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92 C. Cls.
Reporter's Statement of the Case
for so long, that it probably could not be operated satisfactorily in any case. As can be seen from the preceding paragraph, you are being protected against charges for liquidated damages due to delay caused by government insistence on adjustment by navigable pass wickets.
19. The proper operation of the dam required that the excess water from the upper pool be first sent through one of the bear traps. If sufficient water was not thereby discharged, then an additional bear trap was to be opened. Plaintiff knew that in controlling the pool levels the bear traps would be operated before any wickets on the dam would be thrown. If the water discharged by both of the bear traps was insufficient to control the upper pool then as many wickets in the navigable pass on the dam proper as were necessary were to be lowered.
Prior to construction of the tripping bar weir the wickets in the navigable pass nearest Bear Trap No. 1 were lowered from a maneuver, or derrick, boat. In order to prevent the boat from being swept downstream the wickets nearest the bear traps were first lowered. This gave the boat shelter in the lee of standing wickets and permitted the boat, when lowering the wickets, to progress from the southernmost point to each tripped wicket and back without passing across an open current. If the southerly wickets nearest the navigation locks had first been thrown, the maneuver boat could not have returned to its station at the lock wall without raising the wickets, and throwing the wickets at the lock wall would have created a stronger current nearer the lock and thus have interfered with the navigation of boats passing through the locks. However, the lockmaster usually did not lower the twelve wickets nearest the bear traps. The pools between dams on the Ohio River had to be kept at certain stages for the purpose of navigation. To accomplish this and to prevent damages to the dams, it was necessary to manipulate the traps and raise and lower the wickets. During plaintiff's work these acts at times necessarily interfered with its operations. However, the lockmaster at Dam 29, as well as those at dams above that point, cooperated with plaintiff in every way they could during the performance of its work.
Opinion of the Court
20. On no day on which wickets in the navigable pass were lowered, prior to December 25, 1932 (when plaintiff's cofferdam was overtopped by the river, causing a cessation of work), were there fewer than 25 wickets lowered, and, therefore, the Chanoine weir, if it could have been operated, could not have discharged sufficient water to have prevented lowering navigable pass wickets. It was necessary for defendant to operate the bear traps in the manner in which it did prior to the overtopping of the cofferdam. From the date of the overtopping of the cofferdam until the completion of the work, the Chanoine weir could not have discharged sufficient water to control the pool above Dam 29 at its proper elevation on any day during which the wickets of the pass were thrown.
21. The total area of the navigable pass was 10,780 square feet, less 1,971.2 feet within the cofferdam, leaving an available area in the navigable pass of 8,808.8 square feet. Bear Traps Nos. 1 and 2 had an area of 1,365 square feet each and the Chanoine weir had an area of 1,364 square feet, making a total available flowing area of 12,902.8 square feet.
Plaintiff completed its work on July 26, 1933, having had 75 fair working days. The contracting officer found that there were 13 days during which plaintiff's floating plant was hampered, due to the bear traps being open and a material number of wickets in the navigable pass being down at the same time. Defendant allowed plaintiff 150 days on account of high water and 17 days after high water in accordance with paragraph 5 (b) of the general specifications.
The court decided that the plaintiff was not entitled to
LITTLETON, Judge, delivered the opinion of the court:
From a study of the contract, specifications and drawings, and all the evidence submitted in the case, we are of opinion that plaintiff is not entitled to recover on any of the six claims, totaling $40,234.87, for the reasons hereinafter stated under each of the claims asserted.
The first claim of $308.46 is for certain concrete excavation, alleged to have been done by channeling, at the unit price of $1 a square foot. This claim grows out of the
Opinion of the Court
provisions of the specifications which call for certain excavations to be made by plaintiff in the existing concrete structure of Dam 29 for the purpose of installing thereon the tripping bar weir and certain equipment and machinery necessary for the operation of such weir. The contract provided two units of work to be performed in this connection. The first was contract item #3, "concrete excavation," estimated at 70 cubic yards, and the unit price therefor was $8 a cubic yard; the second was contract item #4, "concrete channeling," estimated at 525 square feet at $1 a square foot. Contract drawing 82/21 indicated where the concrete was to be removed. At certain designated points this drawing stated: "Channel & remove all concrete"; at other designated points where concrete excavation was called for the drawing stated: "Remove old concrete and air lines from pipe trench" and "openings to be cut in pier to receive machinery."
92 C. Cls.
Pars. 2-01 to 2-04, of Sec. II of the specifications with reference to concrete excavation provided as follows:
2-01. Concrete excavation.-All concrete removed for keys and for the placing of pipe and machinery shall be classed as concrete excavation. No blasting will be permitted. Great care shall be taken to prevent any injury to adjacent concrete.
