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94 C. Cls. Reporter's Statement of the Case not flatter than 1 vertical on 4 horizontal, but not in excess of the amount originally lying above this limiting side slope, will be estimated and paid for, whether dredged in original position or after having fallen into the cut. In computing the limiting amount of sideslope dredging an overdepth of 2 feet, measured vertically, wilĩ be used. Material taken from beyond the limits above described will be deducted from the total amount dredged as excessive overdepth dredging, or excessive side-slope dredging, and will not be paid for. Nothing herein shall be construed to prevent payment, under the provisions of paragraphs 17 and 18, for the removal of shoals within the limits of dredging prescribed in paragraph 2, whatever the ultimate source
of the material in such shoals. Before plaintiff began dredging there were certain areas within the contract channel width of 400 feet where on the center line the depth was 21 feet or over and alongside the outer limits less than 21 feet, involving a slope.
Due to unavoidable inaccuracies of dredging processes a substantial quantity of material was dredged from this slope, between the 21-foot level and the 23-foot level, where the pre-dredging level was 21 feet or lower.
Of the amount so dredged 93,350 cubic yards have not been paid for. At the contract rate of 29.4 cents this amounts to $27,444.90.
The plaintiff, in discussions with the contracting officer during the latter part of the contract period, claimed that payment was due for this cut, and the contracting officer denied that any payment was due. No written claim was submitted to the defendant and the contracting officer's decision was verbal. There was no appeal.
9. The plaintiff, through its subcontractor, completed all work under the contract and it was accepted by the Gov. ernment.
Plaintiff received $456,918.04 for 1,554,143 cubic yards removed, and paid to its subcontractor $298,965.04 for 1,358,932 cubic yards, plaintiff having removed 195,211 cubic yards with its own forces. Plaintiff realized a profit of $100,560.97 on the yardage dredged by its subcontractor, being 1,358,932 cubic yards at 7.4 cents.
Opinion of the Court There is no satisfactory proof of loss, if any, sustained by the plaintiff in the performance of the contract, due to dredging virgin instead of precipitated or shoaled-in material, nor of the fair and reasonable value of dredging the virgin material.
The court decided that the plaintiff was not entitled to
WHALEY, Chief Justice, delivered the opinion of the court:
Plaintiff entered into a contract with the defendant on June 29, 1929, for the consideration of 29.4 cents per cubic yard, place measurement, to furnish all labor and materials and perform all work required for dredging Maumee River and Maumee Bay Channel, Lake Erie, in accordance with specifications, schedules, and drawings, made part of the contract, the work to be completed within a time calculated according to a prescribed formula, no work to be required during the period between December 15 and April 1, inclusive, which represented the closed season for navigation.
The specifications stated that the contour of the channel was improved to 21 feet depth and 400 feet width in 1913– 1915, and that material to be removed was thought to be silt, clay and sand, but the bidders were expected to examine the work and decide for themselves as to its character and make their bids accordingly as the United States did not guarantee the accuracy of this description. The specifications further stated that the price per cubic yard covered the cost of removal and disposition of all material encountered except ledge rock. It was further 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 channel to be dredged began in the Maumee River in the city of Toledo at the Fassett Street Bridge and extended some 15 miles there from through Maumee Bay out into Lake Erie. The projected improvement of the channel contemplated a width of 400 feet throughout its length 94 C. Cls. Opinion of the Court with a depth of 21 feet below the datum of 570.8 feet mean tide, New York Harbor. Plaintiff made no investigation at the site of the character of the material to be removed before signing the contract.
Plaintiff entered upon the work on section 1 which was situate between the Fassett Street and New York Central Railroad bridges. The equipment used was a clamshell dredge which was incapable of removing the virgin material which was located at a point in that stretch of the river and which had not been removed previously when the channel was deepened to 21 feet. This virgin material was composed of clay and extended about 1,800 feet along the east bank of the river downstream from Fassett Street Bridge, above the 21-foot depth and within the 400-foot width. It was afterwards removed by the contractor and the contract price of 29.4 cents per cubic yard was paid to it for the 13,171 cubic yards removed.
