397 U.S.

203
90 S.Ct. 880
25 L.Ed.2d 224

UNITED STATES, Petitioner,

v.
M. O. SECKINGER, Jr., etc.
No. 395.
Argued Jan. 14, 1970.
Decided March 9, 1970.
Rehearing Denied April 6, 1970.

See 397 U.S. 1031, 90 S.Ct. 1255.

James van R. Springer, Washington, D.C., for petitioner.
John G. Kennedy, Savannah, Ga., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.

This case concerns the construction of a provision common to fixed-price

government construction contracts that states that the private contractor 'shall
be responsible for all damages to persons or property that occur as a result of
his fault or negligence * * *.' The Court of Appeals for the Fifth Circuit held
that the provision could not be construed to allow the Government to recover
from the contractor damages suffered by the Government on account of its own
negligence. 408 F.2d 146 (1969). We granted certiorari because of the large
amount of litigation that this contract clause has produced1 and because of the
divergent results that the lower courts have reached in construing the same or
similar provisions.2 396 U.S. 815, 90 S.Ct. 104, 24 L.Ed.2d 67 (1969). We
reverse.

* The United States had entered into a contract with the Seckinger Company
for the performance of certain plumbing work at a United States Marine base in
South Carolina. While working on this project, one of Seckinger's employees
was directed by his foreman to assist a fellow employee on a particular section
of pipe that had been partially constructed above a street. About four or five

feet above the place where the employee was working, there was an electric
wire that carried 2,400 volts of electricity. The employee accidentally came into
contact with the wire, was thrown to the ground 18 feet below, and was
seriously injured.
3

The injured employee recovered benefits under South Carolina's workmen's

compensation law, S.C.Code Ann. 721 to 72 504 (1962), and then
commenced a suit in the Eastern District of South Carolina against the United
States under the Federal Tort Claims Act, 28 U.S.C. 26712680, on the
theory that his injuries had been sustained as the proximate result of the
Government's negligence. The United States, relying on the contract clause,
moved to implead Seckinger as a third-party defendant. This motion was
denied on the ground that the addition of Seckinger would 'unnecessarily and
improperty complicate the issues.'3

On the merits, the South Carolina District Court found that the United States
had customarily de-energized its electric wires whenever Seckinger employees
were required to work dangerously near them. The court therefore held that the
United States had been grossly negligent in failing to de-energize the wire in
this particular case. Alternatively, the Government was held to have been
negligent in failing to advise Seckinger's employees that the electric wire had
not been de-energized. Concluding also that the employee had in no way
contributed to his injury, the District Judge ordered that he recover a judgment
against the United States in the amount of $45,000 plus costs. No appeal was
taken from this judgment of the District Court.4

Thereafter, the United States proceeded to the District Court for the Southern
District of Georgia and commenced the instant suit against Seckinger. The
complaint alleged that Seckinger's negligence was solely responsible for its
employee's injuries5 and that therefore the United States should be fully
indemnified for the judgment which it had satisfied. In a second count, the
Government alleged that Seckinger, having undertaken to perform its contract
with the United States, was obligated 'to perform the work properly and safely
and to provide workmanlike service in the performance of said work.'

The District Court granted Seckinger's motion to dismiss the complaint on the
alternative grounds, first, that the suit was barred by the prior litigation in South
Carolina and, second, that the contractual language was not sufficiently broad
to permit the Government to recover indemnification for its own negligence.
The Court of Appeals rejected the first ground of decision,6 but sustained the
holding that any recovery on the contract was foreclosed to the United States
because its negligence had contributed substantially to the injury. The Court of

Appeals held that, under the 'majority rule,' an indemnitee cannot recover for
his own negligence in the absence of a contractual provision which
unmistakably authorized this result. Since the contract here did not
unequivocally command that the Government be indemnified for its own
negligence, and because the injuries in question were thought to have been
caused by the 'active direct negligence' of the Government with no more than a
'slight dereliction' on the part of Seckinger, no recovery whatsoever on the
contract would be permitted to the United States.7
7

In the Government's view, this construction of the clause renders it a nullity, for
the United States can never be held liable in tort under the Tort Claims Act or
otherwise in the absence of negligence on the part of its agents. Thus, so the
argument goes, the contractual provision in question can have meaning only in a
context in which both the United States and the contractor are jointly
negligent. 8 In that circumstance, the contractor would be obligated to sustain
the full burden of ultimate liability for the injuries produced. Alternatively, the
Government suggests that it is entitled to indemnity on a comparative basis to
the extent that the negligence of Seckinger contributed to its employee's
injuries.

