1044-00006 · Hargrove, Delacroix & Stern LLP · Engagement

client-update-memo-sj-strategy.docx DOCUMENT Litigation

24 / 75 ← → ✕

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP Counsellors at Law One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 554-7000 Facsimile: (212) 554-7001 www.calderwoodharkness.com

MEMORANDUM

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This memorandum and its contents are protected from disclosure by the attorney-client privilege and the work-product doctrine. This communication is intended solely for the use of the addressees identified below. Any dissemination, distribution, or copying of this communication by any person other than the intended recipients is strictly prohibited.

Date: September 5, 2024

To: Alexandros Stavridis, Chairman and Chief Executive Officer, Thalassa Shipping & Logistics SA Markos Theodorakis, General Counsel, Thalassa Shipping & Logistics SA Elena Papadimitriou, Chief Financial Officer, Thalassa Shipping & Logistics SA

From: Douglas Carmichael, Responsible Partner Francesca Morano, Billing Partner Carlos Espinoza, Lead Associate

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, Justice Lorraine K. Chen, J.S.C.) — Recommendation for Motion for Partial Summary Judgment

C&H Matter No.: 1044-00006

I. EXECUTIVE SUMMARY

This memorandum sets forth Calderwood & Harkness LLP's ("C&H") recommendation that Thalassa Shipping & Logistics SA ("TSL" or the "Company") authorize the filing of a motion for partial summary judgment on two discrete and well-defined issues in advance of any trial in the above-captioned action. The purpose of this memorandum is to explain the legal and factual basis for the motion, assess the likelihood of success on each proposed ground, address the strategic implications for settlement and trial, and provide TSL's management with sufficient information to authorize the filing.

The two proposed grounds for summary judgment are as follows:

1. Clause 28 Liquidated Damages Cap Interpretation. TSL will seek a ruling that the $4,500,000 liquidated damages cap set forth in Clause 28 of the charter-party dated December 3, 2020 (the "Charter-Party") applies as a single aggregate maximum for all liquidated damages claims under the Charter-Party, rather than as a per-incident cap that resets with each separate "period of breach." This is a pure question of contract interpretation under New York law, well suited for summary adjudication.

2. Dismissal of the Deviation Claim (September 2022 Maputo Call). TSL will seek dismissal of Northwind Maritime Corporation's ("Northwind") claim that TSL improperly directed the M/V Aegean Fortuna to deviate from her planned Durban-to-Qingdao voyage to call at Maputo, Mozambique, in September 2022. The undisputed factual record — including contemporaneous voyage logs, weather data, and deposition testimony — establishes that the Maputo call was a reasonable routing decision within the Master's discretion, not a commercial deviation.

C&H recommends filing on both grounds. If granted, the motion would target approximately $10.8 million of Northwind's total $18.3 million claim. Specifically, the motion would clarify the liquidated damages framework (thereby constraining or eliminating Northwind's ability to argue for damages in excess of the single $4,500,000 cap), and it would eliminate the entirety of the $1,230,000 deviation-related demurrage and dead freight claim, together with associated port and bunker costs of approximately $875,400 attributable to the deviation theory.

We propose a targeted filing date of September 20, 2024, which is fifteen days from the date of this memorandum. This date allows sufficient time for preparation of the motion papers following receipt of TSL's authorization, while remaining well within the procedural calendar. Discovery in this matter closed in August 2024. Expert reports have been served by both sides — TSL's expert reports were served on August 5, 2024, and Northwind's expert reports were served on August 19, 2024. Rebuttal expert reports are due September 9, 2024. The next scheduled court appearance is to be set in consultation with Justice Chen's chambers for the purpose of summary judgment argument.

Beyond its direct impact on the damages framework, the motion carries significant strategic value. It will position TSL favorably in advance of any mediation or settlement discussions that may be ordered by the court or pursued by the parties. Justice Chen has, in other matters before the Commercial Division, encouraged or directed parties to mediate following summary judgment briefing. A strong pending motion — or, better still, a favorable ruling on one or both grounds — would materially strengthen TSL's negotiating position and could facilitate a resolution of this matter on terms acceptable to the Company.

We request that TSL management confirm its authorization to proceed by September 10, 2024, to allow sufficient preparation time. The balance of this memorandum sets forth our analysis in detail.

II. PROCEDURAL BACKGROUND AND CURRENT STATUS

A. Case History Summary

Northwind 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 asserted claims against TSL and its wholly-owned subsidiary, Aegean Fortuna Shipholding Ltd. ("AFSL"), arising out of the Charter-Party governing the time charter of the M/V Aegean Fortuna, a 2012-built 82,000 DWT Kamsarmax bulk carrier. TSL retained C&H on October 16, 2023, following an initial consultation with Markos Theodorakis and a conflicts review.

On November 17, 2023, C&H filed TSL's Answer and Counterclaim on behalf of both defendants. The Answer denied Northwind's principal allegations of breach of the Charter-Party maintenance and seaworthiness obligations, contested the deviation claim, and raised affirmative defenses including, among others, contractual limitation of liability, comparative fault, and failure to mitigate damages. The Counterclaim asserted a claim for $1,620,000 in unpaid hire for the period from October 1, 2022 through December 31, 2022, representing approximately 110 days at the contractual daily hire rate of $14,750 per day. Northwind filed its answer to the counterclaim on December 6, 2023.

On December 15, 2023, C&H filed a pre-answer motion to dismiss Counts III and V of the complaint on behalf of TSL. Count III alleged that TSL was directly liable to Northwind for claims asserted by third-party shippers of cargo transported aboard the M/V Aegean Fortuna during the charter period. Count V alleged unjust enrichment. By decision and order dated March 8, 2024, Justice Chen granted the motion in part: Count V (unjust enrichment) was dismissed in its entirety on the ground that the existence of the Charter-Party precluded quasi-contractual relief, and Count III was narrowed to exclude claims by shippers with whom Northwind had no direct contractual relationship and who had not assigned their claims. The March 8, 2024 ruling was discussed in detail in our prior client update memorandum dated March 11, 2024.

discovery was conducted between January 2024 and August 2024. The discovery period was extensive and included the production and review of approximately 47,000 documents (totaling over 380,000 pages), the exchange of interrogatory responses, and the completion of eight fact depositions. The key depositions are summarized below:

• Alexandros Stavridis (Chairman and CEO, TSL) — deposed April 22, 2024, in New York. Mr. Stavridis testified regarding TSL's corporate structure, the negotiation and execution of the Charter-Party, and TSL's maintenance and operational practices. His testimony was well-prepared and consistent with TSL's positions.

• Captain Nikolaos Giannopoulos (Master, M/V Aegean Fortuna) — deposed May 10, 2024, in Piraeus, Greece (via stipulated international deposition protocol). Capt. Giannopoulos provided critical testimony regarding the September 2022 Maputo routing decision, weather conditions in the Mozambique Channel, and the vessel's operational status during the three off-hire incidents.

• Viktor Lindgren (Senior Vice President, Commercial Operations, Northwind) — deposed May 30, 2024, in New York. Lindgren was Northwind's designated corporate representative on several notice categories. His testimony contained significant concessions regarding the deviation claim, as discussed in Section IV.B below.

• Sandra Chow (Vice President, Technical Operations, Northwind) — deposed June 14, 2024, in New York. Chow testified regarding Northwind's inspections of the vessel and its communications with TSL regarding maintenance issues.

• Chief Engineer Petros Vlahos (M/V Aegean Fortuna) — deposed June 28, 2024, in Piraeus, Greece. Vlahos provided testimony regarding the mechanical failures giving rise to the three off-hire incidents, maintenance records, and the vessel's class status.

• Three additional fact witnesses were deposed in July 2024, including Northwind's operations coordinator who authored the speculative email regarding the Maputo call and two TSL fleet management personnel.

B. Expert Reports

Both parties have retained expert witnesses and served expert reports in accordance with the discovery schedule established by Justice Chen's preliminary conference order.

TSL's experts served their reports on August 5, 2024:

• Dr. Henrik Sørensen, Nordic Maritime Consulting Group ApS, Copenhagen, Denmark — maritime engineering expert. Dr. Sørensen's report addresses the technical causes of the three off-hire incidents, the reasonableness of TSL's maintenance practices, the latent defect defense as to Incident 1, and the routing analysis for the September 2022 Maputo call. His report is thorough, well-supported by contemporaneous maintenance records and class survey data, and provides strong support for TSL's positions on both proposed summary judgment grounds.

• Dr. Constance Albright, Clearwater Economics LLC, Washington, D.C. — damages and economic analysis expert. Dr. Albright's report addresses the proper interpretation and application of the Clause 28 liquidated damages formula and cap, the mathematical implications of the competing cap interpretations, and the quantification of Northwind's claimed damages. Her report concludes that Northwind's damages, properly calculated, are significantly lower than the $18.3 million claimed.

Northwind's experts served their reports on August 19, 2024:

• Captain Julian Blackmore (Ret.), Blackmore Maritime Advisory Ltd., London, United Kingdom — maritime operations expert. Capt. Blackmore opines on TSL's alleged failures to maintain the vessel in seaworthy condition and characterizes the Maputo call as an unauthorized commercial deviation. His report, however, does not address weather data in detail and relies heavily on the speculative email discussed below.

• Dr. Rajesh Anand, Pinnacle Valuation Partners LLP, New York — damages expert. Dr. Anand's report quantifies Northwind's claimed damages at $18.3 million and adopts the per-period interpretation of the Clause 28 cap, though his report does not provide a detailed textual analysis of the cap language.

Rebuttal expert reports are due September 9, 2024. Both Dr. Sørensen and Dr. Albright are preparing rebuttal reports. We will incorporate any relevant material from the rebuttal reports, as well as from Northwind's rebuttal reports, into the summary judgment motion papers.

C. Discovery Record on the Two Proposed Issues

The discovery record on the two proposed summary judgment grounds is particularly well developed.

With respect to Clause 28 interpretation, the relevant facts are entirely contained within the four corners of the Charter-Party itself. The Charter-Party is based on the NYPE 2015 form, as amended by the parties, and was executed on December 3, 2020 (Reference No. NW-TSL-CP-2020-1203). The Clause 28 language at issue is clear and unambiguous, and its interpretation does not require resort to extrinsic evidence. This makes the issue particularly well-suited for summary adjudication. There is no genuine dispute of material fact — the only question is the legal interpretation of agreed-upon contract language.

With respect to the deviation claim, the factual record involves deposition testimony, contemporaneous vessel logs, and weather data, but the material facts are substantially undisputed. As discussed in detail in Section IV below, Northwind's own designated corporate representative acknowledged under cross-examination that he lacked personal knowledge of the weather conditions and did not protest the Maputo call contemporaneously. The voyage logs and weather data produced in discovery corroborate TSL's account. While the court will need to examine a factual record (rather than solely a contract), the undisputed nature of the key facts makes this issue a strong candidate for summary judgment.

III. ISSUE ONE: LIQUIDATED DAMAGES CAP INTERPRETATION UNDER CLAUSE 28

A. The Clause 28 Dispute Explained

The first proposed ground for partial summary judgment concerns the proper interpretation of the liquidated damages provision set forth in Clause 28 of the Charter-Party. This provision is central to the damages framework in this litigation and has been a point of contention between the parties since the outset.

