innocent material, and they laid some out on an open ground and burned it and it did not explode.

But the difference between that was-just as black powder or gasoline with ample oxygen around it will not explode, so this ammonium nitrate does not explode.

The railroad objected. So they thought whether under these circumstances the rule of responsibility reached that far down to Texas City and to the hundreds and thousands who did not even know it was there. And I want to bear on that with respect to insurance ratingI doubt that you could hold them to any kind of responsibility in the matter.

Mr. BOYLE. Who are you talking about?

Mr. BRYAN. Anyone who dealt with them. Unless you can show they knew as much as the Government. I would be perfectly silly to take a position that a warehouseman or common carrier does not have duties. But the recorded decisions fully recognize these distinctions and you are aware that they have not been shown to have that actual knowledge.

That might be a matter of particular inquiry in this situation, but basically the questions of liability go back to manufacturers' or shippers' liability.

Let me give you another instance. It was asked today how this started. Mr. Burger found great difficulty in resolving his own thinking on it. The court held and the facts overwhelmingly show that it was because of the capacity of the material-its ability to generate and build up heat. It builds up heat and it goes out into the surrounding material or barriers whatever it may be.

That material-and this is not disputed in the record-there is another admission of a sacrificing Government-sacrificing safety to production.

One of the plants writes in to the superior officer and says:

This stuff is overheating and if we ship it out that way we are looking for trouble. What shall I do about it. But if we cut down I have to tell you we cannot meet these production schedules.

It comes back, "Production must be met."

That was the paramount situation.

This material, they were warned by the Bureau of Explosives, ought not to be bagged over 120 degrees. Some was bagged in less than 3 minutes at 259 degrees at Burlington, Iowa.

The bags got charred. They always tried to light it on a cigarette. It began in Army Ordnance and we say it in report after report. Now, at Galveston, in the holds of these ships they had a critical condition. The facts which should have been anticipated all were there-heat and confinement, and that is the essential requisite on nearly every type of explosive, and you had handed down there a real guilty element. There the real guilty element was the exciter-this fertilizer.

As the heat built up to a certain level it detonated. It may be said that this is still in the region of theory. That was the opinion of scientists in this country. But this does have some telltale reaction. Six cars of the material were diverted from Texas City to Baltimore for shipment to France. Therefore Texas City having happened all of the great forces of control of the Government which they had had

all the way along went immediately into play. And if this does not appear to be at variance with the propriety of what General Hughes said to us about a convention he had in New Mexico with his office when he heard of it; he said he knew all hell had broken loose.

All the ports were embargoed on it. They wanted to show themselves apologetic. So the Army and Navy aboard and others had that ship at Baltimore washed down until it was like a Dutch kitchen. They had every precaution taken with the shipment under these conditions. The ship gets to Brest and it blows! Nine hundred were killed there. They had time to tow the ship away and it was grounded in the outer harbor.

You can speculate that there was something wrong with the material that went to Texas City. It does not necessarily follow but it shows there was no responsibility on the Texas City, not because here in Baltimore when everybody had been informed of the character of the material and every possible precaution was taken the ship blew as it did in Texas City; meaning that the responsibility lay in the inherent dangerous character of the material.

That is the essence of the court's file and that, I believe, was presented to the committee last year. When you bring this back to focus and perspective, the basis is the material itself and no one had to do with the manner of its manufacture except the Government. This is the essence of what we think drives home the proposition that it is the Government. It is the Government paramountly and continuously.

Mr. LANE. The material that went to Brest and that which went to Texas were identical?

Mr. BRYAN. It came from Texas City. It had been designed to go on these ships at Texas City and had been diverted. You ask about control of the material. The Department of Justice has made the suggestion that this was not in everybody else's opinion inherently dangerous. I think the Baltimore episode answers that-that it was the character of the material.

Immediately after this happened the officers wired down to Texas City telling them what to do with the material there-what to do and what not to do with it. There was no suggestion that it ever went out from under the control of the Government.

