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

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MEMORANDUM — PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT

FROM: Carlos Espinoza, Calderwood & Harkness LLP

TO: Douglas Carmichael, Francesca Morano

CC: Hannah Brinkley

DATE: August 26, 2024

RE: Internal Analysis of Northwind's Expert Reports — Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division (Part 49, Hon. Lorraine K. Chen, J.S.C.)

C&H MATTER NO.: 1044-00006

PRIVILEGE DESIGNATION: This memorandum constitutes attorney work product prepared in anticipation of litigation and is protected from disclosure under the work product doctrine and attorney-client privilege. This memorandum reflects the mental impressions, conclusions, opinions, and legal theories of counsel. It is intended solely for the use of the addressees and should not be disclosed to any third party without the express written consent of Calderwood & Harkness LLP.

I. Executive Summary

The purpose of this memorandum is to evaluate and identify weaknesses, inconsistencies, and potential challenges in the two expert reports served by Northwind Maritime Corporation ("Northwind"), through its counsel Hargrove, Delacroix & Stern LLP ("HD&S"), on August 19, 2024, in connection with the above-captioned action. This analysis is prepared for the litigation team representing Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna" and, together with TSL, "Defendants") to inform our rebuttal strategy, our planned partial summary judgment motion, and potential motions in limine.

The two expert reports at issue are as follows:

1. Report of Captain Julian Blackmore (Ret.), Blackmore Maritime Advisory Ltd., 12 Mincing Lane, London EC3R 7AA, United Kingdom — retained as Northwind's maritime operations expert. Captain Blackmore offers opinions on seaworthiness, vessel maintenance, causation of the three mechanical incidents at issue in this case, the September 2022 Maputo deviation, and prevailing industry standards for vessel maintenance.

2. Report of Dr. Rajesh Anand, Pinnacle Valuation Partners LLP, 399 Park Avenue, Suite 2200, New York, NY 10022 — retained as Northwind's damages expert. Dr. Anand offers opinions on the quantification of Northwind's total claimed damages of $18,300,000 across nine separate categories.

Overall Assessment. Both reports contain significant analytical weaknesses that can be exploited at summary judgment, on rebuttal, and potentially through reliability-based challenges to the admissibility of expert testimony. While New York state courts apply the Frye "general acceptance" standard rather than the federal Daubert standard (see CPLR 3101; Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)), reliability-based challenges remain viable in Commercial Division practice, particularly where, as here, an expert's opinions rest on incomplete data, fail to account for contrary evidence, or constitute impermissible legal opinions dressed as expert testimony. Justice Chen's Part 49 has been receptive to such challenges in prior matters.

Captain Blackmore's report suffers from a failure to engage with key evidence that contradicts his opinions — most notably the metallurgical analysis from the Colombo repair (supporting TSL's latent defect defense on Incident 1), the ballast water sample analysis from Richards Bay (supporting TSL's contaminated-ballast theory on Incident 2), and the Master's contemporaneous log entries and deposition testimony regarding the Maputo deviation. His methodology is largely narrative and opinion-based, with limited quantitative analysis, no independent testing, and a troubling reliance on unsourced or outdated "industry practice" standards.

Dr. Anand's report is, at its core, a compilation of Northwind's own claimed figures rather than an independent economic analysis. He does not conduct any market analysis, regression modeling, or statistical work. His damages calculations are heavily dependent on Captain Blackmore's factual assumptions, meaning that any weakness in Blackmore's report cascades directly into the damages analysis. Most critically, Dr. Anand's aggregate damages figure of $18,300,000 is infected by significant double-counting across multiple categories, which we estimate at approximately $1.5 to $2.0 million. His treatment of the Clause 28 liquidated damages cap also improperly ventures into legal opinion testimony.

Recommendation. We recommend that rebuttal reports from Dr. Henrik Sørensen (Nordic Maritime Consulting Group ApS) and Dr. Constance Albright (Clearwater Economics LLC) be prepared and served by the September 9, 2024 deadline, targeting the specific weaknesses identified in this memorandum. This memorandum also flags areas where Northwind's experts' own opinions may affirmatively support TSL's pending partial summary judgment motion, which is currently scheduled for filing on September 20, 2024. (Note that this memorandum predates the filing of that motion, and the observations herein should inform the drafting of the motion papers.)

A coordination meeting with the full litigation team, including Drs. Sørensen and Albright, is recommended for the week of September 2, 2024, to finalize rebuttal strategy and to ensure alignment between the rebuttal reports and the summary judgment motion.

II. Background and Procedural Context

This action arises out of a time charter-party on the New York Produce Exchange Form 2015 ("NYPE 2015"), executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as disponent owner) and Northwind Maritime Corporation (as charterer) for the vessel M/V Aegean Fortuna (IMO 9847231). The M/V Aegean Fortuna is a Supramax dry bulk carrier with a deadweight tonnage of 58,200 DWT, registered under the Liberian flag and classified by the Global Maritime Classification Bureau ("GMCB"). Aegean Fortuna Shipholding Ltd. is a Liberian corporation (Registration No. LR-C-20167845), wholly owned by TSL, a Swiss-incorporated shipping and logistics conglomerate.

The charter-party provided for a thirty-six (36) month charter period running from January 15, 2021 through January 14, 2024, at a daily hire rate of $14,750 per day. During the charter period, three mechanical incidents and one alleged commercial deviation occurred, which form the basis of Northwind's claims in this action.

Northwind commenced this action by filing a summons and complaint on October 20, 2023, asserting claims for breach of charter-party, breach of the implied warranty of seaworthiness, indemnification, and unjust enrichment. TSL and Aegean Fortuna answered on December 15, 2023, asserting various affirmative defenses including latent defect, contaminated ballast, the Master's reasonable exercise of navigational discretion, failure to mitigate damages, and the applicability of the Inter-Club Agreement. TSL also filed a counterclaim for unpaid hire and demurrage in the amount of $2,175,000.

On March 8, 2024, Justice Chen issued a decision on TSL's pre-answer motion to dismiss, which narrowed Count III (third-party shipper claims) and dismissed Count V (unjust enrichment) in its entirety. The remaining counts survived the motion. This ruling is particularly relevant to our analysis of Dr. Anand's treatment of the third-party shipper claims category, as discussed in Section IV.I below.

Northwind's total claimed damages, as quantified by Dr. Anand, amount to $18,300,000 across nine categories.

The key procedural milestones relevant to this memorandum are as follows:

• discovery Period: January 2024 through August 2024.

• Key Depositions Completed:

• Alexandros Stavridis (TSL Director of Operations) — April 22, 2024

• Captain Nikolaos Giannopoulos (Master, M/V Aegean Fortuna) — May 10, 2024

• Viktor Lindgren (Northwind VP of Chartering) — May 30, 2024

• Sandra Chow (Northwind Operations Manager) — June 14, 2024

• Chief Engineer Petros Vlahos (M/V Aegean Fortuna) — June 28, 2024

• Three additional fact witnesses (Northwind commercial personnel and third-party shipper representatives) — July 2024

• TSL's Expert Reports Served: August 5, 2024 (Dr. Henrik Sørensen on maritime engineering; Dr. Constance Albright on damages).

• Northwind's Expert Reports Served: August 19, 2024 (Captain Julian Blackmore on maritime operations; Dr. Rajesh Anand on damages).

• Rebuttal Reports Due: September 9, 2024.

• TSL's Partial Summary Judgment Motion: To be filed September 20, 2024.

III. Analysis of Captain Julian Blackmore's Report (Maritime Operations Expert)

A. Qualifications and Scope

Captain Julian Blackmore is a retired ship master and the principal of Blackmore Maritime Advisory Ltd., based in London. His report identifies his qualifications as including approximately thirty years of seagoing experience, culminating in service as master on various vessels, followed by approximately fifteen years of consulting work in maritime disputes and casualty investigations. He has testified as an expert in proceedings before the English High Court (Admiralty Division), several London arbitrations, and, on two occasions, in proceedings before United States federal courts.

Captain Blackmore has been retained by Northwind to offer opinions in four areas: (1) the seaworthiness and maintenance obligations of TSL under Clauses 2 and 6 of the charter-party; (2) the causation of the three mechanical incidents at issue in this action (the turbocharger failure, the BWTS/boiler failure, and the cylinder liner failure); (3) the nature and propriety of the September 2022 Maputo deviation; and (4) the applicable industry standards for vessel maintenance relevant to the foregoing.

Qualifications Assessment. Captain Blackmore appears generally qualified as a maritime operations expert, and we do not recommend a facial challenge to his qualifications. However, a review of his curriculum vitae and prior expert engagements reveals that his seagoing experience was primarily in container vessel operations — a materially different sector from the dry bulk trade in which the M/V Aegean Fortuna operates. The operational profiles, maintenance regimes, and mechanical stresses relevant to Supramax dry bulk carriers differ in significant respects from those applicable to container vessels. While this distinction is unlikely to result in exclusion, it represents a productive area for cross-examination, particularly with respect to Blackmore's opinions on "industry standard" maintenance practices. Dr. Sørensen, whose experience is specifically in dry bulk vessel engineering, is well positioned to draw this distinction in his rebuttal report.

B. Opinion on Incident 1: Turbocharger Failure (March 12 – April 2, 2022)

Captain Blackmore opines that the turbocharger failure that occurred on March 12, 2022, rendering the vessel incapable of maintaining full service speed and resulting in an off-hire period of twenty-two (22) days (through April 2, 2022, when repairs were completed in Colombo, Sri Lanka), was attributable to TSL's failure to conduct adequate preventive maintenance on the vessel's main engine turbocharger. In reaching this opinion, Blackmore relies on the turbocharger manufacturer's recommended maintenance intervals and asserts that TSL fell below the applicable industry standard by failing to conduct timely inspections and servicing of the turbocharger assembly. He characterizes the failure as a predictable consequence of deferred maintenance rather than a latent or manufacturing defect.

Weaknesses Identified:

1. Failure to Address the GMCB Classification Survey. Captain Blackmore does not address — or even reference — the GMCB classification survey conducted in November 2021, approximately four months before the turbocharger failure. The GMCB surveyor's report, which was produced during discovery and is part of the trial record, found the turbocharger in "satisfactory condition" as of the date of inspection. This survey constitutes contemporaneous, independent evidence that the turbocharger was properly maintained and functioning within acceptable parameters as of November 2021. Blackmore's failure to account for this evidence is a significant omission that directly contradicts his negligent-maintenance theory. Dr. Sørensen's rebuttal report should prominently feature the GMCB survey findings.

2. Reliance on Generic Maintenance Schedules. Blackmore relies on the turbocharger manufacturer's generalized recommended maintenance intervals without accounting for the specific operating profile of the M/V Aegean Fortuna, including its trading routes, engine running hours, load factors, and fuel quality — all of which affect the applicable maintenance timeline. Moreover, the documentary evidence produced in discovery demonstrates that the turbocharger had been serviced within the manufacturer's recommended interval. Blackmore does not address this evidence or explain why he considers the servicing inadequate despite its compliance with the manufacturer's schedule.

3. Failure to Address the Metallurgical Analysis. During the Colombo repair, the damaged turbocharger components were subjected to a metallurgical analysis by an independent laboratory. The metallurgical report, obtained during discovery, identified a casting defect in the turbine blade as the proximate cause of the failure — specifically, a subsurface porosity defect consistent with a manufacturing flaw that would not have been detectable through routine visual inspection or standard maintenance procedures. This finding forms the basis of Dr. Sørensen's latent defect opinion. Captain Blackmore's report does not reference the metallurgical analysis, does not attempt to rebut its findings, and does not explain why he has disregarded it. This is perhaps the most significant weakness in his Incident 1 opinion, and it renders that opinion vulnerable to a reliability challenge on the ground that it fails to account for material contrary evidence.

4. Concession on Latent Defects. Notably, Blackmore includes a footnote (footnote 14 at page 23 of his report) acknowledging that "certain types of turbocharger failures can be caused by manufacturing defects that are not detectable through routine inspection." This concession directly undermines his own opinion that the failure was attributable to inadequate maintenance rather than a latent defect. We should ensure that this footnote is prominently cited in Dr. Sørensen's rebuttal report, in our summary judgment papers, and preserved for cross-examination. The concession may be characterized as an admission against interest by Northwind's own expert that supports TSL's latent defect defense.

