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considered on any assumption on the negligence of the United States and that the overwhelming weight of the evidence of record establishes beyond question that the United States was not negligent although it is not believed that a congressional subcommittee has the time or the facilities to make a determination of negligence in a matter of this complexity-the printed record alone in the Supreme Court exceeds 30,000 pages-the evidence is discussed hereafter at some length to demonstrate the gross error of assuming the negligence of the United States."

Morton Liftin, attorney, Civil Division, Department of Justice, speaking for Mr. Warren E. Burger, Assistant Attorney General in Charge of Civil Division, Department of Justice, and the Department of Justice stated: "We believe that the insurance companies should not recover unless *** we do not believe they ought to recover unless they can show that the Government was neg. ligent here." [Italic supplied.]

The insurance company claimants are quite willing to accept this measure of recovery stated by the Department of Justice, namely that they prove negligence on the part of the Government to the satisfaction of these committees and the Congress. The Department of Justice should stand by its own position just quoted above, namely, that if the record does prove negligence to the satisfaction of the Congress, the Department of Justice should agree to the bill proposed.

Claimants and insurance company claimants believe that negligence has been overwhelmingly established and point to these circumstances: (a) in 1950 the district court found overwhelming conditions of negligence and proximate cause stating, "The 80 or more charges against defendant of negligence contained in plaintiff's pleadings are substantially all supported and sustained by the evidence. This record discloses blunders, mistakes, and acts of negligence both of omission and commission on the part of defendant, its agents, servants, and employees in deciding to begin the manufacture of this inherently dangerous fertilizer. And from the beginning of its manufacture on down to and after the day of the Texas City disaster, it discloses such disregard of and lack of care for the safety of the public and of persons manufacturing and handling, transporting and using such fertilizer as to shock one. When all of the facts in this record are considered one is not surprised by the Texas City disaster, i. e., that men and women, boys, and girls in and around Texas City going about their daily tasks in their homes, on the streets, in their places of employment and so forth were suddenly and without warning killed, maimed, or wounded and vast property damage done” (p. 248, hearings).

In the circuit court, Chief Judge Hutcheson, joined by Judge Borah, held as quoted above that there were grounds for recovery if the facts stated were believed by the trial court. In the Supreme Court the dissenting opinion, written by Associate Justice Jackson, joined by Justices Black and Frank

furter, found unqualifiedly overwhelming negligence. This same question of negligence of the Government was submitted to the special committee of the House on House Resolution 295 at Galveston, Tex., on November 16, 17, 18, 1953. That special committee set up for the purpose of examining the facts found overwhelming negligence as evidenced by its two reports of March 24, 1954, and July 2, 1954. In 1954, the Senate Committee on Judiciary first in its subcommittee on August 6, and 7, heard the evidence on negligence. Later the full committee unanimously, on August 9, 1954, reported its findings of fact establishing overwhelming negli gence and fault on the part of the United States Government.

In 1955, a subcommittee of the Senate Committee on the Judiciary, on May 17 and June 7, 1955, heard fully the evidence on negligence and the positions of the Department of Justice as well as those of the claimants. On June 27, 11 men on the Committee of the Senate Judiciary found overwhelming conditions and circumstances of negligence and fault on the part of the United States. On June 29, the Senate of the United States unanimously passed the bill recommended finding and accepting the fault of the United States as a result of the negligence of the Government as a basis for equitable and compassionate responsibility of the United States for the damages sustained by reason of the explosions and fires in Texas City.

The sum of the foregoing is that at least 75 trained, practicing lawyers sitting either as judges or as members of the Senate and House committees having the responsibility of determining facts, have found without dissent at every opportunity permitted the overwhelming negligence of the United States. It is as against these many common opinions of trained lawyers, and lawyers equally trained as Messrs. Warren and Liftin, that these gentlemen from the Department of Justice, Messrs. Warren and Liftin, would continue to set their personal views, conclusions, and opinions as to whether the United States was or was not guilty of negligence preceding the Texas City disaster, and whether such negligence was the proximate cause of the disaster.

The concluding words of the statement of the Department of Justice on the left would surely ignore the historical fact that for many decades, in fact since its origin, Congress has been finding and establishing facts for the purposes of its legislation through agencies and committees appointed by it for the purpose of so establishing the facts.

"The purpose of these arrangements was to enable the United States to obtain the benefit of knowledge and experience of private industry. As the record of this case makes clear, the Ordnance Department, primarily responsible for the task, necessarily relied upon the 'know how' of its private contractors, incorporating the experience of the industry and TVA, and adopted the contractors' tested practices as standard operating procedures" (p. 11, supplementary statement).

"The fertilizer shipped to Texas City had prior thereto been sold to Lion Oil Co. and at Lion's request had been delivered to rail carriers for Lion at the manufacturing plants (record, p. 25774, etc.) to replace fertilizer previously purchased."

It might well be said that its training and background in establishing controversial facts is greatly more experienced and exercised than that of the Department of Justice.

Contrast the statement on the lefthand side of the page with this testimony of Arthur M. Miller, head of TVA manufacturing and research facilities: "Well, that was in the fall of 1943, the summer or fall, because after the matter had been discussed it was finally agreed-Ordnance agreed to put its plants into this service and TVA agreed to teach Ordnance operators how to operate the plants to make the product that we were then making (record, pp. 13422-13423). [Italic supplied.]

