Avondale Shipyards, Inc. v. Delta Marine Contractors, Inc.

440 So. 2d 164, 1983 La. App. LEXIS 9165
CourtLouisiana Court of Appeal
DecidedSeptember 2, 1983
DocketNo. 12355
StatusPublished
Cited by2 cases

This text of 440 So. 2d 164 (Avondale Shipyards, Inc. v. Delta Marine Contractors, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avondale Shipyards, Inc. v. Delta Marine Contractors, Inc., 440 So. 2d 164, 1983 La. App. LEXIS 9165 (La. Ct. App. 1983).

Opinion

REDMANN, Chief Judge.

Delta Marine Contractors, Inc. appeals from a judgment in favor of Avondale Shipyards for $270,215.84 damages for breach of two Navy shipbuilding subcontracts. Delta contends that breaches by Avondale caused Delta’s noncompletion of its contracts. But the primary contention of Delta’s reconventional demand is that, in any case, Avondale owes Delta $4,000,000 in price adjustments under these and similar contracts on Navy ships and $7,000,000 damages for a judicial sequestration that put Delta out of business. Delta further contends that Avondale did not prove the costs of completion awarded on the two contracts Avondale sued on.

We conclude that Avondale did prove its cost of completion, although the correct measure of damages is not cost but excess cost of completion; that equitable adjustments in Delta’s prices were represented by Avondale to the Navy to be due in amounts so far in excess of Avondale’s $50,000 provisional payment that Avondale must be held to owe further equitable adjustments notwithstanding that Delta’s deficient financial records prevent a mathematical approximation of equitable adjustments; that Delta did not prove that Avondale caused Delta’s breach of contract; and that Avon-dale’s judicial seizure was not unlawful (and was in any case not the cause of Delta’s destruction).

Avondale had contracts with the Navy to build first seven and then 20 more ocean [166]*166escorts. Avondale subcontracted some parts of that work to Delta by “purchase orders” for fabrication alone or fabrication and installation of items such as doors and stowage fixtures.

Whether caused entirely by the Navy or in part by Avondale (as, possibly, by its need to “rebuild” two hurricane-damaged vessels it had under construction), delays of ' about two years occurred in the building of the ships, and these delays allegedly affected Delta by a variety of increased costs for which it requested but, save for a $50,000 advance by Avondale for “business interruption,” did not obtain equitable adjustment as authorized by the purchase orders and the general Navy contract. Meanwhile, Delta billed Avondale for progress payments not on the basis of percentage of completion (but not over cost plus 5%) as agreed and as recited in the billings, but instead on a basis related to Delta’s cash expenditures, including expenditures unrelated to the Avondale purchase orders. One consequence of those two factors, precipitated by Delta’s insistence on an agreement for storage charges, was that the remaining installation portion of the 20-ship stowage fixtures purchase order was canceled. (Avondale deemed the storage charges high and preferred itself to store the fabricated items; Delta believed its own installation costs would be thereby increased and Avon-dale believed Delta could not do the installation for the price assigned to it anyway.) Another consequence was that Delta became unable to complete the final portion of the two largest orders and notified Avon-dale of its intent to cease operations and sell everything it had, including all work in progress.

Avondale then judicially sequestered (and later bonded out and used) the work in progress and the material Delta had for the Avondale orders. (Delta charges the seizure went beyond those items.) Avondale itself completed the fabrication.

Avondale’s sequestration action also asked reimbursement of progress payment overbillings, return of $14,000 of its $50,000 provisional advance, and damages caused by Delta’s breach, including costs of the transportation of the sequestered items to Avon-dale.

Delta’s reconventional demand alleged that Avondale, rather than Delta, breached their contracts, first by delays and by refusal to afford equitable adjustment for the increased costs caused by the delays, and finally by the judicial seizure that Delta claims destroyed Delta as a business entity.

The trial court commissioner, in a 63-page report, recommended a judgment for Avon-dale for $270,215.84, as Avondale’s cost (sic) of completion of the Delta purchase orders (save installation but including $18,571.36 cost of transporting and warehousing the items sequestered from Delta). The trial court judge noted “difficulty in determining whether the Delta Marine claims for adjustment due to delays and disruption by the U.S. Navy were included in Avondale’s claim submission and settlement with the Navy,” but he “affirmed” the “Judgment of the Commissioner.”

We preliminarily observe that if Delta was entitled to recover its government-caused delay losses from Avondale who in turn was to recover from the Navy, Avondale’s failure to recoup those losses from the Navy does not preclude Delta’s recovery from Avondale. But we also observe that, to be entitled to recover from Avondale, Delta had to present its claims in time for Avondale to present them to the Navy for reimbursement. Delta did timely present its claims in the amounts of $199,-565 and $645,557; but Delta did not timely present its $4,000,000 upward revision of those claims. That upward revision was not claimed until the reconventional demand in this lawsuit. (And it is clear that most if not all of these claims are for Navy delay despite the contention that Avondale itself engaged in delay to force concessions from the Navy.) We therefore do not consider the upward revision of Delta’s claims notwithstanding that Delta’s brief argues this upward revision at great length.

We further observe that the basic damages for breach of a contract are not [167]*167cost of completion but the excess cost of completion (as even the contracts’ General Requirement 34b specified), and it is therefore irrelevant to the basic measure of damages that Delta’s progress payment billings exceeded their rightful amount. The basic measure of damages is excess of total actual cost over contract price, and total actual cost is composed of all progress payments (whether correctly calculated or not) plus the cost of completion. To put it another way, had the progress payments been less by a given number of dollars, Avondale would have owed that number of dollars more to Delta to complete the job, and therefore the difference between the amount Avondale should have paid to Delta to complete the contracts and the amount Avondale in fact paid to complete the job itself — the excess cost of completion— would be smaller by that same number of dollars. We therefore do not detail Delta’s overbillings although a large portion of record and briefs consists of evidence and argument on overbillings. (Although over-billings are in themselves a violation of the contract terms, Avondale did not claim nor establish the amount of interest arguably due because of early payment, nor any set-off from late payment; and we presume this possible element of damage was abandoned by Avondale as minimal.)

Delta breached the contracts that Avondale sued on (relative to the 20-ship contract) by failing to complete them (because of financial inability) and threatening instead to sell the fabricated items and materials it held. The federal contractual agreement gave Avondale a lien if not title to those things. Avondale’s sequestration was not proven to be excessive and, perhaps more determinative of Delta’s claim on this point, was not the cause of Delta’s destruction as a business, for Delta had previously notified Avondale that it was ceasing all operations and selling all its assets.

Furthermore, Avondale did not by its own breach of those contracts cause Delta’s failure to complete its performance.

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440 So. 2d 164, 1983 La. App. LEXIS 9165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avondale-shipyards-inc-v-delta-marine-contractors-inc-lactapp-1983.