Suwannee River Finance, Inc. v. United States

7 Cl. Ct. 556, 1985 U.S. Claims LEXIS 1019
CourtUnited States Court of Claims
DecidedMarch 26, 1985
DocketNo. 652-83C
StatusPublished
Cited by2 cases

This text of 7 Cl. Ct. 556 (Suwannee River Finance, Inc. 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
Suwannee River Finance, Inc. v. United States, 7 Cl. Ct. 556, 1985 U.S. Claims LEXIS 1019 (cc 1985).

Opinion

OPINION

KOZINSKI, Chief Judge.

Plaintiffs sue for construction-differential subsidy payments 1 in the amount of $1,339,682 for changes made in the construction of three ships. The Maritime Administration (MarAd) denied such payments pursuant to a directive that stopped all subsidies for non-essential changes.

Facts

The Merchant Marine Act of 1936, 46 U.S.C. §§ 1101-1295g (1982), was enacted to foster the development of the merchant marine and ship construction industry. Pursuant to the Act, MarAd is responsible for maintaining a large, well-equipped and efficient domestic merchant fleet. See generally Newport News Shipbuilding & Dry Dock Co. v. United States, 7 Cl.Ct. 549, 551-52 (1985). MarAd’s task is hampered by the fact that it is cheaper to build, equip and man ships in foreign ports. Companies engaged in shipping therefore find it more advantageous to use a foreign-flag rather than a domestic merchant fleet. In response, MarAd has provided various subsidies for the construction and operation of merchant vessels built in American shipyards. The subsidies are intended to ^achieve parity between domestic and foreign costs of construction and operation. One such subsidy is the construction-differential subsidy (CDS) program which provides subsidies for the construction of vessels in domestic shipyards.

Occidental Petroleum, plaintiffs’ parent, entered into a project calling for the mining, sale and transportation of superphosphoric acid to the Soviet Union. In 1977, Occidental began negotiating for the construction of the ships it would need to deliver the acid. Occidental considered building the ships in Japan but decided on domestic construction on the basis of a proposal from MarAd to provide a subsidy package consisting of CDS and other incentive financing.

In June of 1978, plaintiffs entered into contracts with Avondale Shipyards for the construction of three ships at an approximate cost of $50 million each. The contracts were submitted to MarAd for final approval. Before granting this approval, MarAd officials altered the language of the changes clause in each of the contracts. The new language required plaintiffs to commit themselves financially to any changes before submitting them to MarAd for subsidy consideration.

Plaintiffs executed the contracts with Avondale subject to the changes required by MarAd. Plaintiffs then signed contracts with MarAd calling for subsidies of approximately $25 million per vessel. Article 3 of the subsidy contracts provides that “[u]pon consideration of the Purchaser’s request, the Board, in its sole discretion, shall approve or disapprove the request for subsidy participation in the change unless the change involved is an Essential Change.”2

During the following three years, plaintiffs authorized and MarAd approved various essential and non-essential3 changes in the construction of the ships. On December 30,1981, however, in light of a severely reduced budget, the Maritime Administrator halted all subsidy payments for non-es[559]*559sential changes. Plaintiffs were notified of the administrator’s decision by letter dated January 4, 1982, from the secretary of the Maritime Subsidy Board. At the time of the notification, plaintiffs had submitted for subsidy approval non-essential changes in the amount of $1,339,682. Plaintiffs were denied subsidies for all of these changes pursuant to the December 30, 1981, order. They petitioned the agency for reconsideration of that decision; MarAd denied the petition on May 20, 1983.

Issues Presented

Plaintiffs first suggest that the contract, by its terms, precludes defendant from denying subsidies for non-essential changes. Specifically, plaintiffs argue that the court cannot interpret the contract without the aid of extrinsic evidence and that such extrinsic evidence supports their interpretation. Second, plaintiffs argue that defendant is precluded by the applicable regulation, 46 CFR § 251.1 App. No. 1 (1984),4 from exercising any discretion it may have under the contract. Third, plaintiffs argue that even if defendant may limit subsidy payments under the contract and the regulation, it is estopped from so doing by a consistent course of dealing during the previous 16 years. Finally, plaintiffs argue that defendant exercised its discretion in an arbitrary and capricious fashion.

Defendant disputes each of these points.

Discussion

A. The Contract

The language of the contract could hardly be clearer in defining the scope of Mar-Ad’s rights and responsibilities in approving subsidies for contract changes. Paragraph (a) of Article 3 provides that plaintiffs must submit a request for subsidy approval to the Maritime Subsidy Board. Except in the case of essential changes, the contract then provides that “the Board, in its sole discretion, shall approve or disapprove the request for subsidy participation.” Even in those cases where the Board approves such participation, it need not participate fully but, “in its sole discretion, shall determine the amount of the Board’s subsidy participation in the change.”

The only plausible interpretation of this provision is that, as to non-essential changes (the kind here in issue), the Board has discretion to approve subsidies in full, in part, or not at all. This view is supported by the very next paragraph of the contract which begins with the phrase, “[i]n the event that the Board approves the subsidization of any change.” This language clearly allows for the possibility that the Board might deny such participation in some cases.

Plaintiffs suggest that this language cannot be taken at face value but must be interpreted in light of the facts and circumstances as they existed at the time the contract was signed. In support of their position plaintiffs have offered the affidavits of persons who conducted the negotiations with MarAd on behalf of Occidental. These affidavits state that MarAd officials had assured Occidental’s negotiators that the Board would approve all non-essential changes as a matter of course. Plaintiffs argue that there is a factual dispute on this issue and that the matter therefore cannot be resolved in defendant’s favor by summary judgment.

The court rejects plaintiffs’ argument for two reasons. First, none of the persons who allegedly gave plaintiffs assurances as to what action the Board would take had authority to so bind defendant. The contract was signed on behalf of Mar-Ad by Robert J. Blackwell, Assistant Secretary of Commerce for Maritime Affairs and Chairman of the Maritime Subsidy Board. The statements plaintiffs cite in support of their position were not attributed to Mr. Blackwell or to anyone else with the authority to bind the Board. It is well estab[560]*560lished that the United States cannot be bound by the statements of its unauthorized agents, e.g., Holloway Construction Co. v. United States, 4 Cl.Ct. 779, 788 (1984); Yosemite Park & Curry Co. v. United States, 582 F.2d 552, 217 Ct.Cl. 360, 370 (1978), and that only officials having contracting authority may bind the United States to a contract. E.g., Jackson v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

G & H Machinery Co. v. United States
35 Cont. Cas. Fed. 75,638 (Court of Claims, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
7 Cl. Ct. 556, 1985 U.S. Claims LEXIS 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suwannee-river-finance-inc-v-united-states-cc-1985.