Northwest Marine Iron Works v. United States

493 F.2d 652, 203 Ct. Cl. 629, 1974 U.S. Ct. Cl. LEXIS 232
CourtUnited States Court of Claims
DecidedFebruary 20, 1974
DocketNo. 148-73
StatusPublished
Cited by29 cases

This text of 493 F.2d 652 (Northwest Marine Iron Works v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northwest Marine Iron Works v. United States, 493 F.2d 652, 203 Ct. Cl. 629, 1974 U.S. Ct. Cl. LEXIS 232 (cc 1974).

Opinion

BeNNett, Judge,

delivered the opinion of the court:

'This case arises from a Government contract1 between [631]*631plaintiff, Northwest Marine Iron Works, Inc., a corporation organized and existing under the laws of the State of Oregon, and the Naval Ship System 'Command of the Department of the Navy. The contract called for the “activation, repair and conversion” by plaintiff of a Navy vessel from a troop transport to a fleet ballistic missile tracking ship. As such, the contract was one for “repair” and not “construction” and, thus, was essentially maritime in nature. New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96, 99-100 (1922); Tucker v. Alexandroff, 183 U.S. 424, 438-39 (1902). This court does not have maritime jurisdiction but plaintiff argues upon authority that nonmaritime portions of maritime contracts may in some situations be severed and considered by the Court of Claims. In other words, plaintiff says that it is the nature of the controversy and not the nature of the underlying contract that determines whether admiralty jurisdiction exists. Plaintiff says that its claim is severable from the maritime contract to which it was a party and that we have jurisdiction under the Tucker Act, 28 U.S.C. § 1491.

The actual matter here in controversy arises from the Armed Services Board of Contract Appeals (ASBCA)2 decision denying plaintiff reimbursement for insurance premiums which, according to plaintiff, the Government was obligated to assume under the “insurance” clause, general provision 9 (a) of the contract.

Following denial of plaintiff’s claim by the ASBCA,3 plaintiff filed this action under the second section of the Wunderlich Act, 41 U.S.C. § 322. Defendant, thereafter, filed a motion to dismiss the petition on the ground that the court lacks jurisdiction over the subject matter of the suit, or, in the alternative, to transfer the petition under 28 [632]*632U.S.C. § 1506 4 to a federal district court having maritime jurisdiction. We transfer since we conclude this court has no jurisdiction of the claim.

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.]

[633]*633The parties agree that it is the language of this section which is determinative of the dispute in this case. Plaintiff contended before the Board of Contract Appeals and before this court that general provision 9 (a) imposed upon the Government a duty either to provide or to procure the types of insurance customarily carried by plaintiff under similar contracts. Plaintiff had carried Ship Eepairer’s Legal Liability '(SELL) insurance on all its commercial and -Government ship repair and conversion contracts since January 1, 1967. Plaintiff did not include the cost of such insurance in its bid price since it believed it would be found to have “customarily carried” such insurance for purposes of general provision 9(a). The premiums payable on plaintiff’s SELL policy were based on a rate-times-gross-receipts formula. Plaintiff normally included in its bids a factor representing this formula in order to cover the cost of the SELL premium allocable to the contract. Plaintiff contacted the Government shortly after it entered into the contract in order to determine for certain whether defendant would act as a self-insurer or whether it would direct plaintiff to procure SELL insurance. Plaintiff felt such insurance was essential and intended to continue to carry its SELL insurance unless the Government informed it of its intention to provide such coverage as a self-insurer. The Government responded to plaintiff’s inquiry on May 14,1970, more than 5 months after plaintiff’s initial inquiry. In its response, the Government denied responsibility for SELL coverage. Plaintiff accordingly continued to carry such insurance and later brought action for a constructive change to the Board of Contract Appeals. The board found that plaintiff’s SELL coverage was “considerably broader than the SELL coverage usually maintained by ship repairers,” 71-1 BCA at 46,348, and that the Government was not obligated to assume such risk under the insurance clause of the contract. Equitable adjustment was denied. Plaintiff now brings suit in this court alleging that the board made an error of law in its interpretation of general provision 9 (a) of the contract and that the decision lacks finality under 41 U.S.'C. § 822.

In its argument, plaintiff calls the court’s attention to dicta in D.C. Andrews & Co. v. United States, 129 Ct. Cl. 574, 576, [634]*634124 F. Supp. 362, 363 (1954). In that decision, this court noted that “contracts to procure insurance for a vessel are non-maritime and not cognizable in a court of Admiralty.” [Emphasis in original.] This distinction, between a contract to procure insurance and a contract of insurance, was first set out in Marquardt v. French, 53 F. 603 (S.D.N.Y. 1893). There, the court dismissed an action brought in admiralty on the ground that it concerned a contract to procure insurance and not a contract of insurance. The court drew its distinction as follows:

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Bluebook (online)
493 F.2d 652, 203 Ct. Cl. 629, 1974 U.S. Ct. Cl. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwest-marine-iron-works-v-united-states-cc-1974.