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 THALASSA SHIPPING & LOGISTICS SA AND AEGEAN FORTUNA SHIPHOLDING LTD.'S RESPONSES AND OBJECTIONS TO PLAINTIFF NORTHWIND MARITIME CORPORATION'S FIRST SET OF INTERROGATORIES
Dated: February 28, 2024
PRELIMINARY STATEMENT
Defendants Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") (collectively, "Defendants"), by and through their undersigned attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006, hereby respond and object to Plaintiff Northwind Maritime Corporation's ("Northwind" or "Plaintiff") First Set of Interrogatories ("Interrogatories"), which were served on or about January 22, 2024.
These Responses and Objections are made pursuant to Article 31 of the New York Civil Practice Law and Rules ("CPLR"), specifically CPLR §§ 3130–3133, and are submitted in accordance with the deadlines established by the Preliminary Conference Order entered by this Court on December 1, 2023, as subsequently modified by stipulation of the parties dated January 18, 2024.
The responding parties are identified as follows: Thalassa Shipping & Logistics SA, a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece; and its wholly owned subsidiary, Aegean Fortuna Shipholding Ltd., a limited liability company duly incorporated under the laws of the Republic of Liberia, with its registered office at 80 Broad Street, Monrovia, Liberia, which is the registered owner of the M/V Aegean Fortuna (IMO No. 9847231), the vessel at the center of this dispute.
These Responses and Objections have been prepared under the direct supervision of Markos Theodorakis, General Counsel of TSL, based in Piraeus, Greece, and in coordination with defense counsel Douglas Carmichael, Esq. and Carlos Espinoza, Esq. of Calderwood & Harkness LLP. In preparing these responses, Defendants have conducted a reasonable inquiry and have provided information that is known or reasonably available to them as of the date hereof. These responses are not intended to be, nor should they be construed as, an exhaustive recitation of all facts, documents, or legal theories that may be relevant to this matter. Defendants reserve the right to supplement, amend, or correct these responses as additional information becomes available through the ongoing course of discovery in this action, including through the review and production of documents, the taking of depositions, and the receipt of expert reports.
Nothing in these Responses and Objections shall be deemed an admission of the relevance, materiality, or admissibility of any information provided herein. By providing these responses, Defendants do not concede that any of the Interrogatories are proper in form or substance, that the information sought is relevant to any claim or defense in this action, or that any characterization of facts or events contained in the Interrogatories is accurate.
GENERAL OBJECTIONS
Defendants assert the following General Objections, which are incorporated by reference into each individual response set forth below. The assertion of any specific objection to a particular interrogatory shall not be deemed a waiver of any General Objection, and the assertion of any General Objection shall not be deemed a waiver of any specific objection. To the extent Defendants respond to any interrogatory despite an objection, such response is without prejudice to, and without waiver of, the objection.
1. Scope and Relevance. Defendants object to any interrogatory that seeks information not relevant to the claims or defenses asserted in this action, or that is disproportionate to the needs of the case in light of the issues at stake, the amount in controversy, the parties' relative access to relevant information, and the importance of the discovery in resolving the dispute. The charter-party at issue in this litigation (Reference No. NW-TSL-CP-2020-1203) was executed on December 3, 2020, with a charter period commencing January 15, 2021 and terminating January 14, 2024 (a period of thirty-six (36) months). Interrogatories that seek information falling outside the temporal scope of this charter period, or that relate to vessels other than the M/V Aegean Fortuna, or that are otherwise unrelated to the specific claims and counterclaims at issue, are objected to as overbroad and not reasonably calculated to lead to the discovery of admissible evidence.
2. Attorney-Client Privilege and Work Product. Defendants object to any interrogatory to the extent it calls for information or the identification of documents protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or immunity from disclosure recognized under New York law, federal law, or the law of any other applicable jurisdiction. Without limitation, Defendants specifically reserve the right to assert privilege over any and all communications, documents, and materials created by, exchanged with, or prepared at the direction of Calderwood & Harkness LLP (defense counsel of record in this action), Konstantinou & Rizos Law Offices of 17 Filellinon Street, Athens 105 57, Greece (retained as Greek local counsel to advise on matters of Hellenic maritime law and corporate governance), and any retained consulting or testifying experts, including but not limited to Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS, Copenhagen, Denmark (maritime engineering expert), and Dr. Constance Albright of Clearwater Economics LLC, Washington, D.C. (damages and economics expert). Defendants will prepare and serve a privilege log in accordance with the Preliminary Conference Order and CPLR § 3122.
3. Vague and Ambiguous. Defendants object to any interrogatory that uses undefined, vague, or ambiguous terms to the extent that such language renders the interrogatory unintelligible or susceptible to multiple reasonable interpretations. To the extent Defendants respond to any such interrogatory, they do so based on their own reasonable interpretation of the language used, and Defendants reserve the right to supplement or amend their responses if the interrogatory is later clarified or if the Court provides guidance on its scope.
4. Unduly Burdensome. Defendants object to any interrogatory that is unduly burdensome, oppressive, or harassing, or that imposes a burden on the responding party that is disproportionate to the likely benefit of the information sought. Defendants specifically note that TSL is a Société Anonyme headquartered in Piraeus, Greece, and that the collection, review, and translation of responsive information from Greek-language records and from personnel located outside the United States imposes additional burdens that must be weighed in assessing the proportionality of any discovery request.
5. Premature Expert discovery. Defendants object to any interrogatory to the extent it prematurely seeks expert opinions, analyses, conclusions, or the identification of consulting experts in advance of the expert disclosure deadlines established in this action. Pursuant to the Preliminary Conference Order entered December 1, 2023, expert disclosures are not due until June 2024 (affirmative) and July 2024 (rebuttal). Defendants are not obligated to disclose expert opinions or the substance of expert work product at this stage of the litigation, and any response provided herein is without prejudice to the full scope of expert testimony to be disclosed at the appropriate time.
