*1 DALEHITE et v. UNITED STATES. al. Argued April 6-8, No. 308. 1953. Decided June *2 argued Lord O’Brian and Howard C. John Westwood et them on al., petitioners. for Dalehite With cause Fletcher, Leachman, Neth L. T. E. the brief were Thomas Brown, Mosheim, McCorquodale, John M. S. Vernon R. Parker, Elledge, Claytor, Graham Jr. Wm. Merrick W. Stanley L. Temko. Y. Bryan, argued Austin Jr. for the Pan- cause Corporation al., petitioners. Refining American et With Vail, George him D. on the brief were Jr. David Bland. Oscar argued
Morton H. Davis the cause for Liftin Acting were States. With them on brief United Stern, Attorney Solicitor General Bur- General Assistant ger, Brannon, Judge Judge Assistant Advocate General Mickelwait, Sweeney, A. Advocate General Paul Marvin Frankel, Heuser, Hollander, E. Massillon Morton M. Marcuse, Peck, Jayson, Herman Lester S. Cornelius J. Deutsch, Eberhard P. Burton K. I. Philips and William Connelly.
Mr. Justice Reed opinion delivered the of the Court. Petitioners seek damages the United States for the death of Henry explosions G. Dalehite in of fertilizer with an ammonium base, nitrate at City, Texas, Texas on April 16 17,1947. This is a test case, representing separate some 300 personal and property claims aggregate amount of two hundred million dollars. Consolidated trial was had the District Court for the Southern District of Texas on the facts and the crucial question of federal liability generally. This was done *3 arrangement under an that the result would accepted be as to those matters the other suits. Judgment was rendered following separate proof of damages for these plaintiffs individual in the $75,000. sum of Damages in the other claims remain to be determined. The Court of Appeals for the Fifth Circuit unanimously reversed, In however, re Texas City Litigation, Disaster 197 F. 2d 771, and granted we certiorari, U. S. because the case presented an important problem of federal statutory interpretation.
The suits were filed under Act, the Federal Tort Claims 28 U. S. C. §§ 2671-2678, 2680. That Act waived sovereign immunity from suit for specified certain torts of federal employees. It did not injured assure persons damages for all injuries caused such employees. provides Act the federal courts, district “[s]ubject provisions the of act],” are to [the have: jurisdiction
“exclusive of civil actions on claims against the United States, for money damages, ac- cruing and after January 1, injury or or death caused injury or personal of property, loss of or omission wrongful or act negligent the within acting while of the Government employee under circum- employment, his office or scope the of private person, if a States, where United stances claimant accordance liable to the would be omission act or where the place law of the (b). § occurred.” provision. of scope this exception There is an reads: Section 2680 chapter and section provisions
“The this (b) apply of this title shall not to— upon based an act or omission “(a) Any claim Government, exercising due employee of an regulation, care, in execution a statute or or regulation valid, whether or not statute or be such or the failure upon performance based the exercise or function or perform discretionary to exercise duty part agency employee on the of a federal an not discretion Government, whether or involved be abused.”
Suing grant jurisdiction, this plaintiffs under substantially claimed negligence, part on the of the entire body of federal officials and employees pro- involved gram production of the material —Fertilizer Grade (FGAN hereafter) Ammonium Nitrate which the —in *4 fire original exploded. occurred and which This fertilizer produced been had and at the instance, distributed ac- to cording specifications and under the of control United States. adaptability
The of the material for use agriculture recognized had been long prior The Govern- ment's interest the matter began 1943 when the TVA, acting statutory under its delegation to undertake experiments and fertilizer, “manufacture” Stat. 61, 48 16
19 production for commercial began C. first 83Id, § U. S. for formerly plant used facilities used purposes.1 TVA nitrate for In the explosives. of ammonium production responsible for 1943, Board, Production year War allocation of war Exec. materials, production January 329, 7 Fed. instituted 16, 1942, Reg. Order production 30,000 a of of tons a month of program yearly private agricultural through for use FGAN domestic plants required production. no for ammunition longer through Army’s Administration to be carried of specifications Bureau Ordnance. The TVA fol- were given experts. early pro- lowed advice its This duction for furnished for domestic use a test manufacture utility of FGAN. particular
The City FGAN involved at Texas came to be produced foreign Following for use for these reasons: the World II hostilities, obliga- War the United States’ tions an occupying power,2 danger and the of internal unrest, forced this Government problem deal with the of feeding the populations of Germany, Japan and Korea. shipment Direct was impractical; foodstuffs available fertilizer inwas supply, short and requirements from the United States were 800,000 estimated at about tons. However, 15 some plants ordnance had been deacti- vated and over turned to the War Assets Administra- 44 tion, CFR, 1949, Part disposal. Under Sec- retary Royall War suggested in ofMay 1946, and Secretary agreed, Patterson these be used for pro- duction fertilizer export.3 needed for The Director 1 The Company Hercules original Powder held Explo Cairns process, sive Patent on contemplated the FGAN product substantially finally produced similar the Government including organic use of p. an insulator. See infra. Hague (II) (IV) Conventions Respecting Land, Laws and Customs of War on Article 43. capable These producing 70,000 were tons month.
20 Stat. Reconversion, 58 and Mobilization
the Office War under seq. 1651 et (1946 ed.), acting App. § 50 S. C. U. 785, in Exec. Order President by the delegated the power Order 7207, and Exec. Reg. 8 Fed. May 27, 1943, 9347, the 12145, ordered Reg. 3, 1944, Fed. 9488, October The followed. approval Cabinet operation. into plants from its appropriations funds Department allocated War ap- for direct “Military 1946; Posts” “Supplies” for made occupied areas were for relief propriations Army’s Chief following year.4 in the by Congress for car- delegated responsibility was of Ordnance particularly authorized plan, out rying with com- private into contracts cost-plus-fixed-fee enter He plants’ for of the facilities. panies operation of Ammunition Director appointed turn Field Thereafter (FDAP) program. Plants to administer the a number of Department entered into contracts including du Pont Co. and Hercules private firms — . “operate Powder Co.—to the installation . . described graining (fertilizer for the ammonium nitrate herein subjecting but “the work to be done the Con- grade),” general supervision, direction, tractor ... to the control of the Officer.” A detailed set approval Contracting specifications plant was drawn and sent to each up “Specifications FDAP for included Products” and Army TVA were paper. personnel appointed similar for plant. responsible each These were applica- tion of specifications, supply officials, these liaison with
4Military Appropriation 1946, 384, 390, Act of 69 Stat. (1945), Military Appropriation 1947, 541, Act of 60 Stat. (1946). The latter was mentioned as directed toward the fertilizer program. Hearings before a Subcommittee Senate Committee Appropriations 6837, Cong., on H. R. 79th 2d Sess. 85. See May 31, 1947, also H. J. Res. specifically appropriat 61 Stat. ing moneys for relief assistance of all kinds. *6 to an schedules, of production pursuant
and satisfaction this, Beyond Army Operating Standard Procedure. operations corpora- by administering were controlled the supplied personnel production tion which and experience required.5 nitrate, long basic was ammonium ingredient
FGAN’s used a as component explosives. adaptability Its a fertilizer stemmed from its free high nitrogen content. Powder Company Hercules had first manufactured fer- compound tilizer in this form Ex- on the basis of Cairns’ plosive Patent, August No. 2,211,738, 13, 1940. The process contemplates Cairns a product substantially to City identical the Texas The process FGAN. to licensed The pro- United States. Government duced ammonium nitrate at certain other plants, federal shipped it solution to graining the reactivated for Thereafter, centers concentration. to addition clay, a mixture of petrolatum, paraffin (PRP rosin and hereafter) was to against caking through added insure absorption. water The grained material was then fertilizer specification, packaged paper dried and 6-ply bags, marked “Fertilizer (Ammonium Nitrate).”
