SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION
NORTHWIND MARITIME CORPORATION,
Plaintiff,
— against —
THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD.,
Defendants.
Index No. 655421/2023
Hon. Lorraine K. Chen, J.S.C.
Part 49
DEFENDANTS' FIRST SET OF INTERROGATORIES TO PLAINTIFF NORTHWIND MARITIME CORPORATION
Served: January 22, 2024
Propounding Party:
Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., by their attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006.
Responding Party:
Plaintiff Northwind Maritime Corporation, 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902.
Counsel for Responding Party:
Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022, Attention: Margaret Delacroix, Esq. and Jason Trumbull, Esq.
PRELIMINARY STATEMENT
These interrogatories are propounded by Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding," and together with Thalassa, "Defendants") to Plaintiff Northwind Maritime Corporation ("Northwind" or "Plaintiff") pursuant to Sections 3130 and 3131 of the New York Civil Practice Law and Rules ("CPLR"). These interrogatories seek information that is material and necessary to the defense of this action and that is within the possession, custody, control, or knowledge of Northwind.
Northwind is directed to answer each interrogatory separately and fully, in writing, under oath, within twenty (20) days of service of these interrogatories, or within such other period as may be agreed upon by the parties or ordered by the Court. Each answer shall restate the interrogatory to which it responds.
These interrogatories are continuing in nature pursuant to CPLR § 3101(h). Northwind is obligated to supplement its responses promptly if additional or corrective information becomes available at any time prior to or during trial. Any supplemental response shall identify the interrogatory being supplemented and set forth the additional or corrected information in full.
As used throughout these interrogatories, reference to the "Charter-Party" refers to the NYPE 2015 (New York Produce Exchange Form) time charter-party dated December 3, 2020, Reference No. NW-TSL-CP-2020-1203, entered into between Aegean Fortuna Shipholding Ltd. (as Owner) and Northwind Maritime Corporation (as Charterer) for the vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of 58,200 DWT, built 2016, flagged in the Republic of Liberia and classified by the Global Maritime Classification Bureau ("GMCB").
DEFINITIONS AND INSTRUCTIONS
A. Definitions. As used in these interrogatories, the following terms shall have the meanings set forth below:
1. "Charter-Party" means the NYPE 2015 (New York Produce Exchange Form) time charter-party, as amended, executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as Owner) and Northwind Maritime Corporation (as Charterer), Reference No. NW-TSL-CP-2020-1203, with a commencement date of January 15, 2021, a charter period of thirty-six (36) months (through and including January 14, 2024), and a daily hire rate of Fourteen Thousand Seven Hundred Fifty United States Dollars ($14,750) per day, together with all riders, addenda, amendments, side letters, and ancillary agreements thereto.
2. "Vessel" means the M/V Aegean Fortuna, IMO No. 9847231, a Supramax dry bulk carrier of 58,200 deadweight tons (DWT), built in 2016, flagged in the Republic of Liberia, and classified by the Global Maritime Classification Bureau (GMCB), including all engines, machinery, equipment, appurtenances, gear, and spare parts belonging thereto.
3. "Incident 1" means the main engine turbocharger failure occurring on or about March 12, 2022, through on or about April 2, 2022, resulting in approximately twenty-two (22) days of claimed off-hire, during which the Vessel was repaired at the port of Colombo, Sri Lanka.
4. "Incident 2" means the ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure occurring on or about July 8, 2022, through on or about July 29, 2022, resulting in approximately twenty-one (21) days of claimed off-hire, at or near the port of Richards Bay, Republic of South Africa.
5. "Incident 3" means the main engine cylinder liner failure occurring on or about November 15, 2022, through on or about December 10, 2022, requiring drydocking at Keppel Verolme Shipyard, Rotterdam, The Netherlands, and resulting in approximately twenty-five (25) days of claimed off-hire.
6. "Alleged Deviation" means the alleged deviation of the Vessel from the Durban-to-Qingdao voyage to the port of Maputo, Mozambique, in or about September 2022, as alleged in the Complaint.
7. "Sub-Charter" means any charter-party, sub-charter, time charter, voyage charter, trip charter, or contract of affreightment entered into by Northwind with Eastbourne Bulk Carriers Ltd. ("Eastbourne") or any other third party with respect to the Vessel or any substitute vessel during the charter period.
