Swoboda v. United States

C05.40176; 662 F.2d 326 (1981)

    • 4,00 kr
    • 4,00 kr

Publisher Description

Plaintiff Anne Swoboda filed a wrongful death action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346 et seq., and the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., alleging that the Federal Aviation Administration (FAA) proximately caused the death of her husband, Gerard Swoboda, by negligently failing to institute proper rescue procedures after the decedent's plane crashed off the coast of Alaska. The district court found in a non-jury trial that both the government and the decedent were negligent and that the negligence of each was a 50 percent proximate cause of death. The Government appeals and the plaintiff cross-appeals, each contending that the other's negligence was the sole proximate cause of death. Because we conclude that the district court's findings of negligence on the part of the government are clearly erroneous, we reverse. Gerard Swoboda, an experienced pilot, contracted with Transavia International to ferry aircraft from Taiwan to New Mexico via Midway Island and Adak, Alaska. Prior to his fateful trip, Swoboda had twice flown aircraft successfully over the identical route. On September 22, 1975, at 17:26 Greenwich Mean Time (GMT), Swoboda's and two other aircraft flying the same route departed Midway for Adak. Swoboda's flight plan indicated that the trip would take eight hours, that his estimated time of arrival at Adak was 01:26 GMT, that his plane contained enough fuel for eleven hours of flight and that his alternate destination in the event that Adak could not be reached was Cold Bay, Alaska. Ninety minutes after takeoff, Swoboda advised Honolulu Aeronautical Radio (ARINC) that he was experiencing difficulties with his radio and could no longer transmit on Very High Frequency (VHF), but retained the ability to transmit on High Frequency (HF).1 Because of these transmission difficulties, Swoboda communicated with the other two planes by pressing his hand-held Emergency Locator Transmitter (ELT) once to signify ""yes"" and twice to signify ""no"".2 At 19:55 GMT, responsibility for monitoring the planes was transferred from Honolulu to the Anchorage Air Route Traffic Control Center (Anchorage Center) although the planes remained in contact with Honolulu. Swoboda made a required position report to Honolulu at 20:36 GMT on HF and estimated that he would arrive at the next compulsory reporting position in an hour. That was the last verbal message received from Swoboda. At the next compulsory reporting position, one of the companion aircraft notified Honolulu ARINC that operations for the three planes were normal.

Professional & Technical
23 November
LawApp Publishers

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