Mr. DONOHUE. I think it was surplus property manufactured by Hercules.

Mr. BURGER. It has often been said in this case but there is not one iota of truth in it. It was manufactured specially to be sent to France for a fertilizer so France would grow food and not be a ready victim for communism.

Mr. FORRESTER. I got this impression that the Government determined to have this fertilizer made to carry on the war effort.

Mr. LIFTIN. It is the same as FOA.

Mr. FORRESTER. That they concluded that food was more necessary than guns.

Mr. LIFTIN. That is right.

Mr. FORRESTER. That they could not bring the food over there in sufficient quantity, that they had to approach it by getting all the people over there to grow what food they could and to that end they gave them the fertilizer.

Mr. LIFTIN. That is right. They could carry in the hold of a ship so much flour and meat but in the hold of that same ship they could carry enough fertilizer to make 50 times that much flour grown right in France.

Mr. FORRESTER. And after the Government determined it was to be done to furnish food to its people.

Mr. LIFTIN. This is, of course, after we were in control of France after the war.

Mr. FORRESTER. After having decided to make that fertilizer then it follows the Government may have decided how they were going to label that fertilizer or the package. If they did make some decision as to how it would be packaged and labeled then, if the subordinates carried out that decision, I am wondering how the Government can be liable even if it were negligent.

Mr. LIFTIN. That is the result of the decision of the Supreme Court. They held it could not be liable. It was being shipped and handled just the way private fertilizer companies would do it.

Mr. MILLER. May I make an observation?

Perhaps it would clarify the reasons for your presence. In my opinion I am a new member of this committee and I know nothing about this except what I have been able to learn in the last few hours after realizing that this meeting was going to be held.

I have no idea that we are sitting here as a disaster relief committee. I know of no jurisdiction under which we could so sit nor of any legal right we would have to appropriate Government money purely on the basis of disaster relief.

Our committee, as I understand, has the jurisdiction to award to claimants certain sums of money where they have no recourse under the law and where no statute exists which permits suits against the Government. But because of the equities of the situation we are permitted in cases where the facts warrant to pass private bills giving relief.

Now, it would, therefore, seem to me that the only basis upon which this committee could report out a bill such as this favorably would be on the basis of the fact that the Supreme Court erred in its interpretation of the intent of Congress in passing the Tort Claims Act. In other words, the Supreme Court took the position, and so did the appellate court.

In the brief time I had to read the decisions, if these things happened in the area of discretion of the Government then the Government was not liable, nor did it waive its immunity under the Tort Claims Act because of the specific exception within the Tort Claims Act.

However, I am inclined to be in accord with the opinion of a judge of the court of appeals who said he felt that was not the intent of Congress; that once you have used your discretion and reached a decision, then certainly the Government would be liable if you were negligent in carrying out the decision reached in the course of your discretion.

If that was the intent of Congress, and there is evidence that the Government was negligent, supposing the Coast Guard says, "This should be labeled 'sugar'" then someone would have to label it. It would be a negligent act on somebody's part in a case such as this if this committee held that the Supreme Court's decision was not based on the original intent of Congress. We could rectify this on the Tort Claims Act, but as far as these people are concerned it is stare decisis. Then we could have a private bill as though the Supreme Court had construed the intent of Congress properly.

Mr. BURGER. If I may say so, Mr. Congressman, and I hope the committee will accept this in a very temperate spirit in which I utter it, if the committee is going to go in that direction, you will open a Pandora's box that will go back to where it was before this accident occurred. I have no position on that.

It would, I assure you, be a Pandora's box if the Congress is going to try to second-guess the courts under the Tort Claims Act and that would be the inevitable consequence of taking cases not covered by the act and then trying to examine them.

I have now litigation down in Florida involving some $30 million against the Government between a Navy plane and a Cuban airline. If what you say is true it might well bring all these litigants up here to retry the case and Congress cannot give it the attention and the time to determine these close questions of fact in a multiple-disaster case. It could not do it in even a simple crossing-accident case. You have much more important work to do than spending a week trying one lawsuit.

I suggested at the outset and, perhaps, I misinterpreted something which came to me from a member of the committee at some time or other, that the approach was not to try what had been tried in the orderly process of the courts which they have already decided. You are not going to do that over.

What you are trying to do-probably in any disaster relief-is to give compassionate relief, taking into account the equities of the individuals there in Texas City who themselves were free from any responsibility. Whoever was responsible we can check off that list. We cannot check off the people who had arms and legs blown off. Another group of people here who have never been litigants are affiliated people. Obviously, the Lion Oil Co. and the French buying commission could not respond in damages in the amount here.

As a lawyer, I have made up my mind that this is why they sued the United States, because it was the entity that could be sued for an amount running into millions of dollars."

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Mr. BOYLE. That surely does not give them any basis for Congress to give substantial relief or for the Judiciary Committee sitting as a court of equity to give these private individuals a pass when they were in fact tort feasors or joint feasors. That is no justification at all.

