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SUPREME COURT OF THE UNITED STATES
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No. 308
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1953.SCT.40636 <http://www.versuslaw.com>; 346 U.S. 15, 73
S. Ct. 956, 97 L. Ed. 1427
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decided: June 8, 1953.
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DALEHITE ET AL.
v.
UNITED STATES
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CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.
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John Lord O'Brian and Howard C. Westwood argued the cause for Dalehite
et al., petitioners. With them on the brief were Thomas Fletcher, Neth L.
Leachman, T. E. Mosheim, John R. Brown, M. S. McCorquodale, Vernon
Elledge, Wm. Merrick Parker, W. Graham Claytor, Jr. and Stanley L.
Temko.
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Austin Y. Bryan, Jr. argued the cause for the PanAmerican Refining
Corporation et al., petitioners. With him on the brief were George D.
Vail, Jr. and David Bland.
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Morton Liftin and Oscar H. Davis argued the cause for the United
States. With them on the brief were Acting Solicitor General Stern,
Assistant Attorney General Burger, Judge Advocate General Brannon,
Assistant Judge Advocate General Mickelwait, Paul A. Sweeney, Marvin E.
Frankel, Massillon M. Heuser, Morton Hollander, Herman Marcuse, Lester S.
Jayson, Cornelius J. Peck, Eberhard P. Deutsch, Burton K. Philips and
William I. Connelly.
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Vinson, Warren, Black, Reed, Frankfurter, Jackson, Burton, Minton;
Douglas, and Clark took no part in the consideration or decision of this
case.
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Author: Reed
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17]
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MR. JUSTICE REED delivered the opinion of the Court.
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Petitioners seek damages from the United States for the death of Henry
G. Dalehite in explosions of fertilizer with an ammonium nitrate base, at
Texas City, Texas, on April 16 and 17, 1947. This is a test case,
representing some 300 separate personal and property claims in the
aggregate amount of two hundred million dollars. Consolidated trial was
had in the District Court for the Southern District of Texas on the facts
and the crucial question of federal liability generally. This was done
under an arrangement that the result would be accepted as to those matters
in the other suits. Judgment was rendered following separate proof of
damages for these individual plaintiffs in the sum of $75,000. Damages in
the other claims remain to be determined. The Court of Appeals for the
Fifth Circuit unanimously reversed, however, In re Texas City Disaster
Litigation, 197 F.2d 771, and we granted certiorari, 344 U.S. 873, because the case presented an important
problem of federal statutory interpretation.
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The suits were filed under the Federal Tort Claims Act, 28 U. S. C.
1346, 2671-2678, 2680. That Act waived sovereign immunity from suit for
certain specified torts of federal employees. It did not assure injured
persons damages for all injuries caused by such employees.
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The Act provides that the federal district courts, "subject to the
provisions of [the act]," are to have:
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"exclusive jurisdiction of civil actions on claims against the United
States, for money damages, accruing on and after January 1, 1945, for
injury or
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18]
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loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where
the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred."
1346 (b).
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There is an exception from the scope of this provision. Section 2680
reads:
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"The provisions of this chapter and section 1346 (b) of this title
shall not apply to --
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"(a) Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused."
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Suing under this grant of jurisdiction, the plaintiffs claimed
negligence, substantially on the part of the entire body of federal
officials and employees involved in a program of production of the
material -- Fertilizer Grade Ammonium Nitrate (FGAN hereafter) -- in which
the original fire occurred and which exploded. This fertilizer had been
produced and distributed at the instance, according to the specifications
and under the control of the United States.
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The adaptability of the material for use in agriculture had been
recognized long prior to 1947. The Government's interest in the matter
began in 1943 when the TVA, acting under its statutory delegation to
undertake experiments and "manufacture" fertilizer, 48 Stat. 61, 16 U. S.
C. 831d,
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first began production for commercial purposes.*fn1 TVA used plant facilities formerly used for
production of ammonium nitrate for explosives. In the year 1943, the War
Production Board, responsible for the production and allocation of war
materials, Exec. Order 9024, January 16, 1942, 7 Fed. Reg. 329, instituted
a program of yearly production of 30,000 tons a month of FGAN for private
domestic agricultural use through plants no longer required for ammunition
production. Administration was to be carried on through the Army's Bureau
of Ordnance. The TVA specifications were followed and advice given by its
experts. This early production for domestic use furnished a test for
manufacture and utility of FGAN.
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The particular FGAN involved at Texas City came to be produced for
foreign use for these reasons: Following the World War II hostilities, the
United States' obligations as an occupying power,*fn2 and the danger of internal unrest, forced
this Government to deal with the problem of feeding the populations of
Germany, Japan and Korea. Direct shipment of foodstuffs was impractical;
available fertilizer was in short supply, and requirements from the United
States were estimated at about 800,000 tons. However, some 15 ordnance
plants had been deactivated and turned over to the War Assets
Administration, 44 CFR, 1949, Part 401, for disposal. Under Secretary of
War Royall suggested in May of 1946, and Secretary Patterson agreed, that
these be used for production of fertilizer needed for export.*fn3 The Director of
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the Office of War Mobilization and Reconversion, 58 Stat. 785, 50 U.
S. C. App. 1651 et seq. (1946 ed.), acting under the power delegated by
the President in Exec. Order 9347, May 27, 1943, 8 Fed. Reg. 7207, and
Exec. Order 9488, October 3, 1944, 9 Fed. Reg. 12145, ordered the plants
into operation. Cabinet approval followed. The War Department allocated
funds from its appropriations for "Supplies" and "Military Posts" for
1946; direct appropriations for relief in the occupied areas were made by
Congress in the following year.*fn4 The Army's Chief of Ordnance was delegated
the responsibility for carrying out the plan, and was authorized
particularly to enter into cost-plus-fixed-fee contracts with private
companies for the operation of the plants' facilities. He in turn
appointed the Field Director of Ammunition Plants (FDAP) to administer the
program. Thereafter the Department entered into a number of contracts with
private firms -- including the du Pont Co. and Hercules Powder Co. -- to
"operate the installation . . . described herein for the graining of
ammonium nitrate (fertilizer grade)," but subjecting "the work to be done
by the Contractor . . . to the general supervision, direction, control and
approval of the Contracting Officer." A detailed set of specifications was
drawn up and sent to each plant which included FDAP "Specifications for
Products" and a similar TVA paper. Army personnel were appointed for each
plant. These were responsible for the application of these specifications,
liaison with supply officials,
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and satisfaction of production schedules, pursuant to an Army Standard
Operating Procedure. Beyond this, operations were controlled by the
administering corporation which supplied the personnel and production
experience required.*fn5
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FGAN's basic ingredient was ammonium nitrate, long used as a component
in explosives. Its adaptability as a fertilizer stemmed from its high free
nitrogen content. Hercules Powder Company had first manufactured a
fertilizer compound in this form on the basis of Cairns' Explosive Patent,
No. 2,211,738, of August 13, 1940. The Cairns process contemplates a
product substantially identical to the Texas City FGAN. The process was
licensed to the United States. The Government produced ammonium nitrate at
certain other federal plants, and shipped it in solution to the
reactivated graining centers for concentration. Thereafter, in addition to
clay, a mixture of petrolatum, rosin and paraffin (PRP hereafter) was
added to insure against caking through water absorption. The material was
then grained to fertilizer specification, dried and packaged in 6-ply
paper bags, marked "Fertilizer (Ammonium Nitrate)."
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At the inception of the program, however, it appeared that these
particular plants were unable to produce sufficient quantities of
fertilizer to meet the early needs of the planned allocation. So early
shipments to the occupied territories were made up of lots privately
produced, and released to the War Department by the Combined Food Board
and purchased by the United States, pursuant to an allocation arrangement
approved by the Board acting through the Civilian Production
Administration, established by Exec. Order 9638, October 4, 1945, 10 Fed.
Reg. 12591. Thereafter the private producers could
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replenish their supply for private sale by purchasing
government-produced FGAN, if they so desired.
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The particular FGAN transported to Texas City had been produced at
three of the plants activated by the Government for the foreign fertilizer
program, and allotted to the Lion Oil Co., which had previously sold FGAN
to the Army pursuant to their sell-back agreement. The agreement provided
that title was to pass to Lion on payment. The original contract of sale
to the Army having provided that Lion could designate a recipient other
than itself for the replacement FGAN, Lion contracted with the Walsen
Company for resale. Walsen operated as broker for the French Supply
Council representing the French Government which had secured a
preferential fertilizer allocation from the Civilian Production
Administration. Pursuant thereto Walsen transmitted the French shipping
orders to Lion who turned them over to the Army for execution. The FGAN
was consigned to the French Supply Council at Texas City by government
bills of lading. The Council insured the shipment in its own name,
arranged for credit with New York banks and assigned part thereof to Lion,
sufficient to cover the shipments here involved, payable on presentation
of shipping documents. It also directed Lion to "consign all lots French
Supply Council for storage and eventual exportation Texas City Terminal
Texas."
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By April 15, 1947, following three weeks' warehouse storage at Texas
City on orders of the French Council, some 1,850 tons of the FGAN thus
resold had been loaded on the French Government-owned steamship Grandcamp,
and some 1,000 tons on the privately owned High Flyer by independent
stevedores hired by the French.*fn6 The Grandcamp carried in addition a
substantial
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cargo of explosives, and the High Flyer 2,000 tons of sulphur at the
time. At about 8:15 a.m. of the next day smoke was sighted in the
Grandcamp hold and all efforts to halt the fire were unavailing.*fn7 Both ships exploded and much of the city
was leveled and many people killed.
