Contract analysis

1. I am an attorney duly admitted to practice law in the State of New York. I am a Senior Associate at Calderwood & Harkness LLP, with offices located at One Liberty Plaza, 50th Floor, New York, New York 10006 (C&H Matter No. 1044-00006). I am counsel of record for Defendants Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna" and, together with TSL, "Defendants") in the abo

2. I submit this declaration in support of Defendants' Motion for Partial Summary Judgment, which seeks relief on two discrete issues: (1) the proper interpretation of the liquidated damages cap set forth in Clause 28 of the charter-party at issue in this action, and specifically that the $4,500,000 cap constitutes a single aggregate cap for the entire charter period rather than a per-incident cap; and (2) the dismis

3. I make this declaration under penalty of perjury pursuant to CPLR § 2106. I have personal knowledge of the facts set forth herein through my direct and continuous involvement in this litigation since my firm's engagement as counsel for Defendants on October 16, 2023. Unless otherwise stated, the matters set forth in this declaration are within my personal knowledge, and if called as a witness I could and would com

4. On October 2, 2023, Plaintiff Northwind Maritime Corporation commenced this action by filing a Summons and Verified Complaint in this Court. The Complaint asserts claims for breach of a thirty-six (36) month time charter-party in the New York Produce Exchange ("NYPE") 2015 form, as amended (the "Charter-Party"), for the motor vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier with a deadweigh

5. The Charter-Party at issue bears Reference No. NW-TSL-CP-2020-1203 and was executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd., as disponent Owner, and Northwind Maritime Corporation, as Charterer. The charter period was thirty-six months, commencing upon delivery of the vessel on January 15, 2021, with expiration on January 14, 2024. The agreed daily hire rate was $14,750.00 per day, yielding a

6. In its Complaint, Northwind claims total damages in the amount of $18,300,000.00, which it alleges arose from three separate mechanical incidents during the charter period and one alleged unauthorized deviation in the vessel's routing. Specifically, Northwind alleges that Defendants breached their maintenance and seaworthiness obligations under Clauses 2 and 6 of the Charter-Party with respect to three mechanical

7. Defendants filed their Answer and Counterclaim on November 17, 2023. Among other defenses, Defendants asserted that the Clause 28 liquidated damages cap of $4,500,000 operates as a single aggregate limitation on Northwind's recovery for all maintenance-related claims over the charter period, and that the September 2022 Maputo call did not constitute a deviation. Defendants also interposed a counterclaim in the amo

8. On December 15, 2023, Defendants filed a Motion to Dismiss Counts III and V of the Complaint pursuant to CPLR § 3211(a)(7). By Decision and Order dated March 8, 2024, Justice Chen granted the motion in part, dismissing Count V (which had alleged tortious interference with contractual relations against TSL) in its entirety and narrowing Count III (which alleged negligent maintenance) to the extent it asserted damag

9. The parties have engaged in extensive discovery since January 2024, which continued through August 2024. The discovery proceedings relevant to this motion are described in greater detail below.

II. PURPOSE OF THIS DECLARATION

10. The purpose of this declaration is to authenticate and identify the exhibits attached hereto as Exhibits A through O. These exhibits are referenced in, and form the evidentiary basis for, the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment and the Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a (the "Rule 19-a Statement"), both of which

11. As stated above, Defendants' motion seeks partial summary judgment on two discrete issues: Issue One — Clause 28 Liquidated Damages Cap: The liquidated damages cap set forth in Clause 28 of the Charter-Party applies as a single aggregate cap of $4,500,000.00 for the entire thirty-six-month charter period, and does not operate as a per-incident cap that would permit Northwind to claim up to $4,500,000.00 for each

12. I have personal knowledge of all exhibits attached to this declaration. Each exhibit is either a document produced during the course of discovery in this action, a certified transcript of a deposition at which I was present as examining or defending counsel, or a document otherwise maintained in the ordinary course of this litigation by Calderwood & Harkness LLP as counsel for Defendants. The sources and circumst

III. DISCOVERY PROCEEDINGS AND RECORD

13. The following is a brief summary of the discovery proceedings conducted in this action, provided to contextualize the exhibits attached hereto.

