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 REQUEST FOR PRODUCTION OF DOCUMENTS
Date Served: February 28, 2024
PRELIMINARY STATEMENT
Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal executive offices located at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna"), a limited liability company duly incorporated under the laws of the Republic of Liberia (Liberian Registration No. LR-C-20167845), with a registered address at 80 Broad Street, Monrovia, Liberia (collectively, "Defendants"), by and through their undersigned attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006, hereby serve the following Responses and Objections to Plaintiff Northwind Maritime Corporation's ("Northwind" or "Plaintiff") First Request for Production of Documents, dated January 22, 2024, and received by Defendants on January 24, 2024 (the "Requests").
These Responses and Objections are made without waiving, and with the express reservation of, all objections as to the relevance, materiality, competency, authenticity, privilege, and any other ground that would require the exclusion of any document or information at trial or at any proceeding in this matter. No response herein shall be deemed to waive any objection, whether or not specifically stated, to the admissibility, relevance, or use of any document or information at trial or in connection with any motion or proceeding. Further, by responding to any Request, Defendants do not concede that any requested document is relevant to any claim or defense in this action, nor do they concede the accuracy or characterization of any fact, event, or circumstance set forth in any Request.
Defendants note that investigation and discovery in this matter are ongoing and that Defendants' search for and review of responsive documents has not been completed. Accordingly, Defendants expressly reserve the right to supplement, amend, or modify these Responses and Objections at any time as additional information becomes available, as discovery progresses, as the claims and defenses in this matter are further refined, and as may be required by applicable law or court order. These Responses and Objections are made as of the date set forth herein and are based upon information presently available to Defendants and their counsel.
GENERAL OBJECTIONS
The following General Objections are incorporated by reference into each and every specific response set forth below. The assertion of a specific objection to a particular Request does not waive any General Objection as to that Request, and the failure to assert a specific objection to a particular Request does not waive any objection, whether general or specific, that Defendants may assert with respect to that Request.
General Objection No. 1 — Attorney-Client Privilege and Work Product
Defendants object to each and every Request to the extent it calls for or seeks documents, communications, or information protected by the attorney-client privilege, the work product doctrine (as codified, inter alia, in CPLR 3101(c) and (d)), the common interest privilege, or any other applicable privilege or protection recognized under the laws of the State of New York, the United States, or any other applicable jurisdiction. No production of documents pursuant to these Responses shall be construed as a waiver, in whole or in part, of any such privilege or protection, whether as to the specific documents produced or any other documents or communications. Any inadvertent production of privileged or protected material shall not constitute a waiver of any applicable privilege or protection, and Defendants reserve the right to assert the inadvertent nature of any such production and to demand the return or sequestration of any inadvertently produced privileged material, in accordance with CPLR 3101 and the principles set forth in Larkspur Holdings, 27 N.Y.3d 616 (2016), and applicable federal law, including Federal Rule of Evidence 502(b) to the extent relevant. Defendants are producing a privilege log concurrently herewith, identifying documents withheld in whole or in part on the basis of privilege, as required by CPLR 3122(b).
General Objection No. 2 — Overbreadth and Undue Burden
Defendants object to each Request to the extent it is overly broad, unduly burdensome, oppressive, or disproportionate to the needs of this case and the amounts in controversy. This litigation arises from and concerns a specific 36-month time charter-party (Reference No. NW-TSL-CP-2020-1203) executed on December 3, 2020, between Northwind Maritime Corporation, as charterer, and Thalassa Shipping & Logistics SA, as disponent owner, for the M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,200 DWT, with a charter period running from delivery on January 15, 2021 through redelivery on January 14, 2024. The claims asserted by Plaintiff in the Complaint relate to three specific incidents of alleged mechanical failure and an alleged unauthorized deviation to the port of Maputo, Mozambique. Requests seeking documents that extend beyond the scope of the charter-party period (January 15, 2021 through January 14, 2024), that relate to vessels other than the M/V Aegean Fortuna, or that are otherwise untethered to the specific claims and defenses in this action are objected to as overbroad and unduly burdensome. Defendants shall respond to each Request in a manner that is proportional to the needs of this case, taking into account the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
General Objection No. 3 — Relevance
Defendants object to each Request to the extent it seeks documents that are neither relevant to any claim or defense in this action nor reasonably calculated to lead to the discovery of admissible evidence, as required under CPLR 3101(a). Defendants interpret each Request in light of the specific claims asserted in the Complaint and the defenses and counterclaim set forth in Defendants' Answer and will limit their production accordingly.
General Objection No. 4 — Vagueness and Ambiguity
Defendants object to each Request to the extent that it uses terms that are vague, ambiguous, undefined, or susceptible to multiple reasonable interpretations. To the extent Defendants respond to any such Request, Defendants do so based upon their own reasonable interpretation of the terms used therein. By responding to any Request that contains vague or ambiguous terms, Defendants do not concede the propriety or clarity of those terms and reserve the right to challenge their meaning or scope in any future proceedings.
General Objection No. 5 — Confidential Business Information
Defendants object to the production of any proprietary, confidential, or competitively sensitive business, commercial, or financial information absent an appropriate confidentiality agreement or protective order entered by this Court. Defendants' business operations span multiple continents and involve highly competitive commercial shipping markets; the disclosure of confidential commercial terms, financial data, fleet information, and business relationships could cause significant competitive harm to Defendants. Defendants reserve the right to designate produced documents as "CONFIDENTIAL" or "CONFIDENTIAL — ATTORNEYS' EYES ONLY" pursuant to any stipulated confidentiality and protective order entered in this action, including the proposed Stipulated Protective Order currently under negotiation between the parties.
