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 Part 49 (Hon. Lorraine K. Chen, J.S.C.)
DEFENDANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF NORTHWIND MARITIME CORPORATION
January 22, 2024
TO:
HARGROVE, DELACROIX & STERN LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Attorneys for Plaintiff Northwind Maritime Corporation
FROM:
CALDERWOOD & HARKNESS LLP One Liberty Plaza, 50th Floor New York, New York 10006 Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
Pursuant to Sections 3120 and 3122 of the New York Civil Practice Law and Rules ("CPLR") and the Rules of the Commercial Division of the Supreme Court, Defendants Thalassa Shipping & Logistics SA ("Thalassa") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna" and, together with Thalassa, "Defendants" or "TSL") hereby request that Plaintiff Northwind Maritime Corporation ("Northwind" or "Plaintiff") produce the documents described below for inspection and copying within twenty (20) days after service of this request, or at such other time as the parties may agree or the Court may order. Documents shall be produced at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006, or by electronic production in accordance with the instructions set forth below.
PRELIMINARY STATEMENT
Plaintiff Northwind Maritime Corporation, a corporation organized and existing under the laws of the Republic of the marshall Islands (Entity No. MI-94827), commenced this action on October 2, 2023, by filing a Summons and Verified Complaint in the Supreme Court of the State of New York, County of New York, Commercial Division. The Complaint asserts claims for breach of a time charter-party (Reference No. NW-TSL-CP-2020-1203) dated December 3, 2020 (the "Charter-Party"), in New York Produce Exchange Form 2015 ("NYPE 2015") as amended, for the vessel M/V Aegean Fortuna (IMO No. 9847231), a Liberia-flagged Supramax dry bulk carrier of approximately 58,200 deadweight tons ("DWT"). The Charter-Party was entered into between Aegean Fortuna Shipholding Ltd. as Owner and Northwind Maritime Corporation as Charterer.
Northwind claims approximately $18,300,000 in total alleged damages across multiple categories, including 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. These claims arise from three separate mechanical incidents and an alleged deviation of the Vessel during the Charter Period.
Defendants Thalassa Shipping & Logistics SA, a Greek société anonyme with its principal offices at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd., a Liberian company (Registration No. LR-C-20167845) and the registered owner of the M/V Aegean Fortuna, deny the material allegations of the Complaint. On December 15, 2023, Defendants filed their Verified Answer and Counterclaim. The counterclaim seeks recovery of $1,620,000 in unpaid hire for the period October 1, 2022 through December 31, 2022 (approximately 110 days at $14,750 per day), which Northwind unilaterally withheld in purported exercise of a set-off right that Defendants contend is unsupported by the Charter-Party or applicable law.
These document requests seek documents and communications necessary for Defendants to evaluate Northwind's claimed damages, test Northwind's factual allegations, and prepare their defenses. Defendants' defenses include, but are not limited to: (i) latent defect within the meaning of the Hague-Visby Rules and the Charter-Party; (ii) charterer causation and/or contributory fault; (iii) the Master's reasonable deviation under the circumstances; (iv) the defense available under the Inter-Club Agreement with respect to cargo damage claims; (v) the non-recoverability of certain third-party shipper claims as a matter of law; (vi) Northwind's failure to mitigate damages; and (vii) the proper interpretation of the liquidated damages cap under Clause 28 of the Charter-Party, which Defendants contend imposes a single aggregate cap of $4,500,000, not separate per-incident caps as Northwind contends.
The document requests set forth below are reasonably calculated to lead to the discovery of admissible evidence and are proportional to the needs of this case in light of the complexity of the claims, the magnitude of the damages at issue, and the importance of the documents sought to the resolution of the disputed factual and legal issues.
DEFINITIONS
A. Defined Terms
As used herein, the following terms shall have the meanings set forth below:
1. "Plaintiff" or "Northwind" means Northwind Maritime Corporation, a marshall Islands corporation (Entity No. MI-94827), including its officers — specifically, Viktor Lindgren (President and Managing Director), Sandra Chow (Chief Financial Officer), and Richard Hartnett (General Counsel) — directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, successors, and any person acting on behalf of or at the direction of Northwind Maritime Corporation.
