Document R2ddYBe95M9krp4ry2JbRpYg7

MONSANTO CO. - STURGEON SPILL AGENT ORANGE DOCUMENTS Exhibits to Dow's Reply Memo in Supp. of Mot. for Summ. Jgmt. on Gov't. Contract Defense R-4 UEANSITTEEDRNSTDAISTTERS ICDTISTORFICNTEWCOYOURRKT In Re: "Agent O range" Product L ia b ility L itig atio n x MDL N o. 381 CSUHMEMMINEAICXRAYSHULIJPBUPCCIDOTOOGSRMNMTTPTREAONOANTFCYDT1OEISTFNDESRENTEFDMHEPLANEOYNSTEGTIOMONTVEHMERFEOONRMDARONEWDNUTM C'. Rivkin. Leff. S herman & Radler Attorneys and C o u n se l l o r s at Law IO O G a r d e n C ity P l a z a ,G a r d e n C ity, N. Y, 1 1 5 3 0 FLED ] UNITED STATES COURT OF APPEALS 'APR 20fif 2 FOR THE NINTH CIRCUIT 3 PHEI8LKL, IUP.3. BC.OUWRTIONfBAPEPRE/RUSY 4 5 JANICE McKAY, Executrix or the Estate ) Of LT. COR. MALCOLM NAGNER McKAY, ) 6 Deceased, ) ) 7 Plaintiff-Appellant, ) ) 8 vs. ) ) 9 ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation, 10 Defendant-Appellee. > 1 ) 11 ) ) 12 MARIE CARSON * Administratrix of the Estate of FRANK J. CARSON, Deceased, ) ) 13 Plaintiff-Appellant, ) ) 14 vs. ) ) 15 ROCKWELL INTERNATIONAL CORPORATION, ) ) 16 a Delaware corporation, ) ) 17 De fendant-Appellee. ) ) 18 Nos. 61-5540 61-5541 D.C.f CV75-3672 DWW Nos. 81-5542 81-5543 D.C. #CV76-576 DWW OPINION . 19 Appeal from the United States District Court 20 for the Central District of California David W. Williams, District Judge, Presiding 21 Argued and Submitted..October 5, 1982 22 Before: SNEED, and ALARCON, Circuit Judges, 23 and HARDY*, District Judge 24 25 Honorable Charles L . Hardy, United States District Judge for the District of Arizona, sitting by designation. 26 ] SNEED, Circuit Judge: 2 3 -4 These are consolidated wrongful death actions 5 arising out of two unrelated crashes of RA-5C naval aircraft in 6 the waters off the coast of Florida. The widows of the two Navy 7 pilots killed in the crashes seek damages from Rockwell 8 International Corp. ("Rockwell"), the manufacturer of the RA-5C 9 aircraft and its ejection system. The district court held that 10 Rockwell was liable for the pilots' deaths because of defects in 11 the aircraft's ejection system. Both the widows and Rockwell have 12 appealed. 13 In this case we confront the question under what n circumstances, if any, the doctrine of strict liability in tort, 15 as set forth in-section 4Q2A of the Second Restatement of Torts, 16 should be extended to .'cover manufacturers of military equipment 17 that proves to be defective in design and injures members of the 18 armed forces who are on active duty. We also must address the 19 question whether, under the circumstances of this case, sections 20 388 and 389 of the Second Restatement impose liability on 21 Rockwell. For the reasons set forth below W reverse the judgment 22 of the district court and remand for further proceedings. 23 I. 24 FACTS 25 Rockwell, under contract with the United States Navy, 26 began development in the mid-1950s of an aircraft capable of 2 1 sustained flight at altitudes of up to 75,000 feet, and vith a 2 potential speed of two and a half times the speed of sound. In 3 * the early 1960s, the Navy decided tb redesign the aircraft as a 4 supersonic carrier-based reconnaissance aircraft, designated the 5 RA-5C "Vigilante." The RA-5C was put Into use by the Navy in 1962 6 and was used extensively In Vietnam. 7 i Both the RA-5C aircraft involved in the accidents out of 8 which these cases arise were equipped with the HS-1A escape 9 system. This system was a modified version of an earlier escape 10 system in use in the RA-5C aircraft. The HS-1A system operated by 11 physically restraining the crew in their seats, and then ejecting 12 them ballistically into the airstream by means of a rocket 13 thrust. After ejection, a drogue chute would initiate the opening 14 of a 28 foot parachute to enable the crewmen to descend safely to 15 the ground. 16 On March 5, 1974, Navy Lieutenant Frank Carson was killed 17 during a daytime training mission when the RA-5C aircraft he 18 piloted caught fire and he was forced to eject from the aircraft. 19 Navy Lieutenant Commander Malcolm McKay was killed on August 13, 20 1974, after ejecting from a burning RA-5C aircraft during a night 21 training mission. Autopsies of the two pilots revealed that their 22 deaths were probably caused by injuries sustained during ejection. 23 Plaintiffs filed civil actions in the United States 24 District Court for the Central District of California, seeking 25 recovery of damages for the death of plaintiffs' decedents under 26 theories of negligence, breach of warranty, and wrongful death. 3 1 The cases were consolidated for trial and, after an 32 evidentiary hearing, the district court determined that it had admiralty jurisdiction over the actions pursuant to the Death on 4 the High Seas Act, 46 U.S.C. 761-767.1/ The district court 5 found that Rockwell properly was liable for the design of the 6 H5-1A escape system under the principles of tort law set forth in 7 sections 388, 389, and 402A of the Second Restatement of Torts. 8 The court declined to impose liability under these principles-for 9 the design of the RA-5C aircraft. It entered judgment In favor of 10 plaintiff Carson for $385,703.00 and in favor of plaintiff McKay 11 for $325,850.00. Carson and McKay seek, review of the measure and 12 amount of damages awarded in their respective judgments. 'Rockwell 13 also appeals, contending that military suppliers should not be 14 liable to servicemen for injuries caused by defects in military 15 hardware.2J Our disposition of Rockwell's appeal makes.it 16 unnecessary to address the appeals of Carson and McKay. 17 II. 18. LIABILITY UNDER SECTION 402A OF THE SECOND RESTATEMENT OF TORTS 19 20 The district court, as stated above, held that Rockwell 21 was liable under section 402A of the Second Restatement of Torts for defects.in the design of the HS-1A escape system. U We 22 applied the principles of this section in admiralty in Pan-Alaska 23 24 Fisheries, Inc, v. Marine Construction & Design Co., 565 F.2d 1129 25 (9th Cir. 1978). But in Pan-Alaska we did not hold that strict 26 liability applies for all purposes and for all defendants..5/ Section 402A is not a federal statute. It should be applied only 4- 1 when the purposes it seeks to serve dictate its application. When 2 that is not the case it has no independent force. To apply it 3 * merely because it is there is to abdicate judicial responsibility. 4 Mindful .of this responsibility, we conclude that only 5 under the limited circumstances we shall enumerate below should a 6 manufacturer be held strictly liable in tort for injuries to a 7 serviceman on active duty caused by design defects in military 8 equipment. 9 A. Feres-Stencel- Doctrine 10 We commence our analysis with Feres v. United States, 340 11 U .5. 135 (1950). In that case the Supreme Court held that the 12 United States is not subject to liability under the Federal Tort 13 Claims Act, 28 U.S.C.= 2674, to a member of the armed forces who i 14 sustains an injury while on active duty. The scope of 15 governmental Immunity was broadened recently in Stencel Aero 16 Engineering Corp. v. United States, 431 U.S. 666 (1977)* There, 17 the Court held that the Federal Tort Claims Act precludes the 18 United States from Indemnifying a third party for damages paid by 19 It to a member of the armed forces who is injured during military 20 service. The Stencel Court explained that allowing indemnity * 21 would subject the United States to varying degrees of liability, 22 depending on the situs of the accident, would require the United 23 States to pay indirectly to the serviceman what the Veterans' 24 Benefits Act forbids it to pay directly, and would interfere with 25 military discipline. Id. at 672-73. 26 Thus, under the circumstances of the.se cases, tne United 5 I States would be Immune both from direct tort liability as well as 2 from the obligation of indemnifying Rockwell for damages it might 3 be required to pay. 4 8. Government Contractor Defense 5 Given the immunities of the United States in cases such 6 as these, the question arises whether a supplier of military 7 equipment should be required to shoulder directly and immediately 8 the entire burden of the liability to an injured serviceman. Some 9 courts, when confronted with this issue, have relied on the 10 so-called government contractor d e f e n s e . T h i s rule, first n articulated by the Supreme Court in Yearsley v. W. A. Ross 12 Construction C o ,, 309 U.S. 18 (1940), protects a government 13 contractor from liability for acts done by him while complying 14 with government specifications during execution of performance of 15 a contract with the United States. See Myers v. United States, 16 323 F.2d 580, 583 (9th Cir. 1963). The rule has been applied when 17 the United States is immune from suit. Dolphin Gardens, Inc, v. 18 United States, 243 F. Supp. 824, 827 (D. Conn. 1965). 19 While the government contractor defense covered at first 20 only construction projects, it has recently been applied by 21 several courts to military equipment design defect cases.&/ See 22 Note, 23 B.C.L. Rev. 1025, 1055-64 (1982). For example, in Sanner 23 v Ford Motor ,Co., 144 N.J. Super. 1, 364 A.2d 43 (1976), aff1d , 24 154 N.J. Super. 407, 381 A.2d 805 (1977), cert, denied, 75 N.J. 25 616, 384 A.2d 846 (1978), the court held that when a manufacturer 26 produces a jeep in compliance with government specifications, the 6 1 manufacturer cannot be held strictly liable for defects in the 2 government's design specifications. Similarly, in Casablanca v. 3 Casablanca. 104 Misc. 2d 348, 428 N.Y.S.2d 400 (19B0), the 4 manufacturer of kitchen equipment made for the.Army and in 5 accordance vlth Army specifications was held not to be subject to 6 liability for defects in the equipment. Finally, in In Re Agent 7 Orange Product Liability Litigation, 334 F. Supp. 1046 (E.D.N.Y. 8 1982), the court approved a government contractor defense for 9 manufacturers of a chemical defoliant where the government set or 10 ratified performance specifications for a product, the n manufacturer met those specifications, and warned the government 12 of known dangers from using the product. I d . at 1055. See also 13 Llttlehale v. E.I. DuPont de Nemours & Co.. 268 F. Supp. 791 14 (S.D.N.Y. 1966), aff'd. 380 F.2d 274 (2d Cir. 1967) (no duty to 15 print warnings on blasting caps where not required by Navy 16 specifications). 