As Mr. Miller says, "It involved not only the treatment, but involved making a larger grain of ammonium nitrate than formerly went to the War Department" (record, p. 13423). This is the FGAN that was involved in the Texas City disaster. Because of the foregoing, Mr. Miller testified "So the Ordnance people from all over sent representatives from several of their plants to us and we showed them how to process this material both with respect to making a larger grain and with respect to providing a coating-and we provided specifications for the coating material" (record, p. 13423).

Mr. Miller concludes in this fashion, "Actually to get the project started, we furnished some of the coating materials to get the plants going more quickly, so that nitrogen could get to the farmers at an earlier date. The Ordnance plants thereupon started to produce coated ammonium nitrate" (record, p. 13423. [Italic supplied.]

On November 6, 1946, the nitrogen producers industry advisory committee met to determine and meet the international food board allocation of ammonium nitrate fertilizer to foreign countries and the United States possessions (record, p. 20900).

Thus in November 1946, before the FGAN exploding at Texas City was ever manufactured and before Lion Oil Co. had ever been delivered the material, the Republic of France got a priority for so many tons of FGAN. In this meeting it was stated, "since like quantities must be exported, however, it would eliminate double handling if the Army were requested to ship it directly to the port" (record, p. 20906). This is what accounts for the direct shipment from one of the Ordnance plants of FGAN to Texas City.

Thus in November 1946, France got an MM priority with the Lion Oil Co.'s name noted on the back of the priority

as the source to demand the delivery of returned Government FGAN of 27,000 tons. Here's what the meeting of the committee referred to as Mr. Arden, the chairman, present stated in November 1946, "Mr. Arden disclosed the desire of the Government that commitments for the amount in excess of what is to be returned by the Army during the 3d and 4th quarters be made with representatives of the foreign countries immediately (28,000 tons) to assure them that it will be shipped soon. In case domestic pressure is too great to permit vol untary commitments, he stated, the Government can rate the business to remove responsibility from the shipper for prior domestic commitments" (Record, p. 20906). [Italic supplied.] The same committee hearings stated, "A number of industry representatives indicated that the supplies would have to be raised by the CPA, since they could not voluntarily assume the responsibility of taking nitrates out of the domestic economy, but they wished to make their own arrangements with the foreign countries involved" (Record, p. 20907). And so the Federal allocation of ammonium nitrate fertilizer on November 7, 1946, allocated by table B, record, page 20901, for France and colonies, for the first quarter of 1947 is 18,000 tons. And that's the material that was going through Texas City.

As can be seen the allocation to France was made long before the material was even manufactured in the ordnance plants and quite a time before Lion Oil Co. had any idea that it was to figure in the transaction. The Lion Oil contract, a so-called contract for return of the material, involved in Texas City, was not even written until the 10th day of January 1947. As Lion Oil telegram of July 25, 1946, shows they were required to ship for the Government in that year and Lion Oil Co. did not want to ship on the amount the Government proposed to return, the wire concluded, "our ammonium ni trate fertilizer is urgently needed by domestic fertilizer manufacturers throughout this country" (record, p. 25687).

Here is a concluding quote from a memorandum of a Civilian Production Administration office which establishes the control by the Government of the FGAN at Texas City and the fact that it was being handled by the United States Government as a part of its war-relief program. It reads as follows, "As you know we have been informed that the United States Army is now returning to producers the tonnage of ammonium nitrate which they

"We demonstrate later that, on an evaluation of all existing knowledge, employees of the United States had no reason to believe that the commodity was a dangerous explosive" (p. 22 of Supplementary Material).

had borrowed. Our Chemicals Division states that these producers are reluctant to ship for export either from this returning tonnage or from new production and therefore the United States Government commitment is in danger of not being fulfilled. Mr. Hart, Chemicals Division, is of the opinion that the only method by which this export requirement will be filled is through the use of a CC rating authorized to cover these unfilled bal ances" (record, p. 21777). [Italics supplied.] That's the loaded gun, CC rating, that is held on the Lion Oil Co. several months later, to secure the shipment from the Army ordnance plants of the FGAN that exploded at Texas. Lion was but a figurehead and a device used by the Government to cover its direct commitments made to France long prior to the manufacture of the material.

Compare some of the following information: On November 26, 1943, a Bureau of Mines memorandum approved by D. Harrington was sent to members of the Bureaus of Health and Safety Service cautioning that, "extreme care should be taken in fighting fires when ammonium nitrate is present and the persons should be warned of the possibility of explosions" (record, pp. 2787127873). Well prior to Texas City, Lieutenant Colonel Ensminger, of Ordnance, called Dr. Huff of the Bureau of Mines and asked for a copy of his 1943 report to TVA on tests. Dr. Huff wrote Colonel Ensminger stating, "Before these tests were made I repeatedly called attention of representatives of the Department of Agriculture, the Tennessee Valley Authority, and the War Production Board to the hazards of the mixture of ammonium nitrate with organic materials ***. For that reason I was quite unwilling to endorse any ammonium nitrate mixture that contained organic materials on the basis of our small-scale studies at Bruceton alone."

In July 1946, Iowa Ordnance plant got up a set of safety standards. They were based largely on Ordnance manual and Ordnance publications (record, pp. 6222-6255). These manuals repeated the warnings of Army Ordnance on the explosive and fire hazards presented by ammonium nitrate as sensitized by carbonaceous materials in this manner, "Fires involving ammonium nitrate in large quantities become an explosive hazard. In the intimate mixture of combination of carbonaceous-type materials ammonium nitrate may develop the sensitivity and explosive characteristics of Army black powder." And again stated, "Dry ammonium nitrate

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