2. "Defendants" or "TSL" means, collectively, Thalassa Shipping & Logistics SA, a Greek société anonyme, and Aegean Fortuna Shipholding Ltd., a Liberian company (Registration No. LR-C-20167845), including their respective officers, directors, employees, agents, and representatives.
3. "Charter-Party" means the time charter-party in NYPE 2015 form, as amended, dated December 3, 2020, bearing Reference No. NW-TSL-CP-2020-1203, entered into between Aegean Fortuna Shipholding Ltd. (as Owner) and Northwind Maritime Corporation (as Charterer) for the M/V Aegean Fortuna, together with all rider clauses, addenda, side letters, recaps, and amendments thereto.
4. "Vessel" means the M/V Aegean Fortuna, IMO No. 9847231, a Supramax dry bulk carrier of approximately 58,200 DWT, built in 2016 by Dalian Prosperity Shipyard Co., Ltd., flagged in the Republic of Liberia, and classed by the Global Maritime Classification Bureau ("GMCB").
5. "Charter Period" means the period commencing on January 15, 2021 (the date of delivery of the Vessel under the Charter-Party) through January 14, 2024 (the contractual expiration date), a period of approximately thirty-six (36) months, or approximately 1,096 days.
6. "Incident 1" means the main engine turbocharger failure that occurred on or about March 12, 2022, resulting in an off-hire period extending through approximately April 2, 2022 (approximately 22 off-hire days), during which the Vessel was repaired at Colombo, Sri Lanka.
7. "Incident 2" means the ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure that occurred on or about July 8, 2022, resulting in an off-hire period extending through approximately July 29, 2022 (approximately 21 off-hire days), at Richards Bay, South Africa.
8. "Incident 3" means the main engine cylinder liner failure that occurred on or about November 15, 2022, resulting in an off-hire period extending through approximately December 10, 2022 (approximately 25 off-hire days), requiring drydocking at Keppel Verolme Shipyard, Rotterdam, the Netherlands.
9. "Alleged Deviation" means the alleged deviation of the Vessel in September 2022 from the Durban-to-Qingdao voyage to the port of Maputo, Mozambique, which Northwind alleges added approximately four (4) days to the voyage and caused Northwind to miss a cargo laycan window at Qingdao, People's Republic of China (the "Qingdao Laycan"), of October 1–5, 2022.
10. "Eastbourne Sub-Charter" means any and all sub-charter, sub-time charter, trip charter, voyage charter, or other chartering arrangement entered into between Northwind and Eastbourne Bulk Carriers Ltd. (a company incorporated under the laws of England and Wales) relating to the Vessel, including all amendments, addenda, and ancillary agreements thereto.
11. "Document" or "Documents" means the term as defined in CPLR § 3120(1)(i), and shall be construed in the broadest sense permitted by law to include, without limitation, all writings, correspondence (including emails, text messages, instant messages via any platform, and other electronic communications), memoranda, reports, studies, analyses, records, contracts, agreements, letters of intent, term sheets, notes, logs (including voyage logs, deck logs, and engine room logs), presentations, spreadsheets, charts, graphs, photographs, videos, audio recordings, data compilations, databases, electronically stored information ("ESI") in any format, metadata associated with any electronic document, and any other tangible or intangible thing from which information can be obtained, whether in paper, electronic, or any other form.
12. "Communication" means any exchange, transmission, or receipt of information of any kind, whether oral or written, formal or informal, including but not limited to letters, emails, text messages, instant messages, telephone calls (including records, logs, and transcriptions thereof), videoconferences, in-person meetings, and any other form of transmission of information between two or more persons.
13. "Relating to" or "Concerning" means referring to, pertaining to, describing, evidencing, constituting, reflecting, mentioning, summarizing, connected with, commenting upon, or having any logical relationship to the subject matter in question. These terms shall be construed broadly and inclusively.
14. "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, estate, governmental entity or agency, or any other legal entity of any kind.
B. Time Period
Unless otherwise specified in a particular request, each request covers the period from January 1, 2020 through the date of production of documents in response to this request.
