emphasized again that, despite claimants' great stress on the difference between pure ammonium nitrate and the coated ammonium nitrate used as fertilizer, the Interstate Commerce Commission regulations, which added ammonium nitrate fertilizer to its commodity list in 1947, as well as the Coast Guard regulations, classify it as an oxidizing material (not an explosive), and still require that it be handled exactly the same as pure ammonium nitrate.

The evidence refutes in detail every suggestion of a defect in the manufacture and shipment of the fertilizer. But more fundamental is the failure to show that, if there was any such defect, it was one for which the Government's employees were responsible. The evidence shows that the various responsible agencies of the United States kept themselves fully informed, from the inception of the fertilizer program, as to the nature and properties of the material as it was known. The conclusion is inescapable that these employees neither had nor should have had any belief that the fertilizer "was an inherently dangerous explosive."

Almost any material, however harmless ordinarily, may be or become a dangerous explosive under unforeseeable combinations of circumstances. "Thus it was known that not only pitch dust and coal dust were explosive, but also that explosions were to be apprehended from the dust of grain, starch, cocoa, tea, rice, soya beans, malt, oat husk, cork, and other like substances. *** 'the fact that carbonaceous or combustible matter in fine subdivision as dust floating in the air may form a highly dangerous or explosive mixture and has been the cause of numerous disastrous explosions has long been known.'" (Cornec v. Baltimore & Ohio R. Co., 48 F. 2d 497, 500 (C. A. 4), certiorari denied, 284 U. S. 621).

But the fact that a disastrous explosion occurred and the fact that the fertilizer was manufactured initially for the United States are, of course, insufficient to sustain claims of negligence. It is dispositive of these claims that, on the basis of the available information, the Government employees responsible for the job of having the fertilizer manufactured were clearly without fault in not anticipating hazards from manufacture, bagging, and shipment in conformity with universal industry practice.

The record not only fails to support charges of negligence; it affirmatively indicates that the explanation for the disaster lies in a combination of circumstances for which the mode of manufacturing and shipping the fertilizer was not to blame. The record is replete with evidence that longshoremen and members of the crew of the Grandcamp were smoking around the cargo in violation of regulations (R. 20109, 12251-12252, 12135, 12258, 12265, 12323, 12359-12364, 12371, 12406, 12413). The longshoremen knew that they should not smoke (R. 12134-12137), if for no other reason that that the commodity they were handling was in paper bags which "will burn" (R. 13012; and see R. 12413-12414). Smoking is universally prohibited in ships' holds, and Texas City ordinances prohibited it (R. 27182–27184). Nevertheless, "it was a general practice for the longshoremen to * * * lay the cigarettes down on the bags in the hold or on the flange of the beams or on cargo boards *** while they unloaded the tray" (R. 12371).

One of the gangs of longshoremen about to begin work in the No. 4 hold of the vessel had been lounging about just 10 minutes before smoke was seen rising in the vicinity of the area in which they had been sitting. Corbett, the winchman, admitted that he was smoking a cigarette at the time he "stepped up to the hatch coaming when the men started down in the hold" (R. 12251, 12258), though he was no longer smoking when the fire was discovered (R. 12263). And the flames started in the bags on the outside of the stow and not in the center, as speculations concerning spontaneous combustion would have required (R. 3220; and see R. 3219, 12127, 12388-12389, 12422-12424).

Considering such evidence, thte Coast Guard Investigating Board which held hearings on the disaster while the flames were still burning (R. 20123) reached the categorical conclusion that "the fire in lower No. 4 hold of the Grandcamp started between 8:10 a. m., April 16, 1947, the time longshoremen entered the hold, and 8:20 a. m. that date, when it was discovered, and that it was caused by unauthorized smoking in the hold" (R. 20677; see also 21824, 21831).

Moreover, it was only the negligent intervention of the master of the vessel that caused the fire to reach uncontrollable proportions and set in motion the forces that resulted in the explosion. A fire hose was readied to play water on the fire when it was first discovered, but the master, in order to protect the cargo, prohibited the use of water and ordered the introduction of steam into

the hold (R. 12102, 12125-12126, 12127, 20107-20108, 20219-20220, 2022820229, 20253-20254, 20258).

