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right to any unusual returns upon the investments. One who invests his money in a business of a somewhat hazardous character is very properly held to have the right to a larger return without legislative interference than can be obtained from an investment in government bonds or other perfectly safe security. The man that invested in gas stock in 1823 had a right to look for and obtain, if possible, a much greater rate upon his investment than he who invested in such property in the city of New York years after the risk and danger involved had been almost entirely eliminated.”
In the case you have to deal with there is no obligation upon anyone to render the service, and it is entirely a matter of contract. You can not fix the rate of profit; you can only refuse to enter into a contract if the price proposed involves an unreasonable profit.
The reasonable price or value of a service or commodityother than the service of a public utility-is often presented in the courts for determination, and in such cases it is not ordinarily determined by resolving it into its elements of cost and profit, but with reference to the usual or prevailing price of the thing involved.
The market price of any commodity under normal conditions is taken to be its reasonable value; and so in any case where purchase can be made in an open market under conditions of free competition it may be assumed that the prevailing price will not be "in excess of a reasonable profit above the actual cost of manufacture.”
Subject to the obligation to keep the cost of construction as much as possible within the limits of the maximum prescribed, Congress has committed the determination of what are reasonable prices for the various elements that enter into the construction of the ships to the sound discretion and the best judgment of the Secretary. Respectfully, yours,
F. W. LEHMANN,
Solicitor General. Approved.
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.
STEAMSHIP "EUROPA" CARRYING PASSENGERS INTO THE PORT OF NEW YORK WITHOUT CERTIFICATE OF INSPECTION.
The steamship Europa, a private vessel of Italian nationality, which was
engaged in carrying passengers upon a regularly established line between the ports of the United States and European ports, sailed from the port of New York with a certificate of inspection but arrived back at New York more than 30 days after the expiration of such certificate, did not thereby violate any of the provisions of title 52, Revised Statutes, for the reason that foreign vessels are subject to inspection only when carrying passengers from the United States.
DEPARTMENT OF JUSTICE,
March 24, 1911. Sir: Under date of the 7th instant you requested my opinion upon certain questions arising out of the following facts:
The steamship Europa is a private vessel, of Italian nationality, operating upon a regularly established line, carrying passengers between ports of the United States and European ports. She was inspected by the authorities of this Government, pursuant to the provisions of section 4400 of the Revised Statutes, and provided with a certificate of inspection dated September 18, 1909, due to expire September 18, 1910. On August 29, 1910, this certificate of inspection being then in force, the Europa sailed from the port of New York on a regular trip, but arrived back at New York, on the return voyage, October 26, 1910, more than 30 days after the expiration of such certificate.
You state that the case has been reported to your department in order that, if it is considered that the penalty imposed by section 4499 of the Revised Statutes for a violation of the inspection laws has been incurred, the usual steps may be taken looking to the collection thereof.
Upon this state of facts, my opinion is requested “as to whether, under the circumstances, the steamship Europa is subject to the provisions of section 4421, Revised Statutes, and particularly to the portion of said section added thereto by the act of June 25, 1910 (36 Stat. 831), and, if so, whether the vessel in question appears to have been navigated without complying with the terms of title 52
of the Revised Statutes, by reason of having been navigated without having on board an unexpired certificate of inspection or a temporary certificate of inspection.”
Title 52 of the Revised Statutes relates to the regulation of steam vessels, and embraces sections 4399 to 4500, inclusive.
Section 4400, which specifies what vessels shall be subject to inspection, originally provided:
“SEC. 4400. All steam vessels navigating any waters of the United States which are common highways of commerce, oropen to generalor competitive navigation, excepting public vessels of the United States, vessels of other countries, and boats propelled in whole or in part by steam for navigating canals, shall be subject to the provisions of this Title.”
By the act of August 7, 1882 (22 Stat. 346), section 4400 was amended by adding thereto the following:
“And all foreign private steam vessels carrying passengers from any port of the United States to any other place or country shall be subject to the provisions of sections 4417, 4418, 4421, 4422, 4423, 4424, 4470, 4471, 4472, 4473, 4479, 4432, 4488, 4489, 4496, 4497, 4499, and 4500 of this title, and shall be liable to visitation and inspection by the proper officer, in any of the ports of the United States, respecting any of the provisions of the sections aforesaid.”