General Objection No. 6 — Documents Not in Defendants' Possession, Custody, or Control
Defendants object to each Request to the extent it seeks documents that are not in Defendants' possession, custody, or control. Defendants are not obligated to, and shall not, create documents that do not exist, obtain documents from third parties over whom Defendants have no legal authority, or produce documents that are in the possession of non-party entities (including, without limitation, the vessel's classification society, port state control authorities, or third-party shippers). Defendants will conduct a reasonable search of their own files, records, electronic repositories, and custodians relevant to this action, but do not undertake to locate, obtain, or produce documents held by non-parties.
General Objection No. 7 — Form of Production
Defendants will produce responsive, non-privileged documents in electronic format, specifically as single-page TIFF images accompanied by appropriate load files (including document-level and page-level load files) and extracted or OCR text, or in native format where the document's native format is necessary to preserve its functionality or content (e.g., spreadsheets, databases), consistent with the parties' ESI protocol as agreed upon in the Preliminary Conference Stipulation and Order dated November 17, 2023. Electronic discovery processing, hosting, and production are being managed by Lighthouse Data Analytics Inc., a third-party vendor retained by Defendants' counsel. Each produced document will bear a unique Bates number in the format TSL-[number]. Defendants reserve the right to produce documents on a rolling basis as review is completed.
General Objection No. 8 — Foreign Privacy and Data Protection Laws
Defendants object to each Request to the extent that compliance would require the production of documents or information in violation of applicable foreign privacy or data protection laws and regulations, including but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) ("GDPR"), Greek Law 4624/2019 implementing the GDPR, and any other applicable data protection legislation or regulation of the Hellenic Republic, the European Union, or any other jurisdiction. TSL's principal offices are located in Piraeus, Greece, within the territorial scope of the GDPR, and a substantial portion of the documents responsive to Plaintiff's Requests are located in or originate from those offices. Many of these documents contain personal data of TSL employees, crew members, and other natural persons that is subject to the protections of the GDPR and Greek data protection law. Defendants will undertake reasonable efforts to comply with their discovery obligations in a manner consistent with applicable data protection requirements, including by redacting personal data that is not relevant to this action and by seeking, where practicable, the consent of affected data subjects. However, Defendants will not produce documents where doing so would violate mandatory provisions of the GDPR or applicable Greek law.
SPECIFIC RESPONSES AND OBJECTIONS
Subject to and without waiving any of the foregoing General Objections, each of which is incorporated by reference into each response below, Defendants respond to each of Plaintiff's specific Requests as follows:
REQUEST NO. 1
Request: All documents relating to the time charter-party between Northwind Maritime Corporation and Thalassa Shipping & Logistics SA for the M/V Aegean Fortuna, including but not limited to the executed charter-party, all addenda, amendments, riders, side letters, and recaps.
Response:
Subject to and without waiving the General Objections set forth above, Defendants will produce the executed NYPE 2015 time charter-party dated December 3, 2020 (Reference No. NW-TSL-CP-2020-1203) between Northwind Maritime Corporation, as charterer, and Thalassa Shipping & Logistics SA, as disponent owner, for the M/V Aegean Fortuna (IMO No. 9847231). Defendants will also produce all addenda, riders, and amendments to the charter-party, including the Clause 46(b) addendum concerning the vessel's trading limits, as well as any side letters executed by the parties during the charter period. To the extent that fixture recaps or pre-contractual correspondence reflecting the agreed terms were exchanged between the parties and are in Defendants' possession, custody, or control, Defendants will produce such documents as well.
The production Bates range for documents responsive to this Request will be designated upon production.
REQUEST NO. 2
Request: All documents relating to the maintenance, repair, inspection, survey, and classification of the M/V Aegean Fortuna (IMO No. 9847231) during the period January 1, 2019 through the present date.
Response and Objection:
Defendants object to this Request as overbroad in its temporal scope. The Request seeks documents from January 1, 2019 — more than two years before the commencement of the charter-party on January 15, 2021 — and extends through "the present date," which post-dates the charter-party expiration date of January 14, 2024. The charter-party was executed on December 3, 2020, and the relevant maintenance obligations under the charter-party arose upon delivery of the vessel on January 15, 2021. Documents relating to the maintenance, repair, inspection, survey, and classification of the vessel from January 1, 2019 through December 2, 2020 pre-date the charter-party and are not relevant to Plaintiff's claims of breach during the charter period. Similarly, documents post-dating the charter-party expiration on January 14, 2024 do not pertain to any obligation arising under the charter-party and are not relevant.
Defendants further object to the extent this Request is unduly burdensome, as the maintenance, repair, inspection, survey, and classification records for a vessel over a multi-year period are voluminous and encompass routine and non-material entries that have no bearing on the three specific incidents at issue in this action.
Subject to and without waiving these objections, Defendants will produce responsive, non-privileged documents relating to the maintenance, repair, inspection, survey, and classification of the M/V Aegean Fortuna for the period from December 3, 2020 (the date of charter-party execution) through January 14, 2024 (the charter-party expiration date). This production will include, among other documents: (a) Global Maritime Classification Bureau ("GMCB") survey and classification records, including annual survey reports, intermediate surveys, and special surveys; (b) planned maintenance system ("PMS") records from the vessel's computerized maintenance management system; (c) repair invoices and work orders; and (d) drydocking documentation, including documentation relating to the scheduled drydocking at Keppel Verolme Shipyard, Rotterdam, the Netherlands, conducted in approximately November through December 2022.
REQUEST NO. 3
Request: All documents relating to the turbocharger failure aboard the M/V Aegean Fortuna on or about March 12, 2022 through April 2, 2022 ("Incident 1"), including but not limited to engine room logs, maintenance records, repair invoices, classification society correspondence, and internal communications.