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Since no individual acts of negligence could be shown, the suits for
damages that resulted necessarily predicated government liability on the
participation of the United States in the manufacture and the
transportation of FGAN. Following the disaster, of course, no one could
fail to be impressed with the blunt fact that FGAN would explode. In sum,
petitioners charged that the Federal Government had brought liability on
itself for the catastrophe by using a material in fertilizer which had
been used as an ingredient of explosives for so long that industry
knowledge gave notice that other combinations of ammonium nitrate with
other material might explode. The negligence charged was that the United
States, without definitive investigation of FGAN properties, shipped or
permitted shipment to a congested area without warning of the possibility
of explosion under certain conditions. The District Court accepted this
theory. His judgment was based on a series of findings of causal
negligence which, for our purposes, can be roughly divided into three
kinds -- those which held that the Government had been careless in
drafting and adopting the fertilizer export plan as a whole, those which
found specific negligence in various phases of the manufacturing process
and those which emphasized official dereliction of duty in failing to
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police the shipboard loading. The Court of Appeals en banc unanimously
reversed, but since only three of the six judges explicitly rejected the
bulk of these findings, we shall consider the case as one in which they
come to us unimpaired. Cf. Labor Board v. Pittsburgh Steamship Co., 340 U.S. 498, 503; United States v. United States
Gypsum Co., 333 U.S. 364, 395. Even assuming their
correctness arguendo, though, it is our judgment that they do not
establish a case within the Act.*fn8 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.
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I. The Federal Tort Claims Act was passed by the Seventy-ninth
Congress in 1946 as Title IV of the Legislative Reorganization Act, 60
Stat. 842, after nearly thirty years of congressional consideration. It
was the offspring of a feeling that the Government should assume the
obligation to pay damages for the misfeasance of employees in carrying out
its work. And the private bill device was
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notoriously clumsy.*fn9 Some simplified recovery procedure for the
mass of claims was imperative. This Act was Congress' solution, affording
instead easy and simple access to the federal courts for torts within its
scope.*fn10
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The meaning of the governmental regulatory function exception from
suits, 2680 (a), shows most clearly in the history of the Tort Claims Bill
in the Seventy-seventh Congress. The Seventy-ninth, which passed the Act,
held no relevant hearings. Instead, it integrated the language of the
Seventy-seventh Congress, which had first considered the exception, into
the Legislative Reorganization Act as Title IV.
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Earlier tort claims bills considered by Congress contained
reservations from the abdication of sovereign immunity. Prior to 1942
these exceptions were couched in terms of specific spheres of federal
activity, such as postal service, the activities of the Securities and
Exchange Commission, or the collection of taxes.*fn11 In 1942, however, the Seventy-seventh
Congress drafted a twofold elimination of claims based on the execution of
a regulation or statute or on the exercise of a discretionary function.
The language of the bills then introduced in both the House and Senate, in
fact, was identical with that of 2680 (a) as adopted.*fn12 The exception was drafted as a clarifying
amendment to the House bill to assure protection for the
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Government against tort liability for errors in administration or in
the exercise of discretionary functions.*fn13 An Assistant Attorney General, appearing
before the Committee especially for that purpose,*fn14 explained it as avoiding "any possibility
that the act may be construed to authorize damage suits against the
Government growing out of a legally authorized activity," merely because
"the same conduct by a private individual would be tortious." It was not
"intended that the constitutionality of legislation, the legality of
regulations, or the propriety of a discretionary administrative act,
should be tested through the medium of a damage suit for tort. The same
holds true of other administrative action not of a regulatory nature, such
as the expenditure of Federal funds, the execution of a Federal project
and the like."*fn15 Referring to a prior bill which had not
contained the "discretionary function" exemption, the House Committee on
the Judiciary was advised that "the cases embraced within [the new]
subsection would have been exempted from [the prior bill] by judicial
construction. It is not probable that the courts would extend a Tort
Claims Act into the realm of the validity of legislation or discretionary
administrative action, but H. R. 6463 makes this specific."*fn16
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The legislative history indicates that while Congress desired to waive
the Government's immunity from actions for injuries to person and property
occasioned by the tortious conduct of its agents acting within their scope
of
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business,*fn17 it was not contemplated that the
Government should be subject to liability arising from acts of a
governmental nature or function.*fn18 Section 2680 (a) draws this distinction.
Uppermost in the collective mind of Congress were the ordinary common-law
torts.*fn19 Of these, the example which is reiterated
in the course of the repeated proposals for submitting the United States
to tort liability is "negligence in the operation of vehicles."*fn20 On the other hand the Committee's reports
explain the boundaries of the sovereign immunity waived, as defined
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by this 2680 exception, with one paragraph which appears time and
again after 1942, and in the House Report of the Congress that adopted in
2680 (a) the limitation in the language proposed for the 77th Congress.*fn21 It was adopted by the Committee in almost
the
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language of the Assistant Attorney General's explanation. This
paragraph characterizes the general exemption as "a highly important
exception, intended to preclude any possibility that the bill might be
construed to authorize suit for damages against the Government growing out
of an authorized activity, such as a flood-control or irrigation project,
where no negligence on the part of any Government agent is shown, and the
only ground for suit is the contention that the same conduct by a private
individual would be tortious . . . . The bill is not intended to authorize
a suit for damages to test the validity of or provide a remedy on account
of such discretionary acts even though negligently performed and involving
an abuse of discretion."
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II. Turning to the interpretation of the Act, our reasoning as to its
applicability to this disaster starts from the accepted jurisprudential
principle that no action lies against the United States unless the
legislature has authorized it.*fn22 The language of the Act makes the United
States liable "respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private individual
under like circumstances." 28 U. S. C. 2674. This statute is another
example of the progressive relaxation by legislative enactments of the
rigor of the immunity rule. Through such statutes that change the law,
organized government
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expresses the social purposes that motivate its legislation. Of
course, these modifications are entitled to a construction that will
accomplish their aim,*fn23 that is, one that will carry out the
legislative purpose of allowing suits against the Government for
negligence with due regard for the statutory exceptions to that policy. In
interpreting the exceptions to the generality of the grant, courts include
only those circumstances which are within the words and reason of the
exception.*fn24 They cannot do less since petitioners
obtain their "right to sue from Congress [and they] necessarily must take
it subject to such restrictions as have been imposed." Federal Housing
Administration v. Burr, 309 U.S. 242,
251.
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So, our decisions have interpreted the Act to require clear
relinquishment of sovereign immunity to give jurisdiction for tort
actions.*fn25 Where jurisdiction was clear,
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though, we have allowed recovery despite arguable procedural
objections.*fn26
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One only need read 2680 in its entirety to conclude that Congress
exercised care to protect the Government from claims, however negligently
caused, that affected the governmental functions. Negligence in
administering the Alien Property Act, or in establishing a quarantine,
assault, libel, fiscal operations, etc., was barred. An analysis of 2680
(a), the exception with which we are concerned, emphasizes the
congressional purpose to except the acts here charged as negligence from
the authorization to sue.*fn27 It will be noted from the form of the
section, see p. 18, supra, that there are two phrases describing
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the excepted acts of government employees. The first deals with acts
or omissions of government employees, exercising due care in carrying out
statutes or regulations whether valid or not. It bars tests by tort action
of the legality of statutes and regulations. The second is applicable in
this case. It excepts acts of discretion in the performance of
governmental functions or duty "whether or not the discretion involved be
abused." Not only agencies of government are covered but all employees
exercising discretion.*fn28 It is clear that the just-quoted clause
as to abuse connotes both negligence and wrongful acts in the exercise of
the discretion because the Act itself covers only "negligent or wrongful
act or omission of any employee," "within the scope of his office" "where
the United States, if a private person, would be liable." 28 U. S. C. 1346
(b). The exercise of discretion could not be abused without negligence or
a wrongful act. The Committee reports, note 21, supra, show this. They say
2680 (a) is to preclude action for "abuse of discretionary authority . . .
whether or not negligence is alleged to have been involved." They speak of
excepting a "remedy on account of such discretionary
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acts even though negligently performed and involving an abuse of
discretion."*fn29
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So we know that the draftsmen did not intend it to relieve the
Government from liability for such common-law torts as an automobile
collision caused by the negligence of an employee, see p. 28, supra, of
the administering agency. We know it was intended to cover more than the
administration of a statute or regulation because it appears disjunctively
in the second phrase of the section. The "discretion" protected by the
section is not that of the judge -- a power to decide within the limits of
positive rules of law subject to judicial review. It is the discretion of
the executive or the administrator to act according to one's judgment of
the best course, a concept of substantial historical ancestry in American
law.*fn30
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This contention is met by petitioners with these
arguments:
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"To accept the foregoing close and narrow reasoning [of the Court of
Appeals], which is unrealistic, is to say that a program and undertaking
and operation, however like it may be to some private corporation or
operation such as the manufacture of an explosive, is nevertheless
throughout discretionary, if the concept thereof is born in discretion. .
. .
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Petitioners assert that in the manufacturing . . . of FGAN, . . . the
Government was not charged with any discretionary function or opportunity
of discretion, but was charged with the duty of due and reasonable
care.
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"This Court has always applied the theory of discretionary function
only to the executive and legislative levels, and has made such function
the basis of freedom from interference by the courts a personal one to the
particular executive or the legislative branch. Such discretionary
function may not be delegated down to subordinates and to
others."
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"The Government's argument, adopted by Judge Rives, is that the
responsible Government employees were choosing between alternative courses
of action in the steps they took. . . . The argument is that the alleged
negligence was in the exercise of 'discretion' simply because it involved
a choice.
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" The negligence involved here was far removed from any Cabinet
decision to provide aid to Germans and Japanese. . . . It is directed only
to the mistakes of judgment and the careless oversight of Government
employees who were carrying out a program of manufacturing and shipping
fertilizer and who failed to concern themselves as a reasonable man should
with the safety of others. . . . Congress delegated to Ordnance no
'discretion' thus to commit wrong."
