#### THE WILLIAM CRAMP & SONS COMPANY v. THE UNITED STATES.

[No. 22535.

Decided February 3, 1908.]

*On the Proofs.*

The contract is for building the Alabama. It contains a provision that before final payment the contractor shall give a final release “ *of all claims of any hind or description ”*under or by virtue of the contract. The release given is- *“ on account of the construction of said vessel under the contract aforesaid.”*The principal question involved is whether the release extends to delays caused by the defendants and to matters not contemplated by the original contract, a release which ordinarily would require a new consideration.

I. It was decided by the Supreme Court in- *United States*v. *Cramp and Sons*(206 U. S. R., 118) that the contract provided in advance that it should be closed by the execution of a release of all claims of any kind or description, and that the release actually given must be deemed to be so intended and to leave nothing open and unsettled.

II. The decision of the Supreme Court in the ease referred to is conclusive in this case, the .contracts being similar. Where the vessel was completed and the retained money paid, the rights of the parties were determined by the contract itself and not by the language of the release.

*203*The Reporters'1*statement of tbe case:

The following are the facts of the case as found by the court:

I. The claimant is a corporation incorporated and existing under the laws of the State of Pennsylvania.

II. On September 24, 1896, the claimant and the United States entered into the contract, annexed to the petition herein, providing for the construction and delivery of a battle ship designated as “ Battle ship No. 8,” and now known as the U. S. S. Alabama, said contract being designated as “ Exhibit A.”

III. Upon the execution of the said contract the claimant made all preparations necessary for the commencement of work upon the construction of the said battle ship. December 2, 1896, her keel was laid, and thereafter the work progressed with due dispatch, and the battle ship would have been completed and ready for delivery within the contract period if the Government had delivered to the claimant the armor and armor bolts within the times and in the order required to carry on the work properly, as obligated so to do by clause 3 of the contract.

IY. In due course the claimant furnished to the United States working drawings and templates, showing the dimensions and shape of each and every armor plate required for use in the construction of the said battle ship.

Y. On or about February 15, 1898, work upon the vessel had progressed to a point where the delivery of her internal armor became necessary in order that her construction might proceed within the contract period. The first installment of plates for her internal armor was not received by claimant until December 22, 1898, and the last installments were not delivered by defendants until March 11, 1899, and notwithstanding these hindrances the claimant prosecuted the work upon the vessel, in so far and as rapidly as it could be done.

VI. On May 18, 1898, the said battle ship was launched. She had then progressed toward completion to the extent of about 55 per cent.

VII. On or about June 30, 1898, the superintending constructor, acting as the representative of the United States at *204the claimant’s shipyard, made a report to the Chief of the Burean of Construction and Repair, in which he stated:

“It is estimated that on June SO, 1898, the vessel *(Alabama)*was 60 per cent completed. The contractor’s trial, final completion, and delivery of the vessel to the Government will depend entirely upon the delivery of the armor and armament, and the ship should be ready for final delivery to the Government within two months after the receipt of the armor and armament at the shipbuilding yard.”

He stated further that the probable date of the vessel’s final completion was September 24,1899, that estimate being based upon the supposition that all armor would be delivered *without undue delay.*

VIII. On June 9, 1898, the United States entered into a contract with the Bethlehem Iron Company, which provided for the manufacture and delivery by the latter of the armor required for the said battle ship.

IX. After the launching of the said battle ship, in order that work upon her might proceed in proper order to complete her within the contract period, the claimant required for use certain parts of her external armor, namely, the plates for her side armor or main belts; side casemates, upper and lower; but the United States did not on May 18, 1898, deliver the same. Plates for the external armor of the said battle ship were delivered to the claimant from time to time between May 27,1899, and June 7,1900, as follows:

Armor. Date of delivery. Side or main belt.. Lower side casemates.. Upper side casemates. Upper side casemate wings. Signal tower. Turret — aft.:. Turret — forward.. 0-inch gun protections. May 27 to Nov. 10,1899. Nov. 28,1899, to Jan. 3,1900. Jan. 3 to Feb. 13,1900. Jan. 12 to Feb. 12,1900. June 15,1899. Apr. 5 to Apr. 21,1899. May 9 to June 7,1900. Sept. 23 to Oct. 1,1899.

