# Transcript of Record — Carlo Bianchi & Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0782%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1965 - **Citation:** 382 U.S. 841 ## Text ment and’ made a part of said contract.¢The contract \ bears Number W-30-180-eng-397 and followed the stand- >. ard form WD Contract No. 2 in use-by the Department ' of the Army. The contract is on a unit price basis for the estimated consideration of $3,330,330.00. ’ 4, Said contract provided that the work under. the. ~ eontract was to he commenced within ten (10) calen- ‘dar days after date of receipt by contractor of notice © to proceed. Notice to proceed was received July 30, 1946. Plaintiff did so proceed with the work within the ten (10) : day period. Work was to be completed not later than 900 calendar days after receipt of notice to proceed. This time . was subsequently extended and the Government accepted — theework as completed on August. 22, 1949. 7 [fol. 3]° 5. Upon - receiving the invitation to bid for the. contraet’ work above mentioned, the plaintiff made the customary reasonable investigation of the site.of the work -ahd carefully examined the specifications, .schedules and drawings relating to a diversion tunnel inclu in the “contract work. The specifications and drawings provided that the diversion tunnel be 710 feet long, horseshoe _ shaped, 13 feét in diameter and ¢ompletely lined with eonerete. The contract drawings and Par. TP4-03 of the — specifications showed. that prior to lining the tunnel with . eonerete;” permanent tunnel protection was to be installed for 50 feet in from each portal, this protection consisting of steel. arch ribs covered with corrugated steel liner plates. Paragraph TP4-03 (b) and (c) of the specifica- ‘tions provided that. the arch ribs and liner plates shoyld - be placed in the tunnel section. where tunnel protection is indicated on the drawings or where directed by the ¥j - Contracting Officer. Nothing in the specifications and drawings or in such investigation of the site as the plain- tiff was able to make revealed conditions hereinafter de- . scribed. As a result of said conditions, plaintiff was required to and did install steel.arch ribs and liner. plates throughout the entire length of the tunnel. Plaintiff was » paid only fot the 50 foot permanent tunnel protection . installed at the’inlet and outlet portals. Plairitiff seeks compensation for the additional work done-and reim- ‘bursement ‘for the increaged costs occasioned by Govern- x Cc) ae 3 ment delays and other increased costs hereinafter referred 6. The. specifications, schedules and drawings contem- plated: the nature‘of the rock throughout the tunnel, except for a length extending 50 feet from each portal, to be of such a character that after the tunnel was holed _ through, the roof thereof would be sufficiently stable to [fol.4] be self-supporting without the- necessity of in- stalling permanent tunnel protection before the installa- tion of the concrete lining.” | 7. The provisions of the specifications pertinent to the installation of permanent tunnel protection are as follows: _ “TP4-03. Tunnel Protection. a. Scope. Tunnel pro- tection shall be furnished and placed as required for : distances of approximately the first 50 feet at each end of the tunnel which includes the underground ° portion of the outlet transition. Such tunnel pro- tection conforming to the cross sectional shape of the tunnel and transition, shall consist: of steel arch ribs | and corrugated steel liner plates as indicated on the — drawings or required, including tie rods and spread- ers. Liner plates shall be placed before the setting of ribs. In erecting, each arch rib shall be properly spaced, set to the designated grade and’ alignment, and in a position normal to the tunnel axis. Each rib shall be connected to each successive one by seven (7) sets of steel tie rods and pipe spreaders, uni- formly spaced. The contractor shall submit detailed drawings indicating fabrication, splicing of ribs and erection methods of the proposed: tunnel protection. - No material delivery shall be made prior to receipt of the Contracting Officer’s written approval but such approval shall not relieve the Contractor of his sole responsibility’ for damage resulting from the _ inadequacy or lack of such protection. Steel for arch ribs, liner and splice plates, tie rods and other items « “necessary to tunnel protection shall be commercial _ products and shapes having the necessary physical and chemical qualities for the intended purpose and . Shall be fabricated according to the best standard / . oS Ay F : aeaemanainnnnn? ee . a \ ban = wt. x has * - PS eat fet ke ha. 5 eee HSE “*, — sip pp 2. 3 De ee A ery Pr taal 0 es . practice The erection of such tunnel protection shall | oa 5] be carried as close to heading blasting as is feasible without undue. damage to tunnel protection or “in place. b. Steel Tunnel Protection. Supports. Steel arch rib tunnel. protection supports shall be erected in the tunnel sections where tunnel protection is indicated on the drawings or directed by the Contracting Offi- . __ cer and shall be steel I-beams of the size, weight and " length, and bent to the shape indicated on the draw- ings. The maximum center to center spacing shall be _ as designated. Suitable dowels shall be provided at the invert to maintain foot of ribs in proper position. “Tie rods and spreaders shall be installed at the same time ribs are set.. Blocking and other timber required for erection shall be furnished by the Contractor. Arch rib splicing, limited to two for each rib, shall develop the full strength of the rib. Steel ribs shall be left in place and embedded in the concrete tunnel lining. c. Steel Liner Plates. Steel liner plates for tunnel protection shall be placed in the tunnel sections, where such protection material is indicated on the drawings or directed, to fuynish coverage for the tun- nel roof section above the/ spring line.. The ends of plates in adjoining rows shall be staggered and half plates furnished where necessary for this purpose. Liner plates shall be left in place and have concrete tunnel lining placed against their inner ‘surfaces. _ Liner plates shall be fabricated corrugated steel. plates not less‘than-number three (3) gauge, bent to the designated radius and pressed into the required shape consisting of integral side with square corners and the elongated holes for connecting bolts, similar - and equal to Armco Type 18-inch section. ~" 'TP4-08. b. Tunnel Protection. Payment for all costs of furnishing and placing liner plates, and tunnel supports, including tie rods and pipe spread- © 7 ers, specified herein or directed by the ea ease 3 5 6] O fficer, will be made at the applicable con- tract ‘unit price for ‘Steel Liner Plates’, Item No. | 11 and ‘Steel Tunnel Supports,’ Item No. 12. Partial payments will -be made according to paragraph :TP 11-14.” (italics ours) ' The drawings also specify where the permanent tunnel protection at. both the inlet and outlet portals is to be placed. 8. From the foregoing data pertaining to permanent tunnel protection the plaintiff contends that the Govern- ment designers must have concluded, on the basis of their sub-surface and other investigations, _that the nature of the rock which would be encountered in the boring of the tunnel was such that permanent. tunnel protection con- sisting of steel ribs and liner plates would not be required beyond the 50 foot limits specified. Had the conclusion been otherwise, permanent tunnel protection would have been specified throughout the length of the tunnel. 9. Contrary to what would reasonably be expected from the data furnished by the Government, indicated in the | eontract. specifications, schedules. and’ drawings, it was found by the plaintiff. in performing the contract that © the rock actually encountered was unstable and caused heavy rock falls quite generally distributed throughout the | tunnel, thereby requiring the plaintiff, to install .perma- “nent: tunnel protection of the type designated in TP4-03 _.of the specifications in order to place the concrete lining and complete the tunnel in accordance with the contract. ‘10. The sub-surface conditions encountered, hereinafter more particularly described, created a changed condition (fol. 7] under Article 4 of the contract, entitled a Conditions”, which reads as follows: “ARTICLE 4, Changed conditions. ~ Should the con- | tractor enocunter, or the Government discover, dur- ing 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 specifica- tions, or unknown conditions of an unusual nature _ differing materially from those ordinarily encoun- tered and generally recognized as: inhering in work of the character provided for in the plans and specifi- a .cations, the attention of the contracting officer shall be called immediately to such conditions before they upon promptly investigate the conditions, and if he : finds that.they do so materially differ the contract _ shall with the written approval of the Secretary of War or his duly authorized representative, be modified - to provide for any increase or decrease of cost and/or ” difference in time resulting from such conditions.” 11. The driving of the diversion tunnel began at the outlet end on December 12, 1946. Prior to this time, | in October 1946, in open cut excavation for the outlet works and stilling basin, vertical intersecting fractures in the rock had been-exposed containing clay or mud seams ~ which were later found throughout the tunnel. These characteristics indicated the probability that the roof of the tunnel would not be stable. ‘There was nothing con- tained in the data supplied in the contract, specifications, schedules or drawings to indicate the presence of vertical . intersecting fractures in the sub-surface rock, nor did - plaintiff’s examination conducted at the site disclose any such condition.. Rock -of the same unsuitable charac- [fol. 8] teristics as that uncovered in the stilling basin — was encountered in the area of tunnel excavation as the work progressed. The need for additional permanent tun- nel protection on account of this unforeseen condition was promptly called to the attention of the _Government through its Resident Engineer. Permission to install permanent tunnel protection was refused. However, temporary tunnel protection was au- thorized beyond 50 feet.at the inlet portal by the utiliza- tion of four steel ribs which later were to be removed and used at the outlet portal. On this basis, plaintiff proceeded with the boring of the tunnel. The four steel ribs were installed and afforded 16 feet of additional protection beyond the 50 feet of permanent. portal pro- tection. specifically provided for in the contract. When this additional temporary protection was: later removed, substantial rock falls from the roof occurred. are disturbed. The Contracting Officer. shall there- — | £ eae 7 > et Bi 12. The tunnel was completely holed through by March ~ 10, 1947 and cleanup work commenced immediately. Be- tween March 12th and April 25th there were substantial rock falls from the roof of the tunnel, which occurred at many places in the tunnel- where there were intersecting fractures in the rock. Subsequent to April 25th additional rock falls occurred. : oy tug _ _ 138. After plaintiff discovered the substantial rock falls — that had occurred on account of the unstable condition - of the sub-surface rock, plaintiff by letter dated April 28,. 1947 called this condition to the attention of the Gov- ernment ‘and again requested authorization to install permanent tunnel protection throughout the tunnel at the - Government’s expense, stating in substance that as a re- [fol. 9] sult of the failure of the Government -to authorize the installation of permanent tunnel. protection during the * progress of excavation, there had developed large areas where the tunnel roof had failed and that such authoriza- _ tion was again requested in view of the then known facts, _ which were unforeseen by either party at the time the . contract was entered into. The Contracting Officer, upon — his attention being called-as aforesaid,-to such unforeseen, “unstable sub-surface conditions, advised the’ plaintiff by letter dated May 5, 1947 that no further tunnel protection would be placed at the expense of the Government. The Contracting Officer based his denial of the request of the plaintiff for permanent tunnel protection at the expense of the Government upon findings: which were conclusions — Of law involving construction of the provisions of the contract and specifications relating to permanent tunnel ' protection to be installed, to temporary tunnel protection to be provided by plaintiff and to the fact that plaintiff, by acceptance of the contract, indicated ‘that it ‘had satisfied itself as to sub-surface conditions. The Con- tracting Officer’s letter of May 5, 1947 also advised plain- tiff of its rights to appeal from his decision as provided under the terms of Article 15 of the contract. From said determination of the Contracting Officer plaintiff filed a timely appeal, hereinafter referred to, under Article 15 of the Contract, such appeal being dated May 29, 1947. 14, Despite his decision of May 5, 1947, the Contract- OE tte nner eaten. BRE er ee gees ee ee ae . - . ROU ne cen = ‘ - ing Officer and Resident Engineer entered into conferences and.extensive correspondence with plaintiff. with respect to the minimum permanent tunnel protection required before installation of the concrete lining. At the first conference held on May 12, 1947, in response to the re- quest of plaintiff that the Contracting Officer give it an [fol. 10]. indication of the type and character of tunnel ' protection required, the Contracting Officer requested that plaintiff submit for approval a description of the min- ‘imum tunnel protection which it would recommend. In accordance with this request, plaintiff consulted with in- - dependent engineers and advised the Contracting Officer , that in its considered ppinion and that of its consultants. the minimum permanent — protection which would overcome tlie falling roof of the tunnel would be the installation of steel ribs and liner plates, such as were ‘used at the portals, throughout the length of the tunnel. . ‘Several weeks thereafter the Contracting officer aienitted to plaintiff for its consideration an alternative tunnel pro- tection which he termed temporary tunnel protection, as- serting that it would be adequate to support the falling rock load.as well as the material used in backpacking. Plaintiff, after consideration of the alternative design and consultations ‘with independent engineers with respect thereto, advised the Contracting Officer that in. their. opinion the alternative design was inadequate and that the minimum protection required throughout the tunnel - was that of the type installed at both portals. Plaintiff reiterated its request that the Contracting Officer give consideration and approval of such design for permanent tunnel protection.. By letter dated August 11, 1947, the Contracting Officer informed plaintiff that there was no objection to the installation throughout the tunnel’of the .. . . steel ribs and liner plates proposed by plaintiff, but that the costs of such installation were to be borne by plaintiff . who was required to furnish temporary tunnel protection in accordance with the provisions of Paragraph TP4-02. of the specifications. (fol. 11] 15. Plaintiff, while protesting by. letter dated August 15, 1947 the Government’s refusal to bear the costs of permanent tunnel protection, nevertheless promptly ay Ww? Sai"~ upon aii of the Dpietiion Officer’s letter of awe - gust 11, 1947 proceeded. to install the steel arch ribs and liner plates. . Such installation was completed in Decem- _ ber, 1947 ahd the “plaintiff thereupon proceeded to Jine . ‘the tunnel with concrete in accordance with the terms of the contract. The concrete lining was completed i in May, — - 1948: 16.: Under the terms of: the contract, all. of the work ~ was to be completed. Bale ser) 15, 1949. The actual completion date was e 30, 1949. Such delay. resulted from the. Goverdment’s protracted negotiations in connec- _ __.