McKay v. Rockwell International Corp.

ALARCON, Circuit Judge,

dissenting.

I respectfully dissent. Neither the Feres-Stencel doctrine nor the government contractor defense protects Rockwell from liability in this case. As demonstrated by the discussion below, a remand on this issue is unnecessary and the district court’s finding of liability should be affirmed. To the extent that the damage awards have been reduced for failure to apply the collateral source rule, the decision should be reversed and the original amounts awarded.

Finally, the failure to grant prejudgment interest or damages for loss of services is discussed and instructions for the consideration of these issues on remand are given.

FERES-STENCEL

The majority’s reliance on these opinions for authority in this context is misplaced. Neither opinion addresses, limits, nor precludes contractor liability to military personnel who are injured while using defectively designed and unsafe equipment.

The Feres case involved a claim brought by a serviceman’s widow under the Federal Tort Claims Act (hereinafter the FTCA). She alleged that her husband’s death resulted from the negligence of his commanding officers.

In affirming the district court’s dismissal of the action, the Supreme Court noted that the purpose of the FTCA was to “waive immunity from recognized causes of action, not to visit the government with novel and unprecedented liabilities.” Feres, 340 U.S. at 142, 71 S.Ct. at 157. Because no American law had ever “permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving,” id., the Court concluded that the widow’s claim was outside the waiver of immunity contemplated by the FTCA.

In Stencel, a serviceman brought suit against both Stencel Aero Engineering Corp. (hereinafter “Stencel”), the supplier of the ejection seat in which he was injured, and the United States. The serviceman claimed that his injury was the result of the defendants’ individual and joint negligence. Stencel then cross-claimed against the Government for indemnification of any liability it might suffer as a result of the serviceman’s claim. The Government, in response, moved for dismissal of both the tort and the cross-claim citing Feres for authority. The motion was granted and the Supreme Court affirmed.

The Court agreed that Feres controlled and limited the government’s liability to the amounts provided in the statutory benefit packages. Because Stencel’s indemnification claim would have pushed the government’s liability above this upper limit, it also was prohibited. To hold otherwise, the Court concluded, “would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe that the [Federal Tort Claims] Act permits such a result.” Stencel, 431 U.S. at 673, 97 S.Ct. at 2059 (quoting Laird v. Nelms, 406 U.S. 797, 802 , 92 S.Ct. 1899, 1902 , 32 L.Ed.2d 499 (1972)). 1

It is apparent from a reading of these opinions that the Feres-Stencel doctrine is concerned exclusively with government, not contractor, liability. As stated in In re Agent Orange Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980) reh. den., 534 F.Supp. 1046 (E.D.N.Y.1982) (hereinafter, “Agent Orange”), “[t]o the extent that plaintiff’s complaints seek recovery against the defendant chemical companies, of course, the Feres doctrine has no application.” Id. at 772 (emphasis added); see also 1 Jayson, Handling Federal Tort Claims § 155.02 at 5-66 n. 9 and 5077 n. 24.

In this case, Mrs. McKay and Mrs. Carson have filed neither a direct claim nor a claim of indemnification against the Government. As such, their claims reside outside the previously defined area of concern expressed in Feres-Stencel and Agent Orange.

*457 More significant than the doctrine’s failure to preclude Rockwell’s liability, however, is the Stencel opinion’s implied recognition that a cause of action against a military contractor is proper. The Court states in footnote eight that prohibiting indemnification of Stencel is not unfair because it “no doubt had sufficient notice so as to take this risk [i.ebeing held liable without indemnification by the Government] into account in negotiating its contract for the emergency eject system at issue here.” Stencel, 431 U.S. at 674, 97 S.Ct. at 2059. This statement implies (1) the Court was aware of Stencel’s liability for the ejection seat and declined to restrict or preclude it, 2 and (2) the Court recognized that contractors like Stencel are aware of their possible liability in this context and have already set their bid prices to reflect this risk. Here too, the Court declined to restrict or preclude this practice. Consequently, limiting the risk which supports this added cost, as the majority has done, merely results in a windfall to suppliers like Rockwell and Stencel who have existing contracts.

