Each of the libelants herein chartered ships from the Government pursuant to the Merchant Ship Sales Act, 50 U.S. C.A.Appendix, § 1735 et seq., and agreed to various terms of a standard charter, which made the rental price depend in part on the amount of the profit realized by the charterer. The libelants claim that the Maritime Commission, contrary to provisions of the Act, exacted from them too great a percentage of the profits and these actions were brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., to recover the illegally collected amounts. The foregoing cause of action is asserted in each of the libels. In several of the cases some payments were made by the shippers after redelivery of the ships and within two years of the filing of the libel. And some of the libelants sought to obtain refund of certain alleged overcharges caused by the Commission’s refusal to allow certain expense deductions and its refusal to permit cumulative accounting under certain circumstances.1
In each case, the Government moved to dismiss the libels because of lack of jurisdiction, on the ground that all of the claims stated therein were barred by the two-year limitation of the Suits in Admiralty Act, 46 U.S.C.A. § 745. As to this, the Government’s position was that the causes of action accrued as of the *140time the libelants returned their ships to the Commission, and that this “redelivery ” date in all cases was more than two years prior to the commencement of suit. We append to this opinion a chart showing the dates pleaded in the libels and, in some cases, in the Government’s exceptive allegations. Since the dates in the exceptive allegations were not challenged, we accept them as true.
Judge Palmieri, in an opinion reported at D.C., 141 F.Supp. 58, dismissed all the libels, except those of Blidberg Roth-child and Fall River Navigation Co., and denied leave to amend because, however pleaded, the actions were time-barred. Judge Herlands, in a memorandum opinion set out in the margin,2 dismissed the Blidberg Rothchild and Fall River Navigation Co. libels for the same reason. The sole question presented on this appeal is whether it was correct to dismiss the libels and deny amendment because jurisdiction was lacking.
Before dealing with this question, we note that we are without appellate jurisdiction over the Dichmann, Wright & Pugh appeal. Dichmann, in its reply brief, conceded that, since the second count of its libel was still pending in the District Court, its appeal from the dismissal of the first and third counts was interlocutory. It cited 28 U.S.C.A. § 1292(3) as express statutory authority for us to entertain this appeal. But our authority to entertain interlocutory admiralty appeals is limited by the requirement of 28 U.S.C.A. § 2107 that the appeal be filed within 15 days after entry of judgment. Here, the judgment appealed from was filed on May 22, 1956 and the appeal was not filed until August 10, 1956, — more than 15 days later. The appeal therefore is too late, and must be dismissed. The Fanny D (Eggers v. Southern Steamship Co.), 5 Cir., 112 F.2d 347, certiorari denied National Union Fire Ins. Co. v. Eggers, 311 U.S. 680, 61 S.Ct. 49, 85 L.Ed. 438; Blaske v. Dick, 7 Cir., 126 F.2d 96, 98.
In the appeals which are properly before us, the following facts are pertinent to the issues raised. The Maritime Commission in 1946 was authorized by statute to charter vessels owned by the Government. The statute, 50 U.S.C.A.Appendix, § 1735 et seq., provided for rental rates in § 1738, which incorporated by reference § 709(a) of the Merchant Marine Act, 46 U.S.C.A. § 1199 (a). This latter section provided that every charter executed by the Maritime Commission should contain provision that, whenever the charterer’s adjusted profits exceed a certain amount, the char*141terer must pay as additional charter hire one-half of the profits in excess of a 10'% return of employed capital. The Commission, claiming that § 709(a) merely set a minimum additional charter hire, proceeded to charter its ships pursuant to charters which provided a sliding scale for the additional charter hire depending on the amount of profit per day in excess of the 10% return. The libel-ants, as charterers, agreed to progressive rates which allowed the Commission to recapture 90% of the profits in excess of $300 per day, per vessel, above the 10% return, and made payments accordingly.
However, the libelants objected to the sliding scale rate as illegal before making payment thereunder and obtained from the Maritime Commission the assurance that payments of charter hire were to be deemed preliminary and subject to adjustment until final audit. In recognition of this the Commission inserted Clause 13 in the charters.3 In addition, the libelants claim that all parties to the charters operated under the assumption that, until final audit, charter hire payments were merely preliminary. To support this, they point to Commission regulations, 46 CFR §§ 299.31 (k) (1), 299.37-2(a) (1), (2) and (b) (3), to instructions such as the one set out in the margin,4 and to the Commission’s routine procedure, established pursuant to instructions from the General Accounting Office, of depositing the additional charter hire in an “unearned money” account rather than in the “miscellaneous receipts” account required by statute, 50 U.S.C.A.Appendix, § 1745(d).
