1044-00006 · Hargrove, Delacroix & Stern LLP · Discovery

discovery-dispute-letter-subcharter.docx DOCUMENT Litigation

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CALDERWOOD & HARKNESS LLP Attorneys at Law One Liberty Plaza, 50th Floor New York, New York 10006

Telephone: (212) 540-7000 Facsimile: (212) 540-7001 www.calderwoodharkness.com

April 5, 2024

VIA EMAIL AND FIRST-CLASS MAIL

Jason Trumbull, Esq. Senior Associate Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022

Re: Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division (Part 49, Justice Lorraine K. Chen)

Sub-Reference: Deficiencies in Northwind Maritime Corporation's Document Production — Sub-Charter Agreement with Eastbourne Bulk Carriers Ltd.

Dear Mr. Trumbull:

I. Introduction and Purpose

We write on behalf of our clients, defendants Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna," and together with TSL, "Defendants"), in the above-captioned action pending before Justice Lorraine K. Chen in Part 49 of the Commercial Division of the Supreme Court of the State of New York, New York County. This letter is written by Carlos Espinoza, Senior Associate at Calderwood & Harkness LLP, under the supervision of Douglas Carmichael, Responsible Partner.

The purpose of this letter is to address material deficiencies in the document production of plaintiff Northwind Maritime Corporation ("Northwind") in response to TSL's First Request for Production of Documents, which was served on Northwind on January 22, 2024 (the "First RFP"). Specifically, this letter concerns the persistent and unjustifiable gaps in Northwind's production of documents relating to the sub-charter agreement between Northwind and Eastbourne Bulk Carriers Ltd. ("Eastbourne") for the M/V Aegean Fortuna. Northwind's responses and document production were due and were received by our office on or about March 8, 2024, following the commencement of the discovery period in January 2024 in accordance with the Court's Preliminary Conference Order dated December 18, 2023.

As set forth in detail below, Northwind's production in response to the sub-charter-related requests has been materially incomplete, improperly redacted, and otherwise inadequate. Defendants demand that Northwind remedy these deficiencies through a prompt supplemental production of all responsive sub-charter documents, in unredacted form, on or before April 30, 2024. We further advise you that, in the event Northwind fails to cure the deficiencies identified herein within the timeframes specified in this letter, TSL and Aegean Fortuna will move to compel production pursuant to CPLR § 3124 and will seek sanctions, costs, and attorneys' fees in connection with such motion.

II. Background on the Relevance of the Eastbourne Sub-Charter Documents

The sub-charter documents at issue are central to the claims and defenses in this litigation. We briefly summarize the relevant factual background to underscore why the deficiencies in Northwind's production are both prejudicial and indefensible.

On or about December 3, 2020, Northwind entered into a thirty-six (36) month time charter-party with TSL (Charter-Party Reference No. NW-TSL-CP-2020-1203) for the M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,000 deadweight tons, flagged in the Republic of Liberia. The charter period commenced on January 15, 2021, at a daily hire rate of $14,750 per day, and ran through January 14, 2024. The terms of this head charter are not in dispute as between the parties.

It is undisputed — and indeed, Northwind has affirmatively alleged in its Verified Complaint — that Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne Bulk Carriers Ltd. at a daily hire rate of $17,200 per day. This sub-charter arrangement is at the very heart of several of Northwind's damages claims.

First, Northwind's Complaint includes a claim for lost sub-charter profit in the amount of $166,600. This figure is calculated by reference to the differential between the Eastbourne sub-charter hire rate ($17,200 per day) and the TSL head charter hire rate ($14,750 per day), yielding a daily profit margin of $2,450, multiplied by the sixty-eight (68) aggregate off-hire days that Northwind alleges across three off-hire periods during the charter term. The arithmetic is straightforward ($2,450 × 68 = $166,600), but the underlying factual predicates — including whether the sub-charter rate was in fact $17,200 per day for the full period, whether Eastbourne actually deducted hire for the off-hire periods, and whether Northwind suffered a net loss as distinct from a gross loss — are all matters that can only be verified through the sub-charter documents themselves.

Second, the Eastbourne sub-charter is relevant to Northwind's claimed substitute charter costs of $471,600. Northwind alleges that, during the off-hire periods, it was required to obtain substitute tonnage at a market rate of $21,300 per day for a total of seventy-two (72) days, resulting in a claimed differential cost of $6,550 per day ($21,300 − $14,750 = $6,550) and a total substitute charter cost of $471,600. The terms of the Eastbourne sub-charter bear directly on these claimed substitute costs, because the sub-charter terms may reveal whether it was Eastbourne — not Northwind — that arranged for substitute tonnage, whether substitute tonnage was in fact obtained at all, and whether Northwind's obligation to mitigate was fulfilled or, as TSL contends, was not.

Third, the sub-charter documents are central to TSL's affirmative defense of failure to mitigate damages, which was pleaded with specificity in Defendants' Verified Answer and Counterclaims. The sub-charter terms may reveal the actual scope and nature of Northwind's commitments to Eastbourne, including whether those commitments were coextensive with Northwind's obligations under the head charter or were narrower in scope. The documents may also reveal whether Eastbourne itself obtained substitute tonnage or otherwise mitigated its own losses, and whether any portion of Northwind's claimed losses are duplicative, overstated, or otherwise not recoverable as against TSL.

Fourth, these documents are also relevant to Northwind's substantial claimed cargo damage of $3,420,000 arising from iron ore oxidation during the second off-hire incident (July 8 through July 29, 2022, "Incident 2"), as well as the three third-party shipper claims totaling $5,634,400 that Northwind seeks to pass through to TSL. The sub-charter terms — including cargo liability provisions, indemnity clauses, and any Inter-Club Agreement incorporation language — allocate cargo liability as between Northwind (as disponent owner) and Eastbourne (as sub-charterer). These allocations directly affect the quantum and recoverability of Northwind's claims against TSL. Indeed, it is TSL's position that the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement") may govern the allocation of cargo claims as between owner and charterer under the head charter, and the sub-charter terms are relevant to the proper application of that framework, including whether Northwind has already received or is entitled to receive contribution or indemnity from Eastbourne that would reduce or eliminate the amounts it claims from TSL.