Response:
Subject to and without waiving the General Objections, including in particular General Objection No. 1 (Attorney-Client Privilege and Work Product), Defendants will produce responsive, non-privileged documents relating to the turbocharger failure that occurred between approximately March 12 and April 2, 2022 (referred to herein and in the Complaint as "Incident 1"). The documents to be produced include, among others: (a) engine room log entries for the relevant period; (b) Chief Engineer Petros Vlahos's maintenance and defect reports concerning the turbocharger failure; (c) correspondence with and reports from GMCB surveyors regarding the condition-of-class survey conducted in connection with the turbocharger failure; (d) repair documentation, work orders, and invoices from the repair conducted at the port of Colombo, Sri Lanka; and (e) non-privileged internal communications relating to the turbocharger failure.
Defendants withhold certain communications between TSL personnel and counsel, specifically communications with Calderwood & Harkness LLP and/or Konstantinou & Rizos Law Offices (Piraeus, Greece) relating to this incident, on the basis of the attorney-client privilege and/or the work product doctrine. These communications were made for the purpose of obtaining or providing legal advice in connection with the turbocharger failure and the claims that Defendants anticipated would arise therefrom. The withheld communications are individually identified on the accompanying Privilege Log, served concurrently herewith.
REQUEST NO. 4
Request: All documents relating to the ballast water treatment system malfunction and auxiliary boiler failure aboard the M/V Aegean Fortuna on or about July 8, 2022 through July 29, 2022 ("Incident 2"), including but not limited to engine room logs, maintenance records, repair invoices, port state control inspection reports, and internal communications.
Response:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged documents relating to the ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure that occurred between approximately July 8 and July 29, 2022 (referred to herein and in the Complaint as "Incident 2"). The documents to be produced include, among others: (a) engine room log entries for the relevant period; (b) BWTS operational data, including system performance logs and alarm records; (c) auxiliary boiler maintenance records, defect reports, and repair documentation; (d) port state control inspection reports and any associated deficiency notifications; and (e) non-privileged internal communications relating to Incident 2.
Defendants note, and the documents to be produced will reflect, that Defendants' investigation has identified evidence demonstrating that the BWTS malfunction was caused, in whole or in substantial part, by contaminated ballast water loaded by or at the direction of Northwind's agents at a prior port of call. Specifically, Defendants' investigation indicates that the vessel's ballast water intake was contaminated with sediment and biological material at levels substantially exceeding normal parameters, which caused fouling and failure of the BWTS filtration and treatment modules. This contamination was the direct result of ballasting operations directed by Northwind's agents. Defendants will produce documents supporting this defense, including ballast water sampling records and technical reports.
Certain communications involving TSL personnel and Defendants' counsel relating to Incident 2 are withheld as privileged. These communications are identified on the accompanying Privilege Log.
REQUEST NO. 5
Request: All documents relating to the main engine cylinder liner failure aboard the M/V Aegean Fortuna on or about November 15, 2022 through December 10, 2022 ("Incident 3"), including but not limited to engine room logs, maintenance records, drydocking reports, classification society surveys, repair invoices, and internal communications.
Response:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged documents relating to the main engine cylinder liner failure that occurred between approximately November 15 and December 10, 2022 (referred to herein and in the Complaint as "Incident 3"). The documents to be produced include, among others: (a) engine room log entries for the relevant period; (b) the GMCB condition-of-class survey conducted in connection with the cylinder liner failure; (c) drydocking reports and invoices from Keppel Verolme Shipyard, Rotterdam, the Netherlands, where the vessel was drydocked for repair of the cylinder liner failure and concurrent scheduled maintenance; (d) cylinder liner replacement records, including parts procurement records and work specifications; and (e) Chief Engineer Petros Vlahos's maintenance and defect reports concerning the cylinder liner failure.
Defendants note that while TSL concedes, for the limited purposes of these discovery responses, that Incident 3 constituted a maintenance failure attributable to the vessel's owner, TSL disputes the quantum of damages claimed by Northwind in connection with Incident 3. In particular, TSL contends that Northwind has overstated the duration of the off-hire period and has included in its damages calculation costs and losses that are not properly recoverable under the terms of the charter-party. Documents reflecting TSL's position on the scope and duration of the repair, including correspondence with the shipyard and the vessel's return-to-service timeline, are included in the production.
Privileged communications between TSL personnel and Defendants' counsel relating to Incident 3 are withheld and listed on the accompanying Privilege Log.
REQUEST NO. 6
Request: All documents relating to the voyage of the M/V Aegean Fortuna from Durban, South Africa to Qingdao, China in September and October 2022, including but not limited to voyage instructions, Master's orders, sailing directions, voyage plans, weather routing reports, port call records, bills of lading, and all communications between TSL (including the vessel's Master) and any third party relating to the call at Maputo, Mozambique.
Response and Objection:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged documents relating to the voyage of the M/V Aegean Fortuna from Durban, South Africa to Qingdao, China in September and October 2022, including the vessel's call at the port of Maputo, Mozambique. The documents to be produced include, among others: (a) voyage plans, including the initial voyage plan and any amendments thereto; (b) the Master's voyage reports; (c) weather routing reports and advisories provided to and received by the vessel during the voyage; (d) port logs for the Maputo call, including arrival, berthing, and departure records; and (e) non-privileged communications between Captain Nikolaos Giannopoulos and TSL's chartering and operations department at Piraeus concerning the routing decision, the Maputo call, and the overall progress of the voyage.
Defendants object to the extent this Request seeks communications between TSL and/or the vessel's Master and TSL's legal counsel regarding the Maputo call and the routing decision, which communications are protected by the attorney-client privilege. Defendants' counsel was consulted regarding the charter-party implications of the Maputo call, and communications reflecting legal advice provided in that context are privileged and withheld.
Defendants further note that the documents to be produced will demonstrate that the call at Maputo was necessitated by prevailing weather and routing conditions in the Mozambique Channel and was a decision within the Master's reasonable discretion under the terms of the charter-party, including the vessel's trading limits as set forth in Clause 5 and the Clause 46(b) addendum. The Maputo call did not constitute an unauthorized deviation, and Defendants intend to demonstrate this through the produced documents.
