A government contract for building a bulkhead in Manila provided
that the contractor would be responsible for damages arising from
wave action or pressure of the revetment against the timber
structure, but that the government would be responsible for break
caused by pressure of the mud fill. There was a break owing to
pressure of the mud fill, and before it could be repaired, there
was a further damage caused by a typhoon, but which would not have
happened had the original break not existed.
Held, as held
by the courts below, that the contractor must bear the loss caused
by the typhoon.
The facts, which involve the construction of a contract
Page 219 U. S. 18
for a public work with the government of the Philippine Islands,
are stated in the opinion.
Page 219 U. S. 20
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action upon a contract for an extension to the Luneta
of the City of Manila. Both courts below decided for the
government, the defendant, upon demurrer to the complaint.
Abridged, the allegations are these: a contract for the work was
made on July 24, 1905. On May 1, 1906, about 200 feet of bulkhead
and rock revetment were displaced by pressure from the inside fill
and moved about 20 feet into the bay of Manila, so that a large
quantity of the fill that had been pumped behind the bulkhead
escaped into the bay. On May 18, before the break could be
repaired, a severe typhoon occurred, and the bulkhead and rock
revetment, being without the support of the inside fill, were
destroyed for about 1,800 feet by the pressure of the rock
revetment and the wind and waves from the outside, and a large
additional quantity of the inside fill escaped. The question is
which party must bear the last-mentioned loss. If the first break
had not happened, no damage would have been done by the typhoon.
The plaintiff sets forth the cost of repairing the damages of May
18, and seeks to recover it in this suit.
The specifications of the contract contain the following:
"5. The contractor will be responsible for damages to the
bulkhead and revetment, arising from wave action or from pressure
of the revetment against the timber structure; but if a break is
caused by pressure resulting from
Page 219 U. S. 21
the mud fill, the repairs to the structure will be paid for by
the government at the prices specified in the contract, provided
that the specifications have been fully complied with."
"12. . . . All losses of dredged material from the fills,
excepting those due to failure of the bulkheads from pressure of
the mud fill, as stated in Article 5, will be measured as carefully
as conditions will permit, and the computed amounts deducted from
the statement for the final payment."
On May 24, a supplemental contract was signed. It recited that
the repairs made necessary by the break of May 1 ought to be paid
for by the government; that the original project was modified so as
to fill the space that had given way with rock, with clay etc., for
the interstices, and that the change would either increase or
diminish the cost. It then agreed that the plaintiff should make
the repairs, and the government would pay the actual and reasonable
cost, with certain qualifications, plus fifteen percentum, which
last was to cover all other items, including profit. This referred
to the first damage only. On the next day, May 25, the government
director telegraphed to Commissioner Forbes:
"for most of typhoon damage I hold contractor responsible; they
claim government responsible for all, on account delay repairing
first break, but wish to make repairs in manner authorized for
first break, leaving settlement of liability to be determined
later. Repairs should be made at once, but in view of contract
requirement . . . , do not see how contractors can be authorized
proceed before determination of liability."
The answer approved
"authorizing contractors to proceed immediately to make repairs
on lines indicated, with the understanding that all rights reserved
in regard to adjudication of liabilities."
These telegrams were communicated to the plaintiff, and it was
authorized to proceed to make repairs in the manner outlined in the
agreement
Page 219 U. S. 22
of May 24. It did so, and the government now refuses to pay.
It will be understood that this case is in no way concerned with
the possible difference in cost between the mode of repair adopted
and that which might have been followed under the original
contract. The question here is which party is responsible for the
repairs, assuming no such difference to exist. We need not consider
whether the effect of all that we have recited was or was not to
substitute the new mode and new cost for the old, as that which the
parties left at risk when they agreed that the plaintiffs should go
on and do the work. If the plaintiff should have any claim for the
excess alone, if any, over the cost that would have been incurred
under the original plan, it is not suing for it here.
Both sides found their case on the division of losses made by
the specification quoted. On the one hand, the accident would not
have happened but for the pressure from the mud fill; on the other,
the more immediate cause was wave action and the pressure of the
revetment against the timber structure, the effects of which the
contractor was to bear. We agree with the court below that the
contractor must bear the loss. The question is not whether the
responsibility of the government might not have extended to the
later consequences had it originally been a wrongdoer, and had it
been sued in tort. The question is to what extent did the
government assume a risk which, but for the contract, would not
have fallen upon it at all. The contract qualified the relation
only cautiously and in part. If the break was caused by pressure
from the mud fill, the government agreed to pay for repairs to the
structure. That was all.
But for the addition in 12, quoted above, it might be doubted
whether "structure" meant anything but the bulkhead and revetment.
But Article 12 extends the government liability to loss of dredged
materials due to
Page 219 U. S. 23
such a break. It is suggested that the reason for the government
undertaking was that the plan was made by the government engineers.
It may have been. But the plaintiff was content to work upon that
plan; it, not the government, was doing the work, and it took the
risk so far as the contract did not make a change. The government
could not be charged by it with negligence or with causing the
first break. That was only something for repairing which the
government had promised to pay. Whatever the government had not
promised to pay for, the contractor had to do in order to offer the
completed work which it had agreed to furnish. The case is stronger
for the government than those upon policies of insurance, where
courts refuse to look behind the immediate cause to remoter
negligence of the insured.
General Mutual Insurance
Co. v. Sherwood, 14 How. 352,
55 U. S. 366;
Orient Insurance Co. v. Adams, 123 U. S.
67;
Dudgeon v. Pembroke, 2 App.Cas. 284. Here,
as we have said, the plaintiff cannot charge the defendant with
negligence; the immediate event was one of which the plaintiff took
the risk; on general principles of contract, it took that risk
unless it was agreed otherwise, and it does not matter to the
result whether we say that we cannot look farther back than the
immediate cause or that the undertaking of the government did not
extend to ulterior consequences, not specified, of the break for
repairing which it undertook to pay, but which it did not
cause.
Judgment affirmed.