In sum, the Eastbourne sub-charter documents are not peripheral to this action — they are directly and materially relevant to the quantification and recoverability of virtually every category of damages that Northwind has alleged, and they are essential to the preparation and prosecution of Defendants' affirmative defenses. Northwind's failure to produce these documents in full, unredacted form, and its failure to produce entire categories of responsive documents, is both inexplicable and prejudicial.

III. TSL's Specific Document Requests at Issue

TSL's First RFP, served on January 22, 2024, included the following requests that are directly at issue in this letter. We summarize them here for ease of reference and to provide a clear roadmap of the specific deficiencies in Northwind's responses:

Request No. 14: The complete, unredacted sub-charter agreement between Northwind and Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna, including all riders, addenda, recapitulations, fixture notes, side letters, and amendments thereto, for the entire duration of the sub-charter.

Request No. 15: All communications between Northwind and Eastbourne (including communications between or among their respective officers, employees, agents, brokers, and representatives) relating to the M/V Aegean Fortuna, including but not limited to notices of off-hire, performance complaints or claims, communications regarding substitute vessel arrangements, and communications regarding damage claims or cargo claims, for the period January 1, 2021 through the present.

Request No. 16: All invoices, payment records, hire statements, off-hire deduction records, credit notes, and any other financial records or accounting documents between Northwind and Eastbourne relating to the M/V Aegean Fortuna for the period January 15, 2021 through January 14, 2024.

Request No. 17: All documents reflecting any claims, demands, complaints, or notices asserted by Eastbourne against Northwind, or by Northwind against Eastbourne, arising from or relating to the mechanical incidents affecting the M/V Aegean Fortuna, the alleged deviation to the port of Maputo in September 2022, the missed Qingdao laycan window (October 1–5, 2022), or the cargo damage claims, including any formal or informal dispute resolution communications.

Request No. 18: All documents reflecting any settlement, waiver, release, compromise, or other resolution between Northwind and Eastbourne regarding the M/V Aegean Fortuna, including but not limited to settlement agreements, releases, correspondence reflecting settlement discussions (to the extent not protected by privilege), and payment records reflecting settlement payments.

Each of these requests is narrowly tailored to the sub-charter relationship that Northwind itself has placed at the center of this litigation by claiming damages measured by reference to the sub-charter rate and the sub-charter relationship. As discussed below, Northwind's responses have been wholly inadequate.

IV. Deficiencies in Northwind's Production

Northwind's document production of March 8, 2024 has been materially deficient with respect to each of the categories described above. We detail the specific deficiencies as follows.

A. Sub-Charter Agreement Produced Only in Partially Redacted Form (Request No. 14)

Northwind produced a copy of the Eastbourne sub-charter agreement in response to Request No. 14, but the produced document was heavily redacted. Specifically, Northwind redacted the following provisions of the sub-charter: (i) the hire rate; (ii) the payment terms, including payment frequency, currency, and payment mechanics; (iii) the off-hire provisions, including the off-hire trigger events, the off-hire calculation methodology, and any net loss of time clauses; (iv) the performance warranties, including speed and consumption warranties; and (v) the termination clauses, including any provisions addressing the right to withdraw the vessel, the right to terminate for prolonged off-hire, and early redelivery provisions.

These redactions are unjustified. The redacted terms go to the very heart of Northwind's damages claims in this action. Northwind cannot, on the one hand, claim $166,600 in lost sub-charter profit calculated by reference to the Eastbourne sub-charter rate and, on the other hand, redact that very rate — and the related financial and off-hire provisions — from the sub-charter agreement produced in discovery. Nor can Northwind claim $471,600 in substitute charter costs while concealing the off-hire and termination provisions that would reveal whether and under what circumstances the sub-charter entitled Northwind to place the vessel off-hire as against Eastbourne, and whether Northwind or Eastbourne bore the obligation to arrange substitute tonnage.

Northwind's sole stated basis for these redactions is a general objection citing "commercial confidentiality" and "competitive sensitivity." This objection is insufficient as a matter of law. Commercial confidentiality does not override the obligation to produce documents that are material and necessary to the prosecution or defense of an action, particularly where — as here — the producing party has affirmatively placed the subject matter of the redacted terms at issue by asserting damages claims measured by reference to those very terms. By claiming damages calculated using the Eastbourne sub-charter rate, Northwind has waived any claim of confidentiality over the financial terms of the sub-charter. A party cannot use the sword of damages litigation while hiding behind the shield of commercial confidentiality to prevent the opposing party from testing the factual basis for those damages.

Moreover, if Northwind had legitimate confidentiality concerns regarding the sub-charter agreement — which TSL does not concede — the appropriate remedy would have been to seek a protective order from the Court, not to unilaterally redact the document. Northwind has not sought a protective order from Justice Chen regarding the sub-charter documents, nor has Northwind proposed a confidentiality stipulation or other mechanism to address its stated concerns while permitting discovery to proceed. Unilateral redaction of relevant documents without a court order is improper and impermissible under the CPLR.

Accordingly, Defendants demand that Northwind produce the complete, unredacted Eastbourne sub-charter agreement, including all riders, addenda, recapitulations, fixture notes, side letters, and amendments, no later than April 30, 2024. Defendants are willing to discuss a reasonable confidentiality stipulation, subject to approval by the Court, to govern the treatment of the sub-charter agreement in this litigation, but such a stipulation is not a precondition to production.

B. Absence of Communications Between Northwind and Eastbourne (Request No. 15)

Northwind produced no communications whatsoever between Northwind and Eastbourne in response to Request No. 15. This is a glaring and facially implausible omission.

The M/V Aegean Fortuna experienced three distinct off-hire periods during the sub-charter term: (i) March 12 through April 2, 2022 (22 days), arising from a failure of the vessel's main engine turbocharger; (ii) July 8 through July 29, 2022 (22 days), arising from a failure of the vessel's ballast water management system and cargo hold ventilation, which resulted in the iron ore oxidation and cargo damage giving rise to Northwind's $3,420,000 cargo damage claim; and (iii) November 15 through December 10, 2022 (26 days), arising from a main engine crankshaft bearing failure. These three off-hire periods totaled sixty-eight (68) days. In addition, the vessel underwent an unplanned deviation to the port of Maputo, Mozambique in September 2022, and the vessel missed a laycan window for a Qingdao, China loading on October 1–5, 2022, resulting in Northwind's claimed demurrage and dead freight costs of $1,230,000.

