material with no mishap to give the slightest warning that reasonably expectable handling could lead to disaster.

Nor was anything developed in subsequent tests which was not known as a result of prior reports, except that the fertilizer would detonate under extraordinary conditions of heat and high pressure. These tests have shown that only under extreme pressures of 2,000 to 3,000 pounds per square inch-pressures which could only be attained with a Shelby tubing developed specially for testing (R. 26301-26304; see also R. 14499)-could heat produce explosion of the fertilizer (R. 14892-14893, 26285, 26337, 26341). Tests have also shown that, when chopped or shredded paper bagging is mixed carefully with the fertilizer, it can be made to explode, under pressures of 250 to 300 pounds per square inch, when heat is applied (R. 14893, 26285, 26337, 26341).

However, this pressure is many times that which would be experienced in commercial storage or transportation, or storage in the hold of a vessel. Mr. Rinkenbach, the Assistant Chief of the Technical Division of Picatinny Arsenal (R. 14836), stated that even "if it had been known [prior to Texac City] that a minimum pressure of 200 pounds per square inch was required to cause explosion of a cargo of FGAN *** we could not envision the hold of a vessel with large hatches, with ventilators, building up a confinement equal to a pressure equal to 200 pounds per square inch or more" (R. 14928).

The report of the Picatinny tests at Aberdeen Proving Grounds, following the disaster, indicated that by placing bagged fertilizer in unvented 12,000-pound bomb casings and using fire in auxiliary bombs containing mixed fertilizer and paper, detonation might be produced at comparatively low hypothetically "calculated pressures" (R. 14693-14695, 23566, 23552). However, a vested bomb did not detonate (R. 23552) but burned for over 3 hours.

It has long been known that ammonium nitrate could be forced to detonate by explosion of a large extrinsic force within a solid or closely confined mass of the fertilizer. At Oppau, Germany, such an explosion occurred in 1922 when a solid mass of ammonium nitrate and ammonium sulfate exploded while being broken up for transportation and use by one of a series of thousands of dynamite charges (R. 21864). Detonation was also effected by the repeated hurling of high explosives from an ordnance fire into a molten mass of ammonium nitrate at the Morgan Ordnance Depot, N. J., in 1918 (R. 14167-14168, 14256-14258, 1477014771, 14877-14880, 21863-21864, 21705-21706, 7253-7254).

The record leaves no doubt, however, that the highly idealized combinations of experimental conditions in the tests following the Texas City disaster could not be approached in any foreseeable circumstances of handling or transporting the fertilizer. In the case of the Grandcamp, for example, there were only some 400 tons of fertilizer on either side of the shaft tunnel in the vessel's No. 4 hold (R. 12356-12357, 20809, 21812). The hatch covers were off. Cargo battens and dunnage allowed ventilation around the stow (R. 12097, 12229–12230, 14298– 14299, 15249-15250, 15278-15280). The shape of the bags themselves, and the spaces between the granules, were conducive to escape of gas pressures. Accordingly, under foreseeable circumstances of transportation, there could not conceivably have been more than a few pounds of pressure per square inch on even the bottom tiers of the stow, and there was no reason to anticipate that coated ammonium nitrate in bags would create an explosive hazard.

The record affords no substantial basis, in short, for rejecting the view, still generally held today, that fire alone will not cause explosion of the fertilizer, and that the additional factor of pressure and confinement was not foreseeable in the course of transportation. Far more conclusively, however, the record refutes the claim that the Government officials responsible for undertaking the fertilizer program should somehow have anticipated such an explosion from a fire aboard ship, despite the results of long industrial experience and the uniform conclusions of industrial experts.

Among the experts who testified that ammonium nitrate fertilizer presented no explosive hazard in transportation are: Copson (R. 13665), P. Miller (R. 13680, 13687-13688), Bennett (R. 13697-13698, 13700, 13744, 13747, 13777), Lewis (R. 5573), Chase (R. 13786, 13820), Innskeep (R. 14541), Kaffke (R. 1426714268), Allison (R. 14614-14616), Rinkenbach (R. 14854-14856, 14858-14860, 1472-14878), A. Miller (R. 13442-13443, 13428-13430), Taylor (R. 14393-14334). (c) Knowledge as to spontaneous combustion.-Still less substantial are the allegations that ammonium nitrate fertilizer is likely to ignite spontaneously in the hold of a vessel and that the Government's employees should have known this. For a weighty cumulation of experience, and the circumtances surrounding the fire at Texas City, refute the theory of spontaneous combustion.

