The Oceanic Steamship Co. v. United States , 586 F.2d 774 ( 1978 )

Bennett, Judge,

delivered the opinion of the court:

The Oceanic Steamship Company (Oceanic) sues for damages under the Tucker Act, 28 U.S.C. § 1491 (1970), alleging that defendant breached its subsidy agreement with plaintiff. The dispute concerns the operating-differential subsidy (ODS) paid to plaintiff for the years 1962 through 1968 for operation of two American-flag vessels, the SS Mariposa and the SS Monterey, engaged in a combined passenger-and-cargo service between the Pacific Coast of the United States and Australia. The subsidies it received, plaintiff asserts, failed to place it in parity with its foreign competition with respect to wage costs of officers and crew. Plaintiff objects to this treatment, to certain withholding of information by the Maritime Administration (MARAD), and to unequal benefits given to another American-flag operator, American President Lines (APL). Plaintiff claims defendant breached the long-term subsidy agreement between them and violated the statute which authorized the contract, the Merchant Marine Act, 1936, as amended, 46 U.S.C. §§ 1101 et seq. (1970). Plaintiff seeks a judgment yielding it the higher subsidies which it claims should have been paid.

The parties are eager to resolve this case without trial. Both have moved for summary judgment, each asserting that no material issues of fact are in dispute. Numerous exhibits and affidavits have been supplied. Still, the record does not illuminate the facts to the extent trial might have. But we agree with the parties that the facts before us permit resolution of the case without remanding for proceedings in the trial division. With respect to the years involved in this lawsuit, in part III we determine the claims for 1962-64 to be barred by our statute of limitations. 28 U.S.C. § 2501 (1970). The claim for 1965 is barred by plaintiffs acquiescence in the rates set and its failure to exhaust administrative remedies, as we hold in part IV(A). The claims for 1966-68 are sustained on account of defendant’s unconscionable failure in negotiation to divulge relevant information then in its possession, as we hold in part IV(B). In part V we remand the 1966-68 claims to the Maritime Administration for negotiation and the establishment of new rates.

Before turning to a discussion of the process by which plaintiffs rates were established over the years, we first examine the background of this litigation, reviewing briefly the subsidy program and plaintiffs place in it.

I

The history of the merchant ship subsidy system has been discussed in detail in prior opinions of this court. Reviews appear in American Export Isbrandtsen Lines, Inc. v. United States, 204 Ct. Cl. 424, 431-37, 499 F.2d 552, 557-60 (1974), and Moore-McCormack Lines, Inc. v. United States, 188 Ct. Cl. 644, 649-50, 413 F.2d 568, 570-71 (1969). Little of what has been said before needs repetition here.

The subsidy program is a product of the congressional judgment, expressed in 1936 and reiterated in 1970,¹ that vital national security and commercial interests are served by the maintenance of ocean vessels under United States registry. The problem Congress sought to address was the weakness of the American merchant marine, which was competitively disadvantaged by the lower costs, particularly with respect to wages, incurred by foreign competitors. As a consequence, Congress authorized long-term subsidy contracts under which American-flag operators receive operating-differential subsidies intended to create parity with foreign competition. See 46 U.S.C. §§ 1171-1183a (1970), especially section 1173.² In exchange, the operators obligate themselves, inter alia, to keep their ships under United States registry for a specified period (typically 20 years), to maintain certain shipping operations on specified routes, and to employ U.S. citizens exclusively.

Plaintiff was the owner and operator of ocean-going steamships and, beginning in 1937, received subsidies under contracts with the United States under the Merchant Marine Act, 1936. This suit involves the most recent of plaintiffs contracts, No. FMB-44, dated July 28, 1955, for a term ending December 17, 1972. Plaintiff and defendant’s Federal Maritime Board,³ agreed that the former would operate and the latter subsidize plaintiffs combination passenger-freight service and freight service on Trade Route 27, generally between Pacific Coast ports of the United States and ports of Australia and New Zealand.⁴

Plaintiffs combined passenger-and-cargo business⁵ under the 1955 contract involved two ships, now known as the SS Mariposa and the SS Monterey,⁶ which traveled between Australia and the American West Coast, with stops along the way. There was substantial competition from other ships on this route, primarily from ships owned by a United Kingdom operator now known as P&O Orient Lines (P&O). Shipping operations of the Crusader Line, also operating under the British flag, provided secondary competition.

The presence of substantial foreign competition triggered a contractual provision requiring payment of subsidies reflecting the operating-expense differential between plaintiff s ships and those of P&O. That provision, in pertinent part, read as follows:

1-4. Determination of Amount of Subsidy, (a) Subject to all the terms of this agreement and effective as prescribed in Article 1-1 of this agreement, the United States shall, pursuant to Section 603(b) of the Act [46 U.S.C. § 1173(b)] pay to the Operator, as operating-differential subsidy, sums equal to the excess of the fair and reasonable cost (as determined by the Board) of * * * wages and subsistence of officers and crews * * * over the Board’s estimate of the fair and reasonable cost of the same items of expense * * * if such vessels were operated under the registry of a foreign country whose vessels are substantial competitors of the vessels covered; by this agreement. Subsidy payments shall be based upon rates determined in accordance with Section 603(b) of the Act, which rates the Board determines will place the Operator on a parity basis with his foreign flag competitors * * *.⁷

It thus may be seen that the determination of the operating expense differential was dependent upon an estimate by the Federal Maritime Board, later the Maritime Subsidy Board of the Maritime Administration, of the fair and reasonable cost of enumerated items of expense (the largest component of which were wages of officers and crews) as if plaintiffs vessels were operated under the registry of a foreign country whose vessels were substantial competitors of the vessels covered by the agreement. So that a "foreign cost” for operation of plaintiffs ships could be constructed, estimates about what it would have cost P&O to run the Monterey and the Mariposa were made. The subsidy rate was the calculated difference between the American-flag cost and the estimated foreign-flag cost of the same operations, which difference was stated as a percentage of the American-flag cost. Thus, over the period 1962 to 1968, the parties’ agreement that P&O’s wage costs were, roughly, 30-33 percent of plaintiffs costs resulted in wage subsidy rates ranging from close to 67 percent to just over 70 percent. Thus, for each dollar of subsidizable wage expense incurred by plaintiff, the Government paid, depending on the year, about 67 to 70 cents. Plaintiff now says the wage subsidy rate should have been 82.3 percent for each of the years and asks $6,253,792 in damages.

Subsidy rates were periodically proposed by the Maritime Subsidy Board and sent to plaintiff with a solicitation of approval. Plaintiff was not obligated to agree to the rates and could request a hearing when dissatisfied with the rates proposed by defendant.⁸ Failing agreement, the board could unilaterally set the rates, although plaintiff could then appeal to the Secretary of Commerce.⁹ If, however, the proposed rates were accepted, no hearing was necessary and the rates would be incorporated by addendum into the contract, in accordance with provision I — 4(b) thereof. Paragraph I — 4(d) provided that the rates so incorporated should apply to all voyages terminating during the year for which the ODS rate was determined. Paragraph I-5(a) of the contract, in accordance with section 606 of the Act (codified at 46 U.S.C. § 1176 (1970)), specified that the amount of future payments to plaintiff should be subject to review and readjustment from time to time, but not more frequently than once a year, at the instance of either plaintiff or defendant. Revised rates, the provision stated, would be applicable to voyages commencing on and after the effective date of any revision. Pending the establishment and determination of new ODS rates for any period, paragraph I — 5(b), reinforced by paragraph 11-23, permitted the operator—

in the discretion of the United States, [to] receive payments on account computed on the basis of not to exceed 75 per centum¹⁰ of the differential rates in effect for the period immediately preceding the effective date of the requested revision.

