were so hot in many instances that it was impossible for our men to handle these bags until they were allowed to cool off.

Mr. BRYAN. I have no explanation. He undertook the inquiry and went to the manufacturer according to his testimony. The fact that they were hot did mean something.

Mr. BOYLE. They were so hot they were scorched and he saw the warehouseman. He is the vice president in this situation.

Mr. BRYAN. That is quite right.

Mr. BOYLE. It would seem to me that with just a little knowledge of the law of negligence that he surely was negligent.

Mr. BRYAN. I want to put it this way. I would not pretend to say what the court will do or will not do if anyone sues the terminal company.

Mr. BOYLE. I cannot understand how, in the light of that causative testimony we could come up with the observation that the Government was wholly negligent. That would seem no excuse. It seems to me this is the grossest type of negligence.

Mr. BRYAN. That is localizing it. In Texas the rule is that the one guilty of paramount, or proximate, or controlling negligence continues to be negligent even though other underlying negligence contributes to the culmination of the event which produces the damage. It is a very practical situation.

The bill you have pending before you as with all bills in Congress requires and preserves the right of subrogation 100 percent against all third parties. If this committee feels and I am not here to argue there have been no other guilty acts of negligence by some people you may be right. The terminal may have been guilty of some other kind of negligence. In Texas jurisprudence we look to the paramount responsibility. Whether or not there was some character of neglectful or negligent act which contributed to this I would not for a minute say you were wrong.

Mr. BOYLE. From what little I have seen it reeks of negligence. Mr. BRYAN. On the part of the terminal?

Mr. BOYLE. I think the exercise of ordinary care all the way along the line may have brought this condition to the front.

Mr. BRYAN. Would this bring this back to focus? The fact that others might or might not be negligent could not be a factor in determining whether this committee feels a strong responsibility if the Government was negligent.

Mr. BOYLE. I think the Government has been discharged by the Supreme Court.

Mr. BRYAN. Well, may I address myself to that? It has not been discharged of negligence. It has been discharged of the necessity of appearing in a forum of a judicial nature. But has it been discharged of responsibility of the facts by anything in the Supreme Court opinion? I believe this answers the whole question.

Mr. BOYLE. I followed you pretty carefully when you tried to distinguish on the word "impaired." I think the Supreme Court merely thought they would transmit the question of negligence and said that all these intendments most favorable to the plaintiffs were made up in detailed agreement because the case does not stand or fall on this condition.

Mr. BRYAN. I am reading from page 939:

One need only read section 2680 in its entirety to conclude that Congress exercises care to protect the Government from claims however negligently caused that affect the governmental functions.

They accept this as complete negligence; but they say only that jurisdiction has been denied no matter how negligent it was.

Mr. BOYLE. When you first addressed us you talked about the Supreme Court having three different Justices or were those the justices of the circuit court of appeals where three of them would not accept the findings as determined by the trial court?

Mr. BRYAN. They did not admit them. But they did not deny them. It was inherent in the proposition that they had to pass on the facts to determine whether there was negligence-a negligent actand whether discretionally applied. Only one member of a court— one justice-out of 14 men has ever held that the facts did not support the findings of negligence. That was a judge in the circuit court.

I want to correct something. I am sure the gentleman will be happy to have the opinion reviewed.

Mr. BOYLE. I will promise to read it—whether you bring it to me

or not.

Mr. BRYAN. I cannot think of any better way to prove the truth of my argument.

The Department of Justice said that Judge Hutcheson held that no facts supported recovery. I ask you particularly to read his opinion because it says:

These facts, if believed, would support a judgment.

He reserved it in his opinion because errors had occurred and gotten into the case to such an extent that they tainted the evidence of fact. Not that the findings of fact were not sustained by the evidence, nor that the evidence would not sustain a case against the Government; and he wanted to send it back.

Mr. MILLER. I read the opinion and I concur with the gentleman. Mr. BRYAN. He said it was "procedural errors."

