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CALDERWOOD & HARKNESS LLP One Liberty Plaza, 50th Floor New York, NY 10006

Telephone: (212) 555-7200 Facsimile: (212) 555-7201 www.calderwoodharkness.com

MEMORANDUM

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT

March 11, 2024

I. EXECUTIVE SUMMARY

The purpose of this memorandum is to provide Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") with an immediate summary and analysis of the decision issued by Justice Lorraine K. Chen of the New York County Supreme Court, Commercial Division, on March 8, 2024, ruling on Thalassa's motion to dismiss Counts III and V of the complaint filed by Northwind Maritime Corporation ("Northwind"). Thalassa's motion to dismiss was filed on December 15, 2023 and was fully briefed as of January 26, 2024.

The result is favorable. Justice Chen's decision granted Thalassa's motion in part. Specifically:

• Count V (Unjust Enrichment): Dismissed in its entirety and with prejudice. The Court held that Northwind's unjust enrichment claim is duplicative of and wholly subsumed by its breach of contract claims, given the existence of an undisputed, valid, and enforceable charter-party governing the parties' relationship with respect to the subject matter of the dispute. This eliminates a potentially expansive equitable claim and forecloses Northwind's ability to argue for damages beyond the charter-party's contractual framework — including, critically, any attempt to circumvent the liquidated damages cap under Clause 28 through equitable theories.

• Count III (Third-Party Shipper Claims Asserted as Charter-Party Damages): Dismissed in part. Of the three separate third-party shipper cargo claims originally asserted by Northwind as its own damages under Count III (totaling $5,634,400), the Court dismissed two claims (totaling approximately $3,800,000) on standing grounds, finding that Northwind had not yet paid or settled those claims and therefore had suffered no actual, cognizable loss. One claim (approximately $1,834,400) survived because Northwind demonstrated it had already indemnified the underlying shipper and thus sustained an actual loss potentially recoverable as consequential damages under the charter-party.

The net impact on Northwind's overall claimed damages is significant. The third-party shipper claims originally totaling $5,634,400 have been narrowed to approximately $1,834,400 — a reduction of approximately $3,800,000 in that category alone. The unjust enrichment claim, while it largely overlapped with the contract damages in dollar terms, has been eliminated as an alternative theory of recovery, thereby removing a pathway Northwind might have used to evade contractual limitations on its damages. On a rough basis, Northwind's maximum claimed damages exposure has been reduced from approximately $18,300,000 to approximately $14,500,000, subject to further analysis and the ongoing dispute over the Clause 28 liquidated damages cap.

Our recommendation is that Thalassa proceed with the discovery phase (January 2024 – August 2024) with enhanced focus on the remaining claims, while continuing to prepare its defenses on the liquidated damages cap interpretation, the latent defect defense (Incident 1), the charterer causation / contributory fault defense (Incident 2), the deviation defense regarding the Maputo call, and the Inter-Club Agreement bar to the surviving cargo-related claim. We also recommend that Thalassa begin positioning for a partial summary judgment motion targeting the Clause 28 cap interpretation issue and potentially the Maputo deviation claim, as discussed in Section VI below.

II. BACKGROUND AND PROCEDURAL HISTORY

A. The Litigation

Northwind Maritime Corporation filed its complaint in this action on October 2, 2023, in the Supreme Court of the State of New York, New York County, Commercial Division. The complaint asserts breach of charter-party and related claims arising from the 36-month NYPE 2015 time charter-party between Northwind (as charterer) and Thalassa (as disponent owner), bearing reference number NW-TSL-CP-2020-1203, which was executed on December 3, 2020.

The charter-party governs the employment of the M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,200 DWT, registered under the Liberian flag. The vessel is beneficially owned by Aegean Fortuna Shipholding Ltd., a single-purpose entity within the Thalassa group, which is also named as a defendant in this action. The charter-party commenced on January 15, 2021, with a daily hire rate of $14,750 per day. Over the full 36-month charter period, the total charter value was approximately $16,166,000.

Northwind's complaint asserts total claimed damages of $18,300,000 across multiple categories, including off-hire deductions, liquidated damages under Clause 28 of the charter-party, substitute charter costs, cargo damage claims, demurrage and dead freight, port and bunker costs, lost sub-charter profit, third-party shipper claims, and legal fees and expert costs. The complaint centers on three principal vessel incidents that occurred during the charter period, as well as an alleged wrongful deviation, each of which is addressed in greater detail in Section IV below.

Calderwood & Harkness LLP was engaged by Thalassa on October 16, 2023, following initial review of the complaint by TSL's in-house legal team. On November 17, 2023, we filed a Verified Answer and Counterclaim on behalf of Thalassa and Aegean Fortuna Shipholding Ltd. The Verified Answer denied Northwind's material allegations and raised affirmative defenses including, among others, the Clause 28 liquidated damages cap, latent defect, charterer causation and contributory fault, the Inter-Club Agreement, the Master's discretion defense for the alleged deviation, and failure to mitigate. The counterclaim seeks recovery of $1,620,000 in unpaid hire for the period from October 1 through December 31, 2022, representing 110 days at the charter rate of $14,750 per day, which Northwind withheld unilaterally during the final quarter of the charter period on the purported basis of its disputed off-hire and damages claims.

B. The Motion to Dismiss

On December 15, 2023, Thalassa filed the subject motion to dismiss, targeting two of the five counts in Northwind's complaint:

• Count III, in which Northwind asserts third-party shipper cargo claims totaling $5,634,400. This count encompasses three separate cargo claims brought by shippers against Northwind as charterer, which Northwind seeks to pass through to Thalassa as charter-party damages. Thalassa's motion argued, among other things, that Northwind lacked standing to assert claims it had not paid or settled, and that the Inter-Club Agreement barred recovery of such claims as between owner and charterer.

• Count V, in which Northwind asserts a claim for unjust enrichment. Thalassa's motion argued that this equitable claim is impermissible and duplicative where a valid and enforceable written agreement — the charter-party — governs the parties' dispute with respect to the precise subject matter at issue.

The motion was supported by a Memorandum of Law and the Declaration of Douglas Carmichael, with attached exhibits including the executed charter-party (Exhibit A), the three underlying shipper claim notices (Exhibits B through D), Northwind's correspondence regarding the claims (Exhibit E), and the relevant provisions of the Inter-Club Agreement (Exhibit F).

Northwind, represented by Hargrove, Delacroix & Stern LLP (lead partner Margaret Delacroix; senior associate Jason Trumbull), filed its opposition papers on January 12, 2024. Northwind's opposition argued that the unjust enrichment claim was properly pleaded in the alternative and that all three third-party shipper claims were recoverable as consequential damages under the charter-party regardless of whether Northwind had yet settled them, on the theory that Northwind's legal liability to the shippers constituted a present and cognizable injury.

Calderwood & Harkness filed its Reply Memorandum on January 26, 2024, reiterating that the unjust enrichment claim was impermissible under established New York law where a valid contract exists, and that Northwind's failure to pay or settle two of the three shipper claims precluded it from asserting those claims as its own damages.

No oral argument was held. Justice Chen rendered her decision on the papers on March 8, 2024. A copy of the full decision is being circulated under separate cover.

III. SUMMARY OF JUSTICE CHEN'S DECISION

A. Count V — Unjust Enrichment: DISMISSED

Holding. Justice Chen granted Thalassa's motion to dismiss Count V in its entirety and with prejudice.

Reasoning. In her opinion, Justice Chen held that Northwind's unjust enrichment claim is duplicative of and subsumed by its breach of contract claims. The Court observed that the charter-party — reference number NW-TSL-CP-2020-1203, executed December 3, 2020 — is a valid and enforceable written agreement that indisputably governs the parties' relationship with respect to the subject matter of this dispute. No party contests the existence, execution, or enforceability of the charter-party. Because the charter-party governs the precise matters at issue — including the vessel's performance, off-hire, cargo obligations, and the allocation of damages — Northwind cannot simultaneously maintain a quasi-contractual claim for unjust enrichment arising out of the same facts and circumstances.

Key Legal Principle Applied. Justice Chen applied the well-established principle under New York law that a cause of action for unjust enrichment does not lie where a valid and enforceable written agreement exists between the parties and governs the subject matter of the dispute. See Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987); Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572 (2005). The Court noted that this rule applies with particular force in the Commercial Division, where sophisticated commercial parties have voluntarily entered into a detailed written agreement that allocates rights, obligations, and remedies. Justice Chen cited the charter-party's detailed provisions regarding hire, off-hire, maintenance obligations, cargo responsibilities, and the liquidated damages cap under Clause 28 as further evidence that the parties intended their written agreement to serve as the exclusive framework for resolving disputes arising from the charter.

