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

INSURANCE COMPANY OF NORTH AMERICA v. CTL USA, 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-01554 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Mar 6 2014

FIRST CAUSE OF ACTION
1. This action arises from damage a shipment of LCD panels and parts
which moved, or was intended to move, in combined transport on a through-carriage
basis under a bill of lading which was intended to cover substantial ocean carriage in
addition to pre-ocean carriage land transportation services.
2. The terms of defendant's bill of lading form include a forum selection
clause which states as follows:
The claims arising from or in connection with or relating to this Bill of Lading
shall be exclusively governed by the law of the United States. Any and all action
concerning custody or carriage under this Bill of Lading whether based on breach
of contract, tort or otherwise shall be brought before the United States District
Court for the Southern District of New York.
3. This action includes admiralty and maritime claims within the meaning of
Rule 9(h) Fed. R. Civ. P. and which otherwise arise under federal law, including federal
common law, all within the meaning of 28 U.S. C. § 1331, and/or are supplemental
claims within the meaning of 28 U.S.C. § 1367 to certain of the foregoing claims.
4. Plaintiff seeks recovery for cargo damage caused by defendant's breaches
of contract and torts.
5. Plaintiff Insurance Company of North America, Taiwan Branch
(hereinafter "IN A" or "plaintiff) is a corporation organized under the laws of, and with
its principal place of business in, a foreign sovereign.
6. At all material times INA insured the cargo in suit during the subject
combined transportation. INA sues herein as subrogated cargo insurer, having paid the
insurance claim of Eesource Corp. who was at all material times the shipper and owner
of the shipment in suit, and the holder of the subject bill of lading, and a Merchant as
defined therein.1
7. Defendant CTL USA, Inc. (hereinafter "CTL" or "defendant"), also
doing business as Charter Link Logistics Group, was at all material times a corporation
organized under the laws of, and with its principal place of business in, the State of New
York.
8. This Court has jurisdiction over CTL who conducts business as a common
carrier of cargo for hire, and as a provider of combined transport services related thereto,
including with respect to shipments to, from, and through the Port of New York, and/or
on behalf of business entities domiciled in New York.
9. At all material times CTL conducted business as a common carrier
through its domicile and headquarters at 147-29 182nd Street, 2nd Floor, Suite 201,
Springfield Gardens, NY 11413.
10. This action arises from the confirmed damage to a shipment of 210 cartons
of LCD panels, parts and equipment (hereinafter "the Shipment") which moved, or was
intended to move, from Chicago, Illinois, to Hong Kong, with interstate pre-carriage by
road and/or railroad to Long Beach, California, and intended ocean carriage aboard the
M/V "WAN HE" Voyage 174W, from Long Beach to Hong Kong. (LCL Container:
TCLU5695953; NHKG003091)
11. On or about May 2013 the Shipment was delivered to defendant CTL in
good order and condition, and in breakbulk and uncontainerized form, at or near
Chicago.
12. CTL did not note an exception for damage when the Shipment was
received by it or by entities acting on its behalf.
13. CTL loaded and stowed the Shipment, together with cargo for other CTL
customers, into a carrier-provided container.
14. CTL has represented that it carried the Shipment by road and/or railroad
from Chicago to Long Beach.
15. During land carriage before loading of the Shipment aboard the intended
ocean vessel, container TCLU5695953 reportedly overturned.
16. As a result of the incident the Shipment sustained damage.
17. The damage rendered the Shipment unfit for intended sale, distribution
and usage.
18. As a result of the damage to the Shipment INA's insured suffered
damages based on the purchase price value of the Shipment, in addition to damages based
on the intended resale value of the Shipment.
19. Claim and payment demands were presented to CTL.
20. Despite said demands, CTL has failed to pay the claim for the damage to
the Shipment.
21. INA paid the $57,750.00 insurance claim arising from the damage the
Shipment and seeks to recover compensatory damages in said amount.
22. INA also seeks recovery of incidental expenses incurred in the
investigation and mitigation of the loss.
23. The aforesaid damage to the Shipment was caused by the failure of CTL,
and entities acting on its behalf, to properly load, stow, carry, protect, store, secure, care
for and deliver the Shipment.
24. As a result of the aforesaid, defendant CTL is liable to plaintiff as a
common carrier, bailee and/or warehouseman-for-hire for damages in the amount of
