dalehite argued decided june action tort claims act recover damages death resulting disastrous explosion texas city ammonium nitrate fertilizer produced instance according specifications control export increase food supply areas military occupation following world war ii district found explosion resulted negligence part government adopting fertilizer export program whole control various phases manufacturing packaging labeling shipping product failing give notice dangerous nature persons handling failing police loading shipboard held matter law facts found district give jurisdiction cause act claim based upon exercise performance failure exercise perform discretionary function duty part federal agency employee government within meaning makes act inapplicable claims pp legislative history act discloses included assure protection government tort liability errors administration exercise discretionary functions pp discretionary function duty form basis suit act includes initiation programs activities also includes determinations made executives administrators establishing plans specifications schedules operations acts subordinates carrying operations government accordance official directions actionable pp acts negligence found district subject government liability decisions found culpable responsibly made exercise judgment planning rather operational level involved considerations less important practicability government fertilizer program pp district finding coast guard agencies negligent failing prevent fire regulating storage loading fertilizer classically within exception relating acts based legislative judgment pp alleged failure fighting fire also outside coverage act act change normal rule alleged failure carelessness public firemen create private actionable rights pp since act may invoked negligent wrongful act omission employee created absolute liability government virtue ownership inherently dangerous commodity property engaging extrahazardous activity pp action tort claims act district awarded judgment plaintiffs appeals reversed granted certiorari affirmed john lord howard westwood argued cause dalehite et petitioners brief thomas fletcher neth leachman mosheim john brown mccorquodale vernon elledge wm merrick parker graham claytor stanley temko austin bryan argued cause refining corporation et petitioners brief george vail david bland morton liftin oscar davis argued cause brief acting solicitor general stern assistant attorney general burger judge advocate general brannon assistant judge advocate general mickelwait paul sweeney marvin frankel massillon heuser morton hollander herman marcuse lester jayson cornelius peck eberhard deutsch burton philips william connelly justice reed delivered opinion petitioners seek damages death henry dalehite explosions fertilizer ammonium nitrate base texas city texas april test case representing separate personal property claims aggregate amount two hundred million dollars consolidated trial district southern district texas facts crucial question federal liability generally done arrangement result accepted matters suits judgment rendered following separate proof damages individual plaintiffs sum damages claims remain determined appeals fifth circuit unanimously reversed however texas city disaster litigation granted certiorari case presented important problem federal statutory interpretation suits filed federal tort claims act act waived sovereign immunity suit certain specified torts federal employees assure injured persons damages injuries caused employees act provides federal district courts ubject provisions act exclusive jurisdiction civil actions claims money damages accruing january injury loss property personal injury death caused negligent wrongful act omission employee government acting within scope office employment circumstances private person liable claimant accordance law place act omission occurred provisions chapter section title shall apply claim based upon act omission employee government exercising due care execution statute regulation whether statute regulation valid based upon exercise performance failure exercise perform discretionary function duty part federal agency employee government whether discretion involved abused adaptability material use agriculture recognized long prior government interest matter began tva acting statutory delegation undertake experiments manufacture fertilizer stat first began production commercial purposes tva used plant facilities formerly used production ammonium nitrate explosives year war production board responsible production allocation war materials exec order january fed reg instituted program yearly production tons month fgan private domestic agricultural use plants longer required ammunition production administration carried army bureau ordnance tva specifications followed advice given experts early production domestic use furnished test manufacture utility fgan particular fgan involved texas city came produced foreign use reasons following world war ii hostilities obligations occupying power danger internal unrest forced government deal problem feeding populations germany japan korea direct shipment foodstuffs impractical available fertilizer short supply requirements estimated tons however ordnance plants deactivated turned war assets administration cfr part disposal secretary war royall suggested may secretary patterson agreed used production fertilizer needed export director office war mobilization reconversion stat app et seq ed acting power delegated president exec order may fed reg exec order october fed reg ordered plants operation cabinet approval followed war department allocated funds appropriations supplies military posts direct appropriations relief occupied areas made congress following year army chief ordnance delegated responsibility carrying plan authorized particularly enter contracts private companies operation plants facilities turn appointed field director ammunition plants fdap administer program thereafter department entered number contracts private firms including du pont hercules powder operate installation described herein graining ammonium nitrate fertilizer grade subjecting work done contractor general supervision direction control approval contracting officer detailed set specifications drawn sent plant included fdap specifications products similar tva paper army personnel appointed plant responsible application specifications liaison supply officials satisfaction production schedules pursuant army standard operating procedure beyond operations controlled administering corporation supplied personnel production experience required fgan basic ingredient ammonium nitrate long used component explosives adaptability fertilizer stemmed high free nitrogen content hercules powder company first manufactured fertilizer compound form basis cairns explosive patent august cairns process contemplates product substantially identical