In Buenos Aires, on the 26th day of the month of February of two thousand and two, the Judges of the Second Chamber of the National Court of Appeals in Civil and Commercial Federal Matters, met in agreement to hear the appeal filed in the case: ESTODO-LA ROBERTO AND ANOTHER C/IERINO SANDRA ROSA AND OTHERS S/DAMAGES AND LOSSES, with respect to the judgment on pages 2/698, the Court established the following issue to be resolved:
The appealed sentence is in accordance with the law
After the draw, it was determined that the voting should be carried out in the following order: Chamber Judges Dr. Eduardo Vocos Conesa and Dr. Marina Mariani de Vidal.
In response to the question raised, Judge EDUARDO VOCOS CONESA said:
I.- On March 7, 1993, at approximately 09.48:23, the Piper PA-250-23 Azteca aircraft -registration LV-LHF-, owned by Sandra Rosa Ierino, took off from the San Fernando International Aerodrome piloted by the pilot Ángel Alberto Estodola, 49.350 years old (private pilot license n 21, dated 6-89-59) and accompanied by Francisco Antonio Ierino, 667 years old, father of the owner of the aircraft (with flight instructor license n 660 and commercial n 200). Shortly after taking off, the aircraft appeared to be approaching the aerodrome at a very low altitude (about XNUMX feet) and at a very low speed, which caused the tower operator to declare a state of emergency. This Infrastructure assistant observed that the plane was making a slight climb and moved away, noting - from his spot - that the Piper made a confusing and erratic turn in descent, losing sight of it, to immediately verify the existence of a column of smoke.
The LV-LHF plane had crashed into a wall at approximately 09.58, 4,5 km from the San Fernando international aerodrome, catching fire and completely destroying it, resulting in the burning of Mr. Ángel Alberto Estodola and Mr. Francisco Antonio Ierino (see details in criminal case no. 5709/94, Federal Court No. 1 of San Isidro, in particular, FINAL REPORT CE No. 5.336.016 (FA), which appears on pages 100/103 -with the clarification that I will make in this regard later-).
The Aviation Accident Investigation Board (FAA), which is legally required to intervene in these cases, carried out a series of studies and investigations to determine the cause of the accident, stating that both Estodola and Ierino had their respective licenses and were psychophysiologically fit to fly. The Argentine Air Force agency stated that it had not been possible to determine what function Mr. Ierino performed on board, nor whether Estodola required a flight with a rehabilitation instructor (which is only presumed). The JIAAC considered that, apparently, there was a loss of power in the right engine (whose propeller was feathered) and that, in turn, there could have been failures in the other engine, hence the low altitude and speed mentioned above. Faced with this situation, the investigating body estimates that the crew members should have tried to make an emergency landing while still maintaining control of the aircraft. It should be clarified here that Provision 78/93 JIAAC was overruled by Provision 24/94 for not strictly adhering to the final report approved by the Minutes of 13-10-93 (see text on fs. 260).
II.- Roberto Estodola and his wife Wilfrida Cáceres Benítez, parents of the deceased Ángel Alberto, filed a lawsuit based on the facts briefly described above - against Sandra Rosa Ierino (as owner and operator of the crashed aircraft) and against the heirs of Francisco Antonio Ierino (as responsible party and flight instructor), Mrs. Rosa Kuprichuk de Ierino, Sandra Rosa Ierino and Sonia Margarita Ierino.
They argued, to this effect, that the Pieper PA 23-250 lacked adequate maintenance and that, before the flight, not all the necessary inspections were carried out, a fact that compromised the responsibility of Francisco Antonio Ierino (as representative of the owner and operator) and as the actual operator of the aircraft.
The actors also said that it was a rehabilitation flight with an instructor - because their son Ángel Alberto needed to rehabilitate his license since he had not flown since 24-10-92 - and that Ierino (who had a license) assumed the role of instructor, thus acting as commander of the Piper and responsible for the contingencies of the flight.
The plaintiffs claimed the amount of $268.370, or whichever is more or less from the evidence, interest and costs, for the following items and amounts: I) Material damage: 1) Loss of present financial assistance and the chance of future assistance, $200.000; 2) Psychological treatment, $15.000; 3) Funeral service, $2.370,50; and 4) Destroyed clothing, $1.000; and II) Moral damage: $50.000 (see complaint on pages 19/23 and extension on pages 39/51).
III.- First of all, Ms. Rosa Kuprichuk de Ierino answered the claim, denying - above all - that she was the heir of the deceased FA Ierino, that she had no assets of her own. She added that her ex-husband had no responsibility in the accident and that it was not true that Estodola worked under his orders. She also denied that the aircraft had been lacking maintenance, pre-flight care, that a strange noise had been noticed in one of the engines; that Estodola flew as a student and on a rehabilitation flight, as well as that Ierino was her instructor. And this co-defendant highlighted the true and doubtful facts set forth in the JIAAC report, which did not show any fault or negligence on the part of Ierino, to conclude by asserting: 1?) that her daughter Sandra -owner of the plane- facilitated its use to Estodola in an absolutely disinterested manner (see fs. 71); and 2?) which, in any event, invoked the liability limit provided for in art. 163 of the Aeronautical Code (see written document on pages 67/71).
