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 CARLOS ESPINOZA IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Filed: September 20, 2024

I, Carlos Espinoza, hereby declare as follows:

PRELIMINARY STATEMENT

1. I am an attorney duly admitted to practice law in the State of New York. I am a Senior Associate at Calderwood & Harkness LLP, with offices located at One Liberty Plaza, 50th Floor, New York, New York 10006 (C&H Matter No. 1044-00006). I am counsel of record for Defendants Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna" and, together with TSL, "Defendants") in the above-captioned action.

2. I submit this declaration in support of Defendants' Motion for Partial Summary Judgment, which seeks relief on two discrete issues: (1) the proper interpretation of the liquidated damages cap set forth in Clause 28 of the charter-party at issue in this action, and specifically that the $4,500,000 cap constitutes a single aggregate cap for the entire charter period rather than a per-incident cap; and (2) the dismissal of Plaintiff Northwind Maritime Corporation's ("Northwind" or "Plaintiff") deviation claim arising from the M/V Aegean Fortuna's September 2022 call at Maputo, Mozambique, on the ground that the call fell within the Master's reasonable discretion and was consistent with the trade limits established under Clause 5 of the charter-party.

3. I make this declaration under penalty of perjury pursuant to CPLR § 2106. I have personal knowledge of the facts set forth herein through my direct and continuous involvement in this litigation since my firm's engagement as counsel for Defendants on October 16, 2023. Unless otherwise stated, the matters set forth in this declaration are within my personal knowledge, and if called as a witness I could and would competently testify to the matters stated herein.

I. BACKGROUND OF THE ACTION

4. On October 2, 2023, Plaintiff Northwind Maritime Corporation commenced this action by filing a Summons and Verified Complaint in this Court. The Complaint asserts claims for breach of a thirty-six (36) month time charter-party in the New York Produce Exchange ("NYPE") 2015 form, as amended (the "Charter-Party"), for the motor vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier with a deadweight tonnage of approximately 58,200 DWT, flagged in the Republic of Liberia.

5. The Charter-Party at issue bears Reference No. NW-TSL-CP-2020-1203 and was executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd., as disponent Owner, and Northwind Maritime Corporation, as Charterer. The charter period was thirty-six months, commencing upon delivery of the vessel on January 15, 2021, with expiration on January 14, 2024. The agreed daily hire rate was $14,750.00 per day, yielding a total charter value over the thirty-six-month term of approximately $16,166,000.00.

6. In its Complaint, Northwind claims total damages in the amount of $18,300,000.00, which it alleges arose from three separate mechanical incidents during the charter period and one alleged unauthorized deviation in the vessel's routing. Specifically, Northwind alleges that Defendants breached their maintenance and seaworthiness obligations under Clauses 2 and 6 of the Charter-Party with respect to three mechanical failures—a turbocharger failure in March–April 2022, a ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure in July 2022, and a cylinder liner failure in November–December 2022—and that the vessel's call at Maputo, Mozambique in September 2022 constituted an unauthorized deviation in breach of the Charter-Party.

7. Defendants filed their Answer and Counterclaim on November 17, 2023. Among other defenses, Defendants asserted that the Clause 28 liquidated damages cap of $4,500,000 operates as a single aggregate limitation on Northwind's recovery for all maintenance-related claims over the charter period, and that the September 2022 Maputo call did not constitute a deviation. Defendants also interposed a counterclaim in the amount of $1,620,000.00, representing 110 days of unpaid hire that Northwind withheld during the period from October 1, 2022 through December 31, 2022, in purported set-off of its claimed losses.

8. On December 15, 2023, Defendants filed a Motion to Dismiss Counts III and V of the Complaint pursuant to CPLR § 3211(a)(7). By Decision and Order dated March 8, 2024, Justice Chen granted the motion in part, dismissing Count V (which had alleged tortious interference with contractual relations against TSL) in its entirety and narrowing Count III (which alleged negligent maintenance) to the extent it asserted damages beyond the Charter-Party's remedial framework. That Decision and Order is not at issue in the present motion.

9. The parties have engaged in extensive discovery since January 2024, which continued through August 2024. The discovery proceedings relevant to this motion are described in greater detail below.

II. PURPOSE OF THIS DECLARATION

10. The purpose of this declaration is to authenticate and identify the exhibits attached hereto as Exhibits A through O. These exhibits are referenced in, and form the evidentiary basis for, the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment and the Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a (the "Rule 19-a Statement"), both of which are filed simultaneously with this declaration on September 20, 2024.

11. As stated above, Defendants' motion seeks partial summary judgment on two discrete issues:

Issue One — Clause 28 Liquidated Damages Cap: The liquidated damages cap set forth in Clause 28 of the Charter-Party applies as a single aggregate cap of $4,500,000.00 for the entire thirty-six-month charter period, and does not operate as a per-incident cap that would permit Northwind to claim up to $4,500,000.00 for each of the three mechanical incidents separately. The undisputed record evidence—including the Charter-Party language itself, the contemporaneous negotiation correspondence, and the testimony of both parties' principals—demonstrates that the cap was negotiated and understood as an aggregate maximum.

Issue Two — September 2022 Maputo Call: The M/V Aegean Fortuna's call at Maputo, Mozambique in September 2022 did not constitute an unauthorized deviation in breach of the Charter-Party. The undisputed evidence establishes that (a) the Master's decision to proceed to Maputo was made independently based on legitimate safety and efficiency concerns, including tropical cyclone warnings in the Mozambique Channel and port congestion at Durban; (b) Maputo is not within any excluded trading area under Clause 5 of the Charter-Party; and (c) Northwind's own contemporaneous internal communications did not characterize the Maputo call as a deviation until after the Qingdao laycan was missed in early October 2022, strongly suggesting that the deviation claim was an after-the-fact rationalization.

12. I have personal knowledge of all exhibits attached to this declaration. Each exhibit is either a document produced during the course of discovery in this action, a certified transcript of a deposition at which I was present as examining or defending counsel, or a document otherwise maintained in the ordinary course of this litigation by Calderwood & Harkness LLP as counsel for Defendants. The sources and circumstances of each exhibit are identified in Section IV below.

III. DISCOVERY PROCEEDINGS AND RECORD

13. The following is a brief summary of the discovery proceedings conducted in this action, provided to contextualize the exhibits attached hereto.

14. On January 22, 2024, Defendants served their First Set of Interrogatories (Nos. 1 through 25) and First Request for Production of Documents (Nos. 1 through 42) on Plaintiff Northwind Maritime Corporation. These discovery requests sought, among other things, all documents relating to the negotiation and execution of the Charter-Party, all documents relating to the three mechanical incidents, all documents relating to the September 2022 Maputo call, Northwind's damages calculations and supporting documentation, and all documents relating to Northwind's sub-charter agreements for the M/V Aegean Fortuna.

15. Northwind served its own discovery requests on Defendants, including its First Set of Interrogatories (Nos. 1 through 30) and First Request for Production (Nos. 1 through 48), on or about the same date. Defendants responded with objections and substantive responses on February 28, 2024, and produced responsive documents on a rolling basis through April 2024. Defendants' document production ultimately comprised approximately 14,200 pages of documents, bearing Bates numbers TSL-000001 through TSL-014247.

16. The following depositions relevant to Defendants' motion for partial summary judgment were completed during the discovery period:

(a) Alexandros Stavridis, Chairman and Chief Executive Officer of TSL, was deposed on April 22, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately seven hours and resulted in a transcript of 312 pages.

(b) Captain Nikolaos Giannopoulos, Master of the M/V Aegean Fortuna during the charter period, was deposed on May 10, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately six and one-half hours and resulted in a transcript of 287 pages.

