or its hazardous or dangerous quality, cannot be considered to have put the Government on any special notice because they are quite as consistent with the known characteristics of ammonium nitrate as with any dangers which are claimed to have been within the peculiar knowledge of the United States. To be pertinent, the warnings would have to distinguish between the significantly different types and circumstances of danger.

A statement of the nature of the evidence and arguments employed by claimants will serve to reveal some of the major weaknesses of their factual case:

(a) To support their argument that coated ammonium nitrate is dangerous, they have referred to hazards in the course of manufacturing the fertilizer, apparently assuming that these hazards are automatically carried over to the final production. This is an obvious non sequitur. A plank is not a dangerous instrumentality just because the sawmilling operation may be hazardous, and steel is not a hazardous substance because the fabrication of steel is dangerous. (b) It has also been argued that the addition of carbonaceous materials increases the sensitivity or hazard of ammonium nitrate without stating the degree of the increase or enhancement, or its significance in the circumstances. No distinction is made between the effects of the admixture of explosive carbonaceous materials (e. g., nitroglycerine) and the addition of nonexplosive organic substances, like the coating used here, although the reference materials cited may well be applicable mainly to the former.

(c) There is frequent general reference to the use of ammonium nitrate in explosives as though this renders the ammonium nitrate itself a dangerous explosive. The well-recognized fact is, however, that it is only the presence of other materials with ammonium nitrate (e. g., TNT) which renders the product a common explosive. Many obviously nonexplosive materials are used as ingredients of explosives although not explosives themselves and mere use in the manufacture of explosives does not show that a material is explosive in itself. In like manner, there is reference to the Cairns patent for coating ammonium nitrarte as a patent for explosives, with the apparent implication that its use for coating fertilizer grade ammonium nitrate rendered the latter an explosive material. The patent itself and the record are absolutely clear that the only effect of the patented coating is to retard the aborption of water by ammonium nitrate (R. 21763-21764).

(d) On the one hand, claimants stress the known dangerous character of noncoated ammonium nitrate and, on the other, they steadfastly declare that nobody who handled the fertilizer grade ammonium nitrate after it left the plants (including carriers, stevedoring companies, the warehousemen, and ocean carriers) had any inkling as to any dangers, although it was plainly marked "ammonium nitrate."

2. Information available to Government employees

Despite the wholesale castigation of the Government-on the basis of asserted knowledge acquired after the disaster or contained in proposals or suggestions made at some place at some time by some person connected in some way with the Government-the record fails to support the charge that, knowing what they knew or should have known, the Government's employees departed in any way from their duty of due care. Even "looking back at the mishap with the wisdom born of the event" (Cardozo, C. J., in Greene v. Sibley, Lindsay & Curr Co., 257 N. Y. 190, 192), there was no reason to believe that the fertilizer would explode either in the course of rail transportation or abroad the ocean carriers.

(a) The general views as to explosive characteristics of coated ammonium nitrate. There was in 1947-as there probably is even today-no reason for officials and employees of the War Department to regard the fertilizer as presenting hazards beyond those clearly recognized in the ICC and Coast Guard regulations. When TVA first considered the production of ammonium nitrate fertilizer in 1943, an extensive survey of the available literature was undertaken (R. 20940-20972), and the conclusion was reached that no significant hazards (other than those generally known) were present (R. 13683, 13412-13413, 13570– 13571). Ordnance, of course, relied heavily upon the TVA findings and experience.

The record amply demonstrates that this fertilizer was simply coated ammonium nitrate which, although susceptible to detonation in certain circumstances, has for over 30 years never been considered an explosive as an article of commerce in transportation (R. 4571, 4576, 5399, 7249, 7351, 13693-13697, 13780-13781, 13823, 14401-14402, 14438, et seq., 14493–14494, 14548, 14550, 14703, 20931–20932, 20955, 21742, 21768, 25211-25213, 25287-25288).

As early as 1924, G. N. Norman, technical director of the Hercules Powder Co., a large and experienced manufacturer, stated: "I consider that ammonium nitrate is not an explosive by itself. *** To the best of my knowledge no major accident has ever resulted *** except where other compounds have been present, such as TNT or other nitrated organic bodies. Ammonium nitrate, in my opinion, does not constitute anything more than a fire hazard when handled by itself" (R. 27699). "In combination with other materials," he went on (ibid.), "a sensitive high explosive may be formed, but the same is true of sugar, flour, gasoline, and illuminating gas, as well as the hundreds of industrial dusts. *** Yet these materials are not ordinarily considered explosive. *** Because ammonium nitrate is used largely as an ingredient in high explosives, the natural tendency is to consider it a high explosive itself. Such a view, in our opinion, is entirely erroneous."

