Case 1:15-cv-01504-JMF Document 1 Filed 03/02/15 Page 1 of 6

David L. Mazaroli
Attorney for Plaintiff
250 Park Avenue 7th Fl.
New York, NY 10177
Tel. (212)267-8480
Fax. (212)732-7352
E-mail: dlm@mazarolilaw.com
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA, as subrogee of
General Electric Company/GE Aviation,
:

ECF CASE

15 Civ. 1504 (JMF)

Plaintiff,

:
COMPLAINT

- against EXPEDITORS INTERNATIONAL OF

WASHINGTON, INC.; CHINA AIRLINES
LTD., CHINA AIRLINES,

:
:
:

:
Defendants.
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Plaintiff, through its undersigned attorney, alleges as follows for its complaint
against defendants:
1.

Plaintiff Indemnity Insurance Company of North America (IINA) is a

Delaware Corporation with its principal place of business in Pennsylvania and sues
herein as subrogated cargo insurer, having paid the insurance claim arising from the
claimed damage to the shipment described herein, and also sues for and on behalf of the
shipper, consignee and owner of the cargo, as their interests may now or hereafter appear.
2.

Defendant Expeditors International of Washington, Inc. (Expeditors) is

believed to be a corporation organized under the laws of, and with its principal place of
business in, the State of Washington with a registered agent within the jurisdiction of this

Case 1:15-cv-01504-JMF Document 1 Filed 03/02/15 Page 2 of 6

Court in care of C T Corporation System, 111 Eighth Avenue, New York, New York,
10011 and was at all material times engaged in the business of a common carrier of
cargo, and the provision of services related thereto.
3.

Defendant China Airlines Ltd. (China Airlines) also doing business as

China Airlines, is believed to be an alien corporation organized under the laws of a

foreign sovereign with its principal place of business in Taoyuan, Taiwan, Republic of
China, and was at all material times engaged in the business of a common carrier of
cargo, and the provision of services related thereto.
4.

This Court has jurisdiction over the persons of the defendants, who

conduct business in the State of New York, including the pickup and delivery of
shipments in New York and the provision of services to entities domiciled in New York.
5.

This Court has federal question subject matter jurisdiction pursuant to 28

USCA 1331. There is also diversity, ancillary and supplemental jurisdiction as to certain
aspects of the claim in suit. The amount in controversy, exclusive of interest and costs,
exceeds $75,000.00. Plaintiff seeks recovery for cargo damage caused by defendants
breaches of contract and torts.
FIRST CAUSE OF ACTION
Breach of Contract and/or Duties under
The Warsaw and/or Montreal Convention
(Against All Defendants)
6.

Plaintiff repeats and realleges the allegations in paragraphs 1 through 5 of

this complaint.
7.

This cause of action arises under a treaty of the United States, specifically

the Convention for the Unification of Certain Rules Relating to International

Case 1:15-cv-01504-JMF Document 1 Filed 03/02/15 Page 3 of 6

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 in effect in the country of origin and destination at the time of
shipment or as may be applicable by the contract between IINAs subrogor and
Expeditors, including but not limited to a certain Global Air Freight Transportation
Contract.

Alternatively, this cause of action is governed by the Convention for

Unification of Certain Rules for International Carriage by Air, Done at Montreal on 28

May 1999, reprinted in S. Treaty Doc. No 106-45, 1999 WL 33292734 (2000) (entered
into force Nov. 4, 2003) (Montreal Convention).
8.

This action arises from damage to a Model CF6-80 aircraft engine (Serial

No. 706351) with a gross weight of 7,160 kilograms as further described in Expeditors
air waybill JFK 4060483065 dated on or about March 1, 2013 and China Airlines air
waybill 297-JFK 08962752

dated on or about February 28, 2013 (hereinafter the

Shipment). (Expeditors Claim No. 13-108894; G.E. Claim Ref.: 13-104168).

9.

The Expeditors air waybill represented that the Shipment was carried

from New York, NY, to Taipei on Flight CI/5319/03.

10.

The China Airlines waybill represented that the Shipment was carried

from New York, NY, to Taipei on Flight CI/5321/02.

