Willful Misconduct E-Book

William Norris

• Herausgeber: CamCat Books
• Kategorie: Sachliteratur, Reportagen, Biografien
• Sprache: Englisch
• Veröffentlichungsjahr: 2020

Seitenzahl: 524

Beschreibung

The Tragic Story of Pan American Flight 806

Leseprobe

Willful Misconduct

William Norris

CamCat Publishing, LLC

Brentwood, Tennessee 37027

camcatpublishing.com

Although the author and publisher have made every effort to ensure that the information in this book was correct at press time, the author and publisher make no representations or warranties, express or implied, about the completeness, accuracy, reliability, suitability, usefulness or timeliness of the information contained in this book for any purpose. The author and publisher do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

© 2020 by CamCat Publishing

All rights reserved. Printed in the United States of America. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, address 101 Creekside Crossing Suite 280 Brentwood, TN 37027.

Hardcover ISBN 9781931540346

Paperback ISBN 9780744300833

Large-Print Paperback ISBN 9780744300840

eBook ISBN 9780744300857

Library of Congress Control Number: 2020936170

Cover design by Mimi Bark

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Contents

Also by William Norris

Prelude

Book One

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Book Two

Chapter 12

Chapter 13

Chapter 14

Chapter 15

Chapter 16

Chapter 17

Chapter 18

Chapter 19

Chapter 20

Chapter 21

Chapter 22

Chapter 23

Chapter 24

Chapter 25

Chapter 26

Chapter 27

Chapter 28

Chapter 29

Book Three

Chapter 30

Chapter 31

Chapter 32

Chapter 33

Chapter 34

Postscript

For Further Discussion

About the Author

More from William Norris

Excerpt: Snowbird

Untitled

Snowbird

A Talent To Deceive

The Badger Game

A Grave Too Many

The Man Who Fell From The Sky

Willful Misconduct

Untitled

CamCat Publishing

Untitled

Also by William Norris

Nonfiction Titles from CamCat Perspectives

The Man Who Fell from the Sky

Snowbird

A Talent to Deceive

Fiction Titles from CamCat Books

The Badger Game

A Grave Too Many

Make Mad the Guilty

Prelude

Room 64G, in the cellars beneath the United States District Court for the Central District of California, is some way off the Los Angeles tourist route. Above it, in the filing section on the ground floor of the imposing building on North Spring Street, a stern notice forbids public entry. Beyond this sign, a steep flight of stairs leads down to a catacomb of roughcast concrete and dusty pipes. Here is a tomb without bones, a mortuary of long-forgotten files and long-abandoned catalogues of legal pain. It is a place where hopes and dreams and aspirations share the upright coffins of the filing cabinets with tragedy and pain. The paper detritus of the act of dying is all around.

Room 64G contains more than its fair share of death. Behind a dull green door, its lock stiff with disuse, are the exhibits that catalogue the end of ninety-seven lives: those of the men, women, and children who took their last trip on Flight 806 of Pan American World Airways from Auckland to Pago Pago on January 30, 1974.

I had gone to the courthouse in search of something; I knew not what. I only knew that the crash at Pago Pago, so small and insignificant by later standards of disaster, had spawned the longest, most complex, and most expensive legal case in aviation history. I wanted to find out why. Perhaps here, where the exhibits were left at the conclusion of the first trial in July of 1978, I would find some clue.

I was dredging for inspiration, seeking to find some foothold from which to climb the mountain of research that would undoubtedly lie ahead. I was not to know that before the day was out I would hold in my hands an unexploded bomb, a document so explosive that lawyers and judges had spent years making sure it would never reach the public. It was called the Hudson Report.

I had heard of this document, at least by repute. In December 1975, in a progress report to his clients who were suing Pan American for damages, Los Angeles attorney Daniel C. Cathcart had referred to “a detailed FAA (Federal Aviation Administration) investigation of the Pan Am operation from the point of view of aviation safety.” He was full of confidence. “I feel we have reason to believe,” he added, “that the Pago Pago air crash litigation will be a matter of past history by this time next year.” Read in 1981, with the action still going full blast, the words had an air of sad bravado.

On March 24, 1976, in his fourth progress report, Cathcart wrote:

In addition, we have uncovered a group of reports by Pan American pilots based at San Francisco, citing the dangerous practices engaged in by Pan American . . . with the information which is now in admissible form, contained in the FAA investigation reports, Pan Am’s own in-house investigations of its operation, as well as the report submitted by Pan Am pilots, I cannot believe that the management will permit this case to go to trial.

The contents of these reports are by court order not to be released to anyone. Once this case goes to trial the order will not apply, and the press will undoubtedly pick up these reports, and the international dissemination of these documents has the potential to destroy Pan American as an operating entity.

It was strong stuff. Clearly, these documents were of the utmost importance. Yet at this point the trail went cold. There were no press accounts that I could trace, nor any indication that the reports had been produced at the trial. And there was one further mystery: I had been shown the report quoted above by one of the survivors of the crash. Yet when the lawyer subsequently opened his files to me, with apparent total frankness, that letter was missing from the sequence of progress reports stretching over seven years. What was more, the later documents had been renumbered, so that there was no reason to suppose one was missing. Had I not happened to chance upon it in New Zealand and had the accidental foresight to make a copy, I would never have known of this alleged sensational evidence.

Had the FAA report ever existed? That was the question that worried me. If so, had it been the subject of an elaborate cover-up operation to protect the reputation of America’s most prestigious airline? One thing seemed certain: if such a cover-up had taken place, no one would have been so careless as to leave the report lying around where inquisitive people like me could find it.

I resolved to take up the search in Washington, D.C., where I had friendly contacts in the aviation community. In the meantime, there seemed no harm in having a look at the archives of the California court where the long drama had taken place. There was no telling what might turn up.