Although the ICC regulations have a separate classification which includes commodities susceptible to spontaneous ignition, coated ammonium nitrate is not so classified. The Bureau of Mines and Resources of the Canadian Government reported to TVA and others in 1943 that its tests demonstrated that coated ammonium nitrate would not ignite spontaneously even at sustained high temperatures under conditions allowing no loss of heat over extended periods (R. 13682–13684, 25209–25214, 25664-25674). The bureau of explosives of the Association of American Railroads reported unequivocally that the fertilizer "is not subject to spontaneous heating" (R. 27185). This report superseded previous letters from the Bureau's chief inspector in which the possibility of spontaneous heating had been suggested (R. 21408, 22765). Similarly tests by claimants' witness Nuckolls in 1920 led to the same conclusion, and his own statement attests that he knew of no evidence which would indicate that spontaneous combustion occurs in coated ammonium nitrate (R. 5192–5193, 25282; see also R. 21047).

Testifying for claimants, Dr. Kistiakowsky propounded a theory that a mass of bagged fertilizer in a sphere 234 feet in diameter, if maintained at a temperature of 230° F., sustained uniformly throughout the mass under laboratory conditions, might possibly ignite spontaneously in 12 days (R. 15239-15243, 20878). But he testified that any variation in the shape or temperature in any part of the mass would change his computations (R. 15233-15234, 15236).

However, actual tests conducted by him on small quantities of the fertilizer mixed with 4 to 10 percent of shredded paper bagging, which he stated would make the material heat 25 times faster than coated ammonium nitrate in bags, showed no spontaneous combustion when kept at 194° for 100 hours and 230° for 3 days (R. 15223-15225, 15217-15220). Picatinny tests were to the same effect (R. 21043, 21047, 26127). It was not until the oven temperatures were raised to "the range of 270°-310° F. [that] samples ignited" (R. 20870).

Because the fertilizer in the No. 4 hold of the Grandcamp was stacked less than 10 feet high (R. 12098, 12127, 12231, 12241, 12298, 12355), as well as because of the shaft tunnel running through the hold (R. 12356-12357), this theory of spontaneous ignition even at 230° is obviously unrelated to the circumstances of this case. Nevertheless, it is this theory (R. 15240), entailing a uniform temperature exceeding the boiling point of water, which claimants suggest to explain combustion of fertilizer which had been shipped by rail in the cold of winter and loaded manually (and sat upon, R. 12371) by longshoremen.

The fertilizer in the No. 4 hold of the Grandcamp had been en route in boxcars and warehoused in 40-ton lots for 3 weeks or longer prior to the fire (R. 27469, et seq.). The fertilizer was shipped in winter from Iowa and Nebraska. The temperature at the Nebraska plant remained below or close to freezing between January and April (R. 6921). The warehouse at Texas City was cold (R. 11764); and by the time the fertilizer was being moved onto the ship it was so close to air temperature that the longshoremen "never did take notice" (R. 12378, 12419). The Highflyer was actually loaded about a week before the fire was discovered on the Grandcamp. All of this would certainly seem to negative the relevance of theories of spontaneous ignition.

With the exception of Drs. Cook and Kistiakowsky, whose opinions were entirely theoretical and based on "what the calculations say" on the basis of “inevitably idealized assumptions" (R. 15233), the experts agreed with the witness Carl A. Taylor, analytical chemist at the Bureau of Mines, and analytical and chief chemist in private industry for 38 years, retired in 1949 (R. 1438014385). In answer to a question as to "the probability and the possibility of spontaneous ignition" in a "mass of bagged fertilizer-grade ammonium nitrate," he replied: "That condition could not exist. You are picturing to me what is an impossible condition" (R. 14506; and see R. 5192-5193, 13576, 13683-13684, 13814, 21043, 21105, 25209-25210, 25282, 25664-25674, 27185.) These tested conclusions, pitted against theories which could have had no application to the facts at Texas City, left no basis for the claim that the fertilizer had spontaneously ignited-much less for the contention that the Government should have forseen and guarded against a danger of such ignition.

