Findings of Fact 118 C. Cls. is needed because, as overfill advances, additional pipe is added and has to be watched in order to stop leaks. The longer the shore line, the more shore laborers are needed. It is customary, when work is being carried on in one location where there is a long shore line in use, and a move is made to another location where there is practically no shore line but only a floating line, to cut down the labor. The converse of this is also true. 16. The dredge arrived at the new location (Cut No. 2) at 6:00 P. M. on October 15th and remained shut down for necessary repairs until 6:45 P. M. on October 16th. This period of 2434 hours was at the request of plaintiff and no rental was paid. Dredging operations began at Cut No. 2 at 6:45 P. M. on October 16, consisting of the construction of the ramp referred to in Finding 10, and the laying of shore pipe thereon continued until 9:30 A. M. on October 19th. Rental for this period was paid plaintiff at the prescribed contract rates. 17. At 9:30 A. M. on October 19 plaintiff commenced to lay shore pipe line from the end of the ramp to the designated spoil area. The laying of this shore pipe line was completed at 8:00 P. M. on the same day; a total elapsed time of 101/2 hours. Payment for this period was refused by the defendant's contracting officer. This decision of the contracting officer was duly appealed to the Army Board of Contract Appeals pursuant to the terms of the contract. 18. There is some disagreement as to the interpretation of paragraph SC-3 (b) 2 of the specifications. The understanding in the trade is that the dredge and attendant plant are to be treated as a complete unit and to operate as such. When a plant is engaged in dredging or in making repairs at a particular location, using practically its entire crew, an order by the contracting officer to proceed to lay shore pipe at a different location, in advance of the removal of the plant thereto, might endanger the plant and would, in most circumstances, be unreasonable. On October 19, 1945, the District Engineer at Memphis, Tennessee, wrote to plaintiff, in part, as follows: 1 Findings of Fact Paragraph SC-10 of the Specifications requires that, "The Contractor shall furnish, subsist and pay all necessary crew required for the satisfactory and efficient operation of the dredge and attendant plant and to handle floating and shore pipelines *" On 16 Octo ber 1945, there were 64 men on the Dredge "McWilliams" and attendant plant, of which only 8, exclusive of supervisory personnel, were available for handling floating and shore lines. This shortage of personnel definitely handicapped and delayed operations of the dredge, which at that time was moving into a new set-up requiring that floating discharge line be changed from port to starboard side of the dredge and that shore line be laid before operations could be resumed. This office considers that the Dredge "McWilliams" has insufficient crew for prosecuting efficient operations. Mr. Gibbs has orally advised this office that he recognizes the fact that the dredge is not sufficiently crewed for efficient operations and that a portion of the pontoon discharge line needs to be repaired or replaced. He stated that every effort would be made to employ additional men to handle floating and shore lines and that arrangements had been made to secure an additional 500' of 30" pontoon discharge line which would be delivered to the dredge as soon as possible. This matter is being brought to your attention at this time with the request that immediate steps be taken to secure sufficient personnel and floating pontoon discharge line to place the Dredge "G. A. McWilliams" in such condition that it may be operated efficiently under the terms of the Contract and Specifications referred to. On October 24, 1945, plaintiff, through its dredgemaster Coleman, wrote to the District Engineer, Memphis, Tennessee, as follows: On October 12th, we were requested to lay a shore line on the Missouri side of the Mississippi River leading to the north bank of Wolf Island Chute. At that time the Mississippi was low and we were unable to get our derrick and pipe barge within seven hundred feet of the water edge. On October 15th, the Dredge McWilliams was moved to Cut No. 2, we were then asked to pump a spur dike which required three days pumping before we were able to start laying the shore line that we were penalized for. At the time the line was being built we were using a crew of nineteen men and one bulldozer. Findings of Fact 118 C. Cls. By letter of November 21, 1945, the contracting officer responded as follows: Your letter dated 24 October, 1945, signed by H. H. Coleman, Master, Dredge G. A. McWilliams, protesting 10 hours, 30 minutes, "Lay Shore Time" from 9:30 a. m. to 8:00 p. m. on report of operations dated 19 October 1945, under Contract No. W16-047eng-766, dated 11 June 1945, has been referred to this office. On 12 October 1945 at 9:00 a. m., Mr. Eaglerson, Deck Captain, who was at the time Acting Master of the dredge in the absence of Mr. Coleman, was notified that the plan of operation for disposal of dredge spoil had been changed so that a fill could be made across Wolf Island Chute and that this change would require the laying of shore pipe line on the Missouri shore. On this same date the site was inspected and a location selected for the shore pipe line. Mr. Eaglerson was requested on 12 October 1945 to lay the above shore pipe line on the Missouri shore prior to the actual need thereof in order that there would be no delay in dredging operations upon completion of the approach fill. Failure to lay the shore pipe line as requested resulted in lay time of 10 hours, 30 minutes, for which payment cannot be made under terms of the contract and specifications. You may appeal this decision within thirty days from the date of this mailing to the Chief of Engineers through this office. 