Even after the Brooklyn Dodgers crushed our hearts and ran to the money and future of Los Angeles, we kids still believed in the goodness and purity of those who could hit and pitch. In our tiny, crowded bedrooms, we dreamt of hitting like Mickey Mantle, catching like Willie Mays. Our parents were hard-working and all, but how could you idolize a guy who took the subway to work, whose big accomplishment on the weekend was to carve the pot roast? In those cloudless days, we never knew that some athletes were drunks or cursed the 10-year-old begging for an autograph.
During the madness of the 1960s when our salacious society revealed that those we idolized like Mantle yielded to temptation, I didn’t care. I still clung to the bravery and grace of Jackie Robinson, to the strength and faith of Gil Hodges and all the glorious Boys of Summer. Eventually, the violence and deceit of that era slapped me into the real world, one of greed and bigotry, pretense and pride. No longer did I worship those with bright smiles or blinding fastballs. Instead, all were phonies—frauds actually, for no goodness existed in their selfish bones.
Then there was Roberto Clemente. We knew he could do it all—hit, run, catch. But he was part of the hated Pirates, who stole the 1960 Series from my Yanks. I can still see Yogi Berra looking up as Bill Mazeroski’s walk-off homer sailed over the left-field wall, winning the seventh game and causing everlasting misery. Through the 1960s, into the 1970s, Roberto was a perennial All-Star, winning awards and acclamation, but he played somewhere out west—Pittsburgh—so he was mostly ignored. I knew, of course, that he died on December 31, 1972, at age 38 when his plane crashed while trying to deliver relief to earthquake-ravaged Nicaragua.
I assumed that this foolish, yet tragic, mission was a mere publicity stunt, concocted so that a star could earn even more money endorsing shaving cream or cologne. That’s what these athlete celebs did—pretend to be virtuous, disguising their greed and vanity. Even after I read about his decency and generosity, I didn’t believe a word. My DNA overflowed with distrust and cynicism that, regrettably, have never dissipated.
In the following years, I never gave Clemente or his death another thought as I was busy teaching apathetic and angry high schoolers, attending law school at night, and trying to figure out a future. Older teachers, brilliant yet jaded, demanded I pursue law. “The Board of Ed is a disaster” was their mantra; you’re just a glorified babysitter. Hard to argue because John Jay High in Brooklyn, where I taught, was overcrowded with double sessions. Classes started at 7:40 a.m. and ended at 5 p.m., the dropout rate was at least one-third, and a police officer roamed the halls trying to maintain order.
Specializing in Aviation Law
Eventually, I followed my colleagues’ advice and accepted the offer (one of two) from Speiser & Krause, a plaintiff firm specializing in aviation law (which I knew nothing about). Stu Speiser, a pilot and the founding partner, had authored books and was impressed that I had worked and written for the New York Times while in college and after. So, nervous and intimidated, I entered the old Pan Am building in midtown Manhattan the day after Labor Day 1977 not knowing the difference between a summons and a complaint. I soon settled into living in the library, while trying to learn how a lawsuit works—something law school forgot to teach.
I immediately heard of the Clemente case because our firm represented his family and those of the two other passengers, Francisco Matias and Angel Lozano, who were in the DC-7 that crashed shortly after takeoff from Puerto Rico on New Year’s Eve 1972. The plane, overweight and piloted by an inadequate and unqualified crew, left San Juan International Airport filled with relief supplies for Managua, the capital of Nicaragua, which had been devastated by an earthquake eight days before. This was the third Nicaraguan relief flight privately financed by Clemente. Fearful that the supplies on the first two planes were diverted by corrupt public officials, he boarded this DC-7 to ensure that the supplies of food, medicine, and clothing reached those in need.
The owner of the DC-7 was American Air Express Company, whose president Arthur Rivera had purchased the used four-engine plane in July 1972. Rivera, whose pilot’s license was revoked in 1970 for violating 66 Federal Aviation Administration (FAA) regulations while owning and operating a DC-3, was a rogue operator who had a habit of ignoring FAA regulations. On December 2, 1972, while trying to teach himself how to operate the DC-7 at the airport in San Juan, he ran the plane into a ditch, damaging propellers on two engines.
The repair of the malfunctioning parts was cursory and insufficient, but that didn’t stop Rivera from offering the DC-7 to Clemente for $4,000. Anxious to assist the suffering Nicaraguans, Clemente agreed because the brightly painted plane appeared airworthy. Now Rivera had to find a pilot, copilot, and flight engineer. Jerry Hill, a qualified pilot who had a case pending against him for violating 13 FAA regulations, arrived in San Juan at 6 a.m. on December 31, 1972. He was the only qualified crew member available, yet did not have the requisite rest between flights. Even though not licensed, Rivera acted as copilot. There was no flight engineer.
