                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                              )
                                           )
Maersk Line, Limited                       )      ASBCA Nos. 59791, 59792
                                           )
Under Contract Nos. N00033-06-C-3305       )
                    N00033-06-C-3306       )

APPEARANCES FOR THE APPELLANT:                    Robert E. Korroch, Esq.
                                                  Cameron M. Rountree, Esq.
                                                  William A. Wozniak, Esq.
                                                   Williams Mullen
                                                   Newport News, VA

APPEARANCES FOR THE GOVERNMENT:                   Ronald J. Borro, Esq.
                                                   Navy Chief Trial Attorney
                                                  Tricia A. Nicewicz, Esq.
                                                  Allison M. McDade, Esq.
                                                  Gordon D. Ivins, Esq.
                                                   Trial Attorneys
                                                   Military Sealift Command
                                                   Norfolk, VA

           OPINION BY ADMINISTRATIVE JUDGE YOUNGER
  ON THE GOVERNMENT'S MOTION AND APPELLANT'S CROSS-MOTION
          FOR SUMMARY JUDGMENT AND OTHER MOTIONS

        The parties have filed cross-motions for summary judgment, as well as three
other motions, in these consolidated appeals. Appellant Maersk Line, Limited (Maersk)
seeks vessel conversion costs said to result from the convenience terminations of
two dry cargo time charters. Under Contract No. N00033-06-C-3305, the Military
Sealift Command (MSC) chartered the services of the MN LTC John UD. Page
(MN Page). Under Contract No. N00033-06-C-3306, MSC chartered the services of
the MN SSG Edward A. Carter, Jr. (MN Carter). Both contracts were follow-on
contracts. MSC terminated both contracts for convenience. We deny the cross-motions
for summary judgment, as well as the three other motions.
              STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS

       A. The 2001 Contracts

        1. Effective 22 May 2000, MSC awarded Contract No. N00033-00-C-3201, to
Maersk for the dry cargo time charter for the MN Page (ASBCA No. 59791 (59791),
R4, tab A-1 at 1-2). In addition, effective 22 May 2000, MSC awarded Maersk
Contract No. N00033-00-C-3202 for the dry cargo time charter for the MN Carter
(ASBCA No. 59792 (59792), R4, tab A-1at1-2) (the 2001 contracts). "Under a time
charter, the owner remains responsible for maintenance and crewing of the vessel,"
Bos 'n Towing and Salvage Company, ASBCA No. 41357, 92-2 BCA ii 24,864
at 124,026, while the charterer may employ the vessel for specified purposes.

      2. The 2001 contracts were both for terms of 1,795 days (59791, R4, tab A-1at2;
59792, R4, tab A-1 at 2). Both contracts were for the transportation and storage of
ammunition in support of the Army's Prepositioning Program (59791, R4, tab B-42 at 142).

        3. It is undisputed that, in the interval between contract award and delivery of the
vessels under the 2001 contracts, Maersk incurred costs to modify both the MN Page
and the MN Carter. In order to meet the requirements of the 2001 contracts, Maersk
installed specialized cranes, air conditioning and dehumidifier systems for the cargo
holds, and cargo hold sprinkler systems to make both vessels suitable for the
transportation and storage of ammunition. (59791, R4, tab D-66 at 525; 59792, R4,
tab D-60 at 529)

       B. The 2006 Contracts

       4. Following completion of the 2001 contracts, MSC awarded the follow-on
contracts at issue here. Effective 1 February 2006, MSC awarded Contract
No. N00033-06-C-3305 to Maersk for the dry time charter of the MN Page, and,
effective 8 December 2005, for the MN Carter (collectively, the 2006 contracts)
(59791, R4, tab C-44 at 343; 59792, R4, tab C-29 at 300).

       5. The 2006 contracts contained various standard clauses, including Federal
Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL
ITEMS (OCT 2003). Each contract's Termination for the Government's Convenience clause
was separately set out and was identical to that appearing in FAR 52.212-4(1) (59791, R4,
tab C-44 at 372; 59792, R4, tab C-29 at 333).

