ADMISSIBILITY AND EFFECT OF GOVERNMENT APPROVAL AND

ADMISSIBILITY AND EFFECT OF GOVERNMENT

APPROVAL AND CERTIFICATION OF AIRCRAFT

LEE S KREINDLER*

In recent years there have been a number of airplane crashes

caused by factors apparently within the control of the manufacturer

of the airplane rather than the operator. Thus, in September of 1959,

and May, 1960, Lockheed Electra aircraft came apart in the air

due to factors apparently related to the design of the aircraft, rather

than its operation by Braniff Airways and Northwest Airlines, re-

spectively. In 1948, a Northwest Airlines' Martin 202 came apart,

again apparently because of factors relating to design, rather than

operation. In addition, a number of small airplanes have sustained

structural failures in flight, resulting in claims directed at the in-

tegrity of the aircraft, rather than fault on the part of the operator.

Many of these accidents have led to litigation, and the litigation has

inevitably sought to define responsibility for alleged improper design

of the aircraft. This has led to the question of responsibility, under

a system where the design itself must be "certificated" or "approved"

by the responsible government agency.

The question of the significance of such certification or approval

has naturally arisen. If the responsibility of the government is

predominant, then, presumably, in litigation arising from these ac-

cidents, the government might be held just as liable, or more liable,

than the manufacturers. If, on the other hand, the responsibility of

the government is limited, the liability of the manufacturer would

appear to be unaffected, and the government would ordinarily not

even be a party to the litigation.

Illustrative of the problem is litigation arising out of an air-

plane accident which occurred in 1953. A small airplane sustained a

structural failure in flight under marginal weather conditions. In

litigation brought by the estate of the pilot against the manufacturer,'

the latter took the position that the responsibility of the government

was so great that it had preempted the field; that the Civil Aeronau-

tics Administration had ruled on the airworthiness of the aircraft and

its conformance to all accepted standards; and that it would hardly

* A.B.L. 1946, Dartmouth College LLB 1949, Harvard University; Partner in

the firm of Kreindler & Kreindler, New York City. This article has been adapted from

a portion of Mr. Kreindler's forthcoming book: Aviation Accident Law, Personal

Injury and Wrongful Death, to be published by Matthew Bender & Co., New York.

Prashker v. Beech Aircraft Corp., 258 F.2d 602 (3rd Cir. 1958), cert. denied,

358 U.S. 910 (1958).

367

BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

do for a lay jury to overrule the judgment of the responsible govern-

ment agency. The plaintiff in that case took the position that certifi-

cation of the airplane by the Civil Aeronautics Administration con-

stituted nothing more than the government's determination that the

airplane conformed with the minimum standards of the Civil Air

Regulations. The defendant took the deposition of a high official of

the Civil Aeronautics Administration who testified that certification

implied not only conformance with minimum standards of the regula-

tions, but, in addition, a subjective determination on the part of the

government that the aircraft was safe.

The legal importance of this determination is further indicated

in the CAB hearings into the Lockheed Electra structural crashes. In

Los Angeles, on July 21, 1960, this same official, now of the successor

agency, the Federal Aviation Agency, read from a letter written during

May of 1956 by the Administrator of Civil Aeronautics to the Chair-

man of the Civil Aeronautics Board as follows:

Authority for this procedure is found in section 603-A of the

Civil Aeronautics Act as modified by reorganization plans.

Section 603-A, after stating that the Administrator is em-

powered to issue Type Certificates for aircraft, aircraft

engines and propellers, goes on to say that if the authority

finds that such aircraft, engines, propellers or appliances

are of proper design, material specification, construction,

and performance for safe operation and meet the minimum

standards, rules and regulations prescribed by the Board,

it shall issue a Type Certificate therefor.

A. THE CERTIFICATION PROCESS

The basic authority under which most present day aircraft have

been certificated is the Civil Aeronautics Act of 1938, as amended.

