OPINION

On April 28, 1973, approximately eighteen bomb loaded boxcars exploded in Southern Pacific Transportation Company’s Antelope Yard in Roseville, California. These boxcars and bombs, both the property of the United States, were being hauled by the Southern Pacific Transportation Company (hereinafter Southern Pacific), under a contract with the Department of the Navy, from Hawthorne, Nevada, to Port Chicago, California. Plaintiffs in the above entitled eases seek to recover damages for personal injuries and property destruction allegedly caused by the Roseville explosions.

Southern Pacific has moved this court in the above entitled cases, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the plaintiffs’ claims against Southern Pacific which are premised on a theory of strict liability for the miscarriage of an ultrahazardous activity. Although plaintiffs have not designated these strict liability claims in their complaints as state or federal in origin, the court will treat them as state claims since there is no judicially recognized federal common law or statute which would permit these plaintiffs to recover on an ultrahazardous activity theory.

Plaintiffs seek to bring their claims within this court’s jurisdiction either on the basis of diversity between the litigants ( 28 U.S.C. § 1332 ), or on the basis of the judicially created doctrine of pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715 , 86 S.Ct. 1130 , 16 Erie Railroad Company v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), requires this court to apply the substantive law of the forum state when adjudicating state claims before it under its diversity jurisdiction: L.Ed.2d 218 (1966).

The rule of Erie applies with equal force to pendent state claims before the federal courts; and the law of the forum state must govern substantive issues. Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774 (2nd Cir. 1964), cert. denied 380 U.S. 913 , 85 S.Ct. 899 , 13 L.Ed.2d 799 (1965); Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (N.Y.1973); Saylor v. Lindsley, 302 F.Supp. 1174 (N.Y.1969); Briskin v. Glickman, 267 F.Supp. 600 (N.Y.1967); Mintz v. Allen, 254 F.Supp. 1012 (N.Y.1966). See also Maternally Yours v. Your Maternity Shop, 234 F.2d 538 (2nd Cir. 1956). Therefore, this court must apply California law in adjudicating Southern Pacific’s motion to dismiss the plaintiffs’ state strict liability claims.

While applying the law of the forum state, this court must also apply the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487 , 61 S.Ct. 1020 , 85 L.Ed. 1477 (1941). Under California choice of law analysis, the forum always applies its own law; but where a litigant has timely invoked the law of a foreign state, a California court may look to the law of other jurisdictions for the appropriate rule to be applied in the case before it. Hurtado v. Superior Court, 11 Cal.3d 574 , 114 Cal.Rptr. 106 , 522 P.2d 666 (1974). Since no party has invoked the law of any state other than that °f California, this court must follow the substantive law of California.

California has adopted the rule that where one is engaged in an activity so dangerous as to be characterized “ultrahazardous,” strict liability for damages resulting from such activity may befall the actor. Luthringer v. Moore, 31 Cal.2d 489 , 190 P.2d 1 (1948). Plaintiffs argue that Southern Pacific’s conduct in carrying bombs constituted ultrahazardous activity, and that the railroad should be held strictly liable for all the damages caused by the explosions in Roseville, California.

Although California courts of appeal have not yet had occasion to carve such an exception, Southern Pacific argues that under California law a common carrier may not be held strictly liable for damages resulting from the carriage of explosives insofar as it has a duty to carry them, and that Southern Pacific may not be held strictly liable in the above entitled cases because it had a duty to carry the explosives which caused plaintiffs’ injuries. In rebuttal, the plaintiffs make the following arguments:

Having found that the plaintiff must prevail on their first argument noted above, for the reasons set forth below, this court does not reach the merits of plaintiffs’ other contentions.

In adjudicating this motion to dismiss, the court begins with the proposition that it must ascertain and apply the existing law of California, and that it must not predict that California may change its law and then apply this court’s “notion of what that change might or ought to be.” Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345 (9th Cir. 1974). This court must follow the decisions of the Supreme Court of California, and where no such decisions exist, it must follow the decisions of the California Court of Appeals unless there is convincing evidence that the Supreme Court of California would decide differently. Klingebiel v. Lockheed Aircraft Corp., supra. When the question has not been decided in California, this court has the “doubtful privilege of ‘first guessing’ what the California courts might do.” Klingebiel v. Lockheed Aircraft Corp., supra at 347.