       6. The 2006 contracts contained identical Cancellation Fee clauses, which
provided:



                                            2
             The contractor and Government agree the purpose of this
             clause is to induce the contractor to offer to provide and to
             provide the required services when the contractor
             otherwise would not offer to provide them because of the
             contractor's inability to recover its out-of-pocket costs in
             the event the Government does not exercise an option to
             extend the term of the contract or terminates the contract
             for the convenience of the Government.

             In the event the Government does not exercise an option to
             extend the term of the contract...for convenience, the
             contractor shall be entitled to not-to-exceed cancellation
             costs subject to the following conditions ....

             "Cancellation costs" means, and only means, costs
             specifically identified by the contractor in its proposal and
             actually incurred by the contractor between contract award
             and vessel delivery to the Government including, and
             limited to, the following categories of costs: costs incurred
             by the contractor for vessel acquisition, reflagging costs
             and modification, or conversion costs, and only to the
             extent such modification, or conversion costs were
             incurred in order for the vessel to meet contract
             requirements ....



             The cancellation costs must be reasonable, allowable, and
             allocable to the contract. The Government will not be
             obligated in any event to reimburse the contractor for the
             specified categories of cancellation costs ... regardless of
             anything to the contrary in the clause entitled "Termination
             for Convenience of the Government." The contractor
             agrees that payment of the specified cancellation costs
             according to the schedule above for any contract period
             fully compensates the contractor for the specified
             categories of cancellation costs. The contractor waives any
             right it may have to claim any additional costs for the
             specified categories of cancellation costs ....

(59791, R4, tab B-43 at 167; 59792, R4, tab C-29 at 326-27)




                                           3
       7. MSC redelivered the MN Page to Maersk on 22 June 2010, which was
before expiration of the contract (59791, R4, tab C-62 at 500-01).

       8. MSC also redelivered the MN Carter to Maersk early (59792, R4, tab C-57
at 497-98).

       9. After negotiations regarding Maersk's termination settlement proposal
(TSP), the parties reached agreement on outstanding issues, other than hull
depreciation costs under each contract, as to which they reached an impasse (59791,
supp. R4, tab 65G at 604; 59792, R4, tab 58 at 506).

       10. By date of 24 September 2013, Maersk submitted its certified claim to the
contracting officer regarding both contracts. Maersk asserted that the claim was for

              (i) [U]nrecovered costs, resulting from the early
              termination of [the contract], in the amount of $480,000
              incurred for the modification of the MN PAGE to comply
              with applicable contract requirements (hereinafter the
              "Hull Depreciation Costs"), and (ii) unrecovered costs,
              resulting from the early termination of [the contract], in the
              amount of$242,500 incurred for the modification of the
              MN CARTER to comply with applicable contract
              requirements.

Maersk explained that:

                     The claim ... with respect to reimbursement of Hull
              Depreciation Costs for the MN PAGE is equally
              applicable to unrecovered vessel modification costs for the
              MN CARTER, as the vessels are similarly situated with
              respect to the incurred modification costs, the depreciation
              schedule ... as well as to the application and effect of the
              relevant contract clauses ....

(59791, R4, tab D-66 at 524, 532-33) Maersk employed the term "Hull Depreciation
Costs" on all but one page of its claim to refer to the costs that it sought (id. at 524-32).

       11. By date of 17 October 2014, the contracting officer rendered separate final
decisions denying Maersk's claims for reimbursement (59791, R4, tab D-70; 59792, R4,
tab E-64). Thereafter, by date of 13 January 2015, Maersk filed a timely notice of appeal
in each of these appeals. By order dated 26 May 2015, we granted the parties' joint motion
to consolidate both appeals.



                                             4
       12. In its first amended complaint in ASBCA No. 59791, Maersk alleges in
Count I that its "unrecovered hull depreciation is a cost that has resulted from the
termination [of the contract for the MN Page], which [Maersk] is entitled to recover
from MSC" as a breach of the Termination for Convenience clause (compl. iiii 33, 35).
Maersk alleges that "[b]ased on 192 days remaining on the Contract..., the actual 'hull '
depreciation' amount reflects the amortized cost of $2,500 per day for 192 days
($480,000)" (id. ii 25).

