Broward County Port Authority v. Arundel Corp.

• Decision Date: 30 June 1953
• Docket Number: No. 14241.,14241.
• Citation: 206 F.2d 220
• Parties: BROWARD COUNTY PORT AUTHORITY v. ARUNDEL CORPORATION.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 220 (1953)

BROWARD COUNTY PORT AUTHORITY v. ARUNDEL CORPORATION.

No. 14241.

United States Court of Appeals Fifth Circuit.

June 30, 1953.

R. R. Saunders and John U. Lloyd, Ft. Lauderdale, Fla., for Broward County Port Authority.

N. J. Durant, Miami, Fla., Arthur H. Shoupe, Lake Worth, Fla., for Arundel Corporation.

Before BORAH, RUSSELL and STRUM, Circuit Judges.

RUSSELL, Circuit Judge.

Arundel and Port Authority entered into a written contract by which the former obligated itself to excavate a channel 35 feet deep and 300 feet wide at Port Everglades, Florida, and place the excavated material as provided, in consideration of a stated sum per cubic yard of material excavated and placed. The contract provided that the Port Authority's engineer would act as referee "to prevent all disputes and litigations." It was agreed:

"* * * that the said Engineer shall decide all questions, difficulties and disputes, of whatever nature, which may arise relative to the interpretation of the plans, construction, prosecution and fulfillment of this Contract, and as to the character, quality, amount and value of any work done, and materials furnished, under or by reason of this Contract, and his estimates and decisions upon all claims, questions and disputes shall be final and conclusive upon the parties thereto."

A further provision of the contract, the provision from which this litigation evolves, is as follows:

"G. Slope: The banks of the excavation shall be on a Slope of one foot horizontal to one foot vertical, or in a stepped formation which will average to a one to one slope. The work will be paid for on the basis of a one to one slope."

This suit was filed by Arundel to recover what it claims to be the balance due under the contract. No question is presented as to the amount of material removed from the channel. The question presented by the pleadings and supplemental material presented in support of Arundel's motions for summary judgment is whether the material was removed in accordance with the above provision. Stewart, the Port Authority engineer, has approved, in fact he submitted to the Port Authority, the final estimate which furnishes the basis of this suit. He testified by deposition that all of the work was done in accordance with the contract. By affidavit he stated that his estimate "indicates" that the total yardage as arrived at by computations set forth therein is in excess of what would have been included between the one-to-one slopes. In another affidavit he stated that the project contracted for was to create a 300 foot channel with a depth of 35 feet; that Arundel did not excavate outside the one-to-one slopes, but material from the outside sloughed, fell and caved into the channel area and this was required to be excavated in order to accomplish the creation of the channel intended by the specifications. Port Authority has tendered the sum estimated to be due, excluding the material which came from without the one-to-one slope, but has not accepted and approved its engineer's final estimate, which, under the contract, was necessary to be done.

The court overruled Arundel's first two motions for summary judgment, but granted its third motion, apparently based upon the theory expressed in Stewart's last affidavit. However, the court denied Arundel's claim that it was entitled to interest on the sum awarded from the date of the submission of the engineer's final estimate. Both parties have appealed: Port Authority appealing from the grant of the motion for summary judgment, and Arundel from the denial of interest.

The first question which emerges from the record therefore is whether the judgment of the trial court evidences a permissible accommodation and consistent application of the "referee clause" and the "slope clause", referred to above. We think it does. While the slope clause provides for a one-to-one slope and "that the work will be paid for on the basis of a one-to-one slope," it does not expressly deny the right to payment for material which sloughs or falls into the channel area, which manifestly would have to be removed in order to provide a channel of the depth prescribed. Therefore, we are unable to say that a decision of the Port Authority's engineer, based upon his interpretation of the prosecution and fulfillment of the contract, as provided by the referee clause, that removal of such slough material was required in order to create the channel intended by the specifications, is contrary to the terms of the contract. Thus viewed, there can be no question that, as provided by the contract, such an estimate and decision of the Port Authority's engineer is final and conclusive upon the Port Authority, since no question of fraud or imposition is raised. "Where the contract contains provisions referring the estimate of the quantity and quality of the work absolutely to the determination of the Company's Engineer, or any particular party, and provides that his decision shall be final, no relief from his decision can ordinarily be obtained in a Court of Equity, unless upon the ground of partiality or obvious mistake." In such a case, "The measurement and computation of the engineer under the contract and agreement of the parties furnishes the sole and exclusive basis for the amount of payment to be made". Duval County v. Charleston Engineering & Contracting Co., 101 Fla. 341, 134 So. 509, 516.¹ Since we do not construe the slope clause of the contract to specifically exclude payment for any material removed which falls from outside the one-to-one slope, we reject the alternative argument of the Port Authority that if the material did cave in from without the slope it was a hazard which...