ASBCA 61464

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Expresser Transport Corporation ) ASBCA No. 61464 ) Under Contract No. N00033-82-C-1013 ) APPEARANCE FOR THE APPELLANT: Patrick H. McCaffery, Esq. General Counsel APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. Navy Chief Trial Attorney Robert R. Kiepura, Esq. Senior Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MELNICK GRANTING SUMMARY JUDGMENT FOR THE GOVERNMENT This is an appeal from the government's denial of an indemnification claim. Because the claim was waived by the contract's express terms, summary judgment is granted to the government and the appeal is denied. The following facts are undisputed. In 1983, the contractor, Expresser Transport Corporation, and the United States entered into the time charter contract identified above (which was then amended and restated in 1985) for the Military Sealift Command (MSC) to hire MV Jst Lt Alex Bonnyman to support the prepositioning of military equipment and supplies ( compl. ,r,r 1-2; R4, tab 1 at 1-6, 55). 1 The 145-page agreement (not counting annexes) contained extremely detailed language governing the parties' relations, obligations, and responsibilities (R4, tab 1). Consistent with the nature of a time charter, Expresser remained responsible for operating the ship, which it contractually accomplished through its parent company, Maersk Line, Limited ( compl. ,r 1; R4, tab 1 at 6). However, the government could place civilian contractors aboard for communications and cargo maintenance (compl. ,r 3; R4, tab 1 at 77). The government agreed to "indemnify [Expresser] for liabilities resulting from the carriage of such personnel" (compl. ,r 4; R4, tab 1 at 78). 1 While discussing the vessel bearing his name, it is worth noting that Lt Bonnyman was a United States Marine posthumously awarded the Congressional Medal of Honor for heroic actions in 1943 during the battle of Betio Island, Tarawa. See http://www.marinemedals.com/bonnymanalexander.htm.  Article 38 of the charter was entitled "WAIVER OF CLAIMS." It stated: All claims whatsoever for moneys due the Contractor under this Charter must be submitted in accordance with the applicable Military Sealift Command billing instructions within two years of the date of redelivery of the Vessel, except as otherwise provided in Article 44(a). Except as so provided, all claims not submitted within the two-year limit shall be deemed to have been waived by the Contractor. (R4, tab 1 at 120)2 The charter also incorporated Defense Acquisition Regulation (DAR) 7-103.12, DISPUTES (JUN 1980) (R4, tab 1 at 149). This clause stated the charter was "subject to the Contract Disputes Act of 1978 (P.L. 95-563)" (CDA), and in relevant part described the procedures for pursuing a claim. See Santa Fe Eng'rs, Inc., ASBCA No. 36292, 92-2 BCA ,r 24,795 at 123,677. 3 On May 11, 2007, a government contract employee stationed aboard Bonnyman suffered an injury leaving him a paraplegic. In June of 2008, the employee filed suit in the United States District Court for the Southern District of Ohio against, among others, the government and Maersk. (Compl. ,r,r 5-6) The complaint sought damages for maintenance, cure, wages, attorney fees, and punitive damages (R4, tab 2). Expresser was added as a defendant by an amended complaint (R4, tab 5.18). The charter was terminated by the government for its convenience on July 15, 2009 (compl. ,r 2). Neither party disputes that Bonnyman was redelivered on that date (gov't mot. at 4; app. opp'n at 4). In May of 2010, the district court dismissed the government from the employee's suit (compl. ,r 7). On March 21, 2011, the employee settled with Expresser and Maersk, releasing them from liability in exchange for $2,500,000 (compl. ,r 9; gov't mot. ,r 7). Slightly less than six years later, on March 15, 2017, Mr. Steven E. Hadder, President of Expresser and Vice President of Maersk, submitted a certified claim to the contracting officer seeking $2,782,088.62 in reimbursement for the settlement and for legal fees (compl. ,r 10; R4, tabs 3-4). Mr.