8. "Claimed Damages" means the total amount of Eighteen Million Three Hundred Thousand United States Dollars ($18,300,000) claimed by Northwind in its Complaint filed on October 2, 2023, comprising all categories of damages alleged therein, including but not limited to off-hire deductions, liquidated damages, substitute charter costs, cargo damage, demurrage and dead freight, additional port costs and bunker surcharges, lost sub-charter profit, third-party shipper claims, and legal fees and expert costs.
9. "Document(s)" shall be defined as broadly as permitted under CPLR § 3101 and shall include, without limitation, all writings, recordings, electronic data, emails, text messages, instant messages, memoranda, correspondence, notes, reports, analyses, spreadsheets, presentations, photographs, drawings, charts, diagrams, recordings (audio and video), and any other tangible thing or electronically stored information ("ESI"), whether in draft or final form, and including all metadata associated therewith.
10. "Person" means any natural person, corporation, partnership, joint venture, limited liability company, association, trust, estate, governmental body or agency, or any other legal entity, howsoever organized or constituted.
11. "You," "Your," "Northwind," or "Plaintiff" means Northwind Maritime Corporation, including its present and former officers, directors, employees, agents, representatives, predecessors, successors, and assigns, and any person acting or purporting to act on Northwind's behalf.
12. "Identify" (as to a person) means to state the person's full legal name, title or position, employer or affiliation, and last known business address and telephone number. If the person is a former employee of any entity, state the entity and the dates of employment.
13. "Identify" (as to a document) means to state the type or nature of the document (e.g., letter, email, memorandum, report), the date of the document, the name(s) of the author(s) or sender(s), the name(s) of the addressee(s) or recipient(s) (including all persons copied), a brief description of the subject matter, and the present custodian or location of the document. If the document has been destroyed or is no longer in existence, state the date and circumstances of its destruction or loss.
14. "Describe" means to provide a detailed narrative explanation sufficient to fully inform Defendants of the relevant facts, circumstances, events, communications, and bases for Northwind's contentions, without resort to vague, conclusory, or evasive characterizations.
B. Instructions.
1. Each interrogatory shall be answered separately and fully in writing, under oath, and the answer shall restate the text of the interrogatory preceding the response.
2. If Northwind objects to any interrogatory or any part thereof, Northwind shall state the specific grounds for the objection with particularity and shall answer the interrogatory to the extent not objected to. A general or blanket objection, without more, is insufficient.
3. If any interrogatory cannot be answered in full after the exercise of due diligence, Northwind shall answer to the extent possible, specifying the reasons why a complete answer cannot be provided, and stating whatever information or knowledge is presently available to Northwind. If the information is in the possession, custody, or control of a third party, Northwind shall so state and identify the third party.
4. Where an interrogatory requests information for a specific time period, Northwind shall respond for the entire period unless the interrogatory otherwise specifies a different temporal scope.
5. These interrogatories are deemed to include all sub-parts as a single interrogatory where the sub-parts relate to a common topic, consistent with the CPLR and applicable Commercial Division rules. Defendants reserve the right to serve additional interrogatories as permitted by law and any scheduling orders entered in this action.
6. If Northwind contends that any information sought is protected by the attorney-client privilege, the work-product doctrine, or any other privilege or protection, Northwind shall provide a privilege log identifying each withheld document or communication with sufficient detail to permit Defendants and the Court to assess the claim of privilege, including the date, author, recipient(s), subject matter, and the specific privilege asserted.
7. Unless otherwise indicated, each interrogatory relates to the period from January 1, 2020 through the date of Northwind's response.
INTERROGATORIES
INTERROGATORY NO. 1 — Corporate Identity and Authority
Identify all officers, directors, and managing agents of Northwind Maritime Corporation as of the date of execution of the Charter-Party (December 3, 2020) and as of the date of filing of the Complaint (October 2, 2023). For each such individual, state his or her full name, title, dates of service in such capacity, and current employer or affiliation if no longer employed by Northwind. State Northwind's entity type, jurisdiction of incorporation (believed to be the Republic of the marshall Islands), entity registration number (believed to be MI-94827), principal office address, registered agent and registered agent address, and the identity of any parent company, subsidiary, or affiliate entity that was directly or indirectly involved in the chartering, operation, commercial management, or technical management of the Vessel, or in any of the transactions, events, or circumstances giving rise to this action. For each such parent, subsidiary, or affiliate, state the entity's name, jurisdiction of organization, principal office address, and the nature of its involvement.
