#### BROOKS-CALLAWAY COMPANY v. THE UNITED STATES

[No. 44809.

Decided June 1, 1942]*

*690*Mr. George R. Shields*for the plaintiff. *King & King*were on the briefs.

*Mr. Newell A.*Clapp, with whom was *Mr. Assistant Attorney. General Francis M.*Shea, for the defendant. *Mr. Gaines V. Pdimes*was on the briefs.

*

 Reversed by the Supreme Court, 318 U. S. 120 ; *post,*page 729.

*697WhitakeR, *Judge,*

delivered the opinion of the court:

The plaintiff sues the defendant for the amount deducted as liquidated damages for delay.

The plaintiff had a contract to build lots A, B, and C of the Missouri Bend Levee, and lots A, B, and C of the St. Gabriel Levee. Both jobs had to be completed within 450 calendar days from the date of notice to proceed. The Missouri Bend Levee was completed 67 days after the date set for completion, and the St. Gabriel Levee was completed 223 days later.

The defendant originally deducted $5,800 for liquidated damages for a total of 290 days beyond the termination date. The plaintiff filed claim for the amount deducted. The contracting officer, in acting upon this claim, found that the plaintiff had been delayed during the contract period by high water on the Missouri Bend Levee 112 days, and on the St. Gabriel Levee 4 days, and that the normal expected delay during this period was 83 days on the Missouri Bend Levee, and 2 days on the St. Gabriel Levee, leaving 31 days’ delay due to high water which he held the contractor could not have foreseen. He also found that the plaintiff had been delayed by high water after the contract period 162 days on the St. Gabriel Levee, and none on the Missouri Bend Levee, *698and that the normal expected delay on the St. Gabriel Levee was 98 days. He held that the plaintiff was entitled to a remission of liquidated damages for the unexpected delay due to high water in the sum of $1,900, and this sum was remitted. The defendant retains the balance of' $3,900 liquidated damages for 195 days of delay, of which 183 days was delay due to high water, which the contracting officer held the contractor should have foreseen. The balance of 12 days was delay due to other causes hereafter to be mentioned.

The plaintiff says that it is entitled to recover the amount withheld for delay due to high water whether or not it could have been foreseen.

Article 9 of the contract provides for the deduction of liquidated damages for delay, with this proviso:

> Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather * * *.

This contractor, therefore, could not be penalized for delay due to unforeseeable causes. Among the things which are listed as unforeseeable causes are “acts of God, or of the public enemy, acts of the Government, fires, floods,” etc. It, therefore, would seem to follow that no amount should have been deducted for delay due to a flood. But the defendant contends that the proviso refers only to such floods as are unforeseeable. We think this position in untenable. The proviso does not mention unforeseeable floods, unforeseeable acts of God, unforeseeable acts of the public enemy, unforeseeable acts of the Government, unforeseeable fires, etc. All these things are unforeseeable. The proviso mentions them as among the tilings that are unforeseeable. The only cause, that is qualified is severe weather; the weather must be unusually severe. Moods are not qualified. Any flood is to be treated as an unforeseeable cause.

The construction of the word “including” is in harmony with the construction placed upon it by the courts in many *699cases. See *Montello Salt Co.*v. Utah, 221 U. S. 452, and many other cases cited in Vol. 20 of “Words and Phrases,” page 443, et seq.

This identical proviso was so construed in *Albina Marine Iron*Works, *Inc.*v *United States, 79*C. Cls. 714.

If there is any doubt about the correctness of this construction, that doubt ought to be resolved against assessing the penalty.

The other question is whether or not high water which stopped the work is to be considered as a flood, even though it did not overflow the levee. Webster’s dictionary defines a flood as “A great flow of water; a body of moving water; the flowing stream, as of a river; especially a body of water rising, swelling, and overflowing land.” The word frequently signifies an overflow, but it is not restricted thereto. Here we are convinced that it should not be so restricted because it is mentioned as one of the causes of delay and, therefore, means any rise in the water which caused cessation of work and delayed the contractor in the completion of the work. Apparently the water overflowed the banks of the river, but did not overtop the levee.

Another delay for which liquidated damages were deducted was alleged to have been due to the requirement by the contracting officer that the work begin at the upstream portion of the work instead of the downstream portion, as the contractor desired. This is alleged to have necessitated the building of a tie-in levee in order to take care of approaching high water. Had the work started at the downstream end, it is alleged this would not have been necessary.

It was well within the province of the contracting officer to order the work to start at the upstream end of the construction. Paragraph 17 of the specifications reads:

> 17. *Order of work.*— The contracting officer shall have power to designate the exact'localities at which the work shall be prosecuted; also the proportion of the force that shall be worked at any designated locality; and the time when sodding and other incidental work shall be done.

Moreover, when the contracting officer on October 27,1931, directed the plaintiff to begin construction at the upstream *700end of the work, the plaintiff replied on October 30, 1931, agreeing to do so. No protest against the order was entered.

The plaintiff also complains that it was unnecessary to build the tie-in levee., but that it should have been permitted to continue with the construction of the main levee.