The clerk in charge of the exhibits section of the district court was a pleasant and efficient young man named Lee Torbin Junior. Mr. Torbin received my request to look at the relics of the Pago Pago trial with polite disbelief. It was clearly beyond his experience that anyone, even a crazy British author, should want to see such things. I had the distinct impression that he had no idea where the stuff was kept, but luckily my total ignorance of its file numbers, which by regulation had to be written down before the request could be granted, saved him from having to admit the fact. Still, he was very nice about it.

The response was discouraging, but I had all day. Having traveled a long way and spent a lot of money to stand in that office, I was disinclined to give up without a struggle. I stayed on one side of the barbed-wire fence. Mr. Torbin stayed on the other, and for an hour or two we swapped polite suggestions and refusals while the more orthodox business of the records office went on about us.

At length, he seemed intrigued by my persistence. It was becoming plain that I had no intention of going away and leaving him in peace. “Hey, Charlie,” he called to one of the other clerks, “didn’t they put all that Pago Pago stuff in a cellar someplace?” Charlie thought they had. Someplace. All at once Lee Torbin Jr. reached a decision, probably born of desperation. “Come on,” he said to me. “Let’s go look.” And to my great surprise he beckoned me behind the counter, past the prohibiting notice, and down the stairs. We were headed for room 64G.

For a journalist, there is a very special thrill in being where he ought not to be, seeing what authority wishes him not to see, or reading what he is not supposed to read. I felt it strongly that day.

It took some effort to shift the stubborn lock on 64G, but at last we were in. Mr. Torbin and I were alone with the legal relics of Pago Pago. It was a shock. Where I had expected neat rows of filing cabinets and boxes of exhibits in duly labeled sequence, I saw instead a mountainous jumble of paper. The cellar, perhaps thirty feet square, was filled on every side to a height of about six feet with a great amorphous hotchpotch of boxes and files. Here and there the top of a filing cabinet poked through the surface like an iceberg in an angry sea. The records of Flight 806 had not been laid to rest by a tidy mind.

Where the hell did I start? I looked at Mr. Torbin and Mr. Torbin looked at me. I cleared the front of one filing cabinet and began to open the drawers. It became rapidly apparent that there was no more order inside the cabinets than outside.

Sheaves of paper—some in folders, some not, and none with any discernible label—tumbled out as I dug deeper. The damn things must have been breeding in the dark. A quick glance seemed to show that none was of any interest, though it was difficult to tell. I had the horrid feeling that the story of the century could be lurking in this Augean cellar, and I would be none the wiser.

I abandoned the first cabinet and took off my coat, wading into the pile of boxes as though there might still be a survivor beneath them. Mr. Torbin stood uncertain, bemused by this latest evidence of literary derangement, then decided to humor me and lend a hand. It was clearly going to be the only way to get rid of me.

At length, in a far corner, a green filing cabinet emerged. It was like the rest, save for one thing: this one had numbers on the drawers. Hardly daring to hope, I pulled open the first to discover orderly file covers numbered in sequence. If someone had taken the trouble to put the contents in order while all around was chaos, it just might contain something important. I began leafing through the papers. The sharp, regular sound behind me was Lee Torbin Jr., tapping his foot.

And then I had it. Inside a plain brown envelope, unsealed, was an unmarked file cover. But the title page of the papers within made me catch my breath. It read: “Report of Pan American pilots of Council 56, and FAA Special Investigation Team at Training Building, San Francisco airport, May 6, 1974.”

A swift glance through the contents showed that Cathcart had hardly been exaggerating. I hurriedly put the file back in the envelope and laid it aside, trying not to betray my excitement. Then I went back to the cabinet to resume the search. Where there was one gold nugget there might well be two. And so, it proved. The second was dated June 13, 1975. It was a report addressed to the assistant administrator, AEU-1 (whoever he might have been), from a certain Jack W. Hudson. Hudson was described as team coordinator as well as chief of the FAA’s Air Carrier District Office at Fort Worth, Texas.

It was the third line that caught my eye: “SUBJECT: Special Inspection - Pan American World Airways, 1974.” I had found it.

That was the limit of my success. There was no sign of the alleged in-house report by Pan American, which I later discovered was known as the Thomas Report, but it was enough. I was confident that I held in my hand evidence that had long been concealed. Would its revelation do anything to help the plight of those who were still suffering, uncompensated, more than seven years after the Pago Pago crash? I did not know, but I had to try.

Lee Torbin Jr. held out his hand. “I’ll take those,” he said. I reluctantly handed over the files as we left room 64G, which looked even more chaotic than when we had entered, and went back to the wire cage that served as his office. Torbin laid them on his desk and I stood there, unable to take my eyes off the brown envelopes, like a child in a candy store. My palms itched.

Torbin said, “I don’t think I can let you have these.” Oh shit, I thought. There they are, so close, I could just grab them and run. I had visions of being pursued from the courthouse by a screaming mob of legal bureaucrats, led by Lee Torbin Jr. But the thought came and went. Anyway, the wire cage was locked. Surely, I was not about to fail now. I knew it would be fatal to appear too anxious.

“Why not?” I asked as though it did not matter.

“I have a vague feeling,” Torbin said, “that some of those exhibits were put under judicial seal by Judge Byrne. [He had tried the Pago Pago case.] I think these might be among them.”

My heart did a double flip and landed in the region of my toecaps. It could well be so. That would explain why the documents had disappeared so completely, never coming up in open court and never having been pried loose under the Freedom of Information Act. A judicial prohibition would have stopped all that. It would stop me, too. There was no way that Lee Torbin Jr. was going to put his job on the line for the sake of my bright blue eyes.

“I’ll have to check,” he said.

The next fifteen minutes lasted a long time. First, Torbin telephoned Judge Byrne’s clerk, Lori Serif. She was new to the job and did not know the answer. He rang the court reporter, who could not remember. He rang and rang, until my nerves were in shreds and there seemed to be no one left in the whole court building who had not been asked the question. But none of them knew the answer.