17 The reasons for applying the government contractor 18 defense to suppliers of military equipment with design defects 19 approved by the government parallel those supporting the 20 Feres-Stencel doctrine. First, the Supreme Court emphasized in 21 Stencel that the United States cannot be directly or indirectly 22 liable to servicemen injured by defective military products. U 23 But holding^the supplier liable in government contractor cases 24 without regard to the extent of government involvement in fixing 25 the product's design and specifications would subvert the 26 Feres-Stencel rule since military suppliers, despite the 7 1 government's Immunity, would pass the cost of accidents off to the 2 United States through cost overrun provisions In equipment 5 contracts, through reflecting the price of liability insurance in the contracts, or through higher prices in later equipment sales. 5 See In Re Agent Orange Product Liability Litigation, 506 F. Supp. 6 762, 793-94 (E.D.N.Y.), rev'd on other grounds. 635 F.2d 987 (2d 7 Cir. 1980); Dolphin Gardens, Inc, v. United States, 243 F. Supp. 8 B24, 827 (D. Conn. 1965); Note, 55 N.Y.U. L. Rev. 601, 618 9 (1980). As the Court explained in Stencel: 10 To permit [petitioner] to proceed . . . here 11 would be to judicially admit at the back door that which has been legislatively turned away 12 at the front door. We do not believe that the [Federal Tort Claims] Act permits such a result. 13 432 U.5. at 673 (quoting from Laird v, Nelms, 406 U.S. 797, 802 14 (1972)). 15 Second, to hold military suppliers liable for defective 16 designs where the United States set or approved the design 17 specifications would thrust the judiciary into the making of 18 military decisions. Although Judges must decide cases arising 19 from fields of endeavor of which they know little, their otherwise 20 omnicompetence confronts its limits in military matters. At this 21 point, it must be acknowledged, separation of powers becomes a 22 proper concern. See In Re Agent Orange Product Liability 23 Litigation, 534 F. Supp. at 1054; Montgomery v. Goodyear Tire & 24 Rubber Co.. 231 F. Supp. 447, 450 (S.D.N.Y. 1964); see also 25 Morrison v. Larsen, 446 F.2d 250, 253 (9th Cir. 1971); Aero Corp. 26 v. Department of the Navyr 493 F. Supp. 558, 567 (D.D.C. 1981). 8 1 Trials on design defects where government specifications are at 2 Issue would "involve second-guessing military orders, and would 3 * often require members of the Armed Services to testify in court as 4 to each other's decisions and actions." Stencel. 431 U.S. at 5 673. These trials would raise concerns about their effect on 6 military discipline, id.. as well as on national security./ 7 Third, it should be noted that in setting specifications 8 for military equipment, the United States is required by the 9 ; exigencies of our defense effort to push technology towards its 10 limits .and thereby to incur risks beyond those that would be 11 acceptable for'ordinary consumer goods. A supplier is frequently 12 . unable to negotiate with the United States to eliminate those 13 risks. As one court put it: 14 Where, as here, manufacturers claim to have 15 been compelled by federal law to produce a weapon of war without ability to negotiate 16 specifications, contract prices or terms, the .. potential for unfairly imposing liability 17 becomes great. Without the government contract defense a manufacturer capable of producing 18 military goods for government use would face the untenable position of choosing between 19 severe penalties for failing to supply products necessary to conduct a war, and producing what 20 the government requires but at a contract price that makes no provision for the need to insure 21 against potential liability for design flaws in the government's plans. 22 In Re Agent Orange Product Liability Litigation, 506 F. Supp. at 23 794. See generally Tobak, A Case of Mistaken Liability: The 24 Government Contractor's Liability for InjuriesIncurred by Members 25 of the Armed Forces, 13 Pub. Cont. L.J. 74 (1982); Note, 23B.C.L. 26 Rev. 1025 (1982). 9 1 Finally, a government contractor defense provides 2 . incentives for suppliers of military equipment to work closely 3 with and to consult the military authorities in the development 4 and testing of equipment. The defense therefore encourages fixing 5 the locus of responsibility for military equipment design with 6 more precision than is possible under a system where the 7 government contractor rule is not allowed. 8 While conceding that the government contractor defense 9 can apply to military products, plaintiffs-appellants argue that 10 it should not apply to these cases. As they see it, the defense 11 is only available where the specifications in the contract leave 12 no discretion to the supplier in the formulation of the product's 13 design. They rely on O'Keefe v. Boeing Co., 335 F. Supp. 1104 14 (5.D.N.Y. 1971), and on Merritt, Chapman & Scott Corp v. Guy F, 15 Atkinson Co ., 295 F.2d 14 (9th Cir. 1961), to support this 16 assertion.^ Plaintiffs-appellants' reliance is misplaced. 17. In 0'Keefe, the court rejected Boeing's claim that it was 18 not liable for an alleged defect in a B-52 because of the 19 involvement of the United States in the development of the 20 aircraft. 335 F. Supp. at 1122-24. But the discussion of the 21 design discretion issue in O'Keefe was dictum, since the court 22 found that the design was not defective. Moreover, the 0 'Keefe 23 dictum is not compatible with the later Stencel holding. 24 Notwithstanding its insistence that "compulsion" is an 25 essential element of the government contractor defense, Merritt, 26 Chapman is distinguishable. It held that a subcontractor who 10 ] built a faulty cofferdam In a dam project can be held liable for 2 damage caused by the collapse of the cofferdam. The government 3 * contractor claim was rejected because the contract with the United A States left the design, materials, and method of construction 5 entirely to the discretion of the subcontractor. The United 6 States merely set the height requirement for the cofferdam. Id. 7 at 15-16. 8 Under these circumstances, Merritt, Chapman properly o precludes the government contractor rule. When only minimal or 10 very general requirements are set for the contractor by the United II States the rule is inapplicable. The situation Is different where 12 the United States reviewed and approved a detailed set of 13 specifications. This is precisely what may have happened in the 14 present cases. See R.T. at 1303-04, 1309-10, 1486-07. 15 It is at this point that the Feres-Stencel doctrine comes 16 sharp'ly into focus. The United States has limited its liability 17 to service personnel injured while on active duty. It is 18 consistent with this limitation to construe the government 19 contractor rule so as to avoid imposing on the contractor 20 liability properly attributable to acts of government: The 21 narrower the scope of this rule the greater the extent of this 22 "misplaced" liability. While to narrow the rule aids members of 23 the armed services and their dependents, It also imposes 24 indirectly burdens on taxpayers and/or inflation bearers which the 25 Feres-Stence1 doctrine precludes. It follows that the scope of 26 the government contractor rule, when applied in cases involving' 11 ] military personnel, should be drawn somewhat more broadly than the 2 dictum in Merritt Chapman might suggest 3 To summarize, we hold that under the Feres-Stencel 4 doctrine and the government contractor rule, a supplier of 5 military equipment is not subject to section 402A liability for a 6 design defect where: (1) the United States is Immune from 7 liability under Feres and Stencel. (2) the supplier proves that 8 the United States established, or approved, reasonably precise 9 specifications for the allegedly defective military equipment, (3) 10 the equipment conformed to those specifications, and (4) the 11 supplier warned the United States about patent errors in the 12 government's specifications or about dangers involved in the use 13 of the equipment that were known to the supplier but not to the 14 United States. The imposition of this duty to warn of known 15 defects is necessary to enable the United States to balance the 16 risks and benefits inherent in the use of the equipment. Cf. In 17 Re Agent Orange Product Liability Litigation, 534 F. Supp. at 18 1055; Note, 23 B.C.L. Rev. at 1074-85. 19 We recognize that the term "military equipment" is 20 somewhat imprecise, and that at some point lines will have to be 21 drawn. We need not do so here. The line, however, lies somewhere 22 between an ordinary consumer proouct purchased by the armed forces 23 - a can of beans, for example - and the escape system of a Navy 24 RA-5C reconnaissance aircraft. The latter falls within the term 25 while the former does not. 26 We also note that the rule enunciated here does not 12 f ] relieve suppliers of military equipment of liability for defects 2 in the manufacture of that equipment. To hold otherwise would 3 * remove the incentive from manufacturers to use all cost-justified 4 means to conform to government specifications in the manufacture 5 of military equipment. 6 C. Policy Considerations in .the Imposition of Strict Liability 7 The reasons for imposing strict liability as set forth in 8 section 402A are Inapplicable when the elements of our holding 9 exist. See Note, 23 B.C.L. Rev. at 1060-85. Courts and 10 commentators have identified four principal reasons for imposing 11 strict liability on an accident producing activity - enterprise 12 liability, market deterrence., compensation, and implied 13 representation of safety.i2/ See Note, 33 Stan. L. Rev. 535, 14 536 & n.7 (1961). We shall consider each.. 15 1. Enterprise Liability 16 Under the enterprise liability rationale, when a 17 product's price reflects the cost of accidents caused by the use 18 of the product, that price will rise. Increased prices will then 19 discourage consumers from purchasing risky products, and thereby 20 lower accident costs to society. See Klemme, The Enterprise 21 Liability Theory of Torts, 47 U. Colo. L. Rev. 153, 158 (1976). 