397 U.S. 203 (1970), 395, United States v. Seckinger

Docket Nº:No. 395
Citation:397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224
Party Name:United States v. Seckinger
Case Date:March 09, 1970
Court:United States Supreme Court

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397 U.S. 203 (1970)

90 S.Ct. 880, 25 L.Ed.2d 224

United States



No. 395

United States Supreme Court

March 9, 1970

Argued January 14, 1970




An employee of respondent contractor was injured while engaging in work that respondent was performing for the Government under a fixed-price contract providing that the private contractor "shall be responsible for all damages to persons or property that occur as a result of his fault or negligence. . . ." In a suit against the Government under the Federal Tort Claims Act, the employee was awarded damages based upon the Government's negligence. Thereafter, the Government brought this action for indemnification, alleging that the contractor's negligence was solely responsible for the employee's injuries. The District Court granted respondent's motion to dismiss, in part on the ground, thereafter sustained by the Court of Appeals, that the contract clause was not broad enough to permit indemnification of the Government for its own negligence, which had substantially contributed to the injury.

Held: Though the Government, under the contract clause involved here, cannot recover for its own negligence, it is entitled to indemnity on a comparative basis to the extent that it can prove that respondent's negligence contributed to the employee's injuries. Pp. 209-217.

408 F.2d 140, reversed and remanded.

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BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case concerns the construction of a provision common to fixed-price government construction contracts that states that the private contractor "shall be responsible for all damages to persons or property that occur as a result of his fault or negligence. . . ." The Court of Appeals for the Fifth Circuit held that the provision could not be construed to allow the Government to recover from the contractor damages suffered by the Government on account of its own negligence. 408 F.2d 146 (1969). We granted certiorari because of the large amount of litigation that this contract clause has produced1 and because of the divergent results that the lower courts have reached in construing the same or similar provisions.2 396 U.S. 815 (1969). We reverse.


The United States had entered into a contract with the Seckinger Company for the performance of certain plumbing work at a United States Marine base in South Carolina. While working on this project, one of Seckinger's employees was directed by his foreman to assist a fellow employee on a particular section of pipe that had been partially constructed [90 S.Ct. 882] above a street. About four or five feet above the place where the employee was working, there was an electric wire that carried 2,400 volts of electricity. The employee accidentally

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came into contact with the wire, was thrown to the ground 18 feet below and was seriously injured.

The injured employee recovered benefits under South Carolina's workmen's compensation law, S.C.Code Ann. §§ 72-1 to 7-504 (1962), and then commenced a suit in the Eastern District of South Carolina against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, on the theory that his injuries had been sustained as the proximate result of the Government's negligence. The United States, relying on the contract clause, moved to implead Seckinger as a third-party defendant. This motion was denied on the ground that the addition of Seckinger would "unnecessarily and improperly complicate the issues."3

On the merits, the South Carolina District Court found that the United States had customarily de-energized its electric wires whenever Seckinger employees were required to work dangerously near them. The court therefore held that the United States had been grossly negligent in failing to de-energize the wire in this particular case. Alternatively, the Government was held to have been negligent in failing to advise Seckinger's employees that the electric wire had not been de-energized. Concluding also that the employee had in no way contributed to his injury, the District Judge ordered that he recover a judgment against the United States in the amount of $45,000 plus costs. No appeal was taken from this judgment of the District Court.4

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Thereafter, the United States proceeded to the District Court for the Southern District of Georgia and commenced the instant suit against Seckinger. The complaint alleged that Seckinger's negligence was solely responsible for its employee's injuries,5 and that, therefore, the United States should be fully indemnified for the judgment which it had satisfied. In a second count, the Government alleged that Seckinger, having undertaken to perform its contract with the United States, was obligated "to perform the work properly and safely and to provide workmanlike service in the performance of said work."

The District Court granted Seckinger's motion to dismiss the complaint on the alternative grounds, first, that the suit was barred by the prior litigation in South Carolina, and, second, that the contractual language was not sufficiently broad to permit the Government to recover indemnification for its own negligence. The Court of Appeals rejected the first ground [90 S.Ct. 883] of decision,6 but sustained

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the holding that any recovery on the contract was foreclosed to the United States because its negligence had contributed substantially to the injury. The Court of Appeals held that, under the "majority rule," an indemnitee cannot recover for his own negligence in the absence of a contractual provision which unmistakably authorizes this result. Since the contract here did not unequivocally command that the Government be indemnified for its own negligence, and because the injuries in question were thought to have been caused by the "active direct negligence" of the Government with no more than a "slight dereliction" on the part of Seckinger, no recovery whatsoever on the contract would be permitted to the United States.7

In the Government's view, this construction of the clause renders it a nullity, for the United States can never be held liable in tort, under the Tort Claims Act or otherwise, in the absence of negligence on the part of its agents. Thus, so the argument goes, the contractual provision in question can have meaning only in a context in which both the United States and the contractor are jointly negligent.8 In that circumstance, the contractor would be obligated to sustain the full burden of ultimate liability for the injuries produced. Alternatively the Government suggests that it is entitled

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to indemnity on a comparative basis to the extent that the negligence of Seckinger contributed to its employee's injuries.


In the posture in which this case reaches us, the historical background of the clause9 and evidence concerning the actual intention of these particular parties with respect to that provision are sparsely presented. We do know that the clause was required in government fixed-price construction contracts as early as 1938.10 This fact merely precipitates confusion, however, because it was not until the passage of the Tort Claims Act in 1946, §§ 401-44, 60 Stat. 842, as amended, 28 U.S.C. §§ 2671-2680, that the United States permitted recovery in tort against itself for the negligent acts of its agent. Viewed in the pre-Tort Claims Act context, the purpose of the clause is totally unclear except, perhaps, as an exercise in caution on the part of the government draftsmen, or, conceivably, as an attempt to insulate government [90 S.Ct. 884] agents from liability in their private capacities if their negligence arguably combined with that of the contractor to produce a given injury.

In American Stevedores, Inc. v. Porello, 330 U.S. 446 (1947), we had before us a contractual provision that was similar to that involved here. There we noted that

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the clause was susceptible of several different constructions, 330 U.S. at 457-458, and remanded the case to the District Court to ascertain the intention of the parties with respect to the clause. It does not appear that a similar course of action would be fruitful in the instant case. In Porello, there were clear indications from the parties that further evidentiary proceedings in the District Court would shed light on the actual intention of the parties.11 Here, by contrast, there is not only no representation that further proceedings would aid in clarifying the intentions of the parties, but there is at least tacit agreement that the background of the clause has been explored as thoroughly as possible. In these circumstances, we have no alternative but to proceed directly to the contractual construction problem.


Preliminarily, we agree with the Court of Appeals that federal law controls the interpretation of the contract. See United States v. County of Allegheny, 322 U.S. 174, 183 (1944);12 Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). This conclusion results from the fact that the contract was entered into pursuant to authority

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conferred by federal statute and, ultimately, by the Constitution.13

In fashioning a federal rule, we are, of course, guided by the general principles that have evolved concerning the interpretation of contractual provisions such as that involved here. Among these principles is the general maxim that a contract should be construed most strongly against the drafter, which, in this case, was the United States.14 The Government seeks to circumvent this principle by arguing that it is inapplicable [90 S.Ct. 885] unless there is ambiguity in the contractual provisions in dispute and there exists an alternative interpretation that is, "under all the circumstances, a reasonable and practical one." Gelco Builders & Burjay Const. Co. v. United...

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