J. JOSEPH SMITH, Circuit Judge.
The instant ease presents fourteen consolidated appeals. The appellants are in all cases shipping concerns whose actions against the United States under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., have been dismissed in the District Court for the Southern District of New York as time-barred.1 On appeal to this court, a panel composed of Circuit Judges Hincks and Medina and Retired District Judge Leibell affirmed the dismissal of the libels, American-Foreign Steamship Corp. et al. v. United States, 2 Cir., 1957, 265 F.2d 136, on the authority of Sword Line, Inc. v. United States, 2 Cir., 1955, 228 F.2d 344, affirmed on rehearing, 2 Cir., 230 F.2d 75, affirmed as to admiralty jurisdiction, 1956, 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493, and American Eastern Corp. v. United States, D.C.S.D.N.Y.1955, 133 F.Supp. 11, affirmed 2 Cir., 231 F.2d 664, certiorari denied 351 U.S. 983, 76 S.Ct. 1050, 100 L.Ed. 1497.
That panel, however, indichted that, were it not for the aforementioned two recent decisions by other panels of this court, it might well pass differently on the limitations question. Petition for re-argument in banc was granted and the case was heard again by the then active Circuit Judges, Chief Judge Clark, and Judges Medina, Hincks, Moore and Waterman.2 A majority of that court rejected the Sword Line and American Eastern cases and held that the libels had been improperly dismissed. The causes were ordered remanded for further factual inquiry to determine whether the parties had agreed, in Clause 13 of the bareboat charters, to postpone suits on all questions until after final audit of the charters — thus suspending operation of the time-bar. Judges Waterman and Clark dissented, being of the opinion that Clause 13 clearly did not postpone the running of the limitations period and that Sword Line and American Eastern were correctly decided; Judge Clark, in his dissent, further questioned, under the wording of 28 U.S.C. § 46(c), the right of Judge Medina (who had retired from regular active service under the provisions of 28 U.S.C. § 371 (b) between the time of the submission of the appeals to the court in banc and the date of the decision in the case) to cast a vote on the in banc court.
After the denial of a petition for rehearing, the Supreme Court granted certiorari only on the question of Judge Medina’s interim retirement, 1959, 361 U.S. 861, 80 S.Ct. 117, 4 L.Ed.2d 101. That Court held, per Justice Stewart, that he had not been eligible; it vacated the in banc decision and remanded to this court for further proceedings, intimating “no view as to the merits of the [602] underlying litigation.” 1960, 363 U.S. 685, 80 S.Ct. 1336, 1340, 4 L.Ed.2d 1491.
Although the factual background of these disputes has been recorded in the course of former voyages through this court, it will be helpful to attempt once again to place these facts in proper perspective. During the Second World War the United States Government, not surprisingly, had a virtual monopoly on the ownership of all floating vessels. It used the facilities of the existing civilian maritime industry with those ship operators acting generally as managerial agents for the United States. After the termination of hostilities the government moved to get out of the general maritime industry in favor of the civilian commercial operators. Starting in early 1946 the War Shipping Administration began chartering many war-built vessels under a form of bareboat charter agreement known as “Warshipdemiseout Form 203.” By the Act of Congress of July 8, 1946, Section 202, 60 Stat. 481, at page 501, the War Shipping Administration was abolished effective September 1,1946 and its functions transferred to the Maritime Commission (Maritime). In August, Maritime announced its intention to cancel all Warshipdemiseout 203 charters as of August 31, 1946- — -and to' substitute a new form of charter, “Shipsalesdemise 303,” which was chiefly distinguished from its predecessor by a sliding scale for the payment of “additional charter hire” geared to the profits of the charterers. Whereas the earlier charter had provided for a flat 50%' government charge on profits in excess of a 10% return on capital, “303” provided for the payment to Maritime of up to 90% of the excess profits
Appellants, singly and through their trade association, protested the imposition of this sliding scale for “additional charter hire,” alleging that Maritime’s action was illegal and outside the scope of its statutory authority under section 5(a) and (b) of the Merchant Ship Sales Act of 1946, 50 U.S.C.A.Appendix § 1738 and § 709(a) of the Merchant Marine Act of 1936, 46 U.S.C.A. § 1199(a). Nevertheless, they all signed the new charters calling, in Clause 13, for the sliding scale on profits in excess of 10% of capital necessarily employed. The disputed Clause 13, after making provision for the graduated rates, stated:
“The Charterer agrees to make preliminary payments to the Owner on account of such additional charter hire and on account of any additional charter hire accrued under any War Shipping Administration Form 203 (Warshipdemiseout) charter (prior to the times of payment provided for above or in such Warshipdemiseout charters) at such times and in such manner and amounts as may be required by the Owner; provided, however, that such payment of additional charter hire shall be deemed to be preliminary and subject to adjustment either at the time of the rendition of preliminary statements or upon the completion of each final audit by the Owner, at which times such payments will be made to the Owner as such preliminary statements or final audit may show to be due, or such over-payments refunded to the Charterer as may be required.”