At inception however, of the it program, appeared particular these plants produce unable to suf- were ficient quantities of needs of early fertilizer to meet the planned early shipments allocation. So the oc- cupied territories made up privately produced, were of lots Department released to the by War the Combined Food Board purchased by States, pursuant United to an arrangement allocation approved by Board acting through Civilian Administration, Production by established Exec. Order 9638, 4, 1946, October Fed. Reg. private Thereafter the producers could
5By 1946, companies at least two in addition to Hercules were producing commercially. FGAN purchasing sale private supply their
replenish desired. they if so FGAN, government-produced had City to Texas transported FGAN particular The activated plants at three produced been al- program, foreign fertilizer for the had sold previously Co., Lion Oil to the lotted agreement. their sell-back Army pursuant to the FGAN to Lion pass title was to provided that agreement The Army to the contract of sale original payment. recipient designate Lion could having provided FGAN, Lion con- replacement for the than itself other for resale. Company Walsen with the Walsen tracted *7 Supply repre- for the French Council as broker operated pref- had secured senting the French Government from the Civilian Production fertilizer allocation erential thereto Walsen transmitted Pursuant Administration. to Lion who turned them over shipping orders the French consigned was for The FGAN Army to the execution. City by govern- at Texas Supply French Council to the shipment insured the lading. The Council ment bills of York with New arranged for credit name, its own Lion, thereof sufficient assigned part banks and involved, payable presenta- on shipments the here cover Lion to It also directed shipping tion of documents. storage for Supply French Council “consign all lots City Terminal Texas.” exportation eventual Texas following three weeks’ warehouse By April 15, 1947, Council, on orders of the French storage City at Texas thus resold had been 1,850 tons of the FGAN some steamship French Government-owned loaded on the 1,000 privately tons on the owned Orandcamp, and some stevedores hired High Flyer by independent in addition a substan- Orandcamp French.6 The carried through Seventy-five shipped tons of FGAN had been thousand City previous during six months. Texas High Flyer tons of 2,000 and the explosives, cargo tial of day- m. the next a. of At about 8:15 the time. sulphur at all efforts Grandcamp hold in the sighted was smoke exploded ships Both unavailing.7 fire were to halt killed. people many was leveled and city of much shown, be negligence of could acts no individual Since necessarily predicated that resulted damages the suits for the United participation of government liability on transportation States in the manufacture no one could disaster, course, Following FGAN. would the blunt fact that FGAN impressed fail to be sum, charged In the Federal explode. petitioners itself for the catas- brought liability had which had been using a material fertilizer trophe by long for so that indus- ingredient explosives an used as of am- gave notice that other combinations try knowledge The might explode. monium nitrate with other material States, without negligence charged was United shipped investigation properties, definitive FGAN warning shipment congested to a area without permitted possibility explosion under certain conditions. theory. judgment His accepted District Court this negligence of causal findings based on series which, roughly our into three purposes, can be divided *8 had been kinds —those which held that the Government adopting export plan careless in the fertilizer drafting a in whole, specific negligence as which found those manufacturing process of and those phases various emphasized which official of duty failing dereliction 7 Grandcamp The exploded about hour after fire was an noticed. captain personnel ship Meanwhile the had off ordered all and the hatches holds. closed. Steam was introduced into the All fire-fighting procedure ships, admit this is that normal aboard but oxidizing it that was less than effective in this ease because of the properties captain negligent of the FGAN. or not the Whether upon say. this is not Court called Appeals of en loading. The Court shipboard police only but since three of the unanimously reversed, banc findings, the bulk of these judges explicitly rejected six they to us the case as one which come we shall consider Pittsburgh Steamship Labor v. unimpaired. Cf. Board Co., v. States 498, 503; United States United U. S. their assuming S. 395. Even Gypsum Co., U. they arguendo, though, judgment correctness it is our within is for the do not establish a case the Act.8 This give a of law the facts found cannot reason that as matter under the jurisdiction of, the District Court cause Tort Claims Act. passed by Federal Tort Claims Act was the Sev- I.jjrhe
enty-ninth Legislative in 1946 of Congress as Title IV the Reorganization Act, nearly thirty years 60 Stat. after of of congressional offspring consideration. It was the a feeling obliga- that the should assume the damages tion to pay employees the misfeasance of its work. And carrying private out bill device was required weigh finding are therefore not We each anew “clearly They “profuse, pro erroneous.” were characterized below as lific, sweeping.” agree. Proc., (a), Fed. Rules Civ. Rule 52 We terms, system findings contemplates “of fact” and which are well-recognized difficulty distinguishing are between “concise.” clearly duty law and fact does not absolve district courts of their complex in hard and cases to make studied toward definite effort conclusory ness. Statements in nature are to be eschewed in favor preliminary statements and basic facts on which the Dis Kelley Everglades Drainage District, trict Court relied. v. 319 U. S. Otherwise, findings appel and cases cited. their are useless for purposes. particular case, proper late In this no review be could by taking findings “negligence” exercised the “fact” at face value. And, they law, they binding to the extent are of course are not appeal. g., Supermarket E. Tea v. Great Atlantic & Co. Pacific Equipment Corp., 147, 153-154, concurring opinion 340 U. S. at 155-156.
25 procedure recovery simplified notoriously clumsy.9 Some This Act was imperative. for the mass of claims simple easy affording instead Congress’ solution, scope.10 its for torts within the federal courts access to 9 2,200 private bills Congress claim Sixty-eighth about “In the became law .... introduced, of which 250 were intro- Congress 2,268 private bills were claim “In the Seventieth enacted, these, $100,000,000. 336 were duced, asking Of more than $2,830,000, in the amount appropriating of which about $562,000, for tort. were Seventy-fifth Congresses over Seventy-fourth “In each $100,- introduced, seeking more than
2,300 private claim bills were 2,000 Congress approximately bills 000,000. Seventy-sixth In the $826,000. introduced, approved, for a total 315 were were 1,829 private claim bills Seventy-seventh Congress, of the “In the approved Committee, Claims 593 were introduced and referred to the Seventy-eighth Congress 1,644 $1,000,253.30. for In the a total approved a total of introduced; were for bills were these Cong., Sess., p. 2. $1,355,767.12.” Rep. No. 1st H. It. 79th be noted. experiments in this direction should Certain tentative consented 1855, Congress of Claims and In established the Court regu or federal law on claims based on contract to suit therein enlarged for to include all cases lation. This consent was time, Dis damages sounding At the same United States not in tort. $10,000. given jurisdiction up concurrent of claims trict Courts were patent for 1910, Congress Court of Claims In consented to suits infringement. operation of over the When the Government took during War, Congress made the United railroads the First World damage, per subject responsibility property for States to the same injury, private have been. In sonal and death as the owners would district 1920 and consented to suits involving government upon admiralty courts and maritime torts vessels, to amount. without limitation as years hearings previous
From the Committee we learn that the steady upon originally had witnessed unbroken encroachment sovereign immunity legal process domain of delicts of its agents. large highly important remained in which Yet a area govern- satisfactory remedy wrongs of provided no been for the had tort, ordinary type of employees, “common law” ment officers *10 26 function regulatory meaning governmental of the
The in the clearly shows most suits, (a), 2680 exception § Seventy-seventh Bill in the the Tort Claims history Act, passed the Seventy-ninth, The Congress,r! integrated it hearings. Instead, held no relevant had Seventy-seventh Congress, which language of the Legislative into Reor- exception, first considered as Title ganization Act IV. by Congress tort bills considered con-
Earlier claims im- sovereign from the abdication of tained reservations exceptions 1942 were munity. Prior to these couched specific activity, postal of federal such as spheres terms Exchange the activities of the Securities and Com- service, In 1942, however, or the collection of taxes.11 mission, drafted a Seventy-seventh Congress twofold elimination of a regulation claims based the execution or statute discretionary or of a function. lan- on the exercise The introduced both the guage the bills then House and Senate, fact, (a) was identical that of 2680 as § exception was drafted .a adopted.12 clarifying ^The to the bill protection amendment House to assure for the personal injury damage property negligent such as caused operation Hearings of an automobile. before the House Committee Judiciary 6463, Cong., Sess., on the on H. R. 5373 and H. R. 77th 2d p. 24. specific exceptions appeared Such first as H. R. an amendment 9285, Cong., 70th 1st Sess. The amendment was offered from the House, floor Cong. Rec. 3131. See also H. R. 7236 and 2690, Cong., Sess.; S. 5373, Cong., 76th 1st H. R. 77th 2d Sess. 6463, Cong., Sess.; H. R. Cong., 77th 2d S. 77th 2d Sess. governmental exemption first broad was considered in S. Cong., Sess., 72d Cong., Sess., 1st and in S. 73d 1st where provided it was “[a]ny that the Government should not be liable for claim on alleged Congress, account of the effect effect of an ofAct President, Executive order of the department or of or inde pendent establishment.” in administra- liability for errors tort against An functions.13 discretionary exercise in the