I do solicit in the most earnest fashion, and I do not want to bore the committee-if you will read again the opinion of the Supreme Court in which they held this:

Even assuming their correctness arguendo though it is our judgment that they do not establish a case within that *

Why? This is "for the reason that as a matter of law the facts cannot give the district court jurisdiction of the case under the Tort Claims Act."

We pin our faith to that language that we have not had a trial and have not had a decision against the rightness or justice or negligence in respect to these claims. That is what we are having here and this is the only jurisdiction left to hear and determine it.

Mr. MILLER. I think you happen to have the proposition that you took your choice of forums and you misconceived the proper jurisdiction.

Mr. BRYAN. Would you listen to me on that? We were not permitted a choice of forums because the Tort Claims Act, as it then appeared, had an express prohibition against coming to this jurisdiction because the Tort Claims was supposed to handle it.

Mr. MILLER. I do not mean you came to us. I mean going back to the State of Texas as I understood you did to institute suit against these various individuals.

Mr. BRYAN. That is a choice of party rather than of forum. We have been denied a forum unless we could come to Congress.

Mr. MILLER. You had a perfect right to file suit against the Texas City warehouse, against the steamship line.

Mr. BRYAN. We most assuredly did.

Mr. MILLER. And as a matter of fact you probably only had an idle gesture available if you brought suit against that company that was doing this work for the Government on a cost-plus-a-fixed-fee basis.

Mr. BRYAN. If you will bear with me and think about this on your thought there. You will see it in the American Law Institute and I think it is accepted law, that where one hires another to manufacture or perform an act or to handle a material which is inherently dangerous the one who hires is primarily liable. You cannot delegate that responsibility and you cannot hide behind an independent

contractor.

Mr. MILLER. That is McPherson v. Buick. That is established law. Mr. BRYAN. This could have been very well-and you are right in this sense they could have been proper parties but they were not necessary parties to determine the responsibility of the Governmentthe paramount responsibility-and if I could persuade your thought to the simple proposition that this is an inherently dangerous material which has been found in four courts including Judge Chestnut who found it in the Brest explosion to be inherently dangerous.

This may or may not be productive of the rule of stare decisis. but it is highly persuasive to me that the three men who enjoyed a very fine reputation as lawyers in the Supreme Court found in favor of responsibility and found in favor of the facts and pointed out that these facts did overwhelmingly establish responsibility. They were Judges Jackson, Frankfurther, and

Mr. BRICKFIELD. I would like to return for a moment to the president of the Texas City Terminal Railway Co. There came a time in 1946 when he complained to the Army that certain of these bags were overheated and charred?

Mr. BRYAN. Correct.

Mr. BRICKFIELD. And did the Army at that time do anything about it? Did they send anyone to Texas City to look into the complaint? Mr. BRYAN. I think they sent Mr. Steed and then another man to confer with them and he did come down and according to the testimony of Mr. Sandburg he assured them that they had nothing to worry about.

Mr. BRICKFIELD. Did the Texas City Railroad have the facilities to test this particular material to see if it was a dangerous commodity?

Mr. BRYAN. No. And he testified there were no notes or shipping instructions or labels which the Interstate Commerce Commission prescribed which would have put them on notice of any condition of hazard.

Mr. BRICKFIELD. So do you think it a fair statement to say that the president of the Texas City Railway did what he could under the

circumstances to determine whether this was a dangerous commodity?

Mr. BRYAN. The district court held that expressly that everyone down there had done everything they were expected to do. In fact, it comes up in this case as in other cases, the great majority involved here had not the least notion of the presence of the material.

There is a very cogent rule expressed in Massachusetts followed widely all over the United States. You can never discharge yourself from that duty when you are dealing with explosives. You have no right to put them into an inhabited area. That is why the Government in its ordnance plants has to go out into remote areas to store them in igloos.

Returning again, some members of the committee have heard it. I can think of a very classical expression cited by Justice Jackson of the Supreme Court:

This was a manmade disaster; it was in no sense an act of God. The fertilizer had been manufactured in Government-owned plants at the Government's order and to its specifications. It was being shipped at its direction as part of its program of foreign aid. The disaster was caused by forces set in motion by the Government, completely controlled or controllable by it. Its causative factors were far beyond the knowledge or control of the victims; they were not only incapable of contributing to it, but could not even take shelter or flight from it.