(c) Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation, was deposed on May 30, 2024, at the offices of Hargrove, Delacroix & Stern LLP, New York, New York. I was present at, and conducted the examination at, this deposition. The deposition lasted approximately seven hours and resulted in a transcript of 340 pages.

(d) Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation, was deposed on June 14, 2024, at the offices of Hargrove, Delacroix & Stern LLP, New York, New York. I was present at, and conducted the examination at, this deposition. The deposition lasted approximately five hours and resulted in a transcript of 248 pages.

(e) Chief Engineer Petros Vlahos, Chief Engineer of the M/V Aegean Fortuna during the charter period, an employee of TSL, was deposed on June 28, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately six hours and resulted in a transcript of 274 pages.

(f) Three additional fact-witness depositions were conducted during July 2024, including depositions of Northwind's chartering manager, a GMCB classification surveyor, and a representative of the weather routing service that provided routing advisories for the M/V Aegean Fortuna during the September 2022 voyage.

17. Expert reports were served by the parties in accordance with the Scheduling Order entered by Justice Chen on January 10, 2024, as subsequently modified by stipulation:

(a) Defendants served the expert reports of Dr. Henrik Sørensen (maritime engineering) and Dr. Constance Albright (damages) on August 5, 2024.

(b) Plaintiff served the expert reports of Captain Julian Blackmore (Ret.) (maritime operations) and Dr. Rajesh Anand (damages) on August 19, 2024.

18. All deposition transcripts, expert reports, and rebuttal expert reports referenced in this declaration have been produced and exchanged between the parties and are available for the Court's review. The relevant excerpts and reports are attached hereto as exhibits.

IV. DESCRIPTION AND AUTHENTICATION OF EXHIBITS

19. The following describes and authenticates each of the exhibits attached hereto.

A. Exhibit A — Time Charter-Party (NW-TSL-CP-2020-1203)

20. Attached hereto as Exhibit A is a true and correct copy of the NYPE 2015 time charter-party, as amended by the parties' rider clauses, executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as Owner) and Northwind Maritime Corporation (as Charterer) for the M/V Aegean Fortuna (the "Charter-Party"). This document was produced by Defendants in discovery and bears Bates numbers TSL-000001 through TSL-000078. The following provisions of the Charter-Party are particularly relevant to the present motion:

(a) Clause 1 (Period / Rate of Hire): Establishes a daily hire rate of $14,750.00 per day for a charter period of thirty-six (36) months, commencing upon delivery of the vessel on January 15, 2021. The total charter value over the thirty-six-month term is approximately $16,166,000.00.

(b) Clause 5 (Trade Limits): Provides for worldwide trading, excluding OFAC-sanctioned ports, London Joint War Committee ("JWC") listed war-risk zones, and ice-bound waters north of latitude 68°N. Maputo, Mozambique does not fall within any excluded trading area under this clause.

(c) Clause 6 (Maintenance and Seaworthiness): Requires the Owner to maintain the vessel in a thoroughly efficient state of hull, machinery, and equipment for the service contemplated, and to comply with all applicable requirements of the vessel's classification society, the Global Maritime Classification Bureau ("GMCB").

(d) Clause 11 (Off-Hire): Sets forth the provisions governing off-hire events, including circumstances in which the vessel ceases to be at the Charterer's disposal due to mechanical deficiency, drydocking, or other causes attributable to the Owner. The off-hire provisions interact with the liquidated damages formula in Clause 28.

(e) Clause 28 (Liquidated Damages): 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 150% of the aggregate off-hire days attributable to such breach, multiplied by the daily hire rate. This amount is expressly made "subject to a cap of $4,500,000 for any single continuous period of breach." The interpretation of this cap language—specifically, whether "any single continuous period of breach" establishes one aggregate cap or permits per-incident application—is the central issue in Issue One of Defendants' motion.

(f) Clause 46 (Governing Law / Dispute Resolution): Provides that the Charter-Party shall be governed by and construed in accordance with the laws of the State of New York. Clause 46(a) provides for arbitration in New York. Clause 46(b) contains an addendum agreed to by the parties permitting either party to elect litigation in the Supreme Court of the State of New York, County of New York, in lieu of arbitration. Northwind exercised this election by commencing the instant action.

B. Exhibit B — Excerpts from Deposition of Alexandros Stavridis (April 22, 2024)

21. Attached hereto as Exhibit B are true and correct excerpts from the certified deposition transcript of Alexandros Stavridis, Chairman and Chief Executive Officer of TSL, taken on April 22, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice and in the presence of counsel for all parties. I was present at this deposition and defended the witness. The transcript was prepared by Carol Steinfeld, a Certified Shorthand Reporter.

22. The attached excerpts include the following relevant testimony:

(a) Mr. Stavridis's testimony regarding his understanding, based on his direct participation in the negotiations, that the Clause 28 liquidated damages cap was negotiated and agreed upon as a single aggregate cap of $4,500,000 applicable to the entire thirty-six-month charter period, and that the cap was not intended to apply separately to each mechanical incident or off-hire event.

(b) Mr. Stavridis's detailed testimony regarding the negotiation of the Charter-Party with Northwind's President Viktor Lindgren and General Counsel Richard Hartnett during the period from October through December 2020. Mr. Stavridis testified that the liquidated damages cap was a significant point of negotiation, that TSL initially proposed a cap of $3,000,000, and that the final agreed figure of $4,500,000 was reached as a compromise with the understanding that it would serve as an overall ceiling on the Owner's exposure under the liquidated damages provision.

(c) Mr. Stavridis's testimony regarding TSL's vessel maintenance policies and procedures, including the company's fleet-wide maintenance standards applicable to approximately thirty-four (34) vessels under TSL's management and operation. Mr. Stavridis testified that TSL maintains a centralized planned maintenance system, employs dedicated superintendents for fleet oversight, and adheres to classification society requirements for all vessels.

(d) Mr. Stavridis's testimony regarding the September 2022 Maputo call, including his confirmation that the Master of the M/V Aegean Fortuna communicated weather and routing concerns to TSL's operations department in advance of the Maputo call, and that the decision to proceed to Maputo was made by the Master based on safety and operational considerations, not at the direction of TSL's commercial department for any cargo or commercial purpose.

C. Exhibit C — Excerpts from Deposition of Viktor Lindgren (May 30, 2024)

23. Attached hereto as Exhibit C are true and correct excerpts from the certified deposition transcript of Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation, taken on May 30, 2024, at the offices of Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022. The deposition was conducted pursuant to notice. I was present at this deposition and conducted the examination of the witness on behalf of Defendants. The transcript was prepared by David Marchetti, a Certified Shorthand Reporter.

24. The attached excerpts include the following relevant testimony:

(a) Mr. Lindgren's acknowledgment that the Clause 28 liquidated damages cap language was discussed during the negotiation of the Charter-Party in late 2020. Mr. Lindgren testified that the phrase "single continuous period of breach" was specifically discussed between the parties, though he maintained at deposition that his understanding was that the phrase referred to each discrete period of off-hire resulting from a separate mechanical incident.

(b) Mr. Lindgren's testimony that Northwind's General Counsel, Richard Hartnett, drafted the initial language of Clause 28, with input from Northwind's then-outside counsel, the law firm of Whitfield & Tompkins LLP. Mr. Lindgren acknowledged that the draft language was circulated to TSL for review and that TSL proposed certain modifications, which were discussed and ultimately agreed upon.

(c) Mr. Lindgren's testimony regarding Northwind's understanding and reaction to the September 2022 Maputo call at the time it occurred. Critically, Mr. Lindgren testified that Northwind did not initially characterize the Maputo call as an unauthorized deviation. Rather, Northwind raised the deviation allegation only after the vessel missed the Qingdao laycan window of October 1–5, 2022, and Northwind faced demurrage and dead freight exposure under its cargo commitment. This testimony is corroborated by Northwind's own contemporaneous internal communications (Exhibit K).