The libelants argue that the cause of action for return of charter hire illegally exacted accrued as of the date of final audit, or — at the earliest — when the last payment or credit entry in their account with the Commission was made. In all cases this would avoid the time bar. The Government contends that the statute commenced running as of the date when each libelant redelivered the chartered vessels to the Commission. If this be so, these libels would be time-barred.
We agree with the judges below that the basic issues in this appeal were decided adversely to the appellants in our decision in Sword Line v. United States, 2 Cir., 228 F.2d 344, affirmed on petition for rehearing 230 F.2d 75, affirmed as to jurisdiction 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493, and in American Eastern Corp. v. United States, 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.
The Sword Line case held that a cause of action, such as that presented in these *142appeals, accrues as of the redelivery date. See 228 F.2d 344, 347; 230 F.2d 75, 76. In so holding, the majority in that case carefully considered and explicitly rejected the argument that the effect of Charter Clause 13 was to delay the commencement of the running of the statute until final audit. This was also the holding in American Eastern, supra, 133 F.Supp. at page 15.
To avoid the impact of these decisions, the appellants have restated their theories but even as restated most of them were presented and rejected in Sword Line and American Eastern. The “mutual account” or “open account” theory as advanced by Judge L. Hand was rejected by his colleagues in Sword Line, 228 F.2d at page 347, and by the court in American Eastern, 133 F.Supp. at page 15. Nor were the preliminary charter hire payments a “trust fund” because they were kept in a special account. This argument was forcefully brought to the court’s attention in the American Eastern appeal by a letter from appellants’ counsel which thoroughly discussed the point and cited the court to Rosenman v. United States, 323 U.S. 658, 65 S.Ct. 536, 89 L.Ed. 535. In its petition for rehearing in Sword Line, the appellant made essentially the same argument but in somewhat more general terms.
There remains the contention, forcefully urged by those appellants to whom it is available, that, even if suits for refund of payments made prior to redelivery of the ships are time-barred, the court had jurisdiction over those libels which demanded refund of post-redelivery payments to the Commission which were made within two years of the filing of the libel. (For libels so situated, see the Appendix hereto.) The Government replies that the libelants cannot now demand refund since such payments were voluntary, citing Railroad Co. v. Commissioners, 98 U.S. 541, 25 L.Ed. 196, and Cunard S. S. Co. v. Elting, 2 Cir., 97 F.2d 373, and that, in any event, since the libelants accepted the ships on the Commission’s terms, they are now es-topped from disputing them, citing Commissioner of Internal Rev. v. National Lead Co., 2 Cir., 230 F.2d 161, affirmed on other grounds 352 U.S. 313, 77 S.Ct. 347, 1 L.Ed.2d 352.
This point was unmistakably presented and was disposed of without discussion by another panel of this court in Sword Line in an opinion which did not explain why the court lacked jurisdiction of the claim for recovery of the post-redelivery payments. However, the rationale of the opinion in that case which was equally applicable to payments made before and after redelivery, and the rationale of American Eastern, required the orders of dismissal now before us on review. Indeed, in its briefs and its petition for rehearing in Sword Line, the libelant pointed out that after redelivery and within two years prior to the libel it had paid to the Commission $660,000, which it contended was additional charter hire. Yet the court held that there was no jurisdiction to entertain the claim.
Apparently the only point now pressed which was not determined in Sword Line or American Eastern was raised in the Blidberg libel. This concerned a claim for expenses incurred in repairing latent defects which existed when the ships were received by Blidberg. But this claim was obviously in existence, at the very latest, when the ships were redelivered. Since the libels were not filed within two years of the redelivery these claims are barred. 46 U.S.C.A. § 745.
If the subject-matter of these appeals were res nova, we are by no means sure that our dispositions would coincide with those made by the majority opinion in Sword Line and by American Eastern. However, we will not overrule these recent decisions of other panels of the court. On the authority of Sword Line and American Eastern we hold that these libels also were barred.
Accordingly, the decrees appealed from are affirmed except the Dichmann, Wright & Pugh, Inc. appeal which is dismissed.
*143
*144On Rehearing before the Court, en banc.