Clause 28 of the Charter-Party provides, in relevant part:

"In the event of Owner's material breach of its maintenance and seaworthiness obligations under Clauses 2 and 6 hereof, Charterer shall be entitled to recover liquidated damages in an amount equal to one hundred and fifty percent (150%) of the aggregate off-hire days attributable to such breach, multiplied by the daily hire rate then in effect, subject to a maximum aggregate cap of United States Dollars Four Million Five Hundred Thousand (US$4,500,000) for any single continuous period of breach."

The dispute centers on the meaning of the phrase "for any single continuous period of breach." The parties have adopted diametrically opposed interpretations:

Northwind's position is that the cap applies separately to each "period of breach." Under this interpretation, each of the three off-hire incidents giving rise to Northwind's claims constitutes a distinct "continuous period of breach," and each carries its own independent $4,500,000 cap. While Northwind's current claimed liquidated damages total $4,500,000 in the aggregate — which happens to equal the amount of a single cap — Northwind has expressly reserved the right to argue at trial for higher recovery under the per-period interpretation. If Northwind were to prevail on the per-period interpretation, the theoretical maximum liquidated damages exposure across three incidents would be $13,500,000 (three separate caps of $4,500,000 each), though Northwind has not claimed that full amount.

TSL's position — which C&H believes is correct and well-supported by the contract language — is that the phrase "for any single continuous period of breach" means the $4,500,000 cap applies once to the entire charter period. It is a single aggregate maximum for all liquidated damages claims under the Charter-Party, regardless of the number of individual incidents or off-hire periods. Under this interpretation, the cap functions as an overall ceiling on TSL's liquidated damages exposure.

The practical significance of this interpretive dispute extends beyond the current claim amounts. Even though Northwind's current claimed liquidated damages are $4,500,000 — an amount that would be fully covered under either interpretation — the per-period interpretation, if adopted, would fundamentally alter the damages framework in ways that affect the overall case. It would embolden Northwind to argue for additional liquidated damages at trial, it would affect the way the court instructs a jury (if the case reaches trial), and it would increase TSL's settlement exposure. Conversely, a ruling in TSL's favor would definitively cap the liquidated damages component at $4,500,000 regardless of how many incidents are at issue, simplifying the damages analysis and strengthening TSL's position.

B. Factual Record Supporting Summary Judgment

The factual record on this issue is, in the most important sense, complete and undisputed: the relevant "facts" are the words of Clause 28 itself.

The Clause 28 language is unambiguous on its face. The phrase "for any single continuous period of breach" contains two critical modifiers — "any" and "single" — that, together, indicate a cap that applies once and encompasses whatever breach period or periods may arise. The word "any" is universally understood under New York law to mean "every" or "all." The word "single" reinforces that the cap applies to one — and only one — period, i.e., the totality of the breach exposure. Read together, the phrase "for any single continuous period of breach" most naturally means: "with respect to the entirety of any breach period (however long), the cap is $4,500,000."

The Charter-Party was negotiated at arm's length between sophisticated commercial parties. TSL is a global shipping and logistics enterprise with approximately $612 million in annual revenue and a fleet of 34 vessels. Northwind is one of the largest charterers in the dry bulk market, with approximately $1.2 billion in annual revenue. Both parties were represented by experienced maritime counsel during the Charter-Party negotiations. The Charter-Party was based on the widely used NYPE 2015 form but was extensively customized, reflecting a detailed negotiation process. Clause 28 was a rider clause — i.e., it was specifically drafted and added by the parties, not a standard-form provision. Courts applying New York law give particular weight to negotiated terms in sophisticated commercial agreements.

No extrinsic evidence is needed. Because the Clause 28 language is unambiguous, the court should resolve this issue as a pure question of contract interpretation without resort to parol evidence. There is no need to examine drafting history, negotiation correspondence, or the parties' course of dealing. This makes the issue ideally suited for summary judgment — the court has everything it needs on the face of the contract.

Dr. Albright's expert report provides supporting economic analysis. Dr. Albright's report, served on August 5, 2024, analyzed the Clause 28 liquidated damages formula in detail. She applied the formula to the undisputed off-hire data across the three incidents and calculated the total liquidated damages as follows:

As Dr. Albright's analysis demonstrates, the actual liquidated damages calculated under the Clause 28 formula total $1,504,500 — well within a single $4,500,000 cap. Under the single-cap interpretation, Northwind's recovery is limited to $1,504,500 (or, at most, $4,500,000 if additional breach periods were found). Under the per-period interpretation, however, the theoretical exposure increases because each incident carries its own $4,500,000 cap, creating the possibility that Northwind could argue for damages far in excess of $1,504,500 per incident if it can identify additional off-hire days or recalculate the formula. Eliminating this interpretive ambiguity through a ruling in TSL's favor would provide clarity and materially reduce TSL's exposure.

The three incidents are summarized as follows:

• Incident 1 (March 12 – April 2, 2022; 22 days off-hire): Failure of the main engine turbocharger, resulting in reduced power and necessitating repairs at Kobe, Japan. TSL contends this was a latent defect not discoverable through the exercise of due diligence.

• Incident 2 (July 8 – July 29, 2022; 21 days off-hire): Failure of the ballast water treatment system ("BWTS") and related boiler malfunction, requiring repairs at Singapore. TSL contends that the BWTS failure was attributable in part to Northwind's instructions regarding ballast water exchange protocols.

• Incident 3 (November 15 – December 10, 2022; 25 days off-hire): Cylinder liner failure in the main engine, requiring drydocking at Zhoushan, China. TSL contends this was caused by fuel quality issues for which Northwind bears responsibility under the Charter-Party's fuel-supply provisions.

C. Legal Standard and Analysis

Under New York law, the interpretation of an unambiguous contract is a question of law for the court, properly resolved on a motion for summary judgment. See W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 162 (1990) ("When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole."); Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). The court should not look to extrinsic evidence to create an ambiguity where the contract language is clear. See Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 (2004).

Enforceability of Liquidated Damages Clauses. As a threshold matter, liquidated damages clauses are enforceable under New York law where two conditions are met: (a) the amount stipulated must be a reasonable estimate of the anticipated harm from the breach, and (b) actual damages from the breach must be difficult to calculate at the time the contract is made. See Northpoint Holdings v. Purdy Corp., 41 N.Y.2d 354, 357 (1977); JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373, 380 (2005). Neither party has challenged the enforceability of the Clause 28 liquidated damages provision in this action, and there is no basis for such a challenge. As set forth in C&H's internal research memorandum dated November 5, 2023, prepared by Associate Hannah Brinkley, the $4,500,000 cap bears a reasonable relationship to the anticipated harm from maintenance-related off-hire in the context of a charter of this value and duration, and actual off-hire damages are inherently difficult to calculate at the time of contracting due to variable market conditions, freight rates, and cargo schedules. Accordingly, the liquidated damages clause is enforceable, and the sole question is its interpretation.

Contract Interpretation Canons. Several well-established canons of New York contract interpretation support TSL's reading of Clause 28:

First, courts must give effect to all terms and avoid interpretations that render any contractual language superfluous or meaningless. See Two Guys from Harrison-N.Y., Inc. v. S.F.R. Realty Associates, 63 N.Y.2d 396, 403 (1984). The word "single" in "for any single continuous period of breach" would be rendered superfluous under Northwind's per-period interpretation. If the parties intended the cap to apply to each separate breach period, the word "single" would add nothing — the phrase could simply read "for any continuous period of breach." The inclusion of "single" demonstrates the parties' intent that the cap apply only once.

Second, the word "any" in New York contract construction is generally interpreted to mean "every" or "all," conferring universality. See Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48 (1953); see also BLACK'S LAW DICTIONARY (12th ed. 2024) (defining "any" as "[e]very; all"). The phrase "for any single continuous period of breach" thus means: for every and all breach periods, the cap applies once, as a single maximum.

Third, where sophisticated commercial parties negotiate specific contract terms at arm's length, courts apply those terms as written without second-guessing the parties' business judgment. See Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199 (2001). Clause 28 was a rider clause, individually negotiated and drafted, not a boilerplate provision.

The key argument in TSL's favor is straightforward: if the parties had intended the cap to apply per-incident, they would have used language such as "for each period of breach" or "per period of breach" rather than "for any single continuous period of breach." The word "any" indicates that the cap applies to whatever breach period arises. The word "single" reinforces that the cap is a one-time maximum. The word "continuous" describes the nature of the breach period (i.e., an uninterrupted period of off-hire), not a multiplier. Taken together, these words unambiguously establish a single aggregate cap.

As discussed in C&H's internal research memorandum dated November 20, 2023, also prepared by Associate Hannah Brinkley, this interpretation is further supported by the structure of the Charter-Party as a whole. Other provisions of the Charter-Party use per-incident language where per-incident application is intended. For example, Clause 14 (Insurance) refers to "each occurrence" in establishing deductible thresholds, and Clause 22 (Indemnification) refers to "per event" in setting indemnification limits. The absence of similar per-incident language in Clause 28 is telling and confirms that the parties deliberately chose different language to achieve a different result — namely, a single aggregate cap.

Counterargument anticipation. We expect Northwind to argue that each of the three incidents constitutes a distinct "continuous period of breach" and that the $4,500,000 cap attaches independently to each such period. Under this reading, Northwind would contend that each of the three off-hire periods (Incident 1: 22 days; Incident 2: 21 days; Incident 3: 25 days) is a separate "single continuous period of breach" subject to its own $4,500,000 cap.

TSL's response is twofold. First, even under Northwind's reading, the clause says "for any single continuous period of breach" — meaning the cap for any given period is $4,500,000. Northwind cannot stack caps; it can claim, at most, $4,500,000 for any one period. Since the actual liquidated damages calculated for each individual incident ($486,750, $464,625, and $553,125, respectively) fall far below the $4,500,000 cap, the per-period interpretation does not change the result on the current claim amounts. What the per-period interpretation would do, however, is open the door for Northwind to argue at trial for inflated per-incident damages or additional breach periods, expanding TSL's theoretical exposure. A ruling in TSL's favor would foreclose that possibility.

Second, and more fundamentally, the per-period reading is inconsistent with the contract's use of "any single" — language that points to one cap, not multiple caps. There is no textual basis for reading Clause 28 as creating a renewable cap that resets with each new incident.

D. Assessment of Likelihood of Success

C&H assesses a strong likelihood of success on this ground. This is a contract-interpretation issue that the court can and should resolve as a matter of law. The Clause 28 language is unambiguous, the legal standard is well-established, and TSL's interpretation is supported by the plain text, the structure of the Charter-Party, and standard canons of construction.

Justice Chen has demonstrated familiarity with complex commercial disputes in the Commercial Division and has, in her prior rulings in this case, shown a willingness to resolve legal issues on the papers where appropriate. Her decision on TSL's motion to dismiss — granting dismissal of Count V and narrowing Count III — reflects a practical, rigorous approach to the issues before her. We are cautiously optimistic that she will find the Clause 28 language sufficiently clear to resolve on summary judgment.

Even partial success on this ground — for example, a ruling that the cap is a single aggregate cap but that further briefing is needed on whether Northwind has exceeded it — would significantly limit Northwind's damages framework heading into any trial or settlement discussions. The clarification itself is valuable, as it removes a major source of uncertainty in assessing TSL's exposure.

IV. ISSUE TWO: THE DEVIATION CLAIM (SEPTEMBER 2022 MAPUTO CALL)

A. The Factual Background

The second proposed ground for partial summary judgment concerns Northwind's claim that TSL directed the M/V Aegean Fortuna to deviate from her planned voyage route, causing Northwind to suffer demurrage and dead freight damages.

