Maersk Line Limited
Docket: ASBCA 59791
Decision date: 2000-05-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Maersk Linc Limited ) 
) 
Under Contract Nos. N00033-06-C-3305 ) 
N00033-06-C-3306 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59791. 59792 
Robert E. Korroch. Esq. 
William A. Wozniak. Esq. 
Williams Mullen 
Norfolk, VA 
Craig D. Jensen, Esq. 
Navy Chief Trial Attorney 
Tricia A. Nicewicz, Esq. 
Gordon D. Ivins, Esq. 
Allison M. McDadc. Esq. 
Trial Attorneys 
Military Scalift Command 
Norfolk. VA 
OPINION BY ADMINISTRATIVE JUDGE YOUNGER 
In these consolidated appeals, appellant Maersk Linc Limited (Maersk) seeks 
amortized "hull depreciation costs" that arc said to result from the convenience 
terminations of two dry cargo time charter contracts. Under a time charter, the owner 
is responsible for crewing and maintaining the vessel. while the charterer may employ 
the vessel for specified purposes. Both dry cargo time charters at issue here were 
follow-on contracts. The principal issue is whether we have jurisdiction. with the 
government asserting that Maersk's present claim differs from the claim that it 
submitted to the contracting officer. We dismiss the appeals for lack of jurisdiction. 
FINDINGS OF FACT 
A. The 2001 Contracts 
1. Effective May 22, 2000. the Military Scali ft Command (MSC) awarded 
Contract No.N00033-00-C-3201 to Macrsk for the dry cargo time charter for the M/V 
LTC John U.D. Page (M/V Page) (ASBCA No. 59791 (59791) R4. tab A-1 at 1-2, 
tab A-3 at 13 ). In addition, cff ective May 22. 2000, MSC awarded to Maersk Contract 
No. N00033-00-C-3202 for the dry cargo time charter for the M/V 

SSG Edward A. Carter, Jr. (M/V Carter) (ASBCA No. 59792 (59792), R.4, tab /\-1 
at 1-2, tab A-3 at 13) (the 2001 contracts). Each of the 2001 contracts was for a term 
of up to and not to exceed 1,795 days, and each was for the transportation and 
storage of ammunition in support of the Army's Prepositioning Program (59791 R4, 
tab A-1 at 2, tab C-44 at 354; 59792 R4, tab A-1 at 2, tab C-29 at 313). 
2. Both the M/V Page and the M/V Carter had been container ships (tr. 11 ). 
Maersk acquired the M/V Page in October 2000 for $10,000,000, and the M/V Carter 
in February 2001 for the same price (tr. 47-48; exs. A-3, -4). 
3. It is undisputed that, in the interval between award and delivery of the 
vessels under each of the 200 I contracts. Maersk incurred costs to modify both the 
M/V Page and the M/V Carter to enable both vessels to transport and store 
ammunition (tr. 11, 17). Maersk installed additional equipment on both vessels to 
make them suitable for the transportation and storage of ammunition (tr. 11-12). This 
equipment included specialized cranes, together with air conditioning, dehumidifier 
systems, and sprinkler systems for the cargo holds, as well as tent-like structures 
above the decks called cocoons, which could house additional ammunition containers 
(tr. 11-12; 59791, R4, tab D-66 at 541; 59792, R4, tab D-60 at 545). Maersk 
depreciated the costs to make each vessel suitable to transport and store ammunition 
over the 59 months of the original contract period for each vessel (tr. 18). 
4. Performance of the 2001 M/V Carter contract lasted for its full term and was 
completed on or about May 13, 2005 (59792, R4, tab A-23 at 73). Performance of the 
M/V Page contract, by contrast, was terminated early. and by date of October 27, 
2005, MSC issued unilateral Modification No. P00028. providing for payment to 
Maersk of$2,190,571 in early redelivery costs (59791. R4, tab A-29 at 88). 
8. The 2006 Follow-On Contracts 
5. Following completion of the 2001 contracts, Maersk submitted a proposal to 
MSC by date of November 9, 2005. for follow-on contracts for both the MN Page and 
the MN Carter (59791, R4, tab 8-42 at 142; 59792. R4, tab B-27 at 98). 
Significantly, Maersk stated in its proposals that it did not foresee ··any work 
required ... to 'convert [either] vessel to a more useful military configuration'" (id.). 
We find that neither proposal for the 2006 follow-on contracts included any 
unrecovered depreciation from the 2001 contracts, or other acquisition costs (tr. 21, 26, 
97; 59791 R4, tab 8-43 passim, 59792 R4, tab 8-28 passim). 
6. MSC thereafter awarded the two follow-on contracts at issue here. 
Effective February 1, 2006, MSC awarded Contract No. N00033-06-C-3305 to Maersk 
for the dry cargo time charter of the M/V Page. and, effective December 8. 2005, it 
2 

