
    SAN FRANCISCO BRIDGE CO. v. THE UNITED STATES.
    [No. 21862.
    Decided January 3, 1905.]
    
      On the Proofs.
    
    An appropriation act authorizes the dredging of Mare Island Strait channel to a depth sufficient to enable all classes of naval vessels to reach the navy-yard. The details are committed by the statute to the Navy Department A contract accordingly is entered into. It provides that the material shall be measured in place, the amount excavated to be determined immediately before and after the dredging. The claimant completes the work and is paid, less the reserved percentages. After an interval long enough for silt to accumulate the defendants’ officers demand that the claimant shall excavate and remove the silt. The contract provides “in case of dispute as to measurements or soundings the commandant shall have the final decision, which, shall he binding and without appeal.” He decides that the contractor must remove the silt.
    I.Where a statute appropriates money for the dredging of a channel sufficient to enable all classes of naval vessels to pass through, but the details are committed to the Navy Department, a contractor doing the work has neither authority nor control to effect the object of the statute, and is controlled solely by the terms of the contract.
    II.Where a statute requires the excavation of a channel of a prescribed depth and provides a system of measurements, to be determined by surveys, “immediately before and after the dredging,” the contractor is not responsible for the accumulation of silt subsequently without fault, it being a foreign substance and not part of the excavated material.
    III.Where the settling of silt in a channel was not thought of by the parties when they made a dredging contract, and there was no intention that the accumulation should be removed by the contractor as a part of the contract work, it can not be regarded as a matter to be submitted to the decision of a third person who is authorized by the contract to determine disputes “ as to measurements or soundings.”
    
    
      
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. On June 23, 1897, the Government advertised for bids for certain dredging at the United States navy-yard, Mare Island, Cal., to be indorsed “ Proposals for extension of quay wall.” “ Dredging a channel in Mare Island Strait, and other dredging,” respectively. 'It was stated in the advertisement for said bids that specifications and blank forms of proposal would be forwarded on application to the Bureau of Yards and Docks or to the commandant of the navy-yard at Mare Island, Cal.
    The specifications referred to in said advertisement were as follows:
    . “ Specifications for dredging a channel in Mare Island Strait
    
    
      to enable all classes of naval vessels to reach the navy-
    
    
      yard; and other dredging at navy-yard.
    
    “ ACT APPROVED MARCH 3, 1897.
    “ MARE ISLAND STRAIT DREDGING.
    “ 1. The original hardpan (if any), rock (if any), and the deposit of clay, mud, silt, and other material, together with obstructions of every kind to be moved, are located in the outer bar and main channels, within the rectangles and 28-foot contours, as shown on the blueprint on file in the office of the department of juirds and clocks at the navy-yard, Mare Island, Cal. These areas are to be dredged, for widths of COO feet and 400 feet, respectively, to a depth 28 and 30 feet below the plane of reference, which is the average of the lower low waters, and reads 2.63 feet on the staff tide gauge located at the magazine wharf; no hummocks, ridges, or other obstructions to be left projecting above the plane of the bottom at this depth. The bounding limits of the areas to be dredged shall be marked in such way as shall be mutually satisfactory to the Government and the contractor. The expense of the original marking will be borne bjr the Government, but subsequent change, for the mere convenience of the contractor, shall be borne by him.
    “ DREDGING AT THE NAVY-YARD.
    “ 2. The material to be dredged, consisting of the original hardpan in places, and the deposit of clay, mud, silt, and other material, including obstructions of all kinds, extends along the water front of the yard, to be dredged for a width of about 100 feet to a depth of water of 30 feet at mean low tide, measured from a point 10 feet 0 inches below the coping of the dry dock near the entrance. The material from this portion must be deposited upon the yard by the hydraulic process, or any other method preferred by the contractor, in such place or places as the officer in charge shall designate, and retained by proper bulkheads where necessary.
    “ 3. Material dredged from the strait must be deposited above the plane of low water, within proper bulkheads, which shall be built and maintained by the contractor in such manner as to prevent seepage of the spoils, and be provided with proper overflows so placed that there shall be at them no escape of the excavated material. For the deposit of this dredged material the tule land of Mare Island, about 117 acres in extent, south of the -working portion of the yard, may be utilized, but the contractor shall be at liberty, should this area prove insufficient, to provide, at his own expense, such additional depositing area as shall be satisfactory to the inspecting officer. In no case, however, shall the spoils be discharged, directly or indirectly, into the water area or channel ways, except that, if scowed, they may be placed on the flats west of the island at least 1 mile north of the light-house, subject to the approval of the engineer officer of the district. The contractor may deposit the dredged material by the hydraulic process, or any other method preferred by him, but whatever method is employed shall interfere with'the use of the channels as little as possible, and be without leakage.
    “ 5. The contractor will be given every facility to do the work in his own order and his own manner, provided these are satisfactory, but the commandant shall have power to suspend work at one point and have it undertaken at another, or to be performed in a certain sequence, if, in his judgment, the interests of the Government require it.
    “ 6. Bids will state the price per cubic yard for the dredging as a whole. The amount to be dredged is approximately 100,000 cubic yards in the outer bar, and 900,000 in the' main channel, and 130,000 at the northern part of the yard; but the Government reserves the right to increase or decrease these amounts, or increase or decrease the widths of the proposed channels, if deemed necessary, upon the written authority of the Chief of the Bureau of Yards and Docks. ■
    
      i\i i¡: * * '!•'
    
    “ 8. All material shall be measured in place, the amount excavated being determined by careful surveys immediately before and after the dredging. No allowance will be made for increase of bulk in removal. In case of dispute as to measurements or soundings between the inspecting officer and the contractor, the commandant shall have the final decision, which shall be binding and without appeal.
    
      “ 10. The contractor shall commence work within thirty days from the date of the signing of the contract and continue without interruption; the entire work to be completed in five hundred days from the date of contract.
    “ 22. Payments will be made monthly, as the work progresses, with a reservation of 10 per cent from each payment, which will be held until the full and satisfactory completion of the contract; and final payment shall be made only after thorough inspection and soundings by the inspecting officer and upon a certificate by him that all parts of the contract have been complied with.”
    On July 29,1897, the Government forwarded to the claimant the following acceptance of the foregoing offer:
    “ DEPARTMENT OP TIIE NaVT,
    “ Bureau of Yards and Docks,
    “ Washington, D. 0., July Wth, 1897.
    