It was within the discretion of the contracting officer to order the construction of this tie-in levee. Paragraph 37 of the specifications provides in part:

> In anticipation of destructive floods during the progress of the work, the contracting officer may require a * * * temporary protective levee to be built in front of the work, upon such location and of such dimensions as he may direct. If such a protective levee is built the contractor will be paid the contract price per cubic yard * * *.

When the building of this tie-in levee was ordered the river was rising at the rate of about a foot a day, and flood stages were predicted. The plaintiff believed that it could complete the construction of the levee before the flood arrived. But the contracting officer was of a different opinion, or at least thought that it would be risky to take this chance. This was a matter committed to his judgment.

Furthermore, when the plaintiff was first directed to build this tie-in levee, it orally protested and requested authority to continue working along the new levee line, but this request was refused and the plaintiff was directed to build the tie-in levee as ordered. Thereupon, plaintiff proceeded to build it without further protest, and without any appeal to the head of the department. Under such circumstances the plaintiff cannot complain here of the order of the contracting officer.

Plaintiff is entitled to recover of the defendant liquidated damages deducted for the 183 days it was delayed by high water, or a total of $3,660.00. It is so ordered.

Jones, *Judge;*Littleton, *Judge;*and Whaley, *Chief*Justice, concur.

Madden, Judge,

dissenting in part:

Plaintiff claims the right to an extension of the time of performance of the contract for the number of days that it *701was delayed by high water which made work on the project impossible, even though such high water and the greater part of its duration was normal, seasonal, and anticipated. Plaintiff bases this argument upon the following portion of Article 9 of the contract':

> Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government,, fires, floods, epidemics, quarantine restrictions, strikes,, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes: * *

I think plaintiff’s interpretation of this provision is not tenable. The whole.purpose of the proviso is to prevent contractors from being penalized by forfeiture of their contracts or by the assessment of liquidated damages because they encounter unanticipated obstacles to prompt performance. The proviso is advantageous to the Government also because it enables bidders to submit bids based, so far as the perils of forfeiture and liquidated damages are concerned, on normal and foreseeable events, rather than upon events which might occur, although they probably will not. In accordance with this purpose, and with the normal meaning of the words in the sequence in which they are here found, the events listed under the “including”1 phrase must each be intended to be unforeseeable. Not every fire- or quarantine or strike" or freight embargo should be an excuse for delay under the' proviso. The contract might be one to excavate for a building in an area where a coal mine had been on fire for years, well known to everybody, including the contractor, and where a large element of the contract price was attributable to this known difficulty. A quarantine, or freight embargo, may have been in effect for many years as a permanent policy of the controlling government. A strike may be an old and chronic one whose settlement within an early period is not expected. In any of these situations there would be no possible reason why the contractor, who of course anticipated *702these obstacles in his estimate of time and cost, should have his time extended because of them.

The same is true of high water or “floods.” The normally-expected high water in a stream over the course of a year, being foreseeable, is not an “unforeseeable”, cause of delay. Here plaintiff’s vice-president testified that in making its bid plaintiff took into consideration the fact that there would be high water and that when there was, work on the levee would stop. Without this testimony we would have known that plaintiff did so. Its time was extended, in the contract, for normal and foreseeable high water. There is no reason why we should grant a further extension of the same number of days for the same cause. Allowance should be made, as was done by the contracting • officer, only for the number of days of unforeseeable high water.-

I do not regard the provision for an agreed sum as liquidated damages for noncompletion of the work at the time set by the contract as penal in its nature, so as to justify.a forced interpretation of the language of the contract, .leaving the defendant, without remedy fox'- the breach of the contract, according to its normal meaning.

ON REMAND BY THE SUPREME COURT

[Decided March 1,1943]

Whitaker, Judge,

delivered the opinion of the court:

This case is before us on remand by the Supreme Coui't with instructions to determine whether respondent is con-eluded by the findings of the contracting officer on the question of delays due to high water, and, if not, for a finding whether the 188 days of high water or any part of that time were in fact foreseeable.

We did not make a finding on- the finality of the findings of the contracting officer, which the Supreme Court denominates a threshold determination, because in this court neither of the parties raised such an issue either at the threshold of the case or at any other time.- They did not raise such an issue because the contracting officer’s findings apparently were sent direct to the Comptroller General and were never *703sent to the plaintiff. The plaintiff appears to have been first advised of them by the Comptroller General in making final settlement of the amount due under the contract.