REQUEST NO. 7
Request: All documents relating to any cargo loaded aboard the M/V Aegean Fortuna at Maputo, Mozambique in September 2022, including but not limited to bills of lading, cargo manifests, stowage plans, freight invoices, and communications with shippers or cargo interests.
Response and Objection:
Subject to and without waiving the General Objections, Defendants object to this Request to the extent it seeks documents reflecting TSL's confidential commercial relationships with third-party shippers that are unrelated to Northwind's time charter-party. TSL's commercial arrangements for the carriage of cargo on its own account or on behalf of third parties are proprietary and competitively sensitive information, and their disclosure would cause competitive harm to TSL in the international shipping market.
Defendants further object on the basis of relevance and proportionality. TSL's own cargo operations at Maputo are not relevant to the claims and defenses in this case. The Maputo call was a routing decision within the Master's reasonable discretion under the charter-party, and whether or not TSL loaded cargo at Maputo is not material to the question of whether the call constituted a deviation in breach of the charter-party. The charter-party is a time charter under which the vessel's commercial employment is directed by the charterer, subject to the Master's authority over matters of navigation and safety; the Master's decision to call at Maputo was a navigational decision, not a commercial employment decision.
Notwithstanding the foregoing objections, and in the interest of good-faith participation in the discovery process, Defendants will produce port call records and voyage logs showing the timeline of the Maputo call, including the vessel's arrival, berthing, and departure times, and any anchorage or waiting time at Maputo. However, Defendants will not produce bills of lading, cargo manifests, stowage plans, freight invoices, or other confidential commercial documents relating to TSL's own cargo loaded at Maputo, as such documents are neither relevant to nor proportional to the needs of this case.
REQUEST NO. 8
Request: All documents relating to the off-hire status of the M/V Aegean Fortuna during the charter period, including but not limited to off-hire notices, hire statements, hire payment records, and correspondence between the parties concerning off-hire deductions.
Response:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged documents relating to the off-hire status of the M/V Aegean Fortuna during the charter period. The documents to be produced include, among others: (a) hire invoices issued by TSL for the charter period; (b) off-hire notices sent by Northwind to TSL and any responses thereto; (c) hire payment records reflecting payments made and withheld by Northwind; and (d) correspondence between TSL and Northwind regarding the off-hire status of the vessel in connection with each of the three incidents at issue, encompassing the 68 off-hire days claimed by Northwind (specifically, 22 days for Incident 1, the turbocharger failure; 21 days for Incident 2, the BWTS/boiler failure; and 25 days for Incident 3, the cylinder liner failure).
Defendants will also produce documents relating to Northwind's unilateral withholding of hire for the period from October 1, 2022 through December 31, 2022 (a total of approximately 110 days), which withholding Defendants contend was unauthorized, unjustified, and in breach of the charter-party. This hire withholding is the subject of Defendants' counterclaim for $1,620,000 in unpaid hire, as set forth in Defendants' Counterclaim in the Answer filed in this action. Documents reflecting the hire calculations, the amounts withheld, and Defendants' demands for payment will be included in the production.
REQUEST NO. 9
Request: All documents relating to the computation or calculation of liquidated damages under Clause 28 of the charter-party, including but not limited to internal analyses, spreadsheets, memoranda, and communications with any person concerning the interpretation or application of Clause 28.
Response and Objection:
Defendants object to this Request to the extent it seeks documents protected by the attorney-client privilege or the work product doctrine. TSL's interpretation of Clause 28 of the charter-party — specifically, the provision that provides for a liquidated damages cap — has been the subject of extensive legal analysis prepared by and at the direction of Defendants' counsel, Calderwood & Harkness LLP. Communications with counsel regarding the interpretation of Clause 28, including internal legal memoranda analyzing the scope and application of the $4,500,000 liquidated damages cap, constitute attorney-client privileged communications and attorney work product. TSL's legal position — that the $4,500,000 cap set forth in Clause 28 applies once to the entire charter period as a cumulative cap on the owner's liability for off-hire and related damages, and not on a per-incident basis as Northwind contends — is a legal interpretation that is set forth in Defendants' pleadings and that Defendants intend to address in their anticipated motion for partial summary judgment. The legal analyses underlying this position are privileged and are not subject to discovery.
Defendants further object to the extent this Request seeks internal analyses, spreadsheets, or memoranda prepared at the direction of counsel or in anticipation of litigation, which are protected as work product under CPLR 3101(c) and (d).
Subject to and without waiving these objections, Defendants will produce non-privileged factual documents relating to the application of Clause 28, including hire calculations, off-hire computations, and any pre-dispute, non-privileged correspondence between the parties regarding the application of the liquidated damages provision. To the extent that factual information (as distinct from legal analysis) is contained in documents otherwise withheld on privilege grounds, Defendants will endeavor to produce such factual information in a non-privileged form where practicable.
Privileged documents withheld in connection with this Request are identified on the accompanying Privilege Log.
REQUEST NO. 10
Request: All documents relating to the M/V Aegean Fortuna's compliance with the requirements of the vessel's classification society, Global Maritime Classification Bureau ("GMCB"), from January 1, 2020 through the present, including but not limited to classification certificates, conditions of class, survey reports, recommendations, and correspondence.
Response and Objection:
Defendants object to the temporal scope of this Request to the extent it extends beyond the charter-party period. The Request seeks documents from January 1, 2020, more than one year prior to the commencement of the charter-party on January 15, 2021, and extends through "the present," which post-dates the charter-party expiration on January 14, 2024. Documents from January 1, 2020 through January 14, 2021 pre-date the delivery of the vessel under the charter-party and are not relevant to Plaintiff's claims, which allege breaches of maintenance obligations arising during the charter period. Similarly, documents post-dating January 14, 2024 are not relevant to any claim or defense arising under the charter-party.