On the basis of an evaluation of available scientific literature, the reports of tests and experiments, and the long experience of industry, it was reasonable to assume that coated amonium nitrate in paper bags presented no transportation hazards beyond those generally known. Certainly, the available information, with respect to which the Government had no monopoly, did not render it

negligent for Ordnance in 1946, faced with an emergency fertilizer need, to follow established industry practices and to comply with the rulings of the Interstate Commerce Commission, the Coast Guard, and the bureau of explosives of the Association of American Railroads, respecting the transportation of ammonium nitrate fertilizer.

D. ALLEGED NEGLIGENCE IN MANUFACTURE

1. Bagging temperatures

Related to the theory of spontaneous ignition is the argument that the fertilizer was bagged at too high temperatures. But, bearing in mind that even this theory requires temperatures of at least 230° F. throughout, it is clear that this assertion has no weight.

Thirteen boxcar loads (555 tons) of the 22 boxcars (909 tons) of fertilizer which was loaded in the No. 4 hold of the Grandcamp came from the Nebraska Ordnance Plant (R. 27472, 20064E, 20064F). The record shows that the highest temperature at which any of this fertilizer was bagged was 178° F., while the average was 158.5° F. (R. 27470, et seq., 20064F, 27009, 27012, 27013, 27020, 27021, 27022, 27024, 27027, 27028, 27029, 27030, 27034, 37039). While the record contains some evidence that there was, at times, at some of the plants, some bagging at high temperatures, when this occurred the bags were set aside to cool before packaging was completed; and there is no evidence that any such bags were shipped to Texas City (R. 6144, 6146-6147, 7064-7065, 8136-8137, 8291-8297, 3873-3877, 8413).

Of the remaining fertilizer loaded into the No. 4 hold, 6 boxcars were from the Iowa Ordnance Plant (R. 27473) and 3 from Cornhusker (R. 27475). Bagging temperatures for this fertilizer are not in evidence, but temperature records and bagging practices for closely related periods at the three plants reinforce the conclusion that all the fertilizer in the hold was considerably cooler than the 230° required for self-ignition.

The 6 boxcar loads for the Grandcamp were shipped from the Iowa plant on March 26, 27, and 28, 1947 (R. 27473). Bagging temperatures at the Iowa plant for a period beginning on April 6, 1947 (R. 22283, et seq.) show a plant practice of not loading fertilizer at a temperature above 200° F. Where the bagging temperature was found to be higher, the bags were set aside until the fertilizer cooled to approximately 190° F. or lower before sewing and loading (R. 6326, 6327, 22299–22300, 22289–22290, 22292–22293). For the week of April 6-12, 1947, the earliest week for which the record contains temperature reports, the bagging temperatures at the Iowa plant averaged 176° F. (R. 22283–22301). Temperatures at times exceeded 200° but the reports show that, in accordance with the established practice, these bags were not loaded onto boxcars until they had cooled (R. 22296-22297). Bagging temperatures recorded by Cornhusker Ordnance Plant for the week April 2-8, 1947, show an average of 180°. ranging from a low of 120° to a high of 202° (D. T. 1291, not printed).

Nor was it accidental that the actual bagging temperatures were well below those which, on claimants' own theories, would be hazardous. The record is clear that, long before the Texas City disaster, maximum (not average) bagging temperatures were fixed by the standard operating procedures under which the plants operated at 210° F., reduced in March 1947 to 200° F. (R. 6120, 6283–6284, 6425, 6871-6873, 8247-8248, 8297-8298, 8316, 8321, 8369, 8373–8377).

The record further demonstrates that when the fertilizer reached Texas City it was markedly cooler than the temperature at which it was bagged. Fertilizer bagged for test purposes at an average temperature of 211° F. grew cooler and not hotter as it stood in a boxcar (R. 21307). In the test, 80,000 pounds of fertilizer, bagged at an average temperature of 211° F., were placed in a boxcar which was closed and placed on a siding for a week (R. 21303). The average temperature of the air on the outside of the car was 69° F. (R. 21309). Instead of becoming hotter, the fertilizer in the car cooled at an average rate of 50° F. per week (R. 21307). The very tests claimants relied on to show an exothermic reaction in the material, also demonstrated that fertilizer bagged at 220° F. and loaded in boxcars cooled to 100° F. in 5 days (R. 23147-23148).

