SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION
NORTHWIND MARITIME CORPORATION, a corporation organized under the laws of the Republic of the marshall Islands,
Plaintiff,
— against —
THALASSA SHIPPING & LOGISTICS SA, a Société Anonyme organized under the laws of the Hellenic Republic, and AEGEAN FORTUNA SHIPHOLDING LTD., a limited liability company organized under the laws of the Republic of Liberia,
Defendants.
Index No.: 655421/2023 Assigned Justice: Hon. Lorraine K. Chen, J.S.C. Part 49
STIPULATION AND ORDER RETAINING JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT
PREAMBLE AND RECITALS
Plaintiff Northwind Maritime Corporation ("Northwind" or "Plaintiff"), by its attorneys Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022, and Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding" and, together with Thalassa, "Defendants"), by their attorneys Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006, hereby stipulate and agree, subject to the approval and so-ordering by this Court, as follows:
WHEREAS, the above-captioned action was commenced by Northwind on October 2, 2023, by the filing of a Summons and Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division, alleging, among other things, breach of a time charter-party bearing Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party") for the vessel M/V Aegean Fortuna (IMO No. 9847231), and asserting claims for damages, including unpaid charter hire, off-hire deductions, bunker costs, and related consequential damages arising from Defendants' alleged non-performance and breach of the Charter-Party;
WHEREAS, Defendants filed a Verified Answer and Counterclaim on November 17, 2023, denying the material allegations of the Verified Complaint and asserting counterclaims against Northwind for, among other things, wrongful termination of the Charter-Party, reputational harm, and losses allegedly sustained in connection with Northwind's purported failure to redeliver the vessel in accordance with the terms of the Charter-Party;
WHEREAS, the parties engaged in extensive discovery from January 2024 through August 2024, including the exchange of thousands of pages of documents, completion of depositions of fact witnesses and corporate representatives, service and exchange of expert reports concerning, among other topics, vessel valuation, market rates for charter hire in the applicable trade, and damages calculations, and Defendants filed a Motion for Partial Summary Judgment on September 20, 2024, which motion was fully briefed and pending before this Court;
WHEREAS, the parties participated in a mediation on October 28–29, 2024, before the Honorable Gerald K. Fitzpatrick (Ret.) of Bayside Dispute Resolution Services LLC, 140 Broadway, Suite 3200, New York, New York 10005, and, at the conclusion of the second day of mediation on October 29, 2024, the parties reached a settlement in principle resolving all disputes between them in connection with this action;
WHEREAS, the parties have executed a Settlement Agreement and Mutual General Release dated November 20, 2024 (the "Settlement Agreement"), which resolves all claims, counterclaims, cross-claims, and third-party claims asserted or that could have been asserted in this action, and contains the full and complete terms of the parties' settlement;
WHEREAS, the Settlement Agreement provides for payment by Defendants to Plaintiff of a total settlement amount of Seven Million Eight Hundred Fifty Thousand Dollars ($7,850,000.00), payable in three installments, through an escrow account (Account No. ESC-2024-NYK-08831) maintained by Atlantic Fiduciary Trust Company, 60 Wall Street, Suite 2800, New York, New York 10005 (the "Escrow Agent"), in accordance with the terms of the Settlement Agreement and a related Escrow Agreement dated November 20, 2024;
WHEREAS, the Settlement Agreement contains provisions, set forth at Section 7.3 thereof, permitting entry of a consent judgment against Defendants in the event of a default by Defendants in making any settlement payment in accordance with the Settlement Agreement, and the parties have executed a Proposed Consent Judgment in the form annexed as Exhibit B to the Settlement Agreement;
WHEREAS, the parties have separately stipulated, by written stipulation dated November 25, 2024, to the withdrawal with prejudice of Defendants' pending Motion for Partial Summary Judgment filed on September 20, 2024, and any and all other pending motions in this action;
WHEREAS, the parties have jointly informed the Court of the settlement by letter dated November 25, 2024, filed on the New York State Courts Electronic Filing System ("NYSCEF"), and have requested the vacation of the compliance conference previously scheduled for December 6, 2024; and
WHEREAS, the parties now seek an order of this Court retaining jurisdiction over this action and the parties for a defined period of time to enforce the terms of the Settlement Agreement, including but not limited to the entry of a consent judgment in the event of a payment default by Defendants.