“Surely,” I ventured, “that must mean that they are clear. If they are under seal, one of these people is bound to know.”

But the ultracautious Mr. Torbin was having none of it. He had to have a positive answer before he would let me see those papers. I could not blame him. It was his neck.

Finally, he had an idea. “I know who can tell us,” he said. “Judge Byrne had a clerk at the time of the trial who retired not long ago. I’ll call her.” He found the number and explained the problem. His next words were ominous. “Is all the Pago evidence under seal?”

Four-letter words passed silently in coarse procession through my mind. The envelopes on the desk before me seemed to blur and recede. So near, and yet . . . I stood there like a dummy while the conversation continued. I could make little sense of what was being said and by now was paying scant attention. It was just a question of gritting my teeth, thanking Mr. Torbin for his help with as much sincerity as I could muster, and writing off the whole episode to experience. Perhaps there would be another way to get hold of the Hudson Report. I doubted it.

At length Lee Torbin Jr. put down the receiver and smiled. “Do you want copies?” he asked. “They’ll cost you fifty cents a page.”

(I subsequently discovered that the lady in question had disliked Judge Byrne with a passion and had seized the opportunity to get her own back from the safety of retirement.)

Later that day, with the copies locked in my briefcase, I recounted the episode to one of the lawyers involved in the case. The reports, he told me, were definitely under judicial seal and had been for years. They would remain so at least until all the appeals had been heard—perhaps forever. He and the other lawyers in the case had copies but had been sworn not to reveal their contents to anyone.

So where did that leave me?

“Go ahead and publish,” he said. “No one can stop you. Remember the First Amendment to the Constitution.”

And so I will. For though the scandals they reveal are now history, history has a nasty way of repeating itself if nothing is done to prevent it. Things happened, and without public awareness, they could happen again. Somewhere, on some airline, they may be happening still. No one really knows.

The deeper I researched this story, the more unpleasantness came to light. Long-shut cupboard doors swung open to reveal a host of skeletons. For the tale of Flight 806 is more than the suppression of the Hudson Report, the training records of the flight crew, and all the rest of the evidence that the jury was never allowed to hear. It is basically the story of man’s inhumanity to man: a little vanity, a little greed, and a little ruthlessness all added up to a major act of injustice.

In the view of some lawyers, the tale was not ready for telling at the time this book was first published. The last page in the saga had yet to be written. The skill of attorneys, the tardiness of some judges, and the creaking machinery of the legal system would prolong the agony for years.

But for the sake of those who had already waited more than eight years for compensation, for their own injuries or for the death of their loved ones, it seemed important that the story be told.

So here we go.

Book One

Crash

One

Christmas 1973, high summer in the South Pacific, and the Hemsley family was where they could usually be found on such occasions: taking the sun at their beach house on New Zealand’s North Island. The Hemsley family boat swung gently at its moorings, Hemsley family cars nestled in the shade, and the Hemsleys themselves sprawled around the barbecue set up on the white sand. Not many of these things were paid for, a fact that worried the Hemsley family not at all.

They were rich. And then again, they were not rich. It all depended on how you looked at it, how you judged such things. Charles Hemsley, head of the family, was a teacher. Not the most lucrative of professions, but his father had been a leading doctor in Auckland and had left him a modest income from investments, which helped to maintain the family lifestyle. Charles and his wife Edith had raised four sons, the eldest of whom, Edward, had finished his studies and was now working for a local law firm. William, next in line, had dropped out of college after a year and was off to see the world. Roy was a varsity student. Desmond was still at school. But the darling of the family was Mary, a pretty child at eleven and growing prettier by the month. Dear Mary. Two doting parents, four protective brothers, and a world full of sunshine and lollipops. She had a lovely Christmas. Such a pity that it was destined to be her last.

The Hemsleys were not like other people. In an age of dissolving family ties, they were shackled one to the other by bonds of genuine love and affection. In material things they shared, lent, borrowed, and spent together with gay abandon. In times of doubt and tension, even in sleepy New Zealand, they had the effrontery to be happy.

The Hemsleys lived for the family, by the family, and with the family. Outsiders, like Edward’s new wife and longtime girlfriend Bineta, were sucked into the loving maw and ever so gently digested. No television scriptwriter, desperate for soap opera material, would dare to invent the Hemsleys. He would not be believed for an instant.

They were all at the beach for that Christmas holiday. All, that is, except William. At twenty-one, William was roaming around the United States, working occasionally, taking a lot of pictures, and sending a lot of letters home. He had been away for nine months. There had been vague talk of setting up in business with his father when he got home, perhaps running a motel together, but no one was in much of a hurry to do anything about it. William was happy enough getting the travel bug out of his system. All the same, he missed his family and planned to take a cheap trip to Honolulu. His parents missed him, too. They had arranged to fly north for a holiday, taking Mary with them, and to meet up with William in the Hawaiian Islands. It was the sort of thing the Hemsleys did.

The flight was all fixed, or so they thought. But then, over those Christmas days, there came a change of plan. Their party at the beach house was joined by a lawyer named Donald Pilkington who, with his wife Nina, owned an adjoining property. Pilkington was a friend. At least, he saw himself as such, touching the family circle at the narrowest of tangents, yet welcome enough at the party. He had, after all, recently taken young Edward into the firm of Auckland solicitors where he was senior partner, holding out to the lad a partnership in due course.

Pilkington somehow lacked the gravitas of the legal image. His taste in loud sports shirts, his plump, bespectacled figure, his extroverted nature, and his liking for a good time sat oddly with his position as vice president of the New Zealand Law Society. But the New Zealand legal world is small and fairly placid. Donald Pilkington was a big frog in such a tranquil pool. He also had a passion for traveling. As Edward Hemsley already knew, having been given the task of minding the office while he was away, it took the smallest excuse for a business trip to get him on an airplane to almost anywhere.