In 1923 the National Fire Protection Association appointed a committee to prepare a table of common hazardous chemicals which would be available for use of inspection organizations and municipal departments responsible for the safe storage and handling of such materials (R. 27754–27755; see R. 21967). The American Chemical Society appointed a similar committee. The two committees, collaborating, issued a series of such tables from 1929 through 1944 (R. 2196721968, 27756-27761). Ammonium nitrate was never included in any of the tables. A. H. Nuckolls, of the Underwriters' Laboratories, one of claimants' principal witnesses, was chairman of the National Fire Protection Association's committee for 25 years, including a year after publication of the committee's table of hazardous chemicals in 1944, which omitted coated ammonium nitrate fertilizer. No amendment was published to the table with respect to the fertilizer at any time up to the date of Nuckolls' retirement as chairman of the committee on December 31, 1945 (R. 5138, 5196), 8 months after Nuckolls' final report of April 30, 1945, to the War Production Board (R. 21522, et seq.) in which, claimants insist, he had warned the Government of danger unless he was authorized to make further tests on larger scales than had theretofore been undertaken. And at the trial Nuckolls conceded that the committee's table of hazardous chemicals "doesn't include [the fertilizer] even today" (R. 5148; see also R. 21692, 2188721914). Nuckolls himself recommended in 1927 that ammonium nitrate be not included in the NFPA's list of common hazardous chemicals (R. 21694).

It has been the general commercial practice for decades to use organic material for coating ammonium nitrate similar to that used in the fertilizer (R. 4620, 4622, 13779-13781, 13799-13800, 21223, 13574, 13694-13696, 14533, 14538-14539, 20018-20019, 21224, 2644ff.). The Atlas, Lion, and Spencer Cos. all use the same type of coating for ammonium nitrate fertilizer (R. 13779-13781, 1379913800, 20018-20019, 20032, 21223-21224). TVA has always used it, following a few months of early experiments with other coatings which proved unsatisfactory (R. 13676-13679, 13556-13558, 13413-13414, 13573-13574, 13630, 13650–13651, 25201). Hercules Powder Co. has also used, and continues to use, the coating at all of its plants, except for its California plant where it was discontinued, not because of any hazard, but because of difficulty of dissolution in California irrigation canals (R. 13698–13701, 25231, 13711-13712, 13681, 13742-13744, 13438, 1396513696, 13728, 13730-13731). The Du Pont Co., which originally used the coating, later abandoned it because of supposed danger in the high-pan stage of the manufacturing process, not because of any hazard in the finished product (R. 21221).

The organic coating was in fact adapted from a Hercules patent used when that company first manufactured ammonium nitrate fertilizer in February 1943. While claimants emphasize that the Hercules patent for the coating was originally evolved "for blasting explosives" they necessarily acknowledge that-whether for explosives (which require nitroglycerine and DNT or some similar critical addition) or for fertilizer-the coating serves only as a moisture-proofing and is not itself a means of imparting explosive characteristics to the ammonium nitrate (R. 13696, 13781, 14533-14534). The Cairns patent (held by Hercules) for coating ammonium nitrate to reduce its tendency to absorb moisture before it is mixed with 121⁄2 percent nitroglycerine and 1 percent DNT (R. 21763–21764), was used in the development of the process for coating the fertilizer. But this fact obviously affords no basis for supposing that coating the fertilizer, which contains neither of the explosives DNT nor nitroglycerine, gives it explosive properties (R. 5032, 13701, 13772-13773, 13776–13777, 14386, 14531, 14533-14534, 14553, 14711-14712).

A report by B. T. Christiansen, chief chemist of the Emergency Export Corp., dated December 1946, based upon a survey made by the independent contractor in

the course of the fertilizer program, points out expressly that "ammonium nitrate is not considered explosive under transportation conditions or when stored in *** paper bags, by itself and apart from other explosive substances."