——+tion with the determination of the necessary minimum permanent tunnel protection required. As a consequence thereof, plaintiff’s work in the performance of the con- tract was delayed, impeded and hindered so that the concrete work was required to be done in the winter - . months of 1947-1948. Such delays resulted in the addi- tional increased césts and loss to plaintiff hereinafter specified. 17. On account of the changed sub-surface conditions encountered by plaintiff requiring the. installation of per-. manent tunnel protection and other matters heretofore. alleged plaintiff claims reimbursement for ‘the additional | expenses incurred by it in installing such permanent tunnel protection by the use of steel arch ribs and steel liner plates throughout the entire length ‘of the tunnel and the additional costs occasioned by the delays: caused by the Government. 18. Plaintiff further in the alternative - ‘alleges that the provisions in the specifications set forth in Paragraph . -[fol.12] 7% hereof, particularly the italicized portions © thereof, contemplated that the Contracting Officer would and should order and pay for permanent tunnel protection © beyond that shown on the ‘drawings if conditions encoun- tered were such that good engineering practice required such protection to permit the concrete lining to be in- - stalled without substantial risk of injury or damage to - the work from falling rock., The temporary tunnel pro- tection which the contractor was required to provide by © “ Paragraphi TP4-02 of the specifications entitled “TUN- * NEL EXCAVATION,” as properly interpreted, -is re- 10 “movable supports of the character required to safeguard workmen during the excavation of the tunnel, and does not intlude steel supports needed to permit installation | of the permanent concrete lining, which must necessarily . be left permanently in place. 19. The faulty nature of the rock miata and the rock falls resulting therefrom required. the installa-- tion of steel arch ribs and liner plates throughout the : entire length of the tunnel, and by virtue of the facts . -and circumstances heretofore alleged the Government was obligated to order and pay for such permanent tun- ‘nel protection under Paragraphs TP4-03 and TP4-08 .. of the specifications, as good, engineering practices re-— quired such installation in order that the concreting of the tunnel be accomplished. The Contracting Officer un- . reasonably and unlawfully withheld permission for plain-. tiff to make such installation at the expense of the Gov- ernment. 20. As alleged in paragraph 13 hereof, plaintiff ap-_ pealed within the time limits prescribed by the contract . from. the adverse decision of the Contracting Officer. [fol. 13] This appeal was referred to the Corps of Engi- ‘neers Claims and Appeals Board, the duly authorized representative of the Secretary of Way. . Hearing: was: — held June 17, 1948 and an adverse decision was rendered in connection therewith on December 13, 1948. A motion for rehearing of the determination by the Board denying _ - plaintiff’s appeal was filed. on or about December 20, 1948. The motion for a rehearing was denied by the Board by an order, dated January 4, 1949. Plaintiff has exhausted its administrative remedies. Neither the Con- tracting Officer nor the said Appeals Board has correctly evaluated the evidence, and no. appropriate relief was . . granted plaintiff for the additional work ‘performed under the contract, occasioned either by the changed conditions referred to in Article 4 of the contract, or by the Gov- ernment’s breach of the contract in failing to direct the ' installation of permanent tunnel: protection throughout © the entire length of the tunnel at Government expense . in conformity with good engineering practice. The deci- sion of the Contracting Officer, and in turn that of - 11 Claims and Appeals Board, acting for the head ‘of the War Department, were capricious or arbitrary or ‘so "grossly erroneous as necessarily to imply bad faith, or were ye supported by substantial evidence. of law. Many issues raised in this complaint, particulally ‘those in Paragraphs 6, 7, 8, 16, 18 and 19 hereof, re- ~ late to questions of law involving iriterpretations ‘of ‘the contract and specifications and breach of implied obliga-. tions of the Government under the contract with respect ~ to which Article 15 of the. contract does not provide for - any appeal or any finality. | | : ' [fol.14] 22. There is set forth in Exhibit A, attached hereto, and made a part hereof, a scliedule of plaintiff’s increased costs, totaling $233,425.75, which increased costs were occasioned by: the changed conditions referred to in Article 4 of the contract requiring the irstallation of permanent tunnel protection throughout the entire length of the tunnel and by the delays caused by the Gov- ~ “ernment or occasioned by the Government’s failure and refusal, in violation of the contract, to direct the instal- lation of permanent tunnel protection at Government ex- pense under the circumstances heretofore alleged. Plain- tiff has been damaged by nonpayment of its aforemen- tioned claims to at least the amount of $233,425.75, plus an allowance for profit on Items 1 to 8 inclusive listed in Exhibit “A” attached hereto totaling $175,307.50, or $26,296.12 (15% thereof), which the plaintiff avers to be reasonable and proper, making the aggregate claim of the plaintiff herein the sum of $259,721.87, together with interest thereon, exclusive of all set-offs and just grounds of defense, which amount plaintiff is justly entitled to recover from the United States of America, the. defendant 28. The plaintiff is the sole owner of said claim and is the only party interested therein, and the plaintiff says that no asignment or transfer of said claim or of any, part thereof or of any interest therein, has ever been made to anyone, and that the plaintiff is fully entitled to recover from the United States of America the entire — ‘amount of its claim as set forth above. » iq im. ESR ERM OS Se BOG a Faye 12 WHEREFORE, the plaintiff prays judgment against the United. States of America in the s — of $259,721.87, [fo]. 15] with interest thereon as may be provided by law, and for such other ahd further relief as the nature of the case may require and to the Court may seem just and ~ proper. | ; ais ROBERT W. nbs ; > $21 15th Street, N. W.. Washington 5, D. C. Attorney’ for Plaintiff ROBERT F. BRADFORD WILLIAMS H. MATTHEWS Of Counsel - l » *s « * Duly Sworn to by Robert W. Knox Jurat Omitted in Printing. [fol. 16] _ Expert A To PETITION } Schedule of Plaintiff's Increased Costs . 1. Cost of Removing Extra Overbreak During Orig- ‘ jnal Tunnel Driving $ 1,092.75 - 2. Cost of Removing. Fallen Rock and Extra Rock to Invert Subsequent to Completion of Tunnel Driving (March 25, 1947) 9,018.00 8. Permanent Tunnel Supports ° Installed After ‘ March 25, 1947...... 29,354.51 4. Backpacking Installation 24,979.15 5: Additional Concrete Placed ional 11,200.00 6. Heating Costs—Winter Concrete. 45,853.08: 7. Loss, of Efficiency—Winter Concrete... 18,560.00 — 8. Excess Supervisory, Engineering and Adminis- os - trative Labor—period 1-16-49 thru 6/30/49.......... $5,250.01 9. Cost of principal Items of Plant and Equipment used and Maintained on Contract after 1-16-49.. 58,118.25 ; | $233.425.75 fol’ 17] ‘IN THE br ' UNITED STATES COURT OF CLAIMS fe: No. 466-54 eos: ee CARLO BIANCHI & Co., -ING., PLAINTIFF | - 9%, ee THE UNITED STATES, DEFENDANT — ' DEFENDANT’s ANSWER—Filed. May 81, 1955 1. Denied for lack of knowledge or information suff ‘cient ‘to formea belief, except that it is admitted that. plaintiff represented itself to, and contracted with de- fendant, as the corporation described. me 2. The material allegations are denied except as here- © inafter admitted or admittedwith qualifications. 8. Admitted. . meas wane 4. Admitted, except the allegation that the Government accepted the work as eompleted on August 22, 1949, wthat the Invitation for Bids required bidders to» care- fully examine the drawings and specifications, to visit the ‘site of the work, and to fully inform themselves _ with respect to all conditions affecting the work and the cost thereof. -[fol. 18] Second, third: and fourth sentences: Admitted. Fifth and sixth sentences: Denied. Seventh sentence: Denied, except that it is-admitted — at plaintiff was paid. the contract price which included temporary tunnel protection and was not paid extra for . installing permanent tunnel protection beyond the con- tract requirements, approximately the first fifty feet at each end of the tunnel and extending inward, or as other- ~ wise agreed to. ae re te ia mer! . Eighth sentence: All material allegations are denied.. 6. Denied, except that it is admitted that the specifi- cations, schedules, and drawings ‘required the installa- tid of permanent tunnel protection. extending: approxi- | oi fifty feet from each -portal only,.as described in paragraph TP4-08 ofthe specifications, and also re- quired temporary tunnel protection where needed. ' 7. Admitted, except that it is denied that all the per- tinent specifications aré> quoted or that the quotations were italicized as set forth. _ *.8. First sentence: “This is a statement of plaintiff's contention calling neither -for affirmation or denial. Second sentence: Denied. 9. Denied. 10. Denied, except that it is "admitted that the | con- tract contained Article 4, on “Changed Conditions”. _11. First sentence: Admitted. Second sentence: Admitted except that it is denied that vertical intersecting fractures in, the rock containing -clay or mud seams were found throughout the tunnel. In making the rock cut for the tunnel -outlet and stilling basin plaintiff’s rock excavation disclosed mud. seams. No claim was made that this was a. changed condition. under Article 4. In December 1946 the Contracting Of- [fol. 19] ficer found that the exposed rock surfaces, in- dicated the same ‘type of materials described in the con- * tract drawings, and he so found. Plaintiff did not ap- peal. Third sentence: Denied. | Fourth sentence: Denied, except the allegation per- taining toe plaintiff’s examination which is denied for lack of knowledge or information sufficient. to form a. belief.’ Fractures and joints in nearby outcroppings were apparent upon proper examination of the site. Fifth sentence: Denied except as.elsewhere admitted. . Sixth sentence: °’ Denied. Seventh sentence: Admitted that permission to in- ‘stall permanent tunnel protection at defendant's expense . was refused. _ Eighth and ninth sentences: Denied. ‘Pampas tun- nél protection was required by. the contract and utilized: four steel ribs for this a. 15 , Tenth and eleventh sentences: Denied, except that it is admitted that four steel ribs were installed and afforded 16 feet of temporary protection beyond the fifty feet of permanent protection, and that when said temporary pro- - tection was removed, some rock fal] occurred. 12. Denied, except that it is admitted that the tunnel was completely holed through by March 10, 1947 and that cleanup work was in progress shortly thereafter, . It is also admitted that rock falls occurred between March 12 and April 25, 1947, and after April 25, 1947 at places where there were intersecting fractures in the rock. Defendant denies that this constituted a changed condition, that the rock falls -were excessive, or that they ‘ [fol. 20] would have ‘occurred if plaintiff had complied with the contfact requirements. 