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It is unnecessary to define, apart from this case, precisely where
discretion ends. It is enough to hold, as we do, that the "discretionary
function or duty" that cannot form a basis for suit under the Tort Claims
Act includes more than the initiation of programs and activities. It also
includes determinations made by executives or administrators
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in establishing plans, specifications or schedules of operations.*fn31 Where there is room for policy judgment
and decision there is discretion. It necessarily follows that acts of
subordinates in carrying out the operations of government in accordance
with official directions cannot be actionable. If it were not so, the
protection of 2680 (a) would fail at the time it would be needed, that is,
when a subordinate performs or fails to perform a causal step, each action
or non-action being directed by the superior, exercising, perhaps abusing,
discretion.*fn32
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III. That the cabinet-level decision to institute the fertilizer
export program was a discretionary act is not seriously disputed. Nor do
we think that there is any doubt that the need for further experimentation
with FGAN to determine the possibility of its explosion, under
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conditions likely to be encountered in shipping, and its
combustibility was a matter to be determined by the discretion of those in
charge of the production. Obviously, having manufactured and shipped the
commodity FGAN for more than three years without even minor accidents, the
need for further experimentation was a matter of discretion. Reported
instances of heating or bag damage were investigated and experiments, to
the extent deemed necessary, were carried on. In dealing with ammonium
nitrate in any form, the industry, and of course Ordnance, were well aware
that care must be taken. The best indication of the care necessary came
from experience in FGAN production. The TVA had produced FGAN since 1943,
and their experience, as we have indicated, pp. 18-20, was not only
available to Ordnance but was used by them to the most minute detail. It
is, we think, just such matters of governmental duties that were excepted
from the Act.
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We turn, therefore, to the specific acts of negligence charged in the
manufacture. Each was in accordance with, and done under, specifications
and directions as to how the FGAN was produced at the plants. The basic
"Plan" was drafted by the office of the Field Director of Ammunition
Plants in June, 1946, prior to beginning production.*fn33 It was drawn up in the light of prior
experience by private enterprise and the TVA. In fact it was, as we have
pointed out, based on the latter agency's engineering
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techniques, and specifically adopted the TVA process description and
specifications.*fn34 This Plan was distributed to the various
plants at the inception of the program.
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Besides its general condemnation of the manufacture of FGAN, the
District Court cited four specific acts of negligence in manufacture.*fn35 Each of these acts looked upon as
negligence was directed by this Plan. Applicable excerpts follow. Bagging
temperature was fixed.*fn36 The type of bagging*fn37 and the labeling thereof*fn38 were also established. The PRP coating,
too, was included in the specifications.*fn39 The acts found to have
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been negligent were thus performed under the direction of a plan
developed at a high level under a direct delegation of plan-making
authority from the apex of the Executive Department. The establishment of
this Plan, delegated to the Field Director's Office, supra, p. 20, clearly
required the exercise of expert judgment.
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This is to be seen, for instance, in the matter of the coating. The
PRP was added in order to insure against water absorption. At stake was no
mere matter of taste; ammonium nitrate when wet cakes and is difficult to
spread on fields as a fertilizer. So the considerations that dictated the
decisions were crucial ones, involving the feasibility of the program
itself, balanced against present knowledge of the effect of such a coating
and the general custom of similar private industries.
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And, assuming that high bagging temperatures in fact obtained as the
District Court found, the decision to bag at the temperature fixed was
also within the exception. Maximum bagging temperatures were first
established under the TVA specifications. That they were the product of an
exercise of judgment, requiring consideration of a vast spectrum of
factors, including some which touched directly the feasibility of the
fertilizer export program, is clear. For instance, it appears several
times in the record that the question of bagging temperatures was
discussed by the Army plant officials, among others. In January, 1947, the
Bureau of Explosives of the Association of American Railroads wrote to
Ordnance concerning a boxcar fire of FGAN. The letter suggested a
reduction of bagging temperatures. The Field Director of Ammunition Plants
consulted the commanding officers on the matter. Those of two of the
plants which manufactured the Texas City FGAN replied that loading was
effected at about 200 degrees. Both, however, recommended that reduced
temperatures would be inadvisable. It would be possible to keep the
product in graining kettles for a longer
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period or to install cooling equipment. But both methods would result
in greatly increased production costs and/or greatly reduced production.
This kind of decision is not one which the courts, under the Act, are
empowered to cite as "negligence"; especially is this so in the light of
the contemporary knowledge of the characteristics of FGAN.*fn40
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As well, serious judgment was involved in the specification of the bag
labels and bills of lading. The importance of this rests on the fact that
it is the latest point in time and geography when the Government did
anything directly related to the fire, for after bagging the FGAN was of
course physically in the hands of various non-governmental agents. So,
since there was serious room for speculation that the most direct
operative fact causing the immediate fire on the Grandcamp arose from
errors that the French Council, longshoremen or ship staff committed, it
was and is important for the petitioners to emphasize the seriousness of
the alleged labeling mistake.
|
| [46] |
This, too, though, falls within the exception for acts of discretion.
The Plan had been prepared in this regard
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|
| |
by the Transportation Officer of the Director's Office. His decision
in the matter was dictated by the ICC regulations. These did not provide
for a specific classification for the material other than as fertilizer.
Labeling it as anything but "oxidizing material" was not required --
indeed was probably forbidden -- and even this requirement was waived for
bags of less than 200 pounds. To the extent, then, that the Army had a
choice in the matter, its decision not to seek to list its FGAN in any
other fashion was within the exception. The immunity of a decision as to
labeling, in fact, is quite clearly shown by the fact that the ICC's
regulations, for instance, could not be attacked by claimants under the
Act by virtue of the first phrase of 2680 (a).
|
| [47] |
In short, the alleged "negligence" does not subject the Government to
liability. The decisions held culpable were all responsibly made at a
planning rather than operational level and involved considerations more or
less important to the practicability of the Government's fertilizer
program.
|
| [48] |
"There must be knowledge of a danger, not merely possible, but
probable," MacPherson v. Buick Motor Co., 217 N. Y. 382, 389, 111 N. E.
1050, 1053. Here, nothing so startling was adduced. The entirety of the
evidence compels the view that FGAN was a material that former experience
showed could be handled safely in the manner it was handled here. Even now
no one has suggested that the ignition of FGAN was anything but a complex
result of the interacting factors of mass, heat, pressure and
composition.
|
| [49] |
IV. The findings of negligence on the part of the Coast Guard in
failing to supervise the storage of the FGAN, and in fighting the fire
after it started, were rejected by a majority of the Court of Appeals. 197 F.2d, at 777, 780, 781. We do not enter into an
examination of these
|
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|
| |
factual findings. We prefer, again, to rest our decision on the
Act.
|
| [50] |
The District Court's holding that the Coast Guard and other agencies
were negligent in failing to prevent the fire by regulating storage or
loading of the fertilizer in some different fashion is like his specific
citations of negligence discussed above. They are classically within the
exception. "The power to adopt regulations or bylaws . . . for the
preservation of the public health, or to pass ordinances prescribing and
regulating the duties of policemen and firemen . . . are generally
regarded as discretionary, because, in their nature, they are
legislative." Weightman v. Corporation of Washington, 1 Black
39, 49. The courts have traditionally refused to question the
judgments on which they are based. Zywicki v. Jos. R. Foard Co., 206 F. 975; Gutowski v. Mayor of Baltimore, 127 Md.
502, 96 A. 630; State v. General Stevedoring Co., 213 F. 51.
|
| [51] |
As to the alleged failure in fighting the fire, we think this too
without the Act. The Act did not create new causes of action where none
existed before.
|
| [52] |
". . . the liability assumed by the Government here is that created by
'all the circumstances,' not that which a few of the circumstances might
create. We find no parallel liability before, and we think no new one has
been created by, this Act. Its effect is to waive immunity from recognized
causes of action and was not to visit the Government with novel and
unprecedented liabilities." Feres v. United States, 340 U.S.
135, 142.
|
| [53] |
It did not change the normal rule that an alleged failure or
carelessness of public firemen does not create private actionable rights.
Our analysis of the question is determined by what was said in the Feres
case. See 28 U. S. C. 1346 and 2674. The Act, as was there stated,
|
[ 97 L. Ed. Page
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|
| |
limited United States liability to "the same manner and to the same
extent as a private individual under like circumstances." 28 U. S. C.
2674. Here, as there, there is no analogous liability; in fact, if
anything is doctrinally sanctified in the law of torts it is the immunity
of communities and other public bodies for injuries due to fighting fire.
This case, then, is much stronger than Feres. We pointed out only one
state decision which denied government liability for injuries incident to
service to one in the state militia. That cities, by maintaining
fire-fighting organizations, assume no liability for personal injuries
resulting from their lapses is much more securely entrenched. The Act,
since it relates to claims to which there is no analogy in general tort
law, did not adopt a different rule. See Steitz v. City of Beacon, 295 N.
Y. 51, 64 N. E. 2d 704. To impose liability for the alleged nonfeasance of
the Coast Guard would be like holding the United States liable in tort for
failure to impose a quarantine for, let us say, an outbreak of
foot-and-mouth disease.
|
| [54] |
V. Though the findings of specific and general negligence do not
support a judgment of government liability, there is yet to be disposed of
some slight residue of theory of absolute liability without fault. This is
reflected both in the District Court's finding that the FGAN constituted a
nuisance, and in the contention of petitioners here. We agree with the six
judges of the Court of Appeals, 197 F.2d 771, 776,
781, 786, that the Act does not extend to such situations, though of
course well known in tort law generally. It is to be invoked only on a
"negligent or wrongful act or omission" of an employee. Absolute
liability, of course, arises irrespective of how the tortfeasor conducts
himself; it is imposed automatically when any damages are sustained as a
result of the decision to engage in the dangerous activity. The degree of
care used in performing the activity is irrelevant to the application of
that
|
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|
| |
doctrine. But the statute requires a negligent act. So it is our
judgment that liability does not arise by virtue either of United States
ownership of an "inherently dangerous commodity" or property, or of
engaging in an "extra-hazardous" activity. United States v. Hull, 195 F.2d 64, 67.
|
| [55] |
Petitioners rely on the word "wrongful" though as showing that
something in addition to negligence is covered. This argument, as we have
pointed out, does not override the fact that the Act does require some
brand of misfeasance or nonfeasance, and so could not extend to liability
without fault; in addition, the legislative history of the word indicates
clearly that it was not added to the jurisdictional grant with any
overtones of the absolute liability theory. Rather, Committee discussion
indicates that it had a much narrower inspiration: "trespasses" which
might not be considered strictly negligent. Hearings before a Subcommittee
of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess.