For a time, Pilkington had been the travel representative of the Law Society, and it was well known that he positively enjoyed making travel arrangements for others. There were rumors that he may also have obtained commission on the tickets, but what of it? There was nothing illegal or unethical in that.

When the Hemsleys told Pilkington of their plans to meet William in Honolulu, it was no surprise to them that he should come up with a better idea. He could save them money, he said, by booking them on a different flight, and the Hemsleys were not so rich that they could refuse such an offer. And so, it was arranged. The tickets were changed. Charles, Edith, and Mary Hemsley joined the passenger list of Pan American World Airways Flight 806 from Auckland to Honolulu via Pago Pago on January 30, 1974.

For Michael and Susan Rogers, young and starry-eyed, Flight 806 was going to be a magic carpet to adventure. They were newly married, had never been outside New Zealand, and neither had ever flown before. Now, having scraped together every dollar they could lay their hands on and bought their tickets and their rucksacks, they were off to see the world.

The Rogerses were an oddly disparate couple, like two sides of a coin left lying on damp earth. At twenty-one, Susan was blonde, bright, pert, and bouncy, full of purpose and ambition. She wanted to be a ballet dancer and she knew, she just knew, she had the talent to make the grade if only she could reach the great wide world outside.

Michael, a year her senior, was dark and intense. He had just left law school and was working, unhappily, for an Auckland firm of solicitors. He had never wanted to go to university and admitted no sense of vocation whatever.

He had met Susan at a law school dance. They were engaged in July 1973 and married two months later. Like most couples, they set out to explore each other’s interests together, but Michael’s idea of recreation was to go off hunting in the bush. She loathed it. Susan dragged him to the ballet. He hated it. One thing they had in common was the desire to travel, she because she wanted to go to England for the sake of her dancing career, and he as a source of adventure.

Their plans were ambitious. Michael had a brother who had emigrated to the United States and had become an American citizen. The Rogerses’ idea was to fly in stages to San Francisco, spending a week in Pago Pago and a week in Hawaii, and then to join Michael’s brother for a drive down through Mexico and back up the East Coast. The party would then fly to England, from where Susan and Michael intended to travel by bus to Asia and the USSR. After that they would play it by ear, perhaps working in London for a year or so before returning to New Zealand.

They were determined to make their pipe dream a reality. They were young and very excited. The normal tourist routine was not for them. There was to be no staying at hotels in Pago Pago: they would take their sleeping bags, wander down to the beach, and make a nest among the sand dunes. Then they would move on to the local villages, hoping that the natives would be friendly. In their packs were a ten-pound block of cheese and plenty of tinned sardines. They were going to be all right.

On January 30, 1974, at just after eight o’clock in the evening, they said goodbye to their parents in the departure lounge at Auckland airport and climbed on board the Boeing 707 that was Pan Am Flight 806 to Pago Pago and beyond.

Leon Martin claimed to be able to hold his breath for four minutes—a minor vanity, and an unusual one for a man of fifty-seven, but Martin was no ordinary American in late middle age. He had devoted his whole life to sports, had coached the US Olympic diving teams in 1964 and 1968, and ran his own swimming gymnasium in Phoenix, Arizona.

Martin had been in New Zealand for the previous four weeks coaching the Kiwis’ national team for the Commonwealth Games in Christchurch and had been intending to wander home via the Far East, looking at diving talent along the way. He had no intention of taking the short route back to the United States via Pago Pago and Honolulu.

However, while the games were in progress, something happened to make him change his mind. He learned he was to be given the Fred Katey Award—America’s most prestigious swimming trophy—and that the presentation ceremony would be in Los Angeles on February 2. Martin, an extrovert not averse to publicity, decided this was more important than his projected jaunt around the Far East. He left Christchurch two days before the end of the games and flew to Auckland, where he exchanged his previous booking for a ticket on Flight 806.

Not everyone who climbed the steps of the plane that evening was in a happy frame of mind. John Carter was far from cheerful. He was on his way back to the Tokelau island of Nukunonu, a remote speck in the South Pacific that he shared with 370 islanders and one other European. For the next twelve months, his only link with civilization would be an unreliable radiotelephone and a mail boat that called every three months.

Carter’s exile was self-imposed. A forty-three-year-old carpenter, he had gone to the islands to work as a building overseer for the New Zealand government after his twenty-year marriage had broken up in late 1971. This had been his first trip back to the mainland since, but it was no pleasure visit. Five days before the departure of Flight 806 he had filed for divorce to render the legal separation with Lucy Carter permanent. For a man like Carter, brought up in the Roman Catholic faith, it was a somber step. His state of mind was made no lighter by the knowledge that his nineteen-year-old son Richard, second youngest of the five Carter children, had had a motorcycle accident while he was overseas and was now a permanent paraplegic. Richard’s accident had happened on Boxing Day 1972, only days after his father had left to work in the islands, and a pall of bitterness seemed to hang over the whole Carter family.

Financially, John Carter was poor. Not so Johannes van Heerden, who took his seat a few rows away. But the two men had something in common: neither saw much of their families. Van Heerden was fifty-seven, a self-employed shoe designer and manufacturer who had come to New Zealand from his native Holland with his wife and children in 1951. They had left Europe because they feared nuclear war, and van Heerden had brought his machinery with him to set up a shoe factory in Wellington, thus neatly evading the post-war currency regulations.

The factory prospered, shops were acquired, and by the early 1970s, the van Heerdens owned three houses and a beach chalet. Their younger son was at an expensive private school, but they were not a close family. In fact, between 1968 and 1972, while she was living on the island of New Caledonia and he was living in Wellington, Grace van Heerden saw her husband only during rare visits.

Attracted by the prospect of cheap labor in Western Samoa, van Heerden sold his Wellington shoe factory in 1972 and opened another in Pago Pago. He wanted Grace to set up home with him in Samoa, but she decided it would be wrong to leave the children. As a diabetic with early indications of heart trouble, she also preferred the temperate climate of New Zealand.