tion or before the Com- appearing Attorney General, Assistant avoid- explained it as purpose,14 for that especially mittee to au- be construed may that the act ing “any possibility out growing against the Government damage suits thorize “the same merely because activity,” authorized legally of a It tortious.” would be individual private conduct legislation, constitutionality that the “intended was not *11 of a discretion- regulations, propriety or the legality the the me- through be tested act, should ary administrative true of The same holds damage suit for tort. dium of a regulatory nature, action not of other administrative funds, the execution expenditure the Federal such as prior bill Referring and the like.”15 project a Federal “discretionary not contained the which had function” Judiciary on the the House Committee exemption, within sub- advised that “the cases embraced [the new] exempted prior would have been bill] section [the the probable It is not by judicial construction. realm of courts would extend a Tort Claims Act into the legislation discretionary administrative validity the specific.”16 but H. R. 6463 makes this action, legislative history Congress indicates while immunity desired to waive the Government’s from actions person for the injuries property occasioned agents acting scope tortious conduct of its within their 13Hearings Judiciary before the House on on H. R. Committee the 6463, Sess., Cong., pp. 1, 5373 and H. R. 4. 77th 2d 14Hearings Judiciary, before the House Committee on the 77th Cong., Sess., 6463, p. 2d on H. R. H. 6. 5373 and R. 15 Ibid., 25, pp. 33. Attorney Statement the then Assistant General Francis M. Hearings Judiciary, Rep.,
Shea at before the H. of Committee on the Cong., Sess., 6463, p. 77th 2d on H. R. 5373 and H. R. contemplated it not that the Government business,17 was arising govern- from acts of a subject liability should be (a) mental nature or function.18 Section 2680 draws this mind of Uppermost the collective Con- distinction/! gress ordinary these, were the common-law torts.19 Of repeated which is reiterated in the course of the example proposals submitting States to tort liabil- United ity “negligence operation of vehicles.” On /n hand reports explain other Committee’s (the boundaries of sovereign immunity waived, as defined
17Hearings before a Subcommittee of the House on Committee Claims, Cong., Sess., general 72d bill, p. 17; Hearings 1st on a tort before Subcommittee No. 1 of Judiciary the House on Committee 7236, Cong., Sess., pp. on H. R. 5, 16; Hearings 76th 3d before a Judiciary Subcommittee of the 2690, Senate Committee on the on S. Cong., Sess., p. 27; Hearings 76th 3d before the House Committee on Judiciary 6463, on H. R. Cong., Sess., 5373 and H. R. 77th 2d pp. 28, 39, 37, 66; Rep. 2428, Cong., H. R. No. Sess., p. 3; 76th 3d Rep. 2245, H. R. Cong., Sess., No. 77th p. 10; 2d Rep. H. R. No. Cong., Sess., p. 5; 79th Rep. 1st Cong., S. No. 79th 2d Sess., p. 31. Rep. H. R. Cong., No. Sess., p. 13; 71st Hearings 3d *12 H. 6463, R. 5373 Cong., and H. R. Sess., pp. 28, 77th 2d 33, 38, 45, 65-66; Rep. 1196, S. No. Cong., 77th Sess., p. 7; 2d Rep. H. R. No. 1287, Cong., 79th Sess., p. 5; 1st Cong. 86 Rec. 12021-12022. 19 congressional thought That was granting centered on relief for the accidents, run-of-the-mine distinguished injury per from forming discretionary governmental functions, by is indicated the message of President -Franklin D. Roosevelt in 1942 to the 77th Congress recommending passage of a tort claims statute. The President $7,500 favored a jurisdiction spoke limit on chiefly the interference from numerous bills introduced —around two thou Congress sand each simplification the procedure recovery. —and Cong. 88 Rec. 313-314. 20H. Rep. R. 2428, No. Cong., 76th Sess., p. 3; 3d Hearings on H. R. 6463, 5373 and H. R. Cong., 77th Sess., p. 2d 66; Hearings on 7236, H. R. Cong., 76th Sess., pp. 3d 7, 16, 17; Hearings 2690, on S. Cong., 76th Sess., p. 9; 3d Cong. 69 2192, 2193, 3118; Rec. Cong. 86 Rec. 12024. See also note 8.
29 paragraph with one exception, 2680 by § this. House Re- and in the 1942, after again time and appears (a) the adopted § Congress of the port 77th Con- for the language proposed limitation in the the almost the Committee was.adopted by gress.21Jit 10; Rep. Cong., Sess., p. S. Rep. 2245, 2d H. R. No. 77th See p. 7; Rep. No. 79th Cong., Sess., H. R. 77th 2d No. Judiciary Hearings on Cong., Sess., pp. 5-6; before House Com. 1st Sess., p. para Cong., |The H. R. 77th 2d H. R. 5373 and graph reads as follows: by specifies which would not be covered the claims
“Section the bill. exempts from the bill claims
“The first subsection of section discretionary nonperformance of upon performance or based agency part of Federal or Government functions or duties on the a abused, employee, whether or not the discretion involved be employee upon omission of a claims based the act or Government exercising regulation, due care in the execution of a statute or whether highly important exception, or intended to not valid. is a jjThis preclude any possibility might that the bill be construed to authorize damages against growing suit for out of an author- Government' activity, irrigation project, ized or where no such as a flood-control negligence part agent shown, on the is only ground by for suit is the contention that the same conduct a private tortious, regulation individual would or be that the statute or authorizing project designed preclude invalid. It is also application against regulatory agency, of the bill to a claim such Exchange as the Federal Trade Commission or the Securities and Commission, upon alleged discretionary authority based an abuse of employee, negligence alleged an officer or whether or not is example, upon have been involved. To take another claims based allegedly negligent Treasury Department an exercise blacklisting freezing powers excepted. are also intended to be damages validity bill not intended to authorize a suit for to test the provide remedy of or discretionary on account of such acts even though negligently performed involving an abuse discretion. Nor is it desirable or constitutionality intended that legislation, legality regulation of a rule or through should be tested *13 damage medium of However, a suit for the common-law torts torhj employees regulatory agencies would be included within the Attorney explanation. language of the Assistant General’s “a paragraph general exemption characterizes the This highly important exception, preclude any intended to possibility might the bill be construed to authorize suit for damages against growing the Government out of an authorized activity, irrigation such as flood-control or no project, negligence part where on the Govern- agent shown, only ground ment and the for suit is the contention that the aby private same conduct indi- vidual would be .... tortious The bill is not intended to authorize a for damages validity suit to test the of or provide remedy account of such discretionary acts though negligently performed even an involving abuse of discretion.”
II. Turning
interpretation
to the
Act,
our rea-
soning
applicability
as to its
to this disaster starts from
accepted jurisprudential principle
no
action lies
against
legislature
United States unless the
has
it.22
language
authorized
of the Act makes the
United States liable “respecting
provisions
of this
relating
title
to tort
claims,
the same manner and to
private
same extent as a
individual under like cir-
cumstances.”
28 U. S.
§ C.
This statute is an-
other example
progressive
of the
by legislative
relaxation
enactments of
rigor
of the immunity
Through
rule.
such statutes that change
law,
organized government
scope of the bill to the
nonregulatory agencies.
same extent as torts of
)
Thus,
(5)
(10),
section 402
exempting
arising
claims
from the
Trading
administration of the
Enemy
With the
Act
the fiscal
operations
Treasury,
of the
are not intended to exclude such com-
mon-law torts as an
automobile collision
negligence
caused
employee
Treasury
an
Department
agency
or other Federal
administering those functions.”
22Feres
States,
v. United
135, 139;
340 U. S.
United States v.
Shaw,
495;
309 U. S.
Eckford,
United States v.
31
legislation.
that
its
purposes
motivate
expresses
social
to a
are entitled
con-
course,
Of
these modifications
that
accomplish
aim,23
is,
their
one
struction that will
purpose
allowing
carry
legislative
that will
out the
with due
against
negligence
suits
the Government
for
In
statutory exceptions
policy.
for the
to
regard
exceptions
generality
grant,
to
interpreting the
which are within
only
courts include
those circumstances
They
cannot
exception.24
the words
reason of the
“right
do less since
obtain their
to sue from
petitioners
subject
it
to
Congress
they] necessarily must take
[and
imposed.”
such restrictions as have been
Federal Hous-
Burr,
ing
v.
309
251.
242,
Administration
U. S.
So,
interpreted
our
have
the Act to require
decisions
clear
to
relinquishment
sovereign immunity
give juris-
jurisdiction
clear,
diction for tort actions.25
was
Where
23
Co.,
543, 555;
v. Yellow
United States
Cab
340
S.
&
U.