22 C f . Pan-Alaska Fisheries, 565 F.2d at 1135. 23 However, the rationale rests on two assumptions. These 24 are that consumers underestimate the risks involved in a product's 25 use, and will therefore overconsume the product unless the 26 products price reflects the cost of accidents, and that demand for - 13 1 a product Is elastic - that is, that it will decrease as the 2 product's price rises. Note, 33 Stan. L. Rev. at 537 & n.8. 3 Neither of these assumptions applies in the usual case to 4 sales of military equipment to the government. First, the armed 5 forces are aware of most, although sometimes not all, the risks 6 involved in using military equipment. They undertake a constant 7 program of testing and evaluating such equipment. Higher prices 8 would not affect significantly their awareness of the safety risks 9 involved in the use of the equipment. In addition, within broaa 10 limits demand is not elastic for military equipment. Rather, n government purchases of military equipment are planned in advance, 12 and are based on considerations of military and political 13 strategy, as well as on the government's assessment of the risks 14 and benefits involved in the use of the equipment. Thus, 15 including the cost of accidents in the price of sales to the 16 military would probably have little or no effect on product 17 sales. Meeting adequately the needs of national defense, not 18 accident costs, is the ultimate standard by which purchases of 19 military equipment must be measured. 20 2. Market Deterrence 21 A second reason for imposing strict liability is to deter 22 manufacturers from marketing unsafe products by encouraging the 23 use of cost-justified safety features. See W. Prosser, The Law of 24 Torts A, at 23 (4th ed. 1971). The safer the product, the 25 argument runs, the lower the cost of accidents. This should 26 reduce the product's price which, in turn, should increase the 14 ] sales of the product. 32 But In the case of military equipment, as noted above, ' the demand for such equipment is quite Inelastic. Moreover, the 4 government, the sole purchaser of most military equipment, has 5 both the ability to recognize safety problems in military 6 equipment and to negotiate with suppliers to remedy those 7 problems. It constantly balances the safety of the article 8 against the imperatives of national defense. Strict liability 9 would no doubt Increase defense costs but would do little not 10 already being done to increase the use of safety features in 11 military equipment. See In Re Agent Orange Product Liability 12 Litigation, 506 F. Supp. at 793. Increased defense costs, on the 13 other hand, will diminish either other expenditures, puDlic or 14 private, or the level of national defense, if the level of total 15 expenditures for that purpose were to be held constant.. 16 3. Compensation 17 A third justification for strict liability is that it 18 provides compensation for victims of accidents caused by defective 19 products. Restatement (Second) of Torts 402A, comment c. In 20 the case of injured military personnel, however, the Veterans' 21 Benefits Act provides what the Supreme Court called "a generous 22 military compensation scheme," and "a swift, efficient remedy." 23 Stencel, 431 U.S. at 672-73.11/ Thus, the serviceman or his 24 family will not go uncompensated, unlike the case of an ordinary 25 consumer injured by a defective product. It Is true, of course, 26 that strict liability would increase that compensation, but it can 15 ] hardly be said that any such Increase was anticipated at the time 2 of enlistment. 3 4. Implied Representation 4 Finally, it has been reasoned that by marketing a 5 product, a supplier makes an implied representation that the 6 product, if put to its intended .use, will not be unreasonably 7 dangerous and will meet the safety standard expected of similar e products. If the product proves to be defective, consumers should 9 receive compensation for the disappointment of their reasonable 10 expectations of safety. Note, 33 Stan. L. Rev. at 544; 11 Restatement (Second) of Torts 402A, comment 12 Members of the armed'forces are not ordinary consumers 13 with respect to military equipment. Their "reasonable 14 expectations of safety" are much lower than those of ordinary 15 consumers. They recognize when they Join the armed forces that 16 they may be exposed to grave risks of danger, such as having to 17 bail out of a disabled aircraft. This is part of the job. The 18 Nation sometimes demands their very lives. This is an immutable 19 feature of their calling. To regard them as ordinary consumers 20 would demean and dishonor the high station in public esteem to 21 which, because of their exposure to danger, they are justly 22 entitled. 23 D . Application of Our Holding to the Facts of These Cases 24 The application of our holding to the facts of these 25 cases requires that we reverse and remand the judgments below. It 26 is clear, and we so hold, that in these cases the United States is 16 1 immune from liability for the design of the H5-1A ejection system 32 under Feres and Stencel. Moreover, the district court held that 4 - the defect in the system was its design, not its failure to conform to government specifications. Finally, there Is no 3 allegation that Rockwell failed to warn the United States of 6 dangers known to Rockwell but not to the Navy. 7 The present record, however, does not permit us to say 8 with assurance that the United States set or approved reasonably 9 detailed specification for the HS-1A system. On the one hand, 10 Rockwell alleges that the United States was deeply Involved in the 11 process of designing and approving the system. On the other hand, 12 plaintiffs-appellants contend that the United States did little 13 more than send Rockwell a letter asking them to come up with a new 14 ejection system and agree to purchase Rockwell's completed 15 design. 16 ' We remand these cases 'to the district court to determine 17 whether the United States set or approved reasonably detailed 18 specifications for the HS-1A ejection system. If the district 19 court finds that the involvement of the United States was limited 20 in the manner the plaintiffs-appellants assert - that is, if the 21 United States neither set specifications for the system (other 22 than general outlines of what type system it required) nor 23 approved Rockwell's final reasonably detailed specifications (by 24 examining and agreeing to a detailed description of the workings 25 of the system) - then Rockwell is subject to strict liability 26 under the rule set forth in section 402A. We note that Rockwell, 17 J the supplier, has the burden of proving by a preponderance of the 32 .evidence that the United States established, or approved, ' reasonably precise specifications for the ejection system. A III. 5 LIABILITY UNDER SECTIONS 3B8 AND 399 6 OF THE SECOND RESTATEMENT OF TORTS 7 The district court also found that Rockwell was liable 8 under Restatement (Second) of Torts 388 and 389 for breach of a 9 duty to "test, measure or evaluate the dynamics of the ejection 10 process on the head, helmet, and neck of the ejecting crewman," 11 and to withdraw the HS-1A system after "continued use [showed] ; . 12 . that a pattern of neck injuries was developing." We reverse. 13 We commence by observing that this court has not yet 14 adopted sections 38S and 389 as a basis for liability in admiralty 15 in this circuit. But even if we had, these sections would not 16 support the district court*s holding. First, many of the ` 17 arguments discussed in Part II apply with equal force here. For 18 example, the high incidence of government evaluation of the safety 19 of military equipment places it in a position quite different from 20 that of an ordinary purchaser or consumer. Also the 21 socio-economic justifications for strict liability, as set forth 22 above in Part II-C, continue to be inapposite when liability under 23 these sections is considered. In addition, as explained below, 24 the requirements for liability under sections 388 and 389 have not 25 been met. 26 A. Section 388 > Under section 388, a supplier of a "dangerous chattel" is 18 J liable to those whom thesupplier should expect to use the chattel 2 If (1) the supplier knows or has reason to know that the chattel 3 Is or is likely to be dangerous; and (2) it has no reason to 4 believe that users will realize the danger; and (3) it fails to 5 warn the users of the chattel's dangerous condition.!!/ All 6 three criteria must be satisfied for liability to attach under 7 section 3B8. Dougherty v. Hooker Chemical Corp., 540 F.2d .174, 8 178 (3d Cir. 1976). Here both the second and third requirements 9 for liability are lacking. 10 The Navy, the principal user of the HS-1A system, was 11 aware of any injuries incurred while using the system. It 12 "realized the danger";.it was engaged in a continuous process of 13 evaluating the system, and of exchanging information on its 14 performance with Rockwell. S e e , e .g ., R.T. at i342-44. Thus, 15 there was no reason for Rockwell to believe that the Navy was 16 unaware,of problems with the HS-1A system, and Rockwell therefore 17 had no duty to warn the Navy about the system's "dangerous 18 condition."-- ^ See section 388, comment k; see also Strong v. 29 E. I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981). 20 In reaching its conclusion the district court relied on 21 the following assumptions: Rockwell had a duty to test the HS-1A 22 system; Rockwell failed adequately to test the system; testing 23 would have revealed that the system was dangerous; Rockwell would 24 then have been obliged to warn the Navy about these dangers and to 25 withdraw the system from the market; and warning and withdrawal 26 would have prevented .the accidents. These assumptions are flawed. 