14. On January 22, 2024, Defendants served their First Set of Interrogatories (Nos. 1 through 25) and First Request for Production of Documents (Nos. 1 through 42) on Plaintiff Northwind Maritime Corporation. These discovery requests sought, among other things, all documents relating to the negotiation and execution of the Charter-Party, all documents relating to the three mechanical incidents, all documents relating

15. Northwind served its own discovery requests on Defendants, including its First Set of Interrogatories (Nos. 1 through 30) and First Request for Production (Nos. 1 through 48), on or about the same date. Defendants responded with objections and substantive responses on February 28, 2024, and produced responsive documents on a rolling basis through April 2024. Defendants' document production ultimately comprised ap

16. The following depositions relevant to Defendants' motion for partial summary judgment were completed during the discovery period: (a) Alexandros Stavridis, Chairman and Chief Executive Officer of TSL, was deposed on April 22, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately seven hours and resulted in a tran

17. Expert reports were served by the parties in accordance with the Scheduling Order entered by Justice Chen on January 10, 2024, as subsequently modified by stipulation: (a) Defendants served the expert reports of Dr. Henrik Sørensen (maritime engineering) and Dr. Constance Albright (damages) on August 5, 2024. (b) Plaintiff served the expert reports of Captain Julian Blackmore (Ret.) (maritime operations) and Dr.

18. All deposition transcripts, expert reports, and rebuttal expert reports referenced in this declaration have been produced and exchanged between the parties and are available for the Court's review. The relevant excerpts and reports are attached hereto as exhibits.

IV. DESCRIPTION AND AUTHENTICATION OF EXHIBITS

19. The following describes and authenticates each of the exhibits attached hereto. A. Exhibit A — Time Charter-Party (NW-TSL-CP-2020-1203)

20. Attached hereto as Exhibit A is a true and correct copy of the NYPE 2015 time charter-party, as amended by the parties' rider clauses, executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as Owner) and Northwind Maritime Corporation (as Charterer) for the M/V Aegean Fortuna (the "Charter-Party"). This document was produced by Defendants in discovery and bears Bates numbers TSL-000001 through TSL

21. Attached hereto as Exhibit B are true and correct excerpts from the certified deposition transcript of Alexandros Stavridis, Chairman and Chief Executive Officer of TSL, taken on April 22, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice and in the presence of counsel for all parties. I was present at this d

22. The attached excerpts include the following relevant testimony: (a) Mr. Stavridis's testimony regarding his understanding, based on his direct participation in the negotiations, that the Clause 28 liquidated damages cap was negotiated and agreed upon as a single aggregate cap of $4,500,000 applicable to the entire thirty-six-month charter period, and that the cap was not intended to apply separately to each mecha

23. Attached hereto as Exhibit C are true and correct excerpts from the certified deposition transcript of Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation, taken on May 30, 2024, at the offices of Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022. The deposition was conducted pursuant to notice. I was present at this deposition and conducted

24. The attached excerpts include the following relevant testimony: (a) Mr. Lindgren's acknowledgment that the Clause 28 liquidated damages cap language was discussed during the negotiation of the Charter-Party in late 2020. Mr. Lindgren testified that the phrase "single continuous period of breach" was specifically discussed between the parties, though he maintained at deposition that his understanding was that the

25. Attached hereto as Exhibit D are true and correct excerpts from the certified deposition transcript of Captain Nikolaos Giannopoulos, Master of the M/V Aegean Fortuna during the charter period, taken on May 10, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice. I was present at this deposition and defended th

26. The attached excerpts include the following relevant testimony: (a) Captain Giannopoulos's detailed account of the September 2022 Maputo call. He testified that in mid-September 2022, while the M/V Aegean Fortuna was at or near Durban, South Africa, he received weather advisories indicating tropical cyclone warnings in the Mozambique Channel. He further testified that significant port congestion at Durban created

