B-170943, MAY 17, 1971

B-170943: May 17, 1971

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ALL OF WHICH WERE PARTS OF THE CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL PROJECT. THE EMBANKMENT WAS THEREAFTER ERODED BY TORRENTIAL RAINS ASSOCIATED WITH TROPICAL CYCLONE "ABBY.". THE WORD "HURRICANE" IS NOT DEFINED IN THE CONTRACT. THIS PUBLICATION WAS BEFORE THE BOARD AS A PART OF THE RULE 4 PAPERS. TROPICAL CYCLONE IS THE GENERAL TERM FOR ALL CYCLONIC CIRCULATIONS ORIGINATING OVER TROPICAL WATERS. ABBY WAS BORN ON JUNE 1 AND BECAME A TROPICAL STORM ON JUNE 2 BEFORE CROSSING THE WESTERN TIP OF CUBA. STATED "ABBY IS JUST BARELY OF HURRICANE FORCE" WITH GALES EXTENDING OUT 150 MILES EAST AND NORTH OF THE CENTER. IT WAS ON THE 6TH THAT JACKSONVILLE RECORDED 45 KNOT WINDS WITH 57 KNOT GUSTS - THE HIGHEST FIGURES FROM ANY LAND STATION.

B-170943, MAY 17, 1971

CONTRACTS - HURRICANE DAMAGE DECISION ALLOWING PAYMENT OF CLAIM BY GREGG, GIBSON & GREGG, INC., FOR REPAIR WORK ON THE CENTRAL & SOUTHERN FLORIDA FLOOD CONTROL PROJECT INCIDENT TO DAMAGE CAUSED BY HURRICANE ABBY. IT WOULD BE AN UNDULY NARROW CONSTRUCTION OF THE CONTRACT'S HURRICANE DAMAGE CLAUSE TO DENY PAYMENT TO THE CONTRACTOR MERELY BECAUSE THE STORM DID NOT MAINTAIN HURRICANE INTENSITY AS DEFINED BY THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, FOR THE INTERVENING PERIOD DURING WHICH THE 12.22 INCHES OF RAINFALL AND ENSUING DAMAGE CONTINUED TO OCCUR. THEREFORE, THE SUBJECT CLAIM MAY BE PAID.

TO MR. SECRETARY:

WE REFER TO A REQUEST FROM THE DISBURSING OFFICER, U.S. ARMY ENGINEER DISTRICT, JACKSONVILLE, FLORIDA, FORWARDED BY THE ENGINEER COMPTROLLER, FOR A DECISION AS TO WHETHER PAYMENT MAY BE MADE OF THE CLAIM OF GREGG, GIBSON & GREGG, INC., FOR HURRICANE DAMAGE UNDER CONTRACT DACW17-68-C 0004. THE CORPS OF ENGINEERS BOARD OF CONTRACT APPEALS ALLOWED THE CONTRACTOR'S APPEAL FROM THE CONTRACTING OFFICER'S DENIAL OF THE CLAIM IN ITS DECISION OF AUGUST 12, 1970, ENG BCA NO. 3051.

THE CONTRACT IN QUESTION CALLED FOR CONSTRUCTION OF LEVEE 73, SECTION 1, STRUCTURE 164 AND COX CREEK IRRIGATION STRUCTURE, ALL OF WHICH WERE PARTS OF THE CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL PROJECT. THE APPELLANT'S SUBCONTRACTOR, CROSS CONTRACTING COMPANY, INC. (CROSS), THE REAL PARTY IN INTEREST, HAD PLACED THE EMBANKMENT, EXCEPT FOR GRASS COVER, FOR STRUCTURE 164 BY EARLY JUNE 1968. THE EMBANKMENT WAS THEREAFTER ERODED BY TORRENTIAL RAINS ASSOCIATED WITH TROPICAL CYCLONE "ABBY."