II
8

In the posture in which this case reaches us, the historical background of the
clause9 and evidence concerning the actual intention of these particular parties
with respect to that provision are sparsely presented. We do know that the
clause was required in government fixed-price construction contracts as early as
1938.10 This fact merely precipitates confusion, however, because it was not
until the passage of the Tort Claims Act in 1946, 401424, 60 Stat. 842, as
amended, 28 U.S.C. 2671 2680, that the United States permitted recovery in
tort against itself for the negligent acts of its agents. Viewed in the pre-Tort
Claims Act context, the purpose of the clause is totally unclear except, perhaps,
as an exercise in caution on the part of the government draftsmen, or,
conceivably, as an attempt to insulate government agents from liability in their
private capacities if their negligence arguably combined with that of the
contractor to produce a given injury.

In American Stevedores, Inc. v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed.
1011 (1947), we had before us a contractual provision that was similar to that
involved here. There we noted that the clause was susceptible of several
different constructions, 330 U.S., at 457458, 67 S.Ct. at 853, and remanded
the case to the District Court to ascertain the intention of the parties with
respect to the clause. It does not appear that a similar course of action would be

fruitful in the instant case. In Porello there were clear indications from the
parties that further evidentiary proceedings in the District Court would shed
light on the actual intention of the parties.11 Here, by contrast, there is not only
no representation that further proceedings would aid in clarifying the intentions
of the parties, but there is at least tacit agreement that the background of the
clause has been explored as thoroughly as possible. In these circumstances, we
have no alternative but to proceed directly to the contractual construction
problem.
III
10

Preliminarily, we agree with the Court of Appeals that federal law controls the
interpretation of the contract. See United States v. County of Allegheny, 322
U.S. 174, 183, 64 S.Ct. 908, 88 L.Ed. 1209 (1944);12 Clearfield Trust Co. v.
United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). This
conclusion results from the fact that the contract was entered into pursuant to
authority conferred by federal statute and, ultimately, by the Constitution.13

11

In fashioning a federal rule was are, of course, guided by the general principles
that have evolved concerning the interpretation of contractual provisions such
as that involved here. Among these principles is the general maxim that a
contract should be construed most strongly against the drafter, which in this
case was the United States.14 The Government seeks to circumvent this
principle by arguing that it is inapplicable unless there is ambiguity in the
contractual provisions in dispute and there exists an alternative interpretation
that is, 'under all the circumstances, a reasonable and practical one.' Gelco
Builders & Burjay Const. Co. v. United States, 369 F.2d 992, 9991000, 177
Ct.Cl. 1025, 1035 (1966). The Government itself, however, has proffered two
mutually inconsistent interpretations of the contract clause. To be sure, one of
them is pressed with considerably more enthusiasm than the other. The
Government, nevertheless, must be taken implicitly to have conceded (a) that
the clause is not without ambiguity and (b) that there is an alternative
construction of the clause that is both 'reasonable and practical.' Even in the
Government's view of the matter, therefore, there is necessarily room for the
construction-against-drafter principle to operate.