6. Compound Interrogatories. Defendants object to any interrogatory that is compound or that contains discrete subparts, each of which constitutes a separate and independent question. Under CPLR § 3130, each such discrete subpart should be counted as a separate interrogatory. Defendants reserve the right to decline to answer compound interrogatories that, when properly counted, would exceed the permissible number of interrogatories.
7. Pending Motion to Dismiss. Defendants note that their Motion to Dismiss Counts III (Breach of the Implied Covenant of Good Faith and Fair Dealing) and V (Tortious Interference with Prospective Business Relations) of the Amended Complaint was filed on December 15, 2023, and remains sub judice before this Court as of the date of these responses. Defendants reserve the right to supplement, amend, or withdraw any responses herein following the disposition of that motion, which may narrow the claims and defenses at issue in this litigation. Defendants further note that they are not obligated to respond to interrogatories directed to claims that may be dismissed by the Court.
8. Continuing Obligation. These Responses and Objections are based upon information reasonably available to Defendants as of February 28, 2024. Discovery in this action is ongoing, with a discovery period extending from January 2024 through August 2024. Defendants acknowledge their continuing obligation under CPLR § 3101 to supplement their responses as additional facts or information become known. Defendants expressly reserve the right to supplement, amend, or correct these responses as additional information becomes available through continuing investigation, document review, deposition testimony, expert analysis, or otherwise.
9. No Waiver. The assertion of any specific objection to an individual interrogatory does not constitute a waiver of any General Objection set forth herein, and the assertion of any General Objection does not constitute a waiver of any specific objection asserted in response to an individual interrogatory. Defendants' responses to individual interrogatories are made subject to and without waiver of all General Objections, whether or not the General Objections are expressly referenced in a particular response. No response provided herein shall be construed as an admission that the interrogatory to which it responds is proper, relevant, or otherwise appropriate, nor shall it be construed as an admission regarding the truth of any characterization or factual assertion contained in the interrogatory itself.
Subject to and without waiving the foregoing General Objections, Defendants respond to the individual Interrogatories as follows:
INTERROGATORY RESPONSES
INTERROGATORY NO. 1
Interrogatory: Identify all persons with knowledge of the mechanical incidents involving the M/V Aegean Fortuna during the charter period, including the full name, job title, employer, and current contact information for each such person, and describe the nature and extent of each person's knowledge regarding the incidents.
Objections: Defendants object to this interrogatory as overbroad and unduly burdensome to the extent it is not limited to the three specific incidents at issue in this litigation — namely, Incident 1 (turbocharger failure, approximately March 12 through April 2, 2022), Incident 2 (ballast water treatment system malfunction and auxiliary boiler failure, approximately July 8 through July 29, 2022), and Incident 3 (main engine cylinder liner failure, approximately November 15 through December 10, 2022). To the extent this interrogatory is intended to encompass all "mechanical incidents" of any kind during the entire thirty-six-month charter period, including routine wear-and-tear repairs that are a normal part of vessel operations and that are not the subject of any claim in this action, the interrogatory is overbroad and seeks information that is not relevant to the claims or defenses at issue.
Defendants further object to the extent this interrogatory seeks the identification of consulting or testifying experts retained by Defendants or their counsel. As set forth in General Objection No. 5, expert discovery is not yet ripe, and expert disclosures will be made at the times prescribed by the Preliminary Conference Order.
Defendants also object to the extent this interrogatory is compound, as it contains multiple discrete subparts — requesting identification, job title, employer, contact information, and a description of the nature and extent of knowledge — each of which imposes a separate obligation.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants construe this interrogatory as limited to the three incidents specifically at issue in this action and identify the following individuals with knowledge of the mechanical incidents:
(a) Captain Nikolaos Giannopoulos — Master of the M/V Aegean Fortuna throughout the charter period (January 15, 2021 through January 14, 2024). Employed by TSL's ship management division. Capt. Giannopoulos has knowledge of all three mechanical incidents, vessel operations, communications with Northwind and Northwind's charterer's agents during the relevant periods, voyage routing decisions (including the September 2022 Maputo call), weather conditions encountered during voyages, and the general state of the vessel's machinery and equipment during the charter period. Capt. Giannopoulos was the senior officer aboard the vessel at the time of each incident and was responsible for all communications with TSL's shore management in Piraeus regarding the incidents and the repair efforts undertaken in response thereto.
(b) Petros Vlahos — Chief Engineer of the M/V Aegean Fortuna throughout the charter period. Employed by TSL's ship management division. Mr. Vlahos has direct, first-hand knowledge of the turbocharger failure (Incident 1), including his diagnosis of the rotor shaft fracture, the emergency procedures implemented aboard the vessel, and the coordination with repair facilities at Colombo, Sri Lanka. Mr. Vlahos also has knowledge of the ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure (Incident 2), including his analysis of the contaminated ballast water and the repair work conducted at Richards Bay, South Africa. With respect to Incident 3, Mr. Vlahos has knowledge of the main engine cylinder liner failure, including the circumstances leading to the drydocking at Keppel Verolme Shipyard in Rotterdam, Netherlands. Mr. Vlahos supervised all onboard repair efforts, coordinated with the classification society Global Maritime Classification Bureau ("GMCB") regarding survey requirements following each incident, and maintained the vessel's engine room logs during the relevant periods.
(c) Alexandros Stavridis — Chairman and Chief Executive Officer of TSL, headquartered in Piraeus, Greece. Mr. Stavridis has knowledge of TSL's fleet-wide maintenance policies and procedures, corporate decision-making regarding vessel repairs and drydocking schedules, budgetary allocations for maintenance of the M/V Aegean Fortuna, and communications with Northwind's management, specifically including communications with Viktor Lindgren (President and CEO of Northwind) regarding the three incidents and the parties' attempts to resolve their disputes before the commencement of this litigation.
(d) Elena Papadimitriou — Chief Financial Officer of TSL, based in Piraeus, Greece. Ms. Papadimitriou has knowledge of the financial aspects of hire payments under the charter-party, calculations of off-hire periods and deductions, the costs of repairs associated with the three incidents, the hire withheld by Northwind for the period October 1 through December 31, 2022, and TSL's internal financial analyses relating to the disputed amounts.
