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INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. M/V COSCO NAGOYA et al

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Case Number: 
1:14-cv-07421 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Sep 12 2014

Plaintiff, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA a/s/o
VERMEER MANUFACTURING COMPANY, INC., by and through its attorneys, Casey &
Barnett LLC, as and for its Complaint, alleges upon information and belief as follows,

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

PARTIES
2. 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 two consignments of Agricultural Balers laden on board the M/V
COSCO NAGOYA, as more specifically described below.
3. At all material times, VERMEER MANUFACTURING COMPANY, INC.
(hereinafter "Vermeer" 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 1210 Vermeer Road
East, Pella, Iowa 50219 and was the owner/consignee of two consignments of Agricultural
Balers laden on board the M/V COSCO NAGOYA, as more specifically described below.
4. At all material times, defendant M/V COSCO NAGOYA (hereinafter "the
vessel") is an ocean going container ship owned and operated by defendants, as more specifically
described below, that carried containerized cargo which is the subject matter of this lawsuit, from
Germany to the United States.
5. At all material times, defendant JASMINE SHIPPING SA (hereinafter "Jasmine")
was and is a corporation with an office and place of business located at Banco General Tower,
Aquilino de la Guardia Street, Marbella, Panama City, Panama, was and is the owner of the M/V
COSCO NAGOYA and at all relevant times, was and is still doing business within the
jurisdiction of this Honorable Court.
6. At all material times, defendant, EXPEDITORS INTERNATIONAL OF
WASHINGTON, INC. d/b/a EXPEDITORS INTERNATIONAL OCEAN (hereinafter
"Expeditors") 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 1015 Third Avenue, 12th Floor, Seattle, WA
98104 and at all relevant times, was and is still doing business within the jurisdiction of this
Honorable Court as a non vessel owning common carrier.
7. At all material times, defendant, HANJIN SHIPPING COMPANY (hereinafter
"Hanjin") 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 4300 North Point Parkway, Ste 103, Alpharetta,
GA 30022 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.
8. 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 consignments,
as their respective interests may ultimately appear, and plaintiff is entitled to maintain this action.

AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
9. Plaintiff repeats, reiterates and realleges each and every allegation set forth in
paragraphs 1 through 8, inclusive, as if herein set forth at length.
10. In December 2013, a consignment consisting of 6 packages Agricultural
Machinery, laden in container numbers HJCU 1278010 and HJCU 1527339, then being in good
order and condition, was delivered to the M/V COSCO NAGOYA and to Expeditors and Hanjin
and/or their agents in Bremerhaven, Germany in consideration of an agreed upon freight,
pursuant to Expeditors bill of lading number 623601488 dated December 18, 2013 for
transportation to Pella, Indiana via Norfolk, Virginia and to a certain bill of lading issued by
Hanjin.
11. Thereafter, the aforementioned consignment was loaded aboard the M/V COSCO
NAGOYA and the vessel sailed for its intended destination.
12. On or about December 23,2013, while the vessel was enroute to the United States
and in the Atlantic Ocean, the vessel encountered severe weather conditions, which resulted in
the loss of a number of containers overboard, including the two containers laden with plaintiffs
cargo.
13. As a result of the foregoing, Vermeer suffered a loss of its cargo valued at
$190,414.78.
14. 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 its agents and/or the
unseaworthiness of the M/V COSCO NAGOYA.
15. At all times relevant hereto, a contract of insurance for property damage was in
effect between Vermeer and IINA, which provided coverage for, among other things, loss or
damage to the subject consignment.
16. Pursuant to the aforementioned contract of insurance between Vermeer and IINA,
monies have been expended on behalf of Vermeer to the detriment of IINA due to the damages
sustained during this transit.
17. 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.
18. 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 $190,414.78.

AS AND FOR A SECOND CAUSE OF ACTION
19. Plaintiff repeats, reiterates and realleges each and every allegation contained in
paragraphs 1 through 18, inclusive, as if herein set forth at length.
20. At the time of the aforementioned non-delivery to the shipment occurred,
defendants together with the entities they hired to act on their behalf, wee acting as bailees of the
shipment and in their own capacity, or through their contractors, agents, servants, or sub-bailees,
had a duty to safely and properly keep, care for and deliver the shipment in the same good order
and condition as when entrusted to them. Defendants also had a duty to ensure that the services
provided for the shipment were performed with reasonable care and in a non-negligent and
workmanlike manner.
21. Defendants breached their duties and obligations as bailees by failing to deliver
said shipment.
22. 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 $190,414.78.
AS AND FOR A THIRD CAUSE OF ACTION
23. Plaintiff repeats, reiterates and realleges each and every allegation contained in
paragraphs 1 through 22, inclusive, as if herein set forth at length.
24. As the owners, operators, charterers and /or managers of the M/V COSCO
NAGOYA, defendants were responsible for properly manning, maintaining and repairing the
vessel and for otherwise exercising due diligence to ensure that the vessel was seaworthy and fit
to carry cargoes that were delivered to and loaded on board the M/V COSCO NAGOYA during
winter North Atlantic voyages.
25. The losses sustained by plaintiff were caused, in whole or in part, by the
negligence and fault of defendants, and /or their agents, representatives and independent
contractors for whose acts and omissions it was responsible, including but not limited to, their
failure to maintain the M/V COSCO NAGOYA in a seaworthy condition.
26. 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 $190,414.78.

WHEREFORE, Plaintiff prays:
1. That process in due form of law may issue against Defendant citing it to appear
and answer all and singular the matters aforesaid;
2. That judgment may be entered in favor of Plaintiff against Defendant for the
amount of Plaintiff s damages in the amount of at least $190,414.78, 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.