13. Denied, except as admitted ‘herein. Many months prior to April 23, 1947: there were conferences and cor- respondence between plaintiff’s and defendant’s repre- sentatives relative to tunnel protection and ‘sub-surface conditions. By letter dated April 10, 1947 plaintiff pro- posed that» permanent tunnel protection be extended throughout the tunnel instead of at the ends only, bé- cause of possible hazards to its workmen, and requested payment therefor. The- Assistant Resident Engineer promptly called plaintiff’s attention to the Resident En-- gineer’s decision and to the contractor’s responsibility fer temporary tunnel protection atid for the safety of the workmen and ‘the ‘work, and declined to authorize in- stallation of permanent protection at defendant’s ex- pense. $25 | By letter dated April 23, 1947 plaintiff wrote. the Res- ident Engineer as follows: was _ We have. received. a ietter dated April 15, 1947, - from Mr. Dale A. Losey, Assistant Resident Engi- neer, in reply to ours of April 10, 1947, on the above subject. : : | We wish to point out, that the request contained in our letter of April 10 does not concern itself with the matter of temporary tunnel protection; — it. is concerned wholly with the permanent type of . (16. tunnel protection as described in the contract speci- fications paragraph TP4-03. The specifications clearly indicate that the Gov- ernment intended installation of permanent steel supports and liner plates to a distance of 50 feet *{fol. 21] in from each end of the tunnel and for such additional distance as conditions would require. Ever since the start of rock excavation work on this project, and even prior to the time when the actual tunnel excavation was started, the question of the character of the’ rock that would be en- . eountered.in the tunnel has been the subject of dis- cussions with the Resident Engineer and his staff. -These discussions were participated in by our sub- contractor, Cabot Construction Corporation; as well as ourselves. We consistently maintained the posi- tion that the character of the rock within the tunnel was such that provision should be made. for per- © manent tunnel protection. The Resident Engineer took the position that ‘the permanent tunnel pro- tection would be authorized only for 50 feet from - each end. In view of’ the position taken by the Govern- ment, the subcontractor was required to proceed with the excavation of the tunnelgwithout the in- stallation of permanent tunnel protection, employ- ing temporary tunnel protection of its own devising in order to afford the necessary protection for its . workmen. As a result of the failure of the Government to authorize the installation of permanent tunnel pro- tection during the progress of excavation, there have now developed large areas where the tunnel roof has disintegrated or failed, and there are piles of dislocated material on the floor of the tunnel. In view of the now known facts with reference "to. the dislodgment or failure of large areas-of the tunnel roof, a condition which could have been an- ticipated and prevented had the. Government ac- | [fol. 22] ceded to our request for permanent tunnel protection, we now again request that the Govern- UOT Nala 17 ment’ authorize the installation of the permanent . ‘ tunnel protection, together with the necessary and — obvious corrective -measures incidental thereto, at _ the Government’s expense. | ' _. May we have the courtesy ‘of a prompt reply granting to us the above-requested authorization? A copy of this letter was also directed to the -War De- partment, attention of Col’.J. S. Seybold, District En- | gineer, at Baltimore, Maryland. By letter dated: May 5, 1947,°Col. Seybold wrote plain- tiff as follows: - . rs __ Reference is made to your contract number W- ' 80-180-eng-397, providing for construction of -Al- mond Dam at Almond, New. York, and to your letter dated 23 April 1947 inclosing for my consid- eration your letter of even date addressed to my Resident Engineer requesting an authorization to place at contract. prices additional permanent pro- tection in the tunnel. cos I have caused an examination to be made of the contract documents and the circumstances and | events that have preceded your request and I have. found as follows: woes __a. Contract drawing sheet No. 7 shows founda- . tion exploration data that indicates the type and _ character of the material that would. be encounter . during the tunnel driving and lining. operation. y b. Paragraph SC-7a of the specifications notified all parties interested in this project that ea of the materials removed from the_ foundation ex - Efol. 23] plération holes were available for inspection at the U. S. Engineer Soils Laboratory at Ithaca, New York. . ‘ C. Paragraph GC-3 of the Specifications anno- tated for the information of prospective bidders, certain items of consequence with respect to ‘site _and job conditions. Your acceptance of the con- _ tract indicates that you have satisfied yourself as | _ to those conditions including subsurface conditions. uv 18 d. Contract drawing sheet No. 24 pner indi- cates tunnel protection 50 feet back from the face . of each portal of the tunnel. e. Paragraphs TP4-03(a) and (c) of the speci- fications also ‘describes and indicates the limits of ‘ “tunnel protection “as required for distances of approximately 50 feet at each end of the tunnel.” | This limitation to hold unless directed otherwise. f. Paragraph TP4-02 of the specifications con- ‘tains a statement that “temporary tunnel protec- tion shall be provided where required for safety of the workman.” Under the terms of the contractual requirements ‘cited above, I consider that the Government clearly . - and in a very exact ‘manner indicated the extent to | which the Government would require and assume payment for permanent tunnel lining. I also con- sider that sufficient data was available for you to make a proper consideration of the tunnel protec- tion which would be necessary for you to install in - order to.provide adequate protection against damage -to completed work. as well as the safety of your workmen. » »A review of the records of my Resident Engineer indicates that he consulted with your representa- ~ [fol. 24] __— tive prior to the commencement of the tunnel work and advised you fully and correctly as to the extent of both the Government’s responsibility and — your responsibility in placing tunnel lining beyond the limits required and indicated for payment. Interim correspondence indicates that you were periodically aware of the gradual deterioration of the rock in the tunnel which did not commence un- til the tunnel was completely holed out, yet you apparently took no action to protect either yourself or. the interest of the Government. It is my decision, in view of the above finding, that no further tunnel lining will be placed at the expense of the Government. Furthermore, my. Resi- dent Forces will be instructed to require that ade- © quate precautions be taken to insure the safety of. - 19 all . personnel when your tunnel operations are | resumed. If you wish to appeal my decision in the matter, you are advised of your rights of appeal within 30 days from date of receipt. of this letter as provided under the terms of Article 15 of the contract. - On or about May 12, 1947, the contracting officer and plaintiff’s representatives conferred at’ Baltimore, and thereafter by letter dated May 29, 1947 plaintiff ap- pealed to the Secretary of War. 14. Denied, for ‘lack: of knowledge. or information — sufficient to form a. belief, except as admitted herein. Under date of May 12, 1947, plaintiff’s representatives conferred with Col. Seybold at Baltimore and endeavored _to obtain authority to install permanent tunnel protec- tion throughout at Government expense. May 26, 1947, plaintiff also wrote to Contracting Officer that it con- [fol. 25] sidered the minimum permanent tunnel pro- tection necessary was that the protection installed at ‘the portals be extended throughout the tunnel. Under . date of June 13, 1947, Col. Seybold replied as follows: Reference is made to your letter dated 26 May 1947 wheréin you submit a proposal for the safe protection of your workmen in the tunnel at Al- mond Dam under your Contract No. W-30-180-eng- 397. © Your request refers to “Permanent Tunnel Pro- . tection”. You are advised that no permanent tun- nel protection. will be required to be “installed in Almond Dam Tunnel in addition to that protection _ already installed and paid for under contract pay- . ment items numbers 11 and 12. Also, you are ad- vised that “Permanent Tunnel: Protection” required - under this contract is at the portals only and is protection designed to withstand earth pressures. _ Temporary tunnel protection as required under the provisions of paragraph TP4-02 of the contract specifications is temporary in that its only function is to support a falling rock load and prevent injury to your workmen. The greatest load to which it will be subjected: ‘will be the. dead toad of the back packed materials. — _In paragraph 8 of your letter, you state that you are of the opinion that~the’minimum.permanent tunnel protection that will meet the requirements of ~~ the situation ‘adequately and for which you request approval are the same ribs and liner plates used at the portals. If you desire to use this design of tunnel protection throughout the tunnel length, its [fol. 26] use is approved. You are advised, however, that this type of installation is considered as an over design for the purpose required and will be a more costly installation to you that is considered necessary. It is suggested: and recommended to you that ade-. quate temporary protection may be obtained by using I-beam ribs of about 3 inches and 6 pound weight spaced 4 to 8 feet apart (depending on the over- break) with 2” timber lagging. The void area in the arch would then be uniformly packed with shale or bank run gravel in a manner to insure a uniform * load distribution: Protection of this kind will be adequate to support the falling rock load as well as the material used in back packing. -Favorable con- sideration will be given to a proposal of comparable design. It might be called to your attention that a scheme similar to the above was proposed to my Resident Engineer by a. representative of your subcontractor,. the Cabot Construction Company, at the time tunnel excavation was commenced. - It is to be: understood that the contents of this. letter are not to be construed as a reversal of my. decision to you dated 5 May 1947 to the affect that no payment would be made by the Government for the additional: tunnel protection required to com- plete. work under your contract. © Under date of June. 28, 1947 plaintiff i Peter M. - Bianchi wrote Col. Seybold as follows: : We have your letter of June 13, 1947 in reply to . ‘ ours of May 26, 1947 on the subject of- Tunnel | Protection. == = ——*—™ 2 [fol.27] . You are advised that nowhere in our letter did we make reference ‘to the subject of safe protec- * tion of workmen in relation to Tunnel Protection. We understand that you have decided that no “Tunnel Protection will be required, and to this position we have taken: exception by our letter of appeal to the Secretary of War; Washington, D. C., dated May 29, 1947. | eas We assume that your reference is. to earth pres- sures resulting from rock or other materials sur- rounding the tunnel bore. | We cannot agree with the statement in regard to temporary Tunnel Protection in the third para-__ - graph of your letter. . ; ie We cannot agree with your position in regard to the design of Tunnel Protection as we are of the opinion that the conditions require an installation at least of such strength as used at the portals. We are proceeding to order this material and will - install it at the earliest possible moment on the ~~ assuniption that this procedure is acceptable as stated in the fourth paragraph of your letter of June 13. In reference to the next to the last paragraph of your letter to the effect that a scheme for tempo- - rary protection similar to that suggested by your’ — letter was proposed to the Resident Engineer by 4 . representative of the Cabot Construction Corpora- tion, please be advised that this is not consistent with the statement made to us by the Cabot Con- struction Corporation, to whom the matter was ‘referred. mS Siameebro tec oe It is understood that the contents of this letter (fol. 28] are not to be construed as waiving any of our rights involved in our appeal of May 29, 1947. Under date of July 25, 1947, plaintiff wrote the Dis- trict Engineer that plaintiff intended to install tunnel protection of its design as an extra under the contract. Under date of August 11, 1947, the Acting District Engineer replied to plaintiff as follows: - | Reference is made to your letters dated 25 July 1947 and 1 August 1947 relative to the temporary tunnel protection which you propose to install ‘under your Contract Number W-30-180-eng-397 which pro- vides for the construction. of — Dam at: Al- mond Dam, New York. ° By letter dated 5 May 1947 you were furnished a decision by Colonel J. S. Seybold, then District Engineer, to the effect that the ‘tunnel protection remaining “under your contract would consist of temporary protection placed in accordance with. para- graph TP4-02:of the contract specifications as a safety precaution for the workmen at no additional cost to the Government. You. have appealed this - decision of the District Engineer in accordance with the terms of the contract. Subsequent to your ap- peal you had offered for approval a proposed plan of protection, the merits and necessity for which . were clearly discussed in a letter to you from the District Engineer dated 13 June 1947. j* & Your letter dated 25 July 1947 outlines again the plan of protection which you are electing to use. You also express your views with respect to prob- able differences in cost between your proposed plan and the scheme suggested by this office as adequate. [fol. 29] Your letter cites the interests of the Govern- _ment in the matter as an extra and infers a liability for costs on the part of the Government. It becomes necessary, therefore, to advise you that the: decision of the District Engineer and your subsequent ap- peal will be reviewed and a final decision rendered by higher authority as sodn as an orderly process- ing of your appeal can be accomplished. In the meantime, severe inexcusable delays to.the work are resulting from your failure to proceed and it is not believed that your interests will be furthered by continuing correspondence on the matter. The Government position has been made clear in the previous correspondence and is ‘summarized briefly as follows: a. In accordance with paragraph TP4-02 of the contract specifications “temporary tunnel protec- ‘tion shall- be provided where required for safety of. Met cate onnctnte ns ranaen the workmen”. The installation of. this. temporary _ protection is not structurally necessary to insure _ the safety of the completed tunnel structure and need be designed only to support a falling stone . » load and backfilled material in the tunnel over- _ break .area. The design, suggested ‘by this office is . considered adequate for that purpose and will be ' approved for use if you wish to. reconsider our plan. However, since the safety. of your workmen is your responsibility you must, of course, provide - a protection which you consider adequate for their safety, therefore, no objection will be made to the protection plan which you propose to use: Under the terms of the contract all costs will be accrued ‘to you unless found otherwise by higher authority. (fol. 30] Plaintiff failed to proceed with the installation \ and completion of the concrete tunnel lining during all of ‘this period as required by the contract, but delayed — commencement until December 1947. — ty A sceroee 15, Admitted, except the allegations that plaintiff pro- ceeded promptly, and completed the ‘installation of the .. ‘steel arch ribs and liner plates in December 1947, which are denied. ene ene ' -16.-Denied, except as admitted herein. The contract ‘ requirement of .completion by January 15, 1949 was extended to June 30, 1949. : 17. All material allegations are denied. 18. Denied. Ss: Rees 19. Denied. a at en: Gece 20. First, second arid third sentences: Admitted. Fourth and fifth sentences: Admitted except that de- fendant avérs that a-motion for rehearing was enter- . tained, and the decision of December 9, 1948. reaffirmed. i sentence: This is a conclusion of law, but is otherwise denied.’ | Seventh sentence: Denied. Eighth sentence: Denied.. | ee. \ -. 21. The allegations in this paragraph are argumenta- tive. All material allegations of fact are denied. 22. All ‘material allegations of fact are denied. - 4 23. Denied, for lack of knowledge or information suffi- cient to form a belief, except the allegation’ that plaintiff is fully entitled to recover, which is denied. Defendant alleges on information and’ belief that plaintiff assigned all moneys due or to become due under the contract to ‘the National Shawmut Bank of Boston, Massachusetts on September 26, 1946. 24. Defendant specifically denies that plaintiff com- — (fol. 31] plied with Article 4 of the contract: entitled “Changed Conditions”.. Denies liability for any increased costs incurred by any subcontractor -of plaintiff for which plaintiff was not itself obligated to the subcontractor. 25. Denies each and every allegation of the petition not herein expressly admitted, or admitted with nd : . fications. WHEREFORE defendant deiticnds judgment that the beti- tion be dismissed with all costs taxed against plaintiff. , WARREN E. BURGER, Assistant Attorney General, ; Civil Division. ‘EDWARD L. METZLER, .. © Attorney, Civil Division, Department of Justice. — wo bene - ee acai ‘ bie 34 COMMISSIONER DAY: This very issue is up before . the Court of Claims right now, that is as to whether or not there should be a trial de novo or as to whether«the - Plaintiff is limited to what is shown by the administra- tive rd. Until the Court comes down with something more definitive than they have heretofore, I am going to Appeals Board on December 14, 1948, appended to which was a certified copy of Decision No. 14 of. the Corps of Engineers Claims and Appeals Board, relating to the appeal that I have just mentioned. That was dated December 9, 1948. ‘o | P Exhibit No. 3 is a letter addressed to Carlo Bianchi and Company, Inc., by the Recorder of the Corps of Engineers Claims and Appeals Board on January 14, 1949, appended to which is a supplementary opinion _. rendered by the Board, under date of January 3, 1949. MR. KNOX: Mr.’ Commissioner, I now offer into evidence Plaintiff’s Exhibits Nos. 1, 2 and 3. MR. METZLER: No objection, subject to compari- son and verification. ; COMMISSIONER DAY: Admitted. (The documents heretofore marked for identifica- tion as Plaintiff’s Exhibits Nos. 1, 2 and 3, were made a part of this record) » ‘ : MR. KNOX: We request with respect to Plaintiff’s - Exhibits Nos. 2 and 3 that we may substitute photo- static copies. . "@ ' [fol. 22]: MR. METZLER: No objection. COMMISSIONER DAY: Very well. : MR. KNOX: Will you idéntify this document as Plaintiff’s Exhibit No. 4-A and B, Mr. Reporter? (Contractor’s copy of original contract agreement with the Department of the Army, U. S. Engineers Office, Contract W-30-180-eng-397, dated July 3, 1946 Bg hoe for identification as Plaintiff?s Exhibit o. 4-A. oe | (Bound ‘set. of _the contract drawings applicable to. said contract, enclosing copy of Addendum No. 1° - hey for identification as Plaintiff’s Exhibit 0.°4-B.) . BY MR. KNOX: © Q. Mr. Sullivan, I now hand you Plaintiff’s Exhibit No. A-A marked for identification and Exhibit No. 4-B like- 40 P wise marked for identification, and request that you identify those documents. A. Exhibit No. 4-A consists of the Contractor’s copy of the original contract agreement with the Department of the Army, U. S. Engineers Office, Contract W-30-180- eng-397, that contract being dated July 3, 1946. ; Enclosed in the same folder is a set of the contract specifications, together with Addenda No. 1 and 2 there- of. Exhibit No. 4-B is composed of a bound set of the -[fol. 23] contract drawings, applicable to that contract. - Enclosed in it, as well, is a copy of Addendum No. 1, together with an additional set of eight drawings, re- vised, which accompanied Addendum No. 1." . MR. KNOX: Mr. Commissioner, at this time I would like to offer Plaintiff’s Exhibits Nos. 4-A and 4-B. MR. METZLER: Mr. Commissioner, we have no ob- — jection to the introduction of Plaintiff’s Exhibits Nos. — 4-A and 4-B, subject to comparison and verification. However, attention is called to the fact that the contract counsel offered is incomplete, and that there were numer- ous changes subsequent to the time that it was entered into. COMMISSIONER DAY: If they do not intend to offer them, you can.- You can round it out. ‘MR. METZLER: I am just calling attention right now that the document is objectionable, in so far as it is an incomplete copy of the contract which was entered into between the parties. I think the burden is on the Plaintiff and not on the Government to introduce the com- . plete contract. _ COMMISSIONER DAY: Off the record, Mr. Re- porter, please. (Discussion off the record.) . COMMISSIONER DAY: Back on the record. Is. --. your objection satisfied now, Mr. Metzler? MR. METZLER: If these documents as offered in- clude the complete contract and the modifications, I think that it would be complete. However, I have not had time [fol. 24] to examine these documents as yet. 41 COMMISSIONER DAY: They will be subject to veri- fication. — MR. METZLER: Very well. MR. KNOX: Always. (Plaintiff’s Exhibits Nos. 4-A and 4-B ‘were re- marked as Plaintiff's Exhibits Nos. 4-A! and 4-A?.) (Modifications and changes of contract was marked ' Plaintiff’s Exhibit No. 4-A*.) MR. METZLER: That is satisfactory. . MR. KNOX: I want to offer these documents subject to substitution of the change orders because these are the originals, and we would like’to have them. batk, and they can always be verified. COMMISSIONER DAY: Very well. They will be received. | MR. KNOX: Off ‘the record. >) (Discussion off the record.) | ™S COMMISSIONER DAY: Back on the record. BY MR. KNOX: Q. Mr. Sullivan, in- relation to Plaintiff's Exhibit No. 4 for identification, I now hand you Plaintiff’s Exhibit ‘No. 4-A?, 4-A? and 4-A* marked for identification and will you state what these.consist of? A. First, .No. 2 is a folder in which are. contained a [fol.25] series of change order modifications officially made by the Corps of Engineers to the contractor. . There are sixteen of them. And these are the contractor’s signed copies. No. 4-A® consists of a typewritten faesimile of the original Contract W-30-180-eng-397, dated July & 1956 with the War Department, U. S. Engineers Of- ce. - MR. KNOX: Mr. Commissioner, I now offer into evi- dence as Plaintiff’s Exhibits 4-A', 4-A?, and 4-A® the documents described by the witnéss, with leave to sub- stitute for Plaintiff’s Exhibit 4-A? true and authentic copies of the change of orders and modifications. MR. METZLER: I have. no objection to substituting a photostatic copy if that is what you mean. 42 MR. KNOX: Photostatic copies will be furnished. THE WITNESS: They are not photostatic. copies. _ One is. Most of them are ditto copies representing an extra copy furnished to us by the Corps of Engineers. Two or three of them are typed completely, as you will - see. _ MR. KNOX: They are all subject to verification. _ MR. METZLER: I have no objection subject to com- parison and verification and provided that legible: — | are furnished. COMMISSIONER DAY: There is no point in piving : . us anything that we can’t read, because it won't be read, anyway. MR. METZLER: We might want to read it, too. MR. KNOX: With the exception of the first two. sheets. . [fol. 26] COMMISSIONER DAY: They, are admitted. (The documents heretofore marked for identification -Plaintiff’s Exhibits Nos. 4-A‘, 4-A? and 4-A® were - made a part of this record.) MR. KNOX: Off the record. (Discussion off the record.) — oie COMMISSIONER DAY: Go ahead, Mr. Knox. MR. KNOX: Mark | this Plaintiff’s Exhibit No. 5, please. | , (Letter addressed by Col. A. C. Welling, District Engineer of the Baltimore District of Corps of Engineers, dated July 20, 1949 to Carlo. Bianchi & Co., Inc. was. marked Plaintiff’s Exhibit No..5 for identification. ) BY MR. KNOX: Q. Mr. Sullivan, I now hand you Plaintiff's Exhibit - _ No. 5 marked-for identification. Will you identify. it? A. This is a letter addressed by Colonel A. C. Welling, - District Engineer of the Baltimore District of the Corps of Engineers, on July . 20, 1949 to Carlo “Bianchi and Company, Inc., informing the contractor that all work | «43 and services in connection“with Contract W-30- 180-eng- 397 was satisfactorily completed in accordance with the. terms of the contract on June 30, 1949 and are hereby accepted. : COMMISSIONER DAY: You may be seated while you are testifying, if you like. {[fol.27] THE WITNESS: Thank you. — MR.’ KNOW: I now offer Plaintiff’s Exhibit No. 5 for identification in‘ evidence. . MR. METZLER: No objection. COMMISSIONER DAY: . Admitted. (The document heretofore marked for identification Plaintiff’s. Exhibit No. 5 was made 4 part of this record.) MR. KNOX: Mark this document Plaintiff’s Exhibit - 6 for identification, please. (Climaticalogical data from U.S. Weather tess, Albany, New York, for December 1946 through May 1947 was marked for identification Plaintiff's “Ex-.: hibit. No. 6.) ‘BY MR. KNOX: Q. Mr. Sullivan, I now hand you Plaintiff’s Exhibit. No. 6 marked for identification, consisting of certain printed documents, and ask you to identify this exhibit. A. This éxhibit -consists of the climaticalogical data — from the U. S. Weather Bureau, Albany, New York, covering the months of December 1946 through May 1947, together with a certification by Harold J. Smith, Acting Meteorologist in charge at Albany, that the six ‘publica- , tions are. official rn of the United States Weather Bureau: Q. Mr. Sullivan, do these weather: reports to which you - have referred show the precipitation and temperatures at [fol. 28] the area at the Almond Tunnel? ___ A. Yes, they cover the so-called New York Section in- cluded, in which is an official U. S. Weather Station at Alfred University, and the data covering daily precipi- . tation is shown in detail. » M4 @ For wink pera? A. For all those months that I named, from — ber 1946 through May 1947. MR. KNOX: Mr. Commissioner, I now - offer Plain- _ tiff’s Exhibit: No. 6 for identification into evidence. MR. METZLER: I have no objection to these re- ports being received,. subject to some relevancy being later established. : _ COMMISSIONER DAY: They may be received. (The document heretofore marked for identification Plaintiff's Exhibit No. 6 was made a part of this record.) - COMMISSIONER DAY: Suppose we take about a five-minute recess at this point and let’s limit it to five minutes. - (Short recess. ) COMMISSIONER DAY: Proceed. BY MR. KNOX: Q. Mr. Sullivan, I now hand you: a. document Hae for identification as Plaintiff's Exhibit No. 7. Will you identify it? . A. This is the .contractor’s file copy of a letter dated (fol. 29.) O@gober 14, 1946 addressed to Mr. D. E. er Resident Engineer. (Copy of letter dated October 14, 1946 to Mr. D. E. . Mather, Resident Engineer, was marked for identifi- cation Plaintiff’s Exhibit No. 7.) - (Letter to Carlo Bianchi & Co., Inc., from Resident . Engineer on Oct. 17, 1946 was marked for identifi- cation Plaintiff’s Exhibit No. 8.) | BY MR. KNOX: _-Q. I now hand you Plaintiff's Exhibit No. 8 for | identi- aan Will you briefly describe it so we can identify it A. No. 8 is a letter: addressed to Carlo Bianchi & ' Company, Inc., by the Resident Engineer on October 17. 1946. This is.an original letter ao om ) -Q. I now hand you Plaintiff's Exhibit No. 9, marked for identification. (Contractor’s file copy of letter to. District Engineer at Baltimore, Maryland, on December 12, 1946, was marked for identification Plaintiff's Exhibit, No. 9.) BY MR. KNOX: | Q. Will Ege please tell us what that is? A. No. 9 is the contractor’s file copy of a letter ad- dressed to. ia District Engineer at Baltimore, Maryland on Deceinber 12, 1946. (fol. 30] (Letter by Col. J. S. Sebold, District Engineer, to Carlo ‘Bianchi & Co., Ine., dated December 18, 1946, was marked for identification Plaintiff's Ex- hibit No. 10. | ay BY MR. KNOX: ee Q. ‘I now hand you Plaintiff’s Exhibit No. 10 marked for identification, and ask you what that is? A. No. 10 is a letter written by Colonel J. S. Sebold, _ District Engineer, to Carlo Bianchi & Company, Inc.,. on December 18, 1946. This is an original letter. (Contractor’s file copy of letter to Resident: Engineer . on December 18, 1946 was marked for identification Plaintiff's Exhibit ‘No. 11.) , BY MR. KNOX: QI now hand you Plaintiff's Exhibit No. 11 marked | for identification. A. No. 11 is the contractor’s file copy of a letter ail- dressed to Resident Engineer on December 18, 1946. ’ (Original letter from Resident Engineer to Carlo Bianchi & Co., Inc., on. December 20, 1946 was © marked - for identification as Plaintiffs ‘Exhibit: No. 12.) | BY MR. KNOX: Q. I now hand you Plaintiff’s Exhibit No. 12 marked | for identification. | i": A. No. 12 is an original letter written by the Resident {fol. 31] Engineer to Carlo Bianchi & Company, Inc., on December 20, 1946. (Original letter written by the District Engineer to Carlo Bianchi & Co., Inc., on. December 20, 1946 was marked for identification ’Plaintiff’s Exhibit No, 13.) BY MR. KNOX: : -Q. I now hand’ you Plaintiff's Exhibit No. 18 marked for identification. A. This is an original letter written by the District Engineer to Carlo Bianchi & Company, Inc., on December 20, 1946. (Copy of letter to District Ganineee on Decuaber 27, 1946 was marked Plaintiff’s — No. 14 for. identification. ts BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit No. 14 marked for identification. _ A. No. 14 is the contractor’s file copy of a letter writ- ten to the District Engineer on December 27, 1946. (Original letter from’ District Engineer to, Carlo Bianchi & Co., Inc. on January 3, 1947 was marked | Plaintiff’s Exhibit No. 15 for. identification. ) BY MR. KNOX: Q. Now I hand you Plaintiff's Exhibit No. 15 marked for identification. ; _ (fol. 32]. A. No. 15 is an original letter written by the District Engineer to Carlo- Bianchi & Company, Inc. on January 3, 1947. (Contractor’s file copy of letter to Resident Engineer on January 14, 1947 was marked for identification Plaintiff’s Exhibit No. 16.) | BY MR. KNOX: Q. I now hand you Plaintiff’s Exhibit No. 16 marked ; al identification. ¢ | - en A. No. 16 is the ominsitiae! S file « copy of a letter ad- ' dressed to the Resident Engineer on January 14, 1947. (Contractor’s file copy of letter to Resident Engineer on January 14, 1947 was marked for identification Plaintiff’s ‘Exhibit No. 17.) . ‘ BY MR. KNOX: Q I now hand you Plaintiff's Exhibit No. 17 ‘aaitiad for identification. ° A. No. 17 is the contractor’ s file copy of a letter ad- dressed to the Resident Engineer on January 14, 1947. (Original letter from Resident Engineer on January 20, 1947 to Carlo Bianchi & Co., Inc., was marked for identification Plaintiff’s Exhibit No. 18.) BY MR. KNOX: Q. I now hand you Plaintiff’s Exhibit No. 18 for identi- fication, and ask you what that is. - A. No. 18 is an original letter written by the Resident | (fol. 33] Engineer on January 20, 1947 to Carlo’ Bianchi ! _ & Company, Inc. Contractor’s file copy of letter to District Engineer on January 24, 1947 was marked for identification Plaintiff's Exhibit No. 18-A.) BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit ‘No. Ba: marked for identification. | A. Plaintiff’s Exhibit No. 18-A is the contractor’s file copy of .a letter ‘addressed to the District Engineer " ¥ - January 24, 1947. (Original letter from, District ‘Engineer to Cute Bianchi & Co., Inc., on February 3, 1947 was marked - for identification Plaintiff’s Exhibit No. 19.) | . BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit No. 19- marked for identification. | 48 A. No. 19 is an original letter written by the District — Engineer to Carlo Bianchi & Company, ncaa on re -8, 1947. (Copy of letter dated April 10, 1947 to Resident Engineer was marked f identification, 7 Sphiit No. 20.) : : BY MR. KNOX: * Q. I now hand you Plaintiff's Exhibit No. § 20 marked for identification. A. No. 20 is a contractor’s file copy of a letter dated: [fol. 34] April -10, 1947 addressed to the Resident Engi- | neer. (Original letter from Assistant Resident Engineer to 7 Carlo Bianchi & Co., Inc., on April 14, 1947 was _ marked for identification Plaintiff's Exhibit No. 21. ) BY MR. KNOX: _—_—.