and 5000 feet above the surface and with high broken clouds above. The visibility was 15 miles or more at the surface and a light easterly wind prevailed. Information from pilots who had flown near the scene of the accident at about the time it occurred indicated that haze aloft reduced the visibility to an estimated six miles.
Discussion
Capt. G. D. Davis, pilot of the Eastern Air Lines DC-3, testified that the reason for his deviation from the airway in the vicinity of Florence was to avoid the heavy military traffic close to Florence Army Air Field. While he acted well within his jurisdiction in leaving the airway to avoid an area which in his judgment gave reasonable appearance of containing hazardous air traffic,[1] it should have been apparent to him that, in so doing, he passed through a region in which military pilots would not have anticipated his flight. In order to reach the restricted area northwest of Florence it was necessary for Army aircraft to fly through the region which Captain Davis chose in deviating from the airway.
Inasmuch as the DC-3 was maintaining a straight course and had the A-26 on its left and since the A-26 was so maneuvering as eventually to intersect the flight path of the DC-3, the Eastern Air Line aircraft possessed the right-of-way. However, application of the rule of right-of-way is premised entirely upon the condition that the pilots concerned can "see and be seen" and are exercising sufficient vigilance so that its application becomes practicable. Where neither pilot is aware of the presence of the other aircraft, the rule of right-of-way is inapplicable.
- ↑ CAR Part 61.731. "Deviation from airway. No scheduled air carrier aircraft shall deviate from its prescribed airway, or, if there be no airway, from an area between two lines parallel to and 5 miles on either side of the center of the authorized route, except when operating in accordance with instructions issued by a certified air-traffic control-tower operator or when circumstances render such deviation necessary as a safety measure. Any deviation of more than 25 miles on either side of the center line of the prescribed airway or authorized route shall be explained by the pilot in a written report to the Administrator of Civil Aeronautics. Such report shall be made within 7 days after the completion of the flight."
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