duced steam in the hold which could not have any possible effect on a fire with oxidizing material. We have indicated in our brief to the Supreme Court-and we will present it to this group if we maythe various authorities that show that it should be well known to every shipper and ocean carrier that a fire in oxidizing material should be dealt with with water and that steam will not do it any good. Those are some of the possible aspects of negligence which might have caused this. This material was going to France. It may be that political unrest at the time and there was a considerable amount-had something to do with it. We have no evidence of that. If you are going to speculate, that is not something to be ruled out of the speculation. The fact is that they do not know. What we know about ammonium nitrate, and what we have learned about it as the result of this explosion, and what we have learned about it in a lot of tests afterwards, will not explain this explosion. Mr. BURDICK. Do you not think when they introduced hot steam when they should have cooled that burning, the hot steam would have a tendency to make it worse? Mr. LIFTIN. I am not a chemist. I do not recall any of the chemists we have had advising us that it made it worse. I think at most it would be absolutely useless. The purpose of steam is to cut off oxygen and to smother the fire that way. Well, if you have an oxidizing material in the process of chemical decomposition, it gives off its own oxygen, so cutting off the oxygen from the fire does not have any effect. Mr. LANE. Right there, Mr. Liftin, we have many statements in the record here that this is the regular way of putting out these fires— using hot steam. Mr. LIFTIN. I think the normal way of putting out ordinary fires, in order to save the cargo, is to introduce steam into the hold. That will work when you do not have oxygen from any other source; but all the literature makes clear that this is not true with respect to an oxidizing material, and there was no secret about this. As a matter of fact, it appeared in fire-fighting manuals, and I think every person engaged in the transportation of materials of all kinds is charged with knowledge, even if they do not actually know, that oxidizing materials cannot be put out by the introduction of steam. Mr. FORRESTER. May we allow the witness to proceed in his own. way? I believe that would be more expeditious. Just let him make his statement. Mr. LANE. That is perfectly all right. Mr. LIFTIN. There is one other aspect with respect to the claim. of subrogation, before we get to the actual question of negligence, and that is the claim that has been made that if the underwriters knew they were dealing with a dangerous substance here and that it was not like sand, flour or cement-I do not know precisely what the analogy was-that the rates might have been entirely different and they would have had their losses covered by premiums. The record shows that the underwriters knew they were carrying ammonium nitrate and not flour, sand, or cement. They knew what the ordinary hazards of ammonium nitrate were. They know it presents a fire hazard because it is an oxidizing material, and the record in this case makes that clear. The Board of Underwriters of New York had much correspondence about the nature of this substance. There was no secret about it, and they sent notices to their surveyors that this was to be treated just the same for transportation purposes as ammonium nitrate, which is defined in the transportation manuals both of the Interstate Commerce Commission and the Coast Guard as a "dangerous material." Although not an explosive, it is a dangerous material, because it is inflammable, subject to intense burning if it should become involved in a fire. So that the statement that the insurance company had no knowledge of the nature of this substance does not comport with the record which shows that the insurance companies had much knowledge about this. On the general subject of knowledge, which I think is quite important in the problem of determining negligence, the Department of Justice requested the Federal Bureau of Investigation to prepare a statement about what various people knew about this before the explosion. In response to our request they have given us a report based on the subject of the knowledge that was generally available and in that report there is a good deal of discussion of the knowledge that the underwriters had. If the committee would like, I would be happy to submit that for the record. Mr. LANE. We would be glad to have it. Without objection, it will become a part of the record at this point. Mr. LIFTIN. I have Mr. Burger's memorandum to Mr. Hoover requesting the study and his reply. Mr. LANE. It will be admitted as a part of the record at this point. (The memorandum and reply thereto are as follows:) FEBRUARY 2, 1955. To: Mr. J. Edgar Hoover, Director, Federal Bureau of Investigation. The Congress in past sessions has given consideration to proposed legislation to provide compensation