Under the majority’s analysis, however, such a result is not discussed. To the contrary, it is assumed that current military contracts do not contain this type of compensation. Rather, the majority fears that contractors will, if held liable for unsafe designs, begin passing these liability costs on to the Government. This will be achieved, the majority suggests, through later sales and cost overrun provisions. 3 Such contractual indemnification, the majority concludes is (1) precluded by the Feres-Stencel doctrine, and (2) going to significantly increase the costs of military equipment. Neither conclusion is correct.

With regard to the first conclusion, it is simply not supported by the opinions themselves. The Feres opinion does not even mention the issue, and footnote eight of the iStencel opinion recognizes that most military equipment contracts already reflect this cost to some extent. The Stencel opinion’s failure to condemn this practice reflects the Court’s appreciation for the realities which control in a free market system. If contractors are subject to products liability, then that factor will be reflected in their overall cost of doing business. This cost, of course, will ultimately dictate the price charged to customers.

There is, however, no reason to believe that these costs are common, in amount and frequency, between all military equipment suppliers. Those with proven safety records may be able to secure liability insurance at much lower rates than less careful suppliers. Presumably, such cost savings enable these manufacturers to make lower bid prices and be more competitive. Because the Military is free to pursue and accept these lower bids, they help sharpen competition and keep the overall cost of bids down. Those manufacturers who do suffer liability, because of unsafe equipment, will be unable to pass on these costs freely due to the lower bids of their safer competitors. This analysis also demonstrates the error in the majority’s second conclusion, i.e., products liability in this context will translate into significantly higher equipment costs to the Military.

While there is no doubt that some of these liability costs will find their way into overall bid costs, this is to a certain extent inevitable. The free market system, however, insures that this cost transfer will be minimized. Just as some manufacturers are better at minimizing the cost of overhead, others will be better at producing safe designs and avoiding liability. Bid price competition and the cost of liability provide incentives to minimize both. Footnote eight of the Stencel opinion concedes this *458 system’s existence and recognizes that one way or another, all costs incident to manufacture get passed on to the customer, whether or not it is the Government. As long as our economy continues as a free market system this court should refrain from denying its realities.

The above analysis, of course, does not apply to all government contractors, for not all of them contract at arms length with the Government. In those situations where compulsion exists, in one form or another, the contractor should be immune from suit. Public policy, however, requires that this immunity be extended only in those cases where liability will not encourage safer design or lower costs.

GOVERNMENT CONTRACTOR DEFENSE

In its analysis of this defense, the majority has chosen to disregard the aforementioned public policy limitation. The four elements of the defense summarized in the opinion too easily allow contractors to shift responsibility for the safety of their designs on to the Government. Under the majority’s four part test, any contractor who submits designs to the Military and secures approval for them is immune from unsafe design liability. This goes too far.

The Ninth Circuit has already analyzed the government contractor defense in Merritt, Chapman & Scott Corp. v. Guy F. Atkinson Co., 295 F.2d 14 (9th Cir.1961). In that case, this court held that “[i]t is elementary that compulsion must exist before the ‘government contract defense’ is available.” Id. at 16 , (emphasis in original). This compulsion requirement, however, is dismissed by the majority. Under that analysis, Merritt is found inapplicable because of the simplicity of the construction specifications involved in that case. Why the detail of the specifications should, by itself, negate the compulsion requirement, is not explained. By failing to do so, however, the majority glosses over what this circuit has recognized to be an “elementary” requirement of the defense.