C. General Instructions
1. Northwind is requested to produce all responsive documents in its possession, custody, or control, including documents held by its officers, directors, employees, agents, attorneys (to the extent not subject to a valid claim of attorney-client privilege or work product protection), accountants, consultants, brokers, and other representatives, whether located in the United States or abroad.
2. Documents shall be produced either as they are kept in the ordinary course of business or organized and labeled to correspond with the categories in each request, in accordance with CPLR § 3120.
3. If any document responsive to any request is withheld in whole or in part on the basis of attorney-client privilege, work product protection, or any other privilege or protection, Northwind shall provide a privilege log in accordance with CPLR § 3122, setting forth for each withheld document the following information:
(a) the date of the document;
(b) the author(s) of the document;
(c) the recipient(s) and all persons copied on or otherwise receiving the document;
(d) a description of the subject matter of the document sufficient for the Court and the undersigned to assess the validity of the privilege or protection asserted, without revealing the privileged content;
(e) the specific privilege or protection asserted (e.g., attorney-client privilege, work product doctrine, joint defense privilege).
4. If any document responsive to any request has been lost, destroyed, discarded, or is otherwise no longer in Northwind's possession, custody, or control, Northwind shall identify the document to the extent possible, describe its contents and subject matter, state the date or approximate date of its loss or destruction, and explain the circumstances under which the document was lost, destroyed, or became unavailable, including the identity of any person(s) responsible for or with knowledge of such loss or destruction.
5. Electronically stored information ("ESI") shall be produced in native format or in single-page TIFF images with extracted text and full metadata (including but not limited to author, date created, date modified, file name, and custodian), in accordance with the parties' ESI protocol, if one has been agreed upon, or in accordance with the Commercial Division's Guidelines for discovery of Electronically Stored Information. To the extent email is produced, it shall include all header information, attachments, and embedded images.
6. Each request shall be construed independently and not by reference to any other request for purposes of limitation. No request shall be construed as limiting the scope of any other request.
7. If any request is deemed ambiguous by Northwind, Northwind is requested to contact the undersigned counsel to discuss the request before interposing an objection, in the spirit of the cooperation contemplated by the Commercial Division Rules.
DOCUMENT REQUESTS
REQUEST NO. 1: The Charter-Party and All Amendments
Produce all drafts, executed copies, amendments, addenda, side letters, riders, recaps, fixture notes, and other documents constituting or forming part of the Charter-Party (Reference No. NW-TSL-CP-2020-1203), including but not limited to:
(a) The NYPE 2015 form, including all printed terms and any typewritten or manuscript alterations;
(b) All rider clauses attached to or incorporated into the Charter-Party;
(c) The Clause 46(b) addendum regarding litigation election and the designation of the Supreme Court of the State of New York as the agreed forum;
(d) Clause 28, relating to liquidated damages;
(e) Clause 5, relating to trade limits;
(f) Clause 6, relating to maintenance and seaworthiness obligations;
(g) Clause 11, relating to off-hire; and
(h) Any other clauses or provisions that have been added, modified, or deleted from the standard NYPE 2015 form.
In addition, produce all documents relating to the negotiation of the Charter-Party, including all term sheets, preliminary offers, counteroffers, broker correspondence, fixture recaps, fixture confirmations, and fixture notes exchanged between the parties or their respective brokers in connection with the chartering of the Vessel.
REQUEST NO. 2: The Eastbourne Sub-Charter Agreement
Produce the complete sub-charter agreement(s) between Northwind and Eastbourne Bulk Carriers Ltd. relating to the Vessel, including all drafts, executed versions, amendments, addenda, side letters, riders, recaps, and fixture notes, in whatever form they may exist.
Produce all documents evidencing the sub-charter daily hire rate (claimed by Northwind to be $17,200 per day), the sub-charter period and duration, any trade limits imposed under the sub-charter, any performance warranties or guarantees, and all other material terms and conditions of the sub-chartering arrangement.
