Dalehite v. United States

Mr. Justice Jackson,

joined by Mr. Justice Black and Mr. Justice Frankfurter,

dissenting.

All day, April 15, 1947, longshoremen loaded bags of ammonium nitrate fertilizer aboard the S. S. Grandcamp, docked at Texas City, Texas. Shortly after 8 a. m. next morning, when work resumed, smoke was seen coming from the No. 4 hold and it was discovered that fire had broken out in the fertilizer. The ship’s master ordered *48 the hatch covered and battened down, and steam was introduced into the hold. Local fire-fighting apparatus soon arrived, but the combined efforts to extinguish the fire were unavailing. Less than an hour after smoke was first seen, 880 tons of fertilizer in the No. 4 hold exploded and, in turn, detonated the fertilizer stored in the No. 2 hold. Fire spread to the dock area of Texas City and to the S. S. High Flyer, berthed at an adjoining pier and carrying a cargo of sulphur and ammonium nitrate fertilizer. Further efforts to extinguish or even contain the fire failed and, about 11 p. m., tugs unsuccessfully attempted to tow the High Flyer out to sea. Shortly after one o’clock on the morning of April 17, the sulphur and fertilizer aboard the High Flyer exploded, demolishing both that ship and the S. S. Wilson B. Keene, lying alongside. More than 560 persons perished in this holocaust, and some 3,000 were injured. The entire dock area of a thriving port was leveled and property damage ran into millions of dollars.

This was a man-made disaster; it was in no sense an “act of God.” The fertilizer had been manufactured in government-owned plants at the Government’s order and to its specifications. It was being shipped at its direction as part of its program of foreign aid. The disaster was caused by forces set in motion by the Government, completely controlled or controllable by it. Its causative factors were far beyond the knowledge or control of the victims; they were not only incapable of contributing to it, but could not even take shelter or flight from it.

Over 300 suits were brought against the United States under the Federal Tort Claims Act, alleging that its negligence was responsible for the disaster. After consolidating the suits, the District Court ordered the case of the present petitioners to be tried. The parties to all of the suits, in effect, agreed that the common issue of the *49 Government’s negligence should abide the outcome of this test litigation. The Court of Appeals for the Fifth Circuit reversed the trial court’s judgment in favor of petitioners. 1 Supporting that reversal, the Government here urges that (1) a private person would not be liable in these circumstances, and (2) even if a private person were liable, the Government is saved from liability by the statute’s exception of discretionary acts. 2

This is one of those cases that a judge is likely to leave by the same door through which he enters. As we have been told by a master of our craft, “Some theory of liability, some philosophy of the end to be served by tightening or enlarging the circle of rights and remedies, is at the root of any decision in novel situations when analogies are equivocal and precedents are silent.” 3 So, we begin by avowing a conception of the function of legal liability in cases such as this quite obviously at variance with the approach of the Court.

Congress has defined the tort liability of the Government as analogous to that of a private person. Traditionally, one function of civil liability for negligence is to supply a sanction to enforce the degree of care suitable to the conditions of contemporary society and appropriate to the circumstances of the case. The civil damage action, prosecuted and adjusted by private initiative, neither burdening our overworked criminal processes nor confined by the limits of criminal liability, is one of the law’s most effective inducements to the watchfulness and prudence necessary to avoid calamity from hazardous operations in the midst of an unshielded populace.

Until recently, the influence of the Federal Government has been exerted in the field of tort law to tighten liabil *50 ity and liberalize remedies. 4 Congress has even imposed criminal liability without regard to knowledge of danger or intent where potentially dangerous articles are introduced into interstate commerce. 5 But, when the Government is brought into court as a tort defendant, the very proper zeal of its lawyers to win their case and the less commendable zeal of officials involved to conceal or minimize their carelessness militate against this trend. The Government, as a defendant, can exert an unctuous persuasiveness because it can clothe official carelessness with a public interest. Hence, one of the unanticipated consequences of the Tort Claims Act has been to throw the weight of government influence on the side of lax standards of care in the negligence cases which it defends.