    “Gentlemen: Referring to your offer dated July 20th, 1897, tendered in pursuance of the Bureau’s advertisement, dated June 23rd, 1897, for dredging a channel in Mare Islancl Straits, and other dredging at navy-yard, Mare Island, according to plans and specifications referred to in said advertisement and offer, for the sum of ten and seventy-four hundredths cents (lOyVü) per cubic yard, the Bureau has to inform you that your offer has been accepted accordingly.
    “A form of contract and bond for the above-named dredging, in duplicate, is herewith enclosed for your execution, which please have attended to and returned to the Bureau within fifteen days from the date of this letter.
    “A bond for the sum of $25,000 with satisfactory sureties, preferabty a first-class trust and surety company, for the faithful performance of the contract, is required.
    “ Very respectfully,
    “ E. O. Matthews,
    “ Chief of Bureau of Yards and Boohs.
    
    “ San FraNCIsco Bridge Co.,
    
      “ (J. McMullen, President),
    “ J$ Market Street, San Francisco, CalP
    
    
      II. Pursuant to the claimant’s proposal and the acceptance of the same by the Bureau of Yards and Docks, hereinbefore set forth, the following contract was entered into on the 17th day of August, 1897:
    “ This contract, of two parts, made and concluded this 17th day of August, A. D. 1897, -by and between the San Francisco Bridge Company, J. McMullen, president, of San Francisco, California, as principal, and the Fidelity and Deposit Company of Maryland, a corporation of Maryland, of Baltimore City, Maryland, as surety, parties of the first part, and the United States by E. O. Matthews (Chief of the Bureau of Yards and Docks), acting under the direction of the Secretary of the Navy, party of the second part,-witnesseth, that for and in consideration of the payments hereinafter specified, the parties of the first part, for themselves and their personal and legal representatives, do hereby covenant and agree to and with the party of the second part as follows, viz:
    . “ That they, the said parties of the first part, will provide, furnish, and deliver, at their own risk and expense, at such place or places at the U. S. navy-yard, Mare Island, California, within five hundred days from the date of this contract, all the necessary materials and labor, tools, and appliances for the prosecution and completion, in all respects, of dredging a channel in'Mare Island Strait to enable all classes of naval vessels to reach the navy-yard; and other dredging at navy-yard, Mare Island, California, in strict accordance with and subject to all the conditions and requirements of the plans and specifications appended hereto, and which form a part of this contract, for the sum of ten and seventy-four one-hundredths cents (lÓ-^c.) per cubic yard.
    “ It is hereby mutually and expressly covenanted and agreed, and this contract is upon the express condition, 'that .no member of or delegate to Congress, nor any officer of the United States', naval, military, or civil, is, or shall be, admitted to any share or part of this contract or to any benefit to arise therefrom; that any transfer of this contract, or of any interest therein, to any other person or party than said parties of the first part shall annul this contract so far as the United States are concerned; and that if said parties of the first part shall fail in any respect to perform this contract on their part, it may, at the option of the United States, be declared null and void, without prejudice to .the right of the United States to recover for defaults herein or violations hereof; and that for such default the United States may demand and recover of said parties of the first part, and their representatives aforesaid, as liquidated damages, a sum of money equal to the penalty of the bond forming part of this contract.
    “And it is further agreed by the parties of the first part that they will protect and defend the party of the second part in the full and free use and enjoyment of any and all patent rights to anjr invention, machine, or device which may be applied as a part of the work herein specified and contracted for, either in its construction or use after completion, against the demands of all persons whomsoever.
    “And it is further agreed that if during the progress of the work it shall be deemed bjr the Government necessary or desirable to make any changes or modifications in the plans and specifications affecting the cost, said changes or modifications and the increased or diminished compensation to be paid the contractor must be agreed to in writing by the parties to the contract before the same is begun; and such increased or diminished compensation based upon the actual cost, and when exceeding $300, shall be assessed by a board of naval officers appointed for the purpose.
    “And this contract further witnesseth, that the United States, party of the second part, in consideration of the foregoing stipulation, do hereby covenant and agree to and with the parties of the first part, and their said representatives, as follows, viz:
    “ That for and in consideration of the faithful performance of this contract by the parties of the first part, duly certified to bjr the inspecting officer appointed for that purpose by the Secretary of the Navy, and the acceptance of the work as satisfactory on the part of the United States, there shall be paid to the said parties of the first part, for the full and entire completion of the said dredging in Mare Island Strait, and at navy-yard, Mare Island, California, the sum of ten and seventy-four one-hundredths cents (10 74/100c.) per cubic yard upon approved bills properly certified and drawn in the usual manner, and payable at such navy pay office as the parties of the first part may elect, within ten days after warrants for the same shall have been passed by the Secretary of the Treasury, and in the following manner, viz:
    “ 22. Payments will be made monthly, as the work progresses, with a reservation of 10 per cent from each payment, which will be held until the full and satisfactory completion of the contract; and final payment shall be made only after thorough inspection and soundings by the inspecting officer, and upon a certificate by him that all parts of the contract have been complied with.
    “ It is mutually understood and agreed, as aforesaid, that no payment or allowance to said parties of the first part will or shall be made by the United States, for or on account of this contract, except those payments herein specified; that ten per cent will be withheld from the amount of each payment herein stipulated as security for the full completion and performance of their co.venants and agreements by the said parties of the first part; and that ninety per cent of each of said payments shall be made within ten days after a warrant therefor shall have been passed by the Secretary of the Treasury.
    “ In witness whereof the said parties hereto have hereunto set their hands and seals, at-, this 17th day of August, A. D. 1897.”
    III. In September, 1897, the claimant entered upon the performance of said contract, and prosecuted the work provided for in it, according to the specifications referred to therein, to the satisfaction' of the officer of the Government and with their approval, until January 17, 1898, when F. IT. Greene, the inspecting officer, served upon claimant’s superintendent the following notice:
    “ U. S. Navy-Yard, Mare IslaNd, Cal.,
    
      “Jan. 17,1898, £ p. m.
    
    “ Sir : By direction of civil engineer of the yard, you will quit dredging upon the outside of your present location and shift to sta. 0, on inside the 400 ft. channel line, as now designated, and dredge to a depth of 28 feet below mean low water. This to go into effect at once.
    “ Very respectfully,
    “ Frank IT. Greene, Inspector.
    
    “ To B. A. Perry, Slept. San Francisco Bridge Go."
    
