493 F.2d 652 | Ct. Cl. | 1974
delivered the opinion of the court:
'This case arises from a Government contract
The actual matter here in controversy arises from the Armed Services Board of Contract Appeals (ASBCA)
Following denial of plaintiff’s claim by the ASBCA,
General provision 9 (a) of the contract provided as follows:
9. INSURANCE — PROPERTY LOSS OR DAMAGE — LIABILITY TO third persons. — (a) The Contractor shall not, unless otherwise directed in writing by the Department, carry or incur the expense of, any insurance against any form of loss or damage to the vessels or to the materials or equipment therefor to which the Government has acquired title or which have been furnished by the Government for installation by the Contractor. The Government assumes the risks of loss of and damage to the vessels and such materials and equipment which would have been assumed by the underwriters if the Contractor had procured and maintained throughout the term of this contract, on behalf of itself and the Government, insurance with respect to the vessels and such materials and equipment for full value against pre-keel and post-keel laying risks (i) under the forms of Marine Builders Bisk (Navy Form-Syndicate) policy, including the rider attached to the “Free of Capture and Seizure” clause thereof, and War Damage policy, both as set forth in the pamphlet entitled “Standard Forms of Marine Builders Bisk (Navy Form-Syndicate) and War Damage Insurance Policies referred to in Vessel Contracts of the Naval Ship Systems Command,” dated 23 November 1942; or (ii) under any other policy forms which the Insurance Branch, Headquarters, Naval Material [Materiel] Command, of the Department shall determine were customarily carried or would have been customarily carried by the Contractor in the absence of the foregoing requirement that the Contractor not carry or incur the expense of insurance; provided, that the Government does not assume any risk with respect to loss or damage compensated for by insurance or otherwise or resulting from risks with respect to which the Contractor has failed to procure or maintain insurance, if available, as required or approved by the Department. * * *. [Appeal of Northwest Marine Iron Works, Ino., asboa No. 16350,73-1 BOA ¶9902 at 46,347.]
In its argument, plaintiff calls the court’s attention to dicta in D.C. Andrews & Co. v. United States, 129 Ct. Cl. 574, 576,
* * * The contract of insurance, indeed, is a maritime contract, and as such is within the jurisdiction of an admiralty court. But a contract or obligation to procure insurance, such as I find this obligation to have been, is not a contract of insurance, nor is it a maritime contract. * * *. [53 F. at 606.]
Plaintiff makes its argument with full knowledge of the rule set out by the court in Alaska Barge & Transport, Inc. v. United States, 179 Ct. Cl. 216, 373 F. 2d 967 (1967). In that case, Chief Judge Cowen, speaking for a unanimous court, detailed the procedure this court must follow in cases similar to the present one. The Chief Judge wrote that:
* * * Whenever presented with a threshold question as to the propriety of our adjudicating a claim having maritime elements, it is our responsibility to view the facts as would a court of admiralty. If admiralty jurisdiction is found to exist, then we must transfer the case to its proper forum. Act of September 13,1960, 74 Stat. 912, 28 U.S.C. § 1506. It is only where a district court would not assume jurisdiction under the Suits in Admiralty Act that we may justifiably permit the claim to be litigated here [footnote omitted]. [179 Ct. Cl. at 220,373 F. 2d at 970.]
The same rule was expressed a few years earlier by Judge Madden in Skibsaktieselskapet Siljestad v. United States, 149 Ct. Cl. 141, 143, 180 F. Supp. 957, 958 (1960):
If a claim may be sued upon in a Court of Admiralty, this court does not have jurisdiction to entertain it, even though it is a claim otherwise included within the language of the statutes defining this court’s jurisdiction. * * *
For reasons hereafter set out, we reach the following conclusions: first, that general provision 9(a) evinces a contract of insurance in that the Government agreed to act as a self-insurer for purposes of this contract; second, that no contract to procure or provide insurance was ever contemplated or entered into by the parties; third, that this court lacks jurisdiction of the case; and, fourth, that the matter should be transferred to a federal district court having maritime jurisdiction, 28 U.S.C. § 1506; see Buck Kreihs Co. v. United States, 192 Ct. Cl. 297, 301, 427 F. 2d 770, 772 (1070), for such resolution on the merits, if any, as that court may deem appropriate in admiralty.
