(dissenting).
I cannot agree with the opinion of the majority.
In my opinion, the sum of $138,624.33 was paid to the plaintiff for the “use” of the vessels as that word is used in section 9(b) (6) of the Merchant Ship Sales Act of 1946. Under its charter with the plaintiff, the defendant was obligated to restore the tankers “on its time.” Instead of fulfilling this obligation to restore the tankers, the defendant paid the plaintiff a sum which represented the cost of this restoration and, in addition, it paid “charter hire" for 15 days which represented defendant’s duty to restore the vessels “on its time.” It is true that the sum was paid in lieu of defendant’s duty to hire the vessels, but it was paid only because such a duty existed.
Section 9(b) (6) of the Act states that “the applicant shall credit the Commission with all amounts paid by the United States to him as charter hire for the use of the vessel * * As the majority points out, this provision forced wartime purchasers who had chartered their ships to the Government to credit the Government with amounts which had previously been paid them only on account of their ownership since the “use” portion of the charter hire was paid for depreciation, interest on the owners’ investment, etc. The $138,624.33, here in question, which was paid the plaintiff by the defendant, represented the “use” portion of 15 days of charter hire under the charter. It was paid plaintiff in lieu of the “use” of vessels, but it was paid because the de*517fendant was under a contractual obligation to pay for the “use of the vessel [s] ” during the period of restoration.
To effectuate the clear policy expressed in section 9(b) (6), it seems a necessity to credit this amount to the Government. The sum represents an amount which was paid on account of ownership. To allow plaintiff to avoid crediting this amount would give it an advantage not contemplated by the statute.
WHITAKER, Judge, joins in the foregoing dissenting opinion.