Produce all communications between Northwind and Eastbourne Bulk Carriers Ltd. relating to the Vessel, including but not limited to communications regarding:
(a) The negotiation and execution of the Eastbourne Sub-Charter;
(b) The three Incidents (Incident 1, Incident 2, and Incident 3), including any notifications of off-hire provided by Northwind to Eastbourne, and any claims or complaints made by Eastbourne in connection with such off-hire periods;
(c) The Alleged Deviation, including any impact on Eastbourne's trading or cargo commitments;
(d) Any claims by Eastbourne against Northwind, whether asserted formally or informally, and any settlements, credits, or adjustments to the sub-charter hire; and
(e) The financial performance of the Vessel under the Eastbourne Sub-Charter.
REQUEST NO. 3: Documents Relating to Incident 1 (Turbocharger Failure, March 12 – April 2, 2022)
Produce all documents in Northwind's possession, custody, or control relating to Incident 1, the main engine turbocharger failure that occurred on or about March 12, 2022, and the resulting off-hire period extending through approximately April 2, 2022, including but not limited to:
(a) All communications with the Master of the Vessel (Captain Nikolaos Giannopoulos), the Chief Engineer (Petros Vlahos), and any other member of the Vessel's crew regarding the turbocharger failure, its causes, and the repair process;
(b) All communications with port agents, ship chandlers, surveyors, classification society representatives, and repair facilities in Colombo, Sri Lanka, relating to the turbocharger failure and repair;
(c) All notices of off-hire served by Northwind upon the Owners in connection with Incident 1, all responses to such notices, and all related correspondence between the parties regarding the off-hire claim;
(d) All documents in Northwind's possession relating to the condition of the main engine turbocharger prior to Incident 1, including any reports, maintenance records, or communications suggesting that Northwind was aware of, or should have been aware of, any pre-existing deficiency or degradation in the turbocharger's condition; and
(e) All survey reports, class condition reports, class recommendations, classification society memoranda, and inspection reports in Northwind's possession relating to the main engine turbocharger, whether prepared before, during, or after Incident 1.
REQUEST NO. 4: Documents Relating to Incident 2 (BWTS / Boiler Failure, July 8 – July 29, 2022)
Produce all documents in Northwind's possession, custody, or control relating to Incident 2, the ballast water treatment system malfunction and auxiliary boiler failure that occurred on or about July 8, 2022, and the resulting off-hire period extending through approximately July 29, 2022, at Richards Bay, South Africa, including but not limited to:
(a) All communications with the Master, Chief Engineer, and any other member of the Vessel's crew regarding the BWTS malfunction and auxiliary boiler failure;
(b) All communications with port agents at Richards Bay, South Africa, and any other port agents, surveyors, or repair facilities relating to Incident 2;
(c) All documents relating to the loading, intake, treatment, management, or discharge of ballast water at any port of call prior to Incident 2, including but not limited to records of ballast water intake at ports visited by the Vessel before arrival at Richards Bay;
(d) All documents relating to Northwind's agents' involvement in, or direction of, ballast water operations at any port preceding Richards Bay, including any instructions, recommendations, or requirements communicated by Northwind's agents to the Master or crew regarding ballast water intake, treatment, or discharge;
(e) All documents relating to the condition, quality, or characteristics of ballast water loaded, handled, or processed by or at the direction of Northwind's agents prior to the BWTS malfunction, including any test results, water quality analyses, or reports on sediment content; and
(f) All notices of off-hire served by Northwind upon the Owners in connection with Incident 2, all responses to such notices, and all related correspondence between the parties regarding the off-hire claim arising from Incident 2.
REQUEST NO. 5: Documents Relating to Incident 3 (Cylinder Liner Failure, November 15 – December 10, 2022)
Produce all documents in Northwind's possession, custody, or control relating to Incident 3, the main engine cylinder liner failure that occurred on or about November 15, 2022, and the resulting off-hire period extending through approximately December 10, 2022, including but not limited to:
(a) All communications with the Master, Chief Engineer, and any other member of the Vessel's crew regarding the cylinder liner failure, its causes, and the repair process;
(b) All communications with Keppel Verolme Shipyard, Rotterdam, the Netherlands, and any other repair facilities, surveyors, or classification society representatives regarding the cylinder liner failure, the drydocking, and the repair;
(c) All survey reports, drydocking reports, class condition reports, classification society reports, repair specifications, repair invoices, and cost estimates in Northwind's possession relating to the cylinder liner failure and drydocking at Keppel Verolme Shipyard;
(d) All notices of off-hire served by Northwind upon the Owners in connection with Incident 3, and all related correspondence between the parties regarding the off-hire claim; and
(e) All documents relating to any interim, substitute, or alternative arrangements made by Northwind during the drydocking period, including any arrangements to fulfill cargo commitments using other vessels, any cancellations of cargo bookings, and any communications with sub-charterers, cargo interests, or brokers regarding the unavailability of the Vessel during the drydocking.
