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

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION

NORTHWIND MARITIME CORPORATION,

Plaintiff,

-against-

THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD.,

Defendants.

Index No. 655421/2023 Part 49 (Hon. Lorraine K. Chen, J.S.C.)

DECLARATION OF DOUGLAS CARMICHAEL IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COUNTS III AND V OF THE COMPLAINT

Douglas Carmichael, pursuant to CPLR § 2106, hereby declares under penalty of perjury under the laws of the State of New York as follows:

1. I am a partner at the law firm of Calderwood & Harkness LLP, with offices at One Liberty Plaza, 50th Floor, New York, New York 10006. I am duly admitted to practice law in the State of New York, having been admitted to the bar of this Court in 2004. I am the responsible partner representing Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding"), a limited liability company duly incorporated under the laws of the Republic of Liberia, with its registered address at 80 Broad Street, Monrovia, Liberia. I make this declaration in support of Defendants' Motion to Dismiss Counts III and V of the Verified Complaint filed in this action, pursuant to CPLR § 3211(a)(1) (defense founded upon documentary evidence) and CPLR § 3211(a)(7) (failure to state a cause of action). I have personal knowledge of the facts stated herein, have reviewed the pleadings, the charter-party at issue, and the correspondence and documents referenced herein, and am competent to testify as to the matters set forth below.

2. Plaintiff Northwind Maritime Corporation ("Northwind"), a corporation incorporated under the laws of the Republic of the marshall Islands with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902, commenced this action by filing its Verified Complaint on October 2, 2023. In the Complaint, Northwind alleges breach of a time charter-party for the motor vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,200 deadweight tonnage, flagged in the Republic of Liberia and classified by the Global Maritime Classification Bureau. The charter-party that is the subject of this action bears Reference No. NW-TSL-CP-2020-1203 and was executed on December 3, 2020, based upon the New York Produce Exchange Time Charter Form, 2015 edition ("NYPE 2015"), as amended by rider clauses agreed upon by the parties. The charter-party provided for a thirty-six (36) month charter period, commencing on January 15, 2021 and expiring on January 14, 2024, at a daily hire rate of $14,750.00 (United States Dollars Fourteen Thousand Seven Hundred Fifty), payable in advance in semi-monthly installments. Northwind's Complaint asserts claims for total damages in the aggregate amount of $18,300,000 across multiple categories, including alleged breaches of maintenance and seaworthiness obligations, lost profits, third-party shipper cargo claims, and unjust enrichment.

3. This declaration is submitted for the purpose of authenticating and placing before the Court the documentary exhibits that are necessary for the resolution of Defendants' motion to dismiss Counts III and V of the Verified Complaint. Count III of the Complaint seeks recovery of $5,634,400 in alleged third-party shipper cargo claims, which Northwind characterizes as charter-party breach damages flowing from TSL's alleged failure to maintain the M/V Aegean Fortuna in a seaworthy condition. Count V of the Complaint asserts a cause of action for unjust enrichment in the alternative, contending that TSL was unjustly enriched by collecting hire while allegedly failing to maintain the vessel in accordance with its contractual obligations. Defendants respectfully contend that Count III fails to state a cause of action because third-party shipper cargo claims are not recoverable as direct damages under the charter-party and, in any event, are governed by and barred by the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement" or "ICA"), which provides the exclusive contractual mechanism for the apportionment of cargo damage claims between owner and charterer under NYPE time charter-parties. Defendants further contend that Count V must be dismissed because it is duplicative of the breach of contract claims set forth in Counts I and II of the Complaint, and an unjust enrichment claim cannot be maintained where, as here, a valid and enforceable contract governs the subject matter of the dispute.

4. Calderwood & Harkness LLP was engaged by Thalassa Shipping & Logistics SA on October 16, 2023, to defend this action. This matter is designated internally as C&H Matter No. 1044-00006. The firm also represents co-defendant Aegean Fortuna Shipholding Ltd. in this proceeding. Aegean Fortuna Shipholding Ltd. is the registered owner of the M/V Aegean Fortuna and is a wholly owned subsidiary of TSL. The corporate relationship between TSL and Aegean Fortuna Shipholding was disclosed in Defendants' initial filings and is not in dispute. On November 17, 2023, Defendants filed their Verified Answer and Counterclaim in this action, denying the material allegations of the Complaint and asserting, inter alia, a counterclaim against Northwind in the amount of $1,620,000.00 for unpaid hire for the period from October 1, 2022 through December 31, 2022, during which time Northwind deducted hire payments without lawful justification. The counterclaim remains pending and is not the subject of the instant motion.

5. Attached hereto as Exhibit A is a true and correct copy of the Time Charter-Party dated December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as "Owner") and Northwind Maritime Corporation (as "Charterer") for the M/V Aegean Fortuna, bearing Reference No. NW-TSL-CP-2020-1203. The charter-party is based on the NYPE 2015 form, as amended by the parties through a series of rider clauses negotiated and agreed upon prior to execution. The charter-party provides that it shall be governed by the laws of the State of New York. The following clauses of the charter-party are of particular relevance to the instant motion and are respectfully brought to the Court's attention:

(a) Clause 2 (Delivery): This clause provides that the vessel was to be delivered to the Charterer on or about January 15, 2021, at the Port of Piraeus, Greece, in a condition ready in every respect to receive cargo. The vessel was in fact delivered on that date, and no dispute exists as to the delivery of the vessel.