Here, the court has the doubtful privilege of trying to “guess” whether the California courts would except Southern Pacific from the general standard of strict liability imposed on those engaged in ultrahazardous activity. While performing this task, the court will be guided by the words of Judge Johnsen in Yoder v. Nu-Enamel Corp., 117 F.2d 488 (8th Cir. 1941):

The notion that one engaged in unusual activity should be held strictly liable for resulting damages was popularized by the English case of Rylands v. Fletcher, 3 H. & C. 774 (1865), reversed L.R. 1 Ex. 265 (1866), affirmed L.R. 3 H.L. 330 (1868). The rule of that case, as it has developed from subsequent English cases, has been succinctly stated by the late Professor Prosser to be:

This theory of liability, now known as the Doctrine of Rylands v. Fletcher, was first utilized by the California judiciary in Colton v. Onderdonk, 69 Cal. 155 , 10 P. 395 (1886). In Colton, the Supreme Court of California cited the Rylands case while holding that one engaged in blasting within a populated area should be held strictly liable for property damage caused by the explosions. 69 Cal. at 159 , 10 P. 395 . Later, this rule was extended to hold one engaged in urban blasting strictly liable for personal injuries caused by such blasting. Munro v. Pacific Coast Dredging and Reclamation Co., 84 Cal. 515 , 24 P. 303 (1890). The rationale for imposing strict liability in these cases emerges in Green v. General Petroleum Corp., 205 Cal. 328 , 270 P. 952 (1928). The Supreme Court in Green held that one engaged in oil-drilling in a residential area should be absolutely liable for damages resulting from an oil well “blow-out.” The Green court explained:

While the Supreme Court in Green did not expressly limit the above rule to cases where the enterprise was so dangerous as to be characterized as ultrahazardous, subsequent cases have read Green to include this limitation. See Luthringer v. Moore, supra; Boyd v. White, 128 Cal.App.2d 641 , 276 P.2d 92 (1954); Beck v. Bel Air Properties, Inc., 134 Cal.App.2d 834 , 286 P.2d 503 (1955); Gallin v. Poulou, 140 Cal.App.2d 638 , 295 P.2d 958 (1956). Thus, where one intentionally engages in an ultrahazardous enterprise and thereby exposes others to risks of harm which cannot be eliminated by the exercise of due care, fairness or abstract justice requires the precipitator of the risk to pay for resulting damages. Although the actor’s conduct is not so unreasonable as to constitute negligence itself, it is sufficiently anti-social that, as between two innocents, the actor and not the injured should pay for mishaps.

This “fairness’ rationale for imposing strict liability for the miscarriage ,of an ultrahazardous activity has been undergoing a metamorphosis. In the last Supreme Court of California decision involving this theory of liability, the court held a fumigator, licensed to use hydrocyanic acid to kill pests, strictly liable for personal injuries suffered when the lethal fumes seeped through the cracks of a building and found a victim. Luthringer v. Moore, supra. Although the court quoted at length from the Restatement of Torts (§§ 519, 520, 521, 523, and 524), it reached its decision in reliance on the case of Green v. General Petroleum Corp., supra. Further, while the court relied on the Green case, it justified the result by reference to an unspecified public policy:

Notwithstanding Southern Pacific’s protestations to the contrary, one public policy now recognized in California as justifying the imposition of strict liability for the miscarriage of an ultrahazardous activity is the social and economic desirability of distributing the losses, resulting from such activity, among the general public. Smith v. Lockheed Propulsion Co., 247 Cal.App.2d 774 , 56 Cal.Rptr. 128 (1967). The defendant in Smith , Lockheed Propulsion Co., under a contract with the United States Air Force, had been engaged in testing a solid fuel rocket motor by firing the motor nosedown while it was affixed to a test stand. Resulting tremors damaged nearby property belonging to the plaintiffs. After finding that this test firing involved the inherent risk of damage which could not be eliminated by the exercise of due care, the Smith court concluded:

By so stating the Smith court gave substance to the vague reference in Luthringer to the “best public policy,” and provided California courts with a rationale other than the primitive appeal to “fairness.” The Smith court’s justification of strict liability on a risk distribution theory is consistent with developments in other areas of California strict liability tort law. See Es-cola v. Coca Cola Bottling Co., 24 Cal.2d 453 , 150 P.2d 436 (1944) (concurring opinion); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 , 27 Cal.Rptr. 697 , 377 P.2d 897 (1963); Price v. Shell Oil Co., 2 Cal.3d 245 , 85 Cal.Rptr. 178 , 466 P.2d 722 (1970). See also Cla0rk v. Gibbons, 66 Cal.2d 399 , 58 Cal.Rptr. 125 , 426 P.2d 525 (1967) (concurring opinion); Haft v. Lone Palm Hotel, 3 Cal.3d 756 , 91 Cal.Rptr. 745 , 478 P.2d 465 (1970).