Plaintiff contended in its brief and at oral argument that the Government obligated itself to act as a self-insurer, then refused to do so, forcing plaintiff to purchase SRLL insurance privately. This argument implies that SRLL insurance was necessary for a contract such as the one applicable in this case. This interpretation, however, is incorrect. Nowhere in general provision 9(a) is there any language obligating the Government to provide particular types of insurance to protect plaintiff. Rather, general provision 9(a) clearly and unequivocally evidences the Government’s intention to provide insurance coverage itself by acting as a self-insurer on the contract. The first sentence of general provision 9(a) provides that:
The Contractor shall not, unless otherwise directed in writing by the Department, carry or incur the expense of, any insurance against any form of loss or damage * * * [73-1 BOA at 46,347.]
* * * The Government assumes the risJcs of loss of and damage to the vessels * * * which would have been assumed by underwriters * * * (i) under the forms of Marine Builders Risk * * * policy, * * * or (ii) under any other policy forms which the Insurance Branch, Headquarters, Naval Material [Materiel] Command
* * * shall determine were customarily carried or would have been customarily carried by the Contractor in the absence of the * * * requirement that the Contractor not carry or incur the expense of insurance; * * *. [Emphasis added.]
The only possible legal conclusion which can be drawn from the above-quoted language is that the Government, acting as a self-insurer, directed its contractor not to incur any insurance obligations without specific written authorization. The Government explicitly covenanted that it would provide insurance coverage necessary under the contract and nothing in the record indicates otherwise. Plaintiff’s argument that the SRLL policy was necessary for complete insurance protection in this case flies in the face of the language of the general provision instruction that plaintiff not incur any insurance obligations “unless otherwise directed in writing * * *.” That clause can only be interpreted as establishing a condition precedent without which plaintiff could not have incurred reimbursable expense for SRLL coverage under the contract. Plaintiff’s interpretation renders the provision for a Government determination meaningless, as the board decision said:
mc * m= xjnc[er appellant’s interpretation, the Government would be obligated to act as insurer with respect to any risks customarily covered by appellant’s insurance regardless of whether the Government had made any determination that it intended to act as an insurer with respect to those risks, or even had knowledge of the risks. We consider such an interpretation to be unreasonable and inconsistent with the terms of the clause. [73-1 BCA at 46,353.]
Plaintiff’s argument also ignores another condition precedent found in the “customarily carried” language of clause 9(a) (ii). Plaintiff appears oblivious to the requirement that the “Insurance Branch, Headquarters, Naval Material [Ma
Defendant’s motion to dismiss or to transfer is granted and denied as follows: it is ordered that the case be and it is transferred, 28 TJ.S.C. § 1506, to the United States District Court for the District of Oregon, which has maritime jurisdiction under 46 U.S.C. § 742. Further proceedings in the United States Court of Claims are terminated.
Contract No. N00024-70-C-0224 (Oct. 20,1969).
Appeal of Northern Marine Iron Works, Inc., ASBCA No. 16350, 73-1 BCA ¶9902 (Jan. 19, 1973).
Plaintiff’s petition to the court contained two counts. At oral argument, plaintiff agreed to rely solely on its first count, herin addressed, and to dismiss its second count, as that count evidence a claim purely maritime in nature and not within the jurisdiction of this court. Plaintiff filed a motion to dismiss its count II on Dee. 7, 1973. Defendant consented to the motion and it was dismissed by the court on Dec. 10, 1973.
28 U.S.C. §1506: “If a case within the exclusive jurisdiction of the district courts is filed in the Court of Claims, the Court of Claims shall, if It be In the interest of justice, transfer such case to any district court in which It could have been brought at the time such case was filed, where the case shall proceed as if it had been filed In the district court on the date it was filed In the Court of Claims.”