Although by far the largest claims of these applicants concern the repayment of allegedly illegal additional charter hire,3 there are many other claims pressed, some of them quite substantial. One is based on the alleged unauthorized insistence by Maritime that 1947 be split into two separate accounting years because of the insertion of a “foreign trade addendum” into the charters.4 There are disputes on the interpretation of the charters concerning the availability of certain cumulative accounting methods involving the disallowance by Maritime of “loss [603] carry-backs.”5 Finally, there are diverse claims involving the disallowance of specific expenditures involved in the computation of the basic and additional charter hire paid Maritime. These include disagreements over “capital necessarily employed,”6 the disallowance of certain alleged post-redelivery overhead expenses,7 management fees,8 and agency fees.9 Blidberg alone asserts a claim against the government for recovery of expenses incurred because of claimed latent defects present in certain vessels at the time the government handed them over to the charterer.
Because of the consolidation of so many causes in this appeal, the relevant time factors are somewhat incomplete on the record. It is agreed, however, that in all cases the libels were instituted more than two years after the redelivery dates of the last vessel, i. e. the time of termination of active operation under the charters. Similarly, it is undisputed that all actions were begun within two years of “final audit.” Some of the charterers had made substantial payments on additional charter hire within two years of instituting their libels; others had not.
The claims advanced by appellants fall into two broad categories. The first embraces those disputes involving the claimed illegality of Maritime’s actions. This includes both the additional charter hire rates geared to the amount of the charterers’ profits, and the foreign trade addendum — with the resultant split 1947 accounting forced upon appellants in that addendum. In the second category of claims, appellants do not challenge the power of Maritime to insist upon certain contractual terms. These disputes involve the construction and interpretation of the charters as regards proper deductions and expenditures and methods of cumulative accounting. Because of the basic difference between these two types of controversy, different application of the time-bar is justifiable and warranted.
The limitations section of the Suits in Admiralty Act, 46 U.S.C.A. § 745, is significant for a number of reasons. The fact that the limitation on actions is “built-in” to the statute makes the time-bar a sharp jurisdictional limitation on suits not timely brought under the Act. Osbourne v. United States, 2 Cir., 1947, 164 F.2d 767; Desmond v. United States, D.C.S.D.N.Y.1952, 105 F.Supp. 9, reversed in part on other grounds, 2 Cir., 1954, 217 F.2d 948, certiorari denied 349 U.S. 911, 75 S.Ct. 600, 99 L.Ed. 1246; Burch v. United States, D.C.E.D.Va. 1958, 163 F.Supp. 476; see also Soriano v. United States, 1957, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306. It also evinces a clear Congressional policy frowning upon stale claims against the government. In the case of contract claims against the United States, Congress has decreed that, in admiralty actions, even mildly stale claims are not to be brought. This is apparent when the two year time-bar period of section 745 is compared with the six year limitation period applying generally to suits against the United States, 28 U.S.C. § 2401, or with general state limitation statutes applying to contract actions which invariably allow a much longer period to bring suit. See Gen.Stats.Conn. (1958 Rev.) § 52-576; N.Y.Civ.Prac.Act, § 48; Vernon’s Ann. Texas Civ.Stats., Art. 5527, 5529; Cal. Code Civ.Proc., § 337; Ill.Rev.Stats., Chap. 83, § 17. The time limitation imposed by the statute must be strictly construed to effectuate the Congressional policy so announced. McMahon v. United States, 1951, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26.
