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

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA et al

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: 
1:15-cv-09941 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Dec 21 2015

Plaintiff, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA a/s/o
CAPSUGAL HOLDING USA, INC. by and through its attorneys, Casey & Barnett LLC, as

and for their Complaint, allege upon information and belief as follows:

JURISDICTION

  1. This is an admiralty and maritime claim within the meaning of Rule 9(h) of the
    Federal Rules of Civil Procedure. Jurisdiction is predicated upon 28 U.S.C. §1333.

PARTIES

  1. At all material times, INDEMNITY INSURANCE COMPANY OF NORTH
    AMERICA (hereinafter “IINA” or “Plaintiff’) was and is a corporation with an office and place

of business located at 1133 Avenue of the Americas, New York, New York 10036, and is the
subrogated underwriter of nine consignments of Apparel, as more specifically described below.

  1. At all material times, Capsugal Holding USA Inc., (hereinafter “Capsugal” or
    “Plaintiff’) was and is a corporation organized and existing by virtue of the laws of a foreign
    state with an office and place of business located at 535 North Emerald Road, Greenwood, South
    Carolina 29646 and was the owner/consignee of 12 Pallets Medical Supplies laden on board the
    M/V MAERSK MISSOURI, as more specifically described below.
  2. At all material times, defendant, A.P. MOLLER-MAERSK SA. (hereinafter
    “Maersk”) was and is a corporation organized and existing by virtue of the laws of a foreign state
    with an office and place of business located at 2 Giralda Farms, Madison, New Jersey 07940 and
    at all relevant times, was and is still doing business within the jurisdiction of this Honorable
    Court as a common carrier of goods for hire.
  3. At all material times, defendant, Pantainer (HK) Limited (hereinafter “Pantainer”)
    was and is a corporation organized and existing by virtue of the laws of a foreign state with an
    office and place of business located at Beacon Lakes Corporate Park, Bldg 10, 12430 NW 25
    Street, Suite 100, Miami, FL 33182 and at all relevant times, was and is still doing business
    within the jurisdiction of this Honorable Court as a common carrier of goods for hire.
  4. Plaintiff brings this action on their own behalf and as agent and/or trustee on
    behalf of and for the interest of all parties who may be or become interested in the said
    consignments, as their respective interests may ultimately appear, and plaintiff is entitled to
    maintain this action.
  5. On November 27, 2014, a consignment consisting of 12 Pallets Medical Supplies,
    consigned to Roxane Laboratories and laden in container MWCU 6822643, then being in good

order and condition, was delivered to the M/V MAERSK MISSOURI and to Maersk and
Panalpina and/or their agents in Bomum, Belgiium in consideration of an agreed upon freight,
pursuant to a Maersk bill of lading and pursuant to Panalpina bill of lading number ANR007081
dated December 3, 2014, for transportation to Charleston, South Carolina via Rotterdam, The
Netherlands.

  1. The plaintiff shipper provided temperature instructions to Panalpina and Maersk
    to maintain temperatures within the container at a range between 15C and 25C at all times during
    transit.
  2. On or about December 18, 2014 the container was discharged in Charleston,
    South Carolina. On or about December 22, 2014 the container was delivered to the cargo
    receiver's designated trucker at the port in Charleston, South Carolina.
  3. On or about December 29, 2014 the container and cargo was delivered to the
    receiver.
  4. Between November 28, 2014 and December 23, 2014 - or the entire time the
    container and cargo was in the custody and control of defendants, the temperature within the
    container was outside the parameters set forth in the instructions provided by the shipper.
  5. As a result of the temperature deviation, the product was determined to be a
    constructive total loss and was destroyed. The cargo receiver refused to accept delivery of the
    cargo due to the temperature deviation.
  6. As a result of the foregoing, Capsugal suffered a loss of its cargo valued at

$75,834.00.

  1. The loss sustained by Plaintiff was not the result of any act or omission of the
    Plaintiff but, to the contrary, was due solely as the result of the negligence, fault, neglect, breach
    of contract of carriage, and bailment on the part of the Defendants and/or their agents.
  2. At all times relevant hereto, a contract of insurance for property damage was in
    effect between Capsugal with IINA, which provided coverage for, among other things, loss or
    damage to the subject consignment.
  3. Pursuant to the aforementioned contract of insurance between Capsugal with
    IINA, monies have been expended on behalf of Capsugal to the detriment of IINA due to the
    damages sustained during this transit.
  4. As IINA has sustained damages as a result of said expenditures, expenditures
    rightly the responsibility of defendants, IINA has an equitable right of subrogation and is
    subrogated, to the extent of the expenditures, to the rights of its insured with respect to any and
    all claims for damages against the defendant.
  5. By reason of the foregoing, plaintiff has sustained losses which will be shown
    with specificity at trial, no part of which has been paid, although duly demanded, which are
    presently estimated to be no less than $75,834.

WHEREFORE, Plaintiff prays:

  1. That process in due form of law may issue against Defendants citing them to
    appear and answer all and singular the matters aforesaid;
  2. That judgment may be entered in favor of Plaintiffs against Defendant for the
    amount of Plaintiffs' damages in the amount of at least $75,834.00, together with interest, costs

and the disbursements of this action; and

  1. That this Court grant to Plaintiff such other and further relief as may be just and

proper.

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.