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BAKER v. UNITED STATES

January 2, 1975

Mary Lou BAKER, Plaintiff,
v.
UNITED STATES of America, Defendant. Jeffrey J. MIDDLETON et al., Plaintiffs, v. UNITED STATES of America, Defendant



The opinion of the court was delivered by: BOLDT

 BOLDT, Senior District Judge.

 FINDINGS OF FACT

 The foregoing cases were tried, to the court, consuming ten trial days, more than seven years after initiation of the law suits, and more than nine years after happening of the accident out of which they arose. Plaintiffs' causes of action arose when an Aaxico Airlines DC-6 aircraft, No. N6541C, crashed into Mt. Rainier, southeast of Seattle, Washington, on April 23, 1965. The actions were brought pursuant to the Federal Tort Claims Act, 28 U.S.C., § 1346 et seq., which is within the jurisdiction of this court. *fn1"

 1. Aaxico Airlines, Inc., was a supplemental air carrier properly certified to conduct non-scheduled flight operations for the carriage of cargo or passengers, for compensation or hire, in air commerce or air transportation. Aircraft N6541C, a Douglas DC-6-6A, was operated in the carriage of cargo pursuant to a military contract and used the call sign "Logair 41C".

 2. The aircraft landed at McChord Air Force Base, Washington, completing a prior segment of flight at approximately 11:18 a.m. on April 23, 1965. Subsequent flight planning involved a short flight, direct to Boeing Field, Seattle, Washington, with an hour and a half operation and refuelling stop, thereafter to Hill Air Force Base, Ogden, Utah, via a flight plan route which included a V4 (Seattle VORTAC 102 degrees radial) to Burley, V101 Ogden direct to Hill Air Force Base. The flight plan filed by the captain, Alvin Petry, was on a Form DD-175. The military flight plan was filed with the Military Air Transport Service Operations at McChord Air Force Base. Shortly after Logair 41C landed at McChord Air Force Base, an individual identifying himself as a pilot on the Logair Aircraft called Basil Pepper, the Base weather station forecaster, and inquired if it would be possible to go VFR (Visual Flight Rules) from McChord Air Force Base to Boeing Field and then to Hill Air Force Base, Ogden, Utah. The caller was advised that over western Washington the general condition was 4000 scattered, 25000 broken cirrus and forecast to remain the same until 2:00 p.m. Then middle clouds at about 9 -- 10,000 would appear and increase the remainder of the afternoon and slowly lower. Most of the Cascade Mountains to Pendleton, Oregon, there would be cirrus only, bases 25,000. Pepper also advised the pilot that the forecast winds at 3000 feet, to Boeing Field, were from 200 degrees at 10 knots and from Boeing to Pendleton at 10,000 feet from 240 degrees 5 to 10 knots. The pilot of Logair 41C was required by regulations, 14 C.F.R. 42.303, and by the air carrier, to certify, and did so certify within 60 days of the flight, that he was knowledgeable and had studied as to the subject route and airport:

 
(1) weather characteristics appropriate to the seasons;
 
(2) navigation facilities;
 
(3) communication procedures;
 
(4) kinds of terrain and obstruction hazards;
 
(5) minimum safe flight levels;
 
(6) pertinent air traffic control procedures including terminal area, arrival, departure, and holding and all kinds of instrument approach procedures.

 3. Plaintiffs' decedents were flight engineers aboard the aircraft who were not trained for, nor responsible ...


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