X.On or about June 30, 1900, the superintending constructor, acting as the representative of the United States at the claimant’s shipyard, made a report to the Chief of the Bureau of Construction and Repair, in which he stated:

“ The vessel is at present estimated to be 97 per cent completed. I estimate that the date of the official trial can be *205about August 15, 1900, and that the ship will be ready for commissioning by the 30th of September, 1900.”

XI. On or about July 18, 1899, a strike occurred among the workmen in the claimant’s yard, which involved from 300 to 2,000 men at different times between said date and the early spring of 1900. It is not shown that said strike materially hindered or delayed the work on the *Alabama.*The only workmen on the *Alabama*engaged in the strike were about 160 riveters, but the claimant within a reasonable time thereafter installed a system of machine riveting, by means of which the claimant was enabled to more speedily perform said work, and by said means expedited the work beyond what it would have done had said riveters not joined in the strike.

XII. From June 7,1900, when the last shipment of armor plate for the said battle ship was delivered to the claimant, the work of finishing her was prosecuted in due order and with all possible dispatch.

Her official trial or speed test was held on August 20,1900, and on October 16, 1900, she was delivered to the United States and went into commission as a vessel of the United States Navy.

XIII. By reason of the failure of the United States to furnish the armor for the said battle ship as it was required to carry on the work of her construction properly, her completion was delayed for a period of 387 days.

XIV. By reason of delays on the part of the armor contractors, the armor was not delivered to the claimant company as early as it should have been, and the vessel was not delivered to the defendant until October 16, 1900.

Upon the request of the claimant company, conveyed by communication bearing date September 28, 1899, the Secretary of the Navy, on October 9, 1899, by letter, notified the claimant company that the “ provisions of the ninth clause of the contract for the construction of said vessel, relating to deductions from the contract price for delays, will be suspended for a reasonable time, pending the final delivery of the armor, and the question of extension of time will be determined when the armor is all delivered,” and later, on October 31, 1900, upon recommendation of the bureaus of *206Steam Engineering and Construction and Repair, the contract time for the completion of the *Alabama*was duly extended until the date of its preliminary acceptance, or October 22, 1900.

In consequence of this extension, no deduction on account of delay was made from the contract price of the vessel,, which was paid to the claimant company in full.

XY. On February 9,1901, the claimant directed a letter to the Secretary of the Navy in which it made claim for the damage which it had sustained in consequence of the said failures and delays of the United States.

On February 13, 1901, the Secretary of the Navy directed the following letter to the claimant:

“ NaVT DEPARTMENT,

“'Washington, *February*13,1901.

“ Gentlemen : Referring to your letter of the 9th instant, inclosing statement of account, and claiming reimbursement, in the sum of $66,913.23, of expenses incurred in caring for the *Alabama*and her machinery during the delay in her completion, for which it is alleged the Government is responsible, I have to state that while, from a casual consideration of the matter, it might seem proper that the papers should be referred to the bureaus concerned for examination and report, it appears, after a careful consideration of the subject, that the claim, being for unliquidated damages, is of a kind the department has no authority under the law to entertain.

“ Very respectfully,

“John D. Long,

*“Secretary.*

“ The William Cramp & Sons,

“ Ship and Engine Building Compant,

“Philadelphia, Penna.”

On April 15, 1901, the claimant, by its counsel, directed the following letter to the Secretary of the Navy:

“ Washington, D. C., *April 15,1901.*

“ In the matter of the final release on the U. S. S. *Alabama.*

“ Sir : In behalf of the William Cramp & Sons Ship and Engine Building Company we beg to say:

“ The company is in receipt of these papers which you sent to it for execution: (I) A form for the final release to be given on account of the construction of the U. S. S. Alabama, *207and (II) a form of the contract whereby the company will agree to indemnify the United States against all manner of demands made for or on account of the nse of the patented inventions employed in the construction of the vessel.

“We enclose to you herewith the contract of indemnity duly executed by the company.