    This was followed on January 19, 1898, by a letter from the commandant of Mare Island Navy-Yard, in which that officer said:
    “ Commandant’s Oeeice,
    “ Navy-Yard, Mare Island, Cal.,
    
      “January 19th, 1898.
    
    “ Gentlemen: You will do no further dredging in channel of Mare Island Strait as at present marked out, north of station 68. In dredging south of station 68 in Mare Island Strait, you will dredge to a depth of 28 feet mean low water.
    “ Respectfully, “ W. A. Kirkland,
    “ Rear-Admiral, U. S. N.,
    
    “Commandant, Navy-Yard and Station.
    
    “ San Francisco Bridge Company,
    “ San Francisco, GaV
    
    IV. Shortly before said order of the commandant was made, R. C. Hollyday, -the civil engineer of the navy-yard, completed a resurvey of the areas to be excavated pursuant to said contract, and on December 31, 1897, reported to said commandant the result thereof, in a letter addressed to him, which, omitting the portions thereof not material to the present suit, is:
    “ U. S. Navy-Yard, Mare Island, Cal.,
    
      “December 81st, 1897.
    
    “ Sir : I have the honor to submit map and profile showing channel of Mare Island Strait and outer bar; also other dredging at navy-yard being dredged under appropriation Mare Island, Cal.
    
      “ This map shows the result of the completed survey. It shows that the amount of material in—
    Cubic yards.
    Mare Island Strait within the lines laid down to be_ 1, 595, 849
    On the outer bar within the lines laid down to be_ 194, 294
    For a strip in front of the navy-yard, 140 ft. wide- 175, 055
    For a strip between the channel proper and the area to be excavated in front of navy-yard_ 100, 404
    Malting a total of- 2, 071. 602
    “ This amount considerably exceeds the amount supposed to be within the lines laid down to be excavated by the specifications for this work. At the time that the specifications were written no detailed survey had been made.
    “ The.Bureau’s attention is called especially to the fact that the specifications were drawn and the contract let on the basis that the areas laid out to be dredged could be completed to the required widths and depths specified, and the work has been carried on as though that were the case. It will therefore bé seen that when the present appropriation is used up it might happen that no part of the work would be entirely completed.
    “ No excavation has yet been done on the outer bar. No excavation has yet been done on the portion laid off in front ^of the navy-yarcl. In the main channel there has been material excavated from station 0 to station No. 9; from station No. 25 to station No. 28; from station No. 68 to station No. 176. A very small portion of this distance is entirely completed; that is to say, where there has been work, the channel as laid down is in an uncompleted state.
    “ The exact figures for the expenditures up to January 1, 1898, for making surveys, supervision, preparing basins so that material could be put in them (removing material, &c.), marking channels, &c., are as follows:
    Appropriation dredging Mare Island Strait_$4,433.45
    Dredging in front of navy-yard (excavating trench across strait _ 4,718.88
    “To complete the project as laid down in the specifications for this work, and shown in detail on map which I hereby submit, assuming that the work could be completed at the present contract price, I estimate as follows:
    2,071,661 eu. yds., at $10.74_$222, 400. 82
    Incidentals and supervision_ 12, 503.18
    Dredging trench across strait (authorized)_ 4, 675. 00
    Making a total of_ 239, 675.00
    “ I respectfully request that if the Bureau desires that any portion of the work be entirely completed under the present appropriation, that orders be issued to that effect. If the present appropriation is used up without portions of the work being completed, it would necessitate the completion of such work under future contracts, which would certainly mean a considerable increase in price. Attention is called to the fact that in relaying off the work the channel could not be made narrower at points where work has already been done nor could a less depth be called for at such points, for the reason that considerable of the work has been carried to the required depth.
    “ The surveys and their result has just been completed, and I submit this information to you at the earliest possible moment.
    “ Very respectfully, “ R. C. Hollydat,
    
      “Civil Engineer, IT. 8. N.
    
    “ To the COMMANDANT,
    “Navy-Yard, Mare Island, Oal
    
    The foregoing communication having been forwarded to the Bureau of Yards and Docks, E. O. Matthews, Chief of the Bureau, sent to the commandant a letter, which, omitting the portions not material in the present suit, is as^ follows:
    “ Department of the Navy,
    “ Bureau of Yards and Docks,
    “Washington, I). £7., January 10, 1898.
    
    “ Sir : The Bureau is in receipt of the letter of Civil Engineer Hollyday, of the 31st ult., with accompanying plan showing the limits of the dredging, as proposed, under the contract with the San Francisco Dredging Company.
    “ If the present estimates of quantities, made at the yard, are upon the basis of a 30-foot channel north of the outer bar, be pleased to have them revised upon a basis of a 28-foot channel, with 30-foot depth along the yard front, as now proposed, and provided for in the specifications.
    “ It is important to have channel over outer bar 28 feet and yard front 30 feet; also the channel to the yard .past the rock should be cleared for the deepest draft-vessels, 28 feet if possible, and then 28 feet anchorage abreast yard outside the 30 feet.
    “Very respectfully,
    “ E. O. Matthews,
    “ Chief of Bureau Y. and D.
    
    “ To the Commandant,
    “Navy-Yard, Mare Island, Cal.”
    
    Oil January 26, 1898, the civil engineer of the navy-j^ard addressed to the commandant a letter, which, omitting the portions thereof not material in this suit, is as follows:
    “ IJ. S. Navy-Yard, Mare Island, Cal.,
    
      “January 1898.
    