awarded Contract No. N00033-06-3306 for the dry cargo time charter of the M/V 
Carter (collectively, the 2006 contracts) (59791. R4, tab C-44 at 343; 59792, R4. 
tab C-29 at 300). 
7. The 2006 contracts contained various standard clauses, including Federal 
Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS -­
COMMERCIAL ITEMS (Der 2003) (59791, R4, tab C-44 at 352; 59792, R.4, tab C-29 
at 311 ). Each contract· s Termination for the Convenience of the Government 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, R.4, tab C-29 at 333 ). 
8. The 2006 contracts contained identical Cancellation Fee clauses. which 
provided: 
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 off er to provide them because of the 
contractor's inability to recover its out-of-pocket costs in 
the event the Government docs 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 or terminates 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. re flagging costs 
and modification, or conversion costs, and only to the 
extent such modification. or conversion costs \Vere 
incurred in order for the vessel to meet contract 
requirements. 
(5979 L R4, tab B-43 at 167; 59792, R4, tab C-29 at 326-27) 
3 

9. MSC re.delivered the MN Page to Maersk on June 22, 2010, which was 
before expiration of the contract (59791, R4, tab C-62 at 500-01). MSC also 
redelivered the MN Carter to Maersk early (59792, R4, tab C-57 at 497-98). Maersk 
was unable to put either ship to work after the terminations and they laid idle (tr. 19). 
10. By Modification No. P00020 to the M/V Page contract dated 
September 28, 2011, the parties agreed to a full and complete equitable adjustment 
for the early redelivery of the MN Page "[w]ith the exception of hull depreciation" 
(59791, R4, tab C-64 at 505, 507). The parties agreed that Maersk "reserves the 
right to submit a request for equitable adjustment for unrecovered hull depreciation" 
(id. at 507). In a September 28, 2011 Memorandum to the File attached to the 
modification, the contracting officer and a contract specialist recited that, in 
March 2011, Andrew Rabuse, Maersk's General Manager for Government Ship 
Management, explained that hull depreciation "represents the costs associated with 
converting the vessel for military use by installing cranes, AC/DH systems, cargo hold 
sprinkler systems and other modifications necessary to meet contract requirements" 
(59791, R4, tab C-64 at 510). 
11. By date of September 25, 2013, Maersk submitted a "Request for 
Contracting Officer Final Decision on [Maersk's] Unrecovered Costs Resulting From 
Early Termination of [the 2006 Contracts]" covering both the M/V Carter and the 
MN Page (the claim) (59791, R4, tab D-66 at 523-47). We find that the claim related 
solely to the costs to modify both vessels for the purpose of transporting and storing 
ammunition, and not to vessel acquisition. Maersk sought: 
A contracting officer final decision regarding (i) 
unrecovered costs, resulting from the early termination of 
[the M/V Page 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 MN Carter 
contract], in the amount of $242,500 incurred for the 
modification of the M/V CARTER to comply with 
applicable contract requirements. 
(59791, R4, tab D-66 at 523) Maersk asserted that it had "incurred over $10,000,000 
in modification costs to the MN PAGE after award and prior to vessel delivery" and 
that it "opted to depreciate [those] modification costs ... over the terms of both 
contracts" (59791, R4, tab D-66 at 525). Maersk noted that, in prior negotiations over 
the September 28, 2011 termination modification for the MN Page contract 
(see finding 10), it had "asserted the right to payment of $450,000 for 'Hull 
Depreciation' which consisted of' depreciation of the vessel's conversion costs 
4 

