AIR DISASTER

Evening Post, Volume CXX, Issue 127, 25 November 1935, Page 20

AIR DISASTER

FINDING OF NEGLIGENCE

IMPORTANT TEST CASE

(From "The Post's" Representative.) LONDON, October 26.

After eight days' hearing, judgment has been entered for the plaintiff for £4000 damages in the action in which Frau Elsa Charlotte Grein, of Wiesbaden, Germany, on behalf of herself and her daughter, Fraulein Elli Grein, claimed damages under Lord Campbell's Act from Imperial Airways, Limited, for the death of her husband, Louis John Herman Grein, while a passenger in the air-liner Apollo, which crashed in collision with a wireless mast at Ruysselede, Belgium, on December 30, 1933. All the passengers (including the pilot and first officer) were killed, and this was stated to be a test action, on which several others depended. Of the damages his Lordship awarded £3500 to Frau Grein and £500 to her daughter. A stay of execution for fourteen days was granted pending consideration of the question of an appeal. The defence was a general denial of negligence and liability, with a further plea that, if the company was liable, the sum was limited to 125,000 francs in accordance with the "conditions of contract" on the passenger's ticket. "NEGLIGENT ON THIS OCCASION." Giving judgment, Mr. Justice Lewis said that at the time of the accident Mrs. Grein was 55 and her daughter 27. Mr. Grein was a dealer in skins. The case as opened on behalf of Mrs. Grein was a strong indictment of Imperial Airways. The wireless station at Ruysselede was a difficult obstacle on the route from Brussels to Croydon, and the pilot of the Apollo, and other pilots, were aware of its presence. It was the only obstacle of any importance on the route from Brussels to Ostend. The actual height at which the aeroplane was flying at the time of the accident was of no great importance. If there was negligence, it was in flying at a height less than the top of the pylon. "I think the machine was thoroughly and properly equipped as to engines and wireless apparatus," said the Judge, "and I do not think Imperial Airways failed in their duties to provide a pro-perly-equipped aeroplane." He found that Mr. Gittins was a competent, fearless, and steady pilot, but, on the occasion of the ill-fated journey, he was negligent. He failed to get a wireless message and failed to pick up a landmark, but went ahead knowing of this obstruction. His prudent course was to have returned to Brussels. No one would have blamed him if he had adopted this course. Another prudent course for the pilot to have taken wold have been to have turned due north or due south and to have waited until he could get into communication with Haren Aerodrome, or had flown such a distance as he knew would inevitably have enabled him to pass well clear of the Ruysselede wireless station before turning to the sea. A third alternative was for him to do what plaintiff's witness said he ought to have done when he left Haren, namely, to endeavour to climb up through the ice-forming clouds if any such existed. FINDING OF NEGLIGENCE. "I am as reluctant to come to this conclusion which necessitates a finding of negligence against a man who is not here to defend himself, as I am sure Mr. O'Connor (counsel for Mrs. Grein) was to make the attack he did upon Gittins's capabilities as a pilot," said his Lordship. "Perhaps if Gittins or the other occupants of the aeroplane were here they might, have put a different complexion upon the facts which I have found, and, distasteful as it is to me to find that Gfttins was guilty of negligence, I feel it is my duty to decide this case on the evidence which has been given. I cannot speculate as to what in fact happened on the fateful journey. "I therefore find that Mr. Grein met his death owing to defendant's negligence and that that negligence would, if death had not ensued, have entitled him to maintain an action for damages in respect thereof. His widow has suffered damages in consequence of his death." Dealing with the legal argument which arose under the Carriage by Air Act, 1932. as to whether this particular journey was an "international carriage," his lordship said that, in his view, the Act did not apply and one of the results of this finding was the right ol the widow to proceed under Lord Campbell's Act in respect of the death of her husband.