19 I First, it is questionable whether section 388 imposes a 2 duty on a supplier to test a product for latent defects. See 3 ' Lockett v. General Electric Company. 376 F. Supp. 1201, 1208 (E.D. 4 Pa. 1974), aff'd mem.. 511 F.2d 1393 (3d Cir. 1975); see also 5 Sears, Roebuck & Co. v. Harhenke, 121 F.2d 598, 600 (9th Cir. 6 1941). To impose on Rockwell a duty to test for latent defects 7 would cause it to become a virtual guarantor of the proper 8 performance by the Navy, of its duties. And neither the text nor 9 the comments to section 388 indicate that there is a duty under 10 that section on the part of a supplier to withdraw a product from 11 the hands of the user, particularly when that .user is the Navy of 12 the United States. 13 Second, even if there were such duties, the record does 14 not show that breach of the duties proximately caused the injuries 15 at issue in this case. There is no evidence that the Navy would 16 have removed the system from its existing RA-5C aircraft had the 17 Navy been aware of the possibility of the type of accident with 18 which we are concerned. Indeed, the Navy evaluated the system 19 subsequent to the accidents and found, on balance, that it was 20 "safe-for-flight." Exhibit 112 (United States Navy, A-4, A-5, & 21 ` A-6 Aircraft Escape System Neck Injury Investigation, Nov. 12, 22 1974), at 1 13. Moreover, a warning directly to crews of the 23 RA-5C aircraft, assuming that they are the "users" of whom section 24 388 speaks, would not have prevented the accidents here, since the 25 crews had no choice but to fly aircraft equipped with the HS-1A 26 system. Under these circumstances the pilots had no alternative 20 1 to using the system in the case of a midair accident.1-5/ 2 B. Section 389 3 Section 369 provides plaintiffs-appellants no better 4 support. Under it, a supplier of a chattel who has informed the 5 person to whom the chattel has been supplied of its dangerous 6 propensities may be held liable to persons who are ignorant of the 7 dangerous character of the chattel if the supplier is aware that 8 the chattel is unlikely to be made reasonably safe before beind 9 put to its expected use.Il^ 10 One difficulty in applying section 389 to the facts of* 11 these cases is that it presupposes that use by the Navy of the 12 chattel, as supplied by Rockwell, was Improper. This we cannot 13 say without assuming the role of naval officers. As we pointed 14 out above, the Navy evaluated the system after the accidents at 15 issue here and continued its use. Section 389 also presupposes 26 that the pilots, the "persons who are ignorant of the dangerous 17 character of the chattel," would not fly if they knew the 18 "dangerous character" of the "chattel." This cannot be assumed. 19 Naval pilots are required to fly as ordered. The alternative to 20 ejection following an accident usually will be death.12/ 21 Finally, section 389 only applies when a chattel is not 22 "reasonably safe." But, to repeat, the Navy's post-accident study 23 found that the HS-1A system was reasonably safe. It is not for us 24 to interfere in the Navy's evaluation of its own weapons systems. 25 See Aero Corp. v. Department of the Navy, 493 F. Supp. 558, 567 26 (D.D.C. 1981). 21 I Military personnel frequently have Deen sent to their 2 3 deaths by the incompetence of others. Hardly a page of history * lacks an example or two. We do not suggest that is the case 4 5 here. However! should it be so those who serve the United States ' in an active military capacity are assured their survivors will 76 receive some compensation. We merely hold that it is not for this court to increase that compensation in the mannner 6 plaintiffs-appellants suggest. 9 The Judgment of the district court is reversed and these 10 cases remanded for proceedings consistent with this opinion. 11 These holdings, to repeat, make It unnecessary for us to 12 consider the appeals by the plaintiffs-appellants. 13 REVERSED and REMANDED. 14 15 " Jsutadtgeem Ae nlat rcaot n a d li sa st ee nr t sd aatend" may f i l e a s e p a r a t e 16 17 IS 19 20 21 22 23 24 25 26 22 1 FOOTNOTES 2 3 - 1. Plaintiffs-appellants contend that Jurisdiction should also be 4 based on general maritime law, see Moragne v. States Marine Lines, 398 U.5. 375 (1970), which allows litigants in a wrongful death 3 action to recover for loss of society, comfort, and care. See Sea Land Services v. Gaudet, 414 U.S. 573 (1974). We need not address 6 this contention since we do not reach the damages issue in this case, and, apart from damages, the relevant law is the same under 7 general maritime law as under the Death on the High Seas Act. 8 2. Plaintiffs-appellants claim that the district court erred by 9 refusing to award them prejudgment interest, by misapplying the collateral source rule and thereby wrongly reducing the award of 10 damages, and by declining to award compensation for the loss of services and society. Rockwell contends that the district court 11 erred in its findings of fact, evidentiary rulings, and opinion format. 12 13 3. Section 402A states: 14 (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property 15 is subject to liability for physical harm thereby caused to the ultimate consumer, or to his property, if 16 (a) the seller is engaged in the business of selling 17 such a product, and 18 (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it 19 is sold. 20 (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in 21 the preparation and sale of his product, and 22 (b) the user or consumer has not bought the product 23 from or entered into any contractual relation with the seller. 24 4. Strict liability does not apply to every accident- 25 producing activity. SeeT e.q., Restatement (Second) of Torts 402A, comment k (unavoidaDly unsafe products); La Rosa v. 26 Superior Court, 122 Cal. App. 3d 741, 176 Cal. Rptr. 224 (1981) (used products); Pena v. Sita Worlo Travel, Inc., 88 Cal. App. 3d 642, 152 Cal. Rptr. 17 (1978) (services); Silverhart v. Mount Zion 23 1 Hospital, 20 Cal. App. 3d 1022, 98 Cal. Rptr. 187-(1971) 2 (sales-service hybrid). 43 5. Rockwell preserved Its right to rely on the government contractor defense by asserting it in a motion for summary Judgment* 5 6 6. Most of the cases cited by plaintiffs-appellants In which a court held a manufacturer liable to a serviceman involve 7 manufacturing, rather than design defects. See, e.q.. Foster v. Day 4 Zimmerman, 502 F.2d 867 (5th Cir. 1974); Whittaker v. 8 Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir. 1969); Montgomery v. Goodyear Tire & Rubber Co.f 231 F. Supp. 447 (S.D.N.Y. 1964). 9 In other, cases relied on by plaintiffs-appellants, the parties failed entirely to raise the contractor issue. See, e.g., Stencel 10 Aero Engineering Corp. v. United States, 431 U.S. 666 (1977); Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961); Renner v. Rockwell International Corp., 403 F. Supp. 849 (C.D. Cal. 11 1975), vacated, 587 F.2d 1030 (9th Cir. 1978). 12 13 7. The recent decision of the Supreme Court in Lockheed Aircraft Corp. v. United States, 103 S. Ct. 1033 (1983), does not detract 14 from the Feres-Stencel doctrine's rationales. 15 In Lockheed. a civilian employee of the Navy was killed in a crash of a C-5A aircraft manufactured by Lockheed, tand flown 16 by the Air Force. ' The United States paid death oenefits to the employee's survivors under the Federal Employees' Compensation Act 17 (FECA). The survivors then sued Lockheed, and Lockheed impleaded the United States as a third party defendant for Indemnification 18 purposes. The Court held that FECA does not bar such an Indemnity action against the United States. 19 The Court distinguished the Feres-Stencel doctrine from 20 Lockheed. The Court explained that while the United States had waived its immunity from an indemnity action based on an injury to 21 a civilian employee who had been compensated under FECA, the United States still enjoyed sovereign immunity under Feres-Stencel from an indemnity action based on an injury to a serviceman. 1Q3-- 22 S. Ct. at 1037-38 n.8. 23 24 8. Also, allowing liability would, as the Stencel court feared, subject the United States Indirectly to paying for damages to 25 injured servicemen, where the amount of damages would vary depending on the applicable law. 431 U.S. at 672. 26 9. Plaintiffs-appellants also rely on Montgomery v. Goodyear Tire 24 ] & Rubber Co., 231 F. Supp. 447 (S.D.N.Y. 1964). That case, as 2 noted above, Involves a manufacturing, not a design defect. 10. For convenience, we subsume the most important justifications 3 for strict liability into four categories, based on the usage of the Oregon Supreme Court. See. e.q.. Tillman v. Vance Eauipment 4 Co., 286 Or. 747, 752-54, 596"P.'Z3l299, 1302-03 (1979). For a fuller list of the possible rationales for strict liability, see 5 Henderson, Extending the Boundaries of Strict Products Liability: Implications of the Theory of the Second Best. 128 U. Fa. L. Rev. 6 1036 (1980); Owen, Rethinking the Policies of Strict Products Liability. 33 Vand. L. Rev. 681 (I960). 7 Some commentators Include among the principal 8 Justifications for imposing strict liability the reduction of transaction costs by relieving the plaintiff of the problem of 9 proving negligence or warranty violations. See, e.q. S c h w a r t z . Forward; Understanding Products Liability, 67 Calif. L. Rev. 435, 459-60 (1979), Other authorities maintain that the burden of 20 proving negligence is not significantly more difficult than than II of strict liability. S e e t e.q.. Sachs, Negligence or Strict Product Liability: Is There Really a Difference in Law or 12 Economics?. 8 Ga. J. Int'l & Comp. L. 259 (1978). 13 11. The Veterans' Benefits Act may not provide full compensation 14 for a loss in a situation similar to the present case. For example, veterans' benefits do not compensate for loss of 15 companionship or services. But many of these benefits are also unavailable under the Death on the High Seas Act. Moreover, 16 compensation under the Veterans' Benefits Act is not reduced by the high transaction costs present in ordinary products liability 17 litigation. Stencel, 431 U.S. at 673. See Note, 23 B.C.L. Rev. 1025, 1083-84"(1962). 