11.

Plaintiffs subrogor General Electric Company/GE Aviation was at all

material times the shipper of the Shipment and the entity with ownership interest and risk
of loss during the subject transportation.
12.

Although the Shipment was in good order and condition when it was

received by defendants at or near New York, NY, it was in damaged condition at the

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time of delivery by defendants at or near Taipei and said damage was not due to any
event or circumstances which would give rise to a defense or exception to liability on
behalf of defendants.
13.

Said damage to the Shipment was proximately caused by defendants

fault, gross negligence, recklessness and/or willful misconduct in that defendants, their
agents, servants, connecting carriers, subcontractors, terminal operators, warehousemen
and employees failed to properly receive, handle, carry, consolidate, protect, transfer and
care for the cargo in question and in that defendants had no proper and effective
procedures to properly receive, handle, carry, consolidated, protect, lash, secure, transfer
and care for the cargo.
14.

By reason of the aforesaid plaintiff, and those on whose behalf it sues,

sustained damages in the amount of $166,065.80, including but not limited to expenses to
repair, recondition and refurbish the aircraft engine, no part of which has been paid
although duly demanded.
15.

The damages plaintiff seeks to recover include the $50,000.00 deductible

interest of plaintiffs subrogor General Electric Co./GE Aviation.

16.

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
Breach of Bailment Obligations
(Against All Defendants)
17.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1

through 5 and 8 through 16 of this complaint.

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18.

When the Shipment was received into the care, custody and control of

defendants, or entities acting on their behalf, it was in good order and condition.
However, defendants failed to make delivery of the cargo at the intended destination in
the same order and condition. Instead, the Shipment was in damaged and depreciated
condition, which rendered it unfit for intended purposes.
19.

The damage to the Shipment was not caused by events or circumstances

which would constitute a defense to liability.

20.

In particular, said damage was not caused by an act of God, the public

enemy, or the authority of law, the act or default of the shipper or owner, or the inherent
nature of the goods.
21.

Therefore, defendants as common carriers, bailees, forwarders, and/or

warehousemen-for-hire, are liable to plaintiff for claimed damage to the Shipment.

22.

By reason of the aforesaid plaintiff, and those on whose behalf it sues,

sustained damages in the amount of $166,065.80, including but not limited to expenses to
repair, recondition and refurbish the aircraft engine, no part of which has been paid
although duly demanded.
THIRD CAUSE OF ACTION
Negligence and/or Recklessness, and/or Willful Misconduct
(Against All Defendants)
23.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1

through 5 and 8 through 16 of this complaint.

24.

At all material times defendants had a duty in relation to the Shipment to

properly handle, store, build-up, prepare for transit, secure, lash, carry, protect and care
for the cargo in question

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25.

The damage to the Shipment was caused by defendants negligence,

recklessness, wanton neglect, and willful misconduct in that defendants, their agents,
servants, ground-handlers, connecting carriers, subcontractors, terminal operators, truck
drivers, warehousemen and employees failed to properly handle, store, build-up, prepare
for transit, secure, lash, carry, protect and care for the cargo in question and in that
defendants had no proper and effective procedures to properly handle, store, build-up,
prepare for transit, secure, lash, carry, protect and care for the Shipment.
26.

As a result of the aforesaid, defendants have caused damage to plaintiff,

and those on whose behalf it sues, in the amount of $166,065.80, no part of which has
been paid although duly demanded.
WHEREFORE, plaintiff demands judgment against defendants Expeditors
International of Washington, Inc. and China Airlines Ltd, jointly and severally and
without limitation of any kind:
(a)

for the sum of $166,065.80;

(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 Court deems proper and
just, including an award of reasonable attorneys fees.

Dated: New York, New York

March 2, 2015
Law Office,
David L. Mazaroli
s/David L. Mazaroli
_____________________________
David L. Mazaroli (DM 3929)
Attorney for Plaintiff
250 Park Avenue 7th Floor
New York, New York 10177
Tel.: (212)267-8480
Fax.: (212)732-7352
E-mail: dlm@mazarolilaw.com