United States v. Bethlehem Steel Corporation United States Shipping Board Merchant Fleet Corporation v. Bethlehem Shipbuilding Corporation

• Decision Date: 16 February 1942
• Docket Number: 9,Nos. 8,s. 8
• Citation: 86 L.Ed. 855,315 U.S. 289,62 S.Ct. 581
• Parties: UNITED STATES v. BETHLEHEM STEEL CORPORATION et al. UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION v. BETHLEHEM SHIPBUILDING CORPORATION, Limited
• Court: U.S. Supreme Court

315 U.S. 289

62 S.Ct. 581

86 L.Ed. 855

UNITED STATES

v BETHLEHEM STEEL CORPORATION et al.

UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION

v. BETHLEHEM SHIPBUILDING CORPORATION, Limited.

Nos. 8, 9.

Argued Dec. 9, 1941.

Decided Feb. 16, 1942.

[Syllabus from pages 289-291 intentionally omitted] Merrs. Francis Biddle, Atty. Gen., and Charles Fahy, Sol. Gan., for petitioners.

Mr. Frederick H. Wood, of New York City, for respondents.

Mr. Justice BLACK delivered the opinion of the Court.

These two cases arise from a dispute between Bethlehem Shipbuilding Corporation, Ltd., and the government about the amount of profits claimed by Bethlehem under thirteen war time contracts for building ships. The contracts were negotiated and executed in 1917 and 1918, when Germany's destructive warfare against our ocean shipping essential to the successful prosecution of the war made it necessary for the United States to build the greatest possible number of ships in the shortest possible time. They are typical products of a system of procurement heavily relied upon by the United States Shipping Board Emergency Fleet Corporation and other government purchasing agencies at the time.

On June 15, 1917, Congress gave to the President sweeping war powers, 40 Stat. 182, including (1) the power to commandeer shipbuilding plants and facilities, (2) the power to purchase ships at what he deemed a reasonable price with a provision for subsequent revision by the courts in the event the seller regarded the price set as unfair, and (3) the power to purchase or contract for the building of ships at prices to be established by negotiation. Acting under authority delegated to it by the President with Congressional approval, the Fleet Corporation declined to seek utilization of the first and second methods but chose, under the third alternative, to make purchases though ordinary business bargaining.

The 'actual cost' to Bethlehem of building the ships over which this dispute arises was about $109,000,000. The generously inclusive formula¹ for determining 'ac- tual cost,' not challenged by the government here, was not peculiar to these contracts. It was based on the standard formula used by the Fleet Corporation in its contracts with other shipbuilders. And, as in practically all contracts of this type, there was no risk of loss.² The total profits claimed under the contracts by Bethlehem, and allowed by both courts below, were about $24,000,000,³ or a little more than 22% of the computed cost.⁴ This figure of $24,000,000 does not include such profits as may have been made by Bethlehem Steel Company, Bethlehem's parent, which sold it at the maximum prices established by the War Industries Board, 43,000 tons of steel used in these ships.⁵ The percentage of profits in relation to the actual investment and working capital devoted by Bethlehem to the building of the ships was not found by either of the courts below.⁶

In No. 8, the government filed a bill in equity against Bethlehem and others. The bill alleged that the gov- ernment had been induced to enter into the contracts by fraudulent representations of Bethlehem's agents; and as an independent ground for relief, that it had been the duty of Bethlehem to perform the contracts fairly, honestly, and economically 'in the shortest practicable time' for no more than 'a fair and reasonable profit' and that any provisions in the contract for payment of more are 'void and unenforceable.' The prayer was for an accounting and a decree requiring Bethlehem to refund all amounts previously paid to it by the government in excess of what the court should find to be just and reasonable compensation for building the ships. Bethlehem filed an answer and a counterclaim for damages based on alleged breach of contract by the Fleet Corporation.

In No. 9, Bethlehem brought suit at law against the Fleet Corporation claiming damages for breach of the same contracts. In an affidavit of defense and counterclaim the Fleet Corporation repeated the allegations made by the government in No. 8 and sought the same relief.

