tarian purposes, among others, it seems only right that it should reimburse, insofar as it is humanly possible, the comparatively few people who happened to be injured or damaged because of it" (H. Rept. 2024, 83d Cong., 2d sess., p. 9 (1954)). It should not be overlooked that in the actions instituted against the United States, seeking damages in excess of $200 million under the provisions of the Federal Tort Claims Act, 6 of some 8,500 plaintiffs sued for approximately 36 percent of the total amount involved in that litigation as follows: 1. Monsanto Chemical Co--- 2. Texas City Terminal Railway Co- 3. Republic Oil Refining Co.- 4 Hutchings, trustee, and Lykes Bros. Steamship Co., Inc.. Total $50, 000, 000 12, 000, 000 5, 500, 000 2, 640, 000 1,500,000 1,250,000 72, 890, 0000 According to representatives of insurance companies, subrogated insurance companies have paid out to all claimants $41,200,000, which amounts to 24 percent of the total amount claimed by all claimants (H. Rept. No. 2024, 83d Cong., 2d sess., p. 7 (1954)). No information is available to this Department showing how much, if any, of the loss by the six plaintiffs listed above, was covered by insurance. For reasons not apparent to this Department section 2e of this proposed legislation would exempt individuals serving as members of the Commission or employed by it from the provisions of various sections of Title 18: Criminal Code and Criminal Procedure, United States Code, as follows: "Section 281. Compensation to Members of Congress, officers, and others in matters affecting the Government. "Section 283. Officers or employees interested in claims against the Government. "Section 284. Disqualification of former officers and employees in matters connected with former duties. "Section 434. Interested persons acting as Government agents. * "Section 1914. Salary of Government officials and employees payable only by United States. and would also exempt the above individuals from the provisions of one section of Title 5: Executive Departments-Officers-Employees, United States Code, as follows: "Section 99. Ex-officers or employees not to prosecute claims in departments. This proposed legislation, if enacted, would— (1) vastly enlarge the scope of tort liability of our Government; (2) accomplish such enlargement by private legislation and thereby engulf the Congress with a flood of claims for private relief alleging damages resulting from governmental acts or functions; (3) label the Government as solely responsible for the disaster; (4) completely ignore the fact that a disaster such as this is likely to occur at any time improper fire-fighting techniques are used in any industrial area; (5) authorize subrogated insurance companies to be reimbursed for the expense of satisfying their contractual obligations entered into at a time when it was as clear as it is now that our Government has retained its sovereign immunity for governmental acts or functions; (6) authorize millions of dollars as attorneys' fees, even though such authorization is an exception to the normal policy of the Congress; and (7) create a most unusual Commission to accomplish this purpose. For all of the foregoing reasons, the Department of the Army strongly recommends that this bill be not favorably considered by the Congress. The fiscal effect of this proposed legislation cannot be accurately determined, but it has been estimated that the cost of the bill, including the expenses of maintaining the Commission, would be $200,500,000. This report has been coordinated within the Department of Defense in accordance with the procedures prescribed by the Secretary of Defense. The Bureau of the Budget advises that there is no objection to the submission of this report. Sincerely yours, ROBERT T. STEVENS, Secretary of the Army. Mr. LIFTIN. That, Mr. Chairman, is one of the points I was going to come to in my discussion about the substance of this bill and the tremendous sweep of it. Mr. MILLER. In this case then it would mean that the Government would be reimbursing some people who may have been negligent. Mr. LIFTIN. But something even more important than that, Mr. Chairman. There could be paid out under this bill over $40 million to insurance companies who have paid out claims of the kind mentioned and who over the period of time had taken premiums and were in the business of taking that business. Our position was based primarily on the fact that we in the Justice Department entrusted with defending the Government's economic interests in this kind of an area see no occasion for reimbursing insurance companies for forty-odd million dollars for losses they incurred in the process of their normal business of taking risks. They say they never take this into account. It is the business of insurance companies to take such things into account. In addition to that, there would be a good many millions of dollars to which industrial enterprises who are making a claim for reimbursement over and above the amount of insurance they have