          United States Court of Appeals
                      For the First Circuit

No. 08-2454

                       CAROL WOJCIECHOWICZ,
 Individually and in Her Capacity as Executrix of the Estate of
Alexander Wojciechowicz and on behalf of the Conjugal Partnership
          with Decedent Alexander Wojciechowicz; ET AL.,

                     Plaintiffs, Appellants,

                                v.

                          UNITED STATES,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Raymond L. Acosta, U.S. District Judge]


                              Before

                         Lynch, Chief Judge,
                 Ebel* and Lipez, Circuit Judges.


     Louis R. Martinez with whom Richard Ritorto, Martinez &
Ritorto, PC, Jaime E. Morales, Morales-Morales Law Offices,
Franklin F. Bass, Locke Lord Bissell & Liddell LLP, Doris Quinones
Tridas, and Quinones Tridas Law Office, PSC were on brief for
appellants.
     Henry B. Goddard, Jr., Trial Attorney, U.S. Department of
Justice, Torts Branch, with whom Michael F. Hertz, Acting Assistant
Attorney General, Rosa Emilia Rodriguez-Velez, United States
Attorney, Andrew M. Eschen, Trial Attorney, and Sarah S. Keast,
Trial Attorney, were on brief for appellee.




     *
          Of the Tenth Circuit, sitting by designation.
September 9, 2009




       -2-
           LYNCH, Chief Judge.         Sadly, this court is once again

addressing the legal aftermath of a small plane crash killing

several people.     It has been some years since we last had to decide

such a case.     See In re N-500L Cases, 691 F.2d 15 (1st Cir. 1982);

see also Fed. Express Corp. v. Rhode Island, 664 F.2d 830 (1st Cir.

1981); Delta Air Lines, Inc. v. United States, 561 F.2d 381 (1st

Cir. 1977).    We affirm the entry of judgment for the United States

against plaintiffs' claim of air traffic controller liability in a

highly fact based tort case.

           On the afternoon of January 5, 2002, a small Cessna

Conquest airplane flown by Alexander Wojciechowicz crashed into

high terrain in the Carribean National Forest near the El Yunque

mountain   peak    in   Puerto    Rico.       Wojciechowicz    and    his    four

passengers, members of his family, were killed.               Plaintiffs, who

include Wojciechowicz's surviving relatives, his and his daughter's

estates,   the    aircraft's     registered    owner,   and   the    aircraft's

insurer, sued the United States under the Federal Tort Claims Act

("FTCA"), 28 U.S.C. §§ 1346(b), 2671, alleging the air traffic

controller on duty in San Juan, Marcos Santiago, was negligent.

           After    a   twelve-day    bench    trial,   the   district      court

ultimately found that Santiago could not have reasonably foreseen

Wojciechowicz would take the actions he did, which were in direct

violation of a pilot's duties, that Santiago's actions or inactions

were not a proximate cause of the crash, and that Wojciechowicz's


                                     -3-
own negligence was the sole cause of the crash.             The court also

found that the controller had not violated any duty of care; but

even if the controller did violate a duty, the court found that any

violation did not cause the crash.              The judge apportioned no

liability to the government.       Wojciechowicz v. United States, 576

F. Supp. 2d 241, 278 (D.P.R. 2008).

           On appeal, plaintiffs claim the district court primarily

erred in finding there was no duty of care stemming from a Federal

Aviation Administration ("FAA") operations manual and FAA training

instructions.      They say this error infected the later findings,

which, they say, are clearly erroneous anyway.         First, they argue,

the court erroneously held that ¶ 5-5-9 of the FAA Air Traffic

Control   Manual    ("ATCM"),    FAA    Order   7110.65M,   which   requires

controllers to maintain separation of aircraft from prominent

obstructions depicted on the radar screen by specified minimum

distances, did not apply to Wojciechowicz's flight, which was under

Visual Flight Rules ("VFR") (as opposed to Instrument Flight Rules

("IFR")), and that Santiago owed no duty to warn Wojciechowicz to

change course.     Second, they argue the court erred in holding that

the air traffic control authority, the San Juan Combined Enroute

and Radar Approach Control Facility ("CERAP"), was authorized to

depart from the FAA's curriculum in training Santiago and that it

trained him adequately.         See FAA Air Traffic Technical Training

Manual, FAA Order 3120.4J.


                                       -4-
              The record supports the district court's findings that

plaintiffs     nonetheless       failed    to   meet       their   burden     to   show

negligence or causation.           We reject plaintiffs' arguments that

these findings were clearly erroneous and affirm.

                                          I.

              We outline the facts. Greater detail may be found in the

district court's opinion.          Wojciechowicz, 576 F. Supp. 2d at 246-

51.

              Wojciechowicz owned a vacation home on Culebra Island and

was an experienced pilot with nearly four thousand hours of flight

experience.     He had flown the route between Culebra Island and the

San Juan airport over two hundred times and was familiar both with

the approach to the airport and with El Yunque and the surrounding

terrain.      He was rated for flight under both IFR and VFR.

              At approximately 2:00 p.m. that day, Wojciechowicz took

off from Culebra Island, which is eighteen nautical miles east of

the    east   coast     of    Puerto   Rico,    for    a    flight      to   San   Juan

International Airport.           The trip can be completed in twenty to

thirty minutes.

              Wojciechowicz chose to fly under VFR.                  His choice had

several consequences.           Under VFR procedures, set forth in FAA

regulations and the FAA-published Aeronautical Information Manual

("AIM"), a pilot navigates by observing the surroundings rather

than    by    relying    on    instruments.           As    a   pilot    under     VFR,


                                          -5-
Wojciechowicz was forbidden by FAA regulations from flying into

clouds or into areas of reduced visibility unless he asked the

controller for permission to do so.      See 14 C.F.R. § 91.155; In re

N-500L Cases, 691 F.2d at 28-29; Cappello v. Duncan Aircraft Sales

of Fla., Inc., 79 F.3d 1465, 1467, 1469 (6th Cir. 1996).          Although

he never asked for permission, the pilot did exactly that.

           By contrast, pilots under IFR must file a special flight

plan, must navigate by use of their instruments, and may not fly

below Minimum Vectoring Altitude ("MVA"), which is generally set at

two thousand feet above the elevation of the terrain.           VFR pilots

are not so restricted and may fly below both the MVA and the

elevation of nearby terrain.     See Biles v. United States, 848 F.2d

661, 663 (5th Cir. 1988).     In sparsely populated areas, such as the

area in which the crash occurred, there is no restriction on how

low a VFR pilot may fly except that the pilot must maintain a

minimum distance of five hundred feet laterally from any structure,

vehicle, or person. 14 C.F.R. § 91.119(c). Wojciechowicz operated

under VFR procedures throughout the flight.

           Wojciechowicz contacted CERAP by radio in San Juan at

2:18 p.m., about eighteen minutes after he left Culebra, to request

landing at Luis Muñoz Marin International Airport in San Juan.           He

was then ten miles east of Fajardo, Puerto Rico, and traveling at

190 knots, or about three miles per minute.          At 2:18:30 p.m.,

Santiago   requested   that   Wojciechowicz   "squawk"   0477    into   his


                                   -6-
aircraft's transponder to allow Santiago's radar scope to better

identify      the   aircraft.1    Wojciechowicz       complied.     Santiago

responded to Wojciechowicz's landing request at 2:19:54 p.m.,

providing him with an approach vector to the airport from the

traffic pattern south of Plaza Carolina and weather information for

San Juan.      Santiago asked Wojciechowicz to state his altitude.