On pages 77/87, co-defendant Sonia Margarita Ierino responded to the plaintiffs' claims by raising an exception of lack of standing to act because, for the damage caused by her deceased father, the undivided community of the estate assets should be held responsible and not her personally (see pages 80 v.; art. 3284 CC). She categorically denied that her father had assumed the position of flight instructor for Estodola and that he needed to make a re-adaptation flight; that there were faults in the aircraft and that the plaintiffs had suffered the damages they claim. To which she added that, in accordance with the current legal regime, the deceased Estodola enjoyed the aircraft free of charge, so that the liability should be limited to 300 Argentine gold coins (art. 163, Aeronautical Code).
Sandra Rosa Ierino, owner and operator of the damaged machine, filed her response on pages 84/95 in terms similar to those of her sister Sonia Margarita.
At pages 107/112, the actors answered the exceptions of lack of action in the defendants alleging that they had not been brought to the process in a personal capacity or capacity but as heirs of Francisco Antonio Ierino, whose intestate succession they had already initiated (in a photocopy work by separate line).
The Judge, by resolution on fs. 117, decided to defer the treatment of the exceptions until the moment of the ruling. After which, the case was opened for evidence (from fs. 152 to fs. 682) and the arguments were received: plaintiff, on fs. 687/8; defendants, on fs. 690/694).
These are, in brief, the facts that gave rise to the present conflict and the documents constituting the procedural relations established between the co-plaintiffs and the three defendants.
IV.- The distinguished Magistrate of the previous instance, in the pronouncement of fs. 698/706, after also making a review of the background, the Final Report of the JIAAC and the aeronautical expert report carried out by engineer Rubén Miguel Cafaro, arrived at the conclusion that the cause of the accident was the probable loss of power of the right engine of the plane (and even the left one) and a piloting error: the delay in deciding on an emergency landing while still in control of the aircraft.
Under these conditions, the a quo judged that the responsibility fell on the owner of the crashed Piper and on the person who exercised, with her express authorization (see fs./ 201) - the functions of commander, that is, Mr. Francisco Antonio Ierino; this is so because the commander must respond - in principle - for all the damaging consequences that have been caused by the operation of the machine under his charge, because he is invested with its direction from the moment he tries to start the flight and the surveillance and observation of all the instrumental and mechanical elements, the order and safety of the aircraft, the crew, passengers, etc. depend on him. (see F. VIDELA ESCALADA, Derecho Aeronáutico, t. IV-B, ed. 1976, pp. 742 et seq., nos. 1097/1105).
The judge considered that the crew should have noticed some kind of abnormality in the engines (statement by Mr. Niz and delay at the head of the runway for takeoff) and that, instead of taking off, the prudent attitude would have been to return to the platform and check the engines with a qualified maintenance mechanic to ensure that they were operational. Because the specialized personnel who had inspected the plane would have been able to notice the engine failures (cf. expert report by Eng. Cafaro, on pages 462/464).
Having determined the above, Judge Torti set the compensation at $20.000, funeral expenses at $2.370, psychological assistance at $17.910 and moral damages at $50.000 (he rejected the item for destroyed clothing). However, considering that there was free transportation and that there was no fraud (art. 162 C.), he set the compensation at the limit of 300 gold Argentines, equivalent to the sum of $7 on March 1993, 23.337; he sentenced the defendants to this amount, plus interest at the active rate BNA from the date of the accident and plus the costs of the trial.
V.- The judgment was appealed by both parties (pages 710/721). The co-defendants expressed grievances on pages 731/734 and the plaintiffs did the same on pages 735/739, writings which -in reverse order- motivated the replies on pages 743/746 and 741/742. There are also various appeals that are linked to the regulated fees (see pages 709, 713, 719, 723 and 725), which will be examined by the Court as a whole at the end of this agreement.
VI.- Since not all of the parties' arguments directly address the issue at hand, that is, they are not conducive to the composition of the litigation, I will not go into them one by one in this vote, although I will study all the aspects that I consider substantial - according to my criteria and conscience - to arrive at a fair solution. I thus adhere to the jurisprudence of the Supreme Court of Justice of the Nation, which has deemed this methodology for justifying judicial decisions to be reasonable (cf. doctrine of Fallos: 265:301; 278: 271; 287:230; 294:466, among many precedents). And since the analysis of the case allows us to see that a number of pieces of evidence have been incorporated that neither add nor subtract from the final decision, I will only include in this exposition those that truly have an impact on the assignment of the rights of each person (I will therefore make use of the power granted to me by article 386, second part, of the Procedural Code). And truly I am not motivated by reasons of laziness or fatigue, but by the convenience of not abusing the substantiation of secondary data that, instead of providing clarity, ultimately obscure the meaning of what is being resolved.