The authority under which new aircraft are being certificated is the

Federal Aviation Act of 1958,

which, in this respect is exactly the

same as the former act.

Section 601 (a) of both acts provides:

The administrator is empowered and it shall be his duty to

promote safety of flight of civil aircraft in air commerce

by prescribing and revising from time to time:

(1) Such minimum standards governing the design,

Testimony of William Henry Weeks, Volume II,

CAB

transcript, Docket No.

SA-354, pp. 262-65,

July

21, 1960.

Stat.

1007 (1938), 49 U.S.C.



551-60 (1958).

Stat.

731, 49

U.S.C. §§

1301-1542 (1958).

368

GOVERNMENT APPROVAL AND CERTIFICATION OF AIRCRAFT

materials, workmanship, construction, and performance of

aircraft, aircraft engines and propellers as may be required

in the interest of safety:

(2) Such minimum standards governing appliances as

may be required in the interest of safety.°

Section 603 (a) provides:

(1)

The Administrator is empowered to issue type cer-

tificates for aircraft, aircraft engines, and propellers; to

specify in regulations the appliances for which the issuance

of type certificates is reasonably required in the interest

of safety; and to issue such certificates for appliances so

specified.

(2)

Any interested person may file with the Adminis-

trator an application for a type certificate for an aircraft, air-

craft engine, propeller, or appliance specified in regulations

under paragraph (1) of this subsection. Upon receipt of

an application, the Administrator shall make an investiga-

tion thereof and may hold hearings thereon. The Adminis-

trator shall make, or require the applicant to make such

tests during manufacture and upon completion as the Ad-

ministrator deems reasonably necessary in the interest of

safety, including flight tests and tests of raw materials

or any part or appurtenance of such aircraft, aircraft engine,

propeller, or appliance. If the Administrator finds that such

aircraft, aircraft engine, propeller, or appliance is of proper

design, material, specification, construction, and performance

for safe operation, and meets the minimum standards, rules

and regulations prescribed by the Administrator, he shall

issue a type certificate therefor. The Administrator may

prescribe in any such certificate the duration thereof and

such other terms, conditions and limitations as are required

in the aircraft, aircraft engines, or propellers, a numerical

determination of all of the essential factors relative to the

performance of the aircraft, aircraft engine, or propeller,

for which the certificate is issued.°

Section 603 (c) of the 1958 Act provides:

the Administrator an application for an airworthiness cer-

72 Stat. 775, 49 U.S.C. § 1421(a) (1958).

72 Stat. 776, 49 U.S.C. § 1423(a) (1958).

The 1938 act, 52 Stat. 1012 (1938), 49 US.C. § 560(a) (1958), was

the same

369

BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

tificate for such aircraft. If the Administrator finds that the

aircraft conforms to the type certificate therefor, and, after

inspection, that the aircraft is in condition for safe opera-

tion, he shall issue an airworthiness certificate. The Admin-

istrator may prescribe in such certificate the duration of

such certificate, the type of service for which the aircraft

may be used, and such other terms, conditions, and limita-

tions as are required in the interest of safety. Each such

certificate shall be registered by the Administrator and

shall set forth such information as the Administrator may

deem advisable. The certificate number, or such other indi-

vidual designation as may be required

the Administrator,

shall be displayed upon each aircraft in accordance with

regulations prescribed

the Administrator.

Section 610 (a) makes it unlawful for any person to operate

in air commerce any civil aircraft for which there is not currently in

force • an airworthiness certificate,

Thus, it is clear that certification is an integral part of the

manufacturing and utilization of civil aircraft in the United States.

It is not like the "Good Housekeeping Seal of Approval" as one

appellate judge flippantly remarked.' It is a

sine qua non,

without

which a manufacturer may not sell and an operator may not use

an airplane.

"Certification" consists, generally, of the awarding of a Type

Certificate to a manufacturer of an airplane, airplane engine, or

propeller, which, generally, attests to the safety of the design, plus

an "Airworthiness Certificate" attesting to the airworthiness or safety

of the particular airplane.