5. Internal Inconsistency on Replacement Standard. Blackmore asserts that TSL should have proactively replaced the turbocharger prior to the failure, but he also acknowledges that replacement is not required under GMCB class rules absent a formal deficiency finding by the classification society. Since no such deficiency finding was issued — and indeed the GMCB survey found the turbocharger in satisfactory condition — Blackmore's replacement opinion is inconsistent with the applicable regulatory framework. This inconsistency further weakens the credibility of his Incident 1 opinion and provides additional material for cross-examination.

C. Opinion on Incident 2: BWTS / Boiler Failure (July 8 – July 29, 2022)

Captain Blackmore opines that the ballast water treatment system ("BWTS") malfunction that occurred on July 8, 2022, and the auxiliary boiler failure that followed shortly thereafter — resulting in a combined off-hire period of twenty-one (21) days through July 29, 2022, when repairs were completed at Richards Bay, South Africa — were both caused by TSL's inadequate maintenance of the BWTS and boiler systems. He dismisses TSL's theory that the BWTS malfunction was caused by contaminated ballast water loaded by Northwind's agents at a prior port of call, characterizing this theory as "speculative" and unsupported by the evidence.

Weaknesses Identified:

1. Failure to Address the Water Sample Analysis. Blackmore does not adequately address — and largely ignores — the water sample analysis conducted on ballast water taken from the vessel's ballast tanks at Richards Bay following the BWTS malfunction. The analysis, performed by an independent marine survey laboratory, showed unusually high sediment levels and elevated concentrations of chemical contaminants (including dissolved metals and organic compounds) that were inconsistent with normal seawater composition. This evidence is directly relevant to TSL's contaminated-ballast defense and supports the inference that the BWTS was overwhelmed by contaminants in the ballast water rather than by any maintenance deficiency. Blackmore's failure to engage with this evidence is a critical gap in his analysis.

2. Inadequate Dismissal of the Contaminated-Ballast Theory. Blackmore's dismissal of TSL's contaminated-ballast theory rests on the generalized assertion that "modern BWTS systems are designed to handle varying water quality." This assertion, however, does not engage with the specific technical specifications and documented sensitivity thresholds of the BWTS model installed on the M/V Aegean Fortuna. Different BWTS systems have different tolerance ranges for sediment load and chemical contamination, and the system installed on the vessel may have been operating within its design limits under normal conditions while being susceptible to failure when exposed to the exceptionally contaminated ballast water documented by the Richards Bay analysis. Blackmore's failure to conduct a system-specific analysis renders his dismissal of the contaminated-ballast theory conclusory.

3. Conflation of the BWTS and Boiler Failures. Captain Blackmore treats the BWTS malfunction and the auxiliary boiler failure as a single composite maintenance failure, attributing both to TSL's general negligence. Dr. Sørensen's report, by contrast, treats these as separate mechanical events with distinct causes. Specifically, Dr. Sørensen opines — and the engineering evidence supports — that the boiler failure was a cascading consequence of the BWTS shutdown. When the BWTS went offline, the vessel lost its primary cooling water supply to the auxiliary boiler system, resulting in overheating and the boiler's emergency shutdown. This cascading-failure analysis means that the boiler failure is properly attributed to the same root cause as the BWTS malfunction (i.e., contaminated ballast, under TSL's theory) rather than to an independent and separate maintenance deficiency. Blackmore's conflation of the two failures obscures this causal chain and artificially inflates his "pattern of deferred maintenance" narrative.

4. Failure to Address Chief Engineer Vlahos's Testimony. Chief Engineer Petros Vlahos testified at his deposition on June 28, 2024, that the BWTS had been serviced in accordance with the manufacturer's specifications approximately six weeks before the July 8 malfunction. Blackmore does not reference or address this testimony. This omission is significant because Vlahos's testimony directly contradicts Blackmore's opinion that the malfunction resulted from inadequate maintenance. If the BWTS was properly maintained within weeks of the failure, the maintenance-failure theory becomes difficult to sustain absent some other explanation — precisely the kind of explanation that the contaminated-ballast theory provides.

5. Potential Reliability Challenge on BWTS Causation. Captain Blackmore offers no independent testing, modeling, simulation, or quantitative analysis to support his opinion on BWTS causation. He does not analyze the BWTS system's failure logs, does not review the system's operational data, and does not conduct any engineering analysis of the failure mode. His opinion is essentially ipse dixit — a bare assertion of professional judgment unsupported by any defined methodology. This renders his BWTS causation opinion potentially vulnerable to a motion in limine on reliability grounds, even under the Frye standard. We recommend that Dr. Sørensen's rebuttal report include a detailed technical analysis of the BWTS failure mode, incorporating the water sample data and the system's documented specifications, to provide the Court with a methodologically rigorous alternative to Blackmore's unsupported opinion.

D. Opinion on Incident 3: Cylinder Liner Failure (November 15 – December 10, 2022)

Captain Blackmore opines that the cylinder liner failure that occurred on November 15, 2022 — resulting in the vessel being taken out of service for drydock repairs — was a foreseeable consequence of TSL's alleged "pattern of deferred maintenance." He characterizes this incident as the culmination of systematic under-investment in the vessel's mechanical systems, linking it narratively to the turbocharger failure (Incident 1) and the BWTS/boiler failure (Incident 2).

Weaknesses Identified:

1. TSL Has Conceded Liability on Incident 3. As Douglas and Francesca are aware, TSL has conceded that the cylinder liner failure was a maintenance failure and does not contest liability for Incident 3. The dispute on this incident is limited to quantum — specifically, the duration of the off-hire period. Blackmore's liability opinion on Incident 3 therefore adds little to Northwind's case on this point, as it addresses a matter that is no longer contested.

2. The "Pattern of Deferred Maintenance" Narrative Is Undermined. Blackmore's framing of Incident 3 as part of a broader pattern of deferred maintenance depends on the premise that Incidents 1 and 2 were also maintenance failures. As discussed above, however, Blackmore's own footnote 14 concedes the possibility of a latent defect as the cause of the turbocharger failure (Incident 1), and his analysis of the BWTS/boiler failure (Incident 2) fails to account for the contaminated-ballast evidence. If Incidents 1 and 2 are attributable to causes other than deferred maintenance — as TSL contends — then the "pattern" narrative collapses, and Incident 3 becomes an isolated maintenance failure rather than evidence of systemic negligence. Dr. Sørensen's rebuttal should make this point explicitly.

3. Inflated Off-Hire Period. Blackmore asserts that the vessel was not fully operational until December 13, 2022, resulting in an off-hire period of twenty-eight (28) days for Incident 3. However, the documentary evidence contradicts this assertion. The drydock completion certificate issued by Keppel Verolme Shipyard in Rotterdam confirms that the vessel was released from drydock and returned to operational status on December 10, 2022 — twenty-five (25) days after the failure. Blackmore does not explain the basis for his assertion that the vessel was not fully operational until three days after the drydock completion certificate was issued. TSL's position is that the correct off-hire period for Incident 3 is 25 days, consistent with the documentary record. This 3-day discrepancy has downstream effects on Dr. Anand's damages calculations, as discussed in Section IV below.

E. Opinion on the Maputo Deviation (September 2022)

Captain Blackmore opines that the M/V Aegean Fortuna's call at the Port of Maputo, Mozambique, in September 2022, constituted a commercial deviation undertaken for TSL's benefit — specifically, to load cargo for TSL's own account — rather than a weather-necessitated routing decision within the Master's reasonable discretion. In support of this opinion, Blackmore cites satellite-derived weather data from a third-party provider, which he interprets as showing no significant weather events in the Mozambique Channel during the relevant period. He further asserts that the Maputo call resulted in the vessel missing its October 1–5, 2022 laycan window at Qingdao, China, causing Northwind to incur demurrage and dead freight charges.

Weaknesses Identified:

1. Incomplete Weather Analysis. Blackmore's weather analysis relies on a single data source — satellite data from a third-party commercial weather data provider. He does not account for localized sea state conditions, which can differ materially from broad satellite-based observations, nor does he reference or analyze the real-time weather routing information that was available to the Master at the time of the routing decision. The use of a single, retrospective data source to second-guess a real-time navigational decision is methodologically suspect, particularly in the context of conditions in the Mozambique Channel, which is known for rapidly developing weather systems and complex sea-state dynamics.

2. Failure to Address the Master's Log Entries. The Master's contemporaneous voyage log entries, which were produced during discovery, document heavy swells and reference a tropical depression advisory issued for the Mozambique Channel during the relevant period. These log entries are precisely the kind of real-time, first-hand evidence that a maritime operations expert would be expected to address. Blackmore's failure to reference or rebut them is a significant omission that weakens the credibility of his deviation opinion.

3. Failure to Address Captain Giannopoulos's Testimony. Captain Nikolaos Giannopoulos, the Master of the M/V Aegean Fortuna, testified at his deposition on May 10, 2024, that the decision to call at Maputo was made based on routing advice received from the vessel's professional weather routing service and was consistent with the exercise of safe navigation. Blackmore does not address this testimony. The Master's deposition testimony, combined with the contemporaneous log entries, provides a substantial evidentiary basis for TSL's position that the Maputo call was a reasonable navigational decision, and Blackmore's failure to engage with this evidence materially undermines his contrary opinion.

4. The Bills of Lading Contradict the "Own Cargo" Assertion. Blackmore's assertion that TSL loaded its own commercial cargo at Maputo is based on Northwind's allegation in the complaint, not on documentary evidence. The bills of lading produced in discovery for the cargo loaded at Maputo show that the cargo was loaded on behalf of a third-party shipper under a spot voyage arrangement — not TSL's own commercial cargo. This documentary evidence directly contradicts the factual premise of Blackmore's deviation opinion. If the cargo loaded at Maputo was not TSL's own cargo, the motive for a "commercial deviation" that Blackmore posits does not exist.

5. Important Caveat. Notwithstanding the foregoing, we note an important caveat: if Northwind can establish that the Maputo call was arranged in advance of the vessel's departure from its prior port — i.e., that the decision was pre-planned rather than responsive to weather conditions encountered en route — this could weaken TSL's weather-necessity defense by suggesting that the weather conditions were a pretext. Pre-deviation communications between TSL, the vessel's commercial managers, and the Maputo port agent may exist but have not been specifically identified in the document production to date. We should confirm during rebuttal preparation that all pre-Maputo communications, including those involving TSL's commercial department and any third-party intermediaries, have been thoroughly reviewed. Hannah should coordinate with our e-discovery team to run targeted search terms against the remaining unreviewed custodial files.

F. General Methodology Concerns

Beyond the specific weaknesses identified above, Captain Blackmore's report suffers from several general methodological deficiencies that pervade his analysis:

1. Narrative and Opinion-Based Approach. The report is largely narrative in structure and relies primarily on Blackmore's subjective professional judgment. It contains limited quantitative analysis, no independent testing or modeling, and no systematic framework for evaluating causation. While subjective professional judgment is an accepted basis for expert testimony in certain circumstances, the absence of any structured methodology makes it difficult to evaluate the reliability of Blackmore's conclusions and renders his opinions vulnerable to characterization as ipse dixit.

2. Reliance on Unsourced "Industry Practice" Standards. Blackmore repeatedly invokes "industry practice" and "standard maritime practice" as the benchmark against which he measures TSL's conduct, but he does not consistently cite specific regulatory requirements, classification society rules, flag state regulations, or charter-party provisions to define what these standards require. Several of his citations to "standard maritime practice" are entirely unsourced, and at least two cite publications that are outdated by more than a decade.

3. Lack of Methodology Statement. Blackmore's report does not contain a clear statement of the methodology he employed in reaching his opinions — i.e., the analytical framework, the data he considered and rejected, the assumptions he made, and the reasoning process he followed. This omission may be vulnerable to a reliability challenge, as it deprives the Court and opposing counsel of the ability to evaluate whether his conclusions follow logically from his premises.

IV. Analysis of Dr. Rajesh Anand's Report (Damages Expert)

A. Qualifications and Scope

Dr. Rajesh Anand is a partner at Pinnacle Valuation Partners LLP in New York. His curriculum vitae identifies him as specializing in commercial damages quantification and business valuation, with experience across a range of industries. He holds a Ph.D. in economics from Columbia University and has been retained as a damages expert in numerous commercial litigation matters in New York state and federal courts.

Dr. Anand has been retained by Northwind to quantify Northwind's total claimed damages of $18,300,000 across all nine categories asserted in the complaint. His report presents a category-by-category calculation of damages, arriving at an aggregate figure that he opines represents Northwind's total economic loss attributable to TSL's alleged breaches.