12

More specifically, we agree with the Court of Appeals that a contractual

provision should not be construed to permit an indemnitee to recover for his
own negligence unless the court is firmly convinced that such an interpretation
reflects the intention of the parties. This principle, though variously articulated,
is accepted with virtual unanimity among American jurisdictions.15 The
traditional reluctance of courts to cast the burden of negligent actions upon

those who were not actually at fault16 is particularly applicable to a situation in

which there is a vast disparity in bargaining power and economic resources
between the parties, such as exists between the United States and particular
government contractors. See United States v. Haskin, 395 F.2d 503, 508
(C.A.10th Cir. 1968).
13

In short, if the United States expects to shift the ultimate responsibility for its
negligence to its various contractors, the mutual intention of the parties to this
effect should appear with clarity from the face of the contract. We can hardly
say that this intention is manifested by the formulation incorporated into the
present contract.17 By its terms Seckinger is clearly liable for its negligence, but
the contractual language cannot readily be stretched to encompass the
Government's negligence as well.18

14

On the other hand, we must not fail to accord appropriate consideration to

Seckinger's clear liability under the contract for 'all damages' that resulted from
its 'fault or negligence.' (Emphasis added.) The view adopted by the Court of
Appeals, and now urged by Seckinger, would drain this clause of any
significant meaning or protection for the Government, and, indeed, would tend
to insulate Seckinger from potential liability in any circumstance in which any
negligence is also attributable to the United States. Whatever may have been
the actual intention of the parties with respect to the meaning of the clause, it is
extremely difficult to believe that they sought to utilize this contractual
provision to reduce Seckinger's potential liability under common law or
statutory rules of contribution or indemnity.19 Yet, that is arguably the result if
the clause is interpreted to mean that Seckinger's liability is limited to situations
in which it, as opposed to the United States, is the sole negligent party.

15

Furthermore, in this latter situation, it is perfectly clear that, both before and
after the passage of the Tort Claims Act, the United States could not, in any
event, be charged with liability in the absence of negligence on its part. In
short, the construction of the clause adopted by the Court of Appeals tends to
narrow Seckinger's potential liability and, also, limits its application to
circumstances in which no doubt concerning Seckinger's sole liability existed.
In the process, considerable violence is done to the plain language of the
contract that Seckinger be responsible for all damages resulting from its
negligence.

16

A synthesis of all of the foregoing considerations leads to the conclusion that

the most reasonable construction of the clause is the alternative suggestion of
the Government, that is, that liability be premised on the basis of comparative
negligence.20 In the first place, this interpretation is consistent with the plain

language of the clause, for Seckinger will be required to indemnify the United
States to the full extent that its negligence, if any, contributed to the injuries to
the employee.
17

Secondly, the principle that indemnification for the indemnitee's own

negligence must be clearly and unequivocally indicated as the intention of the
parties is preserved intact. In no event will Seckinger be required to indemnify
the United States to the extent that the injuries were attributable to the
negligence, if any, of the United States. In short, Seckinger will be responsible
for the damages caused by its negligence; similarly, responsibility will fall
upon the United States to the extent that it was negligent.

18

Finally, our interpretation adheres to the principle that as between two

reasonable and practical constructions of an ambiguous contractual provision,
such as the two proffered by the Government, the provision should be
construed less favorably to that party which selected the contractual language.
This principle is appropriately accorded considerable emphasis in this case
because of the Government's vast economic resources and stronger bargaining
position in contract negotiations.21

19

For these reasons, we reverse the judgment of the Court of Appeals and remand
this case to the District Court for further proceedings consistent with this
opinion.22

20

Reversed and remanded.

21

Mr. Justice MARSHALL took no part in the consideration or decision of this

case.

22

Mr. Justice STEWART, with whom THE CHIEF JUSTICE and Mr. Justice
DOUGLAS join, dissenting.

23

The standard form that the Government uses for its fixed-price construction
contracts has long contained a single sentence saying that the contractor 'shall
be responsible for all damages to persons or property that occur as a result of
his fault or negligence in connection with the prosecution of the work.'1 For
more than 30 years it has evidently been understood that these words mean
what they rather clearly say that the contractor cannot hold the Government for
losses he incurs resulting from his own negligence.2 The provision, in short, is
what the Court of Appeals called 'a simple responsibility clause.' 408 F.2d 146,
148.3 But today this innocuous boilerplate language is turned inside out. For the

Court says that the provision really is a promise by the contractor to reimburse
the Government for losses it incurs resulting from its negligence.
24

