concurring in part and dissenting in part:
The majority opinion allows plaintiffs claims for higher subsidy rates for the years 1966, 1967, and 1968 but denies plaintiffs claims for higher subsidy rates for the years 1962, 1963, 1964, and 1965. It appears that the majority’s denial for the three years 1962-64 is mainly based on the six-year statute of limitations and for the year 1965 (and 1962-64 similarly) on plaintiffs alleged acquiescence by failing to raise objections with MARAD (sometimes hereafter referred to as Maritime Administration or Administration).
I dissent from the majority views denying plaintiffs claims for the years 1962-64 and 1965. As for the years 1966-68, I concur with the majority’s result allowing plaintiffs claims. In other words, it is my opinion that plaintiffs claim for higher rates for all the years 1962, 1963, 1964, 1965, 1966, 1967, and 1968 should have been allowed in that defendant’s defense of alleged acquiescence by failing to raise objections with MARAD is not a valid *124defense for any of the years 1962-68. I am also of the opinion that defendant’s defense of statute of limitations for the years 1962, 1963, and 1964 is not available to defendant under the circumstances of this case.
This case rests on the same statutory provision (section 603(b) of the Merchant Marine Act, 1936) and the same contractual clause (Article 1-4 of plaintiffs contract) that were before this court in American Export Isbrandtsen Lines, Inc. v. United States, 204 Ct. Cl. 424, 499 F.2d 552 (1974), and Farrell Lines Inc. v. United States, 204 Ct. Cl. 482, 499 F. 2d 587 (1974). As those cases explained, the Merchant Marine Act, 1936, was intended to achieve a balance — "parity”—between the costs of building and operating American-flag ships and the costs incurred by competing foreign shipowners employing cheap foreign labor; such public assistance was felt necessary for national defense and the development of commerce. Farrell Lines Inc. v. United States, supra, 204 Ct. Cl. at 494, 499 F. 2d at 594.
Section 603(b) of the statute prescribes a formula for attaining the desired competitive parity, viz., defendant is to reimburse the contractor for its fair and reasonable cost of the wages of its officers and crews (and other expenses) to the extent they exceed a fair and reasonable estimate of the same items of expense if the contractor’s ships were placed under the registry of the foreign country with whose ships they compete. This statutory formula is repeated in Article 1-4 of plaintiffs contract. It specifies that this cost "differential,” stated as a percentage of the American cost, is the subsidy rate. The percentage rate, applied to the American cost, determines the amount owing.
Under the contract the Maritime Administration determines the differential but, as was explained in the American Export (supra, 204 Ct. Cl. at 465, 499 F. 2d at 576) and Farrell Lines (supra, 204 Ct. Cl. at 497, 499 F. 2d at 596) cases, the determination is reviewable by this court, because when a ship operator enters into a subsidy contract defendant covenants not to exercise its discretion arbitrarily or capriciously. I believe that its determination therefore cannot stand where it departs from the statutory plan; defendant does not have the discretion to declare items ineligible for subsidy when that would conflict with the formula specified in section 603(b).
*125The American Export and Farrell Lines cases concerned the determination of fair and reasonable costs under the United States flag, i.e., the United States side of the parity formula. This case concerns the foreign cost side of the formula, which entails estimating what the wages and subsistence costs would be if (hypothetically) the Mariposa and Monterey were under the British flag, employing foreign crews as plaintiffs competitor P&O Line’s ships did.
On the affidavits filed herein, I find it is indisputable, first, that if, in determining those constructive British-flag costs, defendant had used a mixed British-Asian rather than an all-British manning, the costs would have been less - and the subsidy rates correspondingly greater - than those determined by defendant. I also find it is indisputable - and was admitted by the staff - that in its calculations defendant assumed all-British manning rather than the mixed crew, even though in the same calculation for American President Lines (APL) it assumed the mixed crew. Further, I find it is again indisputable that plaintiffs foreign competitor, the P&O Line, employed mixed crews and enjoyed the competitive advantage of the lower costs of such manning.
On these facts I find it hardly requires argument that the resulting subsidy determinations by MARAD for the years 1962-68 were in breach of Article 1-4 of plaintiffs contract. That clause required "rates determined in accordance with Section 603(b) of the Act, which rates * * * will place the Operator on a parity basis with his foreign flag competitors.” Plaintiffs rates for said years 1962-68 did not place it on a parity basis with P&O Line because it was left, after subsidy, to bear the higher cost of an all-British crew, while the competitor P&O Line enjoyed the lower costs of mixed crews. It follows that the determination by MARAD was arbitrary and capricious as in derogation of the statutory scheme, the rates so determined must be set aside, and plaintiff is entitled to recover for all the years 1962-68.
I view the departure as an arbitrary and capricious act by the Maritime Administration, not a mere error of judgment on the basis of inadequate or conflicting evidence, nor a fair choice within the reasonable bounds of an *126estimate. As early as the 1961 rates the agency knew that the mixed manning was producing lower costs of both base wages and subsistence for the P&O Line than its all-British manning had done the previous year. Then, or soon after, it knew that eight - and later, all nine - of the P&O Line’s ships had mixed crews, and it knew or could readily compute the magnitude of the penalty it was thus inflicting on plaintiff. By 1970, when it made the discriminatory computation of APL’s rates, it knew the precise effect on the subsidy rate. In choosing not to base plaintiffs foreign costs on mixed manning, it was deliberately departing from the parity that should have been its goal. Its results thus became something other than the "estimated fair and reasonable cost” required by the statute and the contract. The deliberateness of the agency’s departure, as well as the resulting competitive disadvantage at which it put plaintiff, deprives its determination of fairness and reason.
The case thus resembles Pacific Far East Line v. United States, 184 Ct. Cl. 169, 394 F. 2d 990 (1968). Pacific Far East Line’s claim was for recovery of excessive "recapture” exacted by the Maritime Administration; the plaintiff contended and the court held that the Administration had erroneously designated the voyages of which the profits and losses were to be included in the recapture accounting. In making the designation, the agency had shifted retroactively from one criterion to another after discovering that the first criterion produced results financially favorable to the plaintiff. This court held the shift and the resulting recapture determination arbitrary and capricious.
The agency’s error in the Pacific Far East Line case lay in part in changing its designation after the former designation appeared unfavorable; in the case at bar the agency clung to the all-British costs (adopted for 1956, 1957, and 1958 rates when plaintiffs British competitor had been using all-British crews) after circumstances changed and mixed crews became predominant on the British ships. This retroactive adherence to the obsolete standard, like the retroactive shift of standards in the Pacific Far East Line case, was the product of the apparent unwillingness of the agency to allow the contractor the more favorable financial results required by strict adherence to the proper statutory criterion. For that reason, the determination was arbitrary and capricious.
*127The Administration’s rate books explained- (to itself) its not using the wages of a mixed crew on the grounds, first, that it would be "unrealistic to maintain that base wages decreased under this flag,” and, second, that the Board had in November 1961 "directed that the manning may be determined on a man-for-man basis with the U. S. side.” I find these explanations are so spurious as to demonstrate arbitrariness and caprice.