       13. In its first amended complaint in ASBCA No. 59792, Maersk makes
substantially identical allegations in Count I regarding entitlement to "unrecovered hull
depreciation" costs as those made regarding the MN Page (compl. iiii 33, 35). Maersk
alleges that "[b]ased on 97 days remaining on the Contract, the actual 'hull depreciation'
amount reflects the amortized cost of $2,500 per day for 97 days ($242,500)" (id. ii 25).


                                   DECISION

   I. MSC's Alternative Motion to Dismiss the Amended Complaints for Lack of
      Jurisdiction

        We first address MSC's alternative motion to dismiss Maersk's amended
complaints in each appeal because it is potentially dispositive of the remaining
motions. In its motion to dismiss, MSC asserts that Maersk failed to submit its claim
for vessel depreciation costs to the contracting officer (Government's Motions for
Summary Judgment, Or in the Alternative, to Dismiss Appellant's Amended
Complaint for Lack of Jurisdiction (gov't mot. at 13-15)). MSC stresses that the
claims before the contracting officer were for the "'conversion costs incurred from the
first ammo contract of [these] vessel[s], including installation of cranes, AC/DH
systems, [c]argo [h]old sprinkler systems, etc."' (id. at 14). By contrast, MSC
emphasizes, the claims asserted in the first amended complaints are for depreciation of
vessel acquisition costs (id. at 14-15).

        In opposition, Maersk insists that the claims asserted in the amended complaints
are based on the same operative facts as those presented to the contracting officer
(Appellant's Motion to Dismiss Respondent's Motion for Summary Judgment, Deny
Respondent's Motion for Dismissal, and Compel Respondent to Respond to
Appellant's Discovery Requests (app. opp'n at 6)). Maersk acknowledges that the
Board lacks jurisdiction over claims not presented to the contracting officer, but
asserts that, its claims defined the term "Hull Depreciation Costs" as "unrecovered
costs incurred for the modification of the MN PAGE and the MN CARTER" (id.). In
its amended complaints, Maersk states, it clarifies "the distinction between the cost of
modifying or converting the vessels for service and the cost of acquiring the vessel[ s]"
(id. at 6-7). Maersk explains that the amounts sought in both complaints are identical,


                                            5
and that its legal position regarding the Cancellation Fee clauses remains the same, as
does its invocation of the early termination of the contracts as the causal event for cost
incurrence (id. at 7). In addition, Maersk insists that MSC's contention that claims
stemming from the 2001 contracts should be dismissed because the time bar of the
statute of limitations is not jurisdictional and is properly raised as an affirmative
defense subject to a determination in a merits proceeding (id.).

        We conclude that MSC's alternative motion to dismiss the amended complaints
must be denied. In Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir.
2003), the court of appeals held that the same claim decided by the contracting officer
must be presented to the court; claims do "not require rigid adherence to the exact
language or structure of the original.. .claim [when they] arise from the same operative
facts, claim essentially the same relief, and merely assert differing legal theories for
that recovery." We held in American General Trading & Contracting, WLL, ASBCA
No. 56758, 12-1 BCA iJ 34,905 at 171,639 that a claimant "is free to change the legal
theory ... from what was described in the claim .. .if the action continues to arise from the
same operative facts that were relied upon in the [claim], and essentially seeks the
same relief."

        Applying these standards to the present motion, MSC fails to demonstrate a
decisive difference in the operative facts between the claim as asserted to the
contracting officer and in the first amended complaints. Both in the claim and in its
amended pleadings, Maersk points to the early convenience terminations of the
contracts as the precipitating event for its loss of the unrecovered "Hull Depreciation
Costs" that it seeks to recover (statements 9, 11, 12). In addition, Maersk seeks the
same relief-recovery of $480,000 under the MN Page contract, and $242,500 under
the MN Carter contract-in both the claim and the first amended complaints (id.).
Finally, with respect to MSC's assertions that there are qualitative differences between
the claim submitted to the contracting officer and that alleged in the first amended
complaints, it is to be noted that Maersk characterizes the costs that it seeks as "Hull
Depreciation Costs" on almost every page of the claim (statement 9). Whether or not
"hull depreciation" is "simply a naming convention coined by Appellant" (gov't mot.
at 9), Maersk so characterized the costs that it sought on all but one page of the claim
(statement 9). In any event, "assert[ing] differing legal theories for ... recovery" does
not defeat our jurisdiction. Scott Timber, 333 F.3d at 1365.

