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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: 
1:12-cv-02034 Search Pacer
Opposing Party: 
Indemnity Insurance Company of North America
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Mar 20 2012

"FIRST CAUSE OF ACTION
(Schedule A Claim)

7. Plaintiff repeats and realleges the allegations in paragraphs 1 through 6 of this complaint.

8. This cause of action arises under a treaty of the United States, specifically 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”).

9. Under the Montreal Convention there is a presumption that damage and loss to shipments subject thereto arose during the period of transportation by air.

10. There is also a presumption under the Montreal Convention that the air carrier and/or its servants and agents are liable for damage sustained to shipments moving thereunder.

11. At all material times defendants Expeditors International GmbH and Expeditors International of Washington, Inc. were engaged in the business of international carriage of cargo by air as indirect air carriers and with respect to the provision of services related to such carriage.

12. On or about March 25, 2010 defendants Expeditors International GmbH and/or Expeditors International of Washington, Inc. contracted for agreed consideration to provide such air carriage services from Germany to the United States with respect to a shipment of video card transformers owned by plaintiff’s subrogor International Control Technologies GmbH and ITT Corporation.

13. The shipment of video card transformers weighing 514 kilograms was received into defendants custody at or near Frankfurt, Germany, in good order and condition for intended air carriage to the United States.

14. For the shipment Expeditors International GmbH air waybill 4560139941 dated March 25, 2010 was issued.

15. At the time of delivery by defendants to the consignee in the United States (ITT Kaliburn of Ladson, South Carolina), the shipment of video card transformers was in damaged conditioned and an exception was noted on the Expeditors’ delivery order.

16. Said damage was the result of defendants’ fault, recklessness, wanton neglect, and willful misconduct in that defendants, their agents and servants, including ground-handling agents, failed to properly handle, package, protect, carry, transfer, and care for the cargo in question and in that defendants had no proper and effective procedures to receive, handle, package, protect carry, transfer and care for the cargo

17. By reason of the aforesaid plaintiff, and those on whose behalf it sues, has sustained damages in the amount of $7,183.35 for the Schedule A claim, no part of which has been paid although duly demanded.

SECOND CAUSE OF ACTION
(Schedule B Claim)

18. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 through 6 of this complaint.

19. This cause of action arises under the Court’s admiralty and maritime jurisdiction and involves a claim pursuant to Rule 9(h) Federal Rules of Civil Procedure. Plaintiff’s cause of action for the Schedule B claim also involves a statute of the United States, specifically the Carriage of Goods by Sea Act (“COGSA”), 49 Stat. 1207 (1936), reprinted in note following 46 U.S.C. § 30701.

20. Under COGSA the carrier has a nondelegable duty to properly load, stow, carry, deliver and care for shipments entrusted to it.

21. At all material times defendant Expeditors International of Washington, Inc. also doing business as Expeditors International Ocean, was engaged in the business of international carriage of cargo by water for hire, including in the capacity of a nonvessel operating common carrier (NVOCC).

22. This cause of action arises from damage, including water damage, to a shipment of 865 cartons of textiles and apparel moving in carrier-provided container CAIU4073856 from China to the United States as described in Expeditors International Ocean bill of lading 62R0019303 (booking MOLU11006222841) dated August 24, 2011.

23. When the cargo was received into the care, custody and control of Expeditors International of Washington, Inc. d/b/a Expeditors International Ocean, or those entities acting on their behalf, the cargo was in good order and condition.

24. However, said defendant failed to make delivery of the entire cargo at the intended destination in the same order and condition. Instead the cargo was in damaged and depreciated condition at the time of delivery and this rendered it unfit for intended usage.

25. The damage sustained to the Schedule B shipment arose in whole or in part from reported water ingress into carrier provided container CAIU4073856.

26. The aforesaid damage was caused by defendants’ reckless failure to properly load, stow, carry, protect, store, care for and deliver the subject cargoes and the unseaworthiness of the carrying vessel and container.

27. By reason of the aforesaid plaintiff, and those on whose behalf it sues, has sustained damages in the amount of $8,005.99 for the Schedule B claim, no part of which has been paid although duly demanded.
WHEREFORE, plaintiff demands judgment against defendants jointly and
severally:
(a) for the sum of $15,189.34;
(b) for prejudgment interest at the rate of 9% per annum;
(c) for court costs, litigation expenses, and attorneys fees for this action; and
(d) for such other and further relief as this Court deems 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.

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