(d) Mr. Lindgren's testimony regarding Northwind's sub-charter arrangement with Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna, pursuant to which the vessel was sub-chartered at a rate of $17,200.00 per day. This sub-charter is relevant to the calculation of lost sub-charter profits and to the mitigation analysis.

D. Exhibit D — Excerpts from Deposition of Capt. Nikolaos Giannopoulos (May 10, 2024)

25. Attached hereto as Exhibit D are true and correct excerpts from the certified deposition transcript of Captain Nikolaos Giannopoulos, Master of the M/V Aegean Fortuna during the charter period, taken on May 10, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice. I was present at this deposition and defended the witness. The transcript was prepared by Carol Steinfeld, a Certified Shorthand Reporter.

26. The attached excerpts include the following relevant testimony:

(a) Captain Giannopoulos's detailed account of the September 2022 Maputo call. He testified that in mid-September 2022, while the M/V Aegean Fortuna was at or near Durban, South Africa, he received weather advisories indicating tropical cyclone warnings in the Mozambique Channel. He further testified that significant port congestion at Durban created delays that, combined with the weather conditions, warranted a decision to proceed to Maputo, Mozambique as a safe and efficient alternative. Captain Giannopoulos testified that his decision was made in the exercise of his reasonable discretion as Master of the vessel.

(b) Captain Giannopoulos's testimony that he consulted with TSL's operations department in advance of making the routing decision but that the decision was ultimately his own, made independently and based on his assessment of safety and operational efficiency. He testified that TSL's operations department did not direct or instruct him to call at Maputo for any commercial or cargo-related purpose.

(c) Captain Giannopoulos's testimony regarding the subsequent voyage from Durban to Qingdao, China, and the factors that contributed to the approximately four-day delay in the vessel's arrival. He testified that the delay was attributable to a combination of weather avoidance routing necessitated by the cyclone conditions and the time spent at Maputo for weather monitoring and limited cargo operations.

(d) Captain Giannopoulos's testimony regarding the three mechanical incidents that occurred during the charter period, including his communications with Chief Engineer Petros Vlahos and with GMCB classification surveyors during and after each incident. He testified that in each case, the mechanical issues were reported promptly and that repairs were carried out as expeditiously as possible.

E. Exhibit E — Excerpts from Deposition of Sandra Chow (June 14, 2024)

27. Attached hereto as Exhibit E are true and correct excerpts from the certified deposition transcript of Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation, taken on June 14, 2024, at the offices of Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022. The deposition was conducted pursuant to notice. I was present at this deposition and conducted the examination of the witness on behalf of Defendants. The transcript was prepared by Maria Gonzalez, a Certified Shorthand Reporter.

28. The attached excerpts include the following relevant testimony:

(a) Ms. Chow's testimony regarding Northwind's damages calculations in this action, including the methodology by which Northwind computed its total claimed damages of $18,300,000.00. Ms. Chow testified that the damages figure includes liquidated damages under Clause 28, lost sub-charter profits, demurrage and dead freight arising from the missed Qingdao laycan, substitute charter costs, and various consequential damages.

(b) Ms. Chow's acknowledgment that the Clause 28 liquidated damages formula, when applied on a straightforward per-formula basis without regard to the cap dispute, yields a total of $1,504,500.00. This figure is computed as follows: 68 total off-hire days (22 days from Incident 1 + 21 days from Incident 2 + 25 days from Incident 3) × $14,750.00 daily hire rate × 150% = $1,504,500.00. Ms. Chow acknowledged that this amount is substantially less than the $4,500,000.00 cap, regardless of whether the cap is interpreted on an aggregate or per-incident basis.

(c) Ms. Chow's testimony that Northwind arrived at its claimed liquidated damages figure of $4,500,000.00 by treating each of the three mechanical incidents as a separate "single continuous period of breach" and asserting that each triggered an independent cap of $4,500,000.00 (for a theoretical maximum of $13,500,000.00), then claiming $4,500,000.00 as the aggregate amount without explaining the mathematical basis. Ms. Chow acknowledged under questioning that the three mechanical incidents do not overlap in time, that the Charter-Party language does not explicitly provide for per-incident application of the cap, and that the per-formula computation for each individual incident ($487,050.00 for Incident 1, $464,625.00 for Incident 2, and $552,825.00 for Incident 3) falls far below $4,500,000.00 in every instance.

(d) Ms. Chow's testimony regarding the computation of substitute charter costs. She testified that Northwind obtained a substitute vessel at a rate of $21,300.00 per day for a period of 72 days, yielding a daily premium of $6,550.00 over the Charter-Party rate and an aggregate substitute charter premium of $471,600.00.

F. Exhibit F — Excerpts from Deposition of Chief Engineer Petros Vlahos (June 28, 2024)

29. Attached hereto as Exhibit F are true and correct excerpts from the certified deposition transcript of Chief Engineer Petros Vlahos, an employee of TSL who served as Chief Engineer of the M/V Aegean Fortuna during the charter period, taken on June 28, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice. I was present at this deposition and defended the witness. The transcript was prepared by Carol Steinfeld, a Certified Shorthand Reporter.

30. The attached excerpts include the following relevant testimony:

(a) Incident 1 — Turbocharger Failure (March 12 – April 2, 2022): Mr. Vlahos testified that the turbocharger failure resulted from a latent manufacturing defect in the turbocharger rotor assembly. He testified that the defect was not detectable through standard maintenance protocols, including the regular inspections and servicing that had been performed in accordance with the vessel's planned maintenance system and the manufacturer's recommendations. The vessel was off-hire for approximately 22 days while repairs were conducted at Colombo, Sri Lanka.

(b) Incident 2 — BWTS Malfunction and Auxiliary Boiler Failure (July 8 – July 29, 2022): Mr. Vlahos testified that the BWTS malfunction resulted from contaminated ballast water that had been loaded at a prior port under Northwind's direction as Charterer. He testified that the contamination caused fouling and damage to the BWTS filters and UV treatment system, which in turn contributed to the auxiliary boiler failure. The vessel was off-hire for approximately 21 days at Richards Bay, South Africa, during which both the BWTS and auxiliary boiler were repaired.

(c) Incident 3 — Cylinder Liner Failure (November 15 – December 10, 2022): Mr. Vlahos conceded that the cylinder liner failure was related to a maintenance scheduling issue—specifically, that the scheduled inspection and replacement of the cylinder liners had been deferred by approximately six weeks due to operational exigencies. However, he testified that the scope and duration of the resulting repairs, which required drydocking at Keppel Verolme Shipyard in Rotterdam, the Netherlands, were reasonable and consistent with industry practice. The vessel was off-hire for approximately 25 days during the drydocking and repair period.

(d) Mr. Vlahos's testimony regarding the M/V Aegean Fortuna's classification status with GMCB throughout the charter period. He testified that the vessel maintained its class continuously, except during the Incident 3 drydocking period when class was temporarily suspended pending completion of repairs, and that class was restored immediately upon completion of the drydocking.

G. Exhibit G — Charter-Party Negotiation Correspondence

31. Attached hereto as Exhibit G are true and correct copies of email correspondence exchanged between representatives of TSL and Northwind during the negotiation of the Charter-Party in November and December 2020. These documents were produced by both parties during the course of discovery in this action. The following emails are of particular relevance to the interpretation of Clause 28:

(a) An email dated November 18, 2020, from Alexandros Stavridis (TSL) to Viktor Lindgren (Northwind), in which Mr. Stavridis states that TSL agreed to the proposed $4,500,000 liquidated damages cap as an "aggregate maximum for the entire charter," and expressly distinguishes this from a per-incident cap. Mr. Stavridis's email states, in relevant part: "We confirm our agreement to the LD cap at $4.5M as the aggregate maximum for the entire charter period—this is a meaningful concession on our part and should not be read as a per-incident ceiling."

