MR. JUSTICE REED delivered the opinion of the Court.
Petitioners seek damages from the United States for the death of Henry G. Dalehite in explosions of fertilizer with an ammonium nitrate base, at Texas City, Texas, on April 16 and 17, 1947. This is a test case, representing some 300 separate personal and property claims in the aggregate amount of two hundred million dollars. Consolidated trial was had in the District Court for the Southern District of Texas on the facts and the crucial question of federal liability generally. This was done under an arrangement that the result would be accepted as to those matters in the other suits. Judgment was rendered following separate proof of damages for these individual plaintiffs in the sum of $75,000. Damages in the other claims remain to be determined. The Court of Appeals for the Fifth Circuit unanimously reversed, however, In re Texas City Disaster Litigation, 197 F.2d 771, and we granted certiorari, 344 U.S. 873, because the case presented an important problem of federal statutory interpretation.
The suits were filed under the Federal Tort Claims Act, 28 U. S. C. §§ 1346, 2671-2678, 2680. That Act waived sovereign immunity from suit for certain specified torts of federal employees. It did not assure injured persons damages for all injuries caused by such employees.
The Act provides that the federal district courts, "[s]ubject to the provisions of [the act]," are to have:
There is an exception from the scope of this provision. Section 2680 reads:
Suing under this grant of jurisdiction, the plaintiffs claimed negligence, substantially on the part of the entire body of federal officials and employees involved in a program of production of the material—Fertilizer Grade Ammonium Nitrate (FGAN hereafter)—in which the original fire occurred and which exploded. This fertilizer had been produced and distributed at the instance, according to the specifications and under the control of the United States.
The adaptability of the material for use in agriculture had been recognized long prior to 1947. The Government's interest in the matter began in 1943 when the TVA, acting under its statutory delegation to undertake experiments and "manufacture" fertilizer, 48 Stat. 61, 16
The particular FGAN involved at Texas City came to be produced for foreign use for these reasons: Following the World War II hostilities, the United States' obligations as an occupying power,
FGAN's basic ingredient was ammonium nitrate, long used as a component in explosives. Its adaptability as a fertilizer stemmed from its high free nitrogen content. Hercules Powder Company had first manufactured a fertilizer compound in this form on the basis of Cairns' Explosive Patent, No. 2,211,738, of August 13, 1940. The Cairns process contemplates a product substantially identical to the Texas City FGAN. The process was licensed to the United States. The Government produced ammonium nitrate at certain other federal plants, and shipped it in solution to the reactivated graining centers for concentration. Thereafter, in addition to clay, a mixture of petrolatum, rosin and paraffin (PRP hereafter) was added to insure against caking through water absorption. The material was then grained to fertilizer specification, dried and packaged in 6-ply paper bags, marked "Fertilizer (Ammonium Nitrate)."
At the inception of the program, however, it appeared that these particular plants were unable to produce sufficient quantities of fertilizer to meet the early needs of the planned allocation. So early shipments to the occupied territories were made up of lots privately produced, and released to the War Department by the Combined Food Board and purchased by the United States, pursuant to an allocation arrangement approved by the Board acting through the Civilian Production Administration, established by Exec. Order 9638, October 4, 1945, 10 Fed. Reg. 12591. Thereafter the private producers could
The particular FGAN transported to Texas City had been produced at three of the plants activated by the Government for the foreign fertilizer program, and allotted to the Lion Oil Co., which had previously sold FGAN to the Army pursuant to their sell-back agreement. The agreement provided that title was to pass to Lion on payment. The original contract of sale to the Army having provided that Lion could designate a recipient other than itself for the replacement FGAN, Lion contracted with the Walsen Company for resale. Walsen operated as broker for the French Supply Council representing the French Government which had secured a preferential fertilizer allocation from the Civilian Production Administration. Pursuant thereto Walsen transmitted the French shipping orders to Lion who turned them over to the Army for execution. The FGAN was consigned to the French Supply Council at Texas City by government bills of lading. The Council insured the shipment in its own name, arranged for credit with New York banks and assigned part thereof to Lion, sufficient to cover the shipments here involved, payable on presentation of shipping documents. It also directed Lion to "consign all lots French Supply Council for storage and eventual exportation Texas City Terminal Texas."
By April 15, 1947, following three weeks' warehouse storage at Texas City on orders of the French Council, some 1,850 tons of the FGAN thus resold had been loaded on the French Government-owned steamship Grandcamp, and some 1,000 tons on the privately owned High Flyer by independent stevedores hired by the French.
