The approach to the settlement of this situation is to appoint a commission-let the President appoint a three man commission to go wherever necessary, presumably to Texas City, to evaluate the claims and then to tell Congress how much is due on each one.

It is a considerable job. There will be some 8,000 claimants. It is not as bad as it might look to some who have not studied the history of the case because the FBI has already evaluated the individual claims. Almost all of them-although there may be a few still waiting-have been assessed. Apparently after the lower court held the Government liable the Government proceeded just as though they would ultimately have to pay the claims.

That brings the situation down to date, Mr. Chairman.

I have here with me on my left Judge Russel Markwell who was in the case ever since the beginning and who has a great number of individual claimants. Mr. Austin Bryan is also here and will be remembered by the members of the subcommittee for his able presentation of the legal background and also of the facts.

Also here today is the Honorable T. R. Robinson, county judge of Galveston County. That, I believe, tells the layman's story, Mr. Chairman.

Mr. LANE. Congressman Thompson, for the information of the rest of the committee, will you tell us how long the FBI agents, and how many of them, were in Texas City investigating these claims and whether or not all of these claimants have now been fully investigated and the demands made as to the claimants' requests and the amounts to be paid these claimants by the Department of Justice being represented by the FBI agents so we will have some information as to, not only the number of claims, but also whether or not some definite effort has been made to adjudicate the extent of these claims.

Mr. THOMPSON. Mr. Chairman, I have relied on the advice of counsel because they worked so closely with it. I understand that there were 49 members of the FBI assigned to this case; that they worked for approximately a year and the present status is that the claims and just how many are still not assessed I will have to ask my attorneys again-but almost all of them are laid out with the amount originally claimed and the amount which the FBI recommended was justified and all of the padding taken out. Each has the vital statistics-how many in the family and the life expectancy and so on.

So, the spadework has been done to finally settle these claims. Mr. LANE. And these claims are also broken down in the personal injuries, property damage claims, and death claims?

Mr. THOMPSON. That is correct.

Mr. LANE. This committee, through the staff, has been making arrangements with the Department of Justice to see whether or not these records can be turned over to this committee for the consideration of the committee in deciding what action may be taken insofar as the Texas City bill is concerned, H. R. 4045, or any substitute bill which may be adopted.

Mr. THOMPSON. Mr. Chairman, these records are, of course, available to the Department of Justice. Some of them are in the hands of our own attorneys. Mr. Markwell told me yesterday he had them

all tabulated and they are on file with you now, a typical set of claims all ready to act upon.

At the close of the Senate hearings last year 1 think we were in accord on a bill which would be satisfactory and which would be accepted by the House and the Senate, and I believe that view was shared by the gentleman from Maryland, Mr. Hyde.

What it provided was this that for the time being, and in this particular bill, we would settle only the individual claims. It was understood that any other subrogated claims would still be taken up but in the interest of humanity we had to settle such cases as the one you remember so well, the man without any legs.

I believe if you will indulge me I would like to tell you the story for the benefit of those not there.

At the hearings in Texas City the individuals who had been hurt had been testifying. I had just done as we are accustomed to do. As we looked over the audience there were approximately 250 people who sat with us all day. Just before adjournment the gentleman from Massachusetts, the present chairman, asked the then chairman, Judge Jonas, if he could request the audience that whoever had been injured or had someone close to him or her injured, would they please rise. With the exception of the staff members and some members of the press, everybody arose except one man. He had his leg shot off and could not rise.

It was a very dramatic experience.

Getting back to the action of the Senate, we thought we could first compensate these people. And it is my understanding that that was agreeable to both the Army who were being consulted without being the ones to handle the payment and also the Department of Justice. And I have tried in the approach to this bill, H. R. 4045, to draw something that would be acceptable to all the departments involved. While they, of course, will speak for themselves, I have come away from conferences with them in the belief that they would not object to reasonable settlement, certainly of the individual claims. I have appreciated the help I have had from them unofficially and quite informally in preparing this bill.