2-02. Measurement.-Measurements for concrete excavation will be made for the actual quantity in cubic yards excavated as shown on the drawings, or such modification as directed by the contracting officer. The prices bid for excavation will also cover the disposal of the excavated material. Waste material shall be deposited in the river within 1 mile of the work as directed by the contracting officer.
2-03. Channeling.-Wherever indicated on the drawings, the vertical face of concrete excavation shall be made by channeling machine or suitable drilling or broaching outfits. The concrete shall be removed without disturbing the adjoining concrete and will be paid for as concrete excavation. In case of the upstream key great care shall be taken in removing the concrete adjacent to the anchor beams and rods. The work of channeling will be paid for by the square foot of vertical area cut at the price bid for channeling.
Opinion of the Court
2-04. Foundation.-The character and position of the proposed foundation is shown on drawing Ò. R. 29–82/21. All concrete surfaces for foundation must be freed from loose pieces, thoroughly cleaned and worked down to a firm, solid bed of suitable form satisfactory to the contracting officer.
Plaintiff contends that it channeled 980.46 square feet of concrete for which it should have been paid at the rate of $1 a square foot under contract item #4, or $308.46 in excess of the amount paid by defendant on that basis. The record shows that the contracting officer paid plaintiff at the rate of $1 a square foot for 672 square feet of concrete excavation where channeling was indicated on the drawings, and where channeling was done. The balance of the concrete excavation shown on the drawings was held not to have been removed by channeling and was paid for under contract item #3 at the rate of $8 a cubic yard. The contracting officer found as a fact that plaintiff had channeled 672 square feet of concrete and made payment accordingly. Art. 15 of the contract provided that the decision of the contracting officer on all disputes concerning questions of fact should be final and conclusive as to such questions of fact, subject to appeal within thirty days to the head of the department. No appeal was taken from the decision of the contracting officer and the record does not establish that his decision was erroneous.
The second claim of $310.77 represents expenses incurred by plaintiff for grouting a drain at the base of Dam 29 which had been constructed many years before by another contractor. As shown by the findings, it was necessary for plaintiff to close this drain to prevent the leakage of water into the cofferdam in order that the water might be pumped from this cofferdam. The existence of the drain at the base of the concrete structure of the existing Dam 29 was shown on the drawings of plaintiff's contract. There was no misrepresentation by defendant in that regard, nor was there any concealment of facts. The defendant gave plaintiff all the information it had as to location of the drain, and the defendant did not have any information and did not know whether such drain had been closed or left open by the prior contractor who had constructed the main dam. The defendant made no representation to plaintiff as to whether the
92 C. Cls.
Opinion of the Court
drain was open or closed. In these circumstances the defendant cannot be held responsible for plaintiff's expense of closing this drain in order that it might successfully unwater its cofferdam. Blakeslee & Sons, Inc., et al. v. United States, 89 C. Cls. 226, 250, 251; certiorari denied, 309 U. S. 659.
The third claim is for $942.23. Plaintiff contends that this amount represents the increased cost of constructing its cofferdam over what it would have cost if constructed as originally intended, and that such increased cost resulted from refusal of the defendant to open the bear traps and drop all wickets on Dam 29 to lower the water level of the upper pool. We find nothing in the contract or specifications which justified the plaintiff in thinking, when making its bid, that the defendant would lower the upper pool level until plaintiff had completed the construction and placing of its cofferdam. Par. 16 of the specifications provided that plaintiff should not interfere with material, appliances, or workmen of the United States and that it should not obstruct the lock, bear traps, or dam other than that part of the dam in which the work was being carried on, or interfere with their proper manipulation. Par. 18 provided that "The contractor will be required to dispose his plant and to conduct the work in such manner as to obstruct navigation as little as possible. The work as a whole shall be so conducted as to permit navigation to pass the site at all times." The opening of the bear traps and the lowering of the wickets would have interfered with the control of the pool above the dam and would also have interfered with navigation through the locks or over the dam. In these circumstances it is clear that the defendant did not violate the contract when it declined plaintiff's request that the dam be opened and the upper pool lowered until construction of the cofferdam was completed.
Claims 4 and 6 are related and will be considered together. They are for damages in the amounts of $1,270.11 and $36,926.82, respectively, for alleged unreasonable interference by the defendant with prosecution of the work and delays alleged to have been caused by the defendant in the performance thereof. The record does not sustain these claims. These claims arise out of the construction and maintenance of the cofferdam, and are based upon the con