Mr. MILLER. Judge Bryan, may I make an observation?
Mr. BRYAN. Surely.

Mr. MILLER. If I get this picture correctly, and I am paraphrasing from your testimony-Is this about what you people contend to be the fact? That as a matter of fact Lion Oil Co. sold to the French mission and the French mission arranged for the shipping. Yet the fact remains that before this was ever produced the Government had already issued a certificate to an agency of France for this material and although the Lion Oil appeared as the named shipper what really happened was the Lion Oil were returning it but before you get it we are telling you where it will go. We are going to send it to France as a matter of fact, although as a matter of bookkeeping you bought it from us at a certain figure and sold it to the French agency. But notwithstanding that we are directing this thing. So, the Government makes it, bags it. The Ordnance Department bags it, so there is no packaging agency involved.

The Ordnance Department put the fertilizer there and know it is an explosive and the Army says to the railroad people, "Take it at the rate of a fertilizer. It is not dangerous." And it gets down to Texas City and there they are told the same thing-"It won't explode." "Therefore you do not get rates for explosives. You get rates for sand and cement." And when this thing did occur there are many extracts in the record that the people said, "We took a chance and all hell broke loose and we sort of guessed it absolutely wrong." Mr. BRYAN. I wish I could have stated it as concisely.

Mr. MILLER. And you are predicating the theory in the fact and you had no other place to go and this properly came within the Tort Claims Act. And after reading the act and understanding the facts you felt the Government was negligent. The Government and its employees committed a tort and you came under the Tort Claims Act and were thrown out by the Federal Supreme Court and in the court of appeals.

Mr. BRYAN. On jurisdiction alone.

Mr. MILLER. On the grounds of this exception written in the statute which precluded you.

Mr. BRYAN. Which denied us a forum.

Mr. MILLER. And that was sustained in the Supreme Court on a 4 to 3 decision so there has been no way along the line where they could say the Government was not negligent.

Mr. BRYAN. Except in the Department of Justice.

Mr. MILLER. One justice of the court of appeals. And this committee feels there was negligence on the part of the Government and there was the intent of Congress to indemnify the people who suffered and so you are properly entitled to it?

Mr. BRYAN. That is correct as a legal matter because Congress declared its policy and if you can show the Government was acting as an individual who would have been liable under the laws of the land then the Government would be liable.

Mr. MILLER. I am with you on that.

This discretion thing-and what I think it was intended to meanis that if you had to build a dam and there was one way to build it so it flooded land, and another way which would not flood the land, if you elected to use discretion and flooded the land, then what?

But if you get into this discretion thing, it does violence to the Tort Claims Act because, even with an automobile you can say, "They could have elected to take an airplane."

It seems to me that whether the Government went into this business, or it didn't, but having elected to go into the business as a matter of discretion, then in marking out the program which, in its discretion, the Government decided to do, then if its agents and servants are negligent all the way down the line trying to duck situations, avoiding rates and packaging rates; it was so operated as to save money. As you said, it was taking a chance.

Then it seems to me the Government is not only morally, but legally, bound to respond. I think that was the whole purpose and intent of the Tort Claims Act.

Mr. BRYAN. That is our view of it and we think it has been emasculated by this Supreme Court decision because Congress did not intend to have it carried to such diabolical extremes.

Take the driver of a car going down the road. It fogs up. Does he go at the same speed? Does he call his superior? Or does he stop at the side of the road when it calls for electing to use some discretion? Mr. MILLER. It seems to me as a matter of morality and equity that even in the absence of a Tort Claims Act, if we had an Army ordnance truck loaded with explosives which passed through a small town in Iowa and on the main street it blew up and killed several people, I think the Federal Government would respond in damages even though there be no evidence of negligence or lack of care or anything else. Mr. BRYAN. You have a classic example.

Two ships did explode in Port Chicago and California in the last war. This Congress promptly recognized its responsibility and paid 100-percent subrogation property damage and such as that and there are many other cases where it has discharged its honor and integrity; I am not trying to be dramatic about it.