43-44. Had an absolute liability theory been intended to have been
injected into the Act, much more suitable models could have been found,
see e. g., the Suits in Admiralty Act, 41 Stat. 525, 46 U. S. C. 742-743,
in regard to maintenance and cure. Street, Tort Liability of the State:
The Federal Tort Claims Act and the Crown Proceedings Act, 47 Mich. L.
Rev. 341, 350.
|
| [56] |
Affirmed.
|
| [57] |
MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the
consideration or decision of this case.
|
| [58] |
APPENDIX TO OPINION OF THE COURT.
|
| [59] |
The District Court's analysis of the specific aspects of the
manufacture was foreshadowed by his theory of the foreseeability of the
risk which he set out early in the findings. His first finding of fact
contained these words: "This record discloses blunders, mistakes, and
|
[ 97 L. Ed. Page
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|
| |
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." It was his
conclusion that, through early experiments, the United States had "learned
many facts, but did not pursue such investigation far enough to learn all
the facts, .. . . What facts it did learn, however, were sufficient to
give Defendant knowledge and to put Defendant on notice, and if not, then
upon inquiry that would if pursued, have led to knowledge and notice that
such Fertilizer which it decided to and began to manufacture was an
inherently dangerous and hazardous material, a dangerous explosive, and a
fire hazard. Such facts learned by Defendant pointed to and showed that
such Fertilizer should not be manufactured, in that it was, under certain
conditions and circumstances, most dangerous to everyone handling it in
any way and to the public. Yet Defendant's servants, agents and employees,
in whose hands Defendant had left the matter, negligently went forward in
the manufacture, handling, distribution, shipping, etc. of such
Fertilizer. . . .
|
| [60] |
"After the manufacture and/or the shipping, distribution, and handling
of Fertilizer had begun, there were experiments, events and incidents of
which Defendant knew, or of which Defendant could have known by the use of
the diligence of a reasonable prudent person, showing such Fertilizer to
be very dangerous, both from the standpoint of fire and explosion. With
this knowledge, Defendant should have ceased the manufacture and sale of
such Fertilizer, or should have taken steps to insure the safety of
persons manufacturing and handling such Fertilizer and the public. . .
."
|
| [61] |
"Defendant in manufacturing such Fertilizer, and particularly the
Fertilizer on the Grandcamp and High Flyer, did so by a Formula made and
evolved by Defendant or under its direction. It used as a coating of such
Fertilizer, a substance or substances which rendered same highly
susceptible to fire or explosion. There were various types of coating, but
the coating finally used made the Fertilizer a very dangerous explosive
and fire hazard. More than any other one thing, I think this coating made
this commodity one of the most dangerous of explosives, . . .
."
|
| [62] |
". . . Such Fertilizer was by Defendant, or under it[s] direction,
placed or sacked in bags made from paper or other substances which were
easily ignited by contact with fire or by spontaneous combustion or
spontaneous ignition of the Fertilizer. Such bags also became torn and
ragged in shipping and particles of the bags became mixed with
|
[ 97 L. Ed. Page
47]
|
| |
the Fertilizer and rendered same more dangerous and more susceptible
to fire and explosion."
|
| [63] |
". . . Such Fertilizer was placed and packed in bags at high degrees
of temperature, which temperature rendered the Fertilizer more susceptible
to fire and explosion. Such Fertilizer was so packed that it did not cool,
but continued at high temperature while being shipped. This was
particularly true of the Fertilizer which exploded on the Steamships
Grandcamp and High Flyer. Same was packed in sacks at a high degree of
temperature, which temperature continued with only slight reduction, if
any, when the Fertilizer was shipped across the nation to Texas City and
there loaded onto such Steamships."
|
| [64] |
"Defendant was negligent in the manner in which it marked and labelled
such sacks of Fertilizer, including the Fertilizer on the Grandcamp and
High Flyer, in that same was not labelled and marked as a dangerous
explosive and fire hazard as required by the Rules and Regulations of the
Interstate Commerce Commission. . . .
|
| [65] |
". . . It was the duty of Defendant, well knowing as it did the
dangerous nature and character of such Fertilizer which Defendant shipped
or caused to be shipped to Texas City, to notify and advise all the
carriers handling same, including the Steamships Grandcamp and High Flyer,
and to notify and advise the City and State Officers at Texas City, of the
dangerous nature and character of such Fertilizer, to the end that such
carriers and their employees and such officers could, if possible protect
themselves and the public against the danger of fires from and explosions
of such Fertilizer."
|
| [66] |
The District Court concluded:
|
| [67] |
"Clearly such Fertilizer ought never to have been manufactured. From
the beginning on down, it was a dangerous commodity and a dangerous
nuisance."
|
| [68] |
Disposition
|
| [69] |
197 F.2d 771, affirmed.
|
| [70] |
MR. JUSTICE JACKSON, joined by MR. JUSTICE BLACK and MR. JUSTICE
FRANKFURTER, dissenting.
|
| [71] |
All day, April 15, 1947, longshoremen loaded bags of ammonium nitrate
fertilizer aboard the S. S. Grandcamp, docked at Texas City, Texas.
Shortly after 8 a.m. next morning, when work resumed, smoke was seen
coming from the No. 4 hold and it was discovered that fire had broken out
in the fertilizer. The ship's master ordered
|
[ 97 L. Ed. Page
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|
| |
the hatch covered and battened down, and steam was introduced into the
hold. Local fire-fighting apparatus soon arrived, but the combined efforts
to extinguish the fire were unavailing. Less than an hour after smoke was
first seen, 880 tons of fertilizer in the No. 4 hold exploded and, in
turn, detonated the fertilizer stored in the No. 2 hold. Fire spread to
the dock area of Texas City and to the S. S. High Flyer, berthed at an
adjoining pier and carrying a cargo of sulphur and ammonium nitrate
fertilizer. Further efforts to extinguish or even contain the fire failed
and, about 11 p.m., tugs unsuccessfully attempted to tow the High Flyer
out to sea. Shortly after one o'clock on the morning of April 17, the
sulphur and fertilizer aboard the High Flyer exploded, demolishing both
that ship and the S. S. Wilson B. Keene, lying alongside. More than 560
persons perished in this holocaust, and some 3,000 were injured. The
entire dock area of a thriving port was leveled and property damage ran
into millions of dollars.
|
| [72] |
This was a man-made disaster; it was in no sense an "act of God." The
fertilizer had been manufactured in government-owned plants at the
Government's order and to its specifications. It was being shipped at its
direction as part of its program of foreign aid. The disaster was caused
by forces set in motion by the Government, completely controlled or
controllable by it. Its causative factors were far beyond the knowledge or
control of the victims; they were not only incapable of contributing to
it, but could not even take shelter or flight from it.
|
| [73] |
Over 300 suits were brought against the United States under the
Federal Tort Claims Act, alleging that its negligence was responsible for
the disaster. After consolidating the suits, the District Court ordered
the case of the present petitioners to be tried. The parties to all of the
suits, in effect, agreed that the common issue of the
|
[ 97 L. Ed. Page
49]
|
| |
Government's negligence should abide the outcome of this test
litigation. The Court of Appeals for the Fifth Circuit reversed the trial
court's judgment in favor of petitioners.*fn1 Supporting that reversal, the Government
here urges that (1) a private person would not be liable in these
circumstances, and (2) even if a private person were liable, the
Government is saved from liability by the statute's exception of
discretionary acts.*fn2
|
| [74] |
This is one of those cases that a judge is likely to leave by the same
door through which he enters. As we have been told by a master of our
craft, " Some theory of liability, some philosophy of the end to be served
by tightening or enlarging the circle of rights and remedies, is at the
root of any decision in novel situations when analogies are equivocal and
precedents are silent."*fn3 So, we begin by avowing a conception of
the function of legal liability in cases such as this quite obviously at
variance with the approach of the Court.
|
| [75] |
Congress has defined the tort liability of the Government as analogous
to that of a private person. Traditionally, one function of civil
liability for negligence is to supply a sanction to enforce the degree of
care suitable to the conditions of contemporary society and appropriate to
the circumstances of the case. The civil damage action, prosecuted and
adjusted by private initiative, neither burdening our overworked criminal
processes nor confined by the limits of criminal liability, is one of the
law's most effective inducements to the watchfulness and prudence
necessary to avoid calamity from hazardous operations in the midst of an
unshielded populace.
|
| [76] |
Until recently, the influence of the Federal Government has been
exerted in the field of tort law to tighten liability
|
[ 97 L. Ed. Page
50]
|
| |
and liberalize remedies.*fn4 Congress has even imposed criminal
liability without regard to knowledge of danger or intent where
potentially dangerous articles are introduced into interstate commerce.*fn5 But, when the Government is brought into
court as a tort defendant, the very proper zeal of its lawyers to win
their case and the less commendable zeal of officials involved to conceal
or minimize their carelessness militate against this trend. The
Government, as a defendant, can exert an unctuous persuasiveness because
it can clothe official carelessness with a public interest. Hence, one of
the unanticipated consequences of the Tort Claims Act has been to throw
the weight of government influence on the side of lax standards of care in
the negligence cases which it defends.
|
| [77] |
It is our fear that the Court's adoption of the Government's view in
this case may inaugurate an unfortunate trend toward relaxation of private
as well as official responsibility in making, vending or transporting
inherently dangerous products. For we are not considering here everyday
commodities of commerce or products of nature but a complex compound not
only proven by
|
[ 97 L. Ed. Page
51]
|
| |
the event to be highly dangerous, but known from the beginning to lie
somewhere within the range of the dangerous. Ammonium nitrate, as the
Court points out, had been "long used as a component in explosives." This
grade of it was manufactured under an explosives patent, in plants
formerly used for the manufacture of ordnance, under general supervision
of the Army's Chief of Ordnance, and under the local direction of the
Army's Field Director of Ammunition Plants. Advice on detailed operations
was sought from such experienced commercial producers of high explosives
as the du Ponts and the Atlas and the Hercules powder concerns. There is
not the slightest basis for any official belief that this was an innocuous
product.
|
| [78] |
Because of reliance on the reservation of governmental immunity for
acts of discretion, the Court avoids direct pronouncement on the duty
owing by the Government under these circumstances but does sound overtones
and undertones with which we disagree. We who would hold the Government
liable here cannot avoid consideration of the basic criteria by which
courts determine liability in the conditions of modern life. This is a day
of synthetic living, when to an ever-increasing extent our population is
dependent upon mass producers for its food and drink, its cures and
complexions, its apparel and gadgets. These no longer are natural or
simple products but complex ones whose composition and qualities are often
secret. Such a dependent society must exact greater care than in more
simple days and must require from manufacturers or producers increased
integrity and caution as the only protection of its safety and well-being.