Section 745 states, “Suits * * may be brought only within two years after the cause of action arises.” As to the category of disputes centering on the “illegality” of Maritime’s actions— [604] the sliding scale for additional charter hire and the split-1947 accounting — the causes of action “arose” at the time the charterers reluctantly signed the questioned agreements. Appellants had protested the inclusion in the charters of both those clauses. Since it was immediately apparent that deposit of large sums would be required under those provisions, the controversies were ripe for action. Charterers could have brought suit in the District Court for a declaratory judgment to determine the legality of the disputed clauses within two years of signing the agreements. See the dictum of the Third Circuit in a very similar case, American President Lines v. United States, D.C.D.Del.1958, 162 F.Supp. 732, 739, affirmed 3 Cir., 1959, 265 F.2d 552. Although declaratory judgment procedure is apparently not often used in admiralty, it has been recognized that it is available. Leonard v. Liberty Mutual Insurance Co., D.C.E.D.Pa.1958, 165 F.Supp. 154, reversed on other grounds 3 Cir., 1959, 267 F.2d 421; Longview Tugboat Co. v. Jameson, 9 Cir., 1955, 218 F.2d 547; Sun Oil Co. v. Transcontinental Gas Pipe Line Corp., D.C.E.D.Pa.1952, 108 F.Supp. 280, affirmed 3 Cir., 1953, 203 F.2d 957.
The Suits in Admiralty Act does not specifically sanction declaratory relief against the United States. However, nowhere in that statute is there any indication that the significant reforms later introduced by the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, should not be applicable to admiralty courts and to libels in admiralty against the government. Furthermore, the wording of the Declaratory Judgment Act makes it broadly applicable to “any court of the United States” which would include, presumably, the admiralty courts. Declaratory relief was also available to appellants under the terms of the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1009. Maritime is surely an “agency” within the scope of section 1001(a) — and section 1009(a), (b) and (c) would appear to have given appellants the opportunity to challenge the legality of Maritime’s actions.
It may be rather harsh to hold that the charterers are now completely foreclosed for failure to attempt one of those aforementioned courses — which may have been anything but clear at that time. Nevertheless, even if it cannot be said that appellants had a “cause of action” immediately after signing the agreements, a cause of action did arise immediately upon the payment of additional charter hire in excess of 50% of profits — or when preliminary payments were made on the 1947 split-year accounting system. Although the exact, dollar amount in issue was open to modification by the effect of profits or losses in later accounting years — or by other supervening disputes over allowable expenses and the like — there nonetheless, was a claim, sufficiently liquidated to support a suit, after each overpayment. The charterers had still another path clearly open to them which would have protected their rights; they could have refused to pay charter hire in excess of 50% — and forced the United States to sue them for the difference. See United States v. East Harbor Trading Corporation, D.C.S.D.N.Y.1960, 190 F.Supp. 245.
Since the built-in time-bar of the Suits in Admiralty Act acts as a direct limitation to the court’s jurisdiction in an action such as this one, the government challenge to the timeliness of these libels was properly raised by exceptions and exceptive allegations. United States Shipping Board Emergency Fleet Corporation v. Rosenberg Bros. & Co., 1928, 276 U.S. 202, 214, 48 S.Ct. 256, 72 L.Ed. 531; Levine v. United States, D.C.S.D.N.Y.1953, 115 F.Supp. 58, affirmed 2 Cir., 1954, 210 F.2d 954. A reasonable interpretation of section 745 coupled with the facts in these cases indicates that “causes of action” arose far more than two years before the institution of these libels — much closer to a decade prior to suit. Libelants, therefore, are under a duty to “allege sufficient fact's to show affirmatively that the suit(s) [605] (were) timely brought, otherwise * * exception(s) to the libel (s) must be sustained.” Levine v. United States, supra, 115 F.Supp. at page 60. Appellants attempt to carry this burden by pointing to Clause 13 of the later charter forms, “Shipsalesdemise 303.”