The question of compulsion is fundamentally distinct from a project’s complexity. A contractor can be required to make blasting caps in the exact manner provided in military specifications during time of war, see Littlehale v. E.I. du Pont de Nemours & Co., 268 F.Supp. 791, 801-802 (S.D.N.Y.1966), aff’d, 380 F.2d 274 (2d Cir.1967) or be given free reign to design a complex airplane like the B-52. See Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir.1961) and O’Keefe v. Boeing Company, 335 F.Supp. 1104 (S.D.N.Y.1971). Merritt recognizes the distinction between these situations and endorses the extension of immunity only in those cases where behavior has been compelled.

Merritt does not stand alone in this respect. All of the cases relied on by the majority, which apply the defense, found some factor which compelled the contractor to act as they did. In Casabianca v. Casabianca, 104 Misc.2d 348 , 428 N.Y.S.2d 400 (1980), the subject bakery dough mixer had been built “in or about 1942 or 1943 for the United States Army in accordance with the Army’s specifications for use in field kitchens during World War II.” Id. 428 N.Y.S.2d at 401 . Later, after having been installed in the plaintiff’s pizza parlor, the machine injured the plaintiff’s son. In dismissing the son’s claim against the manufacturer, the court held that “a supplier to the military in time of war has a right to rely upon such specifications [i.e. those provided by the military] ...” without fear of liability. Id. 428 N.Y.S.2d at 402 . (Emphasis added). The court then expressly limited the extension of this immunity to contracts performed under “time of war” restrictions. Id.

The approval of the government contractor defense in the In re Agent Orange Products Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980), reh. den., 534 F.Supp. 1046 (E.D.N.Y.1982) opinion, also involved manufacturers who alleged that they were compelled during “time of war” to produce supplies according to specifications developed and provided by the Military. 506 *459 F.Supp. at 794-95 . 4 Although that case has yet to come to trial, the court established the elements of the government contractor defense which the chemical companys must prove. There, the court stated, that “one of the elements of the defense is that the product in issue be one for which the government established the design and specific characteristics.” 534 F.Supp. at 1056 . Furthermore, “if it should appear that the contract set forth merely a ‘performance specification’, as opposed to a specified product, then the government contract defense would be far more restricted than as described here.” Id. It is clear from these statements that the Agent Orange court recognizes and requires control or compulsion as an element of the defense.

In Sanner v. Ford Motor Co., 144 N.J. Supp. 1, 364 A.2d 43 , aff’d, 154 N.J.Super. 407 , 381 A.2d 805 (1977), cert. denied, 75 N.J. 616 , 384 A.2d 846 (1978) another form of compulsion was presented. There, the contractor merely built a vehicle according to plans and specifications provided to it by the Military. The court found that “defendant had no discretion with respect to the installation of seatbelts and since it strictly adhered to the plans and specifications owned and provided by the government, Ford is protected from liability.” Id. 381 A.2d at 806 (emphasis added).

Each of these cases demonstrates, in one way or another, the compulsive nature of the Government’s behavior or direction when its contractor is immune. Only then will the contractor’s behavior be the result of governmental discretion and direction. Consequently, only then should the contractor share in the Government’s immunity.

In this case, Rockwell has not even alleged it was compelled to produce this ejection system. Furthermore, the only specifications which Rockwell adhered to were initially produced by its own design staff. Whether the Military subsequently ratified these designs should not alter Rockwell’s primary responsibility for their content and adequacy. This case is unlike Sanner or Casabianca where the contractor merely followed plans and specifications provided and developed by the Military. Rather, this matter more clearly resembles the situation described in Agent Orange where the Military merely provides “performance specifications”. As such, the government contract defense should be “far more restricted” than that described by the majority. See Agent Orange, 534 F.Supp. at 1056 .