Purchasers cannot try out drugs to determine whether they kill or cure.
Consumers cannot test the youngster's cowboy suit or the wife's sweater to
see if they are apt to burst into fatal flames. Carriers, by land or by
sea, cannot experiment with the combustibility of
|
[ 97 L. Ed. Page
52]
|
| |
goods in transit. Where experiment or research is necessary to
determine the presence or the degree of danger, the product must not be
tried out on the public, nor must the public be expected to possess the
facilities or the technical knowledge to learn for itself of inherent but
latent dangers. The claim that a hazard was not foreseen is not available
to one who did not use foresight appropriate to his
enterprise.
|
| [79] |
Forward-looking courts, slowly but steadily, have been adapting the
law of negligence to these conditions.*fn6 The law which by statute determines the
Government's liability is that of the place where the negligent act or
omission
|
[ 97 L. Ed. Page
53]
|
| |
occurred.*fn7 This fertilizer was manufactured in Iowa
and Nebraska, thence shipped to Texas. Speculation as to where the
negligence occurred is unnecessary, since each of these jurisdictions
recognizes the general proposition that a manufacturer is liable for
defects in his product which could have been avoided by the exercise of
due care.*fn8 Where there are no specific state
decisions on the point, federal judges may turn to the general doctrines
of accepted tort law, whence state judges derive their governing
principles in novel cases. We believe that whatever the source to which we
look for the law of this case, if the source is as modern as the case
itself, it supports the exaction of a higher degree of care than possibly
can be found to have been exercised here.
|
| [80] |
We believe it is the better view that whoever puts into circulation in
commerce a product that is known or even suspected of being potentially
inflammable or explosive is under an obligation to know his own product
and to ascertain what forces he is turning loose. If, as often will be the
case, a dangerous product is also a useful one, he is under a strict duty
to follow each step of its distribution with warning of its dangers and
with information and directions to keep those dangers at a minimum.
|
[ 97 L. Ed. Page
54]
|
| |
It is obvious that the Court's only choice is to hold the Government's
liability to be nothing or to be very heavy, indeed. But the magnitude of
the potential liability is due to the enormity of the disaster and the
multitude of its victims. The size of the catastrophe does not excuse
liability but, on its face, eloquently pleads that it could not have
resulted from any prudently operated government project, and that injury
so sudden and sweeping should not lie where it has fallen. It should at
least raise immediate doubts whether this is one of those "discretionary"
operations Congress sought to immunize from liability. With this statement
of our general approach to the liability issue, we turn to its application
to this case.
|
| [81] |
In order to show that even a private person would not be liable, the
Government must show that the trial court's findings of fact are clearly
erroneous.*fn9 It points to what it claims are patent
errors in the lengthy findings made upon a record of over 30,000 pages in
39 printed volumes and apparently urges upon us a rule of " error in uno,
error in omnibus." We cannot agree that some or even many errors in a
record such as this will impeach all of the findings. We conclude that
each individual finding must stand or fall on the basis of the evidence to
support it. The trial judge found that the explosions resulted from a fire
in the fertilizer which had started by some process akin to spontaneous
combustion, and that the Government was negligent in failing to anticipate
and take precautions against such an occurrence.
|
| [82] |
The Government's attack on the purely factual determination by the
trial judge seems to us utterly unconvincing. Reputable experts testified
to their opinion that the fire could have been caused by spontaneous
combustion. The Government's contention that it was
|
[ 97 L. Ed. Page
55]
|
| |
probably caused by someone smoking about the hold brought forth sharp
conflict in the testimony. There was no error in adopting one of two
permissible inferences as to the fire's origin. And, in view of the
absence of any warning that FGAN was inflammable or explosive, we would
think smoking by longshoremen about the job would not be an abnormal
phenomenon.
|
| [83] |
The evidence showed that this type of fertilizer had been manufactured
for about four years at the time of the explosion in Texas City.
Petitioners' experts testified to their belief that at least a segment of
informed scientific opinion at the time regarded ammonium nitrate as
potentially dangerous, especially when combined with carbonaceous material
as it was in this fertilizer. One witness had been hired by the War
Production Board to conduct tests into explosion and fire hazards of this
product. The Board terminated these tests at an intermediate stage,
against the recommendation of the laboratory and in the face of the
suggestion that further research might point up suspected but unverified
dangers. In addition, there was a considerable history over a period of
years of unexplained fires and explosions involving such ammonium nitrate.
The zeal and skill of government counsel to distinguish each of these
fires on its facts appears to exceed that of some of the experts on whose
testimony they rely. The Government endeavored to impeach the opinions of
petitioners' experts, introduced experts of its own, and sought to show
that private persons who manufactured similar fertilizer took no more
precautions than did the Government.
|
| [84] |
In this situation, even the simplest government official could
anticipate likelihood of close packing in large masses during sea
shipment, with aggravation of any attendant dangers. Where the risk
involved is an explosion of a cargo-carrying train or ship, perhaps in a
congested rail yard or at a dock, the producer is not
|
[ 97 L. Ed. Page
56]
|
| |
entitled as a matter of law to treat industry practice as a conclusive
guide to due care. Otherwise, one free disaster would be permitted as to
each new product before the sanction of civil liability was thrown on the
side of high standards of safety.
|
| [85] |
It is unnecessary that each of the many findings of negligence by the
trial judge survive the "clearly erroneous" test of appellate review.
Without passing on the rest of his findings, we find that those as to the
duty of further inquiry and negligence in shipment and failure to warn are
sufficient to support the judgment.*fn10 We construe these latter findings not as
meaning that each
|
[ 97 L. Ed. Page
57]
|
| |
omission in the process of bagging, shipping, and failure to warn, if
standing alone, would have imposed liability on the Government, but rather
that due care is not consistent with this seriatim resolution of every
conflict between safety and expediency in favor of the latter. This Court
certainly would hold a private corporation liable in this situation, and
the statute imposes the same liability upon the Government unless it can
bring itself within the Act's exception, to which we now turn.*fn11
|
| [86] |
The Government insists that each act or omission upon which the charge
of negligence is predicated -- the decisions as to discontinuing the
investigation of hazards, bagging at high temperature, use of
paper-bagging material, absence of labeling and warning -- involved a
conscious weighing of expediency against caution and was therefore within
the immunity for discretionary acts provided by the Tort Claims Act. It
further argues, by way of showing that by such a construction the
reservation would not completely swallow the waiver of immunity, that such
discretionary decisions are to be distinguished from those made by a truck
driver as to the speed at which he will travel so as to keep the latter
within the realm of liability.
|
| [87] |
We do not predicate liability on any decision taken at "Cabinet level"
or on any other high-altitude thinking. Of course, it is not a tort for
government to govern, and the decision to aid foreign agriculture by
making and delivering fertilizer is no actionable wrong. Nor do we
|
[ 97 L. Ed. Page
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|
| |
find any indication that in these deliberations any decision was made
to take a calculated risk of doing what was done, in the way it was done,
on the chance that what did happen might not happen. Therefore, we are not
deterred by fear that governmental liability in this case would make the
discretion of executives and administrators timid and restrained. However,
if decisions are being made at Cabinet levels as to the temperature of
bagging explosive fertilizers, whether paper is suitable for bagging hot
fertilizer, and how the bags should be labeled, perhaps an increased sense
of caution and responsibility even at that height would be wholesome. The
common sense of this matter is that a policy adopted in the exercise of an
immune discretion was carried out carelessly by those in charge of detail.
We cannot agree that all the way down the line there is immunity for every
balancing of care against cost, of safety against production, of warning
against silence.
|
| [88] |
On the ground that the statutory language is not clear, the Government
seeks to support its view by resort to selections from an inconclusive
legislative history. We refer in the margin to appropriate excerpts which,
in spite of the Court's reliance on them, we believe support our
conclusion in this case.*fn12
|
| [89] |
The Government also relies on the body of law developed in the field
of municipal liability for torts which deal with discretionary, as opposed
to ministerial, acts.
|
[ 97 L. Ed. Page
59]
|
| |
Whatever the substantiality of this dichotomy, the cases which have
interpreted it are in hopeless confusion; some have used "discretionary"
and "ministerial" interchangeably with "proprietary" and "governmental,"
while others have rather uncritically borrowed the same terminology from
the law of mandamus.*fn13 But even cases cited by the Government
hold that, although the municipality may not be held for its decision to
undertake a project, it is liable for negligent execution or upkeep.*fn14
|
| [90] |
We think that the statutory language, the reliable legislative
history, and the common-sense basis of the rule regarding municipalities,
all point to a useful and proper distinction preserved by the statute
other than that urged by the Government. When an official exerts
governmental authority in a manner which legally binds one or many, he is
acting in a way in which no private person could. Such activities do and
are designed to affect, often deleteriously, the affairs of individuals,
but courts have long recognized the public policy that such official shall
be controlled solely by the statutory or administrative mandate and not by
the added threat of private damage suits. For example, the Attorney
General will not be liable for false arrest in circumstances where a
private person performing the same act would be liable,*fn15 and such cases could be multiplied.*fn16 The official's act
|
[ 97 L. Ed. Page
60]
|
| |
might inflict just as great an injury and might be just as wrong as
that of the private person, but the official is not answerable. The
exception clause of the Tort Claims Act protects the public treasury where
the common law would protect the purse of the acting public
official.
|
| [91] |
But many acts of government officials deal only with the housekeeping
side of federal activities. The Government, as landowner, as manufacturer,
as shipper, as warehouseman, as shipowner and operator, is carrying on
activities indistinguishable from those performed by private persons. In
this area, there is no good reason to stretch the legislative text to
immunize the Government or its officers from responsibility for their
acts, if done without appropriate care for the safety of others. Many
official decisions even in this area may involve a nice balancing of
various considerations, but this is the same kind of balancing which
citizens do at their peril and we think it is not within the exception of
the statute.
|
| [92] |
The Government's negligence here was not in policy decisions of a
regulatory or governmental nature, but involved actions akin to those of a
private manufacturer, contractor, or shipper. Reading the discretionary
exception as we do, in a way both workable and faithful to legislative
intent, we would hold that the Government was liable under these
circumstances. Surely a statute so long debated was meant to embrace more
than traffic accidents. If not, the ancient and discredited doctrine that
"The King can do no wrong" has not been uprooted; it has merely been
amended to read, "The King can do only little wrongs."
