Mr. LANE. Just before you go on, Mr. Usher Burdick has a few questions.

Mr. BURDICK. This litigation has been going on for some time.
Mr. BURGER. Six years, Mr. Burdick.

Mr. BURDICK. Has it ever been determined what the proximate cause of this explosion was?

Mr. BURGER. It has not.

Mr. BURDICK. Why?

Mr. BURGER. Well, the litigants in this case elected to go up on a relatively narrow question and as against only one person; suing the United States as a person.

What you are trying out might have been accomplished by a suit brought against the United States and all the other people: The Lykes Bros., Lion Oil Co., the Terminal Co. The French have had to get jurisdiction. If all these parties had been before the court and the cause of action had been predicated on the negligence of somebody as you normally do in a negligence case that issue might have been decided. But these litigants decided to sue only the United States Government and let these people out. Then, by narrowing that they had either to prove negligence in the United States and they could not do that. So it was not in their interest to bring in evidence of any other litigant except the United States.

Mr. BURDICK. It is well established that there was an explosion. The first thing to do was for this Government to oil its machinery and use the courts to find out what caused that explosion.

Mr. BURGER. The courts have gone through the process of determining whether the United States

Mr. BURDICK. They said they were not concerned about them.

Mr. BURGER. Some of the judges did-just in limited concurring opinions. But that is not the sweep of the whole Nation. The courts said at times, we do not have to reach the question of whether the United States Government was actually negligent. But they also said—at least 3 of the judges of the court of appeals said that there was no evidence to support the trial court's finding that there was any negligence on the part of the United States and we think that is a very definitive finding.

Mr. BURDICK. You have been identified with these lawsuits a long time?

Mr. BURGER. Two years and 4 months.

Mr. BURDICK. Have you come to any conclusion yourself as to what was the proximate cause of it?

Mr. BURGER. The only conclusion I can come to is that the United States Government was not responsible for any of it. That, I can say categorically, was my opinion.

Mr. BURDICK. And to ask who else was responsible was not in your field?

Mr. BURGER. That is right.

Mr. BURDICK. The Government is not negligent or responsible. What is this case doing in here?

Mr. BURGER. I could not answer that. I could not answer that because I suppose it is the right of the citizen to petition the courts. Mr. BURDICK. If you do not answer it some one else will have to.

Mr. BURGER. There is no unwillingness on my part to answer it. My answer would only be conjecture and one conjecture would bethis is the last place for them to come.

Mr. DONOHUE. May I carry Mr. Burdick's thought a little further. You came to the conclusion that the United States was not at fault on negligence?

Mr. BURGER. That is right.

Mr. DONOHUE. In arriving at that, what process did you follow through in coming to that conclusion-that someone else was to blame? Mr. BURGER. I did not have to go that far.

Mr. DONOHUE. In approaching your conclusion there was an explanation, as Congressman Burdick points out, and some one else was responsible. Did you come to the conclusion that the United States was not responsible?

Mr. BURGER. That is correct. That is my opinion.

Mr. DONOHUE. Arriving at that conclusion did you consider other factors that would indicate that the United States was not at fault? Mr. BURGER. Well, that would cover the whole field of evidence that might have been put in evidence.

Mr. DONOHUE. Did you consider the entire field of evidence?

Mr. BURGER. The entire field of evidence pending before us in this lawsuit. They did not show the cause of the Lion Oil Co. Some acts of each of them were involved.

Mr. DONOHUE. But the history of the entire case comes down to sending fertilizer under a foreign-aid program.

Mr. BURGER. That is right.

Mr. DONOHUE. And the United States said, "Yes, we will give you that fertilizer." And they, under an Army patent, proceeded to manufacture it through the different chemical outfits.

Mr. FORRESTER. Muscle Shoals?

Mr. DONOHUE. No. I think this came from one of the middle States-Iowa.

Mr. BURGER. It is our recollection that this was manufactured in a plant down in Nebraska.

Mr. DONOHUE. It was manufactured under supervision of an Army patent which had to do with the manufacture of an explosive. That is correct; isn't it?