More specifically, Rockwell’s posture reflects that of Boeing, in Boeing Airplane Company v. Brown, 291 F.2d 310 (9th Cir.1961) (hereinafter Brown) and O’Keefe v. Boeing Company, 335 F.Supp. 1104 (S.D.N. Y.1971) (hereinafter O’Keefe). In O’Keefe , Boeing was sued for negligent design of the tail support structure in the B-52 bomber. In response, Boeing argued the government contractor defense. The court then conceded that “ultimate responsibility for the design and use of the B-52 bomber rests and has always rested with the United States government.” 335 F.Supp. at 1124 . Nevertheless, the court went on to say that “this fact, in itself, neither exonerates the defendant, nor has it in any way altered the defendant’s duty as a manufacturer in this case where there has been no showing that the defendant was totally oblivious of and/or aloof from the genesis of the design specifications ...” Id.

The majority discusses this conclusion but dismisses it as dictum. 5 Nevertheless, it is *460 based on the holding in Brown . There, a defectively designed alternator disintegrated and caused the B-52 in which it was installed to crash. In this case Boeing also attempted to avoid liability by shifting primary responsibility for the defect on to the Government. They argued, according to the court, that:

the Air Force was negligent in its entire course of conduct in approving the design for the alternator drive prior to manufacture, supervising its manufacture, monitoring the qualification and production testing, and accepting the completed aircraft. Appellant predicates this view on the assumption, for the purpose of argument, that the design of the alternator drive was defective. If the design was defective, it is contended, the Air Force, in view of its continual contact with the project, was negligent in its failure to discover the defect and require its correction.

291 F.2d at 316-17 . Although Boeing did not specifically label this argument “the government contractor defense”, clearly its content demonstrates its essential similarity to that defense.

The Ninth Circuit, however, was no more impressed with the argument at that time than it should be now. The court recognized that inspection and approval do not constitute direction or compulsion. Therefore, Boeing was responsible for its own actions and design decisions despite the Government’s approval. 6 As long as Boeing continued as the source or genesis of the design, the negligence of that design remained its own responsibility.

The majority, however, does not even address this earlier decision by the Ninth Circuit. Instead, it is dismissed in footnote six, ante, as being a case which fails to discuss the contractor issue. The above excerpt demonstrates that this is not the case. Furthermore, the two Boeing cases are significant in that they are nearly identical to the case at bar. All three involve contractors who supplied negligently designed complex weapons systems which were approved and tested by the Military. In each, the courts held that responsibility for the designs remained with the manufacturer despite military approval. Furthermore, unlike the other cases which involved supply contracts entered into either during time of war or pursuant to government supplied plans and specifications, these cases involved contracts made pursuant to “performance specifications”. The above mentioned similarities and distinctions demonstrate that Brown and O’Keefe rather than Sanner and Casablanca should control here.

The majority is also concerned about possible deleterious effects this type of contractor liability would have on military discipline. Although the Stencel opinion expressed some concern for that issue, Justice Marshall’s dissent in that case clearly demonstrated its boundaries. He recognized that a contractor, sued by a civilian, might “cross claim against the Government. In that hypothetical case, ... there would be the same chance that the trial would ‘involve second guessing military orders, and would ... require members of the Armed Services to testify in court as to each other’s decisions and actions’. Ante at 673 [97 S.Ct. at 2059], Yet, there would be no basis, in Feres or in the Tort Claims Act, for concluding that the suit is barred because of the nature of the evidence to be produced at trial.” Stencel, 431 U.S. at 676-77, 97 S.Ct. at 2060 (Marshall, dissenting). Clearly then, if Marshall’s hypothetical suit is not blocked by discipline concerns, then the far more attenuated suit at issue here is also unblocked by this concern.

Finally, the majority suggests that to treat military personnel “as ordinary consumers would demean and dishonor the high station in public esteem to which, because of their exposure to danger, they are justly entitled.” Ante at 453. While all can agree that military personnel are enti *461 tied to the high honor and esteem in which they are held, I take issue with the majority’s description of its source.

