440
Breyer, J., dissenting
objective—to relieve them of involuntarily created liability— would have led contracting officers in the 1960's (given the parties' uncertainty about future statutory interpretation) to have believed that a contractual "hold harmless" warranty was reasonable in the circumstances, not the contrary. See 3 Corbin, Contracts § 551 (existing statutes and rules of law are always evidence of the meaning of the parties). The relevant point is not whether Congress intended to indemnify, but the likely effect of the DPA's language (before judicial interpretation limited it to an immunity provision) on what risks contracting officers at the time might have thought the Government was assuming in a forced production contract under the Act.
Fifth, both the Federal Circuit, 24 F. 3d, at 198, n. 8, and the majority, ante, at 425, imply that a 1960's contracting officer would not have accepted an indemnification provision because of Stencel Aero Engineering Corp. v. United States, 431 U. S. 666 (1977). That case held (in light of the Feres doctrine providing the Government with immunity from armed services personnel tort suits) that Government contractors, whom armed services personnel had sued in tort, could not, in turn, sue the Government for indemnification. Otherwise a soldier, unable (given Feres) to sue the Government for injury caused, say, by a defective rifle, would sue the rifle manufacturer instead, and the rifle manufacturer would then sue the Government for indemnity, thereby, in a sense, circumventing the immunity that Feres promised the Government.
One problem with this argument is that Stencel postdates the formation of the contracts here at issue by about a decade. More importantly Stencel does not involve contractual promises to indemnify a contractor. Rather it concerns an indemnification provided by state tort law. Stencel, supra, at 667-668, nn. 2, 3. And, it nowhere says, or directly implies, that the law prohibits the Government from agreeing, explicitly or implicitly, to indemnify a contractor. Indeed,
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