Like the coating, paper bags as containers for ammonium nitrate fertilizer have been, and still are, in practically universal use (R. 13694-13697, 13781, 14533, 14535-14536, 14538). Prior to 1943, TVA used burlap with paper lining, but after testing further, changed to all paper (R. 13417-13418). The use of paper bags is expressly sanctioned by the Interstate Commerce Commission (R. 9436-9440, 9456, 25374), and Coast Guard regulations authorize shipment of ammonium nitrate so packaged (46 C. F. R. (1943 Cum. Supp.) 146.22-100, table E; 146.05-8). The specifications for paper-bagging of the fertilizer (R. 26434-26437) conform to applicable Army and Navy regulations (R. 26380-26381) and to the regulations of the field director of ammunition plants (R. 23179-23180, 22527), all of which were taken from tested TVA specifications (R. 26456–26460).

The bureau of explosives of the Association of American Railroads has ruled uniformly that coated ammonium nitrate in paper bags is an “oxidizing material” rather than an explosive, that it is entirely safe as such for transportation (R. 25221, 25296-25297, 25303), and is accordingly entitled to the same classification as ammonium nitrate in the published tariffs (R. 25373, 25374, 25399-25403, 25410-25416, 25437). For instance, in reply to an inquiry in 1943, the chief inspector of the bureau of explosives of the Association of American Railroads advised the War Production Board that no hazard would be created by organic coating of ammonium nitrate (R. 25296-25297, 25303). The bureau reiterated this ruling, following actual tests of ammonium nitrate fertilizer being manufactured, packed in paper bags, and shipped by the Tennessee Valley Authority, stating further that it was properly classified by the Interstate Commerce Commission merely as an "oxidizing material" (R. 25410-25416).

It was considered by industry and the National Fire Protection Association Committee on Hazardous Chemicals as an oxidizing material as early as 1926 (R. 5954-5955). The ICC and Coast Guard regulations have treated, and still treat, it as such.

(b) Tests and experience as to explosions.-The general view that the ferti lizer was an oxidizing material but not a dangerous explosive under transportation conditions rested upon many years of tests and industrial experience. Extensive tests by the Atlas and Du Pont Cos. and by Army Ordinance in 1918 and 1919 demonstrated that ammonium nitrate, whether alone or in contact with many other substances, could not be made to explode by heat except at high pressures (D. T. Exs. 742, 743, 744 (not printed); see also R. 21705, 21707-27108, 21711, 21910). In 1922, Fordransperg, a German scientist, reported a large mass of ammonium nitrate being involved in an intense fire without detonation (R. 21647). Professor Sherrick of the Bureau of Mines reported in 1924 that "it was not found possible *** to effect the detonation of" ammonium nitrate "by the application of fire or heat" (R. 21647). In 1943, the Bureau of Mines confirmed the Sherrick tests in a report to TVA (R. 27005, 27008; and see R. 1341813421, 13571-13573, 13636, 13680-13683, 14194-14195, 14267, 14370-14371, 1439214394, 14511-14512), and concluded that coated ammonium nitrate fertilizer was no more hazardous than uncoated ammonium nitrate (R. 13576, 25225, 25229).

No industrial fire has ever resulted in explosion of this fertilizer. Thus, there have been many boxcar fires in which the fertilizer was present, but never an explosion, and only the carbonaceous material (e. g., the bags and wax) burned (R. 5400, 7252, 13429-13430, 13688, 14321-14322, 14764, 14877-14880, 21741, 21866, 23189-23192). The evidence contains repeated examples of fires involving hundreds of tons of accumulated ammonium nitrate which burned themselves out without explosion (R. 14321-14322, 14462, 15184, 21864, 21867; see fn. 64). In 1920, the steamship Hallfried burned in New York Harbor. She was loaded with 2,000 tons of ammonium nitrate in paraffin-lined wooden kegs or wooden dunnage, mixed with a considerable quantity of newsprint and other carbonaceous matter. When water was thrown on the blazing incandescent mass, there were steam explosions. Efforts to extinguish the fire were abandoned, and the fire burned itself out as the vessel lay intact on an East River mud flat to which she had been towed. No part of the ammonium nitrate exploded (R. 21705, 21864, 15184, 15194, 27701; see also R. 5531-5534, 14462, 14763).

Several hundred tons of melted fertilizer (destined for the Grandcamp) re mained intact in one of the Texas City wharf warehouses after the fire (R. 1517515176, 21866, 21897, 21910; and see R. 13782-13783, 14541, 20718-20719, 21801 (fig. 1), 21822 (fig. 41)). It was, in fact, conceded by claimants' witness

Nuckolls that the recorded history of the subject contains not a single reference to fire alone as the cause of explosion of coated or uncoated ammonium nitrate (R. 5187; and see R. 21591-21592, 13697-13700, 14256, 14394, 21102, 21646–21647, 21700).

