Peck Iron & Metal Co. v. United States

603 F.2d 171, 26 Cont. Cas. Fed. 83,508, 221 Ct. Cl. 37, 1979 U.S. Ct. Cl. LEXIS 219
CourtUnited States Court of Claims
DecidedJuly 18, 1979
DocketNo. 408-69
StatusPublished
Cited by9 cases

This text of 603 F.2d 171 (Peck Iron & Metal Co. 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
Peck Iron & Metal Co. v. United States, 603 F.2d 171, 26 Cont. Cas. Fed. 83,508, 221 Ct. Cl. 37, 1979 U.S. Ct. Cl. LEXIS 219 (cc 1979).

Opinion

BENNETT, Judge,

delivered the opinion of the court:

The question in this case is what damage did plaintiff, a shipbreaker, suffer when the Government breached its contract to sell plaintiff a 30,000-ton surplus World War II aircraft carrier for scrapping. In an earlier decision, Peck Iron & Metal Co. v. United States, 204 Ct. Cl. 381, 496 F.2d 543 (1974), we concluded the Government had breached its contract and that plaintiff was entitled to recover. The determination of damages was reserved for further proceedings under Rule 131(c). Trial Judge Spector awarded plaintiff $565,794. Because key elements of the trial judge’s opinion are unsupported by either the findings of fact or other record evidence, that award cannot be sustained. We conclude plaintiff is entitled to recover $1,963,817 and award judgment in that amount.

[40]*40On August 3, 1965, plaintiff, Peck Iron and Metal Co., Inc. (Peck), located at Portsmouth, Virginia, was awarded a contract to scrap the ex-Franklin, an aircraft carrier which served in the Pacific Theatre during World War II. Under the terms of the contract, plaintiff was to pay $137,206 for the carrier and, in the process of scrapping, hold certain "save list” items for the Government, including four turbogenerators and about 5,000 long tons of armor, and steel plating. After contract award, however, the Government decided the turbogenerators were needed sooner than they would be made available to it in the normal course of contract performance. Thus, on November 16,1965, defendant cancelled plaintiffs contract in its entirety and withdrew the whole carrier from sale, acts which this court found to be in breach of contract. The ex-Franklin was again offered for scrapping in June 1966 after the turbogenerators and other auxiliary equipment had been removed. This time the high bidder for the vessel was Portsmouth Salvage Company (Portsmouth) with its winning bid of $228,000. Portsmouth successfully completed scrapping the ex-Franklin approximately 3 % years later. Peck instituted suit in this court for breach of contract and prevailed on the issue of liability as noted above. In our earlier decision we rejected defendant’s argument that its liability would be limited to "refund of the contract price * * * or such portion of the contract price as it may have received” under article 38 of the contract because defendant’s actions were in total contravention of article 38 and thus its limitation would not apply. Peck Iron & Metal Co. v. United States, supra, 204 Ct. Cl. at 403, 496 F.2d at 555. Defendant’s only other major argument which would preclude recovery is that plaintiff failed to mitigate its damages by rebidding on the second contract to scrap the ex-Franklin. Our earlier decision on liability made it clear that defendant deliberately sought to conceal its motives and actions from plaintiff, despite plaintiffs efforts to mitigate and avoid any breach at all. For this reason and others outlined by the trial judge, we conclude plaintiff did not fail to mitigate its damages. Consequently, because no contract clause operates to restrict defendant’s liability in this breach situation, plaintiff is entitled to recover anticipated profits, see Carchia v. United States, 202 Ct. Cl. [41]*41723, 485 F.2d 622 (1973); North Star Aviation Corp. v. United States, 198 Ct. Cl. 178, 458 F.2d 64 (1972), and we must determine the approximate benefit to plaintiff had it been permitted to perform the contract.

Essentially there are two methods which can be used to measure plaintiffs damage in this contract breach situation. First, calculations can be performed showing the cost of dismantling the vessel and subtracting these costs from the probable value and receipts obtainable from sale of the vessel’s salvageable steel, metal, and equipment. Plaintiff submitted such a calculation at trial and it was found by the trial judge to constitute "precise and detailed proof * * * virtually uncontradicted in the record. Defendant’s response is general and largely conjectural.” The trial judge also stated that "figures pressed by plaintiff in this proceeding are the only figures in the record which are supported by detailed and specific proof.” After some minor adjustments of plaintiffs figures, the trial judge concluded that under this method plaintiff would be entitled to damages of $1,950,122.73. The second method of determining plaintiffs damage is to measure it according to the profits made by the actual salvager of the ex-Franklin, Portsmouth Salvage Company. Though it was recognized "the precise amount and even the order of magnitude of that profit is much in doubt” and that Portsmouth’s records were incomplete, the trial judge believed this calculation to be a superior gauge of what plaintiffs profit would have been. Largely on the testimony of Mr. Jacobson, Portsmouth’s president, that Portsmouth realized more than $400,000 from salvage of the carrier, the trial judge estimated Portsmouth’s profit from the ex-Franklin project to be $475,000. After an adjustment to compensate for the difference in purchase price between Peck’s breached contract and the contract performed by Portsmouth, the trial judge concluded plaintiff suffered $565,794 in damages and recommended this award. 28 U.S.C. § 2503(b) (1976); Ct. Cl. Rule 134(h).

The central issue in this case then is which method of calculation provides the most reliable method for estimating Peck’s probable profits from scrapping the ex-Franklin. Because of the particular facts and circumstances here, we believe that the best method by far is to determine the [42]*42probable benefit Peck would have received, in dollars, from possession and sale of ex-Franklin material and to subtract from this the costs it would have incurred in procuring and dismantling the vessel. To this degree we depart from the trial judge’s opinion though we accept, with minor modifications, his estimate of costs and benefits. We note further that we have been handicapped by defendant’s failure to offer the court effective tools and evidence with which to assess or refute the detailed submissions of plaintiff. Before this court defendant has relied chiefly on general contentions which were either considered and dismissed during the first proceeding on liability or entertained and forcefully rejected by the trial judge. Faced with compelling and specific facts presented by plaintiff, defendant did little more than urge the court to reject the only record evidence as "fantasy” or "made of whole cloth,” or "dream figures,” or "figure juggling.” Consequently, it has been necessary to make an independent evaluation of the data offered by plaintiff. The rather large award in this case can be better understood with this perspective.

Before proceeding to a particular analysis of Peck’s costs and benefits, it is appropriate to discuss more thoroughly the reasons for choosing this method of calculation over the alternative method selected by the trial judge, i.e., estimating what Portsmouth’s profits on scrapping the ex-Franklin actually were. Such estimating presents a host of problems which were carefully examined by the trial judge.

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603 F.2d 171, 26 Cont. Cas. Fed. 83,508, 221 Ct. Cl. 37, 1979 U.S. Ct. Cl. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peck-iron-metal-co-v-united-states-cc-1979.