It is our fear that the Court’s adoption of the Government’s view in this case may inaugurate an unfortunate trend toward relaxation of private as well as official responsibility in making, vending or transporting inherently dangerous products. For we are not considering here everyday commodities of commerce or products of nature but a complex compound not only proven by *51 the event to be highly dangerous, but known from the beginning to lie somewhere within the range of the dangerous. Ammonium nitrate, as the Court points out, had been “long used as a component in explosives.” This grade of it was manufactured under an explosives patent, in plants formerly used for the manufacture of ordnance, under general supervision of the Army’s Chief of Ordnance, and under the local direction of the Army’s Field Director of Ammunition Plants. Advice on detailed operations was sought from such experienced commercial producers of high explosives as the du Ponts and the Atlas and the Hercules powder concerns. There is not the slightest basis for any official belief that this was an innocuous product.

Because of reliance on the reservation of governmental immunity for acts of discretion, the Court avoids direct pronouncement on the duty owing by the Government under these circumstances but does sound overtones and undertones with which we disagree. We who would hold the Government liable here cannot avoid' consideration of the basic criteria by which courts determine liability in the conditions_of modern life. This'is’a~day“of"synthetic living, when to an^vef-incréasin^^tenI'büFpop5’-lation is dependent upon mass producers for its food and drink, its cures and complexions, its apparel and gadgets. These no longer are natural or simple products but complex ones whose composition and qualities are often secret. Such a dependent society must exact greater care than in more simple days and must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well-being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test the youngster’s cowboy suit or the wife’s sweater to see if they are apt to burst into fatal flames. Carriers, by land or by sea, cannot experiment with the combustibility of *52 goods in transit. Where experiment or research is necessary to determine the presence or the degree of danger, the product must not be tried out on the public, nor must the public be expected to possess the facilities or the technical knowledge to learn for itself of inherent but latent dangers. The claim that a hazard was not foreseen is not available to one who did not use foresight appropriate to his enterprise.

Forward-looking courts, slowly but steadily, have been adapting the law of negligence to these conditions. 6 The law which by statute determines the Government’s liability is that of the place where the negligent act or omission *53 occurred. 7 This fertilizer was manufactured in Iowa and Nebraska, thence shipped to Texas. Speculation as to where the negligence occurred is unnecessary, since each of these jurisdictions recognizes the general proposition that a manufacturer is liable for defects in his product which could have been avoided by the exercise of due care. 8 Where there are no specific state decisions on the point, federal judges may turn to the general doctrines of accepted tort law, whence state judges derive their governing principles in novel cases. We believe that whatever the source to which we look for the law of this case, if the source is as modern as the case itself, it supports the exaction of a higher degree of care than possibly can be found to have been exercised here.

We believe it is the better view that whoever puts into circulation in commerce a product that is known or even suspected of being potentially inflammable or explosive is under an obligation to know his own product and to ascertain what forces he is turning loose. If, as often will be the case, a dangerous product is also a useful one, he is under a strict duty to follow each step of its distribution with warning of its dangers and with information and directions to keep those dangers at a minimum.

*54 It is obvious that the Court’s only choice is to hold the Government’s liability to be nothing or to be very heavy, indeed. But the magnitude of the potential liability is due to the enormity of the disaster and the multitude of its victims. The size of the catastrophe does not excuse liability but, on its face, eloquently pleads that it could not have resulted from any prudently operated government project, and that injury so sudden and sweeping should not lie where it has fallen. It should at least raise immediate doubts whether this is one of those “discretionary” operations Congress sought to immunize from liability. With this statement of our general approach to the liability issue, we turn to its application to this case.

In order to show that even a private person would not be liable, the Government must show that the trial court’s findings of fact are clearly erroneous. 9 It points to what it claims are patent errors in the lengthy findings made upon a record of over 30,000 pages in 39 printed volumes and apparently urges upon us a rule of “error in uno, error in omnibusWe cannot agree that some or even many errors in a record such as this will impeach all of the findings. We conclude that each individual finding must stand or fall on the basis of the evidence to support it. The trial judge found that the explosions resulted from a fire in the fertilizer which had started by some process akin to spontaneous combustion, and that the Government was negligent in failing to anticipate and take precautions against such an occurrence.

The Government’s attack on the purely factual determination by the trial judge seems to us utterly unconvincing. Reputable experts testified to their opinion that the fire could have been caused by spontaneous combustion. The Government’s contention that it was *55 probably caused by someone smoking about the hold brought forth sharp conflict in the testimony. There was no error in adopting one of two permissible inferences as to the fire’s origin. And, in view of the absence of any warning that FGAN was inflammable or explosive, we would think smoking by longshoremen about the job would not be an abnormal phenomenon.