Wojciechowicz replied that he was at 1600 feet above sea level and

stated   he    would   stay   south   at    Plaza   Carolina.     During   his

communications with Santiago, Wojciechowicz gave no indication that

he was in any distress, that he was unaware of his altitude or

location, that he could not maintain his own separation from

terrain, or that he was in need of navigation assistance.

              This was the first and only conversation between the

controller Santiago and the pilot and it took place between 2:18

and 2:20:37.

              At that point, the plane was in clear air and had at

least ten miles of visibility.        That meant the pilot could clearly

see the rising terrain to El Yunque ahead and the north coast of

Puerto Rico, where the airport was, to his right.           The pilot could

also see there was a cloud base intersecting the rising terrain

ahead.



     1
          A controller gives a pilot a "squawk," or a radar
identification code, for the pilot to input into the plane's
transponder that identifies the flight on the radar scope. See
Cappello, 79 F.3d at 1468 n.1.

                                      -7-
                  After the conversation ended, the plane continued on

Santiago's radar for nearly one more minute but disappeared from

the radar scope shortly before the accident.                    In the time the

aircraft remained on the radar, Wojciechowicz made no further

attempts to contact Santiago by radio.            The last radar data for the

plane was received at 2:21:18.            After radar contact was lost, the

plane's data on the airport radar scope entered "coast" mode, in

which the computer indicates radar contact is lost and predicts the

aircraft's         position.2    The    last   coast   data   was   displayed    at

2:21:42.          Within forty-three seconds, Santiago was on the radio

trying to get a response, without success, from the pilot.                      The

endpoint, the crash, occurred at approximately 2:23 p.m. at a point

1.43 miles northeast of the El Yunque peak and at an elevation of

1561 feet (El Yunque itself is 3637 feet tall).

                  We return to what Santiago knew from the radar.         At the

point       the    plane   disappeared    from   the   radar,    the   plane    was

approximately 4.7 miles from the peak of El Yunque.                 Wojciechowicz

at that point had ample visibility (of approximately three nautical

miles) to allow him to see the clouds he was approaching ahead and

an area of clear weather and lower terrain to the north to which he

could       safely    turn.     The    government's    expert    testified     that


        2
          Plaintiffs say that Santiago also had available to him a
"vector link," a feature that, when activated by the controller,
displayed the computer's prediction of where the aircraft would fly
minutes into the future. This information is immaterial to the
district court's findings.

                                         -8-
Wojciechowicz could easily have avoided the crash by changing

course.   He testified that Wojciechowicz would have needed only

seventeen to eighteen seconds to maneuver away from the accident

site.

           The district court made findings about what information

was   available   to   Santiago   when   there   was   radar   contact.

Santiago's radar scope showed Wojciechowicz's altitude above sea

level and displayed MVA data for the surrounding area, but it did

not display terrain features, the elevation of the terrain, or the

aircraft's altitude above the ground.            The scope did display

prominent obstructions, including El Yunque peak, which had a

communications tower located on it.      It did not, however, display

the elevation of the tower or of El Yunque.

                                   II.

           Plaintiffs brought three lawsuits, seeking recovery for

the wrongful deaths of Wojciechowicz and one of his passengers,

contribution for money the insurers had paid to settle a state

court suit brought by relatives of two other passengers, and

contribution for funds paid by the insurer for the destruction of

the aircraft. On December 10, 2004, the district court granted the

government's motion to consolidate the cases.

           Plaintiffs conceded that Wojciechowicz had been negligent

but argued the government was partially at fault for the crash.

They claimed Santiago had negligently failed to separate the flight


                                   -9-
from El Yunque peak by at least three miles, which they claim is

required by ¶ 5-5-9 of the ATCM.3 They also claimed CERAP had

failed to train and test Santiago on significant terrain areas and

obstructions as required by a curriculum contained in the FAA's Air

Traffic Technical Training Order, FAA Order 3120.4J.4   They argued

that had Santiago been more familiar with the terrain, he would

have issued a safety alert to Wojciechowicz, and this alert would

have resulted in avoidance of the crash.

          Paragraph 5-5-9 of the ATCM, titled "Separation from

Obstructions," sits within Chapter 5 of the manual, titled "Radar,"

and Section 5 of that chapter, titled "Radar Separation."       It

states in relevant part:

          [S]eparate     aircraft     from     prominent
          obstructions depicted on the radar scope . . .
          by the following minima:
          1. When less than 40 miles from the antenna -
          3 miles.
          2. When 40 miles or more from the antenna - 5
          miles.5



     3
          The United States argued that Santiago had no duty under
¶ 5-5-9 to separate Wojciechowicz's flight from El Yunque because
¶ 5-5-9 applies only for IFR flights and that even if Santiago had
a duty to separate Wojciechowicz's flight, he did not breach his
duty.
     4
          The government argued that local air traffic control
authorities had the authority to modify Order 3120.4J's curriculum
and that Santiago had received adequate training.
     5
          The provision refers to two exceptions.      It does not
apply in "En Route Stage A/DARC or Stage A/EDARC."        There is
nothing in the record about these exceptions, but the parties agree
they do not apply to this case.

                               -10-
ATCM ¶ 5-5-9 (emphasis in original). Here, the required separation

was three miles.

            While plaintiffs' case rests largely on ATCM ¶ 5-5-9 and

the   training   order,      also    pertinent   to   the    case    are    the   FAA

regulations, other provisions of the ATCM, and provisions of other

FAA manuals.      The FAA has promulgated regulations that govern

pilots' operations.         See 14 C.F.R. pt. 91.     These regulations have

the force and effect of law, but here the plaintiffs do not claim

a   violation    of   the    C.F.R.      In    addition,     the    FAA    publishes

operations manuals, including the ATCM for controllers and the AIM

for pilots.

            The controlling law of this circuit is that the ATCM is

not a statute or a regulation but an internal FAA guideline issued

to FAA controllers, which governs their conduct.                   As such, under

our   case law the ATCM is merely an indication of the standard of

care.     Fed. Express Corp., 664 F.2d at 835.                Further, we treat

"substantial"     failures      to    adhere   to   the     ATCM    guidelines     as

"persuasive as an indication of a lack of due care."                 Id. (quoting

Delta Air Lines, Inc., 561 F.2d at 390).6

            Independently of ¶ 5-5-9's separation requirement, ATCM

¶ 2-1-6 requires a controller to issue a safety alert to the pilot



      6
          In arguing that the ATCM carries the force of law, the
dissent mischaracterizes the law in this circuit. This panel is
bound by circuit precedent, which only an en banc court can change.
United States v. Lizardo, 445 F.3d 73, 88 (1st Cir. 2006).

                                       -11-
if the controller is "aware the aircraft is in a position/altitude

which,   in       [the    controller's]       judgment,       places    it   in   unsafe

proximity to terrain, obstructions, or other aircraft."

              The AIM, by contrast, is an FAA publication that explains

to   pilots       the     application    of    FAA        regulations   in   different

circumstances.           Like the ATCM, the AIM is merely indicative of the

standard of care.           Id.; Delta Air Lines, Inc., 561 F.2d at 390.

Several of its provisions also discuss the conduct of air traffic

controllers.        Paragraph 5-5-8 of the AIM states that a pilot "is

responsible to see and avoid other traffic, terrain, or obstacles."

That provision also says that a controller will issue a safety

alert "if aware the aircraft is at an altitude believed to place

the aircraft in unsafe proximity to terrain, obstructions, or other

aircraft."

