SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION
CONSENT JUDGMENT
November 26, 2024
TO BE FILED ONLY UPON DEFAULT BY DEFENDANTS PURSUANT TO SECTION 7.3 OF THE SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE DATED NOVEMBER 20, 2024
WHEREAS, Plaintiff Northwind Maritime Corporation ("Northwind"), a corporation duly incorporated and existing under the laws of the Republic of the marshall Islands, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902, commenced this action on October 2, 2023, by filing a Summons and Verified Complaint with this Court against Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal place of business and headquarters at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding"), a limited liability company organized and existing under the laws of the Republic of Liberia, with a registered address at 80 Broad Street, Monrovia, Liberia (Thalassa and Aegean Fortuna Shipholding, collectively, the "Defendants"), asserting causes of action for, among other things, breach of a time charter-party bearing reference number NW-TSL-CP-2020-1203, dated December 3, 2020, entered into between Northwind, as charterer, and Thalassa, as disponent owner, for the vessel M/V Aegean Fortuna (IMO No. 9847231), a 2019-built Supramax bulk carrier of approximately 63,500 deadweight tons, registered under the flag of the Republic of Liberia, together with related claims for damages arising from Defendants' alleged repudiatory breach, off-hire deductions, and failure to maintain the vessel in a seaworthy condition in accordance with the charter-party terms; and
WHEREAS, on November 17, 2023, Defendants, by and through their counsel, Calderwood & Harkness LLP, filed a Verified Answer and Counterclaim in this action, denying Northwind's substantive allegations and asserting affirmative defenses and a counterclaim against Northwind in the amount of One Million Six Hundred Twenty Thousand Dollars ($1,620,000), representing alleged unpaid hire and related charges that Defendants contended were owing under the charter-party; and
WHEREAS, the parties thereafter engaged in extensive discovery proceedings, motion practice, and arm's-length settlement negotiations, including a court-ordered mediation conducted on August 14, 2024, before the Honorable Robert A. Fishman (Ret.) of JAMS; and
WHEREAS, on November 20, 2024, the parties entered into a Settlement Agreement and Mutual General Release (the "Settlement Agreement"), which fully resolves all claims, counterclaims, cross-claims, and defenses asserted or which could have been asserted in this action, pursuant to which Defendants agreed to pay to Northwind the total sum of Seven Million Eight Hundred Fifty Thousand Dollars ($7,850,000) (the "Settlement Amount"), payable in three installments as follows:
(a) Payment 1: Four Million Dollars ($4,000,000), due and payable within thirty (30) calendar days of the Effective Date of the Settlement Agreement (as defined therein);
(b) Payment 2: Two Million Dollars ($2,000,000), due and payable within ninety (90) calendar days of the Effective Date of the Settlement Agreement; and
(c) Payment 3: One Million Eight Hundred Fifty Thousand Dollars ($1,850,000), due and payable within one hundred fifty (150) calendar days of the Effective Date of the Settlement Agreement;
and
WHEREAS, all settlement payments are to be deposited into an interest-bearing escrow account established with and maintained by Atlantic Fiduciary Trust Company, located at 60 Wall Street, Suite 2800, New York, New York 10005, designated as Escrow Account No. ESC-2024-NYK-08831, and released to Northwind upon joint written instruction of the parties in accordance with the terms of the Settlement Agreement and the related Escrow Agreement dated November 20, 2024; and
WHEREAS, Section 7.3 of the Settlement Agreement expressly provides that, in the event Defendants default on any payment obligation thereunder and fail to cure such default within ten (10) business days following written notice of default from Northwind delivered in accordance with the notice provisions of the Settlement Agreement, Northwind shall be entitled, without further notice or application to the Court, to file this Consent Judgment with the Court for the unpaid balance of the Settlement Amount, together with interest at the rate of nine percent (9%) per annum (the statutory rate under New York law as set forth in Section 5004 of the New York Civil Practice Law and Rules), accruing from the date of such default until the date of full satisfaction of the Judgment; and
WHEREAS, the parties have stipulated and agreed, and this Court has so-ordered, that this Court shall retain jurisdiction over this matter for a period of one hundred eighty (180) days following the Effective Date of the Settlement Agreement for the express purpose of enforcing the terms of the Settlement Agreement, including the entry of this Consent Judgment upon the occurrence of a default as defined therein, pursuant to the Stipulation and Order Retaining Jurisdiction to Enforce Settlement entered by this Court on November 26, 2024 (the "Retention Order"); and