In September 2022, the M/V Aegean Fortuna was on a laden voyage from Durban, South Africa to Qingdao, China, carrying a cargo of manganese ore loaded for the account of Northwind's sub-charterer. The vessel departed Durban on approximately September 14, 2022. The planned route would have taken the vessel through the Mozambique Channel, around the northern tip of Madagascar, and across the Indian Ocean to Qingdao, with an estimated arrival date of approximately September 30 to October 1, 2022.

Northwind alleges that TSL directed the vessel to deviate from this route by calling at Maputo, Mozambique, approximately 300 nautical miles north of Durban along the southeastern coast of Africa. According to Northwind, the purpose of the Maputo call was to load TSL's own cargo — an allegation that TSL vigorously denies and for which Northwind has produced no credible evidence.

Northwind claims that the Maputo call added approximately four days to the voyage, causing the vessel to miss its Qingdao laycan window of October 1–5, 2022. Northwind asserts that the missed laycan resulted in demurrage charges of $870,000 and dead freight costs of $360,000, for a total deviation-related claim of $1,230,000. Northwind also attributes a portion of its claimed port costs and bunker expenses — approximately $875,400 — to the deviation.

TSL's position is that the Maputo call was not a commercial deviation but rather a legitimate routing decision necessitated by weather and sea conditions in the Mozambique Channel. Specifically, TSL contends that adverse weather — including a developing tropical disturbance and significant sea states — made the direct transit through the Mozambique Channel from Durban impractical, and that the call at Maputo was within the Master's discretion under both the Charter-Party and general principles of maritime law.

B. Factual Record Supporting Summary Judgment

The factual record on the deviation claim strongly supports summary judgment in TSL's favor. The material facts are substantially undisputed, and Northwind's evidence on this issue is thin.

Deposition Testimony of Captain Nikolaos Giannopoulos (May 10, 2024). Capt. Giannopoulos, the Master of the M/V Aegean Fortuna at the time of the Maputo call, provided detailed and credible testimony regarding the circumstances of the routing decision. He testified that weather conditions in the Mozambique Channel in mid-September 2022 made the direct northbound transit from Durban impractical. Specifically, he described a developing tropical disturbance in the central Mozambique Channel that generated sustained winds of 35–45 knots and significant wave heights of 4–6 meters, conditions that would have posed risks to the vessel and its cargo. Capt. Giannopoulos testified that he made the decision to call at Maputo to shelter and await improved conditions, and that this was a routing and safety decision within his authority as Master. He categorically denied that any TSL shore-side personnel directed him to call at Maputo for commercial purposes or that any TSL cargo was loaded at Maputo.

Voyage Logs and Weather Data. The vessel's official voyage logs, produced by TSL in discovery, corroborate Capt. Giannopoulos's testimony regarding adverse weather conditions in the Mozambique Channel during the relevant period. The logs record the vessel's entry into Maputo harbor on September 17, 2022, and its departure on September 19, 2022, consistent with a two-day weather delay. Additionally, meteorological data obtained from third-party sources during discovery — including satellite weather imagery and reports from the South African Weather Service — confirm the presence of a tropical disturbance in the central Mozambique Channel between approximately September 15 and September 20, 2022, with conditions broadly consistent with those described by Capt. Giannopoulos.

Deposition Testimony of Viktor Lindgren (May 30, 2024). Lindgren, Northwind's Senior Vice President of Commercial Operations and its designated corporate representative on voyage-related topics, made significant concessions during his deposition that undermine Northwind's deviation claim. Under cross-examination by Carlos Espinoza:

• Lindgren acknowledged that he had no personal knowledge of the weather conditions in the Mozambique Channel in September 2022. He testified that he relied on characterizations provided by his operations team and did not independently review weather data at the time.

• Lindgren acknowledged that Northwind did not formally protest the Maputo call until after the Qingdao laycan was missed — i.e., not until approximately mid-October 2022, roughly one month after the Maputo call occurred. When asked why Northwind did not protest at the time, Lindgren stated that "we were monitoring the situation but did not raise a formal objection at that point."

• Lindgren acknowledged that he could not identify any specific TSL cargo that was loaded at Maputo. When pressed, he conceded that his understanding of TSL's alleged commercial motive for the Maputo call was based on internal Northwind discussions rather than any direct evidence.

Dr. Sørensen's Expert Report (August 5, 2024). Dr. Sørensen, TSL's maritime engineering expert, conducted a detailed analysis of the weather and sea conditions in the Mozambique Channel during the relevant period and the vessel's routing options. He concluded that the Maputo call was consistent with reasonable routing under the prevailing weather conditions and did not constitute a deviation under standard maritime practice. Dr. Sørensen's analysis included a review of the vessel's voyage logs, weather data from multiple sources, and the vessel's technical specifications and cargo stability requirements. His opinions are well-supported and will be presented in declaration form in support of the motion.

Charter-Party Clause 5 (Trade Limits). The Charter-Party's trade limits provision provides for worldwide trading and does not contain any specific restriction on calls at Maputo or any other East African port. Clause 5 restricts the vessel's trading only to the extent that it prohibits calls at (a) ports subject to sanctions administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, (b) war-risk zones as designated by the London Joint War Committee, and (c) ice-bound waters north of 68° North latitude. Maputo falls within none of these categories. Accordingly, there is no contractual basis for Northwind's contention that the Maputo call was prohibited or unauthorized.

No Evidence of TSL Cargo at Maputo. Northwind's allegation that TSL directed the Maputo call to load its own cargo appears to rest on a single piece of evidence: an email dated October 18, 2022, from a Northwind operations manager (Elena Rodriguez) to Viktor Lindgren, in which Rodriguez speculated that "TSL may have had its own cargo interests in Maputo." However, this email was written approximately one month after the Maputo call, was not based on first-hand knowledge, and is expressly framed as speculation. No documents produced in discovery — including TSL's cargo booking records, port agency records, and billing records for the Maputo call — support the allegation that TSL loaded any cargo at Maputo. The port records confirm that the vessel did not conduct any cargo operations during its approximately two-day stay in Maputo.

C. Legal Standard and Analysis

As set forth in C&H's internal research memorandum dated January 8, 2024, prepared by Carlos Espinoza, the law governing a Master's authority to deviate from an agreed route is well established under both New York maritime law and general principles of admiralty.

Reasonable Deviation. Under New York law, a Master has broad discretion to deviate from an agreed or planned route where justified by safety, weather, or other reasonable navigational considerations. See The Willdomino, 272 U.S. 718, 727 (1927) (recognizing the Master's authority to deviate for reasonable cause); Carriage of Goods by Sea Act, 46 U.S.C. § 30701 note, § 4(4) (providing that deviation in saving or attempting to save life or property at sea, or "any reasonable deviation," shall not be deemed a breach). Where the deviation is reasonable, it does not give rise to liability, and the charterer bears no entitlement to damages.

Burden of Proof. The burden is on Northwind to establish that the deviation was unauthorized and unreasonable. See Sedco, Inc. v. S.S. Strathewe, 800 F.2d 27, 30 (2d Cir. 1986). The undisputed record in this case shows that weather conditions in the Mozambique Channel justified the routing decision, and Northwind has produced no admissible evidence to the contrary. Northwind's sole evidence of an improper motive is the speculative email from Elena Rodriguez, which is inadmissible hearsay to the extent offered for the truth of the matter asserted and, in any event, is expressly characterized as speculation rather than fact.

Causation. Even if the Maputo call were characterized as a deviation — which TSL vigorously disputes — Northwind must prove that the four-day delay directly caused the missed Qingdao laycan. The record, however, shows that other factors contributed to the missed laycan window. Specifically, evidence produced in discovery establishes that the Port of Qingdao experienced significant congestion in late September and early October 2022, with average anchorage wait times of 5–8 days for bulk carriers. Dr. Sørensen's report addresses this issue and concludes that, even absent the Maputo call, the M/V Aegean Fortuna would likely have faced delays at Qingdao that could have resulted in a missed laycan. Northwind has not established that the Maputo call was the proximate cause of its claimed damages, as opposed to a contributing factor among several.

D. Assessment of Likelihood of Success

C&H assesses a good likelihood of success on this ground. The factual record is favorable to TSL, and Northwind's evidence is materially deficient. Capt. Giannopoulos's testimony is detailed, credible, and corroborated by contemporaneous voyage logs and independent weather data. Lindgren's concessions — particularly his admission of no personal knowledge and the absence of a contemporaneous protest — significantly undermine Northwind's position. The speculative Rodriguez email, standing alone, is insufficient to create a genuine issue of material fact.

If granted, this ruling would eliminate the $1,230,000 in demurrage and dead freight damages attributable to the deviation claim and would likely also eliminate or reduce the associated port and bunker costs of approximately $875,400. Moreover, dismissal of the deviation claim would simplify the issues remaining for trial and remove a factual narrative that Northwind has used to paint TSL as a bad actor.

We acknowledge that there is some risk that the court could deny summary judgment on this issue if it concludes that a genuine factual dispute exists as to whether TSL had a commercial motive for the Maputo call. Even in that scenario, however, the motion would serve a valuable purpose: it would force Northwind to commit to its factual theory in its opposition papers, narrow the issues for trial, and demonstrate to the court the thinness of Northwind's evidence on this claim. The record developed through summary judgment briefing would also be useful in any subsequent settlement discussions.

V. STRATEGIC CONSIDERATIONS

A. Impact on Damages Framework

Northwind's total claimed damages in this action are $18,300,000. This figure includes the following principal components:

If both grounds for summary judgment are granted, the practical impact on the damages framework would be substantial:

• Clause 28 Interpretation: A ruling confirming the single-cap interpretation would clarify that the maximum liquidated damages recoverable under the Charter-Party is $4,500,000, regardless of the number of incidents. While Northwind's current claim is at this level, the ruling would foreclose any attempt to argue for higher liquidated damages at trial or to inflate the damages framework through the per-period cap theory. The ruling would also affect how the court and the parties calculate exposure in settlement discussions.

• Deviation Claim: A ruling dismissing the deviation claim would eliminate $1,230,000 in demurrage and dead freight damages and would reduce the port/bunker costs claim by approximately $875,400 — the portion of those costs attributable to the Maputo deviation theory.

• Combined Impact: The motion, if fully successful, would eliminate or significantly reduce approximately $10.8 million of theoretical exposure (accounting for the per-period cap inflation and the deviation-related damages and costs) and would clarify the damages picture heading into trial or settlement.

Beyond the direct dollar impact, the motion sends an important signal to both the court and opposing counsel. It demonstrates that TSL's defenses are meritorious and well-supported by the record, which can influence the court's approach to case management and trial scheduling, and can affect Northwind's willingness to engage in meaningful settlement discussions.

B. Settlement Positioning

C&H anticipates that settlement discussions may occur in this matter, either through a court-ordered mediation or through direct negotiations between the parties. Justice Chen has, in other Commercial Division matters, ordered parties to mediate following the completion of summary judgment briefing, and we believe there is a reasonable likelihood that she will do so here.

A strong pending motion for partial summary judgment — or, even better, a favorable ruling on one or both grounds — would materially strengthen TSL's negotiating position. The motion would:

• Demonstrate to Northwind and its counsel that TSL's defenses are substantive, not merely procedural, forcing Northwind to reassess its damages expectations;

• Create litigation risk for Northwind — if the motion is granted, Northwind loses significant portions of its claim before trial, which incentivizes early settlement;

• Provide a framework for settlement discussions by establishing the legal parameters of TSL's exposure, rather than allowing Northwind to negotiate based on an inflated and legally unsupportable damages figure.

