But interspersed through this opinion are statements which reject, as the relevant parts of the opinion, the findings of negligence of the district court. One example is labeling of this substance. It is said it was labeled "fertilizer." It was also labeled "ammonia nitrate" in large, visible letters.

The Supreme Court said that even though the district court found that the Government should have labeled this as an explosive, that it was very likely a violation of the Interstate Commerce Commission's and Coast Guard's regulations to label it as "explosive." It was labeled as it was required by the Interstate Commerce Commission and Coast Guard regulations.

Mr. FORRESTER. May I interrupt you?

The statement was made that the Government manufactured that fertilizer. Did the Government manufacture it?

Mr. LIFTIN. It is not quite that. It was a cost-plus contract manufacturer who manufactured this for the Government.

Mr. FORRESTER. If the Government did it, or had any part in it,' it was either a legal one or had been sanctioned by the authority of the Government of the United States. If the Government of United States sanctioned it, could there possibly be any doubt about it?

Mr. LIFTIN. You put your finger on the heart of the argument which we call the discretionary function examined under the Tort Claims Act. That is the essence of the legal basis on which the case was thrown out as a matter of law, namely, that certainly the Government in the exercise of its discretion could undertake this program.

Mr. FORRESTER. Here is what is going on in my mind.

No. 1. If it is legal then there can be no right of action. If you proceed according to law it is controling. Then the next question comes up to me that if pursuant to the performance of a legal authority then would the Government be liable if someone in carrying out that authority did not exercise the proper discretion.

Mr. LIFTIN. If there was negligence of individuals in carrying out the program-for example, if a Government truck loaded with some of this fertilizer, carrying it to a railroad depot or to a plant, and they drove at an excessive speed or otherwise negligent in carrying out the program if they did not follow the specifications in the directives and introduced substances which made it much more dangerous

Mr. FORRESTER. Then they are liable. But if it is an act of discretion how about that?

Mr. LIFTIN. Now, we are getting into what is a very cloudy area of the law. If it involves what we regard as governmental judgment that is not simply negligence in the course of a man's dutythat is someone making a decison that the Government needs this fertilizer and we ought to ship as ICC regulations require we ship it, and we ought to come for instructions, and do other things governing the way it has always been done-and this is a matter of governmental decision, then we say those are discretionary functions and the courts cannot question the executive decisions in these matters. Mr. FORRESTER. And the Government waives immunity on acts of discretion.

Mr. BURGER. In other words, the injured persons in that position would be in the situation that one would be in where the Government

forbade the making of intoxicating liquor. Then, no liability would be allowed in the courts nor in the Congress.

Mr. DONOHUE. Where would the discretion be insofar as those actions were concerned? As I recall the case, the Government undertook to send this amonium nitrate to France and they were loading these boats down in Texas City.

Mr. BURGER. That is correct.

Mr. DONOHUE. And the negligence came about in the loading of these packages of ammonium nitrate aboard ship. It that right? Mr. BURGER. That was an allegation that there was negligence but the Government had nothing to do with the loading.

Mr. DONOHUE. I thought that was pretty well substantiated by the people who participated in the loading of the vessels.

Mr. LIFTIN. I would say there was a lot of evidence on that score. But there was no finding that the negligence is found there.

Mr. DONOHUE. Perhaps I am not approaching it as I should. The Government undertook to ship this ammonium nitrate to France. Is that correct?

Mr. LIFTIN. That is correct. It was going to France.

Mr. DONOHUE. The Government was the principal and they were carrying it out through this transportation company.

Mr. LIFTIN. Yes; but they were all private facilities-the local railroad, the local warehouse, and the shipping companies. The United States has no part in that.

Mr. DONOHUE. It is the old theory that whoever sets in motion a dangerous instrumentality is responsible for whatever happens in the course of carrying out the use of it. If these is any taint of negligence connected along the line

Mr. LIFTIN. Going back on that doctrine that is limited to things which are inherently dangerous-and that does not apply here. It is not inherently dangerous. It is not known to be dangerous. It is shipped as a perfectly safe substance-not as an explosive.

Mr. DONOHUE. Well then, before this was used and determined as useful for agricultural purposes for fertilizer, what did the Government use it for?