To be sure, the Court does not go quite so far as to hold that this obscure clause
operates as a complete liability insurance policy. But the Court does hold that
the clause requires the contractor to indemnify the Government 'to the full
extent that its negligence, if any contributed to the injuries to the employee.'
The magnitude of the burden the Court imposes is well illustrated by the
circumstances of this case. Here an employee of the contractor was injured in
the scope of his employment on plumbing work that the contractor was
performing at the Paris Island Marine Depot in South Carolina. The employee
recovered from the contractor the benefits to which he was entitled under the
state workmen's compensation law. The employee then sued the Government
under the Federal Tort Claims Act, claiming that his injuries had actually been
caused by the Government's negligence. The Federal District Court agreed,
finding that the negligence of the United States was the 'sole cause' of the
employee's injuries and awarding him $45,000 in damages. The Court today
says that the United States can now recover an indeterminate portion of this
$45,000 from the contractor, because the contractor has agreed to 'indemnify
the United States * * *.'

25

Despite intimations in the Court's opinion to the contrary, we do not deal here
with 'common law or statutory rules of contribution or indemnity.'4 The only
question the Court decides is the meaning of the words of a clause in a
government contract.5 I think the meaning attributed to that clause today is as
unconscionable as it is inaccurate.

26

The clause first appeared in government contracts at least eight years before the
enactment of the Federal Tort Claims Act in 1946. Before the passage of that
Act the United States could not be sued in tort for personal injuries. Thus there
was absolutely no reason for the Government to secure for itself a right to
recovery over against an alleged joint tortfeasor. Yet we are asked to believe
that the drafter of this clause was so prescient as to foresee the day of
government tort liability nearly a decade in the future, and so ingenious as to
smuggle a provision into a standard contract form that would, when that day
arrived, allow the Government to shift its liability onto the backs of its
contractors. This theory is nothing short of incredible.

27

In drafting its construction contracts the United States certainly has both the
power and the resources to write contracts providing expressly that it will pass
off onto its contractors, either in whole or in part, liability it incurs for damages
caused by its own judicially determined negligence. The Government could

require its contractors to hold it harmless without regard to fault on their part, or
it could establish a proration of liability arising from the joint negligence of the
parties. But the contractual provision before us does neither. It no more says
that the contractor shall reimburse the Government for his share of joint
negligence than that shall be a liability insurer for the Government's sole
negligence.
28

The Court nonetheless manages to discover that the clause amounts to a

contribution agreement, relying for its conclusion upon cases involving, not the
simple responsibility clause before us, but express indemnification agreements
with 'hold harmless' clauses.6 This result is said to be desirable because it
ensures a fair distribution of loss between those jointly responsible for the
damage. But when Seckinger entered into this contract, it had every reason to
expect that its liability for injuries to its employees would be limited to what is
imposed by the South Carolina compensation law. That law relieved it of
responsibility in tort in exchange for its guarantee that its employees would
recover without regard to fault. Presumably its bid on the government project
reflected its reasonable expectation that this would be the extent of its liability
on account of employee accidents. Now the Court heaps an unforeseen federal
contractual burden atop the requirement the State has already imposed.7

29

If the Government wants to impose additional liabilities upon those with whom
it contracts to do its work, I would require it to do so openly, so that every
bidder may clearly know the extent of his potential liability. Even in the
domain of private contract law, the author of a standard-form agreement is
required to state its terms with clarity and candor.8 Surely no less is required of
the United States of America when it does business with its citizens.9

30

Mr. Justice Holmes once said that '(m)en must turn square corners when they
deal with the Government.'10 I had always supposed this was a two-way street.
The Government knows how to write an indemnification or contribution clause
when that is what it wants. It has not written one here.

31

I would affirm the judgment.

In the petition for certiorari, the Solicitor General advised that there are
presently pending 200 government suits involving the same or similar clauses.

Compare, e.g., Fisher v. United States, 299 F.Supp. 1 (D.C.E.D.Pa.1969), and

United States v. Accrocco, 297 F.Supp. 966 (D.C.D.C.1969), with, e.g., the

decision of the Court of Appeals in the instant case.

3

The third-party complaint was therefore dismissed 'with leave to * * * the

United States * * * to take such further action at an appropriate time.' The order
was not appealed, and we imply no view concerning the propriety of the
District Court's action.

