remedy against the Federal Government and that was to petition Congress for relief. The Federal Government had long followed the accepted rule of sovereign tort immunity, that is, that no action lies against the Government of the United States unless Congress has authorized it. The only relief available to a claimant was by way of a private bill to Congress. However, the private bill method of petitioning Congress for relief was notoriously clumsy, and in recent years the tremendous volume of private legislation was impairing the efficiency of both Congress and the President (H. Doc. 562, 77th Cong., 2d sess.). Some simplified recovery procedure for the great mass of claims was imperative. As a solution Congress enacted the Federal Tort Claims Act affording access to the Federal courts for tort claims within its scope (28 U. S. C., secs. 1346, 2671-2680). Government's liability for negligence similar to that of private person

Congress, through this act, waives the Government's immunity from actions for injury to persons and property occasioned by the tortious conduct of its agents and employees carrying out its work. The act defines this tort liability of the Government as similar or analogous to that of a private person. Section 1346 (b) thereof imposes liability on the Government

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. [Emphasis supplied.]

Act contains exception; no governmental liability for performance of "discretionary function"

Section 2680 (a) of the act, however, notes an exception from the scope of the provision quoted above. That provision does not apply

to

Any claim ✶✶ ✶ based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion be abused. [Emphasis supplied.]

Decision of Supreme Court

It was this latter section which the Supreme Court invoked as the legal basis for denying the litigants relief under the Federal Tort Claims Act. The Court pointed out that the acts of "negligence" found by the district court were performed in the exercise of a discretionary function or duty and that section 2680 (a) assured protection for the Government against tort liability for errors made in the exercise of discretionary functions. This is made clear by the following language appearing in the majority opinion (p. 32):

An analysis of section 2680 (a), the exception with which we are concerned, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue.

The Court also stated (p. 24):

Even assuming their correctness arguendo, though, it is our judgment that they do not establish a case within the act. This is for the reason that as a matter of law the faets found cannot give the district court jurisdiction of the cause under the Tort Claims Act.

It is unnecessary to analyze the Court's decision for the purpose of determining what exactly the words "discretionary function" mean

and what acts they encompass. It is sufficient, for the purposes of this report, to point out that the Court based its decision upon the construction and interpretation of those words, and held as a matter of law that the courts could not take jurisdiction of the claims. The Supreme Court did not go into the question of whether or not the Government was at fault; it did not hold the Government free from negligence. It simply held that even if it was to assume that the Government was negligent there could still be no recovery because the courts, on account of the wording of the Tort Claims Act, were without power to grant relief.

Thus it is clear that the claimants had no day in court. Rather, because of the majority decision of the Supreme Court, they were put into the same position they would have been in if there never had been a Tort Claims Act, namely, a position of seeking relief directly from the Congress. No doubt the House of Representatives in unanimously adopting House Resolution 296, 83d Congress, which authorized its Judiciary Committee to investigate the Texas City disaster claims, concluded that, because of the Supreme Court decision, substantial justice may not have been afforded to all those who sustained damage either by death or injury to person or property as a result of the catastrophe.

Congressional action would not invalidate Supreme Court decision

It should be emphasized however, that, in adopting House Resolution 296, Congress was not attempting to supersede or invalidate the controlling decision of the Supreme Court, laid down in the Dalehite case. Congress, prior to the passage of the Tort Claims Act, repeatedly entertained claims and concerned itself with legislation which provided relief for parties in situations analogous to that submitted to this committee for investigation. In addition, since the passage of the Tort Claims Act, Congress has invariably exercised its jurisdiction to legislate when it was satisfactorily established that for compassionate reasons or in equity and in good conscience remedial legislation was necessary to fill a void created by existing law.

With this statement of the Supreme Court's construction of the Tort Claims Act and its inapplicability to the situation herein, we turn to the question of the claimed responsibility of the United States Government for the Texas City disaster.

UNITED STATES GOVERNMENT'S FOREIGN AID FERTILIZER PROGRAM FOR OCCUPIED AREAS

Toward the end of the hostilities of World War II, it was recognized that an acute world food shortage existed. The problem of increasing the supply of food became an integral part of the United States' occupation and administration of enemy territories. Secretary of War Patterson wrote that unless "the urgent requirements of Generals MacArthur and McNarney for the occupied areas" were met "in real volume, we anticipate ***famine conditions." According to the Secretary's representative, "The occupying commanders in Germany, Japan, and Southern Korea report that the choice may be considered one of supplying additional food or additional troops to control the conquered peoples."