Keifer
Corporation,
v. Reconstruction Finance
In United States v. 338 U. S. we held that our courts jurisdiction try injury by did not have a tort action federal employee complainant to a because of our an accident at air base in Newfoundland. This conclusion was because of reached exception, (k), “Any arising foreign country.” claim in a §2680 sovereignty of the United States did over not extend the base. arguable pro- recovery despite allowed
though, we have objections.26 cedural entirety conclude its § need read only
One
protect
care
exercised
Congress
affected
caused, that
negligently
however
claims,
in administer-
Negligence
functions.
governmental
*15
establishing
quaran-
in
a
Act, or
Property
ing the Alien
An
etc.,
barred.
libel,
operations,
fiscal
tine, assault,
are
exception with which we
the
(a),
of 2680
analysis
§
to ex-
congressional purpose
the
emphasizes
concerned,
negligence
the author-
charged
the
here
as
cept
acts
the
noted from the form
It will be
of
ization to sue.27
phrases
there
two
describ-
section,
18, supra, that
are
p.
see
26
Casualty
Surety Co.,
&
v. Aetna
military States, acting forces persons naval of the United and agency behalf capacity.” of a federal in an official 28 U. S. C. § involving an performed negligently though even
acts discretion.” abuse it to intend did not the draftsmen know that we So common- for such liability the Government relieve negli- by the caused collision an automobile law torts of the administer- supra, p. 28, see employee, anof gence more than to cover intended it was know agency. We ing it because regulation a statute the administration of the section. phrase in the second disjunctively appears that of is not by the section protected “discretion” positive limits of within the to decide judge power —a It is the discretion judicial review. subject law rules of according to act or the administrator of the executive concept substantial course, of the best judgment one’s in American law.30 ancestry historical with these by petitioners This is met contention arguments: close and narrow reason- foregoing
“To accept unrealistic, Appeals], which is ing the Court [of undertaking opera- say program is to that a corpora- may private like it be to some tion, however of an tion or such as the manufacture operation throughout discretionary, explosive, is nevertheless if . . . concept thereof is born discretion. 29Indeed, it has so held those district courts which have been complaints charging negligence, following dismissed the Government’s plea alleged culpable the acts to be confession avoidance g., Boyce States, E. Supp. United exception. fell v. F. within the States, 816; Denny States, Coates v. v. United 866; United 2d 181 F. States, v. United Toledo v. 365; Supp. 150; Olson 171 F. 2d 93 F. *17 States, States, United Thomas v. Supp. Supp. United 838; 95 81 F. F. 881. Marbury Madison, 137, 170; It seems sufficient to cite v. 1 Cranch Spalding Vilas, Johnson, 106; Alzua 483, 498; v. v. U. S. 231 U. S. McAdoo, Perkins v. Lukens Louisiana Steel 627, 633; v. S. U. Co., 310 U. S. manufacturing ... that in the assert
Petitioners with charged was not . . . the Government FGAN, discre- opportunity function discretionary any due and duty charged was tion, but care. reasonable of dis- theory always applied has Court
“This legis- the executive only to cretionary function the basis such function has made levels, and lative per- the courts from interference of freedom legislative or the executive particular to the sonal one be may not discretionary function branch. Such others.” and to down to subordinates delegated Judge adopted by argument, “The Government’s employees responsible that the Government Rives, is of action courses choosing between alternative were is that argument . steps they took. . . The 'discre- the exercise of alleged negligence it involved a choice. simply tion’ because far involved here was removed negligence “The aid to Germans provide decision to Cabinet mis- only ... It is to the Japanese. directed oversight of the careless judgment takes of carrying out a employees who were fertilizer manufacturing shipping program and who themselves as reasonable failed concern Congress . others. . . safety man should with the thus to commit delegated to Ordnance no 'discretion’ wrong.”
) case, pre- from this unnecessary define, apart It is hold, It as we cisely enough where discretion ends. that cannot do, “discretionary duty” that the function form a basis for suit the Tort Claims Act includes under more than the initiation of It programs and activities. also includes determinations made or ad- by executives *18 36 or sched- plans, specifications establishing in
ministrators policy there is room Where operations.31 ules of necessarily It there is discretion. and decision judgment opera- the carrying in out of subordinates follows that acts directions in with official accordance government tions of protection so, If it were not be actionable. cannot needed, would be (a) would fail at the time it 2680 § perform performs that or fails is, when a subordinate by directed step, being a causal each action or nonaction perhaps the superior, exercising, abusing, discretion.32^ 31 are, course, premised There American state cases are g., York, policy judgment, on a similar e. Barrett v. New State of York, 99; 220 Y. New N. 116 N. E. Goldstein v. State Similarly England N. Y. E. 2d 97. have N. in courts wary penalize discretionary public been not to bodies. One acts of the more ment Board v. interesting Kent, cases in the field is East [1941] A. C. 74, involving Suffolk certain Rivers Catch allegedly negligent by draining activities the Board in inundated lands of the private plaintiffs. Board, its Lord Romer stated that under enabling act, merely power drain; they had or not “whether entirely power should exercise that was matter within their own authority proposition discretion.” “I know of no for the that selecting which, which, the time within the extent to and the method statutory power any which its is to be exercised owes [the Board] duty Ibid., Sheppard Glossop v. whatsoever.” at 98. See also Corporation, [1921] 3 K. B. 132: “[the statute] leaves it to [the Corporation’s] they light any discretion whether will the district part it, long lamps kept any portion how shall be lit they light.” Whiting of the district which elect to See also v. Middlesex The courts that have County Council, passed upon [1948] 1 K. B. 162. application of 2680 § (a) interpreted exception to suits under the Tort Claims Act have discretionary functions, generally, conformity holding with our negligence policies plans governmental that for authorized support damage activities cannot suits. Boyce States, Supp. 866, charged
Plaintiff in v. United 93 F. that damage by governmentally-con- he had suffered virtue of certain blasting operations. States, by way ducted The United of affirmative defense, blasting pursuant showed that had been conducted plans specifications Engineers who, detailed drawn the Chief of to institute the That decision III. the cabinet-level discretionary act is not was a export program fertilizer there Nor do we think disputed. seriously experimentation for further doubt the need *19 explosion, its under possibility FGAN to determine delegated turn, specifically had been “discretion the broadest deepening Mississippi for River plan to chan- character” draft a applied. exception been several nel. The There have cases was waterway dealing projects. import of like with the execution of In States, damages sought 816, v. 181 F. Coates United 2d were for injury crops negli- to and land action of the Government in gently changing the of the It was held course Missouri. that no jurisdiction existed under the Act. The case was followed in North v. Supp. States, plaintiff United 94 F. 824. There the denied was recovery injury by gov- cesspool for his cellar occasioned to and a having ground ernment dam raised the level of the local water. A States, Supp. 479, like result Lauterbach v. 95 F. obtained in United resulting damages claimant recover where sued to from release of flood waters at Dam. Bonneville States, Supp. 150,
Olson v. United 93 F. involved another claim of damage. case, employees water In that Fish of the and Wildlife Serv alleged “wilfully intentionally opened ice were to have and the flood gates” causing dam, plaintiff’s of certain loss a livestock. The dam operated purpose storing was for propagating “the water for the of fish and wildlife” and the court “when held that flood waters are be certainly to released and much water how is to be released calls judgment.” Supp., 151, for the exercise of 93 F. at 152-153. Sick States, (a). v. man United 184 F. 2d also invoked 2680 There § plaintiff unsuccessfully sought crop recovery depredations by for wild nearby by governmental his game birds induced to feed on land preserve. States, Supp. plaintiff’s
In Toledo v. United F. automobile damaged by partially falling had been perchance rotten tree at a parked planted time when he had under it. had The tree been and grown government plant experimental at a station in Puerto Rico. open was public It to the for instruction and observation. The opinion operation holds itself, that the of the station and the decision plant preserve particular and experimental this tree its to further purposes, “peculiarly were appropriate within the discretion of the employees Station,” negligent but that removal would not have been. 95 Supp., F. at 841. its shipping, encountered likely be
conditions dis- a matter to be determined combustibility was production. Obviously, charge cretion of those commodity FGAN shipped having manufactured accidents, minor years three without even more than dis- a matter of further was experimentation the need for bag damage heating Reported cretion. instances the extent deemed investigated experiments, were In dealing with were carried on. ammonium necessary, Ordnance, form, industry, nitrate in and of course must be indi- were well aware care taken. best necessary experience the care came from cation of had produced The TVA FGAN production. FGAN since experience, indicated, pp. 18-20, their as we have not Ordnance used only available to but was them think, just to the minute It such is, most detail. we *20 excepted from governmental matters of duties that were the Act.