(b) Clause 5 (Trade Limits): This clause permits worldwide trading of the vessel, subject to exclusions for ports or regions subject to sanctions imposed by the United States Office of Foreign Assets Control ("OFAC"), areas listed by the London Joint War Committee as war risk areas, and ice-bound waters north of latitude 68° North. The trade limits are not directly at issue in this motion but are relevant to the scope of operations during the charter period.

(c) Clause 6 (Maintenance and Seaworthiness): This clause imposes upon the Owner the obligation to maintain the vessel in a thoroughly efficient state of hull, machinery, and equipment for the service of the Charterer during the charter period. Northwind's breach claims in Counts I, II, and III are predicated upon alleged violations of this clause.

(d) Clause 11 (Off-Hire): This clause sets forth the circumstances under which the vessel may be placed off-hire, including periods during which the vessel is unable to perform the Charterer's service due to deficiency of crew, breakdown of machinery, or other cause preventing the efficient working of the vessel. Clause 11 specifies the manner and timing of off-hire deductions from hire payments.

(e) Clause 28 (Liquidated Damages): This clause provides that, upon the Owner's material breach of its maintenance and seaworthiness obligations under Clauses 2 and 6, the Charterer shall be entitled to liquidated damages equal to one hundred fifty percent (150%) of the aggregate number of off-hire days multiplied by the daily hire rate, subject to a cap of $4,500,000.00 for any single continuous period of breach. Clause 28 represents the parties' negotiated allocation of risk with respect to damages arising from maintenance and seaworthiness failures and reflects their agreement as to the measure and limit of recoverable damages for such breaches.

(f) Clause 46 (Dispute Resolution): This clause provides that the charter-party shall be governed by and construed in accordance with the laws of the State of New York. Clause 46 further provides that disputes arising out of or in connection with the charter-party shall be submitted to arbitration in New York, New York, in accordance with the rules of the Society of Maritime Arbitrators, Inc.; provided, however, that pursuant to an addendum set forth in Clause 46(b), either party may elect, at its sole option, to commence litigation in the Supreme Court of the State of New York, County of New York, in lieu of arbitration. Northwind elected to commence litigation in this Court, and Defendants have not objected to the forum.

I respectfully direct the Court's attention to the fact that the charter-party contains no provision entitling the Charterer to pass through or recover third-party shipper cargo claims as a category of direct damages against the Owner. Neither Clause 28 nor any other provision of the charter-party includes an indemnification obligation requiring the Owner to hold the Charterer harmless against claims by third-party cargo interests. The absence of such a provision is significant in the context of the instant motion and is discussed further below.

6. Attached hereto as Exhibit B is a true and correct copy of the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement" or "ICA"), as incorporated by reference in the charter-party between the parties. The ICA is a well-established industry agreement that governs the apportionment of cargo claims as between owner and charterer under NYPE time charter-parties, and it has been widely adopted in the international shipping industry since its original promulgation. The ICA sets forth a detailed framework for allocating liability for cargo claims depending upon the cause of the cargo damage or loss. Under the ICA, cargo claims arising from the loading, stowage, trimming, and discharge of cargo — operations that are the responsibility of the charterer under a time charter — are apportioned in whole or in part to the charterer, while cargo claims arising from the unseaworthiness of the vessel are apportioned to the owner, in each case subject to specific formulae and apportionment percentages set forth in the agreement. The ICA provides the exclusive mechanism for the allocation of cargo damage claims between the charter-party parties, and it displaces any common-law right that either party might otherwise assert with respect to such claims. Northwind's attempt in Count III of the Complaint to claim $5,634,400 in third-party shipper cargo claims as direct breach damages under the charter-party circumvents this agreed-upon framework and is inconsistent with the terms of the charter-party as executed by the parties.

7. Attached hereto as Exhibit C are true and correct copies of correspondence and claim notices from the three third-party shippers referenced in Count III of Northwind's Verified Complaint. These three cargo claims total $5,634,400 in the aggregate. Each of the three claims was made by third-party cargo interests against Northwind in its capacity as time charterer of the M/V Aegean Fortuna; Northwind now seeks to pass through these claims to TSL and Aegean Fortuna Shipholding as charter-party breach damages. The claims arise from alleged cargo damage that occurred during the charter period and involve the following characteristics:

(a) Each claim was asserted by distinct cargo interests — specifically, third-party shippers and/or consignees who contracted with Northwind or its sub-charterers for the carriage of goods aboard the M/V Aegean Fortuna during the charter period;

(b) Each claim involves a distinct shipment of cargo, carried during a distinct voyage, under distinct bills of lading;

(c) Each claim is predicated upon distinct factual circumstances, including different alleged causes of cargo damage, different ports of loading and discharge, and different commodities; and

(d) In each instance, the claim was asserted against Northwind, not against TSL or Aegean Fortuna Shipholding. TSL and Aegean Fortuna Shipholding are not parties to any of these third-party cargo claims and have not been joined or impleaded in any proceeding related to these claims.

I note that, as of the date of this declaration, Northwind has not established that any final liability has been assessed against it with respect to any of the three claims. Northwind has not demonstrated that any of the claims have been resolved by settlement, judgment, or arbitral award, nor has Northwind demonstrated that it has made any payment on any of the claims. To the extent these third-party claims remain pending, unresolved, and unliquidated, they represent contingent liabilities that are not properly recoverable as damages in the instant action.