TSL's counterclaim for $1,620,000 in withheld hire also provides meaningful settlement leverage. The counterclaim, which seeks recovery of hire for the period from October 1, 2022 through December 31, 2022, is well-supported by the Charter-Party and the undisputed fact that Northwind ceased paying hire during this period. In settlement discussions, the counterclaim can be used both as a negotiating chip and as a set-off against any agreed resolution amount.

C. Issues Not Included in the Motion

C&H has carefully considered which issues to include in the motion and has determined that the two grounds described above offer the strongest prospects for success while presenting the least risk of an adverse ruling. We do not recommend seeking summary judgment on the following issues at this time:

Incident 1 (Latent Defect Defense). TSL's defense to Incident 1 (the March 2022 turbocharger failure) rests on the contention that the failure was caused by a latent defect not discoverable through the exercise of due diligence. While Dr. Sørensen's report supports this defense, the latent defect issue involves factual questions — including whether TSL's maintenance protocols were sufficient to detect the defect and whether class survey records reflected any warning signs — that are likely to give rise to genuine disputes of material fact. These issues are better addressed at trial, where TSL can present live testimony from its engineering witnesses, or through settlement.

Incident 2 (Charterer Causation Defense). TSL's defense to Incident 2 (the July 2022 BWTS/boiler failure) involves the contention that Northwind's instructions regarding ballast water exchange protocols contributed to the failure. This defense involves factual disputes regarding the content and effect of Northwind's instructions, which are better resolved at trial.

Inter-Club Agreement Defense ($3,420,000). TSL's defense to the Inter-Club Agreement cargo damage claims presents a mixed question of law and fact that is less suited for summary judgment. The defense requires the court to interpret the Inter-Club Agreement in the context of specific cargo damage events and to apportion liability between owner and charterer — an inherently factual inquiry.

Third-Party Shipper Claims ($5,634,400). These claims were already narrowed by Justice Chen's March 8, 2024 ruling on TSL's motion to dismiss. Further narrowing of these claims may be sought at trial through motions in limine or a directed verdict, but the remaining claims involve factual questions that are not suitable for summary judgment.

D. Timing. We propose the following timeline for the motion:

This timeline is compatible with any mediation or settlement process that might be ordered or initiated. If Justice Chen orders mediation following the filing of the motion (as she has done in comparable matters), the parties could engage in mediation while the motion is fully briefed and pending decision. This would allow TSL to enter mediation with maximum leverage.

The timeline also accounts for the rebuttal expert reports due September 9, 2024. We will review both parties' rebuttal reports promptly upon receipt and incorporate any relevant material into the motion papers.

E. Costs. The estimated additional C&H fees for preparing and filing the motion for partial summary judgment are approximately $85,000 to $110,000. This estimate encompasses the following:

• Preparation of the memorandum of law in support of the motion;

• Preparation of TSL's Rule 19-a Statement of Undisputed Material Facts (required under the New York Supreme Court, Commercial Division rules);

• Preparation of supporting declarations from Carlos Espinoza (attaching relevant deposition transcripts, documents, and other record evidence), Dr. Henrik Sørensen, and Dr. Constance Albright;

• Preparation of a proposed order;

• Internal review and quality control by Douglas Carmichael and Francesca Morano.

Additional costs may be incurred for reply briefing (estimated at approximately $25,000–$35,000) and preparation for oral argument (estimated at approximately $10,000–$15,000), depending on the nature and scope of Northwind's opposition.

C&H believes these costs are justified in light of the potential impact on TSL's damages exposure and settlement positioning. The motion targets approximately $10.8 million of theoretical exposure at a cost of less than 1% of that amount. Moreover, the work product generated in connection with the motion — including the memorandum of law, the Rule 19-a statement, and the supporting declarations — will be valuable in connection with trial preparation and settlement discussions regardless of the outcome of the motion.

VI. EXPERT SUPPORT FOR THE MOTION

A. Dr. Henrik Sørensen (Maritime Engineering)

Dr. Sørensen of Nordic Maritime Consulting Group ApS will provide a sworn declaration in support of the motion, summarizing his expert opinions on the following topics:

(a) The latent defect nature of the turbocharger failure in Incident 1 — while this issue is not a proposed ground for summary judgment, Dr. Sørensen's opinions on the technical background of the vessel's mechanical systems provide supportive context for the court's understanding of the case;

(b) TSL's compliance with its maintenance and seaworthiness obligations under the Charter-Party, including a summary of the vessel's class status, maintenance records, and drydocking history;

(c) The reasonableness of the Maputo routing decision based on weather and sea conditions in the Mozambique Channel in September 2022 — this is the critical opinion for the deviation ground and draws on Dr. Sørensen's detailed analysis of weather data, voyage logs, and the vessel's technical specifications.

Dr. Sørensen's expert report, served on August 5, 2024, already addresses the deviation issue in detail and provides the analytical foundation for his declaration. The declaration will distill his key opinions into a format suitable for summary judgment and will attach relevant exhibits, including weather charts, voyage track data, and port records.

Expert fees for the preparation of Dr. Sørensen's declaration are estimated at approximately $15,000, which falls within the overall $285,000 expert engagement budget previously approved by TSL for Dr. Sørensen's retention.

B. Dr. Constance Albright (Damages)

Dr. Albright of Clearwater Economics LLC will provide a sworn declaration in support of the motion, summarizing her expert opinions on the following topics:

(a) The proper interpretation and application of the Clause 28 liquidated damages formula and cap, including a detailed analysis of the contractual language and its economic implications;

(b) The mathematical implications of the single-cap versus per-period-cap interpretations, demonstrating the impact on TSL's damages exposure under each scenario.

Dr. Albright's expert report, served on August 5, 2024, contains the relevant analysis and calculations. Her declaration will present this analysis in summary form, with supporting calculations and tables.

Expert fees for the preparation of Dr. Albright's declaration are estimated at approximately $10,000, which falls within the overall $210,000 expert engagement budget previously approved by TSL for Dr. Albright's retention.

VII. REQUESTED AUTHORIZATION

C&H respectfully requests that TSL management authorize the filing of the motion for partial summary judgment on the two grounds described in this memorandum:

1. A ruling that the $4,500,000 liquidated damages cap set forth in Clause 28 of the Charter-Party applies as a single aggregate maximum, not as a per-incident cap; and

2. Dismissal of Northwind's deviation claim related to the September 2022 Maputo call, including all associated demurrage, dead freight, and port/bunker cost claims.

The motion would be filed on or about September 20, 2024.

C&H requests confirmation of authorization by September 10, 2024, to allow sufficient time for the preparation of motion papers, expert declarations, and supporting materials.

If authorized, C&H will prepare draft motion papers and circulate them to Markos Theodorakis for TSL's review and comment prior to filing.

VIII. NEXT STEPS

Upon receipt of TSL's authorization, C&H proposes the following immediate next steps:

1. Preparation of Motion Papers. C&H will prepare the memorandum of law in support of the motion, the Rule 19-a Statement of Undisputed Material Facts, supporting declarations (Carlos Espinoza, Dr. Henrik Sørensen, and Dr. Constance Albright), and a proposed order.

2. Client Review. C&H will circulate draft motion papers to Markos Theodorakis for review and comment by approximately September 15, 2024. We ask that TSL provide any comments or corrections promptly to ensure that the motion can be finalized and filed by the September 20, 2024 target date.

3. Filing. C&H will file the motion via NYSCEF (New York State Courts Electronic Filing System) on or about September 20, 2024 and will serve copies on Northwind's counsel of record, Harrington Burke & Associates LLP, in accordance with applicable service requirements.

4. Coordination with Greek Counsel. C&H will coordinate with Konstantinou & Rizos Law Offices in Athens if any issues arise in connection with Greek corporate authority or the authentication of documents related to the deposition testimony of Capt. Giannopoulos and Chief Engineer Vlahos, both of whom were deposed in Piraeus.

5. Rebuttal Expert Reports. C&H will continue to monitor the rebuttal expert reports due September 9, 2024. Upon receipt, C&H will review both TSL's and Northwind's rebuttal reports and incorporate any relevant material into the motion papers.

6. Mediation and Settlement Preparation. C&H will prepare for potential mediation or settlement discussions that may follow the filing of the motion. If Justice Chen orders mediation, C&H will prepare a mediation statement and strategy memorandum for TSL's consideration.

IX. CONTACT INFORMATION

Please do not hesitate to contact any of the following members of the C&H team with questions regarding this memorandum or any aspect of this matter:

Douglas Carmichael, Partner (Responsible Partner) Direct Dial: (212) 554-7112

Email: dcarmichael@calderwoodharkness.com

Francesca Morano, Partner (Billing Partner) Direct Dial: (212) 554-7238

Email: fmorano@calderwoodharkness.com

Carlos Espinoza, Senior Associate (Lead Associate) Direct Dial: (212) 554-7491

Email: cespinoza@calderwoodharkness.com

All at: Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006

We appreciate TSL's confidence in C&H's handling of this matter and look forward to receiving your authorization to proceed with the motion.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Douglas Carmichael Partner

By: ________

Francesca Morano Partner

By: ________

Carlos Espinoza Senior Associate

Enclosures / Attachments: None enclosed with this memorandum. Referenced research memoranda (H. Brinkley, November 5, 2023; H. Brinkley, November 20, 2023; C. Espinoza, January 8, 2024) and expert reports (Dr. H. Sørensen, August 5, 2024; Dr. C. Albright, August 5, 2024) are available upon request and will be provided to TSL management upon inquiry.

Prior Client Update Memoranda Referenced:

• discovery Status and Strategy Memorandum, dated June 30, 2024

• Post-Motion to Dismiss Ruling Memorandum, dated March 11, 2024

This memorandum is a privileged and confidential attorney-client communication and attorney work product. It is not intended for distribution to any person other than the named addressees and should not be forwarded, copied, or disclosed without the prior written consent of Calderwood & Harkness LLP.

