Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page1of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 1 of 8
`
`Martin F. Casey
`CASEY & BARNETT, LLC
`305 Broadway, Ste 1202
`New York, New York 10007
`(212) 286-0225
`mfc@caseybarnett.com
`Attorneysfor Plaintiff
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`wewweweeeenenececeenececeeneerececeececeneeeecenewewe—eenenennnnnX
`WOLFES & VON ETZDORF
`ASSECURANZBUREAUOHGa/s/o EXPOFRESH
`S.A. and a/s/o NATURIPE FARMS IMPORTS,INC.
`
`Plaintiff,
`
`- against —
`
`MSC MEDITERRANEAN SHIPPING COMPANY
`S.A.
`
`Defendant.
`wewenennennnnnneeceneeeeennnnnnnnenencecenenenenneneneeneneceeeenXK
`
`19 Civ.
`
`COMPLAINT
`
`Plaintiff, WOLFES & VON ETZDORF ASSECURANZBUREAU OHG a/s/o
`
`EXPOFRESHS.A.and a/s/o NATURIPE FARMS IMPORTS,INC.by and throughits attorneys,
`
`Casey & Barnett LLC,as and for its Complaint, alleges upon information and belief as follows:
`
`JURISDICTION
`
`1,
`
`This is an admiralty and maritime claim within the meaning of Rule 9(h) of the
`
`Federal Rules of Civil Procedure.
`
`Jurisdiction is predicated upon 28 U.S.C. §1333 and the
`
`provisions contained in the MSCbill of lading, which provides for jurisdiction in this District for
`
`cargo shipmentsthat transit through the United States.
`
`
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 1 of 8
`
`Martin F. Casey
`CASEY & BARNETT, LLC
`305 Broadway, Ste 1202
`New York, New York 10007
`(212) 286-0225
`mfc@caseybarnett.com
`Attorneysfor Plaintiff
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`wewweweeeenenececeenececeeneerececeececeneeeecenewewe—eenenennnnnX
`WOLFES & VON ETZDORF
`ASSECURANZBUREAUOHGa/s/o EXPOFRESH
`S.A. and a/s/o NATURIPE FARMS IMPORTS,INC.
`
`Plaintiff,
`
`- against —
`
`MSC MEDITERRANEAN SHIPPING COMPANY
`S.A.
`
`Defendant.
`wewenennennnnnneeceneeeeennnnnnnnenencecenenenenneneneeneneceeeenXK
`
`19 Civ.
`
`COMPLAINT
`
`Plaintiff, WOLFES & VON ETZDORF ASSECURANZBUREAU OHG a/s/o
`
`EXPOFRESHS.A.and a/s/o NATURIPE FARMS IMPORTS,INC.by and throughits attorneys,
`
`Casey & Barnett LLC,as and for its Complaint, alleges upon information and belief as follows:
`
`JURISDICTION
`
`1,
`
`This is an admiralty and maritime claim within the meaning of Rule 9(h) of the
`
`Federal Rules of Civil Procedure.
`
`Jurisdiction is predicated upon 28 U.S.C. §1333 and the
`
`provisions contained in the MSCbill of lading, which provides for jurisdiction in this District for
`
`cargo shipmentsthat transit through the United States.
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 2 of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 2 of 8
`
`PARTIES
`
`2.
`
`At all material times, WOLFES & VON ETZDORF ASSECURANZBUREAU
`
`OHG(hereinafter “WVE”or “Plaintiff’) was and is a corporation organized and existing by virtue
`
`of the laws of a foreign country with an office and place of business located at Oberhafenstrasse
`
`1, Hamburg 20097, Germany, and is the subrogated underwriter of a consignment of Fresh
`
`Mandarins, as morespecifically described below.
`
`3.
`
`Atall material times, EXPOFRESH S.A., (hereinafter “Expofresh”or “Plaintiff”)
`
`was andis a corporation organized and existing by virtue of the laws of a foreign country with an
`
`office and place of business located at 1643 Beccar, Buenos Aires, Argentina and was the
`
`owner/shipper of two consignments of Fresh Blueberries, as more specifically described below.
`
`4.
`
`At all material
`
`times, NATURIPE FARMS IMPORTS,
`
`INC.
`
`(hereinafter
`
`“Naturipe”or “Plaintiff’) was and is a corporation with an office and a place of business located
`
`at 9450 Corkscrew Palms Circle, Esteros, Florida 33928, and was the owner/consignee of two
`
`consignments of Fresh Blueberries, as more specifically described below.
`
`5.
`
`At
`
`all material
`
`times, defendant, MSC MEDITERRANEAN SHIPPING
`
`COMPANYS.A.(hereinafter “MSC” or "Defendant") was and is a corporation organized and
`
`existing by virtue of the laws of a foreign state with an office and place of business located at 420
`
`Fifth Avenue, New York, New York 100016, and at all relevant times, was andisstill doing
`
`business within the jurisdiction of this Honorable Court as a commoncarrier of goods forhire.
`
`6.