¿We turn, specific to the acts of therefore, negligence charged in the was manufacture. Each accordance to with, under, specifications and done and directions as how at The basic produced plants. FGAN^was “Plan” Field was drafted the office of the Director June, of Ammunition Plants in 1946, prior beginning inup prior expe- It was of production.33 light drawn was, and the In by private enterprise rience TYA. fact it on pointed out, agency’s as we based the latter en- have 33This “contains of Plan a tabulation the installations involved together pertinent information on those for use with installations part 400; produc both in this and in rates connection Part of tion; description production processes; inspection information acceptance; shipping storage. and and information on This part facilities, requirements production include does not operation facilities, problems recommendations for these administration, and methods involved in are their covered succeeding parts.”
39 the TVA adopted specifically techniques, gineering Plan was This description specifications.34 process of the inception at'the plants various distributed program. manufacture its condemnation general
Besides specific four acts Court cited FGAN, the District of these acts in manufacture.35 Each negligence by this Plan. negligence was directed upon looked Bagging temperature was Applicable excerpts follow. thereof38 labeling and the type bagging fixed.36 The in- too, PRP was coating, were also established. The specifications.39 The acts found to have cluded (b) provisions chapter “The of this and section 1346 this title apply arising . from the activities of the shall not to . . claim (l). Valley Authority.” Tennessee 28 U. S. C. §2680 opinion. Appendix, p. this See discharging of kettle commenced “Water shall be turned off and temperature when reaches 200° F.” bagging temperature apparently The relevance of the stemmed testimony large FGAN, at from certain masses of if maintained F., might spontaneously ignite temperatures of under around 300° prof- certain conditions of mass and confinement. evidence, however, shipped Texas fered that the FGAN extensive City plants nearly temperature, and of did not leave the at temperature which it course there is no as to the at evidence ships. loaded on the 37“Packaging. packed nitrate for fertilizer shall be Ammonium bags, per bag. proof paper burlap as described 100 lbs. Moisture may below, (Specifications be used. as to size have to be altered shall requirement).” Then follow detailed to meet the manufacturer’s *21 specifications. (Ammonium Nitrate) Nitrogen. Marking: Fertilizer 32.5% impor- appeared lading, so far as Notice of on the bill of contents (manufactured Compounds tant, 1,000 Bags, Fertilizing as follows: fertilizer) NOIBN, dry paper bags. composed part paraffin, parts is of one three “The PRP mixture thoroughly This rosin, part petrolatum, mixed and melted. one clay place coating repels holds the provides moisture and a granule.” around each .performed were thus under the direction negligent
been delega- a under a direct plan developed high at level Ex- plan-making authority apex tion of Department. Plan, ecutive The establishment of this delegated supra, p. 20, to the Field Director’s Office^ required expert the exercise of judgmentT] [clearly instance, This is to be in the matter of the seen, coating. The PRP against was added order insure water At absorption. taste; stake was no mere matter of ammonium nitrate when wet cakes and is difficult spread on fields as a fertilizer. So the considerations that dictated the decisions ones, involving were crucial feasibility program itself, against balanced present knowledge of the a coating effect such and the general custom of private similar industries.
And, assuming high that bagging temperatures in fact obtained as the District Court found, bag the decision to at the temperature fixed was also within exception. Maximum bagging temperatures were first established under the specifications. TYA That they prod- were the uct of an exercise of judgment, requiring consideration of spectrum vast of factors, including some which touched directly the feasibility of the fertilizer export program, clear. For instance, it appears several times in the record question of bagging temperatures was discussed Army plant officials, among others. In January, 1947, the Bureau Explosives of the Association of American Railroads wrote to Ordnance concerning a box- car fire of FGAN. The letter suggested a reduction of bagging temperatures. The Field Director of Ammuni- tion Plants consulted the commanding officers on the matter. Those of two of the plants which manufactured City Texas replied FGAN loading was effected at about 200°. Both, however, recommended that re- duced temperatures would be inadvisable. It would be possible to keep product in graining kettles for a longer *22 cooling equipment. or to install But both meth- period in greatly production ods would result increased costs greatly production. reduced This kind of decision and/or courts, Act, empowered is not one which the under the are this in the “negligence”; especially light cite as so of the contemporary knowledge of the characteristics of FGAN.40
As well, judgment serious was involved in specifica- tion the bag lading. labels and bills of importance The of this rests on the fact that it point is the latest time and geography when the anything Government did di- rectly related fire, to the for bagging after the FGAN was physically course in the hands of various non-govern- agents. mental So, since there was serious room for speculation that the most direct operative causing fact the immediate fire on the Grandcamp arose from errors that the French Council, longshoremen ship or staff com- mitted, it was and is important petitioners emphasize the seriousness of the alleged mistake. labeling
This, too, though, falls within the exception for acts of discretion. The Plan had prepared been regard this 40Captain Hirseh, commanding plants one of the three which manu City factured the FGAN, Texas wrote to the Field Director’s Office requesting your stipulate “that temperature office a maximum at may which fertilizer be bag loaded in order to eliminate” deterio through ration reply, heat. In the Office stated that it “has had concerning loading discussions temperature lower than 200° F. for fertilizer, ammonium nitrate but it is felt that this is a matter of process properly control and not incorporated an item to be into specifications.” interpreted Hirseh meaning this as facility “this should any not take active interest in the condition that the am monium nitrate fertilizer reaches its reply destination.” In the Field Office, Director’s this was labeled a “distortion of our state concerning ment bagging temperature process as a matter of control into aspect indifference acceptability suitability.” specifications unchanged were bags left bagging as to temperatures. His Director’s Office. Officer Transportation *23 ICC regulations. the by in was dictated matter decision the for the a specific for classification provide These did not Labeling anything it as material other than fertilizer. was required material” was not “oxidizing but —indeed was requirement even this probably forbidden —and To extent, the pounds. for of less than 200 bags waived in its deci- matter, that had a the then, Army the choice its other fashion was sion not to to list FGAN in seek a as to immunity within the of decision exception. labeling, by in the fact that fact, quite clearly is shown not regulations, instance, the ICC’s could be attacked by the Act of the first phrase claimants under virtue (a). of 2680 § short,
4n alleged the not the “negligence” subject does liability. to The decisions culpable held were all at made a rather responsibly planning opera- than tional level and involved considerations more im- or less portant to of the practicability Government’s fertilizer program. J
“There knowledge danger, must be of not merely Co., v. Buick possible, probable,” but MacPherson Motor Y. 389, 217 N. N. E. Here, nothing entirety of startling so was adduced. The the evidence compels the view that was a material that former FGAN experience safely showed could be handled the manner it was handled here. Even now no one suggested has ignition of anything complex FGAN but a result of interacting mass, heat, pressure factors and composition.
IY. The findings negligence part on the of the Coast Guard failing supervise storage the FGAN, and in fighting the fire after it started, rejected were majority of the Court of F. Appeals. 2d, 777, 780, at 781. We do not enter into an examination of these- to rest our decision findings. prefer, again, factual We on the Act. Coast holding
The District Court’s
Guard
agencies
negligent
failing
prevent
other
were
of the fertilizer in
by regulating storage
loading
fire
neg
some
specific
different fashion
like his
citations
ligence
classically
discussed
are
within the
They
above.
exception.
power
adopt
regulations
by
“The
laws . . . for
public health,
or to
preservation
pass
prescribing
regulating
ordinances
duties
policemen and firemen . . . are generally regarded as dis
cretionary,
because,
they
legislative.”
their
are
nature,
Weightman
Washington,
v.
Corporation
Black
*24
49. The courts
traditionally
question
have
refused to
judgments
they
Zywicki
are based.
v. Jos.
Co.,
R. Foard
As to the alleged in fighting fire, failure we think this too without the Act. The Act did not create new causes of action where none existed before.
“. . . the liability
assumed
the Government here
is that created
'all
circumstances,’
not that
which a few of the
might
circumstances
create. We
find no parallel liability before, and we think no new
one has been created by, this Act.
