october of two thousand and ten on approach to land it cool afghanistan international airport this cause comes before you today your honour's from the grant of summary judgment by the western district of new york adopting the magistrate judges recommendation which found that the wrongful death tort claims originally in state court and brought by the cruise spouses are preempted by federal law under an expansive broadening of our supreme court's holding in oil versus united technologies by applying the combatant activities exception to the federal courts i'm sacked to a civilian aircraft operated by a civilian crew on approach to landed a civilian airport which it civilian air traffic controllers employed by the poly providing controls are fair is it fair to characterize military my wrong about that yes your honor respectfully the airport was under the direct control of the afghan government and it was subject to the afghan rules for the airport the military aspect of it was actually nato your honor of which obviously the united states is a member but to say that it was being a us military base would would not be correctly identifying what the nature of the airport was regardless on the night in question your honor the only participants that were involved  in the control of the two civilian aircraft that were on approach to land were these of was a civilian tower controller employed by vid wesker traffic control of the sole defendant before the court mid west or traffic control services was a us company providing air traffic control services from kabul tower in afghanistan to the subject aircraft which has the tail number t k u six  two at the time of the crash which was and it was part of the subcontract that midwest had with ready management services which in turn had a prime contract with the navy spy and so you honors it is the plaintiff's position in this case that absent specific direction from congress or from the supreme court the combat nec committees exception to the federal courts claims that should not be afforded to a private government contractor or subcontractor suggest such as midwest air traffic control as the court i'm sure is aware when looking at preemption the st place that needs to be looked at is the plain language the district court in this case in applying the rationale of boyle which was a supreme court case that allowed for the defense of discretionary function to the manufacturer of an a military helicopter to wrist to have munity from the claims of the plaintiff who claimed that the very defect that cause the death of the crew member in that case was actually the specifications of the government and so doyle look at the a door that opened out so is there anything comparable to that in this case where there is a conflict between the standard of care that you suggest should apply here and  no your honor in fact the air traffic controller at the at the tower was acting under the i k l rules which are civilian rules and as your honour's are  well aware the actions of a f a a air traffic controller in the united states the negligence of an air traffic controller subject to the federal courts claims act and an action can be  brought against the controller and so there is no conflict and that was looking back at what the district court judge here with the district court judge did here is the district court judge failed to identify that there was any conflict between the claims of her being made by the plaintiffs and the alleged negligence of the air traffic controller in taking control of the aircraft in telling the crew that he would call their base responsible for its own navigation so rules when not being controlled by the controller does have the ultimate responsibility to maintain distance from training however the facts of this case your honor and as our experts at testified when the air traffic controller took control of the key can use six hundred and sixty two when he decided to cancel the landing and stead of saying resume your own navigation which means you  have v f r you now have to go in and maintain your distance from train the controller didn't do that controller sad i will call your bangs turn last control continue on da lo and i will call your beings that according to our experts is the controller to keep control of the aircraft and is therefore responsible to give direction to the aircraft and to a found that the pilot was the sole proximate cause of the crash and is the court is well aware so proximate cause proximate cause is normally for the jury to decide and in this case given the opinions of our air traffic control expert that the crew could rely on the air traffic controller in saying i will call your base was relying on that aircraft controller and believing that the aircraft was being controlled by radar as opposed to simply by the tower control and i think you have some time for a bottle we will hear from the other side yes good morning your hon uniquely federal than the l a case and of resources in a time and place of military conflict and here the u s provided the kabul tower and we're talking about the tower not the entire airport they provided a couple tower with exactly and only the equipment that was needed to operate a safety f r a visual flight rules tower and the purpose of the controllers in the tower was to provide order in sequence of flights coming in and flights going out it was not to give instruction what if you took the equipment out of the picture of what you're still is a claim that that the  air traffic controller just messed up in his in his judgment in taking control that claim i don't understand to be claiming that the resources were insufficient  it's important to understand the capacity and capabilities of the personnel in the tower what they i mean i think it's if if the claim were that resources were insufficient and that's the basis of our negligence claim can see that that is it that that would be in direct conflict with the united states assigning these other resources we are going to provide but i don't understand that to be the claim i understand the claim to be that the air traffic controller messed up and so what i'm asking is where is there a conflict you know as we