It is not credible that Northwind and Eastbourne exchanged no communications whatsoever regarding these events. The off-hire periods were lengthy and recurring, involving significant mechanical failures to a vessel under time charter at a daily rate of $17,200. The cargo damage during Incident 2 resulted in a claim of $3,420,000 for iron ore oxidation, an event that would necessarily have generated communications between the charterer and sub-charterer regarding the condition of the cargo, the extent of the damage, the apportionment of liability, and the assertion (or reservation) of claims. The Maputo deviation and the missed Qingdao laycan each would have required notice to Eastbourne and would have triggered communications regarding the operational and financial consequences. The assertion that no responsive communications exist is, in Defendants' view, simply not credible.

We further note that the deposition of Sandra Chow, Northwind's Chief Financial Officer, is scheduled for June 14, 2024. Ms. Chow is expected to have knowledge of the financial aspects of the Eastbourne sub-charter, including the off-hire deductions, the claimed lost profits, and the financial resolution of any claims between Northwind and Eastbourne. The non-production of communications between Northwind and Eastbourne materially impedes TSL's ability to prepare for Ms. Chow's deposition and to question her effectively regarding the sub-charter relationship and the claimed damages.

Accordingly, Defendants demand that Northwind conduct a supplemental search for all responsive communications between Northwind and Eastbourne regarding the M/V Aegean Fortuna. This search must include, at a minimum, the custodial files (including email accounts, personal drives, shared network drives, and any document management systems) of the following Northwind personnel:

(a) Viktor Lindgren, President of Northwind Maritime Corporation;

(b) Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation;

(d) Any Northwind operational personnel responsible for the management, scheduling, or oversight of the M/V Aegean Fortuna charter, including but not limited to chartering managers, operations managers, and vessel superintendents.

Defendants demand production of all responsive communications, whether transmitted by email, letter, facsimile, instant message, or any other medium, no later than April 30, 2024. If, after a diligent and thorough search, Northwind maintains that no responsive communications exist, Northwind must so state in writing, identify the custodians searched, describe the search methodology employed, and certify the completeness of its search.

C. No Financial Records of the Sub-Charter Relationship (Request No. 16)

Northwind has not produced any invoices, hire statements, off-hire deduction records, credit notes, or payment records between Northwind and Eastbourne for the charter period (January 15, 2021 through January 14, 2024) in response to Request No. 16. The production contained no financial records whatsoever pertaining to the sub-charter relationship.

These records are essential to Defendants' ability to test and, where appropriate, challenge Northwind's damages claims. Northwind claims $166,600 in lost sub-charter profit, calculated by reference to a daily hire differential of $2,450 over 68 off-hire days. Verification of this claim requires, at a minimum, the hire invoices and payment records reflecting the actual hire payments made by Eastbourne to Northwind, the off-hire deduction records reflecting whether and to what extent Eastbourne withheld or deducted hire during the off-hire periods, and the payment records reflecting the amounts actually received by Northwind from Eastbourne for the duration of the charter. Without these records, Defendants cannot determine whether Northwind's claimed lost sub-charter profit reflects an actual, realized loss or a theoretical calculation unsupported by the financial reality of the sub-charter relationship.

Moreover, the financial records may reveal whether Eastbourne's off-hire deductions mirror, exceed, or fall short of the off-hire deductions that Northwind claims against TSL under the head charter. Any discrepancy between the two sets of deductions would bear directly on the accuracy and recoverability of Northwind's damages and on the Defendants' mitigation defense.

Defendants demand production of all financial records between Northwind and Eastbourne regarding the M/V Aegean Fortuna, including but not limited to hire invoices, hire statements, off-hire deduction records, credit notes, debit notes, payment confirmations, and bank records reflecting hire payments, no later than April 30, 2024.

D. No Documents Reflecting Eastbourne's Claims or Demands (Request No. 17)

Northwind has not produced any documents reflecting claims, demands, complaints, or notices asserted by Eastbourne against Northwind in connection with the mechanical failures, the Maputo deviation, the missed Qingdao laycan window, or the cargo damage incidents. The absence of any responsive documents is conspicuous.

If Eastbourne asserted claims against Northwind arising from the events at issue in this litigation — as would be expected given the magnitude of the disruptions (68 days of off-hire, $3,420,000 in cargo damage, $1,230,000 in demurrage and dead freight, and $5,634,400 in third-party shipper claims) — the scope and quantum of such claims bear directly on Northwind's damages and on Defendants' mitigation defense. Documents reflecting Eastbourne's claims would illuminate the actual commercial impact of the off-hire periods and other events on the sub-charter relationship, the allocation of liability between Northwind and Eastbourne, and the extent to which Northwind has already been required to compensate Eastbourne or, conversely, has been released from liability.

Equally, the absence of any claims from Eastbourne — if that is indeed the case — would be a significant fact supporting Defendants' position that Northwind's claimed losses are overstated. If Eastbourne, as the sub-charterer receiving the vessel at $17,200 per day, did not assert claims against Northwind for the off-hire periods, the deviation, or the cargo damage, that would tend to suggest that the commercial impact of these events was less severe than Northwind has represented in this litigation.

Defendants demand production of all responsive documents reflecting claims, demands, complaints, or notices between Northwind and Eastbourne, no later than April 30, 2024. If no such documents exist after a diligent search, Defendants request that Northwind so represent in writing, accompanied by a description of the search conducted.

E. No Settlement or Release Documents (Request No. 18)

Northwind has not produced any documents reflecting a settlement, waiver, release, compromise, or other resolution of claims between Northwind and Eastbourne regarding the M/V Aegean Fortuna.

The existence and terms of any such resolution are directly relevant to Defendants' defenses. If Northwind and Eastbourne have reached a settlement or release regarding the events at issue, the terms of that resolution may establish that Northwind has already been compensated by Eastbourne for some or all of its claimed losses, rendering Northwind's claims against TSL duplicative in whole or in part. A settlement or release may also bear on Northwind's obligation to mitigate, insofar as it may reflect Northwind's own assessment of its exposure and the commercial resolution it deemed appropriate.

Moreover, if Northwind received consideration from Eastbourne in connection with a settlement — whether in the form of cash payments, hire credits, revised charter terms, or other consideration — that consideration must be accounted for in calculating Northwind's net damages, if any, against TSL. The failure to produce such documents, if they exist, would constitute a serious failure of Northwind's discovery obligations and would be highly prejudicial to Defendants' ability to assess and challenge Northwind's claimed losses.