Impact on the Case. The dismissal of Count V is significant for several reasons. First, it eliminates a potentially expansive equitable claim that Northwind could have used to argue for damages beyond the charter-party's contractual framework. Unjust enrichment, as an equitable theory, is not subject to the same contractual limitations — including, critically, the liquidated damages cap under Clause 28 — that constrain Northwind's breach of contract claims. By dismissing this count, the Court has confined Northwind's recovery to the terms of the charter-party, which is precisely the result Thalassa sought.

Second, the dismissal with prejudice means that Northwind cannot replead this claim. Northwind's only avenue would be to seek leave to appeal, which we assess as unlikely to succeed given the settled state of the law on this point.

Damages Impact. While the unjust enrichment claim largely overlapped with Northwind's contract damages in nominal dollar terms (Northwind's opposition papers did not articulate a separate, independent measure of unjust enrichment damages), its dismissal forecloses Northwind's ability to seek quasi-contractual recovery as an alternative theory. This is particularly important because, had the claim survived, Northwind could have argued at trial that even if the charter-party capped its contractual damages, equity required a broader recovery. That argument is now unavailable to Northwind.

B. Count III — Third-Party Shipper Claims: NARROWED

Holding. Justice Chen granted Thalassa's motion to dismiss Count III in part and denied it in part.

What Was Dismissed. The Court dismissed Northwind's ability to recover two of the three underlying third-party shipper claims. These two claims, which together total approximately $3,800,000 of the $5,634,400 originally asserted under Count III, were dismissed on standing grounds. Justice Chen found that Northwind had not yet paid or settled those two third-party claims and therefore had not suffered any actual, out-of-pocket loss with respect to them. The Court held that the mere existence of pending claims by shippers against Northwind does not constitute an actual, cognizable injury sufficient to support a damages claim against Thalassa. As the Court stated: "A party seeking to recover damages must demonstrate that it has been actually injured. The prospect of future liability, however plausible, does not give rise to a present cause of action for damages."

Northwind had argued in its opposition that its legal exposure to the shippers constituted a present injury because the underlying claims were well-documented and Northwind's liability was, in its view, probable. Justice Chen rejected this argument, noting that Northwind's exposure remained contingent and unresolved, and that permitting recovery of unrealized, unresolved third-party claims would be speculative and premature at this stage of the litigation.

What Survived. One of the three shipper claims — the third claim, in the approximate amount of $1,834,400 — survived the motion to dismiss. Northwind demonstrated through documentary evidence submitted with its opposition papers that it had already indemnified the underlying shipper (a bulk commodity trader based in Singapore, whose identity is subject to a confidentiality agreement between Northwind and the shipper) and had made a payment of $1,834,400 in settlement of that shipper's cargo damage claim. Justice Chen held that because Northwind had actually paid the claim and thus sustained an actual, out-of-pocket loss, it had standing to assert that loss as a component of its damages against Thalassa.

Reasoning on the Surviving Claim. With respect to the surviving $1,834,400 claim, Justice Chen addressed Thalassa's additional arguments — including the Inter-Club Agreement defense and the charter-party's damages provisions — and held that whether such pass-through damages are ultimately recoverable under the charter-party is a factual and legal question more appropriately resolved on a fuller evidentiary record, not at the motion to dismiss stage. The Court noted that the applicability of the Inter-Club Agreement (ICA) as between Northwind and Thalassa, the allocation of fault for the underlying cargo damage, and the interpretation of the charter-party's consequential damages provisions are all issues that require factual development through discovery. The Court stated: "The motion to dismiss tests the legal sufficiency of the pleadings. Defendant's arguments concerning the Inter-Club Agreement and the charter-party's damages limitations raise meritorious issues that are better addressed at the summary judgment stage or at trial, upon a complete record."

Impact on the Case. The partial dismissal of Count III reduces the third-party shipper claim category from $5,634,400 to approximately $1,834,400 — a reduction of approximately $3,800,000 in that category. This is a substantial reduction in Northwind's claimed exposure and eliminates the two largest of the three shipper claims.

Remaining Risk. The surviving $1,834,400 claim will need to be addressed through discovery and potentially at summary judgment. As the Court noted, Thalassa's Inter-Club Agreement defense remains available, as do Thalassa's arguments regarding the charter-party's damages provisions and the allocation of fault for the underlying cargo damage. We intend to develop a full evidentiary record on these issues during the discovery period and will assess whether a summary judgment motion on this surviving claim is appropriate after expert discovery is complete.

IV. IMPACT ON OVERALL CASE AND DAMAGES EXPOSURE

A. Reduction in Claimed Damages

The March 8 ruling materially reduces Northwind's claimed damages exposure. The following summarizes the impact:

We note that the $14,500,000 revised figure is a rough estimate and remains subject to further analysis. In particular, this estimate does not account for the ongoing disputes over the Clause 28 liquidated damages cap, which, if resolved in Thalassa's favor, could reduce Northwind's maximum recoverable contract damages by a further significant amount. Under Thalassa's interpretation, the Clause 28 cap of $4,500,000 applies as a single aggregate cap for the entire charter period, not as a series of per-period caps as Northwind contends. This issue remains to be litigated and is, in our view, among the most consequential remaining legal questions in the case.

B. Remaining Claims Against Thalassa

The following table summarizes the categories of damages that remain in Northwind's complaint following the March 8 ruling:

Each of these remaining categories is subject to Thalassa's defenses, as discussed in the following subsection.

C. Thalassa's Remaining Defenses

The March 8 ruling does not diminish — and in certain respects strengthens — Thalassa's defenses to the remaining claims. The following defenses remain fully intact and available:

1. Clause 28 Liquidated Damages Cap. Thalassa maintains that the liquidated damages cap of $4,500,000 under Clause 28 applies as a single aggregate cap for the entire charter period. Northwind contends that the cap applies on a per-period or per-incident basis, which would effectively allow it to stack multiple $4,500,000 caps across separate claim periods. This is primarily a question of contract construction under New York law and, in our view, one of the strongest issues for disposition at summary judgment. The Court's willingness to engage with contractual interpretation issues at the pre-discovery stage (as demonstrated by its analysis of the charter-party in the Count V dismissal) is encouraging for a future summary judgment motion on this issue.

2. Latent Defect Defense — Incident 1. Incident 1 (March 12 – April 2, 2022) involved the failure of the vessel's turbocharger, which resulted in 22 off-hire days while the vessel underwent repairs at the port of Colombo. Thalassa maintains that the turbocharger failure was caused by a latent defect that could not have been discovered through the exercise of due diligence prior to the commencement of the charter. If established, this defense would excuse Thalassa from liability for the off-hire period and associated damages arising from Incident 1. Discovery will be critical in developing the factual record to support this defense, including the vessel's maintenance records, the turbocharger manufacturer's specifications and inspection reports, and the expert opinions of our retained maritime engineering expert.

3. Charterer Causation / Contributory Fault Defense — Incident 2. Incident 2 (July 8 – 29, 2022) involved a malfunction of the vessel's Ballast Water Treatment System (BWTS) and a subsequent boiler failure, resulting in 21 off-hire days. Thalassa's position is that the BWTS malfunction was caused by contaminated ballast water loaded at the direction of Northwind's agents and that the resulting corrosion and system failure are attributable to the charterer's actions. This defense goes directly to Northwind's largest single claim — the iron ore oxidation cargo damage claim of $3,420,000 — as well as to the off-hire deductions for the Incident 2 period. We are actively pursuing discovery on this issue, including requests for documents and communications between Northwind's operations team and its port agents at the time of the ballast water loading.

4. Incident 3 — Quantum Dispute. Incident 3 (November 15 – December 10, 2022) involved a cylinder liner failure, resulting in 25 off-hire days while the vessel was drydocked at the Keppel Verolme Shipyard in Rotterdam. Thalassa concedes that this incident constituted a maintenance failure giving rise to an off-hire period, but disputes the quantum of damages claimed by Northwind in connection with this incident. In particular, Thalassa disputes the duration of the off-hire period (contending that certain of the 25 days are attributable to charterer-requested inspections unrelated to the cylinder liner failure) and the reasonableness of various ancillary costs that Northwind has attributed to this incident.

5. Master's Discretion Defense — Maputo Deviation. Northwind alleges that the vessel deviated from its contractual voyage during a September 2022 transit by calling at the port of Maputo, Mozambique, resulting in delays and additional costs. Thalassa maintains that the Master exercised his discretion to alter the vessel's route based on prevailing weather conditions and routing advisories, as authorized under the charter-party and applicable maritime law. If the factual record developed through discovery supports this defense, it may be appropriate for disposition at summary judgment.

6. Inter-Club Agreement Bar. The Inter-Club Agreement (ICA) governs the allocation of liability for cargo claims as between owners and charterers under time charter-parties incorporating its terms. Thalassa maintains that the ICA applies to the surviving third-party shipper claim and that, under the ICA's allocation provisions, Northwind bears responsibility for the underlying cargo damage. This defense was preserved by the Court's March 8 ruling and will be developed through discovery and potentially raised at summary judgment.

