General Mitchell, June 29332, 36 Opinions 553. We can read it but it is an extensive opinion. The substance is that the rulings adverse to the allowance of such claims seem to be based on a reluctance to pay out Government funds in satisfaction of a claim where an insurance company has been paid a premium to carry the risk, rather than upon anything contained in the words of a statute.

Bearing these principles in mind it seems entirely clear that by the payment of the damages you would, upon plain principles of law, be obliged to recognize the insurance company as the people to whom the amount is due within the meaning of the statute.

It appears that whenever subrogation claims of insurers have been certified by the Post Office Department, the Departmenta of Labor, and the Navy Department through the Bureau of the Budget to Congress for payment, the record laid before Congress has clearly disclosed in every case the nature of the claim and the fact that it was a subrogation claim by an insurer, and in every such case Congress without question has recognized the claim as a proper one for certification under the act of 1922 and appropriated the money to pay it.

The predecessor of Mr. Burger, Mr. Herbert A. Bergson, was there concerned with H. R. 4708 of the 79th Congress, 2d session, with House Report 2655, and an appeal pending. Mr. Bergson was asked directly about subrogation and the attitude of the Department of Justice and I quote his statement:

Mr. Chairman, insofar as subrogation claims are concerned, I am not addressing my remarks to H. R. 4708 because we do not have any official knowledge of that matter. But so far as subrogation claims are concerned the Deaprtment of Justice is not opposed to them. We feel that under the facts involved in this particular case the assured would have a legal claim against the Government and then the insurance carrier or insured would have a claim against the Government if the Government waived immunity to be sued.

There is no more respected branch of the Government than the Department of Justice but these inconsistencies again prove the weakness of blanket or blind opposition.

Here is a gentleman speaking for the Department a few years ago and the fact remains there must be some other answer. I am willing to speculate in asking your inquiry into this fact. Is the position of the Department of Justice here and the Department of the Army really opposed to the true and fair principle? Or is it opposed to the effort to show the Department of the Army and the Department of Ordnance of having been guilty of the most unnecessary accident that ever has been found in our history?

Is it a design to keep fighting in this committee, and the opposition is so fierce in light of what they have said before, that there must be some other reason that has not yet been made apparent; and I do not know that that is the reason. But it appears a fair speculation on the insufficiency of the position taken that, merely in principle we are against it.

Mr. BOYLE. This pronouncement of Mr. Bergson says, "if there is a legal claim." The Supreme Court has passed on it so you cannot use Mr. Bergson's statement as being different from what the Government said today, because he said, "If they had a legal claim." That is why you are here asking for equitable relief.

Mr. BRYAN. Would you explore this with me?

No one ever has a legal claim against the Government. It is a waiver of immunity. Mr. Bergson says, "Talking about a legal claim, you had a right to get into a court."

But talking about a claim that was sufficient in ordinary relations between man and man-on those terms, had the Government been an individual, it would have been a legal claim, but no one has ever had a legal claim against the Government unless they secured a waiver of immunity.

Mr. BOYLE. Under the Tort Claims Act?

Mr. BRYAN. Then

you went up here.

It is a different situation. But this was not under the Tort Claims Act. It was before that and was passed when we were dealing with precisely the situation we have here. And if you have time, and if your counsel compiled these reports on that bill, you will see it is exactly what we are asking for. That is, the right to establish in your minds the waiving of immunity; and then to what extent we should be compensated. The distinction is not the right because it is the identical situation which Mr. Bergson considered.

I would give anything in the world if I could prevail in this: that we have not tried our lawsuit. We have had no forum. The courts have not held against us on legality or our right to recover.

Once you decide to waive immunity, then you take up the facts to see if we have or have not established a legal right against the Government in terms of ordinary legal or equitable law. That is what we had last year.

Now, Mr. Bergson was quoted further by Mr. Gross representing the insurance company:

In other words it is your position that if the insurance company has a legal right on subrogation and can prove its case, then you recommend payment. To which Mr. Bergson said:

We say this judgment should be obtained.

That is the position of the Department of Justice. And are we to have because of changes in the administration-changes of attitude that follow the caprices of individuals or, as Chief Justice Vinson has found, it sustained an unbroken line of policy at the hands of this committee one of the most ancient committees in the Congress that we have on subrogation claims.