8. Attached hereto as Exhibit D are excerpts of Northwind's Verified Complaint, filed on October 2, 2023 in this Court. The excerpts include the paragraphs constituting Counts III and V of the Complaint, which are the subject of Defendants' motion to dismiss.

(a) Count III (Third-Party Shipper Claims): In Count III, Northwind alleges that TSL's breach of Clauses 2 and 6 of the charter-party — specifically, TSL's alleged failure to maintain the M/V Aegean Fortuna in a thoroughly efficient state of hull, machinery, and equipment — caused Northwind to incur liability to third-party cargo interests in the aggregate amount of $5,634,400. Northwind characterizes these third-party claims as consequential damages flowing directly from TSL's breach of its maintenance and seaworthiness obligations. As set forth above and in the accompanying memorandum of law, Defendants respectfully submit that these claims are not recoverable as direct or consequential damages under the charter-party and are properly subject to the apportionment mechanism of the Inter-Club Agreement.

(b) Count V (Unjust Enrichment): In Count V, Northwind alleges, in the alternative, that TSL was unjustly enriched by failing to maintain the vessel in accordance with its contractual obligations while continuing to collect hire payments from Northwind throughout the charter period. Northwind asserts that it is entitled to restitution of the hire payments made during periods in which the vessel was allegedly not maintained in a seaworthy condition. I note that Count V is expressly pleaded in the alternative to the breach of contract claims set forth in Counts I and II of the Complaint. Critically, however, Northwind does not dispute the existence of a valid and enforceable charter-party governing the parties' relationship with respect to the M/V Aegean Fortuna. The Complaint itself affirmatively pleads the charter-party as the basis for Counts I and II, and at no point does Northwind contend that the charter-party is void, voidable, or otherwise unenforceable.

9. Attached hereto as Exhibit E are true and correct copies of correspondence between the parties and between counsel for the parties regarding the third-party cargo claims at issue in Count III of the Complaint. This correspondence spans the period from approximately August 2022 through October 2023 and includes the following items:

(a) A letter dated on or about August 18, 2022, from Richard Hartnett, General Counsel of Northwind Maritime Corporation, addressed to Markos Theodorakis, General Counsel of Thalassa Shipping & Logistics SA, in which Northwind forwarded copies of the third-party cargo claim notices received from the three sets of cargo interests and demanded that TSL and Aegean Fortuna Shipholding provide indemnification with respect to those claims. In his letter, Mr. Hartnett asserted that the cargo damage underlying the third-party claims was attributable to the alleged unseaworthy condition of the M/V Aegean Fortuna and that, as such, the Owner bore full responsibility for the claims.

(b) A response letter dated on or about September 7, 2022, from Markos Theodorakis, General Counsel of Thalassa Shipping & Logistics SA, addressed to Richard Hartnett of Northwind, in which TSL denied liability for the third-party cargo claims. In his response, Mr. Theodorakis referenced the Inter-Club Agreement framework, noted that the ICA provided the agreed-upon mechanism for apportioning cargo claims between Owner and Charterer, and stated that TSL was prepared to engage in the ICA apportionment process but rejected any obligation to indemnify Northwind on a blanket basis for third-party shipper claims.

(c) Pre-litigation correspondence between Margaret Delacroix, Esq. of Hargrove, Delacroix & Stern LLP, counsel for Northwind, and the undersigned, Douglas Carmichael of Calderwood & Harkness LLP, exchanged in October 2023, regarding the propriety of including the third-party shipper cargo claims within the scope of the breach of contract action. In this correspondence, counsel for the parties exchanged their respective positions on whether the third-party claims were cognizable as charter-party damages or, alternatively, were subject to the ICA framework. These exchanges did not result in any resolution of the dispute, and Defendants thereafter determined to bring the instant motion to dismiss.

10. Attached hereto as Exhibit F is a redacted copy of the sub-charter agreement between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. ("Eastbourne"), a limited company organized and existing under the laws of the United Kingdom, to the extent this document was produced by Northwind in pre-action correspondence exchanged between the parties. This sub-charter is relevant to Count III of the Complaint because it demonstrates that Northwind's contractual arrangements with sub-charterers and, through them, with third-party cargo interests, are independent contractual relationships that are separate and distinct from the head charter-party between Northwind and TSL/Aegean Fortuna Shipholding. Under the sub-charter, Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne at a daily hire rate of $17,200.00, which represented a premium of $2,450.00 per day over the head charter rate of $14,750.00 per day. Any losses incurred by Northwind under the sub-charter, including any exposure to third-party cargo claims arising from Eastbourne's operations, are a function of Northwind's separate contractual arrangements with Eastbourne and its downstream cargo interests, and are not properly attributable to TSL or Aegean Fortuna Shipholding under the head charter-party.

11. Based upon my experience in maritime and commercial litigation, my review of the documentary record attached hereto, and my familiarity with the applicable principles of New York law and maritime charter-party practice, I respectfully state that the third-party shipper cargo claims totaling $5,634,400, which form the basis of Count III of the Complaint, are not cognizable as direct damages under the charter-party and should be dismissed. In support of this position, I direct the Court's attention to the following:

(a) The charter-party (Exhibit A) does not contain any indemnification provision or hold-harmless clause requiring TSL or Aegean Fortuna Shipholding, as Owner, to indemnify or hold harmless Northwind, as Charterer, against third-party shipper cargo claims. The parties, both sophisticated commercial entities represented by experienced maritime counsel at the time of execution, negotiated the charter-party at arm's length and elected not to include such a provision. The absence of an indemnification obligation is a deliberate allocation of risk that the Court should respect.