(e) Markos Theodorakis — General Counsel of TSL, based in Piraeus, Greece. Mr. Theodorakis has knowledge of the contractual interpretation of the charter-party provisions at issue in this action, including Clauses 2, 5, 6, 11, and 28 of the NYPE 2015 form as amended. Mr. Theodorakis was involved in communications with Northwind's general counsel Richard Hartnett regarding the incidents, the off-hire disputes, the Maputo call, and the parties' pre-litigation dispute resolution efforts. To the extent Mr. Theodorakis's knowledge is derived from or involves communications with defense counsel, such knowledge is subject to the attorney-client privilege and the work product doctrine, and Defendants decline to describe it further.
(f) Technical superintendent and fleet management personnel at TSL's Piraeus headquarters who oversaw maintenance schedules, spare parts procurement, and classification survey compliance for the M/V Aegean Fortuna. These individuals include, without limitation, Ioannis Doukas (Technical Superintendent, TSL Fleet Operations), who had direct responsibility for supervising the maintenance and drydocking of the M/V Aegean Fortuna, and Sophia Katsaros (Fleet Manager, TSL Fleet Operations), who coordinated spare parts procurement and logistics related to the repair of the vessel following each incident. The M/V Aegean Fortuna is a Supramax dry bulk carrier, 58,200 deadweight tons ("DWT"), built in 2016 by Dalian Prosperity Shipyard Co., Ltd., People's Republic of China, and registered under the flag of the Republic of Liberia.
Defendants reserve the right to supplement this response as additional persons with knowledge are identified through the ongoing course of discovery.
INTERROGATORY NO. 2
Interrogatory: Describe in detail the circumstances of the turbocharger failure that occurred on or about March 12, 2022 (Incident 1), including the cause of the failure, all repair actions taken, the duration of any off-hire period, the cost of repairs, and all steps taken to restore the vessel to service.
Objections: Defendants object to the characterization of this incident as resulting from a failure by TSL to maintain the vessel in a seaworthy condition, as alleged in paragraphs 42 through 58 of the Amended Complaint. Defendants' position is that the turbocharger failure constituted a latent defect that was not detectable through the exercise of due diligence in maintenance, and Defendants do not concede that the failure gives rise to any liability on the part of TSL or Aegean Fortuna Shipholding. Defendants further object to the extent this interrogatory is compound, as it contains multiple discrete subparts requesting information regarding the cause, repair actions, duration, cost, and steps taken to restore service.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants respond as follows:
On or about March 12, 2022, while the M/V Aegean Fortuna was transiting the Indian Ocean en route from the port of Paradip, India to the port of Mombasa, Kenya, laden with approximately 55,000 metric tons of iron ore fines, the vessel's main engine turbocharger experienced a catastrophic failure. The failure occurred during normal vessel operations while the vessel was maintaining its service speed of approximately 14.0 knots.
Chief Engineer Petros Vlahos promptly diagnosed the failure as a fracture of the turbocharger rotor shaft. Upon inspection, Mr. Vlahos determined that the fracture originated from an internal material defect in the shaft, which was not visible or detectable from external inspection. As a result of the turbocharger failure, the vessel was unable to maintain full service speed, and the main engine output was significantly reduced. Captain Nikolaos Giannopoulos, in consultation with TSL's shore management in Piraeus and with the safety of the vessel and crew as the paramount consideration, determined that the vessel should proceed to Colombo, Sri Lanka, the nearest suitable port with adequate repair facilities, for emergency repairs.
Upon arrival at Colombo, repairs were coordinated between TSL's technical superintendent Ioannis Doukas, the vessel's crew, and a local repair agency. The turbocharger unit was replaced with a new unit sourced on an expedited basis from the original equipment manufacturer. GMCB surveyors attended the vessel at Colombo to inspect the replacement turbocharger and to confirm that the vessel's classification was maintained. The vessel was off-hire for a total period of approximately twenty-two (22) days, from March 12, 2022 through April 2, 2022. The vessel resumed its voyage to Mombasa upon completion of repairs and was returned to full service.
It is TSL's position that the turbocharger failure was attributable to a latent manufacturing defect in the rotor shaft that was not detectable through the exercise of reasonable diligence in routine maintenance inspections, planned maintenance system ("PMS") protocols, or the classification survey regime prescribed by GMCB. TSL exercised due diligence in maintaining the vessel's machinery throughout the charter period, in full compliance with its obligations under Clause 6 (Maintenance and Seaworthiness) of the charter-party. At the time of the turbocharger failure, the M/V Aegean Fortuna was in full compliance with all GMCB classification requirements, including the most recent annual survey, and no outstanding conditions of class or recommendations existed with respect to the vessel's main engine or turbocharger. TSL's maintenance records, spare parts logs, engine room log books, and GMCB survey reports for the period surrounding Incident 1 will be produced as part of Defendants' document production in this action.
Defendants deny that Incident 1 constituted a breach of Clause 6 (Maintenance and Seaworthiness) of the charter-party (NYPE 2015 form, as amended, Reference No. NW-TSL-CP-2020-1203). Defendants further deny that the turbocharger failure gives rise to any entitlement on the part of Northwind to liquidated damages under Clause 28 of the charter-party, as the failure was caused by a latent defect and not by any breach of TSL's maintenance obligations.
The cost of repairs associated with Incident 1 is documented in TSL's financial records and will be produced in document discovery. Defendants decline to provide a specific dollar figure at this time, as the repair cost records are in the process of being compiled and translated from Greek-language financial records maintained by TSL in Piraeus.
INTERROGATORY NO. 3
Interrogatory: Describe in detail the circumstances of the ballast water treatment system malfunction and auxiliary boiler failure that occurred on or about July 8, 2022 (Incident 2), including the cause of the failures, all repair actions taken, the duration of any off-hire period, the cost of repairs, and all steps taken to restore the vessel to service.