Because of a profusion of unqualified operators and the resulting crashes—e.g., the 1970 crash killing 37 members of Wichita State’s football team—the FAA, on September 25, 1972, had ordered that such operators be continuously monitored, that their aircraft be inspected, and that the persons chartering such flights be notified of any dangerous or illegal conditions.
Despite being aware of the flight plan, the reputation of the owner, and the damage to the plane earlier in the month, neither the FAA nor Air Traffic Control inspected the plane or warned the passengers. Indeed, as the plane was taking off, some FAA employees were at a New Year’s Eve party. The overweight plane piloted by an inadequate crew crashed in the Atlantic a mile and a half from the airport when an engine failed, killing all on board. Clemente’s body was never found.
Compounding this shameful misconduct was the loss of a truly great man. Born poor in Puerto Rico, the youngest of seven children, Roberto worked with his father in the sugar cane fields from age 8. When he was 20, Clemente began his major league career, in which he excelled as a superstar right fielder. In his 18 seasons with the Pirates, Clemente was a 15-time All-Star, won the Gold Glove 12 times, led the National League in hitting 4 times, was the National League Most Valuable Player, was the World Series Most Valuable Player, had a lifetime batting average of .317, and had 3,000 hits.
Yet, as fabulous as his stats, he was a better person. A loving husband, devoted father of three boys, Clemente was a man of integrity and charity who lived his faith. As one of the first Latin American players of partial African descent, he overcame discrimination in that Jim Crow era, as well as bigotry from other players and fans. Fiercely proud of being Puerto Rican, he dedicated his life to assisting the poor, particularly the young of his island, by building a sports city where children could learn to be successful.
Trying the Clemente Case
Liability against the owner/operator was overwhelming and obvious. One small issue: no insurance or assets. Instead, the lawsuit, worth millions, named the United States pursuant to the Federal Tort Claims Act (FTCA), claiming the FAA staff ignored its regulations by failing to ground the plane and to alert the passengers that the DC-7 was not airworthy, that it was overweight, and that it did not have the requisite crew. The government’s defense was that the negligence of its personnel was within the “discretionary function” exception to the FTCA. The United States cannot be sued based on the performance of a discretionary function or duty, regardless of whether that discretion had been abused.
In November 1975, partners Chuck Krause and Don Madole, both pilots who flew in the military, tried the nonjury case, as mandated by the FTCA, in San Juan before federal District Judge Juan Torruella. A year later, the judge ruled that the regulation was mandatory—not discretionary—and the government was liable for the deaths of the passengers. Judge Torruella found that the plane was not airworthy, did not have a proper registration number, did not have the proper weight and balance, and did not have a qualified crew. Therefore, the government should have had a ramp inspection, informed the passengers, and prevented the plane from flying. The United States appealed the trial court’s finding to the First Circuit, which has jurisdiction over Puerto Rico.
My first assignment at the firm was to research every FTCA case ever decided by the First Circuit. Just as I knew that no judge in Puerto Rico would toss a case involving the island’s hero, I instinctively knew that asking those frugal New Englanders to allow a multimillion-dollar lawsuit to proceed would be a tough sell. The First Circuit had ruled in favor of dismissal based on the discretionary function exception of every FTCA case with a substantial monetary component. It was then I wished Clemente had played for the Red Sox rather than the Pirates.
After arguing before the First Circuit in Boston, Stu Speiser reported that he was hopeful but not optimistic. As described in his book, Lawsuit (Horizon Press 1980), he knew he was in trouble when the panel’s questions centered on whether affirming the trial court would expand liability and open the floodgates to innumerable actions against the many federal agencies.
The First Circuit unanimously reversed and dismissed the case, holding that the failure to inspect and warn was discretionary and that, therefore, the United States was not liable. The Supreme Court denied certiorari, and a private bill to compensate the Clementes and the other families was introduced in Congress but never enacted. The Clemente family never received a dime.
I believed in law as an ideal—one of majesty and equality. I believed that goodness would prevail; that the First Circuit would scathingly condemn the FAA for its failure to prevent the plane from taking off; that the humanity and sacrifice of Roberto Clemente would be acknowledged. Instead, I learned that these platitudes were empty words. Judges not only apply the law, but also consider its impact on society. Affirming liability would cost the government money. The First Circuit wanted to save that money, wanted to keep those floodgates closed. I also learned that the law was limited—it could not replace Roberto’s charity and passion, assuage the anguish and grief of his wife and children, or build a sports city for poor kids.
In 1973, Roberto Clemente was voted posthumously into the Baseball Hall of Fame, the first player from the Caribbean and from Latin America so enshrined. Each year, Major League Baseball awards the Roberto Clemente Award to the player who “best exemplifies the game of baseball, sportsmanship, community involvement and the individual’s contribution to his team.”