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [93] |
*fn1 The Hercules Powder Company held the
original Cairns Explosive Patent on the FGAN process, which contemplated a
product substantially similar to that finally produced by the Government
including the use of an organic insulator. See p. 21, infra.
|
| [94] |
*fn2 The Hague Conventions of 1899 (II) and 1907
(IV) Respecting the Laws and Customs of War on Land, Article
43.
|
| [95] |
*fn3 These were capable of producing 70,000 tons
a month.
|
| [96] |
*fn4 Military Appropriation Act of 1946, 59
Stat. 384, 390, 395 (1945), and Military Appropriation Act of 1947, 60
Stat. 541, 560 (1946). The latter was mentioned as directed toward the
fertilizer program. Hearings before a Subcommittee of the Senate Committee
on Appropriations on H. R. 6837, 79th Cong., 2d Sess. 16, 85. See also H.
J. Res. 153, 61 Stat. 125, May 31, 1947, specifically appropriating moneys
for relief assistance of all kinds.
|
| [97] |
*fn5 By 1946, at least two companies in addition
to Hercules were producing FGAN commercially.
|
| [98] |
*fn6 Seventy-five thousand tons of FGAN had been
shipped through Texas City during the previous six months.
|
| [99] |
*fn7 The Grandcamp exploded about an hour after
the fire was noticed. Meanwhile the captain of the ship had ordered all
personnel off and the hatches closed. Steam was introduced into the holds.
All admit that this is normal fire-fighting procedure aboard ships, but
that it was less than effective in this case because of the oxidizing
properties of the FGAN. Whether or not the captain was negligent this
Court is not called upon to say.
|
| [100] |
*fn8 We are therefore not required to weigh each
finding anew as "clearly erroneous." They were characterized below as
"profuse, prolific, and sweeping." We agree. Fed. Rules Civ. Proc., Rule
52 (a), in terms, contemplates a system of findings which are "of fact"
and which are "concise." The well-recognized difficulty of distinguishing
between law and fact clearly does not absolve district courts of their
duty in hard and complex cases to make a studied effort toward
definiteness. Statements conclusory in nature are to be eschewed in favor
of statements of the preliminary and basic facts on which the District
Court relied. Kelley v. Everglades Drainage District, 319 U.S.
415, and cases cited. Otherwise, their findings are useless for
appellate purposes. In this particular case, no proper review could be
exercised by taking the "fact" findings of "negligence" at face value.
And, to the extent that they are of law, of course they are not binding on
appeal. E. g., Great Atlantic & Pacific Tea Co. v. Supermarket
Equipment Corp., 340 U.S. 147, 153-154, and
concurring opinion at 155-156.
|
| [101] |
*fn9 "In the Sixty-eighth Congress about 2,200
private claim bills were introduced, of which 250 became law . . . .
"In the Seventieth Congress 2,268 private claim bills were introduced,
asking more than $100,000,000. Of these, 336 were enacted, appropriating
about $2,830,000, of which, 144, in the amount of $562,000, were for tort.
"In each of the Seventy-fourth and Seventy-fifth Congresses over 2,300
private claim bills were introduced, seeking more than $100,000,000. In
the Seventy-sixth Congress approximately 2,000 bills were introduced, of
which 315 were approved, for a total of $826,000. "In the Seventy-seventh
Congress, of the 1,829 private claim bills introduced and referred to the
Claims Committee, 593 were approved for a total of $1,000,253.30. In the
Seventy-eighth Congress 1,644 bills were introduced; 549 of these were
approved for a total of $1,355,767.12." H. R. Rep. No. 1287, 79th Cong.,
1st Sess., p. 2.
|
| [102] |
*fn10 Certain tentative experiments in this
direction should be noted. In 1855, Congress established the Court of
Claims and consented to suit therein on claims based on contract or
federal law or regulation. This consent was enlarged in 1887 to include
all cases for damages not sounding in tort. At the same time, United
States District Courts were given concurrent jurisdiction of claims up to
$10,000. In 1910, Congress consented to suits in the Court of Claims for
patent infringement. When the Government took over the operation of the
railroads during the First World War, Congress made the United States
subject to the same responsibility for property damage, personal injury,
and death as the private owners would have been. In 1920 and 1925, the
Government consented to suits in the district courts upon admiralty and
maritime torts involving government vessels, without limitation as to
amount.
From the Committee hearings we learn that the previous 85 years had
witnessed a steady encroachment upon the originally unbroken domain of
sovereign immunity from legal process for the delicts of its agents. Yet a
large and highly important area remained in which no satisfactory remedy
had been provided for the wrongs of government officers or employees, the
ordinary "common law" type of tort, such as personal injury or property
damage caused by the negligent operation of an automobile. Hearings before
the House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th
Cong., 2d Sess., p. 24.
|
| [103] |
*fn11 Such specific exceptions appeared first
as an amendment to H. R. 9285, 70th Cong., 1st Sess. The amendment was
offered from the floor of the House, 69 Cong. Rec. 3131. See also H. R.
7263 and S. 2690, 76th Cong., 1st Sess.; H. R. 5373, 77th Cong., 2d
Sess.
|
| [104] |
*fn12 H. R. 6463, 77th Cong., 2d Sess.; S.
2207, 77th Cong., 2d Sess. The first broad governmental exemption was
considered in S. 4567, 72d Cong., 1st Sess., and in S. 1833, 73d Cong.,
1st Sess., where it was provided that the Government should not be liable
for "any claim on account of the effect or alleged effect of an Act of
Congress, Executive order of the President, or of any department or
independent establishment."
|
| [105] |
*fn13 Hearings before the House Committee on
the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess., pp. 1,
4.
|
| [106] |
*fn14 Hearings before the House Committee on
the Judiciary, 77th Cong., 2d Sess., on H. R. 5373 and H. R. 6463, p.
6.
|
| [107] |
*fn15 Ibid., pp. 25, 33.
|
| [108] |
*fn16 Statement by the then Assistant Attorney
General Francis M. Shea at Hearings before the Committee on the Judiciary,
H. of Rep., 77th Cong., 2d Sess., on H. R. 5373 and H. R. 6463, p.
29.
|
| [109] |
*fn17 Hearings before a Subcommittee of the
House Committee on Claims, 72d Cong., 1st Sess., on a general tort bill,
p. 17; Hearings before Subcommittee No. 1 of the House Committee on the
Judiciary on H. R. 7236, 76th Cong., 3d Sess., pp. 5, 16; Hearings before
a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th
Cong., 3d Sess., p. 27; Hearings before the House Committee on the
Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess., pp. 28, 37,
39, 66; H. R. Rep. No. 2428, 76th Cong., 3d Sess., p. 3; H. R. Rep. No.
2245, 77th Cong., 2d Sess., p. 10; H. R. Rep. No. 1287, 79th Cong., 1st
Sess., p. 5; S. Rep. No. 1400, 79th Cong., 2d Sess., p. 31.
|
| [110] |
*fn18 H. R. Rep. No. 2800, 71st Cong., 3d
Sess., p. 13; Hearings on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess.,
pp. 28, 33, 38, 45, 65-66; S. Rep. No. 1196, 77th Cong., 2d Sess., p. 7;
H. R. Rep. No. 1287, 79th Cong., 1st Sess., p. 5; 86 Cong. Rec.
12021-12022.
|
| [111] |
*fn19 That congressional thought was centered
on granting relief for the run-of-the-mine accidents, as distinguished
from injury from performing discretionary governmental functions, is
indicated by the message of President Franklin D. Roosevelt in 1942 to the
77th Congress recommending passage of a tort claims statute. The President
favored a $7,500 limit on jurisdiction and spoke chiefly of the
interference from numerous bills introduced -- around two thousand each
Congress -- and the simplification of procedure for recovery. 88 Cong.
Rec. 313-314.
|
| [112] |
*fn20 H. R. Rep. No. 2428, 76th Cong., 3d
Sess., p. 3; Hearings on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess.,
p. 66; Hearings on H. R. 7236, 76th Cong., 3d Sess., pp. 7, 16, 17;
Hearings on S. 2690, 76th Cong., 3d Sess., p. 9; 69 Cong. Rec. 2192, 2193,
3118; 86 Cong. Rec. 12024. See also note 8.
|
| [113] |
*fn21 See H. R. Rep. No. 2245, 77th Cong., 2d
Sess., p. 10; S. Rep. No. 1196, 77th Cong., 2d Sess., p. 7; H. R. Rep. No.
