Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 1 of 10 Page ID #:1
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`JAMES A. MARISSEN (SBN: 257699)
`jmarissen@grsm.com
`RACHEL A. WEITZMAN (SBN: 307076)
`rweitzman@grsm.com
`GORDON REES SCULLY MANSUKHANI, LLP
`5 Park Plaza, Suite 1100
`Irvine, CA 92614
`Telephone: (949) 255-6996
`Facsimile: (949) 474-2060
`Attorneys for Plaintiff
`MSC MEDITERRANEAN SHIPPING COMPANY S.A.
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`MSC MEDITERRANEAN SHIPPING
`COMPANY S.A.,
`Plaintiff,
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`v.
`BNSF RAILWAY COMPANY,
`Defendant.
`
`CASE NO.
`COMPLAINT
`
`Plaintiff MSC MEDITERRANEAN SHIPPING COMPANY S.A. (“MSC”),
`by counsel, for its Complaint against BNSF RAILWAY COMPANY (“BNSF”),
`alleges upon information and belief as follows:
`JURISDICTION AND VENUE
`This Court has jurisdiction over the subject matter of this action
`1.
`because MSC’s claims arise under federal law, and the transportation of the
`property at issue constitutes transportation in interstate commerce under 49 U.S.C.
`§ 13102(14) and (23), as well as 49 U.S.C. § 13501(1). Thus, this action arises
`under the Court’s federal question jurisdiction (28 U.S.C. § 1331 and 49 U.S.C. §
`14706) and/or supplemental jurisdiction (28 U.S.C. § 1367).
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`-1-
`COMPLAINT
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 2 of 10 Page ID #:2
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`This Court also has jurisdiction over this action pursuant to 28 U.S.C.
`2.
`§ 1333 and Rule 9(h) of the Federal Rules of Civil Procedure, since this case is
`governed, in whole or in part, by the Carriage of Goods by Sea Act, 46 U.S.C. §
`30701 note, formerly 46 U.S.C. § 1300 et seq. (“COGSA”). Alternatively, this case
`is governed, in part, by the Carmack Amendment to the Interstate Commerce Act
`49 U.S.C. § 14706 (the “Carmack Amendment”) because it concerns goods lost or
`damaged by a rail carrier during the interstate shipment of goods.
`3.
`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2)
`as a substantial part of the events giving rise to MSC’s claim occurred in this
`judicial district. Venue is also proper in this judicial district under 49 U.S.C.
`§ 11706(d)(2) as the movement of the cargo at issue originated in this judicial
`district.
`Venue is also proper in this judicial district as BNSF operates,
`4.
`controls, leases, or owns a railroad or a route within this judicial district and
`therefore resides within this judicial district within the meaning of 28 U.S.C. §
`1391(c)(2). Finally, venue is proper in the United States District Court for the
`Central District of California in accordance with BNSF’s Intermodal Rules and
`Policies, located at https://www.bnsf.com/bnsf-resources/pdf/ship-with-
`bnsf/intermodal/intermodal-r-and-pg.pdf, pursuant to Item 28.6 as the shipment
`originated in this judicial district.
`
`PARTIES
`Plaintiff MSC was and is a foreign corporation organized and existing
`5.
`under the laws of Switzerland with its principal place of business located at 12-14
`Chemin Rieu, 1208, Geneva, Switzerland and at all relevant times was and is doing
`business as an ocean transportation common carrier in the United States.
`6.
`Defendant BNSF was and is a corporation organized and existing
`under the laws of the state of Delaware, with a main office located at 2650 Lou
`Menk Drive, Fort Worth, Texas, 76131-2830, and is primarily engaged in the
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`COMPLAINT
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 3 of 10 Page ID #:3
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`freight-rail-transportation business as a common carrier of goods by rail for hire,
`with an agent for service of process in this judicial district.
`FACTS
`On or about January 19, 2022, MSC, acting as a vessel-owning
`7.
