Reporter's Statement of the Case It is deemed necessary that adequate steps be taken to insure that no scour will occur to the upper arm of the main cofferdam when the bear traps are lowered. The scouring effect is thought to be so serious that the failure of the upper arm is likely. Should a failure occur after unwatering and removal of the original wickets, the whole coffer is liable to wash out. Such a condition might cause the loss of the upper pool, loss to navigation interests, and grave loss to your firm. In view of the above, consideration will be given to any plans you may submit for the replacement of the crib, either as originally built, or one of the same general size, placed parallel to the upper arm of the main coffer. In any case, adequate steps must be taken to insure against the loss of the upper pool. In order to maintain the rebuilt crib, plaintiff placed it parallel with the upper wall of the cofferdam and secured it with wire cable to Crib No. 2 in order to hold it in place against the current until the conclusion of the contract work. Plaintiff seeks judgment for $476.48 as the cost of rebuilding said crib. Plaintiff did not further protest the contracting officer's order that it rebuild the crib and took no appeal from the requirement of the contracting officer until in 1935 after final payment. CLAIM NO. 6-DELAYS 16. The invitations to bidders for the construction of the tripping bar weir were issued by defendant October 12, 1932. For several years prior thereto, plaintiff's president had been familiar with dam construction in the Ohio River; however, before making his bid he consulted a publication entitled "The Ohio River," which was compiled under the direction of the Chief of Engineers, United States Army. He observed therein, under the title of "Movable Dams," the following: Each movable dam includes a lock, navigable pass, weirs, and an abutment. Lock. The available size of lock chamber is practically uniform throughout the entire series of dams, with the length of 600 feet and a width of 110 feet. The lock chamber is inclosed at both ends with gates Reporter's Statement of the Case 92 C. Cls. which may be of either the rolling or swinging type; the difference between the levels of the upper and lower pool is overcome by admitting water to, or discharging water from, the closed lock chamber. Navigable pass.-The width of navigable pass varies at different locks between limits of 600 and 1,248 feet, as shown in the tabular statement following this description. The function of the pass is to provide a channel for open-river navigation, when the use of the dam is not required, and the wickets are down, and also to form a part of the dam by the raising of the wickets with which the pass is provided. Each wicket is 3.75 feet in width and from 15 to 18 feet in length (varying at different dams); the wickets are so arranged that there is an open space of 3 inches between adjoining wickets, these open spaces being closed when necessary by small square timbers called "needles." The wicket proper is in reality a heavy timber shutter pivoted to a linklike frame called a "horse," which, in turn, is pivoted to the foundation of the pass. Attached to the "horse" is a long heavy forging called the "prop," the lower end of which rests in a groove formed of cast iron and provided with a shoulder or step. When not in use the wicket lies flat on the pass foundation at such depth below low water as to offer no obstruction to free navigation through the pass. When the wickets are to be raised for the purpose of closing the navigable pass, they are grappled for and raised one at a time by means of devices on a derrick, or, as termed, a maneuver boat. As the wicket is pulled upward and forward (i. e., upstream) the prop attached to the horse follows in its cast-iron groove until its lower end drops into place against the shoulder or step already alluded to; the prop being set in place the wicket is tipped down from a nearly horizontal to a vertical position (less 20°) with its lower edge resting against the sill of the pass and its middle braced in position by the prop. The reverse of this operation constitutes the lowering of the wicket-that is, the wicket is first pulled slightly upstream, which has the effect of disengaging the prop from its step; once out of its step the prop slides downstream in its cast-iron groove and permits the wicket to fall, and, in falling, to assume a horizontal position on top of the pass foundation. Bear traps and Chanoine weirs.-The function of the bear traps and other weirs is to regulate the pool levels within certain limits without having to resort to the 5 Reporter's Statement of the Case lowering of the wickets in the navigable pass. The bear-trap weirs are structures of iron, steel, and wood, in two leaves, hinged at their outer ends. The lower leaf of each bar trap is a hollow structure like a pontoon, into which the air may be forced to increase its buoyancy by displacing the water. By the united effect of this buoyancy and the pressure due to hydraulic head caused by raising the wickets in the navigable pass, the lower leaf rises into position, carrying on its upper surface one edge of the upper leaf; when the bear trap is up it forms an A-like structure which was supposed to bear some resemblance to the deadfall used in trapping bears, hence the name "bear trap." The bear traps are usually two in number and are operated quickly and independently of each other to form a waste weir, so that the flow of water over the crest of the dam may be regulated with great nicety. Besides the bear-trap weirs, most of the Ohio River dams have a section of Chanoine weir, which is merely a repetition of the navigable pass, with its sill placed at a higher level and having in consequence its wickets of shorter length; the Chanoine weir is usually provided with a service bridge from which the wickets are raised and lowered. The Chanoine weir may be used like the bear traps to regulate the pool levels, but it is not essential to the operation of a dam. Plaintiff seeks judgment under this claim for expenses of $36,926.82, as damages through delays claimed by it to have been caused by the defendant in violation of the contract. The claim is itemized in plaintiff's exhibits 63 and 65, which, by reference, are made a part hereof. 