- Q. I now hand you Plaintiff’s Exhibit No. 21 marked for identification. A. No. 21 is an original letter written by Dale Lasey, Assistant Resident Engineer, on April 14, 1947, to _— . Bianchi & Company, Inc. . (Photostatic copy of letter from Carte Bianchi & Co., . ' Ine. to Resident Engineer on April 238, 1947 was | marked for identification Plaintiff’s Exhibit No. 22.). BY MR. KNOX: Q. I now hand you ‘Plaintiff's Exhibit No. 22 marked for identification. © A. No. 22 is a photostatic copy of a letter addressed ° by Carlo Bianchi & Company, Inc. ‘to the Resident Engi- neer on April 23, 1947. . (Photostatic copy of letter frem Carlo Bianchi & Co., _ Ine. to District Engineer, April 23, 1947 was marked for identification Plaintiff’s Exhibit N 0. 28.) | BY MR. KNOX: 3 , Q. I now hand you Plaintiff’s Exhibit No. 23 marked ‘ (fol. 35] for identification. 49 A. No. 28 is a photostatic copy of a letter addressed by Carlo Bianchi & Company, Ine. to the District Engi- neer on April 23, 1947... (Original letter from District Rnliteaer to "Carlo Bianchi & Co., Inc.; May 5, 1947 was marked for*.. | identification Plaintiff’s Exhibit No. 24.) | BY MR. KN OX: Q. I now hand you Plaintiff’s Exhibit No. 24 marked for identification. A. No. 24 is an original letter from the District. Eng!- neer to Carlo. Bianchi . Company, Inc., dated May: 5, 1947. ni (Continctor’s file copy of a letter to ‘District Engi- neer on May 26, 1947 was marked ~ identification _Plaintiff’s Exhibit No. 25. et 7 BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit No. 25 marked for identification. — A. No. 25 is the contractor’s file copy of a. letter writ- ten to the District Engineer on May 26, 1947. _ (Contractor’s file copy of @ letter to Secretary of _War, Washington, D. C. from Carlo, Bianchi & Co., -Ine.,-on May 29, 1947, was marked for identifica- tion Plaintiff’s Exhibit No. 26. ) = [fol. 36] BY MR. KNOX: Q. I now hand you Plaintiff’s Exhibit No: 26 marked for identification. | A. No. 26 is the contracto s. file copy of ‘a letter ad- dressed to the Secretary of War, Washington, D. C., by - the: ‘Carlo Bianchi & Company, Ine.; on May 29, 1947. " (Contractor’s file copy of letter addressed to ‘District Engineer on May 29, 1947 was marked for identifi- cation Plaintiff’s Exhibit No.. 26-A.) BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit No. 26-A initia ‘for identification. ae Foe - © me 26-A is the contractor’s file copy a: a letter ad- dressed: to the District Engineer on May 29, 1947. (Original letter from B. C. Samples, Chief Construc- 2 tion Division, Corps of Engineers, to Carlo Bianchi tees ~& Co., Inc., on June 2, 1947 was marked for identi- fication«Plaintiff’s Exhibit No. 27.) BY MR. KNOX: Q. I now hand you Plaintiff’s Exhibit No. 27 for iden-~ tification. A: No. 27 i an original letter addressed by B.C. | . Samples, Chief Construction Division, Corps of Engi- i947. to Carlo’ a & Company, Inc., on June (2, 1947. 3 [fol. 37] ( Original letter to Carlo Bianchi & Co., Inc., . from W. H. Fox, Recorder of the Corps of Engineers Claims and Appeals Board, June 5, 1947, was marked for identification Plaintiff’s Exhibit No. 28.) . BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit No. 28 marked - for identification. A. No. ‘an original communication addressed to Carlo Bian Company, Inc., by W.-H. Fox, Recorder . | of the Corps ngineers, Claims and Appeals Board, Washington, D. €., dated June 5, 1947. (Original letter from District Engineer to Carlo Bianchi & Co., Inc., June 13,'1947 was marked for identification Plaintiff's Exhibit No. 29.) - BY MR. KNOX: Q. I now hand you Plaintiff's Exhibit No. 29 iaamia = oe for identification. A, No. 29 is an original letter written by the District Engineer on June 13, 1947 to Carlo Bianchi & Company, Inc. | ‘eiaiiaaats file copy of a , letter addressed to the District Engineer on June 23, 1947 was marked for pieces Plaintiff’s Exhibit No. 30.) > : 51 BY MR. KNOX: Q I now hand ybu Plaintiff's Exhibit No. 30 ‘eames fot identification. . . [fol.. 38] A. No. 30.,is the contractor’s file copy of a ', - letter addressed to the’ Dishrict Engineer on. June 23, cr 1947. PES 3 ' (Contractor’s file copy of a letter to Resident Engi- -neer from Carlo Bianchi & Co., Inc., June 23, 1947. ; was marked for identification Plaintiff's‘ Exhibit No. eee BY MR, KNOX; ; Q. I now hand you Plaintif’s Exhibit No. 31 tre af : a identification. A. No. 81 is the. contractor’s file copy of a letter ad- dressed ‘to the Resident Engineer by Carlo Bianchi & - Company, Inc., on June 23, 1947... | (Contractor’s file copy of a letter to District: ‘Engi- neer, July 25, 1947 was marked for identification ; as Plaintiff’s Exhibit No. 32.) BY MR. KNOX: Q. I now hand you. Plaintiff's Exhibit No. 32 marked for identification. . A. No. 82 is the contractor’s file copy of a 1 letter ad- _. dressed to the District Engineer on July 25, 1947.. : (Contractor’s file copy of a letter addressed to the Resident Engineer on July 30, 1947, was marked for identification Plaintiff's Exhibit - No. $3.) aes , BY. MR. KNOX: now hand ‘you. Plaintiff's Exhibit No. 33 for : stot 00) identification. A. No. 33 is-the contractor’s file copy of a letter ad- : dressed to the Resident Engineer on July 30, 1947. (Contractor’s file copy of a letter addressed to the - District Engineer on August 1, 1947 was marked for identification as. Plaintiff's Exhibit ‘No. 34.) LOL ptm Speer EO Fares 3 be oh Pt ons id Secthen elt ig , 7, 3 . - ‘ ¢ ‘ : = : one ‘ ‘ rf e : . ; ‘ F f ] By f Hag ‘ unpre ae ee re nL y t, GO LI AMELIA ALAIN A EEK INE A ngs 32 eat ae * " rt r P " cers 4 SRA i BSL SIAR OSS ASN BOAT AL AL ONLY AG a Rt puntcnemmedaruatsins - cinenaieemnemaal neeeehenmmeacame , stuea bite eens 4 snag ised : . $ r ° ese ° conan aie " area hey ics BA ie SEN A FGA BIBS PETC BI OO Blah LPR HER 7 tener Fie MA a8 t he Fh, LEW SIRS Le jee aSg eel aa Ae Sie neem ONG TOs * . ‘ von ‘ E sendisas vr: 4 ae asl iE r onsen pen hee yim verty BRR APE np oe GAGE manne ae lak ath ARB: Sct NOE Ce en ene ae ITT APO) ETN aT, See OR SR ET i he na a ’ Re arpa tin es rir Mele og FALEARS on mg ee ery rR cama PRIA NG 0 a om f j arn Mr F it er Oy ne Tig Nt TS hex 9 RON FO EM NED eS ok he ORS “aes: od OE _ ‘Thad it put on there i in order to properly study the letter itself. MR. METZLER: ‘It. will be so considered, —_ that this is not a part of the comunication? THE WITNESS: You can tear it off if you. want to. COMMISSIONER DAY: It may be received. " (The document. Jieretofore wom identification: Plaintiff's Exhibit No. 7 ‘made a part of this record.) } : COMMISSIONER DAY: With Velipiet to the. objection é that it does not appear that it was before the Board, I am . going to admit. any of these letters over that objection, having in mind that you are going to agree to.or at least — you have told:me that you are going to agree with respect to precisely what letters were before the Board, so that any that were not, obviously were not, - MR. METZLER: The claimant said they were going to establish. that. In so far as I can I will endeavor to agree, but I am not going: to take the position at this time that I , - [fol. 46] can agree’to something without, proof. In so far ” as the proof is known to -me I will admit it, but not . was before the Board? MR. METZLER: Well, Mr. Commissioner, this was ap- : proximately eight years ago. COMMISSIONER DAY: Wasn't there a record made — about what exhibits were before the Board? | MR. METZLER: There was-a transcript of some seventy-nineepages where reference was. made to various . exhibits which were before the Board. - COMMISSIONER DAY: ‘There is no o list of exhibits? « . MR. METZLER: There was no list of exhibits,. no. MR. -_KNOX: Mr, Commissioner, over a year ago I ‘spent 4 a — deal of time « on the we of ‘record, en) . te 4 7 ° a “ . ty a a . alt Aire supe » fs a eo : Re: 5 aa fd he Mora STEEN NEY MAR ee Bs SI NTN RY Seg DS OC an Seis, SCR disper Te > oe, f *s x a. Poe SE ae Same e 3 ‘ oe : 2 2 e ey . oars eee Bion ee en nee ee a a i ye eS bd ar : ‘ > ihaiitha an lengthy letter to Mr. etsice Wenttiyiag” mere all the ’Plaintiff’s ‘exhibits in the~transcript, including _ photographs. I submitted it to Mr.- Metzler and he re- . ferred it to Mr. ‘Thompson in the Department of Justice, and they had it for about two months and I was trying | to get-them to stipulate what the record was because it __isnot too clear in the’ transcript, because the way they — “ identified some of the exhibits, some of the photographs were just handed to ‘the administrative board, and that is true of thé Government photographs and exhibits as well as Plaintiff’s, and I teed to stipulate the -complete [fol. 47] record but I was never successful in “getting: an, - ' agreement on it. You may recall that, Mr. Metzler. MR.. METZLER: ‘We made some efforts to consider - this and in so far as it was possible we did, but even at.- the present time you apparently aren’t able to state whether or not this letter of October 14, 1946 or October — 17; 1946: was before the . If it was then I will -withdraw my objection, that is all. COMMISSIONER DAY: If the Board did not make some kind of record, you can understand, sufficiently to determine that question quickly, well, I would overrule your objection pretty rapidly on that.-: * : ! - MR. METZLER: e record before the Board 23 Pops presented by the Plaintiff, which was represented by - sb another counsel at that time, I think is reasonably clear. However, in the records that I have of the numerous - exhibits it does not appear. to me.af this time ¢that.these specific documents were. before the Board; and: I am ~ quite confident that many of the others which have been offered today were not before the Board, either. te COMMISSIONER DAY: 8 is admitted. . ‘Let us move to 23% (The document, Lienrotiliere marked for identification a eee ee See ” reco MR. METZLER: The reason I say that, Mr. Com- [fol. 48] missioner is because the exhibits that were be- fore the Board were numbered A to N. And then several exhibits were numbered | AA’ to EE, and there are far. “ 8 a il : \ 4 LA py vv XB oe} Hanah gan Pianen et ge age? ae more than’ that offered here ‘today by counsel. But the =s ‘fecord is, I think, clear. 7 The same objection is made with respect ‘to Plaintiff's Exhibit No. 9. - ae COMMISSIONER DAY: Admitted. , aa! | (The document heretofore nacho for identification - Plaintiff's Exhibit No. 9 was made & part of this _ record.) . MR. METZLER: The : same objection with saa; to Plaintiff’s Exhibit No. 10. ‘COMMISSIONER DAY: Admitted. _ (The document heretofore marked for identification | ‘Plaintiff’s Exhibit No. 10 was made a wert 5 . record. ) MR. METZLER: Plaintiff's ibit, No. 11 appears to . have been before the Board, but objection is made to relevancy and materiality, Sandan unless that is established. ° om. COMMISSIONER DAY: It may be received. © (The document heretofore. marked for identification Plaintiff's ae No. 11 was made a Lah of this record.) | | MR. METZLER: ‘If you will notice, Mr. Cisiniealenien this is signed apparently by someone other than the wit- ness by whom it was identified. [fol. 49] COMMISSIONER DAY: Yes. MR. METZLER: I mean I don’t think this witness is in a position to testify with respect to the contents of the document in so far.as it is offered to show that “it was sent. I mean I have no objection to that. COMMISSIONER DAY: That is all it could possibly : be at this point. MR.’ METZLER: If that’s the understanding, ‘it may speed up my objection. COMMISSIONER DAY: The witness has not testified | with respect to the contents of the letter, Mr. Metzler. MR. METZLER: All right. , Plaintiff's Exhibit No. 12, no objection. i ae ~ . . . ~ om ‘ ~_ ~ . ., . ee ee Pac} ee 2? a oe a om it» eat Cas 4a Oe 9 ee 4 SHES ore Be arena pene myelnnaeatan oe alrss = re ata ae 2 Uae ey Sac, EPS SES SRN Ts OES gerne > eee CR eee cn eas Se ae. a5 a = = ~ - . - . ; * e - COMMISSIONER DAY: Admitted. ON hab (The document. isretofore -marked for identification - Plaintiff's Exhibit ‘No. 12 ‘was made Pad -part ¢ this’ -record. MR. METZLER: Mr. Sullivan, may od ah is it not ‘ies -2 "true that ‘the appendages were not a part of the original letter, Plaintiff’s Exhibit. No. 18?. - - THE WITNESS: Thesame situation prevails here. ' There were various references in here, as yo note, to ‘Specifications, and: these simply facilitate - Gooding. s a. ee "MR. METZLER: They were not part of the original? THE WITNESS: They were not part of the original. [fol. 50] .MR. KNOX: Mr. Commissioner, let’s remove that and see if we can get along: We had one other the _ Same\way'and we will check that; Pe METZLER:. Let’s let it as ‘it is.. Don’t destroy. e rd. “tea ISSIONER DAY: ‘He if with awing the part you had a question about. . MR. KNOX: Here is the original exhibit as we had it marked for identification. This is not part of it. - MR. METZLER: I have a further objection that it does _ not appear that Plaintiff’s Exhibit No. 13 was before the -Appeals Board, either, Mr. Commissioner. : COMMISSIONER DAY: It may be received. re (The document heretofore marked for identification os ' Plaintiff's Exhibit No. 13 was made- a part of this record.) MR. METZLER: Same. objection with respect to Plain- _ tiffs Exhibit.No. 14. .- : | - COMMISSIONER DAY: Acdmitted. (The document heretofore marked for identification — Exhibit No. 14 was made a -_ of this record.) — MR. METZLER: Same objection with respect to Plain- © tiff’s Exhibit No. 15. « COMMISSIONER. DAY: Admitted. ee e . . E >: > 2 60 ee * “i . * \ . . a 4 ; ; % F id . £ “ bd [fol. 51] (The document heretofore marked for iden- tification Plaintiff’s Exhibit N8. 15 was made a a of this record.) MR. METZLER: ‘Same objection with “respect to No. 16. COMMISSIONER DAY: Admitted. tay (The ‘document heretofore marked for identification _ Plaintiff’s Exhibit No. 16 was made a bart of this _ record.) MR. METZLER: Same ehdestion with respect to - RY. - ‘COMMISSIONER ‘DAY: Admitted. (The document heretofore marked for identification ' Plaintiff’s Exhibit ™ 17 was made a part of this ‘record.). MR. METZLER: No. objection to 0. 18, with ‘the re understanding that the various additions made to the portion did not appear on the original. "COMMISSIONER DAY: _ Admitted with that under- a _ (The document heretofore marked for identification a pho ay Exhibit No. 18 was made a = of this record. ) _ MR. METZLER: The same objection with seibeias to : _Plaintiff’s Exhibit No: 18-A, namely, that: = does not appear to have been before the Appeals Board,)Mr. Com- ‘missioner. COMMISSIONER DAY: It may’ be receive. _/ _ (The document: heretofore’ marked for identification 3 uk) Exhibit No. 18-A was made a part of this reco , . [fol. 52] MR. METZLER: ‘aie objection with respect to Plaintiff's. Exhibit No. 19. oO COMMISSIONER DAY: Admitted. . (The document heretofore marked for identification Plaintiff’s Eppihit No. 19 was made a part of this Q) 61 “MR. METZLER: ‘We an the vealed of Plaintiff's - : Exhibit No. 20 in that it was before the Appeals Board. COMMISSIONER, DAY: It may be received. (The document: heretofore marked for identification . Plaintiff’s: Exhibit No. 20 was made a asi of this - record.) . Mi. METZLER: No. tie to No. 21. COMMISSIONER DAY: Admitted. (The document heretofore marked for identification Plaintiff’s Exhibit No. 21 was made | a part of this record. ) _ MR. METZLER: Iti is understood that in all cases, Mr. Commissioner, where there is a copy that we will have the : opportunity. to make a comparison or verification of the original. COMMISSIONER DAY: Oh, certainly. MR. KNOX: Where the original is in your possession. MR. METZLER: That’s right, yes. We admit the ‘receipt of No. 22 and that it was before _ the Appeals Board. [fol. 53] COMMISSIONER: DAY: Admitted, (The document heretofore marked for identification Plaintiff’s Exhibit No. 22 was made a part of this record.) - MR. METZLER: The same is also true with ee to No. 23. —: _ COMMISSIONER DAY: Admitted. (The document heretofore marked for identification Plaintiff’s ‘Exhibit No. 23 was made a part of this record.) - - MR. METZLER: Also No. 24. COMMISSIONER DAY: “Admitted. (The document heretofore marked for identification rie ay Exhibit No. 24 was made a wc of this reco ¢ MR. METZLER: We admit the receipt of No. 25 and , that it was before the Appeals Board is also a . leniumes Se awe eS Og eal . COMMISSIONER DAY: Admitted. (The document heretofore marked for identification ‘Plaintiff's Exhibit No. 25 was made a part ‘of this” record. ) MR. METZLER: No objection to No. 26. — COMMISSIONER DAY: Admitted. (The document heretofore marked for identification Plaintiff’s Exhibit No. ‘26 was made a part. of this record. ) MR. METZLER: No objection to No. 26-A. - [fol. 54] COMMISSIONER DAY: Admitted. ‘(The document heretofore marked for identification Plaintiff’s Exhibit No. 26-A. and was made a part of . this record. ) MR. METZLER: Objection, to Plaintiff's. ‘Exhibit No. 27 in so far as it does not appear that it was before the Appeals Board and, of course, no relevancy or no ma-- teriality has been established. , COMMISSIONER DAY: Let me see it. (Desmnint handed to the Commissioner) —~ -- It may be received. (The document hepetofore marked for identification Plaintiff’s ean No. 27 was made a part of this record.) * MR. METZLER: No objection to No. 28. COMMISSIONER DAY: Admitted. . _ (The document heretofore marked for identification - —— Exhibit No. 28 was made a part of this record.) MR. METZLER: No objection to No. 29. COMMISSIONER DAY: Admitted. (The document heretofore marked for identification a Exhibit No. 29 was made a cared of this reco MR.. METZLER: No. objection to Plaintiff’s Exhibit No, 30 in so far as the receipt or the fact that it was before the Appeals Board. ‘[fol. 55] COMMISSIONER DAY: Admitted. ° (The document heretofore marked for identification Plaintiff's. Exhibit No. 30 was made a Pert of this ‘record. ) | _ MR. METZLER: No. 31 is ahjected to on.the ground that it does not appear that this was before the Appeals Board and on — grounds of relevancy previously stated. COMMISSIONER DAY: Let-me see it. Whenever you object to relevancy I will have to see it. MR. METZLER: I understood, Mr. Commissioner, that this ruling was based solely on the question of whether ~ these documents were received, it being understood in all cases that the witness on the ’stand who identified these documents was: not established to be competent to testify . with respect to the contents. _ COMMISSIONER DAY: That is. right. If you are going to.make any other objection then I have. to take a look at it. MR. METZLER: I merely put that in. Mr. Commis- ; sioner, it has a reservation so our position would be as clear as I could make it. COMMISSIONER DAY: Whenever you make it I have- to see the exhibit so I can rule | on it. It may be received. (The document heretofore marked for identification | Plaintiff’s Exhibit. No. 31 was made a part of this - record.) -[fol. 56] MR. METZLER: We siete the receipt. of No. 32 and that it was before the Appeals Board. - COMMISSIONER DAY: Admitted. (The document heretofore marked ‘for identification ; cio Exhibit No, 32 was made a part of this record.) MR. METZLER: No. 33 is objected to as not being . — the Appeals Board. 64 . COMMISSIONER DAY: Admitted. (The document heretofore marked for identification Plaintiff's Exhibit No. 33 was made a part of. this record. ) . MR. METZLER: The same objection with respect to No. 34... COMMISSIONER DAY: Admitted. . (The document heretofore marked for identification Plaintiff’s, Exhibit No. 34 was made a part of this ~ record.) MR. METZLER: No objection to No. 35. - COMMISSIONER DAY: Admitted. (The document heretofore marked for identification Plaintiff's Exhibit No. 35 was made a part. of this record. ) ' MR. METZLER: We admit the. vecaipt of No. 36 and that it-was before the Appeals Board. | COMMISSIONER DAY: It may be received. (The document heretofore marked for identification . Plaintiff’s Exhibit No. 36 was made a maa of this record.) ~- [fol. 57] COMMISSIONER DAY: We will recess at this time until 2:00 o’clock. (Whereupon, at 12:40 o idiots p. m., the hearing was adjourned until 2:00 o’clock p.m.) AFTERNOON SESSION. (2: 00 o’clock p.m.) — ' COMMISSIONER DAY: You may proceed, gentlemen. .THOMAS R. SULLIVAN, resumed the witness-stand, . - having been previously sworn by said’ Commissioner, and testified further as follows: @ , DIRECT EXAMINATION (Cont'd) MR. KNOX: I would like to have this document marked for identification as Exhibit No. 37, Mr. Reporter. \ 7 , .o- 8 65 (Order iesued by Department of Labor of the State of New York, Bureau of Mines, Tunnels, Quarries and Explosives was marked for identification: as Plaintiff's Exhibit No. 37.) BY MR. KNOX: Q. Mr. Sullivan, I ‘tana you Plaintiff’s Exhibit No. 37 marked for: ‘identification. Will you state what it consists of? A. This Exhibit No. 37 is an order issued by. the De- partment of Labor of the State-of New York, Bureau of Mines, Tunnels, Quarries and Explosives, on ‘their . Form No. 407 which directs Carlo Bianchi & Company, Inc.— MR. METZLER: I object to the witness testifying to [fol. 58] any document not in evidence. COMMISSIONER DAY: Sustained. - BY MR. KNOX: Q. Mr. Sullivan, was that order received i in your office? A. That is right. camel MR. KNOX: I now. offer‘as Plaintiff's Exhibit No. 37° | 7 the document referred to by the witriess. _ MR. METZLER: No objection to the receipt of the. document in evidence, showing it was one received by _ the plaintiff. We do object to it, in so far as the contents - are concerned, unless the person who wrote the document . is available for cross-examination. : MR. KNOX: Mr. Commissioner, this is. shown to be an official order of the Department of Labor of the State of New York, and I think it speaks for itself. -~ COMMISSIONER DAY: I think that Mr. Metzler’s _ objection is good as to the contents. He is willing to. concede.that you received this,“but when you want to prove— . MR. KNOX: We will introduce it on that basis. _ COMMISSIONER DAY: It may be received on that . (The document heretofore marked for identification | cauat Exhibit. No. 37 was made a part of this reco — 6 MR. KNOX: That it is not proof of the contents? COMMISSIONER DAY: Yes, sir. [fol. 59] _MR. KNOX: Will you mark this document foe identification, please, Mr. Reporter? | (Letter dated August 7, 1956 from J. Harrington, . Vice President of National Shawmut Bank of Boston in re Almond Dam Contract was marked for iden- tification as Plaintiff’s Exhibit No. 38. e) ' BY MR. KNOX: Q. Mr. Sullivan, I now hand you: Plaintiff’s Exhibit No. a: marked for identification. Will you describe this &. eae hibit, please? - : A. This Exhibit No. 38 is an original letter ea on August 7, 1956 by J.:Harrington, Vice President. of the National s wmut Bank of Boston to:T. R. Sullivan, Assistant Treasurer of Carlo Bianchi & Company, Inc., with reference to Contract W-30-180-eng-397, which is the Almond Dam Contract.. - Do you want the contents of the letter? © Q. That letter was addressed to yout A. That is right. © Q. Was there a condition described therein? MR. METZLER: I object to that. COMMISSIONER DAY: Sustained. MR. KNOX: Mr. Commissioner, we submitted this under Rule 28 to Mr. Metzler, to show the genuineness thereof, and I would like to have you look at it. COMMISSIONER DAY: I may ‘have seen it before. (Examining document) Yes, I have seen it. - {fol.60] MR. KNOX: Mr. Commissioner, as I under- stand it now, the objection as to the contents of the letter has been sustained. Is that right?. COMMISSIONER DAY: Merely with respect to this witness’ testimony concerning the contents. MR. KNOX: I see. We will offer the exhibit with that. understanding. : MR. METZLER. I accept the Commissioner’s: ruling. COMMISSIONER I DAY: The offer: of the document has been made. \ w) Nae ‘eo ay BO eo ‘MR. METZLER: I have no objection to it, with the ’ reservation stated; namely, that the witness is competent: © to testify that he received it but as to the contents, we objett to that, unless the witness is present to be cross-. examined on the contents of it. COMMISSIONER DAY: I will have to pera ey that _ objection. He is willing to admit the letter, that you got - the letter, but that‘is all. MR. KNOX: I am marking it it with that eect | « the objec tion. _+~€0 MISSIONER DAY: It may be received.. (The document heretofore marked for identification - Plaintiff’s Exhibit No. 38 was made a part of this . record.) , COMMISSIONER DAY: You can get testimony from | this. witness with@respect as to whether or not the debt to the bank had been extinguished. [fol.61] MR. KNOX: I am 1 going to ask him that ques- tion now. = « - BY MR. KNOX: - Q. Mr. Sullivan, at one time did Carlo Bianchi & Com- - pany execute an assignment to the National Shawmut Bank of Boston in connection with the Almond Dam and -Tunnel Contract? . A. Yes. Q. Would you give us some inkling with respect to the nature of that assignment, and explain it, please? A. In ‘connection with our financing the contract, we ‘made an assignment to the National Shawmut Bank of Boston in October, I believe it was, but that would have to be verified as to the exact date, in 1946, of all moneys due or to become due, which then thereupon were cleared by the Government paying agency ‘to the National Shaw- mut Bank of Boston. There came a point, which was just prior to the is- _suance of the last estimate, the final estimate by the . or when we were no longer indebted to the Pee Be rags pan eae ARN SEE EN or a Feeley kt NET ee Nl Ranges RCE EER esa Oe oe eer a AON SES Ege WN bee SY OURS . : x ee > tea ae: Se X - . Peg ree ee eS See pt Rete s. 2 bs : _ COMMISSIONER DAY: He can certainly testify with respect to the payment made. MR. KNOX: The witness is the assistant treasurer. . He can testify, as to what his corporation did. — COMMISSIONER DAY: Objection overruled. . | [fol.62] MR. METZLER: Then I do not think this witness’ testimony is the best evidence, and I think there: should be some direct evidence to show it. * COMMISSIONER DAY: He can certainly testify as | ‘to whether he paid the bank. Overruled. | -.- MR. METZLER: Exception. THE WITNESS: Our "indebtedness to the bank was . completely wiped out some time prior to the issuance of the final estimate by the Government. COMMISSIONER DAY: By that you mean you paid _the bank? THE WITNESS: Yes, sir. . _ COMMISSIONER DAY: All right. THE WITNESS: It went though: ‘the bienk in the usual routine and they forwarded it to our local bank . ‘in Framingham, in accordance , with instructions ‘from a us. So we owed the bank nothing whatever. - » BY MR. KNOX: | ' Q. Mr. Sullivan, when you refer to the final estimate, do you recall. when that was issued? ’ A. The final estimate? I can get that and present it later, in precise terms, but I believe it was the latter part of the year 1949, but I am not sure.’ I can verify it by _ my records. Q. Mr. Sullivan, referring to certain exhibits which _ have been introduced, which consisted of various pieces of __ : -[fol. 63). correspondence, a number of these pieces .of correspondence, namely, Exhibits Nos.'7, 9, 14, 18-A, 20, 22, 28 and 33, they bear at the bottom of the letter ‘the typewritten notation “T. R. Sullivan.” he you state whether these letters were prepared by you A. ‘Yes, I wrote them. . LA LMMOLER ON M MNM IN AI TOES LPP EINE: | “ ——— _ 5 ? aati ‘MK. METZLER: T object to that as not the best evi- dence. All we ask is that they show that the assignment — - 2 Was paid or. cancelled. MO Diae ie Bes omen naions’ ° . e . Q. So that every letter bearing that notation i As a letter cs prepared by you, is that right? — A. That is correct. Q. Mr. Sullivan, I ‘understand you have checked your “records? A. Yes, sir. . Q..Can you state now ‘hat was the date . final estimate on the Almond Dam and Tunnel Contract? A. The final estimate No. 37-A was dated Februaty 8, 1950, and it was paid, and the Army’s check was received by the National Shawmut Bank on— ‘MR, METZLER: I object again to the witness testify- ing from documents not in. evidence, as to the s source of his information. . THE WITNESS: This is in evidence. : ’ MR: METZLER: This is not in evidence. COMMISSIONER DAY: He can use it to refresh his - recollection, I believe. . . [fol. 64] MR. KNOX: That is what he i is doing. MR. METZLER: I will concede that, Mr. Commnts- _ sioner, if that is what he is doing. © THE WITNESS: This is the facts. MR. METZLER: I want the facts. I am not quibbling about technicalities. If you have some document which © shows the facts, let us have it and get it over with. THE WITNESS: I don’t know whether we want to’ introduce this or not. MR. KNOX: Off the record for a minute, Please, Mr. Commissioner. _ COMMISSIONER DAY: Off the record. (Discussion off the record.) COMMISSIONER DAY: Back on he record. Read the - answer, Mr. Reporter. (Answer read.) “BY MR. KNOX: Q. Will you continue? : A. It was cleared through the National Shawmut: Bank from Baltimore on March 14, 1950. The amount of the check was $12,736.56. Fe ce _, ee git AE Q. So at the time that this check was cleared all. | payments had been made to -" Shawmut Bank; -is' that correct? | . A. Previously. . Q. Previously? [fol. 65]. A. All of this, so there was nothing to be applied by the Shawmut Bank against any indebtedness of ours. It simply went through the mechanics of trans-. ferring the funds. = MR. METZLER: Same objection. COMMISSIONER: DAY: *I am going to sustain that. objection. What happened to the check? THE WITNESS: The Shawmut: Bank cleared the check through our local bank at Framingham, the Fram- ingham. National Bank, as a routine procedure. COMMISSIONER DAY: In other words, it was. de- posited to the account of the Bianchi firm by Shawmut? OTHE WITNESS: Yes, air, because Shawmut had no claim on.- it. COMMISSIONER DAY: In full? a - THE WITNESS: That is right. MR. KNOX: Mr. Metzler, I have concluded iny ex- amination of Mr. Sullivan. | CROSS-EXAMINATION BY MR.. METZLER: ~—Q Mr. Sullivan, do you have any documentary record in your possession, showing that the assignment which was made by the Carlo Bianchi Company to the National Shawmut Bank of Boston was cancelled? -Do you have any documentary record?. A. I have this here, which we:just submitted, which is a letter from Mr. Harrington of the National Shawmut, [fol. 66] confirming the. fact that the assignment was . terminated on March 14th.. °Q. Just answer the question, Mr. Sullivan, and’ don’t : testify about various documents unless you are asked. ~ . Tasked you, do you have any document of the Carlo Bianchi Company? . ; ' A. Right in my possession here? \.. 3 Q. Yes... - A. ‘No. } ‘Q. Does such a document exist? A. I believe we have documentary evidence as to the status, because we would have a record back in our safe of the termination of the assignment. -MR Charles A. McCarron, counsel for appellant. Perhaps a brief statement, may it please the Board, of the posi-- tion of the appellant may be helpful in following the - evidence as we propose to present it. In many. respects there are no substantial differences ‘between the Gov- ernment and the contractor on certain of the basic . facts that will develop in this case. Mr. Fox has clear- ly- stated the position of -the appellant .to this extent that the appellant has lined this entire tunnel with steel liner. plates and appears before this Board asking in equity and good conscience that it be reimbursed by the Government for the installation of these steel liner plates which the contractor felt were absolutely neces-. sary in order to line this tunnel and complete the tun- nel job because of the character of. the rock that was 80 [fol. 5] encountered in the course of boring this tunnel, rock which could not be determined by the information available on the contract drawings and cores that were taken by the Engineers prior to award of this con- tract.- It is our contention that as the excavation for ‘the stilling basin, which was the. first rock excavation, . I believe, began, it became apparent that: the character of the’ rock was of such nature that there existed a real possibility, if not a danger, that trouble would be encountered in the boring of the tunnel, or more spe- cifically, in the lining of the tunnel. That fact: was called to the attention of the Resident Engineer and I want to preface that remark by saying that I have no ‘intention to indulge in personalities or level ‘criticism _ but to state the facts as I understand them. That. fact was called to the attention of the Resident Engineer and it was suggested to him that there did exist a real possibility that the rock inside the tunnel, ffom what was then apparent, would present a serious condition. _The Resident Engineer said he did not think that was so, and there would be no need for additional steel liner plates or permanent protection. He referred at the time to.the job of the Arkport Dam which is less than four miles from this job and with which he had considerable to do and which, I understand, was holed out and lined without any serious trouble. . The work‘of boring the | tunnel began and the conditions which ‘were anticipated rapidly made themselves manifest. Under the terms of the specifications referred to by Mr. Fox, it does not pro- vide specifically for steel liner plates for a distance of. 50. feet at both ends—both inlet and outlet.. During the course of this controversy as the correspondence be- tween the parties develops, you will see. that there has been quite a distinction made between the use of the . words .“temporary protection” and the words “perma- nent protection.” An examination of the specifications will disclose that the only. place that the words “tem- porary protection” are used is in connection with pro-— viding temporary protection for workmen during the course of the work. It is the contention of the con- tractor that protection to the tunnel roof which is not ‘removed in the finished tunnel. cannot by any stretch of the imagination be called temporary. That is per- _ manent, and that type of protection which was. installed - . in this instance is .permanent and not temporary. In - other words, as Mr. Fox has stated, it is there as long as*the tunnel remains. After about 50 feet of this . tunnel has been bored—oh, in that connection, I will call attention to one phase of the specifications that had been referred to by Mr. Fox, namely, TP 4-03 c., Steel Liner ~ a Plates, which provides for tHe placing of steel liner plates for.tunnel protection in the tunnel sections where such ‘protection material is indicated on the drawings, or as directed, to furnish coverage for the tunnel roof — section above the spring line. No mention is made in © that section or anywhere else of protection of workmen as temporary. The 50 feet specifically provided at inlet . and outlet sections were for the purpose of furnishing | coverage for the tunnel section above the spring line, and it is our contention that: direction from the Gov- ernment to the contractor to install this permanent tun- _ [fol.6] nel protection under the conditions that existed ‘was unreasonably withheld. As I said, it will appear . 7 that after the first 50 feet of the tunnel had been exca- vated and the installation of these’steel liner plates more or less completed, permission was given by the Resident “Engineer: to extend the liner plates ‘further, but the con- tractor was to replace those steel plates which* might be damaged. The matter was again taken up with the ~ Resident Engineer—and I may be skipping some of these numerous conferences because this was a constant dis- cussion—the Resident Engineer stated that he did not inténd to order in any more steel on this tunnel. There was a visit to the job some time early in January by representatives of the Baltimore Office, at which time I think the first 50-feet. had been completed, and there was exposed beyond that perhaps six feet not protected. The opinion was expressed that the oe pretty good, and they thought the contractor could get through all right, but if conditions changed as the ‘tunnel was bored they would have to give further consideration to the matter. At no time has the Resident Engineer con- ° . : ® rere Fe PSM Mo PM MT AO Set Te geet Oe . uF) io ep POP EOE A AE In RET sae SO) A TT eR, RE eg et ES ss nt ral Pies aman 5-38. ceded that the contractor is entitled to. be paid for the . installation of permanent tunnel protection, or protec- — tion in the form of these steel plates, or any other pro- tection that. was to remain permanently: in- the tunnel - beyond the 50 feet I have described. The tunnel was bored through and almost immediately after that large - _ failures of rock occurred. As a matter of fact, it will _ appear here that since the steel liner plates installed beyond the 50 feet were removed as directed there was / a substantial ‘fall of rock in the very early stages of the construction of this tunnel. Then, after the tunnel was holed out, within the first 30 days, very substantial falls of rock occurred. I have here three photographs. taken April 25, 1947, which is about six weeks after the tunnel had been holed: out and about a month after it had been cleaned out. These pictures show condi- tions as taken from the inlet and outlet ends, taken at that time. I think you have seen these, Mr. Fox. Those are the ones I showed you before. (Shows pictures to Board members who examine them).- Now, the Board will have in mind that under the terms of these | specifications no concreting could be done in this tunnel ‘until the tunnel had been completely holed out. The Resident Engineer, in the exercise of his judgment, as _ I see the picture develop, came to the conclusion ap- parently that some form of tunnel protection was going . to be required, and his views could be crystallized from the conversations that took place as follows: “If tunnel protection is to be’ required, you, the contractor, put it in, but you put it in at your own expense.” I refer the. Board specifically to a letter from the Resident Engineer dated 10 January 1947, which is Engineer Exhibit “E” . of the contracting officer’s statement of fact, and to an- other letter by the Assistant Resident Engineer dated 15 April 1947, Engineer Exhibit “J.” We don’t agree with some of ‘the conclusions stated in those letters, but. we do submit that from an engineering standpoint the — letters are strong evidence of the fact that the Engineers. recognized that conditions within the tunnel required a — form of protection in order to line the tunnel, and you will mene, gentlemen of the Board, that in those letters 3 ores, 2 se [fol. 22] roof,-that is, to protect it from any falling rock above the liner -plate, it would have been impossible, or it would not have been feasible to remove the ribs, remove the liner plates, remove the back-packing and then pro- ceed with the concrete lining. | FOX: As a matter of fact, it probably would have _ been more expensive. | COYNE: It isn’t.a matter of expense; it is a matter _ of practicability. FOX: In your opinion, would the placing of this sup- port add anything, to the stability of the concrete tun- nel itself? ' COYNE: I would say it made it possible to. build the tunnel, and it was the only manner in our opinion which we could devise in which the concrete lining to complete the tunnel could be placed. FOX: In your opinion, would the placing of that tun- nel support add: to the stability of the concrete lining?. ; Po esis ‘ y don’t believe I am competent to answer. at ; FOX: You have no opinion? COYNE: That is right, sir. FOX: Thank you very much, Mr. Coyne. _ REDIRECT EXAMINATION McCARRON: Mr. Fox has directed your attention to certain of these specifications with reference to tunnel support ‘and your consideration of them prior to the sub- _mitting of your bid. Did you ‘algo give consideration, Mr. - Coyne, to Article 4 of the contract relating to changed conditions, which is part of the record in this case, and the details of which I won’t read? COYNE: | Yes, we did. ‘ McCARRON: So far as the question of delay, if it may be called that, of installing the concrete lining immedi- . 101 ately or expeditiously after the holing out, was the con- sideration involved in the delay so far as your coatractor was concerned with reference to the protection of the roof of thé: tunnel so that concreting could be effectively ac- complished, or was it because of any problems of sub- contractors, or anything of that sort? , j COYNE: . If I understand your question correctly, the consideration was given only to the problem of lining the . tunnel. McCARRON:.. Do you know of your knowledge wheth- er conferences were held between the representatives of the contractor and the representatives of the contracting officer in Baltimore with reference to the question of lin- ing the tunnel, the matter of support, prior to the time the installation of these steel I-beams and liner plates was begun? | 7 [fol. 23] _COYNE: I believe there was a conference in _ May which I did not attend because I was ill. I was laid _ up with an ulcer on my eye. | as | McCARRON: You were asked by Mr. Fox about the removal, if I understood him correctly, of these steel ‘beams and then proceeding with the concreting and you . were also asked about the four ribs that were installed in the outlet section. I may have asked you before— those were removed, were they not? : | . COYNE: Yes, they were removed. | McCARRON: And. what happened to the roof of the tunnel section? — | . COYNE: - Portions of rock fell from the roof. McCARRON: If you are in a-position to express.an _ oOpinion,-in your opinion, if you had followed the method outlined by Mr. Fox and put in some sort of support and then removed it immediately prior to the process of con- creting, what would have happened? © . COYNE: I don’t believe it is feasible from an‘ engi- neering standpoint to carry on any such operation. It would be dangerous both to the work and to the workmen. “ McCARRON: Did you have in mind that in accord- - ance with the language of the specification TP 4-03c.’ who- ever prepared the specification had in mind specifically the 50. feet at the outlet and inlet, and that that was , 7 , specifically set forth for the purpose of furnishing cover- age for the tunnel roof above the spring line? - COYNE: Yes, sir. McCARRON: Was that the function for which this subsequent steel lining was installed? ~~. i COYNE: To furnish a cover for the section af the roof above the spring line? . . McCARRON: Did you consider in figuring your bid that Items 11‘and 12 spell out a certain amount of pound- age of steel originally applied to the 50 feet, and would eliminate steel that might necessarily. be directed to be . installed by the €orps of Engineers as conditions might require? COYNE: No, it did not eliminate that. 102 RECROSS EXAMINATION - FOX: Were you directed to install