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92 C. Cls.

Reporter's Statement of the Case

Same; construction of cofferdam; interference.-Where plaintiff claims that increased costs incurred in construction of cofferdam resulted from refusal of the Government to open certain bear traps and drop wickets to lower the water level, it is held that nothing in the contract or specifications justified plaintiff's presumption that such action would be taken by the Government, and that 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.

Same. Where plaintiff claims that in the construction and maintenance of a cofferdam interference with the work was caused, first, by the fact that a "Chanoine weir" was not in operating condition and, second, that the defendant operated bear traps and wickets of the dam in such a way as to cause plaintiff largely increased and unnecessary expenses; and where the invitation for bids required plaintiff to visit the site and acquaint itself with all available information concerning material to be removed and local conditions as to transportation, handling, and storing of material, and where representatives of plaintiff did visit the site and had the opportunity to observe said conditions, it is held that the defendant is not liable for such increased expenses resulting from said interference. Same. Where extra expense was incurred in rebuilding crib washed

out by the current when bear trap was opened in the usual way, in order to regulate the pool above the dam, and where the contract and specifications clearly contemplated the manipulation of the bear traps and wickets, as indicated, it is held that the plaintiff was under the contract responsible for the adequacy of its cofferdam and is not entitled to recover.

The Reporter's statement of the case:

Mr. William D. Harris for the plaintiff. Palmer, Stellwagen & Neale were on the brief.

Mr. William A. Stern, with whom was The Assistant Attorney General, for the defendant.

Plaintiff seeks to recover $40,234.87 on six claims growing out of a contract with the Corps of Engineers of the Army for the construction of a tripping bar weir on movable Dam 29 across the Ohio River near Ashland, Kentucky.

The court, having made the foregoing introductory statement, entered special findings of fact as follows:

1. Plaintiff is a Delaware corporation with principal place of business at Pittsburgh, Pennsylvania. By a unit-price con


Reporter's Statement of the Case

tract dated November 1, signed by plaintiff and executed by the defendant November 11, 1932, plaintiff agreed, in accordance with the provisions of such contract and the drawings and specifications constituting a part thereof, to furnish all labor and materials and to perform all work required for constructing an 84-foot tripping bar weir on Dam 29 on the Ohio River near Ashland, Kentucky, including all masonry, wickets, pipes, machinery, and metal work indicated on the drawings and called for by the specifications; to remove old wickets, horses, horse boxes, props, etc.; and to perform such incidental work as should be needed or ordered in writing by the contracting officer. In consideration for the work called for and agreed to be performed, plaintiff was to be paid the unit prices stated in the schedule, sheet 1-A, page 2A, of the contract, estimated at $44,800.94, for the 19 separate units of work therein specified. The contract and specifications are in evidence as plaintiff's exhibit 5 and are made a part of this finding by reference. Drawings 91/2 and 82/21, pertinent to the claims here involved, are in evidence as a part of plaintiff's exhibit 1, and are made a part hereof by reference.

2. The lock and dam upon which the plaintiff was to construct the tripping bar weir consisted of a lock chamber located on the Kentucky or southern bank of the Ohio River; extending from the lock chamber for a distance of approximately 700 feet was the dam proper, known as the navigable pass; the navigable pass lay between the lock wall and the first of three piers supporting two bear traps, which bear traps may be designated as Bear Trap No. 1 and Bear Trap No. 2, No. 1 being the southerly trap and No. 2 being the northerly trap; and between trap No. 2 and the Ohio shore abutment there was and still is a weir, which is designated in the testimony as a "Chanoine weir," approximately 84 feet wide, consisting of 21 wickets.

The work which plaintiff was to perform under its contract consisted of the construction and installation of a tripping bar weir on the existing concrete dam structure in the navigable pass for a distance of 84 feet toward the center of the river from Bear Trap No. 1 located near the north or Ohio shore. The purpose of the tripping bar weir was

92 C. Cls.

Reporter's Statement of the Case

to permit a number of wickets in the dam to be "tripped down" mechanically in a single operation, and similarly raised, so as to permit regulation of the height of the pool above Dam No. 29. The other existing wickets in the navigable pass were to remain and be operated by a derrick boat. The original purpose of the Chanoine weir was to permit mechanical tripping and raising of the wickets, but many years ago the United States had concluded that the use of the Chanoine weir was impracticable, and consequently the War Department had left the wickets standing and had permitted the weir to become clogged with silt, rocks, and other river material. The trestle from the Ohio shore, which was necessary, and which was originally constructed for the operation of the Chanoine weir, had been torn down and removed many years ago. For several years prior to the invitation for bids for the contract in suit, the Chanoine weir was to all intents and purposes a fixed dam. The fact that Chanoine weirs on the Ohio River between Dams Nos. 11 and 39 had not been operated for many years was known generally to Ohio rivermen.

