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

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. EXPEDITORS INTERNATIONAL OF WASHINGTON, INC. 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-01504 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Mar 2 2015

Plaintiff, through its undersigned attorney, alleges as follows for its  complaint
against defendants:  

1. Plaintiff Indemnity Insurance Company of North America (“IINA”) is a
Delaware Corporation  with its principal place of business in Pennsylvania and sues
herein as subrogated cargo insurer, having paid the insurance claim arising from the
claimed damage to the shipment described herein, and also sues for and on behalf of the
shipper, consignee and owner of the cargo, as their interests may now or hereafter appear.
2. Defendant Expeditors International of Washington, Inc. (“Expeditors”) is
believed to be a corporation organized under the laws of, and with its principal place of
business in,  the State of Washington with a registered agent within the jurisdiction of this
Court in care of C T Corporation System,  111 Eighth Avenue, New York, New York,
10011 and was at all material times engaged in the business of a common carrier of
cargo, and the provision of services related thereto.
3. Defendant China Airlines Ltd. (“China Airlines”) also doing business as
China Airlines,  is believed to be an alien corporation organized under the laws of a
foreign sovereign with its principal place of business in Taoyuan, Taiwan, Republic of
China, and was at all material times engaged in the business of a common carrier of
cargo, and the provision of services related thereto.
 4. This Court has jurisdiction over the persons of the defendants, who
conduct business in the State of New York, including the pickup and delivery of
shipments in New York and the provision of services to entities domiciled in New York.
5. This Court has federal question subject matter jurisdiction pursuant to 28
USCA 1331.  There is also diversity, ancillary and supplemental jurisdiction as to certain
aspects of the claim in suit.  The amount in controversy, exclusive of interest and costs,
exceeds $75,000.00.  Plaintiff seeks recovery for cargo damage caused by defendants’
breaches of contract and torts.

FIRST  CAUSE OF ACTION
Breach of Contract and/or Duties under  
The Warsaw and/or Montreal Convention
(Against All Defendants)
 6. Plaintiff repeats and realleges the allegations in paragraphs 1 through 5 of
this complaint.
 7. This cause of action arises under a treaty of the United States, specifically
the Convention for the Unification of Certain Rules Relating to International
Transportation by Air, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49
U.S.C. Sec. 1502 (the "Warsaw Convention"), and certain amendments, protocols and
successor treaties thereto in effect in the country of origin and destination at the time of
shipment or as may be applicable by the contract between IINA’s subrogor and
Expeditors, including but not limited to a certain Global Air Freight Transportation
Contract.  Alternatively, this cause of action is governed by the Convention for
Unification of Certain Rules for International Carriage by Air, Done at Montreal on 28
May 1999, reprinted in S. Treaty Doc. No 106-45, 1999 WL 33292734 (2000) (entered
into force Nov. 4, 2003) (“Montreal Convention”).
 8. This action arises from damage to a Model CF6-80  aircraft engine (Serial
No. 706351)  with a gross weight of 7,160 kilograms as further described in Expeditors
air waybill JFK 4060483065  dated on or about March 1, 2013 and China Airlines  air
waybill 297-JFK 08962752  dated on or about February 28, 2013 (hereinafter “the
Shipment’). (Expeditors Claim No. 13-108894; G.E. Claim Ref.: 13-104168).
 9.  The Expeditors air waybill represented that the Shipment was carried
from New York, NY, to Taipei on Flight CI/5319/03.  
10.  The China Airlines waybill represented that the Shipment was carried
from New York, NY, to Taipei on Flight CI/5321/02.
11. Plaintiff’s subrogor General Electric Company/GE Aviation was at all
material times the shipper of the Shipment and the entity with ownership interest and risk
of loss during the subject transportation.  
12. Although the Shipment was in good order and condition when it was
received by defendants at or near New York, NY,  it was in damaged condition at the
time of delivery by defendants at or near Taipei and said damage was not due to any
event or circumstances which would give rise to a defense or exception to liability on
behalf of defendants.
13. Said damage to the Shipment was proximately caused by defendants’
fault, gross negligence, recklessness and/or willful misconduct in that defendants, their
agents, servants, connecting carriers, subcontractors, terminal operators, warehousemen
and employees failed to properly receive, handle, carry, consolidate, protect, transfer and
care for the cargo in question and in that defendants had no proper and effective
procedures to properly receive, handle, carry, consolidated, protect, lash, secure, transfer
and care for the cargo.
 14. By reason of the aforesaid plaintiff, and those on whose behalf it sues,  
sustained damages in the amount of $166,065.80, including but not limited to expenses to
repair, recondition and refurbish the aircraft engine, no part of which has been paid
although duly demanded.
 15. The damages plaintiff seeks to recover include the $50,000.00 deductible
interest of plaintiff’s subrogor General Electric Co./GE Aviation.
          16. Plaintiff sues herein on its own behalf and as agent and trustee for and on
behalf of anyone else who may now have or hereafter acquire an interest in this action.

SECOND  CAUSE OF ACTION
Breach of Bailment Obligations
(Against All Defendants)
         17. Plaintiff repeats and realleges the allegations set forth in paragraphs 1
through 5 and 8 through 16 of this complaint.
        18. When the Shipment was received into the care, custody and control of
defendants, or entities acting on their behalf, it was in good order and condition.  
However, defendants failed to make delivery of the cargo at the intended destination in
the same order and condition. Instead, the Shipment was  in damaged and depreciated
condition, which rendered it unfit for intended purposes.
 19. The damage to the Shipment was not caused by events or circumstances
which would constitute a defense to liability.
 20. In particular, said damage was not caused by an act of God, the public
enemy, or the authority of law, the act or default of the shipper or owner, or the inherent
nature of the goods.
21. Therefore, defendants as common carriers, bailees, forwarders, and/or
warehousemen-for-hire, are liable to plaintiff for claimed damage to the Shipment.
22.  By reason of the aforesaid plaintiff, and those on whose behalf it sues,  
sustained damages in the amount of $166,065.80, including but not limited to expenses to
repair, recondition and refurbish the aircraft engine, no part of which has been paid
although duly demanded.

THIRD  CAUSE OF ACTION
Negligence and/or Recklessness, and/or Willful Misconduct
 (Against All Defendants)
     23. Plaintiff repeats and realleges the allegations set forth in paragraphs 1
through 5 and 8 through 16 of this complaint.
 24. At all material times defendants had a duty in relation to the Shipment to
properly handle, store, build-up, prepare for transit, secure, lash, carry, protect and care
for the cargo in question
 25. The damage to the Shipment was caused by defendants’ negligence,
recklessness, wanton neglect, and willful misconduct in that defendants, their agents,
servants, ground-handlers,  connecting carriers, subcontractors, terminal operators, truck
drivers, warehousemen and employees failed to properly handle, store, build-up, prepare
for transit, secure, lash, carry, protect and care for the cargo in question and in that
defendants had no proper and effective procedures to properly handle, store, build-up,
prepare for transit, secure, lash, carry, protect and care for the Shipment.
 26. As a result of the aforesaid, defendants have caused damage to plaintiff,
and those on whose behalf it sues,   in the amount of $166,065.80, no part of which has
been paid although duly demanded.
 WHEREFORE, plaintiff demands judgment against defendants Expeditors
International of Washington, Inc. and China Airlines Ltd,  jointly and severally and
without limitation of any kind:
  (a) for the sum of $166,065.80;   
  (b) for prejudgment interest at the rate of  9% per annum;
  (c) for the costs and disbursements of this action;
(d) for such other and further relief as this Court deems proper and
just, including an award of reasonable attorneys fees.

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.