Subject to and without waiving this objection, Defendants will produce GMCB classification certificates, conditions of class, survey reports (including annual, intermediate, and special surveys), class recommendations, and related correspondence for the M/V Aegean Fortuna (IMO No. 9847231) for the period from January 15, 2021 (the charter-party commencement date) through January 14, 2024 (the charter-party expiration date). This production will include all class-related documentation in Defendants' possession, custody, or control for the vessel during this period.
REQUEST NO. 11
Request: All documents relating to any insurance claim, notice of claim, or report made to any insurer in connection with the M/V Aegean Fortuna during the charter period, including but not limited to claims or reports to any protection and indemnity club, hull and machinery insurer, or other marine insurer.
Response and Objection:
Defendants object to this Request as overbroad and unduly burdensome to the extent it seeks all insurance claims, notices of claim, or reports relating to the M/V Aegean Fortuna without limitation to the three specific incidents at issue in this litigation. The M/V Aegean Fortuna was insured during the charter period under multiple insurance policies, and routine insurance communications and claims not relating to the incidents at issue are not relevant to the claims or defenses in this action.
Defendants further object to the extent this Request seeks communications between TSL and its Protection & Indemnity Club, Oceanus Mutual Protection & Indemnity Club (Policy No. OCE-P&I-2020-TSL-0047, covering the M/V Aegean Fortuna), or its hull and machinery insurer, Fortis Marine Underwriters Ltd. (Policy No. FMU-HM-2020-4892), that were made in anticipation of litigation or at the direction of counsel. Such communications are protected by the attorney-client privilege, the work product doctrine, and/or the common interest privilege, as they were made in the context of a shared legal interest between TSL and its insurers in defending against anticipated claims arising from the three incidents. See, e.g., Adriatic Specialty Insurance v. Certain Underwriters at Lloyd's, London, 176 Misc. 2d 605 (Sup. Ct. N.Y. Cnty. 1998) (recognizing common interest privilege in the insured-insurer context). These communications were made at the direction of and/or with the involvement of TSL's counsel and are further protected as attorney-client communications.
Subject to and without waiving these objections, Defendants will produce non-privileged factual insurance claim notices and reports relating to Incident 1 (the turbocharger failure), Incident 2 (the BWTS/boiler failure), and Incident 3 (the cylinder liner failure), to the extent such documents are in Defendants' possession, custody, or control. This production will include initial notices of claim and factual loss reports submitted to Defendants' insurers in connection with these three incidents.
Privileged insurance-related communications withheld from production are identified on the accompanying Privilege Log.
REQUEST NO. 12
Request: All documents relating to any communication between TSL and the Master, officers, or crew of the M/V Aegean Fortuna regarding the three incidents alleged in the Complaint and the Maputo deviation.
Response:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged communications between TSL's shore-side management personnel — including personnel in TSL's chartering, operations, and technical departments at 42 Akti Miaouli, Piraeus, Greece — and the vessel's Master (Captain Nikolaos Giannopoulos), Chief Engineer (Petros Vlahos), and other officers and crew of the M/V Aegean Fortuna, to the extent such communications relate to: (a) the turbocharger failure (Incident 1); (b) the ballast water treatment system malfunction and auxiliary boiler failure (Incident 2); (c) the main engine cylinder liner failure (Incident 3); and (d) the September 2022 call at the port of Maputo, Mozambique.
Defendants note that such communications include, among others, email correspondence, operational messages, and reports exchanged via the vessel's communication systems. Defendants will conduct a reasonable search of electronic communications repositories maintained by TSL's shore-side offices and of records maintained aboard the vessel for responsive, non-privileged communications.
Communications between TSL personnel and/or the vessel's officers and crew that were made at the direction of, copied to, or otherwise involving Defendants' counsel are withheld as privileged. These communications are identified on the accompanying Privilege Log.
REQUEST NO. 13
Request: All documents relating to any substitute charter or employment of the M/V Aegean Fortuna by TSL or Aegean Fortuna Shipholding Ltd. during periods when the vessel was off-hire under the Northwind charter-party.
Response and Objection:
Defendants object to this Request as irrelevant. The charter-party between Northwind and TSL is a time charter; the vessel remained under Northwind's operational direction throughout the charter period, subject to the off-hire provisions of the charter-party. During periods when the vessel was off-hire due to the three incidents at issue, the vessel was not available for commercial employment because it was undergoing repairs at the respective repair facilities. TSL did not independently charter, employ, or otherwise commercially operate the vessel during any off-hire period. The vessel was not sublet, re-let, or made available to any third party during those periods.
Subject to and without waiving this objection, Defendants state that no responsive documents exist. The M/V Aegean Fortuna was not separately chartered or employed by TSL, Aegean Fortuna Shipholding Ltd., or any other entity during the off-hire periods. During Incident 1, the vessel was undergoing repairs at Colombo, Sri Lanka. During Incident 2, the vessel was undergoing repairs as directed by the Chief Engineer. During Incident 3, the vessel was drydocked at Keppel Verolme Shipyard, Rotterdam, the Netherlands. At no time during any of these off-hire periods was the vessel available for or engaged in alternative commercial employment.
REQUEST NO. 14
Request: All financial documents, including profit and loss statements, revenue records, and internal accounting records, relating to the M/V Aegean Fortuna for fiscal years 2021, 2022, and 2023.
Response and Objection:
Defendants object to this Request as overbroad, unduly burdensome, and seeking confidential, competitively sensitive financial information that is not relevant to the claims or defenses in this action. This is a charter-party breach case in which Northwind's alleged damages are measured by the terms of the charter-party — specifically, the daily hire rate, off-hire provisions, and the Clause 28 liquidated damages cap — and not by TSL's or Aegean Fortuna Shipholding Ltd.'s internal financial performance, profitability, or revenue generation with respect to the vessel or otherwise. Northwind has not asserted any claim for which TSL's or Aegean Fortuna's overall financial condition or vessel-level profit and loss is relevant.