Mr. BURGER. Your supervision, Mr. Congressman, is the kind of supervision that the Government deals with whenever it is buying anything. It is not the active supervision of telling them how to do it and participating in the manufacturing process; no.

Mr. DONOHUE. But after they manufactured it, the Government says, "We will borrow this and return to you something in kind"? Mr. BURGER. I think that was part of the arrangement.

Mr. DONOHUE. And the arrangement with the Republic of France was that we, the Government, would see it would arrive over in France?

Mr. BURGER. I would like to have Mr. Liftin answer that because he is so much more familiar with that than I.

Mr. LIFTIN. The program originally was for the manufacture of ammonium nitrate fertilizer in what were then idle plants which were going to be put back into action. The fertilizer involved in this explosion was fertilizer to ship in accordance with that program. It was a fertilizer being paid back for fertilizer that had been pre

viously borrowed in order to meet the program of getting fertilizer abroad quickly.

Mr. DONOHUE. You mean we were getting back to France something

Mr. LIFTIN. No sir: because of the allocation of various commodities, there was a shortage of this fertilizer and in order to get this fertilizer from private companies we, in fact, borrowed the fertilizer and then returned the identical kind of fertilizer after it had been manufactured in these reactivated ordnance plants.

The fertilizer which exploded in Texas City was fertilizer manufactured under the Government's program by a cost-plus contractor but which had been given back to the Lion Oil Co. from which the Government had previously borrowed comparable amounts of fertilizer.

After the Government gave it back, this fertilizer was, in effect, shipped by the Lion Oil Co. in the same way as fertilizer manufactured by any private manufacturer. At that time allocations were still being made and under the allocation system the Lion Oil Co., in the same way as any private manufacturer or dealer in this identical commodity-and there were others-sent it to Texas City for shipment to France. The Lion Oil Co. arranged this shipment to Texas City-that is, it asked the Government to put it on rail cars for destination to France, under the United States arrangement with the French supply consul.

This was private fertilizer. At all times after it had been turned out of the plant and put on rail cars, in the sense the Government was paying back fertilizer it had borrowed and was doing with the fertilizer what the lender had asked it to do. It asked it to send the shipment to France. As a matter of fact, the Lion Oil Co. had been paid by the purchaser and the purchaser had recovered its insurance * on the fertilizer that had been destroyed. So there is no question but this was a private fertilizer, after it had left the plant which a private contractor had been operating for the Government, so the Government could pay it back.

Mr. DONOHUE. Whose business was it to see it was shipped and stored?

Mr. LIFTIN. Well, it certainly was not the business of the Government to do anything with the storage of it in Texas City. Mr. BURDICK. How did the bills of lading read?

Mr. LIFTIN. I would have to refresh my recollection.

Mr. BURDICK. They read: "United States Government."

Mr. LIFTIN. The ocean shipment did not, Mr. Congressman. The Government put them on the rails for the shipment. The Government put it on the rail cars but it was at the direction and in accordance with all the Interstate Commerce Commission specifications and industry practice. But certainly, at the time this exploded, there were no Government bills of lading.

Mr. BURGER. These were private bills of lading for shipment to France. And this the Supreme Court majority opinion found. It is not a finding in doubt. It was resolved. When the Government put this on the cars it had no further control over it.

Mr. DONOHUE. In other words, is it so that in arriving at your conclusion that the United States was not at fault. It was the fault of the Lion Oil Co.

Mr. BURGER. It might have been.

Mr. LIFTIN. If the shipper had any special obligation to this it would have been. There may have been incidents associated with the stowage of the fertilizer in connection with the holds of the vessels. When the Coast Guard made its investigation there was found smoking. This was a fire hazard and the Coast Guard hearings indicated there was smoking on the vessel when this was aboard.

Mr. LANE. And there was also evidence that these bags were so hot when being loaded that the men could not handle the bags.

Mr. LIFTIN. I think there is conclusive evidence the other way because it could not be so because of the length of time the bags were on the dock. They could not be so hot. It was not accepted by the court. And the heat talked about presents no problem so far as scientific knowledge is concerned so far as spontaneous combustion is concerned.