(b) The Inter-Club Agreement (Exhibit B), which is incorporated by reference into the charter-party, provides the exclusive mechanism for apportioning cargo claims between Owner and Charterer. The ICA reflects decades of industry practice and was specifically designed to address the type of claims that Northwind seeks to recover in Count III. Northwind's attempt to bypass the ICA by recharacterizing third-party cargo claims as direct breach damages under the charter-party is inconsistent with the contractual framework agreed upon by the parties and should not be permitted.

(c) The third-party cargo claims (Exhibit C) are contingent, unliquidated liabilities. As of the date of this declaration, Northwind has not demonstrated that any final liability has been assessed against it with respect to any of the three claims, nor has Northwind demonstrated that it has made any payment on any of the claims. Under established principles of New York contract law, a party cannot recover as damages amounts that it has not paid and may never be obligated to pay. The claims are speculative and premature as a basis for damages in this action.

(d) These claims are properly addressed through the ICA framework — a framework that TSL has expressly indicated its willingness to engage in, as reflected in the correspondence attached as Exhibit E. Northwind's refusal to engage in the ICA process and its decision instead to include these claims as a category of charter-party breach damages is an improper attempt to circumvent the contractual allocation of risk agreed upon by the parties.

12. I further respectfully state that Count V of the Complaint, which asserts a cause of action for unjust enrichment, is duplicative of the breach of contract claims asserted in Counts I and II and must be dismissed as a matter of law. In support of this position, I direct the Court's attention to the following:

(a) Both parties acknowledge the existence of a valid and binding charter-party (Exhibit A) governing the M/V Aegean Fortuna for the entire charter period. Neither party has asserted that the charter-party is void, voidable, or otherwise unenforceable. The charter-party is the operative agreement between the parties with respect to the hire, operation, and maintenance of the vessel, and it comprehensively governs the rights and obligations of Owner and Charterer.

(b) Under well-established New York law, a cause of action for unjust enrichment cannot be maintained where there is a valid and enforceable contract governing the subject matter of the dispute. See, e.g., Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987) (holding that "the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter"); IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009). This principle applies even where the unjust enrichment claim is pleaded in the alternative, where, as here, the plaintiff does not genuinely dispute the existence or enforceability of the contract. See Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572 (2005).

(c) Northwind's Complaint itself (Exhibit D) affirmatively pleads the charter-party as the basis for Counts I and II, and Count V arises from the identical factual predicate — namely, TSL's alleged failure to maintain the vessel in a seaworthy condition while continuing to collect hire payments. Count V does not allege any independent factual basis that is distinct from the contract claims, nor does it identify any obligation separate from those created by the charter-party. Accordingly, Count V is entirely duplicative and must be dismissed.

13. For the convenience of the Court, the following is a summary list of all exhibits attached to this declaration:

14. I respectfully submit this declaration and the attached Exhibits A through F in support of Defendants' Motion to Dismiss Counts III and V of the Verified Complaint filed by Northwind Maritime Corporation. I respectfully request that the Court grant the motion and dismiss Count V of the Complaint in its entirety as duplicative of the breach of contract claims set forth in Counts I and II. I further respectfully request that the Court dismiss Count III of the Complaint in its entirety on the grounds that the third-party shipper cargo claims asserted therein are not cognizable as direct or consequential damages under the charter-party and are governed exclusively by the Inter-Club Agreement framework. In the alternative, should the Court decline to dismiss Count III in its entirety, I respectfully request that the Court narrow Count III to exclude the pass-through of unresolved, contingent, and unliquidated third-party shipper claims for which Northwind has not established any final liability or made any payment.

I declare under penalty of perjury under the laws of the State of New York that the foregoing is true and correct.

Executed on December 15, 2023 New York, New York

________________________________________

Douglas Carmichael Partner Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 558-4000

Email: dcarmichael@calderwoodharkness.com

CERTIFICATE OF SERVICE

I, Douglas Carmichael, hereby certify that on December 15, 2023, a true and correct copy of the foregoing Declaration of Douglas Carmichael in Support of Defendants' Motion to Dismiss Counts III and V of the Complaint, together with all exhibits attached thereto (Exhibits A through F), was served upon counsel for Plaintiff by the following means:

(1) Via the New York State Courts Electronic Filing System (NYSCEF); and

(2) Via electronic mail transmission to counsel of record for Plaintiff at the address set forth below:

Margaret Delacroix, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 909-6000