The type certificate itself, issued by the old CAA, or the present

FAA states that the aircraft is of proper design and related char-

acteristics for safe operation and that it complies with the minimum

requirements of the Civil Air Regulations.

The Civil Air Regulations are an extensive and detailed body

of rules and requirements relating to every phase of civil aviation,

including the design and performance of aircraft. Prior to the enact-

ment of the Federal Aviation Act of 1958 they were enacted by the

except that the Board, instead of the Administrator, had the authority to prescribe the

terms, conditions and limitations of the certificate.

72 Stat. 776, 49 U.S.C. § 1423(c) (1958).

Stat. 780, 49 U.S.C. § 1430(a) (1958).

Judge Goodrich, on the oral

argument

of Prashker v. Beech Aircraft Corp.,

supra note 1.

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GOVERNMENT APPROVAL AND CERTIFICATION OF AIRCRAFT

Civil Aeronautics Board," a quasi-judicial independent agency which

promulgated the regulations, awarded airline routes, ruled on safety

infringements, and investigated and determined probable cause of

aircraft accidents." Enforcement of the regulations, including the

awarding of type, production, and airworthiness certificates was left

to the Civil Aeronautics Administration, an agency of the Department

of Commerce."

With the advent of the Federal Aviation Act of 1958 the

function of promulgating the regulations was shifted from the Civil

Aeronautics Board to the newly created Federal Aviation Agency."

The agency also maintained the previous function of the Civil

Aeronautics Administration of enforcement of • the regulations, so

that at the present time the FAA both enacts and enforces the

Civil Air Regulations. The Civil Aeronautics Board still maintains its

quasi-judicial function of ruling on violations of regulations.

To obtain approval for its airplane an aircraft manufacturer

files an application for a type certificate with the Federal Aviation

Agency. The regulations applicable to the granting of this type

certificate are considered those regulations in force at the time of

the application." The manufacturer then submits extensive data to

the FAA. In the case of a small airplane this material might fill

three standard file drawers." The material, generally, consists of all

the basic design data on the airplane including drawings, engineering

studies, and fight test reports.

The FAA then conducts its own flight and evaluation tests and

reviews all of the data and information supplied by the manufacturer.

If it determines that the airplane meets the requirements of the

regulations, and if it subjectively finds that the airplane is "safe",

it issues a type certificate. This, as indicated above, is a document

that certifies that the airplane meets the minimum standards of the

regulations and has no characteristic rendering it unsafe for normal

operation."

With changes in the design of the aircraft, when the basic

design remains the same, the type certificate is amended to incor-

porate the change. A major change in the model, however, will

result in the issuance of a new and separate type certificate, since

52 Stat. 980 (1938), 49 U.S.C. § 421 (1958).

52 Stat. 984 (1938), 49 U.S.C. § 426 (1958).

52 Stat. 985 (1938), 49 U.S.C. § 452 (1958).

72 Stat. 775, 49 U.S.C. § 1421(a)(3) (1958).

14 C.F.R. § 41).11(a) (Revised 1961).

to Deposition of William Henry Weeks, p. 10, Prashker v. Beech Aircraft Corp.,

Civ. No. 1643 (D. Del. Aug. 14, 1952).

14 CF.R. § 406.14(a) (Revised 1961).

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BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

the new aircraft is considered a basically different aircraft from its

predecessor.

In the evaluation process that precedes the granting of a type

certificate, the FAA may and does suggest changes in the design or

in the characteristics of the airplane. These suggestions are, of course,

discussed with the manufacturer, and usually lead to the changes

being made, or to some substitute change being made, since the

manufacturer must satisfy the FAA (or must have satisfied the

old CAA) to obtain its type certificate. Thus, in the case of the

original Beechcraft Bonanza airplane the design dive speed was

250 miles per hour. The Civil Aeronautics Administration felt that

this speed was too great and suggested that it be reduced to 225

miles per hour. This was done by the manufacturer, and 225 miles

per hour remained the designed dive speed through seven models of

the Bonanza.