Defendants demand production of all documents reflecting any settlement, waiver, release, or other resolution between Northwind and Eastbourne regarding the M/V Aegean Fortuna, no later than April 30, 2024. In the alternative, if no such documents exist, Defendants request that Northwind provide a sworn statement to that effect, made under oath by an officer of Northwind with knowledge, confirming that no settlement, waiver, release, or other resolution has been reached between Northwind and Eastbourne regarding the M/V Aegean Fortuna or any of the claims at issue in this litigation.

V. Governing Legal Standards

The legal standards governing document discovery in this action are clear and well-established, and they compel the conclusion that Northwind's production deficiencies must be remedied.

CPLR § 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" is to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Collll-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). The test is one of "usefulness and reason." Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746 (2000). The sub-charter documents plainly satisfy this standard, as they are material and necessary to multiple categories of Northwind's damages claims and to Defendants' affirmative defenses.

Parties may not unilaterally redact documents produced in discovery absent a claim of privilege supported by a privilege log or a court-ordered protective order. See CPLR § 3103(a); Alice Ames, 78 N.Y.2d 371 (1991). Commercial confidentiality alone does not justify withholding otherwise discoverable material, and it is particularly unavailing where — as here — the producing party has placed the subject matter of the withheld material squarely at issue by asserting damages claims measured by reference to that subject matter. See Commercial Division Rule 11-b (requiring parties to meet and confer and to resolve discovery disputes in good faith before resorting to motion practice). Northwind has neither asserted a claim of privilege over the sub-charter documents nor sought a protective order from Justice Chen. Its unilateral redactions are therefore unauthorized and improper.

We further note that the Court's Preliminary Conference Order, entered December 18, 2023, and the standing orders of Justice Lorraine K. Chen for Part 49 of the Commercial Division, 60 Centre Street, New York, New York 10007, require the parties to engage in good-faith meet-and-confer efforts to resolve discovery disputes before filing motions. This letter is intended to satisfy that requirement and to give Northwind a fair opportunity to cure its production deficiencies before Defendants are compelled to seek relief from the Court.

VI. Meet and Confer

This letter constitutes a good-faith meet-and-confer communication as required by Commercial Division Rule 14 and the Court's discovery protocols, including the standing orders of Justice Chen. Defendants have identified the specific deficiencies in Northwind's production, the factual and legal basis for the requested supplemental production, and the governing legal standards.

We note that the parties' discovery obligations in this action span the period from January 2024 through August 2024, as set forth in the Court's Preliminary Conference Order. The discovery period is not unlimited, and the deficiencies identified herein must be remedied promptly to allow Defendants adequate time to review the supplemental production, to incorporate the produced documents into deposition preparation (particularly in advance of Ms. Chow's deposition on June 14, 2024), and to assess whether further discovery is required.

Accordingly, we request that Northwind provide a written response to this letter within seven (7) business days — that is, on or before April 16, 2024 — in which Northwind either:

(a) commits to a supplemental production of all sub-charter documents identified in this letter, in unredacted form, by a date certain no later than April 30, 2024; or

(b) specifies its objections to each of the requests identified herein in sufficient detail to permit Defendants to evaluate whether a motion to compel is warranted, including identification of the specific legal basis for each objection and a description of any searches conducted.

We emphasize that general, boilerplate objections and non-responsive assertions of "commercial confidentiality" will not be considered a satisfactory response.

VII. Reservation of Rights and Motion to Compel

In the event that Northwind fails to provide a satisfactory written response by April 16, 2024, or fails to complete a supplemental production in compliance with its discovery obligations by April 30, 2024, Defendants will promptly move to compel production of all sub-charter documents identified in this letter pursuant to CPLR § 3124 and will seek an appropriate order from Justice Lorraine K. Chen.

In connection with any such motion, Defendants will seek an award of costs and attorneys' fees incurred in connection with the motion, including fees and costs pursuant to CPLR § 3126 and 22 NYCRR § 130-1.1, as sanctions for Northwind's failure to comply with its discovery obligations. Defendants submit that Northwind's redactions and non-production lack a reasonable basis, particularly in light of Northwind's own decision to place the sub-charter relationship at issue in its Complaint and to claim damages measured by reference to the sub-charter rate.

Defendants further reserve all rights and remedies available under the CPLR and applicable rules, including but not limited to:

(a) the right to seek adverse inference instructions at trial based on Northwind's failure to produce relevant documents within its possession, custody, or control;

(b) the right to seek preclusion of evidence or testimony relating to the Eastbourne sub-charter to the extent that Northwind's non-production has prejudiced Defendants' ability to prepare their defenses;

(c) the right to raise additional discovery deficiencies — beyond those identified in this letter — in a subsequent meet-and-confer communication or motion; and

(d) all other rights, remedies, defenses, and counterclaims available to Defendants in this action.

Nothing in this letter shall be construed as a waiver or limitation of any of Defendants' rights or positions in this action.

VIII. Closing

We remain willing to discuss this matter by telephone or in person in an effort to resolve this discovery dispute without the need for court intervention. Mr. Espinoza can be reached directly at (212) 540-7148 or by email at cespinoza@calderwoodharkness.com. We are hopeful that a prompt and complete supplemental production will render motion practice unnecessary.

A copy of this letter is being provided to Douglas Carmichael, Esq., Responsible Partner at Calderwood & Harkness LLP; Francesca Morano, Esq., Calderwood & Harkness LLP; Margaret Delacroix, Esq., Lead Partner at Hargrove, Delacroix & Stern LLP; and Priya Mehta, Esq., Hargrove, Delacroix & Stern LLP.

We thank you for your attention to this matter and look forward to your prompt response.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Carlos Espinoza Senior Associate One Liberty Plaza, 50th Floor New York, New York 10006 Tel: (212) 540-7148

Email: cespinoza@calderwoodharkness.com

cc: Douglas Carmichael, Esq., Calderwood & Harkness LLP Francesca Morano, Esq., Calderwood & Harkness LLP Margaret Delacroix, Esq., Hargrove, Delacroix & Stern LLP Priya Mehta, Esq., Hargrove, Delacroix & Stern LLP

Enclosures: None. This letter references but does not enclose TSL's First Request for Production of Documents, served January 22, 2024, which is already in your possession.