   2. MSC 's Motion for Summary Judgment

       In moving for summary judgment, MSC focuses on the nature ofMaersk's
claim and urges that it is barred by the Cancellation Fee clause in each of the 2006
contracts (see statement 6). MSC stresses that "the costs at issue are those associated
with the vessels' modification to comply with the 2001 Contract requirements. There
are no facts in the record that support the disputed costs being 'depreciation of vessel


                                              6
acquisition."' (Gov't mot. at 10) MSC insists that Maersk incurred conversion costs-
that is, for the costs of converting the vessels to ammunition ships by installing items
such as specialized cranes, air conditioning and dehumidifier systems for the cargo
holds, and cargo hold sprinkler systems, under the 2001 contracts (id. at 8, 10). MSC
further argues that the 2006 contracts, however, did not include conversion costs, and
the Cancellation Fee clauses in those contracts (see statement 6) provide that the
cancellation fees themselves cover conversion costs and preclude recovery of any
additional costs (gov't mot. at 8). Consistent with its position that Maersk's claims
"arise from its admitted costs of modifying [the vessels] to meet 2001 Contracts[']
requirement specifications" (id. at 8), MSC therefore urges that the contracting officer
properly denied Maersk's claim under the 2006 contracts.

        In opposition to the motion, Maersk asserts that MSC has wrongly framed the
issue. Maersk argues that the issue is whether it is entitled to "its depreciation of the
costs of its acquisition of the vessels that was not recovered because ofMSC's early
redelivery and termination of the 2006 Contracts for its convenience" (Appellant's
Response to Government's Motions for Summary Judgment and Appellant's
Cross-Motion for Summary Judgment (app. reply at 7)). Maersk emphasizes that the
issue is "squarely presented" in its amended complaints in both appeals (id.).

       Our evaluation of the parties' summary judgment motions is guided by the
familiar canon that summary judgment is properly granted only where there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of
law. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir.
1987). "Our task is not to resolve factual disputes, but to ascertain whether material
disputes of fact-triable issues-are present." Conner Bros. Construction Co., ASBCA
No. 54109, 04-2 BCA if 32,784 at 162,143, ajf'd, Conner Bros. Construction Co. v.
Geren, 550 F.3d 1368 (Fed. Cir. 2008) (quoting John C. Grimberg Co., ASBCA
No. 51693, 99-2 BCA if 30,572 at 150,969). In evaluating a summary judgment
motion, we draw justifiable inferences in favor of the party opposing the motion.
However, once the movant meets its burden of showing the lack of any genuine issue
of material fact, the non-moving party must set out specific facts showing the
existence of a genuine issue of material fact; conclusory statements or bare assertions
are insufficient. Mingus Constructors, 812 F.2d at 1390-91.

        With respect to cross-motions, such as those before us, "The fact that both
parties have moved for summary judgment does not mean that [we] must grant
judgment as a matter of law for one side or the other; summary judgment in favor of
either party is not proper if disputes remain as to material facts." Mingus
Constructors, 812 F.2d at 1391. With cross-motions, we "must evaluate each party's
motion on its own merits." BMY, A Division of Harsco Corp., ASBCA No. 38172,
93-2 BCA if 25,704 at 127,868.



                                             7
        We conclude that MSC's motion should be denied. We reach this conclusion
for two principal reasons. First, there are disputed issues of material fact surrounding
the characterization of the costs at issue. Thus, Maersk tells us that the costs that it
seeks to recover are "depreciation of the costs of its acquisition of the vessels that was
not recovered because of MSC's early redelivery and termination of the 2006
Contracts" (app. reply at 7). By contrast, MSC asserts that the costs constitute "those
associated with the vessels' modification to comply with the 2001 Contract
requirements" (gov't mot. at 10). We cannot resolve the parties' dueling
characterizations of these costs on summary judgment. These arguments present a
triable issue. See Conner Bros., 04-2 BCA iJ 32,784 at 162,143, ajf'd, Conner Bros.,
550 F.3d 1368.