Incident	Off-Hire Days	Daily Rate	150% Multiplier	Liquidated Damages
Incident 1 (March 12 – April 2, 2022)	22 days	$14,750	150%	$486,750
Incident 2 (July 8 – July 29, 2022)	21 days	$14,750	150%	$464,625
Incident 3 (November 15 – December 10, 2022)	25 days	$14,750	150%	$553,125
Total	68 days	$1,504,500
Damages Category	Amount Claimed
Liquidated damages (Clause 28)	$4,500,000
Third-party shipper cargo claims	$5,634,400
Deviation-related demurrage and dead freight	$1,230,000
Inter-Club Agreement cargo claims	$3,420,000
Additional port/bunker costs (including deviation-related)	$2,315,600
Miscellaneous operational losses	$1,200,000
Total	$18,300,000
Milestone	Date
TSL authorization to file	September 10, 2024
Circulation of draft motion papers to Markos Theodorakis	September 15, 2024
Motion filing date	September 20, 2024
Northwind's opposition due (approx. 30 days)	Mid-October 2024
TSL's reply (approx. 14 days after opposition)	Late October / Early November 2024
Oral argument (estimated)	Late November – Early December 2024

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP Counsellors at Law One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 554-7000 Facsimile: (212) 554-7001 www.calderwoodharkness.com
MEMORANDUM
PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This memorandum and its contents are protected from disclosure by the attorney-client privilege and the work-product doctrine. This communication is intended solely for the use of the addressees identified below. Any dissemination, distribution, or copying of this communication by any person other than the intended recipients is strictly prohibited.
Date: September 5, 2024
To: Alexandros Stavridis, Chairman and Chief Executive Officer, Thalassa Shipping & Logistics SA Markos Theodorakis, General Counsel, Thalassa Shipping & Logistics SA Elena Papadimitriou, Chief Financial Officer, Thalassa Shipping & Logistics SA
From: Douglas Carmichael, Responsible Partner Francesca Morano, Billing Partner Carlos Espinoza, Lead Associate
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, Justice Lorraine K. Chen, J.S.C.) — Recommendation for Motion for Partial Summary Judgment
C&H Matter No.: 1044-00006
I. EXECUTIVE SUMMARY
This memorandum sets forth Calderwood & Harkness LLP's ("C&H") recommendation that Thalassa Shipping & Logistics SA ("TSL" or the "Company") authorize the filing of a motion for partial summary judgment on two discrete and well-defined issues in advance of any trial in the above-captioned action. The purpose of this memorandum is to explain the legal and factual basis for the motion, assess the likelihood of success on each proposed ground, address the strategic implications for settlement and trial, and provide TSL's management with sufficient information to authorize the filing.
The two proposed grounds for summary judgment are as follows:
1.  Clause 28 Liquidated Damages Cap Interpretation. TSL will seek a ruling that the $4,500,000 liquidated damages cap set forth in Clause 28 of the charter-party dated December 3, 2020 (the "Charter-Party") applies as a single aggregate maximum for all liquidated damages claims under the Charter-Party, rather than as a per-incident cap that resets with each separate "period of breach." This is a pure question of contract interpretation under New York law, well suited for summary adjudication.
2.  Dismissal of the Deviation Claim (September 2022 Maputo Call). TSL will seek dismissal of Northwind Maritime Corporation's ("Northwind") claim that TSL improperly directed the M/V Aegean Fortuna to deviate from her planned Durban-to-Qingdao voyage to call at Maputo, Mozambique, in September 2022. The undisputed factual record — including contemporaneous voyage logs, weather data, and deposition testimony — establishes that the Maputo call was a reasonable routing decision within the Master's discretion, not a commercial deviation.
C&H recommends filing on both grounds. If granted, the motion would target approximately $10.8 million of Northwind's total $18.3 million claim. Specifically, the motion would clarify the liquidated damages framework (thereby constraining or eliminating Northwind's ability to argue for damages in excess of the single $4,500,000 cap), and it would eliminate the entirety of the $1,230,000 deviation-related demurrage and dead freight claim, together with associated port and bunker costs of approximately $875,400 attributable to the deviation theory.
We propose a targeted filing date of September 20, 2024, which is fifteen days from the date of this memorandum. This date allows sufficient time for preparation of the motion papers following receipt of TSL's authorization, while remaining well within the procedural calendar. Discovery in this matter closed in August 2024. Expert reports have been served by both sides — TSL's expert reports were served on August 5, 2024, and Northwind's expert reports were served on August 19, 2024. Rebuttal expert reports are due September 9, 2024. The next scheduled court appearance is to be set in consultation with Justice Chen's chambers for the purpose of summary judgment argument.
Beyond its direct impact on the damages framework, the motion carries significant strategic value. It will position TSL favorably in advance of any mediation or settlement discussions that may be ordered by the court or pursued by the parties. Justice Chen has, in other matters before the Commercial Division, encouraged or directed parties to mediate following summary judgment briefing. A strong pending motion — or, better still, a favorable ruling on one or both grounds — would materially strengthen TSL's negotiating position and could facilitate a resolution of this matter on terms acceptable to the Company.
We request that TSL management confirm its authorization to proceed by September 10, 2024, to allow sufficient preparation time. The balance of this memorandum sets forth our analysis in detail.
II. PROCEDURAL BACKGROUND AND CURRENT STATUS
A. Case History Summary
Northwind 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 asserted claims against TSL and its wholly-owned subsidiary, Aegean Fortuna Shipholding Ltd. ("AFSL"), arising out of the Charter-Party governing the time charter of the M/V Aegean Fortuna, a 2012-built 82,000 DWT Kamsarmax bulk carrier. TSL retained C&H on October 16, 2023, following an initial consultation with Markos Theodorakis and a conflicts review.
On November 17, 2023, C&H filed TSL's Answer and Counterclaim on behalf of both defendants. The Answer denied Northwind's principal allegations of breach of the Charter-Party maintenance and seaworthiness obligations, contested the deviation claim, and raised affirmative defenses including, among others, contractual limitation of liability, comparative fault, and failure to mitigate damages. The Counterclaim asserted a claim for $1,620,000 in unpaid hire for the period from October 1, 2022 through December 31, 2022, representing approximately 110 days at the contractual daily hire rate of $14,750 per day. Northwind filed its answer to the counterclaim on December 6, 2023.
On December 15, 2023, C&H filed a pre-answer motion to dismiss Counts III and V of the complaint on behalf of TSL. Count III alleged that TSL was directly liable to Northwind for claims asserted by third-party shippers of cargo transported aboard the M/V Aegean Fortuna during the charter period. Count V alleged unjust enrichment. By decision and order dated March 8, 2024, Justice Chen granted the motion in part: Count V (unjust enrichment) was dismissed in its entirety on the ground that the existence of the Charter-Party precluded quasi-contractual relief, and Count III was narrowed to exclude claims by shippers with whom Northwind had no direct contractual relationship and who had not assigned their claims. The March 8, 2024 ruling was discussed in detail in our prior client update memorandum dated March 11, 2024.
discovery was conducted between January 2024 and August 2024. The discovery period was extensive and included the production and review of approximately 47,000 documents (totaling over 380,000 pages), the exchange of interrogatory responses, and the completion of eight fact depositions. The key depositions are summarized below:
•  Alexandros Stavridis (Chairman and CEO, TSL) — deposed April 22, 2024, in New York. Mr. Stavridis testified regarding TSL's corporate structure, the negotiation and execution of the Charter-Party, and TSL's maintenance and operational practices. His testimony was well-prepared and consistent with TSL's positions.
•  Captain Nikolaos Giannopoulos (Master, M/V Aegean Fortuna) — deposed May 10, 2024, in Piraeus, Greece (via stipulated international deposition protocol). Capt. Giannopoulos provided critical testimony regarding the September 2022 Maputo routing decision, weather conditions in the Mozambique Channel, and the vessel's operational status during the three off-hire incidents.
•  Viktor Lindgren (Senior Vice President, Commercial Operations, Northwind) — deposed May 30, 2024, in New York. Lindgren was Northwind's designated corporate representative on several notice categories. His testimony contained significant concessions regarding the deviation claim, as discussed in Section IV.B below.
•  Sandra Chow (Vice President, Technical Operations, Northwind) — deposed June 14, 2024, in New York. Chow testified regarding Northwind's inspections of the vessel and its communications with TSL regarding maintenance issues.
•  Chief Engineer Petros Vlahos (M/V Aegean Fortuna) — deposed June 28, 2024, in Piraeus, Greece. Vlahos provided testimony regarding the mechanical failures giving rise to the three off-hire incidents, maintenance records, and the vessel's class status.
•  Three additional fact witnesses were deposed in July 2024, including Northwind's operations coordinator who authored the speculative email regarding the Maputo call and two TSL fleet management personnel.
B. Expert Reports
Both parties have retained expert witnesses and served expert reports in accordance with the discovery schedule established by Justice Chen's preliminary conference order.
TSL's experts served their reports on August 5, 2024:
•  Dr. Henrik Sørensen, Nordic Maritime Consulting Group ApS, Copenhagen, Denmark — maritime engineering expert. Dr. Sørensen's report addresses the technical causes of the three off-hire incidents, the reasonableness of TSL's maintenance practices, the latent defect defense as to Incident 1, and the routing analysis for the September 2022 Maputo call. His report is thorough, well-supported by contemporaneous maintenance records and class survey data, and provides strong support for TSL's positions on both proposed summary judgment grounds.
•  Dr. Constance Albright, Clearwater Economics LLC, Washington, D.C. — damages and economic analysis expert. Dr. Albright's report addresses the proper interpretation and application of the Clause 28 liquidated damages formula and cap, the mathematical implications of the competing cap interpretations, and the quantification of Northwind's claimed damages. Her report concludes that Northwind's damages, properly calculated, are significantly lower than the $18.3 million claimed.
Northwind's experts served their reports on August 19, 2024:
•  Captain Julian Blackmore (Ret.), Blackmore Maritime Advisory Ltd., London, United Kingdom — maritime operations expert. Capt. Blackmore opines on TSL's alleged failures to maintain the vessel in seaworthy condition and characterizes the Maputo call as an unauthorized commercial deviation. His report, however, does not address weather data in detail and relies heavily on the speculative email discussed below.
•  Dr. Rajesh Anand, Pinnacle Valuation Partners LLP, New York — damages expert. Dr. Anand's report quantifies Northwind's claimed damages at $18.3 million and adopts the per-period interpretation of the Clause 28 cap, though his report does not provide a detailed textual analysis of the cap language.
Rebuttal expert reports are due September 9, 2024. Both Dr. Sørensen and Dr. Albright are preparing rebuttal reports. We will incorporate any relevant material from the rebuttal reports, as well as from Northwind's rebuttal reports, into the summary judgment motion papers.
C. Discovery Record on the Two Proposed Issues
The discovery record on the two proposed summary judgment grounds is particularly well developed.
With respect to Clause 28 interpretation, the relevant facts are entirely contained within the four corners of the Charter-Party itself. The Charter-Party is based on the NYPE 2015 form, as amended by the parties, and was executed on December 3, 2020 (Reference No. NW-TSL-CP-2020-1203). The Clause 28 language at issue is clear and unambiguous, and its interpretation does not require resort to extrinsic evidence. This makes the issue particularly well-suited for summary adjudication. There is no genuine dispute of material fact — the only question is the legal interpretation of agreed-upon contract language.
With respect to the deviation claim, the factual record involves deposition testimony, contemporaneous vessel logs, and weather data, but the material facts are substantially undisputed. As discussed in detail in Section IV below, Northwind's own designated corporate representative acknowledged under cross-examination that he lacked personal knowledge of the weather conditions and did not protest the Maputo call contemporaneously. The voyage logs and weather data produced in discovery corroborate TSL's account. While the court will need to examine a factual record (rather than solely a contract), the undisputed nature of the key facts makes this issue a strong candidate for summary judgment.
III. ISSUE ONE: LIQUIDATED DAMAGES CAP INTERPRETATION UNDER CLAUSE 28
A. The Clause 28 Dispute Explained
The first proposed ground for partial summary judgment concerns the proper interpretation of the liquidated damages provision set forth in Clause 28 of the Charter-Party. This provision is central to the damages framework in this litigation and has been a point of contention between the parties since the outset.