              A    separate      provision,      ¶    3-2-6(f),     states    that   "no

separation services are provided to VFR aircraft" in Class E

airspace,     the        class   of   airspace       in    which   Wojciechowicz     was

operating at all pertinent times.                    In addition, AIM § 4-1-17(e)

provides that VFR pilots are not relieved of their responsibilities

to "maintain appropriate terrain and obstruction clearance, or to

remain in [VFR-appropriate] weather conditions" by the fact that

they are receiving basic radar services from a terminal.

              Finally, FAA Order 3120.4J is an FAA operating manual

addressed to air traffic control authorities.                       It sets forth a


                                         -12-
national curriculum for training controllers.     Two provisions of

Order 3120.4J set forth training exercises under which a trainee is

required to label or draw topographical features on an unlabeled

chart of the local area and to identify significant terrain areas

and obstructions on an unlabeled video map.7

          The district court entered judgment in favor of the

United States.   It held that ATCM ¶ 5-5-9 did not apply to VFR

flights but only to IFR flights.        It further found that, even

assuming ATCM ¶ 5-5-9 did apply to VFR flights, Santiago did not

violate the provision because the last radar information he had for

the flight came well before it entered the three-mile radius around

El Yunque.   Wojciechowicz, 576 F. Supp. 2d at 269.   Crediting the

testimony of the government's expert witness, Edward Henderson,

that ¶ 5-5-9 requires a "radar separation," the court held that

"[w]ithout the aircraft remaining in radar contact it would have

been impossible for Mr. Santiago to apply the aforementioned radar

separation criteria to N441AW.    Thus, the provisions of [¶] 5-5-9

could not have been implemented because the aircraft was not

visible on Mr. Santiago's radar scope."     Id.




     7
          Plaintiffs cite Courses 55060 and 55065. Course 55060
states, "Given an unlabeled chart of the local area . . . the
individual shall label or draw the following: . . . Topographical
features."    Course 55065 states, "Given an unlabeled video
map/overlay, the individual shall identify all items, plus . . .
Significant terrain areas and obstructions."

                                 -13-
          The court also found that Santiago did not violate his

separate duty under ATCM ¶ 2-1-6.          It found the data available to

Santiago did not provide him with information about the plane's

proximity to terrain, and, because Wojciechowicz was operating as

a VFR pilot, Santiago did not know his intentions as to his route.

Santiago was therefore not aware that Wojciechowicz was in a

position which, in Santiago's judgment, placed him in unsafe

proximity to terrain.      Id. at 258-60.

          As to the second issue, the court held that CERAP had

leeway to adapt Order 3120.4J's curriculum to local requirements

and that it had adequately trained Santiago on terrain features by

instructing him on local MVA information.              Further, the court

found, any deficiency in training did not cause plaintiffs' harm.

The general terrain knowledge the training would have provided

would not have given Santiago sufficient information regarding the

flight's unsafe proximity to terrain to require the issuance of a

safety alert.   Id. at 259-60, 262.

          The   district    court    also    found    that   "even   assuming

arguendo that a duty had been owed and breached by the controller

. . ., plaintiffs ha[d] failed to prove that any such breach was

the cause of the crash . . . or that the pilot's actions in this

case were foreseeable."        Id. at 277.           The court found that

Wojciechowicz's actions had been negligent and that his negligence

was the sole cause of the accident.         Plaintiffs appealed.


                                    -14-
                                      III.

                In an appeal from a judgment following a bench trial, we

review      a   district   court's   findings   of   fact   for   clear   error.

Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st

Cir. 2006); Harrison v. United States, 284 F.3d 293, 297 (1st Cir.

2002).       We review questions of law de novo.       Janeiro, 457 F.3d at

139.       "The existence and extent of a duty of care are questions of

law; whether any such duty has been breached and whether proximate

cause exists are questions for the factfinder, whose determination

is binding on appeal unless clearly erroneous."                   Fed. Express

Corp., 664 F.2d at 835.

                We need not address the issue of whether ¶ 5-5-9 applies

to controllers over VFR flights as well as over IFR flights.8                 We

assume arguendo, in plaintiffs' favor, that the provision applies

to VFR flights.9


       8
          Paragraph 5-5-9 is itself silent on the issue; other ATCM
provisions specify that they apply exclusively to one or the other
type. This may show that the FAA would have specified that ¶ 5-5-9
applies only to IFR flights if that were the agency's intention.
However, it may be reasonable to think, given the regulatory
framework applicable to VFR pilots, that ¶ 5-5-9 does not apply to
VFR flights because the pilot of the VFR aircraft is assumed to be
able to see obstructions and to avoid them.
       9
          We also do not address the issue of whether plaintiffs'
claim is ever cognizable under the FTCA, given AIM ¶ 3-2-6(f)'s
express disclaimer that separation services are not provided to VFR
aircraft in Class E airspace. Governmental liability in airline
tort cases is based on the limiting principle that "[o]nce the
Government undertakes to provide services otherwise not required of
it," it is liable for negligent performance of those services.
Delta Air Lines, Inc., 561 F.2d at 389; see also Davis v. United

                                      -15-
           The FTCA grants district courts jurisdiction over claims

           for injury or loss of property, or personal
           injury or death caused by the negligent or
           wrongful act or omission of any employee of
           the Government while acting within the scope
           of   his   office    or   employment,   under
           circumstances where the United States, if a
           private person, would be liable to the
           claimant in accordance with the law of the
           place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

           Under the FTCA, the substantive law of the state where

the injury occurred governs.    See In re N-500L Cases, 691 F.2d at

27.   It is undisputed that Puerto Rico law applies here; for these

purposes, Puerto Rico is treated as a state.     Negligence law in

Puerto Rico is governed by the Civil Code, which imposes liability

for an "act or omission" that causes damages to another through

fault or negligence."     P.R. Laws Ann. tit. 31, § 5141; see also

Rodríguez-Quiñones v. Jiménez & Ruiz, S.E., 402 F.3d 251, 254 (1st

Cir. 2005).     A plaintiff must prove injury, "a negligent or

intentional act or omission (the breach of duty element)," and "a

sufficient causal nexus between the injury and the defendant's

actions or omissions."     Vázquez-Filippetti v. Banco Popular de

P.R., 504 F.3d 43, 49 (1st Cir. 2007).   A defendant is only liable

for injuries "reasonably foreseeable to the defendant."    Irvine v.

Murad Skin Research Labs., Inc., 194 F.3d 313, 322 (1st Cir. 1999)



States, 824 F.2d 549, 550-51 (7th Cir. 1987).     Thus, we make an
assumption in plaintiffs' favor.

                                -16-
(applying Puerto Rico law); see also In re N-500L Cases, 691 F.2d

at 27-28 (same).

          Foreseeability   is   a    central   element   in   Puerto   Rico

negligence law and underlies both the issue of breach and of

proximate cause. Vázquez-Filippetti, 504 F.3d at 49. To establish

proximate cause, a plaintiff must prove that the accident was

"foreseeable and could have been avoided if the defendant had not

breached its duty of care." Grajales-Romero v. Am. Airlines, Inc.,

194 F.3d 288, 296 (1st Cir. 1999).         Proximate cause is not proven

if the defendant can show the occurrence of an intervening cause

that was not foreseeable. Id.; see also Marshall v. Perez Arzuaga,

828 F.2d 845, 847 (1st Cir. 1987) (noting that the causation

requirement in Puerto Rico law "limits a party's liability for

hazards flowing from its negligence to those hazards that could be

'anticipated by a prudent person'" (quoting Pacheco v. P.R. Water

Res. Auth., 112 P.R. Offic. Trans. 369, 372 (1982))).