Objections: Defendants object to this interrogatory to the extent it presumes, assumes, or characterizes the BWTS malfunction as being attributable to TSL's negligence, deferred maintenance, or any breach of the charter-party on the part of TSL. It is Defendants' position, as set forth more fully below, that the BWTS malfunction was caused by contaminated ballast water loaded at a prior port by or at the direction of Northwind's agents, and that Northwind — not TSL — bears responsibility for the failure. Defendants further object to the extent this interrogatory is compound, containing discrete subparts regarding the cause, repairs, duration, cost, and remedial steps.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants respond as follows:
On or about July 8, 2022, while the M/V Aegean Fortuna was alongside at the port of Richards Bay, South Africa, in the process of loading a cargo of approximately 57,000 metric tons of thermal coal for discharge at a port in Southeast Asia, the vessel's ballast water treatment system malfunctioned. The malfunction was identified by Chief Engineer Petros Vlahos during the routine monitoring of the BWTS during ballast discharge operations incident to cargo loading. The system's UV treatment module and filtration components were found to be fouled and inoperative, rendering the system unable to treat ballast water in compliance with the International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 (the "BWM Convention") and the applicable regulations of the flag state (Republic of Liberia).
Concurrently, and in a temporally related but mechanically distinct event, the vessel's auxiliary boiler experienced a failure of the feedwater pump and associated control systems, rendering the auxiliary boiler inoperative. The auxiliary boiler is used to supply steam for heating fuel oil tanks and for other auxiliary purposes when the vessel is in port and the main engine is not in operation. The combined effect of the BWTS malfunction and the auxiliary boiler failure resulted in a significant operational disruption that prevented the vessel from completing its cargo loading and proceeding to the discharge port.
Repairs to both the BWTS and the auxiliary boiler were undertaken at Richards Bay with the assistance of local service engineers and under the supervision of TSL's technical superintendent Ioannis Doukas, who traveled to Richards Bay from Piraeus to oversee the repair effort. GMCB surveyors attended the vessel to inspect both systems following the completion of repairs. The vessel was off-hire for a period of approximately twenty-one (21) days, from July 8, 2022 through July 29, 2022. The vessel resumed cargo loading operations and departed Richards Bay upon completion of repairs.
It is Defendants' position that the BWTS malfunction was caused by contaminated ballast water that had been loaded at a prior port of call by or at the direction of Northwind's agents. The contamination introduced sediment, biological organisms, and chemical contaminants into the BWTS filtration and UV treatment components, causing the system to foul and fail. Samples of the ballast water were taken following the discovery of the malfunction and were analyzed by an independent laboratory. The analysis of the ballast water samples revealed contaminants consistent with port-side contamination — including elevated levels of suspended solids and hydrocarbon residues — rather than a failure of the BWTS equipment itself. Defendants assert that this constitutes charterer causation or contributory fault under the charter-party, and that Northwind bears responsibility for the BWTS malfunction under the allocation of responsibilities set forth in the NYPE 2015 form, including but not limited to the charterer's responsibilities for the employment and agency of the vessel under Clause 8.
With respect to the auxiliary boiler failure: Defendants acknowledge that the auxiliary boiler required repair and that the feedwater pump failure was a maintenance issue. However, Defendants contend that the auxiliary boiler failure was a concurrent, mechanically separate event that did not materially extend the off-hire period beyond the period that was already necessitated by the BWTS malfunction. In other words, even had the auxiliary boiler not failed, the vessel would have remained off-hire for the same duration (approximately 21 days) pending the repair of the BWTS. Therefore, the auxiliary boiler failure did not cause any incremental off-hire or additional damages beyond those already attributable to the BWTS malfunction for which, Defendants maintain, Northwind is responsible.
Defendants deny that Incident 2 constituted a breach of Clause 6 of the charter-party attributable to TSL. To the extent any aspect of Incident 2 is attributable to TSL (i.e., the auxiliary boiler failure), Defendants contend that the damages arising therefrom are nil, as the off-hire period was coextensive with the period required for the BWTS repair.
INTERROGATORY NO. 4
Interrogatory: Describe in detail the circumstances of the main engine cylinder liner failure that occurred on or about November 15, 2022 (Incident 3), including the cause of the failure, all repair actions taken, the duration of any off-hire period, the cost of repairs, and all steps taken to restore the vessel to service.
Objections: Defendants interpose no specific objections to this interrogatory beyond the General Objections set forth above, which are incorporated herein by reference.
Response: Subject to the General Objections, Defendants respond as follows:
On or about November 15, 2022, the M/V Aegean Fortuna experienced a failure of the main engine cylinder liner while the vessel was in the North Sea, en route from the port of Immingham, United Kingdom to the port of Antwerp, Belgium, in ballast. The failure was identified by Chief Engineer Petros Vlahos when abnormal engine operating parameters — including elevated exhaust gas temperatures and reduced cylinder compression — were detected during routine watch monitoring. Upon inspection, Mr. Vlahos determined that one of the main engine cylinder liners had developed cracking and scoring that rendered continued operation of the affected cylinder unsafe and inadvisable.
The nature and extent of the cylinder liner failure required drydocking for proper repair. After consultation with TSL's technical department in Piraeus and with GMCB, the vessel was directed to proceed to Keppel Verolme Shipyard in Rotterdam, Netherlands, the nearest available drydock facility capable of undertaking the necessary repairs. The vessel arrived at the shipyard on or about November 18, 2022, and the drydocking and repair works commenced promptly thereafter. The cylinder liner was replaced, and the main engine was inspected, tested, and certified by GMCB surveyors before the vessel was returned to service. The vessel departed Keppel Verolme Shipyard on or about December 10, 2022, and resumed its trading operations under the charter-party.
The vessel was off-hire for a total period of approximately twenty-five (25) days, from November 15, 2022 through December 10, 2022.
TSL concedes that Incident 3 was a maintenance failure attributable to TSL in its capacity as owner and operator of the M/V Aegean Fortuna. The cylinder liner failure was a maintenance-related event that falls within the scope of TSL's obligations under Clause 6 (Maintenance and Seaworthiness) of the charter-party. TSL does not contend that Incident 3 was caused by Northwind or was attributable to a latent defect.