REQUEST NO. 6: Documents Relating to the Alleged Deviation (September 2022 — Maputo)
Produce all documents in Northwind's possession, custody, or control relating to the Alleged Deviation of the Vessel to Maputo, Mozambique, in September 2022, including but not limited to:
(a) All voyage orders, voyage instructions, routing plans, and routing communications issued by Northwind or its agents to the Master for the Durban-to-Qingdao voyage;
(b) All communications between Northwind and the Master regarding the routing of the Durban-to-Qingdao voyage, including any discussions or exchanges concerning the possibility of calling at Maputo, Mozambique;
(c) All documents relating to weather conditions, sea states, port congestion, bunker availability, or any other navigational or commercial considerations in September 2022 that may have affected the routing of the Durban-to-Qingdao voyage or the Master's decision to call at Maputo;
(d) All documents relating to the Qingdao laycan window of October 1–5, 2022, including the underlying cargo contract, charter-party, or other agreement with the cargo interest or shipper, laycan notices, any extensions or negotiations regarding the laycan dates, and any correspondence with cargo interests regarding the Vessel's expected arrival;
(e) All documents relating to demurrage and dead freight claims arising from the alleged missed laycan at Qingdao, including all calculations of demurrage and dead freight, invoices, debit notes, and correspondence with cargo interests or sub-charterers; and
(f) All documents showing the derivation and composition of the $1,230,000 claimed as demurrage and dead freight, including the methodology, rates, quantities, and all supporting calculations and workpapers.
REQUEST NO. 7: Substitute Charter Documents
Produce all documents in Northwind's possession, custody, or control relating to any substitute charter, spot charter, voyage charter, contract of affreightment, or other vessel engagement entered into by Northwind as a result of, in connection with, or as a consequence of the Vessel's off-hire periods during any of the three Incidents or the Alleged Deviation, including but not limited to:
(a) The complete substitute charter agreement(s), including all drafts, executed versions, amendments, riders, recaps, and fixture notes;
(b) The identity of the substitute vessel(s), including IMO number(s), flag state(s), and carrying capacity;
(c) The daily hire rate of the substitute vessel(s), which Northwind claims to have been $21,300 per day;
(d) The charter period, trade limits, and all other material terms and conditions of the substitute charter arrangement(s);
(e) All documents showing how the claimed substitute charter premium of $471,600 was calculated, including the formula applied (claimed by Northwind to be ($21,300 − $14,750) × 72 days = $6,550 × 72 = $471,600), the number of days of substitute chartering, and any adjustments or offsets; and
(f) All communications with substitute vessel owners, disponent owners, or brokers regarding the substitute chartering arrangements, including negotiations, fixture recaps, and performance under the substitute charter(s).
REQUEST NO. 8: Cargo Damage Documentation (Iron Ore Oxidation — Incident 2)
Produce all documents in Northwind's possession, custody, or control relating to the cargo damage claim of $3,420,000 arising from the alleged oxidation of iron ore cargo during Incident 2 at Richards Bay, South Africa, including but not limited to:
(a) All cargo surveys, cargo inspection reports, outturn reports, draft surveys, and any other reports assessing the condition, quantity, or quality of the iron ore cargo before, during, and after Incident 2;
(b) All certificates of quality, certificates of weight, certificates of analysis, and sampling records for the iron ore cargo at loading and at discharge;
(c) All claims correspondence with cargo interests, shippers, receivers, consignees, and their respective insurers, relating to the iron ore oxidation damage;
(d) All bills of lading, mate's receipts, letters of protest, cargo manifests, stowage plans, and other shipping documents for the iron ore cargo affected by Incident 2;
(e) All documents relating to the condition of the Vessel's cargo holds before, during, and after Incident 2, including hold cleaning records, pre-loading survey reports, hold inspection reports, and any surveyor's findings regarding the fitness of the holds to receive iron ore cargo;
(f) All insurance claims filed by Northwind or by any cargo interest relating to the iron ore oxidation, including all P&I Club correspondence, notices of claim, claim submissions, claim assessments, and any settlement discussions or offers; and
(g) All documents relating to the cause of the iron ore oxidation, including any investigation reports, expert analyses, or internal assessments of whether the oxidation was caused by moisture ingress, inadequate ventilation, delay, contamination, or any other factor.