    “Sir: Deferring to Bureau’s letter No. 120, dated January 10, 1898, relative to dredging the main channel in Mare Island Strait 28 feet:
    “ I have the honor to submit a ‘ Map and profiles showing channel in Mare Island Strait and outer bar, also other dredging at the navy-yard,5 dated January 25th, 1898.
    “ The amount of material in channel of Mare Island Strait front station 0 to station No. 230, on the basis of 28 feet below mean water, is 1,227,860 cu. yds. There has been excavated up to January 17, 752,726 cu. yds. Of this material, aq>proximately 145,000 cu. yds. have been excavated between the 28 and 30 ft. depth; that is to say, 145,000 cu. yds. have been taken out below the depth which the Bureau desires the channel to be dredged. This would leave to be excavated in the channel of Mare Island Strait on the lines of the channel laid down and to a depth of 28 ft., 620,134 cu. yds. There lias been expended under this appropriation for all purposes up to January 1st, 1898, $75,805.18, and the amount excavated from January 1 to January 17 is 87,246 cu. yds., which will require an expenditure for excavation and supervision of $9,599.75, making a total expenditure to January 17, for all purposes, $85,404.93; this would leave a balance under the appropriation of $64,595.07. Of this amount I estimate that at least $6,000 will be required for supervision and incidental expenses, leaving $58,595.07, which would excavate 545,578 cu. yds. If it is determined to complete the outer bar — work which amounts to 194,294 cu. yds.— there would remain 351,284 cu. yds. to be excavated; that is to say, there would be money available for excavating that amount after the outer bar was completed.
    “ To complete the channel from station No. 68 to station 230 would require the excavation of 448,122 cu. yds. on the basis of 28-ft. depth, but by lessening the width of the channel from station No. 136 south, the excavation of 351,284 cu. yds. (for which there will be money available to move) could complete a channel to a depth of 28 feet, which would be wide enough for deep-draft vessels to navigate. This would give a completed channel up to station No. 68, at which point the main channel will lead into the channel excavated next to the quay wall, which will be 30 ft. in depth and 115 ft. in width. If this proposition is entertained by the Bureau, it will be advisable to continue the width of the channel to a full width down to station No. 160, and then commence to draw in the width of the channel from that point south, for the reason that it is advisable to excavate the channel the full width opposite Commission Bock.
    “ If no work was done on the outer bar, the channel in Mare Island Strait could be completed from station No. 230 to station No. 68 to the width as now laid out and to a depth of 28 ft. (a part of the channel being already dredged to a depth of 30 ft.), and there would remain sufficient money unexpended to excavate 94,456 cu. yds. This amount of excavation would materially improve the situation by excavating a strip on the east side of the dredging in front of the quay wall. I estimate that the strip would be about 75 ft. in width from station No. 68 to station O. This would make the total width of excavation in front'of the quay wall 190 ft.
    “ As it will be seen by the map of the outer bar, the shallowest water is 17 ft. of mean low water; this would give 23 ft. at high water. The bottom is silt and very soft, about the same as in Mare Island Strait. If a vessel should touch on the bar, it does not follow that she would be injured, as I understand that' it is nothing unusual for vessels to go through this soft mud when their keel is 3 or less ft. in the mud.
    “ Very respectfully,
    “ B. C. IÍOLLXDAY,
    “ Civil Engineer, U. S. N.
    
    “ To the COMMANDANT,
    
      “ Navy-Yard, Mare Island, GaV
    
    On January 20, 1898, the claimant addressed to the commandant a letter, which, omitting the portions thereof not material in the present suit, is as follows:
    “ San FRAncisco, Cal., January Wth, 1898.
    
    “ W. A. KiRkland, Bear-Admiral, U. S. N.,
    “ Commandant Navy-Yard and .Station,
    
    “ Mare Island, California.
    
    “ SiR: Your letter of the 19th instant, as follows, at hand and noted: ‘ You will do no further dredging in channel of Mare Island Strait, as at present marked out, north of station No. G8. In dredging south of station No. G8 in Mare Island Strait you will dredge to a depth of 28 feet mean low water.’
    “ We respectfully submit that the same requires us to do something not provided for in our contract with the Government, viz: To dredge the channel to a depth of 28 feet onty, while the contract expressly provides that we are to dredge it to 30 feet. Hence, we have to request that this matter be submitted to the Bureau at Washington, and if the dredging is to be conducted differently from what is provided for in the contract that it be mutually agreed upon between ourselves and the Department as to what the changes from the original contract are to be. We are quite willing to carry out the wishes of the Department in every respect, where the same are consistent with our rights under the contract, and we are also willing that the contract should be modified if the same can be done without loss or injury to us, as we wish to cooperate with the Department in doing the work to the best advantage to the Government.
    “ We will, therefore, brieffy state to you our position in the premises, and respectfully request that the same be transmitted to the Bureau at Washington for final decision and adjustment between the Department and ourselves.
    “ The only dredging that is provided for in our contract, to be done to a depth of 28 ft., is that on the outer bar. Section 1 of the specification, referring to the main channel and the outer bar work, says: ‘ The areas are to be dredged for a width of GOO ft. and 400 ft., respective^, to a depth of 28 ft. and 30 ft. below the plane of reference,’-etc. We submit that there can be no ambiguity or misunderstanding of this language. It expressly provides that the outer bar be dredged to 28 ft. only, and the main channel be dredged to 30 ft.
    “ For five months the work has been conducted, with the approval of the Department, on this assumption, and approximately half the. yardage involved in the contract has been completed up to date. In order that we may conduct the future operations with reasonable economy to ourselves, it is absolutely necessary that we should know at this stage exactly where the balance of the work is to be done. Abandoning the work north of station No. 68, as,per your instructions, will entail a loss to us of several thousand dollars, as some two months since we provided levees, pipe lines, and trestles adequate to accommodate all the material in the channel north of station No. 68, which investment will be lost to us entirely if we abandon this portion of the work. Furthermore, we have provided impounding reservoirs, levees, trestles, and pipe lines adequate to accommodate all the material in the channel to the 30-ft. depth from station No. 68 south. This auxiliary expense will also be lost to us on the portion of the work that is omitted by reducing the depth of the channel from 30 ft. to 28 ft. We are willing to make these losses, providing you can find the balance of the work and expend the available money in dredging — first, in front of the yards to a depth of 30 ft. and a width of about 115 ft., as has been laid out by the engineer, and in event it is desired by the Department to do the outer bar work, thereby making it necessary to draw in channel line south of station No. 136, to provide necessary funds to do said outer bar, then and in that event we ask that the line shall be drawn in from Mare Island side,, thereby leaving the uncompleted portion of original channel width, south of station No. 136, on the Mare Island side, sufficient to provide necessary moneys for dredging outer bar. We remain,
    “ Yours, respectfully,
    “ San Francisco Bridge Compant,
    By J. McMullen, Preset.
    
    On February 10, 1898, E. O. Matthews, Chief of Bureau of Yards and Docks, sent to the commandant at Mare Island a letter, which is as follows:
    “ Washington, D. C., February 10,1898.
    
    “ Sir : In reply to Civil Engineer Holly day’s letter No. 10, of Jany. 26th, with enclosure, relative to dredging in the Mare Island Strait, the Bureau wishes to have the channel on the outer bar dredged to 600 ft. width by 28 ft. depth. Then carry out the suggestion made in par. 5 of Mr. ITolly-day’s letter, excavating 28 ft. full width opposite Commission Bock and down to station No. 160, and then narrow the 28-ft. channel as necessary.
    “ 2. The contractors have requested, in case the channel is made narrower than originally intended, that it may be done so as to throw the dredged channel nearer the Vallejo side. Please report as to the advisability of so doing.
    “ Very respectfully,
    “ E. O. Matthews,
    
      “Chief of Bureau Y. and D.
    
