15

Opinion of the Court.

tial cargo of explosives, and the High Flyer 2,000 tons of sulphur at the time. At about 8:15 a. m. of the next day smoke was sighted in the Grandcamp hold and all efforts to halt the fire were unavailing. Both ships exploded and much of the city was leveled and many people killed. 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

"The Grandcamp exploded about an hour after the fire was noticed. Meanwhile the captain of the ship had ordered all personnel off and the hatches closed. Steam was introduced into the holds. All admit that this is normal fire-fighting procedure aboard ships, but that it was less than effective in this case because of the oxidizing properties of the FGAN. Whether or not the captain was negligent this Court is not called upon to say.

275520 O-54-7

Opinion of the Court.

346 U.S.

police the shipboard loading. The Court of Appeals en banc unanimously reversed, but since only three of the six judges explicitly rejected the bulk of these findings, we shall consider the case as one in which they come to us unimpaired. Cf. Labor Board v. Pittsburgh Steamship Co., 340 U. S. 498, 503; United States v. United States Gypsum Co., 333 U. S. 364, 395. Even assuming their correctness arguendo, though, it is our judgment that they do not establish a case within the Act. This is for the reason that as a matter of law the facts found cannot give the District Court jurisdiction of the cause under the Tort Claims Act.

8

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

8 We are therefore not required to weigh each finding anew as "clearly erroneous." They were characterized below as "profuse, prolific, and sweeping." We agree. Fed. Rules Civ. Proc., Rule 52 (a), in terms, contemplates a system of findings which are "of fact" and which are "concise." The well-recognized difficulty of distinguishing between law and fact clearly does not absolve district courts of their duty in hard and complex cases to make a studied effort toward definiteness. Statements conclusory in nature are to be eschewed in favor of statements of the preliminary and basic facts on which the District Court relied. Kelley v. Everglades Drainage District, 319 U. S. 415, and cases cited. Otherwise, their findings are useless for appellate purposes. In this particular case, no proper review could be exercised by taking the "fact" findings of "negligence" at face value. And, to the extent that they are of law, of course they are not binding on appeal. E. g., Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 153-154, and concurring opinion at 155-156.

15

notoriously clumsy.

Opinion of the Court.

Some simplified recovery procedure for the mass of claims was imperative. This Act was Congress' solution, affording instead easy and simple access to the federal courts for torts within its scope."

"In the Sixty-eighth Congress about 2,200 private claim bills were introduced, of which 250 became law. .

....

"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. 10 Certain tentative experiments in this direction should be noted. In 1855, Congress established the Court of Claims and consented to suit therein on claims based on contract or federal law or regulation. This consent was enlarged in 1887 to include all cases for damages not sounding in tort. At the same time, United States District Courts were given concurrent jurisdiction of claims up to $10,000. In 1910, Congress consented to suits in the Court of Claims for patent infringement. When the Government took over the operation of the railroads during the First World War, Congress made the United States subject to the same responsibility for property damage, personal injury, and death as the private owners would have been. In 1920 and 1925, the Government consented to suits in the district courts upon admiralty and maritime torts involving government vessels, without limitation as to amount.

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,

Opinion of the Court.

346 U.S.

The meaning of the governmental regulatory function exception from suits, § 2680 (a), shows most clearly in the history of the Tort Claims Bill in the Seventy-seventh Congress. The Seventy-ninth, which passed the Act, held no relevant hearings. Instead, it integrated the language of the Seventy-seventh Congress, which had first considered the exception, into the Legislative Reorganization Act as Title IV.

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." In 1942, however, the Seventy-seventh Congress drafted a twofold elimination of claims based on the execution of a regulation or statute or on the exercise of a discretionary function. The language of the bills then introduced in both the House and Senate, in fact, was identical with that of § 2680 (a) as adopted.12 The exception was drafted as a clarifying amendment to the House bill to assure protection for the

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.

11 Such specific exceptions appeared first as an amendment to H. R. 9285, 70th Cong., 1st Sess. The amendment was offered from the floor of the House, 69 Cong. Rec. 3131. See also H. R. 7236 and S. 2690, 76th Cong., 1st Sess.; H. R. 5373, 77th Cong., 2d Sess.

12 H. R. 6463, 77th Cong., 2d Sess.; S. 2207, 77th Cong., 2d Sess. The first broad governmental exemption was considered in S. 4567, 72d Cong., 1st Sess., and in S. 1833, 73d Cong., 1st Sess., where it was provided that the Government should not be liable for "[a]ny claim on account of the effect or alleged effect of an Act of Congress, Executive order of the President, or of any department or independent establishment."

15

Opinion of the Court.

Government against tort liability for errors in administration or in the exercise of discretionary functions.13 An Assistant Attorney General, appearing before the Committee especially for that purpose," explained it as avoiding "any possibility that the act may be construed to authorize damage suits against the Government growing out of a legally authorized activity," merely because "the same conduct by a private individual would be tortious." It was not "intended that the constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act, should be tested through the medium of a damage suit for tort. The same holds true of other administrative action not of a regulatory nature, such as the expenditure of Federal funds, the execution of a Federal project and the like." 15 Referring to a prior bill which had not contained the "discretionary function" exemption, the House Committee on the Judiciary was advised that "the cases embraced within [the new] subsection would have been exempted from [the prior bill] by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but H. R. 6463 makes this specific." 16

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

13 Hearings before the House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess., pp. 1, 4.

14 Hearings before the House Committee on the Judiciary, 77th Cong., 2d Sess., on H. R. 5373 and H. R. 6463, p. 6.

15 Ibid., pp. 25, 33.

16 Statement by the then Assistant Attorney General Francis M. Shea at Hearings before the Committee on the Judiciary, H. of Rep., 77th Cong., 2d Sess., on H. R. 5373 and H. R. 6463, p. 29.