis will show, this court believes that Michigan law is applicable. Under 28 U.S.C. § 1346(b), liability under the Tort Claims Act is to be imposed on the government only where the government “. . . would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The focus in this case, therefore, is upon Wisconsin law. This section of the Act has been construed, however, to require the “whole law” of the state of the accident to be applied, including its choice of law rules. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Gowdy v. United States, 412 F.2d 525 (6th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 (1969). Wisconsin courts have abandoned the rule of lex loci delicti in choice of law for tort cases. Wisconsin first adopted a two-tiered analysis which began with a combination of “significant contacts” and “interest analysis” theories and then proceeded to “qualitative analysis,” beginning with a “weak presumption” in favor of lex fori and guided by Professor Robert Leflar’s five choice-influencing factors. Decker v. Fox River Tractor Co., 324 F.Supp. 1089 (E.D.Wis. 1971); Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965). In Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 204 N.W.2d 897 (1973), the Wisconsin Supreme Court recognized that this method of analysis was a “redundancy” and stated that: “While the Wilcox analysis well served its purpose where once made the choice of law was apparent, we deem it more appropriate merely to determine whether there is a conflict, i. e., will the choice of one law as compared to another determine the outcome. Once that is decided and the facts on their face reveal that to apply any of multiple choices of law would not constitute mere officious intermeddling, in the constitutional sense, the analysis should proceed with the law-selecting process based on the five factors [suggested by Professor Leflar] approved in Heath.” 204 N.W.2d at 902. These factors are: (A) Predictability of results; (B) Maintenance of interstate and international order; (C) Simplification of the judicial task; (D) Advancement of the forum’s governmental interests; (E) Application of the better rule of law. Id. It is significant to note that in Hunker the Wisconsin court avoided the unfortunate tendency to oversimplify Leflar’s five factors to merely the “better law” rule. In light of Hunker, this court begins its analysis by stating that a conflict of law exists in the present case. If Wisconsin law applies, there will be a limitation of recovery of damages for wrongful death and the rule of comparative negligence will apply. If Michigan law applies, there will be no limit on the recovery of damages for wrongful death and the defense of contributory negligence may be applied. Hunker stated the preference for the application of forum law as follows: “This court, as an instrument of governmental policy of the State of Wisconsin, is obligated to find the law of its forum controlling unless it can be demonstrated that the law derived from another jurisdiction is more appropriate.” 204 N.W.2d at 903. 28 U.S.C. § 1346(b) reinforces this presumptive rule in favor of the law of the forum state by requiring this court to look to “the law of the place where the act or omission occurred.” This court must of course apply the whole law of Wisconsin, but certain of the considerations which would normally favor choosing the Wisconsin law were this case being tried in Wisconsin, e. g., ease of application, or better understanding of the law, and a better understanding of the probable disposition of the case by a Wisconsin state court, are not as compelling here where the case is being tried in Michigan. Concerning the questions of limitation of damages for wrongful death, whether contributory negligence or comparative negligence is applicable, and whether the doctrines of assumption of risk and imputed negligence apply, I conclude that a Wisconsin court would choose Michigan law as being the proper law to apply to this case. Although it has been said that in a tort action the predictability of result as a choice-influencing consideration is “minimal”, since parties do not plan to be negligent, still this factor is relevant but in a different sense, as the court in Hunker recognized: “[T]he question is not whether parties plan to commit an unintentional act — -by definition they could not — but whether, in the event the unintended contingency occurs, the result, i. e., the legal consequence of the unintended act, comports with the predictions or expectations of the parties.” 204 N.W.2d at 903. In this case, the trip began and was intended to end in Michigan. The decedents and their dependents were all Michigan residents. Insurance on the plane was presumably maintained with Michigan law in mind. The application of Wisconsin law to limit the recovery of damages for wrongful death cannot be said to be predictable to the parties. The same may be said for questions concerning whether decedents’ lack of care (if any existed) might limit their recovery if, in fact, defendant is adjudged to have been negligent. The second consideration, maintenance of interstate and international order, “requires that a state that is minimally concerned defer to the interests of a state that is substantially concerned.” Conklin v. Horner, 38 Wis.2d 468, 479, 157 N.W.2d 579, 584 (1968). Wisconsin’s interests are not so inconsequential as to make application of its law unconstitutional. However, Wisconsin’s sole concern is that the accident occurred there. Application of Michigan law as to the amount of damages plaintiffs may recover would injure no important Wisconsin aeronautical safety policy. Whether plaintiffs are barred fully or only partially from recovery by any negligence on the part of their decedents will not affect the integrity of Wisconsin law relating to the standard of care to be used in its airways. Conversely, Michigan’s interests in the action are