#### GEORGE F. PAWLING & CO. v. THE UNITED STATES 1

[No. C-1015.

Decided April 19, 1926]

*On the Proofs*

*Contract; misrepresentations.*— Where in the specifications given to bidders and later incorporated in the contract a description is given in good faith of the conditions to be encountered in the construction of a cofferdam, and the said specifications require prospective contractors to inform themselves of actual conditions at the site of the work, and the successful bidder, before submitting its bid, examines the site, it is not entitled to damages because, while afterwards working on its contract, it finds the actual conditions not to conform to those described in the specifications.

*The Reporter's*statement of the case:

*Mr. James Graig Peacock*for the plaintiff. *Mr. John W. Townsend*was on the briefs.

*Mr. Percy M. Cox,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, George F. Pawling *&*Co., is a corporation duly organized under the laws of the State of Pennsylvania, having its office and principal place of business in the city of Philadelphia, in said State.

On November 4, 1918, plaintiff, acting through its president, George F. Pawling, entered into a written contract with the defendant, represented by and acting through C. W. Parks, Chief of the Bureau of Yards and Docks, United States Navy, contracting officer, for the construction of a concrete road, a platform and ramp, a boathouse and piers, together with a scale pit and wince footing, and to furnish and install a seaplane and an electric wince, at the navy yard, Philadelphia, Pa. A copy of said contract and of the material parts of the specifications forming a part thereof is attached to plaintiff’s petition, marked “ Exhibit A,” and by reference made a part of these findings.

*124II. On June 30, 1919, plaintiff, represented by and acting through its vice president, James L. Fawley, entered into a supplemental agreement in writing with the defendant, represented by and acting through R. E. Backenhus, Acting Chief of the Bureau of Yards and Docks, United States Navy, modifying the original contract in certain particulars, and providing for the construction of a marine railway together with car for same in connection with the work covered by and included in the original contract. A copy of said supplemental agreement and of the material parts of the specifications forming part thereof is attached to plaintiff’s petition, marked “ Exhibit B,” and by reference is made a part of these findings.

III. The work contemplated by the original contract and the supplemental agreement, and to be done thereunder, was located in and along the shore of the Delaware River, and required the construction and maintenance of - a cofferdam of sufficient size, depth, and strength to facilitate and permit the carrying on and completion of the subaqueous work, such as cutting off and capping the piles and placing the concrete platform thereon, and such other under-water work as the contracts called for.

IV. The design or working plan for the cofferdam was prepared by the chief engineer of the Lackawanna Steel Co., Charles S. Boardman, the general outlines and plan of which were followed by plaintiff in constructing the cofferdam in question.

The plan of design for the cofferdam contemplated and required the construction of a timber crib of sufficient size and strength to inclose the area wherein the under-water work was to be constructed and to hold in place the steel-sheet piling which was to be driven around the inclosure.

Charles S. Boardman, who prepared the design or plan for the cofferdam, was a thorough, competent engineer of extended experience and a recognized authority on steel-sheet piling and cofferdam work.

The drawings and plans for the cofferdam were submitted to the officer in charge of the work, Oscar A. Mechlin, by the plaintiff some considerable time before construction of the same was started. The question of the strength and *125sufficiency of the cofferdam plaintiff proposed to construct was discussed on several occasions by the officer in charge of the work and the president and vice president of plaintiff’s company. The proposed plan for the cofferdam was not foi-mally approved by the officer in charge of the work, nor was it disapproved by him, he stating that no formal approval was necessary.

V. The woi’k to be done consisted of driving foundation piles, construction of cribwork for the support of the steel-sheet piling, placing of the cribwork, driving of the sheet piling, unwatering of the cofferdam, cutting off of the bearing piles and the placing thereon of a timber platform, and a proper depth of concrete to serve the purposes stated in the contract and the supplemental agreement.