1287, 79th Cong., 1st Sess., pp. 5-6; Hearings before House Com. on
Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess., p. 33. The
paragraph reads as follows:
"Section 402 specifies the claims which would not be covered by the
bill. "The first subsection of section 402 exempts from the bill claims
based upon the performance or nonperformance of discretionary functions or
duties on the part of a Federal agency or Government employee, whether or
not the discretion involved be abused, and claims based upon the act or
omission of a Government employee exercising due care in the execution of
a statute or regulation, whether or not valid. This is a highly important
exception, intended to preclude any possibility that the bill might be
construed to authorize suit for damages against the Government growing out
of an authorized activity, such as a flood-control or irrigation project,
where no negligence on the part of any Government agent is shown, and the
only ground for suit is the contention that the same conduct by a private
individual would be tortious, or that the statute or regulation
authorizing the project was invalid. It is also designed to preclude
application of the bill to a claim against a regulatory agency, such as
the Federal Trade Commission or the Securities and Exchange Commission,
based upon an alleged abuse of discretionary authority by an officer or
employee, whether or not negligence is alleged to have been involved. To
take another example, claims based upon an allegedly negligent exercise by
the Treasury Department of the blacklisting or freezing powers are also
intended to be excepted. The bill is not intended to authorize a suit for
damages to test the validity of or provide a remedy on account of such
discretionary acts even though negligently performed and involving an
abuse of discretion. Nor is it desirable or intended that the
constitutionality of legislation, or the legality of a rule or regulation
should be tested through the medium of a damage suit for tort. However,
the common-law torts of employees of regulatory agencies would be included
within the scope of the bill to the same extent as torts of nonregulatory
agencies. Thus, section 402 (5) and (10), exempting claims arising from
the administration of the Trading With the Enemy Act or the fiscal
operations of the Treasury, are not intended to exclude such common-law
torts as an automobile collision caused by the negligence of an employee
of the Treasury Department or other Federal agency administering those
functions."
|
| [114] |
*fn22 Feres v. United States, 340
U.S. 135, 139; United States v. Shaw, 309 U.S. 495; United States v. Eckford, 6 Wall. 484. Cf. Blackstone, Book I, c. 7 (Sovereignty).
|
| [115] |
*fn23 United States v. Yellow Cab Co., 340 U.S. 543, 555; Keifer & Keifer v.
Reconstruction Finance Corporation, 306 U.S.
381.
|
| [116] |
*fn24 United States v. Dickson, 15 Pet. 141,
165; Walling v. Jacksonville Paper Co., 317 U.S. 564,
571; A. H. Phillips, Inc. v. Walling, 324 U.S. 490,
493.
|
| [117] |
*fn25 In Feres v. United States, 340
U.S. 135, this Court held that the Act did not waive immunity
for tort actions against the United States for injuries to three members
of the Armed Forces while on active duty. The injuries were allegedly
caused by negligence of employees of the United States. The existence of a
uniform compensation system for injuries to those belonging to the armed
services led us to conclude that Congress had not intended to depart from
this system and allow recovery by a tort action dependent on state law.
Recovery was permitted by a service man for non-service disabilities in
Brooks v. United States, 337 U.S. 49.
In United States v. Spelar, 338 U.S. 217, we held
that our courts did not have jurisdiction to try a tort action for injury
by a federal employee to a complainant because of an accident at our air
base in Newfoundland. This conclusion was reached because of the
exception, 2680 (k), of "Any claim arising in a foreign country." The
sovereignty of the United States did not extend over the
base.
|
| [118] |
*fn26 United States v. Aetna Casualty &
Surety Co., 338 U.S. 366. Insurance Company, as
subrogee of the person injured, may bring suit under the Act in spite of
Anti-Assignment Statute.
United States v. Yellow Cab Co., 340 U.S. 543.
United States may be sued for contribution, and also be impleaded as a
third party defendant.
|
| [119] |
*fn27 The statute is unique in Anglo-American
jurisprudence in its explicit exception for discretion. The English Crown
Proceedings Act, 1947, contains nothing directly comparable, though see
11, saving the "prerogative of the Crown," 6 Halsbury's Statutes of
England (2d ed.) 56. The extent of this provision is not entirely clear,
but 6 Halsbury's Laws of England (2d ed.) 443-590, assumes the term to
cover a wide area of official activities, including "the rules and
regulations [and] the exercise of discretionary authority" by "the
customary officers and departments," under parliamentary enactments.
Ibid., 459-460. Street, Tort Liability of the State, 47 Mich. L. Rev. 341,
353, however, seems to indicate that the principal protection for the
exercise of official discretion will come through the accepted principles
of the common law as to torts of public officials acting within their
delegated authority. See also Barnes, The Crown Proceedings Act, 1947, 26
Canadian Bar Review 387, 390, and The Crown Proceedings Act, 1950, 28 New
Zealand L. J. 49, 50, 52-53.
Australia and New Zealand had had similar statutes for some years. They
left "open to grave doubt how far, if at all, it was intended by those
Acts to give the subject rights of action which in the result would
interfere seriously with the ordinary administrative work of the
Government . . . ." Enever v. The King, 3 Com. L. R. 969, 988 (1906); see
also Davidson v. Walker, 1 N. S. W. St. R. 196, 208-213 (1901), and Hawley
v. Steele, 6 Ch. D. 521 (quoted therein): "'In other words, I think the
discretion is vested in the executive Government, having authority over
military matters, to determine for which, of these various military
purposes for which land may fairly be required, the particular land in
question is to be appropriated. It is not for the Judge to say that they
have made a bad selection.'" 1 N. S. W. St. R. 211.
|
| [120] |
*fn28 "'Employee of the government' includes .
. . members of the military or naval forces of the United States, and
persons acting on behalf of a federal agency in an official capacity." 28
U. S. C. 2671.
|
| [121] |
*fn29 Indeed, it has been so held by those
district courts which have dismissed complaints charging negligence,
following the Government's confession and avoidance plea that the acts
alleged to be culpable fell within the exception. E. g., Boyce v. United
States, 93 F.Supp. 866; Coates v. United States, 181 F.2d 816; Denny v. United States, 171 F.2d 365;
Olson v. United States, 93 F.Supp. 150; Toledo v. United States, 95
F.Supp. 838; Thomas v. United States, 81 F.Supp. 881.
|
| [122] |
*fn30 It seems sufficient to cite Marbury v.
Madison, 1 Cranch 137, 170; Spalding v. Vilas, 161 U.S. 483, 498; Alzua v. Johnson, 231
U.S. 106; Louisiana v. McAdoo, 234 U.S. 627, 633; Perkins v. Lukens Steel Co., 310 U.S. 113, 131.
|
| [123] |
*fn31 There are, of course, American state
cases which are premised on a similar policy judgment, e. g., Barrett v.
State of New York, 220 N. Y. 423, 116 N. E. 99; Goldstein v. State of New
York, 281 N. Y. 396, 24 N. E. 2d 97. Similarly in England the courts have
been wary not to penalize discretionary acts of public bodies. One of the
more interesting cases in the field is East Suffolk Rivers Catchment Board
v. Kent, [1941] A. C. 74, involving certain allegedly negligent activities
by the Board in draining inundated lands of the private plaintiffs. Lord
Romer stated that the Board, under its enabling act, merely had the power
to drain; "whether or not they should exercise that power was a matter
entirely within their own discretion." "I know of no authority for the
proposition that in selecting the time within which, the extent to which,
and the method by which its statutory power is to be exercised [the Board]
owes any duty whatsoever." Ibid., at 97, 98. See also Sheppard v. Glossop
Corporation, [1921] 3 K. B. 132: "[the statute] leaves it to [the
Corporation's] discretion whether they will light the district or any part
of it, and how long the lamps shall be kept lit in any portion of the
district which they elect to light." See also Whiting v. Middlesex County
Council, [1948] 1 K. B. 162.
|
| [124] |
*fn32 The courts that have passed upon the
application of 2680 (a) to suits under the Tort Claims Act have
interpreted the exception of discretionary functions, generally, in
conformity with our holding that negligence in policies or plans for
authorized governmental activities cannot support damage suits.
Plaintiff in Boyce v. United States, 93 F.Supp. 866, charged that he
had suffered damage by virtue of certain governmentally-conducted blasting
operations. The United States, by way of affirmative defense, showed that
the blasting had been conducted pursuant to detailed plans and
specifications drawn by the Chief of Engineers who, in turn, had been
specifically delegated "discretion of the broadest character" to draft a
plan for deepening the Mississippi River channel. The exception was
applied. There have been several cases of like import dealing with the
execution of waterway projects. In Coates v. United States, 181
F.2d 816, damages were sought for injury to crops and land from
action of the Government in negligently changing the course of the
Missouri. It was held that no jurisdiction existed under the Act. The case
was followed in North v. United States, 94 F.Supp. 824. There the
plaintiff was denied recovery for injury to his cellar and cesspool
occasioned by a government dam having raised the level of the local ground
water. A like result obtained in Lauterbach v. United States, 95
F.Supp. 479, where claimant sued to recover damages resulting
from release of flood waters at Bonneville Dam. Olson v. United States, 93
F.Supp. 150, involved another claim of water damage. In that case,
employees of the Fish and Wildlife Service were alleged to have "wilfully
and intentionally opened the flood gates" of a certain dam, causing loss
of plaintiff's livestock. The dam was operated for "the purpose of storing
water for the propagating of fish and wildlife" and the court held that "
when flood waters are to be released and how much water is to be released
certainly calls for the exercise of judgment." 93 F.Supp., at
151, 152-153. Sickman v. United States, 184 F.2d 616, also
invoked 2680 (a). There plaintiff unsuccessfully sought recovery for crop
depredations by wild birds induced to feed on his land by a nearby
governmental game preserve. In Toledo v. United States, 95 F.Supp. 838,
plaintiff's automobile had been damaged by a partially rotten tree falling
perchance at a time when he had parked under it. The tree had been planted
and grown at a government plant experimental station in Puerto Rico. It
was open to the public for instruction and observation. The opinion holds
that the operation of the station itself, and the decision to plant and
preserve this particular tree to further its experimental purposes, were
"peculiarly within the discretion of the appropriate employees of the
Station," but that negligent removal would not have been. 95
F.Supp., at 841.
|
| [125] |
*fn33 This Plan "contains a tabulation of the
installations involved together with pertinent information on those
installations for use both in this part and in connection with Part 400;
rates of production; description of production processes; information on
inspection and acceptance; and information on shipping and storage. This
part does not include requirements for the production facilities,
recommendations for the operation of these facilities, and problems and
methods involved in their administration, which are covered in succeeding
parts."
|
| [126] |
*fn34 "The provisions of this chapter and
section 1346 (b) of this title shall not apply to . . . any claim arising
from the activities of the Tennessee Valley Authority." 28 U. S. C. 2680
(l).
|
| [127] |
*fn35 See Appendix, p. 45, this
opinion.
|
| [128] |
*fn36 "Water shall be turned off and
discharging of kettle commenced when temperature reaches 200 degrees F."