WHEREAS, Defendants, by and through their counsel of record in this action, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006 (Douglas Carmichael, Responsible Partner), have knowingly, voluntarily, and with the advice of counsel, consented to the entry of this Consent Judgment in the event of a default as defined in Section 7.3 of the Settlement Agreement, and have authorized their counsel to execute this Consent Judgment on their behalf for that purpose; and
WHEREAS, Northwind is represented in this action by Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022 (Margaret Delacroix, Lead Partner); and
WHEREAS, this Consent Judgment is being executed simultaneously with the Settlement Agreement and held in escrow by Atlantic Fiduciary Trust Company pending the occurrence, if any, of a default by Defendants under the Settlement Agreement, and is to be filed with this Court only in the event of such a default; and
WHEREAS, this Consent Judgment does not constitute, and shall not be construed as, an admission of liability, fault, or wrongdoing by any party with respect to any of the claims, counterclaims, or defenses asserted or which could have been asserted in this action, consistent with the terms of the Settlement Agreement;
NOW, THEREFORE, upon submission by Northwind of the documents and proofs set forth below, and upon due consideration thereof, and it appearing to this Court that the requirements for entry of this Consent Judgment have been satisfied, it is hereby:
OPERATIVE JUDGMENT PROVISIONS
Section 1: Entry of Judgment
Upon submission by Northwind to this Court of a sworn affidavit of default (substantially in the form attached hereto as Exhibit C) executed by an officer of Northwind or by counsel for Northwind with personal knowledge of the relevant facts, establishing the following:
(a) the specific installment payment or payments that are in default;
(b) the date or dates on which such payment or payments were due and payable under the Settlement Agreement;
(c) the outstanding unpaid balance of the Settlement Amount as of the date of the affidavit, together with a calculation of the credit, if any, to which Defendants are entitled for payments previously made and released from escrow;
(d) that written notice of default was provided to Defendants and their counsel of record in accordance with the notice provisions set forth in Section 11.2 of the Settlement Agreement; and
(e) that the ten (10) business day cure period specified in Section 7.3 of the Settlement Agreement has expired without Defendants having cured the default in full;
it is hereby ORDERED, ADJUDGED, AND DECREED that judgment is entered in favor of Plaintiff Northwind Maritime Corporation and against Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., jointly and severally, in the amount of the Unpaid Balance (as defined in Section 2 below), together with interest thereon as provided in Section 3 below, plus all costs, disbursements, and attorneys' fees recoverable under Section 7 below.
Section 2: Definition of Unpaid Balance
For purposes of this Consent Judgment, the term "Unpaid Balance" shall mean the aggregate amount of all installment payments that remain unpaid as of the date of Defendants' default under the Settlement Agreement, calculated as follows:
(a) The Unpaid Balance shall equal the total Settlement Amount of Seven Million Eight Hundred Fifty Thousand Dollars ($7,850,000), less the cumulative amount of all installment payments that have been previously made by Defendants and actually released from the escrow account maintained by Atlantic Fiduciary Trust Company (Escrow Account No. ESC-2024-NYK-08831) to Northwind prior to the date of default. For the avoidance of doubt, any payment deposited into escrow but not yet released to Northwind as of the date of default shall not be credited against the Unpaid Balance unless and until such payment is actually released to and received by Northwind.
(b) The Unpaid Balance shall be the arithmetic difference between the total Settlement Amount of $7,850,000 and the cumulative payments actually received by Northwind from the escrow account as of the date of default.
By way of illustration and not limitation, the following examples demonstrate the calculation of the Unpaid Balance under various default scenarios:
(i) If Payment 1 ($4,000,000) has been timely made and released to Northwind, but Payment 2 ($2,000,000) has not been made by its due date and remains unpaid following expiration of the cure period, the Unpaid Balance shall be $3,850,000 (representing the sum of Payment 2 and Payment 3, regardless of whether the due date for Payment 3 has yet occurred, as set forth in Section 5 below).
(ii) If no payments have been made and released to Northwind, and Payment 1 ($4,000,000) has not been made by its due date and remains unpaid following expiration of the cure period, the Unpaid Balance shall be $7,850,000.