       Second, resolution of broader issues in these appeals would be aided by
extrinsic evidence. We have elsewhere denied summary judgment when the parties
contest the meaning of contract terms, recognizing that "material disputes of fact.. .may
arise concerning the meaning intended by the parties." Aegis Defence Services Ltd.,
ASBCA No. 59082, 15-1BCAii35,811at175,138. Stated otherwise, "When the
meaning of a contract and the parties' intentions are both relevant and in dispute, there
are mixed questions of fact and law that pose triable issues precluding summary
judgment." AshBritt, Inc., ASBCA Nos. 56145, 56250, 09-2 BCA iJ 34,300
at 169,434.

   3. Maersk's Cross-Motion/or Summary Judgment

       The syllogism underlying Maersk's cross-motion is as follows. First, both
FAR 12.403 and FAR 49.20l(a), read together, set forth the principle of fairness for
convenience termination settlements. Second, Maersk is entitled to recover under the
Termination for Convenience clause "reasonable charges" that have resulted from the
termination, which includes charges incurred in anticipation of contract performance.
Third, these charges include vessel depreciation, which Maersk has demonstrated with
records submitted with its cross-motion. (App. reply at 15) In opposition, MSC
substantially reiterates the arguments it advances in its own motion for summary
judgment (Government's Response to Appellant's Motion for Summary Judgment
(gov't reply at 1-3)).

      As indicated, we evaluate Maersk's cross-motion on its own merits. BMY, 93-2
BCA ii 25,704 at 127,868. We deny it for the same reasons that we denied MSC's
motion for summary judgment.

   4. Maersk's Motion to Dismiss MSC's Motion for Summary Judgment

      Maersk labelled its initial opposition to MSC's motion for summary judgment
as a motion to dismiss the latter motion. Maersk argues that MSC's motion for


                                            8
summary judgment should be denied for MSC's alleged "abuse of the process" of
litigation (app. opp'n at 5). Maersk's point is that it is abusive for MSC to move for
summary judgment when it has "deliberately and calculatedly produced nothing in
response to [Maersk's] discovery requests" (id.).

     We deny Maersk's motion to dismiss MSC's motion. Maersk has not filed a
motion to compel discovery responses and a motion to dismiss a summary judgment
motion is procedurally inappropriate. In any event, in both its opposition to MSC's
motion for summary judgment, and in its cross-motion for summary judgment,
Maersk has demonstrated that it has not suffered any discemable prejudice from
MSC's motion practice.

   5. Maersk's Motion to Compel Discovery

       Maersk also moves to compel discovery regarding various interrogatories and
document production requests. After Maersk filed its motion, however, we stayed
further discovery pending disposition of the cross-motions for summary judgment.

      With its cross-motion, Maersk has informed us that it "withdraws its Motion to
Compel" (app. reply at 1 n. l). Given Maersk's withdrawal, we dismiss Maersk's
motion to compel as moot.

                                    CONCLUSION

       MSC's alternative motion to dismiss Maersk's first amended complaints for
lack of jurisdiction is denied. MSC's motion for summary judgment is denied.
Maersk's cross-motion for summary judgment is denied. Maersk's motion to dismiss
MSC's motion for summary judgment is denied. Maersk's motion to compel
discovery is dismissed as moot.

       Dated: 13 June 2016



                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

(Signatures continued)




                                            9
I concur                                       I concur




Administrative Judge
                                              RIC~KLEFORD
                                               Administrative Judge
                                               Vice Chairman
Acting Chairman
Armed Services Board                           Armed Services Board
of Contract Appeals                            of Contract Appeals



      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 59791, 59792, Appeals of
Maersk Line Limited, rendered in conformance with the Board's Charter.

      Dated:



                                               JEFFREYD. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




                                         10