To varying degrees the manufacturer may shift the burden

of examination and testing, leading to certification, to itself. Manu-

facturers of small airplanes (those having a maximum weight of

less than 12,500 pounds) may follow the "Delegation Option Pro-

cedures" specified in Part 410 of the Civil Air Regulations.m

Under this Part, upon application by a qualified manufacturer,

the Administrator may "delegate the functions to properly qualified

private persons."' Such a person, known as a Designated Manu-

facturer's Certification Representative (DMCR) must hold a respon-

sible position in the manufacturer's organization with respect to the

design and manufacture of the airplane, and must have been issued

a certificate by the Administrator. To qualify under the Delegation

Option Procedure a manufacturer must already hold a Type Certifi-

cate and Production Certificate and must employ a competent staff

of engineering, flight-test, production and inspection personnel ade-

quate to maintain compliance with the applicable certification re-

quirements.'

Even under this procedure the actual certification of the air-

craft is given under the sharp scrutiny and review of the Federal

Aviation Agency. At any time the FAA may inspect the manufac-

turer's organization, facilities, product and records.' In addition, the

criteria used by the DMCR to determine airworthiness, the sub-

stantiation process utilized, and the characteristics of the design itself

14 C.F.R. II 410.11-410.18 (Revised 1961).

14 C.F.R. I 410.2 (Revised 1961).

14 C.F.R.



410.13 (Revised 1961).

14 C.F.R. 1410.18 (Revised 1961).

372

GOVERNMENT APPROVAL AND CERTIFICATION OF AIRCRAFT

must all be approved by the FAA.

The FAA also "will verify

compliance with standards, rules and regulations for unconventional

designs and/or design features having a substantially significant

effect on safety, and will determine that there are no apparent un-

airworthy features."

The FAA may also verify compliance and

may, to the extent it desires, participate in the test programs. The

type certificate itself is still issued by the Administrator upon ap-

plication and a Statement of Compliance submitted to it by the

DMCR. Once a type certificate has been issued, however, a DMCR

may himself issue an airworthiness certificate for particular air-

planes that he finds conform to the type design and are in condition

for safe operation."

The FAA may at any time withdraw a manufacturer's privileges

if the manufacturer has not complied with the requirements of the

procedure."

In addition to the designation option procedures, which are

limited to small aircraft, Part 418 of the Civil Air Regulations pro-

vides for "Representatives of the Administrator" including "Des-

ignated Engineering Representatives" (DER). The type of engi-

neering representative designations issued by FAA are: structural

engineering, powerplant engineering, systems and eqiupment engine-

ering, radio engineering, propeller engineering, flight analyst and

flight test pilot.'

A DER may approve engineering data and other considerations

in his field within limitations prescribed by the Administrator and

under his general supervision." A flight test pilot representative, for

example, who would normally be a flight test engineer employed by

the manufacturer, could conduct flight tests, "and prepare and approve

flight test data, relating to compliance with Civil Air Regulations

within limits prescribed by and under the general supervision of

the Administrator or his authorized representative.""

In the certificatilon of the Lockheed Electra, for example, many

analyses and tests were performed by designated Lockheed employees,

with the data and results submitted for approval to the then Civil

Aeronautics Administration." The CAA itself organized a Type Cer-

tification Board which conducted the certification processes relating

14 C.F.R. § 410.32 (Revised 1961).

14 C.F.R. § 410.32(a)(2) (Revised

1961).

14 C.F.R. § 410.32(6) (Revised 1961).

14 C.F.R. § 410.36(f) (Revised 1961).

26 14

C.F.R. §

418.24(a)

(Revised 1961).

14 C.F.R. § 418.24(6) (Revised 1961).

14 C.F.R. § 418.24(6)(8) (Revised 1961).

Testimony of Edward H. Spalding, supra note 2, at 232-55.