CALDERWOOD & HARKNESS LLP Attorneys at Law One Liberty Plaza, 50th Floor New York, New York 10006
Telephone: (212) 540-7000 Facsimile: (212) 540-7001 www.calderwoodharkness.com
April 5, 2024
VIA EMAIL AND FIRST-CLASS MAIL
Jason Trumbull, Esq. Senior Associate Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022
Re: Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division (Part 49, Justice Lorraine K. Chen)
Sub-Reference: Deficiencies in Northwind Maritime Corporation's Document Production — Sub-Charter Agreement with Eastbourne Bulk Carriers Ltd.
Dear Mr. Trumbull:
I. Introduction and Purpose
We write on behalf of our clients, defendants Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna," and together with TSL, "Defendants"), in the above-captioned action pending before Justice Lorraine K. Chen in Part 49 of the Commercial Division of the Supreme Court of the State of New York, New York County. This letter is written by Carlos Espinoza, Senior Associate at Calderwood & Harkness LLP, under the supervision of Douglas Carmichael, Responsible Partner.
The purpose of this letter is to address material deficiencies in the document production of plaintiff Northwind Maritime Corporation ("Northwind") in response to TSL's First Request for Production of Documents, which was served on Northwind on January 22, 2024 (the "First RFP"). Specifically, this letter concerns the persistent and unjustifiable gaps in Northwind's production of documents relating to the sub-charter agreement between Northwind and Eastbourne Bulk Carriers Ltd. ("Eastbourne") for the M/V Aegean Fortuna. Northwind's responses and document production were due and were received by our office on or about March 8, 2024, following the commencement of the discovery period in January 2024 in accordance with the Court's Preliminary Conference Order dated December 18, 2023.
As set forth in detail below, Northwind's production in response to the sub-charter-related requests has been materially incomplete, improperly redacted, and otherwise inadequate. Defendants demand that Northwind remedy these deficiencies through a prompt supplemental production of all responsive sub-charter documents, in unredacted form, on or before April 30, 2024. We further advise you that, in the event Northwind fails to cure the deficiencies identified herein within the timeframes specified in this letter, TSL and Aegean Fortuna will move to compel production pursuant to CPLR § 3124 and will seek sanctions, costs, and attorneys' fees in connection with such motion.
II. Background on the Relevance of the Eastbourne Sub-Charter Documents
The sub-charter documents at issue are central to the claims and defenses in this litigation. We briefly summarize the relevant factual background to underscore why the deficiencies in Northwind's production are both prejudicial and indefensible.
On or about December 3, 2020, Northwind entered into a thirty-six (36) month time charter-party with TSL (Charter-Party Reference No. NW-TSL-CP-2020-1203) for the M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,000 deadweight tons, flagged in the Republic of Liberia. The charter period commenced on January 15, 2021, at a daily hire rate of $14,750 per day, and ran through January 14, 2024. The terms of this head charter are not in dispute as between the parties.
It is undisputed — and indeed, Northwind has affirmatively alleged in its Verified Complaint — that Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne Bulk Carriers Ltd. at a daily hire rate of $17,200 per day. This sub-charter arrangement is at the very heart of several of Northwind's damages claims.
First, Northwind's Complaint includes a claim for lost sub-charter profit in the amount of $166,600. This figure is calculated by reference to the differential between the Eastbourne sub-charter hire rate ($17,200 per day) and the TSL head charter hire rate ($14,750 per day), yielding a daily profit margin of $2,450, multiplied by the sixty-eight (68) aggregate off-hire days that Northwind alleges across three off-hire periods during the charter term. The arithmetic is straightforward ($2,450 × 68 = $166,600), but the underlying factual predicates — including whether the sub-charter rate was in fact $17,200 per day for the full period, whether Eastbourne actually deducted hire for the off-hire periods, and whether Northwind suffered a net loss as distinct from a gross loss — are all matters that can only be verified through the sub-charter documents themselves.
Second, the Eastbourne sub-charter is relevant to Northwind's claimed substitute charter costs of $471,600. Northwind alleges that, during the off-hire periods, it was required to obtain substitute tonnage at a market rate of $21,300 per day for a total of seventy-two (72) days, resulting in a claimed differential cost of $6,550 per day ($21,300 − $14,750 = $6,550) and a total substitute charter cost of $471,600. The terms of the Eastbourne sub-charter bear directly on these claimed substitute costs, because the sub-charter terms may reveal whether it was Eastbourne — not Northwind — that arranged for substitute tonnage, whether substitute tonnage was in fact obtained at all, and whether Northwind's obligation to mitigate was fulfilled or, as TSL contends, was not.
Third, the sub-charter documents are central to TSL's affirmative defense of failure to mitigate damages, which was pleaded with specificity in Defendants' Verified Answer and Counterclaims. The sub-charter terms may reveal the actual scope and nature of Northwind's commitments to Eastbourne, including whether those commitments were coextensive with Northwind's obligations under the head charter or were narrower in scope. The documents may also reveal whether Eastbourne itself obtained substitute tonnage or otherwise mitigated its own losses, and whether any portion of Northwind's claimed losses are duplicative, overstated, or otherwise not recoverable as against TSL.
Fourth, these documents are also relevant to Northwind's substantial claimed cargo damage of $3,420,000 arising from iron ore oxidation during the second off-hire incident (July 8 through July 29, 2022, "Incident 2"), as well as the three third-party shipper claims totaling $5,634,400 that Northwind seeks to pass through to TSL. The sub-charter terms — including cargo liability provisions, indemnity clauses, and any Inter-Club Agreement incorporation language — allocate cargo liability as between Northwind (as disponent owner) and Eastbourne (as sub-charterer). These allocations directly affect the quantum and recoverability of Northwind's claims against TSL. Indeed, it is TSL's position that the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement") may govern the allocation of cargo claims as between owner and charterer under the head charter, and the sub-charter terms are relevant to the proper application of that framework, including whether Northwind has already received or is entitled to receive contribution or indemnity from Eastbourne that would reduce or eliminate the amounts it claims from TSL.
In sum, the Eastbourne sub-charter documents are not peripheral to this action — they are directly and materially relevant to the quantification and recoverability of virtually every category of damages that Northwind has alleged, and they are essential to the preparation and prosecution of Defendants' affirmative defenses. Northwind's failure to produce these documents in full, unredacted form, and its failure to produce entire categories of responsive documents, is both inexplicable and prejudicial.
III. TSL's Specific Document Requests at Issue