Van Heerden went to Samoa on his own, returning occasionally to see his family and buy fresh supplies of leather. On January 30, 1974, he flew from Wellington to Auckland, where he rang Grace to say that he would be spending the night at the hotel in Pago Pago before going on to the factory. Neither had any premonition that they would never meet again.

The Hemsleys, the Rogerses, Van Heerden, Carter, and Martin, all human beings with their private thoughts, fears, desires, and ambitions, joined eighty-three other human beings and trooped across the tarmac to the waiting aircraft. Clutched in their hands, or stuffed into handbags and pockets, each carried a blue-and-white Pan American ticket. And the ticket, as required by international regulations, carried the following advice:

Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination. For such passengers on a journey to, from, or with an agreed stopping place in the United States of America, the Convention and special contracts of carriage embodied in applicable tariffs provide that the liability of certain carriers, parties to such special contracts, for death of or personal injury to passengers is limited in most cases to proven damages not to exceed US Dollars 75,000 per passenger, and that this liability up to such limit shall not depend on negligence on the part of the carrier. For such passengers traveling by a carrier not a party to such special contracts or on a journey not to, from, or having an agreed stopping place in the United States of America, liability of the carrier for death of or personal injury to passengers is limited in most cases to approximately US Dollars 10,000 or US Dollars 20,000.

The names of carriers, parties to such special contracts, are available at all ticket offices of such carriers and may be inspected on request. Additional protection can usually be obtained by purchasing insurance from a private company. Such insurance is not affected by any limitation of the carrier’s liability under the Warsaw Convention or such special contracts of carriage. For further information, please consult your airline or insurance company representative.

Note: The limit of liability of US Dollars 75,000 above is inclusive of legal fees and costs except that in the case of a claim brought in a state where provision is made for separate award of legal fees and costs, the limit shall be in the sum of US Dollars 58,000 exclusive of legal fees and costs.

This classic piece of small print, which few passengers have ever bothered to read, left out one important feature of the Warsaw Convention: it would cease to apply, and that damages would be unlimited, should the airline be found guilty of willful misconduct. But what of it? Up to that point in time no airline had ever been found guilty of willful misconduct.

The passengers who boarded Flight 806 that evening could have no idea that these dull phrases were to dominate their lives and the lives of their families for the next eight years.

Two

The early 1970s were a bad time for Pan American. Their worldwide route structure, so long a source of pride, had become increasingly expensive to maintain. In 1970, the airline lost $48,400,000, and there were talks, which never came to fruition, of seeking aid from the Shah of Iran. Drastic economies, coupled with increased effort on the marketing side, slowly restored their position, and in 1973 Pan Am made an operating profit of $6,700,000—though it still lost $18,400,000 overall.

But then came the first of the OPEC fuel crises, when the oil-producing countries finally banded together to demonstrate their economic ability to hold the rest of the world to ransom. The price of jet fuel shot through the roof, and with it went all hopes of profit for Pan American. The company’s 1974 operating loss was $98,200,000; their total loss for the year was a record $81,700,000.

None of this can excuse what happened; the primary duty of an air carrier is, and must always be, to carry its passengers from point to point in safety. But it must have been galling for Pan American executives to watch virtually all of their international competitors being cozily shielded by government subsidies during this period, while they had to operate by the harsh realities of the free enterprise balance sheet. The staff was cut from 40,000 to 30,000; 37 jet aircraft were sold. Still the losses mounted, and the banks grew more and more reluctant to bail out a ship that was sinking. Congress, too, refused to help.

Meanwhile the aircraft were still flying, and most of them were reaching their destinations. But in the nine months between July 1973 and April 1974, three Pan American Boeing 707s were lost. The value of the wrecked jets was perhaps $30,000,000; the price of the 282 lives was beyond calculation. Something was obviously wrong, and on April 27, 1974, a team of eight full-time investigators from the Federal Aviation Administration began an intensive inspection of Pan American’s operations.

For six weeks, with the willing cooperation of Pan Am staff, they turned the airline inside out. They flew on the routes and observed that 43 percent of crews were failing to carry out established cockpit procedures. They watched captains going through proficiency checks in the simulator, and while they were watching, 36.8 percent failed. They noted, ominously, that some of these would have been passed by the examiners if the investigators had not been present.

“It is common gossip among the airmen, and in some cases cabin staff,” said the final report, “that Pan Am has captains and first officers that are considered substandard by their peers and have been carried by the company and need the help of strong co-pilots. Further, efforts were made by certain first officers, second officers, and flight engineers to specifically avoid having a flight schedule assignment, if at all possible, with some substandard captains.”

In other words, Pan Am was employing pilots with whom other pilots were scared to fly. The passengers, of course, had no knowledge and therefore no option but to fly with them.

The official Pan Am reaction to their accusation was to deny that substandard pilots had ever been employed by the airline. The contention was hardly borne out by the fact that “early retirements” from the flight line in 1974—after the investigators had submitted a list of names—totaled more than forty. In 1971 and 1972, the figure had been about five per year. In addition, within six months after the team’s departure, no fewer than 146 captains, first officers, flight engineers, second officers, and instructors were removed from the seniority list. Six were fired.

Would any action have been taken had the enquiry not been carried out? Perhaps it is a question better left unasked.

Among the pilots themselves, there was no reluctance to cooperate. There had been growing unease for a long time, brought into sharp focus by the three crashes. On May 6, 1974, eight of them met with the investigating team at the Pan Am training school in San Francisco to air their anxieties. One of the most outspoken was Captain Frank Metlick, a 707 pilot, who later wrote an account for the confidential record:

Long and onerous flight crew patterns, as produced by Pan American Airways, with their utter disregard of the human physiological factors, have contributed towards our series of accidents. Examination of our series of tragedies shows a definite pattern in which accumulative fatigue is one of the factors. The company has been continually informed that flight crews were having a difficult time with a great number of our crew patterns. In fact, in a letter to the Director of Flight Operations dated April 4, 1973, it was pointed out that if these long duty periods and patterns of daylight rest were not dealt with, we would have a catastrophe. Since that time, we have had more than one catastrophe.