Since no individual acts of negligence could be shown, the suits for damages that resulted necessarily predicated government liability on the participation of the United States in the manufacture and the transportation of FGAN. Following the disaster, of course, no one could fail to be impressed with the blunt fact that FGAN would explode. In sum, petitioners charged that the Federal Government had brought liability on itself for the catastrophe by using a material in fertilizer which had been used as an ingredient of explosives for so long that industry knowledge gave notice that other combinations of ammonium nitrate with other material might explode. The negligence charged was that the United States, without definitive investigation of FGAN properties, shipped or permitted shipment to a congested area without warning of the possibility of explosion under certain conditions. The District Court accepted this theory. His judgment was based on a series of findings of causal negligence which, for our purposes, can be roughly divided into three kinds—those which held that the Government had been careless in drafting and adopting the fertilizer export plan as a whole, those which found specific negligence in various phases of the manufacturing process and those which emphasized official dereliction of duty in failing to
I. The Federal Tort Claims Act was passed by the Seventy-ninth Congress in 1946 as Title IV of the Legislative Reorganization Act, 60 Stat. 842, after nearly thirty years of congressional consideration. It was the offspring of a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work. And the private bill device was
Earlier tort claims bills considered by Congress contained reservations from the abdication of sovereign immunity. Prior to 1942 these exceptions were couched in terms of specific spheres of federal activity, such as postal service, the activities of the Securities and Exchange Commission, or the collection of taxes.
The legislative history indicates that while Congress desired to waive the Government's immunity from actions for injuries to person and property occasioned by the tortious conduct of its agents acting within their scope of
II. Turning to the interpretation of the Act, our reasoning as to its applicability to this disaster starts from the accepted jurisprudential principle that no action lies against the United States unless the legislature has authorized it.
So, our decisions have interpreted the Act to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions.
One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions. Negligence in administering the Alien Property Act, or in establishing a quarantine, assault, libel, fiscal operations, etc., was barred. An analysis of § 2680 (a), the exception with which we are concerned, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue.
So we know that the draftsmen did not intend it to relieve the Government from liability for such common-law torts as an automobile collision caused by the negligence of an employee, see p. 28, supra, of the administering agency. We know it was intended to cover more than the administration of a statute or regulation because it appears disjunctively in the second phrase of the section. The "discretion" protected by the section is not that of the judge—a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.
This contention is met by petitioners with these arguments:
It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot from a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators
We turn, therefore, to the specific acts of negligence charged in the manufacture. Each was in accordance with, and done under, specifications and directions as to how the FGAN was produced at the plants. The basic "Plan" was drafted by the office of the Field Director of Ammunition Plants in June, 1946, prior to beginning production.
Besides its general condemnation of the manufacture of FGAN, the District Court cited four specific acts of negligence in manufacture.
This is to be seen, for instance, in the matter of the coating. The PRP was added in order to insure against water absorption. At stake was no mere matter of taste; ammonium nitrate when wet cakes and is difficult to spread on fields as a fertilizer. So the considerations that dictated the decisions were crucial ones, involving the feasibility of the program itself, balanced against present knowledge of the effect of such a coating and the general custom of similar private industries.
And, assuming that high bagging temperatures in fact obtained as the District Court found, the decision to bag at the temperature fixed was also within the exception. Maximum bagging temperatures were first established under the TVA specifications. That they were the product of an exercise of judgment, requiring consideration of a vast spectrum of factors, including some which touched directly the feasibility of the fertilizer export program, is clear. For instance, it appears several times in the record that the question of bagging temperatures was discussed by the Army plant officials, among others. In January, 1947, the Bureau of Explosives of the Association of American Railroads wrote to Ordnance concerning a boxcar fire of FGAN. The letter suggested a reduction of bagging temperatures. The Field Director of Ammunition Plants consulted the commanding officers on the matter. Those of two of the plants which manufactured the Texas City FGAN replied that loading was effected at about 200°. Both, however, recommended that reduced temperatures would be inadvisable. It would be possible to keep the product in graining kettles for a longer
As well, serious judgment was involved in the specification of the bag labels and bills of lading. The importance of this rests on the fact that it is the latest point in time and geography when the Government did anything directly related to the fire, for after bagging the FGAN was of course physically in the hands of various non-governmental agents. So, since there was serious room for speculation that the most direct operative fact causing the immediate fire on the Grandcamp arose from errors that the French Council, longshoremen or ship staff committed, it was and is important for the petitioners to emphasize the seriousness of the alleged labeling mistake.
This, too, though, falls within the exception for acts of discretion. The Plan had been prepared in this regard
In short, the alleged "negligence" does not subject the Government to liability. The decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government's fertilizer program.