Mr. DONOHUE. Are there not cases where it could have happened? There was one in Baltimore port.

Mr. BURGER. In France there was an explosion set off in underwater demolition work and they know that will set off an explosion of ammonium nitrate. Scientific opinion is unanimous that in the condition of transportation, if this is handled as an oxidizing material is handled, there is no donger of fire and explosion. The precautions relative to that oxidizing material, as recorded by the Interstate Commerce Commission and Coast Guard, must be taken. When that is done it is safe for transportation.

Mr. DONOHUE. Was that done in this case?

Mr. BURGER. All the precautions may not have been taken but the material was shipped as an oxidizing material.

Mr. LIFTIN. By the Lion Oil Co.

Mr. BURGER. And if the precautions were not taken it was the fault of the carriers or loaders and others.

Mr. LIFTIN. When you have an oxidizing material the only way to put out a fire is by cooling it and introducing water and in the cir-: cumstances here steam was introduced and you can see the publications cited in our brief which show that you just raise the heat and make it worse. If water was introduced as every shipmaster could have known this would never have occurred.

Mr. DONOHUE. Who promised France that they would get this fertilizer over to them?

Mr. BURGER. The United States did not promise that. I do not know that anyone promised that this fertilizer would get to France. Mr. DONOHUE. Did they get a commitment to ship any amount of fertilizer to France?

Mr. BURGER. I do not know whether or not that is correct. This fertilizer was not shipped in fulfillment of such a commitment.

Mr. LANE. Right there, would you be kind enough to allow us to interrupt at this moment. We have a very distinguished visitor, and he is anxious to get back over to the Senate. He is interested in this subject, and I would like to have Senator Price Daniel of Texas heard. He is anxious to get back to his committee in the Senate, and we promised we would give him an opportunity to address the committee first this morning.

Mr. BURGER. We will gladly yield, Mr. Chairman.

T

Mr. LANE. Senator, we are honored to have you here and appreciate your kindness in coming over to express your views on this subject.

STATEMENT OF SENATOR PRICE DANIEL, OF THE STATE OF TEXAS

Senator DANIEL. I appreciate this privilege, Mr. Chairman and members of the committee. I appear not with any detailed statement but simply to say, as coauthor of the bill with Senator Lyndon Johnson in the Senate, that we, of course, want to express our interest in your deliberations here and our appreciation of this committee for the work it has done in this matter in the past. And as a member of the Judiciary Committee of the Senate, I also want to say that I believe our committee will take prompt action and give this matter more study at this session than we were able to last session.

Of course, I believe that the Government is responsible. I believe that when this committee reviews the evidence, as the committee did last time, that you will find yourself justified in reporting again as this committee did last time after hearing the evidence that the United States Government is wholly responsible for the explosions and resulting catastrophe at Texas City; that the disaster was set in motion by the product completely controlled, or controllable, by it. In answer to what has just been stated in this matter as to whether the Federal Government originated this manufacture as part of its foreign aid program, I think the Supreme Court on that point made a clear finding and I am reading from the majority opinion of the Supreme Court:

This fertilizer had been produced and distributed at the instance, according to the specifications and under the control of the United States.

At least two hearers of the facts did find where the negligence rested in this disaster.

First, the district court found the Federal Government and its agents were negligent. And then this committee of the House of Representatives found the same thing. And I believe as you go into this evidence further that you are justified in making a similar report to the one you made last session.

I say to you gentlemen of the committee that I know of no claimant here who is not free from negligence. This is the first time I have heard it intimated that any of the claimants are subject to negligence, If they are, we should hear the proof and if they contributed to it then certainly they should not be compensated.

I think the same principle under which we would pay private individuals who suffered because of this disaster for which the Government was responsible-under the same principle Congress should pay corporations and those who have suffered from the destruction of their business and their property. I think the same principle should apply.

But, of course, I am primarily interested in the people who have suffered physical injury. I think about 570 deaths occurred and the injured ran into 3,500 or more. These people-I really cannot understand why the Congress of the United States cannot bring them some relief. Certainly they were not at fault, as Mr. Burger has said. They cannot understand how the Japanese citizens can be paid for injuries