The District Court concluded, inter alia, that the negligence of the United States
was the 'sole cause' of the employee's injuries. We do not pause to consider
what effect, if any, under all the circumstances of this case, the South Carolina
judgment could properly have in the instant case. The effect of the prior
judgment was not raised below except as a defense contention that it constituted
an absolute bar to the instant proceedings.

Specifically, the United States alleged that Seckinger was negligent in that it
(1) failed to request that the power distribution line be de-energized; (2) failed
to request that the wires at the place where the accident occurred be insulated;
(3) failed to provide safety insulation on the wires; (4) permitted, and in fact
directed, the subsequently injured employee to work in close proximity to the
wires; and (5) failed to prevent the employee from proceeding in a manner that
was dangerous and that caused him to be injured.

The Court of Appeals held that the Government's suit was not barred by
principles of res judicata because the South Carolina District Court expressly
left open the option of the United States to pursue its claim against Seckinger at
a later time. We agree with this conclusion of the Court of Appeals.

In the present state of the record, we neither accept nor reject this
characterization of the relative degrees of fault of Seckinger and the United
States.

The Government, therefore, does not take issue with those authorities that
exhibit reluctance to permit a negligent indemnitee to recover from a faultless
indemnitor unless this intention appeared with particular clarity from the
contract. See, e.g., Associated Engineers, Inc. v. Job, 370 F.2d 633, 651
(C.A.8th Cir. 1966), cert. denied, sub nom. Troy v. Cannon Const. Co. v. Job,
389 U.S. 823, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967).

In context, the clause in question appears as follows:

'11. PERMITS AND RESPONSIBILITY FOR WORK, ETC.
'The Contractor shall, without additional expense to the Government, obtain all
licenses and permits required for the prosecution of the work. He shall be

responsible for all damages to persons or property that occur as a result of his
fault or negligence in connection with the prosecution of the work. He shall
also be responsible for all materials delivered and work performed until
completion and final acceptance, except for any completed unit thereof which
theretofore may have been finally accepted.'
10

See, e.g., 41 CFR 11.1, 11.3, 12.23, Art. 10 (1938).

11

The objective of the remand was frustrated when no additional evidence was
presented to the District Court. That court merely adhered to the construction of
the contract that had been adopted by the Court of Appeals, 153 F.2d 605
(C.A.2d Cir. 1946), namely, that the United States was entitled to full
indemnity from a stevedoring contractor although both the United States and
the contractor were found to have been negligent. Porello v. United States, 94
F.Supp. 952 (D.C.S.C.N.Y.1950).

12

'The validity and construction of contracts through which the United States is
exercising its constitutional functions, their consequences on the rights and
obligations of the parties, the titles or liens which they create or permit, all
present questions of federal law not controlled by the law of any state.' 322
U.S., at 183, 64 S.Ct. at 914.

13

Congress has provided extensive arrangements for the procurement,

management, and disposal of government property. See generally 40 U.S.C.
471535 (1964 ed. and Supp. IV). As part of this statutory scheme, the
Administrator of General Services is authorized to issue regulations necessary
to perform his various managerial functions. 40 U.S.C. 486(c). Pursuant to
this authority, various form contracts, one of which includes the provision that
is the subject of this suit, have been promulgated for official use. 41 CFR 1
16.401 to 116.404, 116.90123A, Art. 12 (1969). See generally State
Bar of California, Committee on Continuing Education of the Bar, Government
Contracts Practice 13.93 (1964).

14

See, e.g., Sternberger v. United States, 401 F.2d 1012, 1021, 185 Ct.Cl. 528,
543 (1968); Sun Shipbuilding & Drydock Co. v. United States, 393 F.2d 807,
816, 183 Ct.Cl. 358, 372 (1968); Jones v. United States, 304 F.Supp. 94, 103
(D.C.S.D.N.Y.1969).