The first articulate use of the risk distribution rationale for imposing strict liability in California came in Justice Traynor’s often cited concurring opinion in Escola v. Coca Cola Bottling Co., supra, an exploding bottle case. While the majority affirmed the plaintiff’s judgment on a res ipsa loquitur theory, Justice Traynor reasoned that the same result should be reached on a theory of strict liability:

Justice Traynor firmly imprinted this reasoning into California strict liability law in the landmark case of Greenman v. Yuba Power Products, Inc., supra, in which California led other jurisdictions by finding that the products liability of a manufacturer was governed by the law of strict liability in tort, and not by the law of contract warranties. 59 Cal.2d at 63 , 27 Cal.Rptr. 697 , 377 P.2d 897 . In support of this new proposition, Justice Traynor opined:

The Supreme Court of California, in the recent case of Price v. Shell Oil Co., supra, applied the risk distribution rationale to impose strict liability on the lessor of a truck for damages caused by defects existing in the truck when leased. Finding his inspiration in the Greenman and Escola cases, Justice Sullivan stated:

As was found by the court in Smith v. Lockheed Propulsion Co., supra, the risk distribution justification for imposing strict liability is well suited to claims arising out of the conduct of ultrahazardous activity. The victims of such activity are defenseless. Due to the very nature of the activity, the losses suffered as a result of such activity are likely to be substantial — an “overwhelming misfortune to the person injured.” 24 Cal.2d at 462 , 150 P.2d at 441 . Southern Pacific, like the manufacturer in Greenman , like the lessor in Price , and like Lockheed Propulsion Co. in Smith , is in a position to “administer the loss so that it will ultimately be borne by the public.” 247 Cal.App.2d at 785 , 56 Cal.Rptr. at 137 . By indirectly imposing liability on those that benefit from the dangerous activity, risk distribution benefits the social-economic body in two ways: (1) the adverse impact of any particular misfortune is lessened by spreading its cost over a greater population and over a larger time period, and (2) social and economic resources can be more efficiently allocated when the actual costs of goods and services (including the losses they entail) are reflected in their price to the consumer. Both of these benefits may be achieved by subjecting Southern Pacific to strict liability.

Southern Pacific argues that the California courts would not subject it to strict liability on a risk distribution theory because they would find that common carriers may not be held absolutely liable for damages resulting from the transportation of bombs the carrier was bound to ship. In support, it cites a number of decisions in other jurisdictions which have held that a common carrier may not be held strictly liable. Hertz v. Chicago, Indiana and Southern Railroad Co., 154 Ill.App. 80 (1910); Actiesselskabet Ingrid v. Central Railroad Co. of New Jersey, 216 F. 72 (2nd Cir. 1914); Pope v. Edward M. Rude Carrier Corp., 138 W.Va. 218 , 75 S.E.2d 584 (1953); Christ Church Parish v. Cadet Chemical Corp., 25 Conn.Sup. 191 , 199 A.2d 707 (1964).

Actually, the cases cited by Southern Pacific proceed on two theories. First, several decisions have found carriers to be excepted from the general rule of strict liability simply because they have the right to engage in the ultrahazardous activity. In Hertz v. Chicago, Indiana and Southern Railroad Co., supra, the court found that where the railroad common carrier had a right under state law to transport dynamite, the railroad was not an insurer of losses suffered due to the transportation of the dynamite. More recently in Pope v. Edward M. Rude Carrier Corp., supra, the Supreme Court of West Virginia held that a licensed contract carrier cannot be held strictly liable for damages resulting from the explosion of the carrier’s dynamite laden truck because the carrier had the right to engage in that activity under the applicable laws:

Neither the Hertz nor the Pope courts indicated why the carriers before them should be exempted from strict liability. However, both of these cases appear to fall within a category of cases described by the late Professor Prosser:

Following this logic, common carriers might be exempted from strict liability if some public authorization could be construed as a finding that the carriage of bombs is not anti-social, and as condoning the consequences in advance.

There is no direct authority indicating whether California courts would accept or reject an exemption for common carriers based on some form of public authorization. However, the results in a number of California ultrahazardous activity decisions, and consideration of the current rationales for imposing strict liability in this context indicate that California would follow what Prosser describes above as the rule of the “later cases,” and reject any such exemption.