steel liners beyond the 50-foot line? COYNE: No, we were not. We Ter permission _ to use four ribs. FOX: When these four ribs were removed, Mr. Coyne, a fall occurred? That is right, isn’t it? . COYNE: That is correct: [fol. 24] .FOX:. Did a subsequent fall occur at that point at any time later? | COYNE: Asmall amount. . . X: Thank you very much, Mr. Coyne... IELENZ: When you removed those four ribs, what was approximately the thickness of the rock that’ fell? How much of-a hole did it leave? COYNE: The slabs that fell out of there varied in thickness, but it was from 1 to 3 feet. i ie MIELENZ: Over the entire area? . COYNE: For about 16 feet, sir. FOX: The width of those was what? COYNE: About 16 inches. . i JOHNSON: What weight did you give to Article 4 in a your bid? Are you going to file a claim under that ir 103 " McCARRON: No, seeckagely not. “We lieve done many jobs for the U. S. ‘Engineers, and we are thoroughly familiar with the contract and the articles of the contract. - JOHNSON: What. weight did you give to it? McCARRON: We: always. knew if there were any changed conditions that due consideration would be given us and we would be reimbursed for anything that we did under changed conditions. . FOX: You did not examine. fh the cores yourself? COYNE:. No — FOX: You don’t know whether Cabot, did? COYNE: No, I do not. McCARRON: I havea short witness who might clear up this question of the rock. Mr. Richardson, would you be good enough to come down here? Your. full name, Mr. a | 7 DIRECT EXAMINATION RICHARDSON: . Elford H. Richardson -McCARRON: You live where? RICHARDSON: . Hornell, New York. ‘[fol. 25] McCARRON:: Your business or im | is what? . , RICHARDSON: Engineer—Civil Engineer. - McCARRON: And you are connected with the Carlo Bianchi & Company, Inc.? RICHARDSON: That is corréct. McCARRON: And you have been on this job at Al- mond Dam?: RICHARDSON: From the start. ieee ‘McCARRON: What has. been your training as a civil engineer? - RICHARDSON: I had shuns two years’ actual work- ing experience while attending Northeastern sieiiiniens (interrupted ) McCARRON: That is up in Boston? - | RICHARDSON: - That is correct.. Betwéen the years of 1929 and ‘1934.1 worked as an engineer in New Haven, Connecticut, and then worked two. years as an engineer for the City of Ansonia. I worked four years in the build- 104 ing materials business and other ‘shorter : term jobs be- | fore coming with the Bianchi Company in 1942. McCARRON: You have been with Bianchi on various - : jobs since 1942? . RICHARDSON: I have been with them since the first - of May, 1942. a 7 McCARRON: I am.going to direct my questions to - _ you with reference to this question of the amount of rock ~ that fell in the tunnel. Will you tell the Chairman of the ~ Board and his associates what you know about the amount _of rock that fell and when it fell and where it fell. ‘ FOX: Might le use these drawings? ‘ McCARRON: Yes, use the drawings. But first. give us what you know verbally and then if you wish use the drawings. — RICHARDSON: The greater portion of the rock that fell following the holing through was in the first month, as Mr. Coyne said. There was, however, considerable. rock that fell or was scaled down by the: Cabot Construc- tion Company while they were boring the tunnel. ‘ McCARRON: You have in your hand some sheets which are new to me. Will you tell us what they are? RICHARDSON: These are working sheets to compute the rock overbreak as well as the total ‘amount of rock excavation in the tunnel. [fol. 26] McCARRON: Are those the sabia that were ‘kept by you in the regular course of your job an engineer on this particular project? - RICHARDSON: That is correct. ° | - McCARRON: With reference to the fall of rock from portal to portal in the tunnel, we will offer these sheets as exhibits if they will be helpful. Will you tell us if you. have them by dates and by amounts of the rock that fell? RICHARDSON: We haven’t it by dates because of the fact that we took the sections during the clean-up “process, which was prior to 25 March 1947, and then _ when the °tunnel protection was installed from August until October we took sections as the tunnel protection went in, keeping fairly. close to the actual steel erection. We have-the actual figures of. the difference, or the amount of rock that had fallen in the arch, that is, from the spring line—above, the spring line—for the various - 105 monoliths, if yoti would be interested in that. I think everyone is familiar with the monoliths. For the most part, they are 30-foot sections as the tunnel was concreted. From Station 21+-24, which is approximately 75 feet from the inlet end, to 21+-54, there were 8.3 yards: of fallen rock from the arch. Going down through in 30-foot mono- liths, there were 12.2 cubic yards, 8 cubic yards, 6.7 . cubic yards, 17.8 cubic yards, 9.4 cubic yards, 3.6 cubic yards, 2 cubic yards, 3.9 cubic yards, 2.7 cubic yards, 3.4 cubic yards, 3.1 cubic yards, 4.2 cubic yards, 3.9 cubic yards, 4:8 cubic yards, and then when we ap- proached the protected area of the outlet end of the tun- nel, at Station 26+04, or rather between Station 25+-74 and 26+-04, we had 16.6 cubic yards. Between Stations 26+04 and 26+34 we had 31 yards and between Sta- tions 26+-34 and 26+64 we had.13.3 yards, and then there was a small amount of about 1.4 in the next mono- lith, and following that we had the steel protection to the end of the tunnel. ; iS asieie Oe ae ee McCARRON: Which gives you a total of how many cubic yards? : “ 7 ae ‘RICHARDSON: A total in the arch of 163.3 yards. But there was also rock that fell along the sides, which amounted to 19 yards, and sections that had held in place where, in boring the tunnel, the rock had assumed very nearly the desired section of the pay line section. _ We did have to trim some rock in order to install these liner plates, and that, as best we could measure, amounted to 21.5 yards. That was the amount that was absolutely ~ necessary to trim, but of course in trymming there was probably extra rock that we were not able to measure. ‘McCARRON: Were you ever in the tunnel, Mr. ‘Richardson when. any rock fell? Ce ee a RICHARDSON: I have been in the tunnel and heard it fall, but I wasn’t. near enough to see it fall, = - McCARRON: .For which you were very grateful, I take it. 3 . 7 . [fol. 27] RICHARDSON:.. ‘That is right. . ‘ . ' McCARRON: I have been handed a lot of sheets that * -do not mean much to me. I don’t know engineering, but I think they might mean something to you. | gia \ : } ae 106 , “RICHARDSON: These are cross sections of the tun- nel taken-appreximately 10 feet apart going through the entire length, showing the line which the rock assumed when the tunnel was driven, and a dotted line showing the outline of the tunnel as. it was just\prior to installing the steel ribs between August 1947 and October 1947. . . McCARRON: I going to offér these as exhibits for ° what assistance the¥*may prove to be to the Board, and - if the Board has no objection we will substitute some blue as for the originals and I shall not attempt to explain em FOX: Does the Board feel they will need these i in the proper determination of the appeal? JOHNSON: Mr. Trites can answer that. TRITES: I think they will be helpful. MIELENZ: I think we should have them in consider- ; ing the appeal. 3 TRITES: May I ‘ask. Mr. Richardson Just one ques- | ‘tion about the als eal | FOX: - Yes. TRITES: Mr. Hichardaon, is this correct,.on this par- ticular cross section the heavy line to which I am point- ing in the profile you took after cleaning up? RICHARDSON: That is correct.: TRITES:. And the dotted line représents the profile which you took just prior to’ erection of the steel protec- — tion . RICHARDSON: That is right. _TRITES: I believe we. should take.them for reference. McCARRON: I will arrange to substitute blue prints for the originals. Your witness,. Mr. Fox. — CROSS EXAMINATION | : FOX: Did these falls consist of small pieces or did’ they make quite a noise in the tunnel, or were they heavy rocks that crashed down? | | RICHARDSON: Well, they were all sizes of rocks. As you can see from the pictures that have been brought in, they were all ‘sizes of rocks—some large slabs and some small pieces. | | . 107. [fol.28] FOX: I am sure you must have given the period; but I did not get it. That-figure of 163.3 yards of rock fall in the arch, what was that period? RICHARDSON: I would say a greater portion of this rock fell in the first 30 days following the clean-up be- - tween March 25 and April 25 but we were pot able to _ get those sections until we installed the steel ribs in the period between August and October 1947. ~, MIELENZ: That rock that fell, did it fall naturally or was it caused by the boring of the tunnel? _ RICHARDSON: It all fell after completion of the clean-up of the tunnel and no one was in there. » 7 MIELENZ: You were making a final clean-up before starting the concreting work? end ix, RICHARDSON: © That is right. 5 . 7 FOX: This has been brought to my attention, will you tell us when the sectional information was taken, for example in solid shown on Sheet. 1 of 13,-Tunnel Sections taken at Almond Dam,” What date was that taken? . RICHARDSON: They were taken at various times. We. took them during the tunnel drive and the clean-up of the tunnel. It involved my deciding upon taking them so the Cabot Construction Company could get rock out to . the neat. line required, and in- doing that any rock that may have fallen or come down prior to the initial driving we would get: this. sectio : : ore FOX: So these sectidils represent information taken between March and August 1947? | RICHARDSON: That is right. _ FOX: They are taken from*field notes? © RICHARDSON: That is right. ween FOX:. Subject to the insertion of the actual date those sections were taken, the Goverriment interposes no ‘objection to introducing them as evidence but with the specific qualification that the date be clearly shown on these drawings. This "serves no- useful -purpose to the Board unless you know when this drawing was. taken . as the Government will show in its presentation of the case. Does the Board direct that taken. from field notes that information be placed on those drawings? a MIELENZ: Can the appellant furnish that informa-. tion? aaet os) 4 108 - i McCARRON:. If we can, we will do so. Can you get ~~ that from your tally. or log, Mr. Richardson? eel ees 29]. RICHARDSON: We can get it from our field These represent. the facts at the time of cleaning up | in August 9 McCARRON:~ ~Subject to that qualification, if Mr. Richardson. inserts the~-field notes as Mr. Fox has re- quested, we will send the drawings to the Board as an exhibit in the case and if there are any further questions _we will endeavor to explain them... FOX: I have no further questions. Eek REDIRECT EXAMINATION 2 ARRON: Were some of your men in there. when ell in close proximity to them? rORICHARDEON: Our Chief of Survey Parties, Mr. Burlington (name and title not verified) was in there a - number of times during the clean-up to indicate the points _ they might have decided would have to be further scaled or brought to the right section, and on numerous occasions rock did fall fairly close to the men. In fact, one time daring the clean-up a very large slab did drop sufficiently close to Mr. Burlington - egy not verified) to eal water on him. McCARRON: That i is Thank you. | MIELENZ:.- The Beard has no further aii We will adjourn for lunch. and reconvene at 1:40 p.m. RECESS Meeting convened at 1: :40 p.m. ° MIELENZ: | The meeting will please come to order. _ It is understood that; some members of the appellant’s party cannot. stay over in. case we find it necessary to . continue this hearing for another: day. This Board can- not meet beyond five o’clock due to the fact that certain - employees here have to meet certain time arrangements to . get stay from this general vicinity. I understand you * have to more witnesses. OA A I NR ee Or Te ‘a - MeCARRON: Two, endl: a ‘third one that we can ead. ably agree on. His testimony is or less cumulative . 6f Mr. Coyne’s and other testimony given. ; MIELENZ: ’ I would like to have the time division on the two witnesses not to exceed one hour at ouiae that as the time approaches five o clock we can see Government counsel may have “sufficient time e oer his case, and: that as the time approaches five o’clock we . can see the progress of the hearing and in order to avoid . Pi carrying it over we would permit appellant’s counsel to . file a brief, if that is agreeable. McCARRON: That is entirely agreeable and unless Mr. Fox objects I ask that I be permitted ‘to have ano portunity to examine the transcript before submitting brief: If it is possible for me to have the er | 4 = 30] will proceed as rapidly as. possible. : , (No objection, and Mr. McCarron was advised he could have transcript.) , ‘DIRECT EXAMINATION 2 - McCARRON: Mr. Diehl, what i is your full name? ia DIEHL: Everett Diehl. MIELENZ: I wish to suggest that in connection with | identification’ of witnesses we would rather have their. @xperience stateniént cut as short as possible in order to get pertinent testimony. — McCARRON: You reside where? DIEHL: Rosendale, New York cea of © city not verified) | _ McCARRON: Your ‘elites or “oceupation? — DIEHL: Engineer. McCARRON: You have been a pee senor or tunnel _- engineer how many years? DIEHL: Thirteen years... — McCARRON: You have — on various tunnel projects of various types? ; DIEHL: That is correct. . - McCARRON: In what capacity? DIEHL: Chief Engineer and Vice President and En- gineer in construction of tunnels. McCARRON: During what periods during the time . 7 i rn em ae Tapa: ee Se ee | cs 6 110 ’ “you were identified with this type of work.were you. dite. ally on the job?» ia '- DIEHL: From the first part of December; 1946 about ; 4®, : Be Ee ice —_ ~ the 7th or 8th, I would say, up until the time we put the: _ hole throu and cleaned up—about the Ist of April, 1947. McCARRON: Will you tell the Board in your own words, your. own observations with reference to the char- acter of the rock uncovered in-connection with the exca- vation both outside and inside the tunnel, and in chrono- - logical order the conversations at which you were pres- | -, ent with the Resident Engineer or his assistant in- re- gard to the matter of tunnel protection—whether tempo- _ Yary or permanent? — - * DIEHL: My first trip to the job was after the start’ of ‘the excavation in the outlet channel, and I had - ob- ' served the operation there and saw the character of .the rock, and at. that time Mr. Dunham, President of ‘the company, and I discussed that we would probably have a - little ‘difficulty [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0782%3A1. Public record. Not legal advice.