The Government did not own it following the Texas City episodeBut now we are partisan-the Government controlled it after Texas City.

Mr. BOYLE. I am having trouble reconciling the evidence of the vice president of the Texas City Terminal Co.-Mr. Sandburg. It is page 9 of the House Report No. 1386.

Mr. LANE. I think he appeared before us at Galveston as one of the witnesses.

Mr. BRYAN. At Galveston and Texas City, I think.

Mr. BOYLE. That is on the complaints about the charred bags. That is right.

Mr. BRYAN. He gives the answer in his testimony and if you would check it in the case

Mr. BOYLE. I don't care how he tries to exonerate himself. I want you to tell me how you can harmonize this with the statement.

Hot and damaged bags were received in Texas City as early as July 6. The complaint was made that the bags were scorched to the breaking point and

were so hot in many instances that it was impossible for our men to handle these bags until they were allowed to cool off.

Mr. BRYAN. I have no explanation. He undertook the inquiry and went to the manufacturer according to his testimony. The fact that they were hot did mean something.

Mr. BOYLE. They were so hot they were scorched and he saw the warehouseman. He is the vice president in this situation.

Mr. BRYAN. That is quite right.

Mr. BOYLE. It would seem to me that with just a little knowledge of the law of negligence that he surely was negligent.

Mr. BRYAN. I want to put it this way. I would not pretend to say what the court will do or will not do if anyone sues the terminal company.

Mr. BOYLE. I cannot understand how, in the light of that causative testimony we could come up with the observation that the Government was wholly negligent. That would seem no excuse. It seems to me this is the grossest type of negligence.

Mr. BRYAN. That is localizing it. In Texas the rule is that the one guilty of paramount, or proximate, or controlling negligence continues to be negligent even though other underlying negligence contributes to the culmination of the event which produces the damage. It is a very practical situation.

The bill you have pending before you as with all bills in Congress requires and preserves the right of subrogation 100 percent against all third parties. If this committee feels and I am not here to argue there have been no other guilty acts of negligence by some people you may be right. The terminal may have been guilty of some other kind of negligence. In Texas jurisprudence we look to the paramount responsibility. Whether or not there was some character of neglectful or negligent act which contributed to this I would not for a minute say you were wrong.

Mr. BOYLE. From what little I have seen it reeks of negligence. Mr. BRYAN. On the part of the terminal?

Mr. BOYLE. I think the exercise of ordinary care all the way along the line may have brought this condition to the front.

Mr. BRYAN. Would this bring this back to focus? The fact that others might or might not be negligent could not be a factor in determining whether this committee feels a strong responsibility if the Government was negligent.

Mr. BOYLE. I think the Government has been discharged by the Supreme Court.

Mr. BRYAN. Well, may I address myself to that? It has not been discharged of negligence. It has been discharged of the necessity of appearing in a forum of a judicial nature. But has it been discharged of responsibility of the facts by anything in the Supreme Court opinion? I believe this answers the whole question.

Mr. BOYLE. I followed you pretty carefully when you tried to distinguish on the word "impaired." I think the Supreme Court merely thought they would transmit the question of negligence and said that all these intendments most favorable to the plaintiffs were made up in detailed agreement because the case does not stand or fall on this condition.

Mr. BRYAN. I am reading from page 939:

One need only read section 2680 in its entirety to conclude that Congress exercises care to protect the Government from claims however negligently caused that affect the governmental functions.

They accept this as complete negligence; but they say only that jurisdiction has been denied no matter how negligent it was.

Mr. BOYLE. When you first addressed us you talked about the Supreme Court having three different Justices-or were those the justices of the circuit court of appeals where three of them would not accept the findings as determined by the trial court?

Mr. BRYAN. They did not admit them. But they did not deny them. It was inherent in the proposition that they had to pass on the facts to determine whether there was negligence-a negligent actand whether discretionally applied. Only one member of a courtone justice-out of 14 men has ever held that the facts did not support the findings of negligence. That was a judge in the circuit court.

I want to correct something. I am sure the gentleman will be happy to have the opinion reviewed.

