(Statement of limitation of damages for death follows:) STATEMENT IN CONNECTION WITH THE LIMITATION OF DAMAGES FOR DEATH IN THE PROPOSED BILL TO PROVIDE A METHOD FOR COMPENSATING CLAIMS FOR DAMAGES SUSTAINED AS A RESULT OF THE EXPLOSIONS IN TEXAS CITY, TEX., APRIL 16-17, 1947 A bill has been introduced into the House of Representatives and the Senate of the United States which provides a method for compensating claims for damages sustained as the result of the explosions at Texas City, Tex., on April 16 and 17, 1947. The circumstances surrounding these explosions were thoroughly investigated by a subcommittee (Hon. Edgar A. Jonas, Hon. DeWitt S. Hyde, and Hon. Thomas J. Lane) of the Committee on the Judiciary, and as a result thereof the Committee on the Judiciary has expressed the opinion that the Government was wholly responsible for the explosions and has recommended that the Congress of the United States take appropriate action to compensate claims for damages arising out of these explosions. As attorneys for a number of claimants in these explosion cases, we wish to make it known that we are grateful for the consideration that has been shown to the people who suffered because of the events of Texas City. We are sure that in no other country would men high in the government of a nation unselfishly take the time to look out for the interests of its individual citizens. However, as representatives of a number of people who have death claims in this matter, we would oppose the placing of an arbitrary limitation on death claims. At the root of this limitation is undoubtedly the recovery limitations placed on death actions in some of our State statutes. Since no limitation is proposed to be placed on personal injury and property damage claims, the limitation on death claims could not be merely for the purpose of saving money.. Before this limitation is passed, we feel that the history of this type of limitation should be brought forward and the present status of the State and Federal laws on the subject should be made known. In the first place, there need be no fear that if an arbitrary limitation is not put on the death claims, there will be an unlimited recovery allowed. In the Texas death statutes, as in most death statutes, there is a practical limitation in the measure of damages, which is in effect, the value of decedent's life to the beneficiaries (Houston & T. C. R. Co. v. Johnson, 27 C. A. 420, 66 S. W. 72). At 33 Texas Jurist 133 it is said in speaking of the Texas wrongful-death statute: "The settled construction of the statute is, however, that the recovery is to be limited to actual damages-to damages purely pecuniary and compensatory. In other words, just as when the plaintiff sues for injuries suffered by himself, the measure is the pecuniary loss sustained by the death * * *” In Dalehite v. The United States, the test case in the Federal courts, the total recovery was $75,000. The recovery in this case would be one of the highest, if not the highest, of any of the death cases arising out of the Texas City disaster. Captain Dalehite was a businessman whom the Federal judge found to be earning between $10,000 and $12,000 a year. The large majority of the deaths caused in the Texas City explosions were among longshoremen and other laborers, whose average yearly wages would probably not exceed $3,000 per year. In other words, based on earning capacity, although that is not the only factor in determining damages in an ordinary death case, the large majority of the recoveries, if damages were allowed on the basis used in an ordinary death action arising in Texas, would be one-third or one-fourth of the recovery which was allowed in the Dalehite case. As stated, the above Texas law on measure of damages in death cases is the fairer method than to arbitrarily limit the recovery in every death case to a certain amount. To illustrate, in the case of a wrongful death of a 30-year-old college graduate, a chemical engineer, with a wife and 2 minor children, earning $7,500 a year, the pecuniary loss is much greater than that where a 60-year-old laborer with no education, no wife, or minor children. The number of death cases of this last description will far exceed and offset those of the former. Therefore, we do not think there is any need to fear that the amounts which will be recovered will get all out of hand if some arbitrary limitation is not placed on them. The claimants would have to prove their monetary loss to recover any damages if the damages were allowed to be fixed under the Texas wrongful-death statute. Although it is true that some State death statutes have limitations on the amount recoverable, the number of States with such limitations is comparatively " small. Only 14 States now have