I will say in advance that the case is complex and the solution is debatable, and that I have thought at length about the legal response that best meets the requirements of justice and equity, bearing in mind the teachings of Mr. Dalmacio VELEZ SARSFIELD: equity must preside over the judges' decision (see note to arts. 2567/70 of the Civil Code), as well as the excellent work - of inverse value to its size - by Abelardo F. ROSSI, Approximation to Justice and Equity, Editions of the Catholic University of Argentina, passim.
Having made these brief clarifications, let us get to the point.
VII.- The solution to the present conflict requires, in particular, to pay special attention -with a realistic criterion- to the facts of the case and to the relationship that united Estodola and Ierino, beyond forced legal constructions or those that show excessive formal rigor. The Supreme Court of Justice of the Nation, in a precedent of some years ago, gave a very valuable directive to the judges on how to exercise their mission. The High Court said, and I have repeated it many times due to its highly educational content; The judicial function is not exhausted in the letter of the law with forgetfulness of the effective and efficient realization of the right. To do so, it must attend, rather than to a formalistic criterion, to the validity of the principles protected by the Constitution and that arise from the need to provide for the common good (Rulings: 296:65). Or also: The judge must determine the substantial truth above the ritual excesses, since the achievement of justice requires that it be understood as what it is, that is, a virtue at the service of that truth (Rulings: 296:65)
There are several factual issues that must be defined in order to legally frame the final decision. And certainly there are several evidences provided - some coincident, others contradictory - to try to reconstruct the facts following the so-called rules of sound criticism (arts. 386, Code of Civil Procedure). These factual issues refer, among others, to: 1) adequate maintenance of the aircraft and whether or not its engines were defective; 2) reason for the flight initiated on 7-3-93 by Estodola and Ierino and their motivations, which entails what is relevant to the quality of the trip by both parties involved; 3) certain or conjectural existence of the imputation of a piloting error; 4) credibility of the witnesses; 5) convincing force of the report of the Civil Aviation Accident Investigation Board (Argentine Air Force) - certain data and hypothetical data; 6) the power of the aeronautical expert opinion of engineer Rubén Miguel Cafaro - its intrinsic and extrinsic concordances - in his reports and clarifications on pages 348/353, pages 462/464 and pages 499/501; 7) the nature of the flight on 7-3-93 and, eventually, the burden or gratuitousness with respect to the deceased Estodola. Perhaps, as we progress in the study, other issues will arise which, as they are projected on the case, we will also examine.
VIII.- For the moment, it seems useful to me to point out that it is proven that - despite their differences in age and financial solvency - between Mr. Francisco Antonio Ierino (a recently retired pilot, 59 years old, with more than 12.400 hours flown - see fs. 168-) and the young pilot Ángel Roberto Estodola (23 years old, with 100 hours of flight and without financial resources) there existed a close friendship, almost filial, cemented on the passion for mechanical flight (cfr. statements of MA Niz, fs. 334/5, at 3a., 4a., 10a., 14a.; L. Peña Arguello, fs. 660/662, at 1a., 14a. and 15a.; DE Marotta, fs. 664/67: 3a.: very strong ties; Estodola was the son who Ierino did not have; 6th, 7th; see also, acquittal of the actor Roberto Estodola, fs. 638, at 1st and 7th of the document on fs. 637; acquittal of the actress, Wilfreda Cáceres Benítez, fs. 638 and vta., at 1st of the document on fs. 637).
This friendship was frequently manifested by flying together, and even taking third parties, on the Piper PA 23-250 Azteca (owned by his daughter Sandra Rosa Ierino). At his (Ierino's) side, (Estodola) was formed, it is stated in the complaint, on fs. 19 back. Marcela Alejandra Niz stated that they flew alone several times and with Ierino on other occasions; that Ierino invited them to fly, to go for a ride (cfr. fs. 334/5). L. Peña Arguello, in turn, stated that he piloted Estodola, that it was a pleasure trip; that he always did it and that he has seen him fly with third parties; and that on the day of the accident Ierino accompanied him because it was normal, always together (cfr. fs. 660/662, at 6a., 7a., 7′) and 15a.). In turn, the witness DE Marotta - who claims to be a close friend of Estodola - stated that they flew several times with Ierino, but that Estodola was the one who manoeuvred; that he often flew with relatives; that, in most cases, the aforementioned Estodola was the pilot and that Ierino treated him like a son (cf. pages 664/667, at 1st, 6th, 7th, 7th).