Military personnel are honored and esteemed because they are willing to fight for their country and risk their lives doing so. They are not so respected because they are sometimes forced by their calling to use unsatisfactory or unsafe equipment. It is the Military’s, Rockwell’s and this court’s duty to insure that our servicemen are provided with reliable and safe equipment. Just as the Military can make any parachute packer take one that he has just folded and make him jump with it, the court should require that Rockwell stand behind the products for which it voluntarily contracts and provides at a profit. To extend the contractor defense in the way the majority suggests will only result in more unsafe and unreliable equipment. To do so would unnecessarily increase the danger which our military personnel face so patriotically. 7

THE REMAND

Applying the holdings and reasoning of O’Keefe, Brown, Merritt and Agent Orange to the instant case demonstrates that a remand on the issue of liability is unnecessary. As mentioned earlier, although Rockwell raised the government contractor defense in a motion for summary judgment, it failed to put on evidence in support of that defense at trial. Rockwell does not point to any testimony or evidence in the record which shows that it was compelled by the Military to build the ejection system in a particular manner. 8 On the other hand, the district court opinion is replete with references which demonstrate that the trial judge found Rockwell, not the Military, to be the designer of the ejection system. 9 Furthermore, Rockwell’s reliance on Kropp v. Douglas Aircraft, 329 F.Supp. 447 (E.D.N.Y.1971) for a description of their ejection seat design process demonstrates that they are not entitled to the defense. In Kropp , the design process was described as beginning “rather informally with an idea or suggestion which may emanate either from the manufacturer or the Government, usually the latter.” Id. at 456 . This description closely parallels the “performance specification” situation described in Agent Orange. There, the court held that the government contractor defense was “far more restricted.” See Agent Orange, 534 F.Supp. at 1056 . It also reflects Boeing’s behavior in O’Keefe , where a failure to show “the defendant was totally oblivious and/or aloof from the genesis of the design specifications in the first place” precluded the defense. See O’Keefe, 335 F.Supp. at 1124 . Finally, Brown shows that inspection and approval of a design by the Military does not in any way dismiss the primary responsibility of the contractor who creates the design. See Brown, 291 F.2d at 317 .

The purpose of the remand, proposed by the majority, is to discover whether or not the Government set or approved “reasonably detailed specifications for the HS-1A system.” Ante at 453. As shown by the discussion above, however, it is compulsion, to follow Government plans, not Govern *462 ment approval of contractor plans which entitles Rockwell to immunity. Even if we assume, arguendo, that a detailed set of plans created by Rockwell were submitted and then approved, the lack of compulsion would prevent the Government from assuming responsibility for the safety or adequacy of Rockwell’s design. Because Rockwell has failed to prove or allege that it was compelled to produce the HS-1A system, a remand is unnecessary. Without evidence of the compulsion element, the Ninth Circuit has held and should continue to hold as a matter of law, that the defense is unavailable. See Merritt, 295 F.2d at 16 . If the majority continues to insist on a remand, then, in addition to the four elements set out in the opinion, Rockwell should be required to prove, as a fifth element of the defense, that it was compelled by the Government to produce the ejection system in a manner which failed to protect the crewman’s head and neck from injury.

While I believe' that a remand on the liability issue is unnecessary, I do believe that other issues, not discussed by the majority, require reversal and further consideration by the district court. In the interest of judicial economy, I will discuss them at this time.

THE DAMAGES ISSUE

The district court concluded, in both cases, that the amount of Rockwell’s liability was to be reduced by the V.A. benefits each widow was receiving. The trial judge concluded that “[p]laintiffs should not be permitted to recover the ‘lost’ military retirement while presently collecting that retirement in the form of V.A. pension.” District court opinion at 14. The conclusion is incorrect.

The Ninth Circuit has recognized the “well established rule that a tortfeasor’s liability is not reduced by funds or services received by the injured person from a source collateral to the tortfeasor. The tortfeasor should not be required to compensate twice for the same injury, [see Brooks v. United States, 337 U.S. 49, 53-54 , 69 S.Ct. 918, 920-921 , 93 L.Ed. 1200 (1949)] but he should not have the benefit of payments to the injured person which he did not make.” Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir.1962). Therefore, the question before us is whether Rockwell can be considered the source of the V.A. benefits being received by Mrs. McKay and Mrs. Carson.

