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

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. UPS SUPPLY CHAIN SOLUTIONS, INC.

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-08319 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Oct 17 2014

Plaintiff, through its undersigned attorney, alleges as follows for its complaint
against defendants upon information and belief:
 1. Plaintiff Indemnity Insurance Company of North America (“IINA”) is a
corporation organized under the laws of, and with its principal place of business in, the
State of Pennsylvania, and has an office within this district at 1133 Avenue of the
Americas, New York, NY 10036.  
2. Plaintiff sues herein as subrogated insurer of the shipment in suit, having
paid the insurance claim of Dyncorp International LLC, who was at all material times
was the owner of the cargo, the named shipper and consignee on the air waybill issued by
defendant, and the entity which sustained damages as a result of the claimed cargo
damage and loss.
 3.  Defendant UPS Supply Chain Solutions, Inc. (hereinafter “UPS” or
“defendant”), is believed to be Delaware Corporation with its principal place of business
in the State of Georgia.
 4. UPS has a registered agent in New York and a place of business at 184-54
149th Ave, Springfield Gardens, NY 11413.
 5. This Court has in personam jurisdiction over UPS, who conducts business
in the State of New York and the United States as a whole as a common carrier, and as a
provider of services related thereto, including services pertaining to shipments to, from
and through the State of New York.
6. This Court has federal question subject matter jurisdiction pursuant to 28
U.S.C.A. § 1331 as the claim in suit arises under federal law, including federal common
law,  and/or are supplemental claims within the meaning of 28 U.S.C. § 1367 to certain of
the foregoing claims.
7. Concurrently there is diversity subject matter jurisdiction pursuant to 28
U.S.C.A. § 1332 as the citizenship of the parties is diverse and the amount in controversy,
exclusive of interest and costs, exceeds $75,000.00.
8. This action involves damage and loss to  a shipment of vaccines (NDC
9515-888-07) with a chargeable weight of 1,633.50 kilograms which were intended for
human consumption and which moved, or were intended to move, from the United States
(DFW)  to Kandahar, Afghanistan under UPS air waybill 5012029121 dated November 5,
2012 (hereinafter “the shipment”) [UPS Claim No. LG40044785]
 9. The shipment required specialized care, including temperature-abuse
protection, during all phases of transportation, handling, and storage.
10. UPS contracted to provide the requisite specialized transportation,
handling, and storage for the shipment during all of said periods of custody and control.
11. The shipment was in good order and condition when received into the
custody of UPS or entities acting on its behalf at the shipper’s door at or near Dallas.
12. During the course of transportation, handling, and storage by UPS, the
shipment sustained damage which rendered the vaccines unfit for intended distribution
and human consumption.
 13. As a result of the damage to the Shipment plaintiff, and those on whose
behalf it sues, sustained damages in the amount of $276,869.30, no part of which has
been paid although duly demanded.
          14. Plaintiff sues herein on its  own behalf and as agent and trustee for and on
behalf of anyone else who may now have or hereafter acquire an interest in this action.

FIRST CAUSE OF ACTION
(Breach of Contract and Air Treaty)
 `15. Plaintiff repeats and realleges the allegations in paragraphs 1 through 14
of this complaint.
   16. This cause of action is governed by a treaty of the United States,
specifically the Convention for the Unification of Certain Rules Relating to International
Transportation by Air, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49
U.S.C. Sec. 1502 (the "Warsaw Convention"), and certain amendments, protocols,  and
successor treaties thereto, including but not limited to the Hague Protocol, in effect in the
country of origin and destination at the time of shipment.
 17. For agreed consideration consisting of enhanced freight fees and charges,
defendant contracted to provide specialized care for each shipment during all periods of
custody and carriage, and to transport the shipments from the place of receipt  to the
place of delivery in Afghanistan.
18. Defendant recklessly breached its duties and obligations under the  
specialized carriage contract and under the applicable international  air treaty, by failing
to provided the requisite care during the transit to Afghanistan.
19. As a proximate  result of the conditions to which the shipments were
exposed during defendant’s custody, the vaccines sustained  damage and could not be
distributed or used or intended human consumption.
 20. By reason of the aforesaid plaintiff, and those on whose behalf it sues,
have sustained damages in the amount of $276,869.30, no part of which has been paid
although duly demanded.

             SECOND CAUSE OF ACTION
            (Breach of Bailment Obligations)
     21. Plaintiff repeats and realleges the allegations set forth in paragraphs 1
through 14 of this complaint.
 22. At the time  the aforementioned cargo damage occurred defendant was
acting as a bailee of the shipment and in its own capacity,  or through its 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 it at the
place of receipt in the United States.  
 23. Defendant also  had a duty to ensure that the services  provided for the
shipments were performed with reasonable care and in a non-negligent and workmanlike
manner.
 24. Defendant and/or entities acting on its behalf,  breached the aforesaid
duties and obligations and negligently redelivered  the shipment in damaged condition at
destination.
 25. As proximate result of the foregoing  plaintiff and those on whose behalf it
sues has sustained damages in the amount of   $276,869.30, no part of which has been
paid although duly demanded.

THIRD  CAUSE OF ACTION
(Negligence and/or Recklessness, and/or Willful Misconduct)
     26. Plaintiff repeats and realleges the allegations set forth in paragraphs 1
through 14, and 16 of this complaint.
 27. At all material times defendant had a duty in relation to the shipment to
properly handle, carry, refrigerate, monitor, protect, store and care for the cargo in
question.
 28. The damage to the shipment was caused by defendant’s negligence,
recklessness, wanton neglect, and willful misconduct in that it, and its agents, servants,  
sub-carriers, participating carriers, subcontractors, terminal operators, truck drivers,
warehousemen and employees failed to properly handle, carry, refrigerate, monitor,
protect, store and care for the cargo in question.
 29. As proximate result of the foregoing plaintiff and those on whose behalf it
sues has sustained damages in the amount of $276,869.30, no part of which has been
paid, although duly demanded.

FOURTH CAUSE OF ACTION
(Material Deviation/Fundamental Breach)
     30. Plaintiff repeats and realleges the allegations in paragraphs 1 through 14
of this complaint.
31. At all material times defendant was aware of the nature of the shipment
and the fact that it was temperature-sensitive and required special care during all periods
of transportation, handling and storage.
32. At all material times defendant held itself out to be specialized in the care
and carriage of temperature-sensitive goods, including vaccines.
33. At all material times defendants charged supplemental and/or enhanced
fees and freight rates for providing accessorial services such as temperature-controlled
care, handling and storage.
34. In addition to services relating to air carriage of the cargo from the United
States to Afghanistan, for agreed consideration, including supplemental and enhanced
fees, defendant contracted to provide such specialized  care, storage and handling for the
shipment.
    35. The damage to the shipment was proximately caused in whole or in part
by defendant’s fundamental breaches of, and material deviations from,  the terms of the  
subject  contracts and its reckless failure to provide the agreed accessorial services
relating to specialized temperature-controlled care, handling, and storage.
 36. As proximate result of the foregoing plaintiff and those on whose behalf it
sues has sustained damages in the amount of  $276,869.30, no part of which has been
paid, although duly demanded.

 WHEREFORE, plaintiff respectfully demands judgment against defendant UPS
Supply Chain Solutions, Inc.:
  (a) for the sum of  $276,869.30;
  (b) for prejudgment interest at the rate of  9% per annum;
  (c) for the costs and disbursements of this action;
(d) for such other and further relief as this Honorable Court deems
proper and just

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.