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BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

to the airplane. Three formal meetings Were held by this board, each

of which was attended by about twenty-four CM representatives

from both the Washington, D.C., and Regional Offices. CM personnel

witnessed all major tests and conducted many of their own. In all,

CAA personnel

expended

approximately 19,000 engineering man hours

on the Electra type certification project."

B. ADMISSIBILITY IN EVIDENCE OF CERTIFICATION OF AIRCRAFT

There is only one reported case in which the question of admissi-

bility of a type certificate or airworthiness certificate was squarely

presented.

Maynard v. Stinson Aircraft Corporations'

held that a

certificate of airworthiness was not admissible because of a failure,

in that case,

to lay a proper foundation; specifically, to prove the

particular inspections upon which it was based. The court said:

The plans might have been carefully checked by the experts

of the United States Government. Then again they might

not. The parties were denied the opportunity by federal

officials to find out whether they were or were not checked,

and therefore the certificate itself becomes immaterial and

incompetent in this case."

The court also stated:

There is testimony here that an inspector of the Department

of Commerce inspected this plane before it was licensed

for sale. The fact of the inspection is established. What

inspection was made is not established. The testimony is

offered here and is given here of employees or officers of the

Stinson Aircraft Corp. that a United States inspector did

appear and did examine the plane, but they cannot testify as

to what examination he made. Only the man who made the in-

vestigation can testify what kind of an examination he made,

and that man has not been produced as a witness here in this

case.

The clear implication of the

Maynard

case, however, is that, in an

action against an aircraft manufacturer involving the allegation of

bad design, if a proper foundation is offered, the certificate of air-

worthiness would be admissible.

Testimony of C It. Hawks, supra note 2, at 276-93.

(Cir. Ct. Wayne County, Mich. No. 197,605, Oct., 1937), 1940 U.S. Av. Rep. 71,

1 Avi. 698.

Id. at 80, 1 Avi. at 703.

Id. at 79, 1 Avi. at 702.

374

GOVERNMENT APPROVAL AND CERTIFICATION OF AIRCRAFT

Prashker v. Beech

the question of admissibility of the Bo-

nanza's type certificate was considered by the court in pretrial." The

plaintiffs, in the

Prashker

case, claimed that the airplane was improp-

erly designed and that it was manufactured by Beech after knowledge

of the defects. Beech indicated it would offer, at the trial, the type

and airworthiness certificates. The plaintiffs argued that the cer-

tificates themselves were not admissible unless it was first shown that

the matters in issue (the particular characteristics of the airplane that

the plaintiffs claimed were unsafe) had been explored or examined

by the CAA, prior to issuing the certificates. The plaintiffs also

claimed that the certificates could only be admitted through the testi-

mony of the CAA inspectors who actually granted them.

The defendant Beech argued that the type certificate itself was

admissible "both as an official record pertinent to this case, to

establish that the Bonanza complies with all Civil Air Regulations,

and as an element to be weighed by the jury in deciding whether or

not Beech had notice!"

In its pretrial opinion the court stated:

. . . I am of the opinion that the certificates would not be

admissible as to the general safety or approval of the plane

but would be admissible as tending to negative notice of

general unsatisfactory nature of the plane arising from

prior accidents.

The complaint alleges a duty on Beech to make tests. A cer-

tificate showing that tests were made would be admissible

to meet the allegations of the complaint regardless of the

specific nature of the tests."

Thus, in effect, the court took the position that since the plaintiff

was not only claiming negligence in the design of the airplane, but

was claiming knowledge or notice on the part of Beech of the fact

that the design was poor, the certificate itself, or the mere receipt

from the government of the certificate was admissible on the narrow

issue of notice. It would not, however, be admissible on the issue of

negligent design itself. Apparently with the desire of having the type

certificate admissible for all purposes, Beech subsequently took the

deposition of the CAA official who actually granted the certificate.