texas city fgan process licensed government produced ammonium nitrate certain federal plants shipped solution reactivated graining centers concentration thereafter addition clay mixture petrolatum rosin paraffin prp hereafter added insure caking water absorption material grained fertilizer specification dried packaged paper bags marked fertilizer ammonium nitrate inception program however appeared particular plants unable produce sufficient quantities fertilizer meet early needs planned allocation early shipments occupied territories made lots privately produced released war department combined food board purchased pursuant allocation arrangement approved board acting civilian production administration established exec order october fed reg thereafter private producers replenish supply private sale purchasing fgan desired particular fgan transported texas city produced three plants activated government foreign fertilizer program allotted lion oil previously sold fgan army pursuant agreement agreement provided title pass lion payment original contract sale army provided lion designate recipient replacement fgan lion contracted walsen company resale walsen operated broker french supply council representing french government secured preferential fertilizer allocation civilian production administration pursuant thereto walsen transmitted french shipping orders lion turned army execution fgan consigned french supply council texas city government bills lading council insured shipment name arranged credit new york banks assigned part thereof lion sufficient cover shipments involved payable presentation shipping documents also directed lion consign lots french supply council storage eventual exportation texas city terminal texas april following three weeks warehouse storage texas city orders french council tons fgan thus resold loaded french steamship grandcamp tons privately owned high flyer independent stevedores hired french grandcamp carried addition substantial cargo explosives high flyer tons sulphur time next day smoke sighted grandcamp hold efforts halt fire unavailing ships exploded much city leveled many people killed since individual acts negligence shown suits damages resulted necessarily predicated government liability participation manufacture transportation fgan following disaster course one fail impressed blunt fact fgan explode sum petitioners charged federal government brought liability catastrophe using material fertilizer used ingredient explosives long industry knowledge gave notice combinations ammonium nitrate material might explode negligence charged without definitive investigation fgan properties shipped permitted shipment congested area without warning possibility explosion certain conditions district accepted theory judgment based series findings causal negligence purposes roughly divided three kinds held government careless drafting adopting fertilizer export plan whole found specific negligence various phases manufacturing process emphasized official dereliction duty failing police shipboard loading appeals en banc unanimously reversed since three six judges explicitly rejected bulk findings shall consider case one come us unimpaired cf labor board pittsburgh steamship gypsum even assuming correctness arguendo though judgment establish case within act reason matter law facts found give district jurisdiction cause tort claims act federal tort claims act passed congress title iv legislative reorganization act stat nearly thirty years congressional consideration offspring feeling government assume obligation pay damages misfeasance employees carrying work private bill device notoriously clumsy simplified recovery procedure mass claims imperative act congress solution affording instead easy simple access federal courts torts within scope meaning governmental regulatory function exception suits shows clearly history tort claims bill congress passed act held relevant hearings instead integrated language congress first considered exception legislative reorganization act title iv earlier tort claims bills considered congress contained reservations abdication sovereign immunity prior exceptions couched terms specific spheres federal activity postal service activities securities exchange commission collection taxes however congress drafted twofold elimination claims based execution regulation statute exercise discretionary function language bills introduced house senate fact identical adopted exception drafted clarifying amendment house bill assure protection government tort liability errors administration exercise discretionary functions assistant attorney general appearing committee especially purpose explained avoiding possibility act may construed authorize damage suits government growing legally authorized activity merely conduct private individual tortious intended constitutionality legislation legality regulations propriety discretionary administrative act tested medium damage suit tort holds true administrative action regulatory nature expenditure federal funds execution federal project like referring prior bill contained discretionary function exemption house committee judiciary advised cases embraced within new subsection exempted prior bill judicial construction probable courts extend tort claims act realm validity legislation discretionary administrative action makes specific legislative history indicates congress desired waive government immunity actions injuries person property occasioned tortious conduct agents acting within scope business contemplated government subject liability arising acts governmental nature function section draws distinction uppermost collective mind congress ordinary torts example reiterated course repeated proposals submitting tort liability negligence operation vehicles hand committee reports explain boundaries sovereign immunity waived defined exception one paragraph appears time house report congress adopted limitation language proposed congress adopted committee almost language assistant attorney general explanation paragraph characterizes general exemption highly important exception intended preclude possibility bill might construed authorize suit damages government growing authorized activity irrigation project negligence part government agent shown ground suit contention conduct private individual tortious bill intended authorize suit damages test validity provide remedy account discretionary acts even though negligently performed involving abuse discretion ii turning interpretation act reasoning applicability disaster starts accepted jurisprudential principle action lies unless legislature authorized language act makes liable respecting provisions title relating tort claims manner extent private individual like circumstances statute another example progressive relaxation legislative enactments rigor immunity rule statutes change law organized government expresses social purposes motivate