18 19 12. The district court did not make a factual finding on this issue in denying Rockwell's motion for summary judgment on the 20 government contractor defense, R.T. at 25, or in its opinion. Plaintiffs-appellants are mistaken in their assertion to the 21 contrary. 22 13. Section 388. Chattel Known to be Dangerous for Intended Use. 23 One who supplies directly or through a third person a 24 chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of 25 the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and 26 by a person for whose use it is supplied,, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which It is supplied, and (b) has no 25 1 reason to believe that those for whose use the chattel Is supplied 2 will realize its dangerous conditon, and (c) fails to exercise reasonable care to inform'them of its dangerous condition or of 3 the facts which make it likely to be dangerous. 4 14. It is necessary here to distinguish between the Navy, the 5 principal user of the HS-1A system, and plaintiffs-appellants1 decedents, who were "secondary users," or "ultimate consumers" of 6 the system. In the case of section 388, a warning to the Navy would have been sufficient to relieve Rockwell of liability for 7 injury to a Navy pilot. Section 368, comment n. Cf. Oalke v. Upjohn Co., 555 F.2d 245, 247-48 (9th Cir. 1977). 8 9 15. The district court found that both aircraft were out of control, and were flying at speeds in excess of 400 knots. 10 11 16. Section 369. Chattel Unlikely to be Hade Safe for Use. 12 One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that 13 the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is 14 subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be 15 endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does 16 not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its 17 dangerous character. 18 17. But see 389, comment d (railroad is liable to soldier for 19 accident caused by defective track even though soldier was ordered to take train over the track). The example in comment d is based 20 on Bryson v. Hynes, 268 F. 290 (4th Cir. 1920), a case which is not law in this circuit, and which is unlikely to be followed by 21 modern courts, especially after the Feres and Stencel decisions. 22 23 24 25 26 26 - FILED APR 211983 PHILLIP B. ! JftMICE MCKAY, Executrix of the Estate of Lt. CDR. HftLCtfc11 rau:IwAPrUL 2 ViCKAY, "Deceased,~plaintif-Appellant and Cross-Appellee v. ROCKWELL INTERNATIONAL CORPORATION, INC., A Delaware " corporation# Defendant-Appellee and Cross-Appellant H o 8* 3 81-5540, 81-5541i MARIE CARSON,ftdministratrix o t the Estate of FRANK J. CARSON, Deceased, Plaintiff-Appellant an? -4 Cross-Appellee V.ROCKWELL INTERNATIONAL CORPORATION, INC., A *- 3 KDeola. wa8r1e- 5 5co4r2p, or8a1t- i5 o5n43 . D..e. fenda.nt-. Appelle7e and Cross-AppellantT .j 6 7 ALARCON# Circuit Judge# dissenting* 8 I respectfully dissent* Neither the Feres-Stencel 9 doctrine nor the government contractor defense protects 10 Rockwell from liability in this case. As demonstrated by the 11 discussion below# a remand on this issue is unnecessary and the 12 district court's finding of liability should be affirmed. To 13 the extent that the damage awards have been reduced for failure 14 to apply the collateral source rule# the decision should be 15 reversed and the original amounts awarded. 16 Finally# the failure to grant prejudgment interest or 17 damages for loss of services in discussed and instructions for 18 the consideration of these issues on remand are given. 19 FERES-STENCEL 20 The majority's reliance on these opinions for 21 authority in this context is misplaced. Neither opinion 22 addresses, limits, nor precludes contractor liability to 23 military personnel who are injured while using defectively 24 designed and unsafe equipment. 25 The Feres case involved a claim brought by a 26 serviceman's widow under the Federal Tort Claims Act I (hereinafter the FTCA). She alleged that her husband's death 2 resulted from the negligence of his commanding officers.__ 3 In affirming the district court's dismissal of the 4 action the Supreme Court noted that the purpose of the FTCA i was to "waive immunity from recognised causes of action not to 6 visit the government with novel and unprecedented 7 liabilities." Feres 340 U.S. at 142. Because no American law 8 had ever "permitted a soldier to recover for negligence 9 against either his superior officers or the Government he is 10 serving," id., the Court concluded that the widow's claim was 11 outside the waiver of immunity contemplated by the FTCA. 12 In S tencel, a serviceman brought suit against both 13 Stencel Aero Engineering Corp. (hereinafter "Stencel"), the 14 supplier of the ejection seat in which he was injured, and the 15 United States. The serviceman claimed that his injury, was the 16 result of the defendants' individual and joint negligence. 17 Stencel then cross-claimed against the Government for 18 indemnification of any liability it might suffer as a result of 19 the serviceman's claim. The Government, in response, moved for 20 dismissal of both the tort and the cross-claim citing Feres for 21 authority. The motion was granted and the Supreme Court 22 affirmed. 23 The Court agreed that Feres controlled and limited the 24 government's liability to the amounts provided in the statutory 25 benefit packages. Because Stencel's indemnification claim 26 would have pushed the government's liability above this upper ] limit, it also was prohibited. To hold otherwise, the Court 2 concluded, "would be to judicially admit at the back door that 3 which has been legislatively turned away at the front door. We 4** . do not beleive that the [Federal Tort Claims] Act permits such 5 a result." Stencel, 431 U.S. at 673, (quoting Laird v. Welas, 6 406 O.S. 797, B02 (1972) 1 !>*- 7 It is apparent from a reading of these opinions that B the Feres-Stencel doctrine is concerned exclusively with 9 government, not contractor, liability. As stated in In re 10 Agent Orange Product Liability Litigation, 506 F. Supp. 762 11 (E.D.N.Y. 1980) reh. den., 534 F. Supp. 1046 (E.D.N.Y. 1982) 12 (hereinafter, "Agent Orange"), "[t]o the extent that 13 plaintiff's complaints seek recovery against the defendant 14 chemical companies, of course, the Feres doctrine has no 15 application." Id. at 772 (emphasis added); see also 1 Jayson, c. 16 1Handling Federal Tort Claims 5 155.02 at 5-66 n.9 and 5077 n.24. 17 In this case, Mrs. McKay and Mrs. Carson have filed 18 neither a direct claim nor a claim of indemnification against 19 the Government. As such, their claims reside outside the i 20 previously defined area of concern expressed in Feres-Stencel 21 and Agent Orange. 22 More significant than the doctrine's failure to 23 preclude Rockwell's liability, however, is the Stencel 24 opinion's implied recognition that a cause of action against a 25 military contractor is proper. The Court states in footnote 26 eight that prohibiting indemnification of Stencel is not unfair 1 because it *no doubt had sufficient notice so as to take this 2 risk [i.e. being held liable without indemnification by .the 3 'Government] into account in negotiating its contract for the 4 ^emergency eject system at issue here* Stencel, 431 D.S. at . } 674 This statement Implies (1) the Court was aware of 26 Stencel9s liability for the ejection seat and declined to 7 restrict or preclude it, / and (2) the Court recognized that 8 contractors like Stencel are aware of their possible liability 9 in this context and have already set their, bid prices to 10 reflect this. risk. Here too, the Court declined to restrict or n preclude this practice. Consequently, limiting' the risk which 12 supports this added cost, as the majority has done, merely 13 results in a windfall to suppliers like Rockwell and Stencel 14 who have existing contracts. 15 Under the majority's analysis, however, such a result 16 is not discussed. To the contrary, it is assumed that current 17 military contracts do not contain this type of compensation. 18 Rather, the majority fears that contractors will, if held 19 liable for unsafe designs, begin passing these liability costs 20 on to the Government. This will be achieved, the majority 21 suggests, through later sales and cost overrun provisions.-- / 22 Such contractual indemnification, the majority concludes is (1) 23 precluded by the Feres-Stencel doctrine, and (2) going to 24 significantly increase the costs of military equipment. 25 Neither conclusion is correct. 26 With regard to the first conclusion, it is simply not -4 1 supported by the opinions themselves. The Feres opinion does 2 not even sention the issue, and footnote eight of the Stencel 3 'opinion recognizes that most military equipment contracts 4 already reflect this cost to some extent. The Stencel "3 opinion's failure to condemn this practice reflects the Court's 6 appr' eciatio,n* *for the %rea1l* "i t'ie,si4* which , control * in a free market 7 system. If contractors are subject to products liabilityf then 8 that factor will be reflected in their overall cost of doing 9 business. This cost# of course# will ultimately dictate the 10 price charged to customers. 11 There is, however, no reason to believe that these 12 costs are common, in amount and frequency, between all military 13 equipment suppliers. Those with proven safety records may be 14 able to secure liability insurance at much lower rates than 15 less careful suppliers. Presumably, such cost savings enable 16 these manufactures to make lover bid prices and be more' 17 competitive. Because the Military is free to pursue and accept 18 these lower bids, they help sharpen competition and keep the 19 overall cost of bids down. Those manufacturers who do suffer 20 liability, because of unsafe equipment, will be unable to pass 21 on these costs freely due to the lower bids of their safer 22 competitors. This analysis also demonstrates the error in the 23 majority's second conclusion, i.e., products liability in this 24 context will translate into significantly higher equipment 25 costs to the Military. 