such limitations. The other 34 States and the District of Columbia have no limitations on their wrongful-death statutes. Only 3 of the 14 States with limitations have a limitation as low as $10,000. West Virginia, Maine, and Colorado each have a limitation of $10,000. The limitations in the other 11 States range between $15,000 and $25,000. The recent trend has been to either raise the maximum limitations in the death statutes or to remove them altogether. In Illinois the maximum limitation has been repeatedly raised to its present limitation of $20,000. When first passed in 1853 the limitation in the statute was a $5,000 limitation. In 1903 the limitation was raised to $10,000, and in 1947 it was increased to $15,000. The latest amendment raising it to $20,000 was passed in 1951 (Smith Hurd Illinois Annotated Statutes, ch. 70, sec. 2). In Minnesota the wrongful-death statute was first passed in 1858, with a $5,000 maximum limitation. This was raised to $7,500 in 1911, to $10,000 in 1935, and to $17,500 in 1951, the present limitation (Minnesota Statutes Annotated, vol. 37, sec. 573.02). In Virginia an amendment passed in 1952 raised the maximum limitation in its wrongful-death statute to $25,000 (Code of Virginia, sec. 8-635, 636, 638, 641). In the Connecticut wrongful-death statute there was a maximum limitation of $20,000 up until 1951, at which time the limitation was removed altogether (1953 Supp. to Connecticut General Statutes, p. 1010, sec. 2428 C). In New Mexico, the wrongful-death statute was originally enacted in 1882, with a $5,000 limitation. This limitation was removed in 1891 and there is no limitation now (New Mexico Statutes, 1941, Annotated, vol. 2, ch. 24, sec. 103). The Congress of the United States has itself seen fit to follow this trend in recent years. In neither the Federal Tort Claims Act (U. S. C. A., title 28, sec. 2674) nor in the Federal Employers Liability Act (U. S. C. A., title 45, secs. 51-60; Divine v. Chicago R. Co., 107 NE. 595, 206 Ill. 248, affirmed 36 S. Ct. 27, 239 U. S. 52, 60 L. Ed. 140) has any restriction been placed on the damages recoverable for wrongful death. In the wrongful-death statute of the District of Columbia passed in 1901 there was a $10,000 limitation until 1948. In that year the limitation was removed, and there is at present no limitation in the District of Columbia wrongful-death statute (act of June 19, 1948, 62 Stat. 487, ch. 507, sec. 1). At common law there was no basis for an action for wrongful death. This was because an action for injuries did not survive the decedent. This was everywhere recognized to be an injustice and all 48 States and the District of Columbia now have wrongful-death statutes. At the time the early wrongfuldeath statutes were passed, it was thought that the difficulty of measuring the damages arising from wrongful death, the possibility of extreme awards by juries required an arbitrary limit to be placed on the amount of damages recoverable in an action for wrongful death (16 American Jurist 123, sec. 184). Also, since there had been no recovery allowed before, the legislature did not consider it unjust to place an arbitrary limit on the damages recoverable. However, as courts became more experienced with handling wrongful death actions it was seen that the damages could be measured as well in a wrongful death action by means of the earning capacity of the decendent, contributions to beneficiaries, and the increased use of actuarial tables to determine life expectancy, as in a personal injury suit. Therefore, under the more recent enactment, no maximum limitations were placed on the amount of damages recoverable (16 American Jurist 124, sec. 184). At the time many of the early wrongful-death statutes were passed the value of the dollar was much greater than it is at present. The wrongful-death statutes in the States which now have a $10,000 maximum limitation-Colorado, Maine, and West Virginia-were passed in 1877, 1891, and 1863, respectively. We all know that the dollar has decreased in value considerably since the dates when these statutes were enacted. However, to show just how much the dollar has decreased in value we are attaching charts to this statement. From these charts it can be seen that in 1877 the dollar was worth about 3 times its value in 1949, and was worth about 31⁄2 times its value at the present time. If the maximum recovery in the death statutes were increased commensurate with the decrease in the value of the dollar, there would be no statutes with a $10,000 limitation. Therefore it is readily seen that based on the decrease in dollar value alone, a maximum limitation of $10,000 in statute is too low, even considered through the eyes of the framers of the early wrongful-death statutes with their