"There must be knowledge of a danger, not merely possible, but probable," MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N. E. 1050, 1053. Here, nothing so startling was adduced. The entirety of the evidence compels the view that FGAN was a material that former experience showed could be handled safely in the manner it was handled here. Even now no one has suggested that the ignition of FGAN was anything but a complex result of the interacting factors of mass, heat, pressure and composition.
IV. The findings of negligence on the part of the Coast Guard in failing to supervise the storage of the FGAN, and in fighting the fire after it started, were rejected by a majority of the Court of Appeals. 197 F. 2d, at 777, 780, 781. We do not enter into an examination of these
The District Court's holding that the Coast Guard and other agencies were negligent in failing to prevent the fire by regulating storage or loading of the fertilizer in some different fashion is like his specific citations of negligence discussed above. They are classically within the exception. "The power to adopt regulations or by-laws. . . for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen . . . are generally regarded as discretionary, because, in their nature, they are legislative." Weightman v. Corporation of Washington, 1 Black 39, 49. The courts have traditionally refused to question the judgments on which they are based. Zywicki v. Jos. R. Foard Co., 206 F. 975; Gutowski v. Mayor of Baltimore, 127 Md. 502, 96 A. 630; State v. General Stevedoring Co., 213 F. 51.
As to the alleged failure in fighting the fire, we think this too without the Act. The Act did not create new causes of action where none existed before.
It did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Our analysis of the question is determined by what was said in the Feres case. See 28 U. S. C. §§ 1346 and 2674. The Act, as was there stated,
V. Though the findings of specific and general negligence do not support a judgment of government liability, there is yet to be disposed of some slight residue of theory of absolute liability without fault. This is reflected both in the District Court's finding that the FGAN constituted a nuisance, and in the contention of petitioners here. We agree with the six judges of the Court of Appeals, 197 F.2d 771, 776, 781, 786, that the Act does not extend to such situations, though of course well known in tort law generally. It is to be invoked only on a "negligent or wrongful act or omission" of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity. The degree of care used in performing the activity is irrelevant to the application of that
Petitioners rely on the word "wrongful" though as showing that something in addition to negligence is covered. This argument, as we have pointed out, does not override the fact that the Act does require some brand of misfeasance or nonfeasance, and so could not extend to liability without fault; in addition, the legislative history of the word indicates clearly that it was not added to the jurisdictional grant with any overtones of the absolute liability theory. Rather, Committee discussion indicates that it had a much narrower inspiration: "trespasses" which might not be considered strictly negligent. Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess. 43-44. Had an absolute liability theory been intended to have been injected into the Act, much more suitable models could have been found, see e. g., the Suits in Admiralty Act, 41 Stat. 525, 46 U. S. C. §§ 742-743, in regard to maintenance and cure. Street, Tort Liability of the State: The Federal Tort Claims Act and the Crown Proceedings Act, 47 Mich. L. Rev. 341, 350.
MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT.
The District Court's analysis of the specific aspects of the manufacture was foreshadowed by his theory of the foreseeability of the risk which he set out early in the findings. His first finding of fact contained these words: "This record discloses blunders, mistakes, and
"After the manufacture and/or the shipping, distribution, and handling of Fertilizer had begun, there were experiments, events and incidents of which Defendant knew, or of which Defendant could have known by the use of the diligence of a reasonable prudent person, showing such Fertilizer to be very dangerous, both from the standpoint of fire and explosion. With this knowledge, Defendant should have ceased the manufacture and sale of such Fertilizer, or should have taken steps to insure the safety of persons manufacturing and handling such Fertilizer and the public. . . ."
"Defendant in manufacturing such Fertilizer, and particularly the Fertilizer on the Grandcamp and High Flyer, did so by a Formula made and evolved by Defendant or under its direction. It used as a coating of such Fertilizer, a substance or substances which rendered same highly susceptible to fire or explosion. There were various types of coating, but the coating finally used made the Fertilizer a very dangerous explosive and fire hazard. More than any other one thing, I think this coating made this commodity one of the most dangerous of explosives, . . . ."
". . . Such Fertilizer was by Defendant, or under it[s] direction, placed or sacked in bags made from paper or other substances which were easily ignited by contact with fire or by spontaneous combustion or spontaneous ignition of the Fertilizer. Such bags also became torn and ragged in shipping and particles of the bags became mixed with
". . . Such Fertilizer was placed and packed in bags at high degrees of temperature, which temperature rendered the Fertilizer more susceptible to fire and explosion. Such Fertilizer was so packed that it did not cool, but continued at high temperature while being shipped. This was particularly true of the Fertilizer which exploded on the Steamships Grandcamp and High Flyer. Same was packed in sacks at a high degree of temperature, which temperature continued with only slight reduction, if any, when the Fertilizer was shipped across the nation to Texas City and there loaded onto such Steamships."