(b) An email dated November 22, 2020, from Richard Hartnett (Northwind General Counsel) to Markos Theodorakis (TSL in-house counsel), transmitting a revised draft of Clause 28 containing the language "for any single continuous period of breach." Notably, the transmittal email does not expressly propose or describe a per-incident application of the cap, and the draft language does not contain the phrase "per incident" or similar formulation.

(c) Response emails from Markos Theodorakis (TSL) to Richard Hartnett (Northwind) and from Mr. Stavridis to Mr. Lindgren, confirming TSL's understanding that the cap operates as an aggregate cap for the charter period.

H. Exhibit H — M/V *Aegean Fortuna* Maintenance Records (2021–2022)

32. Attached hereto as Exhibit H are true and correct copies of maintenance and classification records for the M/V Aegean Fortuna (IMO No. 9847231) covering the period from January 2021 through December 2022. These documents were produced by Defendants in discovery and bear Bates numbers within the range of TSL-003401 through TSL-007892. The records attached include:

(a) GMCB survey reports and interim class certificates for the M/V Aegean Fortuna issued during the 2021–2022 period, confirming the vessel's classification status.

(b) Planned maintenance system ("PMS") logs showing scheduled maintenance tasks and their completion dates, demonstrating that the vessel was maintained in accordance with TSL's fleet-wide maintenance protocols and the GMCB's requirements.

(c) Records documenting turbocharger inspections performed prior to Incident 1, which show that the turbocharger was inspected and serviced in accordance with the manufacturer's recommended intervals and that no indication of the latent rotor assembly defect was detected during any inspection.

(d) Ballast water treatment system maintenance logs showing that the BWTS was properly serviced and functioning within manufacturer specifications prior to Incident 2, consistent with Chief Engineer Vlahos's testimony that the malfunction was caused by contaminated ballast intake rather than inadequate maintenance.

(e) Cylinder liner inspection records showing that the last inspection of the cylinder liners prior to Incident 3 was completed approximately six weeks before the scheduled interval, consistent with Chief Engineer Vlahos's testimony regarding the maintenance scheduling issue that contributed to the cylinder liner failure.

I. Exhibit I — Voyage Log for M/V *Aegean Fortuna* (September 2022)

33. Attached hereto as Exhibit I is a true and correct copy of the official voyage log (deck log) for the M/V Aegean Fortuna for the month of September 2022, covering the Durban-to-Qingdao voyage. This document was produced by Defendants in discovery and bears Bates numbers TSL-009201 through TSL-009248. The voyage log contains the following entries of particular relevance to Issue Two:

(a) September 14, 2022: The Master's log entry noting receipt of weather advisories for the Mozambique Channel region, including tropical cyclone warnings, and recording the Master's initial assessment of the potential impact on the vessel's intended routing.

(b) September 15–16, 2022: Entries documenting the Master's decision to call at the Port of Maputo, Mozambique, citing weather routing considerations, significant port congestion at Durban, and the Master's exercise of discretion to seek a safe and operationally efficient alternative. The entries record that the decision was communicated to TSL's operations department and to the Charterer's representatives.

(c) September 17–20, 2022: Entries documenting the vessel's four-day period at Maputo, including limited cargo operations conducted during the call and ongoing weather monitoring for the Mozambique Channel.

(d) Entries recording the vessel's departure from Maputo and the adoption of revised routing toward Qingdao, China, with notation of continued weather avoidance measures during the initial portion of the Indian Ocean crossing.

(e) Critically, no entry in the voyage log indicates that the Maputo call was directed by TSL's commercial operations department or was undertaken for TSL's own cargo purposes. This absence directly contradicts Northwind's deviation theory, which posits that TSL directed the vessel to Maputo for its own commercial benefit.

J. Exhibit J — Weather Reports and Routing Advisories (September 2022)

34. Attached hereto as Exhibit J are true and correct copies of third-party weather routing reports and advisories for the Mozambique Channel and Indian Ocean region during September 2022. These reports were obtained from the independent weather routing service, Global Maritime Weather Advisory Services Ltd. ("GMWAS"), during the course of discovery. GMWAS provided weather routing advisories to the M/V Aegean Fortuna during the relevant period.

35. The weather reports and advisories attached as Exhibit J confirm the existence of tropical cyclone warnings and adverse weather conditions in the Mozambique Channel during mid-September 2022. These reports corroborate Captain Giannopoulos's deposition testimony (Exhibit D) and the voyage log entries (Exhibit I) regarding the weather-related basis for the Master's decision to call at Maputo. The reports document sustained winds in excess of 55 knots, significant wave heights of 6 to 8 meters, and weather routing advisories recommending avoidance of the central Mozambique Channel corridor during the period of September 14–19, 2022.

K. Exhibit K — Northwind's Internal Communications Regarding the Maputo Call

36. Attached hereto as Exhibit K are true and correct copies of internal Northwind Maritime Corporation email communications regarding the M/V Aegean Fortuna's September 2022 Maputo call. These documents were produced by Northwind in response to Defendants' discovery requests and bear Bates numbers NW-005742 through NW-005789. The following emails are of particular significance to Issue Two of Defendants' motion:

(a) An internal Northwind email dated September 16, 2022, from Northwind's chartering manager, Lars Henriksen, to Viktor Lindgren and others, acknowledging the Master's weather-related routing decision and discussing the operational implications without characterizing the Maputo call as an unauthorized deviation or a breach of the Charter-Party. Mr. Henriksen's email states: "Master advises diverting to Maputo due to cyclone warning — seems prudent given the conditions."

(b) An internal Northwind email dated September 20, 2022, discussing the potential impact of the Maputo call on the vessel's ability to meet the Qingdao laycan window (October 1–5, 2022) but not raising any breach allegations or characterizing the Maputo call as a deviation. The email focuses on logistical planning and contingency measures, not legal claims.

(c) An internal Northwind email dated October 8, 2022, which constitutes the first internal Northwind communication to characterize the Maputo call as a "deviation." This email was sent only after the Qingdao laycan was missed and Northwind had begun to face demurrage and dead freight exposure under its cargo commitment. The timing of this email, coming more than three weeks after the Maputo call and only after the adverse commercial consequences materialized, strongly supports the inference that Northwind's deviation claim was formulated post hoc as a vehicle for recovering its Qingdao-related losses, rather than reflecting a genuine, contemporaneous assessment that the Maputo call was unauthorized.

L. Exhibit L — Expert Report of Dr. Henrik Sørensen (August 5, 2024)

37. Attached hereto as Exhibit L is a true and correct copy of the expert report of Dr. Henrik Sørensen, dated August 5, 2024. Dr. Sørensen is a Principal at Nordic Maritime Consulting Group ApS, located at Amaliegade 33, 1256 Copenhagen K, Denmark. He holds a Ph.D. in Marine Engineering from the Technical University of Denmark and has more than twenty-five years of experience in maritime engineering, vessel maintenance, and classification matters. Dr. Sørensen was retained by Defendants as an expert witness in this action.

38. In his report, Dr. Sørensen opines, among other things, as follows:

(a) The Incident 1 turbocharger failure was attributable to a latent manufacturing defect in the turbocharger rotor assembly that was not detectable through standard maintenance protocols, and that TSL exercised due diligence in the maintenance and inspection of the turbocharger prior to the failure.

(b) The Incident 2 BWTS malfunction was consistent with contamination of the ballast water intake at a prior port, rather than inadequate maintenance of the BWTS by TSL or the vessel's crew. Dr. Sørensen's analysis of the BWTS maintenance logs and the nature of the fouling supports the conclusion that the malfunction was caused by external contaminants introduced during ballast water loading operations that were directed by the Charterer.