The benefits at issue are distributed pursuant to 38 U.S.C. §§ 410-417 (1979) (Dependency and indemnity compensation benefits). Funds for these benefits are by Congressional appropriation and other than general payment of taxes, Rockwell makes no specific contribution to these funds. Therefore, the Government, not Rockwell, is the source of these benefits.

Rockwell contends, however, that its contractual relationship with the Government prohibits this conclusion and cites City of Salinas v. Souza & McCue Construction Co., 66 Cal.2d 217 , 57 Cal.Rptr. 337 , 424 P.2d 921 (1967) (hereinafter “Souza") for support. The contention has no merit.

The Souza opinion is inapplicable to Rockwell’s situation for two reasons. First, because a public-entity defendant was involved, Souza restrained application of the rule. The court reasoned that “the collateral source rule is punitive in nature (United Protective Workers v. Ford Motor Co., 223 F.2d 49, 54 (7th Cir.1955); 2 Harper & James, Law of Torts, § 22.22 p. 1345; Fleming, The Collateral Source Rule and Lors Allocation in Tort Law, 54 Cal.L.Rev. 1478, 1482-1484)”, and that “the levying of punitive damages against a public entity has not been authorized.” Souza, 66 Cal.2d at 228 , 57 Cal.Rptr. 337 , 424 P.2d 921 . Second, Souza involved a breach of contract action. In such cases, the recovery “is intended only to restore the injured party to the position he would have occupied in the absence of the breach.” Id. at 227 , 57 Cal.Rptr. 337 , 424 P.2d 921 . Therefore, set-offs which limit recovery to the benefit of the bargain are not objectionable. In tort cases, however, no such limitation applies. To restrain the collateral source rule in this context “would negate the deterrent effect of an award against a tortfeasor.” Id. Consequently, both factors which restrained *463 application of the collateral source rule in Souza do not apply here. Rockwell, despite its contractual relation with the Government, is not a public entity, and its liability stems from tortious conduct, not contract breach. Rockwell’s other arguments in favor of set-off are equally unpersuasive.

First, Rockwell argues that the collateral source rule only applies to contributory benefits. The cases upon which Rockwell relies, however, have only applied this requirement to situations where there is a government defendant which is already paying benefits to the plaintiff. 10 The contribution requirement in these cases protects government defendants from double liability. Such protection is unnecessary in Rockwell’s situation. Furthermore, Feres-Stencel insures that the Government’s liability is limited to the V.A. benefits being paid.

Second, Rockwell argues that the V.A. benefits represent a payment by a tortfeasor prior to litigation and should be deducted. 11 The district court, however, did not find that the Government was negligent with respect to the ejection seat design. 12 Consequently, the Government is not a joint-tortfeasor with respect to Rockwell’s present liability for unsafe design.

Rockwell’s final contention is that V.A. benefits are equivalent to those provided under the Federal Employment Compensation Act and are therefore, set off under Witt v. Jackson, 57 Cal.2d 57, 73 , 17 Cal.Rptr. 369 , 366 P.2d 641 (1961). The holding in Witt , however, was limited to California workmen’s compensation benefits and only applies when the employer is a concurrent tortfeasor. See De Cruz v. Reid, 69 Cal.2d 217, 222-23 , 70 Cal.Rptr. 550 , 444 P.2d 342 (1968); Arbaugh v. Procter & Gamble Mfg. Co., 80 Cal.App.3d 500 , 145 Cal.Rptr. 608 (1978). As has been discussed earlier, the district court did not find the Government to be a concurrent tortfeasor with respect to the ejection seat design. Therefore, Witt does not apply and it is unnecessary to decide whether or not V.A. benefits are equivalent to workmen’s compensation.