Plaintiffs argue that Maritime contracted, in Clause 13, to refund all “over-payments * * * as may be required” at the time of final audit. These “over-payments,” it is contended, include those connected with the allegedly illegal rate of charter hire. The charterers claim that there was no breach of this contractual duty until Maritime disallowed their claims after final audit — and that a “cause of action” arose then. Appellants’ alternate theory is that, regardless of whether it can be said that Clause 13 gives them a “contract” claim arising at the time of final audit, actions for unjust enrichment were timely brought because Clause 13 and later governmental action postponed the date for the running of the statute of limitations until after the final audits.
Clause 13, as quoted above, contains no particulars as to what kinds of issues were to be raised at time of final audit; the provision merely speaks broadly of “overpayments.” As a matter of pure contract construction, it would be quite difficult to find that a broad, unspecific provision like that found in Clause 13 was a contract to refund, far in the future, payments which should prove illegal (the trial of that issue likewise to be postponed until a dimly future date). That it was an agreement to postpone the running of the time-bar on the illegality claims is an equally strange construction. It is difficult to understand why any government agency would make such an agreement. By the appellants’ own contention, the dispute concerning illegality was completely crystallized before they signed the charters; there was no chance of later events varying the statutory authority, or lack of authority, of Maritime to insist on such a provision at the effective dates of the bareboat charters. The practical effect of construing Clause 13 in that manner would be to sanction the “depositing” of huge “overpayments” with the government, which deposits might be accruing an, absolutely safe return of interest dependent on the outcome of law suits not even instituted until almost a decade later. Since the controversy was already ripe at the time of execution of the charters (or at least very nearly so), it is hard to-imagine why the parties would then agree to “put it off” ten years. In the absence of more specific language than Clause 13 presents, it cannot be construed to be an agreement to repay, at time of final audit, overpayments based on the illegality of the rates- — or as an agreement to delay the running of the-time-bar for almost a decade.
Much is made of the difference in language between Clause 13 of “303” and: the corresponding language of its prototype clause in the earlier Warshipdemiseout Form 203. The earlier form provided for payments by or to the government, upon final audit, as such audit showed to be due. Clause 13 calls for payments to the government as shown, to be due by the audit, but provides for “such overpayments (to be) refunded to-the Charterer as may be required.” The-literal language of the later provision-would appear to limit payments to the-owner after final audit to those shown by the audit to be due — while “overpayments * * * to the Charterer” are-not to be so limited. It is argued that this phrasing reflects the intention of the parties to keep the illegality disputes-open for the appellants until after final audit. While the wording of the clause-might lend itself to such a construction, the result reached is much too heavy a. burden to be borne by the rather innocuous phrase “as may be required.” The-postponement of such a dispute, already formulated and ready for decision at-the time of execution of the charters— and possibly involving large sums of' money — is an extraordinary provision. If the parties had truly intended such a. result, they surely would have provided’ for it clearly and forcefully; it cannot be-[606] said that the language of Clause 13 does that.
Appellants contend that, contract construction aside, they have put forward enough evidence to show that the parties so intended Clause 13 to operate. This extrinsic evidence is offered to aid in the interpretation of the contract. It was apparently on this basis that the majority of the earlier in banc court held that appellants had made a sufficient prima facie showing on the time-bar jurisdiction question to warrant the denial of summary dismissal — and further proceedings in the District Court.
The charterers assert, by affidavit, their protests to the sliding rate of charter hire. They claim that, because of these protests, the paragraph of Clause 13 dealing with preliminary payments was inserted. The internal governmental handling of the monies, in an “Unearned monies” trust account, is hailed as of great significance. Finally, they lean on a smattering of letters between various of the ship operators and the comptroller division of Maritime as proving the intent to postpone all disputes, including those involving claims of illegality, until after final audit.
