(dissenting).
I dissent. Plaintiff applied to Maritime to secure foreign registration for its ships as provided for in the October 4, 1951, assumption agreement. The plaintiff was required to pay $20,000 in consideration of Maritime’s approval of the transfer of its ships from American to foreign registry. Now apparently plaintiff has second thoughts about its bargain. I think plaintiff is estopped to deny the binding character of the agreement it freely entered into with Maritime. Fruhauf Southwest Garment Co. v. United States, 1953, 111 F.Supp. 945, 126 Ct.Cl. 51. To allow the plaintiff now to disavow its contract leaves it free to keep the benefit of the bargain and shirk the burden.
The argument is advanced that, questions of contract aside, Maritime has acted beyond its authority. On the basis of accumulated administrative expertise Maritime conditioned assent to a transfer of ships to foreign registration on the payment of $20,000. The action taken is consistent with an administrative policy designed to accomplish the broad aims declared by the Congress in the statute. The preamble to the statute asserts that Maritime has as its task “the purpose of encouraging, developing, and creating -x- * * a merchant marine' to meet the requirements of the commerce of the United, States with its Territories and possessions and with foreign countries *878* * Shipping Act of 1916, 39 Stat. 728. It would have been helpful if Maritime had clearly articulated the policy being implemented when it exacted the sum at issue.
These ships passed to private hands in the first place on condition that they be equipped in this country in order to give employment to American shipyards. Since the effect of foreign registry removes, at least for the time being, the plaintiff’s obligation to equip and service its vessels in this country, Maritime resolved to charge it for going elsewhere. There is no doubt there was some additional time and expense involved in changing the arrangements and in providing for a retaking in the event an emergency should arise. I realize that Maritime is not a profit-making organization. But I do not believe the amount requested represented merely an ad hoc desire on the part of Maritime to enrich the public treasury. Maritime has the vital responsibility to insure that this nation possess an adequate, well-equipped, and competitive merchant marine. Maritime perhaps decided that American shipowners should be at least mildly discouraged from acquiring foreign registration for ships originally sold to private parties to strengthen the American merchant marine. I am satisfied that payment of the sum demanded served the ends of administrative policy. In the light of the generous discretion given to Maritime to condition approval in matters of this kind, 46 U.S.C.A. § 839, the action taken by Maritime was within the purview of the statute.
I cannot agree that the case of Clapp v. United States, 117 F.Supp. 576, 127 Ct.Cl. 505, certiorari denied 348 U.S. 834, 75 S.Ct. 55, 99 L.Ed. 658, is applicable here. The case is distinguishable on three grounds. In Clapp there was no contract ; the Government predicated the payment solely on the statute. Secondly, the plaintiff protested the payment. Here the plaintiff willingly paid the amount requested. Thirdly, Clapp concerned the sale of a ship to a foreign purchaser although originally sale of the ship involved had been limited to domestic purchasers. We decided that the reasons for this restriction had vanished. Consequently, we saw no basis for making approval of the sale to a foreign purchaser contingent on payment of a sum of money. In the instant case there was a rational basis for the payment demanded.
Since I consider the payment which Maritime requested here to be entirely proper, I do not reach the question of whether a voluntary payment may be recovered, which was the controlling issue in United States v. Edmonston, 181 U.S. 500, 21 S.Ct. 718, 45 L.Ed. 971.