It is thus apparent that in the only known litigation to date, the

only objections to the admissibility of type or airworthiness certificates

Pretrial opinion of August 13, 1957, Prashker v. Beech Aircraft Corp., supra

note 16.

Pretrial brief of defendant Beech, in Prashker v. Beech Aircraft Corp., supra

note 16.

Supra note 34, at 10.

375

BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

have been directed to the question of proper foundation. It would

appear to

possible, if not probable, that in future litigation against

aircraft manufacturers, based upon improper design or improper con-

struction of aircraft, plaintiffs will take the position that, even assuming

a proper foundation, the certificates issued by a third party (the CAA

or the FAA) should not be admissible on issues between the injured

party and the manufacturer. It may be argued that the ultimate

question of whether the design or construction was good or bad is

for the jury in the particular case, rather than for the government

agency. Thus, it may be argued that approval by the government

is incompetent and immaterial, as evidence of the propriety of the

design and construction. It is difficult to speculate on what the courts

will do with these arguments. It would seem on the surface, however,

that considering the important part in the manufacturing process

that certification plays, and considering further the fact that a type

certificate and an airworthiness certificate are required,

before an

airplane can be flown, plaintiffs will have great difficulty in excluding

such evidence.

C. THE LEGAL SIGNIFICANCE OF CERTIFICATION

Prashker v. Beech Aircraft Carp.,"

the defendant, Beech Air-

craft Corporation, took the position that approval and certification of

an aircraft by the Civil Aeronautics Administration was a fact of such

legal significance that it pre-empted the question of proper design;

that it would be improper and contrary to the intention of Congress

in enacting the Civil Aeronautics Act of 1938 to permit a common law

jury to overrule the judgment of the competent governmental agency.

In its brief to the Court of Appeals, Beech stated:

When it is considered that the CAA reviewed the design and

construction of the Bonanza, and inspected and flight tested

it, and issued a Type Certificate indicating that it had no

unsafe features and further that the CM inspected this very

plan and issued an Airworthiness Certificate certifying that

it was safe to fly, then we realize that what plaintiffs have

done in this case is ask a jury of laymen to overrule the

experts, to hold that technical decisions made by trained

CAA officials in the extremely complicated field of aero-

dynamics were wrong. In short, the jury is asked to con-

clude, on the basis of obscure and contradictory testimony,

phrased in vague, indefinite and speculative terms by men

who never have flown a Bonanza or witnessed a Bonanza

Supra note 1.

376

GOVERNMENT APPROVAL AND CERTIFICATION OF AIRCRAFT

flight test that the Bonanza design is unsafe, although the

CAA experts came to a different conclusion after months of

study, investigation, and actual flight tests.

Certainly, a presumption that Beech exercised due care

arises from the careful certification process.

Livesley v.

Continental Motors Corp.,

331 Mich. 434, 49 N.W.2d 365

(Sup. Ct. 1951). Plaintiffs introduced no evidence which

could overcome this presumption. But our argument extends

further. The standards prescribed by the CAB are intended

to provide full protection. It would be productive of utter

chaos if in connection with any accident a court or jury

would be permitted to conclude that a CAB safety regulation

was incorrect and to hold an aircraft manufacturer liable

for not complying with some other standard. This would

in effect constitute the court or jury a Board of Review over

the CAA, a result clearly not contemplated by the statute.

Airplane manufacturers complying with CAB directives

would be faced with the possibility of being held liable for

designs which were approved, possibly even required by

the duly constituted regulatory Board. The result would

be not the promotion of air commerce contemplated by

the statutes, but the reverse as airplane manufacturers would

find themselves devoting a considerable portion of their ener-

gies to developing evidence in a manner which may be clear

and comprehensible to the numerous lay juries who would

be sitting in review over the design of their airplane. We

submit that Congress has given to the CAA exclusive control

over the design of airplanes flown in the United States and

any issue of the adequacy of such standards cannot be sub-

mittted to an untrained, lay, common law jury.