15

A number of courts take the view, frequently in a context in which the

indemnitee was solely or principally responsible for the damages, that there can
be indemnification for the indemnitee's negligence only if this intention is
explicitly stated in the contract. See, e.g., Freed v. Great A. & P. Tea Co., 401
F.2d 266 (C.A.6th Cir. 1968) (intention of parties must be 'clear and
unambiguous' necessitating a clause such as 'including damage from

indemnitee's own negligence'); Brogdon v. Southern R. Co., 384 F.2d 220

(C.A.6th Cir. 1967) (same); City of Beaumont v. Graham, 441 S.W.2d 829
(Tex.1969) (indemnitor's promise to indemnify for his negligent acts does not
extend to indemnification for indemnitee's negligence); Young v. Anaconda
American Brass Co., 43 Wis.2d 36, 168 N.W.2d 112 (1969) (indemnitor not
liable for such portion of total liability attributable to act of indemnitee unless
indemnity contract by express provision and strict construction so provides);
cases collected in Annot., 175 A.L.R. 8, 2938 (1948).
Other cases do not require that indemnification for the indemnitee's negligence
be specifically or expressly stated in the contract if this intention otherwise
appears with clarity. See, e.g., Auto Owners Mut. Ins. Co. v. Northern Ind. Pub.
Serv. Co., 414 F.2d 192 (C.A.7th Cir. 1969); Eastern Gas & Fuel Associates v.
Midwest-Raleigh, Inc., 374 F.2d 451 (C.A.4th Cir. 1967); Unitec Corp. v.
Beatty Safway Scaffold Co., 358 F.2d 470 (C.A.9th Cir. 1966); Batson-Cook
Co. v. Industrial Steel Erectors, 257 F.2d 410 (C.A.5th Cir. 1958).
16

Several earlier cases declared clauses that purported to indemnify for the
indemnitee's negligence void as contrary to public policy. See, e.g., Sternaman
v. Metropolitan Life Ins. Co., 170 N.Y. 13, 62 N.E. 763, 57 L.R.A. 318 (1902);
Johnson's Administratrix v. Richmond & D.R. Co., 86 Va. 975, 11 S.E. 829
(1890). See also Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629,
99 L.Ed. 911 (1955); Otis Elevator Co. v. Maryland Cas. Co., 95 Colo. 99, 33
P.2d 974 (1934).

17

An example of an indemnification clause that makes specific reference to the

effect of the negligence of the indemnitee is the following recommendation of
the American Institute of Architects:
'4.18. INDEMNIFICATION
'4.18.1. The Contractor shall indemnify and hold harmless the Owner and the
Architect and their agents and employees from and against all claims, damages,
losses and expenses including attorneys' fees arising out of or resulting from the
performance of the Work, provided that any such claim, damage, loss or
expense (a) is attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of tangible property (other than the Work itself)
including the loss of use resulting therefrom, and (b) is caused in whole or in
part by any negligent act or omission of the Contractor, any Subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, regardless of whether or not it is caused in part by a
party indemnified hereunder.' AIA Document A201, Sept. 1967.
We specifically decline to hold that a clause that is intended to encompass

indemnification for the indemnitee's negligence must include an 'indemnify and

hold harmless' clause or that it must explicitly state that indemnification extends
to injuries occasioned by the indemnitee's negligence. Thus, contrary to the
view apparently adopted in the dissenting opinion, we assign no talismanic
significance to the absence of a 'hold harmless' clause. Our approach is, in this
respect, consistent with American Stevedores, Inc. v. Porello, 330 U.S., at 457
458, 67 S.Ct. 847, 853854. Contract interpretation is largely an
individualized process, with the conclusion in a particular case turning on the
particular language used against the background of other indicia of the parties'
intention. Consequently, we hold only that, in this case, the clause that provides
that Seckinger will be responsible for all damages resulting from its negligence
is insufficiently broad to encompass responsibility for injuries resulting from
the negligence of the Government. And, of course, the Government is entitled
to no recovery unless it establishes that Seckinger was negligent. Thus the
dissenting opinion mischaracterizes the scope of our holding when it states that
Seckinger must 'reimburse the Government for losses it incurs resulting from
its negligence.'
18

See, e.g., United States v. Haskin, 395 F.2d 503 (C.A.10th Cir. 1968); Brogdon
v. Southern R. Co., 384 F.2d 220 (C.A.6th Cir. 1967); Shamrock Towing Co.
v. City of New York, 16 F.2d 199 (C.A.2d Cir. 1926); Williams v. Midland
Constructors, 221 F.Supp. 400 (D.C.E.D.Ark.1963); City of Beaumont v.
Graham, 441 S.W.2d 829 (Tex.1969); Young v. Anaconda American Brass
Co., 43 Wis.2d 36, 168 N.W.2d 112 (1969).