“We also enclose a final release duly executed. We invite your attention to a proviso, inserted by the company, which does not appear in the form of release presented by you. This proviso is as follows (p. 8) :

“ ‘Provided, That nothing herein shall operate as a waiver of this company’s right to sue for and recover judgment in the Court of Claims for damages incurred or losses sustained by the company iri the prosecution of the contract work which were occasioned by delays or defaults on the part of the United States.’

“ On February 9, 1901, the company presented to you a claim for damages to the amount of $66,973.23, which it had sustained by reason and as a result of the failure of the United States to furnish armor, to be used in the construction of the vessel, at the times and in the manner prescribed by the contract for the construction of the vessel.

“ In your letter directed to the company on February 13, 1901, you stated that this claim, *‘being for unliquidated*damages, *is of a hind the department has no authority under the law to entertain.’’*

“ It has frequently been held by the Supreme Court of the United States and by the Court of Claims that the head of an executive department is not vested with jurisdiction to hear and determine claims for unliquidated damages, even though they may grow out of contracts made by his department.

“ By the act of March 3, 1887, known as the *£Tucker Act,’*the Court of Claims is vested with jurisdiction to hear and determine such claims.

“ The release submitted by you, without qualification, such as the proviso inserted by the company, would undoubtedly be held to include not only all claims which you have passed upon and over which you might have jurisdiction, but also claims which you had not entertained and over which you possess no jurisdiction. By executing the release without the qualification the company would be deprived of the right to seek and obtain its remedy in the only forum possessing jurisdiction in the premises. The proviso inserted does not affect the efficiency or completeness of the release so far as it deals with matters coming within your jurisdiction. We trust that you will approve the release as amended, appreciating that it merely preserves the company’s right to the *208hearing and adjudication of its claim, as prescribed by the *‘Tucker Act.’’*

“We respectfully request you to order payment to the company for the sum of $40,000, the amount of the consideration named in the release.

“ Very respectfully,

“McCammon & Hayden.

“ The Hon. John D. Long,

*“Secretary of the Navy A*

On April 17, 1901, the Secretary of the Navy directed to the claimant’s counsel the following letter:

“ Navy Department,

*“'Washington, April 17,1901.*

“ Gentlemen : Referring to your letter of the 15th instant, inclosing a final release executed by the William Cramp & Sons Ship and Engine Building Company, under the contract for the construction of the Alabama, I have to state that the proviso inserted in the last paragraph of said release, that nothing therein contained shall operate as a waiver of the company’s right to sue in the Court of Claims for alleged damages arising from delays and defaults on the part of the Government during the construction of said vessel, is not acceptable to the department.

“After consideration of the matters set forth in your letter, and the discussion of the subject between Mr. Hayden, of your firm, and the Judge-Advocate-General, the department will accept a release from said company drawn in accordance with the form forwarded to the contractors in its letter, No. 2553, of the 9th instant, with the following provisions, Avhich, excepting the substitution of *1*claims ’ for *‘*rights,’ is substantially what was suggested by Mr. Hayden, namely: ‘ *Provided,*That this release shall not be taken to include claims arising under the said contract other than those which the Secretary of the Navy had jurisdiction to entertain.’

“ Upon receipt of release properly executed in form as indicated herein, vouchers in favor of the William Cramp & Sons Ship and Engine Building Company will be approved for payment of the balances due under the contract less the $20,000 contemplated by said release.

“ The release received with your letter is herewith returned.

“ Very respectfully, .

“John D. Long,

“ *Secretary.*

“S. C. L.

“ Messrs. McCammon & Hayden,

*uNo. 11$0 F street N. W., Washington, D. ON*

*209XVI. On'April 20, 1901, the claimant, by its counsel, directed the following letter to the Secretary of the Navy:

“ Washington, D. C., *April 20-, 1901.*

“Sir: We send you herewith a final release executed by the William Cramp & Sons Ship and Engine Building Company, under the contract for the construction of the *Alabama.*This contains a clause which excepts from the operation of the release claims arising under the contract which you, as Secretary of the Navy, had not jurisdiction to entertain, the clause being the one set out in your letter of the 17th instant.

“ Very respectfully,

' ' “ McCammon & Hayden.

“ To the honorable the Secretary op the Navy.”

The following release was transmitted with the foregoing letter:

“ Release.