Qualifications Assessment. Dr. Anand appears qualified as a damages expert in commercial disputes generally. However, a review of his disclosed curriculum vitae and prior engagement history reveals that his experience in maritime-specific damages quantification appears limited. His listed engagements are predominantly in the areas of breach of contract (non-maritime), trade secret misappropriation, and business valuation in the context of M&A disputes. We have not identified any prior engagement in which he quantified damages arising from a charter-party dispute or applied maritime-specific damages principles. While this limitation may not be sufficient to warrant exclusion, it is relevant to the weight the Court should afford his opinions, particularly on maritime-specific issues such as the application of the Inter-Club Agreement, the interplay between off-hire provisions and liquidated damages, and the recoverability of third-party shipper claims.

B. Off-Hire Deductions ($1,003,000)

Dr. Anand calculates off-hire deductions as follows: 68 off-hire days multiplied by the daily hire rate of $14,750 per day, yielding $1,003,000. He presents this calculation as consistent with the actual off-hire deductions applied under Clause 11 of the charter-party.

Weaknesses Identified:

Dr. Anand uses 68 off-hire days in his summary table but does not independently verify the duration of each off-hire period. Instead, he simply adopts Captain Blackmore's off-hire calculations without independent corroboration. As discussed in Section III.D above, Blackmore inflates the off-hire period for Incident 3 to 28 days, claiming the vessel was not fully operational until December 13, 2022, whereas the drydock completion certificate establishes that the vessel was released on December 10, 2022, yielding an off-hire period of 25 days.

This creates an internal inconsistency in Anand's own report. In his summary table (Table 1, page 8), Anand uses a total of 68 off-hire days — which is consistent with TSL's position (22 days for Incident 1 + 21 days for Incident 2 + 25 days for Incident 3 = 68 days). However, in the narrative discussion of Incident 3 (pages 14–15), he cites Blackmore's 28-day figure. If Blackmore's 28-day figure were used, the total off-hire period would be 71 days (22 + 21 + 28), not 68. Anand's report thus contains an unexplained 3-day discrepancy between his summary calculation and his narrative discussion. This inconsistency should be highlighted in Dr. Albright's rebuttal report and preserved for cross-examination, as it calls into question the care with which Dr. Anand verified the inputs to his damages model.

C. Liquidated Damages Under Clause 28 ($4,500,000)

Dr. Anand opines that the liquidated damages cap of $4,500,000 under Clause 28 of the charter-party applies separately to each "single continuous period of breach." Under this interpretation, because there were three separate breach periods corresponding to the three mechanical incidents, the theoretical maximum liquidated damages exposure would be $13,500,000 (three caps multiplied by $4,500,000 each). However, Anand calculates the formula amount under Clause 28 as 68 off-hire days multiplied by $14,750 per day multiplied by 150%, yielding $1,504,500. Because Northwind claims only the single aggregate cap amount of $4,500,000 rather than the per-incident maximum, Anand opines that the $4,500,000 figure is an appropriate measure of Northwind's liquidated damages recovery.

Weaknesses Identified:

1. Improper Legal Opinion on Cap Interpretation. The most significant weakness in this portion of Dr. Anand's report is that his opinion on the interpretation of Clause 28 is fundamentally a legal opinion, not an economic one. The question of whether the $4,500,000 cap applies once to the entire charter period or separately to each "single continuous period of breach" is a question of contract interpretation for the Court. Dr. Anand is a damages economist, not a lawyer, and his opinion on this point constitutes impermissible legal opinion testimony that may be excludable on a motion in limine. The Commercial Division has excluded expert testimony on comparable grounds. See, e.g., Marx v. Fenmore Partners LLC, Index No. 652198/2019 (Sup. Ct. N.Y. Cty. 2021) (excluding expert opinion on contract interpretation as invading the province of the Court).

2. The Formula Yields Only $1,504,500. Dr. Anand's own calculation demonstrates that the mathematical formula under Clause 28 generates a liquidated damages figure of only $1,504,500, which is well below even a single application of the $4,500,000 cap. The $4,500,000 figure that Northwind claims thus represents a recovery that exceeds the formula's own output by approximately $3,000,000 — a figure that Dr. Albright's report has already characterized as a windfall beyond the contractual formula's computation. Under TSL's interpretation of Clause 28 — which will form a central component of the partial summary judgment motion — the cap is a ceiling on liquidated damages recovery, not a floor and not a separate entitlement. Under this interpretation, Northwind's liquidated damages recovery is limited to $1,504,500 (the formula amount), not $4,500,000.

3. Double-Counting with Off-Hire Deductions. Dr. Anand does not address the interplay between his off-hire deductions calculation ($1,003,000) and his liquidated damages calculation ($4,500,000). Both figures are derived from the same 68 off-hire days. The liquidated damages formula itself (68 × $14,750 × 150%) incorporates the off-hire days with a 150% multiplier, meaning that the underlying off-hire value is already embedded in the LD calculation. By claiming both off-hire deductions and liquidated damages based on the same off-hire days, Northwind is effectively counting the off-hire loss twice — once at face value and once at 150% of face value. This double-counting issue is discussed further in Section IV.K below.

D. Substitute Charter Costs ($471,600)

Dr. Anand calculates substitute charter costs as follows: the substitute charter rate of $21,300 per day minus the charter-party rate of $14,750 per day, yielding a daily differential of $6,550, multiplied by 72 days, for a total of $471,600.

Weaknesses Identified:

1. Unexplained Day-Count Discrepancy. Dr. Anand uses 72 days as the substitute charter period but only 68 days as the total off-hire period across the three incidents. The 4-day discrepancy is entirely unexplained. If the M/V Aegean Fortuna was off-hire for 68 days, why was a substitute charter required for 72 days? Dr. Anand does not discuss mobilization or demobilization time for the substitute vessel, does not address whether the substitute charter periods exceeded the off-hire periods due to scheduling constraints, and does not provide any other justification for the differential. This unexplained discrepancy undermines the reliability of the substitute charter cost calculation.

2. Failure to Verify Commercial Reasonableness of Substitute Rate. The $21,300 per day substitute charter rate is taken from a single fixture recap provided by Northwind and is not independently verified. Dr. Anand does not analyze whether this rate was commercially reasonable — i.e., whether Northwind could have obtained a substitute vessel at a lower daily rate. This is directly relevant to TSL's failure-to-mitigate defense: if a substitute Supramax dry bulk carrier could have been chartered at a rate lower than $21,300 per day, Northwind failed to mitigate by accepting a higher rate, and the substitute charter cost calculation should be adjusted downward accordingly.

3. No Market Analysis. Dr. Anand provides no market analysis to verify that $21,300 per day was consistent with prevailing Supramax dry bulk charter rates during the relevant periods in 2022. The Supramax market experienced significant volatility during 2022, and prevailing rates varied substantially depending on the route, timing, and market conditions. A competent damages analysis would include a comparison of the substitute charter rate to contemporaneous market indices (e.g., the Baltic Supramax Index) to establish that the rate paid was within the range of market rates. Dr. Anand's failure to conduct this analysis leaves his substitute charter cost calculation unsupported by any independent market data. Dr. Albright should conduct this analysis in her rebuttal report.

E. Cargo Damage — Iron Ore Oxidation ($3,420,000)

Dr. Anand adopts a valuation of $3,420,000 for cargo damage, specifically the oxidation of iron ore cargo. This figure is based on Northwind's internal records and the reports of Northwind's cargo loss adjusters.

Weaknesses Identified:

1. Lack of Independent Verification. Dr. Anand does not independently verify the cargo damage quantum. He relies entirely on Northwind's internal damage assessments and the reports prepared by Northwind's own loss adjusters, without conducting any independent analysis of the cargo's condition, the extent of oxidation, the cargo's pre-damage value, or the residual value after damage. An independent valuation or, at a minimum, an analysis of the methodology employed by Northwind's loss adjusters would be expected of a competent damages expert.

2. Failure to Address the Inter-Club Agreement. Dr. Anand does not address TSL's defense that cargo damage claims as between owner and charterer under a time charter are governed by the Inter-Club Agreement (the "ICA"), which establishes a regime for apportioning liability for cargo claims between owners and charterers based on the cause of the damage. The ICA may bar Northwind's claim for the full amount of cargo damage or may apportion liability differently from the full-recovery approach adopted by Dr. Anand. His failure to address this defense renders his cargo damage calculation incomplete.

3. Unexamined Causation. The causation link between Incident 2 (the BWTS/boiler failure at Richards Bay) and the iron ore oxidation is assumed by Dr. Anand, not independently analyzed. He does not explain the mechanism by which the BWTS malfunction led to iron ore oxidation, does not address the timeline of the oxidation process, and does not consider whether the oxidation may have been caused or contributed to by other factors (such as pre-existing moisture in the cargo, improper stowage by Northwind's stevedores, or conditions at the loading port). Most critically, if the BWTS failure was caused by contaminated ballast water loaded by Northwind's agents — as TSL contends — then the causal chain shifts, and Northwind bears responsibility for the cargo damage rather than TSL.

4. Insurance Recoveries Not Addressed. Dr. Anand does not discuss whether Northwind has received or is entitled to receive insurance recoveries under its cargo insurance policies that would offset the claimed cargo damage. Under basic principles of damages law, a claimant may not recover the same loss twice. If Northwind has been indemnified in whole or in part by its cargo insurers, the $3,420,000 figure may be overstated.

F. Demurrage and Dead Freight — Qingdao ($1,230,000)

Dr. Anand quantifies demurrage and dead freight at $1,230,000, arising from the vessel's failure to arrive at Qingdao, China, within the October 1–5, 2022 laycan window, which Northwind attributes to the Maputo deviation.

Weaknesses Identified:

1. No Independent Verification. The $1,230,000 figure is based on Northwind's internal calculations of demurrage charges and dead freight, which Dr. Anand adopts without independent verification. He does not analyze the underlying demurrage rates, does not verify the dead freight quantities against loading records, and does not assess whether the calculation is consistent with the terms of the relevant cargo contract.

2. Deviation as a Predicate. Dr. Anand's entire Qingdao damages calculation depends on the assumption that the Maputo call constituted a breach of the charter-party — a factual and legal determination that is hotly contested and has not been adjudicated. If the deviation is not a breach — as TSL contends, on the ground that the Maputo call was within the Master's reasonable navigational discretion in light of weather conditions — then the entire $1,230,000 claim falls away. A damages expert who presents a damages figure contingent on a contested liability determination should, at a minimum, present alternative calculations under different liability scenarios. Dr. Anand does not do so.

3. Failure to Address Mitigation. Dr. Anand does not consider whether Northwind could have rescheduled the Qingdao laycan or taken other mitigating steps upon learning that the vessel's arrival would be delayed. If Northwind had the opportunity to renegotiate the laycan window with the Qingdao charterer or to arrange an alternative vessel to fulfill the Qingdao commitment, its failure to do so would reduce or eliminate the demurrage and dead freight claim. Dr. Anand's failure to address this issue is relevant to TSL's failure-to-mitigate defense.

G. Additional Port Costs and Bunker Surcharges ($875,400)

Dr. Anand aggregates various incremental port costs and bunker surcharges allegedly incurred as a result of the three incidents and the Maputo deviation, totaling $875,400.

Weaknesses Identified:

1. Vague Breakdown. The breakdown of this category is imprecise. Dr. Anand cites specific invoices and supporting documentation by Bates number but does not analyze the individual items for reasonableness, does not distinguish between costs that are genuinely incremental (i.e., would not have been incurred absent the alleged breaches) and costs that would have been incurred in any event, and does not apply any discernible methodology for separating breach-related costs from routine operating costs.

2. Inclusion of Routine Port Charges. A preliminary review of the cited documents suggests that some of the costs aggregated in this category include routine port charges — such as standard pilotage, tug assistance, and berth fees — that would have been incurred regardless of the incidents. These charges are not damages attributable to any breach; they are ordinary costs of vessel operations.

3. Bunker Price Volatility. The bunker surcharge component attributes the entirety of the incremental bunker costs to delays caused by the incidents, without accounting for the significant fluctuations in global bunker fuel prices during 2022. During a period of fuel price volatility, it is necessary to analyze whether the bunker costs actually incurred at the ports where the vessel called during the delay periods were higher or lower than the bunker costs that would have been incurred at the ports the vessel would have called at absent the delays. Dr. Anand does not conduct this analysis.