If we take into account the nature of this friendly, quasi-filial relationship, and if we consider that Ierino was financially well off (he owned a Piper aircraft, reported in the estate), while Estodola lacked the resources to meet the expenses required by aviation, it is reasonable to assume that on the flights they made together the one who paid the expenses was Ierino and that he must also have been the one who covered the costs of maintenance of the machine, hangar, fuel, etc. It seems unthinkable that the deceased Estodola could help support his family and, in addition, pay for his aeronautical entertainment with the meager salary he earned as a fuel loader at an ESSO station, even if he supplemented his income with some odd jobs.
Hence, in contrast to the reality described, nowhere in the claim (cf. pages 19/23) or its extension (pages 39/51) have the plaintiffs stated that their son who died in the accident covered the expenses of his aeronautical hobby or received any kind of onerous compensation from Ierino. I therefore find credible what was said by the deceased Ierino's wife in the sense that her daughter Sandra Rosa (owner of the Piper that crashed) provided the plane in a completely selfless manner (cf. pages 67/71, in esp. 71) and that Sonia Margarita Ierino said in her response to the claim that the young Estodola enjoyed the plane free of charge (see pages 77/87), as did his sister Sandra Rosa Ierino (pages 84/95). And if any doubt remains, it is enough to read the response of the actor Roberto Estodola to position 7a. of the document on fs. 637: he was piloting the plane free of charge (see fs. 638). It is also worth adding that, on the trip on the day of the accident - an excursion to Martín García Island was planned, without Ierino - the witness DE Marotta explains that the trip was entirely for pleasure; Estodola was going to take some friends on a plane.
so much so that Ierino lent the plane (cfr. fs. 664/667, at the 4th repreg. -in reality, it is the 5th.). I will say, finally, that in the argument of fs. 687/688 the plaintiff has not stated at any time that the fact that the young Ángel Alberto Estodola piloted the plane when the fatal accident occurred, the performance of that activity -which responded to his vocation and passion- entailed an onerous compensation, excluding the gratuity that the a quo valued. Such an approach, never before proposed to the first instance judge, entailed late reflection because it is introduced in appeal in a sort of original jurisdiction that the law expressly prohibits (doctrine of arts. 271 and 277 of the Procedural Code).
Whether or not there was transportation is another matter. What there was not, and there was not with certainty, was an onerous compensation on the part of Estodola towards Ierino, especially if one considers the friendly and quasi-filial relationship existing between the two and the reasonable presumption that it was in fact Francisco Antonio Ierino, 59 years old, retired as an aviation commander of Boeing and other large aircraft, who was in charge of the expenses of the deceased Estodola in the performance of his air activity.
IX.- It is now worth asking what was the reason for the flight carried out by Estodola and Ierino on the ill-fated 7th of March 1993. The plaintiff has maintained from the beginning that the former - as he had not flown since 24-10-92 - was required by law to carry out an adaptation flight with an instructor (which takes one hour of flight and five landings) and that Ierino, who had the title of flight instructor, accompanied him on that occasion - as an instructor - in order to carry out the aforementioned rehabilitation flight. The defendants have expressly denied that the pilot Estodola carried out a rehabilitation flight with an instructor that day and that the co-pilot Ierino acted as such.
The issue is really important because if Ierino, on the occasion in question, acted as flight instructor - something that could lead us to assume, in principle, that he was on the right side of the aircraft, controlling the engines - he would be responsible both for having ordered the takeoff and for having allegedly incurred a piloting error by delaying the decision to make an emergency landing in a timely manner. The instructor acts as commander of the aircraft and is the one who decides the manoeuvres (cf. technical report by aeronautical engineer Rubén Miguel Cafaro, on pages 348/353, and clarifications or additions to pages 462/464 and 499/501).
It is proven, indeed, that the young Estodola -according to his Flight Book, where all the flights made must be listed, chronologically recorded (cfr. report of the Air Regions Command of the FAA, on fs. 645)- would have flown for the last time on 24-10-92 (see sheets on fs. 239/240), which is why he required a re-adaptation flight with an instructor -since he had not recorded any flying activity in the last four months (cfr. fs. 102)-; a flight of at least one hour and five landing practices (see final report of the JIAAC, on fs. 100 back/101). I point out that the lack of flights since 24-10-92 is denied by the person in charge of maintenance of the Piper plane, Mr. L. Peña Argilello, who was a friend of Estodola and Ierino, by stating that the former made several flights between February and March 1993 (identifying three Piper planes, in addition to the crashed plane) and reiterating to the 10th repreg. that: yes, he recorded flights between 24-10-92 and the date of the accident (cf. statement on pages 660/662, on the 4th and on the 10th repreg.).