“ *Under contract dated September 24., 1896, with the William Cramp and Sons Ship and, Engine Building Company for the construction of battle ship No. 8, the 1 Alabama.’*

“Whereas by the eleventh clause of the contract dated September 24, 1896, by and between the William Cramp and Sons Ship and Engine Building Company, party of the first part, and the United States, party of the second part, for the construction of battle ship No. 8, the Alabama, it is agreed that a special reserve of sixty thousand ($60,000) dollars shall be held until the vessel shall have been finally tried, provided that such final trial shall take place within five months from and after the date of the preliminary acceptance of the vessel; and

“ Whereas by the seventh paragraph of the nineteenth clause of said contract it is further provided that when all the conditions, covenants, and provisions of said contract shall have been performed and fulfilled by and on the part of the party of the first part said party of the first part shall be entitled, within ten days after the filing and acceptance of its claim, to receive the said special reserve, or the surplus, if any, of the said reserve fund, or so much of either as the said party of the first part may be entitled to, on the execution of a final release to the party of the second part, in such form as shall be approved by the Secretary of the *210Navy, of all claims of any kind or description under or by virtue of said contract; and

“ Whereas said vessel was preliminarily accepted on the 22nd day of October, 1900, and her final trial completed March 11, 1901; and

“ Whereas all the conditions, covenants, and provisions of. said contract have been performed and fulfilled by and on the part of the party of the first part, excepting certain minor defects, deficiencies, and items of uncompleted work, to cover which the sum of twenty thousand dollars is, according to an understanding between the respective parties to said contract, and as stated in the letter dated April 9, 1901 (No. 2919-01), of the Secretary of the Navy to the parties of the first part, to be withheld by the party of the second part until the completion of the vessel in said respects; and

“ Whereas owing to the inexpediency at this time of keeping the *Alabama*at a navy yard long enough for the doing of the work in question, the party of the second part has consented to pay to the parties of the first part all balances due under said contract, excepting the said special reservation of twenty thousand dollars:

“ Now, therefore, in consideration of the premises, the sum of forty thousand dollars ($40,000), the amount of the aforesaid special reserve, less the above-mentioned reservation of twenty thousand dollars ($20,000), being to me in hand paid by the United States, represented by the Secretary of the Navy, the receipt whereof is hereby acknowledged, the William Cramp and Sons Ship and Engine Building Company, represented by me, Charles H. Cramp, president of said company, does hereby, for itself and its successors and assigns and its legal representatives, remise, release, and forever discharge the United States of and from all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever in law and in equity, for or by reason of or on account of the construction of said vessel under the contract aforesaid, excepting the sum of twenty thousand dollars, withheld by the Secretary of the Navy as above set forth:

“ Provided, That this release shall not be taken to include claims arising under the said contract other than those which the Secretary of the Navy had jurisdiction to entertain.

“ In witness whereof the William Cramp and Sons Ship and Engine Building Company has caused its corporate name to be hereunto subscribed and its corporate seal to be affixed *211this nineteenth day of April, 1901, by Charles H. Cramp, its president.

“[Seal of the William Cramp and Sons Ship and Engine Building Co.]

“The William Cramp and Sons Ship and Engine Building Company,

“ By Chas. H. Cramp, *President.*

“Attest:

“ Chas. T. Taylor, Secretary.”

On April 20, 1901, the Judge-Advocate-General, by direction of the Secretary of the Navy, directed the following letter to claimant’s counsel:

“ Navy Department,

“ Office of the Judge-Advocate-General,

“ *Washington, April 20, 1901.*

*“*Gentlemen : The final release by Messrs. Cramp & Sons under the contract for the *Alabama,*received with your letter of this date, and the patent guaranty by the same company previously received, have been approved by the department.

“ By direction of the Secretary:

“ Very respectfully, Sam C. Lemly,

■ “ *Judge- Advocate-General.*

“ Messrs. McCammon & Hayden,

*“No. U¡.20 F street N. W., Washington, D. CP*

XVII. The last payment on account of battle ship No. 8, *Alabama,*was made on or a!bout August 26, 1901, as set forth in the following voucher:

“ Quadruplicate. No. 8938 E. 96.