Clause 28 of the Charter-Party provides, in relevant part:
"In the event of Owner's material breach of its maintenance and seaworthiness obligations under Clauses 2 and 6 hereof, Charterer shall be entitled to recover liquidated damages in an amount equal to one hundred and fifty percent (150%) of the aggregate off-hire days attributable to such breach, multiplied by the daily hire rate then in effect, subject to a maximum aggregate cap of United States Dollars Four Million Five Hundred Thousand (US$4,500,000) for any single continuous period of breach."
The dispute centers on the meaning of the phrase "for any single continuous period of breach." The parties have adopted diametrically opposed interpretations:
Northwind's position is that the cap applies separately to each "period of breach." Under this interpretation, each of the three off-hire incidents giving rise to Northwind's claims constitutes a distinct "continuous period of breach," and each carries its own independent $4,500,000 cap. While Northwind's current claimed liquidated damages total $4,500,000 in the aggregate — which happens to equal the amount of a single cap — Northwind has expressly reserved the right to argue at trial for higher recovery under the per-period interpretation. If Northwind were to prevail on the per-period interpretation, the theoretical maximum liquidated damages exposure across three incidents would be $13,500,000 (three separate caps of $4,500,000 each), though Northwind has not claimed that full amount.
TSL's position — which C&H believes is correct and well-supported by the contract language — is that the phrase "for any single continuous period of breach" means the $4,500,000 cap applies once to the entire charter period. It is a single aggregate maximum for all liquidated damages claims under the Charter-Party, regardless of the number of individual incidents or off-hire periods. Under this interpretation, the cap functions as an overall ceiling on TSL's liquidated damages exposure.
The practical significance of this interpretive dispute extends beyond the current claim amounts. Even though Northwind's current claimed liquidated damages are $4,500,000 — an amount that would be fully covered under either interpretation — the per-period interpretation, if adopted, would fundamentally alter the damages framework in ways that affect the overall case. It would embolden Northwind to argue for additional liquidated damages at trial, it would affect the way the court instructs a jury (if the case reaches trial), and it would increase TSL's settlement exposure. Conversely, a ruling in TSL's favor would definitively cap the liquidated damages component at $4,500,000 regardless of how many incidents are at issue, simplifying the damages analysis and strengthening TSL's position.
B. Factual Record Supporting Summary Judgment
The factual record on this issue is, in the most important sense, complete and undisputed: the relevant "facts" are the words of Clause 28 itself.
The Clause 28 language is unambiguous on its face. The phrase "for any single continuous period of breach" contains two critical modifiers — "any" and "single" — that, together, indicate a cap that applies once and encompasses whatever breach period or periods may arise. The word "any" is universally understood under New York law to mean "every" or "all." The word "single" reinforces that the cap applies to one — and only one — period, i.e., the totality of the breach exposure. Read together, the phrase "for any single continuous period of breach" most naturally means: "with respect to the entirety of any breach period (however long), the cap is $4,500,000."
The Charter-Party was negotiated at arm's length between sophisticated commercial parties. TSL is a global shipping and logistics enterprise with approximately $612 million in annual revenue and a fleet of 34 vessels. Northwind is one of the largest charterers in the dry bulk market, with approximately $1.2 billion in annual revenue. Both parties were represented by experienced maritime counsel during the Charter-Party negotiations. The Charter-Party was based on the widely used NYPE 2015 form but was extensively customized, reflecting a detailed negotiation process. Clause 28 was a rider clause — i.e., it was specifically drafted and added by the parties, not a standard-form provision. Courts applying New York law give particular weight to negotiated terms in sophisticated commercial agreements.
No extrinsic evidence is needed. Because the Clause 28 language is unambiguous, the court should resolve this issue as a pure question of contract interpretation without resort to parol evidence. There is no need to examine drafting history, negotiation correspondence, or the parties' course of dealing. This makes the issue ideally suited for summary judgment — the court has everything it needs on the face of the contract.
Dr. Albright's expert report provides supporting economic analysis. Dr. Albright's report, served on August 5, 2024, analyzed the Clause 28 liquidated damages formula in detail. She applied the formula to the undisputed off-hire data across the three incidents and calculated the total liquidated damages as follows:
As Dr. Albright's analysis demonstrates, the actual liquidated damages calculated under the Clause 28 formula total $1,504,500 — well within a single $4,500,000 cap. Under the single-cap interpretation, Northwind's recovery is limited to $1,504,500 (or, at most, $4,500,000 if additional breach periods were found). Under the per-period interpretation, however, the theoretical exposure increases because each incident carries its own $4,500,000 cap, creating the possibility that Northwind could argue for damages far in excess of $1,504,500 per incident if it can identify additional off-hire days or recalculate the formula. Eliminating this interpretive ambiguity through a ruling in TSL's favor would provide clarity and materially reduce TSL's exposure.
The three incidents are summarized as follows:
•  Incident 1 (March 12 – April 2, 2022; 22 days off-hire): Failure of the main engine turbocharger, resulting in reduced power and necessitating repairs at Kobe, Japan. TSL contends this was a latent defect not discoverable through the exercise of due diligence.
•  Incident 2 (July 8 – July 29, 2022; 21 days off-hire): Failure of the ballast water treatment system ("BWTS") and related boiler malfunction, requiring repairs at Singapore. TSL contends that the BWTS failure was attributable in part to Northwind's instructions regarding ballast water exchange protocols.
•  Incident 3 (November 15 – December 10, 2022; 25 days off-hire): Cylinder liner failure in the main engine, requiring drydocking at Zhoushan, China. TSL contends this was caused by fuel quality issues for which Northwind bears responsibility under the Charter-Party's fuel-supply provisions.
C. Legal Standard and Analysis
Under New York law, the interpretation of an unambiguous contract is a question of law for the court, properly resolved on a motion for summary judgment. See W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 162 (1990) ("When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole."); Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). The court should not look to extrinsic evidence to create an ambiguity where the contract language is clear. See Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 (2004).
Enforceability of Liquidated Damages Clauses. As a threshold matter, liquidated damages clauses are enforceable under New York law where two conditions are met: (a) the amount stipulated must be a reasonable estimate of the anticipated harm from the breach, and (b) actual damages from the breach must be difficult to calculate at the time the contract is made. See Northpoint Holdings v. Purdy Corp., 41 N.Y.2d 354, 357 (1977); JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373, 380 (2005). Neither party has challenged the enforceability of the Clause 28 liquidated damages provision in this action, and there is no basis for such a challenge. As set forth in C&H's internal research memorandum dated November 5, 2023, prepared by Associate Hannah Brinkley, the $4,500,000 cap bears a reasonable relationship to the anticipated harm from maintenance-related off-hire in the context of a charter of this value and duration, and actual off-hire damages are inherently difficult to calculate at the time of contracting due to variable market conditions, freight rates, and cargo schedules. Accordingly, the liquidated damages clause is enforceable, and the sole question is its interpretation.
Contract Interpretation Canons. Several well-established canons of New York contract interpretation support TSL's reading of Clause 28:
First, courts must give effect to all terms and avoid interpretations that render any contractual language superfluous or meaningless. See Two Guys from Harrison-N.Y., Inc. v. S.F.R. Realty Associates, 63 N.Y.2d 396, 403 (1984). The word "single" in "for any single continuous period of breach" would be rendered superfluous under Northwind's per-period interpretation. If the parties intended the cap to apply to each separate breach period, the word "single" would add nothing — the phrase could simply read "for any continuous period of breach." The inclusion of "single" demonstrates the parties' intent that the cap apply only once.
Second, the word "any" in New York contract construction is generally interpreted to mean "every" or "all," conferring universality. See Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48 (1953); see also BLACK'S LAW DICTIONARY (12th ed. 2024) (defining "any" as "[e]very; all"). The phrase "for any single continuous period of breach" thus means: for every and all breach periods, the cap applies once, as a single maximum.
Third, where sophisticated commercial parties negotiate specific contract terms at arm's length, courts apply those terms as written without second-guessing the parties' business judgment. See Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 199 (2001). Clause 28 was a rider clause, individually negotiated and drafted, not a boilerplate provision.
The key argument in TSL's favor is straightforward: if the parties had intended the cap to apply per-incident, they would have used language such as "for each period of breach" or "per period of breach" rather than "for any single continuous period of breach." The word "any" indicates that the cap applies to whatever breach period arises. The word "single" reinforces that the cap is a one-time maximum. The word "continuous" describes the nature of the breach period (i.e., an uninterrupted period of off-hire), not a multiplier. Taken together, these words unambiguously establish a single aggregate cap.
As discussed in C&H's internal research memorandum dated November 20, 2023, also prepared by Associate Hannah Brinkley, this interpretation is further supported by the structure of the Charter-Party as a whole. Other provisions of the Charter-Party use per-incident language where per-incident application is intended. For example, Clause 14 (Insurance) refers to "each occurrence" in establishing deductible thresholds, and Clause 22 (Indemnification) refers to "per event" in setting indemnification limits. The absence of similar per-incident language in Clause 28 is telling and confirms that the parties deliberately chose different language to achieve a different result — namely, a single aggregate cap.
Counterargument anticipation. We expect Northwind to argue that each of the three incidents constitutes a distinct "continuous period of breach" and that the $4,500,000 cap attaches independently to each such period. Under this reading, Northwind would contend that each of the three off-hire periods (Incident 1: 22 days; Incident 2: 21 days; Incident 3: 25 days) is a separate "single continuous period of breach" subject to its own $4,500,000 cap.
TSL's response is twofold. First, even under Northwind's reading, the clause says "for any single continuous period of breach" — meaning the cap for any given period is $4,500,000. Northwind cannot stack caps; it can claim, at most, $4,500,000 for any one period. Since the actual liquidated damages calculated for each individual incident ($486,750, $464,625, and $553,125, respectively) fall far below the $4,500,000 cap, the per-period interpretation does not change the result on the current claim amounts. What the per-period interpretation would do, however, is open the door for Northwind to argue at trial for inflated per-incident damages or additional breach periods, expanding TSL's theoretical exposure. A ruling in TSL's favor would foreclose that possibility.
Second, and more fundamentally, the per-period reading is inconsistent with the contract's use of "any single" — language that points to one cap, not multiple caps. There is no textual basis for reading Clause 28 as creating a renewable cap that resets with each new incident.
D. Assessment of Likelihood of Success
C&H assesses a strong likelihood of success on this ground. This is a contract-interpretation issue that the court can and should resolve as a matter of law. The Clause 28 language is unambiguous, the legal standard is well-established, and TSL's interpretation is supported by the plain text, the structure of the Charter-Party, and standard canons of construction.
Justice Chen has demonstrated familiarity with complex commercial disputes in the Commercial Division and has, in her prior rulings in this case, shown a willingness to resolve legal issues on the papers where appropriate. Her decision on TSL's motion to dismiss — granting dismissal of Count V and narrowing Count III — reflects a practical, rigorous approach to the issues before her. We are cautiously optimistic that she will find the Clause 28 language sufficiently clear to resolve on summary judgment.