TSL's First RFP, served on January 22, 2024, included the following requests that are directly at issue in this letter. We summarize them here for ease of reference and to provide a clear roadmap of the specific deficiencies in Northwind's responses:
Request No. 14: The complete, unredacted sub-charter agreement between Northwind and Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna, including all riders, addenda, recapitulations, fixture notes, side letters, and amendments thereto, for the entire duration of the sub-charter.
Request No. 15: All communications between Northwind and Eastbourne (including communications between or among their respective officers, employees, agents, brokers, and representatives) relating to the M/V Aegean Fortuna, including but not limited to notices of off-hire, performance complaints or claims, communications regarding substitute vessel arrangements, and communications regarding damage claims or cargo claims, for the period January 1, 2021 through the present.
Request No. 16: All invoices, payment records, hire statements, off-hire deduction records, credit notes, and any other financial records or accounting documents between Northwind and Eastbourne relating to the M/V Aegean Fortuna for the period January 15, 2021 through January 14, 2024.
Request No. 17: All documents reflecting any claims, demands, complaints, or notices asserted by Eastbourne against Northwind, or by Northwind against Eastbourne, arising from or relating to the mechanical incidents affecting the M/V Aegean Fortuna, the alleged deviation to the port of Maputo in September 2022, the missed Qingdao laycan window (October 1–5, 2022), or the cargo damage claims, including any formal or informal dispute resolution communications.
Request No. 18: All documents reflecting any settlement, waiver, release, compromise, or other resolution between Northwind and Eastbourne regarding the M/V Aegean Fortuna, including but not limited to settlement agreements, releases, correspondence reflecting settlement discussions (to the extent not protected by privilege), and payment records reflecting settlement payments.
Each of these requests is narrowly tailored to the sub-charter relationship that Northwind itself has placed at the center of this litigation by claiming damages measured by reference to the sub-charter rate and the sub-charter relationship. As discussed below, Northwind's responses have been wholly inadequate.
IV. Deficiencies in Northwind's Production
Northwind's document production of March 8, 2024 has been materially deficient with respect to each of the categories described above. We detail the specific deficiencies as follows.
A. Sub-Charter Agreement Produced Only in Partially Redacted Form (Request No. 14)
Northwind produced a copy of the Eastbourne sub-charter agreement in response to Request No. 14, but the produced document was heavily redacted. Specifically, Northwind redacted the following provisions of the sub-charter: (i) the hire rate; (ii) the payment terms, including payment frequency, currency, and payment mechanics; (iii) the off-hire provisions, including the off-hire trigger events, the off-hire calculation methodology, and any net loss of time clauses; (iv) the performance warranties, including speed and consumption warranties; and (v) the termination clauses, including any provisions addressing the right to withdraw the vessel, the right to terminate for prolonged off-hire, and early redelivery provisions.
These redactions are unjustified. The redacted terms go to the very heart of Northwind's damages claims in this action. Northwind cannot, on the one hand, claim $166,600 in lost sub-charter profit calculated by reference to the Eastbourne sub-charter rate and, on the other hand, redact that very rate — and the related financial and off-hire provisions — from the sub-charter agreement produced in discovery. Nor can Northwind claim $471,600 in substitute charter costs while concealing the off-hire and termination provisions that would reveal whether and under what circumstances the sub-charter entitled Northwind to place the vessel off-hire as against Eastbourne, and whether Northwind or Eastbourne bore the obligation to arrange substitute tonnage.
Northwind's sole stated basis for these redactions is a general objection citing "commercial confidentiality" and "competitive sensitivity." This objection is insufficient as a matter of law. Commercial confidentiality does not override the obligation to produce documents that are material and necessary to the prosecution or defense of an action, particularly where — as here — the producing party has affirmatively placed the subject matter of the redacted terms at issue by asserting damages claims measured by reference to those very terms. By claiming damages calculated using the Eastbourne sub-charter rate, Northwind has waived any claim of confidentiality over the financial terms of the sub-charter. A party cannot use the sword of damages litigation while hiding behind the shield of commercial confidentiality to prevent the opposing party from testing the factual basis for those damages.
Moreover, if Northwind had legitimate confidentiality concerns regarding the sub-charter agreement — which TSL does not concede — the appropriate remedy would have been to seek a protective order from the Court, not to unilaterally redact the document. Northwind has not sought a protective order from Justice Chen regarding the sub-charter documents, nor has Northwind proposed a confidentiality stipulation or other mechanism to address its stated concerns while permitting discovery to proceed. Unilateral redaction of relevant documents without a court order is improper and impermissible under the CPLR.
Accordingly, Defendants demand that Northwind produce the complete, unredacted Eastbourne sub-charter agreement, including all riders, addenda, recapitulations, fixture notes, side letters, and amendments, no later than April 30, 2024. Defendants are willing to discuss a reasonable confidentiality stipulation, subject to approval by the Court, to govern the treatment of the sub-charter agreement in this litigation, but such a stipulation is not a precondition to production.
B. Absence of Communications Between Northwind and Eastbourne (Request No. 15)
Northwind produced no communications whatsoever between Northwind and Eastbourne in response to Request No. 15. This is a glaring and facially implausible omission.
The M/V Aegean Fortuna experienced three distinct off-hire periods during the sub-charter term: (i) March 12 through April 2, 2022 (22 days), arising from a failure of the vessel's main engine turbocharger; (ii) July 8 through July 29, 2022 (22 days), arising from a failure of the vessel's ballast water management system and cargo hold ventilation, which resulted in the iron ore oxidation and cargo damage giving rise to Northwind's $3,420,000 cargo damage claim; and (iii) November 15 through December 10, 2022 (26 days), arising from a main engine crankshaft bearing failure. These three off-hire periods totaled sixty-eight (68) days. In addition, the vessel underwent an unplanned deviation to the port of Maputo, Mozambique in September 2022, and the vessel missed a laycan window for a Qingdao, China loading on October 1–5, 2022, resulting in Northwind's claimed demurrage and dead freight costs of $1,230,000.
It is not credible that Northwind and Eastbourne exchanged no communications whatsoever regarding these events. The off-hire periods were lengthy and recurring, involving significant mechanical failures to a vessel under time charter at a daily rate of $17,200. The cargo damage during Incident 2 resulted in a claim of $3,420,000 for iron ore oxidation, an event that would necessarily have generated communications between the charterer and sub-charterer regarding the condition of the cargo, the extent of the damage, the apportionment of liability, and the assertion (or reservation) of claims. The Maputo deviation and the missed Qingdao laycan each would have required notice to Eastbourne and would have triggered communications regarding the operational and financial consequences. The assertion that no responsive communications exist is, in Defendants' view, simply not credible.