It becomes obvious in the light of these facts that the contention that excessive bagging temperature may have caused the fire and explosion is baseless. As we have shown, the fertilizer was bagged at temperatures which, on claimants' own "idealized" assumptions, were perfectly safe. Between the plants and Texas City, moving through cold to at least cool temperatures, it could only

have become cooler, not hotter. The suggestion that "spontaneous combustion" should be found to have caused the fire-and not, for example, the smoking of longshoremen at Texas City (R. 20677, 21824, 21831) which was proved, is compounded of the sheerest speculation built upon a theory which has no application to the present facts.

Claimants' witness, Dr. Cook, expressed the opinion (R. 13098) that the fire could have started by spontaneous ignition if the fertilizer had been bagged at temperatures of 190° to 250° F., which the record shows was not the case. Dr. Kistiakowsky, claimants' principal expert, testified: "I do not say that it was a spontaneous ignition ***." I do not have an opinion on how that truly happened" (R. 15282-15283).

2. Contamination

It has also been charged that the United States negligently permitted foreign substances to contaminate the fertilizer during manufacture, "thus rendering it more susceptible to fire and/or explosion * * *." Assuming for the moment that the factual finding of contamination is supported by the record, it certainly is not contended that the Government's specifications for the fertilizer envisaged such contamination. Nor can it be contended that the employees at the plants were Government employees, so as to make the United States liable for any of their negligent or wrongful acts. In the circumstances, there can be no basis in the charge of contamination for imposing liability upon the United States.

But the charge is, in any event, unsupported by the record. Evidence of ordnance plant manufacture of ammonium nitrate fertilizer, in general, discloses that in the summertime insects occasionally fell into the high pans (R. 6971, 6974, 6979, 7002, 7072-7073, 7075, 7714, 7136–7145, 7146, 7167); that flakes of rubber or dry paint were found in the ammonium nitrate liquor from time to time (R. 6893, 7099, 7114, 7131-7132, 7138, 7146, 7172, 7182-7183); that, on rare occasions, a few drops of oil fell into the graining kettles (R. 7133–7134, 7152); and that one witness had "heard that they found a shotgun shell in there" (R. 6942). The records show, however, that all such contaminating matter was filtered out; such matter, together with any spillage, was taken to a burning ground and destroyed; and minute care was taken to be certain that the bags of fertilizer were free of "any impurities" (R. 14327; and see R. 6172, 6436, 6989, 7062, 7125, 22515-22517). Thus, checks from February 15 through April 30, 1947, at the Nebraska ordnance plant showed that the fertilizer conformed uniformly to the specifications, which, of course, excluded impurities (R. 2231122325, 22326-22351, 22359-22389, 22391–22396P). Well over half the fertilizer

in the No. 4 hold of the Grandcamp came from the Nebraska plant.

Most of the workmen at the plants testified that they had never seen any foreign material in the fertilizer at any stage of manufacture (R, 6890-6893, 6900-6901, 6920, 6953, 6983-6984, 6987, 6997, 7006-7007, 7016, 7023, 7030-7031, 7037, 7048, 7052, 7057, 7070, 7121); and the record contains no evidence at all of any contamination, at the plant, of fertilizer shipped to Texas City.

Claimants also argue that bags of fertilizer arrived at their destination charred and broken as a result of bagging at high tempertures and seek to charge the United States with negligence on the ground that workmen at Texas City (who were not Government employees), in rebagging broken bags, swept pieces of bag in with the fertilizer. But the evidence shows this problem to have been of relatively slight proportions, constantly decreased through improved techniques. Thus, claimants' witness, Sandberg, of the Texas City Terminal Railway Co. (a claimant), testified that the number of broken bags averaged from 4 to 12 per boxcar or from 2 to 11⁄2 percent (R. 12628–12629). When it is recognized that much, if not all, of the expectable breakage of the paper bags was due to matters wholly unrelated to bagging temperatures-e. g., nails in boxcars, errors in sewing the bags, or careless unloading (R. 21367, 21638, 21369, 22064)-thisbreakage figure is singularly unimpressive. Similarly, a series of reports covering the period October through December 1946 show the superficially startling figure 11,000 as the total of broken bags received for shipment at Gulfport, Miss. But this figure is the number of broken bags out of a total of over 570,000 covered by the reports or less than 2 percent-and is again heavily weighted by breakage from causes other than heat (R. 21363–21365).

The evidence showed, moreover, not only that many reports of burnt bags were erroneous (R. 22063), but that these reports were carefully investigated and that steps were taken to remedy the causes of breakage.