The only evidence relative thereto is plaintiff’s exhibit No. 2, which is correspondence between the parties relative to plaintiff’s claim for remission of liquidated damages deducted. This shows that on J anuary 25, 1934, the plaintiff inquired of the office of the United States Engineer of the Second New Orleans District as to the status of its claim for remission of liquidated damages. On January 25,1934, that office acknowledged receipt of the claim and stated that it would be investigated “and the claim will be forwarded to the General Accounting Office for settlement.” Oh J anuary 27, 1934, the plaintiff asked the United States Engineer’s Office to advise it “as soon as your recommendations have been sent to Washington so that we may follow up this claim for payment.” In reply plaintiff was advised on February 17, 1934 that its claim “was forwarded on February 14 to the General Accounting Office with recommendations and is now on its way through proper channels to final settlement.” Nothing further appears until the “Notice of Settlement of Claim,” dated April 10, 1934, was forwarded to plaintiff by the Comptroller General. This sets out the findings of the contracting officer on this question as follows:

> The contracting officer has found with respect to the delay in the completion of Section C of the Missouri Bend Levee that there was a delay of 112 calendar days on account of high water during the contract period, that the normal expected delay on account of high water during this period was 83 days, that the normal expected delay subsequent to the contract period was 42 days and that the delay due to high water during the contract period occurred on Section A, which delay postponed the commencement of work on Section C. The contracting officer then finds that the delay which occurred on Section A of the Missouri Bend Levee caused a delay of 29 days in the completion of Section C. It therefore appears that there was an unforeseeable delay of 29 days in the completion of this Section.

> With respect to the delay in the completion of Section C of the St. Gabriel Levee the contracting officer has found that there was a delay of 166 calendar days on account of high water, of which 100 calendar days were *704considered foreseeable, being the normal expected delay for the period. It therefore appears that there was an unforeseeable delay of 66 days in the completion of this Section due to high water.

> With reference to the delay in the beginning of work on Section C of the St. Gabriel Levee on account of the failure of the Levee Board to furnish right of way, the contracting officer has found that the injunction enjoining the Levee Board from furnishing the necessary right of way was dissolved prior to the actual commencement of work on this Section, consequently the remission of liquidated damages alleged to have been deducted for this reason is not authorized.

> It appearing that the contractor was delayed 29 calendar days in the completion of Section C of the Missouri Bend Levee and 66 calendar days in the completion of Section C of the St. Gabriel Levee, because of unforeseeable conditions over which it had no control, the remission of liquidated damages for 95 days at $20.00 per day or $1,900.00 is allowed.

> The contracting officer having found that the cause of the other delays were not excusable under the terms of the contract, such finding is final and conclusive and it follows that no amount in excess of $1,900.00 may be allowed.

Since the defendant did not contend that the findings of fact of the contracting officer were conclusive, there was no positive evidence that this was the first time plaintiff was apprized of these findings, but it is to be inferred that it was.

This was long after the work had been concluded. The work on the Missouri Bend Levee was completed on March 22, 1933, and on the St. Gabriel Levee on August 25, 1933; the communication from the General Accounting Office was dated April 10,1934. These findings of fact not having been communicated to plaintiff prior to final settlement by the General Accounting Office, there was no opportunity to appeal to the head of the department as provided for in the contract, and the findings of fact of the contracting officer, therefore, are not conclusive on the parties in this case. Cf. *Austin Engineering Company*v. *United*States, No. 43364, decided October 5, 1942, 97 C. Cls. 68. After this final settlement had been made the department concerned no longer had jurisdiction of the matter. The settlement was *705final and conclusive upon it. Act of July 31, 1894, c. 174, sec. 8, 28 Stat. 208, as amended by sec. 304 of the Act of June 10,1921, 42 Stat. 24. The time for appeal to the head of the department was before final settlement, not after. This right of appeal was denied plaintiff by the failure of the contracting officer to'apprize it of his findings.

Were the 183 days of high water foreseeable?

During the taking of testimony plaintiff’s counsel conceded that high water was to be expected every year. He stated, in fact, that he relied upon the contracting officer’s decision. That officer determined that 183 days of high water were foreseeable. This was based on a daily record of the stages of the river at the location of the levee over a ten-year period. For the period of time covered by the contract the average number of days of high water over this ten-year period was 183 days.

In accordance with the above the court made the following

SUPPLEMENTAL FINDINGS OF FACT

1. The findings of fact of the contracting officer on the number of days of delay due to high water, which were foreseeable and which were not foreseeable, were not communicated to the plaintiff. It was not advised thereof until April 10,1934, when it received the notice of final settlement from the Comptroller General. The Missouri Bend Levee had been completed on March 22, 1933, and the St. Gabriel Levee on August 25,1933.

No appeal was taken from the contracting officer’s findings to the head of the department.

2. Based upon the experience of the eight or ten years preceding the execution of the contract, the plaintiff reasonably should have expected that it would be delayed by floods during the performance of the contract a total of 183 days.

The conclusion of law heretofore rendered was vacated and there was substituted in lieu thereof the following

CONCLUSION OF LAW

Upon the special findings of fact, as above supplemented, which are made a part of the judgment herein, the court *706concludes as a matter of law that plaintiff is not entitled to recover and its petition is dismissed.

Judgment is rendered against plaintiff for the cost of printing the. record herein, the amount thereof to be entered by the cleric and collected by him according to law.

The Supreme Court having held that the plaintiff was not entitled to remission of liquidated damages if high water was foreseeable for the period stated, plaintiff is not entitled to recover and its petition, therefore, is dismissed. It is so ordered.

Madden, *Judge;*Littleton, *Judge;*and Whalex, *Chief*Justice, concur.

Jones, Judge, took no part in the consideration of this case on remand.