However, TSL disputes the quantum of damages claimed by Northwind as arising from Incident 3. Specifically, Northwind has asserted in its Amended Complaint that the damages arising from Incident 3 include not only off-hire deductions but also liquidated damages under Clause 28 of the charter-party, substitute charter costs allegedly incurred by Northwind to secure alternative tonnage during the off-hire period, and purported consequential damages including lost cargo commitments, demurrage liabilities to third-party cargo interests, and reputational harm. TSL's damages expert, Dr. Constance Albright of Clearwater Economics LLC, has been retained and will provide a comprehensive analysis of the appropriate measure of damages in her expert report, to be served in accordance with the expert disclosure schedule.
TSL contends that the damages recoverable by Northwind for Incident 3 are limited to off-hire deductions for the twenty-five (25) days during which the vessel was off-hire, calculated at the contractual daily hire rate of $14,750.00 per day (i.e., 25 days × $14,750.00/day = $368,750.00), and that Northwind's additional claimed categories of damages — including liquidated damages under Clause 28, substitute charter costs, and consequential damages — are either (a) contractually barred by the limitation of liability provisions in the charter-party, (b) improperly calculated and inflated, (c) duplicative of other damages claimed, or (d) subject to Northwind's duty to mitigate its losses, which Northwind failed to satisfy. TSL will set forth its position on the damages issues in detail in its opposition to any damages-related motion practice and in its expert disclosures.
INTERROGATORY NO. 5
Interrogatory: Describe the maintenance and repair history of the M/V Aegean Fortuna for the period January 15, 2021 through January 14, 2024, including all scheduled and unscheduled maintenance, classification surveys, drydocking events, and any deficiency notations, conditions of class, or recommendations issued by the classification society.
Objections: Defendants object to this interrogatory as overbroad and unduly burdensome. The M/V Aegean Fortuna operated for approximately thirty-six (36) months (1,096 days) under the charter-party, during which time the vessel completed numerous voyages, underwent routine and planned maintenance on a continuous basis in accordance with TSL's Planned Maintenance System ("PMS"), and was subject to periodic surveys by GMCB. A complete narrative recitation of every maintenance activity, equipment inspection, planned service intervention, spare parts replacement, and consumables purchase over that thirty-six-month period would be extraordinarily voluminous and would impose a burden on Defendants that is grossly disproportionate to the likely benefit of the information sought for purposes of this litigation.
Defendants further object to this interrogatory to the extent it seeks information that is more efficiently and accurately provided through the production of documents. Defendants direct Northwind to the maintenance records, PMS logs, engine room log books, GMCB classification survey reports, drydocking records, and related documentation that will be produced, or have already been produced, as part of Defendants' document production in this action (designated as TSL production Bates-stamped TSL-00001 through TSL-[ongoing]). The production of these documents will provide Northwind with far more detailed and reliable information regarding the vessel's maintenance and repair history than could be conveyed in a narrative interrogatory response.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants respond as follows:
The M/V Aegean Fortuna (IMO No. 9847231) is a Supramax dry bulk carrier with a deadweight tonnage of 58,200 DWT, built in 2016 by Dalian Prosperity Shipyard Co., Ltd., People's Republic of China. The vessel is flagged in the Republic of Liberia and is classed with Global Maritime Classification Bureau ("GMCB"), one of the world's leading classification societies.
Throughout the charter period (January 15, 2021 through January 14, 2024), TSL maintained the M/V Aegean Fortuna in accordance with all applicable GMCB classification requirements, including the performance of annual surveys, intermediate surveys, and special surveys at the intervals and in the manner prescribed by GMCB's rules and regulations. The vessel's classification was maintained in good standing at all times throughout the charter period. No class suspension, withdrawal, or change of classification society occurred during the charter period.
Routine planned maintenance was conducted in accordance with TSL's fleet-wide Planned Maintenance System ("PMS"), which governs the scheduled inspection, servicing, and replacement of all major and minor equipment aboard TSL's vessels. The PMS is compliant with GMCB requirements and with the International Safety Management ("ISM") Code, as required under the International Convention for the Safety of Life at Sea ("SOLAS"). The PMS prescribes specific maintenance intervals for all critical equipment, including the main engine and its components, auxiliary engines, boilers, cargo handling equipment, navigational systems, and safety equipment. All planned maintenance activities were recorded in the vessel's PMS software and in the engine room log books maintained aboard the vessel.
Unscheduled maintenance events during the charter period included the three incidents at issue in this litigation (Incidents 1, 2, and 3, as described in Defendants' responses to Interrogatories Nos. 2, 3, and 4 above), as well as routine and minor equipment repairs that are a normal part of vessel operations and that did not result in any off-hire period or disruption to the vessel's trading. Such routine repairs are customary in the operation of oceangoing commercial vessels and do not give rise to any claim or defense in this action.
With respect to classification society deficiency notations, conditions of class, and recommendations: Defendants are in the process of compiling and reviewing all GMCB survey reports and correspondence for the charter period and will produce such documents as part of their document production. Based on the information currently available to Defendants, no material deficiency notations, conditions of class, or recommendations were outstanding with respect to the vessel's main engine, turbocharger, BWTS, or auxiliary boiler at the times of the three incidents, and the vessel's classification was not adversely affected by any of the three incidents.
Defendants will produce their maintenance logs, PMS records, GMCB survey reports, engine room log books, drydocking records, spare parts procurement records, and related documents as part of their document production in this action, subject to objections as to relevance, proportionality, and privilege.
INTERROGATORY NO. 6
Interrogatory: Describe in detail the circumstances of the alleged deviation of the M/V Aegean Fortuna to Maputo, Mozambique in September 2022, including the reason for the deviation, whether TSL or any affiliate loaded cargo at Maputo for TSL's own account or for the account of any third party, the duration of any delay caused by the Maputo call, and all communications between TSL's shore management and the Master of the vessel regarding the Maputo call.
Objections: Defendants object to the characterization of the Maputo call as a "deviation" or "unauthorized route deviation," as alleged in paragraphs 89 through 104 of the Amended Complaint. The use of the term "deviation" is a legal conclusion that presupposes a breach of the charter-party, and Defendants do not accept that characterization. It is Defendants' position, as set forth more fully below, that the Maputo call was within the Master's reasonable discretion and was necessitated by legitimate weather and routing considerations. The use of the term "alleged deviation" in the interrogatory is noted but does not cure the underlying assumption.
Defendants further object to this interrogatory to the extent it seeks the production or description of communications between TSL's shore management and the Master of the vessel that are protected by the attorney-client privilege or the work product doctrine. Following the commencement of the underlying dispute between the parties, certain communications between TSL's management and the vessel's officers included or referenced legal advice provided by TSL's counsel, and such communications are privileged.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants respond as follows:
In September 2022, the M/V Aegean Fortuna was on a voyage from Durban, South Africa to Qingdao, People's Republic of China, laden with a cargo of manganese ore. During the northbound passage along the east coast of Africa, the vessel encountered adverse weather conditions, including heavy seas and strong northerly currents in the Mozambique Channel, which affected the vessel's fuel consumption and speed over ground.
In the exercise of his professional judgment as Master, Captain Nikolaos Giannopoulos determined that the vessel should call at the port of Maputo, Mozambique. The call was made for purposes of bunkering (refueling) and to await an improvement in weather conditions before continuing the voyage through the Mozambique Channel and into the Indian Ocean. Such routing decisions are within the Master's ordinary discretion under the charter-party and under applicable maritime law, and the Master's authority to determine the routing and navigation of the vessel is well-established under the NYPE 2015 form and customary maritime practice.
Defendants deny that TSL directed the M/V Aegean Fortuna to deviate to Maputo for the purpose of loading cargo for TSL's own account or for the account of any third party, as alleged by Northwind in the Amended Complaint. No cargo was loaded at Maputo for TSL's account or for the account of any TSL affiliate. The vessel's call at Maputo was limited in scope and purpose to bunkering and weather routing considerations.
Defendants further deny that the Maputo call constituted a breach of Clause 5 (Trade Limits) of the charter-party. The charter-party's trade limits under Clause 5 permit worldwide trading, subject only to the following exclusions: (a) ports or territories subject to sanctions imposed by the United States Office of Foreign Assets Control ("OFAC"); (b) areas listed on the London Joint War Committee Hull War Risks Listed Areas; and (c) ice-bound waters north of 68° North latitude. Maputo, Mozambique does not fall within any of these excluded areas, and the vessel's call at Maputo was fully within the permitted trading range under the charter-party.
Northwind alleges that the Maputo call added approximately four (4) days to the voyage and caused Northwind to miss a cargo laycan window at Qingdao for the period October 1 through 5, 2022. Defendants dispute both the alleged duration of the delay and the assertion that any delay was attributable to a breach of the charter-party. Defendants contend that the routing decision was reasonable and that any incremental voyage time attributable to the Maputo call was justified by the weather and routing conditions encountered.
Communications between TSL's shore management in Piraeus and the Master of the M/V Aegean Fortuna regarding routing decisions during the September 2022 voyage are in the process of being collected, reviewed, and assessed for privilege. Non-privileged communications responsive to Northwind's document requests will be produced in Defendants' document production, subject to Defendants' objections.
INTERROGATORY NO. 7
Interrogatory: State the basis for TSL's contention, as set forth in its Answer and Counterclaim, that the liquidated damages cap in Clause 28 of the charter-party applies as a single $4,500,000 cap for the entire charter period, rather than a separate cap for each "single continuous period of breach," and identify all facts, documents, and persons with knowledge supporting that contention.
Objections: Defendants object to this interrogatory to the extent it seeks legal conclusions, the mental impressions, conclusions, opinions, or legal theories of Defendants' counsel, or otherwise calls for information that is the proper subject of legal briefing rather than factual discovery. Defendants' legal position on the interpretation of Clause 28 of the charter-party will be set forth in full in Defendants' motion practice and legal briefing, and Defendants are not obligated to preview their legal arguments in the context of an interrogatory response. Defendants further object to the extent this interrogatory is compound, as it requests both the "basis" for a legal contention and the identification of supporting facts, documents, and persons.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants respond as follows:
Clause 28 of the charter-party (NYPE 2015 form, as amended, Reference No. NW-TSL-CP-2020-1203), which was a bespoke rider clause negotiated between the parties and incorporated into the charter-party by addendum dated December 3, 2020, provides, in relevant part:
"In the event of Owner's material breach of its obligations with respect to the maintenance and seaworthiness of the Vessel as set forth in Clauses 2 and 6 hereof, Charterer shall be entitled to liquidated damages in an amount equal to one hundred fifty percent (150%) of the aggregate number of Off-Hire Days (as defined in Clause 11) resulting from such breach, multiplied by the Daily Hire Rate, subject to a maximum aggregate cap of Four Million Five Hundred Thousand United States Dollars (US$4,500,000) for any single continuous period of breach."
It is Defendants' position that the phrase "for any single continuous period of breach" limits the total recoverable liquidated damages under Clause 28 to a single aggregate cap of $4,500,000.00 for the entire charter period. The three incidents at issue, while temporally separated, arise from the same overarching set of maintenance obligations imposed upon TSL under Clauses 2 and 6 of the charter-party. The charter-party does not define the phrase "single continuous period of breach" in a manner that would permit the disaggregation of discrete incidents into separate "periods of breach," each carrying its own independent $4,500,000 cap. Rather, the clause contemplates a single, overall cap on the owner's exposure to liquidated damages under the charter-party.
Moreover, the mathematical application of the liquidated damages formula under Clause 28, as properly calculated, yields a figure well below the $4,500,000 cap: the total off-hire days across all three incidents is approximately sixty-eight (68) days (22 + 21 + 25 = 68), multiplied by the daily hire rate of $14,750.00 per day, multiplied by 150%, yielding a total of $1,504,500.00 (68 × $14,750 × 1.50 = $1,504,500). This figure is significantly less than the $4,500,000 cap, rendering Northwind's attempt to invoke multiple caps inapposite and academic.