(c) The Incident 3 cylinder liner failure was a maintenance-related issue attributable to the deferred inspection schedule. However, Dr. Sørensen opines that the scope and duration of the resulting repairs—25 days of drydocking at Keppel Verolme Shipyard—were reasonable and consistent with industry practice for a failure of this nature.

(d) Taken as a whole, the M/V Aegean Fortuna was maintained in compliance with GMCB classification requirements throughout the charter period, with the exception of the acknowledged maintenance gap that contributed to Incident 3.

39. Dr. Sørensen's separate declaration, submitted pursuant to CPLR § 2106, is filed concurrently with this declaration.

M. Exhibit M — Expert Report of Dr. Constance Albright (August 5, 2024)

40. Attached hereto as Exhibit M is a true and correct copy of the expert report of Dr. Constance Albright, dated August 5, 2024. Dr. Albright is a Managing Director at Clearwater Economics LLC, located at 1001 Pennsylvania Avenue NW, Suite 700, Washington, DC 20004. She holds a Ph.D. in Economics from the University of Chicago and specializes in commercial damages analysis, with particular expertise in maritime and transportation disputes. Dr. Albright was retained by Defendants as an expert witness on damages issues in this action.

41. In her report, Dr. Albright opines, among other things, as follows:

(a) The proper application of the Clause 28 liquidated damages formula yields a total of $1,504,500.00, computed as 68 total off-hire days multiplied by the daily hire rate of $14,750.00, multiplied by 150%. This amount is subject to the $4,500,000.00 cap, but because the formula result ($1,504,500.00) is less than the cap, the cap does not come into play under either party's interpretation.

(b) Even under Northwind's per-incident interpretation of the Clause 28 cap, the liquidated damages formula applied to each individual incident yields amounts that fall far below the $4,500,000.00 cap: Incident 1 yields $487,050.00 (22 days × $14,750 × 150%); Incident 2 yields $464,625.00 (21 days × $14,750 × 150%); and Incident 3 yields $552,825.00 (25 days × $14,750 × 150%). Accordingly, the per-incident interpretation does not change the result: the total liquidated damages under the formula remain $1,504,500.00.

(c) Northwind's claim of $4,500,000.00 in liquidated damages is unsupported by either interpretation of Clause 28 and appears to treat the cap as the damages award itself rather than as a ceiling on the formula-derived amount. There is no basis in the Charter-Party language or in standard commercial practice for using a damages cap as the starting point for a damages calculation.

(d) Several categories of Northwind's total claimed damages of $18,300,000.00 overlap or double-count losses, including the simultaneous claim for liquidated damages, lost sub-charter profits, and substitute charter costs for the same off-hire periods. Dr. Albright identifies and quantifies the specific areas of overlap and double-counting.

42. Dr. Albright's separate declaration, submitted pursuant to CPLR § 2106, is filed concurrently with this declaration.

N. Exhibit N — Sub-Charter Agreement Between Northwind and Eastbourne Bulk Carriers Ltd.

43. Attached hereto as Exhibit N is a true and correct copy of the sub-charter agreement entered into between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna. This document was produced by Northwind following a discovery dispute regarding Northwind's initially deficient production of sub-charter documents. The dispute was the subject of my letter dated April 5, 2024, addressed to Jason Trumbull, Esq. at Hargrove, Delacroix & Stern LLP, in which I identified the deficiencies in Northwind's production and requested supplemental production of all sub-charter agreements. Northwind produced the sub-charter agreement in its supplemental production on April 22, 2024.

44. The sub-charter agreement establishes a sub-charter rate of $17,200.00 per day, which represents a premium of $2,450.00 per day over the Charter-Party hire rate of $14,750.00. This sub-charter rate is relevant to the computation of Northwind's claimed lost sub-charter profits, which Defendants calculate as ($17,200 − $14,750) × 68 off-hire days = $166,600.00. The sub-charter agreement is also relevant to the mitigation analysis, as it establishes the rate at which Northwind was earning income from the vessel during the charter period and provides context for evaluating the reasonableness of Northwind's substitute charter at $21,300.00 per day.

O. Exhibit O — Demurrage and Dead Freight Documentation (Qingdao Laycan)

45. Attached hereto as Exhibit O are true and correct copies of documents relating to the Qingdao laycan window of October 1–5, 2022, including the underlying cargo contract between Northwind and the cargo interests, the relevant laycan provisions, and Northwind's demurrage and dead freight claim in the amount of $1,230,000.00. These documents were produced by Northwind in discovery.

46. This documentation is relevant to Issue Two of Defendants' motion. Northwind's demurrage and dead freight claim of $1,230,000.00 is predicated on the allegation that the September 2022 Maputo call constituted an unauthorized deviation that caused the vessel to miss the Qingdao laycan. If the Court determines, as Defendants urge, that the Maputo call was not a breach of the Charter-Party—because it fell within the Master's reasonable discretion and was consistent with the trade limits under Clause 5—then the demurrage and dead freight claim attributable to the alleged deviation necessarily fails, and Northwind cannot recover those losses as against Defendants.

V. STATEMENT REGARDING AUTHENTICITY AND COMPLETENESS

47. I hereby state that each exhibit attached to this declaration, Exhibits A through O, is a true and correct copy of the original document as produced in discovery in this action or as otherwise obtained from the sources identified above. No material alterations, modifications, or redactions have been made to the attached exhibits, except for the extraction of relevant excerpts from deposition transcripts as specifically noted above.

48. All deposition excerpts attached hereto are true and correct excerpts from the certified transcripts of depositions taken in this action. The full transcripts are available and will be made available to the Court upon request.

49. I have personally reviewed each exhibit attached hereto and confirm its accuracy and authenticity based on my personal knowledge and my involvement in the discovery proceedings in this action.

VI. CONCLUSION

50. I respectfully submit this declaration and the attached Exhibits A through O in support of Defendants' Motion for Partial Summary Judgment. I respectfully request that the Court consider these exhibits in connection with the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment and the Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a, both of which are filed concurrently herewith on September 20, 2024.

51. For the reasons set forth in the accompanying Memorandum of Law, Defendants respectfully submit that the undisputed record evidence establishes their entitlement to partial summary judgment on both Issue One (the interpretation of the Clause 28 liquidated damages cap) and Issue Two (dismissal of the deviation claim related to the September 2022 Maputo call), and that there are no genuine disputes of material fact precluding entry of judgment on either issue.

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

Dated: New York, New York September 20, 2024

________________________________________

Carlos Espinoza

Carlos Espinoza (Senior Associate) Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 558-4000 Facsimile: (212) 558-3588

Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.