This extrinsic evidence purportedly proving intent is wholly unconvincing. As already stated, the phrasing of Clause 13 itself was a weak and ambiguous (and ineffective) way to reflect a postponement of the allegedly great disputes aroused by the protests of the ship operators. Clause 13, rather clearly however, does postpone the settlement of some claims to the time of final audit. In light of this, the trust fund handling of preliminary charter hire payments was wholly consistent with the basic structure of the auditing arrangements provided for in the charters. The inclusion of the illegality claims within the ambit of Clause 13’s final paragraph can hardly be inferred from such treatment of the funds. The letters too are weak supporters of appellants’ contentions. The exchanges pointed to are all in the period of the mid-1950’s — around the time of the respective final audits and the institution of these libels. “Protests” at that time, long after all significant payments of additional charter hire had been paid, are self-serving and of little probative value. As far as the record advanced by the appellants reflects, there was a deep silence on the illegality question for eight full years. Moreover, the “admissions” claimed to have been made by Maritime are not at all established. Indeed, the letter from Maritime to Blidberg contains, if anything, a refutation of the charterers’ contentions. The relevant portion of that letter reads:
“This office is aware of the questions raised by you with regard to the accountings on which the subject invoices are based; however, the provisions of the charter agreements are binding upon your Company to pay such amounts as were billed to you with the understanding that refunds will be made of any amounts determined through supplementary accountings, to have been overpaid.”
Such reference to “supplementary accountings” cannot fairly be interpreted to refer to the illegality claims.
The appellants also advance the contention that their libels should not be dismissed at this stage in the proceedings because it precludes them from use of the otherwise available discovery mechanism. They claim that there is much material in the hands of the government, obtainable through Admiralty Rule 32, 28 U.S.C., which might shed further light on their contention that Maritime “intended” to put off until after final audit the disposition of the disputes over allegedly illegal charter rates and split-1947 accounting. They assert that discovery proceedings in a suit before the Court of Claims has already helped unearth an important “admission” by governmental agents. Although this contention might raise serious questions concerning an apparent clash between the summary disposition usually accorded in cases where the United States pleads, by exception, the jurisdictional time-bar, United States Shipping Board Emergency Fleet Corporation v. [607] Rosenberg Bros., supra, Levine v. United States, supra, and the benevolent procedural ends usually served by modern federal discovery processes, 4 Moore 26.02, 26.03, we need not reach this issue.
It is, in our view, immaterial whether the parties “intended” to put off for a decade suit on the illegality claims. Congress waived governmental immunity from suit in this area in the Suits in Admiralty Act, but only for a two year period. Institution of an action within the statutory period is a condition precedent to the court’s jurisdiction. Osbourne v. United States, supra, Desmond v. United States, supra. The executive arms of the government, through which the United States does business, have no more power to extend by contract the limited right granted by Congress than they had to create the original right of suit against the sovereign. This fact cannot be affected by the argument that the two year period is left intact — that merely the running of that limitations period is postponed for almost ten years; the results are identical in substance.
This does not mean that governmental contracting agencies are completely precluded from agreeing to “final audit” clauses like Clause 13 of these bareboat charters. But the type of controversies “put off” must involve possible future disputes — those which, because of the accounting give-and-take accompanying this kind of charter arrangement, would present a measure of doubt concerning the exact time when a “cause of action” arose. That sort of arrangement would not do violence to the Congressionally imposed built-in limitation; the deliberate postponing for ten years the trial of a clear and presently existing controversy most certainly would subvert the legislative scheme of a limited waiver of immunity. This is equally true whether the extension of time is interpreted so as openly to postpone the running of the limitations period — or whether the executive agency “contracts” to refund overpayments at a time in the distant future, dependent upon the outcome of law suits brought at that later date on a claimed breach of the agreement to refund.