H. Lost Sub-Charter Profit ($166,600)

Dr. Anand calculates lost sub-charter profit based on Northwind's sub-charter with Eastbourne Bulk Carriers Ltd. at a sub-charter rate of $17,200 per day, as follows: ($17,200 − $14,750) × 68 days = $2,450 per day × 68 days = $166,600.

Weaknesses Identified:

1. Incomplete Sub-Charter Terms. The sub-charter agreement between Northwind and Eastbourne Bulk Carriers was the subject of a discovery dispute during the document production phase. Our April 5, 2024 letter to HD&S demanded supplemental production of the complete sub-charter agreement and all related correspondence. While some documents were subsequently produced, it is unclear whether the full sub-charter terms have been disclosed. If the sub-charter contains its own off-hire provisions, force majeure clauses, or other terms that reduce or eliminate Northwind's obligation to pay Eastbourne during periods when the M/V Aegean Fortuna was off-hire, then Northwind's lost profit calculation may be overstated — because Northwind may not have been required to pay Eastbourne during the off-hire periods, and therefore may not have lost the $2,450 per day sub-charter spread.

2. No Evidence of Actual Loss. Dr. Anand does not address whether Eastbourne Bulk Carriers actually invoked any remedies against Northwind — such as deducting hire, claiming damages, or terminating the sub-charter — or whether the sub-charter profit was merely delayed rather than permanently lost. If Northwind continued to receive hire payments from Eastbourne throughout the off-hire periods, or if the sub-charter term was extended to account for off-hire periods, then Northwind did not actually lose the sub-charter profit, and this category of damages would be entirely illusory.

I. Third-Party Shipper Claims ($5,634,400)

Dr. Anand includes $5,634,400 in third-party shipper cargo claims as damages recoverable by Northwind from TSL. This figure represents three separate cargo claims asserted by third-party shippers against Northwind.

Weaknesses Identified:

1. Recoverability Is Legally Contested. This is the most vulnerable category in Dr. Anand's damages analysis. As noted above, Justice Chen's March 8, 2024 ruling on TSL's motion to dismiss narrowed Count III (third-party shipper claims), and Count V (unjust enrichment) was dismissed entirely. The recoverability of pass-through third-party claims as charter-party damages remains a contested legal issue that has not been finally resolved. The survival of Count III on the motion to dismiss does not establish that these damages are recoverable; it establishes only that Northwind's allegations, if true, state a cognizable claim. The actual recoverability of these damages will be adjudicated on summary judgment or at trial.

2. Claims Are Unliquidated. Dr. Anand treats the $5,634,400 figure as fully liquidated, but the underlying third-party claims are themselves disputed and unliquidated. Northwind has not demonstrated that it has actually paid these claims or been held liable for them. If Northwind has not yet incurred an actual loss — i.e., if the third-party claims remain unresolved — then the $5,634,400 figure represents a speculative future liability, not an actual incurred loss. Under New York law, damages must be proven with reasonable certainty; speculative or contingent damages are not recoverable. See Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261 (1986).

3. Inter-Club Agreement. As with the cargo damage claim (Section IV.E above), Dr. Anand does not address whether the Inter-Club Agreement governs the apportionment of these third-party cargo claims as between owner and charterer, potentially barring or reducing Northwind's recovery.

4. Impact on Overall Damages. If the third-party shipper claims are barred, excluded, or substantially reduced — whether on summary judgment, on a motion in limine, or at trial — then $5,634,400, the single largest damages category, drops out of Northwind's case entirely. Combined with the vulnerabilities in the liquidated damages category ($4,500,000), the potential reduction in Northwind's realistic damages exposure is on the order of $10 million or more.

J. Legal Fees and Expert Costs ($999,000)

Dr. Anand includes $999,000 in Northwind's own legal fees and expert costs as an element of recoverable damages.

Weaknesses Identified:

1. New York's American Rule. Under New York law, attorney's fees and litigation expenses are generally not recoverable as damages absent a specific contractual provision, statutory authorization, or recognized equitable exception. See Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491 (1989). Clause 28 of the charter-party does not appear to contain a fee-shifting provision, and Northwind has not identified any statutory or equitable basis for recovering its attorney's fees and expert costs. This category is likely not recoverable as a matter of law and should be the subject of a summary judgment or motion in limine challenge.

2. No Reasonableness Analysis. Even if, contrary to our expectation, the Court were to find a contractual or other basis for fee recovery, Dr. Anand does not analyze the reasonableness of the $999,000 figure. He simply adopts Northwind's stated total without reviewing the underlying billing records, assessing the hourly rates for reasonableness, evaluating the staffing model, or determining whether the fees were necessarily incurred in connection with the claims at issue. A competent expert opinion on recoverable legal fees would, at a minimum, include such an analysis.

K. Aggregate Damages and Double-Counting Analysis

Dr. Anand arrives at an aggregate damages figure of $18,300,000. However, his aggregate calculation is materially inflated by significant double-counting across multiple damages categories.

Double-Counting Issues Identified:

1. Off-Hire and Liquidated Damages. As discussed in Section IV.C above, the off-hire deductions ($1,003,000) and the liquidated damages ($4,500,000) are both derived from the same 68 off-hire days. The liquidated damages formula under Clause 28 (68 × $14,750 × 150% = $1,504,500) already incorporates the daily hire rate for the off-hire days, with a 150% multiplier. Claiming both off-hire deductions and liquidated damages based on the same off-hire days results in the off-hire loss being counted twice: once at face value ($1,003,000) and again at 150% within the LD formula. The total overstatement from this overlap depends on the proper interpretation of Clause 28, but at a minimum, the $1,003,000 off-hire deduction is subsumed within the LD calculation and should not be claimed as a separate item.

2. Off-Hire and Substitute Charter Costs. The off-hire clause (Clause 11) compensates Northwind for hire paid during periods when the vessel was not operational. The substitute charter costs ($471,600) represent the additional cost Northwind incurred to charter a replacement vessel during those same non-operational periods. These two categories address the same underlying loss: Northwind's inability to use the M/V Aegean Fortuna during the off-hire periods. Claiming both off-hire deductions and substitute charter costs results in a recovery that exceeds Northwind's actual loss. Under off-hire, Northwind recovers the hire it paid for nothing; under substitute charter costs, it recovers the premium it paid for a replacement vessel. The appropriate measure of Northwind's loss is one or the other, not both.

3. Lost Sub-Charter Profit. The lost sub-charter profit claim ($166,600) may also overlap with the off-hire and substitute charter claims. If Northwind has already been made whole for the off-hire periods through off-hire deductions and substitute charter cost recovery, an additional claim for lost sub-charter profit during those same periods represents a third layer of recovery for the same underlying loss.

4. Quantification of Double-Counting. We estimate that the total double-counting in Dr. Anand's damages analysis is on the order of approximately $1.5 to $2.0 million. Dr. Albright's rebuttal report should quantify this figure precisely and present it as a clear reduction to Northwind's claimed damages. The double-counting analysis should be presented in tabular format to maximize its clarity and impact.

L. General Methodology Concerns with Dr. Anand's Report

Beyond the category-specific weaknesses discussed above, Dr. Anand's report suffers from several overarching methodological deficiencies.

1. Compilation, Not Analysis. Dr. Anand's methodology is fundamentally one of compilation rather than independent economic analysis. He aggregates Northwind's internally calculated damages figures, applies minimal independent judgment, and presents the result as an expert opinion. A damages expert is expected to bring independent analytical rigor to the quantification of claimed losses — conducting market analyses, applying established economic methodologies, and testing the claimant's figures against independent data sources. Dr. Anand does none of these things.

2. No Statistical or Economic Modeling. Dr. Anand does not conduct any market analysis, regression analysis, or statistical modeling in his report. He does not use any established economic framework or damages methodology (such as the "but-for" analysis commonly employed in commercial damages cases) to independently derive his figures. His damages calculations are arithmetic exercises based on inputs provided by Northwind, not the product of independent economic analysis.

3. Cascading Dependence on Blackmore. Dr. Anand's damages calculations are heavily dependent on Captain Blackmore's factual assumptions, including the duration of off-hire periods, the characterization of the Maputo call as a deviation, and the attribution of cargo damage to TSL's maintenance failures. Any weakness in Blackmore's report — and, as discussed in Section III, there are many — cascades directly into Anand's damages analysis. If Blackmore's off-hire figure for Incident 3 is wrong (28 days instead of 25), Anand's calculations are wrong. If the Maputo call was not a breach, the Qingdao damages claim ($1,230,000) disappears from Anand's total. If the BWTS failure was caused by contaminated ballast, the cargo damage claim ($3,420,000) and potentially the third-party shipper claims ($5,634,400) shift to Northwind.

4. Absence of Sensitivity Analysis. Dr. Anand offers a single point estimate of $18,300,000 with no sensitivity analysis, no alternative scenarios, no confidence interval, and no discussion of uncertainty. A competent damages analysis in a case of this magnitude would include, at a minimum, a range of damages estimates under different assumptions — for example, damages under TSL's interpretation of the LD cap versus Northwind's interpretation, damages with and without the third-party shipper claims, and damages with and without the Maputo deviation-related claims. Dr. Anand's failure to present any such analysis limits the utility of his opinion and makes it more vulnerable to challenge.

V. Potential Daubert / Reliability Challenges

While we recognize that New York state courts apply the Frye "general acceptance" standard rather than the federal Daubert standard, reliability-based challenges to expert testimony remain viable in Commercial Division practice. Justice Chen's Part 49 has, in several prior matters, entertained motions in limine challenging the reliability and factual basis of expert opinions, even outside the formal Daubert framework. We therefore recommend that motions in limine be considered as part of our trial preparation strategy, targeting the specific weaknesses discussed below.

A. Captain Blackmore

1. Lack of Testable Methodology. Captain Blackmore's opinions are largely subjective assessments of compliance with undefined "industry standards." He does not employ any defined analytical framework, does not use any reproducible methodology, and does not identify objective criteria against which his conclusions can be tested. While professional judgment is an accepted basis for maritime expert testimony, the absence of any structured methodology makes it difficult to distinguish his opinions from lay opinion testimony and raises reliability concerns.

2. Failure to Address Contrary Evidence. As discussed at length in Section III above, Blackmore fails to address multiple pieces of evidence that directly contradict his opinions: the metallurgical analysis (Incident 1), the ballast water sample analysis (Incident 2), the GMCB classification survey (Incident 1), the Master's log entries and deposition testimony (Maputo deviation), and Chief Engineer Vlahos's testimony on BWTS maintenance (Incident 2). An expert who fails to account for material contrary evidence in reaching his opinions has not applied a reliable methodology. See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006) (expert must explain basis for opinion and why contrary evidence does not undermine conclusions).

3. BWTS Causation as a Target for Exclusion. Among Blackmore's various opinions, his BWTS causation opinion is the most vulnerable to a reliability challenge. He offers no independent testing, modeling, or analysis to support his assertion that the BWTS malfunction was caused by TSL's inadequate maintenance rather than contaminated ballast water. His opinion on this point is essentially conclusory — a bare assertion unsupported by any analytical process. A motion in limine to exclude Blackmore's BWTS causation opinion as speculative and unreliable has a reasonable probability of success and should be prepared for filing at the appropriate time in the pre-trial schedule.

B. Dr. Anand

1. Lack of Independent Analysis. As discussed in Section IV.L, Dr. Anand's report is largely a recitation of Northwind's own damages claims without independent verification or economic modeling. His methodology amounts to aggregating Northwind's figures and presenting them as his own opinion. This approach lacks the analytical rigor expected of a qualified damages expert and is vulnerable to challenge on reliability grounds.

2. Legal Opinions Disguised as Expert Testimony. Dr. Anand's interpretation of Clause 28's liquidated damages cap — specifically, his opinion that the cap applies separately to each "single continuous period of breach" — is a legal opinion, not an economic one. Expert witnesses may not offer opinions on questions of law. See Marx & Co. v. Diners' Club, Inc., 550 F.2d 505 (2d Cir. 1977); Billings v. Storekeeper of Sing Sing Prison, 173 A.D.2d 75, 79 (3d Dep't 1991). Dr. Anand's legal opinion on the LD cap should be excluded.