Defendants further object on the grounds that production of internal financial records of Aegean Fortuna Shipholding Ltd. (the vessel's registered owner) and TSL (the vessel's disponent owner and commercial manager) would be disproportionate to the needs of this case. TSL is a significant international shipping enterprise; its annual revenue for fiscal year 2022 was approximately $612 million and its EBITDA was approximately $98 million. These macro-level financial details, as well as vessel-level profit and loss statements and internal accounting records, are not relevant to the specific vessel-level charter-party claims at issue in this action. Requiring Defendants to produce such records would impose a substantial burden and would expose highly confidential financial information to unnecessary risk of disclosure.
Defendants also object under General Objection No. 5 (Confidential Business Information) and note that, even if any financial records were deemed relevant (which Defendants deny), production would be inappropriate absent entry of a protective order providing adequate safeguards for the confidentiality of such information.
Subject to and without waiving these objections, Defendants will produce hire invoices and payment records specific to the charter-party for the M/V Aegean Fortuna for the charter period (January 15, 2021 through January 14, 2024), as such records are directly relevant to the hire and off-hire dispute between the parties. Defendants will not produce profit and loss statements, revenue records, or internal accounting records.
REQUEST NO. 15
Request: All documents relating to any prior claims, disputes, arbitrations, or litigations involving the M/V Aegean Fortuna or between TSL and any charterer of the M/V Aegean Fortuna prior to the Northwind charter-party.
Response and Objection:
Defendants object to this Request as irrelevant, overbroad, and unduly burdensome. Prior claims, disputes, arbitrations, or litigations involving the M/V Aegean Fortuna or between TSL and prior charterers of the vessel have no bearing on the specific claims and defenses at issue in this action and are not reasonably calculated to lead to the discovery of admissible evidence. Each charter-party is a distinct contractual relationship governed by its own terms and involving its own set of facts and circumstances. Evidence of prior disputes with other charterers is neither probative of the issues in this case nor admissible for any purpose.
Defendants further object to the extent this Request seeks information that is protected by confidentiality provisions contained in prior settlement agreements, arbitration awards, or dispute resolution proceedings. Disclosure of such information without the consent of the other parties to those proceedings would breach existing contractual obligations of confidentiality.
Defendants also note that this Request is improper to the extent it seeks to introduce evidence of prior disputes for the purpose of demonstrating a pattern or practice of maintenance failures or charter-party breaches. Such evidence would be inadmissible under established evidentiary principles. See People v. Molineux, 168 N.Y. 264 (1901).
Subject to and without waiving these objections, Defendants decline to produce documents responsive to this Request.
REQUEST NO. 16
Request: All documents relating to TSL's fleet-wide maintenance policies, procedures, and protocols in effect during the charter period (January 15, 2021 through January 14, 2024).
Response and Objection:
Defendants object to this Request as overbroad to the extent it seeks documents relating to TSL's entire fleet of approximately 34 vessels, including dry bulk carriers, tankers, and container vessels. This litigation concerns only the M/V Aegean Fortuna, and fleet-wide maintenance policies, procedures, and protocols as applied to other vessels in TSL's fleet are not relevant to any claim or defense in this action. The maintenance obligations at issue arise under the specific charter-party for the M/V Aegean Fortuna, and the relevant inquiry is whether TSL maintained the vessel in accordance with those contractual obligations and applicable regulatory requirements — not whether TSL's fleet-wide policies were adequate or deficient as a general matter.
Subject to and without waiving this objection, Defendants will produce TSL's general maintenance policies and procedures to the extent they were applicable to the M/V Aegean Fortuna during the charter period (January 15, 2021 through January 14, 2024). This production will include: (a) TSL's Safety Management System ("SMS") documentation as required under the International Safety Management ("ISM") Code, to the extent applicable to the M/V Aegean Fortuna; and (b) TSL's planned maintenance system ("PMS") protocols as they applied to the vessel, including maintenance schedules and intervals for the main engine, turbocharger, ballast water treatment system, and auxiliary boiler. Defendants will not produce fleet-wide policies that pertain solely to other vessel types or classes not comparable to the M/V Aegean Fortuna.
REQUEST NO. 17
Request: All documents relating to any communication between TSL and Northwind Maritime Corporation (or its agents, representatives, or sub-charterers, including Eastbourne Bulk Carriers Ltd.) during the charter period.
Response and Objection:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged communications between TSL and Northwind (or Northwind's agents and representatives) relating to the charter-party, the three incidents at issue, hire payments and off-hire status, and the September 2022 Maputo call, during the charter period (January 15, 2021 through January 14, 2024). This production will encompass correspondence by email, letter, and other written communications exchanged between TSL's personnel and Northwind's personnel or identified agents.
Defendants object to the extent this Request seeks communications between TSL and Eastbourne Bulk Carriers Ltd. ("Eastbourne"). Defendants are not aware of any direct communications between TSL and Eastbourne during the charter period. Eastbourne was Northwind's sub-charterer under a separate sub-charter arrangement to which TSL was not a party. Defendants understand that Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne at a daily rate of $17,200; TSL had no contractual relationship with Eastbourne and has limited, if any, documents reflecting communications with Eastbourne. To the extent any such communications exist in Defendants' files, they would be incidental and are not expected to be material. Defendants will produce any such communications if located during the reasonable course of their document review.
Privileged communications between TSL personnel and Defendants' counsel are withheld and identified on the accompanying Privilege Log.
REQUEST NO. 18
Request: All documents relating to the hiring, qualifications, training, and performance evaluations of the Master (Capt. Nikolaos Giannopoulos) and Chief Engineer (Petros Vlahos) of the M/V Aegean Fortuna.