II

Plaintiff first operated the Mariposa and the Monterey in 1956. In 1959, when subsidy rates were being established for 1956 and 1957 (a time lag was usual), a first step was to determine what the fair and reasonable cost of operating such vessels would have been if under United Kingdom administration. Concerning the "wages and subsistence of officers and crew,” two key subsidizable expenses which were usually settled simultaneously (though separate rates were established for each), the Federal Maritime Board (FMB) estimated that manning under the United Kingdom flag would be 286 people, although plaintiff actually manned each of the two ships with crews of 264. Plaintiff objected to the board’s higher crew estimate, which would have increased the foreign cost and thus diminished the subsidy due; plaintiff insisted that "man-for-man manning” should be used instead.

Man-for-man manning is a construct based on the assumption that the British would man each subsidized ship with the same number of crewmen as plaintiff in fact did, thus avoiding the problem of ascertaining the manning which the British, with their differing traditions, laws, and contracts, would actually employ. Where man-for-man manning was used, plaintiff and defendant both assumed that the P&O workforce would be all-British, which at that time it evidently was. (It was the continued use of this assumption, after the facts had changed, to which plaintiff now objects.)

When plaintiff and the Federal Maritime Board could not agree on the manning to be used in computing foreign wage and subsistence costs, they followed the method prescribed by the statute for resolving such disputes. A hearing was held, at which the FMB staff and plaintiff both presented their arguments.¹¹ The FMB compromised, ruling that the deck and engine compartments would be man-for-man while the steward department would be manned as the staff had estimated, with more stewards than plaintiff used. Rates based on these assumptions were presumably incorporated in the contract; there is no evidence that plaintiff pressed its disagreement further.

By the time the 1958 rates were being established, in 1961, the Maritime Subsidy Board (MSB) had replaced the Federal Maritime Board as the body which established rates. See note 3 supra. This time there was a dispute among the staff of the Office of Government Aid, who advised the MSB on subsidy rates. The acting chief of that office argued that plaintiff was correct in requesting man-for-man manning in all three departments. The wide disparity between plaintiffs ships and those of P&O was cited, and it was pointed out that the disparity was greatest in the steward department, making man-for-man treatment at least as advisable there as in the other departments. The contrary view, maintained by Mr. Hotsko, a special assistant in the Office of Government Aid, was that the manning developed for 1956 and 1957 be used for 1958 because of the large amount of work involved in reopening the question and the small effect anticipated as a result of any changes. The former view prevailed, and plaintiffs 1958 rates were computed on the assumption that foreign competitors employed plaintiffs manning in all three departments.

For the remaining years before 1962, the parties agreed to ODS rates which were based on foreign costs computed by resort to man-for-man manning, rather than on the basis of any estimate of the actual manning P&O would use. The dates of the agreements and final accountings for the subsidies for 1956-61 are immaterial, but the pattern established during this period is relevant as background, for it was the use of this method of computation in later years which spawned this dispute. The use of man-to-man manning was not only approved but evidently required, in these circumstances, by the Manual of General Procedures for Determining Operating-Differential Subsidy Rates (1st rev. ed. 1957), which provided:

Where manning under a Foreign Flag cannot be established with reasonable substantiation, then the manning shall be deemed identical with that of the subsidized vessel.

Meanwhile, P&O began using "mixed crews” on some of its ships. Somewhere around 1963, P&O began to replace some of its British crewmen with Goan (Portuguese Indian) seamen, who worked for lower wages. Both defendant and plaintiff were aware of the new practice and sensitive to the possible impact on subsidy rates before rates were established for 1961 in November 1963.

Defendant’s knowledge is revealed by a "rate book” kept by MARAD, recording all the cost information used in setting subsidy rates for American operators. Notes made concerning the 1961 rates revealed, with regard to P&O’s costs:

* * * a survey of Articles was made * * *. Results of this survey indicate a waging under these Articles would result in lower wages than the previous year. This was apparently caused by the fact that this year’s Articles included, in addition to the Orsova, the Himalaya, a ship operating with mixed crew.

Since it would be unrealistic to maintain that base wages decreased under this flag * * * the same base wage rates developed for the 1960 estimate are used for the 1961 estimate.

Of the information MARAD had about P&O’s actual costs, only a total estimated monthly cost and the number of crew were furnished to plaintiff; the rate book just quoted was not shown to plaintiff.

Plaintiff, too, was aware of P&O’s introduction of mixed crews. Such information was available from visual observation and crew lists required to be filed with the Immigration and Naturalization Service. Further, Mr. James, plaintiffs superintendent, later marine manager, had learned from a British steward employed by P&O not only that Goan stewards were being used but also that the Goans were paid less than British counterparts. James’ memorandum, a copy of which was supplied to Mr. Rogers, who was then responsible for recommending to Oceanic’s management its acceptance of the subsidy rates for 1961-63, reviewed several aspects of the information obtained about P&O and then closed with a paragraph worth quoting:

Of all of the foregoing, the most significant information would seem to be the radical reduction in wage cost that has recently been introduced into this competitive service. No doubt it should be re-explained more carefully in light of subsidy implications.

Despite this memorandum, indicating plaintiffs awareness that P&O’s costs were diminishing because of the introduction of mixed crews, plaintiff continued to agree to subsidy rates without dispute. In November 1963, a subsidy rate was established for 1961. MARAD’s proposed rate for 1962 was lower, based on MARAD’s statement that the United Kingdom cost had increased sharply over the 1961 cost.¹² Plaintiff did not dispute the estimate of foreign wage costs, but instead on March 2, 1965, accepted "Final Subsidy Rates for Wages and Subsistence of Officers and Crews of Passenger Vessels” for Trade Route 27 operations in 1962. Plaintiffs letter to the Secretary of the Maritime Subsidy Board' stated that the acceptance of the rates was "without prejudice to, or waiver of,” plaintiffs right to protest a circular letter, sent to all subsidized operators, regarding pricing of vacation expenses and social security taxes in the calculation of United States costs. Plaintiff also reserved its rights "to present evidence and arguments on the computation of the rates for subsequent years with regard to both United States costs and the foreign costs.” [Emphasis supplied.] No reservations were taken concerning current foreign wage costs.

The same pattern continued to be followed when, on June 25, 1965, MARAD proposed rates for 1963. The supporting information broke down United States costs in detail, giving figures for component costs such as base wages, overtime, vacation, and bonuses. Foreign costs, by contrast, were given only as a total. As in the other years under discussion, the rate was based on a foreign cost calculation which assumed manning of plaintiffs ships with an all-British crew of the same size that plaintiff used. Plaintiff accepted these rates on September 16, 1965, through execution of addendum No. 47 to the contract. The acceptance of these rates, like those of 1962, was asserted to be without prejudice to or waiver of plaintiffs right to protest manual provisions about vacations and social security taxes and "rights to present evidence and arguments on the computation of the rates for subsequent years with regard to both the United States costs and the foreign costs.”

Subsidy rates for 1964 were proposed in a letter from MARAD to plaintiff sent September 21, 1965. Attention was drawn, as on other occasions, to section 7 of order No. 117, as revised, of the Department of Commerce, which dealt with the finality of MSB actions and outlined procedures for review by the Secretary of Commerce. Plaintiff was reminded that an agreement between MARAD and the Committee of American Steamship Lines, of which plaintiff was a member, prohibited attempts to contact the foreign-flag competitor to verify the information on foreign-flag costs "without prior concurrence of the Maritime Administration.” On October 4, 1965, plaintiff accepted the subsidy rates proposed by MARAD as final, again expressly reserving rights to present evidence and arguments on the computation of the rates for subsequent years with regard to both U.S.- and foreign-flag costs.