INTERROGATORY NO. 2 — Negotiation and Execution of the Charter-Party
Describe in detail the negotiations leading to the execution of the Charter-Party on December 3, 2020, including:
(a) the identity of all persons who participated in the negotiations on behalf of Northwind, including all employees, officers, agents, brokers, and outside advisors;
(b) the dates and locations of all negotiation sessions, whether conducted in person, by telephone, by video conference, or by electronic correspondence;
(c) the identity of any broker, agent, or intermediary used by Northwind in connection with the negotiation of the Charter-Party, including the name of the brokerage firm, the individual broker(s), and the terms of any brokerage commission or fee arrangement;
(d) any drafts of the Charter-Party exchanged between the parties or their representatives prior to the executed version, including the number of drafts exchanged, the dates of each draft, and the substantive changes reflected in each successive draft;
(e) the specific terms of the Charter-Party that were the subject of negotiation or discussion, including but not limited to: the daily hire rate of $14,750 per day; the charter period of thirty-six (36) months; the trade limits set forth in Clause 5; the maintenance and seaworthiness obligations set forth in Clause 6; the off-hire provisions set forth in Clause 11; and the liquidated damages provision set forth in Clause 28, including the $4,500,000 cap and the phrase "single continuous period of breach" as used therein; and
(f) any side letters, addenda, memoranda of understanding, or other agreements entered into contemporaneously with or in connection with the Charter-Party.
INTERROGATORY NO. 3 — Interpretation of Clause 28 (Liquidated Damages)
State the factual and contractual basis for Northwind's contention, as set forth in its Complaint, that the liquidated damages cap of Four Million Five Hundred Thousand United States Dollars ($4,500,000) under Clause 28 of the Charter-Party applies separately to each alleged "single continuous period of breach" rather than as an aggregate cap for the entire charter period. In your response:
(a) identify all persons who participated in drafting or negotiating Clause 28 on behalf of Northwind, including any outside counsel, brokers, or advisors;
(b) describe any discussions, negotiations, correspondence, or communications among the parties or their representatives regarding the intended meaning, scope, or application of the $4,500,000 cap, including whether the cap was intended to apply per incident, per breach, or in the aggregate;
(c) describe any prior dealings, course of performance, or trade usage upon which Northwind relies to support its interpretation;
(d) identify all documents, including but not limited to drafts, marked-up versions of Clause 28, negotiation notes, internal memoranda, emails, and correspondence, that support or relate to Northwind's interpretation of Clause 28; and
(e) state whether Northwind contends that any extrinsic evidence is admissible to construe Clause 28, and if so, identify each item of extrinsic evidence upon which Northwind intends to rely.
INTERROGATORY NO. 4 — Off-Hire Calculations
For each of the three incidents giving rise to Northwind's off-hire claims (Incident 1: March 12 through April 2, 2022, approximately 22 days; Incident 2: July 8 through July 29, 2022, approximately 21 days; Incident 3: November 15 through December 10, 2022, approximately 25 days), state:
(a) the precise date and time (UTC) on which Northwind contends the Vessel went off-hire, specifying the event or circumstance that Northwind contends triggered the off-hire;
(b) the precise date and time (UTC) on which Northwind contends the Vessel came back on hire, specifying the event or circumstance that Northwind contends terminated the off-hire period;
(c) the total number of off-hire days claimed for each incident, stated to the nearest hour or fraction thereof;
(d) the method by which Northwind calculated the off-hire deductions totaling One Million Three Thousand United States Dollars ($1,003,000) (stated by Northwind to be 68 days multiplied by $14,750 per day), including whether the calculation was based on a period off-hire or a net loss of time approach;
(e) whether any partial days were claimed as off-hire and, if so, the basis for pro-rating, including whether such pro-rating was by the hour, by the half-day, or by some other increment; and
(f) whether Northwind issued any formal off-hire notices to TSL or Aegean Fortuna Shipholding in connection with any of the three incidents and, if so, identify each such notice by date, form (written, email, or otherwise), author, and recipient.