No heat tests, either before or since the Texas City disaster, in the absence of admixture of such elements as TNT, nitroglycerine, or sulfur, or of confinement under extreme pressures (R. 13569, 13734–13736, 13820-13821, 14244–14245, 14252, 14267-14268, 14292-14293, 14357, 14367, 14451, 14453, 14522–14523, 14566, 14570, 14613, 14724-14725, 14730-14731, 14856, 14965, 21827-21829, 21840-21841, 21917, et seq.), have ever produced detonation of the fertilizer (R. 13430, 13442–13443, 13679-13680, 13688-13689, 13697, 13700, 14267-14269, 14286, 14292, 14299, 14354, 14389–14394, 14418–14419, 14524, 14541, 14616, 14641, 14740–14741, 14866, 14872, et seq., 14935-14936).

Tests by the Bureau of Mines of the Department of Interior have demonstrated that coated ammonium nitrate could not be exploded by oxyhydrogen flame and reacting thermite at 5,500° F. (R. 22106, 25228; and see R. 13573, 13682-13683, 14370-14374, 14376, 14886-14887, 14890-14891, 6381-6382). The maximum temperature produced by burning of the fertilizer's coating or paper bagging could not even begin to approach the high temperatures of these tests (R. 14885-14891, 14370-14374).

The Bureau of Mines and Resources of Canada reported to TVA and others in 1943 that their explosions research chemist had been unable to produce detonation in coated ammonium nitrate in paper bags, even with charges of dynamite, the result being a mere scattering of the nitrate (R. 25211, 21749, 25669, 25674, 27005-27008, 22105-22106, 13684, 13425, 25214).

The argument has been made that "extreme hazard" was involved in the use of the organic coating by reference to letters from the Hercules, Du Pont, and Atlas companies in response to a letter of March 9, 1944, from the Ordnance Safety Branch making inquiry as to the application of the coating. Examination of these letters reveals, however, that they refer solely and precisely to dangers involved in applying the coating at excessive temperatures in the graining kettles-that is, to possible hazards in the manufacturing process, not to any hazards in the finished product due to the coating. Moreover, and most significantly, claimants omit from this discussion the most elaborate and detailed response received by Ordnance in answer to its inquiry, the letter from the Trojan Powder Co. (R. 21224–21226). This response contained the following strikingly pertinent passages:

"2. A mixture consisting of 1 part of petrolatum, 2 parts of rosin and 1 part of paraffin is a well-recognized and much-used coating composition for ammonium nitrate, and this mixture (including slight modifications in the composition as above stated), has been used in industry for many years, and without anyone having any doubt as to its representing a quite satisfactory mixture for the intended purpose.

"3. The temperature at which the mixture is applied to the grained ammonium nitrate, and the amount to be used as coating agent, is substantially as stated in your letter. At different plants both the amount of the coating material added and the temperature at which it is added may of course vary somewhat, but in general the figures stated in your letter represent a correct statement of what might be called average usage.

"4. I regard the mixture of the composition as above stated, and the amount and temperature of addition, also as above stated, to represent so "time-tested" a procedure as to be open to no suspicion of unusual hazard. It has been in use for more than 30 years, in many plants, and in the absence of other conditions, should not be regarded as representing other than normal coating procedure.

"7. The Trojan Powder Co. does not use the petrolatum-rosin-paraffin composition as above described, as we prefer the sodium silicate coating as covered by our United States patent * * This does not mean, however, that we regard the petrolatum-rosin-paraffin coating as being either unsatisfactory or hazardous, or its use as being subject to criticism."