The applicability of the time-bar is different as regards the second broad class of controversies, those concerning disputed interpretation of the terms of the charters themselves. It would be impossible to say that a cause of action existed concerning these claims at any time during the active lives of these charters. Indeed, Maritime did not even publish its Accounting Regulations for these charters until early in 1950 — at which time not only virtually all of the vessels covered by the charters had been returned to the government, but also the greatest percentage of the preliminary payments had been made. There is at least some doubt as to the finality of those Accounting Regulations and it appears there was a good bit of contention back and forth concerning disputed items. Furthermore, a fair reading of Clause 13 would indicate that the settlement of some disputes was meant to be postponed until after preliminary statement or final audit, at which time the respective positions of the contending parties would be clear. It must have been these “contract claims” referred to.
Clause 13 was an effort to postpone final determination of accounting or auditing disputes, that is, the proper interpretation of the contract terms as to whose legality there was no dispute. It appears to be an effective means to that end, for under its machinery there is no actual controversy until the charterer’s credits are disallowed on the final accounting, or refund is refused when demanded on preliminary statement. Rulings and preliminary payments are tentative up to that point.
The lack of power in Maritime to “extend” the Congressional limitations period does not apply with such force on these disputes over contract interpretation. Due to the intricate nature of steamship charter accounting problems, final settlement of the bareboat charter accounts had to be postponed far into [608] the future. Final figures on such items as capital employed, expenses — and, therefore, profits — could not be ascertained until ultimate settlement or disposition, long after redelivery of the vessels, of outstanding foreign agency accounts, personal injury claims and the like. Within this framework of a necessarily suspended final accounting, it was permissible for Maritime to agree to put off for later determination the validity of the opposing views on the correct interpretations of the charters at least until either the charterer in preliminary statement, or owner in final audit set forth its claims. By February 21, 1950 Maritime described the procedures to be followed in computation and payment by the charterers. 46 C.F.R. § 299.39ff. Apparently, accountings and supplementary accountings were constantly being submitted to Maritime for approval. It may be that unlike the “illegality” disputes, Maritime never made a firm and final stand on these questions until the issuance of the final audits. However, the right to recover overpayments came into existence at least at the time of the charterer’s preliminary statements. Clause 13 and the Regulations plainly contemplated the preliminary statement of charterers’ claims by annual and final accountings. The claims involving contract interpretation are time-barred two years after the filing of each preliminary statement. If such statements were not filed upon annual or final accounting under the regulations, the controversy might be postponed to each final audit. It does not appear that, at least after February 1950, any of the charterers omitted to make the preliminary statements contemplated, although such a possibility may exist.
The charterers argue that, even though the “illegality” claims be subject to the time-bar, they still have a right to maintain actions for refund of allegedly illegal exactions paid on additional •charter hire within two years of the filing of the libels. The District Courts held, on the authority of Sword Line, that such payments were "voluntary” .-and therefore unrecoverable. Appellants first contend that they were denied a hearing on the question of “voluntary payments.” The government nowhere pleaded the voluntary payment issue in its exceptions and exceptive allegations and appellants first realized the issue was in these cases (at the preliminary stage) when their libels were dismissed. They insist they are entitled to a hearing and a chance to introduce evidence refuting the “voluntariness” of the payments.
Appellants’ protest does seem at first glance to have substance, for if there is a genuine issue as to voluntariness they are entitled to be heard on it; In all their presentation, however, they point to nothing which would weaken the basis for the ruling of voluntary payments of the amounts now claimed to have been illegally exacted. After the return of the vessels there was no duress. Since the libelants then knew that from their own standpoint they were illegally exacted, the payments must be classed as “voluntary” payments not recoverable in an action against the United States. United States v. Edmondston, 1901, 181 U.S. 500, 21 S.Ct. 718, 45 L.Ed. 971; Union Pacific R. R. Co. v. Dodge County Com’rs, 1878, 98 U.S. 541, 543-544, 25 L.Ed. 196; Silliman v. United States, 1879, 101 U.S. 465, 470, 25 L.Ed. 987; Cunard SS Co. v. Elting, 2 Cir., 1938, 97 F.2d 373, 377.