incurred from the first ammo contract of this vessel. including installation of cranes, 
AC/DH systems, cargo hold sprinkler systems, etc. required to perform contract 
requirements" (59791, R4, tab D-66 at 526). Maersk contended that the early 
termination of the contract "resulted in unrecovercd ["IIull Depreciation''] costs for the 
contract periods that were not performed'' (id.). Summarizing, Maersk asserted that 
the claim was for: 
(i) IUlnrecovered costs, resulting from the early 
termination of [ the contract]. in the amount of $480,000 
incurred for the modilication of the M/V PAGE lo comply 
with applicable contract requirements (hcrcinaflcr the 
"Hull Depreciation Costs"), and (ii) unrccovered costs. 
resulting from the early termination of I the contract[, in the 
amount of $242,500 incurred for the modification of the 
M/V CARTER to comply with applicable contract 
requirements. 
Maersk explained that: 
The claim ... with respect to reimbursement of Hull 
Depreciation Costs for the M/V PAGE is equally 
applicable to unrecovcred vessel modification costs for the 
M/V CARTER, as the vessels are similarly situated with 
respect to the incurred modification costs, the depreciation 
schcdule ... 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 "Ilull Depreciation 
Costs" on all but one page of its claim to refer to the costs that it sought (id. at 524-39). 
Mr. Rabuse (see finding 10) certified the claim on behalf of Maersk (id. at 533). 
12. In an email to the contracting officer dated March 24. 20 I 1, Mr. Rabuse 
offered: 
[F]urther clarification to our line item ''I-lull Depreciation" 
as it pertains to the [claim]. Upon review, we may have 
some terminology confusion with the "Hull Depreciation" 
line item. This is the depreciation of the vessels I sic I 
conversion costs incurred from the first [2001 J ammo 
contract of this vessel, including installation of cranes, 
AC/DII systems, Cargo I lold sprinkler systems, etc .. all of 
which arc required for the conduction !sic I of this contract. 
In the effort to offer the government a more balanced price 
5 

proposal, [Maersk] depreciated these conversion costs over 
10 years. 
(59791 R4, tab D-66 at 540-541; 59792 R4, tab D-60 at 544-45; tr. 75-76) 
13. At trial, the contracting officer testified, and we find, that after reviewing the 
claim and contemporaneous documents, her "understanding of hull depreciation was that 
it covered the modification and conversion costs of the Page and the Carter under the 
[2001] contracts" (tr. 80-81). She further testified that "[t]hroughout Maersk's 
correspondence with me, during the claim, [hull depreciation] was always described as 
the modifications, including the cranes, AC/DH, the cargos [sic] hold sprinklers" 
(tr. 86-87). The contracting officer testified that she relied upon Mr. Rabuse's 
explanation to this effect in his March 24, 2011 email in evaluating Maersk's claim 
(tr. 73-79; see finding 12). 
14. By date of July 30, 2014, Maersk supplemented its claim (59791, R4, 
tab D-69 at 554-60; see finding 11 ). Maersk requested that the contracting officer 
decide "that MSC shall reimburse [Maersk] $480,000 in settlement of the Hull 
Depreciation Costs, based on the 'reasonable charges' provision of [the 2006 MN 
Page contract's] T4C clause [see finding 7], as supplemented by the operation of 
the [MN Page] Contract's Cancellation Fee Clause" (see finding 8; 59791 R4, tab 69 
at 555). The contracting officer testified, and we find that, in thus seeking recovery for 
hull depreciation costs, Maersk made no mention of vessel acquisition costs (tr. 80). 
15. By date of October 17, 2014, the contracting officer rendered separate final 
decisions denying Maersk's claim as supplemented (59791, R4, tab E-70 at 562-65; 
59792, R4, tab E-64 at 567-570). We find that, with respect to the M/V Page contract, 
the contracting officer's decision rested on the premise that, in its claim, Maersk 
sought "reimbursement for vessel conversion costs" (59791, R4, tab E-70 at 562). 
With respect to the M/V Carter contract, she used the identical terms (59792, R4, 
tab E-64 at 567). We further find that neither decision purported to address a claim 
based upon reimbursement for vessel acquisition costs. 
16. By date of January 13, 2015, Maersk filed a timely notice of appeal in each 
of these appeals. In its complaint regarding the MN Page in ASBCA No. 59791, 
Maersk sought the Board's de novo review of its "request for compensation for vessel 
conversion costs" (59791 compl. at 1). Maersk alleged: 
Prior to delivering the M/V PAGE in 2001 under a 
preceding contract, [Maersk] incurred over $10,000,000 in 
modification costs .... Under [Maersk's] accounting 
system, under the Contract for Option Year[ s] [ 4 and 5], 
the depreciation for these required modifications is $2,500 
6 