Before the 1965 rates were settled, plaintiff asserts, it requested of Mr. Hotsko, in MARAD’s Office of Government Aid, that he disclose backup data concerning the foreign costs. The requests were assertedly denied on the ground that the details were confidential. Plaintiff says it was told only that the increase in P&O costs reflected rises in base wages, vacation, and overtime on the British ships. There is no assertion that plaintiff contested the refusal to divulge foreign cost information with Mr. Hotsko’s superiors. Nor did plaintiff request a hearing, which the statute permitted, in which the Maritime Subsidy Board could have been informed of and asked to rule upon the refusal to divulge foreign cost information.

MARAD’s rate offer for 1965 subsidy rates was rejected by plaintiff because of a dispute about the appropriateness of defendant’s exclusion from United States wage costs of certain fringe benefits. Having rejected the MARAD proposal, plaintiff requested a statutory hearing under section 606(1) of the Act, 46 U.S.C. § 1176(1) (1970).¹³ Before such a hearing was held, however, a compromise was reached, and final subsidy rates were established by execution of addendum No. 53 on August 19, 1969.

By the time plaintiffs next rates were being considered in 1970, MARAD was concerned with eliminating the lag between the subsidized operations carried on during a period and the establishment of rates for that service. MARAD made it a matter of "highest priority,” it told Oceanic, to close out the backlog in subsidy rates. Accordingly, on January 28, 1970, it offered to discuss with plaintiff the extension of 1965 rates through the first half of 1968. On May 11, 1970, MARAD encouraged plaintiff and all other subsidized operators to consider extension of 1965 rates (or ones from earlier years) to 1966-68. A circular sent to all subsidized operators in April of 1970 was enclosed. That letter, circular No. 5-70, reiterated MARAD’s desire to extend earlier-fixed rates into 1966-68. It assured operators that others would not be given a base year subsequent to 1965 for rate extension purposes, although it also stated that the normal procedures requiring annual determination of the subsidy rates would be applied to operators not willing to extend 1965 rates through 1968.

On June 24, 1970, plaintiff expressed its willingness to extend the 1965 rates through December 31, 1968, expressing but one small reservation concerning cargo vessels only. Plaintiff also stated its willingness to extend the rates through implementation of the index wage system (introduced in a 1970 amendment of the Merchant Marine Act). On November 5, 1970, the board formally approved the extension of plaintiffs 1965 rates and on November 25, 1970, plaintiff signed addendum No. 74 accepting the 1965 rate for application to 1966, 1967, and 1968. Plaintiffs letter of acceptance reserved its right to payment for certain deductions from United States costs, evidently determined in 1965 to have been ineligible for subsidy. None of plaintiffs reservations reserved the rights plaintiff asserts here, to reopen the subsidy rates for 1962-68 and recompute foreign cost estimates.

In January of 1973, the MARAD staff sent plaintiff proposed subsidy rates for 1969. The summary of foreign costs which was enclosed showed a decline in P&O’s costs from those reported when the 1965 rates were proposed. The summary listed crews of 265 for plaintiff and 282 for P&O, but the latter figure was explained in a footnote to include 157 British and 125 Indian crewmembers. Plaintiff then inquired of American President Lines, a subsidized operator which also competed with P&O, whether it had been offered 1969 rates reflecting P&O’s use of mixed British and Indian crews. APL indicated it had received rates based on mixed crews not only for 1969 but also for 1962 to 1968.

Plaintiff then petitioned the Maritime Subsidy Board to revise its subsidy rates for the years 1965-68, saying the rates for those years were erroneously computed because plaintiff was mistaken as to the "material fact” of the foreign cost. The board rejected the request, finding "no justification” for reopening the subsidy rates which plaintiff had accepted without reservation. Plaintiff requested that the Secretary of Commerce review the board’s refusal to reopen the rates, but he refused. Plaintiff then wrote the Maritime Subsidy Board and stated that it no longer regarded itself as bound by the addenda, that it intended to pursue legal remedies, and that the years as to which it found the rates objectionable included not only 1965-68 but also 1962-64. This suit was filed on July 15, 1975.

Ill

A key issue, hotly debated, concerns this court’s statute of limitations, 28 U.S.C. § 2501 (1970). That statute requires claims to be brought within 6 years of accrual. Defendant asserts that plaintiffs claim, to the extent based on subsidy rates for 1962, 1963, and 1964,¹⁴ is time-barred because addenda setting final rates were signed by the parties with respect to each of those 3 years more than 6 years before the petition was filed here in 1975.¹⁵ Plaintiff responds that the statute of limitations cannot bar inquiry into the correctness of the 1962-64 rates for several reasons: "revised final accountings” for those years were filed by plaintiff with defendant in 1971, less than 6 years before the petition was filed; a new cause of action arose with respect to those years in 1971 when another subsidized operator received rates which plaintiff regards as discriminatory; and the statute did not run during the period when defendant’s acts concealed the claim from plaintiff. We consider each of these arguments below.

(A) Of plaintiffs several counterarguments to defendant’s assertion of a limitations defense, one that was strongly urged in plaintiffs opening brief was that the limitations period did not begin to run until 1971, at the earliest, because revised final accountings for the years 1962-64 were filed in 1971. Closely allied is plaintiffs alternative argument that the limitations period began running in 1971, when final accounting was completed for the 10-year recapture period¹⁶ ending in 1965. Since the petition was filed on July 15, 1975, plaintiff would surmount the limitations hurdle by establishing that 1971 accountings marked the beginning of the limitations period. The first of these arguments rests heavily on language appearing in a coincidentally titled case, Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217 (1964). To avoid confusion, that case will hereafter be referred to as Oceanic I. That case included a limitations discussion which seems supportive of plaintiffs position here, until closely examined.

Oceanic I, plaintiff argues, established that the accrual of claims for statute of limitations purposes occurs at the time all revised final accountings for the years in question were filed. In that case, the court had begun by reciting the rule that claims against the United States first accrue on the date when all events necessary to fix the liability of the Government have occurred; the statute of limitations does not begin to run until a suit for money judgment could be brought. In the contract context, the court said, a claim accrues when payment becomes due and is wrongfully withheld. To determine when this event occurs, the inquiry must focus on the nature of the parties’ agreement, beginning with a study of the entire written document. 165 Ct. Cl. at 218, 225.

The contract in Oceanic I contained a provision, identical in all material respects to one in the contract now before us, providing that the net amount of the operating-differential subsidy was due and payable after a "final accounting” for the year had been accomplished between plaintiff and defendant. In Oceanic I, defendant was arguing that a certain accounting submittal constituted the "final accounting” and was more than 6 years before the filing of the suit, while plaintiff was arguing that a later accounting was the "final” one for limitations purposes. The court chose the later date, placing particular emphasis on the fact that, at the time of the first accounting, subsidy rates had not been established. 165 Ct. Cl. at 229-31. The label applied to the submittal of data was not persuasive; a "true 'final accounting,’ ” the court ruled, could not have been accomplished before subsidy rates were finally established for all the items of subsidizable expense. Hence, the Government’s liability was not yet fixed.

In this case, by contrast, the subsidy rates for the years 1962-64 were finally established at a time more than 6 years before the petition was filed. Final accountings, indeed, revised final accountings, final voucher submission, and even payment, all occurred by 1968, more than 6 years before the commencement of this action. The later filing of so-called revised final accountings in May 1971 involved mere tax adjustments and had nothing to do with the establishment of subsidy rates, which had been settled at least since 1968. Defendant avers, and plaintiff does not deny, that the revised final accountings filed in 1971 had no effect on the amount of subsidy paid or the amount to be recaptured.