          A separate issue is the duties of care owed respectively

by controllers and pilots. The violation of FAA regulations, which

have the force and effect of law, is negligence per se.         See In re

N-500L Cases, 691 F.2d at 28.   The plaintiffs' case is not based on

a violation of regulations.     Rather, it is based on FAA manuals,

such as the AIM and the ATCM, which do not have the force of law

but only provide evidence of the standard of care among pilots and

controllers.   Id.   Still, "a substantial and unjustified failure


                                    -17-
to follow procedures made mandatory by the manual is persuasive as

an indication of a lack of due care."        Fed. Express Corp., 664 F.2d

at 835 (quoting Delta Air Lines, Inc., 561 F.2d at 390) (emphasis

added).

           Pilots   are   assumed    to    have   read   the   AIM   and   FAA

informational circulars and to know their provisions. In re N-500L

Cases, 691 F.2d at 28.      A controller is ordinarily entitled to

assume, absent an objective manifestation of evidence to the

contrary, that a pilot is complying with his own responsibilities

under FAA regulations and those manuals and circulars.                 In re

N-500L Cases, 691 F.2d at 31; Fed. Express Corp., 664 F.2d at

836-37.   This has been our rule for some time and a number of other

circuits have adopted the same rule. See, e.g., Thurston v. United

States, No. 95-411, 1996 WL 579929, at *3 (10th Cir. Oct. 9, 1996)

(mem.); Cappello, 79 F.3d at 1468; Biles, 848 F.2d at 663; Redhead

v. United States, 686 F.2d 178, 183 (3d Cir. 1982).

           It is also clear, to be sure, that if the controller were

negligent and if this were a proximate cause for the accident,

liability could be apportioned to the controller. See Rodriquez v.

United States, 823 F.2d 735, 745-46 (3d Cir. 1987).            But liability

may be imposed only if it is foreseeable that the controller's

negligent conduct will cause injury.         A plaintiff who establishes

the government breached its duties must show that the negligent

conduct is a legal cause of the harm.         Delta Air Lines, Inc., 561


                                    -18-
F.2d at 394.   The actions of the controller must be judged against

what a reasonable person, under the same or similar circumstances,

would have done.   See W.P. Keeton et al., Prosser and Keeton on the

Law of Torts § 37, at 236-37 (5th ed. 1984).10

A.        Plaintiffs' Claims under ATCM    ¶ 5-5-9 (Controllers'
          Duties as to Separation from Obstructions)

          The government argues that the standard of care under

¶ 5-5-9 of the ATCM, assuming it applies to VFR flights at all,

turns on what a reasonable controller in Santiago's situation would

have done given the information he had available to him, the fact

that Wojciechowicz was operating as a VFR pilot, and the fact that

at a point before the buffer zone the plane was no longer on the

controller's radar screen.

          Plaintiffs' core argument is that Santiago was in breach

of the ATCM ¶ 5-5-9 and that this was negligence per se, so they

need not prove causation.    As required by our precedent, we reject

the argument that the ATCM has the same effect as a regulation and

that any violation would be negligence per se. Fed. Express Corp.,

664 F.2d at 835.

          Plaintiffs also argue that they have established both a

violation of ¶ 5-5-9 and causation.     They say that although the


     10
          Plaintiffs often ignore this principle by proceeding
backwards from the information now known and arguing about whether
Santiago's actions were reasonable given this knowledge.       The
appropriate inquiry focuses on what was known to the controller at
the time. Kelley v. Schlumberger Tech. Corp., 849 F.2d 41, 45 (1st
Cir. 1988).

                                -19-
last radar data Santiago received showed the flight was 4.7 miles

from El Yunque peak, outside of the three-mile buffer, (a) ¶ 5-5-9

nonetheless required Santiago to issue a warning to Wojciechowicz

at some point before he entered the buffer, and (b) this warning

was necessary to allow the pilot adequate time to change course.

The latter proposition is simply untrue on the record.            We turn to

the first contention.

           Plaintiffs' theory is that even though Santiago could not

have foreseen Wojciechowicz's actions, that is immaterial because

Santiago was under a legal duty to keep a separation of three miles

between the plane and the El Yunque tower marked on his radar and

because   the   controller   breached    this   duty   by   not   issuing   a

separation order well before the plane neared the buffer zone.              If

Santiago had done so, they argue, Wojciechowicz would have been

alerted to the danger and would have changed course.

           This argument goes to when separation must be maintained.

It suffers from the obvious problem that there was no violation of

the plain text of ¶ 5-5-9, which states only the three-mile

separation minimum.    The provision contains no mandatory language

stating when a controller must take action to attempt to maintain

a separation.    Given the lack of mandatory language in ¶ 5-5-9 on

the issue of when to maintain the separation, the district court

correctly understood the question posed by plaintiffs as one of




                                  -20-
what a reasonable controller would have done on these particular

facts.11

                Further, plaintiffs have not articulated any clear theory

on when separation must be initiated.          James Parham,   plaintiffs'

expert     on    air   traffic   control   procedures,   testified   that   a

reasonable and prudent controller would have given a separation

order when Wojciechowicz was seven miles away from El Yunque and

four miles from the three-mile buffer zone to give the pilot time

to comply and to avoid the obstruction.          However, this was merely

Parham's opinion; Parham did not testify about actual practice

under ¶ 5-5-9.

                Under our case law, actual practice under a regulation or

ordinance is important to determining its meaning and may become

another source of a legal obligation. See, e.g., Pelletier v. Main

St. Textiles, LP, 470 F.3d 48, 55-56 (1st Cir. 2006); South Shore

Hosp., Inc. v. Thompson, 308 F.3d 91, 102-03 (1st Cir. 2002); Delta

Air Lines, Inc., 561 F.2d at 389-90 & n.5.          No evidence of actual

practice from the plaintiffs as to the interpretation of ATCM ¶ 5-

5-9 was admitted.        The court was not required to accept Parham's




     11
          The dissent, contrary to our law, characterizes this
question as one of law for a judge to decide and not a question of
fact. The reasonableness of a controller's action is in this case
a question of fact. Thus we have held that "[i]n deciding what a
reasonable person could do, a jury's latitude is considerable."
Rodríguez-Quiñones, 402 F.3d at 256.

                                      -21-
view, which was inherently inconsistent with the testimony of the

government's expert.

          The district court found that a reasonable controller,

given the facts of this case, would not have separated the flight

at (or before) 4.7 miles.12 That was because it was more reasonable

for the controller at that point to rely on the VFR pilot, who, the

controller could assume, was complying with his duties to see and

avoid terrain and obstacles and to maintain VFR-minimum visibility.

The pilot then had clear visibility.     Wojciechowicz had given no

indication that he was in distress or unable to comply with his

obligations, and he would have had ample time to change course at

four miles out.13

          The court's finding was not clear error.    Wojciechowicz

was under a legal duty to know the route and to have consulted maps

of the area.    See Cappello, 79 F.3d at 1468.   There is no serious

contention that the pilot did not know where El Yunque was.      In

contrast, Santiago did not then know the plane's course or altitude

or whether it was approaching or turning away from the obstruction,

El Yunque.     And of course, the plane disappeared from Santiago's


     12
          The dissent advances a new theory that the controller had
a duty to separate within thirty seconds after the last coast data
disappeared from his radar scope; however, this was not argued by
any party to the case.
     13
          Contrary to the dissent, this case does not turn on any
rule that mere loss of radar contact, regardless of the surrounding
circumstances, would vitiate a legal duty which had already arisen
under ¶ 5-5-9.