had in the case with the door in a now well the conflict is what what the plaintiffs are attempting to impose on the air traffic controllers is a duty beyond which what the controlling documents and the procedures dictate when the contract was adopted your honor which was the navy contracting with readiness management service and then in turn readiness management contracting with my client the contract expressly adopted controlling documents for a couple and for the tower that dictated that this will flight rules flight involved the sole and exclusive responsibility of the pilot for maintaining the pilot's separation from training the terrain is ubiquitous around the kabul airport and the city of kabul and the what about the what about the argument that the via far does not apply because the air traffic controller took control well i mean if that is is there anything in the documents that well there is that that could be seen to be in conflict oh it's it's it's not only in conflicts around it's untrue if you read the testimony of plaintiff's own air traffic control expert julian harvey i asked this question of julian harvey numerous times and it set forth in my proof it's simply not true that communication between tower and pilot  removes the v f r status even miss harvey the plaintiff's a t c expert expressly testified that this flight was in v f r at all times and for guidance your honor i would ask the court to look at the watch a whole it's vs us case which is cited in our brief it's a st circuit case and there are very similar circumstances it's very instructional and how t f are actually works which with all  respect is different from how my opponent has characterized it to this court the way via far works is regardless of whether the pilot is in communication with an a t c facility the v f r responsibility for separation from terrain is aloof and unchanging simply receiving a sequencing direction and that's all the patellar is doing the tower was looking at flights that were coming in to land at the airport in close proximity to one another that that's that's true but it's also true isn't it that the the the pilot was told make a left turn fly down when which meant fly east which was in effect towards the mountain i mean due respect any compass direction and kabul is going to send a flight or at least into vicinity of mountains and that's where the pilots responsibility and professionalism comes and you'll know i would hope that turning left of the height of the surrounding mountains and that it was the pilot's duty v f r to make sure that it was that is absolutely true and that is a perfect expression of what well should what should the pilot of done up on receiving that instruction turn well he should have been aware of his proximity to the train your honor he should have assured himself that he either went around the mountain or above the mountain now it must be recalled here your honor that this claim was flying with inoperable terrain avoidance warning system and the pilot knew that and the air traffic controllers didn't there was no point in time during this flight either before the approach to the tower or during communication with the tower that the pilot communicate to the tower and said it wait a minute i'm going to have difficulty fulfilling my v f r duty because i have a malfunctioning terrain avoidance warning system in this aircraft that was never communicated to our personality i  a way to avoid these broad preemption analysis by referring to the specific incident here and i take it that you suggesting that maybe if we just look at the duty of the aviation person there and by reference to the regulations and manuals and so on and what their duty was not and so far as the transfers of the pilot and we don't have to really grapple with these larger preemption issues i think what you're saying and what we've said in our brief your honor is that there are two discrete pat mere communication with the tower does not somehow remove the v f r status in rest control from the pilot it's exactly the opposite of what plaintiff's own expert julie harvey testifies i the point that was brought at the beginning of counsel's argument the point of claims are not based upon the resources or lack of resources in the tower and your honour's pointed out it is the simple negligence of the air traffic controller and he is going beyond what his responsibility should have been in kicking control of the aircraft council and mentioned that there was an inoperable train avoidance system on the aircraft that's simply not true there was a color issue with the g p ws but the testimony in this case is when you flew and a couple you would turn off the g p ws and so that played no part in this case and should not play any part as far as summary judgment is contrary concern while counsel did take a very nice deposition of m harvey our air traffic control expert we did put in our private reply brief at page nineteen specifically her opinions with regard to there being joint responsibility between the air traffic controller and the pilot and that's also what our piloting expert mr collins summers testified to that when the air traffic controller made the decision and gave the direction to turn left i will call your base he then was assuming responsibility and it was a joint responsibility with the crew but one thing that was not pointed out in in addition to instructing the crew to turn left i will call your base the tower control controller sent the aircraft out of the control tower control airspace which again ms  y two it was negligence for the air traffic controller to give the direction to turn left i will call your base and say ok let me ask you as either a simple or a simpleton's question and that is what is called your base m call your base that if the traffic pattern your honor so there are the different legs of the tragic pattern and the traffic pattern that brings you back to the airport would be calling the based mean turn turn around and come back into the traffic pattern and you can resume your there the different legs of the of the of the pattern on to the airport and the base being the one that is perpendicular to the runway just before you turn to