I remember another instance: Big hunks of steel weighing tons were thrown miles across the city and one went into a backyard and made a hole as big as this room.

It was a terrible thing.

Mr. LANE. How far is Galveston from Texas City?

Judge ROBINSON. Fourteen miles. I was in my office at the time the blast shook the courthouse which is a solid structure-as solid as you could make it-marble and stone. The explosion made it tremble.

On the early morning of the 17th, the explosion of the Highflyer was of such intensity that it raised me out of my bed and onto the floor and the ship was 14 miles away.

Mr. LANE. Thank you very much, Judge, for waiting. You have been so patient and we appreciate your very kind remarks.

The committee will now hear Judge Bryan, of Houston, Tex. We are pleased to have you before the committee again. You were very helpful to the committee and cooperative last year, both here and in Texas, working back and forth trying to work out some sort of legislation and we appreciate your coming here before the committee again to give us your thoughts on this very important

matter.

STATEMENT OF MR. AUSTIN Y. BRYAN, JR., ATTORNEY, ESPERSON BUILDING, HOUSTON, TEX.

Mr. BRYAN. That is quite a pleasant courtesy and a generous statement to hear and we are here in appreciation of the same character of cooperation you have given us, to explain our views and our theories as to responsibility.

May I suggest that I speak for all the counsel in the case to simplify this and to return it to some focus and perspective by suggesting that the real opinion of the Congress in passing and promoting the Tort Claims Act was an effort to reconcile the modern approach to the subject which, probably unwillingly, but effectively, was frustrated by the majority opinion of the Supreme Court.

It is our belief that Congress did intend the classes of injuries and conditions similar to those to be covered by the Tort Claims Act. The fact that the Court held it was not, that jurisdiction had not been accorded in the language of Congress, no matter what Congress intended, poses the problem where next to go to bring all of this into some sort of orderly presentation.

We considered we had the next jurisdiction for succor, that is, the Congress. And we come here as a disaster area or as a disaster plea. That disaster is present, is obvious.

But I very honestly, logically, and unemotionally believe that the theory that "The King can do no wrong" is one that has been largely abandoned in most of the civilized areas of the earth and especially where laws of fairness and justice have applied. We think it is not a duty of this Congress basically. But we think it is an opportunity because the Congress, in its wisdom, will decide what it should or should not do in the public interest or benefit.

But it is an opportunity of the Congress to redeclare its own willingness to abandon that old archaic theory. Mr. Justice Jackson had a rather cutting and cynical view of it. He said, the Government

was willing to abandon it for little wrongs but had a great abhorrence for doing it for big wrongs.

If we justify it in terms of responsibility the big wrong is just as much deserving of your attention as the little wrong. I should like these formalities first, if I may, to suggest attention or reintroduction of the former record made last year which must have been quite adequate before it could have justified such a strong, persuasive, and impelling report-two reports of this committee finding in unqualified, authoritative language responsibility on the Government; and that character of responsibility which would have been legal responsibility had the Government been operating as an individual.

If you recall quickly, the very core and text of the Tort Claims Act was that Congress had too long hidden behind the so-called theory of sovereign immunity. And when you use the word "sovereign" you mean the relegation to the ancient days of the kings.

But it does express the purpose of the act to say that if, as, and when the Government is guilty of an act, for which an individual would be liable, that was the yardstick.

It did have these exceptions for these exclusions of jurisdiction by the Supreme Court. So, we are here seeking the real, jurisdictional bounty of this committee. And we do it, in my own situation, in terms across the board.

I represent personally personal-injury, property claims and insurance subrogated carriers.

To begin with, may I put at rest quickly what was said this morning in terms of a misapprehension of what the Supreme Court said. At no time has the Supreme Court found on the facts as against these claims, if the Government could have been treated as an individual operator.

On the contrary, we take this view, and we draw it from the language of the Supreme Court itself, and here is that language:

The Court of Appeals en banc 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 unimpaired.

That is very simple and direct in its connotations and its meaning must be apparent to all.

