"Some important distinctions between subrogation precedents referred to by Mr. Bryan and in the present matter are the circumstances that in the present situation (1) it has been established by the highest court in the land that there is no legal liability on the part of the United States."

"Charges against the Government by counsel for the insurance companies and other claimants are not new in the Texas City litigation and have given rise to most unusual judicial utterances and action in the course of the proceedings which should warn the members of this subcommittee as unanimously recognized by the court of appeals that these charges are very poor substitutes for evidence."

Official Report, Bureau of Mines Bulletin RI 4245 (record, p. 21829), found "from this published material it can be seen that the literature available to the general public and to those persons who normally would be expected to handle the shipping of ammonium nitrate did not indicate an explosion hazard even when the material was involved in fire" (record, p. 21829). [Italics supplied.]

The same Rinkenbach, having a high office at the Picatinny Arsenal, the official testing laboratory of the Army, stated February 13, 1948, "It is only recently that nearly pure ammonium nitrate as such has been produced and marketed for use as a fertilizer" (record, p. 26169).

The official USCG Board of Inquiry into the explosions and fires at Texas City in its finding No. 2 condemned the United States Government as follows: "The shipping officers of the United States Army, Ordnance Plant, West Burlington, Iowa, the Cornhusk Ordnance Plant, Nebr., and the Nebraska Ordnance Plant, Firestone, Nebr., violated section 417 of the ICC regulations governing the transportation of explosives and other dangerous articles, dated January 7, 1941, and in effect at time of shipment, by describing the substance offered for transportation by rail under shipping name not authorized by subject regulations" (record, p. 20675).

The Supreme Court of the United States did not decide legal liability but simply decided that there was no jurisdiction and forum in which to try the legal liability of the Government for the disaster at Texas City. The majority opinion states, "This is for the reason that as a matter of law the facts found cannot give the district court jurisdiction of the cause under the Tort Claims Act." Again stating, "an analysis of section 26 80 (A) the exception with which we are concerned emphasizes the congressional purpose to accept acts here charged as negligence from the authorization to sue."

The Department of Justice and the Attorney General have just recently recommended to the Senate Committee on the Judiciary one of the claimants' attorneys referred to in the paragraph on the left as being a proper and qualified person to sit on the Court of Appeals for the Fifth Circuit Court at New Orleans. It is difficult to reconcile this recommendation of the Attorney General with the language appearing on page 3 of the supplementary statement of the Department of Justice. Moreover, in the same proceedings, the Texas City case on appeal with the Fifth Circuit Court it became necessary for the

"In the court of appeals in which the evidence relating to alleged negligence received extensive and careful consideration, three judges expressly rejected the findings of the district court as clearly erroneous and the remaining three judges rejected at least the district court's basic finding that the United States should have known ammonium nitrate fertilizer to be a dangerous explosive" (p. 4, supplementary statement).

"The opinion of Chief Judge Hutcheson in which Chief Judge Borah concurred also discloses the clear conviction that petitioners failed properly to establish negligence or fault on the part of any employee of the United States."

"The Department submits that the proposed legislation cannot be properly 78228-56-15

Department of Justice to move the court to strike out a whole brief filed in that court prepared by the Department of Justice's own special counsel in the Texas City litigation Mr. Joseph Cash, which brief was stricken because the Department took the position that it was scandalous and derogatory of the Attorney General and other personnel of the Department of Justice, Mr. Cash having been relieved of his duties between the trial of the Texas City case and its hearing on appeal in the Fifth Circuit Court by the Department of Justice.

On this subject, the Supreme Court made this statement, "The court of appeals en bloc unanimously reversed, but since only 3 of the 6 judges explicitly rejected the bulk of these findings we shall consider the case as one in which they come to us impaired" (p. 303, hearings of this committee) (346 U. S. 15). [Italic supplied.]

There is quite a difference between the word express and explicit. Chief Judge Hutcheson joined by Circuit Judge Borah (197 Fed. 771) writing 1 of the 3 opinions for the circuit court stated: "In the situation then in which I find myself I am compelled to dissent from the opinion of the majority that no case was stated on the pleadings and as a matter of law, none was made out. I think the contrary is true and that a case was stated on the theory that the product was ultra hazardous and dangerous, that this was known or in the exercise of due care ought to have been known, that a reasonably prudent person therefore manufacturing and putting it out as the United States was doing ought to and would have known its liability to explode and would have given more warning of that fact than was done here. I think too that if on a retrial the proof makes out the case alleged the United States must be held liable as Hercules Powder Co. or Du Pont Co. or any other private manufacturer would be, not for having undertaken to make FGAN or even for making and shipping it as it did but, if it did not, because it did not, give the warnings required of a reasonably prudent person to put people dealing with it on notice of its character and the dangers of dealing with it" (p. 295, hearings).

See above quotation of opinion by Judge Hutcheson.

