concurring in part and dissenting in part:
I fully concur in Parts I and II of Judge Thornberry’s thorough and well-reasoned opinion. I am unable to concur, however, in the application of the doctrine of res ipsa loquitur made in Part III, and hence would not reach the matters discussed thereafter. In this circuit, the doctrine of res ipsa loquitur applies in an airplane crash ease only if a preponderance of the evidence shows that the particular accident in question would ordinarily not have occurred in the absence of defendant’s negligence.1 But the opinion would approve application of the doctrine here by overruling longstanding Fifth Circuit law on the ground that airplane crashes no longer “ordinarily occur” without negligence. Supra, 545 F.2d at p. 430. If Part III of the opinion really intends this, and if the pronouncement be taken at face value, a sudden and massive shift in our circuit’s airplane-crash liability law would occur. Henceforth, as examples, when an aircraft in apparently good working condition vanishes during an over-water flight, or a fishing boat disappears in calm weather without radio transmission or significant wreckage, its operator will be liable.
The opinion of the court below attempts no factfindings about whether at the present time airplane accidents in general ordinarily occur without negligence; moreover, the record contains nothing approaching the comprehensive evidence of a general nature sufficient to support such a conclusion. If the trial court had meant to make such findings on the basis of the discrete evidence in this particular case, they would rest on an evidentiary basis no sounder — and be no more appropriate— *438than a finding that all red-headed men are bank robbers derived from evidence that John Smith, a red-headed man, robbed a bank. And if we are finding such facts on disputed evidence, as we should not be, our finding is precisely as groundless when based, as it is, on the same record. If, on the other hand, we are announcing law, we are equally wrong to do so and for at least two reasons.
First, as a matter of common sense, it is plain that not all mistakes in judgment are negligent ones. General experience teaches that Hobson’s choices arise in all activities subject to the elements, so that the pilot of a properly-functioning aircraft may take the path that leads to death or injury for himself and his passengers without carelessness. As Judge Tuttle once warned:
It is not true that [an airplane] crashes only if the pilot is negligent. Such crashes may be attributable to many things, such as structural defects, conditions of weather, excusable error in pilot judgment falling far short of pilot negligence, and the like.
United States v. Johnson, 288 F.2d 40, 46-47 (5th Cir. 1961) (dissenting opinion) (emphasis in original).
Second, on the procedural side, nothing is more firmly established in this circuit than the principle that decisions by a panel of our court are to be overturned only by the Supreme Court or by the court sitting en banc, not by a later panel. Under LeTourneau, as Judge Thornberry’s opinion avows (Part III, preamble), res ipsa is not presumptively or generally applicable in our circuit to accidents of this nature. And if the conditions of air travel have so improved in the time since LeTourneau as to make it so applicable, it is the en banc court that must say so.
Doubtless the res ipsa doctrine will apply in a proper case where specific findings ruling out non-negligent causes can be and have been made on sufficient evidence. This is no such case. As noted, no evidence supports even a general finding that this particular accident would not ordinarily have occurred without negligence. To be sure, the trial judge ostensibly made such a finding, Higginbotham v. Mobil Oil Corp., 357 F.Supp. 1164, 1174 (W.D.La.1973), but he also found the evidence so insufficient that no probable cause of the accident could be determined. Id. at 1172. And four pages of discussion were necessary for him to dispose, in the face of highly conflicting expert testimony, of the structural failure theory, which was rejected at least in part because “very little (absolutely none of the main power and control units or instrument panel, no flight plan, no communication, no performance record, taped or otherwise) of the aircraft remained and was available for analysis.” Id. at 1167-68. In other words, there was not enough left of the craft to form a reliable basis for ruling in or out structural failure as a cause of the crash. In short, countless possibilities could explain the tragedy in this case, and to allow an inference of fault here is to tolerate blind speculation.
Even if res ipsa were appropriate, the lower court applied the wrong standard of proof. As the majority opinion points out, an inference that a defendant was negligent is permitted only when the likelihood of all other possible causes is sufficiently low that the factfinder reasonably concludes from a preponderance of the evidence that defendant must have been negligent. Here the finder of fact applied res ipsa after finding only that the evidence as a whole “afford[ed] a reasonable inference of fault.” 357 F.Supp. at 1174. The fact-finder may reasonably discern several possible explanations, but only a single most probable one.
Thus, the lower court adopted the wrong standard in applying an inappropriate doctrine. I would reverse on the res ipsa loquitur issue. Since this is not to be, however, I concur in Judge Thornberry’s disposition of the damages questions discussed in Part V of the majority opinion.
. Compare Morrison v. LeTourneau Co., 138 F.2d 339, 341 (5th Cir. 1943) (“The doctrine cannot apply in cases of this sort, because there is no showing that accidents of this very nature cannot happen [without negligence].”) (emphasis added), with Williams v. United States, 218 F.2d 473, 476 (5th Cir. 1955) (per curiam) (“[E]ach case seeking to invoke this doctrine must stand or fall upon its own facts.”), and United States v. Johnson, 288 F.2d 40, 45 (5th Cir. 1961) (“[P]laintiffs had produced enough evidence to show that [ordinarily] these accidents would not have occurred if [defendants had been diligent].”).