already recovered. These companies are saying to you, "We did not carry enough insurance on our plant and when the plant was leveled off to the ground we lost $50 million so we want you to reimburse us because we did not carry enough insurance. That is an unfortunate circumstances, of course, but it does not seem to us that it is within the reach of the ordinary intent of Congress in dealing with private relief bills. Mr. LANE. Right there, Mr. Deputy Attorney General, under the provision of this bill this Commission, as set up, isn't it a fact that they would take into consideration all these matters you are talking about? Mr. BURGER. I don't think they come under this bill. I don't think this bill is designed to take into consideration Mr. LANE. I mean the amount of money involved when you say they did not carry enough insurance? Mr. BURGER. There is nothing in this bill to prevent the Commission from giving the Monsanto their $50 million. Mr. LANE. On the other hand, don't you think the Commission to be set up by the President would give the amount to the Monsanto Chemical Co. which is only a guess. Don't you think that you in the Department of Justice would be guided by the amounts they would suggest? Mr. BURGER. Well, the committee if they thought that was not the real figure would cut it down to what the company really lost. That might be 40 or 50 million dollars. From where we sit we do not think they should get 5 cents. If they did not carry enough insurance that is not the responsibility of the Congress. Mr. BOYLE. Under this bill we would be actually-and I use the word editorially-we would be actually subsidizing the insurance of the shippers or handlers in this case. That is argumentatively correct. So, their own negligence is going to be the reason and a basis for them recovering money. That is abhorrent. You cannot conceive of a person's own negligence as a basis on which he is to get money. It may be a reductio ad absurdum. Mr. DONOHUE. When this ammonium nitrate blew up and ruined their property they did not have any way of participating in the manufacture or loading. Mr. LANE. This explosion was such that automobiles traveling for miles away were blown off the street. Houses were blown off. Mr. BURGER. There is no question of the devastating effect of the explosion. Mr. DONOHUE. So that the claimants did not participate in this entire matter of manufacture or loading? Mr. BURGER. Most of the claimants did not participate. That is correct. You have the Texas City Terminal Railway. That would be what the gentleman had in mind when I suggested that some of the large amounts here would go back to people who themselves had a responsibility. Mr. BOYLE. Is that a $12 million claim? Mr. BURGER. Yes. And here is another claim for $2,600,000; South Port Terminal. Some of them were as free from negligence as the man walking on the street. That is why we put the emphasis on these other two factors: First: The insurance companies have no equitable claim. They are in the risk-taking business and are paid to give you the money in the ordinary course of the risk-taking business. Second: These large industrial enterprises-assuming it is true their loss was greater than the insurance they carried. They are, in effect, saying, we did not carry enough insurance and we want you to underwrite it. In the Senate where we had a rather extensive hearing we pointed out that the Department of Justice, while we could not approve and do not approve, and you do not ask us to approve, but we would not raise objection to a bill which had proper limits to take care of the people who suffered personal injury; the small householder and the other little people who got hurt. That was in the oral discussions between the last session and this. We assumed that was the kind of bill that might be presented; a bill with a ceiling of $10,000 or $20,000 for any claimant for a death or injury or having his house blown down or his little filling station blown down. But above and beyond that there was no occasion to reach them. Mr. LANE. Right there, Mr. Burger, when your assistants have opportunity, will they present a bill along those lines to this committee? Mr. BURGER. Subject to the general proposition, Mr. Chairman, and I say this only as a matter of policy; we do not ordinarily draft bills. But I think we would be willing to work with your staff in making suggestions on a bill they might draft. Mr. LANE. Just before you go on, Mr. Usher Burdick has a few questions. Mr. BURDICK. This litigation has been going on for some time. Mr. BURDICK. Has it ever been determined what the proximate cause of this explosion was? Mr. BURGER. It has not. Mr. BURDICK. Why? Mr. BURGER. Well, the litigants in this case elected to go up on a relatively narrow question and as against only one person; suing the United States as a person. What you are trying out might have been accomplished by a suit brought against the United States and all the other people: The Lykes Bros., Lion Oil Co., the Terminal