The record in the instant cases falls far short of a showing that the payments of additional charter hire up to 90% of profits were made under protest. In all of the tax cases relied on, there was a clear protest made accompanied by a specific reservation of rights. In the cases at bar, appellants point mainly to Clause 13 and their “general” protest before signing the charters in 1946. Since Clause 13 does not effectively reserve the illegality question for final audit, it cannot serve as a “reservation of rights” so as to make the post-redelivery payments “nonvoluntary”; and surely the protest in 1946, overridden when the charterers accepted the charters containing Maritime’s sliding charter hire scale, does not serve as a protest for each subsequent overpayment. The [609] letters between the charterers and Maritime in the middle 1950’s are also unconvincing. (During the eight year silence, apparently, all significant payments were made — before appellants ever “protested” again.) The exchange of letters between Blidberg and Maritime containing the protest by the former and the urging to pay by the latter followed by more than a year Blidberg’s last payment on additional charter hire.10 The protest by Norgulf was in its letter to Maritime of July 1, 1954. Its last payment on additional charter hire was made in August of the preceding year. It is perhaps particularly significant that to Maritime’s request, in January of 1955, that Norgulf pay a sum of $125,778.84 to the government and then later sue for its recovery, Norgulf has turned a deaf ear. It would appear that all of the shippers’ protests (which, on the record, are exceedingly sparse considering the host of libelants now before the court) were after the fact, belated attempts to reraise their old protests of illegality. Similarly, any assurances made by agents of Maritime seem irrelevant in view of the fact that no reliance seems to have been placed on them.
We do not consider these as mutual accounts, open until the last item on either side of the ledger is entered. They are essentially one way, the hire of ships by the charterers and payment of the terms of hire. There is no corresponding hire or sale or furnishing of services by the charterer to the owner. - Adjustment of such a transaction by credit for stores and fuel appurtenant to the vessel at the time and place of its return to the owner on termination of the charter does not change the essentially one-directional nature of the transaction.
To recapitulate:
1. The claims to recover allegedly illegal payments, based on the sliding scale profit-sharing and on the split-year accounting in 1947 by reason of the foreign trade addendum are outlawed by the statute of limitations on payments made more than two years before suit, and barred from recovery as voluntary payments if made thereafter.
2. All claims not based on additional charter hire founded on payments made more than two years before suit are outlawed by the statute of limitations.
8. Claims for adjustment of additional charter hire, based on contract interpretation rather than on claims of illegality, are not outlawed if suit was brought within two years of preliminary statement or final audit, whichever was earlier.
The court adopts the disposition of the Blidberg claim for “latent defects” made by Judge Hincks on the previous rehearing in banc, 265 F.2d at page 148.
The appeal of Dichmann, Wright & Pugh, Inc., is dismissed.
The judgment in No. 24190, American Foreign Steamship Corp. v. United States of America is affirmed.
The judgment in No. 24400, Blidberg Rothchild Co., Inc. v. United States of America is affirmed.
The judgment in No. 24284, Polar us Steamship Co., Inc. v. United States of America is affirmed.
The judgments in No. 24401 and No. 24402, Fall River Navigation Co. v. United States of America are affirmed.
The judgments in No. 24200, Stockard Steamship Corp. v. United States of America, No. 24285, A. L. Burbank & Co. Ltd. v. United States of America, No. 24286, T. J. Stevenson & Co., Inc. v. United States of America, No. 24287 and No. 24289, North Atlantic and Gulf Steamship Co. v. United States of Ameri[610] ca, No. 24291, A. H. Bull Steamship Co., Bull-Insular Line, Inc. and Baltimore Insular Line, Inc. v. United States of America, No. 24292, New York and Cuba Mail Steamship Co. v. United States of America, and No. 24288, Luckenbach Steamship Co., Inc. v. United States of America, are reversed and remanded for further proceedings in accordance with this opinion to determine whether or not and to what amount valid claims exist on behalf of the libelants against the United States under the charters in suit.