The November 1961 determination had expressly related to the subsidy rate for 1958 only, not any other year. Since the practice was to set rates anew each year, and since in the November 1961 decision the Board had rejected the argument that manning determinations once made should not be changed annually, I believe the staff could not reasonably have believed that the manning determination for the 1958 rate controlled the rates for 1962, 1963, 1964, and 1965. The Subsidy Board’s 1961 decision on the man-for-man issue concerned the number of jobs in the crew and the duties of each, not the nationality or the wage rates of the incumbents in the jobs. In urging man-for-man manning for 1956, 1957, and 1958, plaintiff had raised exclusively the manning issue, not nationality or wage scales. The Board’s decision was confined to the issue raised and therefore did not support the subsequent decision not to recognize the cost savings entailed in the mixed crews.
In asserting that to recognize the resulting decrease in costs would' be "unrealistic,” plaintiff argues the staff used the word in a sense opposite to its ordinary meaning. I think it was unrealistic to persist in using the previous year’s costs reflecting the wages of all-British crews, which were no longer being employed in reality. I agree with plaintiff that such a misuse of language is a badge of arbitrariness.
The invalidity of using the cost of an all-British crew is underscored by the Board’s discriminatory treatment of APL’s subsidy rates. APL’s rates, based upon the same P&O Line ships as plaintiffs, reflected the P&O Line’s mixed crews. The resulting discrimination against plaintiff is obvious.
In American President Lines, Ltd. v. United States, 154 Ct. Cl. 695, 291 F. 2d 931 (1961), the court set aside a *128determination of the Maritime Administration to apply "General Order 71,” a rule defining "capital” for purposes of the recapture determination, to the plaintiff APL and not to other subsidy contractors similarly situated. The Board had made the new rule applicable to eight contractors from the beginning of their then current recapture periods; for the plaintiff APL (and one other contractor, The Oceanic Steamship Company, plaintiff in the case at bar), the Board had made the rule applicable to a part of the last previous recapture period as well as the current period. This court held this "illegally discriminatory” (Id., 154 Ct. Cl. at 703, 705, 291 F. 2d at 935, 936) and set the discriminatory application aside, allowing APL to recover the resulting excess recapture (i.e., underpaid subsidy). The ground of the decision was that APL had been treated differently from the other eight operators. In view of the discrimination the court felt no need to consider whether General Order 71 was lawful or correct; discrimination alone invalidated the Maritime Administration’s determinations applying the rule. Oceanic recovered on the authority of the APL case. Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217 (1964).
It seems the American President Lines case forecloses any argument that defendant’s decision in the case at bar to assume the all-British crew in making plaintiffs rates can be justified as within its discretion to make fair and reasonable estimates. As in that case, regardless of the merits of the rates based on an all-British crew, the Administration did not have discretion to discriminate between plaintiff and APL since both were similarly situated - indeed, both were competing against the same British ships, which had mixed crews. The resulting "action with regard to the plaintiff was illegally discriminatory” (Id., 154 Ct. Cl. at 703, 291 F. 2d at 935).
Since the Administration’s determination for the years 1962-68 was not a "fair and reasonable” estimate and since the resulting rates did not place plaintiff on a "parity basis” as required by the contract and the statute, as I view it, the determination cannot stand; and it may be unnecessary to add that the same result should also be reached on procedural grounds. But for completeness I wish to add that in Moore-McCormack Lines, Inc. v. United *129States, 188 Ct. Cl. 644, 413 F. 2d 568 (1969), this court set aside at the instance of plaintiff subsidy contractors, the Maritime Administration’s foreign cost determination under the construction-differential subsidy provisions of the Merchant Marine Act, 1936. The construction-differential subsidy is the excess of the cost of building a ship in an American shipyard over the "fair and reasonable estimate of cost” of building the same ship in a foreign shipyard, where owners could build competitive ships at lower cost. 46 U.S.C. § 1152(b) (1970).
This court held the Administration’s determination procedurally defective because the agency had not granted the plaintiffs’ requests to know the agency’s position, studies, and estimates on the facts affecting the foreign cost. As in the case at bar, the Administration failed to provide breakdowns of back-up data, asserting that these were "confidential.” The court explained that the statutory requirement of a "fair and reasonable” estimate of foreign costs means procedural as well as substantive fairness. Moore-McCormack Lines, Inc., supra, 188 Ct. Cl. at 671, 413 F. 2d at 584. "Procedural fairness,” it went on, "required that plaintiffs be informed of the staff position on disputed issues, and have the opportunity to respond to those contentions * * *” (Id.); plaintiffs’ right to know the staffs case was a fundamental element of procedural fairness, lacking which the resulting determination was "so defective as to constitute a gross abuse of discretion” (Id., 188 Ct. Cl. at 675, 413 F. 2d at 587) invalidating the determination of the subsidy rate. The obligation of disclosure, the court pointed out, could not be escaped by calling the information "confidential”; means exist to disclose the facts without revealing confidential sources from which the facts were procured (Id., 188 Ct. Cl. at 674, 413 F. 2d at 586).
I agree with plaintiff that the same abuse occurred in the case at bar; the Maritime Administration did not fully and candidly inform plaintiff of its position, give plaintiff the opportunity to respond, or place before plaintiff the facts on which the agency made the foreign-cost determination. Plaintiff was not told that the staff had found that the P&O Line’s wage and subsistence rates had declined with the advent of mixed crews, that the crews were mixed on all P&O Line ships, nor that APL had requested and been *130granted the right to have its rates based on the costs of a mixed crew. The staff, moreover, never informed plaintiff that it had decided to adhere to the "man-for-man” concept adopted three or more years previously before a crucial change in circumstances, nor that "man-for-man” meant all-British in the staffs mind. The agency did not place its work papers before plaintiff and did not fully disclose the details of its calculations - not even the assumed manning scale by job or the costs by the recognized elements that the Administration itself had agreed with the Committee of American Steamship Lines (CASL) should be provided with every offer of a subsidy rate; the staff asserted, in contravention of the teaching of the Moore-McCormack case, that these elements were "confidential.”
Had plaintiff been informed of these matters it would have been in a position to make an informed judgment whether to accept the proffered rates or to argue intelligently for their revision. Under the admitted facts of this case, the agency’s non-disclosure was practically identical in content with that in the Moore-McCormack case; and for the reasons cogently and authoritatively stated, I think there the resulting procedures were so defective as to constitute a gross abuse of discretion, invalidating the rate determinations.