INTERROGATORY NO. 5 — Incident 1 — Turbocharger Failure (March 12 – April 2, 2022)
With respect to Incident 1, the main engine turbocharger failure that occurred while the Vessel was in the Indian Ocean en route from Paradip, India to Mombasa, Kenya, on or about March 12, 2022:
(a) describe in detail Northwind's factual basis for contending that the turbocharger failure was caused by negligent maintenance by the Owner or the Owner's managers or agents, rather than by a latent defect, normal wear and tear, or any other cause not attributable to the Owner's breach of its maintenance obligations;
(b) identify all persons at Northwind or acting on Northwind's behalf who had knowledge of the Vessel's mechanical condition, maintenance history, or engine performance prior to March 12, 2022, and describe the nature and extent of each such person's knowledge;
(c) state whether Northwind conducted, arranged, commissioned, or participated in any inspection, survey, or assessment of the Vessel's main engine, turbocharger, or related machinery at any time during the charter period prior to Incident 1, and if so, describe each such inspection, including the date, location, identity of the inspector or surveyor, scope of the inspection, and findings or conclusions;
(d) describe all communications between Northwind (including its agents, brokers, and employees) and the Master or crew of the Vessel regarding Incident 1, including communications concerning the nature of the failure, the anticipated repair timeline, the diversion to Colombo, and the return to service; and
(e) identify all documents, including but not limited to classification society records from the Global Maritime Classification Bureau (GMCB), survey reports, condition of class records, planned maintenance system records, repair invoices, spare parts requisitions, and engineering reports, upon which Northwind relies or intends to rely to establish that the turbocharger failure was attributable to the Owner's breach of its maintenance and seaworthiness obligations under Clause 6 of the Charter-Party.
INTERROGATORY NO. 6 — Incident 2 — BWTS / Boiler Failure (July 8 – July 29, 2022)
With respect to Incident 2, the ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure at Richards Bay, South Africa, occurring on or about July 8, 2022, through on or about July 29, 2022:
(a) identify the port or ports at which ballast water was loaded into the Vessel prior to the Vessel's arrival at Richards Bay on or about July 8, 2022, including the date and quantity of ballast water loaded at each such port;
(b) identify all agents, stevedores, cargo superintendents, or other representatives of Northwind who directed, supervised, or participated in the loading of ballast water at any such prior port, and describe the instructions given to the Master or crew regarding ballast operations;
(c) state whether Northwind is aware of any contamination, sediment, biological organisms, or foreign matter in the ballast water loaded at Northwind's direction or at the direction of Northwind's agents at any port prior to Richards Bay, and if so, describe the nature, extent, and source of such contamination in detail;
(d) describe the factual basis for Northwind's contention that the BWTS malfunction was caused by the Owner's failure to maintain the BWTS in accordance with the manufacturer's specifications and applicable regulations, rather than by contaminated or sediment-laden ballast water loaded at ports selected or designated by Northwind or at the direction of Northwind's agents;
(e) describe all communications between Northwind's agents, employees, or representatives and the Vessel's Master, Chief Engineer, or crew regarding ballast water operations during the period June 1, 2022 through July 8, 2022, including any instructions regarding ballast water exchange, treatment, or discharge;
(f) state whether Northwind retained or engaged any independent surveyor, marine engineer, or expert to inspect, assess, or report on the condition of the BWTS after the malfunction, and if so, identify each such person by name, title, employer or affiliation, and describe the scope of the engagement and identify all resulting reports, analyses, or opinions.
INTERROGATORY NO. 7 — Incident 3 — Cylinder Liner Failure (November 15 – December 10, 2022)
With respect to Incident 3, the main engine cylinder liner failure requiring drydocking at Keppel Verolme Shipyard, Rotterdam, The Netherlands, on or about November 15, 2022 through on or about December 10, 2022:
(a) describe in detail all facts supporting Northwind's damages claims arising from this incident, including the alleged cause of the cylinder liner failure, the scope of repairs undertaken, and the impact on Northwind's commercial operations;
(b) state the precise quantum of damages that Northwind attributes solely to Incident 3, as distinct from Incidents 1 and 2 and the Alleged Deviation, broken down by each category of claimed damages;
(c) identify all substitute charter arrangements that Northwind made or attempted to make during the twenty-five (25) day off-hire period, including the identity of any substitute vessel by name and IMO number, the identity of the owner or disponent owner of the substitute vessel, the daily hire rate for the substitute charter, the dates and duration of the substitute charter, and the total cost thereof; and
(d) describe all communications between Northwind and TSL or Aegean Fortuna Shipholding (or their agents, managers, or representatives) regarding the scope, estimated cost, and timeline of the drydock repairs at Keppel Verolme Shipyard, Rotterdam, including any disputes regarding the necessity, extent, or duration of the repairs.