Then, the theories presented this morning must give way to the fact that the Supreme Court stated the complete and overwhelming evidence of negligence which completely parallels the judgment-the quasi-judicial judgment-of this committee.

Last year it became apparent that the district court's feeling of conviction on the responsibility of the Government could hardly be stronger than those that are clear in the somewhat outraged views of this committee in its report.

This whole thing began in disaster. It ended in disaster. It is written in terms of probably the most unnecessary, the most unjustified, accident, causing as great a single area of damage as this country has experienced in its whole history, not excluding the San Francisco

fire.

It began in disaster in this way--and I may divert and reply to Mr. Brickfield's question.

Shortly before the end of the war and right after the end of the war Congress passed an act to enable the rehabilitation of three occu

pied areas-Germany, Japan, and Korea. The Government undertook an amendment. It began to ship fertilizers to these countries.

In 1946, undertaking to make these commitments-and this is how complicated this picture got-the Army ran into the immovability of regulations, that is, on allocation and priority permits. The Army could not take, to make good its commitments overseas, from its own production and TVA production sufficient fertilizer with an ammonium nitrate base to ship there even though made in its own plants because of the international control of foods.

So, notwithstanding they were drawing from the Army's own warehouse, the Army had to get in the commercial market.

The local market was terrifically undersupplied. The commercial suppliers said, "We have to supply our own customers." The Army lays it on the line to them that if they do not give them enough production that they will themselves confiscate it. They would commandeer it.

We had 15 deactivated munition plants which had made this stuff for ammunition. They said, If you will let us have enough—and it was 75,000 tons, I believe, that were needed and the Army was manufacturing 30,000 tons-we will agree to open up some of these deactivated plants and give it back to you so you will be free to supply your domestic market.

These suppliers included the Lion Oil Co. Being only private domestic producers they did not know how far these rights of allocation and limitation and distribution would finally extend to cover them. They gave the Army what it asked for very reluctantly and under the pressures I mention which are effective pressures.

So, in 1946, they did set about to reactivate these plants and among them were 3-2 in Nebraska and 1 in Iowa.

Here is something I would like to drive home as hard and as strong as I can. The United States Government controlled the manufacture, the method of manufacture, the method of shipment, and the method of direction of the parties to whom this material went. It gave the orders and never relinquished this. It never permitted a volitional or independent act on anyone's part. The Army got it and said how it was handled and the way it was handled. From the beginning of it through the wartorn years and up to the disaster-all the way through.

Here are some other factors to determine this matter whether the Government itself was basically, inherently, paramountly and continually responsible for the situation which developed at Texas City.

In 1946 they discovered other needy areas, not necessarily occupied areas, mentioned in the study made-France and Puerto Rico and 26 or 28 other countries. So, they wanted to ship material to them and give them fertilizer. But they ran afoul of the limitation of the statutes to the three countries I have mentioned.

Mr. Steelman, then Director, undertaking the shortcut, and bypassing other considerations, actually issued an order directing all this returned fertilizer to be sent to France, Belgium, Puerto Rico, and some to South America, and some to the Far East for Japan and Korea.

It was called to his attention that that was not good public relations business. It was in violation of the statute and in violation of

the Army's written commitment to return these 75,000 tons to the extent possible to the private producers. So the order was withdrawn. This is in the record. The order was withdrawn and they proposed then that they would come back to these particular purchasers and the one we are interested in is the Lion Oil Co., of El Dorado, Ark.

The amount of production they got and I will cut out a lot of the intervening facts-they said, "You can have it back at $47.50 which is a long way less than it costs to produce and you can direct to whom you want it shipped and where you want it shipped and we will absorb the freight to a central position which would have been your central producing point."

But in the meantime the producers say, "We can use it. The orders are far greater than we can produce." But they never got there.

In the meantime, and here I come to some literal facts-July 24, 1946, and the record reference was given-it is on page 46-General Feldman of the Army listed the actual allocation by CPA to named suppliers including Lion Oil and stated that contracts with all the producers carrying MM preference would have been filled.