*“The TJ. 8. Navy Department to Wm. Cramp and Sons Ship and Engine ' Building Company, Dr.*

“Appropriation, increase of tlie Navy, ‘ Construction and machinery.’ ”

Aug. 26,1901 Battle ship No. 8, Alabama. Date of contract, September 24, 1896. For amount withheld on vouchers of April 20,1901, the vessel having been finally accepted. Less: Deductions for uncompleted wort on hull and machinery (as per statement of items attached) as follows— On hull.$832.53 On machinery. 357.08 Amount payable. $20,000.00 1,189.61 18,810.39

*212“ Navy Department,

“Washington, *D.*G., *August %6,1901.*

*“*We hereby certify that this bill is correct.

*“*Darius Green,

*“Acting Chief of Bureau of Construction and Repair.*

*“*J. D. B.

“ Geo. W. Melville,

*“Engineer in*Chief, *U. S. N.,*

*“Chief of Bureau of Steam Engineering.*

*“*Navy Department, Washington, D. C.

“Approved for the sum of eighteen thousand eight hundred and ten and 39/100 dollars, payable by purchasing pay officer at Philadelphia, Pa.

“ F. W. Hackett,

*“Acting Secretary of the Navy.*

*“*Received,-, 190-, of-, at-, — dollars in full of the above bill.

*Statement of items chargeable to contractors on account of worlc done and materials furnished at the navy-yard, Veto York, to he deducted on vouchers for final payment.*

ON hull.

Labor, Material. Total. Replacing cast-iron eccentric straps of boat crane engines with composition straps. Replacing all faulty securing bolts for side lights and supplying three dozen extras. Refitting and stiffening sponson shuttersof forward 6-inch guns on main deck. $118.20 153.40 384.40 656.00 835.35 23.64 117.54 176.53 $153 55 177.04 501.94 832.53 ON MACHINERY. Lining up starboard H. P. engine. Repairing auxiliary starboard discharge pipe in each engine-room. Placing stop valve in ice-machine system. Making stop valve at upper end of steam pipe to auxiliary feed pumps accessible from fireroom floor. Fitting salinometer pots for evaporators. Covering steam pipes. $47,80 26.00 128.64 26.56 6.60 24.32 258.92 $1,67 .91 39.83 11.60 42.95 1.20 8.16 $49.47 26.91 168.47 38.16 48.55 25.52 357.08 Hull_ $832. 53 Machinery_ 357. 08 Total_1,189. 61

XVIII. By reason of the said several failures and delays of the United States with respect to the furnishing of the *213armor for the said battle ship, and the delay in her completion and difficulties experienced in her construction consequent thereon, the claimant was put to extra expense in the performance of the contract in suit, and sustained damage to the amount of $49,792.66. The items of the said extra expense and damage were as follows:

Wharfage: September 24, 1899, to October 16, 1900 — 387 days at $600 per month, including watching_■_$7, 740. 00

Electric lighting — Illuminating vessel 348 days during the • above period, at $46.12_ 16,049.76

Painting — Touching up and repainting water bottoms, trimming tank, cofferdams, boiler rooms, dynamo rooms, engine rooms, woodwork, military masts, outside of hull, and cork painting throughout ship, and turpentining decks:

5,000 hours painting at 30.4 c_$1,520.00

3,825 lbs. red-lead oil, at 10 c_ 382.50

1,750 lbs. color, at 12 e_ 210.00

6 gals, hard oil, at $3.75_ 22. 50

10 gals, varnish, at $3.02_ 30. 20

4,120 lbs. turpentine, at 6 e_ 247.20

16 bags sawdust, at 25 e_ 4. 00

-2,416.40

Keeping ship clean from snow and ice, removing debris, and general attendance and scaling: 25.829J hrs., laborers, at 13.1 e_ 3,383. 69

Covers — Canvas over hatches, ventilators, and turrets: 1,230 lbs., at 15 c- 184. 50

(Pp. 92-93.)