legislation course modifications entitled construction accomplish aim one carry legislative purpose allowing suits government negligence due regard statutory exceptions policy interpreting exceptions generality grant courts include circumstances within words reason exception less since petitioners obtain right sue congress necessarily must take subject restrictions imposed federal housing administration burr decisions interpreted act require clear relinquishment sovereign immunity give jurisdiction tort actions jurisdiction clear though allowed recovery despite arguable procedural objections one need read entirety conclude congress exercised care protect government claims however negligently caused affected governmental functions negligence administering alien property act establishing quarantine assault libel fiscal operations barred analysis exception concerned emphasizes congressional purpose except acts charged negligence authorization sue noted form section see supra two phrases describing excepted acts government employees first deals acts omissions government employees exercising due care carrying statutes regulations whether valid bars tests tort action legality statutes regulations second applicable case excepts acts discretion performance governmental functions duty whether discretion involved abused agencies government covered employees exercising discretion clear clause abuse connotes negligence wrongful acts exercise discretion act covers negligent wrongful act omission employee within scope office private person liable exercise discretion abused without negligence wrongful act committee reports note supra show say preclude action abuse discretionary authority whether negligence alleged involved speak excepting remedy account discretionary acts even though negligently performed involving abuse discretion know draftsmen intend relieve government liability torts automobile collision caused negligence employee see supra administering agency know intended cover administration statute regulation appears disjunctively second phrase section discretion protected section judge power decide within limits positive rules law subject judicial review discretion executive administrator act according one judgment best course concept substantial historical ancestry american law contention met petitioners arguments accept foregoing close narrow reasoning appeals unrealistic say program undertaking operation however like may private corporation operation manufacture explosive nevertheless throughout discretionary concept thereof born discretion petitioners assert manufacturing fgan government charged discretionary function opportunity discretion charged duty due reasonable care always applied theory discretionary function executive legislative levels made function basis freedom interference courts personal one particular executive legislative branch discretionary function may delegated subordinates others government argument adopted judge rives responsible government employees choosing alternative course action steps took argument alleged negligence exercise discretion simply involved choice negligence involved far removed cabinet decision provide aid germans japanese directed mistakes judgment careless oversight government employees carrying program manufacturing shipping fertilizer failed concern reasonable man safety others congress delegated ordnance discretion thus commit wrong iii decision institute fertilizer export program discretionary act seriously disputed think doubt need experimentation fgan determine possibility explosion conditions likely encountered shipping combustibility matter determined discretion charge production obviously manufactured shipped commodity fgan three years without even minor accidents need experimentation matter discretion reported instances heating bag damage investigated experiments extent deemed necessary carried dealing ammonium nitrate form industry course ordnance well aware care must taken best indication care necessary came experience fgan production tva produced fgan since experience indicated pp available ordnance used minute detail think matters governmental duties excepted act turn therefore specific acts negligence charged manufacture accordance done specifications directions fgan produced plants basic plan drafted office field director ammunition plants june prior beginning production drawn light prior experience private enterprise tva fact pointed based latter agency engineering techniques specifically adopted tva process description specifications plan distributed various plants inception program besides general condemnation manufacture fgan district cited four specific acts negligence manufacture acts looked upon negligence directed plan applicable excerpts follow bagging temperature fixed type bagging labeling thereof also established prp coating included specifications acts found negligent thus performed direction plan developed high level direct delegation authority apex executive department establishment plan delegated field director office supra clearly required exercise expert judgment seen instance matter coating prp added order insure water absorption stake mere matter taste ammonium nitrate wet cakes difficult spread fields fertilizer considerations dictated decisions crucial ones involving feasibility program balanced present knowledge effect coating general custom similar private industries assuming high bagging temperatures fact obtained district found decision bag temperature fixed also within exception maximum bagging temperatures first established tva specifications product exercise judgment requiring consideration vast spectrum factors including touched directly feasibility fertilizer export program clear instance appears several times record question bagging temperatures discussed army plant officials among others january bureau explosives association american railroads wrote ordnance concerning boxcar fire fgan letter suggested reduction bagging temperatures field director ammunition plants consulted commanding officers matter two plants manufactured texas city fgan replied loading effected however recommended reduced temperatures inadvisable possible keep product graining kettles longer period install cooling equipment methods result greatly increased production costs greatly reduced production kind decision one courts act empowered cite negligence especially light contemporary knowledge characteristics fgan well serious judgment involved specification bag labels bills lading importance rests fact latest point time geography government anything directly related fire bagging fgan course physically hands various agents since serious room speculation direct operative fact causing immediate fire grandcamp arose errors french council longshoremen ship staff committed important petitioners emphasize seriousness alleged labeling mistake though falls within exception acts discretion plan prepared