(concurring specially).
I am in accord with the view that the Tort Claims Act confers no jurisdiction upon the courts to review or supervise the executive or legislative departments in the performance of their discretionary functions, and that the Act does not apply to “the exercise or performance or the failure to exercise or perform a discretionary function or duty”. [28 U.S.C.A. § 2680.] I am further of the view, however, that when even a discretionary duty or function is undertaken, due care must be exercised in its performance, failing in which the United States is liable for the acts of its employees, within the scope of their authority.
Whether or not a project shall be undertaken, or the policies to be followed in executing it, may be discretionary, and as to those things there is no liability or review under the Tort Claims Act. But if a discretionary project is undertaken, then the United States is held to due care, to the same extent as a private individual. So it is here. The government need not have undertaken the manufacture of FGAN at all. Whether or not it did was discretionary, and it would be subject to no liability for declining. Having undertaken the function, however, it is held to due care in its performance, even though it had a discretionary choice as to whether it would undertake it.
Though the complaint asserts that there was a failure to exercise due care in the manufacture, labeling, and handling of the FGAN, and in failing to give warning of its explosive character, the allegations in that respect clearly are not supported by the evidence. There is no evidence of any circumstance which would indicate to a reasonably prudent person that fertilizer grade ammonium nitrate (FGAN) would be likely to explode, due to its inherent qualities, if dealt with in a normal manner. It did not explode here under normal conditions, but only when too closely confined on the ships, with which the United States had nothing to do.
The government was manufacturing, not an inherently dangerous explosive such as gun powder, dynamite, or the like, but fertilizer which was safe if dealt with normally. The evidence is that ammonium nitrate is not inherently an explosive, but that it becomes explosive only when combined with other explosive compounds, such as T. N. T., or other nitrated organic bodies. When not combined with substances such as these, it constitutes only a fire hazard. In other words, it will burn but not explode. There is no evidence that in the manufacturing, sacking, or transportation of this FGAN to shipside, there was any failure to use ordinary and reasonable care. Nor did the FGAN explode while being transported in railroad cars to shipside.
It is also clear to me that the explosion was due, not to the inherent qualities of the FGAN, but to faulty stowage on the ships, a delinquency not chargeable to the United States. The United States is not an insurer here. It is held only to the exercise of reasonable care. The paper sacks containing this FGAN were plainly labeled in large letters: “Fertilizer-Ammonium Nitrate-Nitrogen 32.5%.” This was sufficient to put the ship operators on notice as to the nature of the substance they were handling. The evidence definitely and firmly convinces me that the proximate cause of the explosion was not the inherent nature of the fertilizer, nor any lack of due care in its manufacture, labeling, or transportation to shipside, but that it was im*782properly stowed in too compact a mass, confined between decks, so that the rising temperature produced by such faulty stowage caused it to explode. The United States is not chargeable with the faulty stowage. As stated, the bags were clearly labeled “Fertilizer-Ammonium Nitrate-Nitrogen 32.5%.” It is true that the bags were not labeled “Explosive.” But there was no known instance of a previous explosion of FGAN under normal conditions. This explosion was wholly unprecedented. Prior to this disaster, there had been no known instances of explosions during land transit, while in stowage awaiting export, in the many shiploads previously shipped overseas, nor in this FGAN while part of it was stacked at the Texas City Terminal awaiting loading.
The finding of the district court that the explosion was due to the inherently dangerous character of the FGAN, and that it was the duty of the United States to have given a more adequate warning of its dangerous character, is clearly erroneous. Although there may be some evidence to support the finding, the evidence when appraised as a whole creates with me “the definite and firm conviction” that the United States was not guilty of negligence, but that the negligence which caused the explosion was wholly and solely that of the ship operators, who were not agents of the United States. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 765, 766.
In cases where a manufacturer has been held liable for the explosion of some bottled or canned product, or for damage caused by some other processed product, liability has always been conditioned upon the normal handling or use of the product. Where, as here, the product has been subjected to some abnormal treatment, such as stowing this fertilizer too compactly in a confined space between decks, the abnormal treatment, not the inherent qualities of the product, is the proximate cause of the damage. In such circumstances, there is no liability upon a “private party” manufacturer, hence none upon the United States.
Nor is there any basis in the evidence upon which the United States can be charged with negligence because of acts or omissions of the Coast Guard in the circumstances shown.
As there is no claim that there is any other evidence which would change the result, there would be no advantage in remanding the cases for a new trial. I therefore concur in the judgment of reversal, and in the rendition of judgment here for the United States.