Republic of France & Compagnie Generale Transatlantique v. United States of America
290 F.2d 395
5th Cir.
1961
Check Treatment

*2 Judge, TUTTLE, exceeding $25,000.00 and amount not Chief for Before HUTCHESON, RIVES, provisions and one claim. Pursuant to of CAMERON Judges. statute, JONES, paid ap- Circuit the United States proximately $16,000,000.00 of to victims Judge. RIVES, Circuit the disaster and obtained from the re- cipients assignments of for their claims upon explosion of The fire the S.S. death, personal injuries property City, Texas, Grandcamp while at Texas damages approximately cargo totalled loading Fertilizer she $70,000,000.00. Thereafter, 1957, May in (FGAN) on Grade Ammonium Nitrate proceeding the United States filed in April 16, 1947, this 500 more than resulted in an amended injuries, claim based as- deaths, these personal more than 3000 signments, $16,000,000.00 not for the dam- tremendous destruction of paid approximately $70,000,000.- but for age property. to It has become known originally by amount May asserted City as the Texas Disaster. On these disaster, claimants. two weeks after Republic owner, Com- persons The claims of all who as- made pagnie Transatlantique (herein- Generate signments to the United States were dis- Line”), after referred the “French January missed on Many per- agent the owner or charterer assignments sons who had not made vessel, petition filed a in the District voluntarily the United States thereafter for Southern District of New only withdrew their claims. The remain- (Admiralty 149-248), pursuant York No. ing claimant, other than the United Liability Act, to the Limitation of States, City Railway is the Texas Termi- 182-189, praying U.S.C.A. for exon- §§ Company nal Co. That did not file under liability eration from or limitation for City the Texas Relief Act because it was damages resulting explosion. from the willing assign an uninsured loss proceeding That New York limitation nearly five $25,- million dollars for the pending dispo- still without trial other 000.00maximum allowed under the Relief sition. assigned Act. In claims, addition to its 17, 1947, within the six- On October the United States filed a claim in the prescribed by period month 46 U.S.C.A. § $350,000, amount of as successor to the of France Corporation, Reconstruction Finance present petition filed the French Line like goods awaiting loss of in a warehouse for exoneration or limitation loading on another vessel. in for the District Court Southern long delay bring- petitioners of Texas. A Neither of party District here was a ing petition trial has been to Dalehite the latter case. The cases are alike by giving precedence to the extent occasioned that each arises out of the City Act, Tort Sensibly, under the Federal suits Claims Disaster. the trial 2674, against present 28 U.S.C. case was §§ shortened States, by agreement United manufacturer of introduction mony of the testi- Eventually, this Court FGAN. held that Dalehite of 86 of the total of liable, the United States 133 witnesses in that case. Four again was affirmed decision witnesses Dalehite testified in City Litiga- case, re Texas Disaster this and an Court. additional 25 witnesses Cir., 1952, open tion, during F.2d affirmed testified court thirteen days nom. Dalehite United trial. So that sub L.Ed. 1427. decision district court in this ease large part based not on Congress Thereafter, in 1955 enacted Dalehite, evidence taken in but also Act, Relief the Texas Stat. 707- voluminous record comprising now That Act left insurance some underwrit- losses, pages provided testimony. their own bear additional ers payment of cases, uninsured claims in particularly an issues two at the “(a) proceed- appeals stage The courts of shall limitation present jurisdiction appeals from: ing, identical. are not fact and conclusions [*] [*] [*] -x- [*] [*] com case in this court *3 law of the district Interlocutory “(3) of decrees such record, printed pages of the prise some 43 judges district or courts the thereof F.Supp. published at 171 have been and rights determining the and liabili- Based A.M.C. and at 1959 admiralty parties of ties the cases conclusions, findings the upon and such appeals in which from decrees final interlocutory an entered district court are allowed.” peti granting the motion of the decree implead United interlocutory purposes the While for leave to for tioners petitions appellate jurisdiction, ex States,1 denying for of the final and this decree ly rights appeal is determined the and of or limitation.2 liabilities oneration parties denying by