Information as to the foreign competitor’s actual costs is needed to construct a "foreign cost” for the contractor’s American ships. The Maritime Administration employed agents ("Foreign Maritime Representatives”) abroad to gather information as to the foreign shipowners’ costs, sometimes with their cooperation, sometimes without. The mode of collecting information on foreign costs and satisfying contractors of the correctness of the Administration’s subsidy rate calculations was the subject of discussion between the Maritime Administration and the subsidized shipping lines through CASL. One 'such dialogue culminated in a letter dated January 28, 1963, from CASL to the Maritime Administration in which the contractors agreed to make their own costs available to foreign carriers (as a sort of quid pro quo) provided "that Marad furnish to CASL data from the foreign competitors * * *” and that "CASL would be free to query Marad as to details of the foreign data which would clearly not be considered *131confidential, and Marad would attempt to obtain such details and furnish them to CASL.” Further, "CASL Lines agreed not to go directly to the foreign source to verify the information but to work through Marad.” Plaintiff belonged to CASL and honored its agreement as a member of CASL not to go directly to foreign sources but to obtain the necessary foreign information from MARAD.1
It is undisputed that plaintiff was never able to ascertain the Maritime Administration’s information as to the P&O Line’s costs, the assumptions controlling the staffs deter*132mination of the costs for the Mariposa and Monterey under British flag, or the staffs reasoning; that the Maritime Administration did not provide the cost breakdowns contemplated by its agreement with CASL or the back-up data contained in its work papers; and that plaintiff was not informed (until after its own rates were set) of the favoritism shown APL. Plaintiff therefore could never ascertain the extent to which, if at all, the cost of the mixed *133crews was reflected in the Administration’s determinations.
In these circumstances, the Moore-McCormack case shows, it is not a defense, nor does it sustain the Administration’s determination, that plaintiff might have suspected the omission of the mixed crews or have been able "to make a blind presentation, screened off from the staffs arguments” (Id., 188 Ct. Cl. at 671, 413 F. 2d at 585). As the court said,
Plaintiffs’ was not a situation in which the relevant factors were already known to all parties. The foreign cost computations were complex and abstruse, with a very large number of variables and nuances. The owner could not evaluate with any accuracy all the matters which the staff would consider of importance, much less anticipate or define the sources from which staff members would draw information (the Board has consistently maintained the secrecy of its sources). * * * [Id., 188 Ct. Cl. at 672-73, 413 F. 2d at 585.] Since "[t]he right to be told your adversary’s case is fundamental to a determination of this kind” (Id., 188 Ct. Cl. at 671-72, 413 F. 2d at 585), the defective determinations in the case at bar could not be cured by showing that plaintiff might have gathered its own information as to the P&O Line’s costs and made its own "blind presentation.”
The majority’s denial of the 1962-65 raise in rates seems to be based solely on plaintiffs uninformed and mistaken acceptance of the invalid determinations. In 1975, after plaintiff discovered that the rates it had accepted were erroneous, the Board refused plaintiffs request to redetermine them; the Board’s ground was that plaintiff had accepted without reservation the addenda containing the incorrect rates. The Board did not express the reasoning by which it considered the acceptance to bar reopening the rates, but its assertion implies a theory such as acquiescence, waiver, release, or accord. No such defense is tenable.2 The addenda were not negotiated releases of *135plaintiffs right to parity rates, nor voluntary relinquish-ments of plaintiffs rights. They contain no words of waiver, release, discharge, or satisfaction. In accepting the addenda, plaintiff mistakenly but necessarily assumed that they reflected defendant’s fair and reasonable estimate of parity rates, based on the best available information as to costs of the foreign ships with which plaintiff was competing - that the Administration had no reliable evidence that the costs were lower. Plaintiff, it seems, acted without knowledge whether the calculations did or did not reflect mixed manning, nor to what extent the cost was thereby affected. Nor did it know what support might exist for reflecting (or disregarding) the mixed manning. It was unaware of the studies and survey by which the Administration had ascertained that the P&O Line employed mixed crews on all ships and had ascertained that recognition of this in the rate calculation would have reduced the resulting base wage costs and subsistence. Plaintiff did not know the Administration had deliberately decided to disregard the mixed manning, and did not know the grounds - viz., the so-called "unrealistic” results of the mixed manning and the Board’s approval of man-for-man manning for the 1958 rate - on which the agency had made this decision. Plaintiff did not know that the Administration would give (and later, had given) APL the benefit of the mixed manning, with a resulting subsidy rate far more favorable than those accepted by plaintiff before and after.
As a result of its ignorance, plaintiff was never in a position to make an informed judgment that the rates it accepted were substantially lower than they should have been, nor by how much. Plaintiffs mistake was caused by the Maritime Administration’s conduct. Plaintiff necessarily had to rest its trust and confidence in the Administration’s calculations. The Administration had the continuing duty - and the exclusive right - under the 20-year contract of making annual determinations of the foreign costs. It had superior sources of information in its foreign maritime representatives. It had the contractors’ undertaking not to verify foreign costs without consulting it. It had information that it described to plaintiff as "confidential.” It had agreed (by its letter agreement with CASL) to disclose its computations. And it had a duty, as the Moore-McCormack *136case held, to make its data and assumptions known to plaintiff. Yet it withheld its work papers and the details of its computations; did not inform plaintiff of the studies and information available, of the deliberate choice to disregard the P&O Line’s mixed crews, of the reasons for that choice, or of the contrary choice in APL’s case.
Although the Administration accompanied its request for plaintiffs acceptance of the addenda with statements purporting to show its determination of the manning and costs, these statements were misleading, for they indicated numbers of crew without disclosing the jobs or the nationality of the incumbents and stated the monthly costs without disclosing that the components of the cost included the wage rates of British seamen not those of Asians. In fact, the figures were not bona fide estimates of parity because they deliberately chose to disregard the true costs of the foreign competitor. Moreover, MARAD’s explanation was that elements of the calculation could not be revealed or discussed because they were "confidential.” It implied that disclosure would have revealed confidential sources, impairing their future usefulness. In fact, the omitted facts could have been supplied without revealing their sources, and the same details were later thoroughly discussed between the Administration and APL. As the Moore-McCormack case squarely held, such claims of confidence cannot lawfully be maintained.
Under settled doctrines of contract law concerning mistake and misrepresentation, defendant cannot keep the benefits of plaintiffs acceptance of the subsidy rates. The acceptance was due to a mistake as to basic factual assumptions controlling the computation of the rate, and that mistake was induced by the defendant’s concealment and misrepresentations, plaintiff having reposed trust and confidence in the integrity of defendant’s determinations. Defendant in no way altered its position in reliance on the acceptance. To allow defendant thus to unjustly enrich itself would be contrary to the most elementary principles of equity and good conscience — principles that the court applies in all cases within its jurisdiction. Cf., e.g., United States v. Atlantic Dredging Co., 253 U. S. 1 (1920); Christie v. United States, 237 U. S. 234 (1915); United Fruit Co. v. United States, 186 F. 2d 890, 896 (1st Cir. 1951); see Smith *137v. Richards 38 U. S. (13 Pet.) 26 (1839); Pacific Architects & Engineers, Inc. v. United States, 203 Ct. Cl. 499, 513, 491 F. 2d 734, 742 (1974); Graham v. Atchison, T. & S.F. Ry., 176 F. 2d 819, 824 (9th Cir. 1949); Restatement, Restitution §§ 18, 28 (1937).