INTERROGATORY NO. 8 — Alleged Deviation to Maputo (September 2022)
With respect to the Alleged Deviation from the Durban-to-Qingdao voyage to Maputo, Mozambique, in September 2022:
(a) state the precise dates of the alleged deviation, including the date the Vessel departed Durban, the date the Vessel arrived at Maputo, the dates the Vessel was at Maputo, the date the Vessel departed Maputo, and the date Northwind first became aware that the Vessel was proceeding to Maputo rather than directly to Qingdao;
(b) identify the person or persons at Northwind who were responsible for directing the cargo operations at Qingdao and who were responsible for securing the laycan window of October 1–5, 2022, including the charterer of the cargo, the cargo interests, and the contractual counterparty at Qingdao;
(c) state whether Northwind protested the Maputo call to the Master of the Vessel, to TSL, or to Aegean Fortuna Shipholding, and if so, identify all such protests by date, form (written, oral, email, or otherwise), author, and recipient, and describe the substance of each protest and any response received;
(d) describe the weather and sea conditions in the Mozambique Channel and off the coast of southeastern Africa during September 2022, to the extent known to Northwind, including any tropical cyclone warnings, heavy weather advisories, or navigational warnings issued by any meteorological or maritime authority;
(e) state whether Northwind contends that the Master's decision to call at Maputo was not justified by weather, routing conditions, safety of the Vessel or crew, the need for bunkers or provisions, or any other basis falling within the Master's reasonable discretion under the Charter-Party or applicable maritime law, and if so, the factual and legal basis for that contention;
(f) describe the factual basis for Northwind's claim that the deviation caused it to miss the Qingdao laycan window of October 1–5, 2022, including the Vessel's actual arrival date at Qingdao, the number of days of delay attributable to the deviation, and whether any extension of the laycan window was requested or offered; and
(g) provide a detailed breakdown of the One Million Two Hundred Thirty Thousand United States Dollars ($1,230,000) in demurrage and dead freight costs claimed in connection with the missed Qingdao laycan, identifying each component (demurrage, dead freight, cancellation penalties, or other charges), the rate applied, the number of days or units, the contractual basis for each charge (including the relevant contract or agreement under which each charge was incurred), and the identity of the counterparty to whom each charge was paid or is owed.
INTERROGATORY NO. 9 — Substitute Charter Costs
With respect to Northwind's claim of Four Hundred Seventy-One Thousand Six Hundred United States Dollars ($471,600) in substitute charter costs:
(a) identify each substitute vessel chartered by Northwind during any period when the M/V Aegean Fortuna was off-hire or otherwise unavailable for Northwind's use, stating the name and IMO number of each substitute vessel;
(b) for each substitute charter, state the name of the vessel, the identity of the owner or disponent owner, the daily hire rate, the dates and duration of the substitute charter, the trade area or voyage for which the substitute vessel was employed, and the total cost;
(c) explain how the substitute charter rate of $21,300 per day (as alleged) was determined, and whether Northwind obtained competing quotations or proposals from other vessel owners or operators, and if so, identify each such quotation, the vessel offered, the rate quoted, and the reason Northwind did not select the alternative;
(d) identify all documents evidencing or relating to the substitute charter arrangements, including charter-party agreements, fixture recaps, broker communications, invoices, and payment records;
(e) state the total number of days (stated by Northwind as 72 days) for which substitute charter costs are claimed, and explain the basis for claiming 72 days of substitute charter costs when the total off-hire days for Incidents 1, 2, and 3 aggregate to 68 days, including whether the additional 4 days relate to mobilization or positioning of the substitute vessel or to some other cause; and
(f) describe all efforts Northwind undertook to minimize substitute charter costs, including any efforts to secure a substitute vessel at a lower daily rate, any negotiations regarding the terms of the substitute charter, and any decisions not to charter a substitute vessel for any period and the reasons therefor.