"Defendant was negligent in the manner in which it marked and labelled such sacks of Fertilizer, including the Fertilizer on the Grandcamp and High Flyer, in that same was not labelled and marked as a dangerous explosive and fire hazard as required by the Rules and Regulations of the Interstate Commerce Commission. . . .
". . . It was the duty of Defendant, well knowing as it did the dangerous nature and character of such Fertilizer which Defendant shipped or caused to be shipped to Texas City, to notify and advise all the carriers handling same, including the Steamships Grandcamp and High Flyer, and to notify and advise the City and State Officers at Texas City, of the dangerous nature and character of such Fertilizer, to the end that such carriers and their employees and such officers could, if possible protect themselves and the public against the danger of fires from and explosions of such Fertilizer."
The District Court concluded:
"Clearly such Fertilizer ought never to have been manufactured. From the beginning on down, it was a dangerous commodity and a dangerous nuisance."
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
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
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."
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 liability
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
Because of reliance on the reservation of governmental immunity for acts of discretion, the Court avoids direct pronouncement on the duty owing by the Government under these circumstances but does sound overtones and undertones with which we disagree. We who would hold the Government liable here cannot avoid consideration of the basic criteria by which courts determine liability in the conditions of modern life. This is a day of synthetic living, when to an ever-increasing extent our population is dependent upon mass producers for its food and drink, its cures and complexions, its apparel and gadgets. These no longer are natural or simple products but complex ones whose composition and qualities are often secret. Such a dependent society must exact greater care than in more simple days and must require from manufacturers or producers increased integrity and caution as the only protection of its safety and well-being. Purchasers cannot try out drugs to determine whether they kill or cure. Consumers cannot test the youngster's cowboy suit or the wife's sweater to see if they are apt to burst into fatal flames. Carriers, by land or by sea, cannot experiment with the combustibility of
Forward-looking courts, slowly but steadily, have been adapting the law of negligence to these conditions.
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.
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.
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
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
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.
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
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.
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.
We think that the statutory language, the reliable legislative history, and the common-sense basis of the rule regarding municipalities, all point to a useful and proper distinction preserved by the statute other than that urged by the Government. When an official exerts governmental authority in a manner which legally binds one or many, he is acting in a way in which no private person could. Such activities do and are designed to affect, often deleteriously, the affairs of individuals, but courts have long recognized the public policy that such official shall be controlled solely by the statutory or administrative mandate and not by the added threat of private damage suits. For example, the Attorney General will not be liable for false arrest in circumstances where a private person performing the same act would be liable,
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."
"In the Seventieth Congress 2,268 private claim bills were introduced, asking more than $100,000,000. Of these, 336 were enacted, appropriating about $2,830,000, of which 144, in the amount of $562,000, were for tort.
"In each of the Seventy-fourth and Seventy-fifth Congresses over 2,300 private claim bills were introduced, seeking more than $100,000,000. In the Seventy-sixth Congress approximately 2,000 bills were introduced, of which 315 were approved, for a total of $826,000.
"In the Seventy-seventh Congress, of the 1,829 private claim bills introduced and referred to the Claims Committee, 593 were approved for a total of $1,000,253.30. In the Seventy-eighth Congress 1,644 bills were introduced; 549 of these were approved for a total of $1,355,767.12." H. R. Rep. No. 1287, 79th Cong., 1st Sess., p. 2.
From the Committee hearings we learn that the previous 85 years had witnessed a steady encroachment upon the originally unbroken domain of sovereign immunity from legal process for the delicts of its agents. Yet a large and highly important area remained in which no satisfactory remedy had been provided for the wrongs of government officers or employees, the ordinary "common law" type of tort, such as personal injury or property damage caused by the negligent operation of an automobile. Hearings before the House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess., p. 24.
"Section 402 specifies the claims which would not be covered by the bill.