Mistake and misrepresentation aside, plaintiffs acceptance of the addenda does not bar its claim because to sustain the addenda would result in rates not creating a parity of cost 'between plaintiff and its competitor, in conflict with the public interest in enforcement of the Merchant Marine Act. The Act prescribed a formula that would enable plaintiff to get its crews at the same cost as its foreign competitor, the P&O Line. Article 1-4 of the contract repeated the formula and added for emphasis, "rates determined in accordance with section 603(b) of the Act, which rates * * * will place the operator on a parity basis with his foreign flag competitors.” The private right thus conferred was granted in the public interest to effectuate the legislative policy "to provide shipping service on all routes essential for maintaining the flow of * * * domestic and foreign water-borne commerce at all times * * *.” Merchant Marine Act, 1936, § 101, 46 U.S.C. § 1101 (1964), as amended, 46 U.S.C. § 1101 (1970). Subsidies at parity rates were intended to enable shipowners such as plaintiff to meet their contractual obligation to stay in business for 20 years, in the face of lower-cost foreign competition. Plaintiff argues that if the court countenances departures by the Maritime Administration from that requirement merely because of the contractor’s acquiescence, it may jeopardize the public interest in the statutory policy.
* * * Where a private right is granted in the public interest to effectuate legislative policy, waiver of a right so charged or colored with a public interest will not be allowed where it would thwart the legislative policy which it was designed to effectuate. * * * [Brooklyn Savings Bank v. O’Neil, 324 U. S. 697, 704 (1945); cf. Garrett v. Moore-McCormack Co., 317 U. S. 239 (1942).]
The majority virtually disregards this line of important cases so pertinent in this area of public interest legislation, although plaintiff specifically presented the issue citing Supreme Court cases as well as many decisions of this *138court. This court has applied that principle to claims for operating-differential subsidies and other claims under the Merchant Marine Act and related statutes, by holding that defenses such as waiver, estoppel, release, and acquiescence are unavailable to the Maritime Administration to sustain computations contrary to the applicable statutory formulas.
Thus, under the Merchant Ship Sales Act of 1946 the court held that shipowners who had purchased ships upon agreements with the Maritime Administration for prices determined in a way different from that specified in the statute could recover the difference in price and neither their agreement, acquiescence, estoppel, waiver, absence of protest, voluntary payment, nor mistaken failure to recognize their rights could bar them. A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 U. S. 834 (1954); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958); Sprague S.S. Co. v. United States, 145 Ct. Cl. 642, 172 F. Supp. 674 (1959); New York & Cuba Mail S.S. Co. v. United States, 145 Ct. Cl. 652, 172 F. Supp. 684 (1959); Moore-McCormack Lines, Inc. v. United States, 153 Ct. Cl. 213, 288 F. 2d 898 (1961). In the Nautilus case the court explained its reasoning (Id., 141 Ct. Cl. at 394-95, 158 F. Supp. at 354-355):
The Merchant Ship Sales Act of 1946, supra, was an attempt on the part of Congress to provide for the sale of the Government’s large accumulation of surplus ships at prices which could be calculated on the basis of a statutory formula. It was intended to relieve the Maritime Commission of the responsibility of haggling over prices, and of the criticism, embarrassment and possible scandal which might result if sales were individually negotiated. If that policy was to be carried out, the terms of the statute had to be adhered to, even though litigation might be necessary to determine the proper construction of a rather complex statute. That did not leave any room for individual bargaining for terms contrary to the statute, nor much room for the application of such doctrines as estoppel and acquiescence. We have so held in prior decisions. See A. H. Bull Steamship Co. v. United States, 123 C. Cls. 520; Southeastern Oil Florida, Inc. v. United States, supra. We have regarded *139the formula set by the statute as comparable to a tariff setting public utility rates. One does not irrevocably subject himself to an improper charge by estoppel or acquiescence or mistake or ignorance of law or failure to protest. * * *
In the Sprague case, where the plaintiff had accepted the Maritime Administration’s computation, the court held (Id., 145 Ct. Cl. at 646-47, 172 F. Supp. at 676):
* * * As our former decisions have shown, we find in the Ship Sales Act a Congressional purpose that the Government’s surplus ships should be sold at prices, uniform for all purchasers, and ascertainable by mathematical application of the statutory formula, properly interpreted. We do not think that Congress was willing that that purpose should be frustrated, and different prices should be charged to different purchasers, because of different degrees of knowledge, in the purchasers, of facts or law. We think that Congressional purpose was strong enough to override any general legal doctrine, applicable in other situations, but which, if applied in the instant situation, would result in different persons paying different prices, because, though the ships were the same, the states of mind of the purchasers were different.
In American President Lines, Ltd., supra, the same reasoning was extended to the determination of operating-differential subsidy. That case, discussed above, concerned the determination of "recapture” by the Maritime Administration under APL’s operating-differential subsidy contract. APL had agreed to be bound by the Board’s retroactive determination, and defendant contended that APL’s agreement barred its claim that the determination was unjustly discriminatory. This court held (Id., 154 Ct. Cl. at 705, 291 F. 2d at 936):
* * * The administration of a statute cannot be carried on like horse-trading or haggling in a market place for private trading. What one can be induced to agree to, after he has become deeply involved with the Government by several years of action based upon reasonable assumptions, cannot impair his right under the statute to non-discriminatory treatment * * *.
* * * * *
* * * We have held that one who has a right under a statute, or under a legal doctrine implicit in a statute, *140does not effectively surrender that right by making a contract about it. A. H. Bull Steamship Company v. United States, 123 Ct. Cl. 520 (1952), and Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409 (1953). Other cases in this court applying comparably relevant principles are Clapp v. United States, 127 Ct. Cl. 505 (1954), and Suwannee S.S. Corp. v. United States, 150 Ct. Cl. 331 (1960).
This court quoted this statement and cited the Ship Sales Act cases with approval in American Export Isbrandtsen Lines, Inc. v. United States, supra, 204 Ct. Cl. at 468, 499 F. 2d at 578. They are in point here. Congress granted subsidies in the public interest to effectuate the legislative policy of maintaining a privately owned American flag fleet on the oceans, in competition with foreign ships whose operating costs are less. The majority admits this in its factual statement of the case. The private right so granted is a right to reimbursement of the excess costs on a basis that enables competition at parity, so that the plaintiff is to bear only the same cost as its foreign competitor. This right to parity may not be waived, because that would tend to thwart the legislative policy it was designed to effectuate. I do not agree with the majority in dismissing this basic argument of plaintiff that the right to parity may not be waived without even discussing the many cases of this court and the Supreme Court on this subject. Plaintiff specifically raised this point; the majority should have answered it. The cited cases in this dissent are material and the right to parity in issue herein is just as much a "public interest” matter as the subjects covered by the cases cited herein.
