#### W. H. FRENCH DREDGING & WRECKING COMPANY v. THE UNITED STATES

[No. B-416.

Decided April 19, 1926]

*On the Proofs*

*Contract for dredging; representation as to material to he*removed.— Where, in a contract for dredging, the specifications state that the material to be removed is believed to be principally of a sandy character overgrown with sea grass bnt bidders are expected to examine the work themselves as the description so given is not guaranteed, and said description is given in good faith and the prospective contractor examines the work itself, it can not recover the extra expense incurred because the material removed proved to be of a different character from that described.

*The Reporter's*statement of the case:

*Mr. Horace /S. Whitman*for the plaintiff.

*Mr. William F.*Norris, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff is a corporation duly organized under the laws of the State of Virginia and was engaged in the dredging business prior to and during the year 1921, and on the 15th day of August, 1921, the plaintiff entered into a contract in writing with the defendant to furnish all the plant, vessels, machinery, tools, and appliances and perform all labor necessary for dredging a channel about 4,800 feet long and 50 feet wide, with an anchorage 400 feet by 400 feet, to a depth of 5 feet at mean low water, in Tangier Channel, Va. The price to be paid was 24x% cents per cubic yard. The contracting officer representing and acting for the Government was F. C. Harrington, major, Corps of Engineers. A copy of the contract is attached to the petition and is made a part of this finding by reference.

II. The advertisement sent out by the Government seeking proposals for doing the work, and which was made a *98part of the contract subsequently entered into, provides, in part, as follows:

“It is understood and agreed that the quantities given in these specifications are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. No allowance will be made for the failure of a bidder or of the contractor to estimate correctly the difficulties attending the execution of the work.

“ The channel to be dredged Avill lead into an estuary of Tangier Sound in Tangier Island, Va., located in Chesapeake Bay about 15 miles southwest of Crisfield, Md.

The work shall conform to a map Tangier, Va., March, 1913,’ which forms a part of the specifications, and which is filed in the United States Engineer Office at Baltimore, Md. It shows the location and the latest soundings made on the area, may be seen at this office, and should be consulted by intending bidders before sub-

“ The mean range of tide is about 1.7 feet; there are no unusual currents; the locality is not exposed to storms; and the usual working season is from about March 15 to December 31.

“No dredging has been done by the United States at the site of the proposed work, and no survey has been made since that from which the map referred to in paragraph 19 was made. It is thought that the condition of the channel has not since that time.

“ The material to be removed is believed to be principally of a sandy character overgrown with sea grass, 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.

“ Proposals will state the character and capacity of the plant owned or controlled by the bidder and proposed to be employed by him on the work. The plant shall be of sufficient size to meet the requirements of the work and shall be kept at all times in condition for efficient work, all to be subject to the inspection and approval of the contracting officer. * * * The measure of the ‘ capacity of the plant ’ shall be its actual performance on the work to which these specifications apply.

“ Woi*k covered by price bid: The price bid per cubic yard for dredging shall cover the cost of removal and disposition of all material encountered except ledge rock. The removal of ledge rock, if found, will not be required; such work, if *99necessary, will be made the subject of separate cqntract. Material to be classified as ledge rock must be of such composition as, in the opinion of the contracting officer, shall require blasting for its removal and shall not include fragments of rock or bowlders capable of being raised by the dredge in one piece. Should ledge rock be encountered, the contractor shall remove therefrom all such overlying materials as, in the judgment of the contracting officer, can be removed by the use of the plant specified in the accepted proposal, or the equivalent of such plant.”

III. Before submitting bid for the work in question plaintiff sent its vice president, H. L. Lewis, to investigate the work the Government proposed doing. He took Captain Newton with him, called on Mr. Doyle, of the United States Engineer’s office at Baltimore, stating he wanted to make an investigation of the work and would like a blue print thereof. He was informed the engineer did not have one to spare; was shown one in the GoArernment’s office; went to Crisfield and got a man to take him and Captain Newton to Tangier; saw man at Mr. Sterling’s crab house who told him the best he could the way the engineer laid out the cut. No stakes were sticking up, except what oyster-men had put there so they could find the channel. The man told him the general direction of the channel. He had iron pipe in 3-foot sections with sharp point on end; sounded straight up the channel; made about 100 soundings; did not know whether he was in channel or not, only from what man at crab house had shown him; found mostly mud and sand; at one or two places found clay; every time rod went below 6 feet found clay. Was there about four hours. Did not see any stumps. No other or further investigation to ascertain the kind of material to be excavated was ever made by or for plaintiff. Nor was any inquiry whatever made or information sought relative to storms in the vicinity of the proposed channel or other things that might hinder, delay, or interfere in any manner with the prosecution and performance of the work.