3. The construction and installation of the tripping bar weir covered by plaintiff's contract necessitated the building of a box cofferdam, or some other suitable type of cofferdam, one side of which would consist of the southern pier of Bear Trap No. 1, and the other three sides would consist of structures to be built by plaintiff. These arms of the cofferdam were to be banked with sand and gravel and reinforced by cribs filled with rock.

4. Plaintiff's president, who was familiar with the Ohio River, the locks and dams thereon, and their operation, went to Dam 29, the site of the work, and made an inspection. After such inspection of the site of the work, plaintiff submitted its bid on October 18, 1932, and was notified on that date that it was the only bidder, and that acceptance of its bid would be recommended. On October 22 plaintiff prepared and delivered to the contracting officer a blueprint showing the cofferdam and cribs and the details thereof which it proposed to construct and install below, across, and above the dam, adjacent to and south of Bear Trap Pier No. 1. This was nine days before the date of the contract


Reporter's Statement of the Case

and 19 days before the contract was signed by defendant on November 11, 1932. The defendant's contract drawing which plaintiff had seen and examined showed the location and general outlines of the suggested cofferdam. On October 26 the contracting officer wrote plaintiff as follows:

Referring to your letter of October 22, 1932, your blueprint #206-1 showing the plan of cofferdam you propose to install for the construction of tripping bar weir at Dam No. 29, Ohio River, is returned herewith. The plan is approved subject to changes indicated in red on the blueprint and subject to the condition in Par. 1-02 of the specifications, which provides that approval "will not relieve the contractor of the responsibility for the adequacy of the cofferdam."

On November 2, 1932, plaintiff received copies of the proposed contract and bond, with directions for their execution. On November 5 plaintiff received permission to proceed with the work at its own risk, pending approval of bond. Plaintiff, without saying anything to defendant about whether the navigable pool above Dam 29 could or would be permitted to be lowered by opening the bear traps and lowering all the wickets during the construction and installation of the cofferdam, estimated that the cofferdam would be completed by November 25, that excavation on the existing dam would be completed by December 4, and that the balance of the work, except the removal of the cofferdam, would be completed by December 24, 1932. Plaintiff's fleet arrived at the work on November 7, 1932. Plaintiff knew when it took the contract that between that date and late spring following it would be working on "borrowed time," that is, that the work was likely to be interfered with by high water. Paragraphs 5, 6, and 8 of the specifications provided as follows:

5. (a) The contractor will be required to commence work under the contract within ten calendar days after the date of receipt by him of notice to proceed, to prosecute the said work with faithfulness and energy, and to complete it within seventy-five calendar days after said date of receipt of notice to proceed.

(b) Should the work be interrupted by a rise overtopping the cofferdam (paragraph 8), the time for com

92 C. Cls.

Reporter's Statement of the Case

pletion of the work, as hereinbefore specified, will be extended for a period equal to the time lost due to the interruption, provided the time so lost after a rise shall not exceed one week after the river shall have fallen to an elevation two feet below the top of the cofferdam. This extension of time will be made only during the period allowed for completion of the work under subparagraph (a) above, and will not be made during any additional time that may be allowed under Article 5 of the contract.

6. No work shall be done on Sundays or on days declared by Congress as holidays for per diem employees for the United States except in cases of emergency, and then only with the written consent of the contracting officer; nor shall any work be done at night unless authorized in writing by the contracting officer.

8. (a) In the event that work remains to be done and is actually in progress within the cofferdam constructed to El. 501.5, as specified under section I, and a rise in the Ohio River overtops the cofferdam, an allowance of $750.00 will, subject to the following, be made to the contractor upon full resumption of work within the cofferdam; only one allowance will be made for any one rise; allowances for natural flooding of the cofferdam will be made only during the period allowed for completion of the work under paragraph 5 of these specifications, and it will not be made during any additional time that may be allowed under Article 5 of the contract.


(b) No allowance will be made in case the cofferdam is flooded through failure of the cofferdam, or through failure of the contractor to keep it pumped In case the contractor floods the cofferdam during a rise prior to natural flooding due to overtopping the cofferdam, the flooding will be considered as grounds for the allowance, provided the rise actually overtops the cofferdam when built to the full height specified in paragraph 1-01.

Plaintiff was given notice to proceed by letter from the contracting officer of November 12 which plaintiff received on November 14, 1932. Plaintiff estimated it would require 45 fair, actual working days to complete the work, and a record was kept of conditions occurring each day permitting work to be done, or delays, and the cause thereof.

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