regard transportation officer director office decision matter dictated icc regulations provide specific classification material fertilizer labeling anything oxidizing material required indeed probably forbidden even requirement waived bags less pounds extent army choice matter decision seek list fgan fashion within exception immunity decision labeling fact quite clearly shown fact icc regulations instance attacked claimants act virtue first phrase short alleged negligence subject government liability decisions held culpable responsibly made planning rather operational level involved considerations less important practicability government fertilizer program must knowledge danger merely possible probable macpherson buick motor nothing startling adduced entirety evidence compels view fgan material former experience showed handled safely manner handled even one suggested ignition fgan anything complex result interacting factors mass heat pressure composition iv district holding coast guard agencies negligent failing prevent fire regulating storage loading fertilizer different fashion like specific citations negligence discussed classically within exception power adopt regulations preservation public health pass ordinances prescribing regulating duties policemen firemen generally regarded discretionary nature legislative weightman corporation washington black courts traditionally refused question judgments based zywicki jos foard gutowski mayor baltimore md state general stevedoring alleged failure fighting fire think without act act create new causes action none existed liability assumed government created circumstances circumstances might create find parallel liability think new one created act effect waive immunity recognized causes action visit government novel unprecedented liabilities feres though findings specific general negligence support judgment government liability yet disposed slight residue theory absolute liability without fault reflected district finding fgan constituted nuisance contention petitioners agree six judges appeals act extend situations though course well known tort law generally invoked negligent wrongful act omission employee absolute liability course arises irrespective tortfeasor conducts imposed automatically damages sustained result decision engage dangerous activity degree care used performing activity irrelevant application doctrine statute requires negligent act judgment liability arise virtue either ownership inherently dangerous commodity property engaging activity hull petitioners rely word wrongful though showing something addition negligence covered argument pointed override fact act require brand misfeasance nonfeasance extend liability without fault addition legislative history word indicates clearly added jurisdictional grant overtones absolute liability theory rather committee discussion indicates much narrower inspiration trespasses might considered strictly negligent hearings subcommittee senate committee judiciary sess absolute liability theory intended injected act much suitable models found see suits admiralty act stat regard maintenance cure street tort liability state federal tort claims act crown proceedings act rev affirmed mr appendix opinion manufacture shipping distribution handling fertilizer begun experiments events incidents defendant knew defendant known use diligence reasonable prudent person showing fertilizer dangerous standpoint fire explosion knowledge defendant ceased manufacture sale fertilizer taken steps insure safety persons manufacturing handling fertilizer public defendant manufacturing fertilizer particularly fertilizer grandcamp high flyer formula made evolved defendant direction used coating fertilizer substance substances rendered highly susceptible fire explosion various types coating coating finally used made fertilizer dangerous explosive fire hazard one thing think coating made commodity one dangerous explosives fertilizer defendant direction placed sacked bags made paper substances easily ignited contact fire spontaneous combustion spontaneous ignition fertilizer bags also became torn ragged shipping particles bags became mixed fertilizer rendered dangerous susceptible fire explosion fertilizer placed packed bags high degrees temperature temperature rendered fertilizer susceptible fire explosion fertilizer packed cool continued high temperature shipped particularly true fertilizer exploded steamships grandcamp high flyer packed sacks high degree temperature temperature continued slight reduction fertilizer shipped across nation texas city loaded onto steamships defendant negligent manner marked labelled sacks fertilizer including fertilizer grandcamp high flyer labelled marked dangerous explosive fire hazard required rules regulations interstate commerce commission duty defendant well knowing dangerous nature character fertilizer defendant shipped caused shipped texas city notify advise carriers handling including steamships grandcamp high flyer notify advise city state officers texas city dangerous nature character fertilizer end carriers employees officers possible protect public danger fires explosions fertilizer clearly fertilizer never manufactured beginning dangerous commodity dangerous nuisance footnotes hague conventions ii iv respecting laws customs war land article capable producing tons month military appropriation act stat military appropriation act stat latter mentioned directed toward fertilizer program hearings subcommittee senate committee appropriations sess see also res stat may specifically appropriating moneys relief assistance kinds least two companies addition hercules producing fgan commercially thousand tons fgan shipped texas city previous six months grandcamp exploded hour fire noticed meanwhile captain ship ordered personnel hatches closed steam introduced holds admit normal procedure aboard ships less effective case oxidizing properties fgan whether captain negligent called upon say therefore required weigh finding anew clearly erroneous characterized profuse prolific sweeping agree fed rules civ rule terms contemplates system findings fact concise difficulty distinguishing law fact clearly absolve district courts duty hard complex cases make studied effort toward definiteness statements conclusory nature eschewed favor statements preliminary basic facts district relied kelley everglades drainage district cases cited otherwise findings useless appellate purposes particular case proper review exercised taking fact findings negligence face value extent law course binding appeal great atlantic pacific tea supermarket equipment concurring opinion congress private claim bills introduced became law seventieth congress private claim bills introduced asking enacted appropriating amount tort congresses private claim bills introduced seeking congress approximately bills introduced approved total congress private claim bills introduced referred claims committee