`common carrier, issued MSC Sea Waybill No. MEDUPH104184 (“MSC Bill 1”)
`for the shipment of printers (“Cargo 1”) loaded in container nos. FFAU2035293
`and MEDU4957349 (respectively “Container 1 and 2”) from the Port of Batangas,
`Philippines to Plainfield, Indiana, via the Port of Los Angeles.
`8.
`Pursuant to MSC Bill 1, MSC undertook to transport (or arrange for
`transportation of) Container 1, Container 2 and Cargo 1 from the Port of Batangas,
`Philippines to Plainfield, Indiana, via the Port of Los Angeles. MSC carried the
`Container 1, Container 2 and Cargo 1 from the Port of Batangas, Philippines to the
`Port of Los Angeles, and then tendered Container 1, Container 2, and Cargo 1 to its
`subcontractor, BNSF, for the portion of the shipment from Los Angeles, California
`to Chicago, Illinois.
`9.
`On or around January 19, 2022, Container 1 and Container 2 departed
`Batangas, Philippines and arrived in the Port of Los Angeles on or around March
`23, 2022.
`10. BNSF accepted Container 1, Container 2 and Cargo 1 in Los Angeles,
`California, and, in consideration of certain agreed freight charges thereupon paid,
`BNSF agreed to transport and carry said Container 1, Container 2 and Cargo 1
`from Los Angeles, California to Chicago, Illinois, there to be delivered in like
`good order and condition at the BNSF Chicago Rail Ramp.
`11. On or around March 24, 2022, Container 1 and Container 2 were
`loaded onto a BNSF train in the Port of Los Angeles and they arrived at the BNSF
`Rail Ramp and was unloaded in Chicago, Illinois on April 24, 2022. Whilst in the
`custody and possession of BNSF, Cargo 1 in Container 1 and Container 2 was
`pilfered (“Incident 1”).
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`COMPLAINT
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`Irvine, CA 92614
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 4 of 10 Page ID #:4
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`12. On or about January 26, 2022, MSC, acting as a vessel-owning
`common carrier, issued MSC Sea Waybill No. MEDUPH106148 (“MSC Bill 2”)
`for the shipment of printers and projectors (“Cargo 2”) loaded in container nos.
`BMOU6889371, MSDU8045763, MSMU5414355, and TGBU9654672
`(respectively “Containers 3 through 6”) from the Port of Batangas, Philippines to
`Plainfield, Indiana, via the Port of Los Angeles.
`13.
`Pursuant to MSC Bill 2, MSC undertook to transport (or arrange for
`transportation of) Container 3, Container 4, Container 5, Container 6 and Cargo 2
`from the Port of Batangas, Philippines to Plainfield, Indiana, via the Port of Los
`Angeles. MSC carried Container 3, Container 4, Container 5, Container 6 and
`Cargo 2 from the Port of Batangas, Philippines to the Port of Los Angeles, and
`then tendered Container 3, Container 4, Container 5, Container 6 and Cargo 2 to its
`subcontractor, BNSF, for the portion of the shipment from Los Angeles, California
`to Chicago, Illinois.
`14. On or around January 26, 2022, Container 3, Container 4, Container 5
`and Container 6 departed Batangas, Philippines and arrived in the Port of Los
`Angeles on or around March 23, 2022.
`15. BNSF accepted Container 3, Container 4, Container 5, Container 6
`and Cargo 2 in Los Angeles, California, and, in consideration of certain agreed
`freight charges thereupon paid, BNSF agreed to transport and carry Container 3,
`Container 4, Container 5, Container 6 and Cargo 2 from Los Angeles, California to
`Chicago, Illinois, there to be delivered in like good order and condition at the
`BNSF Chicago Rail Ramp.
`16. On or around March 24, 2022, Container 3, Container 4, Container 5,
`and Container 6 were loaded onto a BNSF train in the Port of Los Angeles and
`they arrived at the BNSF Rail Ramp and was unloaded in Chicago, Illinois on
`April 24, 2022. Whilst in the custody and possession of BNSF, the Cargo in
`Container 3, Container 4, Container 5, and Container 6 was pilfered (“Incident 2”).