In response to a complaint of charred bags, Christensen, the manufacturer's representative, inspected the fertilizer at Texas City in March 1947, in the com

pany of A. Clark of J. D. Latta & Co., agent for the Frence Supply Council. According to Christensen's report at the time of the investigation (R. 2206322065), Clark expressed his "surprise to find the bags arriving in excellent condition and that damaged bags were few and far between." He "was apologetic for having taken another man's word for 'burned' bags when such was not the case." Mr. Christensen, also talked with J. C. Franklin, foreman of the unloading crew for the Texas City Terminal Railway, who stated that "at no time this year had he received any material which was more than warm to the touch when the car was opened. He could not account for the report of burned bags, although one car had contained a lot of damaged bags, they were not burnt." Mr. Sandberg of the Texas City Terminal Railway and Mr. Clark were "pleased to have had the inspection of the bags made and were very sorry that the erroneous report of burned bags had been sent out but were happy to discover that the report was an error" (R. 22063–22065). By the time of the Texas City disaster, breakage had been reduced below one-tenth of 1 percent (R. 4635, 8450, 2206322065). And as to the fertilizer involved in this case, Lykes Bros. wharf reports show that, of 21,000 bags received for loading abroad the Highflyer, only 5 were broken (R. 20838-20839).

It is also noteworthy in this connection that claimants' witness Sandberg, vice president and later president of the Terminal Railway Co., when asked whether he had instructions against sweeping pieces of bags into the fertilizer, answered: "We didn't put the paper *** in the bag. *** Of course, there may have been some small particle of the bag that would get in there, but it was negligible" (R. 12630; see also R. 12286-12287, 12471). The stevedores never loaded broken bags (R. 12088-12089, 12130). The Texas City terminal had instructed the longshoremen to "be cautious and not to break" the bags (R. 11747, 11754).

What is decisive, finally, is that, despite the various charges of contamination for which no Government employee was responsible in any event, the record sharply refutes the suggestion that the fertilizer involved in the Texas City disaster was in fact contaminated. Immediately after the disaster, bags of fertilizer taken intact from the wharf were tested by the Bureau of Standards (R. 20815-20816) the Department of Agriculture (R. 20817 et seq.), the Bureau of Mines (R. 20827, 21803-21804, 21918-21920), and the Bureau of Explosives of the Association of American Railroads (R. 20828-20836). All found "that the ammonium nitrate fertilizer is free from any contaminating material" (R. 21101, 21836). These findings were concededly confirmed by the Underwriters' Laboratories tests on bags of the same material also salvaged from the wharf (R. 24656-24657). They found "no suspicions of impurities in it" (R. 5252). Furthermore, samples of the fertilizer from each car shipped to Texas City for loading aboard the steamships Grandcamp and Highflyer were retained at the ordnance plants of manufacture. These, too, were tested and found to be free from impurities or contamination of any kind (R. 5926–5927, 8257, 8260, 8955, 21984, et seq.; 22311 et seq. ; 22391 et seq.).

E. REASONABLE CARE AND CAUSATION

We have reviewed at length the respects in which employees of the United States are alleged to have been negligent. Overriding the numerous charges is the fact, clearly established by the record, that the manufacture, packaging, and shipment of the fertilizer for the United States were in strict accord with accepted standards and the universal custom of the trade, established and observed throughout the ammonium nitrate fertilizer industry at the time of the Texas City disaster. Prior to this time, vast quantities of the fertilizer had been manufactured, packaged, and shipped, exactly as it was through Texas City in April 1947, by TVA and private chemical companies. On claimants' theoriesof spontaneous combustion, dangerous explosive, improper bagging and coating, contamination-most, or at least many, of these shipments should have ended in explosions. Yet hundreds of cargoes had been transported without fire or detonation (R. 13694-13695, 13697, 13699, 13779-13783, 14532-14533, 1453614538).

Although subsequent events cannot affect the standard of care applicable when the disaster occurred, it is significant that, after most comprehensive study and research into the technical aspects of the disaster, the fertilizer still cannot be shipped as an explosive. The Interstate Commerce Commission regulations in late 1947 discontinued the exemption of the fertilizer from the requirement of placards on cars, and yellow labels on bags, applicable to oxidizing material, and the Coast Guard regulations limited permissible ports of export. But it can be