for property damage, personal injury, and death claims arising out of the Texas City disaster of April 1947. Last year different bills passed both the Senate and the House. The end of the session prevented the bills' differences being resolved in conference. It is expected that similar legislation will be given consideration again during the present session of the Congress. The Department has no objection to the enactment of a relief bill for the benefit of victims of the disaster. Some of the measures considered by Congress, however, have gone far beyond the Department's views of the proper scope of a relief bill and have provided for reimbursement to insurance companies on subrogated claims on the assumption that the Government's negligence caused the disaster. As you know, the Government was successful in the Supreme Court in defeating suits seeking to charge the United States with legal liability for the Texas City explosions. The trial court had found the Government negligent but these findings were not accepted by either the court of appeals or the Supreme Court. Throughout the entire handling of the case in the Department, we have had the assistance of many members of your staff, including Dr. J. William Magee, a chemist, who acted as a technical consultant in connection with the preparation of our Supreme Court brief. The charges of negligence on the part of the Government are based primarily on the claim that the Government either had or should have had knowledge with respect to ammonium nitrate fertilizer which should have prompted greater precautions on the part of the Government officials. The state of knowledge with respect to ammonium nitrate fertilizer is almost entirely a matter of a scientific competence about which Dr. Magee, through his background and contact with the litigation, is fully advised. I believe it would be extremely helpful to the committee of Congress considering the proposed legis lation to have a detached and disinterested summary report on the subject of existing knowledge with respect to ammonium nitrate fertilizer at the time of the Texas City explosion, rather than the biased, one-sided arguments made by counsel for the plaintiffs and insurance companies which, in the past, have been given considerable credence by the congressional committees. I would very much appreciate your making Dr. Magee available for the preparation of such a report which I would estimate to take not longer than 1 week. MAY 10, 1955. To: Assistant Attorney General Warren E. Burger, Civil Division. Subject: Statutory relief for Texas City disaster victims (Your file 157-74-0). Reference is made to my memorandum of February 7, 1955, in which you were advised that Dr. J. William Magee was preparing a report setting forth information concerning the existing knowledge about ammonium nitrate fertilizer at the time of the Texas City explosions. Three copies of the paper entitled "The Texas City Case" are attached. THE TEXAS CITY CASE INTRODUCTION Throughout the trial of the Texas City case in the district court at Houston, Tex., in the Fifth Circuit Court of Appeals at New Orleans, La., and in the Supreme Court of the United States, as well as in hearings before a subcommittee of the Judiciary of the House of Representatives and a similar subcommittee of the Senate of the 83d Congress, 2d session, the claimants in the Texas City case have emphasized that plain uncoated ammonium nitrate is a "dangerous" and "hazardous" material and that the dangers associated with plain ammonium nitrate were well known. The Government has never contested the well-known fact that ammonium nitrate is considered to be a "dangerous" article. It has long been regarded as such in both the Interstate Commerce Commission and Coast Guard regulations where it is classified as an oxidizing material. Ammonium nitrate, as are all nitrates, was known to be hazardous in a fire. The Coast Guard regulations, which are binding on "owners, charterers, agents, masters, or persons in charge of vessels subject to the regulations in this part and upon all other persons transporting, carrying, conveying, handling, storing, or stowing on board such vessels any explosives or other dangerous articles or substances ***," point out that detonation of ammonium nitrate by severe shock is possible although not probable under conditions of transportation. In other words, there was knowledge of a danger as being possible but not probable. The record in this case contains numerous examples, prior to April 16, 1947, of ammonium nitrate being involved in fires in which no explosion occurred in any of them. The classic example is the fire on board the steamship Hallfried. She contained 2,000 tons of ammonium nitrate (more than twice as much as the No. 4 hold of the steamship Grandcamp). Fire-fighting operations produced steam explosions, but the ammonium nitrate did not explode. The following is illustrative of the general state of knowledge of ammonium nitrate and ammonium nitrate fertilizer. The Journal of Commerce, 63 Park