In sum, Gypsum Carrier, supra, states the general rule in this circuit. Despite Rockwell’s arguments, there is no reason why it should not be applied in this case. The V.A. benefits presently being paid to Mrs. Carson and Mrs. McKay stem from a source “wholly independent” of Rockwell. As such, they are a collateral source, and the district court erred in concluding otherwise. The district court ruling on this issue should be reversed and the original sum awarded.

PREJUDGMENT INTEREST

The damages awarded to plaintiffs do not include an amount for prejudgment interest. “In admiralty, prejudgment interest must be granted unless peculiar circumstances justify its denial;” Dillingham Shipyard v. Associated Insulation Co., 649 *464 F.2d 1322, 1328 (9th Cir.1981). “The determination of whether peculiar circumstances exist warranting the denial of prejudgment interest is left to the sound discretion of the trial court.” Edinburgh Assur. Co. v. R.L. Burns Corp., 669 F.2d 1259, 1263 (9th Cir.1982). Failure to articulate why prejudgment interest is not to be awarded is an abuse of discretion. Id. Under these authorities, the failure to either award plaintiffs prejudgment interest or articulate reasons for not doing so was an abuse of discretion by the district court. Upon remand, the trial judge should either “determine at what rate and from what time prejudgment interest should be awarded,” Edinburgh, supra at 1263 , or articulate why he has not done so.

LOSS OF SERVICES

The damages awarded to plaintiffs did not provide for loss of services. This measure of damage is distinct from loss of society and is recoverable under DOHSA. See Mobil Oil Co. v. Higginbotham, 436 U.S. 618, 622 , 98 S.Ct. 2010 , reh. denied, 439 U.S. 884 , 99 S.Ct. 232 , 58 L.Ed.2d 200 (1978); Solomon v. Warren, 540 F.2d 777, 788-90 (5th Cir.1976), cert. dismissed, 434 U.S. 801 , 98 S.Ct. 28 , 54 L.Ed.2d 59 (1977). (Loss of services herein called “loss of nurture”.) Loss of services is compensable because it is capable of being valued. “Guidance of a parent in matters material, moral, and spiritual is of a definite practical and financial value and is subject to pecuniary estimate.” Moore-McCormack Lines v. Richardson, 295 F.2d 583 , 593 n. 9a (2d Cir.1961), cert. denied, 368 U.S. 989 , 82 S.Ct. 606 , 7 L.Ed.2d 526 (1962); Bodden v. American Offshore, Inc., 681 F.2d 319, 329 (5th Cir.1982). Consequently, it was error for the district court to grant an award which did not include an amount for loss of services or an explanation why they were excluded. On remand, the trial judge should determine whether there is a factual basis for loss of services in these cases:

Under DOHSA the wrongful death of a parent standing alone is an insufficient predicate to support recovery by a child of the loss of parental nurture, and in order to recover this item of damages the evidence must Show that the deceased parent was fit to furnish such training and that training and guidance had actually been rendered by the parent during his or her lifetime to their children.

Solomon v. Warren, supra at 788; see Petition of Risdale & Anderson, Inc., 291 F.Supp. 353, 358 (D.Mass.1968) (factors to consider).

. The use by the majority of this quotation at page 449, ante may lead to a misinterpretation or mislead others as to the Supreme Court’s holding. There, the usage of the quote implies that the Stencel opinion disapproves of contractors passing on their costs through later sales and cost overrun provisions. In fact, the quoted language merely refers to indemnity suits.

. The Agent Orange opinion comports with this analysis. There the court stated that the “Feres-Stencel doctrine bars defendant’s attempt to seek contribution or indemnity from the United States based on any recovery plaintiffs may obtain for injuries.... ” Agent Orange, 506 F.Supp. at 774 . This acknowledgement that plaintiffs might recover from a military contractor within an analysis of Stencel implies that such a recovery is not barred by that opinion.