approved total congress bills introduced approved total certain tentative experiments direction noted congress established claims consented suit therein claims based contract federal law regulation consent enlarged include cases damages sounding tort time district courts given concurrent jurisdiction claims congress consented suits claims patent infringement government took operation railroads first world war congress made subject responsibility property damage personal injury death private owners government consented suits district courts upon admiralty maritime torts involving government vessels without limitation amount committee hearings learn previous years witnessed steady encroachment upon originally unbroken domain sovereign immunity legal process delicts agents yet large highly important area remained satisfactory remedy provided wrongs government officers employees ordinary common law type tort personal injury property damage caused negligent operation automobile hearings house committee judiciary specific exceptions appeared first amendment sess amendment offered floor house cong rec see also sess sess sess sess first broad governmental exemption considered provided government liable ny claim account effect alleged effect act congress executive order president department independent establishment hearings house committee judiciary pp hearings house committee judiciary pp statement assistant attorney general francis shea hearings committee judiciary hearings subcommittee house committee claims general tort bill hearings subcommittee house committee judiciary pp hearings subcommittee senate committee judiciary hearings house committee judiciary pp hearings pp cong rec congressional thought centered granting relief accidents distinguished injury performing discretionary governmental functions indicated message president franklin roosevelt congress recommending passage tort claims statute president favored limit jurisdiction spoke chiefly interference numerous bills introduced around two thousand congress simplification procedure recovery cong rec hearings hearings pp hearings cong rec cong rec see also note see pp hearings house com judiciary paragraph reads follows section specifies claims covered bill first subsection section exempts bill claims based upon performance nonperformance discretionary functions duties part federal agency government employee whether discretion involved abused claims based upon act omission government employee exercising due care execution statute regulation whether valid highly important exception intended preclude possibility bill might construed authorize suit damages government growing authorized activity irrigation project negligence part government agent shown ground suit contention conduct private individual tortious statute regulation authorizing project invalid also designed preclude application bill claim regulatory agency federal trade commission securities exchange commission based upon alleged abuse discretionary authority officer employee whether negligence alleged involved take another example claims based upon allegedly negligent exercise treasury department blacklisting freezing powers also intended excepted bill intended authorize suit damages test validity provide remedy account discretionary acts even though negligently performed involving abuse discretion desirable intended constitutionality legislation legality rule regulation tested medium damage suit tort however torts employees regulatory agencies included within scope bill extent torts nonregulatory agencies thus section exempting claims arising administration trading enemy act fiscal operations treasury intended exclude torts automobile collision caused negligence employee treasury department federal agency administering functions feres shaw eckford wall cf blackstone book sovereignty yellow cab keifer keifer reconstruction finance corporation dickson pet walling jacksonville paper phillips walling feres held act waive immunity tort actions injuries three members armed forces active duty injuries allegedly caused negligence employees existence uniform compensation system injuries belonging armed services led us conclude congress intended depart system allow recovery tort action dependent state law recovery permitted service man nonservice disabilities brooks spelar held courts jurisdiction try tort action injury federal employee complainant accident air base newfoundland conclusion reached exception claim arising foreign country sovereignty extend base aetna casualty surety insurance company subrogee person injured may bring suit act spite statute yellow cab may sued contribution also impleaded third party defendant statute unique jurisprudence explicit exception discretion english crown proceedings act contains nothing directly comparable though see saving prerogative crown halsbury statutes england ed extent provision entirely clear halsbury laws england ed assumes term cover wide area official activities including rules regulations exercise discretionary authority customary officers departments parliamentary enactments street tort liability state rev however seems indicate principal protection exercise official discretion come accepted principles common law torts public officials acting within delegated authority see also barnes crown proceedings act canadian bar review crown proceedings act new zealand australia new zealand similar statutes years left open grave doubt far intended acts give subject rights action result interfere seriously ordinary administrative work government enever king com see also davidson walker hawley steele ch quoted therein words think discretion vested executive government authority military matters determine various military purposes land may fairly required particular land question appropriated judge say made bad selection employee government includes members military naval forces persons acting behalf federal agency official capacity indeed held district courts dismissed complaints charging negligence following government confession avoidance plea acts alleged culpable fell within exception boyce supp coates denny olson supp toledo supp thomas supp seems sufficient cite marbury madison cranch spalding vilas alzua johnson louisiana mcadoo perkins lukens steel course american state cases premised similar policy judgment barrett state new york goldstein state new york similarly england courts wary penalize discretionary acts public bodies one interesting cases field east suffolk rivers catchment board kent involving certain allegedly negligent activities board draining inundated lands private plaintiffs lord romer stated board enabling act merely power drain whether exercise power matter entirely within discretion know authority proposition selecting time within extent method statutory power exercised board owes duty whatsoever see also sheppard glossop corporation statute leaves corporation discretion whether