26 While there is no doubt that some of these liability ] costs will find their way into overall bid costs this is to a 2 certain extent inevitable. The free market system however 3 insures that this cost transfer will be minimized. Just as 4 some manufacturers are better at minimizing the cost of Mm . :5 overhead, others will be better at producing safe designs and >*> * avoid ing 1iaSllityv^Bi^Jprice tlon^ find.Jbhe '.post of 7 liability provide incentives to minimize both. Footnote eight 8 of the Stencel.opinion concedes this system*s existence and 9 recognizes that one way or another all costs Incident to 10 manufacture get passed on to the customer, whether or not it is n the Government. As long as our economy continues as a free 12 market system this court should refrain from denying its 13 realities. 14 The above analysis, of course, does not apply to all 15 government contractors, for not all of them contract at arms 16 length with the Government. In those situtations where* 17 compulsion exists, in one form or another, the contractor 18 should be immune from suit. Public policy, however, requires 19 that this immunity be extended only in those cases where 20 liability will not encourage safer design or lower costs. 21 GOVERNMENT CONTRACTOR DEFENSE 22 In its analysis of this defense, the majority has 23 chosen to disregard the aforementioned public policy 24 limitation. The four elements of the defense summarized in the 25 opinion too easily allow contractors to shift responsibility 26 for the safety of their designs on to the Government. Under I the majority's four part test, any contractor who submits 2 designs to the Military and secures approval for them is immune 3 -from unsafe design liability. This goes too far. 4 The Ninth Circuit has already analyzed the government "`5 contractor defense in Merritt, Chapman ft Scott Corp. v. Guy F. 6 Atkinson C o ., 295 F.2d 14 (9th Cir. 1961). Zn that case, this 7 court held that "(i]t is elementary that compulsion must exist 8 before the 'government contract defense' is available." Id. at 9 16, (emphasis in original). This compulsion requirement, 10 however, is dismissed by the majority. Under that analysis, n Merritt is found inapplicable because of the simplicity of the 12 construction specifications involved in that case. Why the 13 detail of the specifications should, by itself, negate the 14 compulsion requirement, is not explained. By failing to do so, 15 however, the majority glosses over what this circuit has 16 recognized to be an "elementary" requirement of the defense. 17 The question of compulsion is fundamentally distinct 18 from a project's complexity. A contractor can be required to 19 make blasting caps in the exact manner provided in military 20 specifications during time of war, see Littlehale v. E.T. du 21 Pont de Nemours & C o . , 268 F. Supp. 791, 801-802 (S.D.N.Y. 22 1966) , aff'd, 380 F.2d 274 (2d Cir. 1967) or be given free 23 reign to design a complex airplane like the B-52. See Boeing 24 Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961) and O'Keefe 25 v . Boeing Company, 335 F. Supp. 1104 (S.D.N.Y. 1971). Merritt rcKignizes :he distinction between these situations and I endorses the extension of immunity only in those cases where 2 behavior has been compelled. 3 Merritt does not stand alone in this respect. All of 4 the cases relied on by the majority, which apply the defense, found some factor which compelled the contractor to act as they 6 did. In Casablanca v. Casablanca,J428 H.Y.B. 2d 400 (1980), 7 the subject bakery dough mixer had been built "in or about 1942 8 or 1943 for the United States Army in accordance with the 9 Army's specifications for use in field kitchens during World 20 War II." Id. at 401. Later, after having been installed in 21 the plaintiff's pizza parlor, the machine injured the 22 plaintiff's son. In dismissing the son's claim against the 13 manufacturer, the court held that "a supplier to the-military 14 in time of war has a right to rely upon such specifications 15 [i.e. those provided by the military] . . . " without fear of 16 liability. Id. at 402. (Emphasis added) The court then 17 expressly limited the extension of this immunity to contracts 28 performed under "time of war" restrictions. Id. 19 The approval of the government contractor defense in 20 the In re Agent Orange Products Liability Litigation, 506 F. 21 Supp. 762 (E.D.N.Y. 1980), reh. den., 534 F. Supp. 1046 22 (E.D.N.Y. 1962) opinion, also involved manufacturers who 23 alleged that they were compelled during "time of war" to 24 produce supplies according to specifications developed and 25 provided by the Military. 506 F. Supp. at 794-95. 1/ 26 Although that case has yet to come to trial, the court 8- I ii \I established the elements of the government contractor defense which the chemical companys must prove. Theref the court tated, that "one of the elements of the defense is that the A product in issue be one for which the government established the design and specific characteristics." 534 F. Supp. at 1056. Furthermore# "if it should appear that the contract set forth merely a 'performance specification*# as opposed to a specified product# then the government contract defense would be far more restricted than as described here.* Id. It is clear from these statements that the Agent Orange court recognizes and reguires control or compulsion as an element of the defense. In Sanner v. Ford Motor C o .# 144 N.J. Supp. 1, 364 A.2d 43, aff'd, 154 N.J. Super. 407, 381 A.2d 80S (1977), cert. denied, 75 N.J. 616, 384 A.2d 846 (1978) another form of compulsion was presented. There, the contractor merely built a vehicle according to plans and specifications provided to it by the Military. The court found that "defendant had no discretion with respect to the installation of seatbelts and since it strictly adhered to the plans and specifications owned and provided by the government, Ford is protected from liability." Id. at 806 (emphasis added). Each of these cases demonstrate, in one way or another, the compulsive nature of the Government's behavior or direction when its contractor is immune. Only then will the contractor's behavior be the result of governmental discretion and direction. Consequently, only then should the contractor "9 1 share in the Government's immunity. 2 Zn this case Rockwell has not even alleged it was .3 compelled to produce this ejection system. Furthermore the 4 only specifications which Rockwell adhered to were initially 5 produced by its own design staff. Whether the Military 6 subsequently ratified these designs should not alter Rockwell's 7 primary responsibility for their content and adequacy. This 8 case is unlike Banner or Casablanca where the contractor merely 9 followed plans and specifications provided and developed by the 10 Military. Rather, this matter more clearly resembles the 11 situation described in Agent Orange where the Military merely 12 provides "performance specifications". As such, the government 13 contract defense should be "far more restricted" than that 14 described by the majority. See Agent Orange, 539 F. Supp. at 15 1056. 16 More specifically, Rockwell's posture reflects'that of 17 Boeing, in Boeing Airplane Company v. Brown, 291 F.2d 310 (9th IB Cir. 1961) (hereinafter Brown) and O'Keefe v. Boeing Company, 19 335 F. Supp. 1104 (S.D.N.Y. 1971) (hereinafter O'Keefe) . In 20 O'Keefe, Boeing was sued for negligent design of the tail 21 support structure in''the B-52 bomber. In response, Boeing 22 argued the government contractor defense. The court then 23 conceded that "ultimate responsibility for the design and use 24 of the B-52 bomber rests and has always rested with the United 25 States government." 335 F. Supp. at 1124. Neverthless, the 26 court went on to say that "this fact, in itself, neither i 1 exonerates the defendant, nor has it in any way altered the 2 defendant's duty as a manufacturer in this case where there has 5 been no showing that the defendant was totally oblivious of '* and/or aloof from the genesis of the design V specifications Id. - 6 " - -' The majority discusses this conclusion but dismisses 7 it as dictum.5/ Nevertheless, it is based on the holding in 8 Brown. There, a defectively designed alternator disintegrated 9 and caused the B-52 in which it was installed to crash. In 10 this case Boeing also attempted to avoid liability by shifting 11 primary responsibility for the defect on to the Government. 12 They argued, according to the court, that: 13 the Air Force was negligent in its entire 14 course of conduct in approving the design 15 for the alternator drive prior to manufacture, 16 supervising its manufacture, monitoring the 17 qualification and production testing, and 18 accepting the completed aircraft. Appellant 19 predicates this view on the assumption, for the 20 purpose of argument, that the design of the 21 alternator drive was defective. If the 22 design was defective, it. is contended, the 23 Air Force, in view of its continual contact 24 with the project, was negligent in its failure 25 to discover the defect and require its correction. - 11- 1 291 F.2d at 316-17. Although Boeing did not specifically label 2 this argument "the government contractor defense" clearly its 3 Content demonstrates its essential similarity to that defense. 4 The Ninth Circuit however was no more impressed with S the argument at that time than it should be now. The court 6 recognised that Inspection and approval do not constitute .7 direction or compulsion. Therefore Boeing was responsible for 8 Its own actions and design decisions despite the Government's 9 approval. / As long as Boeing continued as the source or 10 genesis of the design the negligence of that design remained 11 its own responsibility. 