27. Attached hereto as Exhibit E are true and correct excerpts from the certified deposition transcript of Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation, taken on June 14, 2024, at the offices of Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022. The deposition was conducted pursuant to notice. I was present at this deposition and conducted the examin

28. The attached excerpts include the following relevant testimony: (a) Ms. Chow's testimony regarding Northwind's damages calculations in this action, including the methodology by which Northwind computed its total claimed damages of $18,300,000.00. Ms. Chow testified that the damages figure includes liquidated damages under Clause 28, lost sub-charter profits, demurrage and dead freight arising from the missed Qing

29. Attached hereto as Exhibit F are true and correct excerpts from the certified deposition transcript of Chief Engineer Petros Vlahos, an employee of TSL who served as Chief Engineer of the M/V Aegean Fortuna during the charter period, taken on June 28, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice. I was p

30. The attached excerpts include the following relevant testimony: (a) Incident 1 — Turbocharger Failure (March 12 – April 2, 2022): Mr. Vlahos testified that the turbocharger failure resulted from a latent manufacturing defect in the turbocharger rotor assembly. He testified that the defect was not detectable through standard maintenance protocols, including the regular inspections and servicing that had been perfo

31. Attached hereto as Exhibit G are true and correct copies of email correspondence exchanged between representatives of TSL and Northwind during the negotiation of the Charter-Party in November and December 2020. These documents were produced by both parties during the course of discovery in this action. The following emails are of particular relevance to the interpretation of Clause 28: (a) An email dated November

32. Attached hereto as Exhibit H are true and correct copies of maintenance and classification records for the M/V Aegean Fortuna (IMO No. 9847231) covering the period from January 2021 through December 2022. These documents were produced by Defendants in discovery and bear Bates numbers within the range of TSL-003401 through TSL-007892. The records attached include: (a) GMCB survey reports and interim class certific

I. Exhibit I — Voyage Log for M/V *Aegean Fortuna* (September 2022)

33. Attached hereto as Exhibit I is a true and correct copy of the official voyage log (deck log) for the M/V Aegean Fortuna for the month of September 2022, covering the Durban-to-Qingdao voyage. This document was produced by Defendants in discovery and bears Bates numbers TSL-009201 through TSL-009248. The voyage log contains the following entries of particular relevance to Issue Two: (a) September 14, 2022: The Ma

34. Attached hereto as Exhibit J are true and correct copies of third-party weather routing reports and advisories for the Mozambique Channel and Indian Ocean region during September 2022. These reports were obtained from the independent weather routing service, Global Maritime Weather Advisory Services Ltd. ("GMWAS"), during the course of discovery. GMWAS provided weather routing advisories to the M/V Aegean Fortuna

35. The weather reports and advisories attached as Exhibit J confirm the existence of tropical cyclone warnings and adverse weather conditions in the Mozambique Channel during mid-September 2022. These reports corroborate Captain Giannopoulos's deposition testimony (Exhibit D) and the voyage log entries (Exhibit I) regarding the weather-related basis for the Master's decision to call at Maputo. The reports document s

36. Attached hereto as Exhibit K are true and correct copies of internal Northwind Maritime Corporation email communications regarding the M/V Aegean Fortuna's September 2022 Maputo call. These documents were produced by Northwind in response to Defendants' discovery requests and bear Bates numbers NW-005742 through NW-005789. The following emails are of particular significance to Issue Two of Defendants' motion: (a)

37. Attached hereto as Exhibit L is a true and correct copy of the expert report of Dr. Henrik Sørensen, dated August 5, 2024. Dr. Sørensen is a Principal at Nordic Maritime Consulting Group ApS, located at Amaliegade 33, 1256 Copenhagen K, Denmark. He holds a Ph.D. in Marine Engineering from the Technical University of Denmark and has more than twenty-five years of experience in maritime engineering, vessel maintena

38. In his report, Dr. Sørensen opines, among other things, as follows: (a) The Incident 1 turbocharger failure was attributable to a latent manufacturing defect in the turbocharger rotor assembly that was not detectable through standard maintenance protocols, and that TSL exercised due diligence in the maintenance and inspection of the turbocharger prior to the failure. (b) The Incident 2 BWTS malfunction was consis