Email: mdelacroix@hdslaw.com

________________________________________

Douglas Carmichael

Exhibit	Description
Exhibit A	Time Charter-Party dated December 3, 2020 (Ref. No. NW-TSL-CP-2020-1203), between Aegean Fortuna Shipholding Ltd. (Owner) and Northwind Maritime Corporation (Charterer), for the M/V Aegean Fortuna
Exhibit B	Inter-Club New York Produce Exchange Agreement (ICA), as incorporated by reference in the charter-party
Exhibit C	Third-party shipper cargo claim notices and related correspondence (three claims totaling $5,634,400)
Exhibit D	Excerpts of Northwind's Verified Complaint (Counts III and V), filed October 2, 2023
Exhibit E	Correspondence between the parties and between counsel for the parties regarding the third-party cargo claims (August 2022 – October 2023)
Exhibit F	Sub-charter agreement between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. (redacted)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION
NORTHWIND MARITIME CORPORATION,
Plaintiff,
-against-
THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD.,
Defendants.
Index No. 655421/2023 Part 49 (Hon. Lorraine K. Chen, J.S.C.)
DECLARATION OF DOUGLAS CARMICHAEL IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COUNTS III AND V OF THE COMPLAINT
Douglas Carmichael, pursuant to CPLR § 2106, hereby declares under penalty of perjury under the laws of the State of New York as follows:
1. I am a partner at the law firm of Calderwood & Harkness LLP, with offices at One Liberty Plaza, 50th Floor, New York, New York 10006. I am duly admitted to practice law in the State of New York, having been admitted to the bar of this Court in 2004. I am the responsible partner representing Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding"), a limited liability company duly incorporated under the laws of the Republic of Liberia, with its registered address at 80 Broad Street, Monrovia, Liberia. I make this declaration in support of Defendants' Motion to Dismiss Counts III and V of the Verified Complaint filed in this action, pursuant to CPLR § 3211(a)(1) (defense founded upon documentary evidence) and CPLR § 3211(a)(7) (failure to state a cause of action). I have personal knowledge of the facts stated herein, have reviewed the pleadings, the charter-party at issue, and the correspondence and documents referenced herein, and am competent to testify as to the matters set forth below.
2. Plaintiff Northwind Maritime Corporation ("Northwind"), a corporation incorporated under the laws of the Republic of the marshall Islands with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902, commenced this action by filing its Verified Complaint on October 2, 2023. In the Complaint, Northwind alleges breach of a time charter-party for the motor vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,200 deadweight tonnage, flagged in the Republic of Liberia and classified by the Global Maritime Classification Bureau. The charter-party that is the subject of this action bears Reference No. NW-TSL-CP-2020-1203 and was executed on December 3, 2020, based upon the New York Produce Exchange Time Charter Form, 2015 edition ("NYPE 2015"), as amended by rider clauses agreed upon by the parties. The charter-party provided for a thirty-six (36) month charter period, commencing on January 15, 2021 and expiring on January 14, 2024, at a daily hire rate of $14,750.00 (United States Dollars Fourteen Thousand Seven Hundred Fifty), payable in advance in semi-monthly installments. Northwind's Complaint asserts claims for total damages in the aggregate amount of $18,300,000 across multiple categories, including alleged breaches of maintenance and seaworthiness obligations, lost profits, third-party shipper cargo claims, and unjust enrichment.
3. This declaration is submitted for the purpose of authenticating and placing before the Court the documentary exhibits that are necessary for the resolution of Defendants' motion to dismiss Counts III and V of the Verified Complaint. Count III of the Complaint seeks recovery of $5,634,400 in alleged third-party shipper cargo claims, which Northwind characterizes as charter-party breach damages flowing from TSL's alleged failure to maintain the M/V Aegean Fortuna in a seaworthy condition. Count V of the Complaint asserts a cause of action for unjust enrichment in the alternative, contending that TSL was unjustly enriched by collecting hire while allegedly failing to maintain the vessel in accordance with its contractual obligations. Defendants respectfully contend that Count III fails to state a cause of action because third-party shipper cargo claims are not recoverable as direct damages under the charter-party and, in any event, are governed by and barred by the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement" or "ICA"), which provides the exclusive contractual mechanism for the apportionment of cargo damage claims between owner and charterer under NYPE time charter-parties. Defendants further contend that Count V must be dismissed because it is duplicative of the breach of contract claims set forth in Counts I and II of the Complaint, and an unjust enrichment claim cannot be maintained where, as here, a valid and enforceable contract governs the subject matter of the dispute.
4. Calderwood & Harkness LLP was engaged by Thalassa Shipping & Logistics SA on October 16, 2023, to defend this action. This matter is designated internally as C&H Matter No. 1044-00006. The firm also represents co-defendant Aegean Fortuna Shipholding Ltd. in this proceeding. Aegean Fortuna Shipholding Ltd. is the registered owner of the M/V Aegean Fortuna and is a wholly owned subsidiary of TSL. The corporate relationship between TSL and Aegean Fortuna Shipholding was disclosed in Defendants' initial filings and is not in dispute. On November 17, 2023, Defendants filed their Verified Answer and Counterclaim in this action, denying the material allegations of the Complaint and asserting, inter alia, a counterclaim against Northwind in the amount of $1,620,000.00 for unpaid hire for the period from October 1, 2022 through December 31, 2022, during which time Northwind deducted hire payments without lawful justification. The counterclaim remains pending and is not the subject of the instant motion.
5. Attached hereto as Exhibit A is a true and correct copy of the Time Charter-Party dated December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as "Owner") and Northwind Maritime Corporation (as "Charterer") for the M/V Aegean Fortuna, bearing Reference No. NW-TSL-CP-2020-1203. The charter-party is based on the NYPE 2015 form, as amended by the parties through a series of rider clauses negotiated and agreed upon prior to execution. The charter-party provides that it shall be governed by the laws of the State of New York. The following clauses of the charter-party are of particular relevance to the instant motion and are respectfully brought to the Court's attention:
(a) Clause 2 (Delivery): This clause provides that the vessel was to be delivered to the Charterer on or about January 15, 2021, at the Port of Piraeus, Greece, in a condition ready in every respect to receive cargo. The vessel was in fact delivered on that date, and no dispute exists as to the delivery of the vessel.
(b) Clause 5 (Trade Limits): This clause permits worldwide trading of the vessel, subject to exclusions for ports or regions subject to sanctions imposed by the United States Office of Foreign Assets Control ("OFAC"), areas listed by the London Joint War Committee as war risk areas, and ice-bound waters north of latitude 68° North. The trade limits are not directly at issue in this motion but are relevant to the scope of operations during the charter period.
(c) Clause 6 (Maintenance and Seaworthiness): This clause imposes upon the Owner the obligation to maintain the vessel in a thoroughly efficient state of hull, machinery, and equipment for the service of the Charterer during the charter period. Northwind's breach claims in Counts I, II, and III are predicated upon alleged violations of this clause.
(d) Clause 11 (Off-Hire): This clause sets forth the circumstances under which the vessel may be placed off-hire, including periods during which the vessel is unable to perform the Charterer's service due to deficiency of crew, breakdown of machinery, or other cause preventing the efficient working of the vessel. Clause 11 specifies the manner and timing of off-hire deductions from hire payments.
(e) Clause 28 (Liquidated Damages): This clause provides that, upon the Owner's material breach of its maintenance and seaworthiness obligations under Clauses 2 and 6, the Charterer shall be entitled to liquidated damages equal to one hundred fifty percent (150%) of the aggregate number of off-hire days multiplied by the daily hire rate, subject to a cap of $4,500,000.00 for any single continuous period of breach. Clause 28 represents the parties' negotiated allocation of risk with respect to damages arising from maintenance and seaworthiness failures and reflects their agreement as to the measure and limit of recoverable damages for such breaches.
(f) Clause 46 (Dispute Resolution): This clause provides that the charter-party shall be governed by and construed in accordance with the laws of the State of New York. Clause 46 further provides that disputes arising out of or in connection with the charter-party shall be submitted to arbitration in New York, New York, in accordance with the rules of the Society of Maritime Arbitrators, Inc.; provided, however, that pursuant to an addendum set forth in Clause 46(b), either party may elect, at its sole option, to commence litigation in the Supreme Court of the State of New York, County of New York, in lieu of arbitration. Northwind elected to commence litigation in this Court, and Defendants have not objected to the forum.
I respectfully direct the Court's attention to the fact that the charter-party contains no provision entitling the Charterer to pass through or recover third-party shipper cargo claims as a category of direct damages against the Owner. Neither Clause 28 nor any other provision of the charter-party includes an indemnification obligation requiring the Owner to hold the Charterer harmless against claims by third-party cargo interests. The absence of such a provision is significant in the context of the instant motion and is discussed further below.
6. Attached hereto as Exhibit B is a true and correct copy of the Inter-Club New York Produce Exchange Agreement (the "Inter-Club Agreement" or "ICA"), as incorporated by reference in the charter-party between the parties. The ICA is a well-established industry agreement that governs the apportionment of cargo claims as between owner and charterer under NYPE time charter-parties, and it has been widely adopted in the international shipping industry since its original promulgation. The ICA sets forth a detailed framework for allocating liability for cargo claims depending upon the cause of the cargo damage or loss. Under the ICA, cargo claims arising from the loading, stowage, trimming, and discharge of cargo — operations that are the responsibility of the charterer under a time charter — are apportioned in whole or in part to the charterer, while cargo claims arising from the unseaworthiness of the vessel are apportioned to the owner, in each case subject to specific formulae and apportionment percentages set forth in the agreement. The ICA provides the exclusive mechanism for the allocation of cargo damage claims between the charter-party parties, and it displaces any common-law right that either party might otherwise assert with respect to such claims. Northwind's attempt in Count III of the Complaint to claim $5,634,400 in third-party shipper cargo claims as direct breach damages under the charter-party circumvents this agreed-upon framework and is inconsistent with the terms of the charter-party as executed by the parties.
7. Attached hereto as Exhibit C are true and correct copies of correspondence and claim notices from the three third-party shippers referenced in Count III of Northwind's Verified Complaint. These three cargo claims total $5,634,400 in the aggregate. Each of the three claims was made by third-party cargo interests against Northwind in its capacity as time charterer of the M/V Aegean Fortuna; Northwind now seeks to pass through these claims to TSL and Aegean Fortuna Shipholding as charter-party breach damages. The claims arise from alleged cargo damage that occurred during the charter period and involve the following characteristics:
(a) Each claim was asserted by distinct cargo interests — specifically, third-party shippers and/or consignees who contracted with Northwind or its sub-charterers for the carriage of goods aboard the M/V Aegean Fortuna during the charter period;
(b) Each claim involves a distinct shipment of cargo, carried during a distinct voyage, under distinct bills of lading;
(c) Each claim is predicated upon distinct factual circumstances, including different alleged causes of cargo damage, different ports of loading and discharge, and different commodities; and
(d) In each instance, the claim was asserted against Northwind, not against TSL or Aegean Fortuna Shipholding. TSL and Aegean Fortuna Shipholding are not parties to any of these third-party cargo claims and have not been joined or impleaded in any proceeding related to these claims.
I note that, as of the date of this declaration, Northwind has not established that any final liability has been assessed against it with respect to any of the three claims. Northwind has not demonstrated that any of the claims have been resolved by settlement, judgment, or arbitral award, nor has Northwind demonstrated that it has made any payment on any of the claims. To the extent these third-party claims remain pending, unresolved, and unliquidated, they represent contingent liabilities that are not properly recoverable as damages in the instant action.