IY. Soon after the contract was awarded plaintiff moved a dredging, plant onto the job and about September 9, 1921, commenced work. The plant consisted of a hydraulic dredge with 12-inch suction, 18 or 20 pontoons, the necessary pipe *100to carry the dredged material away, and scows to carry coal and water.

The dredge was known as the *Progress;*it was in good condition and repair when placed on the work and had sufficient capacity and was suitable to perform the work if the material had consisted of mud and sand overgrown with sea grass. It was not suitable for performing the work in the kind of material that was encountered on the job in question and proved entirely inadequate for such purpose.

The character and capacity of the plant was stated in the bid made by the W. H. French Dredging & Wrecking Co. and was approved by the United States Engineer office.

V. Plaintiff continued the prosecution of the work with the dredge *Progress*until the latter part of December, *1921,*when work was suspended for the winter. The capacity of this dredge was shown to be about 100 cubic yards per hour in material consisting of mud and sand. Its capacity was shown to be about 20 or 25 cubic yards per hour in the material met with in this instance.

YI. The material encountered in excavating the channel proved to consist of about 1 foot of mud covering a mixture of stiff sand and clay, principally clay, sometimes hard blue clay. Some stumps were encountered which were either blown up or dredged out, and the work was interfered with and delayed by stumps and storms. The dredge *Progress*was employed on the work 1,312 hours. During this period it did dredging about 411 hours, or 31.3 per cent of the time, and removed 9,957 cubic yards. The remainder of the time was devoted as follows: General repairs, 17.1 per cent; waiting for coal and water, 8.3 per cent; repairs to pipe line, 15.9 per cent; running anchors, 2.7 per cent; stress of weather, 20.4 per cent; miscellaneous, 9.7 per cent; and removing stumps, 8.4 per cent; total, 100 per cent.

VII. Work was resumed on the contract again in March, 1922, when the dredge *Gray Eagle*was employed. It was a 12-inch suction dredge with a 13-inch discharge and developed *33y3*per cent more horsepower than the *Progress.*

The *Gray Eagle*was shown to be in good repair when placed upon the work and had a capacity of about 150 cubic yards per hour when working in loose sand, and about 50 *101cubic yards per hour when working in material consisting of one-half clay and the other half sand, as was met in this instance.

The dredge *Gray Eagle*was employed on the work 1,082 hours. During that period it did dredging about 50 per cent of the time, or 516 hours, and removed 44,048 cubic yards. The remainder of the time was consumed as follows: General repairs, 15.2 per cent; waiting for coal and water, 0.4 per cent; repairs to pipe line, 13.3 per cent; running anchors, 5.9 per cent; stress of weather, 1.5 per cent; miscellaneous, 9.7 per cent; removing stumps, 4.2 per cent; total, 100 per cent.

VIII. The part of the work done by the dredge *Progress*covered the more exposed part of the area dredged, where the winds from the south and southeast struck with more or less force and violence, tearing loose the pipe lines at times and breaking up the pontoons. It was more protected and the storms interfered less during the time the *Gray Eagle*was in use.

A large part of the channel required to be dredged was on the eastern side of the island of Tangier and in area that was much exposed to storms at certain seasons of the year, and where the storms caused such high seas to run that it was very difficult to maintain the contractor’s plant for the execution of the work.

IX. The work was completed about July 12, 1922, and plaintiff was paid the contract price per cubic yard of 24.9 cents for the material excavated, amounting to $13,308.49.

X. The rental value of the dredge *Progress*with its crew and equipment thereon was $200 per day, and the rental value of the dredge *Gray Eagle*with its crew and equipment was $250 a day or $52,040 for both of'the two dredges for the period they were engaged upon the work.

The dredging began about September 9, 1921, and operations ceased on December 31 for the winter, and it was during this period that the *Progress*was in use. The dredge *Gray Eagle*was placed upon the work some time in March, 1922, and dredging operations were resumed April 1 and completed July 12, 1922.

*102XI. The last survey of the vicinity where the channel is located prior to the letting of the contract was made by Jacob Shlessinger, junior engineer, United States Engineer Office, in charge of field dredging in March, 1913. The blue print, of which plaintiff’s Exhibit 2 is a duplicate, is a map of the area around Tangier Island, and was on file in the engineer’s office for the information of bidders for the work in question, and formed a part of the specifications for the work. The soundings appearing on that map were made for the purpose of preparing a map of the area and to show the depth of the water over that area. They were not taken for the purpose of ascertaining the character of the bottom.