7. Failure to Mitigate. Thalassa has asserted that Northwind failed to mitigate its damages in several respects, including by failing to timely arrange substitute tonnage following the off-hire events, by failing to negotiate reasonable settlements of the third-party shipper claims, and by incurring excessive ancillary costs. This defense applies across multiple damages categories and will be developed through discovery.

8. Counterclaim for Unpaid Hire. Thalassa's counterclaim for $1,620,000 in withheld hire (October 1 – December 31, 2022, 110 days at $14,750/day) remains pending and is unaffected by the March 8 ruling. Northwind withheld this hire unilaterally during the final quarter of the charter period on the purported basis of its disputed off-hire and damages claims. Thalassa contends that Northwind had no contractual right to withhold hire pending resolution of those disputes and that the withheld hire is recoverable in full.

V. IMPLICATIONS FOR DISCOVERY STRATEGY

A. Discovery Period

The discovery period in this matter runs from January 2024 through August 2024, as set forth in the Court's Preliminary Conference Order entered on January 8, 2024. Thalassa's first set of interrogatories and requests for production of documents were served on Northwind on January 22, 2024. Northwind's responses and initial document production are due on March 22, 2024 (as extended by stipulation). Calderwood & Harkness served a supplemental document request on February 9, 2024, directed at certain categories of documents identified during our review of the complaint and motion papers.

B. Adjusted discovery Priorities

In light of the March 8 ruling, we recommend the following adjustments and priority areas for the remaining discovery period:

Surviving Third-Party Shipper Claim (~$1,834,400). This claim warrants focused and immediate attention. We need to obtain detailed information regarding Northwind's indemnification payment to the underlying shipper, including: (i) the timing of the payment; (ii) the precise amount paid; (iii) the terms of any settlement or indemnification agreement between Northwind and the shipper; (iv) the underlying facts giving rise to the shipper's cargo claim, including the nature and extent of the cargo damage, the vessel's condition at the time, and the identity of the cargo surveyor; and (v) the basis for Northwind's assertion that the loss is attributable to Thalassa under the charter-party. This information is essential both for assessing the merits of the surviving claim and for developing Thalassa's Inter-Club Agreement defense. We will serve targeted interrogatories and document requests on this topic within the next two weeks.

Eastbourne Bulk Carriers Sub-Charter Documents. Northwind claims lost sub-charter profit based on an alleged sub-charter with Eastbourne Bulk Carriers Ltd. at a daily rate of $17,200, yielding a claimed loss of $166,600 over 68 off-hire days. To date, Northwind has been deficient in its production of documents relating to this sub-charter. Northwind's initial document production included only a summary term sheet but did not include the executed sub-charter, fixture correspondence, hire payment records, or communications between Northwind and Eastbourne. We have raised this deficiency with Northwind's counsel and will, if necessary, bring a discovery motion to compel production. These documents are critical to evaluating the validity of the lost sub-charter profit claim and any associated failure-to-mitigate issues.

Upcoming Depositions. We are currently scheduling and preparing for the following depositions, which are critical to the development of Thalassa's defenses:

The depositions of Mr. Stavridis and Captain Giannopoulos are of particular importance. Mr. Stavridis will be deposed as Thalassa's designee, and we will prepare him thoroughly in advance of his April 22, 2024 deposition. Captain Giannopoulos will be a key witness on the Maputo deviation, the vessel's condition during each of the three incidents, and the operational decisions made during the charter period. We anticipate that Northwind will also seek to depose these individuals, and we should coordinate accordingly.

Cargo Damage Evidence — Iron Ore Oxidation Claim ($3,420,000). This is the single largest remaining damages claim and relates to Incident 2. We need to obtain and analyze: (i) the cargo survey reports prepared at the discharge port; (ii) pre-loading and post-loading cargo condition reports; (iii) the vessel's BWTS operational logs and maintenance records for the period surrounding Incident 2; (iv) communications between Northwind's port agents and the vessel regarding ballast water loading; and (v) any independent investigation reports regarding the cause of the BWTS malfunction. This evidence is central to Thalassa's charterer causation defense and must be developed in detail during the discovery period.

C. Expert Engagement

Calderwood & Harkness has retained two experts on behalf of Thalassa, each of whom is actively engaged in their respective analyses:

Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS, Copenhagen, has been retained to provide expert opinions on maritime engineering issues, including the cause of the turbocharger failure (Incident 1), the cause and consequences of the BWTS malfunction and boiler failure (Incident 2), the cylinder liner failure (Incident 3), and the vessel's overall maintenance and condition during the charter period. Dr. Sørensen's expert report is due on August 5, 2024, in accordance with the Court's scheduling order.

Dr. Constance Albright of Clearwater Economics LLC, Washington, DC, has been retained to provide expert opinions on damages, including the reasonableness of Northwind's claimed damages in each category, the applicability and interpretation of the Clause 28 liquidated damages cap, and the calculation of Thalassa's counterclaim. Dr. Albright's expert report is also due on August 5, 2024.

Rebuttal expert reports are due on September 9, 2024, following receipt of Northwind's expert reports. We understand that Northwind has retained Captain Julian Blackmore of Blackmore Maritime Advisory Ltd. as its maritime operations expert and Dr. Rajesh Anand of Pinnacle Valuation Partners LLP as its damages expert. We will provide updated case posture information to Dr. Sørensen and Dr. Albright promptly, including the March 8 decision and its implications for the scope of damages at issue.

VI. SUMMARY JUDGMENT CONSIDERATIONS (FORWARD-LOOKING)

The March 8 ruling positions Thalassa favorably for a potential partial summary judgment motion on certain key issues. We highlight two areas in particular:

1. Clause 28 Liquidated Damages Cap Interpretation. The most consequential remaining legal question in this case is the interpretation of the Clause 28 liquidated damages cap. Thalassa maintains that the $4,500,000 cap applies as a single aggregate cap for the entire charter period; Northwind contends that the cap applies on a per-period or per-incident basis. This is primarily a question of contract construction under New York law, turning on the language of the charter-party and the parties' intent as expressed therein. The Court's March 8 decision — in which Justice Chen engaged in a detailed analysis of the charter-party's provisions in the context of the unjust enrichment claim and demonstrated a willingness to enforce contractual boundaries on damages theories — is an encouraging indicator of the Court's receptivity to contract interpretation arguments. We believe this issue is well-suited for summary judgment and recommend that it be the centerpiece of a partial summary judgment motion.

2. Maputo Deviation Defense. If discovery reveals undisputed facts supporting the Master's discretion defense with respect to the September 2022 Maputo call — for example, contemporaneous weather reports, routing advisories, and the Master's log entries demonstrating that the deviation was justified by weather and routing conditions — this claim may also be appropriate for disposition at summary judgment.

Timing. Under the Court's scheduling order, the summary judgment motion is to be filed after the close of discovery (August 2024) and the completion of expert reports. We are targeting a filing date of approximately September 2024 for the partial summary judgment motion. We note for completeness that, based on subsequent developments, the motion was ultimately filed on September 20, 2024, and remains pending as of the date of this memorandum.

VII. COORDINATION WITH LOCAL COUNSEL, INSURERS, AND LENDER

A. Greek Local Counsel

Konstantinou & Rizos Law Offices (Dimitrios Konstantinou, lead partner, Athens) serves as Thalassa's Greek local counsel in connection with this matter. We have informed Mr. Konstantinou of the March 8 ruling. At this time, no immediate Greek corporate or regulatory implications arise from the ruling. We will continue to coordinate with Konstantinou & Rizos as necessary, particularly if any issues arise regarding the enforcement of a future judgment or the Greek corporate governance implications of the litigation.

B. Insurance. Oceanus Mutual Protection & Indemnity Club. Thalassa's P&I coverage is provided by the Oceanus Mutual Protection & Indemnity Club under Policy No. OCE-P&I-2020-TSL-0047. The claims handler is David Okafor. We recommend that Mr. Okafor be promptly updated on the favorable ruling and the corresponding reduction in Northwind's claimed damages exposure. The reduction of approximately $3,800,000 in the third-party shipper claims category and the elimination of the unjust enrichment theory may favorably impact the Club's assessment of potential contribution to defense costs and any eventual settlement or judgment. We will prepare a brief notification memorandum for the Club and circulate it to TSL for review before transmission.

Fortis Marine Underwriters Ltd. Thalassa's hull and machinery (H&M) coverage is provided by Fortis Marine Underwriters Ltd. under Policy No. FMU-HM-2020-4892. The responsible underwriter is Catherine Allsworth. No immediate action is required with respect to the H&M coverage in connection with this ruling, but Fortis should be notified as part of the routine claim file update process. We suggest that this notification be included in the next regular update to Fortis, unless TSL prefers that a separate notification be sent.

