(1) Although he gave orders to the defendant James Healing Company to move from plaintiff's Powder Pier at South Amboy to a safe anchorage about noon of May 19, 1950, after it had loaded two lighters containing 1800 cases of dynamite and a large quantity of antipersonnel mines and renewed his order some hours after noon on that day he took no method or means to have his order obeyed.
(2) He permitted the said two loaded lighters to remain moored at the end of plaintiff's Powder Pier from approximately noon on May 19, 1950, until their cargo was exploded at 7:28 p. m. on May 19, 1950.
(3) He carelessly and negligently permitted boxes containing anti-tank mines, fuses and detonators to be packed together in violation of the regulations of both the Interstate Commerce Commission and the United States Coast Guard to be unloaded from the railroad freight cars into said lighters.
(4) That he was inattentive to his duties in that he did not remain at the Powder Pier until the unloading was completed, but absented himself for considerable periods during the day permitting the loading to continue without any supervision of the United States Coast Guard and that in his absence defendant James Healing Company speeded up its operations with an insufficient and weary crew in order to complete the loading by sunset during the course of which the explosion occurred.
(5) That he made no attempt to secure the aid of the United States Coast Guard to remove the loaded lighters to a safe anchorage, did not direct defendant James Healing Company to remove said lighters in the face of his observation that the defendant James Healing Company did not have sufficient longshoremen at work to complete the unloading by sunset without the use of the officers and crew of the loaded lighters which were moored at the outer end of Powder Pier contrary to his orders.
(6) That he did not stop the unloading of the said material when he observed that the boxes were loaded with fuses and detonators in violation of the regulations of the Interstate Commerce Commission and the United States Coast Guard; or he was inattentive to his duties and did not discover that the said boxes contained material in violation of the regulations.
(7) That he paid no heed to the fact that the said mines and fuses and detonators were packed loosely in the boxes, or observing that the said explosives were loosely packed, did not stop the loading or cause extra or special care in the handling of the said boxes and did not notify the officials of the Coast Guard concerning the manner of the packing of the said boxes.
The plaintiff alleges that the explosion destroyed or damaged its property and deprived it of the use of its facilities to its damage in the sum of $ 4,000,000.
In addition to the direct damages sustained by the plaintiff, many parties have asserted claims against the plaintiff for personal injuries and property damages by way of suits in courts of law in the States of Ohio, New Jersey, New York and in this court. It demands indemnity against the United States not only for its direct damages, but for any damages that may be assessed against it in any of the said lawsuits which aggregate in claims approximately $ 40,000,000.
The first count of the complaint of the A. & M. Trading Corporation, et al. v. United States, Civil No. 449-52 is more general in nature than the complaint of the Pennsylvania Railroad Company.
In the second count A. & M. Trading Corporation, et al., incorporate by reference their allegations of the first count and charges that these constituted a nuisance.
The allegations in the other two cases, Frances Rinn, Admx., etc. v. United States, Civil No. 973-50 and Ethel M. Geary v. United States, Civil No. 367-52, are substantially the same as those recited in the Pennsylvania Railroad case and the first count of the A. & M. Trading Corporation complaint.
The four complaints were to be regarded as a composite complaint for the purpose of argument on the Government's motion to dismiss. They are all founded upon alleged liability of the United States as governed by the provisions of the Federal Tort Claims Act, and are discussed in this motion particularly as they are affected by 28 U.S.C.A. c. 85, § 1346(b)
and 28 U.S.C.A. c. 171, § 2680(a)
In support of its motion to dismiss the complaint, the defendant cited the decision of the United States Supreme Court in the case of Dalehite v. United States, 1953, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427. It was a test case representative of many suits against the United States filed by reason of a disaster at Texas City, Texas, the result of an explosion of ammonium nitrate fertilizer produced at the instance, according to the specifications, and under control, of the United States, for export, to increase the food supply in areas under military occupation following World War II. As a result of the catastrophe many lives were lost and much property damage ensued. It was charged that the explosion resulted from negligence of the Government in adopting the fertilizer export program as a whole, in its control of various phases of manufacturing, packaging, labeling and shipping the product, in failing to give notice of its dangerous nature and in failing to police its loading on shipboard.
In interpreting the legislative history of the acceptance of the Government's exposure to suits under the Tort Claims Act, and the general exemption as expressed in § 2680(a), the Supreme Court emphasized a paragraph from the House Report of the 77th Congress, characterizing the general exemption as being:
"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 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 the suit is the contention that the same conduct by a private individual would be tortious. * * * 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." 346 U.S. at page 30, 73 S. Ct. at page 965.