France comes over in the fall of 1946 before these plants have been reactivated and gotten into production and goes before the Board and gets an allocation, first of 26,000 or 27,000, then raised to 40,000 of ammonium nitrate fertilizer of this kind and class to be manufactured and delivered to them.

Mind you! They granted that. They named the purchaser, that is the private producer from France, to get it and got France an MM rating where you can go to that company and if he has material you can take it away from it.

Immediately, the Government said to Lion Oil Co., "We want your many thousand tons." Lion said, "We want it for our own use," and they did not have it. The wires are in the record of the Lion Oil Co. This fertilizer was assigned by priority to France before it was actually manufactured. When the plants were activated and the situation started rolling they set up a system whereby the control of the shipment of it would be through the Quartermaster.

Mr. BOYLE. All of this may have been but you ought to detail what has happened in this particular transaction. All that stuff as it refers to a general operation and procedure would not have any point in these deliberations. What did they do in this particular case?

Mr. BRYAN. I am not detailing the general, but the consequence of events touching the actual case and only this case.

Mr. BOYLE. You are getting in there into a long and involved procedural arrangement that they had for handling various commodities. If you detail it as it refers to this transaction I would be interested in it.

you

Mr. MILLER. I understood he was talking about these transactions. Mr. BRYAN. That is what I am talking about, the actual material-the actual sacks and material to Texas City, to establish this for if you will consider it in terms of the overall responsibility of the Government. That this was a controlled transaction, as the Supreme Court found, of material that the Government had all the knowledge and know-how of; how it was handled; to show to the Congress and to this committee that other people were not the ones who controlled this. They had no say nor know-how of how it should be made and shipped and so forth.

The priorities prevailed. Lion Oil Co. was forced to do business subordinately with the French Government through the French supply council.

The actual material was manufactured in a Government ordnance plant in a cost-plus contract.

Mr. BOYLE. By whom?

Mr. BRYAN. By the United States Government.

Mr. BOYLE. But who was it manufactured by?

Mr. BRYAN. The Emergency Export Corp., a $10,000 corporation organized for this particular contract by a parent contractor that had done military munitions by the Government. The reason for it was because of labor unions and current labor wage rates the Government could not contract for.

That was the first. Neither did they have statutes which permitted them to do it themselves.

Now, there is another factor there. This particular corporation was born and died for that particular contract. The particular contract provided 100 percent guaranteed immunity to the particular corporation by the Government because of the dangerous nature of the material, and what they were going to manufacture and handle.

The United States Government from other plants, probably from Illinois and Indiana, supplied all the materials. They shipped it in as Government property. All of the operations had a counterpart of the civilian and of the military. To try to reduce these as briefly and explicitly as possible, the Army was absolute. It had control over every phase of it. It could hire or fire and set up all the regulations for safety or not set them up. And when the material was manufactured the civilian cost-plus contractor turned it over in the plant to the Government and it came under the Government's control absolutely; and the transportation order and the quartermaster's order arranged the manner of the shipment with the agencies concerned. The quartermaster's order decided who got it and to whom it was assigned.

Mr. BOYLE. That did not exempt them from their common law liability.

Mr. BRYAN. If you will let me drive home the point-the only shipper in this case was the Government.

Mr. BOYLE. Who did the shipping?

Mr. BRYAN. The Government, the Army, the quartermaster, the dummy corporation never shipped anything.

Mr. BOYLE. The dummy corporation turning it over to the Government at the time the product had been processed.

Now we are getting to the situation where the Government, according to your testimony, has the property again and it is at the site of manufacture. My question is, What happens? Who ships it?

Mr. BRYAN. When the Quartermaster Corps head at New York is advised that there is a quantity of material processed at the plant ready for distribution they issue orders to the Transportation Corps as to how many tons and where and to whom the transportation officer of the Army on location at that ordnance plant must ship the material and issue the bills of lading. He signs them and directs them and Government trucks and Government switch engines take the materials out of the ordnance plant which is under heavy guard.