YI. The sheet piling for the cofferdam was strips of steel 7 inches wide, one-fourth of an inch thick, and in lengths of 20 to 30 feet. The depth to which the inclosure within the cofferdam had to be excavated at the outer end and at the lowest point in the river bed was about 18 feet below mean high water, as indicated by the navy-yard datum in the vicinity of the site.

VII. After the construction of the cofferdam was well under way it was discovered that the elevation of the river bottom was from 2 feet to 6 feet lower than as shown by the contour lines on drawing No. 79284, which accompanied and was made a part of the contract specifications, and that mean high water was actually 0.8 feet higher than as shown on drawing No. 79284.

Upon the discovery of these errors in the specifications the plaintiff took all possible precautions to strengthen the cofferdam, but in spite of all precautions there occurred four successive blowouts of the cofferdam on October 11, November 3, November 11, and December 26, 1919, respectively.

After the first blowout it was further discovered that in the river bottom at the point where the blowout occurred there was a pocket of soft, silty material different from the general character of the river bottom. Subsequent investigation disclosed that about 25 years previous the United States had conducted extensive dredging and filling operations at or near the site of the cofferdam as a result of which *126silt pockets formed in the river bed in holes left by the suction dredges and clamshell excavators then used. At the time of designing and constructing the cofferdam the plaintiff did not know of these dredging operations, nor did the officers of the United States.

The failure of the cofferdam and the four resulting blowouts were caused by the reduced penetration of the piling as a result of the river bottom being from 2 to 6 feet lower than as plotted on contract specification drawing No. 79284 and by the cofferdam having to be raised 1 foot because mean high water was 0.8 foot higher than as stated on said drawing No. 79284, and by the existence of silt pockets which had formed in the river bed as a result of the previous dredging operations by the United States.

VIII. On September 10, 1919, the acting public works officer wrote to the plaintiff inviting the plaintiff’s attention to the outer end of the cofferdam around the ramp and marine railway, suggesting that there was considerable danger of a break under the steel piling when the excavation was made, particularly near the southeast corner of the cofferdam. The plaintiff was advised that it was expected to take all special precautions necessary to insure complete safety of the cofferdam. To this letter the plaintiff replied on September 19, 1919, and stated that it was taking all the precautions necessary to insure complete safety of the cofferdam. Of the four blowouts three of them occurred along the inner half of the cofferdam.

IX. The plaintiff relied upon the information given and furnished by the plans and specifications as to the water elevations, the character and kinds of material that would be and were encountered in the prosecution and completion of the work called for by the contract and the supplemental agreement, and also as to the levels of the river bottom and the depth of water over the various parts of the river bed, and made no attempt to verify said information by soundings or borings or by inquiry of any of defendants’ officers or others who might know of or were familiar with the facts and conditions relative to said matter.

*127some prior to the construction of the cofferdam, had been engaged on other parts of the work at the bank or shore of the river making excavations in the bank and the material there encountered was the same as the river bed in and around the cofferdam, except that in the latter instance the material was softer from being under the water.

X. The penetration of the sheet piling called for by the plans for the cofferdam was based on the information furnished in drawing No. 79284, which is a part of the contract. The design penetration was in accord with good engineering practice and was fully as great as was generally provided for cofferdams in material such as the original river bed at the site of the operation under conditions as shown by the specification drawing and by examination of the site. The cofferdam was constructed in substantial accordance with the plans as thus prepared.

XI. The specifications which are a part of the contract provided that bidders should have the privilege of examining the site of the work, and 'they were required to inform themselves thoroughly of the actual conditions and requirements. Full opportunity was given the plaintiff to examine the site of work; and before submitting its bid the plaintiff made an examination of the site of the work, and upon that examination the plaintiff relied; at the same time it chose to rely upon the statements made in the specifications as to underwater contour lines, as to the height of the river bottom or mean high-water datum, and as to the nature and quality of the soil at the site of the work. It was afterwards disclosed during the progress of the work that these conditions or some of them did not coincide with the conditions described in the specifications.