In a hearing before the Senate Subcommittee Tuesday, June 7, 1955, Mr.

considered on any assumption on the negligence of the United States and that the overwhelming weight of the evidence of record establishes beyond question that the United States was not negligent although it is not believed that a congressional subcommittee has the time or the facilities to make a determination of negligence in a matter of this complexity-the printed record alone in the Supreme Court exceeds 30,000 pages-the evidence is discussed hereafter at some length to demonstrate the gross error of assuming the negligence of the United States."

Morton Liftin, attorney, Civil Division, Department of Justice, speaking for Mr. Warren E. Burger, Assistant Attorney General in Charge of Civil Division, Department of Justice, and the Department of Justice stated: "We believe that the insurance companies should not recover unless *** we do not believe they ought to recover unless they can show that the Government was neg. ligent here." [Italic supplied.]

The insurance company claimants are quite willing to accept this measure of recovery stated by the Department of Justice, namely that they prove negligence on the part of the Government to the satisfaction of these committees and the Congress. The Department of Justice should stand by its own position just quoted above, namely, that if the record does prove negligence to the satisfaction of the Congress, the Department of Justice should agree to the bill proposed.

Claimants and insurance company claimants believe that negligence has been overwhelmingly established and point to these circumstances: (a) in 1950 the district court found overwhelming conditions of negligence and proximate cause stating, "The 80 or more charges against defendant of negligence contained in plaintiff's pleadings are substantially all supported and sustained by the evidence. This record discloses blunders, mistakes, and acts of negligence both of omission and commission on the part of defendant, its agents, servants, and employees in deciding to begin the manufacture of this inherently dangerous fertilizer. And from the beginning of its manufacture on down to and after the day of the Texas City disaster, it discloses such disregard of and lack of care for the safety of the public and of persons manufacturing and handling, transporting and using such fertilizer as to shock one. When all of the facts in this record are considered one is not surprised by the Texas City disaster, i. e., that men and women, boys, and girls in and around Texas City going about their daily tasks in their homes, on the streets, in their places of employment and so forth were suddenly and without warning killed, maimed, or wounded and vast property damage done" (p. 248, hearings).

In the circuit court, Chief Judge Hutcheson, joined by Judge Borah, held as quoted above that there were grounds for recovery if the facts stated were believed by the trial court. In the Supreme Court the dissenting opinion, written by Associate Justice Jackson, joined by Justices Black and Frank

"The purpose of these arrangements was to enable the United States to obtain the benefit of knowledge and experience of private industry. As the record of this case makes clear, the Ordnance Department, primarily responsible for the task, necessarily relied upon the 'know how' of its private contractors, incorporating the experience of the industry and TVA, and adopted the contractors' tested practices as standard operating procedures" (p. 11, supplementary statement).

"The fertilizer shipped to Texas City had prior thereto been sold to Lion Oil Co. and at Lion's request had been delivered to rail carriers for Lion at the manufacturing plants (record, p. 25774, etc.) to replace fertilizer previously purchased."

It might well be said that its training and background in establishing controversial facts is greatly more experienced and exercised than that of the Department of Justice.

Contrast the statement on the lefthand side of the page with this testimony of Arthur M. Miller, head of TVA manufacturing and research facilities: "Well, that was in the fall of 1943, the summer or fall, because after the matter had been discussed it was finally agreed-Ordnance agreed to put its plants into this service and TVA agreed to teach Ordnance operators how to operate the plants to make the product that we were then making (record, pp. 13422-13423). [Italic supplied.]

As Mr. Miller says, "It involved not only the treatment, but involved making a larger grain of ammonium nitrate than formerly went to the War Department" (record, p. 13423). This is the FGAN that was involved in the Texas City disaster. Because of the foregoing, Mr. Miller testified "So the Ordnance people from all over sent representatives from several of their plants to us and we showed them how to process this material both with respect to making a larger grain and with respect to providing a coating-and we provided specifications for the coating material" (record, p. 13423).

Mr. Miller concludes in this fashion, "Actually to get the project started, we furnished some of the coating materials to get the plants going more quickly, so that nitrogen could get to the farmers at an earlier date. The Ordnance plants thereupon started to produce coated ammonium nitrate" (record, p. 13423. [Italic supplied.]

On November 6, 1946, the nitrogen producers industry advisory committee met to determine and meet the international food board allocation of ammonium nitrate fertilizer to foreign countries and the United States possessions (record, p. 20900).

Thus in November 1946, before the FGAN exploding at Texas City was ever manufactured and before Lion Oil Co. had ever been delivered the material, the Republic of France got a priority for so many tons of FGAN. In this meeting it was stated, "since like quantities must be exported, however, it would eliminate double handling if the Army were requested to ship it directly to the port" (record, p. 20906). This is what accounts for the direct shipment from one of the Ordnance plants of FGAN to Texas City.

Thus in November 1946, France got an MM priority with the Lion Oil Co.'s name noted on the back of the priority