Through all the widespread use of the organic coating, no explosions from fire have ever occurred during shipment, transportation, or storage-as we have shown. It is no surprise, then, that the almost universal opinion of the experts, in direct conflict with claimants' assertion, is that the coating renders the fertilizer no more hazardous, as a practical matter, than "straight ammonium nitrate without any conditioning treatment" (R. 13576). The Hercules Powder Co.,

78228-56-14

which had originally developed the coating (R. 21763) "considered that this decreases any possible hazards from explosion" (R. 13681; and see R. 13573, 25674, 26124, 14411, 21569, 4821, 4940, 25303, 25666, 5046). References to increases in sensitivity through the admixture of carbonaceous materials do not contradict this conclusion, for there is virtually nothing to show that the asserted increase from coating would have any practical significance whatever. It is a startling suggestion that the Government employees should have been expected to know of and accept the almost nonexistent belief that the coating was dangerous, and should therefore have changed the practice of the industry upon the expertise of which they were forced to rely for the urgent task they confronted. Against the universal view and experience of the industry and the experts the fire alone cannot cause explosion, claimants offered the equivocal testimony of Dr. Melvin A. Cook, professor in theoretical metallurgy at the University of Utah (R. 13048). Dr. Cook appeared to believe that it is possible to detonate coated or uncoated ammonium nitrate, pure or mixed with carbonaceous materials, by heat alone (R. 13160–13161), but his testimony was unsupported by tests, theoretical analysis, or observation. The tests he made were not by heat or fire alone but by detonators (R. 13136, 13176–13177, 13245-13246).

Claimants also relied upon the deposition of A. H. Nuckolls, consulting chemist to the Underwriters' Laboratories of Chicago, who had conducted tests as to the explosive qualities of ammonium nitrate fertilizer in 1944 for the War Production Board (R. 21495, 21505), as showing that the United States had been forewarned of the events at Texas City. Although these tests produced nothing which had not been known before, Nuckulls recommended that the contract, under further governmental appropriations, be extended for further tests in application to larger masses of the commodity to determine whether the same principles would govern explosive factors in such masses (R. 21576-21577, 21584, 25247-25252). His recommendation was for application of the tests to a mass 6 by 6 by 4 feet, or a total of 8 tons, reinforced by sandbags (R. 21493)—a mass not even approaching actual conditions in a boxcar or in the hold of a vessel. The War Production Board did not extend the contract for Nuckolls to make the further tests he proposed (R. 21598). The Board concluded that his tests (R. 21522 et seq., 25233-25252) had added nothing to existing knowledge regarding the fertilizer (R. 20934-20935, 14731, 20931-20932). Other scientists agreed that his report brought to light nothing new or significant (R. 13598, 13686, 13685–13688, 14299– 14300, 14474-14475, 25253-25257). And though claimants have suggested that, on the basis of his unenlightening tests, "Nuckolls foresaw the possibility of a Texas City," the suggestion is strikingly answered by the fact that the National Fire Protection Association's committee on hazardous materials, of which this same Nuckolls was chairman until December 31, 1945 (considerably after his tests for the WPB), continued and continues to omit coated ammonium nitrate fertilizer from its list of hazardous chemicals.

Nuckolls' suspicions (R. 5092-5093, 5095, 5099) found equivocal support in conjectures by Drs. Kistiakowsky (R. 15098-15105, 15108-15109) and Cook (R. 13139-13141, 13254-13255, 13372), and in the theorems of Berthelot (R. 22005, 27713, 27717). As we show immediately below, these suppositions scarcely rise to the status of "knowledge" which the Government's employees, before Texas City, were bound to have and apply, contrary to the uniform results of extensive tests and the tried views of the industry's experts.

Claimants also have argued that tests made since the Texas City disaster have revealed properties of the fertilizer which, if developed and taken into account prior to the disaster, might have avoided it (R. 3344). The record makes it clear, however, that all the knowledge prior to Texas City concerning the nature of this type of ammonium nitrate under any foreseeable conditions of transportation showed that it was nonexplosive. Bureau of Explosives tests on coated ammonium nitrate were made as early as 1909 (R. 25399). Further tests were conducted in 1910, 1911, and 1930 (R. 14388-14392, 26107, et seq.). Ordnance, Du Pont, and Atlas tests were conducted in 1918-19. Professor Sherrick, of the Bureau of Mines, made his tests in 1924 (R. 21781), and the Bureau confirmed his results to TVA in 1943 (R. 27005). In 1920, Nuckolls tested ammonium nitrate mixed with finely ground sawdust, and discovered no hazard (R. 25271). Nuckolls completed his WPB tests in 1944 (R. 25247-25252). And see Bureau of Mines Report No. 29 (R. 21183 et seq., 21969 et seq.). The published Bureau of Explosives report to the Board of Underwriters of New York (1945–56) is to the same effect as all prior ones (R. 25437). And this knowledge was grounded firmly in recorded shipments of hundreds of thousands of tons of the