(iii) If Payment 1 ($4,000,000) and Payment 2 ($2,000,000) have been timely made and released to Northwind, but Payment 3 ($1,850,000) has not been made by its due date and remains unpaid following expiration of the cure period, the Unpaid Balance shall be $1,850,000.
Section 3: Interest
The Unpaid Balance shall bear interest at the rate of nine percent (9%) per annum, calculated on a simple interest basis (365-day year), accruing from the date of Defendants' default — that is, the date upon which the defaulted installment payment was originally due and payable under the Settlement Agreement — and continuing until the date of full satisfaction of this Judgment. The interest rate specified herein is consistent with the statutory interest rate applicable to judgments under Section 5004 of the New York Civil Practice Law and Rules ("CPLR § 5004"). Interest shall be computed on the full amount of the Unpaid Balance as determined in Section 2 above, without compounding.
Section 4: Joint and Several Liability
Judgment shall be entered against both Defendant Thalassa Shipping & Logistics SA and Defendant Aegean Fortuna Shipholding Ltd. jointly and severally, such that each Defendant shall be fully liable for the entire amount of the Unpaid Balance, together with all accrued interest, costs, disbursements, and attorneys' fees recoverable hereunder. This provision is consistent with and reflects the joint and several liability obligations assumed by Defendants under Section 4.1 of the Settlement Agreement. Northwind may pursue collection and enforcement of this Judgment against either or both Defendants, in any order, without being required to first exhaust remedies against one Defendant before proceeding against the other.
Section 5: Acceleration
Upon entry of this Consent Judgment, all remaining installments under the Settlement Agreement that have not yet been paid and released to Northwind shall be deemed immediately due and payable in full, regardless of whether the scheduled due dates for such installments have yet occurred. Accordingly, the Unpaid Balance shall reflect the total of all unpaid installments, including any installments for which the due date has not yet passed as of the date of default. This acceleration provision is consistent with and incorporates the acceleration clause set forth in Section 7.4 of the Settlement Agreement.
Section 6: Credits Against Judgment
Defendants shall receive full credit against this Judgment for any and all settlement installment payments that were previously made by Defendants and actually released from escrow through Atlantic Fiduciary Trust Company (Escrow Account No. ESC-2024-NYK-08831) to Northwind prior to the entry of this Consent Judgment. In the event Defendants make additional payments after entry of this Consent Judgment in partial satisfaction thereof, such payments shall be applied first to accrued interest, then to costs and disbursements, then to attorneys' fees, and finally to the principal amount of the Unpaid Balance.
Upon receipt by Northwind of payment in full of the Unpaid Balance, together with all accrued interest, costs, disbursements, and recoverable attorneys' fees, Northwind shall promptly file with this Court a Satisfaction of Judgment or Partial Satisfaction of Judgment, as appropriate, in accordance with CPLR § 5020 and any applicable rules of this Court. In no event shall Northwind unreasonably delay the filing of a satisfaction or partial satisfaction of judgment following receipt of payment.
Section 7: Costs and Disbursements
In addition to the Unpaid Balance and accrued interest, Northwind shall be entitled to recover from Defendants all costs and disbursements reasonably incurred in connection with the filing and enforcement of this Consent Judgment, including but not limited to:
(a) filing fees and court costs associated with the submission and entry of this Consent Judgment;
(b) service of process costs;
(c) fees and costs associated with execution, levy, restraining notices, information subpoenas, and any other enforcement proceedings;
(d) fees and expenses of the escrow agent, Atlantic Fiduciary Trust Company, to the extent such fees are attributable to Defendants' default; and
(e) reasonable attorneys' fees and expenses incurred by Northwind in connection with enforcement proceedings arising from Defendants' default, to the extent provided under Section 7.3 of the Settlement Agreement.
The foregoing recovery of costs, disbursements, and attorneys' fees is expressly authorized by and consistent with the provisions of Section 7.3 of the Settlement Agreement, which provides that a defaulting party shall bear all reasonable costs and expenses of enforcement, including reasonable attorneys' fees.
Section 8: No Admission of Liability
The entry of this Consent Judgment does not constitute, and shall not be construed as, an admission of liability, fault, wrongdoing, or the validity of any claim or defense by any party with respect to any of the causes of action, counterclaims, defenses, or other matters asserted or which could have been asserted in this action. This Consent Judgment is entered solely to provide Northwind with a mechanism for the efficient enforcement of Defendants' payment obligations under the Settlement Agreement in the event of a default, and for no other purpose. The terms of this provision are consistent with Section 9.1 of the Settlement Agreement.
