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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

CONTINENTAL INSURANCE COMOPANY et al v. DEUGRO (USA) INC

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
4:12-cv-03370 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of Texas
Date Filed: 
Nov 15 2012

"V. COUNT 1 - BREACH OF CONTRACT
13. At all relevant times, McDermott and deugro's relationship was governed by the Agreement whereby deugro would provide McDermott cost effective and expeditious custom house brokerage services, coordination, forwarding and transportation of similar services to designations selected by McDermott. Provisions of the Agreement were to prevail over any conflicting provisions in any purchase order, shipment documents, bill of lading, power of attorney or other document. As part of its agreement, deugro agreed to be responsible for all loss or damage to McDermott's cargo caused by the acts, omissions and/or negligence of deugro and/or its subcontractors. Specifically, deugro agreed to the following:

8.4 LIABILITY FOR COMPANY'S PROPERTY
Contractor shall be responsible for and defend, indemnify and hold Company Group harmless from and against, all loss or damage to the Materials or other cargo caused by the acts, omissions and/or negligence of Contractor and/or its subcontractors, including material packers.

14. After the loss, McDermott presented a written claim for damage to the APV Skid Assembly No. 1 to deugro. To date, deugro has not been responsible for or otherwise indemnified McDermott for damages to the APV Skid Assembly No. 1. Accordingly, deugro is in breach of the Freight Forwarding Services Agreement for failure to fully indemnify McDermott for all damages sustained.

VI.
COUNT 2 - NEGLIGENCE

15. In the alternative, deugro owed McDermott a duty to exercise reasonably prudent and ordinary care in transporting and/or storing McDermott's cargo. Defendant breached this duty by negligently transporting and/or storing the cargo and by failing to select adequate and competent contractors to assist with transportation of McDermott's cargo. Defendant deugro's negligent acts and omissions include, but are not limited to:

(a) failing to act with due and reasonable care under the circumstances so as to protect the cargo from harm;
(b) failing to exercise reasonable care in performing services in connection with the transportation and/or delivery of the cargo;
(c) failing to hire competent carriers, agents and/or employees to transport the cargo; and
(d) otherwise failing to exercise due care under the circumstances. Each of the above-referenced acts and omissions, singly or in combination with others, constituted negligence, which proximately caused the damages incurred by Plaintiffs.

VII.
COUNT 3 - RES IPSA LOQUITUR

16. In addition to the specific acts and omissions enumerated above, Plaintiffs alleges that deugro is liable pursuant to the doctrine of res ipsa loquitur. The cargo was within the exclusive direction and control of deugro and its contractors when this loss occurred. The incident is not the kind that would ordinarily occur in absence of negligence. Plaintiffs did not commit any voluntary act which in any way contributed to the loss or damages incurred by Plaintiffs.

VIII.
COUNT 4 - BAILMENT

17. In the alternative, delivery to and acceptance of the cargo by deugro constituted a bailment. The bailment was created for the mutual benefit of McDermott and deugro. This bailment imposed a duty on deugro to properly and reasonably care for the cargo and to select competent contractors to transport the cargo while it was in its possession, care, custody and control. On or about November 16, 2011, deugro and/or its contractor took possession, custody and control of the cargo in a good marketable condition. However, after taking possession of the cargo but prior to its arrival in Singapore, and while still under the possession, custody and control of deugro and its contractors, the cargo was rendered a total loss. As a result of deugro's failure to exercise the requisite care, Plaintiffs suffered the loss of its property as set forth above and incurred damages.

IX.
DAMAGES

18. As a direct and proximate result of deugro's conduct, McDermott suffered damage to its cargo. The damages sustained were tendered to the Insurer Plaintiffs for payment in the amount of $367,728.72, which represented the scheduled value of the APV Skid Assembly No. 1 and associated costs. Pursuant to its legal, equitable and contractual rights of subrogation, the Insurer Plaintiffs now bring this action seeking this sum from deugro. In addition, McDermott seeks damages which were not covered under its insuring policy in an amount in excess of $500,000.00.

X.
JURY DEMAND

19. Plaintiffs respectfully request that this Court empanel a lawful jury to hear this case.

20. following:
(a)
(b)
(c)
XL
PRAYER
For these reasons, Plaintiffs ask for judgment against Defendant deugro for the actual damages not to exceed to $900,000.00; prejudgment and postjudgment interest; costs of suit; and"

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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