                                -22-
radar and Santiago's attempts to reestablish contact with it were

unsuccessful.

          Moreover, the government proffered a separate defense

that ¶ 5-5-9 could not apply under these circumstances. First, the

court accepted the testimony from the government expert, Edward

Henderson, elicited on cross-examination by plaintiffs' counsel,

that even assuming ¶ 5-5-9 applied to VFR flights, there was no

violation of ¶ 5-5-9 here because, flying under VFR, the pilot

could have changed direction or altitude at any time and the

controller would therefore not have known whether the aircraft came

within three miles of El Yunque.    He further testified that ¶ 5-5-9

requires "a radar separation. And [Santiago did not] have radar on

the aircraft" after the plane disappeared from the radar screen.

This testimony, against the background facts, is consistent with

and sufficient to support the district court's conclusion that

there was no breach of any standard of care under ¶ 5-5-9, even

assuming it applied to VFR flights, and further, beyond duty, that

there was no causal connection.14

          Plaintiffs have also failed to show clear error in the

court's finding that, even if Santiago had owed and breached a duty

under ¶ 5-5-9, there was no causal connection between any breach by


     14
          There was also no evidence presented that Santiago could
have reached the plane by radio contact if he had tried to do so
instantaneously with losing radar contact or at any point before
the crash, or that the pilot was then in control of the plane.
Plaintiffs bear the burden of proof.

                               -23-
Santiago   and   the   accident,   or   the   court's   findings   that   the

accident was not foreseeable to Santiago.

           Wojciechowicz was already required by FAA regulations to

change course and avoid flying into the clouds.              Those clouds

intersected with the terrain near the crash site and obscured

visibility.      See 14 C.F.R. § 91.155; Cappello, 79 F.3d at 1469.

The district court concluded that "[h]ad Mr. Wojciechowicz not

entered the clouds he would have had ample time to see and avoid

the terrain with which he ultimately collided." Wojciechowicz, 576

F. Supp. 2d at 255.     The court supportably found the cause of the

crash was not that the flight came closer than three miles to the

radar tower on El Yunque or that it was flying in high terrain, but

that the pilot flew into a cloud in violation of FAA regulations.

           Further, as the district court found, Santiago could not

have reasonably foreseen that Wojciechowicz would take the actions

that the district court found led to the accident, specifically

"fly[ing] into a cloud while traversing rugged, rising terrain at

low altitude and high speed."       Wojciechowicz, 576 F. Supp. 2d at

277.   A VFR pilot can change course and altitude at any time and

without need to obtain permission from the controller.             See In re

N-500L Cases, 691 F.2d at 31; Cappello, 79 F.3d at 1469.            Santiago

had no reason other than speculation to think that the flight was

heading directly into a cloud.




                                   -24-
B.        ATCM ¶ 2-1-6 (Safety Alert)

          Plaintiffs argue that Santiago was also in breach of his

duty under ATCM ¶ 2-1-6 to issue a safety alert to Wojciechowicz

because of his unsafe proximity to the terrain.          Whether this

provision is evidence giving rise to a duty in the controller to

issue a safety alert turns on the information available to the

controller. The duty arises when the controller is "aware that the

aircraft is in a position or altitude which, in the controller's

judgment, places the aircraft in unsafe proximity to terrain or

obstructions."15    Wojciechowicz, 576 F. Supp. 2d at 258 (emphasis

in original).      Here, the district court supportably found these

provisions   did    not   apply   to   Santiago.   Santiago   only   had

information on the flight's altitude above sea level; he had no

information about the elevation of the surrounding terrain, the

aircraft's altitude over the ground, or its proximity to any

terrain or obstacles (aside from its distance from the tower on El

Yunque). When the flight disappeared from Santiago's radar shortly

before the crash, he had even less information about the flight.

Nor was there any indication from Wojciechowicz before then that he

was in distress.




     15
          We recognize but do not resolve the issue of whether this
discretionary language triggers the discretionary function
exception to the FTCA. See Fothergill v. United States, 566 F.3d
248, 252 (1st Cir. 2009).

                                   -25-
           Plaintiffs argue that Santiago should have known the

aircraft was in unsafe proximity to terrain because it was flying

toward El Yunque peak at an altitude below the peak's elevation.

The   district   court   made   a   finding   rejecting   this   argument.

Wojciechowicz, 576 F. Supp. 2d at 260.        There is no clear error in

the district court's conclusion that the information available to

Santiago, who knew Wojciechowicz was operating under VFR procedures

and who received no distress calls from the pilot, was insufficient

to alert Santiago to the fact that Wojciechowicz had placed himself

in a dangerous position.    See id. at 259-60.     A VFR pilot flying in

a sparsely populated area may fly close to the ground and below the

altitude of surrounding terrain, so long as minimum visibility is

maintained. 14 C.F.R. §§ 91.119(c), 91.155(a); see Biles, 848 F.2d

at 663.

C.         Plaintiffs' Claim under Courses 55060 and 55065 of the
           Air Traffic Technical Training Order

           Plaintiffs' arguments related to alleged deficiencies in

Santiago's training fail for similar reasons.16       Essentially, they

argue that certain FAA training guidelines have the force of law

and that CERAP's failure to follow the training led to Santiago

being unfamiliar with the terrain and obstructions in his area of

responsibility and that because of his unfamiliarity, he did not



      16
          We do not reach plaintiffs' argument that the district
court erred in holding that CERAP had leeway to depart from the
FAA's national training directives.

                                    -26-
recognize the danger of Wojciechowicz's situation. They argue this

led Santiago to fail to issue a safety alert as required under ATCM

¶ 2-1-6.17

             The district court accepted Santiago's testimony that he

was familiar with the location of El Yunque and the mountains but

not with every peak and valley.        The court also found that even if

Santiago     had   been   aware   of   the   high   terrain     over    which

Wojciechowicz was flying, he would not have been aware that the

aircraft was in unsafe proximity to the terrain because of the lack

of terrain information on his radar scope, the fact that he only

knew the aircraft's elevation above sea level rather than its

elevation above the ground, and the fact that he had no reason not

to   presume   that   Wojciechowicz    was   complying   with   VFR    flight

procedures.     Wojciechowicz, 576 F. Supp. 2d at 259-60.         The court

also found that general terrain knowledge would not have led

Santiago to be aware that the flight was in unsafe proximity to

terrain and that a safety alert was therefore required.                Id. at

262.




       17
           Plaintiffs' argument that ¶ 2-1-6 required Santiago to
issue a safety alert is distinct from an argument they made to the
district court that Santiago was under a duty to issue a safety
advisory because of the presence of high terrain in the area. See
Wojciechowicz, 576 F. Supp. 2d at 266-67.       Plaintiffs give no
citation to support the notion that there is a free-standing
obligation to issue a safety advisory. The district court rejected
the latter argument and plaintiffs have not challenged this holding
on appeal.

                                   -27-
           The bottom line is that there was no clear error in the

court's finding that the purported lack of training plaintiffs rely

on did not cause Santiago's inaction.            In the end, the district

court   found   that   there   was   no     foreseeability   and   no   causal

relationship between any breach by Santiago and the plaintiffs'

injury.   These may be mixed questions of fact and law, but they are

components of negligence, so our review is for clear error.               See

Fed. Express Corp., 664 F.2d at 835.             There was no clear error

here.