19

An employer's liability for injuries suffered by his employees to which his

negligence partially contributed varies from jurisdiction to jurisdiction. In the
absence of workmen's compensation statutes, the employer and the third-party
tertfeasor would be jointly and severally liable, under traditional principles, for
the injuries produced. In a majority of jurisdictions, contribution or indemnity
is available either by statute or common law, as a device for the redistribution
of the burden among the joint tortfeasors. See generally W. Prosser, Law of
Torts 47, 48 (3d ed. 1964). In 1956, when Seckinger's employee was injured,
South Carolina law was unclear in this respect, apparently permitting
contribution or indemnity under some circumsta nces. See generally Comment,
Indemnity Among Joint Tort-FeasorsAs Affected by the Federal Employers
Liability Act, 17 S.C.L.Rev. 423 (1965).
Workmen's compensation provisions, now enacted in all States, have
considerable effect on the employer's potential liability to the third-party
tortfeasor. However, these statutes vary greatly in the categories of employers
and employees to which they apply, see generally, A. Reede, Adequacy of
Workmen's Compensation (1947), and even today about two-thirds of the

statutes provide that coverage is voluntary as to both employers and employees.

2 A. Larson, The Law of Workmen's Compensation 67.10 (1969).
When a workmen's compensation plan does cover particular employers and
employees, a third-party suit against an employer who was also negligent is
barred by the majority rule, although recovery is not infrequently permitted on
implied or quasi-contractual theories. See, e.g., Associated Engineers, Inc. v.
Job, 370 F.2d 633, 651 (C.A.8th Cir. 1966); 2 A. Larson, supra, 76.00
76.53. Whether such a suit is permitted under South Carolina law apparently
has not been authoritatively determined. See generally Burns v. Carolina Power
& Light Co., 88 F.Supp. 769 (D.C.E.D.S.C.1950).
20

A number of courts have reached comparable results. See, e.g., Brogdon v.

Southern R. Co., 384 F.2d 220 (C.A.6th Cir. 1967); Williams v. Midland
Constructors, 221 F.Supp. 400 (D.C.E.D.Ark.1963); C & L Rural Elec. Coop.
Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953), after remand, 227
Ark. 321, 299 S.W.2d 67 (1957); Young v. Anaconda American Brass Co., 43
Wis.2d 36, 168 N.W.2d 112 (1969). See also United States v. Haskin, 395 F.2d
503 (C.A.10th Cir. 1968); Shamrock Towing Co. v. City of New York, 16 F.2d
199 (C.A.2d Cir. 1926).

21

While it is true that the interpretation adopted by the Court of Appeals is even
less favorable to the Government than that which we adopt, we have
concluded, for reasons previously stated, that the Court of Appeals' view would
drain the clause of any significant meaning and is decidedly contrary to its plain
language.
A 1941 letter from the Comptroller General, 21 Comp.Gen. 149, relied upon in
dissent, sheds no light whatever on the problem on contract construction before
us. There the Comptroller General, in commenting upon a question that he said
was 'of first impression' suggested that, under some circumstances, a contractor
under a cost-plus-fixed-fee contract may seek reimbursement from the
Government, as an element of his actual costs, for damages that he sustained by
reason of his negligence. Since the contract clause in question was introduced
long before the 1941 letter, it obviously was not responsive to any issues raised
by the Comptroller. Moreover, we deal in this case with a fixed-price
construction contract, a type of contract with which the Comptroller General
was in no way concerned. Thus, no support is provided for the facile
assumption of the dissent that, merely because a cost-plus contractor may
arguably seek reimbursement for additional costs produced by his own
negligence, it follows that a contractor committed to complete a project for a
fixed-price also may seek reimbursement because of damage caused by his
own negligent acts.

