(dissenting).
On April 16 and 17, 1947, an appalling disaster occurred at the City of Texas City, Texas, on Galveston Bay, when some 600 persons were killed and many millions of property were destroyed by the explosions of the S/S Grand Camp and S/S High Flyer in the harbor. Although there Was some uncertainty at the time as to the cause of the explosion the probability was very strong and it was later judicially determined that it was due to the spontaneous combustion of a quantity of ammonium nitrate, fertilizer grade, which formed part of the vessels’ cargoes. The attention of the whole country was aroused by the disaster and the shipping industry was led to investigate the circumstance in order to avoid similar occurrences in the future, Agencies of the United States were also stirred to investigation since huge claims were presented against the government under the Federal Tort Claims Act, 28 U.S. C.A. §§ 1346, 2671-2680, on the theory that government employees had participated in the manufacture and distribution of the fertilizer which was known to be possessed of explosive properties without exercising due care for the' safety of the public.
It has recently been held by a divided court in the Fifth Circuit In re Texas City Disaster Litigation, 197 F.2d 771, that the United States had no liability for the disaster under the Federal Tort 'Claims Act, as a manufacturer or distributor of a dangerous explosive, because the government’s activities were within the statutory exclusion with respect to the performance of discretionary functions on the part of federal agencies or employees; but in a concurring opinion, 197 F.2d 781, the exoneration of the.government was based on the finding that the explosions were caused by, the too close confinement of the fertilizer on the ships with which the United States had nothing to do.
Tw0 months later, on June 28, 1947, the s/S Ocean Liberty arrived at the port of Baltimore and between that date and July 5 was loaded in part with 3309 tons of the same kind of material. As described in the opinion of the court, it was stowed jn the holds enveloped in heavy paper, so that all circulation of air within the mass was precluded, and a condition favorable *147to spontaneous combustion was created, The holds containing the Fgan were then closed and the ship sailed to New York City where additional cargo was taken on, and thence to Brest, France, where she arrived on July 23, and a part of her cargo was discharged during the first five days, During the period between July 5 and July 28, when high summer temperatures prevailed, the fertilizer remained without interior circulation of air in the tightly closed cargo spaces, and since it is a poor con, ductor of heat and is subject to heating under these conditions, a dangerous situation was created, lhe result was, as, has been „ , , , . T , , - - . found by the District Judge and by this J , , J _ 7 __ , court on appeal, that on July 28 an expío- . , 9 , /. , - , sion took place on the ship caused by the r spontaneous combustion of the nitrate and 5 ■ , , , . , , , thereby the ship and the cargo were de- , , ^ , stroyed and some lives were lost. J
Obviously the duty to use due care to inquire into the nature and qualities of Fgan rested heavily upon the owners and agents of the ship who undertook to stow the dangerous material on board while the memory of the Texas calamity was still fresh in the national consciousness. Even under ordinary circumstances, as we have held, a shipowner must use due care to ascertain the characteristics of goods offered for shipment. See Bank Line v. Porter, 4 Cir., 25 F.2d 843, 845; The Nichiyo Maru, D.C.Md., 14 F.Supp. 727, affirmed 4 Cir., 89 F.2d 539, 543; The Richelieu, 4 Cir., 48 F.2d 497; The Ferncliff, D.C. Md., 22 F.Supp. 728, affirmed Smith v. The Ferncliff, 4 Cir., 105 F.2d 1021, But in the present instance, due care rose to the highest degree of diligence to be sure that every reasonable precaution be taken so as to avoid the loss of human life and property, for it had been tragically demonstrated that great danger lurked in the carriage of the substance and that ordinary methods of stowage were not enough. Nothing else would satisfy an ordinarily prudent man.