Co. The French have had to get jurisdiction. If all these parties had been before the court and the cause of action had been predicated on the negligence of somebody as you normally do in a negligence case that issue might have been decided. But these litigants decided to sue only the United States Government and let these people out. Then, by narrowing that they had either to prove negligence in the United States and they could not do that. So it was not in their interest to bring in evidence of any other litigant except the United States. Mr. BURDICK. It is well established that there was an explosion. The first thing to do was for this Government to oil its machinery and use the courts to find out what caused that explosion. Mr. BURGER. The courts have gone through the process of determining whether the United States Mr. BURDICK. They said they were not concerned about them. Mr. BURGER. Some of the judges did-just in limited concurring opinions. But that is not the sweep of the whole Nation. The courts said at times, we do not have to reach the question of whether the United States Government was actually negligent. But they also said—at least 3 of the judges of the court of appeals said that there was no evidence to support the trial court's finding that there was any negligence on the part of the United States and we think that is a very definitive finding. Mr. BURDICK. You have been identified with these lawsuits a long time? Mr. BURGER. Two years and 4 months. Mr. BURDICK. Have you come to any conclusion yourself as to what was the proximate cause of it? Mr. BURGER. The only conclusion I can come to is that the United States Government was not responsible for any of it. That, I can say categorically, was my opinion. Mr. BURDICK. And to ask who else was responsible was not in your field? Mr. BURGER. That is right. Mr. BURDICK. The Government is not negligent or responsible. What is this case doing in here? Mr. BURGER. I could not answer that. I could not answer that because I suppose it is the right of the citizen to petition the courts. Mr. BURDICK. If you do not answer it some one else will have to. Mr. BURGER. There is no unwillingness on my part to answer it. My answer would only be conjecture and one conjecture would be— this is the last place for them to come. Mr. DONOHUE. May I carry Mr. Burdick's thought a little further. You came to the conclusion that the United States was not at fault on negligence? Mr. BURGER. That is right. Mr. DONOHUE. In arriving at that, what process did you follow through in coming to that conclusion-that someone else was to blame? Mr. BURGER. I did not have to go that far. Mr. DONOHUE. In approaching your conclusion there was an explanation, as Congressman Burdick points out, and some one else was responsible. Did you come to the conclusion that the United States was not responsible? Mr. BURGER. That is correct. That is my opinion. Mr. DONOHUE. Arriving at that conclusion did you consider other factors that would indicate that the United States was not at fault? Mr. BURGER. Well, that would cover the whole field of evidence that might have been put in evidence. Mr. DONOHUE. Did you consider the entire field of evidence? Mr. BURGER. The entire field of evidence pending before us in this lawsuit. They did not show the cause of the Lion Oil Co. Some acts of each of them were involved. Mr. DONOHUE. But the history of the entire case comes down to sending fertilizer under a foreign-aid program. Mr. BURGER. That is right. Mr. DONOHUE. And the United States said, "Yes, we will give you that fertilizer." And they, under an Army patent, proceeded to manufacture it through the different chemical outfits. Mr. FORRESTER. Muscle Shoals? Mr. DONOHUE. No. I think this came from one of the middle States-Iowa. Mr. BURGER. It is our recollection that this was manufactured in a plant down in Nebraska. Mr. DONOHUE. It was manufactured under supervision of an Army patent which had to do with the manufacture of an explosive. That is correct; isn't it? Mr. BURGER. Your supervision, Mr. Congressman, is the kind of supervision that the Government deals with whenever it is buying anything. It is not the active supervision of telling them how to do it and participating in the manufacturing process; no. Mr. DONOHUE. But after they manufactured it, the Government says, "We will borrow this and return to you something in kind”? Mr. BURGER. I think that was part of the arrangement. Mr. DONOHUE. And the arrangement with the Republic of France was that we, the Government, would see it would arrive over in France? Mr. BURGER. I would like to have Mr. Liftin answer that because he is so much more familiar with that than I. Mr. LIFTIN. The program originally was for the manufacture of ammonium nitrate fertilizer in what were then idle plants which were going to be put back into action. The fertilizer involved in this explosion was fertilizer to ship in accordance with that program. It was a fertilizer being paid back for fertilizer that had been pre |