On the matter of the present bill pending.

No bill, I am sure, is ever perfect. No bill eversuited the claimant entirely. That, in some respect, is true here. I am like Senator Daniel. I think the district court is one of the best agencies possible to fix and determine damages. Others think differently. I might be asked why a commission is not an advantageous method of doing it. I am suggesting in final summation, in spite of the fact that we have explored extensively and tried many lawsuits, that really again we try to bring the focus in perspective. Both chambers have unqualifiedly found responsibility in the Government and they did it after the most deliverative consideration. And though I know it is not at all controlling, yet here is the speech of the late Senator McCarran on the floor of the Senate:

The evidence seems clear, and the Judiciary Committee found, that the basic cause of this disaster was the responsibility of the United States Government. The Government was responsible, through its agents, for placing in commerce an

inherently dangerous article without any marking or warning respecting its dangerous attributes. This was a powerful explosive, being handled in large quantities, which by Government orders was packed in paper bags and marked simply as fertilizer. When it was loaded in the hold of the ship, and packed down by its own weight, and confined under pressures, the result was a spontaneous explosion which caused one of the greatest disasters in the history of this country.

If I may not seem officious to you, your task is to determine the most adequate method of payment and by whom you want it paid. The bill pending pretty well meets these needs. We have thought over it for those for whom I speak. I represent personal-injury people; death, injury, and all the categories of claims as I indicated earlier.

I should like very much, if it counts for anything, that if this committee thinks, in its wisdom, to accept the responsibility accepted by both chambers last year, that the present bill, or one very substantially like it, be enacted and you will have discharged and kept clean the responsibility and reputation of this Government as intended in the Tort Claims Act.

All the foolish theory that the sovereign can do no wrong when it enters the business of the world, is discarded when it stands at the bar of responsibility with the rest of us.

I cannot marshal enough expression of thanks for the opportunity to tell you our theory and our story. We are very hopeful that it has all the worthwhileness we think it has.

Mr. MILLER. Did I understand your observation to be that you are in full accord with the form of the bill with the exception of the fact that you feel that if we approve the bill then it should be substituted as provided in the bill?

Mr. BRYAN. There I do not mean that we are dealing with some local measure which might carry the sort of partisanship that would accompany a justice-of-the-peace measure. You have entrusted, the district courts with the most important legislation the country produces.

I may say for the record that we have consulted with the members of the court. They are not at all anxious for the additional burden. They do have the administrative facilities through their clerks and their whole machinery to quickly handle it by the use of masters and to set up a system and unless there is an exception the master's decision will go and the court will accept it.

Mr. MILLER. When one of the district judges substituted for another judge would you have the judge who treated the original case? Mr. BRYAN. No. He is retired. We are speaking of the present senior judge, and there has been a change of personnel and not a single judge who is presently active has had anything to do with this

matter.

Mr. LANE. It would be a judge in that particular section of Texas? Mr. BRYAN. There will be four judges available to review reports or to do whatever the judge thinks is proper to ascertain the correct measures and I think it is the safest and surest way to get uniformity or fairness unless we are to indict our judges of being incapable.

Mr. MILLER. We have had considerable testimony here in Washington concerning the terribly crowded calendars and for that reason we passed the bill to increase the number of Federal judges. Does that

condition prevail in your district in Texas so it might be a burden? Mr. BRYAN. The condition does not prevail as you describe it in the southern district of Texas. We discussed that and the matter of allocating the matter to commisisoners whose determination would be the proper one and one that would not affect the handling of their other work.

Mr. MILLER. You are in Texas and I presume no one in the world is more anxious to get this settled and it would be your considered judgment that it would be better to have it handled that way?

Mr. BRYAN. Most inclusively. I have not the faintest idea that if commissioners are chosen who they will be or where from but they will be there. It will not be an interference with their own business. This is not their function nor their occupational interest. It is something they are doing on the side. If you consult the wishes of the claimants it would be 100 percent to go to an established court and give their testimony and get a finding.

Mr. MILLER. One further observation in conclusion.

I would like to take this opportunity to congratulate the distinguished attorney from Texas for what I believe has been a very efficient presentation.