light district part long lamps shall kept lit portion district elect light see also whiting middlesex county council courts passed upon application suits tort claims act interpreted exception discretionary functions generally conformity holding negligence policies plans authorized governmental activities support damage suits plaintiff boyce supp charged suffered damage virtue certain blasting operations way affirmative defense showed blasting conducted pursuant detailed plans specifications drawn chief engineers turn specifically delegated discretion broadest character draft plan deepening mississippi river channel exception applied several cases like import dealing execution waterway projects coates damages sought injury crops land action government negligently changing course missouri held jurisdiction existed act case followed north supp plaintiff denied recovery injury cellar cesspool occasioned government dam raised level local ground water like result obtained lauterbach supp claimant sued recover damages resulting release flood waters bonneville dam olson supp involved another claim water damage case employees fish wildlife service alleged wilfully intentionally opened flood gates certain dam causing loss plaintiff livestock dam operated purpose storing water propagating fish wildlife held flood waters released much water released certainly calls exercise judgment sickman also invoked plaintiff unsuccessfully sought recovery crop depredations wild birds induced feed land nearby governmental game preserve toledo supp plaintiff automobile damaged partially rotten tree falling perchance time parked tree planted grown government plant experimental station puerto rico open public instruction observation opinion holds operation station decision plant preserve particular tree experimental purposes peculiarly within discretion appropriate employees station negligent removal plan contains tabulation installations involved together pertinent information installations use part connection part rates production description production processes information inspection acceptance information shipping storage part include requirements production facilities recommendations operation facilities problems methods involved administration covered succeeding parts provisions chapter section title shall apply claim arising activities tennessee valley authority see appendix opinion water shall turned discharging kettle commenced temperature reaches relevance bagging temperature apparently stemmed certain testimony large masses fgan maintained temperatures around might spontaneously ignite certain conditions mass confinement government proffered extensive evidence however fgan shipped texas city leave plants nearly temperature course evidence temperature loaded ships packaging ammonium nitrate fertilizer shall packed lbs per bag moisture proof paper burlap bags described shall used specifications size may altered meet manufacturer requirement follow detailed specifications marking fertilizer ammonium nitrate nitrogen notice contents appeared bill lading far important follows bags fertilizing compounds manufactured fertilizer noibn dry paper bags prp mixture composed one part paraffin three parts rosin one part petrolatum thoroughly mixed melted provides coating repels moisture holds clay place around granule captain hirsch commanding one three plants manufactured texas city fgan wrote field director office requesting office stipulate maximum temperature fertilizer may loaded order eliminate bag deterioration heat reply office stated discussions concerning loading temperature lower ammonium nitrate fertilizer felt matter process control properly item incorporated specifications hirsch interpreted meaning facility take active interest condition ammonium nitrate fertilizer reaches destination reply field director office labeled distortion statement concerning bagging temperature matter process control indifference aspect acceptability suitability specifications left unchanged bags bagging temperatures justice jackson joined justice black justice frankfurter dissenting day april longshoremen loaded bags ammonium nitrate fertilizer aboard grandcamp docked texas city texas shortly next morning work resumed smoke seen coming hold discovered fire broken fertilizer ship master ordered hatch covered battened steam introduced hold local apparatus soon arrived combined efforts extinguish fire unavailing less hour smoke first seen tons fertilizer hold exploded turn detonated fertilizer stored hold fire spread dock area texas city high flyer berthed adjoining pier carrying cargo sulphur ammonium nitrate fertilizer efforts extinguish even contain fire failed tugs unsuccessfully attempted tow high flyer sea shortly one morning april sulphur fertilizer aboard high flyer exploded demolishing ship wilson keene lying alongside persons perished holocaust injured entire dock area thriving port leveled property damage ran millions dollars disaster sense act god fertilizer manufactured plants government order specifications shipped direction part program foreign aid disaster caused forces set motion government completely controlled controllable causative factors far beyond knowledge control victims incapable contributing even take shelter flight suits brought federal tort claims act alleging negligence responsible disaster consolidating suits district ordered case present petitioners tried parties suits effect agreed common issue government negligence abide outcome test litigation appeals fifth circuit reversed trial judgment favor petitioners supporting reversal government urges private person liable circumstances even private person liable government saved liability statute exception discretionary acts one cases judge likely leave door enters told master craft theory liability philosophy end served tightening enlarging circle rights remedies root decision novel situations analogies equivocal precedents silent begin avowing conception function legal liability cases quite obviously variance approach congress defined tort liability government analogous private person traditionally one function civil liability negligence supply sanction enforce degree care suitable conditions contemporary society appropriate circumstances case civil damage action prosecuted adjusted private initiative neither burdening overworked criminal processes confined limits criminal liability one law effective inducements watchfulness prudence necessary avoid calamity hazardous operations midst unshielded populace recently influence federal government exerted field tort law tighten liability liberalize remedies congress even imposed criminal liability without regard knowledge danger intent potentially dangerous articles introduced interstate commerce government brought tort defendant proper zeal lawyers win case less commendable zeal officials involved conceal minimize carelessness militate trend government defendant exert