Bird v. SS FORTUNA

• Decision Date: 31 March 1965
• Docket Number: No. 64-7-S.,64-7-S.
• Citation: 250 F. Supp. 494
• Parties: Frank W. BIRD and Russell H. Smith, doing business as Smith & Bird v. S. S. FORTUNA, her engines, boilers, etc., Norton Line, Norton, Lilly & Company, Inc., and Stockholms Rederi A/B Svea and Wiggin Terminals, Inc. S. S. FORTUNA, her engines, boilers, etc., Norton Line, Norton, Lilly & Company, Inc., and Stockholms Rederi A/B Svea v. WIGGIN TERMINALS, INC., Columbia Cornice Company, Massachusetts Port Authority, and S. Volpe & Co., Inc.
• Court: U.S. District Court — District of Massachusetts

250 F. Supp. 494

Frank W. BIRD and Russell H. Smith, doing business as Smith & Bird v. S. S. FORTUNA, her engines, boilers, etc., Norton Line, Norton, Lilly & Company, Inc., and Stockholms Rederi A/B Svea and Wiggin Terminals, Inc.

S. S. FORTUNA, her engines, boilers, etc., Norton Line, Norton, Lilly & Company, Inc., and Stockholms Rederi A/B Svea v. WIGGIN TERMINALS, INC., Columbia Cornice Company, Massachusetts Port Authority, and S. Volpe & Co., Inc.

No. 64-7-S.

United States District Court D. Massachusetts.

March 31, 1965.

John T. Bowes, Boston, Mass., for libellant.

Leo F. Glynn, Boston, Mass., for respondents and third-party libellants.

John M. Reed, Withington, Cross, Park & McCann, Boston, Mass., for third-party respondent Wiggin Terminals, Inc.

Harold Rosenwald, Boston, Mass., for third-party respondent Columbia Cornice Co.

Robert J. Hallisey, Bingham, Dana & Gould, Boston, Mass., for third-party respondent Mass. Port Authority.

Peter D. Cole, Boston, Mass., for third-party respondent S. Volpe & Co., Inc.

SWEENEY, Chief Judge.

The SS FORTUNA, on February 21, 1962, discharged at Castle Island Terminal, Boston, Massachusetts, a cargo of sisal which was damaged by water. As a result, the consignee (Smith & Bird) brought this action against the ship, her owners and operators (hereinafter referred to in the singular as Norton Line) and against the pier operator (Wiggin). Norton Line filed a cross libel against Wiggin for indemnity of any sums for which they may be liable to Smith & Bird, alleging that the damage was caused by a defective roof on the pier shed. Exceptions to the cross libel have previously been overruled. Norton Line has now filed a third-party libel against the Massachusetts Port Authority, S. Volpe & Co. and Columbia Cornice Company—the owner of the pier, the general contractor and the subcontractor who performed repairs on the shed, respectively. This third-party libel alleges that if the sisal was damaged, the damage was caused by the negligence of these respondents in repairing the roof, and by their misrepresentations of the condition and suitability of the shed for storage of cargo. Columbia Cornice Company excepts to the libel principally on the ground that it does not state a claim within the admiralty jurisdiction.

Norton Line argues in support of the libel that "the maritime jurisdiction of the Court is determined by the maritime quality of the property damaged. Since the effect of the negligent act of the respondent roofer while...