(45 S.Ct.) Irvine v. The Hesper, 122 U. S. 256, 266, 7 | $90,000. The evidence shows that she was [3-6] It is fundamental in the law of damages that the injured party is entitled to compensation for the loss sustained. Where property is destroyed by wrongful act, the owner is entitled to its money equivalent, and thereby to be put in as good position pecuniarily as if his property had not been destroyed. In case of total loss of a vessel, the measure of damages is its market value, if it has a market value, at the time of destruction. The Baltimore, 8 Wall. 377, 385, 19 L. Ed. 463. Where there is no market value, such as is established by contemporaneous sales of like property in the way of ordinary business, as in the case of merchandise bought and sold in the market, other evidence is resorted to. The value of the vessel lost properly may be taken to be the sum which, considering all the circumstances, probably could have been obtained for her on the date of the collision; that is, the sum *156 that in all proba*bility would result from fair negotiations between an owner willing to sell and a purchaser desiring to buy. Brooks-Scanlon Corporation v. United States, 265 U. S. 106, 123, 44 S. Ct. 471, 68 L. Ed. 934. And by numerous decisions of this court it is firmly established that the cost of reproduction as of the date of valuation constitutes evidence properly to be considered in the ascertainment of value. Southwestern Bell Telephone Co. v. Public Service Commission, 262 U. S. 276, 287, 43 S. Ct. 544, 67 L. Ed. 981, 31 A. L. R. 807, and cases cit ed; Bluefield Co. v. Public Service Commis sion, 262 U. S. 679, 689, 43 S. Ct. 675, 67 L. Ed. 1176; Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S. 625, 629, 43 S. Ct. 680, 67 L. Ed. 1144; Brooks-Scanlon Corporation v. United States, supra, 125 (44 S. Ct. 471); Ohio Utilities Co. v. Public Utilities Commission (decided March 2, 1925) 267 U. S. 359, 45 S. Ct. 259, 69 L. Ed. The same rule is applied in England. In re Mersey Docks and Admiralty Commissioners, [1920] 3 K. B. 223; Toronto City Corporation v. Toronto Railway Corporation, [1925] A. C. 177, 191. It is to be borne in mind that value is the thing to be found, and that neither cost of reproduction new, nor that less depreciation, is the measure or sole guide. The ascertainment of value is not controlled by artificial rules. It is not a matter of formulas, but there must be a reasonable judgment having its basis in a proper consideration of all relevant facts. Minnesota Rate Cases, 230 U. S. 352, 434, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18. unusually well kept and in excellent condition for use. The District Court found that in 1917 and 1918, on account of unprecedented demand and a shortage of shipbuilding facilities, the market value of ships was higher than the cost of construction, and also found that in 1918, when the Proteus was lost, the cost of construction was approaching the peak which came some months later. Petition of Standard Oil Co. of New Jersey, *157 285 F. 619, 620. Respondents *called three witnesses experienced in shipbuilding and of ships in 1918. Each made an estimate of the cost of reproduction of the Proteus as of the date of the loss. Their estimates were respectively $1,755,450, $1,750,000, and $1,750,000. One of these witnesses and two others called by respondent testified respectively that in 1918 the value of the Proteus was $1,225,000, $1,297,637, and $1,350,000. The petitioner called a mechanical engineer and naval architect connected with its construction department, who testified that the cost of reproduction of the Proteus in 1918 would have been three times its original cost or approximately $1,679,000. It called two other witnesses, who had been members of a government board of appraisers for the determination of just compensation for vessels requisitioned. They expressed the opinion that the cost of reproduction of the Proteus in 1918 would have been 21⁄2 times its original cost, or approximately $1,400,000. But they made no detailed estimates. The figures were arrived at by examination of statistics showing labor and material costs. These three witnesses testified respectively that at the time of the loss the value of the ship was $630,000, $650,000, and $611,000. familiar with construction costs and value In view of changed prices, the original cost of the vessel was not useful as a guide to her value when lost. In The Clyde, 1 Swabey, 23, Dr. Lushington, speaking of what a vessel would fetch in the market, said (page 24): "In order to ascertain this, there are various species of evidence that may be resorted tofor instance, the value of the vessel when built. But that is only one species of evidence, because the value may furnish a very inferior criterion whereby to ascertain the value at the moment of destruction. The length of time during which the vessel has been used, and