(concurring).
I concur in the result.
As a condition to the purchase of the vessels in dispute in this case, the Maritime Commission required of prospective bidders that, after purchase, the ships would be operated under the American flag. In full knowledge of that requirement, the plaintiff purchased four German merchant ships from the Maritime Commission. The price of conforming to American standards was higher than originally anticipated by the plaintiff. As is related in the majority opinion, when the cost of conversion of one of the vessels was added to the sales price, the plaintiff discovered that he had invested $500,000 in a 4,200-ton ship while the Commission was selling 10,400-ton American-built Liberty ships for $544,-000.
Even after the high cost of conversion had been borne by the plaintiff, it proved impossible financially to operate the converted vessel. The plaintiff, as a result, desired to sell the vessels to foreign purchasers. Ultimately, the Commission consented. However, it tied a price to its consent. It charged plaintiff $516,308.82 for permitting it to sell to foreign purchasers.
There is no doubt that plaintiff had made a bad bargain with regard to purchase of these vessels. That fact alone of course gives it no claims on the public treasury. However, in these circumstances, considering the full measure of the plaintiff’s loss, it was unreasonable of the Maritime Commission to exact large amounts from plaintiff before permitting it to escape one of the more onerous provisions of its sales contract, i. e., the requirement that the vessels were to be operated under the American flag.
However, I wish to take exception to the view expressed in the majority opinion that the exaction of a money payment by Maritime can never have relevance in determining whether permission should be granted to sell to foreign purchasers or to transfer to foreign registry. In Suwannee Steamship Co. v. United States, Ct.Cl., 279 F.2d 874, decided June 8, 1960, the Maritime Commission had requested the payment of $20,000 before it would permit the plaintiff to transfer to foreign registry. The court held that this request was improper. In that ease I dissented. In Suwannee the plaintiff had pledged to equip itself in American shipyards. Without even doing so, it complained of its bargain to Maritime and asked permission to fly another flag. Maritime resolved to charge it for going elsewhere. Here, on the other hand, the plaintiff, at great expense, sought to equip at least one of its ships to conform to American standards. After doing so, it was demonstrated that none of the ships could be feasibly repaired and operated under American documentation.
No sound administrative policy is served by the exaction of the sum which was required of the plaintiff in this situation. I think it important, however, to restate my conviction that in some circumstances exaction of a money payment by the Maritime Commission may quite properly serve the ends of admin*451istrative policy. The statute, the Shipping Act of 1916Í 46 U.S.C.A. § 839, gives very generous discretion to Maritime to condition approval in matters of this kind.
I have no doubt that, if the circumstances warrant,. payment of a sum of money may be conditioned to Maritime’s approval in a given situation.