We further note that the deposition of Sandra Chow, Northwind's Chief Financial Officer, is scheduled for June 14, 2024. Ms. Chow is expected to have knowledge of the financial aspects of the Eastbourne sub-charter, including the off-hire deductions, the claimed lost profits, and the financial resolution of any claims between Northwind and Eastbourne. The non-production of communications between Northwind and Eastbourne materially impedes TSL's ability to prepare for Ms. Chow's deposition and to question her effectively regarding the sub-charter relationship and the claimed damages.
Accordingly, Defendants demand that Northwind conduct a supplemental search for all responsive communications between Northwind and Eastbourne regarding the M/V Aegean Fortuna. This search must include, at a minimum, the custodial files (including email accounts, personal drives, shared network drives, and any document management systems) of the following Northwind personnel:
(a) Viktor Lindgren, President of Northwind Maritime Corporation;
(b) Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation;
(c) Richard Hartnett, General Counsel of Northwind Maritime Corporation; and
(d) Any Northwind operational personnel responsible for the management, scheduling, or oversight of the M/V Aegean Fortuna charter, including but not limited to chartering managers, operations managers, and vessel superintendents.
Defendants demand production of all responsive communications, whether transmitted by email, letter, facsimile, instant message, or any other medium, no later than April 30, 2024. If, after a diligent and thorough search, Northwind maintains that no responsive communications exist, Northwind must so state in writing, identify the custodians searched, describe the search methodology employed, and certify the completeness of its search.
C. No Financial Records of the Sub-Charter Relationship (Request No. 16)
Northwind has not produced any invoices, hire statements, off-hire deduction records, credit notes, or payment records between Northwind and Eastbourne for the charter period (January 15, 2021 through January 14, 2024) in response to Request No. 16. The production contained no financial records whatsoever pertaining to the sub-charter relationship.
These records are essential to Defendants' ability to test and, where appropriate, challenge Northwind's damages claims. Northwind claims $166,600 in lost sub-charter profit, calculated by reference to a daily hire differential of $2,450 over 68 off-hire days. Verification of this claim requires, at a minimum, the hire invoices and payment records reflecting the actual hire payments made by Eastbourne to Northwind, the off-hire deduction records reflecting whether and to what extent Eastbourne withheld or deducted hire during the off-hire periods, and the payment records reflecting the amounts actually received by Northwind from Eastbourne for the duration of the charter. Without these records, Defendants cannot determine whether Northwind's claimed lost sub-charter profit reflects an actual, realized loss or a theoretical calculation unsupported by the financial reality of the sub-charter relationship.
Moreover, the financial records may reveal whether Eastbourne's off-hire deductions mirror, exceed, or fall short of the off-hire deductions that Northwind claims against TSL under the head charter. Any discrepancy between the two sets of deductions would bear directly on the accuracy and recoverability of Northwind's damages and on the Defendants' mitigation defense.
Defendants demand production of all financial records between Northwind and Eastbourne regarding the M/V Aegean Fortuna, including but not limited to hire invoices, hire statements, off-hire deduction records, credit notes, debit notes, payment confirmations, and bank records reflecting hire payments, no later than April 30, 2024.
D. No Documents Reflecting Eastbourne's Claims or Demands (Request No. 17)
Northwind has not produced any documents reflecting claims, demands, complaints, or notices asserted by Eastbourne against Northwind in connection with the mechanical failures, the Maputo deviation, the missed Qingdao laycan window, or the cargo damage incidents. The absence of any responsive documents is conspicuous.
If Eastbourne asserted claims against Northwind arising from the events at issue in this litigation — as would be expected given the magnitude of the disruptions (68 days of off-hire, $3,420,000 in cargo damage, $1,230,000 in demurrage and dead freight, and $5,634,400 in third-party shipper claims) — the scope and quantum of such claims bear directly on Northwind's damages and on Defendants' mitigation defense. Documents reflecting Eastbourne's claims would illuminate the actual commercial impact of the off-hire periods and other events on the sub-charter relationship, the allocation of liability between Northwind and Eastbourne, and the extent to which Northwind has already been required to compensate Eastbourne or, conversely, has been released from liability.
Equally, the absence of any claims from Eastbourne — if that is indeed the case — would be a significant fact supporting Defendants' position that Northwind's claimed losses are overstated. If Eastbourne, as the sub-charterer receiving the vessel at $17,200 per day, did not assert claims against Northwind for the off-hire periods, the deviation, or the cargo damage, that would tend to suggest that the commercial impact of these events was less severe than Northwind has represented in this litigation.
Defendants demand production of all responsive documents reflecting claims, demands, complaints, or notices between Northwind and Eastbourne, no later than April 30, 2024. If no such documents exist after a diligent search, Defendants request that Northwind so represent in writing, accompanied by a description of the search conducted.
E. No Settlement or Release Documents (Request No. 18)
Northwind has not produced any documents reflecting a settlement, waiver, release, compromise, or other resolution of claims between Northwind and Eastbourne regarding the M/V Aegean Fortuna.
The existence and terms of any such resolution are directly relevant to Defendants' defenses. If Northwind and Eastbourne have reached a settlement or release regarding the events at issue, the terms of that resolution may establish that Northwind has already been compensated by Eastbourne for some or all of its claimed losses, rendering Northwind's claims against TSL duplicative in whole or in part. A settlement or release may also bear on Northwind's obligation to mitigate, insofar as it may reflect Northwind's own assessment of its exposure and the commercial resolution it deemed appropriate.
Moreover, if Northwind received consideration from Eastbourne in connection with a settlement — whether in the form of cash payments, hire credits, revised charter terms, or other consideration — that consideration must be accounted for in calculating Northwind's net damages, if any, against TSL. The failure to produce such documents, if they exist, would constitute a serious failure of Northwind's discovery obligations and would be highly prejudicial to Defendants' ability to assess and challenge Northwind's claimed losses.
