432
Breyer, J., dissenting
where its use might lead to plausible tort claims advanced by those who used it. Id., at 10-11, 25. x The Government specified that the companies could not label Agent Orange in ways that might have promoted its safe use (with, say, dilution instructions), while, at the same time, the Government permitted its soldiers to use Agent Orange in unreasonably risky ways (such as using empty containers for showers or barbecues). Id., at 8-10.
The background (1960's) legal circumstances include the following: x United States v. Spearin, 248 U. S. 132 (1918), in which this Court approved the common judicial practice of reading Government contracts that provide detailed "plans and specifications," as containing an implied warranty that "the contractor will not be responsible for the consequences of defects in the plans and specifications." Id., at 136. x Lower court decisions reading Government contracts as containing an implied warranty that performance costs will not increase due to the Government's superior knowledge of undisclosed "vital information" that causes the cost increase. See Helene Curtis Industries, Inc. v. United States, 312 F. 2d 774, 777-778, and n. 1 (Ct. Cl. 1963) (collecting cases). x The broad language of the statute that authorized the President to enter into defense procurement contracts— language broad enough to authorize Government promises to indemnify. 50 U. S. C. § 1431 (1988 ed., Supp. V); Exec. Order 10789, 3 CFR 426 (1954-1958 Comp.). See also Exec. Order 11610, 3 CFR 594 (1971-1975 Comp.) (taking view that the statute grants authority to promise indemnification). x The language of the DPA, which, while permitting the Government to place compulsory defense orders, also says that the compelled firms shall not "be held liable for damages . . . for any act or failure to act resulting directly or indirectly from compliance with" such an "order." 50 U. S. C. App. § 2157 (1988 ed.).
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