Road, New York City, on May 18, 1945, published an article entitled, "Fertilizer Held Nonexplosive." The article states generally that ammonium nitrate, one of the components of explosives, is also much used as a fertilizer and does not explode easily under common conditions of transportation and storage according to experts of the Agricultural Research Administration, United States Department of Agriculture. The third paragraph of this article begins as follows: "The fertilizer experimenters say they found no record of an explosion from heat of this chemical resulting from its presence in quantity in a burning building or ship." While urging these known dangers of ammonium nitrate, the claimants have at the same time consistently urged in the same courts and before the same committees that none of the people who handled the ammonium nitrate, fertilizer grade, in this case knew of these well-known dangers, even though each bag was plainly marked "Ammonium nitrate." Excluding the noncombustible, unreactive, and noninflammable clay in ammonium nitrate fertilizer, the remainder is approximately 99.34 percent pure ammonium nitrate. The purpose of this paper is to show that the people who handled the fertilizer grade ammonium nitrate (FGAN) in this case knew that it was ammonium nitrate when it was hauled on the railroads, stored in a warehouse, loaded on board ships, and insured against loss. INSURANCE UNDERWRITERS AND FGAN The insurance company that priced the insurance on the FGAN in this case, the marine surveyor who inspected the ships, Underwriters Laboratories, and the National Fire Protection Association were all familiar with the properties of ammonium nitrate. The record in this case does not disclose the full extent of the interest of the Board of Underwriters of New York and other insurance organizations in the subject of ammonium nitrate fertilizer in general of the FGAN involved in this case, in particular. The record does disclose, however, that the Board of Underwriters of New York manifested an interest in ammonium nitrate fertilizer as far back as September 14, 1944. On November 19, 1945, the Board of Under.writers of New York sent a telegram to their surveyor in Pensacola, Fla., and mailed a copy to their surveyor in Houston, Tex., in which the surveyors were advised regarding the proper method for stowage of ammonium nitrate fertilizer on board a ship. By letter dated November 23, 1945, Mr. R. L. Wynne, chief surveyor, Houston district of the Board of Underwriters of New York, advised Mr. J. A. Cerina, assistant secretary of the Board of Underwriters of New York in part as follows: "It is my further intention when the vessel arrives here to take samples of this fertilizer; a portion of [this] sample I will have analyzed by our chemist here and obtain a statement from them as to their opinion concerning any danger that may be incidental thereto." With a letter dated November 26, 1945, Captain Wynne sent a sample of ammonium nitrate fertilizer manufactured under specifications of the Tennessee Valley Authority to the Shilstone Testing Laboratory, Houston, Tex. He described the proposed stowage of ammonium nitrate fertilizer in the hold of a ship followed by a few layers of dunnage and bales of greasy wool, and asked several questions, one of which is as follows: "In the event fire should occur in the compartment, would the stowage of these two commodities be any more hazardous than the stowage of other commodities, such as cotton over sulfur, etc.?" By letter dated December 19, 1945, Captain Wynne advised the Board of Underwriters of New York that the Shilstone Testing Laboratory had stated that a fire in the hold of a ship containing ammonium nitrate and greasy wool would not be any more hazardous than a fire in the hold of a ship containing other commodities, such as cotton over sulfur. By letter dated December 26, 1945, Assistant Secretary J. A. Cerina, the Board of Underwriters of New York, advised Captain Wynne in part as follows: "We have considered the report of the Shilstone Testing Laboratory indicating that there is no hazard in this connection but we are, however, still of the opinion that cotton, greasy wool, and similar fibers (which have a bad record in themselves) when stored on top of ammonium nitrate, that in event of a fire, there would be little likelihood of controlling same, as the ammonium nitrate will add greatly to the fire and there might also be danger of an explosion. "We are arranging to explore this matter further with the Bureau of Explosives, with a view to having a complete analysis made of the hazards covering your letter and as soon as we are advised of the results, we will promptly communicate with you further in this connection." Whether or not the insurance rates on FGAN were raised or remained the same after the Board of Underwriters of New York received the information regarding the possibility of a fire in FGAN and subsequent explosion, the files of the FBI and the record of this case do not disclose. FBI files do