Plaintiff seems to yield this point, since its reply brief relies solely on other counterarguments to defendant’s limitations defense. Oceanic I is again relied on, together with Pacific Far East Line, Inc. v. United States, 184 Ct. Cl. 169, 394 F.2d 990 (1968), to establish that the limitations period does not begin to run until subsidy rates have been fixed, final accountings filed, and the recapture period completed and its accounting complete. Plaintiffs argument assumes that accounting is not discrete for individual years; instead, it is argued, the contract provided for cumulative accounting covering the whole recapture period.

Only in a sense is this true, and the effect on limitations is not what plaintiff contends. We said in Oceanic I that a final accounting—

involved not only the computation of the amount of the subsidy due the plaintiff * * *, but also the computation of the amount due from the plaintiff to the Government under the "recapture” provisions * * *, and the striking of a balance between the two amounts. [165 Ct. Cl. at 226.]

Plaintiff takes this to establish that a cause of action for, say, 1962—

accrued not only on the filing of the final accounting for 1962 but also on the filing of the final accounting for 1963, and again for 1964 and 1965. Only with the termination of the recapture period did the accumulated subsidy payable (less recapture) become finally fixed, hence the annual accounting for 1965 fixed the date on which the last claim for the previous years accrued.

We cannot accept this reasoning, in large part because it overlooks the nature of the claim asserted. Although it is true that the recapture provision makes it possible that subsidies apparently earned and already paid will have to be returned (should profits in the late years of the recapture period be high enough), this does not mean that the contract does not require payments based on annual accountings before the completion of the recapture period. Such payments were indeed required by the contract, and they were made on an annual basis. Although the recapture provision may have affected the payments made to plaintiff, subsidy rates for given years in the recapture period were not reopened at the close of the recapture period. The "striking of a balance between the two amounts” referred to in Oceanic I merely means that the size of a subsidy payment will be determined by measuring not only the Government’s obligation under the subsidy provisions but also offsetting from that any amounts which exceed the permissible profit level under the cumulative recapture provisions. The recapture provisions do not deprive a claim relating to an annual subsidy payment of finality so that the claim cannot ripen until the end of the recapture period. In other words, the possibility that recapture will require return of subsidies paid does not mean a claim for subsidy payments must await completion of the accounting for the entire period. We doubt plaintiff would make such an argument were the shoe on the other foot, i.e., if the subsidy rates had been established, final accounting were completed, and defendant refused to pay the subsidies claiming the possibility of recapture made payment premature. To invoke the rule of Oceanic I, plaintiff must show that it could not have sued for payment of its subsidies for 1962-64 until less than 6 years before the petition was filed, that is, July 15, 1969. The possibility that recapture might reduce plaintiffs subsidy entitlement for the 10-year period did not preclude the possibility of suit until after July 15, 1969, any more than the possibility of Renegotiation Act liability prevents defense contractors from suing for payments due them under Government contracts. Accrual accounting for income tax purposes is not prevented by the possibility of a recapture as a condition subsequent. Lawyers’ Title Guaranty Fund v. United States, 508 F.2d 1 (5th Cir. 1975).

Oceanic I and Pacific Far East Line are factually distinguishable and cannot help plaintiff here. Both involved disputes relating to the recapture provision itself. Neither involved claims based on the adequacy of annual payments predicated on assertedly defective subsidy rate determinations. Moreover, Pacific Far East Line did not even involve any question regarding the statute of limitations.

(B) This does not exhaust plaintiffs arguments with respect to the statute of limitations. Plaintiff also argues that the limitations period was tolled because defendant concealed its allegedly unlawful acts. Plaintiff asserts this concealment left it with "no inkling of its claim for additional subsidy— until January 1973,” and argues this brings the case within the rule of Japanese War Notes Claimants Ass’n v. United States, 178 Ct. Cl. 630, 373 F.2d 356, cert. denied, 389 U.S. 971 (1967). The parties vigorously dispute how much was known by plaintiff and defendant at specific times. Plaintiff emphasizes the superior knowledge of defendant and defendant’s superior ability (and obligation) to gather information about foreign costs, while defendant focuses on the knowledge plaintiff had.

We think defendant has the better part of this argument, for the question, in this context, is not whether one party knew or should have known more than the other but whether the plaintiff was prevented, by the other party’s concealment of its allegedly unlawful acts, from knowing of the existence of a possible claim. The limitations period does not await the discovery by the claimant of every fact which helps to prove his claim: "Once plaintiff is on inquiry that it has a potential claim, the statute can start to run.” 178 Ct. Cl. at 634, 373 F.2d at 359. Plaintiff says its ignorance of its claim existed until 1973, when it learned that APL, another American-flag operator competing with P&O Orient Lines, had received higher subsidy rates which reflected the lower cost of use of mixed crews by P&O. But we think plaintiff was "on inquiry” that it had a potential claim well before 1973, in fact, even before the initial final accountings were filed for 1962-64. Plaintiff has conceded that by 1963 it knew P&O was using mixed crews, knew mixed crews were cheaper than all-British crews, and knew that its subsidy rates were computed with a foreign cost calculation which assumed all-British crews on P&O ships. Thus, plaintiff knew that its subsidy rates were somewhat lower than they would have been had the foreign cost computation taken account of the lower wages paid to Goan seamen. But, says plaintiff, it did not know the extent to which the assumption of all-British crews skewed the accuracy of the foreign cost computation. Defendant says its knowledge was not substantially better, claiming it lacked information about the deployment of and wages paid to the Goan seamen. But no matter how much greater defendant’s knowledge may have been, it must be remembered that the statute gave plaintiff an administrative remedy by which to challenge proposed subsidy rates.¹⁷ The withholding of foreign cost information was a matter which could have been raised with the Maritime Subsidy Board and the Secretary of Commerce. Sec note 8 supra and Moore-McCormack Lines, Inc. v. United States, supra, 188 Ct. Cl. at 654, 413 F.2d at 574. Plaintiffs knowledge surely was sufficient to show the wisdom of that course, if indeed there was anything odious about receiving subsidy rates based on the assumption, which plaintiff knew to be false, that P&O manned its ships solely with British nationals. Plaintiff was on inquiry, since it knew of the discrepancy between the assumption and the actual practice. Plaintiff did not protest, nor ask for a hearing. Plaintiff instead accepted the rates as final and collected payment of its subsidies.¹⁸ The principles of Japanese War Notes cannot be stretched to cover a situation where plaintiff knew of the potential for a claim and chose not to follow procedures designed to resolve potential disputes such as this. Plaintiff thus must share some of the blame for its ignorance, but, more important, plaintiffs ignorance was not so great as to toll the statute of limitations. It just cannot be said that plaintiffs claim was concealed from it by defendant or that it was inherently unknowable.

(C) Plaintiff argues further that the limitations period cannot bar its claim as to any of the years in question because the cause of action accrued in 1971, when subsidy rates based on mixed crews were incorporated into the contract of American President Lines for years as far back as 1962 in the case of one ship.¹⁹ At this point, plaintiff says, an independent ground of recovery arose because defendant allegedly discriminated unlawfully between plaintiff and APL in applying the subsidy formula. For authority, plaintiff cites American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 291 F.2d 931 (1961). In that case we invalidated defendant’s application to plaintiff of a new definition of "capital necessarily employed” (used in the determination of earnings, for purposes of recapture) which was more restrictive than the one applied earlier to other subsidized operators, "although all the relevant facts in the two situations were substantially the same.” 154 Ct. Cl. at 704, 291 F.2d at 935. The court was particularly troubled by the motive for the Government action; defendant treated two operators (APL and Oceanic), whose contract execution had been delayed, less favorably than those with whom earlier arrangements had been made, with no better motive than to make some "gesture in the direction of yielding to its [House Committee on Expenditures in the Executive Departments and the General Accounting Office] critics, without an obvious violation of rights.” 154 Ct. Cl. at 704, 291 F.2d at 935. Those critics had wished to see the new definition of "capital necessarily employed” applicable to all subsidized operators from a date before the expiration of their 10-year recapture periods. 154 Ct. Cl. at 699-700, 291 F.2d at 933. Importantly, the court found no difference in the relevant facts respecting the various operators; there was no justification to penalize those operators (APL and Oceanic) merely because their agreement to "the complicated details of an appropriate subsidy contract” took slightly longer than other operators.