C. Lender. Thalassa's primary lending facility is provided by Meridian Capital Bank AG, with Lukas Brandt (Hamburg) serving as the relationship manager. Section 8.14 of the Credit Agreement dated April 1, 2019 between Thalassa and Meridian requires notification of material litigation settlements exceeding $5,000,000. The March 8 ruling is not a settlement and does not trigger the contractual notification obligation under Section 8.14. However, we note that Meridian may appreciate being kept generally informed of favorable developments in the litigation as a matter of relationship management. We defer to TSL's judgment on whether an informal communication to Mr. Brandt is appropriate at this time.

VIII. NEXT STEPS AND ACTION ITEMS

Based on the foregoing analysis, we recommend the following next steps and action items:

1. Circulate the Full Text of Justice Chen's Decision. Calderwood & Harkness will circulate the full text of Justice Chen's March 8, 2024 decision to TSL management (Mr. Stavridis, Ms. Papadimitriou, and Mr. Theodorakis), together with this memorandum and a brief cover note summarizing the key takeaways. Target: by March 12, 2024.

2. Review Remaining Claims and Update Internal Case Valuation. Calderwood & Harkness will conduct a detailed review of Northwind's remaining claims in light of the ruling and update our internal case valuation memorandum, including revised best-case, worst-case, and expected-value assessments. We will circulate the updated valuation to the TSL litigation team for discussion. Target: by March 22, 2024.

3. Notify Oceanus P&I Club. Calderwood & Harkness will prepare a notification memorandum for the Oceanus Mutual Protection & Indemnity Club regarding the favorable ruling and the reduced damages exposure, for TSL's review and approval before transmission to the Club. Target: by March 15, 2024.

4. Continue discovery — Address Document Production Deficiencies. Calderwood & Harkness will follow up with Northwind's counsel on the deficient document production regarding the Eastbourne Bulk Carriers sub-charter and will serve targeted discovery requests regarding the surviving third-party shipper claim. If necessary, we will bring a motion to compel before Justice Chen. We will also continue preparing for the upcoming depositions identified in Section V.B above.

5. Begin Deposition Preparation for Alexandros Stavridis. Mr. Stavridis's deposition is scheduled for April 22, 2024. Calderwood & Harkness will prepare a detailed deposition preparation memorandum and circulate it to Mr. Stavridis and TSL's legal team for review. Target for memorandum circulation: by April 15, 2024. We anticipate scheduling one or two preparation sessions with Mr. Stavridis in advance of the deposition.

6. Monitor for Potential Interlocutory Appeal by Northwind. While the dismissal of Count V (with prejudice) is unlikely to be appealed given the well-settled state of the law, Northwind may consider seeking leave to appeal the partial dismissal of Count III on standing grounds, particularly as to the two dismissed shipper claims. We will monitor the applicable procedural deadlines for Northwind to seek leave to appeal and will assess the likelihood and potential impact of any such appeal. We will promptly notify TSL if Northwind files any notice of appeal or motion for leave.

7. Coordinate with Experts. Calderwood & Harkness will provide updated case posture information to Dr. Sørensen and Dr. Albright, including the March 8 decision and its implications for the scope of damages and remaining claims. This will ensure that our experts' ongoing analyses reflect the current state of the litigation.

IX. CONCLUSION

The March 8, 2024 decision by Justice Chen is a meaningful and favorable development for Thalassa. The ruling eliminates the unjust enrichment claim in its entirety and with prejudice, thereby confining Northwind's recovery to the contractual framework established by the charter-party and foreclosing any attempt to circumvent the charter-party's limitations — including the critical Clause 28 liquidated damages cap — through equitable theories. The ruling also reduces the third-party shipper claim category by approximately $3,800,000, narrowing Northwind's overall claimed damages exposure from approximately $18,300,000 to approximately $14,500,000.

The decision confirms the Court's focus on the charter-party as the governing instrument and its willingness to enforce contractual boundaries on damages theories. This approach augurs well for Thalassa's forthcoming arguments on the Clause 28 liquidated damages cap and other contractual interpretation issues.

Calderwood & Harkness recommends that Thalassa proceed aggressively with discovery, with particular attention to the areas identified in Section V above, while simultaneously positioning for a partial summary judgment motion on the Clause 28 cap interpretation and, if factually supported, the Maputo deviation claim. We believe the case is on a favorable trajectory and that the March 8 decision materially strengthens Thalassa's overall litigation posture.

For reference, total fees and costs incurred in this matter to date remain within the budget parameters discussed at the outset of the engagement, and we will provide a detailed billing update in connection with the March billing cycle. We will continue to manage this matter efficiently and to keep TSL's leadership apprised of all material developments.

Please do not hesitate to contact us with any questions or to discuss any aspect of this memorandum.

CALDERWOOD & HARKNESS LLP

By: ________

Douglas Carmichael Partner Direct: (212) 555-7214 dcarmichael@calderwoodharkness.com

By: ________

Carlos Espinoza Senior Associate Direct: (212) 555-7239 cespinoza@calderwoodharkness.com

Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, NY 10006 Telephone: (212) 555-7200 Facsimile: (212) 555-7201

CONFIDENTIALITY NOTICE: This memorandum is a privileged and confidential attorney-client communication and attorney work product. It is intended solely for the use of the addressee(s) identified above and should not be disclosed, distributed, or forwarded to any third party without the prior written consent of Calderwood & Harkness LLP. If you have received this memorandum in error, please notify the sender immediately and destroy all copies. Any unauthorized disclosure, distribution, or use of this memorandum or its contents is strictly prohibited and may constitute a waiver of applicable privileges.

TO:	Markos Theodorakis, General Counsel, Thalassa Shipping & Logistics SA
FROM:	Douglas Carmichael, Partner; Carlos Espinoza, Senior Associate — Calderwood & Harkness LLP
RE:	Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division (Part 49, Hon. Lorraine K. Chen, J.S.C.)
SUBJECT:	Decision on Thalassa's Motion to Dismiss Counts III and V — Issued March 8, 2024
C&H MATTER NO.:	1044-00006
COPIES:	Alexandros Stavridis (Chairman and CEO, TSL); Elena Papadimitriou (CFO, TSL); Francesca Morano (Billing Partner, C&H); Hannah Brinkley (Associate, C&H)
Category	Pre-Ruling	Post-Ruling	Net Change
Count V — Unjust Enrichment (alternative equitable theory)	Alternative theory (overlapping $ amount)	Dismissed with prejudice	Equitable pathway eliminated
Count III — Third-Party Shipper Claims	$5,634,400	~$1,834,400	(~$3,800,000)
All Other Counts	~$12,665,600	~$12,665,600 (unchanged)	—
Total Maximum Claimed Exposure	~$18,300,000	~$14,500,000	(~$3,800,000)
Claim Category	Approximate Claimed Amount	Notes
Off-hire deductions (68 days × $14,750/day)	$1,003,000	Covering Incidents 1, 2, and 3
Liquidated damages under Clause 28	$4,500,000	Subject to cap interpretation dispute
Substitute charter premium (72 days at differential of $6,550/day)	$471,600	$21,300 substitute rate vs. $14,750 charter rate
Cargo damage — iron ore oxidation, Incident 2	$3,420,000	BWTS malfunction / boiler failure
Demurrage and dead freight — Qingdao laycan miss	$1,230,000	Arising from Incident 1 delay
Additional port and bunker costs	$875,400	Various incremental costs claimed
Lost sub-charter profit (Eastbourne Bulk Carriers sub-charter at $17,200/day, 68 off-hire days)	$166,600	Differential of $2,450/day × 68 days
Surviving third-party shipper claim	~$1,834,400	Per Count III, post-ruling
Legal fees and expert costs claimed as damages	$999,000	Recoverable only if contract so provides
Total Remaining Claimed Exposure	~$14,500,000	Rough estimate
Deponent	Role / Relevance	Anticipated Date
Alexandros Stavridis	Chairman and CEO, TSL — overall charter management and commercial decisions	April 22, 2024 (confirmed)
Capt. Nikolaos Giannopoulos	Master of M/V Aegean Fortuna during charter period — vessel operations, Incidents 1–3, Maputo deviation	May 2024 (anticipated)

Viktor Lindgren	Northwind's Head of Fleet Operations — charterer's operational decisions, BWTS contamination, sub-charter arrangements	May 2024 (anticipated)
Sandra Chow	Northwind's cargo operations manager — cargo handling, iron ore oxidation claim, shipper claims	June 2024 (anticipated)
Chief Engineer Petros Vlahos	Chief Engineer of M/V Aegean Fortuna — vessel maintenance, turbocharger failure, cylinder liner failure, BWTS conditions	June 2024 (anticipated)