Running heaters to heat ship:

5,420 hrs., machinists, at 28 c_ 1,517. 60

Turning over dynamo, steering boat crane, ice machine, and windlass engines, galley, ranges, and blower, and other machinery in hull specifications:

5,855 hrs., machinists, at 28 e_$1,639.40

5,855 hrs., helpers, at 16.1 c_ 942.66

- 2,582.06

Running air machines at night in order to obtain pressure to cut armor bolt holes; extra time which would not have been necessary had the armor arrived in time to carry on the work properly:

820 hrs., machinists, at 28 c_ $229. 60

240 hrs., helpers, at 16.1 c_ 38.64

1, 633. 83

*214Tearing out scupper pipes and putting in place again to allow armor to go on. Had the scuppers not been in place the ship would have been damaged by water; it was necessary, therefore, to install the scuppers before the armor arrived:

4,000 hrs., machinists, at 28 c-$1,120. 00

870 hrs., helpers, at 16.1 c_ 140.07

960 hrs., pattern makers, at 30.6 c- 293.76

800 ft. lumber, at 10 e_ 80.00

Turning ship to avert magnetic polarization :

Towboat service_ $75. 00

180 hrs., riggers, at 18.5 c- 33.30

6 hrs., locomotive cranes, at $3_ 18.00

174 men were working on the ship whose time was lost, but who were paid, through air and electric-light connections being disconnected for two hours, each averaging 20 c. per hour, or_ 69.60

$195. 96

Towboats’ service, breaking ice around ship-15. 00

Insurance:

Cancellation value of policies in force September 23, 1899_$3,764.16

Kenewals of insurance evidenced by said policies paid between September 24, 1899, and October 16, 1900- 6,053.20

9,817.36

Deduct cancellation value of said policies returned to claimant October 16, 1900_ 2,027.04

7,790.32

Maintenance and up-keep of propelling machinery : September, 1899 — -Overhauling fire-room blowers, cleaning boilers, running temporary steam pipes, cleaning feed-tanks and running pumps subsequent to 24th _ 111. 53

October, 1899 — Examining and lubricating cylinders and pistons, running temporary bilge suction pipe, lubricating and greasing circulating pumps, overhauling fire-room blowers, and tightening up fire-main joints_ 1,032.32

November, 1899 — Cleaning condenser tubes, overhauling engine-room blower, rejointing fire-main pipe, adjusting main bearings, cleaning boilers, running water-boat suction, overhauling drains from fire-room blowers, running pumps and examining water-service pipe and valves_ 221.59

*215December, 1899 — Overhauling cross-head brasses, fitting up temporary boilers for heating, running suction pipe from temporary tank, running temporary heater pipe, overhauling piston rod packing, running temporary steam pipe, lubricating air and feed pumps, and cleaning boilers_ $237.87

January, 1900 — Conducting temporary steam pipe to stern tubes, getting boilers ready for steam, greasing pumps, examining piston rods and valve stem packing, bracketing extension levers on temporary suction, donkey-man on temporary boiler, bleeding auxiliary feed pipes, and putting covers on temporary boiler_ 301. S3

February, 1900 — Drilling for and running water boat suction, donkey-man on temporary boiler, running pumps, cleaning feed tanks, putting fish oil in boilers and stacks, fish oiling tubes, renewing auxiliary steam joints, and cleaning back connection in boilers _ 438.78

March, 1900 — Ove-rhauling cross-head guides and slippers, running temporary steam pipe, putting fish oil in boiler tubes, running pumps, overhauling crank shaft, donkey-man, watchman, overhauling crank pins, running water boat suction, firing temporary boiler, cleaning and greasing machinery, repacking valves in fireroom, assembling and adjusting guides_ 625.65

April, 1900 — Overhauling packing in piston stuffing boxes, disconnecting temporary boiler, running pumps, overhauling guides, connecting temporary steam pipes, cleaning and greasing machinery, overhauling blowers, examining and adjusting suspension links, overhauling stop valve gear, donkey-man_ 318.29

May, 1900 — Running pumps, pumping bilge, donkey-man, rejoining auxiliary steam valves, cleaning boilers, disconnecting and removing temporary steam pipe, examining feed-pump pistons, overhauling auxiliary feed pumps, overhauling fire and bilge pumps, overhauling main feed pumps, examining McComb strainers, examining sanitary pumps, cleaning and greasing machinery, examining bilge suction plugs, overhauling thrust-bearing water service, rejointing boiler drain pipe, overhauling lubricators, overhauling safety-valve gear-243.98