petition the from that decree. for exoneration from or limitation of liabil far issue The ultimate ity. extent, To that sub decree is not by is that court the district determined ject usually applicable rule to inter petitioners to exoner are not entitled locutory reaching decrees; viz.: that in liability. The ation from or limitation of may its final decree the court exercise its impleading claims or of merits any discretion or all to re-examine yet petition been determined. have not form in which the basis captioned by the district The decree was terlocutory Instead, except decree. toas “Interlocutory Decree,” and court as the issues which were reserved to be de jurisdiction purposes appellate we impleader termined on the of the United that it must be so considered. See (see 1, supra), pres States footnote 95, 112, Bourgogne, 1907, La 210 U.S. judicata ent decree is res on the issue ju 52 L.Ed. 973. The 28 S.Ct. damages liability for the caused Appeals is that risdiction explosion.4 granted by 1292(a) (3): 28 U.S.C. § affirming 1234; 1 L.Ed.2d connection, court’s the district 1. In this Transport British Commission United v. determin- “without made were States, Cir., 1956, 139, 144; ing States the United whether Algoma, Bay Ry. & Central Hudson Co. particular in connec- at fault been Corp., Cir., 1936, T. Great L. 2d shipping of manufacture tion with the 710; Black, F.2d Gilmore & The so, EGAN, or, thereof the effect if Admiralty, pp. 733, 735; Law cf. Con- types of claims various as to the Barge FBL-585, tinental Grain Co. v. asserts, there be if States the United 19, 25, 1960, 364 U.S. S.Ct. was not the sole it 4 L.Ed.2d 1540. contend).” petitioners (as disaster of the substantially position That was interlocutory parts operative of the 2. The taken Government counsel oral argument: decree read: petition- “Ordered, “Judge Assuming that the motion Rives: that in- implead terlocutory States affirmed, the United leave to ers for decree should be - pursuant Rule in you go to the 56th of America would from where there? What Admiralty government prove States of the United would the have to be- allowed; hereby granted and and got Court is it a final decree? fore Well, assuming further it is “Mr. Davis: “Ordered, Adjudged Decreed, interlocutory confirmed, your decree is petition France Honor, goes of the said back it District Court Oompagnie proceedings. Transat- Generale further lantique lim- “Judge for exoneration Rives: What remain and/or issues hereby liability talking be and open? should itation I’m That’s what about. petitioners.” questions damages each of said is denied as to “Mr. Davis: The principal open, that is the one. remain 340; Judgments, Am.Jur., Section 3. See 30 “Judge issues Rives: What as to lia- Judgments § 50 C.J.S. bility open? remain Transport “Mr. Davis: What issues as to United Commission v. 4. British respect peti- open? 129, 137, 142, remain having found that All of the court claims unseaworthy filed, being in that she Grandcamp no for loss claims improperly damage cargo, improperly apparent it manned Grandcamp’s statute, stowed, unsea the fire and that 46 U.S.C.A. § privity applicable, that consideration can be worthiness was within knowledge liability, dis petitioners.5 restricted limitation apparent the master U.S.C.A. trict court found also that also § guilty no petitioners fault there are claims to which seaworthi origin ness, neglig amounting fire both itself extinguish ence,9 apply. in its in the failure to *4 stage.7* incipient court concluded: The findings negligence of fault and appellants challenge which appeal on this foregoing, follows “From the pertaining are those to the neg the fault reason of that fire, procedures and to the that should ligence petitioners, the attempting have been used in to extin- vessel, all of unseaworthiness guish incipiency.10 the fire at its privity was within which knowledge petitioners, entering neither is We are relieved from into from limi exoneration exhaustive review of this voluminous entitled rec- 183, Title ord to reach under a decision as to whether or § tation of findings not those U.S.C.A.” of fact are er- gence, fire, yes, again. As cerned, position cannot has fire? tion, or fore that is have settled settled bility tion of it. cigarette ages, and have tioners’ will be you damages, of course? “Mr. “Judge “Mr. “Judge “Mr. “Mr. “Judge “Judge Rives: You have to “Mr. Davis: “Judge up [*] case? already going you get a somebody before have with insofar as the Davis: That is be Petitioner, and that Davis: decided now. Davis: As to the liability, Davis: The your