INTERROGATORY NO. 10 — Cargo Damage Claims (Iron Ore Oxidation — Incident 2)
With respect to Northwind's claim of Three Million Four Hundred Twenty Thousand United States Dollars ($3,420,000) in cargo damage arising from iron ore oxidation during Incident 2:
(a) identify the shipper or shippers, consignee or consignees, and all bills of lading (by number, date, and port of loading) for the iron ore cargo on board the Vessel at the time of Incident 2;
(b) describe the nature and extent of the alleged cargo damage in detail, including the total quantity of iron ore cargo on board (in metric tons), the quantity of cargo alleged to have been damaged, the condition of the cargo as loaded (including moisture content and any pre-existing condition), the condition of the cargo upon discharge, and all surveys, inspections, sampling, or laboratory analyses conducted to assess the damage;
(c) identify any surveyor, loss adjuster, marine cargo expert, or other expert retained by Northwind or by any cargo interest in connection with the cargo damage claim, and for each such person, state the person's name, employer or affiliation, and the date and scope of each engagement;
(d) state whether any cargo damage claims have been asserted by the shippers, consignees, cargo owners, or their insurers directly against Northwind, and if so, identify each claim by the name of the claimant, the date the claim was asserted, the amount claimed, the legal basis for the claim, and the current status of the claim (including whether any claim has been settled, paid, adjudicated, or is in litigation or arbitration);
(e) describe the factual and legal basis on which Northwind contends that the cargo damage is attributable to Defendants' breach of the Charter-Party or other duty, rather than to inherent vice of the iron ore cargo, improper stowage or ventilation directed by Northwind or its agents, inadequate cargo documentation, or any other cause not attributable to Defendants; and
(f) state whether Northwind contends that the Inter-Club Agreement (ICA) between owners and charterers, as incorporated into or applicable under the Charter-Party, does not apply to allocate liability for this cargo damage claim, and if so, state the factual and legal basis for that contention, including whether Northwind contends that the ICA has not been incorporated into the Charter-Party, that the cargo damage falls outside the scope of the ICA, or that some other basis exists for Northwind's position.
INTERROGATORY NO. 11 — Third-Party Shipper Claims
With respect to Northwind's claim of Five Million Six Hundred Thirty-Four Thousand Four Hundred United States Dollars ($5,634,400) in third-party shipper claims:
(a) identify each of the three third-party shipper claimants by full legal name, jurisdiction of organization, principal place of business, and contact information;
(b) for each third-party shipper claim, state the date the claim was first asserted, the amount claimed, the nature of the alleged loss (cargo damage, delay, demurrage, dead freight, or otherwise), the contractual provision or legal theory under which the claim was asserted, and the current status of the claim, including whether the claim has been settled, paid, or is currently in litigation or arbitration, and if in litigation or arbitration, the forum, case number, and current posture of the proceeding;
(c) identify the contractual relationship between Northwind and each third-party shipper claimant, including all contracts, charter-parties, contracts of affreightment, booking notes, or other agreements governing such relationship, and for each such agreement, state the date, parties, subject matter, and relevant terms;
(d) describe the factual basis for Northwind's contention that each third-party shipper claim constitutes recoverable charter-party damages against Defendants, including the causal nexus between the alleged breaches by Defendants and each third-party shipper's loss; and
(e) state whether Northwind has asserted or intends to assert any right of indemnification, contribution, or pass-through from Defendants in connection with any such third-party claims, and if so, identify the contractual provision (including any indemnification clause in the Charter-Party) or legal basis therefor.
INTERROGATORY NO. 12 — Sub-Charter with Eastbourne Bulk Carriers Ltd.
With respect to the sub-charter between Northwind and Eastbourne Bulk Carriers Ltd. ("Eastbourne"):
(a) identify the type of charter (time charter, voyage charter, trip charter, or contract of affreightment), the date of execution, the charter period (including commencement and termination dates), the daily hire rate (believed to be $17,200 per day as alleged in the Complaint), the trading limits or trade area, and all other material terms;
(b) state whether the sub-charter was for the M/V Aegean Fortuna specifically or for any vessel to be nominated by Northwind, and if the latter, describe the nomination provisions and whether the M/V Aegean Fortuna was formally nominated;
(c) describe the performance of the sub-charter during the charter period in detail, including any periods of off-hire, disruption, delay, non-performance, or breach attributable in whole or in part to the mechanical failures of the Vessel or the Alleged Deviation, and any periods of off-hire, disruption, or non-performance attributable to other causes;
(d) describe Northwind's calculation of lost sub-charter profit of One Hundred Sixty-Six Thousand Six Hundred United States Dollars ($166,600), stated by Northwind as ($17,200 minus $14,750) multiplied by 68 days equals $166,600, and confirm whether this calculation represents the full extent of Northwind's claimed lost sub-charter profit or whether additional amounts are claimed under any other theory;
(e) identify all communications between Northwind and Eastbourne regarding the three mechanical incidents and the Alleged Deviation, including the dates, form (email, letter, telephone, or otherwise), author, recipient, and substance of each such communication;
(f) state whether Eastbourne has asserted any claims against Northwind arising from or relating to the events at issue in this action, including but not limited to claims for off-hire, damages, termination, or breach of the sub-charter, and if so, identify each such claim by date, amount, nature, and current status; and
(g) produce or identify all documents constituting or relating to the sub-charter agreement between Northwind and Eastbourne, including the charter-party itself, all amendments, riders, addenda, side letters, fixture recaps, broker communications, and performance records.