. The majority fails to explain how liability costs can be legitimately included within the ambit of a cost-overrun provision.

. It should be noted that the court in Agent Orange denied a motion for summary judgment based on these compulsion allegations. Instead, the court required defendants to prove at trial that this compulsion in fact occurred. Agent Orange, 506 F.Supp. at 795-96 . See also Jenkins v. Whittaker Corp., 551 F.Supp. 110 (D.Haw.1982), where the court noted that the Agent Orange ruling “should be limited to cases involving the manufacture of ‘weapons during wartime.’” Id. at 114 . Also, because the atomic simulator at issue was not “designed under the urgency of wartime,” the Agent Orange holding was “inapposite to the case at bar.” Id.

. The majority fails to explain why the dictum in O’Keefe is less meritorious than the dictum in Agent Orange upon which it so heavily relies.

. See Jenkins v. Whittaker Corp., supra, note 4 where the court “ORDERS that Whittaker will be prohibited from arguing to the jury that Whittaker cannot be held liable for design ... because Whittaker followed the plans and specifications of the government....” 551 F.Supp. at 114-15 .

. See Foster v. Day & Zimmermann, Inc., 502 F.2d 867 (8th Cir.1974), where the court stated:

In making the grenade and its component parts the defendant knew that it was made for military personnel and that it was to be used by them. We believe the public interest in human life and health requires the protection of the law against the manufacture of defective explosives, whether they are to be used by members of the public at large or members of the public serving in our armed forces.

Id. at 871 ; see also Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (5th Cir.1975).

. See, footnote 4, supra where defendants in the Agent Orange case were required to prove, among other things that (1) the military developed and provided exact specifications for the product, and (2) that they were compelled to produce Agent Orange in this manner by the war time provisions of federal law.

. See District Court Opinion at 10 “Rockwell designed, developed, tested, and manufactured a system ... known as the FS-1 system ...” also, “the many neck injuries that had been experienced by crewmen who had activated the HS-1A and the similar preceding FS-1 escape system must have brought notice to Rockwell, as designer and manufacturer, ...” at 12. (emphasis added).

. Rockwell relies primarily on: Helfend v. Southern Cal. Rapid Transit District, 2 Cal.3d 1, 13-14 , 84 Cal.Rptr. 173, 181 , 465 P.2d 61, 69 (1980); United States v. Brooks, 176 F.2d 482 (4th Cir.1949); and Overton v. United States, 619 F.2d 1299 (8th Cir.1980).

. The rule which Rockwell relies on requires that the payments be in “settlement.” See Donham v. United States, 536 F.2d 765 , 775 n. 12 (8th Cir.1976), aff'd sub nom., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 , 97 S.Ct. 2054 , 52 L.Ed.2d 665 (1977). Furthermore, the Donham footnote is based on the reasoning in Murray v. United States, 405 F.2d 1361 (D.C.Cir.1968). This reasoning was rejected by the Ninth Circuit in Dodge v. Mitsui Shintaku Ginko K.K. Tokyo, 528 F.2d 669, 671-72 (9th Cir.1975), cert. denied, Mitsui Shintaku Ginko K.K. Tokyo v. Dodge, 425 U.S. 944 , 96 S.Ct. 1685 , 48 L.Ed.2d 188 (1976). There, this court noted that the Murray approach had been rejected by the Second Circuit and that it was contrary to the great weight of authority.

. There was some suggestion in the district court opinion that the Navy had been negligent in its apparent failure “to live up to its duty to vigilantly inspect, maintain, and repair these high performance airplanes.” District Court Opinion at 9. With regard to the ejection seat, however, that was “quite another matter.” Id. “It seems clear to the Court that the design of the escape system is all-important ... maintenance of the system is of lesser importance.” Id. at 12. Finally, “the court finds that the condition of the HS-1A ejection system involved ... had not substantially changed between the time they were installed by Rockwell and the time they were deployed by decedents.” Id. at 14.