Its effect
tois
waive immunity from recognized causes of action
and was not to visit the Government with novel and
unprecedented
States,
liabilities.” Feres v. United
It did not change the normal rule that an alleged fail- ure or public carelessness of firemen does not pri- create vate actionable rights. Our analysis of question is determined by what was said in the Feres case. See 28 U. S. C. §§ and 2674. The Act, as was there stated, manner “the same liability States limited United like cir- under a individual private extent as to the same there is there, Here, C. 2674. § 28 U. S. cumstances.” doctrinally if is fact, anything analogous liability; no of com- immunity it of torts is the law sanctified injuries fight- for due to bodies public munities and other stronger much than Feres. We then, fire. ing case, This govern- which denied out one decision pointed only state in the to service to one injuries for incident liability ment fire-fighting cities, by maintaining state militia. That injuries liability personal no organizations, assume securely more en- resulting lapses from their is much it relates to claims to which Act, trenched. The since adopt a analogy general law, there is no tort did not Beacon, Y. City different rule. See Steitz v. 295 N. impose liability alleged E. 2d 704. To for the N. holding nonfeasance of the Coast Guard would be like impose the United States liable tort for failure to quarantine for, say, let us an outbreak of foot-and-mouth disease. Though
V. findings specific general negli- gence support judgment government do not liability, yet there is disposed slight theory be of some residue of liability absolute without fault. This is reflected both in the finding District Court’s the FGAN constituted a nuisance, and in petitioners the contention of here. We *25 agree with the six judges Appeals, the Court of 197 F. 2d 771, 776, 781, 786, that the Act does not extend to such situations, though of course gener- well known tort law ally. It is to be invoked only “negligent wrongful on a act or omission” of an employee. Absolute liability, course, irrespective arises of how the tortfeasor conducts it himself; imposed is automatically when any damages are sustained as a result of the decision to engage dangerous activity. degree The of care used in perform- ing the activity is irrelevant application to the of that act. So negligent requires doctrine. But the statute arise virtue does not judgment liability it our that is “inherently of an ownership either of United States in an engaging or of commodity” property, dangerous Hull, activity. United States v. “extra-hazardous” 64, F. 2d 67. though as “wrongful” on the word rely
Petitioners negligence in addition to showing something does pointed out, as we have argument, covered. This require the fact the Act does some not override could nonfeasance, brand of misfeasance or so liability fault; addition, not without extend clearly that it legislative history of the word indicates jurisdictional grant not to the over- added theory. Rather, Commit- liability tones of the absolute narrower tee discussion indicates that it had much might not inspiration: “trespasses” which be considered strictly negligent. Hearings before a Subcommittee of 76th Judiciary Senate Committee on the S. Cong., liability theory 3d Sess. 43-44. Had an absolute Act, been intended to into the much injected have been g., see e. more found, suitable models could have been Suits in Act, Stat. S. C. 742- Admiralty §§ U. 743, in regard Street, to maintenance and cure. Tort Liability of the State: Federal Tort Claims Act the Crown L. Proceedings Act, 47 Mich. Rev.
Affirmed. Douglas took Justice Justice Clark Mr. Mr. part no the consideration or decision of this case. APPENDIX TO OF THE OPINION COURT. analysis specific aspects The District Court’s of the manu- theory foreseeability facture was his of the risk foreshadowed early findings. finding he set out in the His first of fact con- blunders, mistakes, tained these words: “This record discloses *26 part commission, on the of omission and negligence, both acts of begin deciding employees, servants, Defendant, agents, and its his inherently dangerous It was Fertilizer.” of this the manufacture had early experiments, the United States that, through conclusion enough investigation far pursue such many facts, but did not “learned however, learn, were it did facts, facts .... What learn all the put Defendant on knowledge and to give Defendant sufficient to pursued, led to inquiry if have upon that would notice, not, then and if be- it decided to and Fertilizer which knowledge that such and notice inherently dangerous hazardous mate- and gan was an to manufacture facts learned hazard. Such explosive, and a fire rial, dangerous should not such Fertilizer by pointed to and showed Defendant and circum- was, conditions under certain manufactured, in that it be way handling any and to everyone it in dangerous to stances, most employees, in servants, agents and public. Yet Defendant’s negligently forward matter, went had left the Defendant whose hands shipping, of such distribution, etc. handling, manufacture, in the . . . Fertilizer. distribution, and shipping, manufacture “After the and/or experiments, events and begun, were
handling had there of Fertilizer Defendant could knew, or of which Defendant of which incidents prudent diligence of a reasonable by the use known have very dangerous, both from showing be Fertilizer to person, such knowledge, Defendant explosion. this With standpoint of fire and Fertilizer, or and sale of such manufacture have ceased the should manufacturing safety persons steps to insure should have taken public. . handling . .” such Fertilizer and the and Fertilizer, particularly manufacturing such “Defendant by High Flyer, Formula Grandcamp did so on the the Fertilizer It used as a or under its direction. and evolved Defendant made coating Fertilizer, or substances which rendered of such a substance explosion. highly susceptible fire or There were various same finally coating the Fertilizer a types coating, used made but the very dangerous explosive More other and fire hazard. than commodity thing, coating one of the most one I think this made this dangerous explosives, . . . .” direction, by Defendant,
“. . . Fertilizer or under Such it[s] bags paper placed or made from or other substances which sacked easily ignited by spontaneous fire or combustion contact with were bags spontaneous ignition Such also became torn of the Fertilizer. particles bags mixed ragged shipping became *27 dangerous susceptible the Fertilizer and rendered same more and more explosion.” to fire and placed packed bags high degrees .
“. . Such Fertilizer was and at temperature, temperature the Fertilizer more sus- which rendered ceptible explosion. packed fire and Fertilizer was so to Such being cool, high temperature it did not but continued at while shipped. particularly exploded This was true of the Fertilizer which High Flyer. Steamships Grandcamp packed on the and Same was high degree temperature, temperature sacks at a continued only slight reduction, any, shipped if when the Fertilizer was City across the nation to Texas and there onto such loaded Steamships.” negligent
“Defendant was in the manner in which it marked and Fertilizer, labelled including such sacks of the Fertilizer on the Grand- camp High Flyer, and in that same was not labelled and marked dangerous explosive required fire hazard as Rules and Regulations of the Interstate Commerce Commission. . . . duty Defendant,
“. . .It was knowing well as it did the dangerous nature and character of such Fertilizer which Defendant shipped or shipped City, notify caused to be to Texas and advise handling same, including all the carriers the Steamships Grandcamp High Flyer, notify City and to and advise the and State Officers City, dangerous at Texas nature and character of such Fer- tilizer, to the end that such carriers employees and their and such could, possible protect officers if public against themselves and the danger explosions of fires from and of such Fertilizer.” The District Court concluded:
“Clearly ought such Fertilizer never to have been manufactured. beginning From down, dangerous commodity it was a and a dangerous nuisance.” Jackson, Mr. Justice joined by Mr. Justice Black and Mr. Frankfurter, Justice dissenting.
All April day, 15, 1947, longshoremen loaded bags ammonium nitrate fertilizer aboard Grandcamp, the S. S. docked at Texas City, Texas. Shortly after a. m. next morning, when work resumed, smoke was coming seen from the No. 4 hold and it was discovered had that fire broken out in the fertilizer. The ship’s master ordered was and steam down, battened hatch covered fire-fighting apparatus hold. Local into the introduced extinguish efforts the combined arrived, but soon hour after smoke an Less than unavailing. fire were exploded 4 hold in the No. tons of fertilizer seen, 880 first in the No. stored the fertilizer turn, detonated and, City and of Texas to the dock area spread Fire hold. adjoining pier High Flyer, berthed at an the S. S. nitrate fer- and ammonium sulphur cargo carrying or even contain extinguish Further efforts to tilizer. *28 at- tugs unsuccessfully 11 p. m., failed about and, fire after High Flyer Shortly out to sea. to tow the tempted sulphur of the morning April on the one o’clock High Flyer exploded, demolishing fertilizer aboard the Keene, lying along- the S. Wilson B. ship both that S. holocaust, in this persons perished More than 560 side. injured. The entire dock area of 3,000 and some were property a was leveled and ran thriving port damage into millions of dollars.
This was a it in an disaster; man-made was no sense of The fertilizer been in “act God.” had manufactured government-owned at plants the Government’s order and specifications. being shipped to its It was at its direction part foreign as of its of aid. program The disaster was in by by caused forces set motion the Government, com- pletely by controlled controllable it. Its causative beyond knowledge factors were far the or control of the victims; they only were not of incapable contributing to but it, flight could not even take shelter or from it.
Over 300 brought against suits were the United States under the Federal Tort Claims Act, alleging neg- that its ligence responsible for the disaster. After con- solidating suits, the the District Court ordered the case of present petitioners to be parties tried. The to all of the in suits, effect, agreed that the common of the issue of abide the outcome this negligence should Government’s Fifth Appeals The Court Cir- litigation. test judgment peti- the trial court’s favor of cuit reversed reversal, that the Government here Supporting tioners.1 urges (1) a would not be liable private person if a circumstances, (2) private person these even by liable, liability were is saved from discretionary exception acts.2 statute’s that a judge likely This is one of those cases to leave door he enters. As we by through same have “Some told craft, theory been master our of liabil- some ity, philosophy by tightening the end be served enlarging rights remedies, circle is at the root of decision analogies novel situations when are equivocal and precedents So, are silent.” we begin avowing conception legal liability function quite obviously cases such as this at variance with the approach of the Court.