disclose, however, that in August 1948, Mr. George S. Pringle, attorney for the Board of Underwriters of New York, stated to an agent of the FBI that no information would be released without a court order in view of the fact that some of the principals of the Board of Underwriters were adversaries of the United States Government in this case. In a laboratory report dated January 7, 1946, entitled, “Ammonium Nitrate Fertilizer," the bureau of explosives of the Association of American Railroads in the report from their chemical laboratory advised in part as follows: "A sample of material described as 'Ammonium nitrate fertilizer' was received at the laboratory from the Board of Underwriters of New York. "For purposes of transportation, the material is classed as an oxidizing material under the Interstate Commerce Commission's regulations. "It is considered that this material should be handled and stowed with the same precautions that apply in handling ammonium nitrate." By memorandum dated January 14, 1946, the secretary of the Board of Underwriters of New York sent instructions to all surveyors, as follows: "The board wishes to advise that the question of the stowage of a commodity known as ammonium nitrate fertilizer has been under discussion and following exploration, it is recommended that the ammonium nitrate fertilizer be treated on the same basis as pure ammonium nitrate, as both of these commodities have approximately the same characteristics. "In other words, both are to be treated, for transportation purposes, as oxidizing materials." Emmett Manning Dierlam testified at the Coast Guard hearings on April 22, 1947, that he was a marine surveyor and that he was employed by the Board of Underwriters of New York. He inspected the Grandcamp and the Highflyer and stated that he issued the regular Board of Underwriters' certificate or a pass to load the vessels. According to the testimony of Dierlam, the Board of Underwriters of New York are the insurance underwriters that insure the ships and their cargo. Apparently Dierlam and the underwriters did not consider FGAN as harmless as sand or cement and Dierlam must have known that the material was somewhat dangerous to handle because he testified that he had learned from various sources that "if it is heated to a certain temperature, it is liable to explode." He then testified that his superior, Capt. R. L. Wynne of the Board of Underwriters of New York, who is the chief surveyor stationed in Houston, Tex., had given him instructions to be careful with ammonium nitrate. Dierlam stated, "He told me it was a kind of hot cargo if it is allowed to heat up." Dierlam stated that he understood that the fertilizer was a hot cargo if there was a fire around. In connection with the inspection of the Grandcamp by Dierlam, who testified that he inspected the vessel on the evening of April 13, 1947, and that the holds were clean, it is believed pertinent to point out that the loading of the vessel was begun on April 11 and that by the evening of April 13, approximately 17,000 to 20,000 bags, or 20 railway boxcarloads, of fertilizer had been loaded aboard the ship. On April 16, 1948, Dr. Mathew B. Braidech, director of research of the National Board of Fire Underwriters, 85 John Street, New York, N. Y., spoke before the fire preventive section of the Greater New York City Safety Council at New York City on the subject, "The Texas City Disaster-Facts and Lessons." At this meeting, Braidech stated that he knew of no report of an explosion involving FGAN in which the material caught fire and burned in a land fire, such as railway cars and warehouses. He mentioned the fact that 200 tons of FGAN, stored in a warehouse at Texas City, Tex., burned without explosion after the warehouse caught on fire. A. H. Nuckolls, consulting chemist, Underwriters Laboratories in Chicago, conducted tests on FGAN in 1944 for the War Production Board and issued Miscellaneous Hazards Report No. 3464, dated April 30, 1945. Throughout the various trials of the Texas City case in the courts, the claimants have suggested that Nuckolls warned the Government of the dangerous and hazardous nature of FGAN. During the period he was making tests on this material for the WPB in 1944, and for approximately 20 years prior thereto, Nuckolls served as chairman of the National Fire Protection Association's (NFPA) committee on common hazardous chemicals. At no time during his chairmanship did he consider ammonium nitrate, coated or uncoated, to be a hazardous commodity, as he never once recommended that either form of ammonium nitrate be placed on the NFPA's list of hazardous chemicals. Indeed, it was Nuckolls who wrote in a letter dated January 12, 1927, to the members of the committee on hazardous chemicals of the NFPA, "Ammonium Nitrate: My recommendation is that ammonium nitrate not be included in our table for the present. These is a wide difference of opinion among experts as to the actual hazards of ammonium nitrate." In April 1934, ammonium nitrate was again proposed for inclusion |