Mr. LANE. Congressman Thompson, the reason for the delay since the time of the disaster, April 16 and 17, 1947, to date, is the fact that all of this period of time, with the execption of last year, this matter was in litigation from one court to the other until the decision was finally rendered by the Supreme Court in a 4-to-3 decision that it did not come within the Federal Tort Claims Act. So it was a matter for the Congress instead of for the courts.

Mr. THOMPSON. That is correct.

Mr. LANE. So we are only dealing now with the claims of the individuals.

Mr. THOMPSON. That is correct. I think Congress has moved with reasonable dispatch on it. It was only 2 years ago that the Supreme Court decision was handed down. We immediately moved through the subcommittee, which went to Texas and investigated just after the 1st session of the 83d Congress. Then we moved a year ago to perfect the legislation and present it to the Congress, and we did succeed in passing it which, I think, was moving with reasonable dispatch.

The delay has all been in the Congress-not all of it, of course-but of the 8 years, 6 were spent in courts and not in Congress.

Mr. LANE. Maybe it was a necessary delay, Congressman Thomp

son.

In view of the fact that we have a new committee for the most part, it may be well for this subcommittee to go to Texas City and obtain as much information and possible, and I assume that if they do decide later on to go to Texas City with yourself or the attorneys representing all these claimants and these various lawyers representing a good many of these claimants, you could meet with the committee and have a further hearing in that location?

Mr. THOMPSON. The committee, or any individuals, Mr. Chairman, would be most welcome to come to Texas City, or our lawyers will meet them wherever they might want to go.

Mr. LANE. Any questions from members of the committee?

Mr. MILLER. Mr. Thompson, do I understand that your bill in its present form does not intend to accomplish payment of subrogation claims?

Mr. THOMPSON. My bill, I think, includes them. Here you get a layman's opinion as against a lawyer's. But no one is excluded.

Mr. MILLER. Is your intent to include in its compass a subrogation plan?

Mr. THOMPSON. It was my intent that everyone who suffered damage at the hands of the Government shall come under it.

Mr. MILLER. Including subrogation?

Mr. THOMPSON. Yes. Subrogation-and excluding no one.

Mr. MILLER. That would be my conclusion from reading the bill. Mr. THOMPSON. That is the opinion of my lawyers.

Mr. LANE. Thank you, Congressman Thompson.

The next witness we have is Mr. Warren E. Burger, Assistant Attorney General of the Department of Justice and Mr. Morton Liftin of the Department, and Mr. George Spangler, another Department of Justice attorney who worked on this case.

Mr. LANE. You may sit down and proceed as you wish.

STATEMENT OF WARREN E. BURGER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D. C.

Mr. BURGER. Mr. Chairman, I am not too clear just what it is that the committee may want in the way of comment from the Department of Justice because the proponents of the bill have only outlined the position as Congressman Thompson has now indicated his support of it.

Mr. LANE. Why don't you do this, Mr. Burger. Why don't you proceed with the history as far as your Department is concerned as briefly as possible so the members of the committee may have it in

their minds?

Mr. FORRESTER. Mr. Chairman, may I interject a comment.

I think it will be quite helpful to me personally if I heard the legal grounds of the case, the position on the part of the Department of Justice. I understand the Supreme Court then concurred in that position. Then, of course, the witness will understand that we are here now as a matter of equity. But I do think we should hear some of the law in order that we may resolve that equity. I would be inter

ested to hear the Government's position in respect to the law and so forth.

Mr. BURGER. Mr. Chairman and Congressman, we certainly would be glad to try that. However, I do not know-I was under the impression that this bill was being both offered and entertained as something of a relief measure in which the legal questions long since resolved are not pertinent. But we will try to answer as briefly as we can the Government's position.

Mr. FORRESTER. I understand we are sitting now more as a court of equity and I have the idea if we pass on it from that viewpoint we must understand the law.

Mr. BURGER. I might say in answer to that that as I recall it, the Supreme Court allowed us 6 hours on argument which is a remarkable amount of time based on a record of 40,000 pages and the proposition based on it. Unless this committee is going to spend several days as the Supreme Court did, we are not going to be able to do a good job to give a real treatment of the legal points.