Judge Chesnut reached the conclusion, correctly I think, that the owners and agents of the ship did not make that careful investigation which the dangerous and uncertain qualities of the material required, and hence the libellants were entitled to recover. He showed that the carrier, knowing that it was dealing with a dangerous material, was careful to follow the instructions of the Coast Guard, the Baltimore Fire Department and the New York Board of Underwriters, but that these lay authorities did not know that Fgan was susceptible to spontaneous combustion, and directed the cargo to be so stowed as to actually increase the danger from this source,
Iq ^ respect he said (Accinanto, Ltd. v. Cosmopolitan shipping Co., D.C.Md., 99 F.Supp. 261, 278, Finding 26). «it is dear h Qn the evidence ^ the carrier . , , m accepting Fgan knew that it was deal- . ..« . « . , mg with a very dangerous chemical. Far . , ,, . this reason unusual care was taken m the method of stowage in certain respects, t ^ .« What was evidently known to the carrier ^ , ,, . , was that a great danger would arise from A - . , T ü j r any fire. And in. this respect I find from the evidence that the recommended precautions to avoid fire in stowage were carefulIy complied with. Thus contact between ¿íe paper bags and the metal portions of the ,hold were avoided by wooden dunnage and paper dunnage thereover. And finally there was over the whole mass of the stow placed a waterproof covering. The tween deck hatches were also closed and after the loading" of general cargo in New York the deck hatches in number 3 tween deck were closed. But on the other hand the bags were placed tier upon tier to the number of 20 or more and they were stowed solidly without wooden or other dunnage forming any separation either horizontally or vertiCally between them to give extraordinary ventilation. In effect, therefore, the stowage of the fertilizer was adequate to and djd successfully prevent fire originating in the loading outside of the stow. But unfortunately the extra care and precaution in avoiding the possibility of fire from outs¡de (-be fertilizer resulted in exactly those conditions which greatly increased the danger of fire from withill) that is> spon. taneous combustion. I find as a fact that neither the carrier nor its general agents nor its subagents, nor for that matter neither the representatives of the Coast Guard, the Fire Department or the New York Board of Underwriters, knew that Fgan *148was, as so stowed, subject to spontaneous combustion. In stowing it or permitting it to be stowed as they did, what they had in mind was protection against fire óriginating from outside. They entirely overlooked the necessity of guarding against fire from within the fertilizer itself by spontaneous combustion. The dominant issue of fact thus becomes whether the carrier or its agents could by diligent inquiry have learned of the danger of spontaneous combustion, and if so, should they have made such inquiry. I find on all the evidence that if the carrier exercised due diligence to make, inquiry as to the nature and properties of Fgan it could have learned that it was susceptible to spontaneous combustion when stowed in large quantities in a very confined space without free circulation of air. In this case neither the carrier nor its general agents made any particular inquiry with regard to this feature of ship carriage of Fgan, despite the very great danger involved in the carnage °f fertilizer as so recently brought to their knowledge and attention by the Texas City disaster.
What was the inquiry that the carrier failed to make and what would it have disclosed? On July 1, 1947 there was extant a considerable body of scientific literature in relation to the properties of Fgan which are referred to in the opinions that have been filed in this case. The interpretation placed on this literature1 by Judge Chesnut with which I agree is set forth in his Finding 23, 99 F.Supp. 277, as follows: “I find from the evidence that the scientific data prior to July. 1947 contained in various reports, treatises and text books discloses that Fgan presented a serious danger of spontaneous ignition under certain conditions. While these conditions were not precisely and definitely determined, very important considerations related to contacts with certain foreign substances espedally if of carbonaceous matter, the temperature of initial storage, quantity or mass when stored, and when confined without adequate ventilation. That is to say, the danger of spontáneous combustion was increased if organic matter was mixed with Fgan, with increased temperature when stowed in large masses and that the greater the mass and', the length of confinement would increase the danger; while lessening the mass with adequate ventilation would decrease the danger of spontaneous combustion.”
jn reaching this conclusion Judge CHesnut was guided by the testimony of Dr. George Bogdan Kistiakowsky, Professor of Chemistry and until recently Chairman of the Chemistry Department of Harvard University, and by the testimony of Dr. Chester S. Snell, consulting chemist and engineer of New York City. Speaking of the testimony of these scientists in Finding 20, 99 F.Supp. 275-276, the judge said:
«Dn Kistiakowsky, a Harvard Pro-, fessor of Chemistry who llas spedalized in the effects of heating of yari_ ous chemicals (who also testified in the torts claims suits against the United States growing out of the Texas City disaster) testified as a witness for the libellants in this case. According to laboratory experiments made by him in 1948 he concluded that a 1% admixture of waxy coating for the granules of ammonium nitrate had the effect of increasing the tendency of ammonium nitrate fertilizer' to spontaneous combustion and he adopted what he referred to as the ‘critical mass’ theory of spontaneous combustion, which is to the effeet that large masses of it in close confinement, as 'in a ship’s hold, without unusually, good ventilation tend to overheating and spontaneous combustion. Dr. Kistiakowsky also said that if the. percentage amount of paraffin coating was increased from 1% to 5% it would greatly minimize the tendency *149to self-heating. He instances the case of Nitrammon made by the DuPont Company which is 95% ammonium nitrate with 5% wax and is fairly safe and that by reason of its safety factor Nitrammon’s transportation rate wa,s much lowered. He and also Dr. Snell, another analytical chemist, testifying for the libellants, expressed the view that the scientific literature about ammonium nitrate prior to July 1, 1947 was to the effect that ammonium nitrate fertilizer was susceptible to spontaneous heating and combustion under certain conditions, among which were contact with certain metals, such as zinc, or when confined in too large areas without adequate ventilation. They referred particularly to the U. S. Ordnance Safety Manual issued in 1945 and the U. S. Department of Agriculture Circular, 719, headed ‘Explosibility and Fire Hazard of Ammonium Nitrate Fertilizer’ issued in March 1945. Attention was called to what was said on page 22 on the subject of safety measures, that ‘Bearing in mind that ammonium nitrate is an explosive and supports combustion, it should be handled in such a way as to avoid conditions that may make it dangerous. More than ordinary caution should be practised along the lines indicated ‘
Respondents called no expert scientifie witnesses on their behalf.”