In McGrath v. Basich Brothers Construction Co., 7 Cal.App.2d 573 , 46 P.2d 981 (1935), the court ruled that a contractor engaged in building a highway under a contract with the state may be held strictly liable for damages caused by blasting on the highway projects. It is not clear from the opinion whether the defendant contrac tor sought some form of exemption based upon the public contract, but the court stated:

Public authorization of the ultrahazardous activity in the form of a public contract afforded the defendant no protection from the burden of strict liability, and the court’s language indicates that other forms of public authorization would do no more.

Public authorization did not preclude strict liability in Luthringer v. Moore, supra, and Smith v. Lockheed Propulsion Co., supra. In Luthringer, the hapless fumigator was held strictly liable despite the fact that he had been licensed to use the lethal gas which injured the plaintiff. 31 Cal.2d at 496 , 190 P.2d 1 . Similarly, in Smith , Lockheed Propulsion Co. was subjected to absolute liability although it was acting pursuant to a contract with the United States Air Force. 247 Cal.App.2d at 777 , 56 Cal.Rptr. 128 .

A public authorization exception does have some basis in reason when strict liability is imposed, as in Green v. General Petroleum Corp., supra, only as an equitable arrangement between the injured party and the risk creating actor. Insofar as strict liability is imposed on the innocent but dangerous actor because his conduct is anti-social, such liability would be inappropriate if specific public authorization is read to mean that the conduct is socially desirable.

However, California also imposes strict liability because certain activity is so dangerous that such a standard is thought necessary to distribute the loss among the general public. Smith v. Lockheed Propulsion Co., supra. There is no logical basis for a public authorization exception when this risk distribution rationale is utilized to justify the strict liability standard. The need to distribute the risk and the benefits to be derived from the distributions do not vary according to whether the dangerous activity is authorized by the state in some manner.

While neither the Hertz nor the Pope cases, cited by Southern Pacific, considered the effect of a risk distribution rationale on the propriety of imposing strict liability, risk distribution was considered by the Supreme Court of Washington in Siegler v. Kuhlman, 81 Wash.2d 448 , 502 P.2d 1181 (1972) (concurring opinion by Rosellini). In Siegler , the defendants were the driver of a truck holding 3,800 gallons of gasoline, and the owner (Pacific Intermountain Express) of a trailer tank containing 4,800 gallons of gasoline. Shortly after exiting an interstate highway, the trailer tank overturned spilling thousands of gallons of gasoline on the road. When a vehicle passed along the road shortly thereafter, the fumes ignited, killing the vehicle’s occupant. Evidence had been presented which indicated that the carrier was subject to federal regulation, and the plaintiff argued that the defendants had violated certain state regulations. The majority opinion held that the defendant carriers must be held strictly liable for two reasons: (1) that as a matter of abstract justice, the burden should be put “upon the one of the two innocent parties whose acts instigated or made the harm possible” ( 502 P.2d at 1185 ), and (2) that problems of proof justified a strict liability standard — including, the likely destruction of evidence when ultrahazardous activity miscarries, the inherent difficulty in proving causation where negligence is the standard, and the limited expertise of juries. The concurring opinion of Associate Justice Rosellini argued for an additional rationale:

Although apparently subject to both state and federal regulation, which might be construed as somehow authorizing the ultra-hazardous activity, the Siegler court looked directly to existing policy considerations to see if strict liability ought to be imposed.

Likewise, California courts, following the logical implications of the recognized rationale of risk distribution, would likely find that no exception ought to be created for carriers merely because they are authorized in some manner to commit dangerous acts.

The second basis for not imposing strict liability on common carriers is the one upon which Southern Pacific has relied in its briefs: that where a common carrier has a duty to transport dangerous cargo, it is unjust to hold it strictly liable when damages result from the transportation. This defense first appeared in Actiesselskabet Ingrid v. Central Railroad Co. of New Jersey, supra, a 1914 admiralty case. In Ingrid, a shipowner brought a libel to recover for the loss of his ship — the ship having been destroyed when dynamite loaded train ears, situated adjacent to the ship, exploded. The shipowner argued that the doctrine of Rylands v. Fletcher should be applied to hold the railroad absolutely liable for the loss of the ship. After expressing considerable doubt about whether the doctrine of liability without fault was acceptable under any circumstances, the Ingrid court reasoned that strict liability should not be imposed on common carriers transporting explosives since such carriers have a duty to carry cargo:

The argument that no strict liability should be imposed where the carrier is acting pursuant to a public duty was adopted by the American Law Institute (ALI) in 1937, when it. set forth in its Restatement of Torts its scheme for imposing strict liability for the miscarriage of an ultrahazardous activity. See 3 American Law Institute, Restatement of Torts, §§ 519-521 (1938). The general rule adopted by the ALI is contained in § 519, which provides:

Ultrahazardous activity is defined by § 520:

The ALI carved out an exception to the general rule of § 519 in § 521, which provides:

This exception is explained by Comment (a) to § 521, which states in pertinent part:

Thus, the ALI would not impose strict liability on a common carrier where the ultra-hazardous activity engaged in was required of it by its status as a common carrier.