PARAGRAPH SP-17 OF THE CONTRACT AUTHORIZES ADDITIONAL PAYMENT TO THE CONTRACTOR FOR REPAIRS TO PERMANENT WORK DAMAGED BY FLOOD, EARTHQUAKE, HURRICANE OR TORNADO. THE WORD "HURRICANE" IS NOT DEFINED IN THE CONTRACT.

IN ITS DECISION, THE BOARD RELIES PRIMARILY ON THE DEFINITIONS IN THE 1969 PUBLICATION BY THE U.S. DEPARTMENT OF COMMERCE, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION (ESSA) ENTITLED "THE GREATEST STORM ON EARTH ... HURRICANE." THIS PUBLICATION WAS BEFORE THE BOARD AS A PART OF THE RULE 4 PAPERS. ESSA DEFINES TROPICAL CYCLONES AS FOLLOWS:

"TROPICAL CYCLONE CLASSIFICATION

BY INTERNATIONAL AGREEMENT, TROPICAL CYCLONE IS THE GENERAL TERM FOR ALL CYCLONIC CIRCULATIONS ORIGINATING OVER TROPICAL WATERS, CLASSIFIED BY FORM AND INTENSITY AS FOLLOWS:

TROPICAL DISTURBANCE: ROTARY CIRCULATION SLIGHT OR ABSENT AT SURFACE BUT SOMETIMES BETTER DEVELOPED ALOFT, NO CLOSED ISOBARS (LINES OF EQUAL ATMOSPHERIC PRESSURE) AND NO STRONG WINDS, A COMMON PHENOMENON IN THE TROPICS.

TROPICAL DEPRESSION: ONE OR MORE CLOSED ISOBARS AND SOME ROTARY CIRCULATION AT SURFACE, HIGHEST WIND SPEED 39 MILES PER HOUR (34 KNOTS).

TROPICAL STORM: CLOSED ISOBARS, DISTINCT ROTARY CIRCULATION, HIGHEST WIND SPEED 39-73 MILES PER HOUR (34-63 KNOTS).

HURRICANE: CLOSED ISOBARS, STRONG AND VERY PRONOUNCED ROTARY CIRCULATION, WIND SPEED OF 74 MILES PER HOUR (64 KNOTS) OR MORE."

THE BOARD FOUND THAT ABBY GOT HER START IN A CLOUD MASS OFF THE NORTHERN COAST OF HONDURAS AS THE MONTH OF MAY 1968 CLOSED. ABBY WAS BORN ON JUNE 1 AND BECAME A TROPICAL STORM ON JUNE 2 BEFORE CROSSING THE WESTERN TIP OF CUBA. SHE BECAME A HURRICANE ON THE 3RD WHEN WINDS REACHED MINIMAL HURRICANE FORCE NEAR HER CENTER. MIAMI WEATHER BUREAU HURRICANE ADVISORY NUMBER 8, ISSUED AT 6 A.M., EDT, JUNE 4, STATED "ABBY IS JUST BARELY OF HURRICANE FORCE" WITH GALES EXTENDING OUT 150 MILES EAST AND NORTH OF THE CENTER. ADVISORY NUMBER 9, ISSUED AT 12 NOON, EDT, JUNE 4, STATED THAT ABBY (APPARENTLY THE STORM'S EYE OR CENTER) CROSSED THE FLORIDA COAST NEAR PUNTA GORDA AROUND 9 A.M., EDT, WITH STRONGEST WINDS LITTLE MORE THAN 40 MPH. ON THE 4TH AND 5TH, ABBY MOVED SLOWLY EAST-NORTHEASTWARD ACROSS CENTRAL FLORIDA RELEASING HEAVY RAINS. ON THE 5TH, ABBY REINTENSIFIED SLIGHTLY OFF CAPE KENNEDY, THEN MOVED NORTHWARD ALONG THE JACKSONVILLE BEACHES ON THE 6TH. IT WAS ON THE 6TH THAT JACKSONVILLE RECORDED 45 KNOT WINDS WITH 57 KNOT GUSTS - THE HIGHEST FIGURES FROM ANY LAND STATION. HOWEVER, RECONNAISSANCE AIRCRAFT RECORDED 67 KNOT WINDS WHICH EXCEEDED THE 64 KNOT WINDS REQUIRED FOR A HURRICANE CLASSIFICATION. ABBY MOVED NORTHWARD AND WEAKENED AND DIED WHILE CROSSING GEORGIA AND THE CAROLINAS.