19. The defendant's contracting officer made findings of fact and denied plaintiff's claim. These findings of fact are in evidence as Plaintiff's Exhibit No. 2 and are made part hereof by reference. Appeal was duly taken to the Chief of Engineers, U. S. Army, and was referred to the Army Board of Contract Appeals. The Board determined that the appeal was without merit. A rehearing was held and resulted in a majority opinion which denied plaintiff's claim, and also a minority opinion which sustained plaintiff's position. These decisions are in evidence as Plaintiff's Exhibits No. 4 and No. 5, respectively, and are made part hereof by reference. 1 Opinion of the Court The court decided that the plaintiff was entitled to recover. MADDEN, Judge, delivered the opinion of the court: On June 11, 1945, the plaintiff entered into a contract with the United States, represented by the U. S. Engineer Office of the War Department, to lease the plaintiff's dredge, the George A. McWilliams, with all necessary operating personnel and attendant plant to do dredging on the Mississippi River at any point from Cairo, Illinois, to the mouth of the river. Payment for the use of the dredge was to be at specified rates per hour. The specifications contained pertinent provisions as to what should constitute pay time. The dispute in this case is as to whether the plaintiff is entitled to be paid for a period of ten and one-half hours on October 19, 1945, which period was spent in laying some 1,200 feet of shore pipeline in preparation for dredging in a new location. The dredge had been operating for some weeks on the Kentucky side of the channel of the Mississippi in what was known as the Wolf Island Bar project. In this project two cuts were to be made, No. 1 being on the Kentucky side, and No. 2 on the Missouri side. The cuts were to be parallel and adjacent, each being 300 feet wide. Cut No. 1 began upstream and the dredge moved downstream, a length of 3,800 feet. The spoil from Cut No. 1 was deposited on the Kentucky side of the river through a floating pontoon pipeline, with very little line laid on the shore. On October 12, it being apparent that dredging in Cut No. 1 would be completed within a couple of days, the Government's Chief Inspector on the project directed the plaintiff to lay a shore pipeline at a point on the Missouri shore at the upper end of what was to be Cut No. 2. The plaintiff's dredgemaster said he would do so. On October 14 the matter was discussed again and the dredgemaster said he would place the shore line when he got around to it-that he did not have sufficient labor at that time. Dredging in Cut No. 1 was completed at 7:20 P. M. October 14. On October 15 the dredge moved to the new location, the upstream end of Cut No. 2. At the plaintiff's request the dredge was shut down for repairs on October 16, until 6:45 P. M. October 16. At that hour dredging began, 941207-51-9 Opinion of the Court 118 C. Cls. and consisted in the deposit of the dredging spoil to construct a ramp leading from the cut through the shallow water to the river bank. As the ramp was built, pipe was laid on it, the length of the ramp being 800 feet. Those operations continued until 9:30 A. M. October 19. The plaintiff was paid for that time. At that hour, the laying of the 1,200 feet of shore pipe from the shore end of the ramp to the place where the spoil was to be deposited began, and continued until 8:00 P. M. on that day, a period of 1011⁄2 hours. The Government refused to pay the plaintiff for those hours, and the plaintiff sues here for $992.25 which is the correct amount if the time was, under the contract, pay time. The plaintiff points to the following provision of the specifications, which is a part of what we have quoted in our finding 4, entitled SC-3 (b) and includes in pay time 2. actual time of moving from one job to another and from one location to another on the same job at the direction of the Contracting Officer, such time to be computed from the time of shutting down preparatory to move to time when dredge and pipeline are in position for dredging at new location; except when through the negligence of the Contractor part of the necessary equipment needed at the new location is not available as in the case of broken or disabled pontoons, lack of self propelled plant to set up the pipelines, etc. That provision seems to say rather plainly that the time spent in laying pipe line at the new location after shutting down the preceding operation is pay time. The Government points to another provision of the specifications SC-3 (d) also quoted in finding 4, which says that payment will not be made for 1. Lay time * * * * * a new project * after arrival at location of when through negligence of the Contractor the necessary equipment is not available or in operating condition at the new project. * We think that this is merely the statement of the negative of what we have quoted above as defining pay time, and does not change its meaning. The reference to necessary equipment being "not in operating condition" can hardly refer to unlaid shore pipe, in view of the positive statement above |