per day ($75.000 per month) based on $ I 0,000,000 in 
conversion costs .... Based on 192 days remaining on the 
Contract, ... the actual .. hull depreciation'' amount reJlects 
the amortized cost of $2,500 per day for 192 days 
($480,000). 
(59791 compl. ilil 22-25) Maersk's complaint regarding the M/V Carter alleged the 
identical rationale of modification costs as the basis for the $242,500 sought under that 
contract (59792 compl. ,, 22-23, 25). By order dated May 26, 2015, we granted the 
parties· joint motion to consolidate both appeals. 
I 7. By date of December 13. 2015, Macrsk filed a first amended complaint in 
ASBCA No. 59791. In contrast to its allegations regarding modification costs in the 
complaint (see finding 16 ). Maersk alleged in the first amended complaint that, 
"[p]rior to delivering the M/V PAGE in 2001 under a preceding contract. [Maerskl 
incurred over $10,000,000 in vessel acquisition costs.'' which it depreciated over ten 
years (compl. ,i 22). Maersk further alleged that, under its accounting system for the 
contract's Option Years 4 and 5. "the hull depreciation was $2.500 per day ... based on 
$10,000.000 in vessel acquisition costs'' (id. ~I 23 ). 
18. In its first amended complaint in ASBCA No. 59792. Maersk made 
substantially identical allegations in Count I regarding entitlement to "unrecovercd 
hull depreciation" costs for the M/V Carter as those regarding the M/V Page 
(compl. ,r,r 33, 35). 
19. By substantially identical letters to the contracting officer dated 
February 17, 2016, Maersk submitted ·'supplement! s] to our previously-submitted 
requests for Contracting Officer's Final Decision! s J" relating to both the M/V Page 
and the M/V Carter contracts ( ex. A-1 at 3, 7; tr. 88, 91-92). In the letter pertaining to 
the MN Page, Maersk stated that its records show that it paid "$10,000.000 for the 
M/V PAGE, depreciated those costs over IO years, and claims $480.000 in charges 
arising from early redelivery and termination'' (ex. A-1 at 7). In this supplement. 
Maersk made no mention of "conversion costs incurred for the first ammo contract of 
this vessel, including installation of cranes, AC/DI I systems. Cargo I Iold sprinkler 
systems" that it had previously told the contracting officer underlay its claim 
(see finding 12). Maersk's letter to the contracting officer of the same date regarding 
the M/V Carter was substantially identical. In the Jetter regarding the M/V Carter, 
Maersk stated that it "paid "$10.000.000 for the I vessel I, depreciated those costs over 
10 years. and the claim for $242,500 pertains to those unrccovcred charges arising 
from early termination" (ex. A-1 at 3). 
20. Following the convenience terminations of both contracts, Maersk sold 
each vessel for scrap. By date of March 19, 2015, Maersk sold the M/V Page for the 
7 

I 
aggregate price of $6,030,129.50 (ex. A-2; tr. 60-65). Macrsk sold the M/V Carter for 
an amount that docs not appear in the record. 
21. At trial. Maersk's chief financial officer for its non-liner side testified that 
hull depreciation "represented the depreciation expense, the. actually, the unrecovcrcd 
depreciation expense for the vessel. itself. the actual acquisition of the vessel. .. It 
wasn't [a] conversion cost" (tr. 21 ). He also testified that Maersk's previous 
characterization of hull depreciation costs as conversion costs (see finding 11) was ··a 
mistake" (tr. 21 ). We do not find these disavowals credible, inasmuch as they 
explicitly contradict Macrsk's certified claim (see finding 11 ). and there is no evidence 
that Maersk told the contracting ot'liccr that its representations had been erroneous 
( e.g., tr. 30-33 ). 
22. The contracting officer testified. and we find, that to decide a claim 
founded on vessel acquisition costs. she would have asked for different supporting 
documents from those that she considered for a claim for modification and conversion 
costs. She testified that she would have looked for "any kind of bill of salc, ... a 
depreciation schedule, and the, any other documents that would support what the value 
of the vessel was, for certain periods of time·· (tr. 98). She testified that none of these 
documents were provided to her before she issued her final decision, and none were in 
the contract file (tr. 98-99). 
DECISION 
In disputing Maersk's claims regarding both the MN Page and the M/V 
Carter, the parties advance multiple arguments on the merits. In our view, however. 
the issue of jurisdiction is dispositivc of both appeals. and we accordingly address it 
below. 
Before trial. we ruled on various motions by both parties. We denied the 
parties' cross-motions for summary judgment. and ruled on three other motions. 
Maersk Line, Limited. ASBCA Nos. 59791, 59792, 16-1 BCA ~[ 36,405. In disposing 
of those motions, we denied MSC's motion to dismiss for lack of jurisdiction, 
concluding, from the record as it then stood, that MSC had failed to demonstrate that 
different operative facts underlay the claim and the first amended complaints. Id. 
at 177,512-13. In addition, we denied both parties' motions for summary judgment. 
We denied MSC's motion in part because there were triable issues regarding the nature 
of the costs. Id. at 177,514. The triable issues revolved around the question of whether 
the costs at issue were for the conversion of the vessels to make them ready for contract 
performance. or were simply for Maersk's initial acquisition of the vessels. We 
characterized the issues regarding the claims as follows: 
8 
I
; 
e 