The history of our deteriorating patterns started with the introduction of a new operations management concept, wherein no pilots were utilized. This concept was a disaster, and has since proven to be just that.

Coupled with this new concept was the austerity program with which Pan Am is attempting to “cut” itself into prosperity. An airline cannot “cut” itself into prosperity.

At the root of Metlick’s complaint was the provision in the pilots’ working agreement with Pan Am that there should be a minimum nine-and-a-half-hour rest period between flights. “It was never intended to be used,” Metlick said, “to construct patterns with this minimum rest to enable the company to save money, at the utter disregard for a crew member’s health and morale.” Metlick suggested the reestablishment of overseas crew bases by Pan Am to ease the problem. “This becomes a costly item,” he admitted, “but any catastrophe is one hundred times more expensive.”

Thus far, the FAA team had established that Pan American crews were often tired, frequently careless, and sometimes below standard. They now turned to the question of whether they really knew the routes they were flying. As a passenger sitting in the back, traveling to strange places while sipping a gin and tonic, it is often comforting to think that the men in the cockpit have been there before, many times. As the investigators discovered, in the case of Pan American in 1974, it was not necessarily so.

It transpired that under the company’s system, pilots were allowed to “bid” for routes over the whole network on a month-to-month basis. A man could be flying to Europe one month and to Alaska or the South Pacific the next. Pan Am’s route and airport qualification procedures were so broad that any airman could fly anywhere merely by reviewing films of the airports. These films were out of date.

All this required a complex schedule to be drawn up each month, and as these things will, it sometimes went wrong. Pilots would be diverted from the routes they had been assigned after they left home base. When that happened, it was anyone’s guess as to whether they had even seen a film of the airport where they would have to land.

However, there was a reasonable chance that most captains would have some knowledge of the place where they were going. Not so the first officer, which could place an added burden on the pilot. “If neither pilot is thoroughly familiar,” the team’s report noted sourly, “confusion reigns.” They recommended that crews be assigned to each operational area for not less than a year rather than dart about the globe. It is not known whether Pan Am took the advice.

By this time, it was becoming plain that Pan American was running a pretty sloppy airline. Just how sloppy, the investigators were to discover when they took a close look at the training program. There was no question but that Pan Am was conforming to the FAA regulations and subjecting its pilots to six-monthly checks of their proficiency. That was not the point. The question was: Who was doing the checking? How thoroughly were they doing it? And were they making any effort to give training in order to improve substandard performance in the cockpit?

The answers were staggering. Unlike other airlines, which use regular line captains to make checks on their fellow pilots, Pan American was employing pilots of such low seniority to do the job that if they had not held the position of check airman they would have had to be laid off. In other words, these men not only had the job of passing judgment on pilots vastly senior to themselves, but they lived with the nagging fear that if they failed them their own jobs might be threatened. Not surprisingly, most captains passed their checks, whether they deserved to or not.

The pilots themselves were perfectly aware of what was going on. Captain Donald Stubbs told the team of investigators, “Sometimes, most of the time, the captain gets by when the other crew members are harassed beyond belief. Many times, I have seen a simulator check where a captain shoots a bad approach and maybe gets his wrist slapped. The engineer or first officer then fouls something as bad, and he gets a ‘down’ or ‘incomplete.’ We are in the Clipper Skipper syndrome where he can do no wrong, and this is wrong because all humans have failures.”

Captain Charles Banfe, who flew a 747, went further. He alleged that Pan Am’s check pilots were often selected on the basis of “friendship and loyalty,” that they had no formal training, and that each checked to his own standard. Pilots, he said, were being allowed to deteriorate until their performance was marginal or below tolerable limits.

At this time there were forty-eight check airmen employed by Pan American who were not qualified line captains. They may still be doing the job. Though the inquiry team recommended that all check airmen should have this qualification, Pan American refused to fire its “professional instructors” or to transfer them to other assignments. It also did nothing to implement one of the team’s other major recommendations: that there should be a centralized training organization for the airline instead of one divided between three locations.

In all, the FAA team came up with fifty-eight recommendations for Pan American to change its ways. A second check six months later showed that some had been heeded, some not. There was no enforcement action by the FAA and no attempt whatever to employ the toughest sanction of all: public opinion.

Every effort was made to keep the findings of the inquiry, and even its existence, a secret from the public. For after all, what right has the man in the street to know that a scheduled air carrier is liable to kill him through incompetence? Such knowledge might damage the commercial interests of the airline, and that would never do. It was a classic example of the contradictions posed by the FAA’s joint responsibility for safety and the financial welfare of the airline industry.

On the tarmac in Auckland, on the evening of January 30, 1974, there were ninety-one people who might not have been there, had they known what the reader knows now.

Three

Though its passenger load was well below capacity, the Boeing 707-321B sat heavy on the tarmac at Auckland on that late summer evening. Of its gross weight, 40 percent consisted of 52.23 tons of A1 jet fuel, which had been loaded into tanks within the wings and in the center section of the fuselage. The four Pratt and Whitney jets, slung in their dangling pods, were thirsty engines by modern standards. But even they were not thirsty enough to use that much fuel for the three-and-a-half-hour flight to Pago Pago. In fact, at their average consumption of 235 pounds per minute, they would burn up only 40 percent of it. Some of the remainder was needed for a possible diversion to the next available airfield at Nandi, but even if that had to be used, there would still be 37,900 pounds—17 tons—remaining in the tanks, sufficient for almost three hours of flying. Flight 806 was an aerial tanker.