June, 1900 — Adjusting turning engine, running pumps, donkey-man, overhauling bilge suction-plug cocks, rejointing auxiliary feed drains, overhauling drains from dynamo rooms, overhauling joints, steam to crane, rejointing auxiliary steam and exhaust pipes_ 174.31

*216July, 1900 — Donkey-man, running pumps, overhauling and rejointing steam to deck machinery, getting boilers ready for steam, overhauling boilers, turning machinery _ $200.98

August, 1900 — Donkey-man, engineer, rejointing auxiliary steam drains, cleaning and greasing machinery, examining main and auxiliary steam joints, running blowers and pumps, overhauling steam-gauge system, rejointing boiler-manhole plates, overhauling oil service, tightening joints in water bottom, oil stowing pistons, tightening manhole covers, tightening joints on cylinders, examining pistons, cleaning boilers, examining valve chests, examining pumps_ 541.40

September, 1900 — Cleaning boilers, donkey-man, engineer, cleaning and greasing machinery, tightening main and auxiliary steam and exhaust joints_ 980.84

October, 1900 — Cleaning boilers, donkey-man, engineer, running pumps, cleaning and greasing machinery to Oct. 16, 1900, inc_ 329.84

350 tons bituminous coal, at $3_$1,050.00

424 gals, fish oil, at 45 c_ 190.80

156 gals, lubricating oil, at 60 c_ 93.60

200 lbs. waste, at 6 c_ 12.00

- 1,346.40

Total- 50,882.91

Dess overcharge on labor of machinists in maintenance and up-keep of propelling machinery, 15,575 hours, at 7 cents per hour- 1,090.25

Making a total of_ 49, 792.66

*Mr. James H. Hayden*for the claimant. (Messrs. *McQam-mon and Hayden*were on the brief.)

The situation is this: Section 7 of the 19th paragraph of the contract provided that when the contract should have been fully performed by the Cramp Company, certain sums of money theretofore withheld by the Government, should be paid over to the company, upon its executing a final release “ in such form as shall be approved by the Secretary of the Navy, of all claims of any kind or description, under or by virtue of this contract.” On February 9, 1901, prior to the execution of the release, the company presented to the Secretary of the Navy its claim for damages, sustained on account of the Government’s breach of the contract in suit. On Feb*217ruary 13, 1901, still prior to the execution of the release, the Secretary replied, saying:

“ It appears, after a careful consideration of the subject, that the claim, being for unliquidated damages, is of a kind the department has no authority under the law to entertain.”

Thereafter the Secretary forwarded to the Cramp Company for execution certain papers, including a formal release, entitled—

“ Release under contract dated September 24, 1896, with The William Cramp & Sons Ship and Engine Building Company, for the construction of battle ship No. 8, the Alabama.”

This release was returned to the Secretary on April 15, 1901, by claimant’s counsel, with a letter stating that claimant could not execute it, inasmuch as it had presented and intended to maintain its claim against the United States for damages “ sustained by reason of the failure of the United States to furnish armor to be used in the construction of the vessel *(Alabama)*at the times and in the manner prescribed by the contract for the construction of the vessel.” The Secretary’s attention was called to his letter of February 13, 1901, and decisions of this court, in which it had been held that the head of an executive department is not vested with jurisdiction to hear and determine claims for unliquidated damages, even though they may grow out of contracts made by his department. There was submitted to the Secretary, duly executed, a release, in a form, substantially the same as the one which he had presented to the Cramp Company, but with the addition of this proviso:

“ Provided that nothing herein shall operate as a waiver of this company’s right to sue for and recover judgment in the Court of Claims for damages incurred or losses sustained by the company in the prosecution of the contract work, which were occasioned by delays or defaults on the part of the United States.”

To this letter the Secretary replied that the release tendered was not acceptable to the department, but that one would be accepted containing the following clause:

“ Provided that this release shall not be taken to include claims arising under the said contract other than those which the Secretary of the Navy had jurisdiction to entertain.”