39. Dr. Sørensen's separate declaration, submitted pursuant to CPLR § 2106, is filed concurrently with this declaration. M. Exhibit M — Expert Report of Dr. Constance Albright (August 5, 2024)

40. Attached hereto as Exhibit M is a true and correct copy of the expert report of Dr. Constance Albright, dated August 5, 2024. Dr. Albright is a Managing Director at Clearwater Economics LLC, located at 1001 Pennsylvania Avenue NW, Suite 700, Washington, DC 20004. She holds a Ph.D. in Economics from the University of Chicago and specializes in commercial damages analysis, with particular expertise in maritime and

41. In her report, Dr. Albright opines, among other things, as follows: (a) The proper application of the Clause 28 liquidated damages formula yields a total of $1,504,500.00, computed as 68 total off-hire days multiplied by the daily hire rate of $14,750.00, multiplied by 150%. This amount is subject to the $4,500,000.00 cap, but because the formula result ($1,504,500.00) is less than the cap, the cap does not come

42. Dr. Albright's separate declaration, submitted pursuant to CPLR § 2106, is filed concurrently with this declaration. N. Exhibit N — Sub-Charter Agreement Between Northwind and Eastbourne Bulk Carriers Ltd.

43. Attached hereto as Exhibit N is a true and correct copy of the sub-charter agreement entered into between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna. This document was produced by Northwind following a discovery dispute regarding Northwind's initially deficient production of sub-charter documents. The dispute was the subject of my letter dated April 5, 2024, addres

44. The sub-charter agreement establishes a sub-charter rate of $17,200.00 per day, which represents a premium of $2,450.00 per day over the Charter-Party hire rate of $14,750.00. This sub-charter rate is relevant to the computation of Northwind's claimed lost sub-charter profits, which Defendants calculate as ($17,200 − $14,750) × 68 off-hire days = $166,600.00. The sub-charter agreement is also relevant to the miti

45. Attached hereto as Exhibit O are true and correct copies of documents relating to the Qingdao laycan window of October 1–5, 2022, including the underlying cargo contract between Northwind and the cargo interests, the relevant laycan provisions, and Northwind's demurrage and dead freight claim in the amount of $1,230,000.00. These documents were produced by Northwind in discovery.

46. This documentation is relevant to Issue Two of Defendants' motion. Northwind's demurrage and dead freight claim of $1,230,000.00 is predicated on the allegation that the September 2022 Maputo call constituted an unauthorized deviation that caused the vessel to miss the Qingdao laycan. If the Court determines, as Defendants urge, that the Maputo call was not a breach of the Charter-Party—because it fell within the

V. STATEMENT REGARDING AUTHENTICITY AND COMPLETENESS

47. I hereby state that each exhibit attached to this declaration, Exhibits A through O, is a true and correct copy of the original document as produced in discovery in this action or as otherwise obtained from the sources identified above. No material alterations, modifications, or redactions have been made to the attached exhibits, except for the extraction of relevant excerpts from deposition transcripts as specif

48. All deposition excerpts attached hereto are true and correct excerpts from the certified transcripts of depositions taken in this action. The full transcripts are available and will be made available to the Court upon request.

49. I have personally reviewed each exhibit attached hereto and confirm its accuracy and authenticity based on my personal knowledge and my involvement in the discovery proceedings in this action.

50. I respectfully submit this declaration and the attached Exhibits A through O in support of Defendants' Motion for Partial Summary Judgment. I respectfully request that the Court consider these exhibits in connection with the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment and the Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a, both of

51. For the reasons set forth in the accompanying Memorandum of Law, Defendants respectfully submit that the undisputed record evidence establishes their entitlement to partial summary judgment on both Issue One (the interpretation of the Clause 28 liquidated damages cap) and Issue Two (dismissal of the deviation claim related to the September 2022 Maputo call), and that there are no genuine disputes of material fact