Ammonium nitrate is commonly known as an oxidizing material and was so classified by the Coast Guard regulations. The attempt to extinguish a fire involving an oxidizing material with steam, rather than water, reveals great ignorance of its most fundamental characteristics. Since an oxidizing material releases oxygen in the presence of fire, the futility of attempting to smother the fire by cutting off oxygen from the air through the use of steam is plain. The use of water to extinguish the fire by reducing its temperature is thus the recognized method of fighting fires in ammonium nitrate (see Pordage, Chemical Fires and Chemicals at Fires, 3d (revised) edition, 1943, p. 28; Reanney, Fire Fighting on Ships, 1947, p. 32; Bureau of Yards and Docks, Suggestions on Fire Fighting and Fire Extinguishment, May 1, 1943, p. 154; Department of Agriculture Bulletin, circular No. 719, 1945, p. 22 (R. 21762); Williams, Fire Fighting, 1935.)

It is, of course, the duty of a master of a vessel to be familiar with standard fire-fighting methods, and the best possible method of putting out a fire, whatever its cause. The use of steam on an ammonium nitrate fire, rather than water, can only be described as extreme, unforeseeable negligence.

We need not attempt to demonstrate how the fire led to explosion. Whether the munitions stored in a stowage space adjoining the fertilizer exploded as a result of the fire an admitted possibility-and in so doing detonated the fertilizer on the Grandcamp (R. 13352, 14479, 26138, 26174), whether the sulphur sensitized the material on the Highflyer (R. 4787, 4788, 21840-21841), or whether some still unexplained combination of circumstances produced the result, is purely speculative. It is clear, however, that the conjectural alternative hypotheses offered by claimants fail to sustain the charges of negligence.

TEXAS CITY DISASTER

PRESENTED BY AUSTIN G. BRYAN, JR., ATTORNEY, HOUSTON, TEX.

REPLY TO SUPPLEMENTARY STATEMENT, DEPARTMENT OF JUSTICE FILED WITH THE COMMITTEES ON OR ABOUT JUNE 25, 1955

To the Chairmen of the Senate and House Committees concerned with the pending bills

On behalf of the claimants, the following reply to supplementary statement of the Department of Justice is tendered. The form adopted is thought to be one that will show in complete apposition the inaccuracy of some of the leading statements and conclusions appearing in the Department of Justice supplemental material.

What the Department of Justice said in supplemental statement:

"The ammonium nitrate fertilizer was manufactured and packaged by an experienced private producer in accordance with established industry practice" (p. 2, supplemental statement).

"It was in all respects privately owned fertilizer after it was loaded aboard and shipped in rail cars from the manufacturing plants and the United States had no control over its transportation or storage thereafter."

Record, references, material and excerpts of evidence concerning subject matter of statements of Department of Justice.

Emergency export corporation was organized after May 28, 1946, for the sole purpose of performing contract of a cost plus nature entered into with the Government. (See records, p. 23364 and connected pages.) General Hughes, Chief of Ordnance, testified that "Ordnance reserved and had both the power and the authority to supervise and control the operation in its entirety" (record, pp. 4560-4561). Material not manufactured in accordance with industry practice but specifications recently prepared by TVA and Army Ordnance, Spec. dated July 29, 1946 contains this language, "A new specification has been prepared for the ammonium nitrate fertilizer grade. Requirements for the AN are comparable to and are based upon TVA specifications for AN" (R. 26428).

These specifications given to TVA by Ordnance 3 years prior to that date (R. 13406, 7 and 5). (See also Army Specifications, part 200 printed at p. 348, hearing before Special Subcommittee on the Committee on Judiciary, House of Representatives, pursuant to H. Res. 296.)

Caption reads: "Army specifications based on TVA specifications for production of ammonium nitrate."

The majority opinion of the Supreme Court held "the agreement provided that title was to pass to Lion on payment" (p. 301, hearings, special subcommittee of the House, pursuant to H. Res. 296; 346 U. S. 15). Mr. Liftin for the Department of Justice admitted in hearings before these committees that payment was not made until May,

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