Case 1:14-cv-01554-ALC Document 2

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David L. Mazaroli Attorney for Plaintiff 250 Park Ave. 7th Floor New York, NY 10177 Tel. (212)267-8480 Fax. (212)732-7352 e-mail: dlm@mazarolilaw.com -----------------------------------------------------------------x UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------x : INSURANCE COMPANY OF NORTH AMERICA, Taiwan Branch, : Plaintiff, : - against : CTL USA, INC.; : Defendant. -----------------------------------------------------------------x

ECF CASE

14 Civ. 1554 (ALC) COMPLAINT

Plaintiff through its undersigned attorney, alleges as follows for its complaint against defendant upon information and belief: 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 defendants 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.

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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 defendants breaches

of contract and torts. 5. Plaintiff Insurance Company of North America, Taiwan Branch

(hereinafter INA 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,

The CTL USA, Inc. bill of lading terms include the following definition: "Merchant" includes the shipper, the consignee, the receiver of the Goods, the holder of this Bill of Lading, any person owning or entitled to the possession of the Goods or this Bill of Lading, any person having a present or future interest in the Goods or any person acting on behalf of any of the above mentioned persons.

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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 at or near

good order and condition, and in breakbulk and uncontainerized form, 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.

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17. and usage. 18.

The damage rendered the Shipment unfit for intended sale, distribution

As a result of the damage to the Shipment INAs

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. 20. the Shipment. 21. INA paid the $57,750.00 insurance claim arising from the damage the Claim and payment demands were presented to CTL. Despite said demands, CTL has failed to pay the claim for the damage to

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.

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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

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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 defendants

willful, reckless, negligent and/or grossly negligent conduct. 33. $57,750.00. FOURTH CAUSE OF ACTION (Alternative Cause of Action Under Carmack) 34. Plaintiff repeats and realleges the allegations contained in Paragraphs 1 As a result defendant is liable to Plaintiff for damages in the amount of

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.

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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 carriers 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.

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45. damages. 46. 47.

Despite due demand CTL has failed to make payment for plaintiffs

CTL has failed to fulfill its obligations under the guarantee contract. 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, New York March 6, 2014 LAW OFFICES, DAVID L. MAZAROLI s/David L.Mazaroli ______________________________ David L. Mazaroli Attorney for Plaintiff 11 Park Place - Suite 1214 New York, New York 10007 Tel: (212)267-8480 Fax: (212)732-7352