Congress has defined tort liability of the Govern- ment analogous of a person. private Tradi- tionally, one function of liability civil for negligence is to supply a sanction enforce degree of care suit- *29 able to the conditions of contemporary society appro- priate to the circumstances of the damage case. The civil action, prosecuted adjusted by private initiative, neither burdening our overworked processes criminal nor confined the limits of criminal liability, is one of the law’s most effective inducements to the watchfulness and prudence necessary calamity to avoid from hazardous operations in the midst of an unshielded populace.
Until recently, the
of
influence
the Federal Government
has been exerted in the
of tort
field
law to tighten liabil-
1In
City
re Texas
Litigation,
Disaster
3Cardozo, The
Law,
of
p.
own.)
Growth
(Emphasis
his
imposed
has even
Congress
remedies.4
liberalize
ity and
danger
of
knowledge
to
regard
without
liability
criminal
are intro-
articles
dangerous
potentially
where
or intent
the Gov-
But, when
commerce.5
interstate
into
duced
defendant,
a tort
as
into court
brought
is
ernment
win their case
lawyers
of its
zeal
very proper
or
to conceal
involved
officials
zeal of
less commendable
trend.
this
against
militate
carelessness
minimize their
an unctuous
exert
defendant, can
as a
Government,
official carelessness
it can clothe
because
persuasiveness
unanticipated
Hence, one
interest.
public
with a
to throw
has been
Act
of the Tort Claims
consequences
of lax
the side
influence on
government
weight
which it defends.
cases
negligence
in the
of care
standards
of the Gov-
adoption
the Court’s
It is our fear
an unfortu-
inaugurate
may
view this case
ernment’s
well
official
as
private
relaxation
nate trend toward
inher-
transporting
vending
in making,
responsibility
considering
not
For we are
dangerous products.
ently
products
of commerce
everyday
here
commodities
only proven
not
compound
a complex
nature but
Liability Act, 45
S. C. 51
g.,
Employers’
U.
See, e.
the Federal
§
changed
assumption of risk and
seq.,
et
which abolished the defense
recovery
complete
to a factor
contributory negligence from a
bar
seq.,
Act,
et
damages;
46 U. S. C. 688
mitigated
the Jones
which
§
seamen,
against
employers to
gave
their
a cause of action
A.;
Employees’
E. L.
the Federal
under
rules of the F.
the substantive
seq.,
Compensation
et
in which the
S. C. 751
Act
U.
§
system
employees;
up
compensation
own
for its
Government set
a
Act,
Longshoremen’s
Compensation
and Harbor Workers’
system
seq.,
up
et
of workmen’s com
U. S. C. 901
which sets
§
liability
pensation
employees
imposes
for the described
without
Act,
employers.
arising
fault on their
In
the last-named
cases
under
any award, repre
party
judicial
review of
O’Leary
senting the
See
v.
interests
the claimant.
Brown-Pacific-
Maxon, Inc.,
Because of reliance on the reservation governmental immunity for acts of the Court discretion, avoids direct pronouncement on duty owing under these circumstances but does sound overtones and undertones which we disagree. whoWe would hold the Government liable here cannot avoid' consideration basic criteria which courts liability determine conditions_of modern life. This'is’a~day“of"syn- living, thetic when to an^vef-incréasin^^tenI'büFpop5’- lation is dependent upon producers mass for its food and drink, its cures and complexions, its apparel and gadgets. These longer no are natural or simple products but com- plex ones whose composition qualities are often secret. Such dependent society must greater exact care than in more simple days and require must manufacturers or producers increased integrity caution as the only protection safety of its and well- being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test youngster’s cowboy suit the wife’s sweater to if see they apt are to burst into fatal flames. Carriers, by land or by sea, cannot experiment with the combustibility of *31 52 or is nec- research experiment transit. Where in
goods degree danger, of presence to determine essary nor must on the public, be tried out must not the product or the tech- possess the facilities expected to be public but latent for itself of inherent knowledge to learn nical foreseen is was not hazard The claim dangers. foresight appropriate use who did not not one available enterprise. to his have steadily, but been courts, slowly
Forward-looking
The
to these conditions.6
negligence
the law
adapting
of
liabil-
the Government’s
law
determines
which
statute
negligent
act
omission
ity
that of the
where
place
is
6
Massachusetts,
Lummus,
Supreme
Judge
of
for the
Judicial Court
Co.,
Yardley
Ltd.,
development
v.
&
319
this
Carter
articulated
opinion
perhaps
is
92,
N. E.
That
contains what
Mass.
64
2d 693.
the earlier land
statement of the trend than does
more decisive
Judge
Appeals,
of
opinion
mark
of
for
New York Court
Cardozo
Co.,
382,
Y.
111 N. E.
v.
Motor
217 N.
MacPherson
Buick
following
represent examples
type
cases
of claims based
damage
complex
products
come before
on
manufactured
which
Gray,
appellate
day.
v.
present
Coleman Co.
192
tribunals in the
iron)
(absence
safety
gasoline vapor pressing
;
F.
265
of
device on
2d
Westinghouse Mfg. Co.,
Supp.
(explosion
Roettig v.
F.
588
53
Bottling
heating
stove);
v.
unit in electric
Escola
Coca Cola
Co. of
(defect
Fresno,
453,
bottle);
24
2d
150 P. 2d
Cola
Cal.
436
Coca
(absence
Co.,
App.
303,
Gall
Ice
108 Cal.
2d
occurred.7 as to Speculation to Texas. Nebraska, shipped thence negligence unnecessary, occurred is since each where the jurisdictions recognizes general proposition of these product that a manufacturer liable defects his of due have been avoided exercise could on the specific care.8 Where there are no state decisions judges may general turn to the point, federal doctrines *32 judges of tort whence state derive their accepted law, in governing novel cases. that principles We believe the of whatever source to which we look the law this if the is modern it case, itself, sup- source as as the case ports higher the exaction of of degree a care than possibly can be found to been here. have exercised
We believe it is the better view that
into
puts
whoever
in
circulation
a product
commerce
that is known
even
of
suspected
being potentially
explosive
inflammable or
is under an obligation to
own product
know his
and to
ascertain what forces he is turning loose.
as often
If,
will
case, dangerous
be the
a
product is also a
one,
useful
he is under a
duty
strict
to
step
follow each
of its distri-
bution with warning
dangers
of its
and with information
and directions to
those
at
keep
dangers
a minimum.
728
C.
U. S.
§
v.
Cory.,
314,
Travis
442;
Gas
137 Tex.
153 S.
2dW.
McAfee
Drug
Texas
(Tex.
Co. v.
App.),
Caldwell
dismissed,
Civ.
writ
968; Tegler
237 S. W.
v. Farmers
Co.,
Union Gas &
Oil
Neb.
recently
It is obvious heavy, very to be nothing or liability be to Government’s liability potential magnitude But the indeed. multitude of disaster and the enormity due to not excuse catastrophe does size its victims. it could pleads eloquently its liability but, face, govern- prudently operated from any have resulted not sweeping injury sudden project, ment and that so at least It should not where it has fallen. should lie “dis- is one of those whether this raise immediate doubts to immunize Congress sought cretionary” operations approach general our liability. this statement of With to this application turn its issue, we liability case. would not private person
In that even order to show court’s that the trial liable, be must show It points what findings clearly are erroneous.9 fact lengthy findings it are errors made patent claims pages printed in 39 upon 30,000 of over volumes record uno, us rule of “error *33 urges apparently upon that agree error in omnibusWe cannot some even will all many impeach errors in a record such this that findings. each individual finding the We conclude or fall on of the evidence support must stand the basis to it. judge explosions The that the trial found resulted by from a fire in had the fertilizer which started some process akin spontaneous combustion, and that the anticipate Government was negligent failing precautions take against such an occurrence.
