Case 1:14-cv-08319-PAE Document 1 Filed 10/17/14 Page 1 of 7

David L. Mazaroli
Attorney for Plaintiff
250 Park Avenue 7th Floor
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 Dyncorp
:
International LLC,
:
Plaintiff,
:
- against :
UPS SUPPLY CHAIN SOLUTIONS, INC.
:
Defendant.
:
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ECF CASE

14 Civ. 8319 (PAE)

COMPLAINT

Plaintiff, through its undersigned attorney, alleges as follows for its complaint
against defendants upon information and belief:
1.

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

corporation organized under the laws of, and with its principal place of business in, the
State of Pennsylvania, and has an office within this district at 1133 Avenue of the
Americas, New York, NY 10036.
2.

Plaintiff sues herein as subrogated insurer of the shipment in suit, having

paid the insurance claim of Dyncorp International LLC, who was at all material times
was the owner of the cargo, the named shipper and consignee on the air waybill issued by

Case 1:14-cv-08319-PAE Document 1 Filed 10/17/14 Page 2 of 7

defendant, and the entity which sustained damages as a result of the claimed cargo
damage and loss.
3.

Defendant UPS Supply Chain Solutions, Inc. (hereinafter UPS or

defendant), is believed to be Delaware Corporation with its principal place of business

in the State of Georgia.
4.

UPS has a registered agent in New York and a place of business at 184-54

149th Ave, Springfield Gardens, NY 11413.

5.

This Court has in personam jurisdiction over UPS, who conducts business

in the State of New York and the United States as a whole as a common carrier, and as a
provider of services related thereto, including services pertaining to shipments to, from
and through the State of New York.
6.

This Court has federal question subject matter jurisdiction pursuant to 28

U.S.C.A. 1331 as the claim in suit arises under federal law, including federal common
law, and/or are supplemental claims within the meaning of 28 U.S.C. 1367 to certain of
the foregoing claims.
7.

Concurrently there is diversity subject matter jurisdiction pursuant to 28

U.S.C.A. 1332 as the citizenship of the parties is diverse and the amount in controversy,
exclusive of interest and costs, exceeds $75,000.00.
8.

This action involves damage and loss to a shipment of vaccines (NDC

9515-888-07) with a chargeable weight of 1,633.50 kilograms which were intended for
human consumption and which moved, or were intended to move, from the United States
(DFW) to Kandahar, Afghanistan under UPS air waybill 5012029121 dated November 5,
2012 (hereinafter the shipment) [UPS Claim No. LG40044785]

Case 1:14-cv-08319-PAE Document 1 Filed 10/17/14 Page 3 of 7

9.

The shipment required specialized care, including temperature-abuse

protection, during all phases of transportation, handling, and storage.

10.

UPS contracted to provide the requisite specialized transportation,

handling, and storage for the shipment during all of said periods of custody and control.
11.

The shipment was in good order and condition when received into the

custody of UPS or entities acting on its behalf at the shippers door at or near Dallas.
12.

During the course of transportation, handling, and storage by UPS, the

shipment sustained damage which rendered the vaccines unfit for intended distribution
and human consumption.
13.

As a result of the damage to the Shipment plaintiff, and those on whose

behalf it sues, sustained damages in the amount of $276,869.30, no part of which has
been paid although duly demanded.
14.

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.
FIRST CAUSE OF ACTION
(Breach of Contract and Air Treaty)
`15.

Plaintiff repeats and realleges the allegations in paragraphs 1 through 14

of this complaint.
16.

This cause of action is governed by a treaty of the United States,

specifically the Convention for the Unification of Certain Rules Relating to International
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

Case 1:14-cv-08319-PAE Document 1 Filed 10/17/14 Page 4 of 7

successor treaties thereto, including but not limited to the Hague Protocol, in effect in the
country of origin and destination at the time of shipment.
17.

For agreed consideration consisting of enhanced freight fees and charges,

defendant contracted to provide specialized care for each shipment during all periods of
custody and carriage, and to transport the shipments from the place of receipt to the
place of delivery in Afghanistan.
18.