    “ To the COMMANDANT,
    
      “Navy-Yard, Mare Island, Cal.”
    
    On February 19, 1898, the civil engineer addressed to the commandant at Mare Island a letter, which, omitting the portions thereof not material in the present suit, is as follows :
    “ U. S. Navy-Yard, Mare Island; Cal.,
    
      “February 19th, 1898.
    
    “ Sir : Beferring to Bureau’s letter dated February 10th, 1898, and to 2nd paragraph of the same, calling for rejiort as to the advisability of narrowing the channel of Mare Island Strait, so as to throw the dredged channel next to the Vallejo side, I have to report as follows:
    “ Under the plan of future dredging approved by the Bureau, 305,032 cu. yds. can be excavated from the main channel of Mare Island Strait, whereas to complete the channel from station 68 to station No. 230 on a 28-foot depth basis with 400 feet in width would require the excavation of 445,-461 cubic yards. From this it will be seen that the channel must be sufficiently narrowed to eliminate the excavation of 140,629 cubic yards.
    “ There are three plans submitted to the Bureau for excavation of the channel from station No. 160 to station No. 230, being the portion of the channel which is to be narrowed, as follows:
    
      “(a) If the channel is narrowed from the Vallejo side, the line of the channel will be straight on the Mare Island side from station 86 to station No. 30, haying a 400-foot width from station No. 68 to station No. 160, narrowing from station No. 160 to station No. 173, at which point it would be 233 feet wide, and that width would be maintained to station No. 230 (see channel marked ‘A’ on the map).
    “ (c) If the channel is narrowed from the Mare Island side, the line of the channel on the Vallejo side will be straight from station No. 86 to station No. 230, having a width of 400 ft. from station No. 68 to station No. 175; from station No. 175 to station No. 230 it will have a width, of 190 ft. (see channel marked £ C ’ on the map).
    “At station No. 175 there is an outcrop of shale extending from 8 to 10 feet above the 28-ft. bottom line of the channel and out into the channel for at least 100 feet. The shale lies on the Mare Island side. The San Francisco Bridge Company states that it would nor be equitable to throw them into this hard material, in changing the lines of the channel, and take from them the excavation of the soft material which lies on the Vallejo side of the channel. They have requested me to submit the following proposition and show it on the map submitted, in order that the Bureau may be advised fully. Their proposiiton is as. follows:
    “(&) To excavate the unexcavated material lying between station No. 160 and station No. 165, which excavation would not be included in plan ‘A.’ This material amounts approximately to 25,000 cubic yards, also to excavate the channel from station No. 175 to station No. 230 — 250 ft. in width (see plan ‘ B ’ on maxi). To increase the width 250 feet would require the excavation of a strip 17 ft. wide, amounting approximately to 15,000 cubic yards, making approximately 40,000 cubic yards excavated, for which they would receive no remuneration. The advantage to the Government under this plan would be to get a 250-ft. channel instead of a 233-ft. channel, as shown on plan ‘A; ’ also the excavation of 25,000 cubic yards, which at the present time would be no especial benefit to the Government, if plan £A’ were adopted; it would, however, be of value in future operations. The advantage to the contractors under plan £ B ’ would be to be relieved of the excavation of the hard material lying on the Mare Island side of the channel. This material would cost in any future- contract not less than 25 cents a cubic yard to move.
    “ The equities in the case should be decided bjr the Bureau. I therefore simply submit all the information, in order that the Bureau will be in a position to intelligently decide which plan should be adopted.
    “An early reply from the Bureau as to what it' wants done in the way of narrowing the channel south of station No. 160 will expedite the work here.
    “ Map and profiles, dated February 18th, 1898, are submitted with this letter.
    “ Very respectfully,
    “ It. G. TIollyday,
    “ Civil Engineer, U. S. N.
    
    “ To the COMMANDANT, ’
    
      “Navy-Yard, Mare-Island,, Cal."
    
    
      On February 19, 1898, the claimant addressed to E. O. Matthews, Chief of Bureau of Yards and Docks, a letter, Avhich is as follows:
    “ 42 Market Street,
    
      “San Francisco, Cal., Feb. 19,1898.
    
    “Admiral E. O. Matthews,
    
      “Chief of Bureau Yards and Docks,
    
    
      “Navy Department, Washington, D. C.
    
    “ Sir: In our letter to you of February 7th we assented to the Avish of the Department to make the channel 28 ft. deep, instead of 30 ft. as contemplated bjr the contract, on condition that the Department narroAv the channel on the Mare Island side.
    “ We have been instructed by the authorities at the yard to proceed with the dredging on a 28-ft. basis, but we have not been advised that the Department accedes to our proposition of narroAving the channel on the Mare Island side. We understand that the Department has referred this matter back to the engineer of the yard to report it. We do not knoAV Avhat report the engineer has made to the Department on this subject, but we respectfully submit that this was expressly made a condition of our assenting to the change from 30 ft. to 28 ft. desired by the GoA'ernment, both in our letter to yourself of February 7th and in our letter to Bear-Admiral Kirkland, at Mare Island, of January 20th.
    “ We haA^e advised Engineer Hollyday, as a further concession to the Department, to have this channel narroAved on the Mare Island side, that Ave will agree to complete the excavation of the main channel from station No. 1(50 to station No. 175 Avithout charge to the Government, Avhich would gNe it 750 ft. more of the main channel entirely completed, and that from station No. 175 to the outer edge of the dredging at the 28-ft. contour line, and to a width of 250 ft. for the same amount of yards as Avould be embraced in a channel 233 ft. Avide on the Mare Island side from station No. 175 to the outer end of the dredging at the 28-ft. contour line. In this last, as estimated by Engineer Hollyday, is 190,000 cubit-yards of material. This will give the Government a channel 17 ft. wider for the same money that it would cost to make the narroAver channel of 233 ft. on the Mare Island side.
    “ Our proposition involves the excaAration of 46,000 cubic j^ards for nothing, but we prefer to do this than to excaA^ate the channel on the Mare Island side. This concession on our part is not to be construed to militate against our rights in the premises. We are entitled to a concession for abandoning the 30-ft. channel, and this is the concession that we insist upon.
    “ We remain, yours, respectfully,
    “ San Francisco Bridge Company,
    “ By J. McMullen, Preset.”
    