Honor, you claim for exoneration and limita- burden, in the hold and that started the they Jones: When Rives: What I am Cameron: sir, Cameron: litigated again, to have you respect respects [*] finally? found think the Court this that. I think the Court got still Yes, No, sir, I will judgment that Court, your question negligence that to the [*] got prove— I have You are is the You take cannot Honor. question burden of petitioner true, and that morning you go question various prove cause of the is the [*] question findings that on the asking, prove your taking your negligence the Court prove back, not have litigated question threw liability, showing is con- claims. law negli- [*] dam- posi- have neg- part part that lia- are be- 8. Petition 5. 6. See 10. The land 926, 4 D.Ed.2d ion of the 327-328, pleading Tex.1959, 171 objection to his allowance of ligence it was the Supp. Supp. they sel confuse decide that. amount about you decide concerned, they still Supp. 510, 511. See See See “Mr. “Judge adequately before the F.Supp. 44 at 171 open. particularly particularly Findings Tankers, Findings are in Mitchell at meeting evidentiary 362 U.S. Davis: as far as the United States things, and pages petition, Rives: that issue is still damages.” question first United States’ fault and that In the final no Basically disclosed in F.Supp. 497, that. 505-511. Inc., 1960, numbered can F.Supp. 509, Trial 941; position Findings Certainly Findings 509. basis They Trawler we have no reserve litigate court. 5 L.Ed.2d 20. We did not want to thought 542-549, Michalie v. Cleve- Judge for those that meeting and then we will 45-48, 33-36, 31 and the full that open? that. Racer, litigate See recover; goes we had no 510. we should 80 S.Ct. D.C.S.D. issue is the in- 171 F. 171 F. 171 F. to- 37-39, coun- opin- Inc., that do is met, following necessary considera- and it is roneous11 personal in- he be able to foresee extent of the claims All tions. damage damage property result- jury, death, which ensue.”12 explo- directly from fire ed not Texas, elsewhere, more found no The district court sion. proximate causal connection but also foreseen the Master than that very duty existence of a the breach explosion: possibility of negli which will constitute actionable reasonably Master could “The gence depends upon reasonable foresee anticipated foreseen should have ability consequences.13 fire, of a disastrous urge appellants “principal as their explosion, in fail- possibility of the ing point” that, unseaworthiness, “even if pres- smoking prevent negligence conceded, fault and the dis- FGAN. proximity of the ence court, trict find- on the basis of own regard consti- in this His ings, holding erred as matter of law in fire, proximate cause of tuted that the claimed which result- explosion, dam- resultant proximate ined fire was the cause of ages which ensued.8 injuries resulted from the succes- *5 “8 finding this with In connection explosions, finding sive as its to ‘fore- ‘foreseeability’, undoubt it is toas seeability’ does not meet the standard of and devas force edly true that the recognized by Texas which this law explosion tating shock of this effects Railway in Texas-New Mexico surprised field the scientific ed Company Bailey, (1953).” v. 203 F.2d 647 transportation indus as well as try. appellants emphasize the dis- recog generally What was trict court found that could the master (a) that nized before only reasonably possi- have foreseen cause a would nitrate ammonium bility explosion, and could not have magnitude in the of such detonation probability foreseen “the of an great confinement absence urge sort,” upon our us bomb), (as a pressure within liability Texas, statement of rule (b), alone would fire and heat and the decisions which that state- detonation, an without cause ment is based: detonation; or ac initial or booster cording “In Texas the test whether theory, such ini to one negligent proxi- act or omission is a resulting an from ex tial detonation injury mate cause of whether gases, which plosion of accumulated wrong-doer might by ‘the the exer- heated de from the in turn come ordinary cise of care have foreseen composing ammonium nitrate. might injury that some similar re- and informa the literature “From negligence.’ sult from the Atchison available, generally do be tion lieve, Ry. Co., 466, v. Texas & 143 Tex. P. that, the exercise ordi 232; 186 S.W.2d Louis B. & St. nary care, the Master could have Ry. Brack, Tex.Civ.App., M. v.Co. probability explo of an foreseen (Emphasis 102 273.” S.W.2d presence sort, even sion of supplied.) Ry. Texas-New Mexico finding should be inter of fire. Bailey, Cir., 1953, Co. v. 5 203 F.2d light, and is based on preted in this 647, 649-650. that, premises as he fore negli reply brief, appel In their from fire from see ‘foreseeability’ conduct, Hopson gent lants concede that case of v. test States, 1954, 12. Petition D.C. McAllister v. United 11. See S.D.Tex.1959, F.Supp. 497, 20; L.Ed. 508-509. S.Ct. U.S. Towing The Leo, Co. Dick v. J.C. Lighting & Power Co. v. 13. Houston 850, 853, Cir., 1953, 202 F.2d Tex.1960, 603; Brooks, 336 S.W.2d Torts, ed., pp. page 2d Prosser on note 8 8. See 1951,150 Corp., Oil Tex. 237 S.W. Gulf a foreseeable event within the Tex- Chicago, 356, quoted I. P. 2d R. & as rule.” Goodson, Cir., 1957, R. Co. v. fallacy argu in that chain of 203, 207, correctly fol- states the rule as only operation ment is that it is lows: recognized natural forces theretofore “It is sufficient that the defend- charged normal one is which with fore reasonably ant pated consequences antici- would seeing. injury of or an “Meaning ‘normal.’ The actor general en- nature of that which required as a reasonable man is sued.” anticipate against provide emphasized That rule is in the more re- operation normal of natural forces. Biggers opinion cent Continental v. And here word ‘normal’ is used System, Bus Tex. 303 S.W. to describe not those forces 359, 364, 365, disapproved 2d holding which constantly habitually which are “that one’s cannot operating but also those forces proximate injury of an unless the operate periodically or with a certain injury precise manner means of the re- degree frequency.”14 sulting be fore- ; and, “Abnormal instead, conditions nature. seen” held that: required actor The pate is not to antici- correctly “The true rule stated against provide conditions of in Sullivan Flores where it is said operation nature or the of natural necessary that all that is to establish forces which are unusual a negligent that an actor’s proximate is a act provid- character that the burden of injury proof cause of an *6 ing pro- for them would out be of all person ordinary that ‘As a intelli- portion to the chance of their exist- gence prudence, he should have operation or ence the risk anticipated the cre- others pos- harm to others involved in their negligent act, ated and the operation. sible existence or It is require not rule does pate that he antici- necessary partic- therefore not that a just injuries grow how will out operation ular of the natural force dangerous situation.’ [134 unprecedented; be The likelihood of [110], 132 S.W.2d 111.]” Tex. slight its recurrence sobe argue appellees The with much force aggregate in the the burden con- that the district court found that fault stantly providing against it would privity within the or knowl- great proportion out all com- edge of the owner or owners caused magnitude pared with the of the risk permitted fire and toit increase in in- possibility involved of its re- tensity, and that the fire caused the dis- currence.” explosion. appellees astrous The insist that that causal connection is sufficient present inWhile case there holding within Court Chi- testimony was some in addition to the cago, Goodson, Cir., R. I. & P. R. Co. v. amount vast of evidence before the court F.2d 207: City Litigation, in the Disaster Texas “As to the element of foreseeable- the district court still found it “undoubt being edly devastating stressed as ness an true that the force important probable element of explosion cause effects of this shocked and sur jurisprudence, prised in Texas we the scientific field as well as the say directly industry.” transportation correct to that whatever The district operation by the results of natural found court further as to ammonium ni channelling from the trate, approximately laws unlawful which constituted premises FGAN,

of water onto which, another’s with the 95% Torts, pp. p. 14. 2 Restatement at 816-817. Id. pretty majority in the four effect Substantially benefit whether risk’.” providing means of existence for the exercise manufactured devastated from FGAN or to discretion ercise safeguards mal conditions magnitude gued to be chances of always tation shock detonation considered tion of pal nitrate sified Commerce Guard. explosive “In this “18. distributed. judges foreseen. ingredient time judges, negligible.” that the the disaster as an recognized, as to or ‘booster’ been ammonium purposes by the fire, was hindsight, Despite were being case, it can part of the that to such an Commission areas all stated. and not, ‘explosive’for explosion as our considered so