The two actions were jointly referred by the District Judge to a Master who held hearings and made findings. In No. 8, the Master recommended that the government's bill be dismissed, and on the authority of Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190, further recommended that Bethlehem's counterclaim be dismissed for want of jurisdiction, the amount claimed being in excess of $10,000. In No. 9, he recommended that judgment be entered for Bethlehem for $5,272,075⁷ with interest at 2% from September 1, 1922. The District Judge declined to allow any interest, applying the law of Pennsylvania as he thought our decision in Erie R. Co. v Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, required. In all other respects he followed the Master's recommendations and rendered judgment accordingly. 23 F.Supp. 676; 26 F.Supp. 259. The Circuit Court of Appeals affirmed. 3 Cir., 113 F.2d 301, 305. On application of the United States and the Fleet Corporation, we granted certiorari. 311 U.S. 632, 61 S.Ct. 49, 85 L.Ed. 402.

As the case reaches us, the controversy revolves primarily around the section of the contracts which sets out what is to be paid to Bethlehem. In all the contracts, that section contains substantially the following provisions:

'The price to be paid for each vessel to be constructed and furnished in accordance with the terms of this contract * * * shall be the actual cost, plus the definite sum for profit hereinafter in this Article provided for, based upon an estimated base cost to the Contractor * * *. Should the actual cost be less than the estimated * * * cost * * * the Contractor shall be allowed as profit on each vessel in addition to said fixed sum for profit * * * one-half the amount by which such actual cost of each vessel falls short of the estimated cost * * *.'

Thus, a high estimated cost would increase the probability of 'savings' to be divided between Bethlehem and the government. And the more the estimated cost exceeded actual cost, the greater would be Bethlehem's share. It can be seen, therefore, that the estimated cost agreed upon by the parties is a pivotal figure.

I.

The government charged Bethlehem with fraud in submitting estimated cost figures which were adopted in the contracts. It was alleged that Bethlehem's agents made two false representations: (1) that it was impracticable to estimate closely what the cost would be and (2) that the estimates Bethlehem submitted, and which the Fleet Corporation accepted, were fair and reasonable under the circumstances. The Master found that there was no evidence to support this charge of fraud. The District Judge approved this finding as did the Circuit Court of Appeals which said that it had 'carefully considered the record in the light of this contention (of fraud)' and concluded that 'the estimates submitted by Bethlehem and prepared for it by its representative Brown were fairly and honestly made and as accurate as could be expected under the uncertain conditions then prevailing.' And in this Court the petitioner accepts these findings. Therefore, in considering other attacks upon Bethlehem's right to recover, we must do so on the assumption that there was no fraud in Bethlehem's negotiations with the government.

II.

The government contends that even in the absence of fraud, Bethlehem is entitled to nothing by virtue of the half-savings clauses.

One argument is that the contracts gave Bethlehem the benefits of participating in the savings only if Bethlehem by special efforts increased its efficiency and brought actual costs below the estimates agreed to in the contracts.

Neither the specific language of the half-savings provision nor its context supports this contention. On its face, the provision contains an unconditional promise to pay Bethlehem one-half of the difference between the actual and estimated cost of the ships in question. That such a method of computation would tend to discourage careless expenditures and encourage vigorous attempts at realizing economies in building the ships is hardly debatable. But the half-savings clause does not impose any positive obligations upon the builder. The Master found, upon consideration both of the terms of the contracts and testimony on the understanding of the parties, that a showing of savings, without more, obligated the government to share them with Bethlehem. It cannot be main- tained that this finding, accepted by both courts below, is without ample support.

Nothing in the negotiations between the parties as revealed in the record indicates that they had a contrary understanding of the contracts. Bethlehem held out against the Fleet Corporation's early insistence upon lump sum contracts. It continually asserted that uncertainties about final cost due to rapidly rising prices would require it to protect itself by insisting upon a figure too high for the Fleet Corporation's acceptance and therefore itself proposed the cost-plus-fixed-fee-plus-half-savings method of determining compensation. While there seems to have been recognition that this method might induce greater efforts at efficiency which would be to the advantage of both parties, there is not the smallest hint that either Bethlehem or the government regarded the substitution of this method as imposing any positive obligations upon Bethlehem in addition to those it would have had under lump sum contracts.

In the alternative, the government urges that the half-savings clauses are severable and that if the contracts imposed upon Bethlehem no obligation of special effort to effect savings, these clauses were unsupported by consideration, and are therefore unenforceable. The Master and the courts below, however, treated these clauses as non-severable; to do otherwise would call for departure from accepted principles of the law of contract....