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`COMPLAINT
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`5 Park Plaza, Suite 1100
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`Irvine, CA 92614
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 5 of 10 Page ID #:5
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`Epson America, Inc. (“Epson”), the consignee under MSC Bill 1 and
`17.
`MSC Bill 2 subsequently made a claim for the pilfered Cargo 1 and Cargo 2 to its
`cargo insurers, Tokio Marine America Insurance Company (“Tokio Marine”),
`which Tokio Marine paid.
`18. On March 20, 2023, Tokio Marine, as subrogee of Epson, filed an
`action in the United States District Court for the Southern District of New York
`against MSC (the “Action”) for the pilfered Cargo 1 inside the Container 1 and
`Container 2, and the pilfered Cargo 2 in Container 3, Container 4, Container 5 and
`Container 6 (the “Claim”). The total damages claimed were US$1,311,228.19, plus
`interest and costs.
`19. As a result of Incident 1 and Incident 2, BNSF failed to make delivery
`of Cargo 1 and Cargo 2 in like good order and condition.
`20. BNSF’s failure to deliver Cargo 1 and Cargo 2 and/or failure to
`deliver the Cargo 1 and Cargo 2 in like good order and condition was in violation
`of the obligations and duties of common carriers of merchandise by rail for hire,
`including BNSF’s failure to perform services with respect to Container 1,
`Container 2, Container 3, Container 4, Container 5 and Container 6, as well as
`Cargo 1 and Cargo 2 in a careful, workmanlike matter; its failure and/or negligence
`to properly inspect, supervise, and safeguard Container 1, Container 2, Container
`3, Container 4, Container 5 and Container 6, as well as Cargo 1 and Cargo 2; and
`its failure to hire and train employees.
`21. Due to BNSF’s failure to deliver Cargo 1 and Cargo 2 in like good
`order and condition, MSC attracted liability under MSC Bill 1 and MSC Bill 2 for
`Tokio Marine’s Claim (as BNSF was MSC’s subcontractor for the rail leg of the
`shipment). MSC resolved Tokio Marine’s Claim and the Action for
`US$975,589.46 and paid that sum on January 19, 2024.
`22.
`In accordance with BNSF’s Intermodal Rules and Policies, MSC filed
`a claim with BNSF for the pilfered Cargo 1 and Cargo 2.
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`COMPLAINT
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`5 Park Plaza, Suite 1100
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`Irvine, CA 92614
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 6 of 10 Page ID #:6
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`23. BNSF declined MSC’s claim related to the pilfered Cargo 1 and
`Cargo 2 between May 17, 2023 and October 10, 2023.
`24. As such, as of the date of this filing, BNSF has failed to pay or
`otherwise satisfy any portion of MSC’s claim.
`25. MSC is informed, believes and thereon alleges that the damage
`sustained to Tokio Marine, which MSC was required to pay in settlement of the
`Claim and Action, was not based on the acts or omissions of MSC, but was due
`solely to the acts, omissions, fault, negligence, misconduct or other actionable
`activity of BNSF.
`26. Consequently, MSC is entitled to recover damages from BNSF in an
`amount to be proven at trial (but not less than US$975,589.46) plus interest and
`costs.
`
`FIRST CAUSE OF ACTION
`EQUITABLE INDEMNIFICATION
`27. MSC incorporates paragraphs 1 - 26 as though fully set forth herein.
`28. MSC is informed and believes and thereon alleges that it is in no way
`responsible for the losses or damages which Tokio Marine alleged against MSC.
`Rather it was the acts, omissions, fault, negligence, misconduct or other actionable
`activity of BNSF which caused the losses or damages which Tokio Marine alleged
`in the Claim and the Action against MSC and which MSC settled.