lack of experience in measuring damages caused by death. If a recovery in a death action of $75,000 (the damages set in the Dalehite case) were allowed today, that would be equal to a recovery of only about $21,500 in 1877. A $5,000 limitation in 1877 should be at least a $17,500 limitation now, and a $10,000 limitation in 1877 should be at least a $35,000 limitation now. Even those States which have limitation on the amounts recoverable for wrongful death will usually allow an action under another wrongful death statute with a different limitation or no limitation at all to be enforced in its courts where the death occurred in the other State. It is not against public policy of these States to allow such recoveries (Annotation, 15 A. L. R. 2d 762, sec. 2). In Texas, where the deaths occurred, there is no arbitrary limitation on the amount recoverable in a wrongful death action, the only limitation being that some pecuniary loss must be shown (Vernon's Texas Civil Statutes, art. 4677). Therefore, if these claims were being brought against a private person upon whom process could only be served in Illinois, Illinois courts would enforce the wrongful death actions for the full loss that could be shown to have been sustained under the Texas statute (Hanna v. Grand Trunk R. Co., 41 Ill. App. 116). So also with the courts of Minnesota (Powell v. Great Northern R. Co., 102 Minn. 448, 113 N. W. 1017), or the courts of any of the other States who have a maximum limitation in their wrongful death statutes. CONCLUSION In conclusion let us point out the following: If the purpose of a proposed limitation is to save money, it would seem the only fair thing to do would be to place a maximum limitation on all claims, including personal injury and property damage, so that the people with death claims would not have to bear all of the saving. If the reason for a limitation is that some of the States have limitations in their wrongful death statutes, it should be remembered that it is only a small minority of States that have such limitation. And in addition, in the laws that the Congress of the United States has itself passed, the Federal Tort Claims Act, the Federal Employers' Liability Act, and the wrongful death statute of the District of Columbia, there has been no maximum limitation placed upon wrongful death actions. If the reason for a limitation is the fear that damages for wrongful death cannot be easily measured, it should be pointed out that such damages can be ascertained with much more certainty than can the damages for an immeasurable quantity like pain and suffering. We respectfully submit that the measure of damages which prevails in ordinary death cases under existing Federal statutes and the large majority of State statutes, including Texas, furnishes a realistic limitation and that no arbitrary limitation should be provided in the Texas City Disaster cases. In the alternative, if damages in death cases are to be arbitrarily limited, then under present economic conditions the limit prevailing in Virginia, i. e., $25,000 would be more appropriate. Judge MARKWELL. The Department of Justice, through its representatives, has stated that FGAN in paper bags does not present any extra hazardous condition. I have here a report prepared by the Research Engineering Institute, Arthur D. Little, Inc., prepared at the request of the Coast Guard. The letter is addressed to the Commandant of the United States Coast Guard. This shows the finding of this research laboratory as to the chemical properties of FGAN and it will be noted that the findings of the research laboratory are exactly the findings of the United States district court in the trial of the Dalehite case and are in accord with the contentions that the plaintiffs advanced in this case from the very beginning. I have taken extracts from it. (Report referred to is as follows:) Extracts from "Report on an Investigation of the Properties and Hazards of Ammonium Nitrate and High-Percentage Ammonium Nitrate Fertilizers." Contract No. Teg-38528 (CG-20, 003-A) C-58398 To Commandant, United States Coast Guard Headquarters. And the report COMMANDANT, UNITED STATES COAST GUARD HEADQUARTERS, Contract No. Teg-38528 (CG-20, 003–A) DEAR SIR: Herewith is submitted the final report covering an investigation of the properties and hazards of ammonium nitrate and high-percentage ammonium nitrate fertilizers. This report deals with the scientific basis for explaining the properties and behavior of ammonium nitrate and its common high-percentage fertilizers over the temperature range from ambient to that of fire, of deflagration and of detonation. The problems of spontaneous heating, of temperature limiting, and of detonation are dealt with both experimentally and