That case did not hold the Merchant Marine Act and the contract are violated, creating a new cause of action, whenever two subsidized American-flag operators agree to differently computed subsidy rates, for whatever reason. The theory of that case applies only where there is discrimination between operators who are similarly situated in all material respects. There is much discussion here about whether APL and Oceanic were similarly situated, and good arguments are made on each side.²⁰ In at least one key respect, however, they were not similarly situated, at least with regard to subsidy rates for 1962-64. The key facts here, as we see it, involve the timing of the subsidy rate determinations for the two operators and the difference in the information available at the different times. Specifically, the dates of plaintiffs agreement to its rates are critical. Plaintiffs 1962-64 rates were all settled in the mid-sixties, several years before APL obtained and supplied to MARAD the detailed foreign cost information which permitted the computation of subsidy rates based on the use of mixed crews. As a result of plaintiffs ready acquiescence in the rates proposed to it, plaintiff was promptly paid its subsidies for those years, while APL presumably waited 8 or 9 years to collect the difference between its progress payments (called "payments on account”) and the full subsidies due for 1962 and years following. No tainted motive of the sort faulted in American President Lines can be established here; the difference in treatment of the operators stemmed not from an attempt to mollify MARAD’s critics but instead from observance of a reasonable factual distinction. Plaintiff says it was impermissible for MARAD to base APL’s 1962-64 subsidies on P&O’s use of mixed crews without reopening its determination, made years earlier, with less information in hand, based on the application of a different construct to plaintiff. This argument does not persuade us that plaintiff thus became entitled to have its rates reopened for the years as to which the complete process had been concluded. Acceptance of plaintiffs argument would wreck havoc with the already difficult process of determining subsidy rates.

We see another problem with plaintiffs analysis of American President Lines. Even where two operators are identically situated, differing treatment of them will not automatically entitle the one less generously treated to judicial intervention to equalize the treatment. Our jurisdiction may be invoked only by stating a money claim, and neither the statute nor the contract requires absolutely equal treatment for all operators. The statute does require evenhanded treatment of similarly situated operators, but the parity the statute is calculated to achieve is between subsidized operators and their foreign competitors, not necessarily between each other. Of course, disparate treatment of similarly situated subsidized operators will invite close scrutiny by this court, which will be vigilant to see that the Maritime Administration complies with the requirements of law and fulfills its contractual obligations. But we cannot say that a claim for relief is automatically established when one operator shows merely that another operator was treated differently. As our discussion above indicates, plaintiff in APL made a stronger showing than that.

IV

The next question we face concerns the finality of the subsidy rate agreements worked out between the parties over the years. Defendant argues that plaintiff, by accepting the subsidy rates offered to it by MARAD, released any right to challenge the adequacy of the rates at a later time. In defendant’s view, the execution of contract addenda establishing annual subsidy rates left that matter settled and beyond challenge in court since plaintiff, in defendant’s view, was left without a claim for which relief could be granted.

This argument, we think, can be responded to adequately only by distinguishing the jurisdictional element from the dispute on the merits. We do not agree that execution of contract addenda which establish subsidy rates necessarily precludes judicial review of those rates. Our prior cases in this area establish the principle that fulfillment of the statute’s purposes will not be denied merely because an operator has been prevailed upon to execute an agreement by which he purports to relinquish his statutory rights. See, e.g., American Export Lines, Inc. v. United States, 153 Ct. Cl. 201, 290 F.2d 925 (1961); American President Lines, Ltd. v. United States, supra, 154 Ct. Cl. at 705, 291 F.2d at 936. We thus have no doubt that we have jurisdiction sufficient to proceed to determine the acceptability under the statute and the contract of the rates which were set for the years in question. But a separate question is posed with respect to the effect of the addenda: under what circumstances may the rates established by addenda be voided in favor of more generous ones?

Plaintiffs attempt to escape the rates to which it agreed has three main themes. It relies most heavily on the argument that the rates violated the statute and the contract because they were based on misinformation about foreign costs. Plaintiff also emphasizes that no words of release, waiver, or estoppel were contained in the addenda. Further, plaintiff argues the addenda were invalid because no consideration was given by defendant in exchange for plaintiffs agreement to deflated subsidy rates.

This last argument is most easily answered, for consideration can be proved by showing that either some perform-anee or a return promise was bargained for. RESTATEMENT (SECOND) OF CONTRACTS § 75 (Tent. Draft Nos. 1-7, 1973). Defendant’s payment of that part of the subsidy not already paid as a sort of "progress payment” was a performance for which plaintiff bargained when it agreed to the subsidy rates. Or, consideration could be found in defendant’s relinquishment of its right to contend that the facts established that a lower subsidy rate than that agreed on was appropriate.

Nor need we struggle long with the argument that there is significance to the absence of language of release, waiver, or estoppel in the addenda establishing the subsidy rates. Such language is not essential to a conclusion that the subsidy rates established by addenda were entitled to a large measure of finality. Defendant’s letters emphasized that once the rates were agreed upon they would be final. Plaintiffs responses also spoke in terms of "final” subsidy rates for each period. The subsidy rates were not forced on plaintiff. Plaintiff chose to accept defendant’s proposals rather than to contest them. When plaintiff accepted the subsidy rates, it reserved the right to present argument and evidence concerning U.S.- and foreign-flag costs for subsequent years, thus evidencing an unequivocal intent to let the agreements be final for the years as to which rates were agreed.

The sum of this is that we construe the parties’ intent as being that the rates agreed to would be final, with only very narrow exceptions.

Despite the vigor of their arguments, the parties do seem to agree that the rates must be accorded a large measure of finality but may be challenged successfully if inconsistent with the statutory framework or otherwise invalid under principles of contract law. Plaintiff does not go so far as to argue that the rates must be reopened whenever information is obtained which shows any error in the computations on which the rates are based, nor does defendant assert subsidy rates must be accorded finality no matter how inaccurate the assumptions on which they are based may prove to be. The parties agree that rates which substantially conflict with the requirements of the Merchant Marine Act, as amended, may be revised,²¹ but they clash over whether the rates here so conflict.

It must be emphasized that the statute itself, and the contractual provisions implementing it, do not require that foreign costs be determined to a mathematical certainty. Nothing more than a "fair and reasonable” estimate is required. If this requirement is not met, the fact that the rates have been settled in an addendum to the contract will not prevent the court from stepping in to see that the statute’s purposes are met. Cf. American President Lines, Ltd. v. United States, supra. But the court will not step in lightly, when rates have been negotiated and agreed to, unless the rates do some violence to the policy of the statute. Plaintiff seems to agree with this, and the dispute boils down to a disagreement about the statutory acceptability of the rates as negotiated. In this regard, we see a substantial difference between the 1965 and the 1966-68 rates.

