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

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. M/V EVER POWER 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: 
1:11-cv-06880 Search Pacer
Opposing Party: 
Indemnity Insurance Company of North America
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Sep 30 2011

"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 "INA" 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 140 Broadway, 40' Floor, New York, New York 10005 and is the subrogated underwriter of a consignment of frozen shrimp laden on board the M/V EVER POWER, as more fully described below.

3. At all material times, NATIONAL FISH AND SEAFOOD, INC., (hereinafter "NFS" 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 11-15 Parker Street, Gloucester, Massachusetts 01930 and was the owner, consignee, and/or assured of a consignment of frozen shrimp, as more fully described below.

4. At all material times, defendant, ORIENT OVERSEAS CONTAINER LINE, LTD. (hereinafter "OOCL") was and is a foreign corporation with an office and place of business located at 2633 Camino Ramon, Suite 400, San Ramon, California 94583 and owns, operates, manages and/or charters ocean-going vessels, including the MTV EVER POWER (hereinafter "vessel"), that operate between various foreign and domestic ports and, in particular, within this district and was the owner, owner pro hac vice, charterer, manager and/or operator of the M/V EVER POWER, 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 EVER POWER was and is an 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. 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.

7. On or about August 31, 2010, a consignment consisting of 2,370 cartons of frozen shrimp laden into container number OOLU6174727, then being in good order and condition, was delivered to defendants OOCL and the M/V EVER POWER at the port of Ho Chi Minh, China for transportation to Dallas, Texas, U.S.A. via the port of Los Beach, California, in consideration of an agreed freight, pursuant to OOCL bill of lading number OOLU3059111560, dated August 31,2010.

8. Thereafter, the aforementioned consignment was loaded aboard the M/V EVER POWER, OOCL bill of lading number OOLU3059111560 was issued, and the vessel sailed for the intended port of destination.

9. When the consignment of frozen shrimp was booked for transit with OOCL, OOCL agreed to maintain the temperature of the container at -21° Celsius.

10. During transport, OOCL failed to maintain the container at the requested carrying temperature of -21° Celsius, which caused the shipment of frozen shrimp to suffer temperature related damages.

11. The loss to the aforementioned 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 breach of bailment on the part of the defendants.

12. 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 $55,000.

13. At all times relevant hereto, a contract of insurance for property damage was in effect between NFS and INA, which provided coverage for, among other things, loss or damage to the consignment.

14. Pursuant to the aforementioned contract of insurance between NFS and FNA, monies have been expended on behalf of NFS to the detriment of INA due to the damages sustained during transit.

15. As IN A has sustained damages as a result of said expenditures, expenditures rightly the responsibility of the defendants, INA 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 of against the defendants.

16. Plaintiff and its predecessors in title have performed all of the conditions precedent on their part to be performed under the terms of the said contract.

WHEREFORE, Plaintiff prays:

1. In rem service of process be issued against the M/V EVER POWER, her engines, boilers, tackle, furniture, apparel, etc.; that the vessel be seized and that all those claiming an interest in her be cited to appear and answer under oath both all and singular the matters aforesaid;

2. If the in personam defendants cannot be found within this District, then all their property within this District be attached in the amount of $55,000 with interest thereon and costs, the sums sued for in this Complaint;

3. The M/V EVER POWER, her engines, boilers, tackle, furniture, apparel, etc., be condemned and sold to satisfy the judgments herein in favor of plaintiff;

4. The Court order, adjudge and decree that defendants ORIENT OVERSEAS

CONTAINER LINE, LTD. and the M/V EVER POWER be found joint and severally liable and pay to plaintiff the losses sustained herein, together with pre-judgment and post judgment interest thereon and their costs; and,

5. 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.

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