`29. As MSC settled Tokio Marine’s Claim and the Action for
`US$975,589.46, MSC now alleges that the acts, omissions, fault, negligence,
`misconduct or other actionable activity of BNSF as described herein was active,
`primary, and affirmative, and that any negligent or other actionable conduct or
`activity on the part of MSC, if any, was at most only passive, derivative, and
`secondary.
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`COMPLAINT
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`Gordon Rees Scully Mansukhani, LLP
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`5 Park Plaza, Suite 1100
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`Irvine, CA 92614
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 7 of 10 Page ID #:7
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`30. MSC is entitled to total equitable indemnification from BNSF such
`that MSC can recoup from and be reimbursed by BNSF all sums that MSC paid to
`Tokio Marine and/or its other damages.
`31. As a direct, legal and proximate result of the acts, omissions, fault,
`negligence, misconduct or other actionable activity of BNSF as described herein,
`MSC has incurred and paid expenses for its defense of Tokio Marine’s Claim and
`Action including, without limitation, attorneys’ fees, expenses, and damages. MSC
`will also incur future attorney’s fees, court costs, expenses and damages
`throughout the pendency of this action.
`32. Based on the foregoing, MSC is entitled to be indemnified and held
`harmless by BNSF for MSC’s attorneys’ fees, court costs, expenses, and damages
`that MSC has paid or incurred as a direct, legal and proximate result of the acts,
`omissions, fault, negligence, misconduct or other actionable activity of BNSF as
`described herein. The above expenses are continuing and in an amount presently
`unknown to MSC. Accordingly, MSC prays for leave to amend this Complaint to
`assert the true amount of such expenses when MSC has ascertained the same.
`SECOND CAUSE OF ACTION
`CONTRIBUTION
`33. MSC incorporates paragraphs 1 - 32 as though fully set forth herein.
`34. MSC is informed and believes and thereon alleges that it is in no way
`responsible for the losses or damages which Tokio Marine alleged against MSC.
`Rather it was the acts, omissions, fault, negligence, misconduct or other actionable
`activity of BNSF which caused the losses or damages which Tokio Marine alleged
`in the Claim and the Action against MSC, and which MSC settled.
`35. As MSC settled Tokio Marine’s Claim and the Action for
`US$975,589.46, MSC now alleges that the acts, omissions, fault, negligence,
`misconduct or other actionable activity of BNSF as described herein was a
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`COMPLAINT
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`Gordon Rees Scully Mansukhani, LLP
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`5 Park Plaza, Suite 1100
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`Irvine, CA 92614
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 8 of 10 Page ID #:8
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`substantial factor causing the losses or damages which Tokio Marine alleged in the
`Claim and the Action against MSC, and which MSC settled.
`36. Based on the foregoing allegations, MSC will be damaged to the
`extent that it was required pay any sums over its proportionate share of liability, if
`any, as the trier of fact may assess.
`37. MSC is entitled to contribution from BNSF such that MSC can recoup
`from and be reimbursed by BNSF all sums that MSC paid to Tokio Marine, being
`any sum in excess of MSC’s proportionate share of liability, if any.
`38. As a direct, legal and proximate result of the acts, omissions, fault,
`negligence, misconduct or other actionable activity of BNSF as described herein,
`MSC has incurred and paid expenses for its defense of Tokio Marine’s Claim and
`Action including, without limitation, attorneys’ fees, expenses, and damages. MSC
`will also incur future attorney’s fees, court costs, expenses and damages
`throughout the pendency of this action.
`39. Based on the foregoing, MSC is entitled to contribution from BNSF
`for MSC’s attorneys’ fees, court costs, expenses, and damages that MSC has paid
`or incurred as a direct, legal and proximate result of the acts, omissions, fault,
`negligence, misconduct or other actionable activity of BNSF as described herein.
`The above expenses are continuing and in an amount presently unknown to MSC.
`Accordingly, MSC prays for leave to amend this Complaint to assert the true
`amount of such expenses when MSC has ascertained the same.