17. The invitations for bids contained the following: Investigation of conditions.-The plans referred to in paragraph 3 of the specifications are believed to represent the physical conditions existing at the site of the work. It is expected, however, that bidders will visit the site and acquaint themselves with all available information concerning the character of materials to be removed and the local conditions having a bearing on the transportation, handling, and storing of materials. Failure to acquaint himself with all available information concerning these conditions will not relieve the successful bidder of assuming all responsibility for improperly estimating the difficulties entering into and costs of successfully performing the complete work as required. Reporter's Statement of the Case 92 C. Cls. Plaintiff's president visited the site prior to October 18, 1932, at a time when the pool was full, and inspected the physical conditions and viewed the dam from the lockhouse near the south shore. He saw and talked with the lockmaster, who had been employed there for several years. He observed that the dam included the navigable pass, the bear traps, and, so far as he could see across the river, that the Chanoine weir appeared to be in working order. However, he could observe that there was no trestle on the opposite shore, from which a Chanoine weir is customarily operated. He did not inquire of the lockmaster or any other employee at Dam 29, nor did he inquire of the Government engineer or the contracting officer whether the Chanoine weir was in operation or was capable of being operated. However, had he asked the lockman, the Government engineer, or the contracting officer, he would have been told what was common knowledge in the Huntington and Cincinnati district-that the Chanoine weir could not be operated, and that if the Chanoine weir had been capable of being properly operated there would have been no need for the construction of the tripping bar weir. The War Department never issued or published a regulation to the effect that the Chanoine weir should be abandoned. 18. The site of the tripping bar weir called for by plaintiff's contract was at the far end of the 700-foot navigable pass from the lock, extending to the bear traps; the 84-foot navigable pass from the bear-trap pier toward the Kentucky shore was to be converted into the tripping bar weir. Plaintiff located its storage facilities on the Kentucky shore near its railroad transportation facilities. In order for plaintiff to move its working fleet from the Kentucky shore out to the site of the work it was necessary that no substantial number of wickets in the dam proper be lowered or the current would sweep the fleet over the dam. In order for plaintiff to secure and place the first section of its cofferdam it was necessary that Bear Trap No. 1 be closed in order to avoid a strong current. Bear traps are used to regulate the upper pool and, when operated, cause a surge of the current into the pool below. If only the Chanoine weir (had it been workable) and the second bear trap farthest away from plaintiff's 5 Reporter's Statement of the Case work at Bear Trap Pier No. 1 had been operated, the main current would then have been diverted farther toward the Ohio shore. But the necessary and proper regulation of the pool above the dam could not have been had by the operation of the Chanoine weir and Bear Trap No. 2. On January 21, 1933, the contracting officer wrote plaintiff in part as follows: The condition resulting from the operation of the bear traps alone will in no case be considered an interference with your work. However, it sometimes happens that some of the pass wickets have to be lowered in order properly to regulate the pool for navigation. This condition may occur at or below the stage at which you would normally be required to resume operations after a rise, or to continue operations on the approach of a rise (two feet below top of cofferdam, Par. 5 (b) of specifications). When the bear traps are down on one side of the cofferdam and pass wickets are down on the other side currents are created which make it unsafe to approach the cofferdam with your plant or to work there within safety. This office will, therefore, regard as an interference by an act of the government, within the meaning of Art. 9 of the contract, any lowering of any material number of pass wickets. Of course, this ruling will not apply when enough of the pass wickets are down to cause open-river conditions, or so few are down that the movements of floating plant to and from the cofferdam are still safe. As previously explained to you, in the absence of evidence to the contrary from you, the seven day extension of time due to flooding the cofferdam (par. 5 (b) of specifications) will run concurrently with delays caused by act of the government in lowering wickets. In such cases the extension under paragraph 5 (b) will apply for the first seven days. Thereafter, a finding of fact will be made twice a month as to the length of time during which you have been prevented from working by an act of the government. This office has also received your letter of January 20, 1933, asking that the lockmaster at Lock 29 regulate Pool 29 by lowering the Ohio shore weir instead of using wickets of the navigable pass. Long experience has made it evident that it is not safe to try to raise and lower wickets of the north shore weir with the traps down, as they necessarily normally are, when wickets must be lowered. The weir has not been used |