Mr. LIFTIN. Ammonium nitrate had been used as a component of an explosive but it had gradually grown into disuse because ammonium nitrate was not sensitive to detonation. Once you got it to explode it exploded with immense force. It is an ingredient of TNT. But it is the other substance with it that makes it sensitive to explosion.

The principal characteristic of the ammonium nitrate is that it gives great force to explosion once it can be made to explode. But it had grown into disuse even during World War II because it was not readily subject to explosion. It had always been used as fertilizer.

Mr. DONOHUE. But the Government was using it and manufactured it for the purpose of explosives?

Mr. LIFTIN. It had been used in that connection.

Mr. DONOHUE. And it was stored right up until this particular time when they decided to send it to France to be used in the matter of waging war?

Mr. LIFTIN. I do not think so.

Mr. BURGER. This was specially made for the special purpose of being sent to France as ammunition.

Mr. DONOHUE. I think it was surplus property manufactured by Hercules.

Mr. BURGER. It has often been said in this case but there is not one iota of truth in it. It was manufactured specially to be sent to France for a fertilizer so France would grow food and not be a ready victim for communism.

Mr. FORRESTER. I got this impression that the Government determined to have this fertilizer made to carry on the war effort.

Mr. LIFTIN. It is the same as FOA.

Mr. FORRESTER. That they concluded that food was more necessary than guns.

Mr. LIFTIN. That is right.

Mr. FORRESTER. That they could not bring the food over there in sufficient quantity, that they had to approach it by getting all the people over there to grow what food they could and to that end they gave them the fertilizer.

Mr. LIFTIN. That is right. They could carry in the hold of a ship so much flour and meat but in the hold of that same ship they could carry enough fertilizer to make 50 times that much flour grown right in France.

Mr. FORRESTER. And after the Government determined it was to be done to furnish food to its people.

Mr. LIFTIN. This is, of course, after we were in control of France after the war.

Mr. FORRESTER. After having decided to make that fertilizer then it follows the Government may have decided how they were going to label that fertilizer or the package. If they did make some decision as to how it would be packaged and labeled then, if the subordinates carried out that decision, I am wondering how the Government can be liable even if it were negligent.

Mr. LIFTIN. That is the result of the decision of the Supreme Court. They held it could not be liable. It was being shipped and handled just the way private fertilizer companies would do it.

Mr. MILLER. May I make an observation?

Perhaps it would clarify the reasons for your presence. In my opinion-I am a new member of this committee and I know nothing about this except what I have been able to learn in the last few hours after realizing that this meeting was going to be held.

I have no idea that we are sitting here as a disaster relief committee. I know of no jurisdiction under which we could so sit nor of any legal right we would have to appropriate Government money purely on the basis of disaster relief.

Our committee, as I understand, has the jurisdiction to award to claimants certain sums of money where they have no recourse under the law and where no statute exists which permits suits against the Government. But because of the equities of the situation we are permitted in cases where the facts warrant to pass private bills giving relief.

Now, it would, therefore, seem to me that the only basis upon which this committee could report out a bill such as this favorably would be on the basis of the fact that the Supreme Court erred in its interpretation of the intent of Congress in passing the Tort Claims Act. In other words, the Supreme Court took the position, and so did the appellate court.

In the brief time I had to read the decisions, if these things happened in the area of discretion of the Government then the Government was not liable, nor did it waive its immunity under the Tort Claims Act because of the specific exception within the Tort Claims Act.

However, I am inclined to be in accord with the opinion of a judge of the court of appeals who said he felt that was not the intent of Congress; that once you have used your discretion and reached a decision, then certainly the Government would be liable if you were negligent in carrying out the decision reached in the course of your discretion.

If that was the intent of Congress, and there is evidence that the Government was negligent, supposing the Coast Guard says, "This should be labeled 'sugar'" then someone would have to label it. It would be a negligent act on somebody's part in a case such as this if this committee held that the Supreme Court's decision was not based on the original intent of Congress. We could rectify this on the Tort Claims Act, but as far as these people are concerned it is stare decisis. Then we could have a private bill as though the Supreme Court had construed the intent of Congress properly.