whether is true because at all take dangers earlier Even writer warnings not disaster of discretion encountered high explosives, at might transportation has we nitrate, initial or required. Speaking and use of considerable well called evidence if some mixture: reasonably have now know opinions of not constituting the hardly be ar it should ease, necessity had judgment or under have the detona- distinguished known ammonium ‘calculated Interstate remote now, the Coast it should transpor- into said: booster princi- it was to the is to initial called as to what clas- nor- pri- ex three to be are not liable for of or remanded with reversed and the cause directions to When pressed Court, said: Court, Reversed and remanded with fire should ticipated.” mitted to known that FGAN was a probable,’ It results that the nothing many shiploads previously shipped officials ter of the tion was handled here.”19 explosive We that former part tor the view that FGAN was material the French Government and the mas- deed if claims on overseas, nor in this FGAN while danger, 1050, 1053,L.R.A.1916F, steamship Grandcamp. “* “ handled stowage awaiting export, Co., ‘There must be consequent upon agree entirety Mr. Justice the case reached the Terminal [*] * the officialsand claiming the United States it was 217 N.Y. French Line in this so and that an MacPherson Buick Mo- impose liability adjudge with the view so reasonably *7 Grandcamp safely appellants’ employees experience startling of the evidence merely possible, stacked at awaiting Reed, speaking would be ironic in- now in the manner it that the judgment knowledge claim that, explosion have been an- was adduced. of the United brief: showed could employees should have loading.” of France explosion dangerous unlike were for these arising 111 N.E. petitioners compels aptly in the litiga- must be Here, from for the of a per- direc- out ex- pos- Judge tions. expressed himself more Strum

itively : Judge HUTCHESON, (dissent- Circuit wholly un- “This ing). disaster, precedented. Prior to this agree unable to with I am had no known instances conclu- findings majority during transit, sion of the that the land while explosions and page 18. Id. at 782. D.C. 16. Petition 49Y, F.Supp. S.D.Tex.1959, 503. 1953, 19. v. United Dalehite 42, 971, City Litigation, U.S. Disaster L.Ed. 17. In re Texas Cir., 197 F.2d judge judicata. are res conclusions the district This is two rea- judgment place, and must sons. In erroneous his the first this case was reading re- and tried be reversed. reading careful and must A be determined its findings judge’s evidence, upon my was, own of the district which it in they whole, opinion, and as are entirely as a conclusions correct for Repub- judge opinion, negligence set out in to find Petition fault and he Prance, lic of Com- did. place, as Owner and the second the Dalehite Transatlantique, pagnie go case did Generale off on the conclusion of Agent, Grandcamp, Steamship in no but on the conclusion that excepted a cause of Exoneration from and Limita- claim was out of the Act Liability, F.Supp. discretionary tion provision. No. 497, leaves me conviction with the clear herring The second red is the conten- support- that the of fact are well damage occurring tion that kind record, conclusions, ed and that not, law, here was under reason- Texas petitioner that the tation, not entitled to limi- ably foreseeable. The contention invades liability, or exoneration from are province function of the district supported well fact. can- law judge and in effect runs counter to not, therefore, opinion concur in the of universally prevailing par- that the rule rejects majority damage ticular character of done does judgment, and reverses the but must dis- foreseen, have to be it is sufficient sent therefrom. damage if evidence shows that some deference, reasonably to me that the With seems have been foreseen. gone astray majority opinion has as a opinion majority is clear to me that the giving that two her- result of the fact red direct errs in seeability, to the Texas law fore- sedulously rings carefully have been element of by appellants proximate cause, meaning across the trail of drawn ef- actually fact law which the district true fect different from that ascribed judge’s opinion presents. jurisdictions. to it here other herrings red is opinions The first these undue leading As the first and case in Texas emphasis on the decisions and question, Big Ry. on the ham, Texas & P. this court and of the page 227, 90 Tex. at 38 S.W. case, 5 first Texas disaster page 164, shows, applied at the rule Cir., 73 S. gen