Section 4400 was still further amended by acts of February 15, 1902 (32 Stat. 34), and March 17, 1906 (34 Stat. 68), by the addition of provisions authorizing certain exemptions in the matter of inspection of foreign vessels, in pursuance of reciprocal arrangements. You state, however, that no such exemption has existed in favor of the Europa, because of no reciprocal arrangement affecting the vessels of the country to which the Europa belongs.
Section 4417, which is one of the sections to which foreign vessels are subjected by the act of August 7, 1882, amending section 4400, relates to the inspection of the hulls and equipments of steam vessels, specifying the extent of such inspection, which is required to be made at least once a year. Section 4418 relates to the inspection of the boilers and their appurtenances, to be made at least once a year.
The other sections, except 4421, to which foreign vessels are subjected by the amendatory act of August 7, 1882, relate to various matters unnecessary to be considered in this connection.
The original provisions of section 4421, so far as pertinent, are as follows:
“SEC. 4421. When the inspection of a steam vessel is completed and the inspectors approve the vessel and her equipment throughout, they shall make and subscribe a certificate to the collector or other chief officer of the customs of the district in which such inspection has been made, in accordance with the form and regulations prescribed by the board of supervising inspectors.”
The amendments of the above section consist only of additions thereto. The amendatory act of June 11, 1906 (34 Stat. 230), provides, in effect, that the inspectors shall, upon the inspection and approval of a vessel, furnish to the master or owner thereof a temporary certificate of inspection as evidence of such inspection until the regular certificate is delivered, and further provides in the last clause that “no vessel required to be inspected under the provisions of this title shall be navigated without having on board an unexpired regular certificate of inspection or such temporary certificate.”
The amendment to section 4421 of June 25, 1910 (36 Stat. 831), consisted in the addition of the following provisions, relating to and modifying the clause last above quoted:
“Provided, however, That any such vessel, operated upon a regularly established line from a port of the United States to a port of a foreign country not contiguous to the United States, whose certificate of inspection expires at sea, or while said vessel is in a foreign port or a port of the Philippine Islands or Hawaii, may lawfully complete her voyage without the regular certificate of inspection or the temporary certificate required by this section, and no liability for penalties imposed by this title for want of such certificate shall be incurred until her voyage shall have been completed: Provided, That said voyage shall be so completed within thirty days after the expiration of
said certificate or temporary certificate: Provided further, That no such vessel whose certificate of inspection shall expire within fifteen days of the date of her sailing shall proceed upon
her voyage to such port of a foreign country not contiguous to the United States without first having procured a new certificate of inspection or the temporary certificate required by this section.”
The question of the liability of the Europa depends upon the construction to be given the act of August 7, 1882, amending section 4400 so as to require the inspection of certain foreign vessels. That act, which is above quoted, provides that “all foreign private steam vessels carrying passengers from any port of the United States to any other place or country” shall be subject to inspection. If this language means simply that foreign vessels are subject to our inspection laws only when carrying passengers “from” the United States, then the Europa, on her return voyage, was not being navigated in violation thereof. So construed, the Europa on her return voyage, was not a “vessel required to be inspected under the provisions of this title," within the meaning of the last clause of the amendment to section 4421 made by the act of June 11, 1906, which forbids such a vessel being navigated without having on board an unexpired regular or temporary certificate of inspection. For the same reasons, she is not within the further amendment to that section made by the act of June 25, 1910, which refers to “any such vessel,” etc., and which necessarily can be given no broader construction than the preceding clause contained in the amendatory act of June 11, 1906, to which it relates.
It appears from a memorandum submitted by the Commissioner of Navigation that such has been the practical construction placed upon the amendatory act of August 7, 1882, by his office, which construction has always been adhered to up to the present time. This practice, the commissioner says, is based on the view that foreign countries are responsible for their own vessels carrying passengers from their ports, and the direct concern of the United States is with such vessels only when attempting to carry passengers from our ports.