Before leaving the subject of acquiescence or waiver of right to parity, the majority opinion engages in reasoning with which I disagree. I am critical of the majority’s interpretation of plaintiff’s reservations in plaintiffs acceptances of the addenda proposed for the years 1962-65. The majority relies on the wording of plaintiffs letter acceptances of MARAD’s rates on the following dates:
Year Date of Acceptance
1962 March 2, 1965
*1411963 September 16, 1965
1964 October 5, 1965
Part IV of the majority opinion paraphrases the following paragraph from plaintiffs 1962 rate acceptance letter of March 2, 1965:
Our acceptance of the 1962 passenger vessels wage and subsistence rates is without prejudice to, or waiver of, our rights to protest the application of Circular Letter No. 3-64 (revision of the manual for determining operating-differential subsidy rates — pricing out of vacation expense and social security taxes) in the calculation of United States costs or our 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. [Plaintiffs Exhibit 7.]
Similar clauses were in the 1963 and 1964 rate letters of acceptance by plaintiff, dated September 16, 1965, and October 5, 1965 [Plaintiffs Exhibits 10 and 12]. The majority singles out the word "subsequent” and argues by negative implication (i.e., since plaintiff specifically reserved rights as to subsequent years he must have intended to waive such rights for the current year) that that evinces "an unequivocal intent to let the agreements be final for the years to which rates were agreed.” It must be remembered that the facts with relation to these three letters are extraordinary in that all three letters were signed by plaintiff in a single year, 1965, as above shown, although they related to three separate years, 1962, 1963, and 1964. The majority’s current and subsequent analysis under the extraordinary circumstances only leads to confusion. I am of the opinion that the letters do not support the majority’s conclusion that plaintiff unequivocally approved the 1962, 1963, and 1964 rates without reserving its right to contest the applicable foreign cost data for the years 1962, 1963, and 1964. Furthermore, even if the majority’s interpretations have substance, I agree with plaintiff that these parity rights are not subject to waiver, acquiescence, release, or accord, a position well presented by plaintiff in its brief and well supported by decisions of this court.
I object even more strenously, however, when the majority, by some nuance of logic or evidence of which I am *142unaware, extends the plaintiffs supposed "unequivocal approval” of the rates to 1965. There are no grounds for the negative inference in part IV of the majority opinion as to 1965 because plaintiffs letter of acceptance for 1965 contained no reservation clause like that in the letters for 1962, 1963, and 1964. [Plaintiffs Exhibit 19.]3
The majority opinion holds that for the years 1962, 1963, and 1964 plaintiffs claims were barred by the six-year statute of limitations. I will now consider this statute-of-limitations defense raised by defendant and allowed by the majority for the years above indicated.
Plaintiff first contends that plaintiffs claims for 1962-65 first accrued when its final accounting for those years was filed within six years of the petition. The question of when a claim for operating-differential subsidy first accrues within the meaning of the statute of limitations was fully discussed in Oceanic S.S. Co. v. United States, supra (hereafter Oceanic I). That was an action by Oceanic to recover unpaid operating-differential subsidy for 1947, the Maritime Administration having reduced the subsidy payable on account of "recapture” resulting from the application of "General Order 71” to the determination of subsidy for 1947. The court held that the recapture was excessive because the agency had discriminated against Oceanic in favor of other subsidy contractors in applying General Order 71 to 1947, hence Oceanic was entitled to recover. Defendant invoked the Statute of Limitations but the court rejected the defense. The court applied the settled rule that a claim first accrues on the date when all events have occurred which fix the liability of the government, examined the plaintiffs operating-differential subsidy agreement, and found that Article 11-24, providing for annual accounting and payment, was the governing contractual provision. Under that provision, the court held,
* * * the operating-differential subsidy for a particular calendar year became due and payable only after a "final accounting” for the year had been accomplished between the plaintiff and the administrative agency, and * * * such an accounting involved not only the computation of *143the amount of the subsidy due the plaintiff from the Government for the year * * * 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. * * * [M., 165 Ct. Cl. at 226.]
"Final accounting” in the context of the agreement, the court also held, meant a final accounting after all operating-differential rates for the year had been determined (Id. at 230). It rejected the government’s argument that an accounting called a "final accounting” but antedating the last determination of a subsidy rate was the final accounting contemplated by Article 11-24. The plaintiff having filed a revised annual accounting (after the determination of the last subsidy rate for year 1947) within six years of the petition, the action was held timely.
That prior Oceanic I case is in point here. I cannot agree with the majority’s interpretation of the prior Oceanic I case.4 The square holding in Oceanic I was that the action *144was timely because a revised accounting, considered "final,” for the year in question (there 1947) was filed within six years of the petition. In the case at bar the petition was filed July 15, 1975; plaintiffs first accounting for 1965 was filed June 23, 1970, less than six years before the action; and a revised accounting for 1965 was filed even more recently, namely, May 24, 1971. Therefore it is my view that for year 1965 there can be no argument that the action is not timely.5
For 1962, 1963, and 1964, although annual accountings were first filed June 15, 1966, each of these accountings was revised twice, and the second such revised accountings were all filed May 24, 1971, and approved December 6, 1971. Both filing and approval of the second revised accountings occurred within the six-year period. These were the "final” accountings for 1962, 1963, and 1964: they were final in both the sense of "last” and the sense that they alone included all necessary adjustments. Under the formulation in the Oceanic I case, indicating that a revised accounting was the relevant final accounting for accrual of claims within the meaning of the statute of limitations, my *145view is that the statute did not begin to run in the case at bar until plaintiffs revised accountings in 1971.
Even if, however, claims for unpaid subsidy for 1962, 1963, and 1964 accrued upon the filing of the first (unrevised) accountings for those years, nevertheless under plaintiffs contract new claims first accrued with respect to 1962, 1963, and 1964 (as well as 1965) no earlier than June 23, 1970, when plaintiffs first (unrevised) final accounting for 1965 was filed. As stated, that was within the six years.
The accounting of June 23, 1970, was the first accounting covering the entire ten-year recapture period beginning January 1, 1956, and ending December 31, 1965. Oceanic I held that until the end of the recapture period the amount of subsidy due plaintiff for that period was not fixed, because each amount apparently due theretofore was subject to adjustment on account of cumulative changes in the excess profits that might be earned over the recapture period.6 Since recapture was based on cumulative profitability over the ten-year period, the amount of recapture allocated to any year in the final accounting for the year was subject to change on account of the financial results of subsequent years within the recapture period. A decline in profits in subsequent years might increase the amount of subsidy payable for prior years.7
In recognition of this, Article 11-24 of the contract, which the court held in the prior Oceanic I case is controlling on when claims for unpaid subsidy accrue, provided for cumulative accounting covering the whole recapture period rather than discrete accounting for individual years:
11-24. Final Accounting and Adjustments. There shall be a final accounting hereunder between the Operator and the United States as soon as practicable after the end of each calendar year * * *.
(a) If, at the time of such final accounting, there remains unpaid subsidy accrued hereunder with respect *146to operations during the then current recapture period in excess of any amount of the recapture accrual required by law to be withheld by the United States, the United States shall then pay the amount of such excess to the Operator.