The other defendant in the

Prashker

case, Atlantic Aviation, Inc.,

the distributor of the airplane, argued in its brief "that the CAA's

certification of the type and of the actual plane involved is conclusive

evidence that the plane was reasonably fit for flying. .. 2'

° The

Court of Appeals did not consider the question, affirming the direction

of a verdict for the defendants on other gounds.

An interesting analogy is presented by the recent case of

Weiss v.

Fote.

This was an action against the City of Buffalo arising out of

Appellate brief for defendant Beech, in Prashker v. Beech Aircraft Corp.,

supra note 1, at pp. 27-29,

Appellate brief for defendant Atlantic Aviation Co., in Prashker v. Beech Air-

craft Corp., supra note 1, at p. 12.

7 N.Y.2d 579, 167 N.E.2d 63 (1960).

377

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BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

an automobile collision at an intersection, in which the plaintiffs

claimed that the traffic lights maintained by the city were negligently

designed in that the clearance interval of four seconds between the

time that the green signal in one direction stopped and the green

signal in the other direction began, was too short, thus enabling drivers

from different directions to enter the intersection at the same time.

The city had proved that the lights had been designed by its Board

of Safety after a thorough study of traffic conditions. The trial court

instructed the jury to find the city liable if it were negligent in failing

to provide a sufficient "clearance interval," and the jury returned

a verdict against the city which the Appellate Division affirmed.'

The Court of Appeals, in a 4 to

decision, reversed stating that

"the City's defense which we here sustain rests not on any anachro-

nistic concept of sovereignty, but rather on a regard for sound prin-

ciples of government administration and a respect for the expert

judgment of agencies authorized by law to exercise such judgment!'"

The court said:

We are of the opinion that the traditional reliance on a

jury verdict to assess fault and general tort liability is

misplaced where a duly authorized public planning body has

already entertained and passed on the very same question of

risk as went to the jury. Although a jury verdict is to be

highly regarded, it is neither sacrosanct nor preferable to

the judgment of an expert public planning body."

As applied to the legal effect of certification of aircraft by the

government it is important to note that the issue "already entertained

and passed on" by the public planning body (the CAA or FAA in

the case of aircraft) may not be "the very same question of risk" that

is to go to the jury in the civil litigation. In the case of

DeVito v.

United Airlines, Inc.,"

the estate of a deceased passenger on a United

Airlines DC-6 claimed that one of the defendants, Douglas Aircraft

Corporation, which had manufactured the airplane, was negligent in

failing to establish proper emergency procedures to cope with the

possibility of release of carbon dioxide fumes in the cockpit. Douglas

answered, in part, that the emergency procedure which it had estab-

lished had been approved by the Civil Aeronautics Administration.

The court stated:

This contention, however, ignores the important fact that the

DEV 133 report submitted by Douglas to the Civil Aero-

8 App. Div. 2d 692 (New York 1959).

7 N.Y.2d at 588, 167 N.E.2d at 67.

Id. at 588, 167 N.E.2d at 67-68.

98 F. Supp. 88 (E.D.N.Y. 1951).

378

GOVERNMENT APPROVAL AND CERTIFICATION OF'AIRCRAFT

nautics Administration, and the basis upon which the Civil

Aeronautics Administration granted its airworthiness direc-

tives after modification contained no reference to the effects

of carbon dioxide upon flight personnel during the flight tests

of January and February, 1948. Nor, as has been said here-

inbefore, had Dr. White's report been submitted to the Civil

Aeronautics Administration at the time when Douglas applied

for approval of the emergency procedure, or at any time."