CERTIFICATE OF SERVICE

I, Carlos Espinoza, hereby certify that on September 20, 2024, a true and correct copy of the foregoing Declaration of Carlos Espinoza in Support of Defendants' Motion for Partial Summary Judgment, together with all exhibits attached thereto (Exhibits A through O), was served upon counsel for Plaintiff via the New York State Courts Electronic Filing system ("NYSCEF") and by electronic mail to the following:

Margaret Delacroix, Esq. Jason Trumbull, Esq. Priya Mehta, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022

________________________________________

Carlos Espinoza

INDEX OF EXHIBITS

Exhibit	Description
A	Time Charter-Party (NW-TSL-CP-2020-1203), executed December 3, 2020, between Aegean Fortuna Shipholding Ltd. and Northwind Maritime Corporation for M/V Aegean Fortuna (TSL-000001 through TSL-000078)
B	Excerpts from Deposition of Alexandros Stavridis, Chairman and CEO of TSL (April 22, 2024)
C	Excerpts from Deposition of Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation (May 30, 2024)
D	Excerpts from Deposition of Capt. Nikolaos Giannopoulos, Master, M/V Aegean Fortuna (May 10, 2024)
E	Excerpts from Deposition of Sandra Chow, CFO of Northwind Maritime Corporation (June 14, 2024)
F	Excerpts from Deposition of Chief Engineer Petros Vlahos, M/V Aegean Fortuna (June 28, 2024)
G	Charter-Party Negotiation Correspondence between TSL and Northwind (November–December 2020)
H	M/V Aegean Fortuna Maintenance and Classification Records (January 2021–December 2022)
I	Voyage Log (Deck Log) for M/V Aegean Fortuna (September 2022)
J	Weather Reports and Routing Advisories for Mozambique Channel / Indian Ocean Region (September 2022)
K	Northwind Maritime Corporation Internal Communications Regarding the September 2022 Maputo Call
L	Expert Report of Dr. Henrik Sørensen, Nordic Maritime Consulting Group ApS (August 5, 2024)
M	Expert Report of Dr. Constance Albright, Clearwater Economics LLC (August 5, 2024)
N	Sub-Charter Agreement between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd.
O	Demurrage and Dead Freight Documentation — Qingdao Laycan (October 1–5, 2022)

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 CARLOS ESPINOZA IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Filed: September 20, 2024
I, Carlos Espinoza, hereby declare as follows:
PRELIMINARY STATEMENT
1. I am an attorney duly admitted to practice law in the State of New York. I am a Senior Associate at Calderwood & Harkness LLP, with offices located at One Liberty Plaza, 50th Floor, New York, New York 10006 (C&H Matter No. 1044-00006). I am counsel of record for Defendants Thalassa Shipping & Logistics SA ("TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna" and, together with TSL, "Defendants") in the above-captioned action.
2. I submit this declaration in support of Defendants' Motion for Partial Summary Judgment, which seeks relief on two discrete issues: (1) the proper interpretation of the liquidated damages cap set forth in Clause 28 of the charter-party at issue in this action, and specifically that the $4,500,000 cap constitutes a single aggregate cap for the entire charter period rather than a per-incident cap; and (2) the dismissal of Plaintiff Northwind Maritime Corporation's ("Northwind" or "Plaintiff") deviation claim arising from the M/V Aegean Fortuna's September 2022 call at Maputo, Mozambique, on the ground that the call fell within the Master's reasonable discretion and was consistent with the trade limits established under Clause 5 of the charter-party.
3. I make this declaration under penalty of perjury pursuant to CPLR § 2106. I have personal knowledge of the facts set forth herein through my direct and continuous involvement in this litigation since my firm's engagement as counsel for Defendants on October 16, 2023. Unless otherwise stated, the matters set forth in this declaration are within my personal knowledge, and if called as a witness I could and would competently testify to the matters stated herein.
I. BACKGROUND OF THE ACTION
4. On October 2, 2023, Plaintiff Northwind Maritime Corporation commenced this action by filing a Summons and Verified Complaint in this Court. The Complaint asserts claims for breach of a thirty-six (36) month time charter-party in the New York Produce Exchange ("NYPE") 2015 form, as amended (the "Charter-Party"), for the motor vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier with a deadweight tonnage of approximately 58,200 DWT, flagged in the Republic of Liberia.
5. The Charter-Party at issue bears Reference No. NW-TSL-CP-2020-1203 and was executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd., as disponent Owner, and Northwind Maritime Corporation, as Charterer. The charter period was thirty-six months, commencing upon delivery of the vessel on January 15, 2021, with expiration on January 14, 2024. The agreed daily hire rate was $14,750.00 per day, yielding a total charter value over the thirty-six-month term of approximately $16,166,000.00.
6. In its Complaint, Northwind claims total damages in the amount of $18,300,000.00, which it alleges arose from three separate mechanical incidents during the charter period and one alleged unauthorized deviation in the vessel's routing. Specifically, Northwind alleges that Defendants breached their maintenance and seaworthiness obligations under Clauses 2 and 6 of the Charter-Party with respect to three mechanical failures—a turbocharger failure in March–April 2022, a ballast water treatment system ("BWTS") malfunction and auxiliary boiler failure in July 2022, and a cylinder liner failure in November–December 2022—and that the vessel's call at Maputo, Mozambique in September 2022 constituted an unauthorized deviation in breach of the Charter-Party.
7. Defendants filed their Answer and Counterclaim on November 17, 2023. Among other defenses, Defendants asserted that the Clause 28 liquidated damages cap of $4,500,000 operates as a single aggregate limitation on Northwind's recovery for all maintenance-related claims over the charter period, and that the September 2022 Maputo call did not constitute a deviation. Defendants also interposed a counterclaim in the amount of $1,620,000.00, representing 110 days of unpaid hire that Northwind withheld during the period from October 1, 2022 through December 31, 2022, in purported set-off of its claimed losses.
8. On December 15, 2023, Defendants filed a Motion to Dismiss Counts III and V of the Complaint pursuant to CPLR § 3211(a)(7). By Decision and Order dated March 8, 2024, Justice Chen granted the motion in part, dismissing Count V (which had alleged tortious interference with contractual relations against TSL) in its entirety and narrowing Count III (which alleged negligent maintenance) to the extent it asserted damages beyond the Charter-Party's remedial framework. That Decision and Order is not at issue in the present motion.
9. The parties have engaged in extensive discovery since January 2024, which continued through August 2024. The discovery proceedings relevant to this motion are described in greater detail below.
II. PURPOSE OF THIS DECLARATION
10. The purpose of this declaration is to authenticate and identify the exhibits attached hereto as Exhibits A through O. These exhibits are referenced in, and form the evidentiary basis for, the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment and the Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a (the "Rule 19-a Statement"), both of which are filed simultaneously with this declaration on September 20, 2024.
11. As stated above, Defendants' motion seeks partial summary judgment on two discrete issues:
Issue One — Clause 28 Liquidated Damages Cap: The liquidated damages cap set forth in Clause 28 of the Charter-Party applies as a single aggregate cap of $4,500,000.00 for the entire thirty-six-month charter period, and does not operate as a per-incident cap that would permit Northwind to claim up to $4,500,000.00 for each of the three mechanical incidents separately. The undisputed record evidence—including the Charter-Party language itself, the contemporaneous negotiation correspondence, and the testimony of both parties' principals—demonstrates that the cap was negotiated and understood as an aggregate maximum.
Issue Two — September 2022 Maputo Call: The M/V Aegean Fortuna's call at Maputo, Mozambique in September 2022 did not constitute an unauthorized deviation in breach of the Charter-Party. The undisputed evidence establishes that (a) the Master's decision to proceed to Maputo was made independently based on legitimate safety and efficiency concerns, including tropical cyclone warnings in the Mozambique Channel and port congestion at Durban; (b) Maputo is not within any excluded trading area under Clause 5 of the Charter-Party; and (c) Northwind's own contemporaneous internal communications did not characterize the Maputo call as a deviation until after the Qingdao laycan was missed in early October 2022, strongly suggesting that the deviation claim was an after-the-fact rationalization.
12. I have personal knowledge of all exhibits attached to this declaration. Each exhibit is either a document produced during the course of discovery in this action, a certified transcript of a deposition at which I was present as examining or defending counsel, or a document otherwise maintained in the ordinary course of this litigation by Calderwood & Harkness LLP as counsel for Defendants. The sources and circumstances of each exhibit are identified in Section IV below.
III. DISCOVERY PROCEEDINGS AND RECORD
13. The following is a brief summary of the discovery proceedings conducted in this action, provided to contextualize the exhibits attached hereto.
14. On January 22, 2024, Defendants served their First Set of Interrogatories (Nos. 1 through 25) and First Request for Production of Documents (Nos. 1 through 42) on Plaintiff Northwind Maritime Corporation. These discovery requests sought, among other things, all documents relating to the negotiation and execution of the Charter-Party, all documents relating to the three mechanical incidents, all documents relating to the September 2022 Maputo call, Northwind's damages calculations and supporting documentation, and all documents relating to Northwind's sub-charter agreements for the M/V Aegean Fortuna.
15. Northwind served its own discovery requests on Defendants, including its First Set of Interrogatories (Nos. 1 through 30) and First Request for Production (Nos. 1 through 48), on or about the same date. Defendants responded with objections and substantive responses on February 28, 2024, and produced responsive documents on a rolling basis through April 2024. Defendants' document production ultimately comprised approximately 14,200 pages of documents, bearing Bates numbers TSL-000001 through TSL-014247.
16. The following depositions relevant to Defendants' motion for partial summary judgment were completed during the discovery period:
(a) Alexandros Stavridis, Chairman and Chief Executive Officer of TSL, was deposed on April 22, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately seven hours and resulted in a transcript of 312 pages.
(b) Captain Nikolaos Giannopoulos, Master of the M/V Aegean Fortuna during the charter period, was deposed on May 10, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately six and one-half hours and resulted in a transcript of 287 pages.
(c) Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation, was deposed on May 30, 2024, at the offices of Hargrove, Delacroix & Stern LLP, New York, New York. I was present at, and conducted the examination at, this deposition. The deposition lasted approximately seven hours and resulted in a transcript of 340 pages.
(d) Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation, was deposed on June 14, 2024, at the offices of Hargrove, Delacroix & Stern LLP, New York, New York. I was present at, and conducted the examination at, this deposition. The deposition lasted approximately five hours and resulted in a transcript of 248 pages.
(e) Chief Engineer Petros Vlahos, Chief Engineer of the M/V Aegean Fortuna during the charter period, an employee of TSL, was deposed on June 28, 2024, at the offices of Calderwood & Harkness LLP, New York, New York. I was present at, and defended, this deposition. The deposition lasted approximately six hours and resulted in a transcript of 274 pages.
(f) Three additional fact-witness depositions were conducted during July 2024, including depositions of Northwind's chartering manager, a GMCB classification surveyor, and a representative of the weather routing service that provided routing advisories for the M/V Aegean Fortuna during the September 2022 voyage.
17. Expert reports were served by the parties in accordance with the Scheduling Order entered by Justice Chen on January 10, 2024, as subsequently modified by stipulation:
(a) Defendants served the expert reports of Dr. Henrik Sørensen (maritime engineering) and Dr. Constance Albright (damages) on August 5, 2024.
(b) Plaintiff served the expert reports of Captain Julian Blackmore (Ret.) (maritime operations) and Dr. Rajesh Anand (damages) on August 19, 2024.
(c) Rebuttal expert reports were served by both parties on September 9, 2024.
18. All deposition transcripts, expert reports, and rebuttal expert reports referenced in this declaration have been produced and exchanged between the parties and are available for the Court's review. The relevant excerpts and reports are attached hereto as exhibits.
IV. DESCRIPTION AND AUTHENTICATION OF EXHIBITS
19. The following describes and authenticates each of the exhibits attached hereto.
A. Exhibit A — Time Charter-Party (NW-TSL-CP-2020-1203)
20. Attached hereto as Exhibit A is a true and correct copy of the NYPE 2015 time charter-party, as amended by the parties' rider clauses, executed on December 3, 2020, between Aegean Fortuna Shipholding Ltd. (as Owner) and Northwind Maritime Corporation (as Charterer) for the M/V Aegean Fortuna (the "Charter-Party"). This document was produced by Defendants in discovery and bears Bates numbers TSL-000001 through TSL-000078. The following provisions of the Charter-Party are particularly relevant to the present motion:
(a) Clause 1 (Period / Rate of Hire): Establishes a daily hire rate of $14,750.00 per day for a charter period of thirty-six (36) months, commencing upon delivery of the vessel on January 15, 2021. The total charter value over the thirty-six-month term is approximately $16,166,000.00.
(b) Clause 5 (Trade Limits): Provides for worldwide trading, excluding OFAC-sanctioned ports, London Joint War Committee ("JWC") listed war-risk zones, and ice-bound waters north of latitude 68°N. Maputo, Mozambique does not fall within any excluded trading area under this clause.
(c) Clause 6 (Maintenance and Seaworthiness): Requires the Owner to maintain the vessel in a thoroughly efficient state of hull, machinery, and equipment for the service contemplated, and to comply with all applicable requirements of the vessel's classification society, the Global Maritime Classification Bureau ("GMCB").