`
`Plaintiff brings this action on its own behalf and as agent and/ortrustee on behalf
`
`of and for the interest of all parties who may be or becomeinterested in the said consignments, as
`
`their respective interests may ultimately appear, and plaintiff is entitled to maintain this action.
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 3of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 3 of 8
`
`RELEVANT FACTS
`
`7.
`
`On or about October 22, 2018, a consignmentconsisting of 5,520 Boxes of Fresh
`
`Blueberries,
`
`laden in refrigerated container TEMU 9008230, then being in good order and
`
`condition, was delivered to MSC and/or its agents in San Antonio, Chile by cargo shipper
`
`Expofresh. The cargo was booked for transit on board the M/V MSC SHUBAB in San Antonio
`
`destined for Philadelphia, Pennsylvania, all in consideration of an agreed upon freight, and in
`
`consideration of MSC maintaining a supply air temperature of -5°C atall times, all pursuant to
`
`MSCbill of lading MEDUSG041834 dated October 22, 2018.
`
`8.
`
`On or about October 22, 2018, a consignment consisting of 5,520 Boxes of Fresh
`
`Blueberries, laden in refrigerated container TEMU 91250877, then being in good order and
`
`condition, was delivered to MSC and/or its agents in San Antonio, Chile by cargo shipper
`
`Expofresh. The cargo was bookedfor transit on board the M/V MSC SHUBAB inSan Antonio
`
`destined for Philadelphia, Pennsylvania, all in consideration of an agreed upon freight, and in
`
`consideration of MSC maintaining a supply air temperature of -5°C atall times, all pursuant to
`
`MSCbill of lading MEDUSG041834 dated October 22, 2018.
`
`9.
`
`The cargoes of Fresh Blueberries were subject to a USDAprotocol which requires
`
`that certain temperatures be maintained during the transit. MSC was aware of this USDAprotocol
`
`and provided equipment to monitor the USDA temperature requirements during the transit.
`
`Moreover, MSCapplied for, and received authorization from the USDAto transport cargo subject
`
`to the USDAprotocol based uponcertain and various representations MSC madeto the USDA.
`
`10.
`
`Thereafter the containers were loaded on board the M/V MSC SHUBAB on or
`
`about October 20, 2018, MSCbill of lading MEDUSG041834 was issued and the vessel sailed for
`
`her intended destination.
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 4 of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 4 of 8
`
`11.
`
`On October 29, 2018 the aforementioned containers were discharged from the M/V
`
`MSC SHUBAB inCristobal, Panamafor transshipment purposes.
`
`12.
`
`On or about October 31, 2018 the aforementioned containers were loaded on board
`
`the M/V MSC WESERfortransit to Philadelphia.
`
`13.
`
`The containers arrived in Philadelphia and were released by MSC to the cargo
`
`owners on November16, 2018.
`
`14.
`
`At the timeofdelivery, it was determined that MSChad failed to maintain proper
`
`temperatures during transit; providing a supply air temperature of +°C 5 instead of the instructed
`
`supply air temperature of -5°C and this variance resulted in the cargo failing the USDA Cold
`
`Treatment Protocol. USDA placed a hold on the container pending completion of a proper cold
`
`treatment protocol.
`
`15.
`
`16.
`
`On December3, 2018 the containers were released by the USDA.
`
`Asaresult of the temperature abuse and delay in transit, the consignment was not
`
`in the same good order and condition as when received by defendant, but instead had suffered
`
`physical damage while in said defendant's care, custody and control.
`
`17.|The damageto the cargo was notthe result of any act or omission ofthe plaintiff
`
`but, to the contrary, was duesolely as the result ofthe negligence,fault, neglect, breach of contract
`
`of carriage, and bailment on the part of the defendantand/orits agents.
`
`18.
`
`The fair market value of the consignments at destination was $270,480.00. Plaintiff
`
`was able to salvage the cargo for $178,777.73, resulting in cargo damages in the amount of
`
`$107,527.60, as Plaintiff incurred additional expenses in the amount of $15,825.33 as a result of
`
`defendant’s breach of contract and negligence.
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 5of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 5 of 8
`
`19.
`
`As a result of the foregoing, Plaintiffs suffered damages in the amount of
`
`$107,527.60.
`
`20.
`
`_—At all times relevant hereto, a contract of insurance for property damage was in
`
`effect between Expofresh, Naturipe and WVE,which provided coverage for, among other things,
`
`loss or damage to the aforementioned consignments of Fresh Blueberries.
`
`21.
`
`Pursuant to the aforementioned contract of insurance between Expofresh, Naturipe
`
`and WVE,monies have been expendedon behalf of Expofresh, Naturipe to the detriment of WVE
`
`due to the damagessustained duringtransit.
`
`22.
`
`As WVEhassustained damages as a result of said expenditures, expenditures
`
`rightly the responsibility of defendant, WVE has an equitable right of subrogation and is
`
`subrogated to the rights of its insured with respect to any andall claims for damagesagainst the
`
`Defendant.
`
`23.