applied is the same as that 956, 97 L.Ed. 1427. With deference Ct. erally elsewhere. There the Texas Su nothing opinions decisions those preme Court, quoting approval judicata do with this either as res case Ry. Kellogg, Milwaukee St. P. Co. v. or as stare decisis. This case was tried 469, 24 L.zd U.S. 256: *8 separate by own as on its facts case « -x--x-* generally that, it is held judge different tribunal and and between finding in order to warrant a that parties, different and decision in it cannot negligence, or an amounting act not by controlled or be influenced what oc wrong, to proximate wanton is the in curred cases for those two reasons: injury, cause of an appear it must (1) the tried cases on different facts injury that the was the natural and judge; (2) a different and the deci probable consequence negli- of the appellate in the courts sions were based gence wrongful act, and that it entirely on the view that the suit came ought to have been foreseen in the discretionary provision within the of the light attending of the circumstanc- and, therefore, Federal Tort Claims Act es.” against not maintained be the Unit say: then went on to States. ed majority, therefore, my in opinion, probably “This as accurate a giving opinions in errs to the of the in statement doctrine as can be substantially the Dalehite case given, the effect substantially gen- and is that Ry. court, Chicago, P. erally in R. I. & the authorities. laid down Rives, Goodson, 203, by abstractly Co. v. stat- Upon as the doctrine Judge Jones, Tuttle and the consensus Tuttle ed is a substantial organ accurately court, arise discussed opinion. difficulties That stated, particu- correctly applied Tex- apply to the it to when we come foreseeability. as we surprising doctrine when cases lar prone dif- reflect, to minds are that It seems clear in to me that this mari- the questions; that fer as to such correctly judge time case the district un- by almost degree probability rises obtaining principle derstood the and cor- gradations; that imperceptible rectly applied it I find here. cases are of such circumstances the interlocutory affirm the would decree both hardly be two can that so variant on limitation and exoneration of liabil- precisely present the found which ity, prejudice, however, without to the cir- Under of fact. same state right petitioner, par- in defense hardly expect- be cumstances it is damages, ticular claims for to offer such found, many not be will that cases ed bearing further in evidence each case seemingly do not the result which question foreseeability the generally doctrine accord with the desire to offer. recognized. hold prepared to “But we are not me, also, It seems clear to that ma- the original the cause that in no jority given case wrong has too much and a prox- injury deemed effect to the statement of the district independent cause, where an judge, imate where, opinion, in note 3 in his agency su- has having disconnected after stated body in brought re- pervened about the opinion that the master could and should the intervention sult. have foreseen fact a disastrous independent agency, it occurs fire, opinion said in the note to his at that directly upon us, bears more point the master could not have injury ought, question whether foreseen the that occurred. circumstances, have deference, all under With contrary to the view of and, lat- foreseen; where majority, been it seems clear to me that appears, we distinguishing ter fact judge be- district ought negligent original act master, as a man natural what the tween Rail- Seale actionable. actually deemed individual, distin- knew as Texas, 274, Justice Co., Chief way what, representative guished aas intervening says: required Willie ship owner, ‘If he was probable or reasonable reading ought to know. A law and consequences as could rea- be such whole, opinion which the dis- anticipated by sonably fully judge his points out reasons trict wrongdoer, original current limitation, shows, think, denying the authority be that con- seems way the clearest follows, broken.’ is not making nection note, judge, this dis- question opinion, our contradicting and was not tinction *9 ought depend upon probable cause body finding opinion, question, whether a rea- further charged with the master knowl- man, sonably in view of prudent all ought edge to have known and fore- anticipated facts, would have consequence aas seen necessarily precise result —not then the situation injury, injury, but some like actual obtaining. intervening similar produced respectfully dissent. supplied.) (Emphasis agencies.”