Maersk tells us that the costs that it seeks to recover arc 
"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. By contrast, MSC 
asserts that the costs constitute "those associated with the 
vessels' modification to comply with the 2001 Contract 
requirements."' I Citations omitted I 
Id. at 177,514. We concluded that the parties' arguments regarding the nature of the 
costs claimed presented a triable issue, precluding summary judgment. Id. We added 
that our understanding of the nature of the costs at issue would be aided by extrinsic 
evidence. Id. 
After trial, MSC chiefly contends that we lack jurisdiction over the present 
claims because Maersk did not present them until after it had appealed the denial of its 
claims for conversion and modification costs to the Board (Respondent's Post-I Icaring 
Brief(resp. br.) at 9-12). In particular, MSC asserts that Macrsk's original claims 
under the 200 I contracts - submitted on September 25, 2013 (finding 11) ···were 
confined to the modification and conversion costs to add cranes, AC/DI I systems, 
cargo hold sprinkler systems, and above deck cocoons, and made no mention of vessel 
acquisition costs. By contrast, MSC argues, ·'Maersk's amended complaint [in these 
appeals] asserted for the first time its claims for the depreciation of vessel acquisition 
costs'' (resp. br. at 11 ). 
In response, Maersk's chief argument is that this issue has been resolved before. 
Maersk insists that "this action for unrecovered depreciation of the costs of acquiring 
the vessels arises from the same operative facts that were relied upon in the claims and 
seeks the same relief' (app. br. at 6). Macrsk also argues that "MSC has not produced 
any facts to cause the Board to reverse its previous holding that 'MSC fails to 
demonstrate a decisive difference between the claim as asserted to the contracting 
officer and the first amended complaints"' (app. br. at 6). 
At trial, we received extrinsic evidence regarding the nature of the costs 
included in Maersk's claims. Now. aided by a fuller record than the one before us on 
the parties' cross-motions for summary judgment, we conclude that the claims 
articulated in Maersk's first amended complaints in these two appeals arc different 
claims from those submitted to the contracting officer. We accordingly lack 
jurisdiction over the present claims .. We reach this conclusion for three principal 
reasons. 
First, it is familiar that we lack jurisdiction to consider new claims not 
presented to the contracting officer. In Lee's Ford Dock, Inc. v. Secretary of1he Army, 
865 F .3d 1361, 1369 (Fed. Cir. 2017). the court of appeals held that: 
9 

The Board may not consider ·'new" claims I that I a 
contractor failed to present to the contracting officer. 
Santa Fe I Engineers, Inc. v. United States'l, 818 F .2d 1856 J 
at 858 [(Fed. Cir. 1987) 1. A claim is new when it 
·'present[ s] a materially different factual or legal theory'' of 
relief. K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 
1000, 1006 (Fed. Cir. 2015). Materially different claims 
"will necessitate a focus on a different or unrelated set of 
operative facts.'' Placeway Constr. Corp. v. United States. 
920 F.2d 903, 907 (Fed. Cir. 1990). 
See also Scott Timber Co. v. United States, 333 F.3d 1358. 1365 (Fed. Cir. 2003) 
(reciting that the same claim before the court or Board must have been considered by 
the contracting officer). In similar circumstances, we have held that we lack 
jurisdiction over claims for which the contracting officer has not had "the opportunity 
to investigate and pass on" in the first instance. Bay Decking Co., ASBCA No. 33868. 
89-2 BCA, 21,834 at 109,848, accord The .Jonathan Corp., ASBCA No. 47059, 95-1 
BCA, 27,390 at 136,537 (holding no jurisdiction over breach claim alleged in 
complaint for first time); L. T.D. Builders. ASBCA No. 28005. 83-2 BCA ~J 16,685 
(holding no jurisdiction over claims first raised in complaint): Modular Devices, Inc., 
ASBCA No. 24198, 82-1 BCA ii 15.536 (same). 
Second, Maersk's initial claims undeniably related to modification and conversion 
costs for the two vessels. The record reflects that. during contract performance. 
Mr. Rabuse, Maersk's General Manager for Government Ship Management, 
authoritatively explained that "Hull Depreciation" costs were ''the costs associated with 
converting the vessel for military use by installing cranes. AC/DH systems. cargo hold 
sprinkler systems and other modifications necessary to meet contract requirements'· 
(finding 10). On March 24. 2011, Mr. Rabuse repeated his clarification or··1Jull 
Depreciation" as capturing conversion costs (finding 12). 
Mr. Rabuse's clarifications arc consistent with terms of the claim itself'. We 
have found that the September 25, 2013 claim, as supplemented by date of July 30. 
2014, related solely to modification costs, not to vessel acquisition costs ( findings 11. 
14). To that end, Macrsk told the contracting officer that it wanted a decision for 
"$480,000 incurred for the modification of the M/V P AGE ... and $242.500 incurred for 
the modification of the M/V CARTER" (finding 11 ). As we have found. Macrsk did 
not present these costs as relating to vessel acquisition ( findings 11- I 5). 
10 
I 