There was nothing unusual about this for a Pan American aircraft at this moment in history. It was all part of the company’s economy drive. During the oil crisis, fuel was in short supply and more expensive at some airfields than at others. It was Pan American policy to pick up excess fuel at the cheaper locations, so that less would be needed when the aircraft landed at more expensive points. It is doubtful how much economy was achieved; because the fuel consumption of an aircraft depends partly upon its weight, it costs fuel to carry fuel. However, it is possible that the accountants did not even know this, and the move must certainly have looked good on their books.

The amount of stored fuel to be carried had to be nicely calculated so that the aircraft would not arrive at its destination weighing more than its maximum permissible landing weight. In the case of Flight 806, that weight would be 245,000 pounds, and the captain had worked out that the Boeing would weight just 100 pounds less than that when it reached Pago Pago. It was cutting things a little fine, but it was perfectly legal.

There was one other precaution taken by Pan American when this money-saving operation began. Knowing that there were some airfields where landing at the maximum weight might prejudice safety, they published a list of the route stages, or sectors, on which stored fuel should be carried, and those on which it should not. The list also excluded, of course, those sectors that flew from a more expensive loading point to a cheaper one. It is not known whether Captain Leroy A. Petersen of Flight 806, known as Pete to his friends, had seen that list.

Captain Petersen was fifty-two and had spent his entire professional flying career in the service of Pan American. He had joined the company in March 1951 as a navigator and radio operator, working his way up to reserve co-pilot/navigator in 1960, when he was awarded his Air Transport Pilot Certificate. After that, progress was relatively swift. Petersen became a master co-pilot in 1965, and a Boeing 707 captain in November 1967. In all, he had flown 17,414 hours, of which 7,414 were in the 707.

In early September 1973, Captain Petersen had had a health problem that had prevented him from flying. It persisted until January 15, 1974, and after such a long layoff he was required to take a simulator check and perform three actual takeoffs and landings (Flight sections) before he could take charge of a line aircraft again. He passed these tests, but the flight section was carried out in daylight under visual meteorological conditions. These conditions were very different from those he would face on the night of January 30, 1974, when he guided Flight 806 toward an airfield on which he had only landed once before, in May 1972. Petersen had not flown an instrument approach for 132 days.

This was virtually all the information about Petersen that appeared in the official report on the accident. It was also all the jury was allowed to hear in the subsequent trial, aside from the fact that he had been given a satisfactory flight check from San Francisco to Anchorage, Alaska in the summer of 1973 and had once been asked to repeat an instrument landing system (ILS) exercise.

But there was much more to know about the flying record of Leroy A. Petersen. As with all professional pilots, the results of every check he was ever given throughout his career were filed away and kept. The FAA and Pan American had no excuse for not knowing what kind of pilot was in charge of Flight 806.

These are extracts from Captain Petersen’s training records:

December 20, 1951: “Thinking and judgment of a professional and intelligent airman were marginal.”

July 2, 1957: “ILS work with the ZR [navigational instrument] very poor. Lacks planning on initial intercept. Set up ZR wrong on second approach and failed to turn on additional radio aids while maneuvering at outer marker. Threshold speeds fast on crosswind approach and landings. Needs additional ILS work and landing practice.”

August 29, 1963: “Repeated four-engine ILS approach too fast—20 knots too fast. Erratic bracketing [failing to maintain aircraft on glide slope]. Over-control on ailerons caused vertical bar excursions, with further over-control trying to chase movements.”

June 1, 1965: “Failed FAA oral exam for 707 type rating.”

June 21, 1965: “Failed FAA flight portion of the exam required for issuance of a Boeing 707-20 rating. Unsatisfactory landing technique. Maneuvering with engines out (2-engine en route climb). Maneuvering for landing at weather minimums, and landing with engine failure.”

June 25, 1965: “Failed re-check for FAA 707-20 rating. Unsatisfactory landing and engine failure.”

June 26, 1967: “Additional training for holding entry and circling approach. Holding entry was non-standard and tolerances were exceeded. First circling approach was poorly planned; turned in too close and very high on profile. Pilot executed a go-round. Second attempt resulted in a large over-shoot, with an over-bank correcting back to final approach. Touchdown was approximately 1100 feet long. Three-engine ILS missed approach was very weak. Airspeed, altitude and holding varied considerably throughout the pattern. Staggered throttles incorrectly on two occasions. Switched to approach mode too early. Insufficient yaw control and flight-directed interpretation on final. Localizer minimums. Two-engine approach was poorly planned and executed. High on profile, he elected to go to 50 degree of flaps very early, and established deterioration of profile and airspeed. Required assistance as airspeed decreased to Vth [minimum speed required at runway threshold] minus five knots. Approached threshold and low on profile.”

October 16, 1967/October 23, 1967: “Heading control not precise. Over-control of elevator and throttles on ILS, introducing yaw and roll. Approaches and landing phases unsatisfactory. Yaw and roll excessive in later stages of landings. Several landings had to be guarded by check pilot to avoid pod scraping.”

It was immediately following these checks, on November 10, 1967, that Pan American promoted Leroy Petersen to the rank of captain in charge of the Boeing 707.

December 21, 1972: “Repeated three-engine ILS for glide-slope tracking. Over-control on elevators. Repeated ADF due to incorrect entry procedure; turnout exceeded limits. Also, high airspeed on final, and shallow sink rate. Did not get the minimums at missed approach point. Instrument cross check was slow, causing most of the problems.”

June 28, 1973: “He had to repeat three-engine ILS, due to being out of limits at decision height.”

There was certainly no lack of warning that Captain Petersen was not the brightest and best pilot ever to fly the airways. Small wonder that he was one of the men with whom other Pan Am airmen preferred not to fly. Though much of the language in these reports may be too technical for the layperson to understand, the overall picture is clear enough. Captain Petersen was a man who had trouble with instrument landings, and he had suffered this deficiency throughout his career. Nonetheless, on January 30, 1974, he was still the man in charge of Flight 806, and in three and a half hours he was due to make an instrument approach into Pago Pago under the very conditions in which he had underperformed, to say the least, so often in the past.