Response and Objection:
Defendants object to this Request as overbroad, unduly burdensome, and an unwarranted invasion of the privacy interests of individual crew members. The complete hiring records, personnel files, training histories, and performance evaluations of Captain Nikolaos Giannopoulos and Chief Engineer Petros Vlahos — beyond their relevant professional certifications — are not at issue in this case. Northwind has not alleged that the turbocharger failure, the BWTS/boiler failure, or the cylinder liner failure was caused by the incompetence or lack of qualifications of the vessel's Master or Chief Engineer. Rather, Northwind's Complaint alleges failures of maintenance by TSL as the disponent owner. The competence and qualifications of individual crew members are collateral to the claims and defenses in this action.
Defendants further object under General Objection No. 8 (Foreign Privacy and Data Protection Laws). Captain Giannopoulos and Chief Engineer Vlahos are Greek nationals whose personnel records are maintained at TSL's offices in Piraeus, Greece, within the territorial scope of the GDPR and Greek Law 4624/2019. Their personnel files contain personal data — including employment history, compensation information, medical fitness records, disciplinary records, and personal contact information — that is protected under the GDPR and that Defendants are prohibited from disclosing without the consent of the affected data subjects or a lawful basis for processing under Article 6 of the GDPR. Defendants cannot unilaterally disclose the complete personnel files of these crew members to satisfy an overbroad discovery request in a foreign proceeding.
Subject to and without waiving these objections, and in the interest of cooperation, Defendants will produce the Standards of Training, Certification, and Watchkeeping ("STCW") certificates and relevant professional certifications of Captain Nikolaos Giannopoulos (Master Mariner certificate, STCW endorsements) and Chief Engineer Petros Vlahos (Chief Engineer certificate, STCW endorsements) as maintained in the vessel's document file, to the extent such records are in Defendants' possession, custody, or control. These certifications demonstrate that both officers held all certifications required under the STCW Convention and applicable flag state regulations for service in their respective capacities aboard the M/V Aegean Fortuna.
REQUEST NO. 19
Request: All documents relating to the vessel's flag state (Republic of Liberia) inspections, port state control inspections, and any deficiency reports for the M/V Aegean Fortuna during the charter period.
Response:
Subject to and without waiving the General Objections, Defendants will produce responsive, non-privileged documents relating to flag state and port state control inspections of the M/V Aegean Fortuna during the charter period (January 15, 2021 through January 14, 2024). The documents to be produced include, among others: (a) Republic of Liberia flag state inspection records, including any flag state audit reports and statutory certificates; (b) port state control inspection reports for inspections conducted at ports visited by the vessel during the charter period; and (c) any deficiency reports, detention reports, or corrective action records associated with any such inspections. Defendants will produce such documents to the extent they are in Defendants' possession, custody, or control.
REQUEST NO. 20
Request: All documents relating to any internal investigation or root cause analysis conducted by TSL or any third party with respect to the turbocharger failure (Incident 1), BWTS/boiler failure (Incident 2), and/or cylinder liner failure (Incident 3).
Response and Objection:
Defendants object to this Request to the extent it seeks documents prepared by or at the direction of counsel in anticipation of litigation, which are protected by the attorney-client privilege and/or the work product doctrine. Following each of the three incidents, TSL's counsel directed the conduct of certain investigative and analytical activities for the purpose of providing legal advice and preparing for anticipated litigation. Documents generated in connection with these counsel-directed investigations reflect the mental impressions, conclusions, opinions, and legal theories of Defendants' attorneys and are protected as opinion work product under CPLR 3101(d)(2).
Subject to and without waiving this objection, Defendants will produce non-privileged root cause analysis and investigation reports, including: (a) technical assessments and defect analyses prepared by the vessel's Chief Engineer and other vessel personnel in the ordinary course of business; and (b) survey and investigation reports prepared by GMCB surveyors in connection with the conditions of class arising from each incident. These documents were not prepared in anticipation of litigation or at the direction of counsel and are factual in nature.
Defendants note that Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS, located in Copenhagen, Denmark, has been retained as a maritime engineering expert by Defendants' counsel in connection with this litigation. Dr. Sørensen has been retained in anticipation of litigation and for the purpose of providing expert opinions on the cause and nature of the three mechanical failures at issue. Any communications between Dr. Sørensen and Defendants' counsel, as well as any draft or preliminary reports, notes, analyses, or work product generated by Dr. Sørensen in connection with his engagement, are protected as work product and are not subject to discovery at this stage of the proceedings. See CPLR 3101(d)(1).
Privileged documents withheld in connection with this Request are identified on the accompanying Privilege Log.
REQUEST NO. 21
Request: All documents relating to the construction, delivery, and commissioning of the M/V Aegean Fortuna, including the shipbuilding contract, delivery specifications, and builder's technical documentation.
Response and Objection:
Defendants object to this Request as overbroad and disproportionate to the needs of this case. The M/V Aegean Fortuna is a Supramax dry bulk carrier of approximately 58,200 DWT, constructed by Dalian Prosperity Shipyard Co. (Dalian, People's Republic of China) and delivered in 2016, approximately five years before the commencement of the charter-party. The shipbuilding contract, delivery specifications, and the full corpus of builder's technical documentation for a vessel of this size and complexity are voluminous — comprising thousands of pages of drawings, specifications, test reports, and related materials — and are largely irrelevant to the claims asserted in this action. The claims in this case concern three specific mechanical failures that occurred during the charter period (2022), not the original construction or commissioning of the vessel.
Subject to and without waiving this objection, Defendants will produce builder's technical documentation that is specifically relevant to the vessel systems at issue in the three incidents, including: (a) the vessel's general arrangement plan; (b) technical specifications for the main engine, turbocharger, ballast water treatment system, and auxiliary boiler; and (c) builder's technical manuals and documentation for these systems to the extent they are in Defendants' possession, custody, or control. Defendants will not produce the shipbuilding contract, the full set of builder's delivery specifications, or technical documentation relating to vessel systems that are not at issue in this action.