The evidence showed that this type of fertilizer had been manufactured for about four years at the time of the explosion in Texas City. Petitioners’ experts testified to their belief that at least a segment of informed scientific opinion at the time regarded ammonium nitrate as potentially dangerous, especially when combined with carbonaceous material as it was in this fertilizer. One witness had been hired by the War Production Board to conduct tests into explosion and fire hazards of this product. The Board terminated these tests at an intermediate stage, against the recommendation of the laboratory and in the face of the suggestion that further research might point up suspected but unverified dangers. In addition, there was a considerable history over a period of years of unexplained fires and explosions involving such ammonium nitrate. The zeal and skill of government counsel to distinguish each of these fires on its facts appears to exceed that of some of the experts on whose testimony they rely. The Government endeavored to impeach the opinions of petitioners’ experts, introduced experts of its own, and sought to show that private persons who manufactured similar fertilizer took no more precautions than did the Government.

In this situation, even the simplest government official could anticipate likelihood of close packing in large masses during sea shipment, with aggravation of any attendant dangers. Where the risk involved is an explosion of a cargo-carrying train or ship, perhaps in a congested rail yard or at a dock, the producer is not *56 entitled as a matter of law to treat industry practice as a conclusive guide to due care. Otherwise, one free disaster would be permitted as to each new product before the sanction of civil liability was thrown on the side of high standards of safety.

It is unnecessary that each of the many findings of negligence by the trial judge survive the “clearly erroneous” test of appellate review. Without passing on the rest of his findings, we find that those as to the duty of further inquiry and negligence in shipment and failure to warn are sufficient to support the judgment. 10 We construe these latter findings not as meaning that each *57 omission in the process of bagging, shipping, and failure to warn, if standing alone, would have imposed liability-on the Government, but rather that due care is not consistent with this seriatim resolution of every conflict between safety and expediency in favor of the latter. This Court certainly would hold a private corporation liable in this situation, and the statute imposes the same liability upon the Government unless it can bring itself within the Act's exception, to which we now turn. 11

; The Government insists that each act or omission upon which the charge of negligence is predicated — the decisions as to discontinuing the investigation of hazards, bagging at high temperature, use of paper-bagging material, absence of labeling and warning — involved a conscious weighing of expediency against caution and was therefore within the immunity for discretionary acts provided by the Tort Claims Act. It further argues, by way of showing that by such a construction the reservation would not completely swallow the waiver of immunity, that such discretionary decisions are to be distinguished from those made by a truck driver as to the speed at which he will travel so as to keep the latter within the realm of liability.

We do not predicate liability on any decision taken at “Cabinet level” or on any other high-altitude thinking. Of course, it is not a tort for government to govern, and the decision to aid foreign agriculture by making and delivering fertilizer is no actionable wrong. Nor do we *58 find any indication that in these deliberations any decision was made to take a calculated risk of doing what was done, in the way it was done, on the chance that what did happen might not happen. Therefore, we are not deterred by fear that governmental liability in this case would make the discretion of executives and administrators timid and restrained. However, if decisions are being made at Cabinet levels as to the temperature of bagging explosive fertilizers, whether paper is suitable for bagging hot fertilizer, and how the bags should be labeled, perhaps an increased sense of caution and responsibility even at that height would be wholesome. The common sense of this matter is that a policy adopted in the exercise of an immune discretion was carried out carelessly by those in charge of detail. We cannot agree that all the way down the line there is immunity for every balancing of care against cost, of safety against production, of warning against silence. ¡

On the ground that the statutory language is not clear, the Government seeks to support its view by resort to selections from an inconclusive legislative history. We refer in the margin to appropriate excerpts which, in spite of the Court’s reliance on them, we believe support our conclusion in this case. 12