Mr. LANE. I join with the gentleman from New York.

Just before we conclude, Judge Bryan, would you tell me about the time when Congressman Thompson from Texas filed H. R. 4045 when you proposed to give consideration of this matter to the courts rather than delegating it to the President of the United States?

Mr. BRYAN. Yes, sir; we did. As we talked about earlier, the commission use was an attempted deference to and reconciliation with the Department of Justice. As you may know, the first bill provided for the district court. Mr. Burger, who has appeared here for the Department of Justice, and Mr. Spangler thought that Congressman Thompson's approach to the district courts was not good. The Government considered they were not the best place to go to do it.

I do not agree with it and I think I have as many knots on my head listening to cases in court-in the Federal court. They are neither for or against anyone. Generally, they represent a high order of individual who is trying to do his best. He is not against the Government nor for the plaintiff. I want to dissent on that theory on which it was proposed to have a Presidential commission. I cannot say it is wrong. I do believe the other has the greater advantages of established machinery and administrative capacity. You would have to organize a commission.

May I close on the thought that my 31 years of practice have been wasted to me if, in handling multiple claims, you have to have as many people as Mr. Burger said to process these claims.

These claims are in this status: I have not seen them except through FBI agents. They have a statement on file of the statistics showing those that have earning capacity, expectancy, education, background, accounting reports. You can take this and lay them beside the claims statement and someone can determine between the ranges of what the FBI and the claimant thinks they are worth and work it out very rapidly.

It is preposterous and wholly apart from realism to talk about the number of men and lawyers needed.

Mr. LANE. What was the procedure in Port Chicago? Mr. BRYAN. In that you had an originating investigation by the Navy Department and the Navy Department fixed them and turned 'them into the Congress.

But there you had a Navy Department not afraid to admit its responsibility. We have never been able to meet that same attitude in the Army. It has tried to shirk it and prevent it. We ran into the greatest number of road blocks trying to get testimony and 10 minutes before they would come in they would declassify it. They were our enemy. They did not come in and face responsibility as the Navy did in the Port Chicago case.

Mr. BOYLE. For the purpose of the record I would like to add my representation to the thoroughness of Mr. Austin Bryan.

Mr. BRYAN. I would like to tell my grandchildren about it.

Mr. BOYLE. I will again thank everybody including the good Congressman who knew so much about the factual situation in this case. So, while talking about individuals who have made their contribution I want to express my thanks to the Congressman who has done a good job of this.

Mr. BRYAN. Since we are permitted a good deal of freedom here, may I say that last year's effort and the reports written and I am not at all an expert-yet, it represents the highest form in the review and the exhibits and all that goes into the reports of this committee. Mr. LANE. Thank you, Judge.

Mr. THOMPSON. It is possible that this has all been touched upon. But in respect of the proposed turning over of the claims to the district court, the judges who would be involved-and I believe there are three of them--they were all sounded out as to their attitude; as to whether they would accept willingly the responsibility. It is my understanding that they said they would. They did not shrink from it at all. As we are already informed, they are not looking for the job but, if it is settled on to them, they will take care of it. Mr. BRYAN. Yes.

Mr. THOMPSON. Since you are about to close let me express great appreciation of your patience and generosity in holding this hearing and staying with it so long.

Mr. LANE. Thank you, Congressman Thompson.

A letter addressed "Hon. Emanuel Celler, chairman of the Committee on the Judiciary” under date of May 9, 1955, will be inserted in the record at this point.

(The letter is as follows:)

DEPARTMENT OF THE ARMY, Washington, D. C., May 9, 1955.

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

House of Representatives.

DEAR MR. CELLER: Reference is made to your letter of April 20, 1955, relative to the hearings on H. R. 4045, 84th Congress, a bill to provide for settlement of claims for damages resulting from the disaster which occurred at Texas City, Tex., on April 16 and 17, 1947, presently scheduled for May 11, 1955, before Subcommittee No. 2 of the Committee on the Judiciary, House of Representatives, and the advisability of having a representative present the views of the Department of the Army at such hearings.

The Secretary of Defense has been asked to report the views of the Department of Defense on the bill and has delegated the responsibility therefor to the Department of the Army. The Army report is in the process of being coordinated