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December 24, 1964

time. This is because the contract contains no provision which would authorize the making of an equitable adjustment in the contract price on account of an unreasonable delay in giving notice to proceed. The "Termination for Default-Damages for Delay-Time Extensions" provision (Clause 5) and the "Temporary Suspension of the Work" provision (section 20) authorize the granting of extensions of time for performance on account of delays caused by various circumstances, including conduct of the Government. However, neither of these provisions contains any language that could be interpreted as affording a basis for the granting of monetary compensation on acount of such delays.

Since the contract does not authorize a price adjustment for a delay in giving notice to proceed, a claim for additional compensation on the ground that the giving of notice to proceed was unduly delayed is not cognizable by the Board. Such a claim is one for breach of contract, as distinguished from a claim under the contract. In the absence of specific authorization for their consideration, claims for breach of contract arising from Government delay are beyond the jurisdiction of contracting officers and boards of contract appeals to determine." Hence, the second alleged cause of the "building loss" affords no basis on which relief could be granted by us.

This is also true of the third alleged cause, undue delay in furnishing gas service. Such service did not become available at the site of the work until about December 7, 1962. The evidence falls short of demonstrating that the Government failed to perform on time any obligation with respect to gas service that rested on it, or that appellant could have effectively utilized gas service prior to the time when it actually became available. But, even if both of these essential elements had been proved, the claim would, nevertheless, be one for breach of contract and, as such, not cognizable by the Board.

The fourth, fifth and sixth alleged causes of the "building loss" are similar in nature and will be considered together. In the main, they stem from events that occurred in connection with the construction of a service building at the Benton Lake National Wildlife Refuge. This building was constructed under a different contract than is here involved, held by a different contractor than appellant. During the summer of 1962, while appellant was awaiting resolution of his claim of mistake in bid, work on the service building was performed by the firms from whom appellant had obtained excavation, concrete forming,

▾ Electrical Builders, IBCA-406 (August 12, 1964), 1964 BCA par. 4377; Commonwealth Electric Co., IBCA-347 (March 12, 1964), 71 I.D. 106, 1964 BCA par. 4136, 6 Gov. Contr. 262, and cases cited therein.

and plumbing bids. These firms appear to have formed the opinion that various features of the design of that building, such as the tolerance of one-eighth inch allowed for surface irregularities in concrete walls, either were unnecessary departures from customary building practices in the area or were enforced too literally. A like opinion was formed by the prime contractor for that building. The attitudes in question appear to have affected the work under the instant contract in two ways: by inducing prospective subcontractors to withdraw their bids, and by inducing appellant to adopt higher construction standards, with respect to such matters as concrete forms, than he had originally contemplated.

The weight of the evidence is to the effect that the Government did not require better work, either under the contract for the service building or under the instant contract, than the applicable contract provisions authorized. Where extra work was required, additional compensation was paid pursuant to the "Changes" clause of the contracts. Fundamentally, the burden of the testimony offered on behalf of appellant is that the various contract and subcontract bids were prepared on the basis of customary construction standards in the area, rather than on the basis of the standards spelled out in the contract. The law, on the other hand, is plain that the Government as a party to a construction contract is entitled to the performance specified in the contract, and need not accept something else that, from a functional standpoint, may be "just as good." 8

Even if it were to be found that in some particulars the contracts. were administered too strictly, there is no showing of circumstances which would amount to either an express change or a constructive change in the drawings or specifications of the instant contract and which would justify an equitable adjustment of the contract price, in addition to the price adjustments already made by the contracting officer. On the contrary, the testimony bearing upon the fourth, fifth, and sixth alleged causes of the "building loss" reveals that any claim. which appellant may have on account of excessively strict administration would be a claim for breach of contract and, therefore, beyond our jurisdiction as well as that of the contracting officer.

Conclusion

We find from the evidence that appellant is not entitled to an equitable adjustment for any of the elements of his claim, none of which present matters cognizable by the Board within the meaning of the "Changes" clause (Clause 3), the "Changed Conditions" clause (Clause

Farwell Co. v. United States, 137 Ct. Cl. 832 (1957).

December 30, 1964

4), or any other provision of the contract. Consequently, appellant's claim for additional compensation is dismissed in its entirety.

WE CONCUR:

JOHN J. HYNES, Member.

THOMAS M. DURSTON, Member.

HERBERT J. SLAUGHTER, Acting Chairman.

TORT LIABILITY AND WAIVER REQUIREMENTS

Torts: Conflicts of Law

In view of the state of the authorities, it is not possible to state with certainty whether State or Federal law will ultimately be accepted as governing the effectiveness of pre-flight waivers of liability obtained by the United States from nonofficial passengers on Government aircraft.

Torts: Aircraft

As a general rule, under Federal law and State laws, pre-flight waivers of liability, in the form used by the Bureau of Reclamation, obtained by the United States from nonofficial passengers on Government aircraft will be upheld, except as against willful misconduct or gross negligence.

Torts: Personal Injury or Death

In wrongful death actions brought under derivative type statutes, pre-flight waivers of liability executed by the decedent have been given the same effect as they would have been given in an action brought by the decedent while still alive.

Torts: Personal Injury or Death

In wrongful death actions brought under nonderivative type statutes, preflight waivers of liability executed by the decedent may be held not to bar the right of action, on the theory that the decedent could not give away something which did not belong to him.