REQUEST NO. 9: Third-Party Shipper Claims
Produce all documents in Northwind's possession, custody, or control relating to the three separate third-party shipper claims referenced in Paragraph 47 of Northwind's Verified Complaint, totaling $5,634,400 in claimed damages.
For each such third-party shipper claim, produce:
(a) Documents identifying the shipper, cargo interest, or claimant, including the full legal name, address, and relationship to Northwind;
(b) Documents setting forth the nature and legal basis of the claim, including the specific contractual provisions, bills of lading, or other instruments upon which the claim is founded;
(c) Documents identifying the cargo involved, including commodity type, quantity, loading port, discharge port, and voyage;
(d) Documents describing the alleged loss, damage, or delay, including the factual circumstances giving rise to each claim;
(e) All bills of lading, contracts of carriage, booking notes, and other transport documents relating to each claim;
(f) All demand letters, notices of claim, formal and informal correspondence, and any pleadings in any related proceeding;
(g) All documents showing the amount claimed and the methodology for calculating that amount, including invoices, market price data, valuation reports, and damage assessments;
(h) All documents relating to any settlements, compromises, judgments, arbitral awards, or other resolutions of any such claim, and the terms thereof;
(i) All documents relating to any insurance recoveries by Northwind or by the relevant cargo interest or shipper in connection with any such claim; and
(j) All documents relating to any indemnity, contribution, or hold-harmless obligations between Northwind and any third-party shipper, cargo interest, or their insurers, whether arising under contract, subrogation, assignment, or otherwise.
Produce all documents showing whether any third-party shipper claim has been fully resolved, remains pending, has been compromised, or has been assigned to or by any party, and if so, the terms and consideration of any such resolution, compromise, or assignment.
REQUEST NO. 10: Off-Hire Records and Calculations
Produce all documents in Northwind's possession, custody, or control relating to the sixty-eight (68) total off-hire days claimed by Northwind (22 days for Incident 1, plus 21 days for Incident 2, plus 25 days for Incident 3), including but not limited to:
(a) All off-hire notices issued by Northwind to the Owners, and all responses thereto, for each of the three Incidents;
(b) All off-hire calculations, worksheets, and supporting documents for each off-hire period, including the start date, end date, and duration of each claimed off-hire period, and the daily hire rate applied;
(c) All hire payment records for the entire Charter Period (January 15, 2021 through January 14, 2024), including all invoices, hire statements, payment confirmations, wire transfer records, bank statements, and any other records reflecting hire payments made, deductions taken, and the amounts and dates thereof; and
(d) All documents relating to the hire withheld by Northwind for the period October 1, 2022 through December 31, 2022 (approximately 110 days, totaling approximately $1,620,000), including Northwind's internal analyses, memoranda, and justifications for withholding hire, any legal advice obtained (to the extent not privileged), and all communications between Northwind and TSL or Aegean Fortuna Shipholding Ltd. regarding the decision to withhold hire and any protests, demands, or objections raised by the Owners.