           Plaintiffs' only argument that the court clearly erred

is, again, that because the aircraft was flying toward El Yunque at

an altitude lower than the elevation of the peak, Santiago should

have known the aircraft was in unsafe proximity to the terrain.

For the reasons stated earlier, this argument fails.

D.         Conclusion

           Given the evidence and our standard of review in this

fact based case, we find no reversible error.

           The district court's judgment is affirmed.



                   -Dissenting Opinion Follows-




                                     -28-
               LIPEZ, Circuit Judge, dissenting.            There is no question

that the pilot bears primary responsibility for the tragic accident

at issue here.       Nevertheless, that is only part of the story.           This

case raises important questions about the scope of an air traffic

controller's duty of care to a plane flown under visual flight

rules ("VFR") after radar contact initiated by the pilot is then

lost.    The majority accepts the district court's finding that any

possible breach of duty by the controller did not contribute to the

crash.     I do not agree.            If a controller's duty to separate

aircraft from terrain continues after radar contact is lost, we

could not conclude that the controller's conduct had no effect on

the accident.           I believe that Santiago did have such a duty and

that,     on     this     record,    he   was    required    to   attempt   radio

communication with the airplane in time to separate it from El

Yunque.        Because the record shows that, if Santiago had done so,

the plane crash might have been prevented, I cannot conclude that

Santiago's breach of duty did not contribute to the accident.                   I

therefore respectfully dissent.

                                           I.

               Paragraph     5-5-9   of    the   Air   Traffic    Control   Manual

("ATCM") requires air traffic controllers to “separate aircraft

from prominent obstructions depicted on the radar scope,” and

specifies a minimum separation distance of three miles for aircraft




                                          -29-
like the one flown by Wojciechowicz.18 The district court held that

this provision applies only to flights operating under instrument

flight rules ("IFR") and further concluded that, even if VFR

flights were within the scope of ¶ 5-5-9, Santiago did not violate

the provision because Wojciechowicz's plane was off radar by the

time the three-mile limit was reached.          The majority assumes for

the sake of efficient analysis that ¶ 5-5-9 applies to VFR flights,

and it holds that the district court did not commit clear error in

finding no breach of duty because, even though radar contact with

Wojciechowicz's plane was lost, the controller could reasonably

rely on the pilot to see and avoid terrain and obstacles.

           I do not understand how the majority can reach that

conclusion.     If ¶ 5-5-9 applies to VFR flights, it can only be

construed to impose a legal obligation on controllers to take all

reasonable steps to separate aircraft from obstructions without

regard to the VFR pilot's separate duty to prevent accidents.             As

plaintiffs argue, the very point of applying ¶ 5-5-9 to VFR

aircraft   is   to   provide   a   second   layer   of   protection   against

accidents like the one that occurred in this case.          It is precisely



     18
        Paragraph 5-5-9, which is titled                  "Separation   from
Obstructions," states in relevant part:

     [S]eparate aircraft from prominent obstructions depicted
     on the radar scope . . . by the following minima:
     1. When less than 40 miles from the antenna – 3 miles.

ATCM ¶ 5-5-9.

                                     -30-
in cases of unforeseeable pilot negligence that ¶ 5-5-9 would play

its most critical role for VFR flights.        It thus makes no sense to

say that the provision imposes a duty whose outer limit is reached

when the controller reasonably could rely on the pilot's own duty

of care.    Such a conclusion defines the concurrent duty of the

controller out of existence.

            To resolve this case, therefore, we cannot avoid directly

addressing two legal questions: (1) whether ¶ 5-5-9 applies to VFR

aircraft, and, if so, (2) the scope of the controller's duty under

that provision.     I consider each of those in turn.

                                    II.

            Notwithstanding its assumption that ¶ 5-5-9 applies to

VFR flights, the majority discusses the nature of that provision at

some length and appears to conclude that the classic rules of

statutory interpretation do not apply to it.            It points out that

the ATCM is neither a statute nor a regulation, but only an

internal FAA guideline that does "not have the force of law."             It

effectively treats the provision's scope as a question of fact by

endorsing the district court's reliance on the government's expert,

Edward Henderson, who testified that ¶ 5-5-9 could not apply once

Wojciechowicz's plane disappeared from the radar screen. Henderson

also testified that he had never seen ¶ 5-5-9 used for VFR

aircraft,   which   led   the   district   court   to   conclude   that   the

provision does not apply to VFR flights.


                                   -31-
           Paragraph   5-5-9,   however,      constitutes    more     than

background guidance or advisory criteria whose applicability is

left to the controller's discretion.          Although this court has

acknowledged the difficulty of distinguishing between law and

practice – particularly where informal documents such as guidelines

and handbooks are involved, see Nieves-Villanueva v. Soto-Rivera,

133 F.3d 92, 100-01 (1st Cir. 1997) – no such difficulty exists

here. A Federal Aviation Regulation ("FAR"), 14 C.F.R. § 65.45(a),

states that “[a]n air traffic control tower operator shall perform

his duties in accordance with . . . the procedures and practices

prescribed in air traffic control manuals of the FAA, to provide

for the safe, orderly, and expeditious flow of air traffic.”19

Because part 65.45(a) mandates compliance with air traffic control

manuals,   the   manuals   themselves   are   incorporated     into    the

regulation and acquire the force and effect of law.          See Ross v.

United States, 640 F.2d 511, 517 (5th Cir. 1981) (per curiam,

affirming on the basis of the district court's opinion) (stating

that provisions of a similar air traffic control manual have the

effect of FAA regulations); see also Rodriquez v. United States,

823 F.2d 735, 739 (3d Cir. 1987) (stating that FAR's "have the




     19
         Although the regulation refers to "control tower
operator[s]," courts have included air traffic controllers within
its scope. See, e.g., Campos Viuda de Courtois v. United States,
778 F. Supp. 585, 591 (D.P.R. 1991); In re N-500L Cases, 517 F.
Supp. 825, 834 (D.P.R. 1981), aff'd, 691 F.2d 15 (1st Cir. 1982).

                                 -32-
force and effect of law"); In re N-500L Cases, 691 F.2d 15, 28 (1st

Cir. 1982) (same).20

            Thus, ¶ 5-5-9 has the status of law and, as such, its

meaning must be determined in accordance with ordinary principles

of statutory construction rather than by means of expert testimony.

See United States v. Lachman, 387 F.3d 42, 50-52 (1st Cir. 2004)

(applying    canons    of   statutory   interpretation   to   federal

regulations); Nieves-Villanueva, 133 F.3d at 100 ("[I]t is for the

judge, not the lawyers or the witnesses, to inform the jury of the

law applicable in the case and to decide any purely legal issue.").

I thus begin by examining the language of the provision. See

Lachman, 387 F.3d at 50 (stating that, "'if the language of a



     20
       Contrary to the majority's assertion, evaluating the ATCM
as a provision of law is not inconsistent with First Circuit
precedent. The case cited by the majority, Federal Express Corp.
v. Rhode Island, 664 F.2d 830, 835 (1st Cir. 1981), holds that
violations of the ATCM "do not necessarily constitute negligence"
– a point with which I agree – but it does not hold that manual
provisions do not have the force of law. Indeed, Federal Express
Corp. equates mandatory ATCM provisions with statutes and
ordinances.   See id. ("Although slight deviations from manual
procedures do not necessarily constitute negligence, we have
previously indicated that 'a substantial and unjustified failure to
follow procedures made mandatory by the Manual is persuasive as an
indication of a lack of due care.' The Rhode Island courts have
embraced a similar position, holding that in an action based on
violation of a statute or ordinance, 'evidence of injury
proximately caused by the violation is prima facie evidence of
defendant's liability . . . .'") (citations omitted).
     This is not to say that FAA documents that contain only
advisory criteria, and not binding rules, must also be given the
force and effect of law.      Ross, 640 F.2d at 518 (noting that
another FAA manual consisted of "advisory criteria rather than
binding FAA regulations").