The ALI position was followed by the Superior Court of Connecticut, New London County, in the Christ Church Parish case, supra. Plaintiffs in that case were injured when the defendants’ truck, carrying explosive chemicals, blew up. Relying on the weight of authority in other jurisdictions, the Superior Court held that the carrier was not an insurer:

Southern Pacific argues that California would find these authorities to be persuasive, and would adopt the rule of § 521. In support it cites the Luthringer case, in which the Supreme Court of California quoted at length from the ALI’s Restatement of Torts, including § 521. See 31 Cal.2d at 499 , 190 P.2d 1 . However, although the California court quoted § 521 in Luthringer, this court cannot find that it adopted § 521, as Southern Pacific suggests. The question of a privilege based upon a public duty was not before the court. Also, the manner in which § 521 was quoted does not indicate that the court adopted that particular section of the Restatement. While this court has an obligation to follow considered dicta of the California courts, Rocky Mountain Fire & Casualty Co. v. Dairyland Insurance Co., 452 F.2d 603 (9th Cir. 1971) (per curiam), this court abdicates its responsibility if it seizes upon mere passing comment and invokes it as the law of the state. See Hartford Accident and Indemnity Company v. First National Bank and Trust Company of Tulsa, Okl, 287 F.2d 69 (10th Cir. 1961); Doucet v. Middleton, 328 F.2d 97 (5th Cir. 1964); 1A Moore’s Federal Practice ¶ .307(2), p. 3313.

The question remains, then, whether California would carve out an exception for common carriers engaged in a public duty, protecting them from strict liability. This court answers in the negative. If California predicated liability solely upon the “fairness” rationale appearing in the Green case, it might well find that strict liability was inappropriate. Under the Green rationale strict liability is imposed because the ultrahazardous actor intentionally exposes others to a serious danger — an anti-social act is being redressed. Where the carrier has no choice but to accept dangerous cargo and engage in an ultrahazardous activity, it is the public which is requiring the carrier to engage in the anti-social activity. The carrier is innocent.

But, there is no logical reason for creating a “public duty” exception when the rationale for subjecting the carrier to absolute liability is the carrier’s ability to distribute the loss to the public. Whether the carrier is free to reject or bound to take the explosive cargo, the plaintiffs are equally defenseless. Bound or not, Southern Pacific is in a position to pass-along the loss to the public. Bound or not, the social and economic benefits which are ordinarily derived from imposing strict liability are achieved. Those which benefit from the dangerous activity bear the inherent costs. The harsh impact of inevitable disasters is softened by spreading the cost among a greater population and over a larger time period. A more efficient allocation of resources results. Thus, the reasonable inference to be drawn from the adoption of the risk distribution rationale in Smith v. Lockheed Propulsion Co., supra, is that California would follow the path of the Supreme Court of Washington in Siegler v. Kuhlman, supra, and find that carriers engaged in ultrahazardous activity are subject to strict liability. IT IS THEREFORE ORDERED that Southern Pacific’s motions to dismiss the ultrahazardous activity strict liability claims stated against it in the above entitled cases are DENIED.

. Southern Pacific has not argued that transporting bombs is not an ultrahazardous activity, and the court declines to rule on this question. . All of the plaintiffs did not advance all of these arguments. . Plaintiffs seek to raise a factual question with respect to Southern Pacific’s duty to carry these bombs, which dispute cannot be resolved on a motion to dismiss. . See Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499 (1961). . While Southern Pacific has not advanced this argument, its citation of cases that do leads the court to consider its merit. . This case may also be explained as exempting carriers from strict liability because of duty to carry goods tendered. . Southern Pacific has not argued, as did the Ingrid court, that those passing near the channels of commerce assume the risk of harm incident to the transportation of dangerous goods. . The Luthringer court stated: “It has been said:” followed by lengthy quotation of §§ 519, 520, 521, 523 and 524. 31 Cal.2d at 499 , 190 P.2d 1 .