`
`Expofresh and Naturipe have, in addition, assigned the deductible portions of the
`
`claim to WVE.
`
`24.
`
`By reason ofthe foregoing, Plaintiff has sustained losses which will be shown with
`
`specificity at trial, no part of which has been paid, although duly demanded, which are presently
`
`estimated to be $107,527.60.
`
`ASANDFORAFIRSTCAUSEOFACTION
`
`25.
`
`Plaintiff repeats, reiterates and realleges each and every allegation set forth in
`
`paragraphs | through 24,inclusive, as if herein set forth at length.
`
`26.
`
`Pursuant to the contract of carriage entered into by and between the parties, the
`
`Defendant owed contractual and statutory duties to the aforementioned cargo ownertocarry,bail,
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 6 of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 6 of 8
`
`keep and care for, protect and deliver the Plaintiff's cargo in the same good order and condition as
`
`at the time said Defendantfirst accepted custody and control of the goods.
`
`27.|The Defendant breachedits contractual and statutory duties by failing to properly
`
`carry, bail, keep and care for, protect and deliver the Plaintiff's cargo in the same good order and
`
`condition as at the time said Defendantfirst accepted custody and control of the goods.
`
`28.
`
`As a direct and proximate result of said breach of contract by Defendant, the
`
`Plaintiff has suffered damagespresently estimated to be no less than $107,527.60.
`
`29.
`
`By reasonofthe foregoing, Plaintiff has sustained losses which will be shown with
`
`specificity at trial, no part of which has been paid, although duly demanded, which are presently
`
`estimated to be no less than $107,527.60.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`
`30.
`
`‘Plaintiff repeats, reiterates and realleges each and every allegation contained in
`
`paragraphs | through 24, inclusive, as if herein set forth at length.
`
`31.
`
`At the time of the aforementioned incident, Defendant together with the entities
`
`they hired to act on their behalf, were acting as bailees of the aforementioned cargo and in their
`
`own capacity, or through their contractors, agents, servants, or sub-bailees, had a duty to safely
`
`and properly keep, care for and deliver the shipmentin the same good order and condition as when
`
`entrusted to them. Defendant also had a duty to ensure that the services provided for the shipment
`
`were performed with reasonable care and in a non-negligent and workmanlike manner.
`
`32.
`
`Defendant breachedits duties and obligations as bailee by failing to properly carry,
`
`bail keep and care for, protect and deliver the Plaintiff's cargo in the same good order and condition
`
`as at the time said defendantfirst accepted custody and control of the goods.
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 7 of8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 7 of 8
`
`33.
`
`As a direct and proximate result of said breach of contract by Defendant, the
`
`Plaintiff has suffered damages presently estimated to be no less than $107,527.60.
`
`34.
`
`By reason ofthe foregoing,plaintiff has sustained losses which will be shown with
`
`specificity at trial, no part of which has been paid, although duly demanded, whichare presently
`
`estimated to be no less than $107,527.60.
`
`AS AND FOR A THIRD CAUSE OF ACTION
`
`35.
`
`Plaintiff repeats, reiterates and realleges each and every allegation contained in
`
`paragraphs | through 24,inclusive, as if herein set forth at length.
`
`36.|The Defendant oweda duty to the Plaintiff to carry, bail, keep and care for, protect
`
`and deliver the aforementioned cargo in the same good order and condition as at the time said
`
`Defendantfirst accepted custody and controlof the goods.
`
`37.
`
`The Defendant breached and wasnegligent in exercising its duty to carry, bail, keep
`
`and care for, protect and deliver the Plaintiff's cargo in the same good order and conditionas at the
`
`time said Defendantfirst accepted custody and control of the goods.
`
`38.|Asadirect and proximate result of the negligent acts committed by Defendant, the
`
`Plaintiff has suffered damagespresently estimated to be no less than $107,527.60.
`
`39.
`
`By reasonofthe foregoing, plaintiff has sustained losses which will be shown with
`
`specificity at trial, no part of which has been paid, although duly demanded, which are presently
`
`estimated to be no less than $107,527.60.
`
`WHEREFORE,Plaintiff prays:
`
`1.
`
`That process in due form of law may issue against Defendantciting it to appear and
`
`answerall and singular the matters aforesaid;
`
`
`
`Case 1:19-cv-10601-AT Document1 Filed 11/15/19 Page 8 of 8
`Case 1:19-cv-10601-AT Document 1 Filed 11/15/19 Page 8 of 8
`
`2
`
`That judgment may be entered in favor of Plaintiff against Defendant for the
`
`amountofPlaintiff's damages in the amountofat least $107,527.60 plus interest and costs; and
`
`3.
`
`That this Court grant to Plaintiff such other and further relief as may be just and
`
`proper.
`
`Dated: New York, New York
`November15, 2019
`289-144
`
`CASEY & BARNETT, LLC
`Attorneys for Plaintiff
`
`Bie Mien7Loree
`
`305 Broadway, Ste 1202
`New York, New York 10007
`(212) 286-0225
`
`
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