8. Attached hereto as Exhibit D are excerpts of Northwind's Verified Complaint, filed on October 2, 2023 in this Court. The excerpts include the paragraphs constituting Counts III and V of the Complaint, which are the subject of Defendants' motion to dismiss.
(a) Count III (Third-Party Shipper Claims): In Count III, Northwind alleges that TSL's breach of Clauses 2 and 6 of the charter-party — specifically, TSL's alleged failure to maintain the M/V Aegean Fortuna in a thoroughly efficient state of hull, machinery, and equipment — caused Northwind to incur liability to third-party cargo interests in the aggregate amount of $5,634,400. Northwind characterizes these third-party claims as consequential damages flowing directly from TSL's breach of its maintenance and seaworthiness obligations. As set forth above and in the accompanying memorandum of law, Defendants respectfully submit that these claims are not recoverable as direct or consequential damages under the charter-party and are properly subject to the apportionment mechanism of the Inter-Club Agreement.
(b) Count V (Unjust Enrichment): In Count V, Northwind alleges, in the alternative, that TSL was unjustly enriched by failing to maintain the vessel in accordance with its contractual obligations while continuing to collect hire payments from Northwind throughout the charter period. Northwind asserts that it is entitled to restitution of the hire payments made during periods in which the vessel was allegedly not maintained in a seaworthy condition. I note that Count V is expressly pleaded in the alternative to the breach of contract claims set forth in Counts I and II of the Complaint. Critically, however, Northwind does not dispute the existence of a valid and enforceable charter-party governing the parties' relationship with respect to the M/V Aegean Fortuna. The Complaint itself affirmatively pleads the charter-party as the basis for Counts I and II, and at no point does Northwind contend that the charter-party is void, voidable, or otherwise unenforceable.
9. Attached hereto as Exhibit E are true and correct copies of correspondence between the parties and between counsel for the parties regarding the third-party cargo claims at issue in Count III of the Complaint. This correspondence spans the period from approximately August 2022 through October 2023 and includes the following items:
(a) A letter dated on or about August 18, 2022, from Richard Hartnett, General Counsel of Northwind Maritime Corporation, addressed to Markos Theodorakis, General Counsel of Thalassa Shipping & Logistics SA, in which Northwind forwarded copies of the third-party cargo claim notices received from the three sets of cargo interests and demanded that TSL and Aegean Fortuna Shipholding provide indemnification with respect to those claims. In his letter, Mr. Hartnett asserted that the cargo damage underlying the third-party claims was attributable to the alleged unseaworthy condition of the M/V Aegean Fortuna and that, as such, the Owner bore full responsibility for the claims.
(b) A response letter dated on or about September 7, 2022, from Markos Theodorakis, General Counsel of Thalassa Shipping & Logistics SA, addressed to Richard Hartnett of Northwind, in which TSL denied liability for the third-party cargo claims. In his response, Mr. Theodorakis referenced the Inter-Club Agreement framework, noted that the ICA provided the agreed-upon mechanism for apportioning cargo claims between Owner and Charterer, and stated that TSL was prepared to engage in the ICA apportionment process but rejected any obligation to indemnify Northwind on a blanket basis for third-party shipper claims.
(c) Pre-litigation correspondence between Margaret Delacroix, Esq. of Hargrove, Delacroix & Stern LLP, counsel for Northwind, and the undersigned, Douglas Carmichael of Calderwood & Harkness LLP, exchanged in October 2023, regarding the propriety of including the third-party shipper cargo claims within the scope of the breach of contract action. In this correspondence, counsel for the parties exchanged their respective positions on whether the third-party claims were cognizable as charter-party damages or, alternatively, were subject to the ICA framework. These exchanges did not result in any resolution of the dispute, and Defendants thereafter determined to bring the instant motion to dismiss.
10. Attached hereto as Exhibit F is a redacted copy of the sub-charter agreement between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. ("Eastbourne"), a limited company organized and existing under the laws of the United Kingdom, to the extent this document was produced by Northwind in pre-action correspondence exchanged between the parties. This sub-charter is relevant to Count III of the Complaint because it demonstrates that Northwind's contractual arrangements with sub-charterers and, through them, with third-party cargo interests, are independent contractual relationships that are separate and distinct from the head charter-party between Northwind and TSL/Aegean Fortuna Shipholding. Under the sub-charter, Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne at a daily hire rate of $17,200.00, which represented a premium of $2,450.00 per day over the head charter rate of $14,750.00 per day. Any losses incurred by Northwind under the sub-charter, including any exposure to third-party cargo claims arising from Eastbourne's operations, are a function of Northwind's separate contractual arrangements with Eastbourne and its downstream cargo interests, and are not properly attributable to TSL or Aegean Fortuna Shipholding under the head charter-party.
11. Based upon my experience in maritime and commercial litigation, my review of the documentary record attached hereto, and my familiarity with the applicable principles of New York law and maritime charter-party practice, I respectfully state that the third-party shipper cargo claims totaling $5,634,400, which form the basis of Count III of the Complaint, are not cognizable as direct damages under the charter-party and should be dismissed. In support of this position, I direct the Court's attention to the following:
(a) The charter-party (Exhibit A) does not contain any indemnification provision or hold-harmless clause requiring TSL or Aegean Fortuna Shipholding, as Owner, to indemnify or hold harmless Northwind, as Charterer, against third-party shipper cargo claims. The parties, both sophisticated commercial entities represented by experienced maritime counsel at the time of execution, negotiated the charter-party at arm's length and elected not to include such a provision. The absence of an indemnification obligation is a deliberate allocation of risk that the Court should respect.