JOB SITE RECORDS FOR JUNE 3 SHOW THAT WORKDAY AS PARTLY CLOUDY AND SUITABLE FOR WORK. RAINFALL READINGS MADE AT 8 A.M. EACH DAY AT THE JOB SITE SHOW 5.00 INCHES OF RAIN FOR THE READING ON THE 4TH, 4.05 INCHES FOR THE READING ON THE 5TH AND 3.17 INCHES FOR THE READING ON THE 6TH - A TOTAL OF 12.22 INCHES OF RAINFALL AT THE JOB SITE IN THE PERIOD CONCERNED. THIS RAIN ERODED THE EMBANKMENT OF STRUCTURE 164. CROSS REPAIRED THE DAMAGE AND FILED A CLAIM FOR THE COST OF THE REPAIRS.

BASED ON ESSA'S TROPICAL CYCLONE CLASSIFICATION, THE CONTRACTING OFFICER MADE A FINDING THAT THE TROPICAL DISTURBANCE IDENTIFIED AS "ABBY" WAS NOT IN FACT A "HURRICANE" WHEN IT CROSSED THE LAND AREAS OF FLORIDA AND THEREFORE HE DENIED THE CLAIM ON THE BASIS THAT THE WORK WAS DAMAGED BY A TROPICAL STORM INSTEAD OF A HURRICANE AS SPECIFIED IN THE CONTRACT.

THE BOARD NOTED THAT ESSA TREATS A HURRICANE, NOT AS A PHENOMENON WHICH SPRINGS FORTH FULLY MATURE OR EXPIRES INSTANTANEOUSLY, BUT AS A CREATURE HAVING A LIFE CYCLE CONSISTING OF BIRTH, GROWTH, MATURITY, DECLINE AND DEATH. THE BOARD ALSO NOTED THAT ON PAGE 16 OF THE TREATISE, ESSA STATES THAT WIND IS THE LEAST DESTRUCTIVE AND LEAST LETHAL OF THE HURRICANE'S BATTERY OF DESTRUCTIVE ELEMENTS AND FLOODS PRODUCED BY HURRICANE RAINFALL ARE MORE DESTRUCTIVE THAN WINDS. THE BOARD QUOTED FROM PAGE 15 OF THE ESSA TREATISE:

"OVER LAND, A HURRICANE DECAYS RAPIDLY. WITHOUT ITS HEAT SOURCE, AND WITH THE ADDED EFFECTS OF FRICTIONAL DRAG, THE CIRCULATION IS RAPIDLY DESTROYED. HURRICANE RAINS, HOWEVER, MAY CONTINUE EVEN AFTER THE WINDS ARE MUCH DEPLETED. IT HAS BEEN ESTIMATED THAT HURRICANE RAINFALL - WITH OR WITHOUT DESTRUCTIVE WINDS - ACCOUNTS FOR NEARLY A FOURTH OF THE SOUTHEASTERN UNITED STATES ANNUAL PRECIPITATION."

THE BOARD STATED ITS OPINION THAT THE DAMAGE TO THE EMBANKMENT WAS CAUSED BY A HURRICANE WITHIN THE CONTEMPLATION OF THE CONTRACT, AND DECIDED THAT THE CONTRACT INTENDED THAT PAYMENT WOULD BE MADE ON ACCOUNT OF DAMAGE CAUSED BY A HURRICANE IN ITS DECLINING STAGE AS WELL AS ITS MATURE STAGE. THE BOARD REJECTED THE CONTRACTING OFFICER'S INTERPRETATION, WHICH IT STATED WOULD DENY RELIEF WHEN DAMAGE IS MOST LIKELY TO OCCUR.