the degree of deterioriation suffered, will affect the original price at which the vessel was built. But there is another matter infinitely more important than this-known even to the most un*learned-the constant change which takes place in the market. It is the market price which the court looks to, and nothing else, as the value of the property. It is an old saying, "The worth of a thing is the price it will bring.'" *158 [7] The Proteus was a steel passenger and freight steamship, built in 1900 for use in the Southern Pacific Company's service between New York and New Orleans. Her original And see City of Winona v. Wisconsin-Mincost was $557,600. In 1909 she was reboil- nesota Light & Power Co. (D. C.) 276 F. 996, ered and otherwise improved at a cost of 1003. "Restitutio in integrum" is the leading, on account of expenditures for maintenance maxim applied by admiralty courts to ascer- and improvement. He arrived at 66 per tain damages resulting from a collision (The cent. deducted, by taking 4 per cent. for 14 Baltimore, supra, 385), and, on the same prin-years and 22 per cent. for four years, makciple, value is the measure of compensation ing an average of over 3.6 per cent. The two in case of total loss. The evidence requires other witnesses called by petitioner arrived a finding that, as of the date of her loss, the at $650,000 and $611,000, respectively, by cost of reproduction new of the Proteus was taking 45.2 per cent. of $1,400,000, reproducnot less than $1,750,000. Ordinarily, contem- tion cost found by them, and by making simporaneous cost of construction would be a ilar adjustments. They arrived at 54.8 per good indication of the amount of damages cent. deducted, by the use of a depreciation resulting from the loss of a new ship. There table prepared by another member of the ought not to be any difference between rea- board of appraisers. This table applies to sonable original cost and estimated cost of steel steamers in salt water service. It is reproduction as of the date when built. But based on a life of 40 years. It makes a difthe Proteus was 18 years old when lost, and ferent deduction for each year. For the all the witnesses who testified on the subject | first 20 years it takes off 60 per cent. and for fixed her value at that time higher than her the last, 40 per cent. The average annual original cost and lower than the estimated rate is 22 per cent. The evidence showed cost of construction. There is no established that the useful life of such a vessel is not method or rule for determining the difference any fixed number of years, but varies greatbetween her value at the time of the loss ly, depending on upkeep and maintenance. and what her value would have been if then The table was intended to reflect average new. It was shown that annual rates of de- conditions of the different depreciable elepreciation used in the accounts of shipown-ments of ships of that class and to guide to ers varied from 22 to 5 per cent., and that such rates are affected by the policy of the owners, business conditions, taxes, and other things. It was not shown whether such deductions covered annual depreciation resulting notwithstanding proper maintenance, or the *reproduction cost. The rate of depreciawhether they included all or part of the cur- tion taken by petitioner's mechanical engineer rent cost of upkeep. It did not appear is too high in view of the conditions prevailwhether the rates were applied to reproduc-ing at the time of the loss. The other wittion cost or to original cost, or to an amount nesses based their calculation on a reproducremaining after deduction on account of scrap value or salvage value or other minimum. In August, 1918, the immediate demand for ships was greater than the supply, *159 the shipyards were working to full capacity, wages and prices were high, the trend of construction costs was upward, and the element of time was of the utmost importance. And witnesses on both sides testified that such conditions make for a lower rate of depreciation to be taken into account in determining value. If new, the Proetus would have been worth at least her cost of reproduction. Plainly, conditions in 1918 justified a smaller deduction from cost of reproduction new than before the war, and made value of a vessel in good condition and ready for use approach more nearly its value new. Petitioner's mechanical engineer arrived at $630,000, by taking 34 per cent. of $1,670,000 reproduction cost as found by him, and by making some relatively small adjustments average values over extended periods, including times of depression as well as of prosperity. The value fixed by each of petitioner's witnesses is more than $1,000,000 less than *160 tion cost that was too low. Moreover, certain valuations made by the government board of appraisers of which they were members seriously impair the weight of their testimony. In 1917, the