XII. The elevation of mean high tide appearing on the original plans and drawings was given at feet when it should have been 6 feet or 6X%- feet. The error was discovered after a part of the sheet piling had been driven, when the same was withdrawn and redriven so the top of* the cofferdam would be 2 feet above the corrected mean high-tide elevation. Extreme high-tide elevation was not given; *128records had been kept and were available at the Philadelphia Navy Yard showing 9 or 10 feet above mean low water. On several occasions during the progress of the work the tide reached levels above the top of the cofferdam, thereby filling and flooding it, and on one or more occasions while the work was in progress reached an elevation of 3 feet above mean high tide, being 1 foot over and above the top of the cofferdam.

XIII. Under the terms and provisions of the original contract the work in all its parts was to be completed within 115 calendar days from the date when a copy of the contract was delivered to the party of the first part. Copy of the contract was delivered to the plaintiff within two weeks from its date, some time in the month of November, 1918. Plaintiff without delay began the engineering work of designing the cofferdam and made every effort to secure necessary materials. By the terms and provisions of the supplemental agreement the work to be done under the original contract and the supplemental agreement was to be completed in all its parts on or before November 30, 1919. Applications for extension of time to complete the contracts were made, approved, and granted, and in the aggregate covered the entire period of delay; the work was completed and accepted March 13, 1920.

XIY. Because of the blowouts of the cofferdam and other causes the completion of the work was delayed until March 13, 1920, which was 104 days after November 30, 1919, the date on which the work was to have been completed under the terms of the contract.

Because of the blowouts of the cofferdam the plaintiff had to make repairs to the cofferdam by replacing the steel-sheet piling with other and in some cases longer and heavier piling and by additional filling to support the piling. The direct >cost of these repairs was $27,381.88, against which there should be offset $3,458.70, the proceeds of the sale of such piling as was purchased for use on the repairs and after-wards salvaged and sold. The net cost of the repairs was therefore $23,923.18, which was a reasonable and fair sum.

*129XV. Because of the blowouts of the cofferdam the construction work under the contract was not only delayed during the time necessary for the repairs to the cofferdam but was delayed into one of the most severe winters of record in Philadelphia, when the extreme weather caused deposits of great quantities of ice within the cofferdam and otherwise still further delayed the work. The disorganization of the work during these delays, the extra unwatering, and other additional work due to the blowouts, and the additional cost of the work, which had to be done in severe winter weather, caused a further loss or additional cost to the plaintiff of $26,619.64. The proof as to this item is not positive.

XVI. At the time settlement was made under the contract the plaintiff declined to sign a general release in favor of the Government because it had a claim then pending for the payment of the *$54,001.50*damages for which this suit is brought, and before the Government would pay the plaintiff the amount which the Government admitted to be due on said contract the plaintiff was compelled to consent to the withholding of 2 per cent of the amount of said claim; that is to say, the sum of $1,080.03, the Government stating that this 2 per cent deduction was made pursuant to a custom of the Bureau of Yards and Docks to require a contractor to consent thereto upon the Government paying over the balance without requiring a general release from such contractor. Such custom not being authorized by any statutory authority, plaintiff is entitled to recover the amount deducted.

The court decided that plaintiff was entitled to recover, in part.

1

 Writ of certiorari denied.

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of $51,622.85. This sum is made up of three items, as follows: $23,923.18, which was the cost to the plaintiff of repairing four blowouts in the cofferdam; $26,619.64, which was an alleged further cost caused to it by the said blowouts; and $1,080.03, which was withheld from it by the Navy Department. All of these items arose *130out of the contracts of the plaintiff of November *4, 1918,*and June 30, 1919, with the United States for the construction of a ramp and marine railway at the Philadelphia Navy Yard. The contracts, together with the specifications and provisions which are a part of the contracts, are made a part of the findings of fact.