$57,750.00, plus incidental expenses, including but not limited to survey fees incurred to
mitigate and/or investigate the loss, in addition to interest and costs.
25. 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.
SECOND CAUSE OF ACTION
26. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 25 of this complaint.
27. Defendant and those entities acting on its behalf were acting as bailees of
the Shipment at the time the damage to the Shipment occurred.
28. Defendant thereby, or through its contractors, subcontractors, agents,
servants or sub-bailees, warranted and had a legal duty to safely keep, care for and
deliver the Shipment in the same condition as when entrusted to it and to perform
services as bailees or to ensure that those services were performed with reasonable care
and in a workmanlike and non-negligent manner. Defendant breached those bailment
obligations and negligently failed to deliver the Shipment in the same order and condition
as when it was received at the point of origin.
29. By reason of the foregoing, defendant has caused damage to Plaintiff, and
to the others on whose behalf Plaintiff sues, in the amount of $57,750.00.
THIRD CAUSE OF ACTION
30. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 25 of this complaint.
31. Defendant, directly or through its employees, agents, subcontractors,
subcarriers, or independent contractors, willfully, recklessly or negligently and/or with
gross negligence failed to exercise the degree of care in relation to the Shipment which a
reasonably careful man would exercise under like circumstances, and/or willfully,
recklessly or negligently and/or with gross negligence failed to carry the Shipment such
as reasonably required and would be sufficient to care for and prevent damage to the
Shipment.
32. The damage to the Shipment was proximately caused by defendant's
willful, reckless, negligent and/or grossly negligent conduct.
33. As a result defendant is liable to Plaintiff for damages in the amount of
$57,750.00.
FOURTH CAUSE OF ACTION
(Alternative Cause of Action Under Carmack)
34. Plaintiff repeats and realleges the allegations contained in Paragraphs 1
through 25 of this complaint.
35. With respect to the pre-ocean carriage interstate land carriage of the
Shipment defendant was at all material times, or assumed responsibilities as, a receiving
and/or delivering carrier, and or statutory freight forwarder, under the Carmack
Amendment to the Interstate Commerce Act of 1887 ("Carmack Amendment"), Act of
June 29, 1906, ch. 3591, 34 Stat. 584 (1906) (current version at 49 U.S.C. § 11706 and §
14706).
36. Defendant is liable to plaintiff under the Carmack Amendment as the
damage to the Shipment was not the result of an excepted cause (i.e. act of God, act of
public authority, act of public enemy, fault of the shipper, or inherent nature of the cargo)
and plaintiff has complied with all conditions precedent under the statute.
37. As a result of the foregoing, plaintiff is entitled to recover damages in the
amount of $57,750.00, plus incidental expenses.
FIFTH CAUSE OF ACTION
38. Plaintiff repeats and realleges the allegations in paragraphs 1 through 25
of this complaint.
39. Despite repeated demands defendant has refused to pay the claim for the
damage to the Shipment.
40. As a result plaintiff is entitled to recovery of reasonable attorneys fees
under the general maritime law. See Overseas Container Line Ltd. v. Crystal Cove
Seafood Corp., 10 Civ. 3166 (PGG), 2012 WL 463927 at *15-16 (S.D.N.Y.
2012)(attorneys fees awarded to cargo claimant due to ocean carrier's bad faith in
declining cargo damage claim despite the absence of a colorable defense to liability).
41. Plaintiff respectfully requests that, in addition to damages in the amount of
$57,750.00, the Court should award plaintiff attorneys fees and costs incurred in the
prosecution of this action.
SIXTH CAUSE OF ACTION
(Breach of Guarantee Contract)
42. Plaintiff repeats and realleges the allegations contained in Paragraphs 1
through 25 of this Complaint.
43. CTL contractually guaranteed all obligations of the land carriers which
had custody of the Shipment at the time of the incident which caused the claimed
damage..
44. Despite due demand the inland carriers have failed to make payment for
plaintiffs damages.
45. Despite due demand CTL has failed to make payment for plaintiffs
damages.
46. CTL has failed to fulfill its obligations under the guarantee contract.
47. As a result of the foregoing, plaintiff is entitled to recover damages in the
amount of $57,750.00, plus incidental expenses.
WHEREFORE, plaintiff Insurance Company of North America demands
judgment against defendant CTL USA, Inc. in the amount of $57,750.00 plus incidental
expenses, in addition to interest at the rate of 9% per annum and the costs of this action
and respectfully requests that the Court issue an award of reasonable attorneys fees.
Dated: New York

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.