Cite as: 516 U. S. 417 (1996)
Breyer, J., dissenting
Michigan Wisconsin Pipeline Co. v. Williams-McWilliams Co., 551 F. 2d 945 (CA5 1977) (allowing recovery against the Government of damages paid by a Government contractor to a third party to which the contractor caused damage by following Government specifications). See also 24 F. 3d, at 197 (Spearin holds contractor harmless if the product proves defective). If the Government must pay, say, for the contractor's own machinery destroyed by a (defective-specification-caused) explosion when that destruction frustrates performance, see Ordnance Research, Inc. v. United States, 609 F. 2d 462, 479 (Ct. Cl. 1979) (treating explosions causing increased costs as a breach of the warranty of specifications), why should the Government not also have to pay when the explosion takes place just after performance is complete? And, why should it not have to reimburse the contractor's payment for identical damage caused his next-door neighbor in the same explosion? In any event, whether or not there are good answers to these questions, they are unlikely to answer plaintiffs' further argument, namely that, even if Spearin does not compel a decision in their favor, it offers indirect support, as background, for implying a promise that would provide (in the particular circumstances) Spearin-like protection.
Fourth, the majority says that the DPA's "hold harmless" provision ("No person shall be held liable for damages . . . for any act or failure to act resulting directly or indirectly from compliance with [an] order") does not provide for indemnification. Ante, at 429. The petitioners, however, do not claim the contrary. They state explicitly that they "do not attempt to interpret the DPA's hold harmless language as an affirmative indemnity." Reply Brief for Petitioners 2. They add that "an indemnity should be implied from all the circumstances of this case, including the circumstance that petitioners and the Government contracted against the backdrop of the sweeping hold harmless language contained in the DPA." Ibid. They argue simply that the DPA's stated
439
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007