We agree with the dissenting opinion that the contract clause does mean exactly
what it says. What it says is that Seckinger shall be 'responsible for all
damages' arising from its negligence, that is, that the burden of Seckinger's
negligence may not be shifted to the United States. To be sure, the clause bars
any attempt by Seckinger to obtain reimbursement from the Government for
Seckinger's negligence. But an interpretation that limited the operation of the
clause to this narrow situation would constitute an impermissible frustration of
the contractual scheme, for such a construction would shift the burden of
Seckinger's negligence to the United States through the medium of a recovery
against the Government by the injured employee. The contractual objective
that liability for the contractor's negligence not be shifted to the United States
can be achieved in cases of concurrent negligence when there has been a
prior recovery against the Government only by resort to the comparative
negligence analysis that we have adopted, which requires Seckinger to
indemnify the Government, but only to the extent that the Government was
called upon, in the first instance, to respond in damages as a result of
Seckinger's negligence.
22

Because we have taken the view that the rights and liabilities of Seckinger and
the United States inter se are governed by contract, we need not reach the
Government's alternative theory, rejected by the Court of Appeals, that
Seckinger breached an implied warranty of workmanlike service.

This sentence is contained in a paragraph entitled 'Permits and Responsibility

for Work, etc.' See ante, at 208 n. 9.

I have found no previous reported decision construing this clause as the Court
construes it today.

It will not do to say, as the Court says today, that this construction of the clause
makes its purpose 'totally unclear' or 'would drain this clause of any significant
meaning or protection for the Government * * *.' For without such a clause,
there would surely be room for the contractor to claim reimbursement from the
Government for unforeseen increased costs incurred on account of his
negligence, particularly where the Government was jointly negligent. With
respect to contracts not containing such a clause cost-plus contracts, for
examplethe Comptroller General advised the Secretary of War almost 30
years ago that the Government may, indeed, be liable to the contractor under
such circumstances. See 21 Comp.Gen. 149, 156157 (1941).

Under the law of South Carolinawhich determines the Government's liability

in tort to the injured employee, 28 U.S.C. 1346(b); Richards v. United States,
369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492the general rule is that there is no

right to contribution among joint tortfeasors. Atlantic Coast Line R. Co. v.

Whetstone, 243 S.C. 61, 6870, 132 S.E.2d 172, 175176. Moreover, since
the injured employee has accepted his award against Seckinger under the state
workmen's compensation statute, he cannot hold Seckinger in tort. S.C.Code
Ann. 72121, 72123 (1962); Adams v. Davison-Paxon Co., 230 S.C. 532,
545, 96 S.Ed.2d 566, 572573. So Seckinger can hardly be cast in the role of a
tortfeasor in any event.
5

The Court's conclusion that the Court of Appeals' construction of the clause
might 'reduce Seckinger's potential liability under common law or statutory
rules of contribution or indemnity' seems wholly incorrect. The contractor's
agreement not to seek reimbursement or contribution from the Government
would have no bearing upon the question whether local 'common law or
statutory rules of contribution and indemnity' give the Government any right to
recover from the contractor.

These cases are cited in the Court's opinion, ante, 215 n. 20.

Under South Carolina law Seckinger has been subrogated to its injured
employee's claim against the United States to the extent of its own
compensation payment. S.C.Code Ann. 72124 (1962). But the Court today
subjects Seckingers to the incremental risk of liability in contribution, in a yetto-be-determined proportion, for the employee's added recovery in his tort suit
against the Government.

E.g., Chrysler Corp. v. Hanover Ins. Co., 350 F.2d 652, 655; Riess v.
Murchison, 329 F.2d 635, 642; Restatement of Contracts 235(e); 3 A. Corbin
on Contracts 559 (1960).

Sternberger v. United States, 401 F.2d 1012, 1021, 185 Ct.Cl. 528, 543; Jones
v. United States, 304 F.Supp. 94, 101.

10

Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55,
56, 65 L.Ed. 188.