REQUEST NO. 11: Liquidated Damages Calculations (Clause 28)
Produce all documents in Northwind's possession, custody, or control relating to Northwind's calculation of liquidated damages under Clause 28 of the Charter-Party, including but not limited to:
(a) All workpapers, spreadsheets, financial models, internal analyses, and memoranda supporting or reflecting Northwind's liquidated damages calculations;
(b) All documents supporting Northwind's position that three separate breach periods trigger three separate liquidated damages caps under Clause 28, as opposed to Defendants' position that Clause 28 imposes a single aggregate cap of $4,500,000 for the entire Charter Period;
(c) All documents reflecting the formula calculations applied by Northwind, including the per-incident formula of 68 off-hire days × $14,750/day × 150% = $1,504,500 (or any variant thereof), and the claimed aggregate cap of $4,500,000;
(d) All documents relating to the negotiation, drafting, or interpretation of Clause 28, including any pre-contractual communications, broker correspondence, term sheets, mark-ups, redlines, or internal notes reflecting the intended meaning of the phrase "single continuous period of breach" and any alternative formulations considered by the parties during negotiation; and
(e) Any legal analyses or memoranda (to the extent not subject to a valid claim of attorney-client privilege or work product protection) regarding the interpretation and enforceability of Clause 28.
REQUEST NO. 12: Damages Calculations — All Categories
Produce all documents supporting each category of Northwind's claimed damages, which total approximately $18,300,000 as alleged in the Verified Complaint, including all documents relating to the calculation, composition, and substantiation of each of the following categories:
(a) Off-hire deductions: $1,003,000;
(b) Liquidated damages: $4,500,000;
(c) Substitute charter costs: $471,600;
(d) Cargo damage (iron ore oxidation): $3,420,000;
(e) Demurrage and dead freight: $1,230,000;
(f) Additional port costs and bunker surcharges: $875,400;
(g) Lost sub-charter profit: $166,600;
(h) Third-party shipper claims: $5,634,400; and
(i) Legal fees and expert costs claimed as damages: $999,000.
Produce all internal spreadsheets, workpapers, financial analyses, accounting entries, journal entries, general ledger entries, and reports prepared by or on behalf of Northwind — including those prepared by or under the supervision of Sandra Chow (Chief Financial Officer) or any other financial, accounting, or operations personnel — relating to the computation, estimation, or projection of damages in any category listed above.
Produce all documents evidencing actual out-of-pocket payments made by Northwind in connection with any claimed damages, including wire transfer records, checks, payment confirmations, receipts, invoices marked as paid, and bank statements reflecting such payments.
REQUEST NO. 13: Lost Sub-Charter Profit Calculation
Produce all documents in Northwind's possession, custody, or control relating to Northwind's claimed lost sub-charter profit of $166,600, including but not limited to:
(a) All documents reflecting the calculation methodology for the lost sub-charter profit claim, which Northwind claims to be ($17,200 − $14,750) × 68 days = $2,450 × 68 = $166,600, or any alternative methodology applied;
(b) All documents reflecting the sub-charter rate of $17,200 per day with Eastbourne Bulk Carriers Ltd., including the relevant provisions of the Eastbourne Sub-Charter and any amendments thereto;
(c) All documents evidencing the actual revenue earned by Northwind under the Eastbourne Sub-Charter during the Charter Period, and the actual revenue lost during each of the three off-hire periods; and
(d) All communications between Northwind and Eastbourne Bulk Carriers Ltd. regarding the off-hire events, including any notifications of off-hire from Northwind to Eastbourne, any credits, rebates, or adjustments to the sub-charter hire granted by Northwind to Eastbourne during or as a result of the off-hire periods, and any claims asserted by Eastbourne against Northwind in connection with the off-hire events.
REQUEST NO. 14: Mitigation of Damages
Produce all documents in Northwind's possession, custody, or control relating to any efforts undertaken by Northwind to mitigate its alleged damages arising from the three Incidents and the Alleged Deviation, including but not limited to:
(a) All documents relating to efforts to find substitute vessels, including inquiries to brokers, fixture negotiations, and communications with potential tonnage providers;
(b) All documents relating to efforts to reduce, remediate, or prevent cargo losses, including the iron ore oxidation at Richards Bay;
(c) All documents relating to efforts to expedite repairs at Colombo, Richards Bay, and Keppel Verolme Shipyard, Rotterdam;
(d) All documents relating to any other steps taken by Northwind to minimize the financial impact of the alleged breaches, including rescheduling of voyages, renegotiation of laycans, and sourcing of alternative cargo;
(e) All documents relating to Northwind's internal decision-making process regarding mitigation, including internal communications among officers, managers, and operations personnel, management directives, board or committee minutes, and any reports or analyses assessing available mitigation options; and
(f) All documents showing whether Northwind could have taken steps to reduce or avoid any category of alleged damages but chose not to do so, including any analyses of the costs and benefits of mitigation alternatives.
REQUEST NO. 15: Northwind's Internal Communications Regarding the M/V *Aegean Fortuna*
Produce all internal communications (including emails, memoranda, reports, presentations, instant messages via any platform, and any other form of internal communication) among Northwind's officers, directors, employees, and agents concerning the M/V Aegean Fortuna, the Charter-Party, the three Incidents, the Alleged Deviation, and the claims and defenses asserted in this action.
Without limiting the generality of the foregoing, this request specifically encompasses:
(a) All communications involving Viktor Lindgren (President and Managing Director), Sandra Chow (Chief Financial Officer), and Richard Hartnett (General Counsel), and any operations, chartering, technical, or commercial personnel of Northwind, regarding the Vessel's performance, maintenance, operational condition, and the off-hire events;
(b) All internal reports, status updates, management summaries, and presentations to Northwind's board of directors, executive committee, or management regarding the Vessel and the dispute with TSL; and
(c) All internal communications concerning the decision to commence this action, the quantification of damages, the strategy for withholding hire, and the decision to reject any settlement proposals (to the extent not subject to a valid claim of attorney-client privilege).
REQUEST NO. 16: Communications with Third Parties Regarding the M/V *Aegean Fortuna*
Produce all communications between Northwind (including its officers, employees, and agents) and any third party regarding the M/V Aegean Fortuna, the three Incidents, the Alleged Deviation, and any related claims, including but not limited to communications with:
(a) Brokers, chartering agents, and commercial intermediaries;
(b) Port agents at Colombo, Richards Bay, Rotterdam, Qingdao, Maputo, and any other relevant port;
(c) Surveyors, inspectors, and marine consultants;
(d) Cargo interests, shippers, receivers, and consignees;
(e) Sub-charterers, including Eastbourne Bulk Carriers Ltd.;
(f) Insurers, P&I Clubs, and insurance brokers;
(g) The Global Maritime Classification Bureau ("GMCB"), regarding the Vessel's classification status, class conditions, class recommendations, and any suspension or withdrawal of class arising from or related to the three Incidents; and
(h) Any other third party with whom Northwind communicated regarding the Vessel, the Charter-Party, or the disputes giving rise to this action.
REQUEST NO. 17: Insurance Documents
Produce all documents in Northwind's possession, custody, or control relating to any insurance coverage maintained by Northwind that may respond to, cover, indemnify, or otherwise provide recovery for any of the losses or damages claimed in this action, including but not limited to:
(a) All insurance policies, certificates of insurance, cover notes, and binders for cargo insurance, charterer's liability insurance, loss-of-hire insurance, defense and indemnity insurance, and any other insurance coverage potentially responsive to the claims in this action, for the period January 1, 2020 through the present;
(b) All insurance claims, claim notifications, and claim submissions filed by Northwind with any insurer relating to the three Incidents, the Alleged Deviation, or any category of damages claimed in this action;
(c) All insurance payments, settlements, indemnification payments, or other recoveries received by Northwind from any insurer or P&I Club in connection with any claimed loss, damage, or expense in this action, including the amount, date, and basis of each payment or recovery;
(d) All correspondence with insurers, P&I Clubs, and insurance brokers, including claim notifications, coverage analyses, reservation-of-rights letters, denial letters, and any coverage disputes; and
(e) All documents relating to any subrogation rights asserted by any insurer of Northwind with respect to any of the claims in this action.
REQUEST NO. 18: Inter-Club Agreement Documents
Produce all documents in Northwind's possession, custody, or control relating to the application or inapplicability of the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement" or "ICA") as between Owner and Charterer with respect to cargo damage claims, including but not limited to the $3,420,000 iron ore oxidation claim, specifically:
(a) All documents reflecting any analysis, determination, or agreement regarding the apportionment of cargo claims between the Owner and the Charterer under the ICA;