unctuous persuasiveness clothe official carelessness public interest hence one unanticipated consequences tort claims act throw weight government influence side lax standards care negligence cases defends fear adoption government view case may inaugurate unfortunate trend toward relaxation private well official responsibility making vending transporting inherently dangerous products considering everyday commodities commerce products nature complex compound proven event highly dangerous known beginning lie somewhere within range dangerous ammonium nitrate points long used component explosives grade manufactured explosives patent plants formerly used manufacture ordnance general supervision army chief ordnance local direction army field director ammunition plants advice detailed operations sought experienced commercial producers high explosives du ponts atlas hercules powder concerns slightest basis official belief innocuous product reliance reservation governmental immunity acts discretion avoids direct pronouncement duty owing government circumstances sound overtones undertones disagree hold government liable avoid consideration basic criteria courts determine liability conditions modern life day synthetic living extent population dependent upon mass producers food drink cures complexions apparel gadgets longer natural simple products complex ones whose composition qualities often secret dependent society must exact greater care simple days must require manufacturers producers increased integrity caution protection safety purchasers try drugs determine whether kill cure consumers test youngster cowboy suit wife sweater see apt burst fatal flames carriers land sea experiment combustibility goods transit experiment research necessary determine presence degree danger product must tried public must public expected possess facilities technical knowledge learn inherent latent dangers claim hazard foreseen available one use foresight appropriate enterprise courts slowly steadily adapting law negligence conditions law statute determines government liability place negligent act omission occurred fertilizer manufactured iowa nebraska thence shipped texas speculation negligence occurred unnecessary since jurisdictions recognizes general proposition manufacturer liable defects product avoided exercise due care specific state decisions point federal judges may turn general doctrines accepted tort law whence state judges derive governing principles novel cases believe whatever source look law case source modern case supports exaction higher degree care possibly found exercised believe better view whoever puts circulation commerce product known even suspected potentially inflammable explosive obligation know product ascertain forces turning loose often case dangerous product also useful one strict duty follow step distribution warning dangers information directions keep dangers minimum obvious choice hold government liability nothing heavy indeed magnitude potential liability due enormity disaster multitude victims size catastrophe excuse liability face eloquently pleads resulted prudently operated government project injury sudden sweeping lie fallen least raise immediate doubts whether one discretionary operations congress sought immunize liability statement general approach liability issue turn application case order show even private person liable government must show trial findings fact clearly erroneous points claims patent errors lengthy findings made upon record pages printed volumes apparently urges upon us rule error uno error omnibus agree even many errors record impeach findings conclude individual finding must stand fall basis evidence support trial judge found explosions resulted fire fertilizer started process akin spontaneous combustion government negligent failing anticipate take precautions occurrence government attack purely factual determination trial judge seems us utterly unconvincing reputable experts testified opinion fire caused spontaneous combustion government contention probably caused someone smoking hold brought forth sharp conflict testimony error adopting one two permissible inferences fire origin view absence warning fgan inflammable explosive think smoking longshoremen job abnormal phenomenon evidence showed type fertilizer manufactured four years time explosion texas city petitioners experts testified belief least segment informed scientific opinion time regarded ammonium nitrate potentially dangerous especially combined carbonaceous material fertilizer one witness hired war production board conduct tests explosion fire hazards product board terminated tests intermediate stage recommendation laboratory face suggestion research might point suspected unverified dangers addition considerable history period years unexplained fires explosions involving ammonium nitrate zeal skill government counsel distinguish fires facts appears exceed experts whose testimony rely government endeavored impeach opinions petitioners experts introduced experts sought show private persons manufactured similar fertilizer took precautions government situation even simplest government official anticipate likelihood close packing large masses sea shipment aggravation attendant dangers risk involved explosion train ship perhaps congested rail yard dock producer entitled matter law treat industry practice conclusive guide due care otherwise one free disaster permitted new product sanction civil liability thrown side high standards safety unnecessary many findings negligence trial judge survive clearly erroneous test appellate review without passing rest findings find duty inquiry negligence shipment failure warn sufficient support judgment construe latter findings meaning omission process bagging shipping failure warn standing alone imposed liability government rather due care consistent seriatim resolution every conflict safety expediency favor latter certainly hold private corporation liable situation statute imposes liability upon government unless bring within act exception turn government insists act omission upon charge negligence predicated decisions discontinuing investigation hazards bagging high temperature use material absence labeling warning involved conscious weighing expediency caution therefore within immunity discretionary acts provided tort claims act argues way showing construction reservation completely swallow waiver immunity discretionary decisions distinguished made truck driver speed travel keep latter within realm liability predicate liability decision taken cabinet level thinking course tort government govern decision aid foreign agriculture making delivering fertilizer actionable wrong find indication deliberations decision made take calculated risk done way done chance happen might happen therefore deterred fear governmental liability case make discretion executives administrators timid restrained however decisions made cabinet levels