CALDERWOOD & HARKNESS LLP One Liberty Plaza, 50th Floor New York, NY 10006
Telephone: (212) 555-7200 Facsimile: (212) 555-7201 www.calderwoodharkness.com
MEMORANDUM
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT
March 11, 2024
I. EXECUTIVE SUMMARY
The purpose of this memorandum is to provide Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") with an immediate summary and analysis of the decision issued by Justice Lorraine K. Chen of the New York County Supreme Court, Commercial Division, on March 8, 2024, ruling on Thalassa's motion to dismiss Counts III and V of the complaint filed by Northwind Maritime Corporation ("Northwind"). Thalassa's motion to dismiss was filed on December 15, 2023 and was fully briefed as of January 26, 2024.
The result is favorable. Justice Chen's decision granted Thalassa's motion in part. Specifically:
• Count V (Unjust Enrichment): Dismissed in its entirety and with prejudice. The Court held that Northwind's unjust enrichment claim is duplicative of and wholly subsumed by its breach of contract claims, given the existence of an undisputed, valid, and enforceable charter-party governing the parties' relationship with respect to the subject matter of the dispute. This eliminates a potentially expansive equitable claim and forecloses Northwind's ability to argue for damages beyond the charter-party's contractual framework — including, critically, any attempt to circumvent the liquidated damages cap under Clause 28 through equitable theories.
• Count III (Third-Party Shipper Claims Asserted as Charter-Party Damages): Dismissed in part. Of the three separate third-party shipper cargo claims originally asserted by Northwind as its own damages under Count III (totaling $5,634,400), the Court dismissed two claims (totaling approximately $3,800,000) on standing grounds, finding that Northwind had not yet paid or settled those claims and therefore had suffered no actual, cognizable loss. One claim (approximately $1,834,400) survived because Northwind demonstrated it had already indemnified the underlying shipper and thus sustained an actual loss potentially recoverable as consequential damages under the charter-party.
The net impact on Northwind's overall claimed damages is significant. The third-party shipper claims originally totaling $5,634,400 have been narrowed to approximately $1,834,400 — a reduction of approximately $3,800,000 in that category alone. The unjust enrichment claim, while it largely overlapped with the contract damages in dollar terms, has been eliminated as an alternative theory of recovery, thereby removing a pathway Northwind might have used to evade contractual limitations on its damages. On a rough basis, Northwind's maximum claimed damages exposure has been reduced from approximately $18,300,000 to approximately $14,500,000, subject to further analysis and the ongoing dispute over the Clause 28 liquidated damages cap.
Our recommendation is that Thalassa proceed with the discovery phase (January 2024 – August 2024) with enhanced focus on the remaining claims, while continuing to prepare its defenses on the liquidated damages cap interpretation, the latent defect defense (Incident 1), the charterer causation / contributory fault defense (Incident 2), the deviation defense regarding the Maputo call, and the Inter-Club Agreement bar to the surviving cargo-related claim. We also recommend that Thalassa begin positioning for a partial summary judgment motion targeting the Clause 28 cap interpretation issue and potentially the Maputo deviation claim, as discussed in Section VI below.
II. BACKGROUND AND PROCEDURAL HISTORY
A. The Litigation
Northwind Maritime Corporation filed its complaint in this action on October 2, 2023, in the Supreme Court of the State of New York, New York County, Commercial Division. The complaint asserts breach of charter-party and related claims arising from the 36-month NYPE 2015 time charter-party between Northwind (as charterer) and Thalassa (as disponent owner), bearing reference number NW-TSL-CP-2020-1203, which was executed on December 3, 2020.
The charter-party governs the employment of the M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,200 DWT, registered under the Liberian flag. The vessel is beneficially owned by Aegean Fortuna Shipholding Ltd., a single-purpose entity within the Thalassa group, which is also named as a defendant in this action. The charter-party commenced on January 15, 2021, with a daily hire rate of $14,750 per day. Over the full 36-month charter period, the total charter value was approximately $16,166,000.
Northwind's complaint asserts total claimed damages of $18,300,000 across multiple categories, including off-hire deductions, liquidated damages under Clause 28 of the charter-party, substitute charter costs, cargo damage claims, demurrage and dead freight, port and bunker costs, lost sub-charter profit, third-party shipper claims, and legal fees and expert costs. The complaint centers on three principal vessel incidents that occurred during the charter period, as well as an alleged wrongful deviation, each of which is addressed in greater detail in Section IV below.
Calderwood & Harkness LLP was engaged by Thalassa on October 16, 2023, following initial review of the complaint by TSL's in-house legal team. On November 17, 2023, we filed a Verified Answer and Counterclaim on behalf of Thalassa and Aegean Fortuna Shipholding Ltd. The Verified Answer denied Northwind's material allegations and raised affirmative defenses including, among others, the Clause 28 liquidated damages cap, latent defect, charterer causation and contributory fault, the Inter-Club Agreement, the Master's discretion defense for the alleged deviation, and failure to mitigate. The counterclaim seeks recovery of $1,620,000 in unpaid hire for the period from October 1 through December 31, 2022, representing 110 days at the charter rate of $14,750 per day, which Northwind withheld unilaterally during the final quarter of the charter period on the purported basis of its disputed off-hire and damages claims.
B. The Motion to Dismiss
On December 15, 2023, Thalassa filed the subject motion to dismiss, targeting two of the five counts in Northwind's complaint:
• Count III, in which Northwind asserts third-party shipper cargo claims totaling $5,634,400. This count encompasses three separate cargo claims brought by shippers against Northwind as charterer, which Northwind seeks to pass through to Thalassa as charter-party damages. Thalassa's motion argued, among other things, that Northwind lacked standing to assert claims it had not paid or settled, and that the Inter-Club Agreement barred recovery of such claims as between owner and charterer.
• Count V, in which Northwind asserts a claim for unjust enrichment. Thalassa's motion argued that this equitable claim is impermissible and duplicative where a valid and enforceable written agreement — the charter-party — governs the parties' dispute with respect to the precise subject matter at issue.
The motion was supported by a Memorandum of Law and the Declaration of Douglas Carmichael, with attached exhibits including the executed charter-party (Exhibit A), the three underlying shipper claim notices (Exhibits B through D), Northwind's correspondence regarding the claims (Exhibit E), and the relevant provisions of the Inter-Club Agreement (Exhibit F).
Northwind, represented by Hargrove, Delacroix & Stern LLP (lead partner Margaret Delacroix; senior associate Jason Trumbull), filed its opposition papers on January 12, 2024. Northwind's opposition argued that the unjust enrichment claim was properly pleaded in the alternative and that all three third-party shipper claims were recoverable as consequential damages under the charter-party regardless of whether Northwind had yet settled them, on the theory that Northwind's legal liability to the shippers constituted a present and cognizable injury.
Calderwood & Harkness filed its Reply Memorandum on January 26, 2024, reiterating that the unjust enrichment claim was impermissible under established New York law where a valid contract exists, and that Northwind's failure to pay or settle two of the three shipper claims precluded it from asserting those claims as its own damages.
No oral argument was held. Justice Chen rendered her decision on the papers on March 8, 2024. A copy of the full decision is being circulated under separate cover.
III. SUMMARY OF JUSTICE CHEN'S DECISION
A. Count V — Unjust Enrichment: DISMISSED
Holding. Justice Chen granted Thalassa's motion to dismiss Count V in its entirety and with prejudice.
Reasoning. In her opinion, Justice Chen held that Northwind's unjust enrichment claim is duplicative of and subsumed by its breach of contract claims. The Court observed that the charter-party — reference number NW-TSL-CP-2020-1203, executed December 3, 2020 — is a valid and enforceable written agreement that indisputably governs the parties' relationship with respect to the subject matter of this dispute. No party contests the existence, execution, or enforceability of the charter-party. Because the charter-party governs the precise matters at issue — including the vessel's performance, off-hire, cargo obligations, and the allocation of damages — Northwind cannot simultaneously maintain a quasi-contractual claim for unjust enrichment arising out of the same facts and circumstances.
Key Legal Principle Applied. Justice Chen applied the well-established principle under New York law that a cause of action for unjust enrichment does not lie where a valid and enforceable written agreement exists between the parties and governs the subject matter of the dispute. See Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987); Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572 (2005). The Court noted that this rule applies with particular force in the Commercial Division, where sophisticated commercial parties have voluntarily entered into a detailed written agreement that allocates rights, obligations, and remedies. Justice Chen cited the charter-party's detailed provisions regarding hire, off-hire, maintenance obligations, cargo responsibilities, and the liquidated damages cap under Clause 28 as further evidence that the parties intended their written agreement to serve as the exclusive framework for resolving disputes arising from the charter.
