Contract analysis
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Contract analysis / reply-memo-motion-to-dismiss.docx
reply-memo-motion-to-dismiss.docx
High · 3
Medium · 0
Standard · 0
I. COUNT V (UNJUST ENRICHMENT) MUST BE DISMISSED BECAUSE AN EXPRESS CONTRACT GOVERNS THE P
High
⚑ Penalty / liquidated damages
I. COUNT V (UNJUST ENRICHMENT) MUST BE DISMISSED BECAUSE AN EXPRESS CONTRACT GOVERNS THE PARTIES' DISPUTE A. Northwind's Opposition Concedes the Existence of a Valid Contract. It is black-letter New York law that "the theory of unjust enrichment lies as a quasi-contract claim" and that "[i]t is impermissible . . . to seek damages in an action sounding in quasi contract where the suing party has an adequate remedy at
II. COUNT III (THIRD-PARTY SHIPPER CLAIMS AS CHARTER-PARTY DAMAGES) FAILS TO STATE A CLAIM
High
⚑ Penalty / liquidated damages
II. COUNT III (THIRD-PARTY SHIPPER CLAIMS AS CHARTER-PARTY DAMAGES) FAILS TO STATE A CLAIM A. Northwind Cannot Recover Third-Party Shipper Claims as Pass-Through Damages Under the Charter-Party. ##### 1. The Third-Party Claims Are Not Recoverable Contract Damages Count III of the Complaint seeks to recover $5,634,400 representing three separate cargo claims brought against Northwind by third-party shippers in connect
III. NORTHWIND'S OPPOSITION RAISES NO GENUINE FACTUAL ISSUES THAT PRECLUDE DISMISSAL
High
⚑ Penalty / liquidated damages
III. NORTHWIND'S OPPOSITION RAISES NO GENUINE FACTUAL ISSUES THAT PRECLUDE DISMISSAL A. The Motion to Dismiss Standard Does Not Require Factual Development. Northwind's Opposition devotes a considerable portion of its pages — over twelve pages, by Defendants' count — to a detailed factual recitation of TSL's alleged maintenance failures and the condition of the M/V Aegean Fortuna (IMO No. 9847231, Supramax dry bulk c