86
J'EDERAL REPORTER,
vol. 38.
the plaintiffs' last request, viz., that" the plaintiffs are not prohibited from so manufacturing goods as to conform to a lower, rather than higher, exaction of the tariff; and though they may have adopted a very technical device to escape the higher rate, the question presented by the case is only whether their goods are embraced within the higher rate, and is not whether the plaintiffs have evaded the law." The defendant requested the court to charge: (1) That if the jury find that the selvedge of these goods was made wholly or in part of cotton, introduced for the purpose of changing the classification, there should be a verdict for the defendant; (2) that if the jury find that the plaintiffs' goods were made with threads composed of wool and cotton, introduced for the purpose of changing the classification, verdict should he for the defendant; (3) that if the jury find that these goods are women's dress goods, substantially composed of wool, and known in trade and commerce as "all-wool fabrics," the defendant is entitled to a verdict; (4) that if the jury find that the quantity of cotton introduced in these goods is so insignificant as not to alter the character of the goods and remove them from the category of" all-wool dress goods," as known in trade and oommerce, the defendant is entitled to a verdict,-each of which requests were denied by the court. Verdict tor plaintiffs.
lIBNDERSON
ee al. tI. THREE
HUNDRED TONS OJ' IRON
ORE.·
MARVEL tI. THE SCANDINAVIA.
(DilfJriet Court, S. D. NWJ York.
February 5, 1889.) FOR DETENTION-WHEN ACCRUES.
I.
ElB:n-PmG-LmBL FOB
I,
The steam,ship S. arrived at New York with iron ore. The bill of lading receipted for 300 tons, "weight unknown, " to be delivered to the libelant M.,· freight payable on amount delivered. It was unladed into libelant's lighter along-side. and weighed in transit by a custom-house weigher. This weight could only be obtained at the custom-house after the returns were filed. There is no settled custom here as to payment of freight before or during discharge. Before discharge notice was sent to the consignee. requiring payment of freight before delivery. He replied that he would pay When the weight was ascertained. As soon as the ore was on the lighter, and before the exact. weight was ascertainable, the vessel attached the ore for the freight; and on the next day a cross-libel was filed for damages for refusal to deliver, no tender having been made. Held. that both actions were prematurely brought. and that the libelant should pay all costs and expenses incident to the premature filing of the original libel. . . A libel (atally defective cannot be sustained through a supplemental bill letting up matters .but a supplemental libel may, for Quse,be allowed to stand as an orlgfnal lIbel as of that date.
B.u!:E-ADHlBALTy-PLEADING-SUPPLEMENTAL COMPLAINT.
'Reportedb,y Edward G. Benedict, Esq., of the New York bar.
HENDERSON
v.
THREE HUNDRED TONS
OF
IRON ORlIl,
37
8
SAME-REFUSAL TO DELIVER CARGO-CCRVERSION
The supplemental cross-libel set up a proper tender made after the weight was ascertained, and the vessel's refusal to H6ld, that such refusal 'was not evidence of any co.nversion of the ore, a.nd would not sustain an 8r';tion of trover, or any cross-libel, as the ore was at the time in the custody 0: 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 consignee's remedy was in the original suit only. 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 tention of the res pendente lite, nor for the sale by order of the court pendent8 lite, under such circumstances. In general no dam'ages are recoverable for de· tention under attachment, except as provided by statute.
"
SAME-SALE OF CARGO PENDENTE LITE-DAMAGES ON ATTACHMENT.
D.
SAME-DELIVERY OF CARGO-WEIGHING-BILL OF LADING.
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 primafaefe evidence of the weight delivered, and weighing is the duty of the ship.
In Admiralty. Libel for freight, and cross-libel for damage in vessel'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 being paid by the receiver at the rate of 11 shillings sterling per ton of 20 cwt. delivered, as per margin, with primage accustomed." Among the conditions of the bill oflading is "weight unknown." The discharge of the ore from the steamer into a canal-boat sent. along-side by the consignee for the purpose of receiving the ore, was commenced on Apri128th, and finished on the afternoon of May 4th. The weight was taken on the steamer's deck, during the discharge, by a custom-house weigher, (detailed there for the purpose of ascertaining duties,) in accordance with the long practice for ship and consignee to accept the weight as thus ascertained. The treasury regulations forbid the weight to be made known except through the custom-house, after the weigher's returns are filed; A bill for freight, as for 300 tons, as per bill of lading, was made out and sent to the consignee on May 2d. There is no settled or uniform custom in this port as respects payment of freight before or the 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. On May 4th, shortly before the discharge into the canal-boat was pleted, notice thereof was given to Mr. Marvel, and that the freight must be 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 lette{of
same date he demanded oerijficate,of weight to him. The exact weightcouldnnbt be obtained·'Ifr0m·the custom-hbuse. until May 6th, when if Was fch;md to beabout' :28 cwt. short of. 300 tons.. At :about 4 ,O(thl;l 4th, after all,theore had boon put into the canalboat, Henderson Bros. caused; the. ore to be attaehed by the marshal upon a libel 'filed iIi this c0l;1rt 01:.1 .that day. On May 5th, the consignee filed the cross-libel. claiming $3,000 damages for an alleged willful and wrongful refusal 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 thaIl the former bill. On the 10th, a tender o(the true freight was made by Marvel,and delivery of the ore demanded, which was refused withdut explanation; presumably on aol:lount of the 'two suits pending and the charges therein. Mr. Marvel deSigned to send the are to Jersey City; but when it was attached no tug was present toreIl1ove it; and the captain .of the canalboat testified that he was notified by Henderson's dock clerk not to take her llway until the was settled, and that he agreed not to do so. The are remained in marshal's possession until sold by him as perishable under the order of this court dated May 23d, after due notice to the consignee and his proctors; the consignee having taken no steps to bond the are as he might done. It brought $1,230,-about $900 less than its value, as claimed by the consignee. Both parties were .of abundant pecuniary responsibility,and .0Cgood standing.. .. . Wing, Shoudy Ptttnam, (a.. O.l)urlinaham, of counsel,) for the steamer. & consignee. . . . BROWN, stating the/acts above.) This controversy has grown , out of an attempt of Henderson Bros., in conjunction with the managers to establish a regulation for the , of other lines of Medit!lrranean provisional I'll-yment of freight Itt their respective offices according to weiglJ.ts namep. in the bills of lading, before the actual delivery of the goods, leaving the correction of any errors therein to future adjustment. after the weightis ascertained; like the custom-house usage in the provisional and final liquidation of duties. A joint circolar to this end was previously issoed in December, 18.81, which seems not to have reached Mr. Marvel. . ' payment ofJreight;an,li delivery of the cargo, as a whole, areby the legal rule made concurrent acts, great practical arise, if the quantity is large, and each side stands on its legal rights. The amount may be so great that part. of ,the cargo may have to be removed before the rest is discharged;.. ap.d., if the consignee refuses to pay pro rata 'frejght on what is removable,or.to give security for payment, the ship is noi bound to, deliver piecell)eal, and may remove and store such parts as are necessary to be removed at. the consignee's expense. Brittan v. Barnaby, 21HQw. 527, .534; The Kathleen Mary, 8 Ben. 165, 170. See The Tanqier, 3.2 F.ed. Rep. 230. .. . 1. The of the terms of this bill oflading was to make payJI,lerit of freight and delivery of the goods concurrent. Although the bill "
as
.'
.