Even partial success on this ground — for example, a ruling that the cap is a single aggregate cap but that further briefing is needed on whether Northwind has exceeded it — would significantly limit Northwind's damages framework heading into any trial or settlement discussions. The clarification itself is valuable, as it removes a major source of uncertainty in assessing TSL's exposure.
IV. ISSUE TWO: THE DEVIATION CLAIM (SEPTEMBER 2022 MAPUTO CALL)
A. The Factual Background
The second proposed ground for partial summary judgment concerns Northwind's claim that TSL directed the M/V Aegean Fortuna to deviate from her planned voyage route, causing Northwind to suffer demurrage and dead freight damages.
In September 2022, the M/V Aegean Fortuna was on a laden voyage from Durban, South Africa to Qingdao, China, carrying a cargo of manganese ore loaded for the account of Northwind's sub-charterer. The vessel departed Durban on approximately September 14, 2022. The planned route would have taken the vessel through the Mozambique Channel, around the northern tip of Madagascar, and across the Indian Ocean to Qingdao, with an estimated arrival date of approximately September 30 to October 1, 2022.
Northwind alleges that TSL directed the vessel to deviate from this route by calling at Maputo, Mozambique, approximately 300 nautical miles north of Durban along the southeastern coast of Africa. According to Northwind, the purpose of the Maputo call was to load TSL's own cargo — an allegation that TSL vigorously denies and for which Northwind has produced no credible evidence.
Northwind claims that the Maputo call added approximately four days to the voyage, causing the vessel to miss its Qingdao laycan window of October 1–5, 2022. Northwind asserts that the missed laycan resulted in demurrage charges of $870,000 and dead freight costs of $360,000, for a total deviation-related claim of $1,230,000. Northwind also attributes a portion of its claimed port costs and bunker expenses — approximately $875,400 — to the deviation.
TSL's position is that the Maputo call was not a commercial deviation but rather a legitimate routing decision necessitated by weather and sea conditions in the Mozambique Channel. Specifically, TSL contends that adverse weather — including a developing tropical disturbance and significant sea states — made the direct transit through the Mozambique Channel from Durban impractical, and that the call at Maputo was within the Master's discretion under both the Charter-Party and general principles of maritime law.
B. Factual Record Supporting Summary Judgment
The factual record on the deviation claim strongly supports summary judgment in TSL's favor. The material facts are substantially undisputed, and Northwind's evidence on this issue is thin.
Deposition Testimony of Captain Nikolaos Giannopoulos (May 10, 2024). Capt. Giannopoulos, the Master of the M/V Aegean Fortuna at the time of the Maputo call, provided detailed and credible testimony regarding the circumstances of the routing decision. He testified that weather conditions in the Mozambique Channel in mid-September 2022 made the direct northbound transit from Durban impractical. Specifically, he described a developing tropical disturbance in the central Mozambique Channel that generated sustained winds of 35–45 knots and significant wave heights of 4–6 meters, conditions that would have posed risks to the vessel and its cargo. Capt. Giannopoulos testified that he made the decision to call at Maputo to shelter and await improved conditions, and that this was a routing and safety decision within his authority as Master. He categorically denied that any TSL shore-side personnel directed him to call at Maputo for commercial purposes or that any TSL cargo was loaded at Maputo.
Voyage Logs and Weather Data. The vessel's official voyage logs, produced by TSL in discovery, corroborate Capt. Giannopoulos's testimony regarding adverse weather conditions in the Mozambique Channel during the relevant period. The logs record the vessel's entry into Maputo harbor on September 17, 2022, and its departure on September 19, 2022, consistent with a two-day weather delay. Additionally, meteorological data obtained from third-party sources during discovery — including satellite weather imagery and reports from the South African Weather Service — confirm the presence of a tropical disturbance in the central Mozambique Channel between approximately September 15 and September 20, 2022, with conditions broadly consistent with those described by Capt. Giannopoulos.
Deposition Testimony of Viktor Lindgren (May 30, 2024). Lindgren, Northwind's Senior Vice President of Commercial Operations and its designated corporate representative on voyage-related topics, made significant concessions during his deposition that undermine Northwind's deviation claim. Under cross-examination by Carlos Espinoza:
•  Lindgren acknowledged that he had no personal knowledge of the weather conditions in the Mozambique Channel in September 2022. He testified that he relied on characterizations provided by his operations team and did not independently review weather data at the time.
•  Lindgren acknowledged that Northwind did not formally protest the Maputo call until after the Qingdao laycan was missed — i.e., not until approximately mid-October 2022, roughly one month after the Maputo call occurred. When asked why Northwind did not protest at the time, Lindgren stated that "we were monitoring the situation but did not raise a formal objection at that point."
•  Lindgren acknowledged that he could not identify any specific TSL cargo that was loaded at Maputo. When pressed, he conceded that his understanding of TSL's alleged commercial motive for the Maputo call was based on internal Northwind discussions rather than any direct evidence.
Dr. Sørensen's Expert Report (August 5, 2024). Dr. Sørensen, TSL's maritime engineering expert, conducted a detailed analysis of the weather and sea conditions in the Mozambique Channel during the relevant period and the vessel's routing options. He concluded that the Maputo call was consistent with reasonable routing under the prevailing weather conditions and did not constitute a deviation under standard maritime practice. Dr. Sørensen's analysis included a review of the vessel's voyage logs, weather data from multiple sources, and the vessel's technical specifications and cargo stability requirements. His opinions are well-supported and will be presented in declaration form in support of the motion.
Charter-Party Clause 5 (Trade Limits). The Charter-Party's trade limits provision provides for worldwide trading and does not contain any specific restriction on calls at Maputo or any other East African port. Clause 5 restricts the vessel's trading only to the extent that it prohibits calls at (a) ports subject to sanctions administered by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, (b) war-risk zones as designated by the London Joint War Committee, and (c) ice-bound waters north of 68° North latitude. Maputo falls within none of these categories. Accordingly, there is no contractual basis for Northwind's contention that the Maputo call was prohibited or unauthorized.
No Evidence of TSL Cargo at Maputo. Northwind's allegation that TSL directed the Maputo call to load its own cargo appears to rest on a single piece of evidence: an email dated October 18, 2022, from a Northwind operations manager (Elena Rodriguez) to Viktor Lindgren, in which Rodriguez speculated that "TSL may have had its own cargo interests in Maputo." However, this email was written approximately one month after the Maputo call, was not based on first-hand knowledge, and is expressly framed as speculation. No documents produced in discovery — including TSL's cargo booking records, port agency records, and billing records for the Maputo call — support the allegation that TSL loaded any cargo at Maputo. The port records confirm that the vessel did not conduct any cargo operations during its approximately two-day stay in Maputo.
C. Legal Standard and Analysis
As set forth in C&H's internal research memorandum dated January 8, 2024, prepared by Carlos Espinoza, the law governing a Master's authority to deviate from an agreed route is well established under both New York maritime law and general principles of admiralty.
Reasonable Deviation. Under New York law, a Master has broad discretion to deviate from an agreed or planned route where justified by safety, weather, or other reasonable navigational considerations. See The Willdomino, 272 U.S. 718, 727 (1927) (recognizing the Master's authority to deviate for reasonable cause); Carriage of Goods by Sea Act, 46 U.S.C. § 30701 note, § 4(4) (providing that deviation in saving or attempting to save life or property at sea, or "any reasonable deviation," shall not be deemed a breach). Where the deviation is reasonable, it does not give rise to liability, and the charterer bears no entitlement to damages.
Burden of Proof. The burden is on Northwind to establish that the deviation was unauthorized and unreasonable. See Sedco, Inc. v. S.S. Strathewe, 800 F.2d 27, 30 (2d Cir. 1986). The undisputed record in this case shows that weather conditions in the Mozambique Channel justified the routing decision, and Northwind has produced no admissible evidence to the contrary. Northwind's sole evidence of an improper motive is the speculative email from Elena Rodriguez, which is inadmissible hearsay to the extent offered for the truth of the matter asserted and, in any event, is expressly characterized as speculation rather than fact.
Causation. Even if the Maputo call were characterized as a deviation — which TSL vigorously disputes — Northwind must prove that the four-day delay directly caused the missed Qingdao laycan. The record, however, shows that other factors contributed to the missed laycan window. Specifically, evidence produced in discovery establishes that the Port of Qingdao experienced significant congestion in late September and early October 2022, with average anchorage wait times of 5–8 days for bulk carriers. Dr. Sørensen's report addresses this issue and concludes that, even absent the Maputo call, the M/V Aegean Fortuna would likely have faced delays at Qingdao that could have resulted in a missed laycan. Northwind has not established that the Maputo call was the proximate cause of its claimed damages, as opposed to a contributing factor among several.
D. Assessment of Likelihood of Success
C&H assesses a good likelihood of success on this ground. The factual record is favorable to TSL, and Northwind's evidence is materially deficient. Capt. Giannopoulos's testimony is detailed, credible, and corroborated by contemporaneous voyage logs and independent weather data. Lindgren's concessions — particularly his admission of no personal knowledge and the absence of a contemporaneous protest — significantly undermine Northwind's position. The speculative Rodriguez email, standing alone, is insufficient to create a genuine issue of material fact.
If granted, this ruling would eliminate the $1,230,000 in demurrage and dead freight damages attributable to the deviation claim and would likely also eliminate or reduce the associated port and bunker costs of approximately $875,400. Moreover, dismissal of the deviation claim would simplify the issues remaining for trial and remove a factual narrative that Northwind has used to paint TSL as a bad actor.
We acknowledge that there is some risk that the court could deny summary judgment on this issue if it concludes that a genuine factual dispute exists as to whether TSL had a commercial motive for the Maputo call. Even in that scenario, however, the motion would serve a valuable purpose: it would force Northwind to commit to its factual theory in its opposition papers, narrow the issues for trial, and demonstrate to the court the thinness of Northwind's evidence on this claim. The record developed through summary judgment briefing would also be useful in any subsequent settlement discussions.
V. STRATEGIC CONSIDERATIONS
A. Impact on Damages Framework
Northwind's total claimed damages in this action are $18,300,000. This figure includes the following principal components:
If both grounds for summary judgment are granted, the practical impact on the damages framework would be substantial:
•  Clause 28 Interpretation: A ruling confirming the single-cap interpretation would clarify that the maximum liquidated damages recoverable under the Charter-Party is $4,500,000, regardless of the number of incidents. While Northwind's current claim is at this level, the ruling would foreclose any attempt to argue for higher liquidated damages at trial or to inflate the damages framework through the per-period cap theory. The ruling would also affect how the court and the parties calculate exposure in settlement discussions.
•  Deviation Claim: A ruling dismissing the deviation claim would eliminate $1,230,000 in demurrage and dead freight damages and would reduce the port/bunker costs claim by approximately $875,400 — the portion of those costs attributable to the Maputo deviation theory.
•  Combined Impact: The motion, if fully successful, would eliminate or significantly reduce approximately $10.8 million of theoretical exposure (accounting for the per-period cap inflation and the deviation-related damages and costs) and would clarify the damages picture heading into trial or settlement.
Beyond the direct dollar impact, the motion sends an important signal to both the court and opposing counsel. It demonstrates that TSL's defenses are meritorious and well-supported by the record, which can influence the court's approach to case management and trial scheduling, and can affect Northwind's willingness to engage in meaningful settlement discussions.
B. Settlement Positioning
C&H anticipates that settlement discussions may occur in this matter, either through a court-ordered mediation or through direct negotiations between the parties. Justice Chen has, in other Commercial Division matters, ordered parties to mediate following the completion of summary judgment briefing, and we believe there is a reasonable likelihood that she will do so here.