Quantities of food necessary to alleviate the problem were not in existence. Even if food had been available, shipping capacity to

transport it could not be obtained. The use of fertilizer, therefore, to increase the production of foodstuffs in occupied areas presented an obvious means of avoiding widespread famine and unrest. A ton of fertilizer can produce 7 tons of food and it helps people in occupied areas, in permitting them to grow their own food, to help themselves. The securing of fertilizer for occupied areas was therefore a practical solution to a difficult problem.

Under its program of supplying fertilizer for occupied areas, the Government produced the material known as fertilizer grade ammonium nitrate (hereafter referred to as FGAN or fertilizer). FGAN as a fertilizer had been recognized for several years in agriculture. This was due to the fact that ammonium nitrate, the basic ingredient for FGAN, has a high free nitrogen content, an essential to plant growth. Furthermore, the Government had 15 surplus ordnance plants readily convertible for the manufacture of ammonium nitrate fertilizer. When it became clear that the Government could produce a satisfactory fertilizer and also utilize its surplus ammonium nitrate facilities, Secretary of War Patterson decided that the program should be undertaken. He "reported in substance this decision to the Cabinet" where it was "approved and the decision was to go ahead with this production."

Production of fertilizer

In May 1946, the Director of the Office of War Mobilization and Reconversion requested the War Department "as an emergency matter for national defense" to undertake the production of the fertilizer program "without delay, and to take whatever action is appropriate to expedite the attainment of maximum production." The wartime plants were released to the Secretary of War and the Army Chief of Ordnance was directed to carry the program into effect.

The Army entered into a number of cost-plus-fixed fee-contracts with private firms-including the Du Pont Co. and Hercules Powder Co. to "operate the installation *** described herein for the graining of ammonium nitrate (fertilizer grade)," but subjecting "the work to be done by the contractor*** to the general supervision, direction, control and approval of the contracting officer." A detailed set of specifications was drawn up and sent to each plant. Army personnel were appointed to the plants and they were responsible for the application of these specifications and the meeting of production schedules, pursuant to an Army standard operating procedure.

Basic ingredients of fertilizer

The basic ingredient of FGAN was ammonium nitrate, long used as a component in explosives. Its military use was primarily in combination with TNT to form amatol, an explosive used in World War I and the first years of World War II. Pure ammonium nitrate, aside from its high nitrogen content, was not by itself, however, suitable as a fertilizer because of its hygroscopic property (i. e., its capacity to absorb moisture) which caused it to harden and cake, making it impractical for general agricultural use. A coating to moisture proof ammonium nitrate was needed. For this coating the Government turned to a patent for blasting explosives owned by the Hercules Powder Co. and known as the Cairn process (Cairn's Explosive Patent No. 2,211,738). This coating consisted of a mixture of petrolatum,

rosin, and paraffin (referred to as PRP). In the manufacture of FGAN the Government first produced pure ammonium nitrate in certain other Government-owned plants and shipped it in solution to the reactivated graining centers for processing. There in the processing, a mixture of petrolatum, rosin, and paraffin (PRP) was added to insure against caking through water absorption. The material was then granulated to specifications, dried and packaged in 6-ply paper bags, marked "FERTILIZER Ammonium Nitrate."

Purchase of fertilizer from private producers

When the plan to reactivate idle ordnance plants was conceived, it was apparent that those plants would be unable to produce sufficient quantities of fertilizer to meet the early requirements of the program. The War Department therefore requested an allocation by the Combined Food Board of sufficient fertilizer produced by privately owned commercial producers to meet its early need. This fertilizer was to be purchased under a sell-back arrangement whereby the fertilizer "borrowed" by the Government was to be returned in kind to the private producers out of future production under the program.