THE SOLE ISSUE IN THIS CASE IS WHETHER THE DAMAGE CAUSED BY THE 12.22 INCHES OF RAINFALL WAS DAMAGE BY A HURRICANE WITHIN THE CONTEMPLATION OF THE CONTRACT. IN ESSA'S DESCRIPTION OF A HURRICANE IT IS STATED:

"IT STANDS UPON THE SEA AS A WHIRLWIND OF AWFUL VIOLENCE. ON AVERAGE, ITS GREAT SPIRAL COVERS AN AREA SOME 100 MILES IN DIAMETER WITH WINDS GREATER THAN 74 MILES PER HOUR, AND SPREADS GALE-FORCE WINDS - WINDS ABOVE 40 MILES PER HOUR - OVER A 400-MILE-DIAMETER AREA. ITS CYCLONIC SPIRAL IS MARKED BY HEAVY CLOUD BANDS FROM WHICH TORRENTIAL RAINS FALL, SEPARATED BY AREAS OF LIGHT RAIN OR NO RAIN AT ALL *** " IT IS NOT CONTENDED THAT ANY PART OF THE 12.22 INCHES OF RAIN WHICH FELL AT THE JOB SITE WAS NOT ASSOCIATED WITH, OR A PRODUCT OF, ABBY.

AS STATED ABOVE, THE MIAMI WEATHER BUREAU HURRICANE ADVISORY NUMBER 8, ISSUED AT 6 A.M., EDT, JUNE 4, 1968, DESCRIBED ABBY AS BEING OF HURRICANE FORCE, AND BY 8 A.M. OF THAT DAY 5 INCHES OF RAIN HAD FALLEN AT THE JOB SITE WITHIN THE PRIOR 24 HOUR PERIOD. WHILE HURRICANE ADVISORY NUMBER 9, ISSUED AT 12 NOON, EDT, JUNE 4, 1968, ADVISED THAT ABBY (THE CENTER) CROSSED THE FLORIDA COAST AROUND 9 A.M. ON THAT DATE WITH WINDS DIMINISHED TO 40 MILES PER HOUR, THE BOARD FURTHER FOUND THAT ABBY REINTENSIFIED SLIGHTLY ON THE 5TH AND THAT ON THE 6TH RECONNAISSANCE AIRCRAFT RECORDED WINDS OF 67 KNOTS, OR 3 KNOTS ABOVE HURRICANE INTENSITY.

BASED ON THE PRESENT RECORD, AND WITH ABBY HAVING BEEN OF HURRICANE INTENSITY DURING THE BEGINNING AND THE ENDING OF THE APPROXIMATELY THREE- DAY PERIOD OF RAIN IN WHICH THE DAMAGE OCCURRED, WE BELIEVE THAT THE DAMAGE MUST BE ATTRIBUTED TO THE HURRICANE, AND IS THEREFORE COVERED BY PARAGRAPH SP-17 OF THE CONTRACT. IN THIS PARTICULAR SITUATION, WE THINK IT WOULD BE AN UNDULY NARROW CONSTRUCTION OF THE HURRICANE DAMAGE CLAUSE TO CONSTRUE IT AS DENYING PAYMENT TO THE CONTRACTOR MERELY BECAUSE THE STORM DID NOT MAINTAIN HURRICANE INTENSITY FOR THE INTERVENING PERIOD DURING WHICH THE RAINFALL AND ENSUING DAMAGE CONTINUED TO OCCUR.

FOR THE REASONS STATED, THE SUBJECT CLAIM MAY BE PAID, IF OTHERWISE PROPER, PURSUANT TO THE BOARD'S DECISION THAT THE DAMAGE TO THE EMBANKMENT WAS CAUSED BY HURRICANE WITHIN THE CONTEMPLATION OF THE CONTRACT.

THE FILE SUBMITTED WITH THE REQUEST FOR A DECISION IS RETURNED.