Northwind's contention, as set forth in its Amended Complaint and its discovery requests, that three separate "breach periods" entitle it to three separate $4,500,000 caps — for a maximum aggregate liquidated damages claim of $13,500,000.00 — is unsupported by the plain language of Clause 28, is contrary to well-established principles of contract interpretation under New York law, and would produce an absurd and commercially unreasonable result. Notably, Northwind itself appears to have recognized the infirmity of its position, as the Amended Complaint alleges total liquidated damages under Clause 28 of $4,500,000 (a single cap), not $13,500,000. To the extent Northwind now seeks to expand its damages claim beyond the $4,500,000 figure alleged in the Amended Complaint, such expansion is improper and should be rejected.
Defendants reserve the right to move for partial summary judgment on the interpretation of Clause 28 at the appropriate time, and Defendants' full legal analysis of this issue will be set forth in their motion papers and supporting memoranda of law.
INTERROGATORY NO. 8
Interrogatory: Identify all insurance policies under which TSL, Aegean Fortuna Shipholding Ltd., or any affiliate may seek coverage, contribution, indemnification, or reimbursement for any liability, judgment, settlement, or expense arising from or relating to the claims asserted in this action, including the name and address of each carrier, the policy number, the type and scope of coverage, the applicable coverage limits, deductibles, and retentions, and the identity of the claims handler for each policy.
Objections: Defendants object to this interrogatory to the extent it seeks confidential commercial information regarding TSL's insurance program and coverage arrangements beyond what is relevant to the claims and defenses asserted in this action. Information regarding the specific coverage limits, deductibles, and retentions of Defendants' insurance policies is not relevant to any issue in this case and could be used to Defendants' disadvantage in settlement negotiations or otherwise. Defendants further object to the extent this interrogatory is overbroad in requesting information about policies held by undefined "affiliates" of TSL.
Defendants additionally object to the extent this interrogatory seeks information protected by the common interest privilege or joint defense privilege, to the extent that communications between Defendants and their insurers involve or reference legal advice, legal strategy, or the assessment of legal liability.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants identify the following insurance policies that are potentially implicated by the claims asserted in this action:
(a) Protection & Indemnity Insurance: Oceanus Mutual Protection & Indemnity Club (the "Club"), Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda. Policy No. OCE-P&I-2020-TSL-0047. Claims Handler: David Okafor, Claims Executive, Oceanus Mutual P&I Club. The P&I coverage provides indemnification for third-party liabilities arising from the ownership and operation of the M/V Aegean Fortuna, including liabilities to charterers for breach of the charter-party, subject to the terms, conditions, and exclusions of the Club's Rules.
(b) Hull & Machinery Insurance: Fortis Marine Underwriters Ltd., 50 Fenchurch Street, London EC3M 3JY, United Kingdom. Policy No. FMU-HM-2020-4892. Underwriter: Catherine Allsworth. The H&M policy provides coverage for physical loss or damage to the vessel's hull, machinery, and equipment, including the costs of repairs arising from machinery breakdowns. Subrogation rights in favor of the hull underwriters may be implicated with respect to repair costs incurred by TSL in connection with the three incidents.
(c) Directors & Officers Liability Insurance: Castellan Professional Liability Insurers Ltd., 25 St. Stephen's Green, Dublin 2, D02 XY47, Ireland. This D&O policy provides coverage for the directors and officers of TSL and its subsidiaries, including Aegean Fortuna Shipholding, for claims alleging wrongful acts in their capacities as directors or officers.
Defendants decline to disclose specific coverage limits, deductibles, retentions, or other financial terms of these policies, as such information is not relevant to any claim or defense in this action and constitutes confidential commercial information the disclosure of which could prejudice Defendants' interests. To the extent Northwind contends that specific coverage limits are discoverable, Defendants reserve the right to seek a protective order.
INTERROGATORY NO. 9
Interrogatory: Describe TSL's basis for its counterclaim for $1,620,000 in allegedly unpaid hire, including the identification of each specific invoice, the applicable payment dates, the amounts due, the amounts paid (if any), and the amounts withheld by Northwind, and state whether TSL made any demand for payment of the withheld hire prior to asserting the counterclaim.
Objections: Defendants interpose no specific objections to this interrogatory beyond the General Objections set forth above, which are incorporated herein by reference.
Response: Subject to the General Objections, Defendants respond as follows:
TSL asserts a counterclaim against Northwind in the amount of $1,620,000.00, representing unpaid hire for the period October 1, 2022 through December 31, 2022 — a period of approximately ninety-two (92) days. The daily hire rate under the charter-party is $14,750.00 per day, payable in advance in semi-monthly installments pursuant to Clause 11 of the NYPE 2015 form, as amended. TSL notes that the figure of $1,620,000 represents the approximate aggregate amount of hire withheld by Northwind during the referenced period, which comprises multiple semi-monthly installments. The precise calculation is set forth in the invoices and payment records that will be produced in Defendants' document production.
During the period October 1 through December 31, 2022, Northwind withheld hire payments in their entirety. Northwind asserted, in correspondence from its general counsel Richard Hartnett to Markos Theodorakis, that the withholding of hire was justified by (a) off-hire deductions to which Northwind claimed entitlement under Clause 11 (Off-Hire) of the charter-party arising from the three incidents, and (b) equitable setoff rights asserted by Northwind against the hire payments for alleged damages arising from the incidents and the Maputo call.
TSL contends that Northwind's unilateral withholding of hire was improper, unauthorized, and constituted a breach of the charter-party for the following reasons:
(a) The off-hire deductions claimed by Northwind exceeded the periods and amounts to which Northwind was entitled under Clause 11 of the charter-party. Specifically, Northwind improperly claimed off-hire deductions for periods during which the vessel was, in fact, operational and available for Northwind's use, and Northwind's off-hire calculations improperly included periods for which TSL disputes liability (i.e., Incidents 1 and 2).