The Government’s attack factual purely on the deter- mination trial utterly judge seems us uncon- vincing. Reputable experts opinion testified to their that the fire could been by spontaneous have caused combustion. The it Government’s contention (a), Rule 52 Fed. Rules Proc. Civ. hold smoking about by someone probably caused testimony. There was brought sharp forth conflict in adopting permissible one of two inferences as no error origin. in view of the absence And, to the fire’s we warning explosive, that FGAN was inflammable or job about smoking by longshoremen would think an abnormal phenomenon. would not be fertilizer had type evidence showed that this been about four at the time of years manufactured for explosion City. experts Texas Petitioners’ testified to their at segment belief that least a of informed scien- opinion regarded tific at the time ammonium nitrate as potentially dangerous, especially when combined carbonaceous material as it was fertilizer. One this witness had been hired the War Production Board to conduct tests into explosion prod- and fire hazards of this uct. The Board terminated these tests at an intermedi- ate stage, against the recommendation of the laboratory and in the suggestion face that further research might point suspected up but unverified In dangers. addition, there was a considerable history period over years unexplained explosions fires and involving such ammonium nitrate. The zeal and skill of govern- ment counsel to distinguish each of fires on these its facts appears to exceed that of experts some of the on whose testimony they rely. The Government endeavored to impeach opinions of petitioners’ experts, introduced experts of own, its sought to show private per- sons who manufactured similar fertilizer took no more precautions than did the Government.
In this situation, even simplest government official could anticipate likelihood of packing close in large *34 masses during sea shipment, with aggravation of dangers. attendant Where the risk involved is an ex- plosion of a cargo-carrying train or ship, perhaps in a congested yard rail or at a dock, the producer is not as industry practice a of law to treat as matter
entitled dis- one free Otherwise, due care. guide a to conclusive before product to each new permitted would be aster the side of on was thrown liability of sanction civil safety. high standards many findings that unnecessary
It each “clearly errone- judge by the trial survive negligence on the passing ous” review. Without appellate test duty those as to we find that findings, rest of his and failure shipment in negligence and inquiry further We support judgment.10 are to to warn sufficient meaning not as each findings these latter construe judge: following excerpts findings trial from the of the are facts, “(g) many pursue but learned did not such (cid:127) (cid:127) (cid:127) [Defendant] facts, negligently stopped investigation enough far learn to all but learn, however, learning the facts. facts it did short of all of What knowledge put give and to Defendant were sufficient Defendant notice, upon inquiry pursued, not, if if have and then would knowledge Fertilizer it led to notice that such which decided to and inherently dangerous began and was an and haz manufacture material, . . dangerous explosive, and fire hazard. . ardous (1) prepared negligent in in which it such Defendant was the manner Fertilizer, Grandcamp High and including Fertilizer on the by Defendant, Flyer, shipment. or under it Such Fertilizer was direction, placed bags paper or or sacked made from other in [sic] easily ignited by fire substances were contact spontaneous ignition spontaneous of the combustion or Fertilizer. particles bags ragged shipping and Such also became torn and bags became mixed with the Fertilizer and rendered same more dangerous susceptible negli explosion. and more and Such to fire gence proximate explosions was the cause of fires such and the injuries complain. (o) of which Plaintiffs ... Defendant was negligent delivering Fertilizer, causing to be delivered such including Flyer, Grandcamp High placed the Fertilizer on the so bags paper to the railroad and other over which carriers it was shipped, informing dangerous, without such carriers that it was inflammatory, explosive character, dangerous and that it was persons handling public. negligence same to the Such proximate explosions injuries cause of such fires and and the complain.” which Plaintiffs *35 process
omission failure bagging, shipping, if warn, standing liability- would alone, imposed have on the Government, but rather that due care is not con- sistent with every this seriatim resolution conflict between safety and expediency favor of the latter. This Court certainly private would hold a corporation liable in situation, this imposes the statute the same liability upon the Government unless it bring can itself within the Act's exception, which we now turn.11 ; The Government insists that each act or omission upon charge which the of negligence predicated deci- —the discontinuing sions as to investigation of hazards, bagging high at temperature, use of paper-bagging mate- rial, absence of labeling warning a con- —involved weighing scious of expediency against caution and was therefore within the immunity for discretionary pro- acts vided the Tort Claims Act. It further argues, by way of showing that by such a construction the reservation would not completely swallow the of immunity, waiver that such discretionary decisions to be distinguished are from those made aby truck speed driver as to the at which he will travel so as to keep the latter within the realm of liability. do not predicate
We liability on any decision taken at “Cabinet level” or on any high-altitude other thinking. Of it is course, not a tort government to govern, and the decision to aid foreign agriculture by making and delivering fertilizer is no wrong. actionable Nor do we provisions 11 28U. S. C. “The chapter of this §2680: and section (b) of this apply title shall not to—
“(a) Any upon claim based an act or employee omission of an Government, exercising care, due in the execution of a statute regulation, or whether or regulation not such statute or valid, be upon based performance exercise or or the failure to exercise perform discretionary duty part function or on the of a federal agency or employee an Government, whether or not the discretion involved be abused. . . .” any in these deliberations
find indication doing what risk of to take a calculated was made decision what done, it on the chance way was done, are not Therefore, we might happen. not happen did liability this case governmental fear that deterred *36 of executives and administra- make the discretion would if decisions are However, restrained. tors timid and temperature as to the made at Cabinet levels being paper whether is suitable explosive fertilizers, bagging bags and how the should be bagging fertilizer, hot for and re- an sense caution labeled, perhaps increased would be wholesome. height at sponsibility even adopted policy that a of this matter is The common sense was carried out of an immune discretion in the exercise agree cannot charge in of detail. We carelessly by those immunity every the line there is way that all the down safety against produc- cost, balancing against of care ¡ against warning silence. tion, language clear, is not statutory that the ground theOn view resort to support its seeks the Government legislative history. We from an inconclusive selections in which, margin excerpts to appropriate in the refer support believe them, of the Court’s reliance we spite our this case.12 conclusion body on the of law devel- also relies [The liability for torts which municipal in the field of oped ministerial, acts. opposed discretionary, deal with opinion. believe that this oft- n. 21 of the Court’s We See repeated paragraph appearing Reports quite shows in the House type gov plainly of discretion which that what was meant agencies regulating private ernment exercise in individuals. meaning majority amorphous, fix chooses instead to an all-inclusive word, exception an to the and then to delimit the not whether discretionary by who discretion. The act was but exercised the vaguest contains not the intimation of such a test which statute itself only the misconduct of file clerks and truck drivers. leaves actionable substantiality dichotomy, of this the cases Whatever it interpreted hopeless confusion; have are some which interchange- “discretionary” and “ministerial” have used while others “proprietary” “governmental,” ably terminology uncritically have rather borrowed the same mandamus,13! law But even cited by cases although municipality that, the Government hold project, for its to undertake a may not be held decision ' negligent upkeep.14 it is liable for execution or think that statutory language, leg- fWe the reliable history, islative and the common-sense basis the rule regarding all to a municipalities, point proper useful preserved by urged distinction the statute other than that by the Government. an govern- When official exerts authority mental in a manner legally binds one or many, acting way he is which no private person could. designed Such activities do and are to affect, *37 often deleteriously, the affairs of but individuals, courts have long recognized the public policy that such official shall solely by be controlled the statutory or administra- tive mandate and not the private added threat of damage example, suits. For the Attorney will General not be liable for false arrest circumstances where a private person performing liable,15 same act would be and such cases could be multiplied.16 The official's act
13 Patterson, See Discretionary Acts, Ministerial and 20 Official Mich. L. Rev. 848. g., Keeley Portland,
14 E.
260, 262,
v.
180, 181-182;
100 Me.
A.
61
Turney,
297, 311,
Cumberland v.
561, 567;
177 Md.
9 A. 2d
Gal
lagher
Tipton,
App. 557,
v.
133 Mo.
might is the official but private person, of the as that wrong Tort Claims clause exception not answerable. law where common treasury public protects Act acting public official. purse protect would only officials deal many government But acts The Govern- activities. housekeeping side of federal as as ware- manufacturer, shipper, landowner, as ment, as carrying on operator, houseman, shipowner as performed from those indistinguishable activities good there is no reason area, In this private persons. to immunize the Govern- legislative text to stretch if acts, for their responsibility or its officers ment of others. safety care for the appropriate done without a may this area involve Many official decisions even considerations, but this is the balancing nice of various peril do at their balancing same kind of which citizens exception think it is not within the of the statute. we negligence policy here was not The Government’s but regulatory governmental nature, of a decisions private manufacturer, akin to those involved actions excep- contractor, shipper. Reading discretionary do, tion we both workable and faithful way would hold that legislative intent, we the Government Surely was liable under these circumstances. a statute long so debated was meant embrace more than traffic If not, accidents. the ancient and discredited doctrine King wrong” that “The can do no has not been uprooted; merely read, it has been amended to “The King can do *38 only little wrongs.”ji