    On March 1, 1898, E. O. Matthews, Chief of Bureau of Yards and Docks, sent to the commandant at Mare Island, Cal., a telegram as follows :
    “ Washington, D. C., March 1,1898.
    
    
      “ To Navy-Yard, Mare Island, Cal. :
    “ Contractors’ proposition as given ‘ B,’ page three of Hol-lyday’s letter February 19, approved.
    “ Matthews.”
    On the same day a letter was sent by E. O. Matthews, Chief of Bureau of Yards and Docks, to the claimant, as follows (B., p. 37) :
    “ Washington, D. C., March 1st, 1898.
    
    “Gentlemen : The Bureau acknowledges the receipt of your letter of February 19th, 1898, and begs to inform you that it has this day wired the commandant of the Mare Island Navy-Yard the following instructions:
    “ ‘ Contractors’ proposition as given “ B,” page three of Hollyday’s letter February nineteenth, approved.’
    “ Very respectfully,
    “ E. O. Matthews,
    
      “Chief of Bureau.
    
    “ The San Francisco Bridge Company,
    
      “No. 1$ Market street, San Francisco, GalP
    
    V. All of the dredging work in the channel between stations 0 and 30, covering a distance of 1,500 feet, was completed by claimant, part thereof in accordance with the terms of the original contract and the rest in accordance with the modification of the same hereinbefore stated. No portion of said channel between sections 30 and 70, covering a distance of 2,000 feet, was dredged by claimant. The material in place between those sections was, in accordance with said modification, and under the direction of the officer of the Government, left entirely undisturbed. The channel between sections 70 and 220, covering a distance of about 6,500 feet, was completed by claimant in'June, 1898, in accordance with the original contract and the modification of the same hereinbefore stated.
    Every month while said channel was being excavated and the material Jn place being removed by the claimant’s dredger the quantity of dredging work done and the fact that the channel had been dug the required depth were ascertained and determined by the Government engineer. This was effected by a survey of the portion of the channel excavated during the previous month and comparison of the same with the survey made by the Government engineer before the work was commenced. Upon such monthly survey the engineer or inspecting officer certified the amount of material taken out of the channel and the fact that it was reduced to the specified depth unless upon said survey it was found that portions of the channel were above grade, in which case they were reduced to the prescribed depth of the channel and so certified by the engineer, and thereupon claimant received from the Government 90 per cent of the agreed price, of 10.74 cents per cubic yard of material certified to have been removed.
    On July 5,1898, the civil engineer sent to the commandant a letter, which, excepting the portions thereof not material in this suit, is as follows:
    “ IT. S. Navy-Yard, Mare Island, Cal.,
    “ July 5th, 1898.
    
    “Sir: I herewith submit voucher No. 9, in favor of the San Francisco Bridge Company, contractors for dredging-channel in Mare Island Strait, amounting to $823.97, less 10 per cent reserved.
    “ During the past month the main channel between sections 190 and 220 has been completed, as far as the surveys which have been made show. Work has been done between stations Nos. 134 and 170. This work consisted of cleaning up ridges and high points which had been left above grade. The work on the main channel ended on June 22d.
    “ During the month soundings were taken over the entire channel between stations Nos. 68 and 220 to find high points and ridges which had been skipped by the dredger. These soundings show that- all points of the channel, except between stations Nos. 116 and 14-0, are down to or below grade. From station No. 70 to station No. 116 the channel is 28 feet in depth and in most places 30 or 31 feet. From stations Nos. 11C to 140 portions of the channel have filled up from 1 to -2-J- feet; the fill, hoivever, is very soft and can only be detected by careful sounding, as the lead, if dropped, will go through the soft mud which has filled in and down to the original dredge line; from station No. 140 to No. 220 the channel is all down to grade, or from 1 to 3 feet below grade.
    “ Very respectfully,
    “ It. C. Hollyday,
    “ Civil Engineer, U. 8. N.
    
    “ To the Commandant,
    • “ Navy-Yard, Mare Island, Gal.v
    
    On August 4, 1898, the civil engineer sent to the commandant another letter, which, omitting the portions thereof not material in this suit, is as follows:
    “ U. S. Navy-Yard, Mare Island, Cal.,
    
      “Augiist ,!fth, 189S.
    
    “ Sir : I have the honor to inform you that since July 1st a complete survey has been made of the main channel between stations Nos. 72 and 220. For this purpose a drag was constructed, a drawing of which is herewith enclosed. This drag was towed over the channel by two cutters. When an obstruction ivas encountered, a signal was given, the obstruction located, and the extent of it definitely ascertained by soundings.
    “ The condition of the channel, as ascertained by this survey, was as follows:
    “From station No. 72 to station No. 115 the channel was found to be doivn to full depth.
    “ From station No. 115 to station No. 140 there is from 1 to 2 feet of very soft material above grade. This material hás evidently filled in since dredging operations were carried on at this point. The filling in, which is greatest on the Mare Island side, is doubtless due to a heavy bank on each side of the channel and a current across the channel at this point. Typical cross-sections are herewith submitted, showing the condition of the channel at different points where the filling in process has taken place. Of course the filled in material is extremely soft, and would in no way impede or injure a vessel, even if the bottom of a vessel touched it.
    “ From station No. 140 to station No. 148 the filling in of the channel is irregular on the Vallejo .side of the channel, and is from 125 to Í75 feet wide and from 1 to 2£ feet above the grade of the channel, the channel on the Mare Island side of the channel being down to depth.
    “ Frpm station No. 148 to station No. 175 the channel is all down to depth, with the exception of six hummocks, varying in height from 1 to 4 feet. These high places are from 15 to 30 feet square, or an equivalent area. These high points were evidently skipped when the channel was being dredged.
    “ From station No. 175 to station No. 220 the channel is all down to depth and much of it from 1 to 2 feet below the required depth.
    “ 3. In regard to the filling in of the channel since being dredged, the amount of the fill is, approximately, • 15,000 cubic yards above the 28-foot line.
    “ 4. I have notified the San Francisco Bridge Company verbally of the condition of the channel, and, apparently, they seem willing to excavate the hummocks above referred to between station No. 148 and station No. 175. They seem to take the ground that they should not reexcavate the portions of the channel which have filled in since they completed dredging at those points.
    “5. An expression of opinion is desired' from the Bureau as to whether the contractors will be required to reexcavate portions of the channel which have filled in before a final estimate is given for the work.
    “ Very respectfully,
    “ II. C. ITollxday,
    
      “Civil Engineer, U. S. N.
    
    
      “ To the COMMANDANT,
    “Navy-Yard, Mare Island, Gal.”
    
    All of the hummocks and high places in the channel mentioned in said letter of August 4, 1898, were removed by claimant, and on October 1, 1898, the civil engineer sent to the commandant a letter, which is as follows:
    “ U. S. Navy-Yard, Mare Island, Cal.,
    
      October 1, 1899.
    
    “ Sir : I herewith submit voucher No. 13 in favor of the San Francisco Bridge Company, for dredging channel, amounting to $350.57, less ten per cent reserved.
    “ 2. During September the high places near Commission Bock were all cleaned up and material which slid into the channel between stations Nos. 175 and 190, referred to in my letter No. 1072 of the 7th ultimo, was cleaned up and pumped into basin No. 4. All parts in the main channel and outer bar have been excavated to grade as laid out. The pipe-line piles on the outer bar have been pulled. After pulling the pipes the line on which piles were driven were carefully surveyed by dragging a vire cable and also the drag used in surveying the dredged channel over the line, no snags were found.
    “ 3. The channel and outer bar have all been excavated to grade as laid out; the onty work remaining to be done is to excavate where the channel is filled up since work was done on it. I have informed the San Francisco Bridge Company that the channel will have to be run down to grade at all points when the work is turned over.
    “ Very respectfully,
    “ F. C. Hollydat,
    
      “Civil Engineer, U. S. N.
    
    
      ■ “ The COMMANDANT,
    
      “Navy-Yard, Mare IslandGalP
    
    VI. Between the time when the several sections of the main channel were certified as having been completed and the date when all of the other dredging mentioned in the contract was fully performed, a large quantity of very soft material accumulated in the main channel. This was sediment deposited by the Napa Fiver, which empties in the Mare Island Strait, and solid matter brought down by the Sacramento Fiver, which settled rapidly when the river water was pushed by the tide into the strait, and remained comparatively still between its ebb and flow. Much of the material accumulating in the channel would have been swept away by the outflowing tide had the entire length of it been excavated as originally contemplated. The omission of the intended portion of the main channel between stations 30 and TO left between the completed portions of it a bank 9 feet high at one end and 4 feet in height at the other, extending over a distance of 2,000 feet, which presented a permanent-obstacle to the outflowing current, made of the excavated channel between stations 0 and 30 a pocket or settling basin, and contributed largely to the accumulation of deposit there and in the completed channel between Stations TO and 220.
    None of the material which accumulated in the channel after it had been dredged to the prescribed dimensions and depth, and so certified by the inspecting officer, came into said channel by reason of any act or omission on the part of claimant or by any fault or neglect on its part.
    VII. The claimant excavated under the original and modified contracts 1,44T,G81 cubic yards of material, for which the defendant paid monthly as the work progressed, 10TVtr cents per cubic yard, with a reservation of 10 per cent from each payment, which was to be retained by the defendant until all parts of the contract had been complied with.
    VIII. On September 11, 1899, all of the channels mentioned in the specifications annexed to the original contract- or in that contract as modified, except the portions of the main channel directed by the Navy Department to be omitted, pursuant to the modified contract, had been excavated to grade, and so certified by the inspecting officer, who, after all the work embraced in said contracts had been finished, made thorough inspection and soundings of all the channels excavated by the claimant, and found them and each of them to be down to the correct dredging line or grade. At the date last mentioned all parts of the original and modified contracts had been complied with by the claimant, and thereupon the sum of $15,622.18, the reserved percentage retained by the defendant, in accordance with the terms of the contracts mentioned, became due and payable to the claimant.
    IN. On September 29, 1899, the claimant called the attention of. the Navjr Department to the fact that all the dredging Avork hereinbefore mentioned had been completed, and requested in- writing that the final estimate and reserved percentage be paid as early as convenient to the Department; but the Department refused payment for the same until the claimant removed, without any extra compensation, all material that had filled into the excavated channels, after they were down to the correct grade and before all- of the work embraced in the contract was completed, and all of said sum is still unpaid.
    N. Pursuant to an agreement in writing between the claimant and the defendant, made on the 24th of December, 1897, the claimant furnished the defendant with 4,395 feet of Douglas fir piles, and drove 47 piles, for which the claimant was to receive $1,219.90. Said piles and said service were duly accepted by the defendant, and all of said sum was paid to the claimant, except the sum of $121.99, being the 10 per cent retained by the defendant, until the completion of all of the work contracted for by the claimant.
    
      NI. The Navy Department refused' to pay said sum of $121.99 until the claimant removed, without compensation, all material that had filled into the excavated channels before mentioned, after they were down, to the correct grade and before all of the Avork embraced in the original contract, dated the 17th day of August, 1897, was completed, and all of said sum is still unpaid.
    XII. A claim for the amount withheld by the defendant from .the claimant, as set forth in the foregoing findings of fact, was duly presented to the Secretary of the Navy, and was by him disallowed.
    
      Mr. Henry M. Foote and Mr. Clarence A. Brandenburg for the claimant. Mr. Clarence IF. De Knight was on the brief.
    
      Mr. James A. Tanner (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    1. Defendants insist that the contract in question was unmistakably a contract for the dredging of a channel of a certain specified depth, and that it must be determined that under the contract the claimant company ivas required to turn over at the completion of their contract a channel down to contract depth.
    This, the claimant concedes, he has not done.
    2. In the absence of any allegation whatever upon the part of the claimant company to the effect that the adverse decision of the inspecting officer ivas based upon either fraud, gross error or mistake implying bad faith, or failure to exercise an honest judgment, has this court power to compel the payment of the retained percentages, the contract work never having been, as required by the terms of the contract, accepted as satisfactory by the United States, and the inspecting officer refusing to give the necessary final certification to the effect that “ all parts of the contract have been complied with? ”
    The answer is self-evident. (See Kennedy v. United States, 24 C. Cls. B., 139; Case et al. v. United States, 11 C. Cls. B., 721; Sweeny's case, 15 C. Cls. B., 400, affirmed, 109 U. S., 618; Ogden v. U. S., 60 Fed. Bep., 727; United, 
      
      States v. Gleason, 175 U. S., 588; Railroad Company v. March, 114 U. S., 549-553; Railroad Company v. Price,, 138 U. S., 185; Elliot v. Railroad Co., 74 Fed. Rep., 707, 711; Beckwith c& Quackenbush v. United States, 38 C. Cls. R., 295, 311; Gilmore v. Courtney, 158 Ill., 432-437.)
    The claimant nowhere even intimating that the refusal of the defendants’ inspecting officer to certify “ that all parts of the contract had been complied with ” was in whole or in part based upon said officer’s fraud, bad faith, or failure tó exercise an honest judgment, this court, we hold, has no power to compel the payment in toto of the retained percentages.
   Wright, J.,

delivered the opinion of the court:

A contract for dredging was let bjr defendants to the claimant August 17, 1897, including the main channel in Mare Island Strait (California), the outer bar between the main channel and the bay and on the water front of the navy-yard, to be paid for at the rate of 10.74 cents per cubic yard of material removed. The estimates for the work were 900,000 cubic yards for the main channel, 100,000 for the outer bar, and 130,000 for the water front of the navy-yard.

After claimant had entered up the work of the improvement to be accomplished by the contract, it was ascertained by the defendants that the appropriation made by the Congress for the completion of the work was inadequate for the reason that it was discovered there was an excess of material to be excavated above the estimates upon which the appropriation was based of about 87,000 cubic yards, and to bring the work within the limit of the appropriation defendants reduced the work described in the contract by (1) lessening the depth of the excavation of the main channel from 30 to 28 feet, and (2) wholly abandoning the excavation of the main channel between stations 30 and 70 of the profile, a distance of about 2,000 feet. Previous to diminishing the'work as stated, the excavation called for by the contract had been made between stations 0 and 30, the excavation between stations 30 and 220 having been made afterwards. The effect to the abandoned work was to leave standing between the incompleted part from sections' 30 to 70 a bank of variant height from 4 to 9 feet.

Claimant received payment from time to time at contract rates for excavations on proper estimates by the engineer in charge, less 10 per cent, retained until the final estimate at the completion of all the work described in the contract. The percentage so retained, including a new contract for piling, amounted to $15,744.17. Upon making the final estimate preparatory to the payment of the retained percentage, the defendants discovered that'a large quantity of silt had settled in the main channel, which they required claimant to remove as a condition to its right to receive payment of the retained percentages. Claimant refused to perform the additional work so imposed upon it, insisting that the contract did not require such performance, whereupon the inspecting officer assumed the right to decide the dispute under the provisions of the contract, and upon his decision having been taken it was against the claimant’s contention. Claimant still refused to remove the silt, then insisting, the work was outside the provisions of the contract, and that being true, the subject had not been confided to the decision of the inspection officer by the mutual stipulation of the parties, by which alone he could make a binding decision. The same insistence is renewed here, where claimant has brought its suit to recover the retained percentages.

To overthrow claimant’s contention the Government has argued that (1) under the terms of the contract the claimant was required to turn over to defendants a channel of the specified depth, and (2) the inspecting officer refused to certify that all parts of the contract had been complied with.

In support of the first branch of this argument, defendant’s counsel, amongst other subjects, refer to the appropriation act as well as the second paragraph of the contract itself, each providing for the dredging of a channel sufficient to enable all classes of liaval vessels to reach the navy-yard at Mare Island, and from this the conclusion is sought to be drawn that if the contract assumed to do less there was no legislative authority for its existence and it would therefore be void.

Undoubtedly the beneficial object to be attained by the authority for the contract, and the contract itself, was the production of such a channel as described. The details by which this object was to be accomplished were, however, committed to the Navy Department to be worked out, and in which claimant had neither authority nor control. It was controlled by the terms of the contract and by the direction of the naval authorities according to the provisions of the contract. There is no pretense that claimant failed in any particular to do all that was required of it by the contract, or by the agents of the defendants appointed for the purpose by the contract, unless the refusal to remove the silt be a fault. Claimant had no voice or part in working out the purposes of the Congress expressed in the appropriation act. It did all that obligation demanded if it performed the contract required of it. That it made the excavations to the required depth and width, in the first instance, there is no dispute. The silt afterwards drifted, and settled in the bottom of the excavation without fault or blame to claimant. The material of which the silt was composed formed no part of the excavated material and was foreign to it. It was not included in the original estimates of material to be excavated, nor could it have been measured in place at any time before the dredging began, nor was it referred to in any way either in the contract or specifications.

More than eighteen months had elapsed since the abandonment of the work between stations 0 and 30 before claimant was required to remove the silt — a sufficient time, without the aid of the confined depression between those stations, to have accumulated much of the material that was deposited. How much of this was due to the abandonment of the work or to natural causes is difficult to determine, but in either case such deposit occurred through no fault or neglect of claimant. There is no reference in the contract or specifications, however construed, that could put claimant upon notice that such work would be required. As well say it was required thereafter indefinitely to keep the channel free from drift and silt as to hold it was so bound for any period at which defendants’ agents might see fit to make the final survey and require the deposited material to be taken out by the contractor. The plain significance of 'section 8 of the specifications is that the material shall be measured in place, the amount excavated to be determined immediately before and after the dredging. This was done and payments made according to such measurements, less a reservation of 10 per cent, the final payment, according to section 22, to be made only after thorough inspection and soundings.

Such inspection and soundings were made and every fault discovered was removed, save only the deposits of silt, and as to this claimant chose to stand upon its construction of the contract, to which we give our adherence. It is not disputed that the channel actually excavated by the contractor was sufficient to enable all classes of vessels to pass, and but for the fortuitous circumstance of the bottom attracting a filling of silt the channel would have permanently existed as first excavated. If defendants’ agents were at fault in not foreseeing and providing against such a condition, surely justice would not require that claimant be held responsible for a happening outside of the contract. Had it been obligated to foresee and provide for a contingency like this it is probable the contract would not have been made as it was.

The truth is that the subject of settling of silt was not thought of by the parties when the contract was made, and there was no intention to include the work of its removal, and this disposes of the second branch of the defendants’ argument, for we held in Hess & Co. v. United States (39 C. Cls. R., 10), that where a subject not submitted by the contract for the decision of a third person is nevertheless decided by him his decision is of no binding force.

The views we have given compel the conclusion that claimant is entitled to a judgment for all the jaercentages it has earned and which have been wrongfully detained. Judgment will therefore be given against the defendant for fifteen thousand seven hundred and forty-four dollars and seventeen cents ($15,744.17).  