*218Thereafter, a release containing the clause suggested by the Secretary was duly executed and delivered to him, with a letter from the claimant’s counsel, saying:

“ This contains a clause which excepts from the operation of the release claims arising under the contract which you, .as Secretary of the Navy, had not jurisdiction to entertain, the clause being the one set out in your letter of the 17th instant.”

In that form the release was approved by the department, and the *Alabama*finally accepted. The Government paid for her the full contract price, but nothing for or on account of the claim in suit.

There can be no doubt that the Secretary of the Navy was right when he said that he had not jurisdiction to entertain the claimant’s demand for damages sustained by the Government’s breach of contract. *(McKee*v. *United*States, 12 C. Cls. R., 555, 556; *Bowers*v. *United*States, 18 C. Cls. R., 263, 275; *McClure*v. *United States,*19 C. Cls. R., 28, 179; *.Brennan*v. *United*States, 20 C. Cls. R., 219, 223; *Pneumatic ■Gun Carriage Co.*v. *United*States, 36 C. Cls. R., 71.)

We submit that the release upon its face excepted from its operation a claim of the character of the one in suit, and •that the intent of the parties was that the claim should be excepted. In legal effect there was no difference between .the release at first tendered by the claimant and the one which it finally executed. The change of the language was merely calculated to save the pride and soothe the feelings ■of the Secretary and other officials.

*Mr. Franlclin W. Collins*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Per Curiam:

The contract in this case, respecting the language of the final release upon the completion of the vessel and the payment of the reserve therein mentioned, is the same as in the case of *United States*v. *Cramp and Sons*(206 U. S., 118), wherein the court said:

> “The sixth clause of this paragraph makes special provision for the last payment, to be made 'when all the conditions, covenants, and provisions of said contract shall have *219been performed and fulfilled by and on the part of the party of the first part,’ and *‘*on the execution of a final release to the United States in such form as shall be approved by the Secretary of the Navy, of all claims of any kind or description under or by virtue of said contract.’ Evidently the parties contemplated and specially provided by this stipulation that the whole matter of the contract should be ended at the time of the final release and the last payment. That which was to be released was ‘ all claims of any kind or description under or by virtue of said contract.’ Manifestly, included within this was every claim arising not merely from a change in the specifications, but also growing out of delay caused by the Government. The language is not alone ‘ claims under,’ but„‘ claims by virtue ’ of the contract — ‘ claims of any kind or description.’ All the claims for which allowances were made in the judgment of the Court of Claims come within one or the other of these causes. It may be that, strictly speaking, they were not claims under the contract, but they were clearly claims by virtue of the contract. Without it no such claims could have arisen. Now, it having been provided in advance that the contract should be closed by the execution of á release of this scope it can not be that the company, when it signed the release, understood that some other or lesser release was contemplated. It must have understood that it was the release required by the contract — a release intended to be of all claims of any kind or description under or by virtue of the contract, and that the form of words which the Secretary had approved was used to express that purpose. * * * It is only by reason of the performance of the contract in the construction of the vessel that these claims arise. But for the contract, and the construction of the vessel under it; there would be no such claims. * * * If parties intend to leave some things open and unsettled their intent so to do should be made manifest.”

' That language evidently has reference to the contract and its requirements and therefore when the contract in terms provides that the reserve or final payment will be made “ when all the conditions, covenants, and provisions of said contract shall have been performed and fulfilled by and on the part of the party of the first part,” the claimant was, upon such payment, obligated to sign the release provided by the terms of the contract releasing the Government from “ all claims of any kind or description under or by virtue of said contract.” And, since the court in the case cited, holds *220that the release of all claims growing out of the construction of the vessel — without which such claims would not have arisen — was a recognition of the contract and settled, as the court says, “ all disputes between the parties as to claims sued upon ” — including unliquidated claims — the Secretary of the Navy in respect thereto not only had the right to accept such release in the interest of the Government, but under the contract it was his duty to do so.

Therefore it must be held that, when the vessel was completed and the reserve paid, the rights of the parties were determined by the contract itself and not the language of the release. It follows that on the authority of the case cited the petition must be dismissed, which is accordingly done, and judgment is ordered to be entered for the defendants.