Mr. FORRESTER. I do not think we have to go into it excessively. If we can get a bird's-eye view as we go along.

Mr. BOYLE. May I further limit the scope of that inquiry. The United States Court of Appeals unanimously reversed the trial judge. Didn't it?

Mr. BURGER. It did.

Mr. BOYLE. Well, tell us that.

Mr. BURGER. At this point I could save the committee's time if I would refer the answer to that question to Mr. Liftin who argued this part of the case in the United States Supreme Court and who is familiar with the details, I think, to a degree beyond my grasp of it and if the chairman will permit, I will ask Mr. Liftin to state, in substance, what the courts did.

Mr. BOYLE. Well, tell us that.

Mr. LIFTIN. Yes, sir.

Mr. BURGER. Mr. George Spangler is another colleague of mine who worked on this case.

STATEMENT OF MORTON LIFTIN, ATTORNEY, DEPARTMENT OF JUSTICE, WASHINGTON, D. C.

Mr. LIFTIN. I would like to make one point clear-it is that from the very beginning of this case the Government argued vigorously and introduced very solid evidence that there was no negligence on the part of the United States. And although the finding in the district court was adverse, there was very considerable support for the Government's position that there was no negligence, both in the court of appeals and in the Supreme Court.

I believe it is important, to dissipate right at the start, the opinion or the argument which has been made somewhat persuasively, I believe, that the negligence of the Government must be assumed.

Some of the opinions in the appellate court said that even if the Government were negligent there would be no liability. But a reading of this opinion makes it clear when they did not assume that the Government was negligent. They said they did not even have to pass on that question and as that is part of the reasoning of the court of appeals it reversed the findings of the district court. The district

court made what both courts regarded as prolific and profuse findings of negligence but they were not accepted on their face as facts by the reviewing courts. They were accepted just for the purpose of the law.

In the court of appeals which reversed unanimously there were three separate opinions. The opinions of two of the judges, Judge Hutcheson and Judge Borah, said the findings of the district court were clearly erroneous and could not stand on the record made. That was a finding of two of the justices.

Mr. FORRESTER. On the question of fact.

Mr. LIFTIN. The findings were clearly erroneous and they were in favor of sending the case back for retrial in accordance with the law because of a lot of errors that were made. They said as a matter of law the case had been stated in the complaint and they were not prepared to throw out the case altogether. But they said the findings of negligence were erroneous and 2 of the 6 judges who heard the case in the court of appeals were reversed for that.

The third judge, Judge Strum, in a separate opinion ruled there was no evidence of negligence on the part of the United States and he would have reversed and found for the United States without sending the case back.

Mr. FORRESTER. On the facts?

Mr. LIFTIN. Yes.

So we have 3 of the 6 judges on the facts saying that the evidence of negligence cannot stand. Now the other three judges held that they did not have to reach the facts because, as a matter of law, the United States could not be held. But in doing so they rejected enough of the findings of the district court to say: "We cannot accept the district court's findings that the Government was negligent in conducting this program. We cannot accept the evidence that the danger was so well known that the Government should not have undertaken this project." They threw that out and said: "Assuming the Government could properly undertake it, we find as a matter of law in the procedure it followed enough governmental discretion was involved to take the case outside the scope of liability under the Federal Tort Claims Act."

But they did not accept the findings of negligence at all. They just held in a limited area that it was not necessary to pass upon them. So, we have not a single judge of the six judges who reviewed the case in the court of appeals accepting, as a factual matter, the evidence of negligence. Three explicitly rejected the findings of wrong and three others rejected some and assumed the other findings of law but not one accepted it.

In the Supreme Court the situation was a little bit different. A majority of four said, as a matter of law the Government is not liable here. But in the course of its opinion it makes clear that it does not accept the findings of negligence and says explicitly at one part of the opinion that no proper review of this case could be had by accepting the findings of the district court on their face.

So that even though the Supreme Court said, we do not have to examine and make our own determination with respect to negligence on the basis of the record, we can, as a matter of law, and we do, as a matter of law, hold that the Government, as a matter of law, is not liable here.