Before CLARK, Chief Judge, and MEDINA, HINCKS, WATERMAN and MOORE, Circuit Judges.
HINCKS, Circuit Judge.Pursuant to libelants’ petitions after the filing of our first opinion in this ease, this court on December 19, 1957 granted rehearing en banc1 which was limited to the question of determining the proper commencement date of the two-year statute of limitations of the Suits in Admiralty Act, 46 U.S.C.A. § 745. Our earlier opinion of September 25, 1957 is hereby withdrawn.
Each of the libelants herein chartered ships from the Government pursuant to the Merchant Ship Sales Act, 50 U.S.C.A. Appendix § 1735 et seq., and agreed to various terms of a standard charter, which made the rental price depend in part on the amount of the profit realized by the charterer. The libelants claim that the Maritime Commission, contrary to provisions of the Act, insisted on including in the standard charter provisions calling for excessive additional charter hire and these actions were brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., to recover such excess.
In each case, the Government moved to dismiss the libels because of lack of jurisdiction, on the ground that all of the claims stated therein were barred by the two-year limitation of the Suits in Admiralty Act, 46 U.S.C.A. § 745. As to this, the Government’s position was that the causes of action accrued as of the time the libelants returned their ships to the Commission, and that this “redelivery” date in all cases was more than two years prior to the commencement of suit.
Judge Palmieri, in an opinion reported at 141 F.Supp. '58,'dismissed all the libels, except those of Blidberg Rothchild and Fall River Navigation Co., and denied leave to amend because, however pleaded, the actions were time-barred.2 Judge Herlands, in an unreported memorandum opinion, dismissed the Blidberg Rothchild and Fall River Navigation Co. libels for the same reason. The sole question presented on this appeal is whether it was correct to dismiss the libels and deny amendment because, for failure of timely institution of the actions, jurisdiction was lacking.
Before dealing with this question, we note that we are without appellate jurisdiction over the Dichmann, Wright & Pugh appeal. Dichmann, in its original reply brief, conceded that, since the second count of its libel was still pending in the District Court, its appeal from the dismissal of the first and third counts was interlocutory. It cited 28 U.S.C.A. § 1292(3) as express statutory authority for us to entertain this appeal. But our authority to entertain interlocutory admiralty appeals is limited by the requirement of 28 U.S.C.A. § 2107 that the appeal be filed within 15 days after entry of judgment. Here, the judgment appealed from was filed on May 22, 1956 and the appeal was not filed until August 10, 1956. The appeal therefore is too late, and must be dismissed. The Fanny D (Eggers v. Southern Steamship Co.), 5 Cir., 112 F.2d 347, certiorari denied National Union Fire Ins. Co. v. Eggers, 311 U.S. 680, 61 S.Ct. 49, 85 L.Ed. 438; Blaske v. Dick, 7 Cir., 126 F.2d 96, 98.
In the appeals which are properly before us, the following facts are pertinent to the issues raised. The Maritime Commission in 1946 was authorized by statute to charter vessels owned by the Government. The statute, 50 U.S.C.A.Appendix § 1735 et seq., provided for rental rates in § 1738, which incorporated by reference § 709(a) of the Merchant Marine Act, 46 U.S.C.A. § 1199(a). This latter section provided that every charter exe*145cuted by the Maritime Commission should contain provision that, whenever the charterer’s adjusted profits exceed a certain amount, the charterer must pay as additional charter hire one-half of the profits in excess of a 10% return of employed capital. The Commission, claiming that § 709 (a3 merely set a minimum additional charter hire, proceeded to charter its ships pursuant to charters, Clause 133 of which provided a sliding scale for the additional charter hire depending cn the amount of profit per day in excess of the 10% return. Under these progressive rates the Commission was allowed to recapture as much as 90% of the profits in excess of $300 per day, per vessel, above the 10% return.
However, the libelants claim that before entering into such charters and be-
fore making payments thereunder they objected to the sliding scale rates as contrary to § 709(a) and hence illegal; that by reason of their objections the Maritime Commission assured them that payments of additional charter hire would be deemed preliminary and subject to adjustment until final audit; and that, as a result of this understanding the final paragraph of Clause 13 was inserted in the charters. In addition, the libelants claim that all parties to the charters operated under the assumption that, until final audit, charter hire payments were merely preliminary. In support of this position, they point to Commission regulations, 46 C.F.R. §§ 299.31 (k) (1), 299.-37-2(a) (1), (2) and (b) (3), to instructions such as the one set out in the margin,4 and to the Commission’s routine *146procedure, established pursuant to instructions from the General Accounting Office, of depositing the additional charter hire in an “unearned money” account rather than in the “miscellaneous receipts” account required by statute, 50 U.S.C.A.Appendix § 1745(d).