                                 -33-
statute or regulation has a plain and ordinary meaning, courts need

look no further and should apply the regulation as it is written'"

(quoting Textron, Inc. v. Comm'r, 336 F.3d 26, 31 (1st Cir.

2003))).

            The paragraph as written does not include an exception

for VFR aircraft and, in the absence of such an exclusion, there is

no basis for concluding that the controller lacks separation

responsibility for VFR flights that are receiving radar services.

See Wojciechowicz v. United States, 576 F. Supp. 2d 241, 252

(D.P.R. 2008) (stating that Wojciechowicz was receiving "basic

radar service").      Although it is conceivable that VFR flights by

definition would fall outside provisions requiring controllers to

separate   aircraft    from   obstructions   displayed       on   their     radar

scopes, the next ¶ of the ATCM belies any such notion.                Paragraph

5-5-10 addresses separation distances from "adjacent airspace" in

which radar separation is also being used, and it excludes certain

VFR aircraft from its dictates.       See ATCM, FAA Order 7110.65M § 5-

5-10 (c) (“The provisions of subpara[graph]s a and b do not apply

to   VFR   aircraft   being   provided     Class    B,   Class    C    or   TRSA

services.”).21     This   attention   to   VFR     flights   reinforces      the


      21
       Like ¶ 5-5-9, ¶ 5-5-10 specifies the separation distance
that controllers must maintain depending on the distance between
the aircraft and the radar antenna, or sensor, that is being used
by the controller. After explicitly excluding certain categories
of VFR flights from its coverage, the provision continues by
directing a "radar handoff" or termination of radar service for VFR
flights approaching the excluded types of airspace under the

                                   -34-
interpretation           that   such   flights    are   covered    by   the   radar

separation provisions unless explicitly excluded. See § 5-5-10(d).

"'[W]here Congress includes particular language in one section of

a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.'"                  Russello v. United

States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim

Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (alteration in original);

Trenkler v. United States, 268 F.3d 16, 23 (1st Cir. 2001).22                   That

principle has no less force in this context.

                Construing ¶ 5-5-9 to apply to VFR flights does not

conflict with the VFR pilot's responsibility to see and avoid

obstructions.        Controllers and pilots have a concurrent duty to

maintain safety, see, e.g., Delta Air Lines, 561 F.2d at 392

("[A]lthough pilots are undoubtedly responsible for the safety of

their        aircraft,    controllers    are     concurrently     responsible   for

adhering to procedures which minimize the difficulties for the




control of another air traffic control facility.
        22
        The majority notes that the FAA-published Aeronautical
Information Manual ("AIM") expressly states that separation
services are not provided to VFR aircraft in Class E airspace. The
district court found that Wojciechowicz's plane entered Class G
airspace one minute before the collision and flew in and out of
Class G from that time until the crash, including "at least the 10
seconds prior to colliding with the terrain." Wojciechowicz, 576
F. Supp. 2d at 251.

                                         -35-
crew."), and the FAA has acknowledged that rules relating to pilots

and controllers may overlap.       Section 5-5-1(e) of the AIM states:

          The   responsibilities   of  the   pilot   and
          controller intentionally overlap in many areas
          providing a degree of redundancy. Should one
          or the other fail in any manner, this
          overlapping responsibility is expected to
          compensate, in many cases, for failures that
          may affect safety.

          Imposing    the   duty    to    separate    under     ¶   5-5-9    on

controllers for all flights receiving basic radar services is one

obvious method to protect against unexpected "failures that may

affect safety."      Hence, I can only conclude that the plain,

unlimited language of ¶ 5-5-9 governs and that the provision

applies to VFR as well as IFR flights.          I therefore must consider

the scope of the duty imposed by the provision and whether it was

breached in the circumstances of this case.

                                   III.

          The   majority    explains     why   the   district   court   could

properly find that Santiago did not act unreasonably in failing to

contact Wojciechowicz before the plane disappeared from radar, when

it was still approximately 4.7 miles from El Yunque.            Paragraph 5-

5-9 prescribes a mandatory minimum of three miles, and the record

shows that Wojciechowicz still had plenty of time at the 4.7-mile

point to change course and avoid crashing into the mountain.                The

majority errs, however, in deferring to the district court's

conclusion that Santiago's duty ended when radar contact was lost.


                                   -36-
Nothing in ¶ 5-5-9 suggests that the duty to separate aircraft from

obstructions automatically dissolves when a plane receiving radar

services suddenly disappears from the screen. Indeed, no one would

suggest that the loss of radar contact with a flight operating

under instrument rules terminates the controller's duty to provide

separation services.

          The majority holds that, in the absence of "mandatory

language stating when a controller must take action to attempt to

maintain a separation," the district court permissibly treated the

question of duty "as one of what a reasonable controller would have

done on these particular facts."           I have no problem with the

majority's statement of the general principle.23         The majority goes

on to conclude, however, that the district court committed no clear

error in finding that it was reasonable for the controller to

assume that the VFR pilot knew where he was and could see the

mountain, and, on that basis, acted reasonably in failing to

immediately   initiate   contact    with   the   pilot    when   the   plane

disappeared from radar.


     23
        The majority asserts that I have improperly treated the
question of the reasonableness of the controller's actions under ¶
5-5-9 as one of law rather than fact.       This misrepresents my
analysis, which is consistent with our decision in Federal Express
Corp., 664 F.2d at 835. We held there that "[t]he existence and
extent of a duty of care are questions of law; whether any such
duty has been breached and whether proximate cause exists are
questions for the factfinder, whose determination is binding on
appeal unless clearly erroneous."      Id.  My analysis considers
"[t]he existence and extent" of the controller's duty under ¶ 5-5-9
as a question of law and the issue of breach as a factual question.

                                   -37-
          As I have explained, ¶ 5-5-9 has no purpose in the VFR

context unless it is to serve as backup protection against the

possibility of pilot negligence.    In imposing a concurrent duty on

controllers to separate VFR flights from obstructions, ¶ 5-5-9

effectively incorporates an assumption that pilot negligence is

foreseeable.   The fact that Wojciechowicz, as a VFR pilot, should

have been aware of his surroundings is thus besides the point, and

the controller's duty under ¶ 5-5-9 is no different for VFR flights

than for IFR flights.   If a plane is no longer visible on the radar

screen, the only way for the controller to be sure there is proper

separation between that aircraft and prominent obstructions is to

contact the pilot directly.    From that perspective, it is apparent

that Santiago's duty under ¶ 5-5-9 could not automatically end with

the loss of radar contact.    Rather, as with an IFR flight, the duty

to maintain separation required him to make reasonable efforts to

contact Wojciechowicz to ensure that the aircraft remained three

miles away from El Yunque.    It was foreseeable that, in the event

of pilot negligence, Santiago's failure to take that step could be

disastrous.

          Santiago’s own actions and testimony indicate that he was

aware of his responsibility to attempt to contact Wojciechowicz.