[The Government also relies on the body of law developed in the field of municipal liability for torts which deal with discretionary, as opposed to ministerial, acts. *59 Whatever the substantiality of this dichotomy, the cases which have interpreted it are in hopeless confusion; some have used “discretionary” and “ministerial” interchangeably with “proprietary” and “governmental,” while others have rather uncritically borrowed the same terminology from the law of mandamus, 13 ! But even cases cited by the Government hold that, although the municipality may not be held for its decision to undertake a project, it is liable for negligent execution or upkeep. 14 '

fWe think that the statutory language, the reliable legislative history, and the common-sense basis of the rule regarding municipalities, all point to a useful and proper distinction preserved by the statute other than that urged by the Government. When an official exerts governmental authority in a manner which legally binds one or many, he is acting in a way in which no private person could. Such activities do and are designed to affect, often deleteriously, the affairs of individuals, but courts have long recognized the public policy that such official shall be controlled solely by the statutory or administrative mandate and not by the added threat of private damage suits. For example, the Attorney General will not be liable for false arrest in circumstances where a private person performing the same act would be liable, 15 and such cases could be multiplied. 16 The official's act *60 might inflict just as great an injury and might be just as wrong as that of the private person, but the official is not answerable. The exception clause of the Tort Claims Act protects the public treasury where the common law would protect the purse of the acting public official.

But many acts of government officials deal only with the housekeeping side of federal activities. The Government, as landowner, as manufacturer, as shipper, as warehouseman, as shipowner and operator, is carrying on activities indistinguishable from those performed by private persons. In this area, there is no good reason to stretch the legislative text to immunize the Government or its officers from responsibility for their acts, if done without appropriate care for the safety of others. Many official decisions even in this area may involve a nice balancing of various considerations, but this is the same kind of balancing which citizens do at their peril and we think it is not within the exception of the statute.

The Government’s negligence here was not in policy decisions of a regulatory or governmental nature, but involved actions akin to those of a private manufacturer, contractor, or shipper. Reading the discretionary exception as we do, in a way both workable and faithful to legislative intent, we would hold that the Government was liable under these circumstances. Surely a statute so long debated was meant to embrace more than traffic accidents. If not, the ancient and discredited doctrine that “The King can do no wrong” has not been uprooted; it has merely been amended to read, “The King can do only little wrongs.”ji

In re Texas City Disaster Litigation, 197 F. 2d 771 .

28 U.S. C. § 2680.

Cardozo, The Growth of the Law, p. 102. (Emphasis his own.)

See, e. g., the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq., which abolished the defense of assumption of risk and changed contributory negligence from a complete bar to recovery to a factor which mitigated damages; the Jones Act, 46 U. S. C. § 688 et seq., which gave a cause of action against their employers to seamen, under the substantive rules of the F. E. L. A.; the Federal Employees’ Compensation Act of 1916, 5 U. S. C. § 751 et seq., in which the Government set up a compensation system for its own employees; the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq., which sets up a system of workmen’s compensation for the described employees and imposes liability without fault on their employers. In cases arising under the last-named Act, the Government is a party to judicial review of any award, representing the interests of the claimant. See O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504 .

Boyce Motor Lines v. United States, 342 U. S. 337 .

Judge Lummus, for the Supreme Judicial Court of Massachusetts, articulated this development in Carter v. Yardley & Co., Ltd., 319 Mass. 92 , 64 N. E. 2d 693 . That opinion contains what is perhaps a more decisive statement of the trend than does the earlier landmark opinion of Judge Cardozo for the New York Court of Appeals, MacPherson v. Buick Motor Co., 217 N. Y. 382 , 111 N. E. 1050 . The following cases represent examples of the type of claims based on damage from complex manufactured products which come before appellate tribunals in the present day. Coleman Co. v. Gray, 192 F. 2d 265 (absence of safety device on gasoline vapor pressing iron) ; Roettig v. Westinghouse Mfg. Co., 53 F. Supp. 588 (explosion of heating unit in electric stove); Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453 , 150 P. 2d 436 (defect in Coca Cola bottle); Gall v. Union Ice Co., 108 Cal. App. 2d 303 , 239 P. 2d 48 (absence of warning label on drum of sulfuric acid which burst); Lindroth v. Walgreen Co., 407 Ill. 121 , 94 N. E. 2d 847 (defective vaporizer which melted, causing fire which burned plaintiff); Ebers v. General Chemical Co., 310 Mich. 261 , 17 N. W. 2d 176 (damage from chemical designed to kill peach-tree borers); Willey v. Fyrogas Co., 363 Mo. 406 , 251 S. W. 2d 635 (defect in automatic cutoff valves on gas heater); Di Vello v. Gardner Machine Co. (Ohio Com. Pl.), 102 N. E. 2d 289 (disintegrating grinding wheel); Saena v. Zenith Optical Co., 135 W. Va. 795 , 65 S. E. 2d 205 (exploding glass coffee maker). Recovery was not had in all of these cases, but all of them have emphasized that the manufacturer owes some duty of care to certain classes of people who might be injured by defects in his product.