The Government now contends that Clause 13 of the charter is irrelevant to the limitations question and that the statute, of necessity, began to run on the date of payment with the result that all of the libels herein involving payments made before the date of redelivery are time-barred. The Government also argues that jurisdiction is lacking over libels for recovery of payments made after redelivery even if made within two years of suit because such payments as a matter of law were “voluntary” within the meaning of Railroad Co. v. Commissioners, 98 U.S. 541, 25 L.Ed. 196; Cunard S. S. Co. v. Elting, 2 Cir., 97 F.2d 373. Since these contentions have been raised by exceptive allegations the Government, in reliance on comment in The Ira M. Hedges, 218 U.S. 264, 270, 31 S.Ct. 17, 54 L.Ed. 1039, is contending that the voluntary character of the payments, for which recovery is sought, deprives the court of jurisdiction.5 The libelants, on the other hand, .have placed their reliance on Clause 13, and maintain that under that clause no breach of contract could possibly have occurred until, after “final audit,” the Government refused to refund moneys claimed to be due the libelants. In the alternative, the libelants urge recovery on a mutual accounts theory according to which the statute of limitations would begin to run from the date of the last payment or credit entry in the account.
The issues before us have been presented to this court twice before, although in not such comprehensive and forthright manner as in the present case. In Sword Line, Inc., v. United States, 2 Cir., 228 F.2d 344, and in the opinion therein on rehearing, 230 F.2d 75, affirmed on other grounds 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493,6 the limitations issue, which had not been raised in the district court, was presented on appeal for the first time by the United States as appellee. This issue was one of three complex issues raised in the case. The court was in agreement in holding that the libelant’s action had no merit because barred by a bankruptcy composition, but on the issue of limitations the majority, as pointed out on rehearing, held that the action accrued upon the date of the payment for which recovery was sought. 230 F.2d at page 76. Judge Hand’s mutual accounts approach was rejected. In American Eastern Corp. v. United States, D. C., 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, we relied upon the Sword Line ruling and affirmed the lower court without opinion.
The panel of this court which delivered the original opinion on these appeals — • the opinion now withdrawn — felt unwilling to depart from the authority of those cases. But now that the court on rehearing has undertaken to proceed en banc, we feel under somewhat less constraint from our past decisions and consider anew, on the intrinsic merits, the issues now before us.
We have come to the conclusion that the rights of the parties to these charters, so far as additional charter hire is concerned, are governed by Clause 13. This is not the case, frequently occurring, in which money has been collected by the Government by virtue of a statutory direction. The statute involved *147in this case does not of itself authorize or require payments to the Government. Title 46 U.S.C.A. § 1199(a) declares, “every charter made by the Commission * * * shall provide * * * ” Therefore, unless the parties enter into a charter there can be no liability created under § 1199(a). Accordingly, we must look to the charter and specifically to Clause 13 if we are to ascertain the rights and liabilities of the parties and evaluate the libelants’ contentions that the Commission breached the charter and that the breach occurred not until it failed to return funds to the libelants after final audit and due demand.
When the libelants raised their contentions below, and in earlier cases, the Government’s position was that Clause 13 was entirely irrelevant. Consequently, the Government never attacked the libel-ants’ asserted interpretation of that clause: it filed no answers and its excep-tive allegations raised no issues of fact. On this rehearing, however, for the first time the Government argues that even if Clause 13 is controlling on the limitations issue the libelants are misinterpreting the language of that clause: it now for the first time suggests that “each final audit” in Clause 13 means each annual audit. But this dispute as to interpretation is plainly one that now appears to involve questions of fact on which extrinsic evidence is admissible. The parties never had occasion to present such evidence. And the particular problem of interpretation has never been passed upon by any judge in these cases or in any other that has been brought to our attention.