The relevance of the bagging temperature apparently stemmed from
certain testimony that large masses of FGAN, if maintained at temperatures
of around 300 degrees F., might spontaneously ignite under certain
conditions of mass and confinement. The Government proffered extensive
evidence, however, that the FGAN shipped to Texas City did not leave the
plants at nearly that temperature, and of course there is no evidence as
to the temperature at which it was loaded on the ships.
|
| [129] |
*fn37 " Packaging. Ammonium nitrate for
fertilizer shall be packed 100 lbs. per bag. Moisture proof paper or
burlap bags, as described below, shall be used. (Specifications as to size
may have to be altered to meet the manufacturer's requirement)." Then
follow detailed specifications.
|
| [130] |
*fn38 Marking: Fertilizer (Ammonium Nitrate)
32.5% Nitrogen.
Notice of contents appeared on the bill of lading, so far as important,
as follows: 1,000 Bags, Fertilizing Compounds (manufactured fertilizer)
NOIBN, dry in paper bags.
|
| [131] |
*fn39 "The PRP mixture is composed of one part
paraffin, three parts rosin, and one part petrolatum, thoroughly mixed and
melted. This provides a coating which repels moisture and holds the clay
in place around each granule."
|
| [132] |
*fn40 Captain Hirsch, commanding one of the
three plants which manufactured the Texas City FGAN, wrote to the Field
Director's Office requesting "that your office stipulate a maximum
temperature at which fertilizer may be loaded in order to eliminate" bag
deterioration through heat. In reply, the Office stated that it "has had
discussions concerning a loading temperature lower than 200 degrees F. for
ammonium nitrate fertilizer, but it is felt that this is a matter of
process control and not properly an item to be incorporated into
specifications." Hirsch interpreted this as meaning that "this facility
should not take any active interest in the condition that the ammonium
nitrate fertilizer reaches its destination." In reply from the Field
Director's Office, this was labeled a "distortion of our statement
concerning the bagging temperature as a matter of process control into
indifference to any aspect of acceptability or suitability." The
specifications were left unchanged as to bags or bagging
temperatures.
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [133] |
*fn1 In re Texas City Disaster Litigation, 197 F.2d 771.
|
| [134] |
*fn2 28 U. S. C. 2680.
|
| [135] |
*fn3 Cardozo, The Growth of the Law, p. 102.
(Emphasis his own.)
|
| [136] |
*fn4 See, e. g., the Federal Employers'
Liability Act, 45 U. S. C. 51 et seq., which abolished the defense of
assumption of risk and changed contributory negligence from a complete bar
to recovery to a factor which mitigated damages; the Jones Act, 46 U. S.
C. 688 et seq., which gave a cause of action against their employers to
seamen, under the substantive rules of the F. E. L. A.; the Federal
Employees' Compensation Act of 1916, 5 U. S. C. 751 et seq., in which the
Government set up a compensation system for its own employees; the
Longshoremen's and Harbor Workers' Compensation Act, 33 U. S. C. 901 et
seq., which sets up a system of workmen's compensation for the described
employees and imposes liability without fault on their employers. In cases
arising under the last-named Act, the Government is a party to judicial
review of any award, representing the interests of the claimant. See
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S.
504.
|
| [137] |
*fn5 Boyce Motor Lines v. United States, 342 U.S. 337.
|
| [138] |
*fn6 Judge Lummus, for the Supreme Judicial
Court of Massachusetts, articulated this development in Carter v. Yardley
& Co., Ltd., 319 Mass. 92, 64 N. E. 2d 693. That opinion contains what
is perhaps a more decisive statement of the trend than does the earlier
landmark opinion of Judge Cardozo for the New York Court of Appeals,
MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050. The
following cases represent examples of the type of claims based on damage
from complex manufactured products which come before appellate tribunals
in the present day. Coleman Co. v. Gray, 192 F.2d 265
(absence of safety device on gasoline vapor pressing iron); Roettig v.
Westinghouse Mfg. Co., 53 F.Supp. 588 (explosion of heating unit in
electric stove); Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d
453, 150 P. 2d 436 (defect in Coca Cola bottle); Gall v. Union Ice Co.,
108 Cal. App. 2d 303, 239 P. 2d 48 (absence of warning label on drum of
sulfuric acid which burst); Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.
E. 2d 847 (defective vaporizer which melted, causing fire which burned
plaintiff); Ebers v. General Chemical Co., 310 Mich. 261, 17 N. W. 2d 176
(damage from chemical designed to kill peach-tree borers); Willey v.
Fyrogas Co., 363 Mo. 406, 251 S. W. 2d 635 (defect in automatic cutoff
valves on gas heater); Di Vello v. Gardner Machine Co. (Ohio Com. Pl.),
102 N. E. 2d 289 (disintegrating grinding wheel); Saena v. Zenith Optical
Co., 135 W. Va. 795, 65 S. E. 2d 205 (exploding glass coffee maker).
Recovery was not had in all of these cases, but all of them have
emphasized that the manufacturer owes some duty of care to certain classes
of people who might be injured by defects in his product.
|
| [139] |
*fn7 28 U. S. C. 1346.
|
| [140] |
*fn8 McAfee v. Travis Gas Corp., 137 Tex. 314,
153 S. W. 2d 442; Texas Drug Co. v. Caldwell (Tex. Civ. App.), writ
dismissed, 237 S. W. 968; Tegler v. Farmers Union Gas & Oil Co., 124
Neb. 336, 246 N. W. 721. As recently as 1949, Circuit Judge Duffy, in
discussing Iowa law which was applicable in a diversity suit in federal
court, said that the Supreme Court of Iowa had not yet passed squarely on
the question, but was of the opinion that they would follow the weight of
authority. Anderson v. Linton, 178 F.2d 304. An older
Iowa case imposes a duty of care on dealers in potentially dangerous
substances, at least as to those in contractual privity, Ellis v. Republic
Oil Co., 133 Iowa 11, 110 N. W. 20; and even the Government here does not
rely on the absence of contractual privity to bar petitioners from
recovery.
|
| [141] |
*fn9 Rule 52 (a), Fed. Rules Civ.
Proc.
|
| [142] |
*fn10 The following are excerpts from the
findings of the trial judge: "(g) . . . [Defendant] learned many facts,
but did not pursue such investigation far enough to learn all the facts,
but negligently stopped short of learning all of the facts. What facts it
did learn, however, were sufficient to give Defendant knowledge and to put
Defendant on notice, and if not, then upon inquiry that would if pursued,
have led to knowledge and notice that such Fertilizer which it decided to
and began to manufacture was an inherently dangerous and hazardous
material, a dangerous explosive, and a fire hazard. . . . (1) Defendant
was negligent in the manner in which it prepared such Fertilizer,
including the Fertilizer on the Grandcamp and High Flyer, for shipment.
Such Fertilizer was by Defendant, or under it [ sic ] direction, placed or
sacked in bags made from paper or other substances which were easily
ignited by contact with fire or by spontaneous combustion or spontaneous
ignition of the Fertilizer. Such bags also became torn and ragged in
shipping and particles of the bags became mixed with the Fertilizer and
rendered same more dangerous and more susceptible to fire and explosion.
Such negligence was the proximate cause of such fires and explosions and
the injuries of which Plaintiffs complain. . . . (o) Defendant was
negligent in delivering or causing to be delivered such Fertilizer,
including the Fertilizer on the Grandcamp and High Flyer, so placed in
paper bags to the railroad and other carriers over which it was shipped,
without informing such carriers that it was dangerous, inflammatory, and
explosive in character, and that it was dangerous to persons handling same
and to the public. Such negligence was the proximate cause of such fires
and explosions and the injuries of which Plaintiffs
complain."
|
| [143] |
*fn11 28 U. S. C. 2680: "The provisions of this
chapter and section 1346 (b) of this title shall not apply to --
"(a) Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be
abused. . . ."
|
| [144] |
*fn12 See n. 21 of the Court's opinion. We
believe that this oft-repeated paragraph appearing in the House Reports
shows quite plainly that what was meant is that type of discretion which
government agencies exercise in regulating private individuals. The
majority chooses instead to fix an amorphous, all-inclusive meaning to the
word, and then to delimit the exception not by whether an act was
discretionary but by who exercised the discretion. The statute itself
contains not the vaguest intimation of such a test which leaves actionable
only the misconduct of file clerks and truck drivers.
|
| [145] |
*fn13 See Patterson, Ministerial and
Discretionary Official Acts, 20 Mich. L. Rev. 848.
|
| [146] |
*fn14 E. g., Keeley v. Portland, 100 Me. 260,
262, 61 A. 180, 181-182; Cumberland v. Turney, 177 Md. 297, 311, 9 A. 2d
561, 567; Gallagher v. Tipton, 133 Mo. App. 557, 113 S. W.
674.
|
| [147] |
*fn15 Gregoire v. Biddle, 177 F.2d
579.
|
| [148] |
*fn16 Spalding v. Vilas, 161 U.S. 483 (Postmaster General); Wilkes v. Dinsman, 7 How.
89 (officer of Marine Corps); Otis v. Watkins, 9
Cranch 339 (Deputy Collector of Customs); Yaselli v. Goff, 12 F.2d 396, aff'd 275 U.S. 503
(Special Assistant to the Attorney General). The overwhelming weight of
authority in the states is to the same effect. See 42 Am. Jur.
257.
|