Impact on the Case. The dismissal of Count V is significant for several reasons. First, it eliminates a potentially expansive equitable claim that Northwind could have used to argue for damages beyond the charter-party's contractual framework. Unjust enrichment, as an equitable theory, is not subject to the same contractual limitations — including, critically, the liquidated damages cap under Clause 28 — that constrain Northwind's breach of contract claims. By dismissing this count, the Court has confined Northwind's recovery to the terms of the charter-party, which is precisely the result Thalassa sought.
Second, the dismissal with prejudice means that Northwind cannot replead this claim. Northwind's only avenue would be to seek leave to appeal, which we assess as unlikely to succeed given the settled state of the law on this point.
Damages Impact. While the unjust enrichment claim largely overlapped with Northwind's contract damages in nominal dollar terms (Northwind's opposition papers did not articulate a separate, independent measure of unjust enrichment damages), its dismissal forecloses Northwind's ability to seek quasi-contractual recovery as an alternative theory. This is particularly important because, had the claim survived, Northwind could have argued at trial that even if the charter-party capped its contractual damages, equity required a broader recovery. That argument is now unavailable to Northwind.
B. Count III — Third-Party Shipper Claims: NARROWED
Holding. Justice Chen granted Thalassa's motion to dismiss Count III in part and denied it in part.
What Was Dismissed. The Court dismissed Northwind's ability to recover two of the three underlying third-party shipper claims. These two claims, which together total approximately $3,800,000 of the $5,634,400 originally asserted under Count III, were dismissed on standing grounds. Justice Chen found that Northwind had not yet paid or settled those two third-party claims and therefore had not suffered any actual, out-of-pocket loss with respect to them. The Court held that the mere existence of pending claims by shippers against Northwind does not constitute an actual, cognizable injury sufficient to support a damages claim against Thalassa. As the Court stated: "A party seeking to recover damages must demonstrate that it has been actually injured. The prospect of future liability, however plausible, does not give rise to a present cause of action for damages."
Northwind had argued in its opposition that its legal exposure to the shippers constituted a present injury because the underlying claims were well-documented and Northwind's liability was, in its view, probable. Justice Chen rejected this argument, noting that Northwind's exposure remained contingent and unresolved, and that permitting recovery of unrealized, unresolved third-party claims would be speculative and premature at this stage of the litigation.
What Survived. One of the three shipper claims — the third claim, in the approximate amount of $1,834,400 — survived the motion to dismiss. Northwind demonstrated through documentary evidence submitted with its opposition papers that it had already indemnified the underlying shipper (a bulk commodity trader based in Singapore, whose identity is subject to a confidentiality agreement between Northwind and the shipper) and had made a payment of $1,834,400 in settlement of that shipper's cargo damage claim. Justice Chen held that because Northwind had actually paid the claim and thus sustained an actual, out-of-pocket loss, it had standing to assert that loss as a component of its damages against Thalassa.
Reasoning on the Surviving Claim. With respect to the surviving $1,834,400 claim, Justice Chen addressed Thalassa's additional arguments — including the Inter-Club Agreement defense and the charter-party's damages provisions — and held that whether such pass-through damages are ultimately recoverable under the charter-party is a factual and legal question more appropriately resolved on a fuller evidentiary record, not at the motion to dismiss stage. The Court noted that the applicability of the Inter-Club Agreement (ICA) as between Northwind and Thalassa, the allocation of fault for the underlying cargo damage, and the interpretation of the charter-party's consequential damages provisions are all issues that require factual development through discovery. The Court stated: "The motion to dismiss tests the legal sufficiency of the pleadings. Defendant's arguments concerning the Inter-Club Agreement and the charter-party's damages limitations raise meritorious issues that are better addressed at the summary judgment stage or at trial, upon a complete record."
Impact on the Case. The partial dismissal of Count III reduces the third-party shipper claim category from $5,634,400 to approximately $1,834,400 — a reduction of approximately $3,800,000 in that category. This is a substantial reduction in Northwind's claimed exposure and eliminates the two largest of the three shipper claims.
Remaining Risk. The surviving $1,834,400 claim will need to be addressed through discovery and potentially at summary judgment. As the Court noted, Thalassa's Inter-Club Agreement defense remains available, as do Thalassa's arguments regarding the charter-party's damages provisions and the allocation of fault for the underlying cargo damage. We intend to develop a full evidentiary record on these issues during the discovery period and will assess whether a summary judgment motion on this surviving claim is appropriate after expert discovery is complete.
IV. IMPACT ON OVERALL CASE AND DAMAGES EXPOSURE
A. Reduction in Claimed Damages
The March 8 ruling materially reduces Northwind's claimed damages exposure. The following summarizes the impact:
We note that the $14,500,000 revised figure is a rough estimate and remains subject to further analysis. In particular, this estimate does not account for the ongoing disputes over the Clause 28 liquidated damages cap, which, if resolved in Thalassa's favor, could reduce Northwind's maximum recoverable contract damages by a further significant amount. Under Thalassa's interpretation, the Clause 28 cap of $4,500,000 applies as a single aggregate cap for the entire charter period, not as a series of per-period caps as Northwind contends. This issue remains to be litigated and is, in our view, among the most consequential remaining legal questions in the case.
B. Remaining Claims Against Thalassa
The following table summarizes the categories of damages that remain in Northwind's complaint following the March 8 ruling:
Each of these remaining categories is subject to Thalassa's defenses, as discussed in the following subsection.
C. Thalassa's Remaining Defenses
The March 8 ruling does not diminish — and in certain respects strengthens — Thalassa's defenses to the remaining claims. The following defenses remain fully intact and available:
1. Clause 28 Liquidated Damages Cap. Thalassa maintains that the liquidated damages cap of $4,500,000 under Clause 28 applies as a single aggregate cap for the entire charter period. Northwind contends that the cap applies on a per-period or per-incident basis, which would effectively allow it to stack multiple $4,500,000 caps across separate claim periods. This is primarily a question of contract construction under New York law and, in our view, one of the strongest issues for disposition at summary judgment. The Court's willingness to engage with contractual interpretation issues at the pre-discovery stage (as demonstrated by its analysis of the charter-party in the Count V dismissal) is encouraging for a future summary judgment motion on this issue.
2. Latent Defect Defense — Incident 1. Incident 1 (March 12 – April 2, 2022) involved the failure of the vessel's turbocharger, which resulted in 22 off-hire days while the vessel underwent repairs at the port of Colombo. Thalassa maintains that the turbocharger failure was caused by a latent defect that could not have been discovered through the exercise of due diligence prior to the commencement of the charter. If established, this defense would excuse Thalassa from liability for the off-hire period and associated damages arising from Incident 1. Discovery will be critical in developing the factual record to support this defense, including the vessel's maintenance records, the turbocharger manufacturer's specifications and inspection reports, and the expert opinions of our retained maritime engineering expert.
3. Charterer Causation / Contributory Fault Defense — Incident 2. Incident 2 (July 8 – 29, 2022) involved a malfunction of the vessel's Ballast Water Treatment System (BWTS) and a subsequent boiler failure, resulting in 21 off-hire days. Thalassa's position is that the BWTS malfunction was caused by contaminated ballast water loaded at the direction of Northwind's agents and that the resulting corrosion and system failure are attributable to the charterer's actions. This defense goes directly to Northwind's largest single claim — the iron ore oxidation cargo damage claim of $3,420,000 — as well as to the off-hire deductions for the Incident 2 period. We are actively pursuing discovery on this issue, including requests for documents and communications between Northwind's operations team and its port agents at the time of the ballast water loading.
4. Incident 3 — Quantum Dispute. Incident 3 (November 15 – December 10, 2022) involved a cylinder liner failure, resulting in 25 off-hire days while the vessel was drydocked at the Keppel Verolme Shipyard in Rotterdam. Thalassa concedes that this incident constituted a maintenance failure giving rise to an off-hire period, but disputes the quantum of damages claimed by Northwind in connection with this incident. In particular, Thalassa disputes the duration of the off-hire period (contending that certain of the 25 days are attributable to charterer-requested inspections unrelated to the cylinder liner failure) and the reasonableness of various ancillary costs that Northwind has attributed to this incident.
5. Master's Discretion Defense — Maputo Deviation. Northwind alleges that the vessel deviated from its contractual voyage during a September 2022 transit by calling at the port of Maputo, Mozambique, resulting in delays and additional costs. Thalassa maintains that the Master exercised his discretion to alter the vessel's route based on prevailing weather conditions and routing advisories, as authorized under the charter-party and applicable maritime law. If the factual record developed through discovery supports this defense, it may be appropriate for disposition at summary judgment.