I think they misconceive their remedy and they surely could have demonstrated under section 14 of the claims subcommittee's rules that they exhausted their administrative and legal remedies before they come in here and ask us to do some justice when the people who were primarily responsible for doing that

How many of these 8,000 claims came under the Compensation Act? Mr. BURGER. I could not answer that. Perhaps Mr. Liftin can. Some of them can. But that issue was never reached in this lawsuit. Bear in mind they picked out a group of test cases and said, "We will just try the liability question and we will not get into damages. We do not have all this information about damages by any means. We never had to get to the damage question. We have some information about it." That would include information as to which of these individuals received workmen's compensation.

Mr. BOYLE. Well, that is for subrogation. But just looking at it on the cold physical facts, when we see a situation such as this, you want to go right back to the first element and see if the producer was negligent and see if the shippers or handlers were negligent. If any one of these three were negligent they should have been made a respondent in damages.

Mr. LIFTIN. As a practical matter they probably could not pay out a hundred to two hundred million dollars. As a practical matter all of them put together would not have that much money unless you could get the French Government into the act.

Mr. LANE. In order to help Mr. Boyle I might place in the record the Department of the Army report sent up to us on May 10. By the way, they are opposed to this bill.

(The report of the Department of the Army is as follows:)

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

DEPARTMENT OF THE ARMY, Washington, D. C., May 10, 1955.

House of Representatives.

DEAR MR. CHAIRMAN: Reference is made to your letter inclosing a copy of H. R. 4045, 84th Congress, a bill to provide for settlement of claims for damages resulting from the disaster which occurred at Texas City, Tex., on April 16 and 17, 1947, and requesting a report on the merits of the bill.

The Department of the Army is opposed to the above-mentioned bill.

This bill provides as follows:

"That this Act may be cited as the "Texas City Claims Act'.

"SEC. 2. (a) There is hereby established a commission to be known as the Texas City Claims Commission (referred to in this Act as the 'Commission'), which shall be composed of three members to be appointed by the President. The President shall designate the member of the Commission who shall be chairman thereof.

"(b) Two members of the Commission shall constitute a quorum.

"(c) The members of the Commission shall each receive $50 per diem when engaged in the actual performance of duties vested in the Commission, plus reimbursement for travel, subsistence, and other expenses incurred by them in the performance of such duties.

"(d) The Commission shall have the power, without regard to the provisions of the civil-service laws and the Classification Act of 1949, as amended, to appoint and fix the compensation of such personnel as it deems necessary for the purposes of the performance of its duties, and the appropriations therefor are hereby authorized.

"(e) Service of an individual as a member of the Commission or employment of an individual by the Commission shall not be considered to be service or employment bringing such individual within the provisions of sections 281, 283, 284, 434, or 1914 of title 18 of the United States Code, or section 190 of the Revised Statutes (5 U. S. C. 99).

"SEC. 3. (a) The Commission shall receive, investigate, and allow claims against the United States for damages sustained by individuals, firms, companies, associations, and corporations as a result of the disaster at Texas City, Texas, on April 16 and 17, 1947. The Commission shall limit itself to the determination of (1) the amount to be allowed and paid pursuant to this Act, and (2) the individuals, firms, companies, associations, and corporations entitled to receive the same.

"(b) Prior to the expiration of sixty days after the date on which two of its members shall have been appointed and have taken office, the Commission shall promulgate and publish rules of procedure for handling the claims to which this section applies. It shall determine and fix damages, if any, in the case of each claim within twelve months from the date on which the claim was submitted. "(c) No claim shall be allowed unless, prior to the expiration of one hundred and eighty days after the date on which two members of the Commission shall have been appointed and have taken office, the claimant submits such claim in writing in accordance with rules prescribed by the Commission.

"(d) No claim shall be approved for payment under this Act unless it shall appear to the satisfaction of the Commission that such claim was a part of a civil action filed against the United States in a United States district court prior to April 25, 1950; except that the Commission, for good cause shown, may waive the limitation date of April 25, 1950, where it is shown that the claimant, because of infancy, insanity, or other reason, was unable to bring such civil action. "(e) Except as otherwise provided in this Act, in carrying out its provisions the Commission shall be governed by the law of the State of Texas.

“(f) Claims for damages based on death may be submitted only by persons, or their legal representatives, authorized to sue for wrongful death under the revised statutes of the State of Texas.

"SEC. 4. (a) The Secretary of the Treasury shall pay, out of moneys in the Treasury not otherwise appropriated, in full settlement, the claims referred to in this Act in the amounts approved for payment by the Commission.

"(b) Any payment made under subsection (a) shall be in full settlement and discharge of all claims against the Government of the United States.

"(c) Before paying any claim allowed by the Commission, the Secretary of the Treasury shall require of and receive from the claimant an assignment to the United States, to the extent of the payment to be made by the Secretary, of any right of action arising out of the Texas City disaster which such claimant may have against a third party.

"SEC. 5. No attorney or agent shall receive, on account of services rendered in connection with any claim allowed under this Act, in excess of 15 per centum of the amount paid under this Act, any contract to the contrary notwithstanding. Whoever violates this section shall be fined not to exceed $5,000.