To put the argument another way, a CAA or FAA type certificate

will normally be based, at least in great part, upon information supplied

by the manufacturer to the government agency. If the plaintiff can

show that the information provided by the manufacturer to the

agency was incomplete or insufficient, then, of course, the question

of safety passed upon by the government agency will not have been

the same as that passed upon by the jury in the litigation. Or it may

be that the simple issue presented to the jury will be the manufac-

turer's negligence in failing to make known to the CAA or FAA,

among others, vital information concerning the airplane.

Another distinction between the effect of CAA or FAA certifi-

cation on the one hand, and the effect of approval of the "clearance

interval" by the city planning body, in the

Weiss

case on the other,

lies in the relative simplicity of the task of the planning body in

fixing a time interval for traffic lights, as compared with the review

of all safety characteristics of a fairly complex modern airplane. In

the certification of aircraft, for example, the governmental agency

itself may be negligent in failing to obtain sufficient information or

in failing to perform adequate tests. This would appear to be less

likely in the case of a public planning body determining what an

adequate clearance interval would be for traffic lights. The latter

would appear to be closer to a pure question of judgment on the

part of competent people. Inspection and testing of aircraft, however,

may be in large part an administrative task involving the detailed

accumulation of data and information. Nevertheless, the principle of

Weiss v. Foie"

may be expected to be raised in litigation involving

the effect of certification of aircraft.

There is virtually no case law throwing light on the significance

of government approval of aircraft.

Livesley v. Continental Motors

Corp:"

approved the admission of evidence that an aircraft engine

conformed with CAA standards. Judgment was entered for the de-

fendant because of plaintiff's failure to prove negligence rather than

Id. at 96.

Supra note 41.

331 Mich. 434, 49 N.W.2d 365 (1951).

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BOSTON COLLEGE INDUSTRIAL AND COMMERCIAL LAW REVIEW

any definitive effect of CAA approval however.

Boulineaux v. City of

Knoxville'

approved the admission into evidence of the certificate

of airworthiness. The court said: "The examination of the certificate

was but a part of the inspection of the qualifications of the machine

and its operator and this inspection was an issue in the case . .""

Some clue as to how the courts may react to the question may be

drawn from other situations.

Yoffee v. Pennsylvania Power & Light

Co.°

was a case brought by the estate of a pilot of a small airplane

that had struck power lines strung across the Susquehanna River by

the defendant Power and Light Company. The defendant introduced

evidence to the effect that it had obtained a license, or consent, of the

competent governmental authorities to span the river. The court

stated "The defendant stressed the fact that it had obtained license

or consent of governmental authorites to span the river with its wire,

but this license did not immunize the company from responsibility

for negligence or for creating a hazard to the public!"

Nysted v. Wings, Ltd.s

was an early case against an air carrier

involving a defective propeller which had failed because of a fatigue

crack which the defendant argued was undiscoverable. The defendant

also claimed that its airplanes as well as its pilots and engineers were

all under the supervision of the Aeronautics Act. The court stated:

Finally, the evidence of government supervision of commer-

cial aviation is immaterial insofar as it is designed to afford a

shield or protection for the defendant. That supervision is

intended only to assist commercial aviators in guarding

against the dangers incidental to the hazardous business, not

to relieve them of responsibility to the passengers they carry.

That responsibility rests at all times upon the carriers, and

upon them alone; so much so that nothing less than a release,

express or implied, from their passengers can relieve them of

their obligation to exercise adequate care in all that pertains

to safety in carriage."

It would seem probable that courts will, in appropriate situ-

ations, admit evidence of CAA and FAA certification and approval

of aircraft as some evidence of due care on the part of the manufac-

turer. It does not appear likely that they will hold certification to be

a binding determination of the safety or proper design of the aircraft.

20 Tenn. App. 404, 99 S.W.2d 557 (1935).

Id. at 410, 99 S.W.2d at 561.

385 Pa. 520, 123 A.2d 636 (1956).

Id. at 535, 123 A.2d at 645.

52 51 Man. 63, 3 D.L.R. 336 (King's Bench, Manitoba, Canada 1942).

Id. at 78, 3 D.L.R. at 349.

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