NOW, THEREFORE, it is hereby stipulated and agreed by and between the undersigned counsel for the parties, and upon the Court's so-ordering below, it is hereby ORDERED as follows:
1. RETENTION OF JURISDICTION
1.1. The Court shall retain jurisdiction over this action and over the parties hereto for a period of one hundred and eighty (180) days following the Effective Date of the Settlement Agreement, as that term is defined therein (the "Enforcement Period"), for the sole and limited purpose of enforcing the terms and conditions of the Settlement Agreement.
1.2. Without limiting the generality of the foregoing, the Court's retained jurisdiction during the Enforcement Period shall extend to:
(a) compelling performance of any obligation of any party under the Settlement Agreement, including but not limited to the payment obligations set forth in Section 4 thereof and the escrow disbursement provisions set forth in Section 5 thereof;
(b) entering a consent judgment against Defendants, jointly and severally, upon a payment default, as provided in Section 7.3 of the Settlement Agreement and Section 3 of this Stipulation and Order, in the form of the Proposed Consent Judgment executed by the parties and annexed as Exhibit B to the Settlement Agreement; and
(c) resolving any and all disputes arising out of or relating to the interpretation, performance, or enforcement of the Settlement Agreement, including any dispute regarding compliance with the confidentiality, non-disparagement, or other non-monetary provisions contained therein.
1.3. The retention of jurisdiction provided for in this Section 1 is without prejudice to any party's right to seek enforcement of the Settlement Agreement in any court of competent jurisdiction, should the Enforcement Period expire prior to full resolution of any enforcement proceeding commenced hereunder.
2. PAYMENT TERMS SUMMARY (INCORPORATED BY REFERENCE)
2.1. The Settlement Agreement provides for three payments by Defendants to Plaintiff, totaling Seven Million Eight Hundred Fifty Thousand Dollars ($7,850,000.00), as follows:
(a) Payment 1: Four Million Dollars ($4,000,000.00), due and payable within thirty (30) days of the Effective Date of the Settlement Agreement;
(b) Payment 2: Two Million Dollars ($2,000,000.00), due and payable within ninety (90) days of the Effective Date of the Settlement Agreement; and
(c) Payment 3: One Million Eight Hundred Fifty Thousand Dollars ($1,850,000.00), due and payable within one hundred and fifty (150) days of the Effective Date of the Settlement Agreement.
2.2. All payments shall be made by wire transfer of immediately available funds and deposited with Atlantic Fiduciary Trust Company (Escrow Account No. ESC-2024-NYK-08831), to be released to Northwind upon joint written instruction of the parties or as otherwise provided in the Escrow Agreement dated November 20, 2024, between Northwind, Thalassa, Aegean Fortuna Shipholding, and Atlantic Fiduciary Trust Company.
2.3. The payment terms summarized in this Section 2 are set forth for informational purposes and for the Court's reference in connection with any enforcement application hereunder. The complete payment terms, including provisions governing wire transfer instructions, escrow release procedures, tax withholding obligations, and related matters, are set forth in the Settlement Agreement. In the event of any conflict between the summary set forth in this Section 2 and the terms of the Settlement Agreement, the Settlement Agreement shall govern.
2.4. The Court's retained jurisdiction under this Stipulation and Order shall extend to enforcement of all payment obligations described in this Section 2 and as more fully set forth in the Settlement Agreement.
3. DEFAULT AND CONSENT JUDGMENT
3.1. In the event that Defendants fail to make any payment required under the Settlement Agreement within the time periods specified therein, and such failure continues for a period of ten (10) business days after written notice of default has been delivered by Plaintiff to Defendants' counsel, Calderwood & Harkness LLP, at One Liberty Plaza, 50th Floor, New York, New York 10006, Attention: Douglas Carmichael (a "Payment Default"), then Plaintiff shall be entitled to apply to this Court for entry of a consent judgment against Defendants, jointly and severally, as set forth in this Section 3.