INTERROGATORY NO. 13 — Mitigation of Damages
Describe in detail all steps taken by Northwind to mitigate its damages arising from each of the three mechanical incidents (Incidents 1, 2, and 3) and the Alleged Deviation, including but not limited to:
(a) all efforts to obtain substitute tonnage, including the number of vessels considered, the owners or operators contacted, the rates quoted, and the reasons for accepting or rejecting each option;
(b) all communications with cargo interests, shippers, consignees, and sub-charterers regarding delays, including any negotiations to extend laycans, reschedule cargo deliveries, or adjust contractual obligations;
(c) all alternative routing, scheduling, or logistical arrangements considered or implemented, including any arrangements to split cargoes, combine shipments, or use alternative modes of transportation;
(d) any decision by Northwind not to pursue an available mitigation option and the reasons for that decision, including any cost-benefit analysis or commercial judgment exercised; and
(e) the specific dates on which each mitigation step was taken and the identity of the person or persons at Northwind responsible for making and implementing each mitigation decision.
INTERROGATORY NO. 14 — Withheld Hire (October 1 – December 31, 2022)
With respect to Northwind's withholding of hire in the approximate amount of One Million Six Hundred Twenty Thousand United States Dollars ($1,620,000) for the period October 1, 2022 through December 31, 2022 (approximately 110 days at $14,750 per day):
(a) state the precise dates for which hire was withheld, specifying for each date whether hire was withheld in full or in part, and the amount withheld for each date or period;
(b) identify the specific provision or provisions of the Charter-Party (including Clause 11, or any other clause) upon which Northwind relies to justify the withholding of hire;
(c) describe the factual basis for Northwind's contention that it was entitled to withhold hire during this period, including which of the three incidents, the Alleged Deviation, or any other event Northwind contends justified the withholding, and how the withheld amount was calculated;
(d) state whether Northwind contends that it was entitled to set off its Claimed Damages (or any portion thereof) against hire then or thereafter becoming due, and if so, identify the specific legal authority and contractual basis for such setoff, including any provision of the Charter-Party authorizing equitable setoff or deduction from hire; and
(e) identify all notices, correspondence, or communications from Northwind to TSL or Aegean Fortuna Shipholding regarding the decision to withhold hire, including the date, form, author, recipient, and substance of each such communication.
INTERROGATORY NO. 15 — Additional Port Costs and Bunker Surcharges
With respect to Northwind's claim of Eight Hundred Seventy-Five Thousand Four Hundred United States Dollars ($875,400) in additional port costs and bunker surcharges:
(a) provide a detailed breakdown of each individual cost item comprising the $875,400 claim, including the port or location at which the cost was incurred, the date or dates, the nature of the cost (e.g., wharfage, pilotage, towage, mooring and unmooring, anchorage, agency fees, port dues, bunker surcharges, fuel costs, overtime charges, or other), the amount of each item, and the currency in which each item was invoiced (and the applicable exchange rate, if not denominated in U.S. dollars);
(b) identify the person or persons at Northwind who authorized or incurred each cost item;
(c) describe the causal nexus between each cost item and the alleged breaches by Defendants, including a specific explanation of why each cost would not have been incurred but for the alleged breach; and
(d) identify all invoices, receipts, disbursement accounts, port agents' statements, and other documents supporting each cost item.