In considering the availability of scientifie guidance to the business world in repect to the nature of Fgan, it is a significant fact that less than a week after the Texas City explosion Dr. Kistiakowsky made an examination at Texas City of the recent disaster at the request of Montsanto Chemical Company. He also reviewed the literature on the subject and within two or three weeks thereafter, on the basis of the information so acquired, made a report to the effect that the fire on the Grand Camp was probably due to spontaneous ignition. His conclusion was based on his investigations and on repeated descriptions in the literature that ammonium nitrate reacts very rapidly with paper and other cellulose materials. In this connection he took into consideration articles published and investigations made by the Department of Agriculture showing the reaction between paper or paper-like materials and ammonium . nitrate, together with the theoretical knowledge gained from scientifie publications. Dr. Snell’s testimony as to the conclusions to be drawn from the facts known to the scientific world on July 1, 1947 was to the same effect,
It is of the utmost importance to bear ¡n mind that the scientific testimony on -which thé District Court relied is without contradiction in the record before his court, Although the scientific literature and reports of government agencies deal- with a comparatively new article of commerce and to a great extent are technical in nature, no scientist was called by the carrier to contradict or qualify what' Dr. Kistiakowsky and Dr. Snell had said. If their conclusions, based on their investigations and the literature available on July 1, 1947 were not justified, it would have been an easy and normal step in a case of this importance for the carrier to have produced experts to point out their mistakes; and the only reasonable conclusion to be borne from their failure to do so is that no scientific man couid be found who would serve the purpose.
It is not possible to relieve the carrier ¡n this case under the fire section of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(2) (b), which exempts the carrier and the ship from responsibility for loss resulting from fire “unless caused by the actual fault or privity of the carrier”. The uncontradicted evidence shows that Cosmopolitan Shipping Company, Inc. was the general agent of Mowinckels in the United States, and that Cosmopolitan gave explicit instructions to the stevedore in Baltimore as to how the fertilizer should he stowed on the ship. See the letter of June 11, 1947 from Cosmopolitan to the Terminal Shipping Company set out in the foregoing opinion of the Court,
The managing agents of Mowinckels in Europe had knowledge that Fgan was to *150be transported on the ship because Cosmopolitan took the unusual precaution to con-suit them and secure their consent before accepting the shipment; ~nd the letter of instructions was then written, since Cosmopolitan being aware of the danger, was unwilling to entrust the stowage unreservedly to the stevedore. Hence Mowinckels is not exonerated by the statute since the neglect of the managing officer or agent pf the carrier is attributable to the carrier itself under the statute. Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U.S. 249, 64 S.Ct. 15, 88 LEd. 30; The Pinellas, 4 Cir., 45 F.2d 174, 177.
The letter to which we have referred serves only to establish actual, privity on Cosmopolitan's part. It not only gave explicit instructions to the stevedore, with reference to the cleaning of the compartments, the use of dunnage, the employment of a fire hose and the prohibition of smoking through the loading operations, but it specifically instructed the stevedore to load the vessel under the direction of the United States Coast Guard. In short, the stevedore was not given a free hand in stowing the cargo but was ordered to follow the directions of the agency whose failure to ascertain the nature and the quality of the fertilizer led to the destruction of the ship. There could hardly be a clearer illustration of privity on the part of the carrier. See Williams S. S. Co., Inc., v. Wilbur, 9 Cir., 9 F.2d 622; The Denali 9 Cir., 105 F.2d 413, 112 F.2d 952; The E. Madison Hall, 4 Cir., 140 F.2d 589; American Tobacco Co. v. The Katingo Hadjipatera, D.C.N.Y., 81 F.Supp. 438.
The decision in Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, supra, offers no refuge to the carrier, because in that case "The negligence was that of,a person employed to supervise loading-to whom responsibility was properly delegated and who was qualified b~ experience to perform the work. No negligence or-design of the owner or charterer is found." See 320 U.S. 250, 64 S.Ct. 16. The deci-sion of the Supreme Court was confined to the question whether the Fire Statute extinguishes claims against the vessel as well as claims against the owner. The facts of the case are more fully set out in the opinion of Judge Learned Hand in the Court of Appeals, 133 F.2d 781, 784-785: He showed that the stowage of the ship was in charge of one Fegen, who was employed for the work, but was not the agent of the ship authorized to represent the Owner. That relationship was held by one Okubo,. who employed Fegen but "paid no further attention to the stowage." Judge Hand' said that unless Okubo was personally guilty of some negligence the owner was exonerated; but no evidence of neglect oii. Okubo's part was found
. The findings of the District Court contain references to the scientific literature and reports of government agencies mentioned in the foregoing opinion of this court — see Finding 20, 99 F.Supp. 275; Finding 23, 99 F.Supp. 276; Finding 21, 99 F.Supp. 276, refers to the Inter-Agency report of the United States of August 20, 1947, which was prepared in contemplation of the Texas City suit against the government.