United States requisitioned the Havana and the Saratoga, vessels of the same type as the Proteus and about 11⁄2 times its size, and constructed in 1906. Cramp's estimated reproduction cost of each in 1917 to be $3,000,000, about 3 times original cost. The board fixed value at $2,240,000 each, about 74 per cent. of reproduction cost. But the value of the Proteus, as given by these witnesses, was less than 38 per cent. of her cost of reproduction new. We think the commissioner and District Court failed to give due regard to construction costs, conditions, wages, and prices affecting value in 1918, and that the evidence sustains the decree of the Circuit Court of Appeals. Decree affirmed. (45 S.Ct.) (268 U. S. 186) (Argued Jan. 26, 1925. Decided April 27, 1925.) No. 233. 1. Courts 385(1) — Judgment against the United States in action on contract for castings sold reviewable by Supreme Court. District Court's judgment against the Unit ed States in action on contract for steel cast ings furnished is reviewable on writ of error by Supreme Court, under Judicial Code, § 24, par. 20 (Comp. St. § 991), and not by Circuit Court of Appeals. 2. Appeal and error 850 (1) - Supreme Court may consider admitted facts and concessions of parties, notwithstanding rule restricting its inquiry. Facts admitted and concessions made by parties may be considered by Supreme Court, with findings of fact made by District Court, notwithstanding rule restricting inquiry to a consideration of the case on the findings. 3. United States 70(1)-Contract with United States construable, and rights thereunder determinable, on same principles as if contract was between individuals. Contract with the United States is construable, and rights of parties determinable, on same principles as if contract was between individuals. 4. United States -73-Seller of steel casting, failing to make corrections therein after notice of rejection, held not entitled to recover contract price. [1] This action was brought under section 24, par. 20, of the Judicial Code (Comp. St. § 991), to recover $7,581.95, alleged to be due *187 upon a contract between plaintiff and defendant. The court gave judgment in favor of defendant. Plaintiff took the case to the Circuit Court of Appeals on writ of error, but it should have been brought to this court. J. Homer Fritch, Inc., v. United States, 248 U. S. 458, 39 S. Ct. 158, 63 L. Ed. 359; Campbell v. United States, 266 U. S. 368, 45 S. Ct. 115. The case was transferred to this court under section 238a, Judicial Code (Act Sept. 14, 1922, c. 305, 42 Stat. 837 [Comp. St. Ann. Supp. 1923, § 1215a]) (C. C. A. Pa.) 293 F. 386. The facts admitted include the following: September 4, 1918, plaintiff made a contract with the post quartermaster, United States Marine Corps, Quantico, Va., acting under the direction of the Secretary of the Navy for and in behalf of the United States. By it, plaintiff agreed to furnish two flywheels according to certain drawings, each to be cast in halves "in the rough." Delivery was to be made by September 28, 1918, at Reading, Pa., for shipment to the De La Vergne Machine Company, New York City. The contract contained a provision that upon delivery, and as a condition precedent to their acceptance, the castings should be inspected and approved by defendant, and that any article not so approved would be rejected, and should be removed by plaintiff immediately after receipt of notification of such re Steel casting company, which failed to cor-jection. The court found facts as follows: rect defects in casting furnished government under contract after notice of rejection given within reasonable time, held not entitled to recover contract price. 5. United States 73-Lack of inspection or notice of rejection until after lapse of unreasonable time held to entitle seller of casting to recover contract price. Steel casting company, furnishing casting to government under contract, held entitled to recover contract price, notwithstanding defects in casting, where no inspection was made or notice of rejection given by government until after lapse of unreasonable time. In Error to the United States District Court for the Eastern District of Pennsylvania, transferred from the Circuit Court of Appeals, Third Circuit. "The plaintiff failed to perform its contract in that the castings were defective because of the presence of checks. These defects could have been remedied by welding, and the castings thus made to conform to contract. The extent of the cracks and the consequent required welding could not be determined until after the castings had been machined. Plaintiff sent the castings to the company which was to do the machining, and plaintiff was given the privilege of welding the cracks when disclosed by the machining. This welding was, however, not done, nor the castings made as required by the contract. The smaller casting which was the first *188 casting