Mr. BURGER. If I may say so, Mr. Congressman, and I hope the committee will accept this in a very temperate spirit in which I utter it, if the committee is going to go in that direction, you will open a Pandora's box that will go back to where it was before this accident occurred. I have no position on that.

It would, I assure you, be a Pandora's box if the Congress is going to try to second-guess the courts under the Tort Claims Act and that would be the inevitable consequence of taking cases not covered by the act and then trying to examine them.

I have now litigation down in Florida involving some $30 million against the Government between a Navy plane and a Cuban airline. If what you say is true it might well bring all these litigants up here to retry the case and Congress cannot give it the attention and the time to determine these close questions of fact in a multiple-disaster case. It could not do it in even a simple crossing-accident case. You have much more important work to do than spending a week trying one

lawsuit.

I suggested at the outset and, perhaps, I misinterpreted something which came to me from a member of the committee at some time or other, that the approach was not to try what had been tried in the orderly process of the courts which they have already decided. You are not going to do that over.

What you are trying to do-probably in any disaster relief-is to give compassionate relief, taking into account the equities of the individuals there in Texas City who themselves were free from any responsibility. Whoever was responsible we can check off that list. We cannot check off the people who had arms and legs blown off. Another group of people here who have never been litigants are affiliated people. Obviously, the Lion Oil Co. and the French buying commission could not respond in damages in the amount here.

As a lawyer, I have made up my mind that this is why they sued the United States, because it was the entity that could be sued for an amount running into millions of dollars.

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Mr. BOYLE. That surely does not give them any basis for Congress to give substantial relief or for the Judiciary Committee sitting as a court of equity to give these private individuals a pass when they were in fact tort feasors or joint feasors. That is no justification at all.

I think they misconceive their remedy and they surely could have demonstrated under section 14 of the claims subcommittee's rules that they exhausted their administrative and legal remedies before they come in here and ask us to do some justice when the people who were primarily responsible for doing that

How many of these 8,000 claims came under the Compensation Act? Mr. BURGER. I could not answer that. Perhaps Mr. Liftin can. Some of them can. But that issue was never reached in this lawsuit. Bear in mind they picked out a group of test cases and said, "We will just try the liability question and we will not get into damages. We do not have all this information about damages by any means. We never had to get to the damage question. We have some information about it." That would include information as to which of these individuals received workmen's compensation.

Mr. BOYLE. Well, that is for subrogation. But just looking at it on the cold physical facts, when we see a situation such as this, you want to go right back to the first element and see if the producer was negligent and see if the shippers or handlers were negligent. If any one of these three were negligent they should have been made a respondent in damages.

Mr. LIFTIN. As a practical matter they probably could not pay out a hundred to two hundred million dollars. As a practical matter all of them put together would not have that much money unless you could get the French Government into the act.

Mr. LANE. In order to help Mr. Boyle I might place in the record the Department of the Army report sent up to us on May 10. By the way, they are opposed to this bill.

(The report of the Department of the Army is as follows:)

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

DEPARTMENT OF THE ARMY, Washington, D. C., May 10, 1955.

House of Representatives.

DEAR MR. CHAIRMAN: Reference is made to your letter inclosing a copy of 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, and requesting a report on the merits of the bill.

The Department of the Army is opposed to the above-mentioned bill,

This bill provides as follows:

"That this Act may be cited as the "Texas City Claims Act'.

"SEC. 2. (a) There is hereby established a commission to be known as the Texas City Claims Commission (referred to in this Act as the 'Commission'), which shall be composed of three members to be appointed by the President. The President shall designate the member of the Commission who shall be chairman thereof.

"(b) Two members of the Commission shall constitute a quorum.

"(c) The members of the Commission shall each receive $50 per diem when engaged in the actual performance of duties vested in the Commission, plus reimbursement for travel, subsistence, and other expenses incurred by them in the performance of such duties.

"(d) The Commission shall have the power, without regard to the provisions of the civil-service laws and the Classification Act of 1949, as amended, to appoint and fix the compensation of such personnel as it deems necessary for the purposes of the performance of its duties, and the appropriations therefor are hereby authorized.