REQUEST NO. 22
Request: All documents sufficient to identify every vessel owned or operated by TSL or any TSL affiliate during the period January 1, 2020 through the present.
Response and Objection:
Defendants object to this Request as irrelevant, overbroad, and unduly burdensome. TSL operates a fleet of approximately 34 vessels, including dry bulk carriers, tankers, and container vessels, through various subsidiaries and affiliated entities. The identity, particulars, and operational details of vessels other than the M/V Aegean Fortuna are wholly irrelevant to any claim or defense in this action. This litigation solely concerns the charter-party for the M/V Aegean Fortuna and the three specific incidents alleged in the Complaint. Northwind has not articulated any basis upon which the identity or characteristics of other vessels in TSL's fleet would be relevant to its claims.
To the extent Northwind seeks this information to support a theory of fleet-wide maintenance deficiency or corporate policy, such a theory is not pleaded in the Complaint and would be improper. TSL's obligations under the charter-party are specific to the M/V Aegean Fortuna, and evidence relating to the maintenance or operation of other vessels is not probative of whether TSL breached its obligations with respect to the M/V Aegean Fortuna.
Subject to and without waiving these objections, Defendants decline to produce documents responsive to this Request.
REQUEST NO. 23
Request: All documents relating to any communication between TSL and its lender, Meridian Capital Bank AG, regarding the M/V Aegean Fortuna, including but not limited to notifications of litigation, covenant compliance reports, and mortgage documentation.
Response and Objection:
Defendants object to this Request as overbroad and seeking confidential financial and lending information that is not relevant to the claims or defenses in this charter-party dispute. TSL's credit facility with Meridian Capital Bank AG (Hamburg, Germany) is a syndicated secured lending facility in an aggregate principal amount of approximately $340 million, secured by, among other collateral, vessel mortgages on multiple vessels in TSL's fleet, including the M/V Aegean Fortuna. The commercial terms of that facility — including interest rates, amortization schedules, financial covenants, coverage ratios, and similar terms — are confidential financial information that has no bearing on Northwind's claims for breach of the charter-party or on Defendants' counterclaim for unpaid hire. TSL's covenant compliance reports and internal financial communications with its lender are similarly irrelevant.
Defendants further object to the extent this Request seeks documents protected by the attorney-client privilege. Certain communications between TSL and Meridian Capital Bank AG were made with the involvement of or at the direction of TSL's counsel, including notifications of this litigation and related legal matters, and are privileged.
Subject to and without waiving these objections, Defendants will produce the preferred ship mortgage registered against the M/V Aegean Fortuna in favor of Meridian Capital Bank AG, to the extent such mortgage was disclosed to Northwind during the charter-party negotiations or is a matter of public record with the Liberian Maritime Authority, if any. Defendants will not produce internal TSL-Meridian correspondence, covenant compliance reports, confidential loan documentation, or any other communications between TSL and its lender.
PRIVILEGE LOG
Defendants state that a Privilege Log is being produced and served concurrently herewith, identifying all documents withheld in whole or in part on the basis of the attorney-client privilege, the work product doctrine, the common interest privilege, or any other applicable privilege or protection, in accordance with CPLR 3122(b). The Privilege Log identifies, for each withheld document, the date of the document, the author and recipients, the general subject matter, and the specific privilege or protection asserted as the basis for withholding.
The categories of documents withheld and identified on the Privilege Log include, but are not limited to, the following:
1. Communications between TSL personnel and Calderwood & Harkness LLP. Communications between TSL's senior management and operational personnel — including Alexandros Stavridis (Managing Director), Markos Theodorakis (Director of Chartering), Elena Papadimitriou (Director of Technical Operations), Captain Nikolaos Giannopoulos (Master, M/V Aegean Fortuna), and Petros Vlahos (Chief Engineer, M/V Aegean Fortuna) — and attorneys at Calderwood & Harkness LLP — including Douglas Carmichael (Partner), Francesca Morano (Partner), Carlos Espinoza (Associate), and Hannah Brinkley (Associate) — regarding the three incidents at issue, the Maputo call, the dispute over hire and off-hire, the interpretation of Clause 28, and the prosecution and defense of this litigation.
2. Communications between TSL and Konstantinou & Rizos Law Offices. Communications between TSL personnel and Dimitrios Konstantinou of Konstantinou & Rizos Law Offices (Piraeus, Greece) regarding Greek corporate governance matters, regulatory compliance, GDPR considerations, and related legal advice in connection with this action.
3. Communications between TSL and/or its counsel and Oceanus Mutual Protection & Indemnity Club. Communications between TSL personnel and/or Calderwood & Harkness LLP and David Okafor of Oceanus Mutual Protection & Indemnity Club relating to P&I coverage, claims notifications, claims management, and defense of claims arising from the three incidents, made in anticipation of litigation and/or at the direction of counsel and protected by the attorney-client privilege, work product doctrine, and/or common interest privilege.
4. Internal Calderwood & Harkness LLP memoranda and work product. Internal memoranda, research, analyses, strategy documents, and other work product prepared by attorneys and staff at Calderwood & Harkness LLP relating to legal strategy, factual investigation, case assessment, expert retention, and litigation preparation in this matter.
5. Communications between counsel and retained experts. Communications between Calderwood & Harkness LLP and experts retained in anticipation of litigation, including Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS (Copenhagen, Denmark), a maritime engineering expert retained to provide opinions on the cause of the three mechanical failures at issue, and Dr. Constance Albright of Clearwater Economics LLC, an economic damages expert retained to provide opinions on the quantum of damages. Draft reports, preliminary anal