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Reducing Tort Liability Arising Out of Federal Munitions/Explosives Contracts: A Matter
of Mutual Responsibility for the U.S. and Its Contractors
By
Raymond B. Biagini, Partner
Covington & Burling, LLP
Rbiaigini@cov.com
Eliminating or reducing tort liability to third parties injured or killed from activities
performed under military contracts involving such hazardous products as explosives, munitions
or weapon systems is a matter of mutual interest and responsibility for both the U.S. military and
its contractors. Wrongful death and personal injury lawsuits filed by third parties against the
U.S. and its contractors can be debilitating and resource-draining. This paper advocates for a
“partnered solution” between the U.S. and its contractors where both proactively pursue “best
risk management practices” to mitigate these often catastrophic and high-profile lawsuits.
This paper first examines the key theories of liability that plaintiff attorneys use against
contractors who design and manufacture explosives and munition systems, including allegations
of design defect, unsafe handling and failure to warn. The paper then addresses real-life
scenarios where contractors and federal agencies have worked together during the procurement
process to “build-in” particular common law “federal” defenses such as the government
contractor defense, through the use of “special H” clauses. Such defenses will inure to the
benefit of both the U.S. and its contractors should an incident and third party lawsuits occur
downstream.
The paper will then address the procedures by which contractors can protect themselves
from third-party liabilities by obtaining federal indemnification under such statutes as PL 85-
