Hannmzsorz v. THREE HUNDRED roxs or mon ons. 39
of lading reads, " Freight being paid on the `cwt`. delivered, as per mar-
gin," and the margin says, " 300 tons," I cannot hold that the words "as
per margin" qualify the previous restriction to the cwt; delivered, or that,
they even make the 300 tons named in the margin any such primafamb
evidence of the freight due as_ to warrant the ship in holding the ore for
that amount, without taking any steps to ascertain how many cwt. were
~ delivered. Under the clause "weight unknown/’ the statement of "300
tons," in the bill of lading, was not even prima facie evidence as to the
weight against the ship, when it appeared that all received was delivered.
. The Ismcele, 14 Fed. Rep. 491; ilikatthiessen v. <Gus*£, 29 Fed. Rep. 794. ·
It was the ship’s duty, therefore, to ascertain the weight; because
she could not lawfully continue to hold possession of the cargo after the .
consignee was ready to receive it, without informing him, as soon as
reasonably practicable, of the amount of freight to be paid. Mnc Thou.4
sand Occ Hides, 6iBen. 199, 202. There is no such ambiguity in the
terms of the bill of lading as to permit their legal effect to be changed by
any proof of custom, or by any regulation sought to be imposed by one
of the parties to the contract without the consent of the other. D Any such
change, extremely desirable as it no doubt is, in such cases, for the con·
venience of both parties, could only be made by mutual agreement, or by
further stipulation in the bill of lading itself. Britten v. Ba.rmiby,’ 21
· How. 527, 534. A “ ’’‘·  
The commencement of the suit on May 4th——two days before the
weightwas ascertained-—was therefore premature, since thelibelant did
not know how much he had a right to demand, nor theconsignee how
much he was required to pay. All costs and expenses incident tothe .
premature bringing of the suit must therefore fall upon the libelants.
One Thousand Two Hundred and S' ty-Five. I/Htmffied Pipes, 14 Blatchf'..274t
When the tender was shortly afteldwards made,—onl`the 10th,—the coné
signee having ascertained the true weight in the; mean) time, as he had a
right to do, though he had no right to demand a c‘ustom·house lcertificate
from the libelants, the latter had no right to claim indemnity for the
costs and expenses up to that time, but should have accepted thetender,
and discontinued their suit. The time taken by the consignee to deter-
mine upon this course, rather than to bond the goods in the usual way,
was not unreasonable. The tender not being accepted, the continuance
of the suit was at the libelant’s risk of all the subsequent legal costs and
expenses also. Had the cargo not been sold, it must, upon dismissal of
the  uit, have been returned to the claimant free from all charges and ex-
penses for its arrest and preservation; or, rather, all such expenses would
have been charged against the libelants as taxable costs; The Georgecnna.,
31 Fed. Rep. 405. In this case it was the great expense of keeping the
property that made it ‘“perishable." The sale was to avoid thatfand
the incidental expenses of the sale stood in the place ofvfurther expense
in keeping the property. Though the proceeds of salelrepresent the ore,
and bound- the claimant thereto, so far as relates to·the‘ prices that the
ore' broughtyas to all the expenses the claimant ought not to be put in
any worse position in consequence of the sale; and all these chargesmust