Mr. BOYLE. I will promise to read it--whether you bring it to me

or not.

Mr. BRYAN. I cannot think of any better way to prove the truth of my argument.

The Department of Justice said that Judge Hutcheson held that no facts supported recovery. I ask you particularly to read his opinion because it says:

These facts, if believed, would support a judgment.

He reserved it in his opinion because errors had occurred and gotten into the case to such an extent that they tainted the evidence of fact. Not that the findings of fact were not sustained by the evidence, nor that the evidence would not sustain a case against the Government; and he wanted to send it back.

Mr. MILLER. I read the opinion and I concur with the gentleman. Mr. BRYAN. He said it was "procedural errors."

I do solicit in the most earnest fashion, and I do not want to bore the committee if you will read again the opinion of the Supreme Court in which they held this:

Even assuming their correctness arguendo though it is our judgment that they do not establish a case within that *

Why? This is "for the reason that as a matter of law the facts cannot give the district court jurisdiction of the case under the Tort Claims Act."

We pin our faith to that language that we have not had a trial and have not had a decision against the rightness or justice or negligence in respect to these claims. That is what we are having here and this is the only jurisdiction left to hear and determine it.

Mr. MILLER. I think you happen to have the proposition that you took your choice of forums and you misconceived the proper juris

diction.

Mr. BRYAN. Would you listen to me on that? We were not permitted a choice of forums because the Tort Claims Act, as it then appeared, had an express prohibition against coming to this jurisdiction because the Tort Claims was supposed to handle it.

Mr. MILLER. I do not mean you came to us. I mean going back to the State of Texas as I understood you did to institute suit against these various individuals.

Mr. BRYAN. That is a choice of party rather than of forum. We have been denied a forum unless we could come to Congress.

Mr. MILLER. You had a perfect right to file suit against the Texas City warehouse, against the steamship line.

Mr. BRYAN. We most assuredly did.

Mr. MILLER. And as a matter of fact you probably only had an idle gesture available if you brought suit against that company that was doing this work for the Government on a cost-plus-a-fixed-fee basis.

Mr. BRYAN. If you will bear with me and think about this on your thought there. You will see it in the American Law Institute and I think it is accepted law, that where one hires another to manufacture or perform an act or to handle a material which is inherently dangerous the one who hires is primarily liable. You cannot delegate that responsibility and you cannot hide behind an independent

contractor.

Mr. MILLER. That is McPherson v. Buick. That is established law. Mr. BRYAN. This could have been very well-and you are right in this sense they could have been proper parties but they were not necessary parties to determine the responsibility of the Governmentthe paramount responsibility-and if I could persuade your thought to the simple proposition that this is an inherently dangerous material which has been found in four courts including Judge Chestnut who found it in the Brest explosion to be inherently dangerous.

This may or may not be productive of the rule of stare decisis but it is highly persuasive to me that the three men who enjoyed a very fine reputation as lawyers in the Supreme Court found in favor of responsibility and found in favor of the facts and pointed out that these facts did overwhelmingly establish responsibility. They were Judges Jackson, Frankfurther, and

Mr. BRICKFIELD. I would like to return for a moment to the president of the Texas City Terminal Railway Co. There came a time in 1946 when he complained to the Army that certain of these bags were overheated and charred?

Mr. BRYAN. Correct.

Mr. BRICKFIELD. And did the Army at that time do anything about it? Did they send anyone to Texas City to look into the complaint? Mr. BRYAN. I think they sent Mr. Steed and then another man to confer with them and he did come down and according to the testimony of Mr. Sandburg he assured them that they had nothing to worry about.

Mr. BRICKFIELD. Did the Texas City Railroad have the facilities to test this particular material to see if it was a dangerous commodity?

Mr. BRYAN. No. And he testified there were no notes or shipping instructions or labels which the Interstate Commerce Commission prescribed which would have put them on notice of any condition of hazard.

Mr. BRICKFIELD. So do you think it a fair statement to say that the president of the Texas City Railway did what he could under the