GOVERNMENT'S KNOWLEDGE OF DANGEROUS

FERTILIZER

CHARACTERISTICS OF

Background of ammonium nitrate, basic ingredient of FGAN

The Government knew it had a good fertilizer in FGAN. It was also aware of the fact that FGAN possessed certain dangerous qualities. Ammonium nitrate, the basic ingredient of the fertilizer FGAN, had a formidable reputation for treachery. Over the years it had caused, through explosion, considerable destruction of property and lives. For example, at Oppau, Germany, in 1921, 5,000 tons of ammonium nitrate, even though diluted with more stable ammonium sulphate, exploded with the loss of 586 lives, injury to 2,000 persons, and the substantial wiping out of the entire town of Oppau. And in Kensington, England, in 1896, ammonium nitrate exploded while being heated in an iron retort to produce nitrous oxide (laughing gas) for dental use, and destroyed the plant.

In addition to the physical evidence of disasters demonstrating the lethal qualities of ammonium nitrate, there was considerable evidence in the record, such as TVA reports, Bureau of Mines Bulletins, Army Ordnance manuals, and expert testimony, pointing to the fact that excessive heat, carbonaceous and other sensitiving materials, either alone or in combination with each other, would increase the explosive propensities of ammonium nitrate.

Development in 1943 of FGAN

With this knowledge, namely, that ammonium nitrate when subjected to high temperatures, contamination, carbonaceous and other sensitizing forces would explode, the Government in 1943 commenced the production of FGAN. In that year TVA, acting under its statutory delegation to undertake experiments and manufacture fertilizer (48 Stat. 61; 16 U. S. C., sec. 831 (d)) began the production of ammonium nitrate as a fertilizer, using surplus plant facilities formerly used by the Government for the production of ammonium nitrate as an explosive. TVA requested the Bureau of Mines, an agency intimately concerned with explosives testing, to conduct tests on

several types of ammonium nitrate fertilizer made up by TVA. The Bureau advised that because of crowded conditions it was not in a position to make any large-scale tests but that in general it would not favor the mixing of organic materials with ammonium nitrate. It stated:

In general, we do not favor the mixing of organic materials with ammonium nitrate and are of the opinion that while such mixtures may not be unduly sensitive, accidents due to other causes may be attributed to such mixtures to the embarrassment of those who are responsible for their use. We are very conservative in the recommendation of mixtures that have not been subjected to extended experience and tests for some of the reactions may be slow and some of the decomposition products may have an unexpected sensitivity. It would be our advice, therefore, that you do not promote such new mixtures unless they are imperative. For the foregoing and other reasons we do not favor the making of tests upon the mixtures you have suggested. Certainly we are not in a position to make any of the large scale explosion tests that are described in Research Bulletin No. 20 of the Underwriters Laboratories of December 1940 because of the crowded conditions in our Explosives Testing Station at Bruceton. We can make impact and friction tests but would request that you do not use the Bureau's findings in the promotion of the mixtures for reasons that I have indicated above.

As a result of that advice a series of conferences took place, attended by representatives of the War Production Board, responsible for allocation of fertilizers, the Department of Agriculture, the TVA, representatives from private industry and representatives of the Canadian Government. It was agreed that tests on the explosive nature of ammonium nitrate fertilizer were needed and that the tests be conducted by the Underwriters Laboratories. A contract between the War Production Board and the Underwriters Laboratories was signed in March 1944.

Meanwhile, and in November 1943, TVA and three ordnance plants started production of FGAN for commercial use.

Tests abandoned

In a series of reports to the War Production Board pursuant to the contract, the Underwriters Laboratories emphasized that test results clearly demonstrated that ammonium nitrate coated with organic matter was more sensitive to detonation than straight ammonium nitrate. In addition, the tests shows that its sensitiveness was further increased when subjected to increases in temperature. These findings led to the recommendation that FGAN be submitted to a number of further tests to determine the effect of increased mass, confinement, and a long preheating period. These tests were never completed, however, but were terminated at an intermediate stage despite the protest of the Underwriters Laboratories and in the face of the suggestion that further research might point up suspected but unverified dangers.

In addition, at about the time the Underwriters Laboratories undertook the testing of fertilizer for the War Production Board, an explosion at Wolf Creek Ordnance Plant brought about by oil-contaminated ammonium nitrate, caused Army Ordnance to seek advice from the Bureau of Mines and several commercial producers with long experience in the manufacture of explosives, concerning the hazards of adding coating mixtures (PRP), to ammonium nitrate at high temperatures. In answering, Hercules Powder Co. and Atlas Powder Co. each emphasized the extreme hazard involved in such a product. The Bureau of Mines pointed up the need for more testing. Du Pont Co. reported that it had completely discontinued the coating of am