(A) Concerning the 1965 rates,²² there is substantial disagreement between the parties about the amount of foreign cost information each side possessed. Too, there is a wide gulf between the parties on the issue of whose responsibility it was to collect foreign cost information. Plaintiff argues that detailed information about the costs of operation with mixed crews was, or should have been, in defendant’s hands, emphasizing that defendant had a network of overseas representatives to collect this sort of information and that operators were instructed not to pursue such information on their own but were told instead to coordinate their efforts closely with MARAD’s foreign maritime representatives. Such coordination, plaintiff says, was regarded as futile, for MARAD had refused to disclose backup data for its foreign cost estimates when requested by plaintiff to support its proposed subsidy rate sometime around 1965. Plaintiff also mentions an informal understanding between MARAD and the Committee of American Steamship Lines (CASL) that they would work together to acquire data. At oral argument plaintiffs counsel expressly rejected calling the informal understanding for cooperation a contract. A careful reading of the exhibits cited by defendant clearly reveals that CASL members, including plaintiff, were not prohibited from making efforts to obtain foreign cost information and that MARAD did not assume sole responsibility for furnishing such data to plaintiff.

Defendant, in turn, argues that plaintiff was encouraged to obtain information about foreign costs but failed to do so and points out that, in any case, plaintiff knew the "primary facts” necessary to make an informed judgment about the desirability of accepting the rates proposed by MARAD. Specifically, plaintiff knew that its subsidy rates did not take account of P&O’s use of mixed crews which plaintiff knew were cheaper than all-British crews. Moreover, and of critical importance to defendant, plaintiff did not contest either the rates which were offered nor MARAD’s alleged refusal to divulge the information it had. By not availing itself of the statutory hearing procedure, plaintiff failed to apprise the Maritime Subsidy Board of its discontent, if any, and thereby lost its right to complain of the nondisclosure of rates at a later time.

This point, we believe, has much to commend it. It is unnecessary to resolve the conflicting contentions concerning the relative amounts of information possessed by the parties and concerning defendant’s failure to disclose whatever information it had if there is no legal significance to these facts. Under the circumstances of this case, we think these facts cannot be significant where, despite the knowledge it possessed, plaintiff declined to use the hearing procedures prescribed by the statute. Under the statute, plaintiff need not have accepted the rates proposed by MARAD; instead, it could have asked for and received a hearing, at which time it could have been determined whether there was sufficient information to construct foreign manning costs which more accurately reflected the use by P&O of mixed crews.²³ But plaintiff chose not to request a hearing, preferring to accept the rates as final. Likewise, if plaintiff disagreed with the staffs refusal to share its foreign cost information, the propriety of this nondisclosure could have been challenged, if plaintiff had only requested a hearing. In Moore-McCormack Lines, supra, we chastised the Maritime Subsidy Board for its withholding from subsidized operators cost information which should have been shared. But, assuming arguendo that the same duty of disclosure applied here, the MSB cannot be held responsible for sanctioning the nondisclosure because plaintiffs tacit acceptance of the reasons given for withholding the information prevented the board from ever being made aware that there was a potential contest.

The situation, in short, was that plaintiff by 1963 knew mixed crews were being used by its primary foreign competitor, knew that this lowered foreign costs, knew that its subsidy rates did not reflect these mixed crews, declined to request a hearing concerning the staff refusal to disclose foreign cost information, and readily acquiesced in the setting of final subsidy rates for 1965 (and 1962 through 1964 as well). Moreover, plaintiff has not shown it was discriminated against, when compared with any other similarly situated operator. Under these facts, plaintiff may not challenge the rates which were so long ago settled by mutual agreement. There is no basis for asserting that the rates to which plaintiff agreed were not based on a reasonable approximation of foreign costs. That issue was resolved when plaintiff agreed to the rates with full knowledge of the primary facts.²⁴ Having agreed to the rates, with knowledge of their potential inaccuracy, and having bypassed the opportunity to challenge the rates or the nondisclosure of information in a hearing, plaintiff in this case effectively certified that the rates to which it agreed amounted to the best possible approximation of the discrepancy between its costs and those of its foreign competition. This was a responsible position to take, given the difficulty of "reasonably substantiating” any other method of estimating foreign costs.²⁵

Nor can we say that, when new information was received from American President Lines concerning P&O’s manning costs, MARAD became obligated retroactively to adjust plaintiffs subsidy rates. Plaintiffs position defeats the periodic nature of the accounting procedures established by the statute and contract. Rates cannot be reopened every time new information is gathered. The parties’ agreement stated that new rates would be established from time to time, but not more frequently than once a year. The process was designed to operate periodically, and the new rates established for one year would not apply to voyages terminating in the previous period.²⁶ Too, the Manual of General Procedures for Determining Operating-Differential Subsidy Rates indicated a cutoff date for the submission of foreign cost information to be used in setting subsidy rates for any given year; although this presumably could have been waived for plaintiffs benefit as it was for APL’s, the obligation to treat them similarly extends only to those years as to which they were similarly situated. Plaintiffs final acceptance of 1965 subsidy rates relinquished rights retained by APL and provides adequate justification for the differing rate treatment the two received at MARAD’s hands with regard to subsidy rates for 1965 (and before).

MARAD’s procedures have sometimes drawn sharp criticism from the bench. In the differential subsidy context, this court in 1969 quoted with approval Judge Tamm’s castigation of the "appalling backwardness” of the Maritime Subsidy Board’s administrative procedures. Moore-McCormack Lines, supra, 188 Ct. Cl. at 673, 413 F.2d at 585, citing American Mail Line, Ltd. v. Gulick, 411 F.2d 696, 704 (D.C.Cir. 1969). But we have already shown that the operators in Moore-McCormack pursued administrative remedies when denied access to foreign cost information. Plaintiff here, however, would have us go further and fault the Maritime Subsidy Board for sanctioning staff actions which were not challenged or brought to its attention. We will not upset fair and reasonable subsidy rates which have been long established, merely because it is alleged that the rates could have been more precisely computed. The same challenge could have been made before the rates were settled. It is too late to make that charge now.

(B) A different analysis, however, applies to the rates established for 1966-68, on which agreement was finally reached in late November 1970. It will be remembered that the rate established for 1965 was "carried over” for 1966, 1967, and 1968, apparently because MARAD was eager to reduce its backlog and because a new wage indexing system had been passed in 1970. All operators were thus offered an opportunity to have the 1965 rates carried over into the next 3 years, and plaintiff accepted this offer.

What we find troubling about MARAD’s actions in this regard is MARAD’s concealment from plaintiff of the fact that by early 1970 MARAD had received detailed cost information about P&O Orient Lines and was, apparently for the first time, preparing to compute subsidy rates which took account of the use of mixed crews on P&O ships. This information was critical, we believe, since it is most probable that plaintiff would not have agreed to the extension of the 1965 rates had it known of the data submitted by APL and MARAD’s readiness to use the information to compute foreign manning costs in a manner giving effect to the use of mixed crews. MARAD’s failure to disclose its receipt of the new information and to reveal its willingness to act on it conflicted with its obligation to act in good faith with respect to matters subject to the contract. Further, it violated MARAD’s obligation, implicit in the statutory scheme regarding subsidy determinations, to use foreign cost information obtained from each operator, to the extent possible, in rate-setting for other ship lines showing the same foreign competition. It is undisputed that this information was required by the manual to be used in rate setting, and it is undisputed that MARAD did not tell plaintiff of APL’s submission. Under these circumstances, plaintiffs acquiescence in the proposal to extend its rates could not waive its rights to have rates based on the best information available. Without knowledge that the Maritime Administration had received information permitting more accurate rate computations, plaintiff cannot be faulted for its failure to use the hearing procedures or its ready agreement to adopt the 1965 rates as applicable to the 3 following years. Plaintiff was the victim of what amounted to misrepresentation, or at least fundamental unfairness sufficient to vitiate the addendum extending the 1965 rates. At the very least, MARAD’s conduct abused its discretion, see Moore-McCormack, supra, as a result violating both the contract and the statute and giving us jurisdiction.