Plaintiff complained to the contracting officer that this material being above the 21-foot mark and composed of compact clay was not within the provisions of the contract. The contracting officer refused to pay anything more than the contract price for it and held that its removal was within the terms of the contract and an appeal was taken to the Chief of Engineers and the Chief of Engineers affirmed the contracting officer's ruling.
On November 6, 1929, plaintiff sublet to the Standard Dredging Company the remainder of all work on the contract, including the virgin material in Section 1, at 22 cents per cubic yard, place measurement, on the terms and conditions as set out in the contract between the plaintiff and the defendant.
The work was completed and plaintiff received payment from the defendant on the basis of 29.4 cents per cubic yard removed and payment was made to the subcontractor by the contractor for work performed by it. Plaintiff received $456,918.04 for 1,554,143 cubic yards removed, and paid to its subcontractor $298,965.04 for 1,358,932 cubic yards. On the yardage dredged by its subcontractor the plaintiff realized a profit of $100,560.97, being 1,358,932
Opinion of the Court cubic yards at 7.4 cents. With its own forces plaintiff removed only 195,211 cubic yards.
Plaintiff claims that it is entitled to damages in the amount of $104,105.94 for loss resulting from misrepresentations made in the contract and specifications as to the extent of previous dredging and the character of material within the project limits, certain papers being in the possession of the defendant and not disclosed to plaintiff. Its second claim is for recovery of $27,444.90 for allowable overdepth dredging of 93,350 cubic yards performed under the contract for which it has not been paid.
The contention is made that certain drawings, which the defendant furnished plaintiff on which to base its bid, were not all the drawings which were in the possession of the defendant and if they had been made available to plaintiff they would have made a material difference in its bid. The plaintiff relies on the cases of Hollerbach & May v. United States, 233 U. S. 165, and Christie v. United States, 237 U. S. 234. These cases are not in point.
When the Engineers Office was established in Detroit certain papers which had been in the Cleveland office were transferred to Detroit but not all of them.
Among those missing were the drawings showing the depths, point by point, that had been reached in the dredging of 1913–1915, “after-dredging” drawings as they have been termed. They disclosed depths in the Fassett StreetNew York Central bridge area that were less than 21 feet in depth. A bare disclosure of less than 21 feet does not mean that below that elevation was a stratum of virgin clay. It is not even intimated that, were the material above 21 feet in that territory silt or sand, it would have been outside the contract. The complaint is that it was virgin material, as it turned out to be, clay, and therefore outside the contract. Clay in the bed of this river would, of course, be virgin material, but the specifications stated : “The material to be removed is believed to be silt, clay, and sand.
[Italics ours.] This is equivalent to saying that a part of the material is believed to be comparatively recent deposits and other material of a virgin char
94 C. Cls.
Opinion of the Court acter. If there be inconsistency in the specifications, the inconsistency would have been resolved by the bidder examining the work and deciding for himself. The specifications state:
The material to be removed is believed to be silt, clay, and sand, but bidders are expected to examine the work 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. There is no suggestion that the after-dredging drawings of 1913–1915 disclosed the nature of the material above 21 feet and we may not assume that they would indicate the presence of virgin clay to the bidder. The presence of clay was in fact suggested in the specifications. At best the drawings would merely corroborate the suggestion of the presence of clay above 21 feet.
In prior dredging an elevation datum of 572.8 feet above mean tide New York Harbor had been used, with a depth of 23 feet. This means a dredged level of 549.8 feet. In the instant dredging a datum of 570.8 feet was used, with depth of 21 feet. This means also a dredged level of 549.8 feet.
The contention of plaintiff is that if the dredging in 1913–1915 was from a datum of 572.8 feet for a 21-foot channel and not from a datum of 570.8 feet, the result was a 19-foot channel instead of a 21-foot channel and therefore plaintiff would have to encounter virgin material to a depth of 2 feet in this area. However, upon examination of the drawings this is not correct. The contract given out in 1913–1915 called for a 23-foot channel below the datum of 572.8 feet which is identical with the instant specifications calling for a 21-foot channel below the datum of 570.8 feet. Even if these after-dredging drawings had been furnished, plaintiff would not have obtained the information necessary to determine how much, if any, virgin material there was to be dredged. In plaintiff's brief it is admitted that the contracting officer was not guilty of "bad faith” but it claims defendant was supressing information which, if it had been furnished to plaintiff, would have