197 F.2d 771 (5th Cir. 1952), 13314, In re Texas City Disaster Litigation

Docket Nº:13314.
Citation:197 F.2d 771
Case Date:June 10, 1952
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 771

197 F.2d 771 (5th Cir. 1952)


No. 13314.

United States Court of Appeals, Fifth Circuit.

June 10, 1952

Eberhard P. Deutsch, Sp. Asst. to Atty. Gen. of United States, New Orleans, La., and Massillon M. Heuser, Atty., Department of Justice, Washington, D.C., for the United States. With them on the brief were Atty. Gen. J. Howard McGrath, Deputy Atty. Gen. Peyton Ford, Asst. Attys. Gen. Holmes Baldridge and H. Graham Morison, and U.S. Atty. Brian S. Odem, Houston, Tex., Sp. Asst. to Atty. Gen. George O'Brien John, Houston, Tex., Paul A. Sweeney, Morton Liftin, Sidney J. Machtinger, and Robert P. Breazeale, Attorneys, Department of Justice, Washington, Washington, D.C., and Brigadier General Claude B. Mickelwait, San Francisco, Cal., Lieutenant Colonel Burton K. Philips, St. Louis, Mo., and Captain Ralph L. Kaskell, Jr., Judge Advocate General's Corps, Jamaica, N.Y., United States Army.

Austin Y. Bryan, Jr., of Houston, Tex. argued the cause for the appellees. With him on the brief were Thomas Fletcher, John R. Brown, M. S. McCorquodale, Houston, Tex., Neth L. Leachman, Dallas, Tex., T. E. Mosheim and Vernon Elledge, Houston, Tex.

Page 772

Before HUTCHESON, Chief Judge, HOLMES, BORAH, RUSSELL, STRUM, and RIVES, Circuit Judges, En Banc.

RIVES, Circuit Judge.

This litigation arises under the Federal Tort Claims Act. 1

For an understanding of the questions presented, we quote the statement of the case as made by the learned district judge:

'These are approximately 273 suits (including the above suit No. C.A. 787, Dalehite, et al. v. United States of America) by approximately 8485 persons or Plaintiffs against Defendant, United States of America, under the Federal Tort Claims Act, Section 2671 et seq., Title 28, Judicial Code effective September 1, 1948, formerly Section 941, Title 28 U.S.C.A., Act of August 2, 1946, and Amendments, and arising out of what is generally known and referred to, and is referred to herein, as the Texas City Disaster, in which much of the City or Town of Texas City, in Galveston County, Texas, was destroyed, with great loss of life, injuries to persons, and heavy property damage. The claim is that on April 16, and 17, 1947, fires and violent explosions occurred on the Steamships Grandcamp and High Flyer then being loaded with a cargo for foreign ports in the Texas City Harbor. It is claimed that such fires and explosions, and/or other fires and other explosions, etc., which followed and which were proximately caused thereby, killed or caused the death of approximately 560 persons- men, women and children- and wounded many other persons in and around Texas City and in the Texas City Harbor, and did vast and widespread damage and injury to property in that area. Of the 8485 Plaintiffs, approximately 1510 sue on death claims, approximately 988 on personal injury claims, approximately 5987 on property damage or destruction claims.

'It is claimed and alleged that such fires and explosions were caused on the Grandcamp and the High Flyer by a cargo or part cargo of ammonium nitrate, or fertilizer ammonium nitrate, or FGAN (for brevity called herein Fertilizer), thereon becoming ignited and burning and/or exploding. It is alleged that such Fertilizer was a known dangerous explosive and a fire hazard and was manufactured by Defendant and shipped and transported by Defendant or directed or permitted by Defendant to be shipped or transported into Texas City without warning to the public or to any City, State, or other Officer of Texas City, and loaded on such Steamships. And that the Defendant and its agents and employees were guilty of negligence in so doing and also guilty of negligence in manufacturing such Fertilizer at all and in the manner of the manufacture, sacking, bagging, marking of bags, handling, shipping, transporting, loading, etc. of such Fertilizer.

'After these suits were filed, the parties, including those in the above case No. C.A. 787, Dalehite, et al. v. United States of America, moving under Rule of Civil Procedure 42, 28 U.S.C., with the approval of the Court, entered into an Agreement or Stipulation for such suits to be consolidated for hearing and heard or tried on the question or issue common to all parties, of the negligence of Defendant or of the liability, if any, of Defendant to Plaintiffs under such Tort Claim Act. Reference is made to the Order of Consolidation, etc., dated July 21, 1948, and other subsequent Orders of Consolidation.