3.2. Upon the occurrence of a Payment Default, Plaintiff may:
(a) apply to this Court, on notice to Defendants and their counsel, for entry of a consent judgment against Defendants in the amount of the then-unpaid balance of the total settlement amount of $7,850,000.00, together with interest at the rate of nine percent (9%) per annum (the statutory rate under Section 5004 of the New York Civil Practice Law and Rules), calculated from the date of the Payment Default through and including the date of payment in full, all in accordance with the Proposed Consent Judgment prepared and executed by the parties pursuant to Section 7.3 of the Settlement Agreement and annexed thereto as Exhibit B; and
(b) make such application by order to show cause or by notice of motion returnable on such date as the Court may direct, accompanied by a supporting affidavit or declaration from Plaintiff's counsel attesting to the occurrence of the Payment Default, the date on which written notice of default was delivered to Defendants' counsel, the expiration of the ten (10) business-day cure period without cure, and the amount of the then-unpaid balance of the settlement amount.
3.3. Defendants hereby irrevocably consent to the entry of such consent judgment during the Enforcement Period and expressly waive any right to contest the jurisdiction of this Court to enter the same during the Enforcement Period. Defendants further waive any right to challenge the amount of the consent judgment, provided that it does not exceed the then-unpaid balance of the settlement amount plus accrued interest at the rate specified in Section 3.2(a) above. Nothing in this paragraph shall be construed to waive Defendants' right to demonstrate, in opposition to any application under this Section 3, that the Payment Default has been cured prior to the hearing on such application.
3.4. Nothing in this Stipulation and Order shall limit, impair, or otherwise affect Plaintiff's right to pursue any other remedies available at law or in equity in connection with a default under the Settlement Agreement, including without limitation the right to commence a plenary action for breach of the Settlement Agreement in any court of competent jurisdiction, the right to seek specific performance, or the right to pursue enforcement of the Escrow Agreement against the Escrow Agent.
4. DISCONTINUANCE
4.1. Pursuant to Section 8.1 of the Settlement Agreement, within ten (10) business days of Defendants' timely remittance of the final payment (Payment 3, as described in Section 2.1(c) above) and the release of such payment from escrow to Northwind, the parties shall execute and file a Stipulation of discontinuance with Prejudice on NYSCEF, discontinuing this action in its entirety, with prejudice, including all claims asserted in the Verified Complaint, all counterclaims asserted in the Verified Answer and Counterclaim, and any and all cross-claims, third-party claims, or other claims that were or could have been asserted herein, each party to bear its own costs and attorneys' fees except as otherwise provided in the Settlement Agreement.
4.2. Upon the filing of the Stipulation of discontinuance with Prejudice, the Court's retained jurisdiction under this Stipulation and Order shall terminate in all respects, except that the Court shall retain jurisdiction to enforce any consent judgment that has been entered prior to the filing of the Stipulation of discontinuance, including jurisdiction to entertain any post-judgment enforcement proceedings with respect to such consent judgment.
4.3. In the event that the Stipulation of discontinuance with Prejudice is not filed within the time specified in Section 4.1 above due to a Payment Default or for any other reason attributable to a breach of the Settlement Agreement by any party, the Court's jurisdiction over this action and the parties shall continue for the remainder of the 180-day Enforcement Period as provided in Section 1, and any party may seek appropriate relief from the Court during such period.
5. WITHDRAWAL OF PENDING MOTIONS
5.1. The parties hereby confirm that all pending motions in this action, including but not limited to Defendants' Motion for Partial Summary Judgment filed on September 20, 2024 (NYSCEF Doc. No. 87), together with all supporting and opposing papers filed in connection therewith, have been or shall be withdrawn with prejudice, without costs to any party, pursuant to a separate Stipulation Withdrawing Pending Motions dated November 25, 2024, which has been filed on NYSCEF.
5.2. No further motions shall be filed in this action except as necessary to enforce the Settlement Agreement as provided in this Stipulation and Order, or to effectuate the discontinuance of this action as provided in Section 4 hereof. Any motion filed in contravention of this provision shall be subject to sanctions as the Court deems appropriate.
6. CONFIDENTIALITY
6.1. The terms and conditions of the Settlement Agreement, including the settlement amount and the payment schedule, are confidential as between the parties, subject to such disclosures as are expressly permitted under the Settlement Agreement, including without limitation disclosures to the parties' respective insurers, lenders, auditors, tax advisors, officers, directors, and legal counsel, and disclosures required by applicable law, regulation, or order of a court or governmental body of competent jurisdiction.