12 The majority, however, does not even address this 13 earlier decision by the Ninth Circuit. Instead, it is 14 dismissed in footnote six, ante, as being a case which fails to 15 discuss the contractor issue. The above excerpt demonstrates 16 that.this is not the case. Furthermore, the two Boeing cases 17 are significant in that they are nearly identical to the case IB at bar. All three involve contractors who supplied negligently 19 designed complex weapons systems which were approved and tested 20 by the Military. In each, the courts held that responsibility 21 for the designs remained with the manufacturer despite military 22 approval. Furthermore, unlike the other cases which involved 23 supply contracts entered into either during time of war or \ 24 pursuant to government supplied plans and specifications, these 25 cases involved contracts made pursuant to "performance 26 specifications". The above mentioned similarities and -12 I distinctions demonstrate that Brown and 0*Keefe rather than 0 2 Banner and Casablanca should control here. 3 The majority is also concerned about possible A r-v. 5 deleterious effects this type of contractor liability would "have on military discipline* Although the Btencel opinion i^ ,V."K. ' i % K Vi*,**' - ' - K . ' . l - -. 6 expressed some concern for that Issuef justice Marshall's 7 dissent in that case clearly demonstrated its boundaries* Be B recognized that a contractor sued by a civilian might *cross 9 claim against the Government* In that hypothetical case 10 there would be the same chance that the trial would 'involve 11 second guessing military orders and would * . . require 12 members of the Armed Services to testify in court as to each 13 other's decisions and actions1 Ante at 673. Yet there would 14 be no basis, in Feres or in the Tort Claims Act, for concluding 15 that the suit is barred because of the nature of the evidence 16 to be produced at trial." Stencel, 431 U.S. at 676-77* 17 (Marshall, dissenting). Clearly then, if Marshall's 18 hypothetical suit is not blocked by discipline concerns, then 19 the far more attenuated suit at issue here is also unblocked by 20 this concern. 21 Finally, the majority suggests that to treat military 22 personnel "as ordinary consumers would demean and dishonor the 23 high station in public esteem to which, because of their 24 exposure to danger, they are justly entitled." Ante, at 18. 25 While all can agree that military personnel are entitled to the 26 high honor and esteem in which they are held, 1 take issue with I 1^ i j i; I the majority's description of its source. 2 Military personnel are honored and esteemed because . 3 they are willing to fight for their country and risk their .4 lives doing so. They are not so respected becuse they are sometimes forced by their calling to use unsatisfactory or *4 unsafe lequi p m e htT^I t ^ a ^ h e M i l i ^ a r y ^s#^ o c k W e l l *a and this 7 court's duty to insure that our servicemen are provided with B reliable and safe equipment. Just as the Military can make any 9 parachute packer take one that he has just folded and sake him 10 jump with it, the court should require that Rockwell stand i 11 behind the products for which it voluntarily contracts and 12 provides at a profit. To extend the contractor defense in the 13 way the majority suggests will only result in more unsafe and 14 unreliable equipment. To do so would unnecessarily increase 15 the danger which our military personnel face so 16 patriotically.Z/ 17 THE REMAND IB Applying the holdings and reasoning of O'Keefe, Brown, 19 Merritt and Agent Orange to the instant case demonstrates that 20 a remand on the issue of liability is unnecessary. As 21 mentioned earlier, although Rockwell raised the government 22 contractor defense in a motion for summary judgment, it failed 23 to put on evidence in support of that defense at trial. 24 Rockwell does not point to any testimony or evidence in the 25 record which shows that it was compelled by the Military to 26 build the ejection system in a particular manner../ On the 14- 1 other hand, the district court opinion is replete with 2 references which demonstrate that the trial judge found 3 Rockwell, not the Military, to be the designer of the ejection *4 ystem.2/ Furthermore, Rockwell's reliance on Kropp v. "Douglas Aircraft, 329 F. Supp. 447 (E.D.K.Y. 1971) for s r4 .description'of their ejection seat design process demonstrates 7 that they are not entitled to the defense. In Kropp, the 8 design process was described as beginning "rather informally 9 with an idea or suggestion which may emanate either from the 10 manufacturer or the Government, usually the latter." Id. at 11 456. This description closely parallels the "performance 12 specification" situation described in Agent Orange. There, the 13 court held that the government contractor defense was "far more 14 restricted." See Agent Orange, 539 F. Supp. at 1056. It also 15 reflects Boeing's behavior in O'Keefe, where a failure to show 16 "the defendant was totally oblivious and/or aloof from the 17 genesis of the design specifications in the first place" 18 precluded the defense. See O'Keefe, 335 F. Supp. at 1124. 19 Finally, Brown shows that inspection and approval of a design 20 by the Military does not in any way dismiss the primary 21 responsibility of the contractor who creates the design. See 22 Brown, 291 F.2d at 317. 23 The purpose of the remand, proposed by the majority, 24 is to discover whether or not the Government set or approved 25 reasonably detailed specifications for the HS-lA system." 26 Ante at 18. As shown by the discussion above, however, it is compulsion, to follow Government plans, not Government approval -15- I of contractor plans which entitles Rockwell to immunity. Even 2 if we assume, arguendo, that a detailed aet of plana created by S Rockwell were aubmitted and then approved, the lack of 4 compulsion would prevent the Government from assuming .responsibility .for the .safety or .adequacy of Rockwell's design. Because Rockwell lias failed to prove or allege that it 7 was compelled to produce the BS-lA system, a remand Is 8 unnecessary. Without evidence of the compulsion element, the 9 Ninth Circuit has held and should continue to hold as a matter 10 of law, that the defense is unavailable. See Merritt, 295 F.2d 11 at 16. If the majority continues to insist on a remand, then, 12 in 'addition to the four elements set out in the opinion, 13 Rockwell should be required to prove, as a fifth element of the 14 defense, that it was compelled by the government to produce the 15 ejection system in a manner which failed to protect the 16 crewman's head and neck from injury. * 17 While I believe that a remand on the liability issue 18 is unnecessary, I do believe that other issues, not discussed 19 by the majority, require reversal and further consideration by 20 the district court. In the interest of judicial economy, I 21 will discuss them at this time. 22 THE DAMAGES ISSUE 23 The district court concluded, in both cases, that the 24 amount of Rockwell's liability was to be reduced by the V.A. 25 benefits each widow was receiving. The trial judge concluded 26 that [pjlaintiffs should not be permitted to recover the -16- I lost* military retirement while presently collecting that 2 retirement in the form of V.A. pension." District court-- 3 opinion at 14 The conclusion is incorrect. ____ The Ninth Circuit has recognized the "well established **** 5 rule that s tortfeasor's liability is not reduced by funds or 6 services received by the injured person from a source 7 collateral to the tortfeasor. The tortfeasor should not be 8 required to compensate twice for the same injury Isee Brooks 9 v. United States. 337 D.S. 49 53-54 69 S.Ct. 918 93 t.Ed. 10 1200 (1949)] but he should not have the benefit of payments to 11 the injured person which he did not make." Gypsum Carrier, 12 Inc, v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). 13 Therefore, the question before us is whether Rockwell can be 14 considered th source of the V.A. benefits being received by 15 Mrs. McKay and Mrs. Carson. 16 The benefits at issue are distributed pursuant'to 38 17 U.S.C. S5 410-417 (1979) (Dependency and indemnity compensation IB benefits). Funds for these benefits are by Congressional 19 appropriation and other than general payment of taxes, Rockwell 20 makes no specific contribution to these funds. Therefore, the 21 Government, not Rockwell, is the source of these benefits. 22 Rockwell contends, however, that its contractual 23 relationship with the Government prohibits this conclusion and 24 cites City of Salinas v. Souza fc McCue Construction C o ., 66 C. 25 2d 217, 57 Cal.Rptr. 337, 424 P.2d 921 (1967) (hereinafter 26 "Souza") for support. The contention has no merit. 1 The Souza opinion is inapplicable to Rockwell's 2 situation for two reasons. First, because public-entity 3 'defendant was involved, Souza restrained application of the A rule. The court reasoned that "the collateral source rule is P;r *~5 punitive In nature (Pnited Protective Workers v. Ford Motor 6 Co., 223 F.2d 49, 54 (7th Cir. 1955)j 2 Harper James, Law of 7 Torts, S 22.22 p. 1345; Fleming, The Collateral Source Pule and 6 Lore Allocation in Tort Law, 54 Cal.L.Rev. 1478, 1482-1484)", 9 and that "the levying of punitive damages against a public 10 entity has not been authorized." Souza, 6 C.2d at 228. 11 Second, Souza involved a breach of contract action. In such 12 cases, the recovery "is intended only to restore the injured 13 party to the position he would have occupied in the absence of 14 the breach." Id. at 227. Therefore,, set-offs which limit 15 recovery to the benefit of the bargain are not objectionable. 16 In tort cases, however, no such limitation applies. To 17 restrain the collateral source rule in this context "would 18 negate the deterrent effect of an award against a tortfeasor." 19 I d . Consequently, both factors which restrained application of 20 the collateral source rule in Souza do not apply here. 21 Rockwell, despite its contractual relation with the Government, 22 is not a public entity, and its-liability stems from tortious 23 conduct, not contract breach. Rockwell's other arguments in 24 favor of set-off are equally unpersuasive. 