178 F. 194 (4th Cir. 1910), 837, United States v. Newport News Shipbuilding & Dry Dock Co.

Docket Nº:837.
Citation:178 F. 194
Case Date:February 12, 1910
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 194

178 F. 194 (4th Cir. 1910)




No. 837.

United States Court of Appeals, Fourth Circuit.

February 12, 1910

This is a writ of error to a judgment of the Circuit Court of the United States for the Eastern District of Virginia, in a suit brought under Act March 3, 1887, c. 359, 24 Stat. 505 (U.S. Comp. St. 1901, p. 752), commonly known as the 'Tucker Act,' wherein the Newport News Shipbuilding & Dry Dock Company (defendant in error ) was plaintiff, and the United States (plaintiff in error) was defendant. The judgment was for $4,999.54, the amount claimed at the trial by the plaintiff corporation, and costs.

The court below made the following findings of facts after hearing the evidence offered by the parties:

'I. The claimant herein is a corporation incorporated under the laws of the state of Virginia, with its principal office, yards, and plant located at the city of Newport News, Virginia, where said company carries on the shipbuilding business.

'II. That, beginning with the year 1894, the said claimant has been building large vessels for the United States government, having built 11 such vessels between that time and the 30th day of March, 1901.

'III. That the provisions with respect to trial trips in the case of said 11 vessels, including the phrase 'under conditions prescribed by the Secretary of the Navy' (Record, p. 25) are substantially the same as those in the contract for the Charleston hereafter referred to (a copy of which is exhibited with the petition), with the exception of three gunboats, whose trials were not required to be run in the open sea, and all of the said vessels, so far as speed trials were concerned, were subjected to four-hour runs over courses measured by the government, and all upon the open sea, with the exception of three gunboats, buoys being used to determine the length of the course, and stake boats, consisting of available government vessels being stationed along the course. On these stake boats, as well as upon the vessel undergoing trial, were stationed a corps of observers employed by the government. The speed of the vessel undergoing trial was determined by the measured course, subject to a correction based upon the observation of the tidal observers stationed on the stake boats. The government defrayed all expenses of stationing the stake boats, measuring and laying out of the course, and providing for the observation. (Record, pp. 5, 6, 25, and 26.)

'The claimant ran all its previous trials by this method, and in no instance was more than one day required for the speed trials and all other trials provided in the contract. (Record, p. 112.)

'Eight stake boats would have been required for the Charleston's trial by the above method. (Record, p. 7.) According to the practice at the time of the contract, the speed trial was not to be by standardization method, and no estimate was made therefor. (Record, pp. 10, 11.)

'IV. That after 1890, and prior to the date of the Charleston contract, no ship anywhere built for the United States of more than 1,000 tons displacement had been tried by the standardization method.

'V. That during the period between 1890 and the date of the Charleston contract only thirteen (13) vessels, with a total aggregate displacement of 6,635 tons, were tried by the standardization method, and, in all such cases of trial, the same was had either upon the application, or with the consent of, the contractor; whereas, during the same period, thirty-three (33) vessels, with a total aggregate displacement of 149,696 tons, were tried by the method of having speed trials over a measured course.

'VI. The cost of standardizing large ships is very much greater than in the case of small ships and involves greater times. (See Record, page 30.)

'VII. That it has been customary in trials previously run by the claimant for the Navy Department to lay down conditions for the trial, but these conditions have been confined to matters of detail connected with the actual handling of the ship and her machinery at the actual time of trial. (See Record, p. 68.)

'VIII. That on the 30th day of March, 1901, the claimant entered into contract with the United States, through its Secretary of the Navy, whereby the

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claimant agreed to construct and complete the armored cruiser, Charleston, with 9,700 tons trial displacement, and when completed, as required by the drawings, plans, and specifications, and ready for delivery to the Government, the claimant agreed that the said vessel should 'be subjected to a trial trip in the open sea, under the conditions prescribed or approved by the Secretary of the Navy, to test the hull and fittings, machinery, including engines, boilers and appurtenances, the equipment and installation of the ordnance and ordnance outfit and the speed of the vessel,' and the claimant guaranteed 'that the speed developed by the vessel upon said trial, under conditions prescribed or approved by the Secretary of the Navy, shall be not less than an average of twenty-two (22) knots an hour, maintained for four consecutive hours.'

'The above agreement was made in consideration of two millions, seven hundred and four thousand dollars, and in consideration of certain other sums to be paid the claimant in the event of changes in the plans and specifications or alterations in the contract itself, which might be made by the United States pursuant to the rights in the contract reserved, a copy of which said contract was annexed to claimant's petition as a part thereof, and the same is made a part accordingly thereof, and introduced in the evidence in this case and in the words and figures following:

'IX. That the standardization trial is not such a trial on the open sea as is referred to in the provisions of the contract relating to sea trial.

'X. That the plans and specifications, as distinguished from the contract, which by the said contract are made part thereof, contain nothing relating in any way to the said trial trip, or the conditions under which it was to be run.

'XI. That at the time of the completion of the vessel and when she was ready for trial on the 14th day of June, 1905, the Secretary of the Navy telegraphed to the claimant, asking if the Rockland course for standardizing the Charleston was not ready on the 28th, whether the Provincetown course of 25 fathoms would be acceptable, to which telegram the claimant responded both by telegram and letter, that according to its construction of the Charleston contract the trial was to be the same as in its other previous vessels under similarly worded contracts, and the claimant further stated that considerable extra expense would be involved in the standardization trial, but that, if the department insisted upon the change, the claimant would undergo the standardization trials, and would submit an estimate of increased cost; that the complainant would prefer to have more than 25 fathoms of water to make the standardization trial if such trial was to be had. (See telegram and letter exhibits. See Record, pp. 7, 8.)

'That no answer was made by the department to these communications, and on the 15th day of June, 1905, the Secretary of the Navy, by order in writing, required the claimant to run the standardization trials, notwithstanding the contractor's protest against the deviation from the previous practice. (See Record, p. 9.)

'That under this order of the Secretary of the Navy the claimant proceeded to Provincetown, and successfully ran her standardization trials on the 28th day of June, 1905, covering at varying speeds about 100 miles (Record, p. 14), and running at her maximum speed about two hours (Record, p. 16), the running of which, with consequent work on engines and boilers, to restore them and the displacement of the ship (see Record, p. 15) to requisite condition for the four-hour run of the following day (Record, p. 31), consumed a day of twenty-four hours. That the said day wherein the standardization trials were run was a day suitable in every way for the making of the four-hour run required by the contract, and but for the running of the standardization trial on that day, the four-hour run, and all the other trials required by the contract, might have been run (Record, p. 13). On the following day the contractor successfully ran the four-hour trial in the open sea, and the said Charleston was thereafter in due course accepted by the government.

'That deep water is essential for the running of a speed trial, and that since the trial of the Charleston it has developed that the Provincetown course is one-tenth of a knot slower than the Rockland course, where deeper water is had. (See Record, pp. 12, 13.)

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'That by reason of the requirement of the running of the standardization trials the claimant was put to the additional expense the just and reasonable items of labor and materials amount to the sum of $4,999.54, and that the said sum represents the necessary cost to the claimant of the running of the said standardization trials, the items of which are as follows, here insert:

"Trial Trip 41 Charleston.

"Consumable Stores (Direct Bills).

1¢ Toilet paper ............. $ 7 15
100 lbs. Calcium .............. 8 00
4,600 cigars ................ 192 75
Liquors ...................... 91 60

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