The analysis of Moore-McCormack has greater relevance here than in our discussion above. Here, the nondisclosure was of greater significance, in part because the information withheld was more important, but more because plaintiff is not even alleged to have had notice of it and so cannot conceivably be said to have waived its rights. See also Hardeman-Monier-Hutcherson v. United States, 198 Ct. Cl. 472, 458 F.2d 1364 (1972), J.A. Jones Constr. Co. v. United States, 182 Ct. Cl. 615, 390 F.2d 886 (1968), and Helene Curtis Indus., Inc. v. United States, 160 Ct. Cl. 437, 312 F.2d 774 (1963), for the superior knowledge doctrine in other contract contexts. We think it is applicable here.

The explanation offered for the failure to alert plaintiff to APL’s data submission is unacceptable. Defendant informed us at oral argument that the proceedings with respect to APL and plaintiff "were not marching in lockstep.” By this, we suppose defendant was calling attention to the respective dates involved, particularly the fact that plaintiffs acceptance of the proposal to extend the 1965 rates occurred in November 1970, while APL and the MSB did not reach final agreement on subsidy rates for APL until early in 1971. But APL’s information about P&O was supplied in late 1969 or early 1970, and it was unconscionable to induce plaintiff to accept extension of the 1965 rates without informing plaintiff of APL’s submission and the opportunity to compute rates which would account for the use by P&O of mixed crews.

There is, we believe, no anomaly in saying that, while the 1965 rates could be finally agreed upon, the extension of those rates to 1966-68 was unconscionable. The information available to MARAD at the time of the two agreements was markedly different, since APL’s submission did not occur until after plaintiffs 1965 rates were finally established. In any case, plaintiffs continued failure to avail itself of the statutory hearing mechanism becomes less consequential when the extension of 1965 rates to later years is considered. Plaintiff cannot be deemed to have acquiesced in the discriminatory treatment between it and APL nor to MARAD’s conscious disregard of the statute’s purpose, which occurred when MARAD failed to reveal its intent to act upon APL’s foreign cost information.²⁷ Defendant does not deny that the information supplied by APL was sufficient to permit more accurate calculation of P&O’s wage costs, and thus a fairer and more reasonable subsidy determination. It asserts only that such recalculation would not be mechanical and would be administratively burdensome. Thus, defendant’s failure to warn plaintiff of the decision concerning APL must deprive plaintiffs acquiescence in the extension of the rates of finality.

V

Finally, we must consider what further action shall be required. Plaintiff contends that once liability is established, the problem remaining is only one of computing damages, a task appropriate for our trial division. Defendant, in turn, argues that we must remand the case to the Maritime Administration. Once having decided the rates can be faulted, we must, defendant says, defer to MARAD’s primary jurisdiction to compute new rates. An analysis of our prior cases leaves us with no doubt that defendant is correct.

Our cases have emphasized the necessity that subsidy rates be determined in the first instance by the Maritime Administration. Moore-McCormack Lines, Inc. v. United States, supra, 188 Ct. Cl. at 676-77, 413 F.2d at 588, provides a strong discussion of the factors compelling us to give the agency an opportunity to exercise its expertise in the establishment of subsidy rates. Farrell Lines Inc. v. United States, 204 Ct. Cl. 482, 499 F.2d 587 (1974), buttresses this conclusion. Plaintiff cites only one case to the contrary, one which we find distinguishable. American-Export Isbrandtsen Lines, Inc. v. United States, supra, upon which plaintiff relies, held that MARAD abused its discretion by questioning the reasonableness of severance pay expenses paid pursuant to a good faith collective bargaining agreement which was negotiated at arm’s length. Once it was determined by the court that defendant was obligated, as a matter of law, to recognize those expenses in setting subsidy rates, it became a simple matter to determine how much defendant owed by reason of its failure to recompense such costs. In this case, by contrast, the rates which should have been set cannot be stated by the court. APL’s submittal of P&O cost information was not so complete that subsidy rates were automatically determined; a process of negotiation was necessary first. The case thus involves rate-setting, rather than a mere computation of damages. Thus, we can go no further than to hold that MARAD abused its discretion when it failed to inform plaintiff that new cost information about P&O had been obtained and that new subsidy rates reflecting P&O’s use of mixed crews would be negotiated if plaintiff wished. We do not have the expertise, or the authority, to determine what subsidy rates should have been established on the basis of this information. Plaintiff avers we can compute the appropriate subsidy rate, but there are too many variables and unknown facts for us to undertake this function, which the statute and the contract have allocated to MARAD, subject, of course, to judicial review. The Maritime Administration, despite its failure to treat plaintiff with full respect of its statutory and contractual rights, is fully capable of negotiating with plaintiff to establish subsidy rates for 1966-68 which are based on fair and reasonable estimates of P&O’s wage costs.²⁸ The agreement reached with respect to 1969 will undoubtedly be a valuable model, but we cannot rule that precisely the same subsidy rate must be applied to 1966-68. A lesser, or greater, subsidy rate might be appropriate for one year or another, depending on the circumstances, but a reasonable and articulated rationale would seem to be an essential element, necessary before we would countenance the imposition, over plaintiffs objection, of rates less favorable than were established for 1969. We will, of course, stand ready to ensure no further violation of plaintiffs right to fair and honorable treatment occurs.

Accordingly, it is ordered that plaintiffs motion for summary judgment and defendant’s cross-motion for summary judgment each be granted in part and denied in part, as appropriate in keeping with this opinion. It is further ordered that this case is remanded to the Maritime Administration and the Secretary of Commerce for a determination of the subsidy rates to be applied for the years 1966-68, in a manner consistent with this decision. We suspend further proceedings in this court for a period not to exceed 6 months for redetermination by the board of the amounts of subsidy awards due plaintiff under the contract for the years 1966-68, under the principles stated above. Plaintiffs counsel shall have the responsibility pursuant to Rule 149(f).

1 Ch. 858, § 101, 49 Stat. 1985 (1936); Pub. L. 91-469, § 1, 84 Stat. 1018 (1970). The amended declaration of policy appears in 46 U.S.C. § 1101 (1970).

2 This is only part of the subsidy program created by the Merchant Marine Act, 1936, as amended. Closely linked, but not in issue here, is a construction-differential subsidy, 46 U.S.C. §§ 1151-1161 (1970), and a special subsidy to meet extraordinary aid to foreign operators by their governments, 46 U.S.C. § 1174 (1970).

3 The Merchant Marine Act, 1936, conferred subsidy-related powers upon the United States Maritime Commission. Reorganization Plan No. 21 of 1950, 64 Stat. 1273, 15 Fed. Reg. 15179 (1950), abolished this commission, establishing instead, in the Department of Commerce, a Maritime Administration and a Federal Maritime Board. The Federal Maritime Board acquired the functions relating to the formation and amendment of subsidy contracts and to the investigation and determination of the relative cost of operating vessels under the registry of the United States and under foreign registry. Functions not transferred to the Federal Maritime Board were transferred to the Secretary of Commerce, who was given power to direct the activities of the Maritime Administration (whose duties and powers were not specified).

All relevant powers of the Federal Maritime Board were transferred to the Secretary of Commerce in 1961. Reorganization Plan No. 7 of 1961, 75 Stat. 840, 26 Fed. Reg. 7315 (1961). Soon thereafter, Department of Commerce Order No. 117 (rev.), 26 Fed. Reg. 7713 (1961), was issued, making clear the extensive role to be played by the Maritime Administration. The Maritime Administration, often called MARAD, was charged with administration of subsidy programs, primarily through the Maritime Subsidy Board, a component organization, which was to operate on recommendations and cost information supplied by another MARAD component, the Office of Government Aid. Ultimate authority for administration of the statute remained with the Secretary of Commerce.