As to the interpretation of Clause 13 and its effect upon claims for the recovery of additional charter hire, we have been presented on appeal with many arguments based on facts alleged in briefs and affidavits, some but not all of which were part of the record below. But since the issue was not raised below, probably because the Government thought it irrelevant under the Sword Line decision, we think the cases should be remanded and the issue should be submitted to the trial judges for findings and determination after giving the Government opportunity to raise such issues of fact as may be desired. This is a case in which parol evidence is admissible on the disputed issue as to interpretation of the charters, Corbin on Contracts, Vol. 3, § 579, and we think we should wait until the relevant record of fact below has been made and completed before we commit the court to any particular interpretation. Our preview, on this appeal, of the contentions of the parties as to Clause 13 leads us to suggest that issues framed thereby are peculiarly appropriate for determination on such evidence as the parties may offer rather than on affidavits. Pacific-Atlantic Steamship Company v. United States, D.C.D.Del. 1955, 127 F.Supp. 931. Of course the burden of proving jurisdiction remains throughout on the libelants. Corporation of The Royal Exchange Assurance v. United States, 2 Cir., 75 F.2d 478. But we think the text of Clause 13 is an adequate, prima facie, showing of jurisdiction in the absence of pleading and proof by the Government that the libelants’ interpretation of Clause 13 is incorrect.
The true intent of Clause 13 having been ascertained, it can then readily be determined whether these suits in so far as they seek recovery of additional charter hire have been brought within the two-year limitation. And any suit thus found to have been timely brought should then, of course, be heard and decided on the merits.
Certain of the libels also include claims not directly based upon the asserted illegality of the progressive rate of additional charter hire under Clause 13. Thus, it is alleged that the Commission, for accounting purposes, improperly split the year 1947 into two segments which had the effect of unduly increasing the libelants’ charter hire liability. The Commission’s construction of the cumulative accounting provision is also asserted to have improperly increased the libel-ants’ charter hire liability. One libelant asserts that the phrase “capital necessarily employed” as used in Clause 13 has *148been incorrectly determined with the result that its charter hire liability has been overstated. Another libelant asserts that the Commission improperly reduced its overhead expense, thereby increasing its charter hire liability, by offsetting certain management fees it had received and by refusing inclusion of certain post redelivery overhead expenses in “the charterer’s fair and reasonable overhead expenses applicable to operation of the vessels” as provided in the first paragraph of Clause 13. Two libel-ants contend that their charter hire liabilities were improperly increased by the refusal of the Commission to allow the inclusion of certain expenses for agency fees in the overhead expense figure envisioned by the extract from Clause 13 just above quoted. Every one of these claims relates solely to the proper computation of additional charter hire and has no independent basis. We hold that these claims should be dealt with in the same manner as the basic claim for recovery of excessive charter hire. For all were reserved by Clause 13 until “final audit” whatever that term shall be determined to mean.
A different situation, however, prevails with regard to Blidberg’s claim for refund of expenditures for latent defects existing at the time the vessels were delivered on charter as contained in its sixth cause of libel. Such a claim does not come within the express provision of Clause 13 which reserves disputes concerning “additional charter hire.” The accrual of this claim, therefore, was not deferred until the final audit and consequently it is time-barred. Isthmian Steamship Co. v. United States, D.C.S.D.N.Y., 146 F.Supp. 219; Alcoa Steamship Co. v. United States, D.C.S.D.N.Y., 94 F.Supp. 406. However, this item, though not directly recoverable, may indirectly affect the proper computation of Blidberg’s additional charter hire. To the extent that this is so, it may be necessary to litigate this expense for its impact on a proper computation of Blidberg’s additional charter hire even though direct recovery of the expense be time-barred.
To the extent that Sword Line and American Eastern are inconsistent with rulings indicated above, they are overruled.
The appeal of Dichmann, Wright & Pugh, Inc. is dismissed. All other decrees appealed from are reversed and the suits are remanded for further proceedings in accordance with this opinion, except that the dismissal of Blidberg’s sixth cause of libel is affirmed.
. A few of the libels alleged disputes as to the valuation of specific items entering into the cost basis upon which the profits were calculated. These included differences concerning the amount of “capital necessarily employed,” the “post redelivery overhead expenses,” the “cost of repairing latent defects,” “management fees” and “agency fees.”
. “November 5, 1956
Memorandum
“Libelant here seeks to recover from respondent alleged overpayments made pursuant to its charter of certain Government-owned vessels. Libelant further seeks leave to amend its libel in order to allege, in fuller detail, the transactions giving rise to the alleged causes of action.
“Respondent excepts to the libel as time-barred under Suits in Admiralty Act, 46 U.S.C.A. section 741, et seq., and opposes the proposed amended libel on the theory that, as amended, the libel still fails to state a cause of action accruing within the required two-year limit prior to the date of filing of the libel.