I will, of course, stick to the most credible and effective evidence, consisting of the flight records, as the Civil Aviation Accident Investigation Board did in its Final Report (cfr. fs. 99/103 of the criminal case, in esp. fs. 100 v./101, or fs. 241/244 and 650/653 vta. of these main proceedings). That is, I start from the basis that the pilot Ángel Alberto Estodola had not performed flight tasks since October 24, 1992 and should, consequently, carry out a re-adaptation flight with an instructor (one hour, 5 landings), according to the records on fs. 239/240.
Secondly, it must be admitted that Mr. Francisco Antonio Ierino - a close friend of the other pilot - held a flight instructor's license, as stated in the JIAAC Final Report (pages 101) and in the personal file (pages 272), a fact also considered by the expert Cafaro (pages 348/353) and which has not actually been the subject of controversy (except that he acted as such on the flight that ended in the accident).
It is also true that on the final flight, Estodola sat as pilot on the left side - in charge of the flight and navigation instruments - and that Ierino sat on the right side - in charge of the engines - and that such a position is what must be observed by the student and instructor, respectively (cf. the expertise of aeronautical engineer RM Cafaro, fs. 348/353).
We have, up to this point, that the pilot Estodola required a rehabilitation flight with an instructor (due to lack of flying activity since October 1992); that Ierino, his friend and owner of the plane, held the title of flight instructor; and that on 7-3-93, at 09.48 they took off on a flight, most likely to test the condition of the plane (cfr. Marcela Alejandra Niz, fs. 334/335, at 20th; L. Peña Argilello, fs. 660/662, at 7th and at repregs. 14th and 15th; DE Marotta, fs. 664/667, at 4th and at repregs. 4th and 5th). However, despite the circumstances mentioned above, there are others that lead to the conclusion that on the day of the accident, Estodola acted as a student pilot and Ierino as a rehabilitation flight instructor.
It is pertinent to note, first of all, that the position taken by the pilots in the Piper plane could have been due to many reasons, so that, in no way, can it be inferred from it the qualities of student and instructor that are in question. In any case, insofar as such a fact involves a founding element of the plaintiffs' claims, it was incumbent upon them to demonstrate by direct or firm presumption evidence that the placement of Estodola and Ierino responded to the purpose of carrying out a rehabilitation flight with an instructor (doctrine of art. 377 of the Procedural Code). And I believe that it is clear that this evidence has not been effectively provided and that we are only faced with some circumstances that, at most, give rise to the formulation of hypotheses or conjectures.
I note, in this order of ideas, that it was not uncommon for Estodola to act as pilot and Ierino as co-pilot on other flights (cf. DE Marotta, pages 664/667, at 6a.). This witness, who was a close friend of Ángel Alberto E., stated that on most occasions, Estodola acted as pilot and that Ierino treated him like a son (pages cit., at 7a. -in fact, it is the 8a.-). In turn, the witness L. Peña Arguello - who was a friend of both pilots, to the point of stating that the three of them were always together - stated that a pleasure trip was planned for that day, as usual, and that it was not a rehabilitation flight according to the aerodrome records - but that Estodola sat as pilot and Ierino accompanied him because it was normal, always together, not as flight instructor (cfr. fs. 660/662, at 6a., 7a., re-questions 11a. and 15a.).
And what is more convincing is the statement of Marcela Alejandra Niz - former girlfriend of young Estodola and with some knowledge of the art of mechanical flight - who stated that a trip was planned for 7-3-93 in the Piper plane - with several couples - to Martín García Island; a flight in which Estodola would be the pilot and in which Ierino would not go (cfr. fs. 334/335, at 16a. and 19a.; their concordance with what was stated by DE Marott, fs. 664/667, at 4a. and repregs. 4a. and 5a.).
While they were waiting for all the passengers to arrive (some of whom were already at the airfield - pages 664/7, 5th repreg.), Ierino decided that they should take a previous flight to be safe (MA Niz, pages cit., at 20th). And he said to Estodola, "Let's fly it, take a ride" (DE Marotta, pages cit., 5th repreg.). The explanation seems reasonable: a measure of prudence on the part of Mr. Ierino - aged 59 - in the face of the flight of a small plane that he operated and that he lent to his young friend Estodola, aged 23, so that he could go for a ride with other young people to Martín García Island. And if this was so, and I really am inclined to believe it is, it would be illogical for the young people who were already ready for their pleasure trip to have to wait an hour of rehabilitation flight from Estodola, plus five landing practice flights.
The circumstances of persons, time and place do not support the plaintiff's thesis. And it is significant that if it were a flight rehabilitation trip with an instructor - which would compromise or could compromise Ierino's liability -, Estodola's ex-girlfriend did not make the slightest mention of that matter.
In short, although the JIAAC Final Report speaks of a daytime, local, training flight and although it is not disputed that Estodola required an adaptation flight with an instructor and that Ierino had a flight instructor license, the reality and certainty is that the investigators came to the conclusion that it could not be determined what function each one fulfilled and that the possibility of Ierino serving as a flight instructor could not be reliably determined (cfr. Final Report, fs. 99/103 of the criminal case, on fs. 102 on Considerations on the operational maneuver).