3. Double-Counting. The failure to account for overlap among damages categories undermines the reliability of Dr. Anand's aggregate damages figure. A damages expert who presents an inflated total by double-counting overlapping categories has not applied a reliable methodology. This issue should be raised both in Dr. Albright's rebuttal report and, if necessary, on

MEMORANDUM — PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT
FROM: Carlos Espinoza, Calderwood & Harkness LLP
TO: Douglas Carmichael, Francesca Morano
CC: Hannah Brinkley
DATE: August 26, 2024
RE: Internal Analysis of Northwind's Expert Reports — Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division (Part 49, Hon. Lorraine K. Chen, J.S.C.)
C&H MATTER NO.: 1044-00006
PRIVILEGE DESIGNATION: This memorandum constitutes attorney work product prepared in anticipation of litigation and is protected from disclosure under the work product doctrine and attorney-client privilege. This memorandum reflects the mental impressions, conclusions, opinions, and legal theories of counsel. It is intended solely for the use of the addressees and should not be disclosed to any third party without the express written consent of Calderwood & Harkness LLP.
I. Executive Summary
The purpose of this memorandum is to evaluate and identify weaknesses, inconsistencies, and potential challenges in the two expert reports served by Northwind Maritime Corporation ("Northwind"), through its counsel Hargrove, Delacroix & Stern LLP ("HD&S"), on August 19, 2024, in connection with the above-captioned action. This analysis is prepared for the litigation team representing Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna" and, together with TSL, "Defendants") to inform our rebuttal strategy, our planned partial summary judgment motion, and potential motions in limine.
The two expert reports at issue are as follows:
1. Report of Captain Julian Blackmore (Ret.), Blackmore Maritime Advisory Ltd., 12 Mincing Lane, London EC3R 7AA, United Kingdom — retained as Northwind's maritime operations expert. Captain Blackmore offers opinions on seaworthiness, vessel maintenance, causation of the three mechanical incidents at issue in this case, the September 2022 Maputo deviation, and prevailing industry standards for vessel maintenance.
2. Report of Dr. Rajesh Anand, Pinnacle Valuation Partners LLP, 399 Park Avenue, Suite 2200, New York, NY 10022 — retained as Northwind's damages expert. Dr. Anand offers opinions on the quantification of Northwind's total claimed damages of $18,300,000 across nine separate categories.
Overall Assessment. Both reports contain significant analytical weaknesses that can be exploited at summary judgment, on rebuttal, and potentially through reliability-based challenges to the admissibility of expert testimony. While New York state courts apply the Frye "general acceptance" standard rather than the federal Daubert standard (see CPLR 3101; Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)), reliability-based challenges remain viable in Commercial Division practice, particularly where, as here, an expert's opinions rest on incomplete data, fail to account for contrary evidence, or constitute impermissible legal opinions dressed as expert testimony. Justice Chen's Part 49 has been receptive to such challenges in prior matters.
Captain Blackmore's report suffers from a failure to engage with key evidence that contradicts his opinions — most notably the metallurgical analysis from the Colombo repair (supporting TSL's latent defect defense on Incident 1), the ballast water sample analysis from Richards Bay (supporting TSL's contaminated-ballast theory on Incident 2), and the Master's contemporaneous log entries and deposition testimony regarding the Maputo deviation. His methodology is largely narrative and opinion-based, with limited quantitative analysis, no independent testing, and a troubling reliance on unsourced or outdated "industry practice" standards.
Dr. Anand's report is, at its core, a compilation of Northwind's own claimed figures rather than an independent economic analysis. He does not conduct any market analysis, regression modeling, or statistical work. His damages calculations are heavily dependent on Captain Blackmore's factual assumptions, meaning that any weakness in Blackmore's report cascades directly into the damages analysis. Most critically, Dr. Anand's aggregate damages figure of $18,300,000 is infected by significant double-counting across multiple categories, which we estimate at approximately $1.5 to $2.0 million. His treatment of the Clause 28 liquidated damages cap also improperly ventures into legal opinion testimony.
Recommendation. We recommend that rebuttal reports from Dr. Henrik Sørensen (Nordic Maritime Consulting Group ApS) and Dr. Constance Albright (Clearwater Economics LLC) be prepared and served by the September 9, 2024 deadline, targeting the specific weaknesses identified in this memorandum. This memorandum also flags areas where Northwind's experts' own opinions may affirmatively support TSL's pending partial summary judgment motion, which is currently scheduled for filing on September 20, 2024. (Note that this memorandum predates the filing of that motion, and the observations herein should inform the drafting of the motion papers.)
A coordination meeting with the full litigation team, including Drs. Sørensen and Albright, is recommended for the week of September 2, 2024, to finalize rebuttal strategy and to ensure alignment between the rebuttal reports and the summary judgment motion.
II. Background and Procedural Context
This action arises out of a time charter-party on the New York Produce Exchange Form 2015 ("NYPE 2015"), executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as disponent owner) and Northwind Maritime Corporation (as charterer) for the vessel M/V Aegean Fortuna (IMO 9847231). The M/V Aegean Fortuna is a Supramax dry bulk carrier with a deadweight tonnage of 58,200 DWT, registered under the Liberian flag and classified by the Global Maritime Classification Bureau ("GMCB"). Aegean Fortuna Shipholding Ltd. is a Liberian corporation (Registration No. LR-C-20167845), wholly owned by TSL, a Swiss-incorporated shipping and logistics conglomerate.
The charter-party provided for a thirty-six (36) month charter period running from January 15, 2021 through January 14, 2024, at a daily hire rate of $14,750 per day. During the charter period, three mechanical incidents and one alleged commercial deviation occurred, which form the basis of Northwind's claims in this action.
Northwind commenced this action by filing a summons and complaint on October 20, 2023, asserting claims for breach of charter-party, breach of the implied warranty of seaworthiness, indemnification, and unjust enrichment. TSL and Aegean Fortuna answered on December 15, 2023, asserting various affirmative defenses including latent defect, contaminated ballast, the Master's reasonable exercise of navigational discretion, failure to mitigate damages, and the applicability of the Inter-Club Agreement. TSL also filed a counterclaim for unpaid hire and demurrage in the amount of $2,175,000.
On March 8, 2024, Justice Chen issued a decision on TSL's pre-answer motion to dismiss, which narrowed Count III (third-party shipper claims) and dismissed Count V (unjust enrichment) in its entirety. The remaining counts survived the motion. This ruling is particularly relevant to our analysis of Dr. Anand's treatment of the third-party shipper claims category, as discussed in Section IV.I below.
Northwind's total claimed damages, as quantified by Dr. Anand, amount to $18,300,000 across nine categories.
The key procedural milestones relevant to this memorandum are as follows:
• discovery Period: January 2024 through August 2024.
• Key Depositions Completed:
• Alexandros Stavridis (TSL Director of Operations) — April 22, 2024
• Captain Nikolaos Giannopoulos (Master, M/V Aegean Fortuna) — May 10, 2024
• Viktor Lindgren (Northwind VP of Chartering) — May 30, 2024
• Sandra Chow (Northwind Operations Manager) — June 14, 2024
• Chief Engineer Petros Vlahos (M/V Aegean Fortuna) — June 28, 2024
• Three additional fact witnesses (Northwind commercial personnel and third-party shipper representatives) — July 2024
• TSL's Expert Reports Served: August 5, 2024 (Dr. Henrik Sørensen on maritime engineering; Dr. Constance Albright on damages).
• Northwind's Expert Reports Served: August 19, 2024 (Captain Julian Blackmore on maritime operations; Dr. Rajesh Anand on damages).
• Rebuttal Reports Due: September 9, 2024.
• TSL's Partial Summary Judgment Motion: To be filed September 20, 2024.
III. Analysis of Captain Julian Blackmore's Report (Maritime Operations Expert)
A. Qualifications and Scope
Captain Julian Blackmore is a retired ship master and the principal of Blackmore Maritime Advisory Ltd., based in London. His report identifies his qualifications as including approximately thirty years of seagoing experience, culminating in service as master on various vessels, followed by approximately fifteen years of consulting work in maritime disputes and casualty investigations. He has testified as an expert in proceedings before the English High Court (Admiralty Division), several London arbitrations, and, on two occasions, in proceedings before United States federal courts.
Captain Blackmore has been retained by Northwind to offer opinions in four areas: (1) the seaworthiness and maintenance obligations of TSL under Clauses 2 and 6 of the charter-party; (2) the causation of the three mechanical incidents at issue in this action (the turbocharger failure, the BWTS/boiler failure, and the cylinder liner failure); (3) the nature and propriety of the September 2022 Maputo deviation; and (4) the applicable industry standards for vessel maintenance relevant to the foregoing.
Qualifications Assessment. Captain Blackmore appears generally qualified as a maritime operations expert, and we do not recommend a facial challenge to his qualifications. However, a review of his curriculum vitae and prior expert engagements reveals that his seagoing experience was primarily in container vessel operations — a materially different sector from the dry bulk trade in which the M/V Aegean Fortuna operates. The operational profiles, maintenance regimes, and mechanical stresses relevant to Supramax dry bulk carriers differ in significant respects from those applicable to container vessels. While this distinction is unlikely to result in exclusion, it represents a productive area for cross-examination, particularly with respect to Blackmore's opinions on "industry standard" maintenance practices. Dr. Sørensen, whose experience is specifically in dry bulk vessel engineering, is well positioned to draw this distinction in his rebuttal report.
B. Opinion on Incident 1: Turbocharger Failure (March 12 – April 2, 2022)
Captain Blackmore opines that the turbocharger failure that occurred on March 12, 2022, rendering the vessel incapable of maintaining full service speed and resulting in an off-hire period of twenty-two (22) days (through April 2, 2022, when repairs were completed in Colombo, Sri Lanka), was attributable to TSL's failure to conduct adequate preventive maintenance on the vessel's main engine turbocharger. In reaching this opinion, Blackmore relies on the turbocharger manufacturer's recommended maintenance intervals and asserts that TSL fell below the applicable industry standard by failing to conduct timely inspections and servicing of the turbocharger assembly. He characterizes the failure as a predictable consequence of deferred maintenance rather than a latent or manufacturing defect.
Weaknesses Identified:
1. Failure to Address the GMCB Classification Survey. Captain Blackmore does not address — or even reference — the GMCB classification survey conducted in November 2021, approximately four months before the turbocharger failure. The GMCB surveyor's report, which was produced during discovery and is part of the trial record, found the turbocharger in "satisfactory condition" as of the date of inspection. This survey constitutes contemporaneous, independent evidence that the turbocharger was properly maintained and functioning within acceptable parameters as of November 2021. Blackmore's failure to account for this evidence is a significant omission that directly contradicts his negligent-maintenance theory. Dr. Sørensen's rebuttal report should prominently feature the GMCB survey findings.
2. Reliance on Generic Maintenance Schedules. Blackmore relies on the turbocharger manufacturer's generalized recommended maintenance intervals without accounting for the specific operating profile of the M/V Aegean Fortuna, including its trading routes, engine running hours, load factors, and fuel quality — all of which affect the applicable maintenance timeline. Moreover, the documentary evidence produced in discovery demonstrates that the turbocharger had been serviced within the manufacturer's recommended interval. Blackmore does not address this evidence or explain why he considers the servicing inadequate despite its compliance with the manufacturer's schedule.
3. Failure to Address the Metallurgical Analysis. During the Colombo repair, the damaged turbocharger components were subjected to a metallurgical analysis by an independent laboratory. The metallurgical report, obtained during discovery, identified a casting defect in the turbine blade as the proximate cause of the failure — specifically, a subsurface porosity defect consistent with a manufacturing flaw that would not have been detectable through routine visual inspection or standard maintenance procedures. This finding forms the basis of Dr. Sørensen's latent defect opinion. Captain Blackmore's report does not reference the metallurgical analysis, does not attempt to rebut its findings, and does not explain why he has disregarded it. This is perhaps the most significant weakness in his Incident 1 opinion, and it renders that opinion vulnerable to a reliability challenge on the ground that it fails to account for material contrary evidence.
4. Concession on Latent Defects. Notably, Blackmore includes a footnote (footnote 14 at page 23 of his report) acknowledging that "certain types of turbocharger failures can be caused by manufacturing defects that are not detectable through routine inspection." This concession directly undermines his own opinion that the failure was attributable to inadequate maintenance rather than a latent defect. We should ensure that this footnote is prominently cited in Dr. Sørensen's rebuttal report, in our summary judgment papers, and preserved for cross-examination. The concession may be characterized as an admission against interest by Northwind's own expert that supports TSL's latent defect defense.