25 First, Rockwell argues that the collateral source rule 26 only applies to contributory benefits. The cases upon which -18 1 Rockwell relies, however# have only applied this requirement to 2 situations where there is a government defendant which is. 4 `already paying benefits to the plaintiff.2/ The 4 contribution requirement in these cases protects government I *o Tr ':-ij V `defendants from doubltTliabillty. ~ Such protection is < * 6 unnecessary in Rockwell's situation* v Furthermore, - 7 Feres-Stencel Insures that the Government's liability is 8 limited to the V.A. benefits being paid. 9 Second, Rockwell argues that the. V.A. benefits 10 represent a payment by a tortfeasor prior to litigation and 11 should be deducted.li/ The district court, however, did not 12 find that the Government was negligent with respect to the 13 ejection seat design.-- / Consequently, the Government is not 14 a joint-tortfeasor with respect to Rockwell's present liability 15 for unsafe design. 16 Rockwell's final contention is that V.A. benefits are 17 equivalent to those provided under the Federal Employment IB Compensation Act and are therefore, set off under Witt v. ( 19 Jackson, 57 Cal.2d 57, 73, 17 Ca'l.Rptr. 369, 366 P.2d 816 20 (1961). The holding in Witt, however, was limited to 21 California workmen's compensation benefits and only applies 22 when the employer is a concurrent tortfeasor. See De Cru? v. 23 Reid, 9 Cal.2d 217, 222-23, 70 Cal.Rptr. 550, 443 P.2d 193 24 (1968); Arbaugh v. Proctor & Gamble Mfg. Co., 80 Cal.App.3d 25 500, 145 Cal.Rptr. 608 (1978) . As has been discussed earlier, 26. the district court did not find the Government to be a I 3i ] concurrent tortfeasor with respect to the ejection seat 2 design. Therefore, Witt does not apply and it Is unnecessary 3 "to decide whether or not V.A. benefits are equivalent to 4 workman's compensation. ... In sum. Gypsum Carrier, supra, states the general rule In this circuit.~vDespiteRockwell's arguments, there is no reason why it should not be applied in this case. The V.A. benefits presently being paid to Mrs. Carson and Mrs. McKay stem from a source "wholly independent" of Rockwell. As such, JO they are a collateral source, and the district court erred in 11 concluding otherwise. The district court ruling on this issue 12 should be reversed and the original sum awarded. 13 PREJUDGMENT INTEREST * 14 The damages awarded to plaintiffs do not include an 15 amount for prejudgment interest. "In admiralty, prejudgment 16 interest must be granted unless peculiar circumstances justify 17 its denial;" Dillingham Shipyard v. Associated Insulation C o ., 18 649 F.2d 1322, 1328 (9th Cir. 1981). "The determination of 19 whether peculiar circumstances exist warranting the denial of 20 prejudgment interest is left to the sound discretion of the 21 trial court." Edinburgh Assur. Co. v. R.L. Burns Corp., 669 22 F.2d 1259, 1263 (9th Cir. 1982). Failure to articulate why 23 prejudgment interest is not to be awarded is an abuse of 24 discretion. Ic3. Under these authorities, the failure to 25 either award plaintiffs prejudgment interest or articulate 26 reasons for not doing so was an abuse of discretion by the I district court. Upon remandf the trial judge should either 2 "determine at what rate and from what time prejudgment interest 3 should be swarded," Edinburgh. supra at 1263 or articulate why .A he has not done so. -Z'* fl - -LOSS:-vO-F vS*E'*R'V I C E*S ' ' ^ ** * ; " * 6 The damages awarded to plaintiffs did not provide for 7 loss of services. This measure of damage is distinct from loss 8 of society and is recoverable under DOHSA. See Mobil Oil Co. 9 v. Higginbotham, 436 U.S. 618 622 reh. denied, 439 U.S. 884 10 (1978); Solomon v. Warren 540 F.2d 777, 788-90 (5th Cir. 11 1976), cert, dismissed, 434 U.S. 801 (1977) (Loss of services 12 herein called "loss of nurture".) Loss of services is 13 compensable because it is capable of being valued. "Guidance 1A of a parent in matters material, moral, and spiritual is of a 15 definite practical and financial value and is subject to 16 pecuniary estimate." Moore-McCormack Lines v. Richardson, 295 17 F.2d 5B3, 593 n.9a (2d Cir. 1961), cert, denied, 368 U.S. 989 18 (1962); Bodden v. American Offshore, Inc., 681 F.2d 319, 329 19 (5th Cir. 1962). Consequently, it was error for the district 20 court to grant an award which did not include an amount for 21 loss of services or an explanation why they were excluded. On 22 remand, the trial judge should determine whether there is a 23 factual basis for loss of services in these cases; 24 Under DOHSA the wrongful death of a parent 25 standing alone is an insufficient predicate 26 to support recovery by a child of the loss I of parental nurture, and in order to recover 2 this item of damages the evidence must show 9 that the deceased parent was fit to furnish such "4 training and that training and guidance had "5 actually been rendered by the parent during r 6 T-J-.. his or her lifetime to their children. t1 7 Solomon v. Warren, supra at 788; see Petition of Risdale a 8 Anderson, Inc., 291 F. Supp. 353, 358 (D. Mass. 1968) (factors 9 to consider). 10 11 12 15 14 15 16 17 18 ( 19 20 21 22 23 24 25 26 i FOOTNOTES 1/ The use by the majority of this quotation at page 9, ante stay lead to a misinterpretation or Bisiead others as to the Supreme Court's holding. There# the usage of the quote implies that the Stencel opinion disapproves of contractors passing on their costs through later sales and cost overrun provisions. In fact, the quoted language merely refers to indemnity suits. 2/ The Agent Orange opinion comports with this analysis. There the court stated that the "Feres-Stencel doctrine bars defendant's attempt to seek contribution or indemnity from the United States based on any recovery plaintiffs may obtain for injuries. . . ." Agent Orange, 506 F. Supp. at 774. This acknowledgement that plaintiffs might recover from a military contractor within an analysis of Stencel implies that such a recovery is not barred by that opinion. 3/ The majority fails to explain how liability costs can be legitmately included within the ambit of a cost-overrun provision. / It should be noted that the court in Agent Orange denied a motion for summary judgment based on these compulsion -23- 1 allegations. Instead the court required defendants to prove 2 at trial that this compulsion in fact occurred. Agent Orange 5 *506 F. Supp. at 795-96. See also Jenkins v. Whittaker Corp. 4 551 F. Supp. 110 (D. Haw. 1982) where the court noted that the -5 Agent Orange ruling "should be limited to cases Involving the 6 manufacture of '^weapons .during w a r t i m e . I d . at 114. Also J because the atomic 'simulator at issue was not "designed under 8 the urgency of wartime" the Agent Orange holding was 9 > "inapposite to the case at bar." Id. 10 11 5/ The majority fails to explain why the dictum in Q*Keefe is 12 less meritorious than the dictum in Agent Orange upon which it 13 so heavily relies. 14 15 6/ See Jenkins v. Whittaker Corp. supra, note 4 where the 16 court "ORDERS that Whittaker will be prohibited from arguing to 17 the jury that Whittaker cannot be held liable for design . . 18 because Whittaker followed the plans and specifications of the 19 government. . . 551 F. Supp. at 114-15. 20 21 2/ See Foster v. Day fc Zimmermann, Inc. 502 F.2d 867 (8th 22 Cir. 1974) (where the court stated: 23 24 In making the grenade and its component parts 25 the defendant knew that it was made for military personnel and that it was to be used by them. -24- - ' * 1 He believe the public interest in human life 2 and health requires the protection of the law :9 ...J ^ L ..... ^. . against the manufacture of defective explosives whether they are to be used by members of the public at large or members **i *//.**.. .** vv`* 1"- * .. * . of the public serving In our armed forces C 7 Id. at 871) see also Challoner v. ay a Zimmermann, Inc. 512 8 F.2d 77 (5th Cir. 1975). 9 10 8/ See footnote 4 supra where defendants in the Agent Orange 11 case were required to prove among other things that (1) the 12 military developed and provided exact specifications for the 13 product and (2) that they were compelled to produce Agent 14 Orange in this manner by the war time provisions of federal law. . 15 16 9/ See District Court Opinion at 10 "Rockwell designed* 17 developed, tested, and manufactured a system . . . known' as the 18 FS-1 system . ." also, "the many neck injuries that had been experienced by crewman who had activated the HS-lA and the ( 19 ' 20 similar preceding FS-1 escape system must have brought notice 21 to Rockwell as designer and manufacturer, . . . " a t 12. 22 (emphasis added) 23 24 10/ Rockwell relies primarily on: Helfend v. Southern Cal. 25 Rapid Transit District, 2 Cal.3d 1, 13-14, 84 Cal.Rptr. 173, 26 1B1 (1980)) United States v. Brooks, 176 F.2d 482 (4th Cir. I 1949); and Overton v. United States, 19 F.2d 1299 (Bth Cir. 2 1980). '3 4-4 11/ The rule which Rockwell relies on requires that the 5 "payments be in settlement." See Donham v. United States. 536 6 F.2d 765# 775 n.12 (8th Cir. 1976)# aff'd sub n o w .# Stencel 7 Aero Engineering Corp. v. United States. 431 U.S. 666 (1977). 8 Furthermore, the Donham footnote is based on the reasoning int 9 Hurray v. United States, 405 F.2d 1361 (1968). This reasoning 10 was rejected by the Ninth Circuit in Dodge v. Mitsui Shintaku n Ginko K.K. Tokyo, 528 F.2d 669# 671-72 (9th Cir. 1975), cert. 12 denied, Mitsui Shintaku Ginko K.K. Tokyo v. Dodge, 425 U.S. 944 13 (1976). There, this court noted that the Murray approach had 14 been rejected by the Second Circuit and that it was contrary to 15 the great weight of authority. 16 17 12/ There was some suggestion in the district court opinion 18 that the Navy had been negligent in its apparent failure "to 19 live up to its duty to vigilantly inspect, maintain, and repair 20 these high performance airplanes." District Court Opinion at 21 9. With regard to the ejection seat, however, that was "quite 22 another matter." Id. "It seems clear to the Court that the 23 design of the escape system is all-important . . . maintenance 24 of the system is of lesser importance." I<3. at 12. Finally, 25 "the court finds that the condition of the HS-lA ejection 26 system involved . . . had not substantially changed between the 1 time they were installed by Rockwell and the tine they were 2 deployed by decedents" Id, at 14. -! 4 A i 6 7 9 10 ]] 12 13 14 15 16 17 18 19 ( 20 21 22 23 24 25 26 27