I 
The contracting officer's testimony similarly leaves no doubt that she 
understood that the claim related to conversion costs, not vessel acquisition costs.* She 
testified that, in evaluating the claim, she concluded that the nature of the costs 
grouped under the rubric of "hull depreciation," - the only cost category excepted from 
Modification No. P00020 (finding 10) - represented conversion costs chiefly because 
of Mr. Rabuse's March 24, 2011 email to the contracting officer stating that ''[h]ull 
[ d]epreciation" costs represented "the depreciation of the vessels [sic] conversion costs 
incurred from the first [2001] ammo contract of this vessel, including installation of 
cranes, AC/DH systems, Cargo Hold sprinkler systems, etc." (finding 12). 
The contracting officer's testimony regarding her understanding of the claim is 
mirrored in her decision. She stated in her decision that, for the two vessels involved, 
Maersk sought "reimbursement for vessel conversion costs" (finding 15). As we have 
found, she did not purport to address a claim in either decision based upon 
reimbursement for vessel acquisition costs (id.). 
Third, the claims in their present iterations are undeniably predicated upon the 
acquisition costs for the two vessels. Maersk said explicitly in its allegations in the 
first amended complaints that it is entitled to hull depreciation costs "based on 
$10,000,000 in vessel acquisition costs" (findings 17-18). Maersk echoed that basis 
for its claim in its February 17, 2016 supplemental requests for contracting officer's 
final decisions regarding each contract. Maersk asserted in one that its records show 
that it "paid $10,000,000 for the MN PAGE, depreciated those costs over 10 years, 
and claims $480,000 in charges arising from early redelivery and termination" (finding 
19). In the other letter, Maersk stated that it "paid $10,000,000 for the [ vessel], 
depreciated those costs over 10 years, and the claim for $242,500 pertains to those 
unrecovered charges arising from early termination" (id.). Maersk's current litigating 
position is consistent with recast claims. Thus, Maersk now tells us that "this action 
[is] for unrecovered depreciation of the costs of acquiring the vessels" (appellant's 
post-heating brief at 6). 
While Maersk has recast its claims as predicated upon acquisition cost, it is 
evident that it has abandoned its original claims predicated upon conversion and 
modification costs. However, no claims based on acquisition costs were ever 
submitted to the contracting officer (findings 11-15). In consequence, we lack 
* The test of whether a claim is "new" is an objective one; thus, to some extent the 
contracting officer's subjective view is immaterial. Nevertheless, the 
contracting officer may, as she did here, shed light upon the different factual 
predicates differentiating the old and new claims. 
11 

jurisdiction over the claims based on acquisition costs. We accordingly dismiss both 
ASBCA No. 59791 and ASBCA No. 59792 for lack of jurisdiction. 
In view of our disposition of the appeals on jurisdictional grounds, we do not 
address the parties' other arguments on the merits. 
CONCLUSION 
ASBCA No. 59791 and AST3CA No. 59792 arc each dismissed for lack of 
jurisdiction. 
Dated: April 9.2019 
I concur 
=1cvt 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
ALEXANDER~~~ lLL _____ _ 
Administrative Judge V 
Armed Services Board 
of Contract Appeals 
~ J. -Ri·:1~n~Y------------------
Administrative Judge 
Vice Chairman 
Armed Services Board 
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. 5979L 59792. Appeals of 
Maersk Line Limited, rendered in conformance with the Board's Charter. 
Dated: 
12 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals