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

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. LUFTHANSA CARGO AG 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: 
1:14-cv-04695 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Jun 26 2014

Plaintiff, Indemnity Insurance Company of North America a/s/o The Home Depot (USA),
Inc.,(hereinafter "Home Depot" or "plaintiff) by and through its attorneys, Casey & Barnett,
LLC, as and for its Complaint, alleges upon information and belief as follows:
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.
2. At all material times, Indemnity Insurance Company of North America
(hereinafter "UNA" 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 10 Exchange Place,
Jersey City, New Jersey 07302 and was the subrogated underwriter of a consignment of
chocolates, as more specifically described below.
3. At all material times, Home Depot 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
2455 Paces Ferry Road, C-20, Atlanta, GA 30339, and was the owner, consignee and/or assured
of the consignment of Copper Planters that is the subject matter of this litigation.
4. At all material times, defendant, Evergreen Marine Corp (Taiwan) Ltd.
(hereinafter "Evergreen" and/or defendant) 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 c/o Evergreen
Shipping Agency (America) Corp., One Evertrust Plaza, Jersey City, New Jersey 07302, and was
at all times acting in the capacity of a common carrier and at all relevant times was and is doing
business within the jurisdiction of this Honorable Court.
5. At all material times, the M/V STADT FREIBURG was a diesel-powered, oceangoing
vessel engaged in the common carriage of cargoes on the high seas and may be within the
jurisdiction of this Honorable Court during the pendency of process hereunder.
6. At all material times, defendant was and still are engaged in the business of
common carriage of merchandise by water for hire, and owned, operated, managed, chartered,
and/or otherwise controlled the M/V STADT FREIBURG, as a common carrier of merchandise
by water for hire.
7. Plaintiff brings this action on its 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 consignment, as
their respective interests may ultimately appear, and Plaintiff is entitled to maintain this action.

RELEVANT FACTS
8. On or about January 9, 2014, a consignment, consisting of 4800 cartons Copper
Planters laden into container EMCU 9482662, then being in good order and condition, was
delivered to the M/V STADT FREIBURG and to defendant Evergreen and/or its agent at
Shanghai, China for transportation to Los Angeles, CA, in consideration of an agreed upon
freight, pursuant to Evergreen bill of lading number EGLV 142353240305, dated January 19,
2014 and the aforementioned bill of lading was issued.
9. During the ocean transit from China to California the vessel encountered a storm
which caused physical damage to, inter alia, the aforementioned container laden with Plaintiffs
Planters and which container was lost overboard.
10. As a result of the loss of the container, Home Depot sustained a loss.
11. The loss of the cargo 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 defendant.
12. At all times relevant hereto, a contract of insurance for property damage was in
effect between Home Depot and IINA, which provided coverage for, among other things, loss or
damage to the consignment.
13. Pursuant to the aforementioned contract of insurance between Home Depot and
IINA, monies have been expended on behalf of Home Depot to the detriment of IINA due to the
damages sustained during transit.
14. As IINA has sustained damages as a result of said expenditures, expenditures
rightly the responsibility of the defendant, IINA has an equitable right of subrogation and is
subrogated, to the extent of its expenditures, to the rights of its insured with respect to any and all
claims for damages against the defendant.
15. By reason of the foregoing, plaintiff has been 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 $15,640.00.

AS AND FOR A FIRST CAUSE OF ACTION
16. Plaintiff repeats, reiterates and realleges each and every allegation set forth in
paragraphs 1 through 15, inclusive, as if herein set forth at length.
17. During the course of the Pacific Ocean crossing, the vessel encountered weather
conditions such that seas washed across the weather deck of the vessel and causing container
EMCU 9482662 to be washed overboard.
18. The defendant and M/V STADT FREIBURG failed to deliver the cargo to
plaintiff at destination in the same good order and condition as when received by defendant at the
port of loading.
19. The loss of the aforementioned consignments of Planters did not result from any
act or omission on the part of plaintiff or on the part of the shipper, but to the contrary, was the
result in whole or in part, of the negligence and/or fault of defendant and/or the unseaworthiness
of the M/V STADT FREIBURG.
20. By reason of the foregoing, plaintiff has sustained damages in the total amount of
$15,640.00 plus expenses, no part of which has been paid, although duly demanded.

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 plaintiff against defendants for the
amount of plaintiffs damages in the amount of at least $15,640, together with interests, costs and
the disbursements of this action; and
3. 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.