Section 9: Release Not Affected
The mutual general release set forth in Article VI of the Settlement Agreement shall remain in full force and effect notwithstanding the entry of this Consent Judgment and shall not be impaired, modified, diminished, or in any way affected by the entry hereof. Nothing in this Consent Judgment shall be deemed to revive, reinstate, or permit the assertion of any claims, counterclaims, cross-claims, or causes of action that were previously released under the Settlement Agreement. For the avoidance of doubt, Defendants' obligation to pay the Unpaid Balance and accrued interest under this Consent Judgment arises solely from and is measured by Defendants' payment obligations under the Settlement Agreement, and nothing herein shall be construed to reinstate any of the original claims or counterclaims asserted in this action.
Section 10: Governing Law
This Consent Judgment shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law that would require or permit the application of the laws of any other jurisdiction. All questions concerning the interpretation, validity, and enforcement of this Consent Judgment shall be determined in accordance with New York law, including the provisions of the New York Civil Practice Law and Rules.
Section 11: Enforcement
Northwind may enforce this Consent Judgment by any and all means available under the laws of the State of New York and applicable federal law, including but not limited to:
(a) execution against the property and assets of Defendants, wherever located, pursuant to CPLR Article 52;
(b) restraining notices served upon Defendants and third parties in accordance with CPLR § 5222;
(c) information subpoenas directed to Defendants and third parties in accordance with CPLR § 5224;
(d) proceedings supplementary to judgment pursuant to CPLR § 5225 and § 5227;
(e) turnover orders and receivership, to the extent available;
(f) domestication of this Judgment in other jurisdictions, including foreign jurisdictions, pursuant to applicable law, including the Uniform Enforcement of Foreign Judgments Act and any applicable treaty or convention; and
(g) any other lawful remedy or procedure available to a judgment creditor under New York law.
Nothing in this Consent Judgment shall be construed to limit or restrict Northwind's rights or remedies under applicable law, including the right to seek recognition and enforcement of this Judgment in any court of competent jurisdiction, whether within or outside the State of New York.
CONSENT AND STIPULATION OF THE PARTIES
The undersigned counsel for the parties, being duly authorized to act on behalf of their respective clients, hereby stipulate and consent to the entry of this Consent Judgment in the event of a default by Defendants as described herein and in Section 7.3 of the Settlement Agreement and Mutual General Release dated November 20, 2024. The undersigned counsel for Defendants confirm that Defendants have knowingly, voluntarily, and with the advice of counsel, authorized the execution and delivery of this Consent Judgment and have consented to its entry by this Court upon the conditions set forth herein.
FOR DEFENDANTS:
CALDERWOOD & HARKNESS LLP One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 558-4000
By: ________
Douglas Carmichael, Responsible Partner Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
Date: November 26, 2024
FOR PLAINTIFF:
HARGROVE, DELACROIX & STERN LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 446-7200
By: ________
Margaret Delacroix, Lead Partner Attorneys for Plaintiff Northwind Maritime Corporation
Date: November 26, 2024
SO ORDERED
________________________________________
Hon. Lorraine K. Chen, J.S.C. Supreme Court of the State of New York New York County, Commercial Division Part 49 60 Centre Street New York, New York 10007
Date: ________
EXHIBITS INCORPORATED BY REFERENCE
The following documents are incorporated herein by reference and shall be submitted to the Court in connection with any application by Northwind to file this Consent Judgment upon default by Defendants:
Exhibit A: Settlement Agreement and Mutual General Release dated November 20, 2024 (Execution Version), by and among Northwind Maritime Corporation, Thalassa Shipping & Logistics SA, and Aegean Fortuna Shipholding Ltd.
Exhibit B: Stipulation and Order Retaining Jurisdiction to Enforce Settlement, entered by the Court on November 26, 2024, Index No. 655421/2023.
Exhibit C: Form of Affidavit of Default, to be completed and sworn to by an officer of Northwind or by counsel for Northwind with personal knowledge at the time of filing, establishing the facts required under Section 1 of this Consent Judgment for entry of judgment upon default.
NORTHWIND MARITIME CORPORATION,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Index No. 655421/2023
– against –
Hon. Lorraine K. Chen, J.S.C.
THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD.,
<!-- indent:2 -->Defendants.<!-- /indent -->