INTERROGATORY NO. 16 — Legal Fees and Expert Costs Claimed as Damages
With respect to Northwind's claim of Nine Hundred Ninety-Nine Thousand United States Dollars ($999,000) in legal fees and expert costs as an element of damages in this action:
(a) state the legal basis upon which Northwind contends that its legal fees and expert costs are recoverable as an element of damages in this action, rather than being governed by the American Rule applicable in New York, including any contractual provision (such as an attorneys' fees clause in the Charter-Party), statutory basis, or other legal theory;
(b) provide a breakdown of the $999,000 between legal fees and expert or consultant costs;
(c) identify all law firms, individual attorneys, expert witnesses, consultants, marine surveyors, forensic accountants, and other professionals whose fees and costs are included within the $999,000 claim; and
(d) for each such firm, attorney, expert, or consultant, state the billing rates, total hours billed, and total amounts billed and paid through the date of Northwind's response.
INTERROGATORY NO. 17 — Insurance
State whether Northwind maintained any insurance coverage relevant to the claims or damages asserted in this action during the period January 15, 2021 through the present, including but not limited to cargo insurance, loss of hire insurance, charterer's liability insurance, protection and indemnity (P&I) insurance, freight demurrage and defense (FD&D) insurance, or any other policy, and for each such policy:
(a) identify the insurer or underwriter, the policy number, and the coverage period;
(b) state the applicable limits of liability and deductibles or retentions;
(c) state whether Northwind has submitted any claim under any such policy in connection with the events at issue in this action, and if so, state the date of the claim, the amount claimed, the amount paid or reserved by the insurer, and the current status of the claim; and
(d) state whether any insurer has asserted or reserved a right of subrogation in connection with any such claim, and if so, identify the insurer and the nature and amount of the subrogation claim.
INTERROGATORY NO. 18 — Witnesses
Identify each person (other than counsel of record in this action) known to Northwind who has knowledge of facts relevant to any claim or defense in this action, and for each such person state:
(a) the person's full legal name, title or position, employer or affiliation, and last known business address and telephone number;
(b) the subject matter or subject matters about which the person has knowledge, described with sufficient specificity to inform Defendants of the scope of such person's knowledge; and
(c) whether Northwind or anyone acting on Northwind's behalf has obtained a written or recorded statement from the person, and if so, the date and custodian of each such statement.
INTERROGATORY NO. 19 — Expert Witnesses
Identify each expert witness Northwind has retained or expects to retain in connection with this action, and for each such expert state:
(a) the expert's full name, title or position, employer or affiliation, and business address;
(b) the subject matter and substance of the opinions the expert is expected to offer at trial, including a summary of the grounds for each opinion;
(c) the expert's qualifications, including educational background, professional certifications, memberships in professional organizations, and a list of publications authored or co-authored within the past ten (10) years;
(d) the expert's compensation arrangement with Northwind, including hourly rate, retainer amount, and total fees paid or accrued to date; and
(e) all prior cases in the past four (4) years in which the expert has testified at deposition or at trial, identified by case name, court or tribunal, and approximate date of testimony.
This interrogatory is without prejudice to Defendants' rights to receive expert disclosures pursuant to any scheduling order or case management order entered in this action, and Defendants reserve all rights to depose Northwind's experts in accordance with applicable law and court rules.
INTERROGATORY NO. 20 — Damages Summary and Computation
Provide a complete and detailed computation of each category of damages claimed by Northwind in this action, totaling Eighteen Million Three Hundred Thousand United States Dollars ($18,300,000), as set forth in the Complaint. For each category, state:
(a) the specific amount claimed;
(b) the factual basis for the claim, including the events, incidents, or breaches giving rise to the claimed damages;
(c) the method of calculation, including all formulas, rates, quantities, and time periods used;
(d) all assumptions, estimates, or projections used in the calculation;
(e) the Charter-Party provision or provisions, or other contractual, statutory, or legal basis supporting the claim; and
(f) all documents upon which Northwind relies or intends to rely to support the calculation, identified by date, author, recipient, and description.
The categories of damages to be addressed in this interrogatory shall include, at a minimum, each of the following:
(i) Off-hire deductions: $1,003,000;
(ii) Liquidated damages under Clause 28 of the Charter-Party: $4,500,000;
(iii) Substitute charter costs: $471,600;
(iv) Cargo damage (iron ore oxidation): $3,420,000;
(v) Demurrage and dead freight (Qingdao laycan): $1,230,000;
(vi) Additional port costs and bunker surcharges: $875,400;
(vii) Lost sub-charter profit (Eastbourne): $166,600;
(viii) Third-party shipper claims: $5,634,400; and
(ix) Legal fees and expert costs: $999,000.
To the extent that Northwind claims any additional category of damages not enumerated above, Northwind shall identify and provide the same information for each such additional category.
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Respectfully submitted,