The fact that Ierino was an instructor - as we saw earlier - was expressly denied by the three co-defendants, as was denied that the fateful flight had the purpose of rehabilitating Estodola. It was therefore up to the plaintiffs to prove these facts and they have not managed to do so, since they have only provided a few indications that do not even amount to presumptive evidence (art. 163, inc. 5, of the Procedural Code). The remaining elements of judgment that I have assessed, on the other hand, tend to show that there is complete uncertainty on the point, with the position defended by the defendant being more admissible - although this is not what matters.
Under these conditions, and it has not been proven that Ierino was in command of the plane or that he carried out any manoeuvre that could be blameworthy due to incompetence, there is no reason that could compromise the responsibility of Rosa Kuprichuk de Ierino and Sonia Margarita Ierino.
It should be noted that in the JIAAC Final Report, in accordance with Provision No. 24/94 (see pages 260) - which overruled Provision No. 78/93 - the investigators were unable to determine why the crew did not decide to land on the runway or make a forced landing while they had control of the aircraft. In this regard, the Technical Advisor said: ...hypotheses related to the technical aspect that could have been influential in the occurrence of the accident cannot be formulated (see pages 244, criminal case). And in point 9 of the CONCLUSIONS, the feathering of one of the propellers due to a crew error is raised as a hypothesis, and only as such (obviously not proven), and it assumes - that is, a conjecture - as a probable cause of the accident a delay by the crew in heading towards places with a greater possibility for an emergency landing.
Specifically, what happened inside the aircraft when the engine failures occurred remains unknown. Leaving aside assumptions, there is no evidence - precisely because it is not known what happened - that Estodola or Ierino acted in the emergency with any specific fault or incompetence (articles 512 and 902 of the Civil Code).
If the above, as we have seen, leads to the acquittal of the claim of Rosa Kuprichuk de Ierino and Sonia Margarita Ierino, the same does not occur with Sandra Rosa Ierino, owner and operator of the aircraft, who gave express authorization to her father Francisco Antonio Ierino to pilot the aircraft and to carry out, whenever he wanted, recreational flights and pleasure transport (naturally without receiving any onerous compensation for it), which former commander Ierino frequently carried out, even accompanied by Estodola (see special authorization on page 201).
The owner of the plane, Mrs. Sandra Rosa Ierino, authorized or delegated the use - which naturally includes the authorization to actually carry out the transport (which, in this case, was carried out free of charge as recreational or sports flights) to her father Francisco Antonio Ierino. And he, in turn, did so - on the day of the accident - to the pilot Estodola, both of them leaving in the Piper to carry out a test flight, according to witnesses. On that flight, in which Estodola was a free passenger - although he tested the handling of the plane (cfr. acquittal of the actor's positions, 7th of the document on fs. 637 - see fs. 638-; which is consistent with the statement of Kuprichuk de Ierino, fs. 67/71, in esp. 71, and of Sonia Margarita Ierino, fs. 77/87) - probably due to defects in one or both engines the plane suffered the accident that determined its total destruction and the death of its two passengers, who were traveling in the light aircraft without it being known with certainty the duration of the flight they had undertaken nor its final destination, although it was foreseeable - and only foreseeable - the return to the same departure aerodrome.
I believe that there are sufficient elements to conclude - in accordance with art. 163, paragraph 5, of the Code of Civil Procedure - that the owner of the aircraft provided it to those who perished in the accident so that they could use it free of charge - transporting themselves from one place to another - without the machine being in reasonable safety conditions; something that the carrier, before starting the flight, should have verified with the utmost caution. And the status of Mrs. Sandra Rosa Ierino - owner and operator of the aircraft - was also that of carrier, even though she delegated the command or piloting to her father or a family friend free of charge.
Sandra Rosa Ierino was authorized to fly and it was necessary to demand that she exercise due diligence in preparing the aircraft for flight. This was not fulfilled, despite being a substantial obligation of the carrier (on its own behalf through its delegate - an obligation inherent in the duty of safety incumbent upon it - since on the same day 7-3-93 - when the engines were started - the witness MA Niz declared in the police investigation that the deceased Estodola told her that the right engine was making a strange noise. Then, with Ierino on board, it took longer than normal at the head of the runway until it took off and soon - due to the low altitude and low speed - the operator of the control tower shouted that the plane was in an emergency, which was followed in minutes by the fatal accident (pages 24/25, criminal case).