substantial. Michigan has an interest in its citizens recovering damages for injuries in a uniform manner. Because Michigan is the residence of the decedents and their survivors, its economy and law shall determine the income basis upon which plaintiffs’ economic losses may be computed. Any public assistance due the survivors shall come from Michigan. On balance, the disposition of a case such as this under Michigan law will not disrupt any important Wisconsin interest or otherwise affect orderly relations between the two states. As to simplification of the judicial task, this court, notwithstanding that for purposes of this discussion it is applying the forum law of Wisconsin, would find its task complicated by the necessity of applying Wisconsin law throughout the trial. This court’s struggle with the Wisconsin rules as to choice of law stands as mute evidence of this problem. Wisconsin’s governmental interest would not be defeated if Michigan law applies. The compensatory aspect of tort liability is the most important aspect of Wisconsin tort law, Hunker, supra. Application of Michigan law will not preclude liability, nor will it limit liability as Wisconsin law would. In fact, Wisconsin subsequent to the date of this accident repealed its wrongful death limitation on recovery, Snow v. Continental Products Corp., 353 F.Supp. 59 (E.D.Wis. 1972), and this indicates that Wisconsin’s public policy now favors no statutory limits on recovery, a result which will accrue only by the application of Michigan law. Although Michigan’s contributory negligence rule may on some instances deny plaintiffs a recovery they might otherwise have had under Wisconsin’s comparative negligence rule, that is not such a compelling reason as it was in other Wisconsin cases where the Wisconsin court chose to apply Wisconsin law rather than foreign law. See Hunker, supra 204 N.W.2d at 906. Those cases can be distinguished in that foreign law, usually automobile guest statutes, would certainly and totally have denied compensation, while the Wisconsin law would not. Thus it is understandable that such Wisconsin courts would find their law to be the “better” law. This is not the case here, however, because such a denial of plaintiffs’ claim is not certain under Michigan law. In light of the compensatory aspects of Wisconsin tort law, and in view of the fact that Wisconsin subsequent to this case abolished its limits on compensation for wrongful death, Snow, supra, it is clear to this court that a Wisconsin court would find Michigan’s wrongful death statute the better rule of law in terms of compensation. The issue concerning the use of the theory of contributory versus comparative negligence is a harder question. In at least one instance a court applying Wisconsin law had concluded comparative negligence to be the “better law.” Decker v. Fox River Tractor, supra, at 1091-92. This case may be distinguished however, because the contacts with Wisconsin were substantially greater in that case than those present here. Also, neither party has shown this court that a different result would be reached as to the standard of care if Michigan law is applied rather than Wisconsin law. Neither party has indicated in any way that such a difference exists. Finally, the “better rule of law” factor is not to predominate or be determinative. Although a Wisconsin court would likely find comparative negligence to be the better rule, I conclude that in light of all five choice-influencing factors, a court under Wisconsin law could apply Michigan’s law of negligence to the instant case. A similar result may be reached as to applying Michigan rules to determine the damages plaintiffs may recover. Therefore this court will look to Michigan law on these matters. II. Displacement of the Tower on the Sectional Map. The Government admits in its pleadings that the tower in question “was in an offset location on the aeronautical chart.” That is, it was erroneously placed on the map. It contends, however, that such an error in location is not negligence, that the error was not a proximate cause of the accident, and that in.any event plaintiffs’ decedents were contributorily negligent in flying in such weather. The United States has a duty, when publishing and disseminating aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff’s injuries, the government is liable for such damages as are caused. Murray v. United States, 327 F.Supp. 835 (D. Utah, 1971); Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala. 1968), aff’d, 411 F.2d 794 (5th Cir. 1969). The analysis of the Supreme Court in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), is applicable. “The Coast Guard need not undertake the lighthouse service. But onde it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair^ the light or give warning that it was no|; functioning. If the Coast Guard failed; in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.” This activity does not fall under either the discretionary function exception, Sullivan, supra, at 626, or the misrepresentation exception of 28 U.S.C. § 2680(h), Murray, supra, at 841. Cf. Somerset Seafood Co. v. United States, 193 F.2d ,631 (4th Cir. 1951). Defendant argues that the cartographer’s art is not so refined as to make the chart a perfect representation of the hazards and landmarks which are marked. It is true that some displacement of hazard markings is necessary where the hazards are located in a congested area of the chart so that the hazards are clearly shown. Defendant has shown no such need in the present case, however. Although the displacement was, at most, Vie of an inch, this displacement is material because it placed the tower on the wrong side of the railroad track; such tracks are often used by VFR pilots for a navigational aid. Defendant further argues that the purpose of aeronautical charts is not obstacle avoidance, but navigation. In both Murray and Sullivan the aeronautical charts