Petersen, of course, was not alone on the flight deck. He had three others with him. They were First Officer Richard V. Gaines, Third Officer James S. Phillips, and Flight Engineer Gerry W. Green.

Gaines was not well that day. He was suffering from laryngitis, which was unfortunate because the first officer’s duties included handling radio communications with the ground. It was also regrettable because Gaines, who had been to Pago Pago twelve times in the past year, had more experience there than anyone in the cockpit. Petersen’s experience of the airport, since 1972, amounted to viewing Pan Am’s out-of-date film and watching from his seat while another pilot made a landing there a few days before.

It was, therefore, James Phillips who sat in the co-pilot’s seat as Flight 806 prepared for takeoff. Green was at the engineer’s console, and Gaines sat on the jump seat behind the pilots.

Phillips, at forty-three, was perhaps a little old to be holding no more than a third officer’s rating. He had possessed a commercial pilot’s license since 1961 and had been employed by Pan Am since 1966. He had completed his training as a reserve co-pilot and navigator in January 1967 and had flown for 5,208 hours, 4,706 of them in the Boeing 707. He had passed checks in May and November of 1973, one of them observed by an FAA inspector, and he had made seven takeoffs and landings since October 1973. He had also flown into Pago Pago seven times in the previous seven months.

That was Phillips’s public record, as recounted by the National Transportation Safety Board and relayed to the trial jury. Behind it lay a series of reports that were not revealed at the trial:

June 6, 1966: “Student a little slow. Knows procedures but hesitates to make corrections.”

August 21, 1966: “Student unable to execute ILS approach due to slow scan resulting in poor airspeed control. Did not stay on either glideslope or localizer within prescribed minima. Confused on holding pattern procedure. Needs landings and practice in maintaining profile. ILS with flight director (600 feet) and normal night landings graded unsatisfactory.”

August 23, 1966: “Quite a bit behind aircraft throughout, partially due to unfamiliarity with specific instrument and control locations. Needs improvement on air traffic control procedure. Consistently slow on getting correct holding entry. Needs to become more consistent on flying. Also needs much improvement on instrument failure recognition and corrected procedures.”

August 16, 1967: “Lack of thinking is still causing difficulty. On the only missed approach attempted we would have crashed into the mountains due to letting the airplane turn 90 degrees to the left while climbing out. On the rudder-boost-off three-engine approach, after being vectored to a 60-degree intercept, due to poor thinking Phillips became so lost that he had to ask for vectoring to find himself. For the auto-coupled approach, the simulator was put in the freeze condition while still three minutes from the outer marker, and he was warned to plan ahead and review the procedure he was to use for this approach. After adequate time, the simulator was unfrozen. He failed to follow the planned approach procedure, and could not complete the approach.”

November 12, 1968: “Sometimes slow in planning. Slow following approach plate procedures.”

May 18, 1972: “Repeated holding to review operational entry procedure.”

These, then, were the two men at the controls as Flight 806 began its journey. First officer Richard Gaines had no direct part to play, but he was still, according to company regulations, supposed to be monitoring the performance of the pilot and co-pilot.

Gaines was thirty-seven and had worked for Pan American for the past ten years. He had been upgraded to master co-pilot in June 1967, and all his 5,107 flight hours had been spent on the Boeing 707. Like Petersen, he held an Airline Transport Pilot rating. According to the National Transportation Safety Board (NTSB) report: “Numerous routine co-pilot reports were reviewed from his file, and no adverse comments were noted.”

No adverse comments? A more diligent review of Gaines’s training record reveals the following:

September 22, 1964: “Slow reaction to corrections on power. Airspeed and heading control slow.”

October 20, 1964: “Instrument scanning a little slow.”

April 27, 1965: “Slow scanning and erratic altitude control.”

November 30, 1965: “Altitude control was ragged, and there was little or no use of vertical speed. Landing pattern work and landing were inconsistent. Cannot recommend line landings.”

December 18, 1966: “Pilot continually behind the aircraft. Seems to lack confidence. He is unable to see objective of minima. Only concerned with procedures and details. Use of checklist, crew coordination, judgment, holding pattern, entry and two engine landings found unsatisfactory. He did not use the landing lights twice on night landings—simply forgot. Two engine approach was considerably below Vmc at 400 feet, and the 45-degree approach to mid runway. Pull-up was impossible. Landing patterns and touchdowns inconsistent. Recoveries from landing bounces unsatisfactory. Holding pattern entry was in opposite direction, 500 feet high, and too fast on speed. It is recommended that he receive a non-rated MCO [master co-pilot] check.”

December 23, 1966: “Due to the unsatisfactory rating he received on many items, it is recommended that the type rating training be discontinued, and he should be re-scheduled to a two-hour flight to requalify as a reserve co-pilot.”

January 13, 1967: “Pre-rating check incomplete and unsatisfactory. Trainee wanted to discontinue as he felt he was wasting time and already judged unsatisfactory.”

May 8, 1967: “This pilot is slow and indecisive about almost everything he does. Spent almost ten minutes getting airplane into landing configuration with jammed stabilizer. Does not seem to be able to follow simple instructions unless repeated several times. Frequently changes power for no apparent reason. Very slow to trim stabilizer, with large altimeter errors as a result.”

July 6, 1967: “Due to his inability to consistently demonstrate satisfactory proficiency of type rating maneuvers after extensive training, it is recommended that type training be discontinued.”

Only eight days after this last recommendation, on July 14, 1967, Richard V. Gaines was awarded Airline Transport Pilot Certificate No. 1578652, with a type rating on, or qualification to fly, the Boeing 707-720.

When the training records of these three men were discovered by attorneys, long after the crash but before the trial, Pan American made strenuous efforts to prevent them from being introduced in evidence and thus made public.