I would like to point out that the statement made by Marcela Alejandra Niz, given the circumstances in which it was made, appears to be sincere in all its aspects, and the emotional bond that bound her to the deceased Estodola does not diminish the credibility of her statements, both in the criminal proceedings (pages 24/25) and in those presented in the sub-examination (pages 334/335) - arts. 386 and 456 of the Procedural Code. The existence of the strange noise mentioned by the young woman at the police station was not the result of a fanciful imagination, but a fact that can be weighed in light of the events that subsequently occurred, and good proof of this is the fact that the JIAAC paid particular attention to it when drafting its final report. It should be noted that shortly after takeoff, the machine showed serious problems - flying at very low altitude and low speed - which were momentarily overcome and then caused the plane to fall, declared in emergency almost immediately after taking off by the tower operator JMH García (fs. 198); infrastructure assistant who corroborated - as expressed in the final report of the JIAAC - the statement made by Marcela Alejandra Niz. I also emphasize that the technical investigators of the JIAAC judged that the presumption of failures in the Piper engines was confirmed by finding the propeller in the feather position (fs. 102, criminal case, chapter Considerations on the operational maneuver); aspects on which the cited Final Report insists in points 7 and 8. With which the aeronautical engineer Cafaro agrees that the cause of the emergency was the engine failure, the contribution of the loss of power of both engines - cf. expert report of fs. 348/353-.
In short, if the owner of the plane expressly authorized her father to act as pilot (or carrier) - the only one actually authorized by her, according to page 201 - this delegation of powers does not relieve her of responsibility in order to fulfill the duties of every carrier to keep the aircraft in safe conditions for flight. It should be reiterated that the alleged piloting failure is nothing more than a mere conjecture, since no one knows, specifically, what happened in the plane when the emergency occurred, nor whether it - no matter how experienced the pilots were - was likely to be overcome by a forced landing. The alleged delay in landing is nothing more than that: a possible or probable hypothesis. And nothing more.
In summary, I have proven that the cause of the accident was the failure of one or both engines of the Piper PA 23-250 Azteca, which lost the power necessary for the aircraft to stay afloat; this fact appears to be presumptive evidence of serious, precise and consistent facts (art. 163, inc. 5?, of the Procedural Code): a) presence, even temporarily, of a strange noise in the right engine when it was started; b) abnormal delay at the head of the runway for takeoff; c) flight at very low altitude (200 feet) and minimum speed on a first approach to the airfield, data which showed - as declared by the control tower operator JMH García - that the plane was in an emergency (see statement on pages 198 and back); d) corroboration of this state by the propeller in the feathered position (JIAAC Report, pages 102, criminal case 5709/94); e) loss of power of the right engine and subsequently also of the left engine (JIAAC, fs. 103 back, cause cit.; see also expert opinion of aeronautical engineer Rubén Miguel Cafaro on fs. 348/353, point 19: cause of the emergency); and f) crash of the aircraft, with the result already seen.
I believe that the facts noted are consistent with each other and, taken together, form a picture that sufficiently explains the reason for the accident. And if one takes into account that the Piper's defect was evident before takeoff - when its right engine was started - it seems clear that the owner of the aircraft, when delegating the specific performance of the transport - whether for pleasure flight, recreation or whatever - to Commander Ierino, did not adopt all the maintenance or verification precautions appropriate for the transport - even if it were benevolent - to be carried out with appropriate safety, not naturally exempt from the risk or hazard that any mechanical flight entails. To which I am interested in adding that the co-defendant Sandra Rosa Ierino has not provided the trial with evidence that demonstrates that she adopted, in relation to the light aircraft, all the precautions required for its safety.
XI.- I pointed out in the previous paragraphs that, in order to decide this particular case fairly, it was necessary to discard forced legal constructions and to realistically consider the relationship of friendship - almost filial - that existed between the two pilots who died in the accident and, even, the trust that was given by the Ierino family to Young Estodola.
This friendship meant that Ierino, the only person authorized by the owner of the aircraft to pilot it or use it as he pleased, facilitated Estodola - who lacked the financial resources to cover the expenses required by aeronautical activity - the use and piloting of the plane, to travel with Ierino himself or with other friends. In this way, they usually made pleasure trips, almost always together (cf. statements of MA Niz, pages 334/335; L. Peña Argilello, pages 660/662; and DE Marotta, pages 664/667). And those trips
They did not change in nature because sometimes Ierino piloted it and other times the young Estodola did, with the consent of the former.
The truth is that the Piper plane was used exclusively for going out for a ride, that is, for pleasure flights (it always did so, states witness L. Peña Arguello, pages 660/662, paragraph 7). And when the aircraft took off for the enjoyment of its crew - made possible because its owner so authorized by delegating its use and transport through express authorization to his father - it is clear that it was carrying out the benevolent transport of all those aboard it, since it was done as an act of kindness or courtesy, for a specific destination or simply for the purpose of enjoying the flight.