4 Other Pacific ports, including Samoa, Fiji, Hawaii, Tahiti, and British Columbia, were also along the trade route, and stops there were anticipated by the contract.

5 Sometimes referred to as plaintiffs passenger business (as a shorthand distinction from its freight business, which involved different ships and is not in issue here).

6 The Mariposa, formerly the Free State Mariner, was originally delivered, according to the subsidy contract, on Dec. 18, 1952, while the Monterey, ex-Pine Tree Mariner, is recited to have been delivered on Apr. 3, 1953.

As a matter of historical interest only, and unconnected with our resolution of this controversy, we note that news reports in Apr. 1978 gave prominence to the final voyage of the Mariposa, now owned by Pacific Far East Line, Inc. The Monterey, said to have ended its career in Jan. 1978, and the Mariposa were reported to have been the last passenger liners remaining under the American flag, although there remain some passenger-carrying freighters. Washington (D.C.) Post, Apr. 16, 1978, at HI, H6, H7.

7 Plaintiff was "the Operator.” "Board” refers to the Federal Maritime Board, which was soon replaced by MARAD. See note 3 supra.

8 Section 606 of the Act, codified at 46 U.S.C. § 1176 (1970), provided that where the periodic readjustment of subsidy rates could not be reached by mutual agreement, the board, on its own motion, or on the application of the operator, should hold "a proper hearing,” determine the facts, and establish the rate.

9 See note 3 supra.

10 This figure was raised to 90 percent by addendum No. 31, adopted on Sept. 17, 1962.

11 Actually, plaintiffs view had some support even within the FMB. In 1960, the Office of Government Aid bowed to plaintiffs arguments and concluded:

"After careful consideration of the facts as set forth above, it is the opinion of this office that due to the non-existence of comparable or approximately comparable vessels under the U.K. flag, the resulting high utilization of mathematical ratios, assumptions and interpretations of manning practices of the foreign competitor [P&O Orient Lines], the staff is unable to support its estimated manning under the U.K. flag by proof or competent evidence within the meaning of reasonable substantiation and the manning should be computed on a man-for-man basis.”

12 As before, British costs were not detailed in the communication to plaintiff; only a summary was provided, showing the number of crew and the monthly cost. MARAD’s rate book, again not shown to plaintiff, reveals the sketchiness of MARAD’s information about the mixed crews used by P&O:

"Manning

"From a study made, it is apparent that P&O Orient Line is mixing their crews, except for the S.S. Orcades. However, since the Maritime Subsidy Board on November 27, 1961 directed that the manning be determined on a man-for-man basis with the U.S. side, it appears that a European crew should be used rather than a mixed crew. Even on ships with mixed crews no clear and consistent pattern has been established. Some are European in the Deck and Engine Departments while others are mixed. All ships are mixed in the Stewards Department except for the S.S. Orcades.” [Emphasis supplied.]

Very similar language, minus the reference to the Orcades, appeared in the rate book underlying the 1964 rates and the 1965 rates.

13 It will be remembered that the statute required that each contract contain certain provisions, including one requiring "a proper hearing” before rates could be established unilaterally (in the event that "mutual agreement” failed). Note 8 supra.

14 Defendant’s answer invoked the statute of limitations as an affirmative defense to plaintiffs claim for additional operating-differential subsidy payments for the years 1962 through 1965. In its most recent brief, however, defendant has relinquished this argument concerning ODS payments for 1965.

15 Plaintiff accepted subsidy rates and executed contract addenda for 1962, 1963, and 1964, in March, September, and October, respectively, of 1965. Final accountings for each of those years were filed in June 1966. Revised final accountings were submitted that August. In Mar. 1967, MARAD approved the final accountings for 1962 and 1963 and authorized final billing, but the approval was withdrawn and revised accountings were again filed for all 3 years in June 1967. In Dec. 1967 MARAD approved accountings for each year and authorized final billing. Final vouchers were quickly submitted, which MARAD paid in Feb. 1968.

Revised final accountings involving tax adjustments were filed for all 3 years in May 1971 and approved by MARAD in Dec. 1971, but no subsidy rate changes were involved.

16 The recapture provision, prior to the 1970 amendments, operated as an excess profits provision requiring return of one-half of the profits which, over the recapture period, exceeded 10 percent of the "capital necessarily employed.”

17 Note 8 supra. Since this remedy was not pursued, we do not need to discuss the effect such proceeding would have had on the limitations period.

18 APL, by contrast, did not agree to subsidy rates for this period until years later, as discussed below.

19 APL, a subsidized operator on Trade Route 29 (between the West Coast of the United States and points in east Asia), faced substantial competition from both British ships, especially those of P&O, and Japanese ships. When mixed crews began to appear on P&O’s ships, APL realized that proof of lower foreign wage costs would increase the subsidy payable, and it set out to obtain detailed cost information about its primary British competitor. It took until sometime in late 1969 before APL was able to obtain information about the wage rates being paid on the P&O vessels, but, since an unrelated dispute had prevented MARAD and APL from settling the subsidy rates for 1962-69, negotiations between them resulted in rates being set which employed that information retroactively through 1962. The negotiations occurred in late 1969, there were apparently information submissions in 1970, and final agreement on the rates was reached, and a contract addendum executed, on Jan. 7,1971. APL’s pursuit of information about P&O’s costs may have been assisted by its employment in the late 1960’s of Mr. Titus, who had been president of P&O.

20 On plaintiffs side, there are the facts that their respective trade routes shared a common terminus (the U.S. West Coast), with (increasingly) similar competition, and (most important) MARAD seemed, when computing plaintiffs 1969 subsidy rates, to regard plaintiff as much like APL. On defendant’s side, there can be cited differences in the trade routes served, in the sizes and shapes of the ships used, and in the size and deployment of the crews, as well as differing postures with respect to the negotiation and final settlement of subsidy rates.

21 Of course, the power to revise subsidy rates is limited by the operation of the statute of limitations, discussed above.

22 The 1962,1963, and 1964 rates would be subject to the same analysis we give the 1965 rates were it not for the statute of limitations, which forecloses consideration on the merits of the rates set for those years.

23 Ideally, of course, MARAD would not have constructed rates based on the assumption that P&O was using all-British crews, since the facts, were known to be different. But the cost of using mixed crews could not be ascertained without knowledge of the salaries of the Goan seamen and of their deployment on P&O’s ships, and we cannot say the man-for-man manning approach used was per se impermissible. A different method of estimating foreign costs, one which took account of mixed crews and estimated their wages and deployment, may have been permissible but we cannot say it was required. There is more than one way to estimate foreign crew costs, and the method in use need not be immediately abandoned the instant foreign manning practices change.

24 As shown above, plaintiff had proved fully capable of reserving its rights on issues as to which it disagreed with MARAD. See the summary, above, of the negotiation of the 1962 rates.

25 MARAD followed the general principles that man-for-man manning would be used unless actual costs could be estimated with “reasonable substantiation” and that, once a manning method was established, it would not be changed until a different approach could be reasonably justified.

26 This is not to say, however, that there may be no delay between the close of a year and the establishment of rates for that year. Disagreements between MARAD and an operator, as well as administrative backlogs, may prevent prompt settlement of annual subsidy rates. But the periodic aspect of the accounting must be remembered, and the fairness and reasonableness of subsidy rates can be judged only by considering the information available at the time of agreement.

27 There has been no assertion by defendant that plaintiff knew before 1973 of the submittal by APL or of APL’s negotiations with MARAD.

28 Presumably, subsistence subsidy rates will have to be addressed also, since they depend greatly on the manning determination.