Henderson v. Three Hundred Tons of Iron Ore

Citations

• 38 F. 36
• 1889 U.S. Dist. LEXIS 41

Syllabus

<p>I. Shipping — Libel for Freight — Damages for Detention — When Accrues. 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 unladen 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.</p> <p>3, Same — Admiralty—Pleading—Supplemental Complaint. A libel fatally defective cannot be sustained through a supplemental' bill setting up matters subsequent; but a supplemental libel may, for cause, be allowed to stand as an original libel as of that date.</p> <p>8. Same — Refusal to Deliver Oargo — Conversion. The supplemental cross-libel sel 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 ah a'’ tion of trover, or any cross-libel, as the ore was at the time in the custody of 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.</p> <p>4. Same — Sale of Cargo Pendente Rite — Damages on Attachment.