William J. Brennan, Jr.

“ The Court of Appeals held that, under the 'majority rule,' an indemnitee cannot recover for his own negligence in the absence of a contractual provision which unmistakably authorized this result. Since the contract here did not unequivocally command that the Government be indemnified for its own negligence, and because the injuries in question were thought to have been caused by the 'active direct negligence' of the Government with no more than a 'slight dereliction' on the part of Seckinger, no recovery whatsoever on the contract would be permitted to the United States. ”

“ A synthesis of all of the foregoing considerations leads to the conclusion that the most reasonable construction of the clause is the alternative suggestion of the Government, that is, that liability be premised on the basis of comparative negligence. [20] In the first place, this interpretation is consistent with the plain language of the clause, for Seckinger will be required to indemnify the United States to the full extent that its negligence, if any, contributed to the injuries to the employee. ”

“ In the Government's view, this construction of the clause renders it a nullity, for the United States can never be held liable in tort under the Tort Claims Act or otherwise in the absence of negligence on the part of its agents. ”