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 he shall be a liability insurer for the Government's sole negligence. 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. 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, he had every reason to expect that his liability for injuries to his employees would be limited to what is imposed by the South Carolina compensation law. That law relieved him of responsibility in tort in exchange for his guaranty that his employees would recover without regard to fault. Presumably his bid on the government project reflected his reasonable expectation that this would be the extent of his liability on account of employee accidents. Now the Court heaps an unforeseen federal contractual burden atop the requirement the State has already imposed. 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. Surely no less is required of the United States of America when it does business with its citizens. Mr. Justice Holmes once said that "[m]en must turn square corners when they deal with the Government." 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. I would affirm the judgment. |