6. Inter-Club Agreement Bar. The Inter-Club Agreement (ICA) governs the allocation of liability for cargo claims as between owners and charterers under time charter-parties incorporating its terms. Thalassa maintains that the ICA applies to the surviving third-party shipper claim and that, under the ICA's allocation provisions, Northwind bears responsibility for the underlying cargo damage. This defense was preserved by the Court's March 8 ruling and will be developed through discovery and potentially raised at summary judgment.
7. Failure to Mitigate. Thalassa has asserted that Northwind failed to mitigate its damages in several respects, including by failing to timely arrange substitute tonnage following the off-hire events, by failing to negotiate reasonable settlements of the third-party shipper claims, and by incurring excessive ancillary costs. This defense applies across multiple damages categories and will be developed through discovery.
8. Counterclaim for Unpaid Hire. Thalassa's counterclaim for $1,620,000 in withheld hire (October 1 – December 31, 2022, 110 days at $14,750/day) remains pending and is unaffected by the March 8 ruling. Northwind withheld this hire unilaterally during the final quarter of the charter period on the purported basis of its disputed off-hire and damages claims. Thalassa contends that Northwind had no contractual right to withhold hire pending resolution of those disputes and that the withheld hire is recoverable in full.
V. IMPLICATIONS FOR DISCOVERY STRATEGY
A. Discovery Period
The discovery period in this matter runs from January 2024 through August 2024, as set forth in the Court's Preliminary Conference Order entered on January 8, 2024. Thalassa's first set of interrogatories and requests for production of documents were served on Northwind on January 22, 2024. Northwind's responses and initial document production are due on March 22, 2024 (as extended by stipulation). Calderwood & Harkness served a supplemental document request on February 9, 2024, directed at certain categories of documents identified during our review of the complaint and motion papers.
B. Adjusted discovery Priorities
In light of the March 8 ruling, we recommend the following adjustments and priority areas for the remaining discovery period:
Surviving Third-Party Shipper Claim (~$1,834,400). This claim warrants focused and immediate attention. We need to obtain detailed information regarding Northwind's indemnification payment to the underlying shipper, including: (i) the timing of the payment; (ii) the precise amount paid; (iii) the terms of any settlement or indemnification agreement between Northwind and the shipper; (iv) the underlying facts giving rise to the shipper's cargo claim, including the nature and extent of the cargo damage, the vessel's condition at the time, and the identity of the cargo surveyor; and (v) the basis for Northwind's assertion that the loss is attributable to Thalassa under the charter-party. This information is essential both for assessing the merits of the surviving claim and for developing Thalassa's Inter-Club Agreement defense. We will serve targeted interrogatories and document requests on this topic within the next two weeks.
Eastbourne Bulk Carriers Sub-Charter Documents. Northwind claims lost sub-charter profit based on an alleged sub-charter with Eastbourne Bulk Carriers Ltd. at a daily rate of $17,200, yielding a claimed loss of $166,600 over 68 off-hire days. To date, Northwind has been deficient in its production of documents relating to this sub-charter. Northwind's initial document production included only a summary term sheet but did not include the executed sub-charter, fixture correspondence, hire payment records, or communications between Northwind and Eastbourne. We have raised this deficiency with Northwind's counsel and will, if necessary, bring a discovery motion to compel production. These documents are critical to evaluating the validity of the lost sub-charter profit claim and any associated failure-to-mitigate issues.
Upcoming Depositions. We are currently scheduling and preparing for the following depositions, which are critical to the development of Thalassa's defenses:
The depositions of Mr. Stavridis and Captain Giannopoulos are of particular importance. Mr. Stavridis will be deposed as Thalassa's designee, and we will prepare him thoroughly in advance of his April 22, 2024 deposition. Captain Giannopoulos will be a key witness on the Maputo deviation, the vessel's condition during each of the three incidents, and the operational decisions made during the charter period. We anticipate that Northwind will also seek to depose these individuals, and we should coordinate accordingly.
Cargo Damage Evidence — Iron Ore Oxidation Claim ($3,420,000). This is the single largest remaining damages claim and relates to Incident 2. We need to obtain and analyze: (i) the cargo survey reports prepared at the discharge port; (ii) pre-loading and post-loading cargo condition reports; (iii) the vessel's BWTS operational logs and maintenance records for the period surrounding Incident 2; (iv) communications between Northwind's port agents and the vessel regarding ballast water loading; and (v) any independent investigation reports regarding the cause of the BWTS malfunction. This evidence is central to Thalassa's charterer causation defense and must be developed in detail during the discovery period.
C. Expert Engagement
Calderwood & Harkness has retained two experts on behalf of Thalassa, each of whom is actively engaged in their respective analyses:
Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS, Copenhagen, has been retained to provide expert opinions on maritime engineering issues, including the cause of the turbocharger failure (Incident 1), the cause and consequences of the BWTS malfunction and boiler failure (Incident 2), the cylinder liner failure (Incident 3), and the vessel's overall maintenance and condition during the charter period. Dr. Sørensen's expert report is due on August 5, 2024, in accordance with the Court's scheduling order.
Dr. Constance Albright of Clearwater Economics LLC, Washington, DC, has been retained to provide expert opinions on damages, including the reasonableness of Northwind's claimed damages in each category, the applicability and interpretation of the Clause 28 liquidated damages cap, and the calculation of Thalassa's counterclaim. Dr. Albright's expert report is also due on August 5, 2024.
Rebuttal expert reports are due on September 9, 2024, following receipt of Northwind's expert reports. We understand that Northwind has retained Captain Julian Blackmore of Blackmore Maritime Advisory Ltd. as its maritime operations expert and Dr. Rajesh Anand of Pinnacle Valuation Partners LLP as its damages expert. We will provide updated case posture information to Dr. Sørensen and Dr. Albright promptly, including the March 8 decision and its implications for the scope of damages at issue.
VI. SUMMARY JUDGMENT CONSIDERATIONS (FORWARD-LOOKING)
The March 8 ruling positions Thalassa favorably for a potential partial summary judgment motion on certain key issues. We highlight two areas in particular:
1. Clause 28 Liquidated Damages Cap Interpretation. The most consequential remaining legal question in this case is the interpretation of the Clause 28 liquidated damages cap. Thalassa maintains that the $4,500,000 cap applies as a single aggregate cap for the entire charter period; Northwind contends that the cap applies on a per-period or per-incident basis. This is primarily a question of contract construction under New York law, turning on the language of the charter-party and the parties' intent as expressed therein. The Court's March 8 decision — in which Justice Chen engaged in a detailed analysis of the charter-party's provisions in the context of the unjust enrichment claim and demonstrated a willingness to enforce contractual boundaries on damages theories — is an encouraging indicator of the Court's receptivity to contract interpretation arguments. We believe this issue is well-suited for summary judgment and recommend that it be the centerpiece of a partial summary judgment motion.
2. Maputo Deviation Defense. If discovery reveals undisputed facts supporting the Master's discretion defense with respect to the September 2022 Maputo call — for example, contemporaneous weather reports, routing advisories, and the Master's log entries demonstrating that the deviation was justified by weather and routing conditions — this claim may also be appropriate for disposition at summary judgment.
Timing. Under the Court's scheduling order, the summary judgment motion is to be filed after the close of discovery (August 2024) and the completion of expert reports. We are targeting a filing date of approximately September 2024 for the partial summary judgment motion. We note for completeness that, based on subsequent developments, the motion was ultimately filed on September 20, 2024, and remains pending as of the date of this memorandum.
VII. COORDINATION WITH LOCAL COUNSEL, INSURERS, AND LENDER
A. Greek Local Counsel
Konstantinou & Rizos Law Offices (Dimitrios Konstantinou, lead partner, Athens) serves as Thalassa's Greek local counsel in connection with this matter. We have informed Mr. Konstantinou of the March 8 ruling. At this time, no immediate Greek corporate or regulatory implications arise from the ruling. We will continue to coordinate with Konstantinou & Rizos as necessary, particularly if any issues arise regarding the enforcement of a future judgment or the Greek corporate governance implications of the litigation.
B. Insurance. Oceanus Mutual Protection & Indemnity Club. Thalassa's P&I coverage is provided by the Oceanus Mutual Protection & Indemnity Club under Policy No. OCE-P&I-2020-TSL-0047. The claims handler is David Okafor. We recommend that Mr. Okafor be promptly updated on the favorable ruling and the corresponding reduction in Northwind's claimed damages exposure. The reduction of approximately $3,800,000 in the third-party shipper claims category and the elimination of the unjust enrichment theory may favorably impact the Club's assessment of potential contribution to defense costs and any eventual settlement or judgment. We will prepare a brief notification memorandum for the Club and circulate it to TSL for review before transmission.