The plaintiff alleges that its losses for which it is suing arose out of four blowouts of the cofferdam, which it alleges would not have occurred had it not been for the fact that the plaintiff was misled by statements made in the specifications as to the conditions at the site of the work, such as underwater contour lines, the height of the river bottom, and the nature and quality of the soil under the water. The plaintiff contends that it- planned the construction of the cofferdam to meet the conditions set out in the specifications, and insists that if the correct conditions had been as set out in the specifications the blowouts would not have occurred, and it would have suffered no loss, and there would have been no delay in the completion of the work under the terms of the contract. As the work progressed, some of the conditions described in the specifications turned out to be different from those so described. The questions therefore are whether the United! States is liable by reason of the statements made in the specifications, and can the plaintiff recover against the United States for the loss sustained by it, either on account of the representations made or because the actual conditions at the site of the work were different from those set out in the specifications. The pertinent specifications are as follows:

“ *Drawings accompanying specifications.*— The following drawings accompany this specification and will form a part of the contract. Said drawings are the property of the Government and shall not be used for any purpose other than that contemplated by this specification.

> Bureau Serial No. Slieet No. of Showing

> 79284 1 Platform and ramp.

> 79285 2 Sections and details.

> 79286 3 Piers and boathouse.

> # $ $ ‡

“ *Buried construction.*— Such information as the Government possesses regarding sewers, pipes, and other construe*131tion beneath the surface of the ground on the site of the work may be obtained from the officer in charge. The Government does not guarantee the information given to be correct or that other buried construction will not be encountered, and does not assume any risk or responsibility in connection therewith. Intending bidders will have the privilege of examining the site, and they should satisfy themselves as to existing conditions.

* * # * * * *

“ *Contours.*— Elevations of the ground in the vicinity of the work are indicated on drawing. These elevations are referred to the yard datum. Although the elevations indicate approximately the conditions that are likely to be found there, intending bidders will have the privilege of examining the site of the work and shall satisfy themselves as to actual elevations.

“ *Examination of site.*— Intending bidders are expected to examine the site of the proposed work and inform themselves thoroughly of the actual conditions and requirements before submitting proposals.”

From a reading of these specifications it will be seen that the United States made no specific representation as to conditions at the site of the work, except that it was stated on the maps or plans which were a part of the specifications what the elevation of mean high tide was; and also extreme high-tide elevation was given. These facts are set out in Finding XII; and in Finding IX will be found the facts as to soil of the river bottom. It will be observed that these specifications placed upon the plaintiff the responsibility of making an examination for itself. It did make an examination, but it chose to rely upon the information given it by the Government. It would not have been a difficult task for the plaintiff to have ascertained for itself the character of the soil under the water, and no representation was made to the plaintiff by the defendant as to what that character was; and as to the other conditions they were as plain to the plaintiff as they were to the defendant. The United States or its representatives did not conceal any knowledge which they had from the plaintiff; the statements made were true so far as they knew; they had no knowledge of any dredging operations which had taken place 25 years before this work was undertaken, and they did not speak with certainty as *132to the conditions at the site of the work, but left upon the plaintiff the responsibility of ascertaining and determining the conditions for itself. There was no misrepresentation by the United States, and that being so the plaintiff can not recover for the loss which it has incurred. The plaintiff took upon itself the responsibility of constructing a cofferdam suitable for the work. If its construction was faulty or if it was constructed in a manner which did not meet the conditions of the work, then the plaintiff must bear the losses resulting from its faulty construction. The main trouble seems to have been the character of the soil under the water, and as to this no representation was made to the plaintiff. We are therefore of opinion that the plaintiff is not entitled to recover the first two items of its claim.

The item of $1,080.03 has been withheld from the plaintiff without authority of law and the plaintiff is entitled to recover it. *McClintic-Marshall Co.*case, 59 C. Cls. 817; *Geo. F. Pending & Co. case,*60 C. Cls. 699.

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