5. Internal Inconsistency on Replacement Standard. Blackmore asserts that TSL should have proactively replaced the turbocharger prior to the failure, but he also acknowledges that replacement is not required under GMCB class rules absent a formal deficiency finding by the classification society. Since no such deficiency finding was issued — and indeed the GMCB survey found the turbocharger in satisfactory condition — Blackmore's replacement opinion is inconsistent with the applicable regulatory framework. This inconsistency further weakens the credibility of his Incident 1 opinion and provides additional material for cross-examination.
C. Opinion on Incident 2: BWTS / Boiler Failure (July 8 – July 29, 2022)
Captain Blackmore opines that the ballast water treatment system ("BWTS") malfunction that occurred on July 8, 2022, and the auxiliary boiler failure that followed shortly thereafter — resulting in a combined off-hire period of twenty-one (21) days through July 29, 2022, when repairs were completed at Richards Bay, South Africa — were both caused by TSL's inadequate maintenance of the BWTS and boiler systems. He dismisses TSL's theory that the BWTS malfunction was caused by contaminated ballast water loaded by Northwind's agents at a prior port of call, characterizing this theory as "speculative" and unsupported by the evidence.
Weaknesses Identified:
1. Failure to Address the Water Sample Analysis. Blackmore does not adequately address — and largely ignores — the water sample analysis conducted on ballast water taken from the vessel's ballast tanks at Richards Bay following the BWTS malfunction. The analysis, performed by an independent marine survey laboratory, showed unusually high sediment levels and elevated concentrations of chemical contaminants (including dissolved metals and organic compounds) that were inconsistent with normal seawater composition. This evidence is directly relevant to TSL's contaminated-ballast defense and supports the inference that the BWTS was overwhelmed by contaminants in the ballast water rather than by any maintenance deficiency. Blackmore's failure to engage with this evidence is a critical gap in his analysis.
2. Inadequate Dismissal of the Contaminated-Ballast Theory. Blackmore's dismissal of TSL's contaminated-ballast theory rests on the generalized assertion that "modern BWTS systems are designed to handle varying water quality." This assertion, however, does not engage with the specific technical specifications and documented sensitivity thresholds of the BWTS model installed on the M/V Aegean Fortuna. Different BWTS systems have different tolerance ranges for sediment load and chemical contamination, and the system installed on the vessel may have been operating within its design limits under normal conditions while being susceptible to failure when exposed to the exceptionally contaminated ballast water documented by the Richards Bay analysis. Blackmore's failure to conduct a system-specific analysis renders his dismissal of the contaminated-ballast theory conclusory.
3. Conflation of the BWTS and Boiler Failures. Captain Blackmore treats the BWTS malfunction and the auxiliary boiler failure as a single composite maintenance failure, attributing both to TSL's general negligence. Dr. Sørensen's report, by contrast, treats these as separate mechanical events with distinct causes. Specifically, Dr. Sørensen opines — and the engineering evidence supports — that the boiler failure was a cascading consequence of the BWTS shutdown. When the BWTS went offline, the vessel lost its primary cooling water supply to the auxiliary boiler system, resulting in overheating and the boiler's emergency shutdown. This cascading-failure analysis means that the boiler failure is properly attributed to the same root cause as the BWTS malfunction (i.e., contaminated ballast, under TSL's theory) rather than to an independent and separate maintenance deficiency. Blackmore's conflation of the two failures obscures this causal chain and artificially inflates his "pattern of deferred maintenance" narrative.
4. Failure to Address Chief Engineer Vlahos's Testimony. Chief Engineer Petros Vlahos testified at his deposition on June 28, 2024, that the BWTS had been serviced in accordance with the manufacturer's specifications approximately six weeks before the July 8 malfunction. Blackmore does not reference or address this testimony. This omission is significant because Vlahos's testimony directly contradicts Blackmore's opinion that the malfunction resulted from inadequate maintenance. If the BWTS was properly maintained within weeks of the failure, the maintenance-failure theory becomes difficult to sustain absent some other explanation — precisely the kind of explanation that the contaminated-ballast theory provides.
5. Potential Reliability Challenge on BWTS Causation. Captain Blackmore offers no independent testing, modeling, simulation, or quantitative analysis to support his opinion on BWTS causation. He does not analyze the BWTS system's failure logs, does not review the system's operational data, and does not conduct any engineering analysis of the failure mode. His opinion is essentially ipse dixit — a bare assertion of professional judgment unsupported by any defined methodology. This renders his BWTS causation opinion potentially vulnerable to a motion in limine on reliability grounds, even under the Frye standard. We recommend that Dr. Sørensen's rebuttal report include a detailed technical analysis of the BWTS failure mode, incorporating the water sample data and the system's documented specifications, to provide the Court with a methodologically rigorous alternative to Blackmore's unsupported opinion.
D. Opinion on Incident 3: Cylinder Liner Failure (November 15 – December 10, 2022)
Captain Blackmore opines that the cylinder liner failure that occurred on November 15, 2022 — resulting in the vessel being taken out of service for drydock repairs — was a foreseeable consequence of TSL's alleged "pattern of deferred maintenance." He characterizes this incident as the culmination of systematic under-investment in the vessel's mechanical systems, linking it narratively to the turbocharger failure (Incident 1) and the BWTS/boiler failure (Incident 2).
Weaknesses Identified:
1. TSL Has Conceded Liability on Incident 3. As Douglas and Francesca are aware, TSL has conceded that the cylinder liner failure was a maintenance failure and does not contest liability for Incident 3. The dispute on this incident is limited to quantum — specifically, the duration of the off-hire period. Blackmore's liability opinion on Incident 3 therefore adds little to Northwind's case on this point, as it addresses a matter that is no longer contested.
2. The "Pattern of Deferred Maintenance" Narrative Is Undermined. Blackmore's framing of Incident 3 as part of a broader pattern of deferred maintenance depends on the premise that Incidents 1 and 2 were also maintenance failures. As discussed above, however, Blackmore's own footnote 14 concedes the possibility of a latent defect as the cause of the turbocharger failure (Incident 1), and his analysis of the BWTS/boiler failure (Incident 2) fails to account for the contaminated-ballast evidence. If Incidents 1 and 2 are attributable to causes other than deferred maintenance — as TSL contends — then the "pattern" narrative collapses, and Incident 3 becomes an isolated maintenance failure rather than evidence of systemic negligence. Dr. Sørensen's rebuttal should make this point explicitly.
3. Inflated Off-Hire Period. Blackmore asserts that the vessel was not fully operational until December 13, 2022, resulting in an off-hire period of twenty-eight (28) days for Incident 3. However, the documentary evidence contradicts this assertion. The drydock completion certificate issued by Keppel Verolme Shipyard in Rotterdam confirms that the vessel was released from drydock and returned to operational status on December 10, 2022 — twenty-five (25) days after the failure. Blackmore does not explain the basis for his assertion that the vessel was not fully operational until three days after the drydock completion certificate was issued. TSL's position is that the correct off-hire period for Incident 3 is 25 days, consistent with the documentary record. This 3-day discrepancy has downstream effects on Dr. Anand's damages calculations, as discussed in Section IV below.
E. Opinion on the Maputo Deviation (September 2022)
Captain Blackmore opines that the M/V Aegean Fortuna's call at the Port of Maputo, Mozambique, in September 2022, constituted a commercial deviation undertaken for TSL's benefit — specifically, to load cargo for TSL's own account — rather than a weather-necessitated routing decision within the Master's reasonable discretion. In support of this opinion, Blackmore cites satellite-derived weather data from a third-party provider, which he interprets as showing no significant weather events in the Mozambique Channel during the relevant period. He further asserts that the Maputo call resulted in the vessel missing its October 1–5, 2022 laycan window at Qingdao, China, causing Northwind to incur demurrage and dead freight charges.
Weaknesses Identified:
1. Incomplete Weather Analysis. Blackmore's weather analysis relies on a single data source — satellite data from a third-party commercial weather data provider. He does not account for localized sea state conditions, which can differ materially from broad satellite-based observations, nor does he reference or analyze the real-time weather routing information that was available to the Master at the time of the routing decision. The use of a single, retrospective data source to second-guess a real-time navigational decision is methodologically suspect, particularly in the context of conditions in the Mozambique Channel, which is known for rapidly developing weather systems and complex sea-state dynamics.
2. Failure to Address the Master's Log Entries. The Master's contemporaneous voyage log entries, which were produced during discovery, document heavy swells and reference a tropical depression advisory issued for the Mozambique Channel during the relevant period. These log entries are precisely the kind of real-time, first-hand evidence that a maritime operations expert would be expected to address. Blackmore's failure to reference or rebut them is a significant omission that weakens the credibility of his deviation opinion.
3. Failure to Address Captain Giannopoulos's Testimony. Captain Nikolaos Giannopoulos, the Master of the M/V Aegean Fortuna, testified at his deposition on May 10, 2024, that the decision to call at Maputo was made based on routing advice received from the vessel's professional weather routing service and was consistent with the exercise of safe navigation. Blackmore does not address this testimony. The Master's deposition testimony, combined with the contemporaneous log entries, provides a substantial evidentiary basis for TSL's position that the Maputo call was a reasonable navigational decision, and Blackmore's failure to engage with this evidence materially undermines his contrary opinion.
4. The Bills of Lading Contradict the "Own Cargo" Assertion. Blackmore's assertion that TSL loaded its own commercial cargo at Maputo is based on Northwind's allegation in the complaint, not on documentary evidence. The bills of lading produced in discovery for the cargo loaded at Maputo show that the cargo was loaded on behalf of a third-party shipper under a spot voyage arrangement — not TSL's own commercial cargo. This documentary evidence directly contradicts the factual premise of Blackmore's deviation opinion. If the cargo loaded at Maputo was not TSL's own cargo, the motive for a "commercial deviation" that Blackmore posits does not exist.
5. Important Caveat. Notwithstanding the foregoing, we note an important caveat: if Northwind can establish that the Maputo call was arranged in advance of the vessel's departure from its prior port — i.e., that the decision was pre-planned rather than responsive to weather conditions encountered en route — this could weaken TSL's weather-necessity defense by suggesting that the weather conditions were a pretext. Pre-deviation communications between TSL, the vessel's commercial managers, and the Maputo port agent may exist but have not been specifically identified in the document production to date. We should confirm during rebuttal preparation that all pre-Maputo communications, including those involving TSL's commercial department and any third-party intermediaries, have been thoroughly reviewed. Hannah should coordinate with our e-discovery team to run targeted search terms against the remaining unreviewed custodial files.
F. General Methodology Concerns
Beyond the specific weaknesses identified above, Captain Blackmore's report suffers from several general methodological deficiencies that pervade his analysis:
1. Narrative and Opinion-Based Approach. The report is largely narrative in structure and relies primarily on Blackmore's subjective professional judgment. It contains limited quantitative analysis, no independent testing or modeling, and no systematic framework for evaluating causation. While subjective professional judgment is an accepted basis for expert testimony in certain circumstances, the absence of any structured methodology makes it difficult to evaluate the reliability of Blackmore's conclusions and renders his opinions vulnerable to characterization as ipse dixit.
2. Reliance on Unsourced "Industry Practice" Standards. Blackmore repeatedly invokes "industry practice" and "standard maritime practice" as the benchmark against which he measures TSL's conduct, but he does not consistently cite specific regulatory requirements, classification society rules, flag state regulations, or charter-party provisions to define what these standards require. Several of his citations to "standard maritime practice" are entirely unsourced, and at least two cite publications that are outdated by more than a decade.
3. Lack of Methodology Statement. Blackmore's report does not contain a clear statement of the methodology he employed in reaching his opinions — i.e., the analytical framework, the data he considered and rejected, the assumptions he made, and the reasoning process he followed. This omission may be vulnerable to a reliability challenge, as it deprives the Court and opposing counsel of the ability to evaluate whether his conclusions follow logically from his premises.
IV. Analysis of Dr. Rajesh Anand's Report (Damages Expert)
A. Qualifications and Scope
Dr. Rajesh Anand is a partner at Pinnacle Valuation Partners LLP in New York. His curriculum vitae identifies him as specializing in commercial damages quantification and business valuation, with experience across a range of industries. He holds a Ph.D. in economics from Columbia University and has been retained as a damages expert in numerous commercial litigation matters in New York state and federal courts.