Fortis Marine Underwriters Ltd. Thalassa's hull and machinery (H&M) coverage is provided by Fortis Marine Underwriters Ltd. under Policy No. FMU-HM-2020-4892. The responsible underwriter is Catherine Allsworth. No immediate action is required with respect to the H&M coverage in connection with this ruling, but Fortis should be notified as part of the routine claim file update process. We suggest that this notification be included in the next regular update to Fortis, unless TSL prefers that a separate notification be sent.
C. Lender. Thalassa's primary lending facility is provided by Meridian Capital Bank AG, with Lukas Brandt (Hamburg) serving as the relationship manager. Section 8.14 of the Credit Agreement dated April 1, 2019 between Thalassa and Meridian requires notification of material litigation settlements exceeding $5,000,000. The March 8 ruling is not a settlement and does not trigger the contractual notification obligation under Section 8.14. However, we note that Meridian may appreciate being kept generally informed of favorable developments in the litigation as a matter of relationship management. We defer to TSL's judgment on whether an informal communication to Mr. Brandt is appropriate at this time.
VIII. NEXT STEPS AND ACTION ITEMS
Based on the foregoing analysis, we recommend the following next steps and action items:
1. Circulate the Full Text of Justice Chen's Decision. Calderwood & Harkness will circulate the full text of Justice Chen's March 8, 2024 decision to TSL management (Mr. Stavridis, Ms. Papadimitriou, and Mr. Theodorakis), together with this memorandum and a brief cover note summarizing the key takeaways. Target: by March 12, 2024.
2. Review Remaining Claims and Update Internal Case Valuation. Calderwood & Harkness will conduct a detailed review of Northwind's remaining claims in light of the ruling and update our internal case valuation memorandum, including revised best-case, worst-case, and expected-value assessments. We will circulate the updated valuation to the TSL litigation team for discussion. Target: by March 22, 2024.
3. Notify Oceanus P&I Club. Calderwood & Harkness will prepare a notification memorandum for the Oceanus Mutual Protection & Indemnity Club regarding the favorable ruling and the reduced damages exposure, for TSL's review and approval before transmission to the Club. Target: by March 15, 2024.
4. Continue discovery — Address Document Production Deficiencies. Calderwood & Harkness will follow up with Northwind's counsel on the deficient document production regarding the Eastbourne Bulk Carriers sub-charter and will serve targeted discovery requests regarding the surviving third-party shipper claim. If necessary, we will bring a motion to compel before Justice Chen. We will also continue preparing for the upcoming depositions identified in Section V.B above.
5. Begin Deposition Preparation for Alexandros Stavridis. Mr. Stavridis's deposition is scheduled for April 22, 2024. Calderwood & Harkness will prepare a detailed deposition preparation memorandum and circulate it to Mr. Stavridis and TSL's legal team for review. Target for memorandum circulation: by April 15, 2024. We anticipate scheduling one or two preparation sessions with Mr. Stavridis in advance of the deposition.
6. Monitor for Potential Interlocutory Appeal by Northwind. While the dismissal of Count V (with prejudice) is unlikely to be appealed given the well-settled state of the law, Northwind may consider seeking leave to appeal the partial dismissal of Count III on standing grounds, particularly as to the two dismissed shipper claims. We will monitor the applicable procedural deadlines for Northwind to seek leave to appeal and will assess the likelihood and potential impact of any such appeal. We will promptly notify TSL if Northwind files any notice of appeal or motion for leave.
7. Coordinate with Experts. Calderwood & Harkness will provide updated case posture information to Dr. Sørensen and Dr. Albright, including the March 8 decision and its implications for the scope of damages and remaining claims. This will ensure that our experts' ongoing analyses reflect the current state of the litigation.
IX. CONCLUSION
The March 8, 2024 decision by Justice Chen is a meaningful and favorable development for Thalassa. The ruling eliminates the unjust enrichment claim in its entirety and with prejudice, thereby confining Northwind's recovery to the contractual framework established by the charter-party and foreclosing any attempt to circumvent the charter-party's limitations — including the critical Clause 28 liquidated damages cap — through equitable theories. The ruling also reduces the third-party shipper claim category by approximately $3,800,000, narrowing Northwind's overall claimed damages exposure from approximately $18,300,000 to approximately $14,500,000.
The decision confirms the Court's focus on the charter-party as the governing instrument and its willingness to enforce contractual boundaries on damages theories. This approach augurs well for Thalassa's forthcoming arguments on the Clause 28 liquidated damages cap and other contractual interpretation issues.
Calderwood & Harkness recommends that Thalassa proceed aggressively with discovery, with particular attention to the areas identified in Section V above, while simultaneously positioning for a partial summary judgment motion on the Clause 28 cap interpretation and, if factually supported, the Maputo deviation claim. We believe the case is on a favorable trajectory and that the March 8 decision materially strengthens Thalassa's overall litigation posture.
For reference, total fees and costs incurred in this matter to date remain within the budget parameters discussed at the outset of the engagement, and we will provide a detailed billing update in connection with the March billing cycle. We will continue to manage this matter efficiently and to keep TSL's leadership apprised of all material developments.
Please do not hesitate to contact us with any questions or to discuss any aspect of this memorandum.
CALDERWOOD & HARKNESS LLP
By: ________
Douglas Carmichael Partner Direct: (212) 555-7214 dcarmichael@calderwoodharkness.com
By: ________
Carlos Espinoza Senior Associate Direct: (212) 555-7239 cespinoza@calderwoodharkness.com
Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, NY 10006 Telephone: (212) 555-7200 Facsimile: (212) 555-7201
CONFIDENTIALITY NOTICE: This memorandum is a privileged and confidential attorney-client communication and attorney work product. It is intended solely for the use of the addressee(s) identified above and should not be disclosed, distributed, or forwarded to any third party without the prior written consent of Calderwood & Harkness LLP. If you have received this memorandum in error, please notify the sender immediately and destroy all copies. Any unauthorized disclosure, distribution, or use of this memorandum or its contents is strictly prohibited and may constitute a waiver of applicable privileges.
TO: | Markos Theodorakis, General Counsel, Thalassa Shipping & Logistics SA
FROM: | Douglas Carmichael, Partner; Carlos Espinoza, Senior Associate — Calderwood & Harkness LLP
RE: | Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division (Part 49, Hon. Lorraine K. Chen, J.S.C.)
SUBJECT: | Decision on Thalassa's Motion to Dismiss Counts III and V — Issued March 8, 2024
C&H MATTER NO.: | 1044-00006
COPIES: | Alexandros Stavridis (Chairman and CEO, TSL); Elena Papadimitriou (CFO, TSL); Francesca Morano (Billing Partner, C&H); Hannah Brinkley (Associate, C&H)
Category | Pre-Ruling | Post-Ruling | Net Change
Count V — Unjust Enrichment (alternative equitable theory) | Alternative theory (overlapping $ amount) | Dismissed with prejudice | Equitable pathway eliminated
Count III — Third-Party Shipper Claims | $5,634,400 | ~$1,834,400 | (~$3,800,000)
All Other Counts | ~$12,665,600 | ~$12,665,600 (unchanged) | —
Total Maximum Claimed Exposure | ~$18,300,000 | ~$14,500,000 | (~$3,800,000)
Claim Category | Approximate Claimed Amount | Notes
Off-hire deductions (68 days × $14,750/day) | $1,003,000 | Covering Incidents 1, 2, and 3
Liquidated damages under Clause 28 | $4,500,000 | Subject to cap interpretation dispute
Substitute charter premium (72 days at differential of $6,550/day) | $471,600 | $21,300 substitute rate vs. $14,750 charter rate
Cargo damage — iron ore oxidation, Incident 2 | $3,420,000 | BWTS malfunction / boiler failure
Demurrage and dead freight — Qingdao laycan miss | $1,230,000 | Arising from Incident 1 delay
Additional port and bunker costs | $875,400 | Various incremental costs claimed
Lost sub-charter profit (Eastbourne Bulk Carriers sub-charter at $17,200/day, 68 off-hire days) | $166,600 | Differential of $2,450/day × 68 days
Surviving third-party shipper claim | ~$1,834,400 | Per Count III, post-ruling
Legal fees and expert costs claimed as damages | $999,000 | Recoverable only if contract so provides
Total Remaining Claimed Exposure | ~$14,500,000 | Rough estimate
Deponent | Role / Relevance | Anticipated Date
Alexandros Stavridis | Chairman and CEO, TSL — overall charter management and commercial decisions | April 22, 2024 (confirmed)
Capt. Nikolaos Giannopoulos | Master of M/V Aegean Fortuna during charter period — vessel operations, Incidents 1–3, Maputo deviation | May 2024 (anticipated)
Viktor Lindgren | Northwind's Head of Fleet Operations — charterer's operational decisions, BWTS contamination, sub-charter arrangements | May 2024 (anticipated)
Sandra Chow | Northwind's cargo operations manager — cargo handling, iron ore oxidation claim, shipper claims | June 2024 (anticipated)
Chief Engineer Petros Vlahos | Chief Engineer of M/V Aegean Fortuna — vessel maintenance, turbocharger failure, cylinder liner failure, BWTS conditions | June 2024 (anticipated)

CALDERWOOD & HARKNESS LLP One Liberty Plaza, 50th Floor New York, NY 10006

MEMORANDUM

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT

I. EXECUTIVE SUMMARY

II. BACKGROUND AND PROCEDURAL HISTORY

III. SUMMARY OF JUSTICE CHEN'S DECISION

IV. IMPACT ON OVERALL CASE AND DAMAGES EXPOSURE

V. IMPLICATIONS FOR DISCOVERY STRATEGY

VI. SUMMARY JUDGMENT CONSIDERATIONS (FORWARD-LOOKING)

VII. COORDINATION WITH LOCAL COUNSEL, INSURERS, AND LENDER

VIII. NEXT STEPS AND ACTION ITEMS

IX. CONCLUSION

CALDERWOOD & HARKNESS LLP

Record

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