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Reporter's Statement of the Case and decide for themselves as to its character and to make their bids accordingly, as the United States does

not guarantee the accuracy of this description; also that the price bid per cubic yard for dredging should cover the cost of removal and disposition of all material encountered except ledge rock, the removal of ledge rock not being required.

The prescribed method of measurement for pay purposes was to measure the cubic yards in place shortly before and after dredging by soundings or sweepings, and then take the difference as the amount dredged.

The specifications also provided that the plant should be of sufficient size to meet the requirements of the work, subject to the approval of the contracting officer.

The contracting officer for the United States was D. McCoach, Jr., major, Corps of Engineers, U. S. Army.

A copy of the contract and specifications is filed in evidence and made part hereof by reference.

3. The channel to be dredged began in the Maumee River in the city of Toledo at the Fassett Street Bridge and extended some 15 miles therefrom through Maumee Bay out into Lake Erie. The projected improvement of the channel contemplated a width of 400 feet throughout its length with a depth of 21 feet below the datum of 570.8 feet above mean tide, New York Harbor.

The plaintiff made no investigation at the site of the character of the material to be removed, before signing the contract, and assumed that the work consisted entirely of redredging, that is, that the material to be removed consisted solely of matter deposited by the Maumee River and of shoals, all accumulated subsequent to previous dredging.

Such deposits and shoalings were of silt and sand and did not include clay.

4. The specifications were the composite work of officers or employees of the defendant, under the direction of the contracting officer who was located at Detroit, Michigan, whence Toledo Harbor was then being administered after an official transfer from Cleveland, Ohio, to Detroit. The statement therein that "the channel was improved to 21 feet depth and 400 feet width in 1913–1915" was based on

94 C. Cls.

Reporter's Statement of the Case

an annual report of the Chief of Engineers, U. S. Army, to that effect. The contracting officer adopted this statement in good faith and did not question the accuracy of the report. The charts showing the soundings made after the improvement in 1913–1915 were not available to the contracting officer in his office at Detroit when the specifications were prepared and had never been forwarded to Detroit from Cleveland, where they had originated when Toledo Harbor was under the supervision of the Cleveland Office, nor were these charts made available to bidders.

A part of the channel had never in fact been improved to a full width of 400 feet and depth of 21 feet, based on the reference plane of 570.8 mean tide, New York Harbor.

The improvement of 1913–1915 had been done under a contract which required lowering of the channel so as to secure a depth of 23 feet below 572.8 feet above mean tide at New York. The depth of 23 feet below the datum of 572.8 feet was identical with the depth of 21 feet below the datum or reference plane of 570.8 feet. No dredging had in fact been done under the 1913–1915 improvement contract over a portion of the channel from Fassett Street Bridge to a point beyond the New York Central Railroad Bridge, and the charts, referred to in this finding, made after dredging, indicated a depth of less than 23 feet below the datum of 572.8 feet (equivalent to 21 feet below the datum of 570.8 feet) in this unimproved portion.

This unimproved portion extended about 1,800 feet in distance from the Fassett Street Bridge to a point downstream some 600 feet beyond the New York Central Railroad Bridge, along the easterly or right-hand side of the channel, facing downstream. Otherwise the channel had been, in 1913–1915 or thereafter, before plaintiff began its contract work, improved substantially to a width of 400 feet and depth of 21 feet below the reference of 570.8 feet.

The strip extending about 1,800 feet along the easterly bank of the river downstream from Fassett Street Bridge, above the 21-foot depth and within the 400-foot width, shortly before it was removed under the contract in suit, consisted of 13,171 cubic yards, which have been paid for

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Reporter's Statement of the Case by defendant to plaintiff at the rate of 29.4 cents per cubic yard.

These cubical contents included both virgin material, that is original hard river bottom, and overlying material deposited thereon by the river, soft and easily dredged. The ratio of one to the other is not disclosed by the proof.

5. The virgin material encountered in the neighborhood of the Fassett Street and New York Central Railroad bridges consisted in the main of a stiff, sticky clay. This sort of material had not been anticipated by the plaintiff and it had not put upon the work equipment adequate to cope with it. The plaintiff's plant on the job was adapted to redredging only.

Plaintiff received a telegram from the contracting officer June 21, 1929, before award of the contract, as follows:

You are low bidder on Toledo work. Noted your bid based on using same plant as specified your bid Rouge River. In case both jobs awarded you have you additional plant to do them. Your bid Toledo specifies clamshell. In case clamshell proves unable to do

work have you dipper dredge available. Please wire. The plaintiff at once wired back that "in case clamshell unable do work have dipper dredge available.”