supplied was inspected and rejected within a reasonable time. After partial welding it was again inspected and rejected within a reasonable time. The large casting was not inspected until after a reasonable time. This wheel was shipped December 27, 1918, and Action by the Reading Steel Casting Com-reached its destination before February 7, 1919. pany against the United States. To review a judgment for defendant, plaintiff brought writ of error to the Circuit Court of Appeals, which court transferred the case to the Supreme Court (293 F. 386). Judgment reversed. It had not been inspected on December 6, 1919, and notice of inspection and rejection was not given until October 26, 1920, after suit brought." [2, 3] In its brief, defendant contends that the plaintiff was bound by the contract to Mr. Paul C. Wagner, of Philadelphia, Pa., weld checks disclosed by machining, and the for plaintiff in error. plaintiff so construes the contract. The facts Mr. Merrill E. Otis, of St. Joseph, Mo., admitted and the concessions made by the for the United States. parties may be considered with the findings of fact made by the district court. This is [ age of the act should be presumed to have been not inconsistent with the rule stated in unlawfully imported, and that possession of Crocker v. United States, 240 U. S. 74, 78, 36 such opium should create a presumption of S. Ct. 245, 60 L. Ed. 533, restricting our in- guilt, in absence of satisfactory explanation, quiry to a consideration of the case on the held not so illogical or unreasonable as to be findings. violative of due process or compulsory selfSee Ackerlind v. United States, incrimination clauses of Const. Amend. 5. 240 U. S. 531, 535, 36 S. Ct. 438, 60 L. Ed. 783. The contract is to be construed and the rights of the parties are to be determined by the application of the same principles as if the contract were between individuals. Smoot's Case, 15 Wall. 36, 47, 21 L. Ed. 107; Amoskeag Manufacturing Company v. United States, 17 Wall. 592, 595, 21 L. Ed. 715; United States v. Smith, 94 U. S. 214, 217, 24 L. Ed. 115. [4, 5] As the castings for the smaller wheel were not made to conform to the contract by the welding of the checks for which it was rejected within a reasonable time, plaintiff is not entitled to recover on account of it. The defendant failed within a reasonable time to inspect the castings for the larger wheel or to give notice of rejection. Plaintiff was not in default. It made delivery as agreed by shipping the castings to the company which was to do the machining. Plaintiff was not bound to have the machining done, and, as between it and defendant, that burden was on the latter. The extent of the checks could not be determined before the castings were machined. Defendant was 3. Criminal law 308-Presumption of innocence may be overcome, when facts alone are not enough by additional weight of countervailing legislative presumption. Presumption of innocence may be overcome, not only by direct proof, but, when facts weight of a countervailing legislative presumpstanding alone are not enough, by the additional tion. 4. Criminal law 393 (1)-Statute creating legitimate statutory presumption of unlawful importation from possession of smoking opium not unconstitutional. That Act Feb. 9, 1909, as amended by Act Jan. 17, 1914, §§ 2, 3 (Comp. St. §§ 8801, 8801a), from possession of smoking opium more than creating presumption of unlawful importation four years after passage of act, may in its practical effect require one accused, who is sole repository of facts necessary to negative such presumption, to testify in explanation of his possession, does not render it unconstitutional, as compelling accused to be witness against himself. (Argued March 19, 1925. Decided April 27, court below of the offense of concealing a 1925.) No. 303. 1. Commerce 31-Congress may prohibit importation of opium and make concealment of importation crime. Congress may prohibit importation of opium in any form and as a measure reasonably calculated to aid in enforcement of the prohibition may make its concealment with knowledge of its unlawful importation a crime. 2. Constitutional law 311-Criminal law 393 (1)—Poisons 2-Rules of evidence fixed by act prohibiting importation of opium held not unconstitutional. Act Feb. 9, 1909, as amended by Act Jan. 17, 1914, §§ 2, 3 (Comp. St. §§ 8801, 8801a), declaring that smoking opium found within the country more than four years after pass quantity of smoking opium after importation, with knowledge that it had been im ported in violation of Act Feb. 9, 1909, c. 100, 35 Stat. 614, as amended by Act Jan. 17, 1914, c. 9, 38 Stat. 275 (Comp. St. §§ 8800-8801f). Sections 2 and 3 of the act as amended (Comp. St. §§ 8801, SS01a) are challenged as unconstitutional, on the ground that they contravene the due process of law and the compulsory self-incrimination clauses of the Fifth Amendment