AIRLINES CASE

Evening Post, Volume CXIV, Issue 90, 13 October 1932, Page 13

AIRLINES CASE

APPEAL CONTINUED

AVIATION REGULATIONS

Argument on behalf of the appellant was continued in the Court of Appeal to-day on the appeal of Dominion Airlines, Ltd. (in liquidation), against a judgment of Mr. Justice Eeod in the Supreme Court awarding £3000 damages to William Thomas Strand, Mayor of Lower Hutt, against the company. The litigation arose out of a fatal aeroplane crash at Wairoa, a few days after the Hawkes Bay earthquake in February, 1931, in which the pilot, Ivan Louis Kight, ana his two passengers were killed. One of the passengers was William. Charles Strand, son of William Thdmas Strand. The appeal is being heard by the First and Second Divisions of the Court, the Bench comprising the Chief Justice (Sir Michael Myers), Mr. Justice MaeGregor, Mr.. Justice Ostler, Mr. justice Smith, and Mr. Justice Kennedy. ■ Three counsel—Mr. P. B. Cooke, Mr. G. G. Watson, and Mr. H. J. V. James—are appearing for Dominion Airlines, Ltd., and Mr. Strand is represented by Mr. T. P. CleaTy and Mr. M. 0. Barnett. As reported yesterday, this is the second time this year that the case has been before the Court of Appeal. In his argument, Mr. Watson saia that the trial Judge had made three definite findings of fact, but the evidence did not appear to support them. He submitted ihat the balance of probabilities was clearly in favour of the theory that the crash was caused by engine failure. There was no evidence to show that the accident was due to any physical or temperamental disability of the pilot. Further, it was contended that it was very unlikely that Kight would be negligent as alleged. ' The second branch of the argument on behalf of the appellant company was taken by Mr. Cooke. It was that the aviation regulations did not confer a right of action in respect of damage caused by breach of them. Counseralso submitted that even if the regulations did purport to confer a right of action in respect of damage caused by breach of them they were, in this respect, ultra vires. CONDITIONS OF TICKET. ' Dealing with the conditions of the passenger ticket issued by Dominion Airlines, Ltd., to the late Mr. W. C. Strand, Mr. Cooke submitted that they made the ticket a complete defence to the claim based on breach of the aviation regulations. Counsel proceeded to analyse the grounds upon which Mr. Justice Reed, in his judgment, rejected this defence. Suggestions were made by the Bench that surely no intending passenger would be mad enough io make a contract if he knew that requirements under the regulations were not being fulfilled. •■•■:" . Kight's qualifications were referred to, and counsel said that, while it was admitted that '.Eight did not have a B flying licence, he was a licensed pilot with a greater experience than others who were given permission to fly in the stricken Hawkes Bay area in the days immediately following the earthquake. '■..'"■" ' CASE FOR BESPONDENT, Mr. Cleary dealt first with the facts of the case. He submitted there werei two distinct acts of negligence on the part of Kight, the.first in flying down wind_too slowly and at too low an. altitude in order to .drop the parcel Of mail matter for Wairoa, and, secondly, after dropping the parcel, in endeavouring to turn into, the' wind at too low an altitude and at too slow a speed. Counsel- referred to passages in. the evidence with a view t6 showing that at the moment Kight's aeroplane dropped the parcel of mail it was travelling, as the witnesses Baid, very slowly, with a following wind of 25 miles an hour, and at an altitude of not more than 150 feet. It was clear from the evidence of the experts that, in flying down wind, it was necessary to maintain a very high speed, and that the proper practice was to drop parcels into the wind, particularly when flying at a low altitude. . "The high speed is necessary for the very purpose of enabling the pilot to turn into the wind in case of trouble with his machine," said Mr. Cleary, "and it is advisable to drpp parcels into the wind to facilitate landing if necessary, and it ia necessary to keep altitude so that control may be regained in case of trouble. ... My submission is that the moment Kight dropped that parcel ho was flying in a negligent manner. He was flying too slow, haying regard to the fact that he was flying down wind, and he was flying too low. 5' Counsel contended that Kight perfQMied /the manoeuvre in a manner wofch a careful pilot would not have adopted, and although it had been suggested that the actual crash was due to the pilot having to; make some sudden decision in an emergency position due to engine trouble, it was submitted that that could be no answer once there was an established act; of negligence which, itself produced the emergency. / .' . THE FINAL TURN. As to the second point, that the final turn into the wind was carried out too low a speed and at too low an altitude, Mr. Cleary said that the evidence was fhat immediately preceding the turn the aeroplane was at no greater height than 50 to 100 feet. The evidence also showed that prior to dropping the parcel the pilot had made a number of unusually sharp turns, and it was suggested that the final turn into the wind was preparatory to the making of a similar sharp turn to those ho had made in his previous manoeuvres. (Proceeding.)