were defective in that they indicated airports were lighted for night landings when in fact they were not. In both cases the government was found liable to parties injured when they attempted to land at night at those airports in reliance upon the charts. It is foreseeable that improper marking of a communications tower could result in injury to a pilot who is caused to become lost, or is desperately relying upon the chart in a sudden emergency not of his or her own making. There is evidence that all pilots have been trained to use the sectional map which is printed under the supervision of the defendant. There is also evidence that there was a Wisconsin aeronautical map given to the pilot at the Land O’Lakes Airport after Mr. Krosschell at the Land O’Lakes Airport stated that he had no current Government sectional map. The Wisconsin map also had the tower misplaced as did the Government map. However, there is also evidence that the standard United States Government Sectional map was always taken along with the pilots, and one was returned in Mr. Breeden’s briefcase which was returned to Mrs. Breeden following the accident. Also, the pilots arrived at the Land O’Lakes Airport without the use of the Wisconsin map. Therefore in all probability they had the old sectional in use (the one which was returned to Mrs. Breeden) which placed the tower in the same wrong location as the then current sectional. The government made no corrections on either map edition until after the date of the accident. Even if decedents had been using the Wisconsin state aeronautical map, it has been determined that that map was copied from the Governmental Sectional Map for Green Bay, and thus the tower misplacement which it contained was carried over into the state map. Hence the United States Government is directly responsible for any error in the Wisconsin map because of their original and continuing negligence in misplacing the tower on the Sectional Map. The erroneous marking of this tower on the aeronautical maps normally used by pilots constitutes a real danger to pilots flying according to landmarks, and this was especially true in this particular case. It is common knowledge among pilots that light aircraft flying under visual flight rules use landmarks for navigational purposes. Therefore it is certainly foreseeable to the Government that an error in the placement of this tower would constitute a substantial and unreasonable danger to the pilots, such as these decedents, who use the Sectional Map. In summary, the United States Government is found to be negligent in its distribution of the Green Bay Sectional Maps containing an error in tower placement as described in the findings of fact, # 25-41. Further, I determine that this negligent action resulted in an unreasonable and foreseeable risk to pilots such as decedents, and that this negligent action therefore was a substantial and proximate cause of the accident. III. Failure of the Government to Issue a Notice to Airmen (NOTAMs) Warning Pilots of the Misplacement of the Tower and its Unusually Long Guy-wires. Plaintiffs’ second cause of action alleges that the Government was under a continuing duty to warn plaintiffs’ decedents of the misplacement of the broadcasting tower on the Green Bay Sectional Chart. The defendant admits that it issued no such warning. However, plaintiffs’ decedents were owed no duty of notice by defendant. Although issuance of a NOTAM that the tower was misplaced on the Green Bay sectional chart might have helped call the pilots’ attention to the presence of the tower, the United States had no duty to issue such a warning by NOTAM. Similarly, although plaintiffs also alleged that defendant breached a duty owed to plaintiffs’ decedents to issue a NOTAM concerning the dangerous condition caused by the unusually long guy-wires of the tower, here too the United States has no duty tc issue a NOTAM in the circumstances of this case. The reason that defendant owes no duty to plaintiffs’ decedents to warn of the above-mentioned hazardous conditions lies in the nature of the notice intended to be conveyed by NOT AMs. They are intended to warn pilots of temporary hazards in the path of flight or of obstructions which are not yet charted. As presented in the Flight Services Manual published by the FAA, (Handbook 7110.10, 1969), three methods are used to disseminate airmen information: (a) Aeronautical charts. (b) Flight Information Publications. (c) Notices to Airmen. NOTE. — Changes occurring so rapidly that time does not permit issuance in a chart or the AIM [Airmen’s Information Manual, the most frequently used Flight Information Publication] are publicized via Notices to Airmen. Originators of airmen information are expected to inform the National Flight Data Center in sufficient time before the effective date of changes to permit publishing of aeronautical data on the various charts or in the AIM. This leaves the NOTAM system free to carry out its mission — the handling of time-critical information which would affect a pilot’s decision to make a flight. . . . [Emphasis added.] Flight Services Manual, Part I at ¶480. Thus the NOTAM system is intended for time-critical information likely to affect a pilot’s decision whether to fly. The NO-TAM system and Notices to Airmen are the same thing. Notices to Airmen are defined as follows: Notice to Airmen. A notice identified either as a NOTAM or AIRAD containing information concerning the establishment, condition, or change to any components of, or hazard in the National Airspace System, the timely knowledge of which is essential to personnel concerned with flight operations. Id., Part I at ¶13. The Manual then defines NOTAM and AIRAD: NOTAM. A Notice to Airmen in message form requiring expeditious and wide dissemination by telecommunications means. Airmen Advisory (AIRAD), A Notice to Airmen normally given only local dissemination, during preflight or inflight