"SEC. 6. The Commission, twenty-four months after the date of enactment of this Act, shall transmit to the Congress a report containing

"(a) a statement of each claim submitted in accordance with this Act which has not been settled by it, with supporting papers and a report of its findings of facts and recommendations; and

"(b) a report of each claim settled and paid pursuant to this Act, which report shall include a brief statement concerning the character and justice of the claim, the amount claimed, and the amount approved and paid. "SEC. 7. At the close of the sixtieth day after the date on which its report is submitted to the Congress pursuant to section 6, the Commission shall cease to exist."

This proposed legislation, if enacted, would create a precedent for private relief legislation of general application to a disaster area, authorizing compensation to all affected parties, including subrogated insurance companies, for their losses, even though the Supreme Court of the United States has held that the acts complained of on the part of our Government relating to this disaster, came within an exception to the waiver of sovereign immunity as contained in the Federal Tort Claims Act. This legislation would waive that immunity for claims based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused.

Such a

broad extension of the boundaries of tort liability of our Government, to encompass acts of a governmental nature or function, causes this Department to strongly urge that this proposed legislation be not favorably considered by the Congress. Such an extension poses problems of far-reaching effect and should only be considered by the Congress, if at all, in the form of appropriate general legislation amending the Federal Tort Claims Act.

This bill would also bestow upon the individuals, corporations, subrogated insurance companies, etc., that would be placed in a position of being able to recover, a finding of fact that agents and employees of the United States were negligent in the exercise of discretionary functions in connection with their conduct of governmental affairs relating to the fertilizer involved, and that such negligence was the sole proximate cause of the disaster. Such a finding of fact has not and could not ever be tested by the judicial branch of the Government. Such a finding of fact would completely ignore the fact that the fire (which could have been controlled by proper fire-fighting technique) was combated in a negligent manner pursuant to orders issued by the master of the Grandcamp, and would also ignore the fact that the master of the Highflyer (owned by Lykes Bros., which company has alleged its damage to be $2,640,000) ordered the crew to abandon ship about 1 hour after the Grandcamp exploded and before any fire existed in the Highflyer. The Highflyer did not explode until the following day. The magnitude of this manmade disaster, in itself, is sufficient reason to bring into play the checks and balances of our three branches of Government and thereby assure that the responsibilities of the parties involved be determined by the judicial process.

In view of the lengthy and complicated factual situation surrounding the Texas City disaster, a complete discussion of the facts does not appear to be appropriate or necessary at this time. The Department of the Army transmitted a 26 page report on June 8, 1954, to the Honorable Chauncey W. Reed, chairman, Committee on the Judiciary, House of Representatives, on H. R. 8572, 83d Congress, a bill to provide a method for compensating claims for damages sustained as the result of the explosions at Texas City, Tex., which was a bill similar in nature to the present bill, H. R. 4045. The report of this Department goes into every phase of this disaster and is set forth in full on pages 56 to 70, inclusive, of the report of the Committee on the Judiciary, House of Representatives, to accompany H. R. 9785, 83d Congress, a bill to provide a method for compensating claims for damages sustained as the result of the explosions at Texas City, Tex. (H. Rept. No. 2024, 83d Cong., 2d sess. (1954)). Although H. R. 4045 does not contain the limitations which were present in previous bills, as to amounts payable to subrogated insurance companies, or for wrongful death, the purpose of H. R. 4045 is the same, viz: to provide a method whereby the United States may assume liability for these explosions. This issue of liability has been consistently contested by the Attorney General and by this Department while the matter was pending in the courts, and also while the matter was pending in the 83d Congress.

The Attorney General has stated—

"In view of the absence of negligence and the fact, recognized by the Supreme Court, that the material was in possession and control of private persons from a long time before the fire and explosion occurred, it is submitted that suit was brought against the United States because of the magnitude of the disaster and the ability of the United States to pay for it, rather than upon conventional theories of tort liability." (H. Rept. No. 2024, 83d Cong., 2d sess., p. 38 (1954)). This Department has stated-

"No legal or equitable basis can be found to support the position that the Government is responsible, or should assume responsibility for the explosions at Texas City" (H. Rept. No. 2024, 83d Cong., 2d sess., p. 70 (1954)).

The Committee on the Judiciary, House of Representatives, 83d Congress, in their report to accompany H. R. 9785, recommended that this issue of fact be resolved in favor of the claimants and concluded that

“The particular fertilizer which blew up at Texas City was part of a project through which the United States Government was seeking to carry out a program of foreign aid to various famine-stricken and war-ravaged areas overseas. It resulted in a benefit to the United States as a whole in that it prevented unrest and disorders which would have resulted from hunger and mass starvation. As noted in the court of appeals' opinion, such disorders would have required, in 1947, the maintenance of additional military forces in occupied areas (197 F. 2d 777). Without it some of our allies, like France, may have been lost to communism. Since the fertilizer program was taken by the Government for humani