Dr. Anand has been retained by Northwind to quantify Northwind's total claimed damages of $18,300,000 across all nine categories asserted in the complaint. His report presents a category-by-category calculation of damages, arriving at an aggregate figure that he opines represents Northwind's total economic loss attributable to TSL's alleged breaches.
Qualifications Assessment. Dr. Anand appears qualified as a damages expert in commercial disputes generally. However, a review of his disclosed curriculum vitae and prior engagement history reveals that his experience in maritime-specific damages quantification appears limited. His listed engagements are predominantly in the areas of breach of contract (non-maritime), trade secret misappropriation, and business valuation in the context of M&A disputes. We have not identified any prior engagement in which he quantified damages arising from a charter-party dispute or applied maritime-specific damages principles. While this limitation may not be sufficient to warrant exclusion, it is relevant to the weight the Court should afford his opinions, particularly on maritime-specific issues such as the application of the Inter-Club Agreement, the interplay between off-hire provisions and liquidated damages, and the recoverability of third-party shipper claims.
B. Off-Hire Deductions ($1,003,000)
Dr. Anand calculates off-hire deductions as follows: 68 off-hire days multiplied by the daily hire rate of $14,750 per day, yielding $1,003,000. He presents this calculation as consistent with the actual off-hire deductions applied under Clause 11 of the charter-party.
Weaknesses Identified:
Dr. Anand uses 68 off-hire days in his summary table but does not independently verify the duration of each off-hire period. Instead, he simply adopts Captain Blackmore's off-hire calculations without independent corroboration. As discussed in Section III.D above, Blackmore inflates the off-hire period for Incident 3 to 28 days, claiming the vessel was not fully operational until December 13, 2022, whereas the drydock completion certificate establishes that the vessel was released on December 10, 2022, yielding an off-hire period of 25 days.
This creates an internal inconsistency in Anand's own report. In his summary table (Table 1, page 8), Anand uses a total of 68 off-hire days — which is consistent with TSL's position (22 days for Incident 1 + 21 days for Incident 2 + 25 days for Incident 3 = 68 days). However, in the narrative discussion of Incident 3 (pages 14–15), he cites Blackmore's 28-day figure. If Blackmore's 28-day figure were used, the total off-hire period would be 71 days (22 + 21 + 28), not 68. Anand's report thus contains an unexplained 3-day discrepancy between his summary calculation and his narrative discussion. This inconsistency should be highlighted in Dr. Albright's rebuttal report and preserved for cross-examination, as it calls into question the care with which Dr. Anand verified the inputs to his damages model.
C. Liquidated Damages Under Clause 28 ($4,500,000)
Dr. Anand opines that the liquidated damages cap of $4,500,000 under Clause 28 of the charter-party applies separately to each "single continuous period of breach." Under this interpretation, because there were three separate breach periods corresponding to the three mechanical incidents, the theoretical maximum liquidated damages exposure would be $13,500,000 (three caps multiplied by $4,500,000 each). However, Anand calculates the formula amount under Clause 28 as 68 off-hire days multiplied by $14,750 per day multiplied by 150%, yielding $1,504,500. Because Northwind claims only the single aggregate cap amount of $4,500,000 rather than the per-incident maximum, Anand opines that the $4,500,000 figure is an appropriate measure of Northwind's liquidated damages recovery.
Weaknesses Identified:
1. Improper Legal Opinion on Cap Interpretation. The most significant weakness in this portion of Dr. Anand's report is that his opinion on the interpretation of Clause 28 is fundamentally a legal opinion, not an economic one. The question of whether the $4,500,000 cap applies once to the entire charter period or separately to each "single continuous period of breach" is a question of contract interpretation for the Court. Dr. Anand is a damages economist, not a lawyer, and his opinion on this point constitutes impermissible legal opinion testimony that may be excludable on a motion in limine. The Commercial Division has excluded expert testimony on comparable grounds. See, e.g., Marx v. Fenmore Partners LLC, Index No. 652198/2019 (Sup. Ct. N.Y. Cty. 2021) (excluding expert opinion on contract interpretation as invading the province of the Court).
2. The Formula Yields Only $1,504,500. Dr. Anand's own calculation demonstrates that the mathematical formula under Clause 28 generates a liquidated damages figure of only $1,504,500, which is well below even a single application of the $4,500,000 cap. The $4,500,000 figure that Northwind claims thus represents a recovery that exceeds the formula's own output by approximately $3,000,000 — a figure that Dr. Albright's report has already characterized as a windfall beyond the contractual formula's computation. Under TSL's interpretation of Clause 28 — which will form a central component of the partial summary judgment motion — the cap is a ceiling on liquidated damages recovery, not a floor and not a separate entitlement. Under this interpretation, Northwind's liquidated damages recovery is limited to $1,504,500 (the formula amount), not $4,500,000.
3. Double-Counting with Off-Hire Deductions. Dr. Anand does not address the interplay between his off-hire deductions calculation ($1,003,000) and his liquidated damages calculation ($4,500,000). Both figures are derived from the same 68 off-hire days. The liquidated damages formula itself (68 × $14,750 × 150%) incorporates the off-hire days with a 150% multiplier, meaning that the underlying off-hire value is already embedded in the LD calculation. By claiming both off-hire deductions and liquidated damages based on the same off-hire days, Northwind is effectively counting the off-hire loss twice — once at face value and once at 150% of face value. This double-counting issue is discussed further in Section IV.K below.
D. Substitute Charter Costs ($471,600)
Dr. Anand calculates substitute charter costs as follows: the substitute charter rate of $21,300 per day minus the charter-party rate of $14,750 per day, yielding a daily differential of $6,550, multiplied by 72 days, for a total of $471,600.
Weaknesses Identified:
1. Unexplained Day-Count Discrepancy. Dr. Anand uses 72 days as the substitute charter period but only 68 days as the total off-hire period across the three incidents. The 4-day discrepancy is entirely unexplained. If the M/V Aegean Fortuna was off-hire for 68 days, why was a substitute charter required for 72 days? Dr. Anand does not discuss mobilization or demobilization time for the substitute vessel, does not address whether the substitute charter periods exceeded the off-hire periods due to scheduling constraints, and does not provide any other justification for the differential. This unexplained discrepancy undermines the reliability of the substitute charter cost calculation.
2. Failure to Verify Commercial Reasonableness of Substitute Rate. The $21,300 per day substitute charter rate is taken from a single fixture recap provided by Northwind and is not independently verified. Dr. Anand does not analyze whether this rate was commercially reasonable — i.e., whether Northwind could have obtained a substitute vessel at a lower daily rate. This is directly relevant to TSL's failure-to-mitigate defense: if a substitute Supramax dry bulk carrier could have been chartered at a rate lower than $21,300 per day, Northwind failed to mitigate by accepting a higher rate, and the substitute charter cost calculation should be adjusted downward accordingly.
3. No Market Analysis. Dr. Anand provides no market analysis to verify that $21,300 per day was consistent with prevailing Supramax dry bulk charter rates during the relevant periods in 2022. The Supramax market experienced significant volatility during 2022, and prevailing rates varied substantially depending on the route, timing, and market conditions. A competent damages analysis would include a comparison of the substitute charter rate to contemporaneous market indices (e.g., the Baltic Supramax Index) to establish that the rate paid was within the range of market rates. Dr. Anand's failure to conduct this analysis leaves his substitute charter cost calculation unsupported by any independent market data. Dr. Albright should conduct this analysis in her rebuttal report.
E. Cargo Damage — Iron Ore Oxidation ($3,420,000)
Dr. Anand adopts a valuation of $3,420,000 for cargo damage, specifically the oxidation of iron ore cargo. This figure is based on Northwind's internal records and the reports of Northwind's cargo loss adjusters.
Weaknesses Identified:
1. Lack of Independent Verification. Dr. Anand does not independently verify the cargo damage quantum. He relies entirely on Northwind's internal damage assessments and the reports prepared by Northwind's own loss adjusters, without conducting any independent analysis of the cargo's condition, the extent of oxidation, the cargo's pre-damage value, or the residual value after damage. An independent valuation or, at a minimum, an analysis of the methodology employed by Northwind's loss adjusters would be expected of a competent damages expert.
2. Failure to Address the Inter-Club Agreement. Dr. Anand does not address TSL's defense that cargo damage claims as between owner and charterer under a time charter are governed by the Inter-Club Agreement (the "ICA"), which establishes a regime for apportioning liability for cargo claims between owners and charterers based on the cause of the damage. The ICA may bar Northwind's claim for the full amount of cargo damage or may apportion liability differently from the full-recovery approach adopted by Dr. Anand. His failure to address this defense renders his cargo damage calculation incomplete.
3. Unexamined Causation. The causation link between Incident 2 (the BWTS/boiler failure at Richards Bay) and the iron ore oxidation is assumed by Dr. Anand, not independently analyzed. He does not explain the mechanism by which the BWTS malfunction led to iron ore oxidation, does not address the timeline of the oxidation process, and does not consider whether the oxidation may have been caused or contributed to by other factors (such as pre-existing moisture in the cargo, improper stowage by Northwind's stevedores, or conditions at the loading port). Most critically, if the BWTS failure was caused by contaminated ballast water loaded by Northwind's agents — as TSL contends — then the causal chain shifts, and Northwind bears responsibility for the cargo damage rather than TSL.
4. Insurance Recoveries Not Addressed. Dr. Anand does not discuss whether Northwind has received or is entitled to receive insurance recoveries under its cargo insurance policies that would offset the claimed cargo damage. Under basic principles of damages law, a claimant may not recover the same loss twice. If Northwind has been indemnified in whole or in part by its cargo insurers, the $3,420,000 figure may be overstated.
F. Demurrage and Dead Freight — Qingdao ($1,230,000)
Dr. Anand quantifies demurrage and dead freight at $1,230,000, arising from the vessel's failure to arrive at Qingdao, China, within the October 1–5, 2022 laycan window, which Northwind attributes to the Maputo deviation.
Weaknesses Identified:
1. No Independent Verification. The $1,230,000 figure is based on Northwind's internal calculations of demurrage charges and dead freight, which Dr. Anand adopts without independent verification. He does not analyze the underlying demurrage rates, does not verify the dead freight quantities against loading records, and does not assess whether the calculation is consistent with the terms of the relevant cargo contract.
2. Deviation as a Predicate. Dr. Anand's entire Qingdao damages calculation depends on the assumption that the Maputo call constituted a breach of the charter-party — a factual and legal determination that is hotly contested and has not been adjudicated. If the deviation is not a breach — as TSL contends, on the ground that the Maputo call was within the Master's reasonable navigational discretion in light of weather conditions — then the entire $1,230,000 claim falls away. A damages expert who presents a damages figure contingent on a contested liability determination should, at a minimum, present alternative calculations under different liability scenarios. Dr. Anand does not do so.
3. Failure to Address Mitigation. Dr. Anand does not consider whether Northwind could have rescheduled the Qingdao laycan or taken other mitigating steps upon learning that the vessel's arrival would be delayed. If Northwind had the opportunity to renegotiate the laycan window with the Qingdao charterer or to arrange an alternative vessel to fulfill the Qingdao commitment, its failure to do so would reduce or eliminate the demurrage and dead freight claim. Dr. Anand's failure to address this issue is relevant to TSL's failure-to-mitigate defense.
G. Additional Port Costs and Bunker Surcharges ($875,400)
Dr. Anand aggregates various incremental port costs and bunker surcharges allegedly incurred as a result of the three incidents and the Maputo deviation, totaling $875,400.
Weaknesses Identified:
1. Vague Breakdown. The breakdown of this category is imprecise. Dr. Anand cites specific invoices and supporting documentation by Bates number but does not analyze the individual items for reasonableness, does not distinguish between costs that are genuinely incremental (i.e., would not have been incurred absent the alleged breaches) and costs that would have been incurred in any event, and does not apply any discernible methodology for separating breach-related costs from routine operating costs.
2. Inclusion of Routine Port Charges. A preliminary review of the cited documents suggests that some of the costs aggregated in this category include routine port charges — such as standard pilotage, tug assistance, and berth fees — that would have been incurred regardless of the incidents. These charges are not damages attributable to any breach; they are ordinary costs of vessel operations.
3. Bunker Price Volatility. The bunker surcharge component attributes the entirety of the incremental bunker costs to delays caused by the incidents, without accounting for the significant fluctuations in global bunker fuel prices during 2022. During a period of fuel price volatility, it is necessary to analyze whether the bunker costs actually incurred at the ports where the vessel called during the delay periods were higher or lower than the bunker costs that would have been incurred at the ports the vessel would have called at absent the delays. Dr. Anand does not conduct this analysis.
H. Lost Sub-Charter Profit ($166,600)