A strong pending motion for partial summary judgment — or, even better, a favorable ruling on one or both grounds — would materially strengthen TSL's negotiating position. The motion would:
•  Demonstrate to Northwind and its counsel that TSL's defenses are substantive, not merely procedural, forcing Northwind to reassess its damages expectations;
•  Create litigation risk for Northwind — if the motion is granted, Northwind loses significant portions of its claim before trial, which incentivizes early settlement;
•  Provide a framework for settlement discussions by establishing the legal parameters of TSL's exposure, rather than allowing Northwind to negotiate based on an inflated and legally unsupportable damages figure.
TSL's counterclaim for $1,620,000 in withheld hire also provides meaningful settlement leverage. The counterclaim, which seeks recovery of hire for the period from October 1, 2022 through December 31, 2022, is well-supported by the Charter-Party and the undisputed fact that Northwind ceased paying hire during this period. In settlement discussions, the counterclaim can be used both as a negotiating chip and as a set-off against any agreed resolution amount.
C. Issues Not Included in the Motion
C&H has carefully considered which issues to include in the motion and has determined that the two grounds described above offer the strongest prospects for success while presenting the least risk of an adverse ruling. We do not recommend seeking summary judgment on the following issues at this time:
Incident 1 (Latent Defect Defense). TSL's defense to Incident 1 (the March 2022 turbocharger failure) rests on the contention that the failure was caused by a latent defect not discoverable through the exercise of due diligence. While Dr. Sørensen's report supports this defense, the latent defect issue involves factual questions — including whether TSL's maintenance protocols were sufficient to detect the defect and whether class survey records reflected any warning signs — that are likely to give rise to genuine disputes of material fact. These issues are better addressed at trial, where TSL can present live testimony from its engineering witnesses, or through settlement.
Incident 2 (Charterer Causation Defense). TSL's defense to Incident 2 (the July 2022 BWTS/boiler failure) involves the contention that Northwind's instructions regarding ballast water exchange protocols contributed to the failure. This defense involves factual disputes regarding the content and effect of Northwind's instructions, which are better resolved at trial.
Inter-Club Agreement Defense ($3,420,000). TSL's defense to the Inter-Club Agreement cargo damage claims presents a mixed question of law and fact that is less suited for summary judgment. The defense requires the court to interpret the Inter-Club Agreement in the context of specific cargo damage events and to apportion liability between owner and charterer — an inherently factual inquiry.
Third-Party Shipper Claims ($5,634,400). These claims were already narrowed by Justice Chen's March 8, 2024 ruling on TSL's motion to dismiss. Further narrowing of these claims may be sought at trial through motions in limine or a directed verdict, but the remaining claims involve factual questions that are not suitable for summary judgment.
D. Timing.  We propose the following timeline for the motion:
This timeline is compatible with any mediation or settlement process that might be ordered or initiated. If Justice Chen orders mediation following the filing of the motion (as she has done in comparable matters), the parties could engage in mediation while the motion is fully briefed and pending decision. This would allow TSL to enter mediation with maximum leverage.
The timeline also accounts for the rebuttal expert reports due September 9, 2024. We will review both parties' rebuttal reports promptly upon receipt and incorporate any relevant material into the motion papers.
E. Costs.  The estimated additional C&H fees for preparing and filing the motion for partial summary judgment are approximately $85,000 to $110,000. This estimate encompasses the following:
•  Preparation of the memorandum of law in support of the motion;
•  Preparation of TSL's Rule 19-a Statement of Undisputed Material Facts (required under the New York Supreme Court, Commercial Division rules);
•  Preparation of supporting declarations from Carlos Espinoza (attaching relevant deposition transcripts, documents, and other record evidence), Dr. Henrik Sørensen, and Dr. Constance Albright;
•  Preparation of a proposed order;
•  Internal review and quality control by Douglas Carmichael and Francesca Morano.
Additional costs may be incurred for reply briefing (estimated at approximately $25,000–$35,000) and preparation for oral argument (estimated at approximately $10,000–$15,000), depending on the nature and scope of Northwind's opposition.
C&H believes these costs are justified in light of the potential impact on TSL's damages exposure and settlement positioning. The motion targets approximately $10.8 million of theoretical exposure at a cost of less than 1% of that amount. Moreover, the work product generated in connection with the motion — including the memorandum of law, the Rule 19-a statement, and the supporting declarations — will be valuable in connection with trial preparation and settlement discussions regardless of the outcome of the motion.
VI. EXPERT SUPPORT FOR THE MOTION
A. Dr. Henrik Sørensen (Maritime Engineering)
Dr. Sørensen of Nordic Maritime Consulting Group ApS will provide a sworn declaration in support of the motion, summarizing his expert opinions on the following topics:
(a) The latent defect nature of the turbocharger failure in Incident 1 — while this issue is not a proposed ground for summary judgment, Dr. Sørensen's opinions on the technical background of the vessel's mechanical systems provide supportive context for the court's understanding of the case;
(b) TSL's compliance with its maintenance and seaworthiness obligations under the Charter-Party, including a summary of the vessel's class status, maintenance records, and drydocking history;
(c) The reasonableness of the Maputo routing decision based on weather and sea conditions in the Mozambique Channel in September 2022 — this is the critical opinion for the deviation ground and draws on Dr. Sørensen's detailed analysis of weather data, voyage logs, and the vessel's technical specifications.
Dr. Sørensen's expert report, served on August 5, 2024, already addresses the deviation issue in detail and provides the analytical foundation for his declaration. The declaration will distill his key opinions into a format suitable for summary judgment and will attach relevant exhibits, including weather charts, voyage track data, and port records.
Expert fees for the preparation of Dr. Sørensen's declaration are estimated at approximately $15,000, which falls within the overall $285,000 expert engagement budget previously approved by TSL for Dr. Sørensen's retention.
B. Dr. Constance Albright (Damages)
Dr. Albright of Clearwater Economics LLC will provide a sworn declaration in support of the motion, summarizing her expert opinions on the following topics:
(a) The proper interpretation and application of the Clause 28 liquidated damages formula and cap, including a detailed analysis of the contractual language and its economic implications;
(b) The mathematical implications of the single-cap versus per-period-cap interpretations, demonstrating the impact on TSL's damages exposure under each scenario.
Dr. Albright's expert report, served on August 5, 2024, contains the relevant analysis and calculations. Her declaration will present this analysis in summary form, with supporting calculations and tables.
Expert fees for the preparation of Dr. Albright's declaration are estimated at approximately $10,000, which falls within the overall $210,000 expert engagement budget previously approved by TSL for Dr. Albright's retention.
VII. REQUESTED AUTHORIZATION
C&H respectfully requests that TSL management authorize the filing of the motion for partial summary judgment on the two grounds described in this memorandum:
1.  A ruling that the $4,500,000 liquidated damages cap set forth in Clause 28 of the Charter-Party applies as a single aggregate maximum, not as a per-incident cap; and
2.  Dismissal of Northwind's deviation claim related to the September 2022 Maputo call, including all associated demurrage, dead freight, and port/bunker cost claims.
The motion would be filed on or about September 20, 2024.
C&H requests confirmation of authorization by September 10, 2024, to allow sufficient time for the preparation of motion papers, expert declarations, and supporting materials.
If authorized, C&H will prepare draft motion papers and circulate them to Markos Theodorakis for TSL's review and comment prior to filing.
VIII. NEXT STEPS
Upon receipt of TSL's authorization, C&H proposes the following immediate next steps:
1.  Preparation of Motion Papers. C&H will prepare the memorandum of law in support of the motion, the Rule 19-a Statement of Undisputed Material Facts, supporting declarations (Carlos Espinoza, Dr. Henrik Sørensen, and Dr. Constance Albright), and a proposed order.
2.  Client Review. C&H will circulate draft motion papers to Markos Theodorakis for review and comment by approximately September 15, 2024. We ask that TSL provide any comments or corrections promptly to ensure that the motion can be finalized and filed by the September 20, 2024 target date.
3.  Filing. C&H will file the motion via NYSCEF (New York State Courts Electronic Filing System) on or about September 20, 2024 and will serve copies on Northwind's counsel of record, Harrington Burke & Associates LLP, in accordance with applicable service requirements.
4.  Coordination with Greek Counsel. C&H will coordinate with Konstantinou & Rizos Law Offices in Athens if any issues arise in connection with Greek corporate authority or the authentication of documents related to the deposition testimony of Capt. Giannopoulos and Chief Engineer Vlahos, both of whom were deposed in Piraeus.
5.  Rebuttal Expert Reports. C&H will continue to monitor the rebuttal expert reports due September 9, 2024. Upon receipt, C&H will review both TSL's and Northwind's rebuttal reports and incorporate any relevant material into the motion papers.
6.  Mediation and Settlement Preparation. C&H will prepare for potential mediation or settlement discussions that may follow the filing of the motion. If Justice Chen orders mediation, C&H will prepare a mediation statement and strategy memorandum for TSL's consideration.
IX. CONTACT INFORMATION
Please do not hesitate to contact any of the following members of the C&H team with questions regarding this memorandum or any aspect of this matter:
Douglas Carmichael, Partner (Responsible Partner) Direct Dial: (212) 554-7112
Email: dcarmichael@calderwoodharkness.com
Francesca Morano, Partner (Billing Partner) Direct Dial: (212) 554-7238
Email: fmorano@calderwoodharkness.com
Carlos Espinoza, Senior Associate (Lead Associate) Direct Dial: (212) 554-7491
Email: cespinoza@calderwoodharkness.com
All at: Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006
We appreciate TSL's confidence in C&H's handling of this matter and look forward to receiving your authorization to proceed with the motion.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Douglas Carmichael Partner
By: ________
Francesca Morano Partner
By: ________
Carlos Espinoza Senior Associate
Enclosures / Attachments: None enclosed with this memorandum. Referenced research memoranda (H. Brinkley, November 5, 2023; H. Brinkley, November 20, 2023; C. Espinoza, January 8, 2024) and expert reports (Dr. H. Sørensen, August 5, 2024; Dr. C. Albright, August 5, 2024) are available upon request and will be provided to TSL management upon inquiry.
Prior Client Update Memoranda Referenced:
•  discovery Status and Strategy Memorandum, dated June 30, 2024
•  Post-Motion to Dismiss Ruling Memorandum, dated March 11, 2024
This memorandum is a privileged and confidential attorney-client communication and attorney work product. It is not intended for distribution to any person other than the named addressees and should not be forwarded, copied, or disclosed without the prior written consent of Calderwood & Harkness LLP.
Incident | Off-Hire Days | Daily Rate | 150% Multiplier | Liquidated Damages
Incident 1 (March 12 – April 2, 2022) | 22 days | $14,750 | 150% | $486,750
Incident 2 (July 8 – July 29, 2022) | 21 days | $14,750 | 150% | $464,625
Incident 3 (November 15 – December 10, 2022) | 25 days | $14,750 | 150% | $553,125
Total | 68 days | $1,504,500
Damages Category | Amount Claimed
Liquidated damages (Clause 28) | $4,500,000
Third-party shipper cargo claims | $5,634,400
Deviation-related demurrage and dead freight | $1,230,000
Inter-Club Agreement cargo claims | $3,420,000
Additional port/bunker costs (including deviation-related) | $2,315,600
Miscellaneous operational losses | $1,200,000
Total | $18,300,000
Milestone | Date
TSL authorization to file | September 10, 2024
Circulation of draft motion papers to Markos Theodorakis | September 15, 2024
Motion filing date | September 20, 2024
Northwind's opposition due (approx. 30 days) | Mid-October 2024
TSL's reply (approx. 14 days after opposition) | Late October / Early November 2024
Oral argument (estimated) | Late November – Early December 2024

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

MEMORANDUM

I. EXECUTIVE SUMMARY

II. PROCEDURAL BACKGROUND AND CURRENT STATUS

III. ISSUE ONE: LIQUIDATED DAMAGES CAP INTERPRETATION UNDER CLAUSE 28

IV. ISSUE TWO: THE DEVIATION CLAIM (SEPTEMBER 2022 MAPUTO CALL)

V. STRATEGIC CONSIDERATIONS

VI. EXPERT SUPPORT FOR THE MOTION

VII. REQUESTED AUTHORIZATION

VIII. NEXT STEPS

IX. CONTACT INFORMATION

CALDERWOOD & HARKNESS LLP

Record

Parties

Dates

Amounts