Page 773

'It appearing that the Plaintiffs in the 273 or more consolidated suits were represented by perhaps 50 or 100 different counsel, with approval of the Court, counsel for Plaintiffs in such suits agreed upon a Working Committee of Attorneys, whose names appear on the first page hereof, to prosecute such consolidated suit, and they have appeared and so prosecuted same.

'It was also agreed between the parties, in order that a complete case should be presented to the Court, that one of the consolidated cases, i.e., Cause No. 787, Elizabeth Dalehite and Henry G. Dalehite, Jr. v. United States of America, should be fully tried. This is a suit by the surviving wife and son of Captain Henry G. Dalehite, who it was alleged was killed in such Disaster.

'Each of the Plaintiffs in the suits filed and which were consolidated, as stated, alleges many and numerous acts of negligence upon the part of Defendant, all of which, to the number of 80 or more were carried into Plaintiffs' Consolidated Pleadings in this Consolidated Cause, filed March 16, 1949. It does not seem appropriate to set them forth in detail here, but reference is made to such pleadings for particulars and details. Generally speaking, it is charged and alleged that the Fertilizer which burned and/or exploded in such Steamships was a known very dangerous explosive and fire hazard which was manufactured by Defendant and/or under its directions. That such Fertilizer being a very dangerous commodity, Defendant was negligent in manufacturing it at all, and negligent in the manner in which it manufactured, handled, transported, shipped, etc., same. Particularly it is claimed that Defendant was greatly at fault and negligent in, without warning to anyone of the danger, shipping such Fertilizer or permitting it to be shipped into and handled in the densely populated city or town of Texas City, etc., where as stated such fires and explosions occurred.

'In a Trial Amendment, filed with leave of the Court, July 20, 1949, Plaintiffs more specifically allege and set out the names of the persons, agents, servants, or employees of the Defendant claimed to be guilty of negligence.

'Defendant in its Answer, filed April 4, 1949, brought forward some fifteen defenses.

'Its First Defense that Plaintiffs should be required to make a more definite statement of their case was denied.

'Its Second Defense that Plaintiffs fail to state a claim upon which relief may be had was denied.

'Its Third, Fourth, and Fifth Defenses that Plaintiffs in effect fail to state a case cognizable in this District were denied.

'Its Eighth and Ninth Defenses questioning the authority of the Working Committee were denied.

'Its Sixth and Tenth Defenses with respect to assigned claims, its Seventh Defense raising the question of Limitation, and its Fifteenth Defense pleading contributory negligence, etc. are not within the scope of the Consolidation Agreement and are, therefore, not disposed of at this time.

'By its Eleventh, Twelfth, Thirteenth and Fourteenth Defenses Defendant denies, and there is put in issue, each and all of Plaintiffs' allegations, and same are herein disposed of under such Consolidation Agreement.

'This is a trial on the merits under such Consolidation Agreement, lasting approximately 90 days, and on briefs and oral argument of counsel, and a trial on the merits of cause No. C.A. 787, Elizabeth Dalehite and Henry G. Dalehite, Jr. v. United States of America, on all issues.

'The Record is enormous. The Transcript consists of nearly 20, 000 pages, and there are hundreds of exhibits. This would of itself tend to show that all the sources of evidence bearing on the questions and issues now before the Court have been thoroughly explored

Page 774

and all the evidence produced that can be found and produced, except as hereinafter stated. In addition, counsel on both sides, at the close of the trial, assured the Court that they had no other evidence to present on the matters now before the Court, except as hereinafter stated. The exception is that Plaintiffs are still complaining of the failure of the Court to again enforce the production of some additional records, etc. of and/or in the possession of, the United States Federal Bureau of Investigation, which records such Bureau refused to produce, as is fully shown by the Transcript.

'Counsel for Plaintiffs and Defendant have, at the Court's request, indicated what Findings of Fact they think should be made, but many of such requests for Findings are for Findings on evidence as distinguished from Findings on the issues as made by the pleadings. Such requests are hereinafter disposed of. An effort has been made to find the facts only on the issues, and thus bring the case within as small compass as possible.'

On May 4, 1950, the court entered judgment in the composite case, ith a decree as to amount with interest from the date of judgment in the one actual case, and a 'final' decree as to liability, subject to certain reserved defenses and future determination of quantum, Ith interest from May 4, 1950, in all other suits.

The United States entered appeals in all cases. By order of this court, the appeal was heard on the record in the...

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