It is clear, more than obvious, that there was no -due to the friendship between the Ierino family and Estodola that has been repeatedly stated- an air transport contract when they went out to fly in the Piper plane. The Ierino family, who were well off financially, invited the novice pilot Estodola -who lacked the means to support his passion for flying- to fly in said plane. And they invited him out of friendship, kindness, courtesy, free of charge. Since the aircraft was not operated commercially, it was a matter of pleasure trips and flights or transports of benevolence (cfr. positions of the actor, fs. 638, to the 7th. of the document on fs. 637); acts that were generally carried out -by express authorization or delegation of Sandra Rosa Ierino, who was also the owner of the aircraft- by the commander Francisco Antonio Ierino and, sometimes, by subdelegation or subauthorization of this one by the deceased pilot Ángel Alberto Estodola.
In this regard, I consider that the latter died during a pleasure trip, a transport out of kindness or courtesy (benevolent transport), without compensation (art. 277 C. Proc.). Therefore, in my opinion, the compensation set by the a quo should be maintained (art. 163 CA)
The foregoing conclusion makes it unnecessary to examine the plaintiff's grievances related to the compensatory amounts of the items of chance of help and moral damages. Only, for the sake of clarification, I will say that the a quo set the sum of $50.000 for the latter item, which the plaintiffs consider meager, but which is exactly the amount claimed in the complaint (see pages 50 back).
In summary, I vote to confirm the appealed judgment insofar as it condemned Sandra Rosa Ierino to pay the plaintiffs the sum set by the a quo, with interest and trial costs; and to revoke it with respect to the extension of the sentence to Rosa Kuprichuk de Ierino and Sonia Margarita Ierino, who should be acquitted, with the costs of both instances in the order caused, taking into account the difficulties posed by the resolution of the case and the opinionability of the one proposed in this vote in relation to these co-defendants (art. 68, 2nd part of the Procedural Code).
The Chamber Judge, Dr. Marina Mariani de Vidal, for reasons similar to those given by the Chamber Judge, Dr. Eduardo Vocos Conesa, agrees with the conclusions of her vote. With this the act ended.
Buenos Aires, February 2002.-
AND WHEREAS: as a result of the foregoing agreement, the appealed judgment is confirmed insofar as it condemned Sandra Rosa Ierino to pay the plaintiffs the sum set by the a quo (art. 163 of the Aeronautical Code), with interest and trial costs; and because Rosa Kuprichuk de Ierino and Sonia Margarita Ierino are absolved from the claim, with costs in order in both instances (art. 68, 2nd paragraph, of the Procedural Code).
Taking into account the nature of the matter, the amount of the judgment (plenary session of La Territorial de Seguros SA v. STAF, dated 11.9.97) and the extent, quality and importance of the work performed, as well as the stages completed, the fees of doctors Manuel Silvio Camus and María Delia Carmen Bueno are hereby raised to the sum of TWO THOUSAND THREE HUNDRED PESOS ($2.300) each. The regulations made in favor of doctors Luis Enrique Ramírez, Carlos O. Scolni and Carlos Elías Scolni are hereby confirmed, since they were only appealed by discharges. And the emoluments of doctors Pablo Martino, María Alina Martino and Daniel Alberto Fernández are raised to the amounts of THREE HUNDRED FIFTY PESOS ($ 350), FORTY PESOS ($ 40) and THREE HUNDRED FIFTY PESOS ($ 350), respectively (articles 6, 7, 9, 10, 19, 37 and 38 of Law 21.839, amended by Law 24.432).
Considering the nature of the issues on which the aeronautical expert, engineer Rubén Miguel Cafaro, and the psychiatrist, doctor Horacio Luis Munilla, had to issue their opinions, as well as the nature of their opinions, the fees of the first are raised to the amount of TWO THOUSAND FIVE HUNDRED PESOS ($2.500) and those of the second are confirmed, since they were only appealed on a high level.
On appeal, it is regulated: a) in the relationship between plaintiff and Sandra Rosa Ierino, in the sum of FIVE HUNDRED AND SEVENTY-FIVE PESOS ($575) each for the fees of doctors Manuel Silvio Camus and María Delia Carmen Bueno and in FOUR HUNDRED AND SIXTY PESOS ($460) each for the fees of doctors Pablo Francisco Martino and Daniel Alberto Fernández, and b) in the relationship between plaintiff and the remaining co-defendants: in FIVE HUNDRED AND SEVENTY-FIVE PESOS ($575) each for the fees of doctors Pablo Francisco Martino and Daniel Alberto Fernández, and in FOUR HUNDRED SIXTY PESOS ($460) each for the emoluments of doctors María Delia Carmen Bueno and Manuel Silvio Camus (art. 14 of the current tariff).
It is noted that the third position of the Chamber is vacant.
Register, notify and return.
SIGNED: EDUARDO VOCOS CONESA – MARINA MARIANI DE VIDAL