(b) The Inter-Club Agreement (Exhibit B), which is incorporated by reference into the charter-party, provides the exclusive mechanism for apportioning cargo claims between Owner and Charterer. The ICA reflects decades of industry practice and was specifically designed to address the type of claims that Northwind seeks to recover in Count III. Northwind's attempt to bypass the ICA by recharacterizing third-party cargo claims as direct breach damages under the charter-party is inconsistent with the contractual framework agreed upon by the parties and should not be permitted.
(c) The third-party cargo claims (Exhibit C) are contingent, unliquidated liabilities. As of the date of this declaration, Northwind has not demonstrated that any final liability has been assessed against it with respect to any of the three claims, nor has Northwind demonstrated that it has made any payment on any of the claims. Under established principles of New York contract law, a party cannot recover as damages amounts that it has not paid and may never be obligated to pay. The claims are speculative and premature as a basis for damages in this action.
(d) These claims are properly addressed through the ICA framework — a framework that TSL has expressly indicated its willingness to engage in, as reflected in the correspondence attached as Exhibit E. Northwind's refusal to engage in the ICA process and its decision instead to include these claims as a category of charter-party breach damages is an improper attempt to circumvent the contractual allocation of risk agreed upon by the parties.
12. I further respectfully state that Count V of the Complaint, which asserts a cause of action for unjust enrichment, is duplicative of the breach of contract claims asserted in Counts I and II and must be dismissed as a matter of law. In support of this position, I direct the Court's attention to the following:
(a) Both parties acknowledge the existence of a valid and binding charter-party (Exhibit A) governing the M/V Aegean Fortuna for the entire charter period. Neither party has asserted that the charter-party is void, voidable, or otherwise unenforceable. The charter-party is the operative agreement between the parties with respect to the hire, operation, and maintenance of the vessel, and it comprehensively governs the rights and obligations of Owner and Charterer.
(b) Under well-established New York law, a cause of action for unjust enrichment cannot be maintained where there is a valid and enforceable contract governing the subject matter of the dispute. See, e.g., Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987) (holding that "the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter"); IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009). This principle applies even where the unjust enrichment claim is pleaded in the alternative, where, as here, the plaintiff does not genuinely dispute the existence or enforceability of the contract. See Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572 (2005).
(c) Northwind's Complaint itself (Exhibit D) affirmatively pleads the charter-party as the basis for Counts I and II, and Count V arises from the identical factual predicate — namely, TSL's alleged failure to maintain the vessel in a seaworthy condition while continuing to collect hire payments. Count V does not allege any independent factual basis that is distinct from the contract claims, nor does it identify any obligation separate from those created by the charter-party. Accordingly, Count V is entirely duplicative and must be dismissed.
13. For the convenience of the Court, the following is a summary list of all exhibits attached to this declaration:
14. I respectfully submit this declaration and the attached Exhibits A through F in support of Defendants' Motion to Dismiss Counts III and V of the Verified Complaint filed by Northwind Maritime Corporation. I respectfully request that the Court grant the motion and dismiss Count V of the Complaint in its entirety as duplicative of the breach of contract claims set forth in Counts I and II. I further respectfully request that the Court dismiss Count III of the Complaint in its entirety on the grounds that the third-party shipper cargo claims asserted therein are not cognizable as direct or consequential damages under the charter-party and are governed exclusively by the Inter-Club Agreement framework. In the alternative, should the Court decline to dismiss Count III in its entirety, I respectfully request that the Court narrow Count III to exclude the pass-through of unresolved, contingent, and unliquidated third-party shipper claims for which Northwind has not established any final liability or made any payment.
I declare under penalty of perjury under the laws of the State of New York that the foregoing is true and correct.
Executed on December 15, 2023 New York, New York
________________________________________
Douglas Carmichael Partner Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 558-4000
Email: dcarmichael@calderwoodharkness.com
CERTIFICATE OF SERVICE
I, Douglas Carmichael, hereby certify that on December 15, 2023, a true and correct copy of the foregoing Declaration of Douglas Carmichael in Support of Defendants' Motion to Dismiss Counts III and V of the Complaint, together with all exhibits attached thereto (Exhibits A through F), was served upon counsel for Plaintiff by the following means:
(1) Via the New York State Courts Electronic Filing System (NYSCEF); and
(2) Via electronic mail transmission to counsel of record for Plaintiff at the address set forth below:
Margaret Delacroix, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 909-6000
Email: mdelacroix@hdslaw.com
________________________________________
Douglas Carmichael
Exhibit | Description
Exhibit A | Time Charter-Party dated December 3, 2020 (Ref. No. NW-TSL-CP-2020-1203), between Aegean Fortuna Shipholding Ltd. (Owner) and Northwind Maritime Corporation (Charterer), for the M/V Aegean Fortuna
Exhibit B | Inter-Club New York Produce Exchange Agreement (ICA), as incorporated by reference in the charter-party
Exhibit C | Third-party shipper cargo claim notices and related correspondence (three claims totaling $5,634,400)
Exhibit D | Excerpts of Northwind's Verified Complaint (Counts III and V), filed October 2, 2023
Exhibit E | Correspondence between the parties and between counsel for the parties regarding the third-party cargo claims (August 2022 – October 2023)
Exhibit F | Sub-charter agreement between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. (redacted)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION

NORTHWIND MARITIME CORPORATION,

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts