
    WEEHAWKEN DRY DOCK CO v. THE UNITED STATES
    [No. C-942.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Contract for reconstruction of vessel; liquidated damages; delays and interference 6 y Government.- — A contract with the Government for reconstruction of a ship provided for deduction of liquidated damages for delay only where the delay was not for the convenience of the Government or not due to acts of God. But for the failure of the Government to furnish materials and supplies when required and promptly approve the plans, and for its removal of the vessel to another pier, which was unnecessary, the contractor could have completed the work on contract time. Held, that deduction of liquidated damages was improper and the contractor could also recover the additional expense due to the Government’s delay and interference with the work.
    
      The Reporters statement of the case:
    
      Mr. Jesse 0. AdJeins for the plaintiff. Mr. Ola/r.enee W. De Knight was on the briefs.
    
      Mr. George Dyson, with whom was Mr. Assistant Attorney Generad Herman J. Galloway, for Üie defendant. Mr. Dan M. Jackson was on the brief.
    
      The court made special findings of fact, as follows:
    I. Plaintiff is a corporation created by and existing under the laws of the State of New Jersey and at the times hereinafter stated was engaged in the business of building vessels by contract and of making repairs to all kinds of vessels, having its principal place of business at the foot of Baldwin Avenue, in the city or township of Weehawken, State of New Jersey.
    II. On the 9th day of April, 1919, plaintiff, the Wee-hawken Dry Dock Company, a corporation, entered into a contract with the United States of America, represented by Captain William L. MacQuillan,. Quartermaster Corps, United States Army, as contracting officer, whereby it undertook to furnish all necessary labor, material, equipment, and refit the S. S. El Sol, in accordance with specifications as contained in circular advertisement, M. & B>. Schedule #330, dated April 5, 1919, thereto attached, at a total cost of $121,500.00, within 28 days from April 12, 1919, to wit, on or before May 10, 1919. Delays not for the convenience of the Government nor due to acts of God were to cause a deduction from the contract price at the rate of $1,000.00 per day of delay. A copy of said contract, as Exhibit B, and a copy of the specifications governing same as Exhibit A, are attached to plaintiff’s petition and made a part of this finding by reference. Plaintiff’s plant and piers were fully equipped with all the essential facilities for the performance pf the work in hand, and the pier to which the vessels were fastened was secure and safe.
    III. After inspection of piers belonging to the plaintiff company, at the foot of Baldwin Avenue,- in the city or township of Weehawken, State of New Jersey, the officer in charge elected to have the work done at said piers and the vessel was accordingly delivered on April 12, 1919, by the Government to the plaintiff in the stream in front of the said piers and on the following day docked by the defendant’s agents at the side of plaintiff’s Pier #1.
    IY. Supplementary to the said contract of April 9, 1919, the plaintiff on May 7, 1919, entered into a further contract with the United States of America, represented by Captain William L. MacQuillan, Quartermaster Corps, United States Army, as contracting officer, whereby it was agreed that the plaintiff should receive $2,000.00 less than stipulated in said original contract, in consideration whereof plaintiff was to receive payments from time to time instead of one payment on completion of the work and its acceptance. A copy of said supplementary contract is attached to plaintiff’s petition as Exhibit C and is made a part of this finding by reference.
    V. When delivered to the plaintiff the vessel was dirty, ful of dunnage, ashes, trash, and filth. About four days’ time was consumed in bringing the ship into a condition whereby the work contemplated could be started. This delay, together with the delay of one day in docking the boat, resulted in a further contract dated May 9, 1919, supplementary to the said contract of April 9, 1919, as modified, between the United States of America, represented by Captain William L. Mac Quill an, Quartermaster Corps, United States Army, as contracting officer, and the plaintiff, whereby it was agreed that the time limit for completion of the work and deliveries should be extended five days, or to May 15, 1919. A copy of said supplemental contract is attached to plaintiff’s petition as Exhibit D and is made a part of this finding by reference.
    YI. Plaintiff entered into a further contract dated May 10, 1919, with the United States of America, represented by Captain William L. MacQuillan, Quartermaster Corps. United States Army, as contracting officer, whereby it undertook to furnish materials and services for construction work on the S. S. El 8ol in accordance with letter of proposal dated May 10, 1919, at a total cost of $8,760.00, all work under the contract to be performed at the contractor’s yard and completed May 25, 1919. A copy of said contract and of the proposal letter governing same was attached to plaintiff’s petition as Exhibit E and is made a part hereof by reference.
    Much of the work under this contract, because of its nature, had to be completed before it was possible to begin or complete various items of the original contract.
    VII. On June 4,1919, the work of refitting the S. S. El Sol under the contract of April 9, 1919, and the agreements of May 7, 1919. and May 9, 1919, supplemental thereto, and the contract of May 10,1919, was completed and accepted by the Government.
    VIII. $20,000.00 as liquidated damages for the 20 days’ time the completion of the work under the contracts was delayed beyond the time fixed in the agreement of May 9, 1919, extending the time limit, was deducted by the Government from the contract price as fixed therein, and said sum of $20,000.00 was withheld by the Government and was not included in the payments made to the contractor upon the completion and acceptance of the work under the contracts. Plaintiff protested against the withholding of this money.
    IX. On May 7, 1919, on order of the defendant, the vessel was removed over plaintiff’s objection from plaintiff’s pier at Weehawken to the Government’s pier #12. The Government pier was poorly situated and equipped for efficient work as compared with plaintiff’s pier, and this movement and the matters connected therewith and resulting therefrom caused delay and added expenses to the plaintiff.
    X. The S. S. El Oriente and the S. S. AmpMon were being repaired by plaintiff at the same time and place, and under a similar contract. One of these vessels, when delivered at the pier, was lying a few feet outside the pier. It was later properly placed so that it did not project beyond the pier. The El Sol at low tide was aground to the extent of a few feet, but was entirely afloat at half fide. The loading of the ballast, which weighed 250 tons, would have increased the draft 5.9 inches. This was not an uncommon situation in such circumstances. The vessels were securely attached to the pier by lines passing over and around the stringers. Plaintiff’s pier was well equipped with proper facilities and was a safe and suitable place for the performance of the work under the contract.
    XI. The defendant failed to provide the necessary materials at such time or times as required by the plaintiff and was consistently slow in passing upon the various and numerous plans submitted to its officers by the plaintiff. This caused added delay and expense to the plaintiff.
    XII. But for the failure of the Government to furnish materials and supplies when required, and its failure promptly to approve the plans for work upon the vessels, and but for its removal of the vessels in the midst of the work, plaintiff could and would have completed the work and delivered the vessels within contract time.
    XIII. Because of the delays as found above, and the removal of the vessel from plaintiff’s pier, plaintiff incurred additional cost and expense as follows:
    1 hr. for each man in transportation from yard to ship and return_$4,147.00
    Oar fare from yard to ship and return at 10(S--- 517.00
    2 trucks and drivers, 23 days, at $20 per day_ 920. 00
    One-half the expenses supplying facilities at Government pier for performance of work (the other half chargeable to El Oriente) :
    Connecting from water main to ship_$67. 50
    Installing telephone- 28.00
    Hiring steam lighter at $50 per day- 575. 00
    Installing on lighter 12-tool air compressor at $40 per day_ 460. 00
    Towage on steam lighter_ 15.00
    Engineer at $7.20 per day, 22 days_ 79.20
    Fireman at $5.20 per day, 22 days_ 57.20
    Overtime for engineer and fireman, 2 hrs. per day_ 68.20
    Connecting air pipe from lighter to ship; furnishing pipe connection and labor, 6 days, machinist and 4 helpers_ 32. 00
    Pipe and fittings- 34. OO
    - 1,416.10
    10% of labor paid ($50,229.40) while moving ship from Weehawken to Hoboken, waiting for blue prints to be O. K’d, and waiting for material to be furnished by Gov-ernment_,_ 5, 022.94
    Loss of efficiency of labor by moving ship to Hoboken, 10%_ 5,019. 60 Overhead, during delays- 2,046. 58
    19,089.22
    The court decided that plaintiff was entitled to recover.
   Moss, Judge,

delivered the opinion of the court:

On April 9,1919, plaintiff entered into a contract with the United States by which it agreed to furnish the labor and certain portions of the material for the repair of the S. S. El Sol, in accordance with specifications attached to and made a part of same, for which plaintiff was to receive $121,500. The work was to be completed on or before May 10, 1919. On May 7, 1919, the parties agreed, by a supplemental contract, that plaintiff should receive $2,000 less than the amount stipulated in the contract, in consideration for which plaintiff was to be paid from time to time, as the work progressed, instead of one payment on the completion thereof. By another agreement of date May 9, 1919, the time limit for the completion of the contract was extended five days, or to May 15, 1919. A further supplemental contract was entered into between the parties on May 10, 1919, whereby plaintiff undertook to furnish material and labor for certain other work on said vessel at a total cost of $8,760. On June 4, 1919, the entire contract was completed, and the vessel was delivered to the Government. The sum of $20,000 was retained by defendant as liquidated damages under a provision of the contract for the deduction from payments to plaintiff of $1,000 per day for each day’s delay beyond the date fixed for the completion of the contract. After an inspection of plaintiff’s piers, the officer in charge for the Government directed that the work be done at said piers. On May 7, 1919, while the work was in progress, the vessel was removed by order of defendant to a Government pier.

Plaintiff is suing for the recovery of the $20,000 deducted as liquidated damages and for the $85,718.93 as additional cost of plaintiff occasioned by delays by the Government and by the removal of the vessel to the Government pier.

The contract provided that certain materials were to be furnished by the defendant and installed by plaintiff. The Government failed to provide these materials as they were required. There were fifty-six other vessels under process of reconditioning at the same time. The work in progress involved the expenditure of millions of dollars, and the demand for materials was greater than the supply. All these vessels were intended for service as troop transports for the returning soldiers, and preference was being given to the work on the larger vessels. Under the contract the Government was to furnish and stow the ballast, which consisted of steel rails and billets. It was a difficult and dangerous operation. Much of the work under the original contract could not be begun until after the stowage of the ballast, which should have been completed within a week after the beginning of the work. It was actually delivered and stowed between May 10 and May 22. The evidence shows beyond question that the delay in the completion of this work was occasioned by the Government, and was in no sense the fault of plaintiff.

On the question of plaintiff’s claim growing out of the removal of the vessel from plaintiff’s pier, the evidence shows that plaintiff had a well-equipped plant which occupied a yard area of about eight acres. It had two» piers, one of which was sixty feet wide and four hundred feet long, and the other, one hundred feet wide and three hundred feet long. There were four dry docks with a capacity of ten thousand to fifteen thousand tons. It had wood shops, machine shops, a boiler shop, and a large stock of material. It contained a waterworks system, power plant, compressed-air plant, a system of lights, and every essential facility and equipment for the convenient and economical prosecution of the work on which plaintiff was engaged. Defendant contends that plaintiff’s pier was insecure and, in certain particulars, in a state of partial decay; that it lacked suitable bits, or cleats, for fastening the ropes to hold the vessel, which made it necessary to pass the ropes over and around the stringers; that with the additional weight of the ballast, which at that time had not been loaded, there was insufficient water to keep the vessel afloat; that the vessel extended beyond the pier into the river to the extent of thirty or forty feet, so that passing boats were liable to come in contact with it. It should be remembered that the Government’s officer in charge made a personal' inspection of plaintiff’s pier, and selected it as a suitable and proper place for the performance of the work.

The condition on May 7, when the vessel was removed, had not been changed in any particular. The Government pier was about fifteen feet wide and had a standard railroad track down the center and was therefore accessible only at the shore end of the pier. There was no place for the storage of raw material, which made it necessary to transport same by boat or truck in small lots, from day to day, and as it was used. Plaintiff’s workmen, under their contract of employment, continued to report for duty at plaintiff’s pier, and it was necessary to transport them from that point to the Government pier. In addition to the increased daily expenditures occasioned by the move, plaintiff was compelled to provide, at a substantial expense, facilities for the performance of the work.

The evidence fails to sustain defendant’s contention that plaintiff’s pier was unsuitable or insecure. The S. S. Oriente, C-941, and the S. S. Amplvion, C-97I, involved in separate actions, were being repaired at the same time and place. One of these vessels, when delivered, was lying a few feet outside the pier. It was later properly pláced so that it would not project beyond the pier. The El Sol at low tide was aground to the extent of a few feet, but was entirely afloat at half tide. The loading of the ballast, which weighed 250 tons, would have increased the draft 5.9 inches. This was not an uncommon situation and presented no serious difficulties. The complaint that the vessels were attached to the pier by lines passing over and around the stringers is equally without merit. The method employed in securing the vessels is immaterial. They were, in fact, securely fastened and that was the important requirement. The situation at plaintiff’s pier was not such as to justify the removal of the vessel, and the Government is liable for any additional cost occasioned thereby.

Defendant takes the position that plajntiff accepted, without protest, the final payment, which was the remainder due plaintiff on completion and delivery of the vessel, less the deduction of $20,000 for liquidated damages. This contention is not borne out by the record. While the question of the deduction of the $20,000 was in the hands of the Auditor for the War Department for adjustment, plaintiff was advised that the Government would pay $5,000 on account of money which had been withheld on El Sol, and $5,000 on El Oriente, whereupon on August 6, 1919, plaintiff forwarded two vouchers to defendant for $5,000 each, stating, however, that the amount would be accepted under protest and without prejudice to further claim for the amount which had been deducted. When this sum was later received by plaintiff, there was no necessity for a renewal of the protest theretofore registered. But if there had been no formal protest, the mere acceptance of a smaller sum than the full amount claimed would not estop plaintiff from prosecuting its claim for the full amount. Lancaster et al. v. United States, 57 C. Cls. 284.

Plaintiff is entitled to recover the sum of $39,089.22, and it is so adjudged and ordered.

GREEN, Judge; Graham, Judge; and Booth, Chief Justice, concur.  