briefing, or otherwise during contact with pilots. Id., Part I at ¶ 13. These Notices to Airmen are given out by the Flight Service Station (FSS), which is an air traffic service facility which gives out weather information, conducts pilot briefings, handles en route communications, etc. Plaintiffs’ decedents contacted a FSS for weather information before they took off, and plaintiffs now argue that they should have been given information concerning the broadcast tower because it would seem to fit within the definition of a Notice to Airmen, which the FSS is required to give out. It is not clear that the type of hazard which the tower allegedly presented was the type which the Notice to Airmen was meant to communicate. Examples of NO-TAMs given in the Manual include obstruction light outages, airport light outages, and new construction such as TV towers, tall buildings, stacks, etc. (Manual, ¶¶ 562, 570). Examples of AIRADs include warnings of aircraft jettisoning fuel and bird activity. (Manual, ¶¶ 590, 594). Thus it would seem that only events which suddenly arise or are of a temporary nature are meant to be conveyed by Notices to Airmen, and that the hazard presented by the broadcast tower in this case, being of a permanent character, could have better been communicated by another type of information source. Basically, what plaintiffs are attempting to do is to allege that the FAA at a minimum should have given notice to the aircraft involved here that the broadcast tower was hazardous. Plaintiffs presented their allegation in terms of using NOTAMs. This allegation the court rejects because the intended nature of the NOTAM as set forth in the Flight Services Manual is inconsistent with such a use as plaintiffs urge. However, even if this court presumes that plaintiffs also mean to allege that one of any of the forms of notice provided for by the FAA should have been used, the claim still must fall, for two reasons. The first is that no evidence was advanced by plaintiffs that any of the three forms of communication to pilots was intended to transmit this type of information. Second and more important, plaintiffs have failed to establish that even if there is a duty by the FAA to give notice of such a hazard as they allege this tower to be, that this information would have been received by plaintiffs’ decedents, and the lack thereof was the proximate cause of the crash. For these reasons, plaintiffs have no cause of action in this regard. IV. FAA Permission to Construct the Tower. The president and sole shareholder of the corporation which built the tower involved in the accident was a United States Congressman, Alvin E. O’Konski. This court has been presented with evidence which indicates that the congressman used his position to improperly influence the granting of the necessary permits from the FAA for the construction of the tower. Plaintiffs allege that this improper influence purges the agency of all discretionary immunity otherwise claimed by the government under 28 U.S.C. § 2680(a), and that the court therefore must step in, examine the evidence presented to the agency concerning the granting of the permits, and determine for itself whether the agency was negligent in arriving at its “no hazard to navigation” determination for the tower. The government responds by arguing that the FAA has no authority to prohibit the construction of such towers; that the State of Wisconsin does have such power, and that the proper forum therefore to challenge the decision that this tower presented no hazard is state court; that state law permits the construction of such towers; and that the proximate cause of the accident was plaintiffs’ decedents’ negligence in flying in such dangerous weather. Finally, the defendant alleges that the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a) applies, denying this court jurisdiction to pass on any alleged agency negligence. This court views defendant’s allegations that the government has no authority to prohibit the construction of such towers as being evasive and not responsive to plaintiffs’ charges. It is conceded that state law permits the erection of obstacles which may interfere with low-level flight. However, this tower can hardly be classified as a normal use of the land hazardous to only low-flying aircraft. It constitutes a major intrusion into the navigable airspace over Wisconsin. Similarly, this court grants that Wisconsin has the right under its statutes to regulate such towers, and to determine that they afford no hazard to navigation. However, by federal regulation there must be an investigation conducted by the FAA into the effect such a tower would have on navigation, 14 CFR § 77.1 et seq. This cause of action concerns the federal investigation of this tower, and it is this upon which the court focuses its attention. It is true that neither the FAA nor the FCC has direct authority to ban construction of such a tower, Illinois Citizens Committee for Broadcasting v. FCC, 467 F.2d 1397 (7th Cir. 1972). However, as noted above, the FAA does have authority to require that it be notified of such construction, and to make a determination as to whether the construction will be an obstruction presenting a hazard to air navigation. This determination is then passed on to the FCC when the obstruction involves a broadcast tower, and if it is determined to be a hazard to navigation, the FCC will consider this factor in taking further action, 47 CFR § 17.4(e). This further action includes the authority to deny a license to operate the tower for communications purposes. See Chronicle Publishing Co. v. FCC, 125 U.S. App.D.C. 53, 366 F.2d 632 (1966). Because, as Congressman O’Konski stated in/a letter to the agency, no one “wants to build a monument to himself,” the”denial of a broadcast license in effect prohibits construction of such a tower. See Airline Pilots Ass'n Int. v. Dept. of Transportation, FAA, 446 F.2d 236 (5th Cir. 1