temperature bagging explosive fertilizers whether paper suitable bagging hot fertilizer bags labeled perhaps increased sense caution responsibility even height wholesome common sense matter policy adopted exercise immune discretion carried carelessly charge detail agree way line immunity every balancing care cost safety production warning silence ground statutory language clear government seeks support view resort selections inconclusive legislative history refer margin appropriate excerpts spite reliance believe support conclusion case government also relies body law developed field municipal liability torts deal discretionary opposed ministerial acts whatever substantiality dichotomy cases interpreted hopeless confusion used discretionary ministerial interchangeably proprietary governmental others rather uncritically borrowed terminology law mandamus even cases cited government hold although municipality may held decision undertake project liable negligent execution upkeep think statutory language reliable legislative history basis rule regarding municipalities point useful proper distinction preserved statute urged government official exerts governmental authority manner legally binds one many acting way private person activities designed affect often deleteriously affairs individuals courts long recognized public policy official shall controlled solely statutory administrative mandate added threat private damage suits example attorney general liable false arrest circumstances private person performing act liable cases multiplied official act might inflict great injury might wrong private person official answerable exception clause tort claims act protects public treasury common law protect purse acting public official many acts government officials deal housekeeping side federal activities government landowner manufacturer shipper warehouseman shipowner operator carrying activities indistinguishable performed private persons area good reason stretch legislative text immunize government officers responsibility acts done without appropriate care safety others many official decisions even area may involve nice balancing various considerations kind balancing citizens peril think within exception statute government negligence policy decisions regulatory governmental nature involved actions akin private manufacturer contractor shipper reading discretionary exception way workable faithful legislative intent hold government liable circumstances surely statute long debated meant embrace traffic accidents ancient discredited doctrine king wrong uprooted merely amended read king little wrongs texas city disaster litigation cardozo growth law emphasis see federal employers liability act et abolished defense assumption risk changed contributory negligence complete bar recovery factor mitigated damages jones act et gave cause action employers seamen substantive rules federal employees compensation act et government set compensation system employees longshoremen harbor workers compensation act et sets system workmen compensation described employees imposes liability without fault employers cases arising act government party judicial review award representing interests claimant see boyce motor lines judge lummus judicial massachusetts articulated development carter yardley mass opinion contains perhaps decisive statement trend earlier landmark opinion judge cardozo new york appeals macpherson buick motor following cases represent examples type claims based damage complex manufactured products come appellate tribunals present day coleman gray absence safety device gasoline vapor pressing iron roettig westinghouse mfg supp explosion heating unit electric stove escola coca cola bottling fresno cal defect coca cola bottle gall union ice cal app absence warning label drum sulfuric acid burst lindroth walgreen defective vaporizer melted causing fire burned plaintiff ebers general chemical damage chemical designed kill borers willey fyrogas mo defect automatic cutoff valves gas heater di vello gardner machine ohio com pl disintegrating grinding wheel saena zenith optical exploding glass coffee maker recovery cases emphasized manufacturer owes duty care certain classes people might injured defects product mcafee travis gas tex texas drug caldwell tex civ app writ dismissed tegler farmers union gas oil neb recently circuit judge duffy discussing iowa law applicable diversity suit federal said iowa yet passed squarely question opinion follow weight authority anderson linton older iowa case imposes duty care dealers potentially dangerous substances least contractual privity ellis republic oil iowa even government rely absence contractual privity bar petitioners recovery rule fed rules civ proc following excerpts findings trial judge defendant learned many facts pursue investigation far enough learn facts negligently stopped short learning facts facts learn however sufficient give defendant knowledge put defendant notice upon inquiry pursued led knowledge notice fertilizer decided began manufacture inherently dangerous hazardous material dangerous explosive fire hazard defendant negligent manner prepared fertilizer including fertilizer grandcamp high flyer shipment fertilizer defendant sic direction placed sacked bags made paper substances easily ignited contact fire spontaneous combustion spontaneous ignition fertilizer bags also became torn ragged shipping particles bags became mixed fertilizer rendered dangerous susceptible fire explosion negligence proximate cause fires explosions injuries plaintiffs complain defendant negligent delivering causing delivered fertilizer including fertilizer grandcamp high flyer placed paper bags railroad carriers shipped without informing carriers dangerous inflammatory explosive character dangerous persons handling public negligence proximate cause fires explosions injuries plaintiffs complain provisions chapter section title shall apply claim based upon act omission employee government exercising due care execution statute regulation whether statute regulation valid based upon exercise performance failure exercise perform discretionary function duty part federal agency employee government whether discretion involved abused see opinion believe oftrepeated paragraph appearing house reports shows quite plainly meant type discretion government agencies exercise regulating private individuals majority chooses instead fix amorphous meaning word delimit exception whether act discretionary exercised discretion statute contains vaguest intimation test leaves actionable misconduct file clerks truck drivers see patterson ministerial discretionary official acts rev keeley portland cumberland turney md gallagher tipton mo app gregoire biddle spalding vilas postmaster general wilkes dinsman officer marine corps otis watkins cranch deputy collector customs yaselli goff aff special assistant attorney general overwhelming weight authority effect see jur