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It has been stated that certain specifications for constructing a church edifice required of the workmen that they refrain from the use of profane or indecent language, as well as from the use of strong drink or tobacco, during working hours. The difficulty involved in securing such Utopian conditions would seem to consist chiefly in the enforcement of the prohibitions.
(A) (The following conformed, in 1911, to Massachusetts
law in relation to public works contracts.) The Contractor shall not request or require any laborer, workman or mechanic in his employ, or the employ of any subcontractor or other person doing or contracting to do the whole or a part of the work to be done in this Commonwealth, to work more than eight hours in any one calendar day; and shall give preference in employment, first, to citizens of Massachusetts, second, to other citizens of the United States; and shall allow all employees on said work to lodge, board and trade where they choose; and, unless otherwise authorized, in writing, by the Commissioner, shall pay all employees on any such work no less wages than is customary in said City in their several employments; and shall not obstruct any other person in doing work for the City.
(Pipe Sewers and Drains Contract, City of Boston.) (B) (The following conformed with California law in 1910.) It is hereby stipulated that the said Party of the First Part shall forfeit, as a penalty, to the said City of
ten (10) dollars for each laborer, workman or mechanic employed in the execution of this contract by the said Party of the First Part or by any subcontractor under said Party of the First Part upon the work in this contract specified for each calendar day during which such laborer, workman or mechanic is required or permitted to labor more than eight hours in violation of the provisions of an Act of the Legislature of the State of California entitled "an act limiting the hours of service of laborers, workmen and mechanics employed upon the public works of or work done for the State of California or of or for any political subdivision thereof; imposing penalties for violation of the provisions of said act, and providing for the enforcement thereof,” approved March 10, 1903, so far as the said act may be applicable to the
said contract. (C) (The following conformed to New York law in 1911.) The Contractor shall comply with the provisions of the
“Labor Law” as amended. No laborer, workman or mechanic in the employ of the Contractor, subcontractor or other person doing or contracting to do the whole or part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day, except in case of extraordinary emergency caused by fire, flood or danger to life or property. The wages to be paid for a legal day's work to all classes of such laborers, workmen or mechanics upon such work shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality where such work is being constructed. Each such laborer, workman or mechanic shall receive the prevailing rate of wages. This contract shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of Sections 3 and 14 of the Labor Law. ... The Contractor shall punctually pay his employees who shall be engaged on the work covered by this contract, in cash and not in script, commonly known as store money, and he shall not, directly or indirectly, conduct or carry on what is commonly known as a company store if there shall at the time be any store selling supplies within two miles of the place where this contract is being executed. (Catskill Aqueduct contract, New York City, 1911.)
The Contractor's Miscellaneous Responsibilities
In this Chapter are grouped, for convenience of discussion, a variety of General Clauses defining the Contractor's responsibility in matters of accidents to persons or property, unforeseen difficulties, local ordinances, patent rights, etc.
Despite the fact that the element of uncertainty in it is at times large,* contracting is not gambling. Specifications may be, and should be, so carefully drawn by the Engineer that this element of uncertainty is reduced to a minimum. There will still remain, however, a number of important risks which it is customary and right that the Contractor should assume. Many of these are more strictly responsibilities than risks, in that they can be provided for in advance. Some others are risks against which it is possible for the Contractor, if he so elects, to insure himself. The aim sought in this fixing of responsibility is that of making the Contractor what the law terms an “independent contractor," or one who is accountable for his own acts, rather than one who is simply an agent of the Owner.
42. Injury or Damage to Persons or Property.
(a) Property damage may be entailed simply by the execution of the contract; for this of course the Contractor could not equitably be held.
As illustrations of this form of damage may be cited the depreciation in value of a building plot as the direct result of a change in grade of the contiguous highway, or the effect of constructing a railroad very close to a handsome residence, or the flooding of lowlands above a bridge built with insufficient waterway.
(6) Injury or damage to persons or property may, however, be due to negligence or carelessness on the part of the Con
* Obviously, the risks involved in subsurface construction are relatively greater than those in connection with most open air structures.
tractor (or his employees or agents). Injuries to persons * will be less likely to occur if the Contractor erects temporary guard railings, or displays warning signals or lights, etc. Similarly, damage to property can in most cases be prevented by proper care on the part of the Contractor. The injury or damage clause should be so worded, however, that it cannot be construed as prescribing to the Contractor just how he shall protect persons or property from danger, -it should simply state clearly and emphatically that the responsibility for accident due to the Contractor's carelessness or neglect or failure to warn of danger shall fall on his shoulders and not on the Owner's. Very delicate and complicated legal questions, such as the responsibility for the settlement of buildings adjoining deep excavations, etc., have frequently found their way to the courts in this connection.
That the laws of some of the ancients were severe and unrelenting in respect to damage resulting from defective construction would appear from the following extracts from the “Code of Khammurabi” (dating from about 2000 B.C.):
"If a builder build a house for a man and has not made his work strong, and the house has fallen in and killed the owner of the house, then that builder shall be put to death. If it kill the son of the owner of the house, the son of that builder shall they kill. If it kill the slave of the owner of the house, a slave equivalent to that slave to the owner of the house he shall give. If the property of the owner of the house it destroys, whatsoever it destroys he shall make good, and as regards the house he built and it fell, with his own property he shall rebuild the ruined house. If he build a house for a man and did not set his work and the walls topple over that builder from his own money shall make that wall strong.”
These are of interest also in connection with the "sufficiency of the plans." (See Art. 30.) (A) The Contractor shall erect and maintain barricades,
red lanterns and danger signals, and shall be responsible for any and all accidents that may occur by reason
of the work. The Contractor shall be responsible for * The word persons includes, of course, the Contractor's employees. Employers' liability laws, recently enacted in many states, affect the Contractor vitally at this point.
any and all damage that may be done or caused to public or private property by reason of the prosecution
of the work. (B) During the performance of the work herein set forth the
Contractor will place proper guards upon and around the same for the prevention of accidents, and at night will put up and keep suitable and sufficient lights, and he will indemnify and save harmless ... (the Owner) ... against and from all suits and actions of every name and description, brought against them, and all costs and damages to which
may be put on account or by reason of any injury or alleged injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the same, or from any improper materials used in its prosecution, or by or on account of any act or omission of the Contractor or his agents, and that the whole or so much of the moneys due to the Contractor under or by virtue of this contract as shall be or may be considered necessary by
(the Owner) shall and may be retained by........ (him) ) until all such suits and claims for damages as aforesaid shall have been settled and evidence to that effect
furnished to the satisfaction of ...... (the Owner).
riers and red lights as will effectually prevent any
might be liable, and the Contractor shall be liable for all damages occasioned in any way by his own acts or neglect or that of his agents,
employees or workmen. 43. Unforeseen Difficulties.
(a) This phrase may, according to the nature of the work, include an almost interminable number and variety of fortuitous occurrences likely to add to the cost of the work to the Con