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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 ZIM CONSTANZA 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-05284 Search Pacer
Opposing Party: 
Indemnity Insurance Company of North America
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Jul 29 2011

"RELEVANT FACTS

7. On or about December 24, 2010, a consignment consisting of 4,826 cases of ice cream, laden into container ZCSU 5972880, then being in good order and condition, was delivered to the M/V ZIM CONSTANZA and to Zim at Tilloy-les Mofflaines, France for transportation to Ashod, Israel via Antwerp, Belgium, in consideration of an agreed freight, pursuant to Zim bill of lading number ZIMUANR2061790 dated December 24, 2010.

8. Zim agreed to maintain a temperature between -26°C and -28°C during the time the container was within the care, custody and control of Zim and/or its agents.

9. Thereafter, the aforementioned consignment was loaded aboard the M/V ZIM CONSTANZA, Zim bill of lading number ZIMUANR2061790 was issued and the vessel sailed for its intended destination.

10. Between Dec 30, 2010 and Jan 16, 2011 the container's refrigeration system was malfunctioning, leading to fluctuating temperatures higher than required for the transport of ice cream, up to -6.5 °C, instead of the instructed -26°C.

11. On Jan 17, 2011 the consignment was unloaded from container ZCSU 5972880 and re-loaded into container JXLU 5820893 at Overseas Cargo Terminal, Ashdod Port, Israel.

12. On Jan 26, 2011 the Ministry of Health issued a certificate stating that it was not possible to release the cargo, due to temperature irregularities noted in the container's Temperature Log Report.

13. The consignment was then destroyed.

14. As a result of the damages sustained to the consignment, GMI sustained a loss.

15. The damage 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, and breach of contract of carriage and bailment on the part of the defendants.

16. At all times relevant hereto, a contract of insurance for property damage was in effect between GMI and IINA, which provided coverage for, among other things, loss or damage to this consignment of ice cream.

17. Pursuant to the aforementioned contract of insurance between GMI and IINA, monies have been expended on behalf of GMI to the detriment of IINA due to the damages sustained during transit.

18. As IINA has sustained damages as a result of said expenditures, expenditure rightly the responsibility of the defendants, 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 defendants.

19. 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 $84,490.87.

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 $84,490.87, 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.

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