Defendants demand production of all documents reflecting any settlement, waiver, release, or other resolution between Northwind and Eastbourne regarding the M/V Aegean Fortuna, no later than April 30, 2024. In the alternative, if no such documents exist, Defendants request that Northwind provide a sworn statement to that effect, made under oath by an officer of Northwind with knowledge, confirming that no settlement, waiver, release, or other resolution has been reached between Northwind and Eastbourne regarding the M/V Aegean Fortuna or any of the claims at issue in this litigation.
V. Governing Legal Standards
The legal standards governing document discovery in this action are clear and well-established, and they compel the conclusion that Northwind's production deficiencies must be remedied.
CPLR § 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" is to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Collll-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). The test is one of "usefulness and reason." Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746 (2000). The sub-charter documents plainly satisfy this standard, as they are material and necessary to multiple categories of Northwind's damages claims and to Defendants' affirmative defenses.
Parties may not unilaterally redact documents produced in discovery absent a claim of privilege supported by a privilege log or a court-ordered protective order. See CPLR § 3103(a); Alice Ames, 78 N.Y.2d 371 (1991). Commercial confidentiality alone does not justify withholding otherwise discoverable material, and it is particularly unavailing where — as here — the producing party has placed the subject matter of the withheld material squarely at issue by asserting damages claims measured by reference to that subject matter. See Commercial Division Rule 11-b (requiring parties to meet and confer and to resolve discovery disputes in good faith before resorting to motion practice). Northwind has neither asserted a claim of privilege over the sub-charter documents nor sought a protective order from Justice Chen. Its unilateral redactions are therefore unauthorized and improper.
We further note that the Court's Preliminary Conference Order, entered December 18, 2023, and the standing orders of Justice Lorraine K. Chen for Part 49 of the Commercial Division, 60 Centre Street, New York, New York 10007, require the parties to engage in good-faith meet-and-confer efforts to resolve discovery disputes before filing motions. This letter is intended to satisfy that requirement and to give Northwind a fair opportunity to cure its production deficiencies before Defendants are compelled to seek relief from the Court.
VI. Meet and Confer
This letter constitutes a good-faith meet-and-confer communication as required by Commercial Division Rule 14 and the Court's discovery protocols, including the standing orders of Justice Chen. Defendants have identified the specific deficiencies in Northwind's production, the factual and legal basis for the requested supplemental production, and the governing legal standards.
We note that the parties' discovery obligations in this action span the period from January 2024 through August 2024, as set forth in the Court's Preliminary Conference Order. The discovery period is not unlimited, and the deficiencies identified herein must be remedied promptly to allow Defendants adequate time to review the supplemental production, to incorporate the produced documents into deposition preparation (particularly in advance of Ms. Chow's deposition on June 14, 2024), and to assess whether further discovery is required.
Accordingly, we request that Northwind provide a written response to this letter within seven (7) business days — that is, on or before April 16, 2024 — in which Northwind either:
(a) commits to a supplemental production of all sub-charter documents identified in this letter, in unredacted form, by a date certain no later than April 30, 2024; or
(b) specifies its objections to each of the requests identified herein in sufficient detail to permit Defendants to evaluate whether a motion to compel is warranted, including identification of the specific legal basis for each objection and a description of any searches conducted.
We emphasize that general, boilerplate objections and non-responsive assertions of "commercial confidentiality" will not be considered a satisfactory response.
VII. Reservation of Rights and Motion to Compel
In the event that Northwind fails to provide a satisfactory written response by April 16, 2024, or fails to complete a supplemental production in compliance with its discovery obligations by April 30, 2024, Defendants will promptly move to compel production of all sub-charter documents identified in this letter pursuant to CPLR § 3124 and will seek an appropriate order from Justice Lorraine K. Chen.
In connection with any such motion, Defendants will seek an award of costs and attorneys' fees incurred in connection with the motion, including fees and costs pursuant to CPLR § 3126 and 22 NYCRR § 130-1.1, as sanctions for Northwind's failure to comply with its discovery obligations. Defendants submit that Northwind's redactions and non-production lack a reasonable basis, particularly in light of Northwind's own decision to place the sub-charter relationship at issue in its Complaint and to claim damages measured by reference to the sub-charter rate.
Defendants further reserve all rights and remedies available under the CPLR and applicable rules, including but not limited to:
(a) the right to seek adverse inference instructions at trial based on Northwind's failure to produce relevant documents within its possession, custody, or control;
(b) the right to seek preclusion of evidence or testimony relating to the Eastbourne sub-charter to the extent that Northwind's non-production has prejudiced Defendants' ability to prepare their defenses;
(c) the right to raise additional discovery deficiencies — beyond those identified in this letter — in a subsequent meet-and-confer communication or motion; and
(d) all other rights, remedies, defenses, and counterclaims available to Defendants in this action.
Nothing in this letter shall be construed as a waiver or limitation of any of Defendants' rights or positions in this action.
VIII. Closing
We remain willing to discuss this matter by telephone or in person in an effort to resolve this discovery dispute without the need for court intervention. Mr. Espinoza can be reached directly at (212) 540-7148 or by email at cespinoza@calderwoodharkness.com. We are hopeful that a prompt and complete supplemental production will render motion practice unnecessary.
A copy of this letter is being provided to Douglas Carmichael, Esq., Responsible Partner at Calderwood & Harkness LLP; Francesca Morano, Esq., Calderwood & Harkness LLP; Margaret Delacroix, Esq., Lead Partner at Hargrove, Delacroix & Stern LLP; and Priya Mehta, Esq., Hargrove, Delacroix & Stern LLP.
We thank you for your attention to this matter and look forward to your prompt response.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Carlos Espinoza Senior Associate One Liberty Plaza, 50th Floor New York, New York 10006 Tel: (212) 540-7148
Email: cespinoza@calderwoodharkness.com
cc: Douglas Carmichael, Esq., Calderwood & Harkness LLP Francesca Morano, Esq., Calderwood & Harkness LLP Margaret Delacroix, Esq., Hargrove, Delacroix & Stern LLP Priya Mehta, Esq., Hargrove, Delacroix & Stern LLP
Enclosures: None. This letter references but does not enclose TSL's First Request for Production of Documents, served January 22, 2024, which is already in your possession.

CALDERWOOD & HARKNESS LLP Attorneys at Law One Liberty Plaza, 50th Floor New York, New York 10006

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