6.2. This Stipulation and Order does not require, and shall not be construed to require, the filing of the Settlement Agreement, the Escrow Agreement, or any exhibit or schedule thereto on the public docket of this action or on NYSCEF. The Settlement Agreement and related documents shall remain confidential and shall not be part of the public record in this action.
6.3. Notwithstanding the foregoing, in the event of an application for entry of a consent judgment under Section 3 of this Stipulation and Order, or any other enforcement proceeding before this Court, Plaintiff may file such portions of the Settlement Agreement, including the Proposed Consent Judgment (Exhibit B thereto), as are reasonably necessary to support such application. In connection with any such filing, any party may apply to the Court, by motion or order to show cause, for entry of a protective order or sealing order pursuant to 22 NYCRR § 216.1, and the opposing party shall not unreasonably object to the entry of such an order to the extent it is consistent with applicable law and the public interest.
7. NOTICE PROVISIONS
7.1. All notices, requests, demands, or other communications required or permitted under this Stipulation and Order shall be in writing and shall be deemed to have been duly given when delivered by hand, by overnight courier (with confirmation of delivery), or by electronic mail (with confirmation of receipt), addressed as follows:
For Plaintiff Northwind Maritime Corporation:
Margaret Delacroix, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 555-7400
Email: mdelacroix@hdslaw.com
For Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.:
Douglas Carmichael, Esq. Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 555-3100
Email: dcarmichael@calderwoodharkness.com
7.2. Any party may change its designated recipient or address for notices by providing written notice of such change to all other parties and their counsel in accordance with this Section 7.
7.3. Copies of any application to the Court under this Stipulation and Order, including any order to show cause, notice of motion, supporting affidavit or declaration, or proposed order, shall be served simultaneously on all parties' counsel at the addresses set forth above. Service of such papers may be made by any means permitted under the New York Civil Practice Law and Rules, including electronic service through NYSCEF.
8. MISCELLANEOUS PROVISIONS
8.1. Binding Effect. This Stipulation and Order shall be binding upon the parties and their respective successors, assigns, heirs, executors, administrators, and legal representatives. Each party represents and warrants that the person executing this Stipulation and Order on its behalf has been duly authorized to do so and has the full power and authority to bind the party on whose behalf he or she is signing.
8.2. Modification. This Stipulation and Order may not be amended, modified, or supplemented except by a writing signed by counsel for all parties, so-ordered by this Court. No waiver of any provision of this Stipulation and Order shall be effective unless made in writing and so-ordered by this Court.
8.3. Governing Law. This Stipulation and Order shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to principles of conflicts of law that would require the application of the laws of any other jurisdiction.
8.4. Headings. The headings and section numbers used in this Stipulation and Order are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision hereof.
8.5. Counterparts. This Stipulation and Order may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Signatures transmitted by facsimile or by electronic means (including PDF) shall have the same force and effect as original signatures.
8.6. Entire Agreement. This Stipulation and Order, together with the Settlement Agreement and the Escrow Agreement, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, agreements, and understandings, whether oral or written, relating to the retention of jurisdiction by this Court.
8.7. Court Filing. Counsel for Plaintiff shall file this Stipulation and Order on NYSCEF promptly upon its execution by the parties and so-ordering by the Court.
IN WITNESS WHEREOF, the undersigned counsel have executed this Stipulation and Order as of the dates set forth below.
FOR PLAINTIFF NORTHWIND MARITIME CORPORATION:
HARGROVE, DELACROIX & STERN LLP
By: ________
Margaret Delacroix, Partner 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 555-7400
Email: mdelacroix@hdslaw.com
Attorneys for Plaintiff Northwind Maritime Corporation
Dated: ________
FOR DEFENDANTS THALASSA SHIPPING & LOGISTICS SA AND AEGEAN FORTUNA SHIPHOLDING LTD.:
CALDERWOOD & HARKNESS LLP
By: ________
Douglas Carmichael, Partner One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 555-3100
Email: dcarmichael@calderwoodharkness.com
Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
Dated: ________
SO ORDERED.
Dated: New York, New York
________________________________________
________________________________________
Hon. Lorraine K. Chen, J.S.C. Supreme Court, New York County Commercial Division, Part 49 60 Centre Street New York, New York 10007