Under this provision, under Oceanic I final accountings were to be filed as soon as practicable after the end of each calendar year, and subsidy became payable at the time of such accounting. But also - and this is critical - the amount of subsidy payable upon each annual accounting was the "unpaid subsidy accrued hereunder with respect to operations during the then current recapture period * * *.” This means that upon each annual accounting a new claim accrued for accumulated subsidy for all voyages between January 1, 1956, and the end of the period accounted for. Upon the final accountings for each year (1962, 1963, 1964, and 1965), new claims accrued for unpaid subsidy on voyages from January 1, 1956, through the end of 1962, 1963, 1964, and 1965, respectively.8 This cumulative process continued until the final balance became determined by the last accounting for the recapture period.9
Thus even if plaintiff could have brought an action for additional subsidy (including subsidy attributable to correction of its rates to reflect the cost of mixed crews) for 1962, 1963, and 1964 on the filing (in 1966) of the first annual accountings for those years, nevertheless plaintiff could also have brought a new action for the same years on the filing of the annual accounting for each subsequent year. That is, for example, for subsidy in respect of 1962 voyages and subsidy rates, actions 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. Therefore I agree with plaintiff that only with the termination of the recapture period did the accumulated *147subsidy 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. Since that accrual was within six years, the action is timely.10
Plaintiff next claims that the six-year statute of limitations is not applicable to its claims because the unlawful discrimination against plaintiff occurred within six years of the petition.
Plaintiffs claim rests on both defendant’s breach of its agreement to determine subsidy rates that would place plaintiff on a parity basis with its foreign competitors and also defendant’s discriminatory application of the subsidy formula as between plaintiff and APL. In its latter aspect plaintiff claims that the claim involves additional acts by defendant - not merely the determination of plaintiffs rates without allowance for the mixed crews, but also the separate determination of APL’s rates reducing the foreign costs on account of the mixed crews.
I am of the opinion that these new acts gave rise to an independent ground of recovery, based on section 603(b) of the statute, on the authority of American President Lines, Ltd. v. United States, supra. That claim did not accrue and could not have accrued until defendant did its discriminatory acts. They occurred when, having already determined plaintiffs rates without reference to the costs of the mixed crews, defendant recognized those costs in determining APL’s rates. APL’s rates were determined on January 7, 1971, with the execution of addendum 162 incorporating those rates in APL’s contract.11 That was the last event fixing liability and it occurred within six years of the petition.12
*148This argument was submitted in plaintiffs brief in this case. The majority opinion does not answer it in any way. I am in agreement with plaintiff in its interpretation of American President Lines, Ltd. v. United States, supra, and its application to the statute-of-limitations problem herein.
Plaintiff finally argues that the six-year statute of limitations was suspended owing to defendant’s concealment of its unlawful acts.
As the court recognized in Japanese War Notes Claimants Ass’n v. United States, 178 Ct. Cl. 630, 634, 373 F. 2d 356, 358-59, cert. denied, 389 U. S. 971 (1967), and held again in Spevack v. United States, 182 Ct. Cl. 884, 390 F. 2d 977 (1968), the running of the statute of limitations is suspended when, even though an accrual date has been ascertained, defendant has concealed its acts with the result that plaintiff was unaware of their existence. See, e.g., Bailey v. Glover, 88 U. S. (21 Wall.) 342 (1874); Holmberg v. Armbrecht, 327 U. S. 392, 397 (1946); Tomera v. Galt, 511 F. 2d 504, 510 (7th Cir. 1975). In the case at bar, it appears those conditions occurred. Defendant concealed the acts giving rise to plaintiffs claim so that plaintiff was unaware of their existence.
As plaintiffs affidavits show, it did not know the true costs of the P&O Line’s ships and did not know of defendant’s suppression of the cost of their mixed crews - hence had no inkling of its claim for additional subsidy - until January 1973. Defendant has not chosen to contradict these affidavits. At that time the Maritime Administration proffered a rate for 1969 accompanied (unlike all previous years’ rates) by a clear indication of the nationality of the crews on which the foreign cost was based; that rate reflected the mixed crew and was drastically higher than previous rates. That information caused plaintiff to inquire as to the basis of the previous years’s rates; its inquiries led in 1974 to the first firm knowledge of the existence of its claims.
From the records before us, especially the uncontradicted affidavits, plaintiff thus had no knowledge of its claim until well within the six-year period of limitations. From what appears in the record of the merits of the claim, it is apparent that its unawareness was due to defendant’s concealment of its acts. One need not catalogue in full the *149acts of concealment in which defendant engaged, because these are enumerated above, in earlier pages of this dissent. I find the same acts that should have avoided the rate addenda by reason of mistake, misrepresentation, and concealment also constituted concealment tolling the statute.
Recapitulating, I find that, among other things, defendant concealed the assumptions on which its calculations were based. MARAD kept from plaintiff studies that had informed defendant that all of the P&O Line’s ships but one were manned by mixed crews, that the wages of these British ships declined between the 1960 and the 1961 rates owing to the mixing of their crews, and that the subsistence rates of the mixed crews were lower than those of the all-British crews. MARAD also withheld the information that the staff had decided not to reflect these lower costs in its determination for 1961 and subsequent years, that the staff had decided to use all-British costs and 1960 base wages for 1961 rates as more "realistic,” and that it relied for support upon the Maritime Subsidy Board’s determination respecting man-for-man manning in the 1958 rates. Defendant concealed the elements of its computations, substituting the note ”Confidential” for subtotals that it had agreed to provide; the absence of these subtotals hampered plaintiff’s efforts to deduce the basis of defendant’s rate determinations. Defendant met plaintiff’s inquiries for details of its calculations by the response that this information was unavailable because confidential.
All these acts of defendant were acts of concealment, as well as being the very acts that made defendant’s rate determinations arbitrary and capricious, and hence actionable. Without this information plaintiff had no basis for asserting its claim for revision of the rates; it had no way of knowing that the rates were based on something other than a fair and reasonable estimate of the P&O Line’s costs - no way of knowing, in short, that it had been injured. Without this knowledge it had no reason to consider bringing an action. Under the settled rule the statute was therefore suspended until at least 1973 when plaintiff was first placed on inquiry as to the existence of its injury.
*150For the reasons above stated, I believe plaintiff should be allowed its claims for all the years 1962, 1963, 1964, 1965, 1966, 1967, and 1968.
In the early part of the majority opinion it is observed:
"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.” [Emphasis supplied.]
