Reporter's Statement of the Case 100 C. Cls. thoroughly familiar with it and often dangerous for those who were not. The United States Coast Pilot, published by the Coast and Geodetic Survey of the Department of Commerce, in 1933 (Atlantic coast, Section A, St. Croix River to Cape Cod, at page 205) contained the following: Merrimack River and Newburyport Harbor, Chart 331. Merrimack River is the largest and most important river in the eastern part of Massachusetts. It is the approach by water to the cities of Newburyport and Haverhill, and the towns of Amesbury, Merrimackport, Groveland, and Bradford, and is used by vessels of 9 foot (2.7 M.) draft at high water up to Haverhill, and about 15 foot (4.6 M.) draft at high water to Newburyport. The river is seldom entered for refuge, but the towns on its banks have some coastwise trade, mostly in coal and oil. The river is charted to a point 2 miles above Newburyport. The entrance is obstructed by a shifting bar with 9 to 12 feet (2.7 to 3.7 M.) over it (according to the condition of the bar), which is dangerous to cross in heavy weather. The tenders of the lighthouse service cross the bar at half tide, but always send a launch ahead to locate the best water. The whole entrance breaks in easterly gales. It is marked by Newburyport Lighthouse on its southern side and two range lights on its northern side in addition to the buoys. The range does not always lead to the best water across the bar and within the jetties, and the buoys should be followed. Jetties with an opening 1,000 feet wide between the ends have been built from both points at the entrance up to the bar. (g) Prior to September 14, 1937, the plaintiff made a number of requests to be allowed to suspend operations and for extensions of time on account of what it called "unworkable conditions," but not until this date did it complain of the existence of this bar. 6. The facts with reference to the velocity of the tidal current are as follows: (a) Paragraph 7 of the specifications, quoted above, reads as follows: 53 Reporter's Statement of the Case The mean range of tide is 7.9 feet. The work is exposed to severe easterly storms. There are no bridges or other obstructions between the proposed work and the sea. The tidal currents have an average velocity of 2.1 miles per hour, which might have some effect on contract operations. (b) Investigation of the velocity of the current made during the progress of the work showed that it had an average velocity throughout the tidal cycle of 2.08 miles per hour. This was its actual velocity. 7. The facts relating to changed conditions in the sand bar are as set out in finding 5 above, and also as follows: (a) In March 1936 the Merrimack River rose to flood stages higher than usual, and on July 1, 1936, the Department of Commerce issued a bulletin, a part of which reads as follows: Merrimack River, Massachusetts: Changed Channel Conditions: Caution. From the bar at the mouth of the river to Haverhill numerous shoals exist and changes have taken place due to floods which occurred last spring. Navigation of the river is extremely dangerous even for small boats and should not be attempted without local knowledge of existing conditions and extreme caution. There is a depth of about 4 feet over the bar at low water and the charts cannot be relied upon. Pending a resurvey of the river, chart 331 will be cancelled. (July 1, 1936.) (b) A survey of the bar and the depth of the water over it made in July 1936, after the flood in the Merrimack River in the spring of 1936, showed that the depth in the entrance channel was 11 feet at mean low water and that the least depth on the range line was 9.5 feet. At some places on the bar the depth of the water had decreased to as little as 4 feet at mean low water, but the minimum depth in the channel was 9.5 feet. (c) Articles 3 and 4 of the contract read as follows: ARTICLE 3. Changes.-The contracting officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and (or) specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease Reporter's Statement of the Case 100 C. Cls. in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. No change involving an estimated increase or decrease of more than Five Hundred Dollars shall be ordered unless approved in writing by the head of the department or his duly authorized representative. Any claim for adjustment under this article must be asserted within ten days from the date the change is ordered, unless the contracting officer shall for proper cause extend such time, and if the parties cannot agree upon the adjustment the dispute shall be determined as provided in Article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed. ARTICLE 4. Changed conditions.-Should the contractor encounter, or the Government discover, during the progress of the work, subsurface and (or) latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, the attention of the contracting officer shall be called immediately to such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they materially differ from those shown on the drawings or indicated in the specifications, he shall at once, with the written approval of the head of the department or his representative, make such changes in the drawings and (or) specifications as he may find necessary, and any increase or decrease of cost and (or) difference in time resulting from such changes shall be adjusted as provided in Article 3 of this contract. 8. The facts with reference to the assessment of liquidated damages are as follows: (a) Paragraph 3 of the specifications reads as follows: 3. Commencement, Prosecution, and Completion.— The contractor will be required to commence work under the contract within 20 calendar days after the date of receipt by him of notice to proceed, to prosecute the said work with faithfulness and energy, and to complete it within 365 calendar days after said date of receipt of notice to proceed; * In case of failure on the part of the contractor to complete the work within the time thus determined and agreed upon for its completion, plus any extensions of 53 Reporter's Statement of the Case time duly granted under Articles 3, 4, 5, and 9 of the contract, the contractor shall pay the Government as liquidated damages the sum of $25.00 for each calendar day of delay until the work is completed or accepted. No allowance will be made for failure of a bidder correctly to estimate the difficulties attending the execution of the work. No work will be required during the period between January 1st and February 29th, inclusive. (b) Article 9 of the contract reads, in part, as follows: * Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes: Provided further, That the contractor shall within ten days from the beginning of any such delay notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay, and his findings of facts thereon shall be final and conclusive on the parties hereto, subject only to appeal, within thirty days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay shall be final and conclusive on the parties hereto. (c) Paragraph 15 of the specifications reads as follows: 15. Order Of Work. The contracting officer shall have the authority to suspend the work wholly or in part for such a period or periods as he may deem necessary due to unsuitable weather or such conditions as are considered unfavorable for the suitable prosecution of the work or for such time as is necessary due to the failure on the part of the contractor to carry out instructions given or perform any of the provisions of the contract. The contractor shall not suspend work without written permission from the contracting officer. (d) The contractor received notice to proceed on November 7, 1935. Prior to the time plaintiff was required to Reporter's Statement of the Case 100 C. Cls. commence work on the contract, the contracting officer suspended work thereon until April 1, 1936. The original completion date was March 5, 1937, but the suspension of work until April 1, 1936, extended the completion date to May 9, 1937. The work was completed and accepted by the defendant on December 22, 1937. (e) The contracting officer deducted liquidated damages at $25.00 a day for 292 days, the length of time elapsed between the original completion date and the time the work was actually completed. The Comptroller General authorized the payment of $1,625.00 on account of liquidated damages deducted, the period of time elapsed between the time the contractor was required to proceed under the original notice to proceed and April 1, 1936, the date fixed by the contracting officer in his letter of November 15, 1936, as the amended date for proceeding. (f) The work was actually completed 227 days after the amended completion date. (g) On September 22, 1936, plaintiff requested an extension of time of six months to cover the period from October 1, 1936, to April 1, 1937, during which time it stated bad weather was to be expected. The contracting officer refused to grant a blanket extension. On October 2, 1936, plaintiff requested authority to temporarily suspend work on account of "unseasonable weather" and "unusually rough seas" and notified the contracting officer that its subcontractor had moved his scows, lighter, and tug boats to Gloucester Harbor. This request was repeated on October 5, 1936. On that date authority was granted for temporary suspension, but the contracting officer specified that "the above permission to suspend operations does not include an extension of time for the completion of the contract unless weather conditions are found upon investigation to have been abnormally severe." (h) Again on November 2, 1936, plaintiff requested further suspension of operations in a letter reading in part as follows: In your letter to us of October 5, 1936, you agreed to allow us to suspend operations on the Newburyport |