occurred, but that plaintiff has failed to establish who, if anybody, was at fault.
The only remaining issue with which we must deal is whether or not the government is liable to plaintiff under Section 414
of the Restatement of Torts (Second). Although plaintiff did not raise the issue of whether or not the United States retained control over any part of the work under the terms of the contract entered into between the government and Northern Metal, the Court feels compelled to state its position on this question.
We are of the opinion that the government did not retain sufficient control over the actual stuffing process to subject it to the provisions of § 414. The military representatives stationed at Northern Metal were there to see that the contract was being honored and to report damage to the cargo and prevent pilferage.
The general provisions of the contract namely Section I, Section TP-2(c) (1)
and Section GP-3
are not sufficient to make the Northern Metal Company an employee of the United States for purposes of the Federal Tort Claims Act. All of the equipment, tools, chocks, nails and hammers used to secure the vehicles were supplied by Northern Metal, and the actual details of the stuffing process were controlled by Northern Metal. The prime concern of the government was to see to it that the work was performed in accordance with the contract, and the basic details of the work were left to the discretion of Northern Metal. See Fisher v. United States, 441 F.2d 1288 (3rd Cir. 1971) and the cases cited therein.
Any statements of fact or law found in this Court's discussions regarding liability or damages which have not been specifically enumerated in the sections entitled "Findings of Fact" and "Conclusions of Law" respectively, are hereby designated "Supplemental Findings of Fact and Conclusions of Law."
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and the subject matter of this action pursuant to 28 U.S.C. § 1346(b).
2. The United States owed a duty of care to the plaintiff under § 388 of the Restatement of Torts.
3. The United States did not breach its duty of care under § 388 of the Restatement of Torts and therefore was not negligent because there is no evidence that either the sponsor or the United States knew or should have known that the brakes on the vehicle which struck plaintiff were defective.
4. The United States was not negligent per se.
5. Even if the United States did breach a duty to the plaintiff for failing to inspect the vehicle, the failure to do so was not a substantial factor in causing the accident.
6. The United States did not owe plaintiff a duty of care under § 392 of the Restatement of Torts (Second) because the United States was not in the business of supplying POVs to military personnel.
7. The relationship between the United States and Northern Metal was one of independent contractor.
8. The United States did not retain control over the manner in which the work was to be conducted.
9. The United States is not liable to the plaintiff for the injuries he sustained as a result of the accident involved in this case.
10. The third party defendant Northern Metal is not liable to the defendant United States for indemnity or contribution.