HENDERSOM v. THREE HUNDRED Tons6F IBON om:. 37
8 SAME-Rnrnssn ro Dnmvmz C.meo—CcNvmzs1on _
The supplemental cross-libel set up a proper tender made after the weight
_was ascertained, and the vessel’s refusal to deliver. Held, that such refusal
was not evidence of any conversion of the ore, and would not sustain an ac;
tion of trover, or any cross-libel, as the ore was at the time in the custody o.
the law, in a court of competent jurisdiction, and in a bona fide suit brought
without malice in the prosecution of the ordinary right of suit; and that the
c0nsignee’s remedy was in the original suit only.
4. SAME-SALE or Canco Pnnnmvrm Lim-Dauaens on Arrkcnmmrr. ·
Iron ore attached was ordered sold as "perishable" on account of the heavy
charges for keeping it. It brought less than the market value, and the con-
signee claimed the loss as damages in his cross-libel. He had full knowledge
of the attachment, the application to sell, and the sale, and could easily have
bonded the goods, but chose not to do so, Held, that the action would not lie;
that-his remedy in admiralty was in the original suit only, under the rules that
provide for bonding; and that no damages are recoverable either for the deg
tention of the rea pendeme lite, nor for the sale by order of the court pendento
lite, under such circumstances. In general no damages are recoverable for de- ‘
tention under attachment, except as provided by statute.
5. SAME—DELIVERY or CAaeo—Wn1eurNe—B1nn or Lanmc. A
When a bill of lading states, "weight unknown, " and freight is payable on
amount delivered, the number of tons receipted for in the bill of lading is not
prima facie evidence of the weight delivered, and weighing is the duty of the
ship. I ‘
In Admiralty. Libel for freight, and cross-libel for damage in ves-
sel’s refusal to deliver cargo.
On April 26, 1882, the steam-ship Scandinavia arrived at this port
with some iron ore, stated in the bill of lading to be "300 tons in bulk,
to be delivered to the libelant William D. Marvel or assigns; freight be-
ing paid by the receiver at the rate of 11 shillings sterling per ton of 2O
cwt. delivered, as per margin, with primage accustomed." Among the
conditions of the bill of lading is " weight unknown." The discharge of
the ore from the steamer into a canal-boat sent alongside by the con-
signee for the purpose of receiving the ore, was commenced on April 28th,
and finished on the afternoon of May 4th. The weight was taken on the
steanner’s deck, during the discharge, by a custom-house weigher, (de-
tailed there for the purpose of ascertaining duties,) in accordance with
the long practice for ship and consignee to accept the weight as thus as—
certained. The treasury regulations forbid the weight to be made known
except through the custom—house, after the weigher’s returns are filed;
A A bill for freight, as for 300 tons, as per bill of lading, was made out
and sent tothe consignee on May 2d. There is no settled or uniform
custom in this port as respects payment of freight before or during the I
discharge. Some payments on account are usually made by the receiver,
the ship’s agents get all they can in advance, and the rest, after delivery; _
and there are often vexatious delays in securing payment of balances."
This consignee’s practice had been to pay upon presentment of the cus-
tom-house certificate of weight. . T ·
On May 4th, shortly before the discharge into the canal-boat was come
pleted, notice thereof was given to Mr. Marvel, and that the freight must ·
he paid 'hefore the 'ore would be allowed to go; to which he replied:
"Send bill up here, with weight, and get your money." In a letter of