Dr. Anand calculates lost sub-charter profit based on Northwind's sub-charter with Eastbourne Bulk Carriers Ltd. at a sub-charter rate of $17,200 per day, as follows: ($17,200 − $14,750) × 68 days = $2,450 per day × 68 days = $166,600.
Weaknesses Identified:
1. Incomplete Sub-Charter Terms. The sub-charter agreement between Northwind and Eastbourne Bulk Carriers was the subject of a discovery dispute during the document production phase. Our April 5, 2024 letter to HD&S demanded supplemental production of the complete sub-charter agreement and all related correspondence. While some documents were subsequently produced, it is unclear whether the full sub-charter terms have been disclosed. If the sub-charter contains its own off-hire provisions, force majeure clauses, or other terms that reduce or eliminate Northwind's obligation to pay Eastbourne during periods when the M/V Aegean Fortuna was off-hire, then Northwind's lost profit calculation may be overstated — because Northwind may not have been required to pay Eastbourne during the off-hire periods, and therefore may not have lost the $2,450 per day sub-charter spread.
2. No Evidence of Actual Loss. Dr. Anand does not address whether Eastbourne Bulk Carriers actually invoked any remedies against Northwind — such as deducting hire, claiming damages, or terminating the sub-charter — or whether the sub-charter profit was merely delayed rather than permanently lost. If Northwind continued to receive hire payments from Eastbourne throughout the off-hire periods, or if the sub-charter term was extended to account for off-hire periods, then Northwind did not actually lose the sub-charter profit, and this category of damages would be entirely illusory.
I. Third-Party Shipper Claims ($5,634,400)
Dr. Anand includes $5,634,400 in third-party shipper cargo claims as damages recoverable by Northwind from TSL. This figure represents three separate cargo claims asserted by third-party shippers against Northwind.
Weaknesses Identified:
1. Recoverability Is Legally Contested. This is the most vulnerable category in Dr. Anand's damages analysis. As noted above, Justice Chen's March 8, 2024 ruling on TSL's motion to dismiss narrowed Count III (third-party shipper claims), and Count V (unjust enrichment) was dismissed entirely. The recoverability of pass-through third-party claims as charter-party damages remains a contested legal issue that has not been finally resolved. The survival of Count III on the motion to dismiss does not establish that these damages are recoverable; it establishes only that Northwind's allegations, if true, state a cognizable claim. The actual recoverability of these damages will be adjudicated on summary judgment or at trial.
2. Claims Are Unliquidated. Dr. Anand treats the $5,634,400 figure as fully liquidated, but the underlying third-party claims are themselves disputed and unliquidated. Northwind has not demonstrated that it has actually paid these claims or been held liable for them. If Northwind has not yet incurred an actual loss — i.e., if the third-party claims remain unresolved — then the $5,634,400 figure represents a speculative future liability, not an actual incurred loss. Under New York law, damages must be proven with reasonable certainty; speculative or contingent damages are not recoverable. See Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261 (1986).
3. Inter-Club Agreement. As with the cargo damage claim (Section IV.E above), Dr. Anand does not address whether the Inter-Club Agreement governs the apportionment of these third-party cargo claims as between owner and charterer, potentially barring or reducing Northwind's recovery.
4. Impact on Overall Damages. If the third-party shipper claims are barred, excluded, or substantially reduced — whether on summary judgment, on a motion in limine, or at trial — then $5,634,400, the single largest damages category, drops out of Northwind's case entirely. Combined with the vulnerabilities in the liquidated damages category ($4,500,000), the potential reduction in Northwind's realistic damages exposure is on the order of $10 million or more.
J. Legal Fees and Expert Costs ($999,000)
Dr. Anand includes $999,000 in Northwind's own legal fees and expert costs as an element of recoverable damages.
Weaknesses Identified:
1. New York's American Rule. Under New York law, attorney's fees and litigation expenses are generally not recoverable as damages absent a specific contractual provision, statutory authorization, or recognized equitable exception. See Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491 (1989). Clause 28 of the charter-party does not appear to contain a fee-shifting provision, and Northwind has not identified any statutory or equitable basis for recovering its attorney's fees and expert costs. This category is likely not recoverable as a matter of law and should be the subject of a summary judgment or motion in limine challenge.
2. No Reasonableness Analysis. Even if, contrary to our expectation, the Court were to find a contractual or other basis for fee recovery, Dr. Anand does not analyze the reasonableness of the $999,000 figure. He simply adopts Northwind's stated total without reviewing the underlying billing records, assessing the hourly rates for reasonableness, evaluating the staffing model, or determining whether the fees were necessarily incurred in connection with the claims at issue. A competent expert opinion on recoverable legal fees would, at a minimum, include such an analysis.
K. Aggregate Damages and Double-Counting Analysis
Dr. Anand arrives at an aggregate damages figure of $18,300,000. However, his aggregate calculation is materially inflated by significant double-counting across multiple damages categories.
Double-Counting Issues Identified:
1. Off-Hire and Liquidated Damages. As discussed in Section IV.C above, the off-hire deductions ($1,003,000) and the liquidated damages ($4,500,000) are both derived from the same 68 off-hire days. The liquidated damages formula under Clause 28 (68 × $14,750 × 150% = $1,504,500) already incorporates the daily hire rate for the off-hire days, with a 150% multiplier. Claiming both off-hire deductions and liquidated damages based on the same off-hire days results in the off-hire loss being counted twice: once at face value ($1,003,000) and again at 150% within the LD formula. The total overstatement from this overlap depends on the proper interpretation of Clause 28, but at a minimum, the $1,003,000 off-hire deduction is subsumed within the LD calculation and should not be claimed as a separate item.
2. Off-Hire and Substitute Charter Costs. The off-hire clause (Clause 11) compensates Northwind for hire paid during periods when the vessel was not operational. The substitute charter costs ($471,600) represent the additional cost Northwind incurred to charter a replacement vessel during those same non-operational periods. These two categories address the same underlying loss: Northwind's inability to use the M/V Aegean Fortuna during the off-hire periods. Claiming both off-hire deductions and substitute charter costs results in a recovery that exceeds Northwind's actual loss. Under off-hire, Northwind recovers the hire it paid for nothing; under substitute charter costs, it recovers the premium it paid for a replacement vessel. The appropriate measure of Northwind's loss is one or the other, not both.
3. Lost Sub-Charter Profit. The lost sub-charter profit claim ($166,600) may also overlap with the off-hire and substitute charter claims. If Northwind has already been made whole for the off-hire periods through off-hire deductions and substitute charter cost recovery, an additional claim for lost sub-charter profit during those same periods represents a third layer of recovery for the same underlying loss.
4. Quantification of Double-Counting. We estimate that the total double-counting in Dr. Anand's damages analysis is on the order of approximately $1.5 to $2.0 million. Dr. Albright's rebuttal report should quantify this figure precisely and present it as a clear reduction to Northwind's claimed damages. The double-counting analysis should be presented in tabular format to maximize its clarity and impact.
L. General Methodology Concerns with Dr. Anand's Report
Beyond the category-specific weaknesses discussed above, Dr. Anand's report suffers from several overarching methodological deficiencies.
1. Compilation, Not Analysis. Dr. Anand's methodology is fundamentally one of compilation rather than independent economic analysis. He aggregates Northwind's internally calculated damages figures, applies minimal independent judgment, and presents the result as an expert opinion. A damages expert is expected to bring independent analytical rigor to the quantification of claimed losses — conducting market analyses, applying established economic methodologies, and testing the claimant's figures against independent data sources. Dr. Anand does none of these things.
2. No Statistical or Economic Modeling. Dr. Anand does not conduct any market analysis, regression analysis, or statistical modeling in his report. He does not use any established economic framework or damages methodology (such as the "but-for" analysis commonly employed in commercial damages cases) to independently derive his figures. His damages calculations are arithmetic exercises based on inputs provided by Northwind, not the product of independent economic analysis.
3. Cascading Dependence on Blackmore. Dr. Anand's damages calculations are heavily dependent on Captain Blackmore's factual assumptions, including the duration of off-hire periods, the characterization of the Maputo call as a deviation, and the attribution of cargo damage to TSL's maintenance failures. Any weakness in Blackmore's report — and, as discussed in Section III, there are many — cascades directly into Anand's damages analysis. If Blackmore's off-hire figure for Incident 3 is wrong (28 days instead of 25), Anand's calculations are wrong. If the Maputo call was not a breach, the Qingdao damages claim ($1,230,000) disappears from Anand's total. If the BWTS failure was caused by contaminated ballast, the cargo damage claim ($3,420,000) and potentially the third-party shipper claims ($5,634,400) shift to Northwind.
4. Absence of Sensitivity Analysis. Dr. Anand offers a single point estimate of $18,300,000 with no sensitivity analysis, no alternative scenarios, no confidence interval, and no discussion of uncertainty. A competent damages analysis in a case of this magnitude would include, at a minimum, a range of damages estimates under different assumptions — for example, damages under TSL's interpretation of the LD cap versus Northwind's interpretation, damages with and without the third-party shipper claims, and damages with and without the Maputo deviation-related claims. Dr. Anand's failure to present any such analysis limits the utility of his opinion and makes it more vulnerable to challenge.
V. Potential Daubert / Reliability Challenges
While we recognize that New York state courts apply the Frye "general acceptance" standard rather than the federal Daubert standard, reliability-based challenges to expert testimony remain viable in Commercial Division practice. Justice Chen's Part 49 has, in several prior matters, entertained motions in limine challenging the reliability and factual basis of expert opinions, even outside the formal Daubert framework. We therefore recommend that motions in limine be considered as part of our trial preparation strategy, targeting the specific weaknesses discussed below.
A. Captain Blackmore
1. Lack of Testable Methodology. Captain Blackmore's opinions are largely subjective assessments of compliance with undefined "industry standards." He does not employ any defined analytical framework, does not use any reproducible methodology, and does not identify objective criteria against which his conclusions can be tested. While professional judgment is an accepted basis for maritime expert testimony, the absence of any structured methodology makes it difficult to distinguish his opinions from lay opinion testimony and raises reliability concerns.
2. Failure to Address Contrary Evidence. As discussed at length in Section III above, Blackmore fails to address multiple pieces of evidence that directly contradict his opinions: the metallurgical analysis (Incident 1), the ballast water sample analysis (Incident 2), the GMCB classification survey (Incident 1), the Master's log entries and deposition testimony (Maputo deviation), and Chief Engineer Vlahos's testimony on BWTS maintenance (Incident 2). An expert who fails to account for material contrary evidence in reaching his opinions has not applied a reliable methodology. See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006) (expert must explain basis for opinion and why contrary evidence does not undermine conclusions).
3. BWTS Causation as a Target for Exclusion. Among Blackmore's various opinions, his BWTS causation opinion is the most vulnerable to a reliability challenge. He offers no independent testing, modeling, or analysis to support his assertion that the BWTS malfunction was caused by TSL's inadequate maintenance rather than contaminated ballast water. His opinion on this point is essentially conclusory — a bare assertion unsupported by any analytical process. A motion in limine to exclude Blackmore's BWTS causation opinion as speculative and unreliable has a reasonable probability of success and should be prepared for filing at the appropriate time in the pre-trial schedule.
B. Dr. Anand
1. Lack of Independent Analysis. As discussed in Section IV.L, Dr. Anand's report is largely a recitation of Northwind's own damages claims without independent verification or economic modeling. His methodology amounts to aggregating Northwind's figures and presenting them as his own opinion. This approach lacks the analytical rigor expected of a qualified damages expert and is vulnerable to challenge on reliability grounds.
2. Legal Opinions Disguised as Expert Testimony. Dr. Anand's interpretation of Clause 28's liquidated damages cap — specifically, his opinion that the cap applies separately to each "single continuous period of breach" — is a legal opinion, not an economic one. Expert witnesses may not offer opinions on questions of law. See Marx & Co. v. Diners' Club, Inc., 550 F.2d 505 (2d Cir. 1977); Billings v. Storekeeper of Sing Sing Prison, 173 A.D.2d 75, 79 (3d Dep't 1991). Dr. Anand's legal opinion on the LD cap should be excluded.
3. Double-Counting. The failure to account for overlap among damages categories undermines the reliability of Dr. Anand's aggregate damages figure. A damages expert who presents an inflated total by double-counting overlapping categories has not applied a reliable methodology. This issue should be raised both in Dr. Albright's rebuttal report and, if necessary, on

MEMORANDUM — PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT

C&H MATTER NO.: 1044-00006

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