Perhaps there should have been a preliminary trial before a trial judge but once it is decided that the summary judgment route is proper, then the above observation of cloudy facts does not permit a disregard of uncontradicted material facts or exhibits presented by the parties. It is mandatory that all relevant and material exhibits attached or submitted with motions for summary judgment be fully considered. Not only is it mandatory that all relevant material and exhibits be considered, but for purposes of ruling on a motion for summary judgment any factual question must be viewed in the light most favorable to the party against which judgment is being granted. Sec 6 Moore’s Federal Practice || 56.15[3] (2d ed.) and cases cited therein. Because of the large number of exhibits submitted by plaintiff, the majority may have overlooked CASL-related exhibits 48, 49, and 50.1 consider these three exhibits submitted by plaintiff crucial to this case. These three exhibits represent more than an informal agreement between MARAD and CASL. It was a modification, addressed to all subsidized operators, of the following clause in the MARAD Manual of General Procedures for Determining Operating-Differential Subsidy Rates, Preface and General Provisions (page iii), which provides:
"The subsidized operator shall make every reasonable effort to obtain and submit to the Board-Administration foreign cost data useful for calculating operating-differential subsidy rates. Where an operator finds that the collection and submission of such data can be more efficiently and economically performed by group representation (such as the Labor-Management Maritime Committee) it may do so.”
The modification made is stated in plaintiffs exhibit 48, Circular Letter No. 4-62, dated April 4, 1962, from MARAD to all subsidized operators:
"* * * In this connection, you should continue to observe the present policy of not making a request for information from foreign flag operators whose home offices are within the area of one of our Foreign Maritime Representatives, unless such requests are closely coordinated with the Foreign Maritime Representative. Strict adherence to this policy must be observed in order not to jeopardize the existing relationships between the Foreign Maritime Representative and the foreign flag operators within his area of responsibility. [Emphasis supplied.]
Exhibit 49 is a letter dated January 28, 1963, from CASL to MARAD, agreeing to the modification:
*132"At the January CASL Meeting, Member Lines agreed to authorize the Maritime Administration’s furnishing certain U. S. cost data to foreign competitors or associations, as outlined in the form prepared by you, copy of which is enclosed.
"CASL’s authorization is given under the following terms and conditions:
"(1) That MARAD furnish to CASL data from the foreign competitors or associations comparable to that given to the foreign competitors or associations, subject to the condition that U. S. costs would not be supplied unless requested by the foreign competitors or associations.
"(2) MARAD would advise the foreign competitors or associations that such data would be given to the U. S. operator through CASL.
"(3) CASL Lines agree not to go directly to the foreign source to verify the information but to work through MARAD. [Emphasis supplied.]
"(4) Under the arrangement described in No. 3, CASL would be free to query MARAD as to details of the foreign data which would clearly not be considered confidential, and MARAD would attempt to obtain such details and furnish them to CASL. [Emphasis supplied.]
"(5) CASL’s authorization for the release of the information would not be irrevocable, but could, at some later date, be withdrawn.”
Exhibit 50 (page 1) is another circular letter, dated June 13,1963, from MARAD to all subsidized operators, stressing the importance of the modification:
"Subject: Circular Letter No. 4-62 dated April 4, 1962
"Your attention is invited to the subject Circular Letter in which this office requested that the obtaining of any foreign cost information by subsidized operators’ representatives in foreign countries should be closely coordinated with our Foreign Maritime Representative.
"It has come to our attention that some subsidized operators’ representatives has [sic] not been advised of the provisions of this Circular Letter.”
Exhibit 50 (page 2) is Revised Circular Letter No. 4-62, dated September 26, 1963, again requesting subsidized operators to follow the modification strictly:
"Your earnest efforts in meeting these responsibilities are to the best interest both of the Government and of yourselves. In this connection, you should continue to observe the present policy of closely coordinating with the Foreign Maritime Representatives all requests for information from foreign flag operators whose home offices are within their respective areas. This policy should be strictly observed in order not to jeopardize the existing relationships between the Foreign Maritime Representative and the foreign flag operators within his area of responsibility.’' [Emphasis supplied.]
I quote from these CASL-related exhibits in detail because these exhibits clearly show MARAD in 1962 decided that MARAD should get the foreign cost information and not the subsidized lines. Plaintiff and other CASL members were kept in the dark and affirmatively ordered not to seek the foreign information. I cannot think of a more arbitrary order. It virtually amounted to a blindfold on CASL members. Plaintiff was a CASL member. MARAD openly admits this arrangement with CASL members. It warned CASL members to follow this blinding rule.
As stated in the early part of this dissenting and concurring opinion, I am of the opinion that plaintiffs claim for higher rates for all the years 1962,1963,1964,1965, 1966,1967, and 1968 should have been allowed for the reasons stated in this dissent. It is my view that the problem of lack of knowledge of foreign rates was a single continuing problem and it should not have been segmented as the majority did. The majority simply ignored some of the major issues raised by the plaintiff in its attempt to simplify the case by presenting only segments of the entire problem caused by the lack of knowledge of foreign costs. The majority, in allowing higher *134rates for 1966-68, in a brief discussion in part IV(B) of its opinion (consisting of only five paragraphs), but denying the higher rates for 1962-65 in part IV(A) of its opinion (eight paragraphs), divides the years involved into two groups as if two separate problems were involved. This division with contrary results created a strange situation and caused the majority to comment self-consciously that there is no anomaly in the contrary results after such a division.
I am of the opinion that an inexplicable anomaly was created. The majority cannot completely explain the anomaly because both periods 1966-68 and 1962-65 were based on the actions of the same Subsidy Board under the same statute, same contract, same CASL blindfolding agreement, same fiduciary and confidential relationship, same excuses of the Board of confidential information, same denial to plaintiff of any information MARAD had, same nondisclosure of staffs case, same denial of right to know as adjudged in the Moore-McCormack case, same public interest right in plaintiffs favor which cannot be waived or lost by acquiescence, same sticking by the Board to the man-for-man concept, and other circumstances more fully explained in this dissenting and concurring opinion. These circumstances and conditions made it difficult for the majority to single out any particular year or series of years. For example, defendant does not dispute the existence of confidential or fiduciary relationships. The subsidy contracts and statute gave MARAD the power and means to take undue advantage and influence over the subsidized shipowners during all the years 1962 to 1968. On questions of misrepresentation by nondisclosure, this relationship once established is of great importance. The majority found on the basis of this relationship a "lack of good faith” in the non-disclosure of the cost information about P&O Orient Lines only with relation to the 1966-68 rates. I point out in this dissenting and concurring opinion continuous confidential and fiduciary relationships for 1962-68 and various misrepresentations by MARAD continuously during 1962-68. The whole subject of foreign cost in this case, as in Moore-McCormack (supra, 188 Ct. Cl. at 672, 413 F. 2d at 585), is "complex and abstruse, with a large number of variables and nuances” (emphasis supplied) and the subsidy determinations for 1962-68 were in this case as stated in Moore-McCormack (Id., 188 Ct. Cl. at 673, 413 F. 2d at 585):
"* * * It was indeed a “game of blindman’s buff, in which like Samson the unsighted owners had to contend with open-eyed opponents. As Judge Tamm recently put it, speaking of a closely analogous situation in the operating-subsidy field: The backwardness of [the Maritime Subsidy Board’s] administrative procedure is appalling.’ American Mali Line, Ltd. v. Gulick, 411 F. 2d 696, 704 (D.C. Cir. 1969).” [Footnote omitted; emphasis supplied.]