(b) Northwind's asserted equitable setoff rights are disputed and have not been adjudicated by any court or arbitral tribunal. Under the NYPE 2015 form, charterers are obligated to pay hire punctually and in advance, in full, without set-off, deduction, or counterclaim, except to the extent expressly authorized by the off-hire clause. Northwind's unilateral decision to withhold hire pending the resolution of its disputed claims was not authorized by the charter-party and was not justified by any recognized equitable principle.
(c) Even if Northwind were entitled to off-hire deductions for the full sixty-eight (68) days of off-hire across the three incidents (at $14,750/day = $1,003,000), the amount withheld by Northwind ($1,620,000) substantially exceeds the aggregate off-hire deductions to which Northwind could claim entitlement under any reasonable interpretation of the charter-party.
TSL made written demand for payment of the withheld hire prior to the commencement of this action. Specifically, Markos Theodorakis, on behalf of TSL, sent a formal written demand to Richard Hartnett, General Counsel of Northwind, by letter dated February 10, 2023, demanding payment of the outstanding hire within thirty (30) days. A follow-up demand was sent on April 5, 2023. Northwind failed to remit payment in response to either demand. Copies of the relevant invoices, payment records, and demand correspondence will be produced as part of Defendants' document production in this action.
TSL's counterclaim was filed together with its Answer on November 17, 2023.
INTERROGATORY NO. 10
Interrogatory: Identify any sub-charter, voyage charter, contract of affreightment, or other commercial arrangement by which TSL, Aegean Fortuna Shipholding Ltd., or any affiliate earned revenue from the M/V Aegean Fortuna during any off-hire period, or through the alleged loading of cargo at Maputo, Mozambique in September 2022.
Objections: Defendants object to this interrogatory as vague and ambiguous, particularly with respect to the term "other commercial arrangement," which is undefined and susceptible to multiple interpretations. Defendants further object to the extent this interrogatory seeks confidential commercial information regarding TSL's business operations, commercial relationships, and revenue sources beyond the scope of the charter-party at issue in this litigation. To the extent the interrogatory requests information about the activities of undefined "affiliates" of TSL, the interrogatory is overbroad.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants respond as follows:
During the off-hire periods associated with Incidents 1, 2, and 3, the M/V Aegean Fortuna was not earning hire under the charter-party with Northwind. As described in Defendants' responses to Interrogatories Nos. 2, 3, and 4 above, the vessel was undergoing repairs during each of the off-hire periods and was not engaged in any revenue-generating commercial activity for TSL, Aegean Fortuna Shipholding, or any affiliate of TSL during those periods. No sub-charter, voyage charter, contract of affreightment, or other commercial arrangement was entered into with respect to the vessel during any off-hire period.
With respect to the Maputo call in September 2022, Defendants reiterate the response set forth in Interrogatory No. 6 above. TSL denies that the purpose of the Maputo call was to load cargo for TSL's own account or for the account of any affiliate of TSL. No cargo was loaded at Maputo for TSL's account or for any commercial arrangement of TSL. The Maputo call was necessitated by weather and routing conditions and was within the Master's reasonable professional discretion, as set forth in Defendants' response to Interrogatory No. 6.
INTERROGATORY NO. 11
Interrogatory: Identify all communications between TSL, Aegean Fortuna Shipholding Ltd., or any of their officers, directors, or employees, on the one hand, and Meridian Capital Bank AG or any of its officers, directors, employees, or agents, on the other hand, concerning this litigation, the claims asserted by Northwind, the counterclaim asserted by TSL, or the financial condition of TSL or Aegean Fortuna Shipholding Ltd. as it relates to this litigation.
Objections: Defendants object to this interrogatory as seeking information that is not relevant to any claim or defense asserted in this action and is not reasonably calculated to lead to the discovery of admissible evidence. TSL's communications with its lender, Meridian Capital Bank AG (Ballindamm 40, 20095 Hamburg, Germany), regarding TSL's credit facility (the Credit Agreement dated April 1, 2019, providing for a senior secured revolving credit facility in the aggregate principal amount of $340,000,000, secured by, among other things, first-priority mortgages on vessels in TSL's fleet, including the M/V Aegean Fortuna) are confidential commercial communications between a borrower and its lender that do not bear on the merits of Northwind's charter-party claims or TSL's counterclaim. The fact that TSL has a lending relationship with Meridian Capital Bank AG is not relevant to whether TSL breached the charter-party, whether Northwind is entitled to damages, or any other issue in this action.
Defendants further object to this interrogatory on the basis of the common interest privilege, to the extent any communications between TSL and Meridian Capital Bank AG involve, reference, or were prepared in anticipation of this litigation and include or incorporate legal advice provided by TSL's counsel. Defendants also object on the ground that this interrogatory is overbroad, as it is not limited in time or subject matter and seeks all communications "concerning this litigation" without meaningful limitation.
Response: Subject to and without waiving the foregoing objections and all General Objections, Defendants state that TSL has complied, and will continue to comply, with its obligations under Section 8.14 of the Credit Agreement with Meridian Capital Bank AG regarding the notification of material litigation and material adverse events. TSL has provided the notifications required by the Credit Agreement regarding the commencement of this action and the nature of the claims asserted. Defendants decline to provide further detail regarding TSL's lender communications, as such information is not relevant to any claim or defense in this action and is protected by commercial confidentiality. To the extent Northwind contends that TSL's lender communications are discoverable, Defendants reserve the right to seek a protective order.
INTERROGATORY NO. 12
Interrogatory: Describe all efforts taken by TSL, Aegean Fortuna Shipholding Ltd., or any agent or employee thereof, to mitigate any damages or losses arising from the three mechanical incidents and the alleged deviation, including all steps taken to minimize off-hire periods, reduce repair costs, and restore the vessel to service as promptly as possible.
Objections: Defendants interpose no specific objections to this interrogatory beyond the General Objections set forth above, which are incorporated herein by reference.
Response: Subject to the General Object