Defendant recklessly breached its duties and obligations under the

specialized carriage contract and under the applicable international air treaty, by failing
to provided the requisite care during the transit to Afghanistan.
19.

As a proximate result of the conditions to which the shipments were

exposed during defendants custody, the vaccines sustained damage and could not be
distributed or used or intended human consumption.
20.

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

have sustained damages in the amount of $276,869.30, no part of which has been paid
although duly demanded.
SECOND CAUSE OF ACTION
(Breach of Bailment Obligations)
21.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1

through 14 of this complaint.

22.

At the time the aforementioned cargo damage occurred defendant was

acting as a bailee of the shipment and in its own capacity, or through its contractors,
agents, servants or sub-bailees, had a duty to safely and properly keep, care for and
deliver the shipment in the same good order and condition as when entrusted to it at the
place of receipt in the United States.
4

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23.

Defendant also had a duty to ensure that the services provided for the

shipments were performed with reasonable care and in a non-negligent and workmanlike
manner.
24.

Defendant and/or entities acting on its behalf, breached the aforesaid

duties and obligations and negligently redelivered the shipment in damaged condition at
destination.
25.

As proximate result of the foregoing plaintiff and those on whose behalf it

sues has sustained damages in the amount of

$276,869.30, no part of which has been

paid although duly demanded.

THIRD CAUSE OF ACTION
(Negligence and/or Recklessness, and/or Willful Misconduct)
26.

Plaintiff repeats and realleges the allegations set forth in paragraphs 1

through 14, and 16 of this complaint.

27.

At all material times defendant had a duty in relation to the shipment to

properly handle, carry, refrigerate, monitor, protect, store and care for the cargo in
question.
28.

The damage to the shipment was caused by defendants negligence,

recklessness, wanton neglect, and willful misconduct in that it, and its agents, servants,
sub-carriers, participating carriers, subcontractors, terminal operators, truck drivers,
warehousemen and employees failed to properly handle, carry, refrigerate, monitor,
protect, store and care for the cargo in question.
29.

As proximate result of the foregoing plaintiff and those on whose behalf it

sues has sustained damages in the amount of $276,869.30, no part of which has been
paid, although duly demanded.

Case 1:14-cv-08319-PAE Document 1 Filed 10/17/14 Page 6 of 7

FOURTH CAUSE OF ACTION

(Material Deviation/Fundamental Breach)
30.

Plaintiff repeats and realleges the allegations in paragraphs 1 through 14

of this complaint.
31.

At all material times defendant was aware of the nature of the shipment

and the fact that it was temperature-sensitive and required special care during all periods
of transportation, handling and storage.
32.

At all material times defendant held itself out to be specialized in the care

and carriage of temperature-sensitive goods, including vaccines.

33.

At all material times defendants charged supplemental and/or enhanced

fees and freight rates for providing accessorial services such as temperature-controlled
care, handling and storage.
34.

In addition to services relating to air carriage of the cargo from the United

States to Afghanistan, for agreed consideration, including supplemental and enhanced

fees, defendant contracted to provide such specialized care, storage and handling for the
shipment.
35.

The damage to the shipment was proximately caused in whole or in part

by defendants fundamental breaches of, and material deviations from, the terms of the
subject contracts and its reckless failure to provide the agreed accessorial services
relating to specialized temperature-controlled care, handling, and storage.
36.

As proximate result of the foregoing plaintiff and those on whose behalf it

sues has sustained damages in the amount of $276,869.30, no part of which has been
paid, although duly demanded.
6

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WHEREFORE, plaintiff respectfully demands judgment against defendant UPS

Supply Chain Solutions, Inc.:
(a)

for the sum of $276,869.30;

(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 Honorable Court deems
proper and just.

Dated: New York, New York

October 16, 2014
LAW OFFICES,
DAVID L. MAZAROLI
s/David L.Mazaroli
_____________________________
David L. Mazaroli
Attorney for Plaintiff
250 Park Avenue 7th Floor
New York, NY 10177
Tel.: (212)267-8480
Fax.: (212)732-7352
E-mail: dlm@mazarolilaw.com