28 U. S. C. § 1346 .

McAfee v. Travis Gas Cory., 137 Tex. 314 , 153 S. W. 2d 442 ; Texas Drug Co. v. Caldwell (Tex. Civ. App.), writ dismissed, 237 S. W. 968 ; Tegler v. Farmers Union Gas & Oil Co., 124 Neb. 336 , 246 N. W. 721 . As recently as 1949, Circuit Judge Duffy, in discussing Iowa law which was applicable in a diversity suit in federal court, said that the Supreme Court of Iowa had not yet passed squarely on the question, but was of the opinion that they would follow the weight of authority. Anderson v. Linton, 178 F. 2d 304 . An older Iowa case imposes a duty of care on dealers in potentially dangerous substances, at least as to those in contractual privity, Ellis v. Republic Oil Co., 133 Iowa 11 , 110 N. W. 20 ; and even the Government here does not rely on the absence of contractual privity to bar petitioners from recovery.

Rule 52 (a), Fed. Rules Civ. Proc.

The following are excerpts from the findings of the trial judge: “(g) • • • [Defendant] learned many facts, but did not pursue such investigation far enough to learn all the facts, but negligently stopped short of learning all of the facts. What facts it did learn, however, were sufficient to give Defendant knowledge and to put Defendant on notice, and if not, then upon inquiry that would if pursued, have led to knowledge and notice that such Fertilizer which it decided to and began to manufacture was an inherently dangerous and hazardous material, a dangerous explosive, and a fire hazard. . . . (1) Defendant was negligent in the manner in which it prepared such Fertilizer, including the Fertilizer on the Grandcamp and High Flyer, for shipment. Such Fertilizer was by Defendant, or under it [sic] direction, placed or sacked in bags made from paper or other substances which were easily ignited by contact with fire or by spontaneous combustion or spontaneous ignition of the Fertilizer. Such bags also became torn and ragged in shipping and particles of the bags became mixed with the Fertilizer and rendered same more dangerous and more susceptible to fire and explosion. Such negligence was the proximate cause of such fires and explosions and the injuries of which Plaintiffs complain. ... (o) Defendant was negligent in delivering or causing to be delivered such Fertilizer, including the Fertilizer on the Grandcamp and High Flyer, so placed in paper bags to the railroad and other carriers over which it was shipped, without informing such carriers that it was dangerous, inflammatory, and explosive in character, and that it was dangerous to persons handling same and to the public. Such negligence was the proximate cause of such fires and explosions and the injuries of which Plaintiffs complain.”

28 U. S. C. §2680 : “The provisions of this chapter and section 1346 (b) of this title shall not apply to—

“(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. . . .”

See n. 21 of the Court’s opinion. We believe that this oft-repeated paragraph appearing in the House Reports shows quite plainly that what was meant is that type of discretion which government agencies exercise in regulating private individuals. The majority chooses instead to fix an amorphous, all-inclusive meaning to the word, and then to delimit the exception not by whether an act was discretionary but by who exercised the discretion. The statute itself contains not the vaguest intimation of such a test which leaves actionable only the misconduct of file clerks and truck drivers.

See Patterson, Ministerial and Discretionary Official Acts, 20 Mich. L. Rev. 848 .

E. g., Keeley v. Portland, 100 Me. 260, 262 , 61 A. 180, 181-182 ; Cumberland v. Turney, 177 Md. 297, 311 , 9 A. 2d 561, 567 ; Gallagher v. Tipton, 133 Mo. App. 557 , 113 S. W. 674 .

Gregoire v. Biddle, 177 F. 2d 579 .

Spalding v. Vilas, 161 U. S. 483 (Postmaster General); Wilkes v. Dinsman, 7 How. 89 (officer of Marine Corps); Otis v. Watkins, 9 Cranch 339 (Deputy Collector of Customs); Yaselli v. Goff, 12 F. 2d 396 , aff'd 275 U. S. 503 (Special Assistant to the Attorney General). The overwhelming weight of authority in the states is to the same effect. See 42 Am. Jur. § 257.