The contracting officer sent this telegram because he understood that the material to be dredged in the upper reach of the river was harder and more difficult to dredge than in other portions of the channel. He did not know at that time that not all of the channel had been improved to a full 400-foot width and 21-foot depth.

6. The plaintiff started to dredge August 1, 1929, and began in the section between the Fassett Street and New York Central Railroad bridges with clamshell equipment. The virgin material there located was encountered and the dredge could not remove it. Accordingly the dredge was moved further down the river and plaintiff continued to dredge what material it could without the use of equipment suitable for hard material until the close of navigation.

Upon discovery of the material that lay in the dredging area in the Fassett Street-New York Central Railroad 94 C. Cls. Reporter's Statement of the Case bridge section, in its original position, the plaintiff complained to the contracting officer that it was too hard to dig with the equipment on hand. In response to this complaint the contracting officer stated to the plaintiff in writing

there is no necessity of delaying decision as to the removal of the material near the Fassett Street Bridge. In fact, there is no decision to make. Its removal is required under the contract and will be

insisted upon.

The plaintiff, September 11, 1929, appealed from the contracting officer's ruling to the Chief of Engineers, U. S. Army, as follows:

On our contract for dredging Maumee River and Maumee Bay at Toledo, Ohio, a difference of opinion has arisen between the Contracting Officer and this Company on the dredging between the New York Central Bridge and the Fassett Street Bridge and immediately downstream from the New York Central Bridge.

In starting to dredge at the points mentioned above we find that this section of the channel has never been dredged before and that the material is very hard and lies in its original condition. The specifications state very clearly that all of the channel under our contract had been dredged to 21 feet below datum and the intent of this contract was for the reestablishment of this depth. We naturally accepted this information and based our figures and bid on a redredging proposition.

The contracting officer has ruled in spite of the fact that the section of the work above mentioned has never been dredged that this is a part of our contract.

We respectfully appeal to you from this decision and request that this portion of the work be eliminated from our contract, on the basis that original soil dredging was never intended in the scope of this con

tract. The contracting officer's ruling was affirmed by the Chief of Engineers October 8, 1929, and the contractor was required to dredge the full width and depth.

7. On November 6, 1929, the plaintiff sublet the remainder of all work to Standard Dredging Company, under a contract reading in part as follows:

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Reporter's Statement of the Case We [Standard Dredging Co.] agree to do all the uncompleted work on your contract, on Sections 2, 3, 4, and 5, and the work between the Fassett Street Bridge and the New York Central Railroad Bridge, in accordance with the plans and specifications of the United States Engineers for dredging Maumee River and Bay Channel, Lake Erie, copy of which is attached hereto and made a part hereof, for the sum of Twenty

Two Cents ($0.22) per cubic yard, place measurement. The Standard Dredging Company planned to and did use an hydraulic dredge upon the work. It made no physical inspection of the material to be dredged before signing the subcontract. 8. Sections 2, 10, and 12 of the specifications provided :

2. Work to be done.—The work to be done consists in furnishing all plant, labor, and supplies, and dredging a channel 400 feet wide and 21 feet deep, where present depths are less than 21 feet, below elevation 570.8 feet New York mean tide, or so much of the above as can be accomplished with available funds.

10. Condition of channel.-The channel was improved to 21 feet depth and 400 feet width in 1913–1915. The annual shoaling amounts to about 400,000 cubic yards. Maintenance dredging by U. S. Hopper dredges has been accomplished yearly but the amount of annual shoaling has been greater than the dredging. The section between the inner crib light and the Toledo Terminal Railway Bridge near the mouth of the river was restored to full project dimensions in 1926 and 1927. Shoaling in this area is quite rapid.

The latest survey, made in November December, 1928, shows that in the Bay channel, depths of 21 feet or more exist along the central portion for widths from about 200 feet to 350 feet.

The latest survey made in the river channel in 1928 shows several areas where present widths are about 250 feet. Some dredging has been done over these latter areas since the survey was made but shoaling has also taken place.

12. Overdepth dredging and side slopes.—To cover unavoidable inaccuracies of dredging processes, material actually removed to a depth of not more than 2 feet below the required depth will be estimated and paid for at full contract price.

Material actually removed, within limits approved by the contracting officer, to provide for final side slopes

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