XII. It was a matter of common knowledge at Tangier and the vicinity where the channel was to be dredged and known by all who had occasion to use the old channel, the course of which was followed by the new channel, that it was interspersed with stumps to a greater or less extent along its entire distance. They were plainly visible at low tide to anyone passing through, inspecting, or using the channel, being about 10 inches below the surface of the water.

XIII. The expenses incurred by the plaintiff in performing the work was $26,214.08; the plaintiff was paid the sum of $13,308.49, the contract price agreed upon. The difference between the amount it was paid and what the work cost is the sum of $12,965.59.

The court decided that plaintiff was not entitled to recover.

Hay, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of $12,965.59.

The plaintiff claims that by reason of alleged misrepresentations made by the Government as to the material to be dredged it was much more difficult and expensive to dredge the materials found than it would have been to dredge the materials described in the specifications; and that by reason of these alleged misrepresentations of the Government the plaintiff was obliged to expend the sum of $12,965.59 more than it would have expended had the materials been such as were described in the specifications. The plaintiff alleges that it relied upon the statement in the specifications as to *103the character of the material to be dredged, and that it was induced to enter into the contract to dredge the material at the price of *24^¶*cents per cubic yard by the description of the material contained in the specifications.

> “ The burden of proving misrepresentation rests upon the party making the allegation. It is not to be presumed, and one may not simply show a different condition in some respects from that which the chart or blue prints of borings discloses, and rest his case upon the theory that the court must infer a misrepresentation. There must be some degree of culpability attached to the makers of the maps and charts, either that they were knowingly untrue or were prepared as the result of such a serious and egregious error that the court may imply bad faith.” Judge Booth in the case of *Midland Land*§ *improvement Co.*v. *United*States, 58 C. Cls. 671, 683.

In this case the specifications as to the character of the material to be dredged are as. follows:

“ The material to be recovered is believed to be principally of a sandy character overgrown with sea grass, 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.”

It was found when the work began that the material to be dredged consisted of mud covering a mixture of stiff sand and clay, principally clay, sometimes hard blue clay, with some stumps interspersed.

It is not proven that the United States or its officers had knowledge of this material which it failed to disclose to bidders, nor that the United States or its officers had any more knowledge of the material to be dredged than was stated in the specifications. As a matter of fact, the evidence in this case discloses that the plaintiff did not rely upon the statements of the specifications as to the character of the materials to be dredged, nor upon any statements of the United States or its officers as to what the material was or was believed to be. The plaintiff before making its bid and before it entered into the contract went upon the site of the work and made its own investigation, and during the course of it found that at least a part of the material to be dredged was clay. This investigation lasted about four *104hours, and no further investigation was made by the plaintiff before it entered into the contract. The plaintiff therefore entered into the contract with knowledge that a part of the material was not of the character described in the specifications. The plaintiff also knew that if there was any other material to be dredged except ledge rock it could only receive the contract price for its removal, the contract providing as follows:

“Work covered by price bid: The price bid per cubic yard for dredging shall cover the cost of removal and disposition of all material encountered except ledge rock. The removal of ledge rock, if found, will not be required; such work, if necessary, will be made the subject of separate contract. Material to be classified as ledge rock must be of such composition as, in the opinion of the contracting officer, shall require blasting for its removal and shall not include fragments of rock or bowlders capable of being raised by the dredge in one piece. Should ledge rock be encountered, the contractor shall remove therefrom all such overlying materials as, in the judgment of the contracting officer, can be removed by the use of the plant specified in the accepted proposal, or the equivalent of such plant.”

In the face of the above facts the plaintiff can not be allowed to found a claim against the United States upon the statement that it relied upon the specifications to determine the character of the material to be dredged. The belief as to the character of the material set out in the specifications is not a warranty upon which an action can be founded; it is only an expression of opinion. The allegation that the United States at the time of making the statement in the specifications as to the character of the material to be dredged knew that the stumps were to be found in or adjacent to the area to be dredged is not proven. If the opinion set out in the specifications had been known to be false by the officers of the United States, and had been so set out with intent to deceive and mislead, a different conclusion might be arrived at, but no such facts are proven.

For the reasons above stated the petition of the plaintiff must be dismissed. It is so ordered.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.