of the federal Constitution. Section 1 of the act (Comp. St. § 8800) prohibits the importation into the United States of opium in any form after April 1, 1909, except that opium and preparations and derivatives thereof, other than smoking opium or opium *182 prepared for *smoking, may be imported for (45 S.Ct.) "The law of evidence is full of presumptions either of fact or law. The former are, of course, disputable, and the strength of any inference of one fact from proof of another depends upon the generality of the experience upon which it is founded. * * * medicinal purposes only, under regulations, 1912A, 463), this court, speaking through Mr. prescribed by the Secretary of the Treasury. Justice Lurton, said: Section 2 provides, among other things, that if any person shall conceal or facilitate the concealment of such opium, etc., after importation, knowing the same to have been imported contrary to law, the offender shall be subject to fine or imprisonment or both. It further provides that whenever the defendant on trial is shown to have, or to have had, possession of such opium, etc., "such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury." Section 3 provides that on and after July 1, 1913: "All smoking opium or opium prepared for smoking found within the United States shall be presumed to have been imported after the first day of April, nineteen hundred and nine, and the burden of proof shall be on the claimant or the accused to rebut such presumption." The plaintiff in error, at the time of his arrest in August, 1923, was found in possession of and concealing a quantity of smoking opium. The lower court overruled a motion for an instructed verdict of not guilty, and, after stating the foregoing statutory presumptions, charged the jury in substance that the burden of proof was on the accused to rebut such presumptions; and that it devolved upon him to explain that he was rightfully in possession of the smoking opium-"at least explain it to the satisfaction of the jury." The court further charged that the defendant was presumed to be innocent until the government had satisfied the minds of the jurors of his guilt beyond a reasonable doubt; that the burden to adduce such proof of guilt beyond the existence of a reasonable doubt rested on the government at all times and throughout the trial; and that a conviction could not be had "while a rational doubt remains in the minds of the jury." *183 [1] *The authority of Congress to prohibit the importation of opium in any form and, as a measure reasonably calculated to aid in the enforcement of the prohibition, to make its concealment with knowledge of its unlawful importation a criminal offense, is not open to doubt. Brolan v. United States, 236 U. S. 216, 35 S. Ct. 285, 59 L. Ed. 544; Steinfeldt v. United States, 219 F. 879, 135 C. C. A. 549. The question presented is whether Congress has power to enact the provisions in respect of the presumptions arising from the unexplained possession of such opium and from its presence in this country after the time fixed by the statute. In Mobile, etc., R. R. v. Turnipseed, 219 U. S. 35, 42, 43, 31 S. Ct. 136, 137, 138 (55 L. Ed. 78, 32 L. R. A. [N. S.] 226, Ann. Cas. "Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous. * * "That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed." *184 *See, also, Luria v. United States, 231 U. S. 9, 25, 34 S. Ct. 10, 58 L. Ed. 101; State v. Moriarty, 50 Conn. 415, 417; Commonwealth v. Williams, 6 Gray (Mass.) 1, 3; State v. Sheehan, 28 R. I. 160, 66 A. 66. [2] The legislative provisions here assailed satisfy these requirements in respect of due process. They have been upheld against similar attacks, without exception so far as we are advised, by the lower federal courts. Charley Toy v. United States (C. C. A.) 266 F. 326, 329; Gee Woe v. United States, 250 F. 428, 162 C. C. A. 498; Ng Choy Fong v. United States, 245 F. 305, 157 C. C. A. 497; United States v. Yee Fing (D. C.) 222 F. 154; United States v. Ah Hung (D. C.) 243 F. 762, 764. We think it is not an illogical inference that opium, found in this country more than 4 years (in the present case, more than 14 years) after its importation had been prohibited, was unlawfully imported. Nor do we think the further provision, that possession of such opium in the absence of a satisfactory explanation shall create a presumption of guilt, is "so unreasonable as to be a purely arbitrary mandate." By universal sentiment, and settled policy as evidenced by state and local legislation for more than half a century, opium is an illegitimate commodity, the use of which, except as a medicinal agent, is rigidly condemned. Legitimate possession, unless for medicinal use, is so highly improbable that to say to any person who obtains the outlawed commodity, "since you are bound to know that it cannot be brought into this country at all, except under regulation for |