“Respondent’s exception is sustained; libel dismissed. Libelant’s application for leave to amend is denied.
“The points now at issue before the Court have been too well-settled by recent authoritative decisions as to require consideration de novo. Sword Line v. United States, 2 Cir., 1955, 228 F.2d 344, aff[irme]d on petition for rehearing, 1956, 230 F.2d 75, aff[irme]d 1956, 351 U.S. 976, [76 S.Ct. 1047, 100 L.Ed. 1493], cert. having been granted only on the question of admiralty jurisdiction; American Eastern Corp. v. United States, [D.C.]S.D.N.Y.1955, 133 F.Supp. 11; aff[irme]d 2 Cir., 1956, 231 F.2d 664, cert[iorari] denied 1956, 351 U.S. 983 [76 S.Ct. 1050, 100 L.Ed. 1497]; A. H. Bull Steamship Co. v. United States, [D.C.]S.D.N.Y.1956, 141 F.Supp. 58. The Court has read the briefs in the three cited cases and is satisfied that the questions of law presented herein were adequately argued before and decided by the courts in such cases.
“Settle order on notice.
William B. Herlands United States District Judge.”
. “Cifrase 13. Additional Charter Hire. * #
“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 (Warshipdemise-out) charter (prior to the times of payment provided for above or in such War-shipdomiseout charters) at such times find 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 overpayments refunded to the Charterer as may be required.”
. “Where a voucher check is tendered by the Charterer, it is requested that no reference be made thereon through restrictive legend or otherwise to the effect that it is a final settlement. The accompanying letter of transmittal should state that the remittance is on account of additional charter hire due the Maritime Administration and is subject to adjustment upon the completion of final accounting between the Charterer and the Maritime Administration and that neither the tender of such payment by the Charterer, nor its acceptance by the Maritime Administration shall be construed as an approval of the correctness of the amount thereof, nor as a waiver of the rights or remedies of either party under the terms of the agreements involved or otherwise.” (May 14, 1951 letter from Maritime.)
. Judge LOMBARD has not participated in this appeal.
. This action was required under the holdings of prior decisions of this court which will be discussed in this opinion.
. “Clause 13. Additional Charter Hire.
If at the end of the calendar year 1946, or any subsequent calendar year or at the termination of this Agreement, the cumulative net voyage profit (after the payment of the basic charter hire here-inabove specified and payment of the Charterer’s fair and reasonable overhead expenses applicable to operation of the Vessels) shall exceed 30 per centum per annum of the Charterer’s capital necessarily employed in the business of the Vessels (all as hereinafter defined), the Charterer shall pay over to the Owner at Washington, D. C., within 30 days after the end of such year or other period, as additional charter hire for such year or other period, an amount equal to the percentages of such cumulative net voyage profit in excess of 10 per centum per an-num on such capital computed in accordance with the following table (but such cumulative net profit so accounted for shall not be included in any calculation of cumulative net profit in any subsequent year or period) :
“Cumulative net voyage profit (in excess of 10% per annum on capital necessarily employed) not in excess of $100 per day — 50%.
“Cumulative net voyage profit (in excess of 10% per annum on capital necessarily employed) in excess of $100 per day but not in excess of $300 per day — 75% on such excess over $100 per day.
“Cumulative net voyage profit (in excess of 30% per annum on capital necessarily employed) in excess of $300 per day — 90% on such excess over $300 per day.
“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 Wurship-demiseout 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 overpayments refunded to the Charterer as may be required.”
. “Where a voucher check is tendered by the Charterer, it is requested that no reference be made thereon through restrictive legend or otherwise to the effect that it is a final settlement. The accompanying letter of transmittal should state that the remittance is on account of additional charter hire due the Maritime Administration and is subject to adjustment upon the completion of final accounting between the Charterer and the Maritime Administration and that neither the tender of such payment by the Charterer, nor its acceptance by the Maritime Administration shall be con*146strued as an approval of the correctness of the amount thereof, nor as a waiver of the rights or remedies of either party under the terms of the agreements involved or otherwise.” May 14, 1951 letter from Maritime.
. For purposes of this opinion it is not necessary to pass upon this contention. We observe, however, that carried to its logical conclusion the contention is that every issue going to the merits is jurisdictional.
. As to the timeliness of the libels, cer-tiorari was denied.