theoretically. New, heretofore, unknown, or at least unapplied data about ammonium nitrate which influence its behavior are fully explained and the importance of these discoveries is delineated. Suggestions are made for the classification of ammonium nitrate materials for marine shipment in hold-size cargoes. This report completes the work of Arthur D. Little, Inc., for the United States Coast Guard on contract Teg-38528 (CG-20, 003-A). Respectfully submitted. Corrected. C-3 ARTHUR D. LITTLE, INC. FGAN in paper bags in cargo-size lots during a fire has thermally exploded and is, therefore, unusually hazardous. C-5 (1) FGAN should be considered as a hazardous article and treated like an insensitive explosive. I-2 In summary, ammonium nitrate and ammonium nitrate fertilizer in any of its high percentage forms can only be heated to a sufficiently high temperature to explode if substantial pressure is applied, either by confinement in a bomb, or by confinement within a poorly vented volume where the product gases are accumulating faster than they can escape. Under these conditions, in a pile of sufficient size, the self-heating from decomposition and the heating from oxidation may become unlimited, and thermal explosion or detonation becomes inevitable. II-41 Detonation: While thermal explosion has been briefly described on the basis of straightforward chemical kinetics, the process of detonation is more complicated and remote; and yet, without doubt, the disaster at Texas City came about by the spontaneous development of the FGAN into detonation. II-46 Since initiation could be by any of several means we, therefore, start with a small portion of the AN near 300° C. FGAN would readily self-heat to flame because of the added effect of the wax. II-47 Wax, paper and dunnage: The fuels contribute in several ways to the extent of the fire. The wax of FGAN accelerates the initial self-heating and the propellant burning. The paper bags of "any AN product contribute their appreciable exothermy in brief surging intervals. That is from the Government files. Mr. FORRESTER. Did I understand you to say that that stuff could not be shipped; that if the bags were piled bag on bag an explosion would be inevitable? Mr. MARKWELL. The finding is: Under these conditions, in a pile of sufficient size, the self-heating from decomposition and the heating from oxidation may become unlimited, and thermal explosion or detonation becomes inevitable. You have to have sufficient size the quantity and you have to have it confined. That is why it does not explode in a boxcar because you do not have sufficient mass. Mr. FORRESTER. Do you know whether that is the only shipment that they attempted to make in that size? Mr. MARKWELL. I imagine there were other shipments, whether with the same quantity I do not know. We do know that after the explosion at Texas City some of this same FAGN was shipped out of Baltimore and it blew up in Brest, France. That was part of the same shipment. Ammonium nitrate has been shipped but there has been a confusion of ordinary ammonium nitrate with FGAN. The condition of this product created this bad condition and the Government knew it. There was a statement that Du Pont had been making this same material but they ceased manufacturing it and they read a letter telling the Government they were doing so because of the inherent danger. Mr. LANE. It will be admitted in the report. Mr. MARKWELL. Addressing myself to one other matter. Presupposing some type of bill is passed, as to the forum to fix the damages, there was some discussion and the Department of Justice has expressed some opposition to the use of the district courts in the Southern District of Texas. I must state that it comes to me as a very strange position for the Department to indirectly accuse the Federal courts of partiality. The Federal courts' primary jurisdiction is to determine controversy between citizens of different States and a citizen of one State and his own Government. That is the constitutional provision constituting the Federal courts. If you do not believe they do not prefer the Federal courts, try to get it into the State courts and they will run to the Federal court like a rabbit on a claims-basis jurisdiction in the Federal District Court in Texas in the Southern District of Texas. That one Supreme Court judge had he been of a different opinion, the case would be in the Federal court in the Southern District of Texas today having the damages set in this proceeding. We have four district judges who are available. In a case of this size they would undoubtedly appoint commissioners to assist. I have discussed the matter-Mr. Bryan and myself—and they state they are not looking for business but if Congress wishes to do that they would undertake it. |