Although Santiago testified that short-term loss of radar contact

with an aircraft is not unusual, he acknowledged that if an

aircraft disappears from his scope, he would, “most frankly,”


                                 -38-
inform that aircraft that radar contact was lost.            He explained

that he does not necessarily inform a pilot that radar contact is

lost when the plane's data is in "coast" mode – the short period

immediately after the loss of radar contact when the computer

predicts the flight's likely path – because planes sometimes will

"go into coast . . . and then they'll come back."              The flight

transcript shows that Santiago attempted to reach Wojciechowicz's

plane by radio more than a dozen times, starting at 43 seconds

after the plane's coast data disappeared from the radar scope

(roughly the time of the crash).24

            The district court's view that Santiago's duty under ¶ 5-

5-9 ended when the plane was no longer visible on radar is thus

unsupportable.     That legal error infected the district court's

fact-finding     and   undermines   the    majority's   reliance   on     it.

Examining the record in light of the proper scope of ¶ 5-5-9, the

remaining   question    is   whether   Santiago   breached   his   duty    to

maintain separation by failing to contact the pilot for 43 seconds

after all radar information about the flight ended.          I now turn to

that question.




     24
       The district court found that the plane crashed about two
seconds later, "approximately 45 seconds" after the last coast data
appeared. Wojciechowicz, 576 F. Supp. 2d at 259.

                                    -39-
                                   IV.

             In one sense, it is undisputed that Santiago failed to

perform his duty to ensure three miles of separation between the

plane and prominent obstructions.          The aircraft was permitted to

penetrate the three-mile “ring” around El Yunque and crashed 1.43

miles from the mountain’s peak.     Wojciechowicz, 576 F. Supp. 2d at

246.   The majority is correct, however, that simple breach of the

duty does not amount to negligence, and the issue before us turns

on   "what   a   reasonable   controller    would   have   done   on   these

particular facts" to fulfill his duty under ¶ 5-5-9.         Santiago did

attempt to contact the pilot.      Hence, the specific question to be

addressed is whether his delay in doing so was reasonable.

             The record shows that a reasonable factfinder would have

to conclude that it was not.      Santiago knew or should have known,

based on the information displayed on his scope, that at the moment

actual radar contact was lost, the airplane was only 1.7 miles away

from the three-mile ring – the minimum distance for separation

specified in ¶ 5-5-9.     See Wojciechowicz, 576 F. Supp. 2d at 259.

He also knew that the plane was headed toward the mountain.            Even

if a three-mile separation was no longer feasible, Santiago at

least needed to take all reasonable steps to contact Wojciechowicz

early enough to guide the plane away from the mountain in case the

pilot inexplicably failed to change direction on his own.




                                  -40-
           The government's expert testified that Wojciechowicz

could have maneuvered the plane away from the accident site within

17 or 18 seconds.     The last coast data appeared on radar at about

45 seconds before the crash.       Id.    Accepting the end of all data as

a   reasonable    trigger   for   the    controller's   concern,     and   even

allowing for a brief delay as Santiago came to the realization that

the plane had not reappeared on the radar scope, Santiago still had

more than thirty seconds to attempt to turn the aircraft before the

impact occurred – nearly double the time needed.                    He waited,

however, until virtually the time of impact to initiate radio

contact.     On    this     record,     that   delay   can   only    be    found

unreasonable.25     I realize that thirty seconds is not much time.


      25
       The majority states        that reliance on a duty to separate
within thirty seconds after       the coast data disappeared introduces
a new theory to the case.         That is not so. Plaintiffs make the
following argument in their       brief:

      [T]he district court's finding that "[t]he last 'coast'
      data block on the Aircraft was seen at 2:21:42 p.m.,
      approximately 45 seconds prior to the crash," also
      undercuts the court's conclusion that it would have been
      impossible for Santiago to have complied with § 5-5-
      9. . . . Based upon any reasonable view of the evidence,
      Controller Santiago had sufficient information and time
      to issue a separation instruction to the Aircraft, as
      required by § 5-5-9. This analysis is also consistent
      with the testimony of the government's piloting expert
      who testified that Mr. Wojciechowicz, the pilot, could
      have climbed the Aircraft out of its predicament at a
      point as late as 17 or 18 seconds prior to impact.

Although the plaintiffs' timing discussion focused primarily on the
contention that Santiago needed to contact the plane before it
reached the three-mile minimum distance from obstructions, the
underlying theory is the same whether the focus is the three-mile

                                      -41-
In the business of air traffic control, however, split seconds

matter, and the stakes are enormous. If Santiago had fulfilled his

duty under ¶ 5-5-9 of the ATCM – to "separate [the] aircraft from

[the] prominent obstruction[] depicted on the radar scope" – this

accident may have been avoided.26

                The majority observes in a footnote that there was no

evidence presented that Santiago could have reached the plane by

radio if he had tried earlier.               To the contrary, Santiago and

Wojciechowicz had been communicating by radio, showing that the

radio was functioning properly.             There is no basis for concluding

that the radio would have suddenly failed before the plane crashed.

                Nor is there any reason to think that Santiago could not

have guided the change of course within the 17 or 18 seconds the

expert estimated would ordinarily be necessary.               The record shows

that,        despite   the   lack   of   radar   contact,   Santiago   had   some

awareness of the airplane’s location. After the crash, he directed


minimum or separation from the mountain itself                   –   i.e.,   that
Santiago had a duty to act before it was too late.
        26
         I do not suggest that the government bore full, or even
substantial, responsibility for the crash. Under Puerto Rico law,
where the relative fault of the plaintiff and defendant is taken
into account, a factfinder properly could have concluded that the
government was responsible for only a small percentage of the
damages. See, e.g., Campos Viuda de Courtois, 778 F. Supp. at 590
("[I]f both the plaintiff and defendant are at fault, the plaintiff
can still recover, but his recovery is limited to the proportion of
damages sustained by the plaintiff that were proximately caused by
the defendant's negligence."); P.R. Laws Ann. tit. 31, § 5141
("Concurrent imprudence of the party aggrieved does not exempt from
liability, but entails a reduction of the indemnity.").

                                         -42-
numerous planes and police helicopters directly to the crash site,

at one point stating that “once you get close to the area I’ll give

you a point out.”           Therefore, regardless of the pilot’s own

disorientation, Santiago had sufficient knowledge of the plane’s

whereabouts to accomplish the required separation.

                                         V.

            The tragic result in this case might have been avoided if

the government had performed its duty under ¶ 5-5-9 to maintain a

three-mile separation between Wojciechowicz's plane and El Yunque.

The plain language of the provision extends the duty                to separate

aircraft from obstructions to IFR and VFR flights alike, and that

duty does not terminate when radar contact is lost unexpectedly.

Indeed, even under VFR conditions, the unexplained loss of all

radar   contact     when    a   plane    is    heading   directly    toward   an

obstruction   and    nearing     the    three-mile     safety   barrier   should

trigger the controller's immediate concern.               To fulfill his duty

under ¶ 5-5-9, the controller had to act quickly to contact

Wojciechowicz so that, if necessary, he could guide the pilot in

separating the plane from El Yunque.             In the circumstances here,

Santiago's 43-second delay before attempting such contact was

unreasonable.

            In concluding that the district court committed no clear

error in evaluating the facts, the majority misconstrues the law

and   the   principle      of   concurrent     duty.     The    government    has


                                        -43-
undertaken to act as a safeguard to potential pilot negligence, and

when it performs that function negligently, its actions cannot be

insulated from review because of the pilot's errors.           Sadly, it

takes only a few seconds of inattention on the part of an air

traffic controller for tragedy to strike.         I would reverse and

remand   with   instructions   that   the   district   court   apportion

responsibility for the tragedy between the pilot and the controller

under Puerto Rico's tort law.




                                 -44-