M-36674

To: COMMISSIONER OF RECLAMATION

December 30, 1964

SUBJECT: TORT LIABILITY AND WAIVER REQUIREMENTS

This is in response to the memorandum in which Assistant Commissioner Kane asked for an opinion on the legal aspects of rescinding the requirement in Reclamation Instructions 334.6.16 that nonofficial passengers transported in Bureau aircraft be required to sign a waiver

releasing the Government from any and all responsibility for accidental death or injury resulting from such transportation.1

The problem presented, as we understand it, is to determine whether or not these waivers, when secured, are of sufficient value to the Government to justify the difficulty and embarrassment that sometimes accompanies securing them. The results of our research are summarized below.

Our first concern was to determine whether State or Federal law governs pre-flight waivers. Federal law governs contracts to which the United States is a party. Therefore, it would seem that Federal law should govern these waivers, since they are contracts to which the United States is a party. There are cases which support this view.2 However, there are other cases which take the position that waivers of this type are so closely related to the substantive law of torts that, under the Federal Tort Claims Act, the law of the State where the wrongful or negligent act or omission took place should govern the effectiveness of the waiver. In view of the state of the authorities, it is not possible to say with certainty whether State or Federal law will ultimately be accepted as controlling.*

The form of waiver used by the Bureau of Reclamation reads as follows:

"RELEASE

"KNOW ALL MEN BY THESE PRESENT: Whereas, I, (Full Name), am about to take a flight or flights as a passenger in certain Bureau of Reclamation Aircraft on ---; and whereas I am doing so entirely upon my own initiative, risk, and responsibility; now, therefore in consideration of the permission extended to me by the United States through its officers and agents to take said flights, I do hereby, for myself, my heirs, executors, and administrators, remise, release, and forever discharge the Government of the United States and all claims, demands, actions or causes of action, on account of my death or on account of any injury to me which may occur by reasons of the said flight or flights.

"The term 'flight or flights' as used herein is understood and agreed to include the preparation for, continuation, and completion of flight or flights whether or not one or more than one aircraft is used throughout the entire flight or flights, as well as all ground and flight operations incident thereto. It is further understood and agreed that this release, among other things, extends to and includes negligence, faulty pilotage, and structural failure of the aircraft thereof.

"The execution hereof does not operate to waive any statutory right conferred by act of Congress."

The foregoing text is clerically imperfect in that the word "and" following the expression "Government of the United States" makes no sense and was probably intended to be "from."

2 United States v. Starks, 239 F. 2d 544 (7th Cir. 1956) (provision for indemnification of United States in Federal lease); Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp., 141 F. Supp. 833 (N.D. Cal. S.D. 1956) (provision for indemnification of United States in Federal construction contract).

3 Air Transport Associates v. United States, 221 F. 2d 467 (9th Cir. 1955); Montellier v. United States, 202 F. Supp. 384 (E.D.N.Y. 1962), aff'd 315 F. 2d 180 (2d Cir. 1963); Rogow v. United States, 173 F. Supp. 547 (S.D.N.Y. 1959).

A number of cases hold that State law governs the question of whether the liability of the United States is discharged when a settlement is made with another person liable for the same harm. Examples are Bacon v. United States, 321 F. 2d 880 (8th Cir. 1963); Matland v. United States, 285 F. 2d 752 (3d Cir. 1961); Rushford v. United States, 204 F. 2d 831 (2d Cir. 1953). These cases involved waivers given to persons other than the United States and, therefore, are not necessarily precedents for the application of State law to waivers given to the United States.

December 30, 1964

Our second concern was to ascertain the extent to which pre-flight waivers would be upheld. The answer to this question will, of course, vary from State to State if Federal law is not accepted as controlling. The general criterion that appears to have the most support in the cases decided to date, whether purporting to apply Federal law or State law, is that a waiver in the form used by the Bureau of Reclamation will be upheld except as against willful misconduct or gross negligence. This is in accord with the common law rules pertaining to waivers of tort liability that do not involve employment relationships or the obligations of public service enterprises."

5

The application of local precedents by courts which follow State, rather than Federal, law is illustrated by a decision holding, on the basis of New York law, that a pre-flight waiver is ineffective as against even ordinary negligence if the Government derives some benefit from the transportation of the person executing the waiver. The court considered that, under the New York decisions, a person traveling on a military aircraft in furtherance of a military project was within the scope of the common law rules that preclude employers from enforcing waivers by their employees of liability for torts sustained by the employees while on duty, and that preclude common carriers and other public service enterprises from enforcing waivers by their paying patrons of liability for torts sustained by such patrons.s

Wrongful death actions deserve special mention. The statutes of some States treat the right of action for wrongful death, granted to the decedent's representatives, as being derived from the right of action for the tort that caused the decedent's death, possessed by him while still alive. The statutes of other States treat the right of action for wrongful death as being a new cause of action that arises upon the decedent's death and that is not derived from any right of action previously possessed by him. In suits brought under statutes of the derivative type, such as those of New York and Louisiana, pre-flight waivers executed by the decedent have been given the same effect as they would have been given in an action brought by the decedent while still alive. On the other hand, in a suit brought under the non-derivative statute formerly in force in Massachusetts, the waiver

5 Air Transport Associates v. United States, supra note 3; Friedman v. United States, 138 F. Supp. 530 (E.D.N.Y. 1956); Chapman v. United States, Civil No. 5187 (S.D. Tex. 1950), aff'd on other grounds, 194 F. 2d 974 (5th Cir. 1952), cert. denied, 344 U.S. 821; see Davies Flying Service v. United States, 216 F. 2d 104 (6th Cir. 1954).

• Restatement, Contracts, secs. 574, 575 (1932).

7 Rogow v. United States, supra note 3.

8 Restatement, Contracts, sec. 575 (1932); see Air Transport Associates v. United States, supra note 3.

Rogow v. United States, supra note 3; Friedman v. United States, supra note 5; Chapman v. United States, supra note 5.

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