This latter backwardness charge is a serious one with which the majority in effect agrees for the years 1966-68 by its findings. It is significant that the charge is aimed at the very Maritime Subsidy Board which decided the rates for all the years 1962-65 in this case. The subject of controversy in American Mail Line was a 1965 memorandum decision of the Subsidy Board. We are also concerned in this case with three decisions of the same Subsidy Board in the same year 1965 covering rates for 1962-65. In Moore-McCormack, this court in one bold stroke held the determinations in issue therein invalid and sent the entire case back to the Board. I am of the opinion that the majority here should have followed Moore-McCormack for all the years 1962-68, and not only 1966-68. The majority simply created an inexplicable anomaly. The blindfolding of CASL members mentioned in footnote 1 is equivalent to the "game of blindman’s buffi’ mentioned in the above quotation from Moore-McCormack. Judge Davis in Moore-McCormack held "that the Board's procedures have been so defective as to constitute a gross abuse of discretion and thus to invalidate its determinations” (Id., 188 Ct. Cl. at 675, 413 F. 2d at 587; emphasis supplied). A careful reading of Judge Davis’ opinion in Moore-McCormack and the decision of the Court of Appeals, District of Columbia Circuit, in American Mail Line, Ltd. v. Gulick, supra, makes the majority’s anomaly inexplicable. The Subsidy Board clearly operated during all the years 1962-68 on defective procedures under the circumstances presented in this dissenting opinion. I cannot dismiss this unlawfulness lightly for 1962-65.
Nor did plaintiffs letter of acceptance for the years 1966-68 contain a reservation clause in regard to subsequent years similar to that in letters of acceptance for 1962, 1963, and 1964. Plaintiffs Exhibit 25.
In Oceanic I this court stated as follows:
“A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 167 (1958), 161 F. Supp. 409, 410; Cosmopolitan Manufacturing Co. v. United States, 156 Ct. Cl. 142, 297 F. 2d 546, 547 (1962). Therefore, where a claim is based upon a contractual obligation of the Government to pay money, the claim first accrues on the date when the payment becomes due and is wrongfully withheld in breach of the contract. Smith Courtney Co. v. United States, 46 Ct. Cl. 262, 265-266 (1911); Cannon v. United States, 137 Ct. Cl. 104, 107 (1956), 146 F. Supp. 827, 829. Of course, in determining when money becomes due and payable under a contract, it is necessary to ascertain the nature of the agreement that the parties have made on this point. Manufacturers Aircraft Association, Inc. v. United States, 77 Ct. Cl. 481, 522 (1933); Austin Engineering Co., Inc. v. United States, 88 Ct. Cl. 559, 562 (1939).” [Footnote omitted; emphasis supplied.] [165 Ct. Cl. at 225.]
Therefore the contract terms are critical. The Final Accounting and Adjustments clause in Oceanic I was identical to that in the present case. The payments in advance on account clause (75 percent of estimate), recapture, reserve funds, intercoastal shipping, and other clauses in Oceanic I were also the same. The majority’s interpretation of the Final Accounting and Adjustments clause departs from this court’s interpretation in Oceanic 1.1 am of the opinion that the departure of the majority suffers from a fallacy of simplism. Accounting relative to profits, rates, and subsidy of shipowners involved in trades like the Mariposa and Monterey were engaged in the present case is complex by the very nature of the voyages and the complexity of ocean-going vessel accounting. The complexity is furthered by the fact that in the West Coast-Australia run the ships involved were also engaged in intercoastal trade (between the West Coast and Hawaii, American Samoa, and other island possessions of the United States). The present contract provides for these stops. Gross revenues from the entire voyage are proportioned by a formula provided *144in the contract so that the intercoastal trade run gross revenue so proportioned may be subtracted to determine any subsidy payments. The contract provides for these built-in complexities as well as all other usual vessel accounting complexities. Rate making in any form involving these vessels is inherently complex with one rate making at times overlapping into another rate making. In other words, one set of complexities was piled on another set of complexities. And one set of complexities may require years to determine, such as freight rates on intercoastal runs. Complexities and inherent delays require flexible accounting procedures. The contract in this case makes provision for liberal advance payments of subsidies, recapture, reserve funds, intercoastal allowances, and other clauses in addition to the subsidy to aid the shipowner in competing against foreign carriers. The majority must admit that accountingwise it is complex. The parties therefore agreed to a flexible "Final Accounting and Adjustments” clause. The clause is lengthy but it is designed to take care of complexities of the shipping business and to help the shipowners in their competition against foreign carriers. This was the intent of Congress and I believe the Final Accounting and Adjustments clause should be read with the said Congressional intent in mind, as this court did in Oceanic I. The majority in the present case failed to do this. Its interpretation defeats the flexibility required in contracts designed to carry out the ship subsidy program Congress intended. I am of the belief that the majority view of narrow interpretation of the contract’s "Final Accounting and Adjustments” clause is contrary to the basic intent of Congress - to help these shipowners.
Under Article 11-24 of the contract at bar a final accounting consists not only of plaintiffs filing but also of the Maritime Administration’s adjustment of the figures on audit. Plaintiffs filing for 1965 was not approved until October 20,1970, but since even the filing occurred within six years of the action we may assume for argument that the claim accrued at the time of filing.
As the court observed in the prior Oceanic I case, this contingency was due to section 606(5) of the Merchant Marine Act, 1936, and Article 11-28 of plaintiffs contract, which provided that if plaintiffs profits averaged more than 10 percent per annum on capital over the ten-year recapture period, the subsidy payable was to be reduced in the amount of the excess profits.
Thus, for example, assuming for argument that when in 1966 plaintiff filed its first annual accounting for 1962 a claim accrued for subsidy, nevertheless that claim was defeasible in case recapture of excess profits earned later should alter the balance of the account.
Each claim, of course, was for the balance remaining after deduction of sums received on the prior account.
In the prior Oceanic I case, the court did not have to consider whether a new claim accrued each year until the end of the recapture period because the claim there concerned unpaid subsidy for the last year of a recapture period (ended December 31, 1947) only. But Article 11-24 of the contract, which under the court’s reasoning is controlling, compels the conclusion that subsidy years are not accounted for separately - it plainly states that each year of a recapture period entails a new claim for the entire recapture period to date.
In Pacific Far East Line, supra, this court held that because the recapture obligation was subject to change continually, the plaintiff had no obligation to invoke within the time specified in a regulation an administrative remedy for excessive withholding of recapture (underpayment of subsidy). Id., 184 Ct. Cl. at 197-198, 394 F. 2d at 1005. By the same reasoning, plaintiff did not have to bring its action here until the recapture contingency was eliminated.
At the earliest, the discrimination occurred in June 1970 when APL and the Maritime Administration agreed on the foreign flag manning of APL’s ships.
In the previous Oceanic I case, the discriminatory acts occurred before the plaintiffs final accounting and more than six years before the petition in that case. Hence the discrimination, although essential to the accrual of the claim, was not the last event that fixed defendant’s liability in that case. Here the discrimination was the last event.