ss   J . rr¤¤.¤eI·(a¤¤¤¤¢¤¤. v<>1- 38- . ~ r ,
same date he demanded certiiicatejof weight to besent him. The exact
weight·=_couldr=nbt be obtained··¤from¤the custom-hbuse until May 6th,
e when it`Qwas‘found‘to be about`;28“cwt. short of 300 tons. · At ‘about 4
0?clock,1>. M,,of,the 4th,Qafter all the ore had temper into the canal-
boat, Henderson Bros. ~caused#·th_e_ ore to be attached by the marshal
upon a libel lfiled `inthis court on that day. On May 5th, the consignee
filed the cross-libel, claiming $,3,000 damages for an alleged willful and
` wrongfulrefusal to deliver the ore on request. On -May 6th, Henderson
Bros. sent Mr. Marvel a corrected bill, stating the true weight and amount
of freight due, being $3.78 less than the former bill. On the 10th, a
tender ofthe true freight was made by Marvel, and delivery of the ore
. demanded, which was refused without explanation; presumably on ac-
count of thetwo suits pending and the charges therein.
A ,Mr. Marvel designed to send the cre. to Jersey City; but when it was
attached no tug was present to ·remove it; and the captain of the canal- ’
» ` boat testified that he was notified by Henderson ’s dock clerk not to take her
, away until the freight was settled, and that he agreed not to do so. The
ore remained in the bnarshal’s possession until sold by him as perishable
under the order of this court dated May 23d, after due notice to the con-
signee and his proctors; the consignee having taken no steps to bond the
ore as he might have done. _ It brought $1,230,—abou,t $900 less than
its value, as claimed by the consignee. Both partieswere .of abundant A
pecuniary responsibility, and of good standing. _» ,_
' Wing, Shandy   Putnam, (0. O. Btwlinuham, of counsel,) for the steamer.
_ Lee &: Lee, for the consignee.l V z ~ r · . 4 .
`Baowrr, J., (after stating the facts as above.) This controversy has grown
_ V out of an attempt of Henderson Bros., in conjunctionwith the managers
’ of other linesof Mediterranean steamers, to establish a regulation for the
provisional payment of freight at their respective omces acco1·ding to
weights named in the bills of lading, before the actual delivery of the
j goods, leaving the correction of any errors therein to future adjustment,
after the weightis ascertained; like the custom—house usage in the pro-
visional and nnal liquidation of duties. A joint circular to this end was
previously issued in December, 1881, which seems not to have reached
Mr. Marvel. . , »
When the payment of freightyand delivery of the cargo, as a whole,
areby the legal rule made concurrent acts, great practical difhculties arise,
if the quantity is large, and each side stands on its legal rights. The
V amount may be so great that part 0f the cargo may have to be removed
- before the rest is discharged ;,and_if the consignee refuses to pay pro rata.
·freight on what is removable, _or,to give security for payment, the ship
is not bound to deliver piecemeal, and may remove and store such parts
as are necessary to beremoved at_the c0nsignee’s expense. Britton v.
Barnaby, 21,How. 527, ,534; The Kathleen Mary, 8 Ben. 165, 170. j See
‘ , _ The Tangier, 32 Eed. Rep. 230. -_ .
» 1.·,The legaleffect of the terms of this bill of lading wasto make pay-
ment of freight and delivery of the goods concurrent. Although the bill