"The first subsection of section 402 exempts from the bill claims based upon the performance or nonperformance of discretionary functions or duties on the part of a Federal agency or Government employee, whether or not the discretion involved be abused, and claims based upon the act or omission of a Government employee exercising due care in the execution of a statute or regulation, whether or not valid. This is a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid. It is also designed to preclude application of the bill to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon an alleged abuse of discretionary authority by an officer or employee, whether or not negligence is alleged to have been involved. To take another example, claims based upon an allegedly negligent exercise by the Treasury Department of the blacklisting or freezing powers are also intended to be excepted. The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion. Nor is it desirable or intended that the constitutionality of legislation, or the legality of a rule or regulation should be tested through the medium of a damage suit for tort. However, the common-law torts of employees of regulatory agencies would be included within the scope of the bill to the same extent as torts of nonregulatory agencies. Thus, section 402 (5) and (10), exempting claims arising from the administration of the Trading With the Enemy Act or the fiscal operations of the Treasury, are not intended to exclude such common-law torts as an automobile collision caused by the negligence of an employee of the Treasury Department or other Federal agency administering those functions."
In United States v. Spelar, 338 U.S. 217, we held that our courts did not have jurisdiction to try a tort action for injury by a federal employee to a complainant because of an accident at our air base in Newfoundland. This conclusion was reached because of the exception, § 2680 (k), of "Any claim arising in a foreign country." The sovereignty of the United States did not extend over the base.
United States v. Yellow Cab Co., 340 U.S. 543. United States may be sued for contribution, and also be impleaded as a third party defendant.
Australia and New Zealand had had similar statutes for some years. They left "open to grave doubt how far, if at all, it was intended by those Acts to give the subject rights of action which in the result would interfere seriously with the ordinary administrative work of the Government . . . ." Enever v. The King, 3 Com. L. R. 969, 988 (1906); see also Davidson v. Walker, 1 N. S. W. St. R. 196, 208-213 (1901), and Hawley v. Steele, 6 Ch. D. 521 (quoted therein): " `In other words, I think the discretion is vested in the executive Government, having authority over military matters, to determine for which, of these various military purposes for which land may fairly be required, the particular land in question is to be appropriated. It is not for the Judge to say that they have made a bad selection.' " 1 N. S. W. St. R. 211.
Plaintiff in Boyce v. United States, 93 F.Supp. 866, charged that he had suffered damage by virtue of certain governmentally-conducted blasting operations. The United States, by way of affirmative defense, showed that the blasting had been conducted pursuant to detailed plans and specifications drawn by the Chief of Engineers who, in turn, had been specifically delegated "discretion of the broadest character" to draft a plan for deepening the Mississippi River channel. The exception was applied. There have been several cases of like import dealing with the execution of waterway projects. In Coates v. United States, 181 F.2d 816, damages were sought for injury to crops and land from action of the Government in negligently changing the course of the Missouri. It was held that no jurisdiction existed under the Act. The case was followed in North v. United States, 94 F.Supp. 824. There the plaintiff was denied recovery for injury to his cellar and cesspool occasioned by a government dam having raised the level of the local ground water. A like result obtained in Lauterbach v. United States, 95 F.Supp. 479, where claimant sued to recover damages resulting from release of flood waters at Bonneville Dam.
Olson v. United States, 93 F.Supp. 150, involved another claim of water damage. In that case, employees of the Fish and Wildlife Service were alleged to have "wilfully and intentionally opened the flood gates" of a certain dam, causing loss of plaintiff's livestock. The dam was operated for "the purpose of storing water for the propagating of fish and wildlife" and the court held that "when flood waters are to be released and how much water is to be released certainly calls for the exercise of judgment." 93 F. Supp., at 151, 152-153. Sickman v. United States, 184 F.2d 616, also invoked § 2680 (a). There plaintiff unsuccessfully sought recovery for crop depredations by wild birds induced to feed on his land by a nearby governmental game preserve.
In Toledo v. United States, 95 F.Supp. 838, plaintiff's automobile had been damaged by a partially rotten tree falling perchance at a time when he had parked under it. The tree had been planted and grown at a government plant experimental station in Puerto Rico. It was open to the public for instruction and observation. The opinion holds that the operation of the station itself, and the decision to plant and preserve this particular tree to further its experimental purposes, were "peculiarly within the discretion of the appropriate employees of the Station," but that negligent removal would not have been. 95 F. Supp., at 841.
The relevance of the bagging temperature apparently stemmed from certain testimony that large masses of FGAN, if maintained at temperatures of around 300° F., might spontaneously ignite under certain conditions of mass and confinement. The Government proffered extensive evidence, however, that the FGAN shipped to Texas City did not leave the plants at nearly that temperature, and of course there is no evidence as to the temperature at which it was loaded on the ships.
Notice of contents appeared on the bill of lading, so far as important, as follows: 1,000 Bags, Fertilizing Compounds (manufactured fertilizer) NOIBN, dry in paper bags.
"(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. . . ."