`THIRD CAUSE OF ACTION
`BREACH OF CONTRACT
`40. MSC incorporates paragraphs 1 - 39 as though fully set forth herein.
`41. MSC and BNSF entered into a transportation contract, pursuant to
`which BNSF agreed to transport and deliver Container 1, Container 2, Container 3,
`Container 4, Container 5, Container 6 as well as Cargo 1 and Cargo 2 in the same
`good order and condition in which it received them.
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`COMPLAINT
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 9 of 10 Page ID #:9
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`42. Relevant aspects of the transportation contract’s terms are set forth in
`BNSF’s Intermodal Rules and Policies, which can be found at
`https://www.bnsf.com/bnsf-resources/pdf/ship-with-bnsf/intermodal/intermodal-r-
`and-pg.pdf.
`43. MSC is informed and believes and thereon alleges that it is in no way
`responsible for the losses or damages which Tokio Marine alleged against MSC.
`Rather it was the acts, omissions, fault, negligence, misconduct or other actionable
`activity of BNSF which caused the losses or damages which Tokio Marine alleged
`in the Claim and the Action against MSC, and which MSC settled.
`44. BNSF took possession and control of Container 1, Container 2,
`Container 3, Container 4, Container 5, Container 6 and Cargo 1 and Cargo 2 in
`good order and condition in Los Angeles, California.
`45. BNSF breached the transportation contract by failing to deliver the
`Container 1, Container 2, Container 3, Container 4, Container 5, Container 6 and
`Cargo 1 and Cargo 2 in Chicago, Illinois in the same good order and condition as
`received.
`46. Based on BNSF’s breach of the transportation contract, MSC is
`entitled to damages from BNSF for MSC’s attorneys’ fees, court costs, expenses,
`and damages that MSC has paid or incurred as a direct, legal and proximate result
`of BNSF’s breach of the transportation contract as described herein in an amount
`to be proven at trial (but not less than US$975,589.46) plus interest and costs.
`PRAYER FOR RELIEF
`WHEREFORE, MSC prays for judgment on its Complaint as follows:
`1.
`For equitable indemnity from BNSF for all costs, fees, expenses,
`liability, damages, and sums including US$975,589.46 in damages MSC paid
`Tokio Marine, together with legal defense costs, and all costs and fees that MSC
`incurs or has incurred in this action;
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`COMPLAINT
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`Gordon Rees Scully Mansukhani, LLP
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`5 Park Plaza, Suite 1100
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`Irvine, CA 92614
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`Case 2:24-cv-01038-SPG-KES Document 1 Filed 02/07/24 Page 10 of 10 Page ID #:10
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`For contribution from BNSF for all costs, fees, expenses, liability,
`2.
`damages, and sums including US$975,589.46 in damages MSC paid Tokio
`Marine, together with legal defense costs, and all costs and fees that MSC incurs or
`has incurred in this action, in excess of MSC’s proportionate share of liability, if
`any;
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`For damages from BNSF for breach of contract for all costs, fees,
`3.
`expenses, liability, damages, and sums including US$975,589.46 in damages MSC
`paid Tokio Marine, together with legal defense costs, and all costs and fees that
`MSC incurs or has incurred in this action;
`4.
`For prejudgment interest as permitted by law;
`5.
`For all costs of suit herein as permitted by law;
`6.
`For reasonable attorney’s fees incurred as permitted by law; and
`7.
`For such other and further relief as the Court deems just and proper.
`Dated: February 7, 2024
`GORDON REES SCULLY
`MANSUKHANI, LLP
`
`By: /s/ James A. Marissen
`James A. Marissen
`Rachel A. Weitzman
`Attorneys for Plaintiff
`MSC MEDITERRANEAN
`SHIPPING COMPANY S.A.
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`COMPLAINT
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`Gordon Rees Scully Mansukhani, LLP
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`5 Park Plaza, Suite 1100
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`Irvine, CA 92614
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