(d) Clause 11 (Off-Hire): Sets forth the provisions governing off-hire events, including circumstances in which the vessel ceases to be at the Charterer's disposal due to mechanical deficiency, drydocking, or other causes attributable to the Owner. The off-hire provisions interact with the liquidated damages formula in Clause 28.
(e) Clause 28 (Liquidated Damages): 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 150% of the aggregate off-hire days attributable to such breach, multiplied by the daily hire rate. This amount is expressly made "subject to a cap of $4,500,000 for any single continuous period of breach." The interpretation of this cap language—specifically, whether "any single continuous period of breach" establishes one aggregate cap or permits per-incident application—is the central issue in Issue One of Defendants' motion.
(f) Clause 46 (Governing Law / Dispute Resolution): Provides that the Charter-Party shall be governed by and construed in accordance with the laws of the State of New York. Clause 46(a) provides for arbitration in New York. Clause 46(b) contains an addendum agreed to by the parties permitting either party to elect litigation in the Supreme Court of the State of New York, County of New York, in lieu of arbitration. Northwind exercised this election by commencing the instant action.
B. Exhibit B — Excerpts from Deposition of Alexandros Stavridis (April 22, 2024)
21. Attached hereto as Exhibit B are true and correct excerpts from the certified deposition transcript of Alexandros Stavridis, Chairman and Chief Executive Officer of TSL, taken on April 22, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice and in the presence of counsel for all parties. I was present at this deposition and defended the witness. The transcript was prepared by Carol Steinfeld, a Certified Shorthand Reporter.
22. The attached excerpts include the following relevant testimony:
(a) Mr. Stavridis's testimony regarding his understanding, based on his direct participation in the negotiations, that the Clause 28 liquidated damages cap was negotiated and agreed upon as a single aggregate cap of $4,500,000 applicable to the entire thirty-six-month charter period, and that the cap was not intended to apply separately to each mechanical incident or off-hire event.
(b) Mr. Stavridis's detailed testimony regarding the negotiation of the Charter-Party with Northwind's President Viktor Lindgren and General Counsel Richard Hartnett during the period from October through December 2020. Mr. Stavridis testified that the liquidated damages cap was a significant point of negotiation, that TSL initially proposed a cap of $3,000,000, and that the final agreed figure of $4,500,000 was reached as a compromise with the understanding that it would serve as an overall ceiling on the Owner's exposure under the liquidated damages provision.
(c) Mr. Stavridis's testimony regarding TSL's vessel maintenance policies and procedures, including the company's fleet-wide maintenance standards applicable to approximately thirty-four (34) vessels under TSL's management and operation. Mr. Stavridis testified that TSL maintains a centralized planned maintenance system, employs dedicated superintendents for fleet oversight, and adheres to classification society requirements for all vessels.
(d) Mr. Stavridis's testimony regarding the September 2022 Maputo call, including his confirmation that the Master of the M/V Aegean Fortuna communicated weather and routing concerns to TSL's operations department in advance of the Maputo call, and that the decision to proceed to Maputo was made by the Master based on safety and operational considerations, not at the direction of TSL's commercial department for any cargo or commercial purpose.
C. Exhibit C — Excerpts from Deposition of Viktor Lindgren (May 30, 2024)
23. Attached hereto as Exhibit C are true and correct excerpts from the certified deposition transcript of Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation, taken on May 30, 2024, at the offices of Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022. The deposition was conducted pursuant to notice. I was present at this deposition and conducted the examination of the witness on behalf of Defendants. The transcript was prepared by David Marchetti, a Certified Shorthand Reporter.
24. The attached excerpts include the following relevant testimony:
(a) Mr. Lindgren's acknowledgment that the Clause 28 liquidated damages cap language was discussed during the negotiation of the Charter-Party in late 2020. Mr. Lindgren testified that the phrase "single continuous period of breach" was specifically discussed between the parties, though he maintained at deposition that his understanding was that the phrase referred to each discrete period of off-hire resulting from a separate mechanical incident.
(b) Mr. Lindgren's testimony that Northwind's General Counsel, Richard Hartnett, drafted the initial language of Clause 28, with input from Northwind's then-outside counsel, the law firm of Whitfield & Tompkins LLP. Mr. Lindgren acknowledged that the draft language was circulated to TSL for review and that TSL proposed certain modifications, which were discussed and ultimately agreed upon.
(c) Mr. Lindgren's testimony regarding Northwind's understanding and reaction to the September 2022 Maputo call at the time it occurred. Critically, Mr. Lindgren testified that Northwind did not initially characterize the Maputo call as an unauthorized deviation. Rather, Northwind raised the deviation allegation only after the vessel missed the Qingdao laycan window of October 1–5, 2022, and Northwind faced demurrage and dead freight exposure under its cargo commitment. This testimony is corroborated by Northwind's own contemporaneous internal communications (Exhibit K).
(d) Mr. Lindgren's testimony regarding Northwind's sub-charter arrangement with Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna, pursuant to which the vessel was sub-chartered at a rate of $17,200.00 per day. This sub-charter is relevant to the calculation of lost sub-charter profits and to the mitigation analysis.
D. Exhibit D — Excerpts from Deposition of Capt. Nikolaos Giannopoulos (May 10, 2024)
25. Attached hereto as Exhibit D are true and correct excerpts from the certified deposition transcript of Captain Nikolaos Giannopoulos, Master of the M/V Aegean Fortuna during the charter period, taken on May 10, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice. I was present at this deposition and defended the witness. The transcript was prepared by Carol Steinfeld, a Certified Shorthand Reporter.
26. The attached excerpts include the following relevant testimony:
(a) Captain Giannopoulos's detailed account of the September 2022 Maputo call. He testified that in mid-September 2022, while the M/V Aegean Fortuna was at or near Durban, South Africa, he received weather advisories indicating tropical cyclone warnings in the Mozambique Channel. He further testified that significant port congestion at Durban created delays that, combined with the weather conditions, warranted a decision to proceed to Maputo, Mozambique as a safe and efficient alternative. Captain Giannopoulos testified that his decision was made in the exercise of his reasonable discretion as Master of the vessel.
(b) Captain Giannopoulos's testimony that he consulted with TSL's operations department in advance of making the routing decision but that the decision was ultimately his own, made independently and based on his assessment of safety and operational efficiency. He testified that TSL's operations department did not direct or instruct him to call at Maputo for any commercial or cargo-related purpose.
(c) Captain Giannopoulos's testimony regarding the subsequent voyage from Durban to Qingdao, China, and the factors that contributed to the approximately four-day delay in the vessel's arrival. He testified that the delay was attributable to a combination of weather avoidance routing necessitated by the cyclone conditions and the time spent at Maputo for weather monitoring and limited cargo operations.
(d) Captain Giannopoulos's testimony regarding the three mechanical incidents that occurred during the charter period, including his communications with Chief Engineer Petros Vlahos and with GMCB classification surveyors during and after each incident. He testified that in each case, the mechanical issues were reported promptly and that repairs were carried out as expeditiously as possible.
E. Exhibit E — Excerpts from Deposition of Sandra Chow (June 14, 2024)
27. Attached hereto as Exhibit E are true and correct excerpts from the certified deposition transcript of Sandra Chow, Chief Financial Officer of Northwind Maritime Corporation, taken on June 14, 2024, at the offices of Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022. The deposition was conducted pursuant to notice. I was present at this deposition and conducted the examination of the witness on behalf of Defendants. The transcript was prepared by Maria Gonzalez, a Certified Shorthand Reporter.
28. The attached excerpts include the following relevant testimony:
(a) Ms. Chow's testimony regarding Northwind's damages calculations in this action, including the methodology by which Northwind computed its total claimed damages of $18,300,000.00. Ms. Chow testified that the damages figure includes liquidated damages under Clause 28, lost sub-charter profits, demurrage and dead freight arising from the missed Qingdao laycan, substitute charter costs, and various consequential damages.
(b) Ms. Chow's acknowledgment that the Clause 28 liquidated damages formula, when applied on a straightforward per-formula basis without regard to the cap dispute, yields a total of $1,504,500.00. This figure is computed as follows: 68 total off-hire days (22 days from Incident 1 + 21 days from Incident 2 + 25 days from Incident 3) × $14,750.00 daily hire rate × 150% = $1,504,500.00. Ms. Chow acknowledged that this amount is substantially less than the $4,500,000.00 cap, regardless of whether the cap is interpreted on an aggregate or per-incident basis.
(c) Ms. Chow's testimony that Northwind arrived at its claimed liquidated damages figure of $4,500,000.00 by treating each of the three mechanical incidents as a separate "single continuous period of breach" and asserting that each triggered an independent cap of $4,500,000.00 (for a theoretical maximum of $13,500,000.00), then claiming $4,500,000.00 as the aggregate amount without explaining the mathematical basis. Ms. Chow acknowledged under questioning that the three mechanical incidents do not overlap in time, that the Charter-Party language does not explicitly provide for per-incident application of the cap, and that the per-formula computation for each individual incident ($487,050.00 for Incident 1, $464,625.00 for Incident 2, and $552,825.00 for Incident 3) falls far below $4,500,000.00 in every instance.
(d) Ms. Chow's testimony regarding the computation of substitute charter costs. She testified that Northwind obtained a substitute vessel at a rate of $21,300.00 per day for a period of 72 days, yielding a daily premium of $6,550.00 over the Charter-Party rate and an aggregate substitute charter premium of $471,600.00.
F. Exhibit F — Excerpts from Deposition of Chief Engineer Petros Vlahos (June 28, 2024)
29. Attached hereto as Exhibit F are true and correct excerpts from the certified deposition transcript of Chief Engineer Petros Vlahos, an employee of TSL who served as Chief Engineer of the M/V Aegean Fortuna during the charter period, taken on June 28, 2024, at the offices of Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006. The deposition was conducted pursuant to notice. I was present at this deposition and defended the witness. The transcript was prepared by Carol Steinfeld, a Certified Shorthand Reporter.
30. The attached excerpts include the following relevant testimony:
(a) Incident 1 — Turbocharger Failure (March 12 – April 2, 2022): Mr. Vlahos testified that the turbocharger failure resulted from a latent manufacturing defect in the turbocharger rotor assembly. He testified that the defect was not detectable through standard maintenance protocols, including the regular inspections and servicing that had been performed in accordance with the vessel's planned maintenance system and the manufacturer's recommendations. The vessel was off-hire for approximately 22 days while repairs were conducted at Colombo, Sri Lanka.
(b) Incident 2 — BWTS Malfunction and Auxiliary Boiler Failure (July 8 – July 29, 2022): Mr. Vlahos testified that the BWTS malfunction resulted from contaminated ballast water that had been loaded at a prior port under Northwind's direction as Charterer. He testified that the contamination caused fouling and damage to the BWTS filters and UV treatment system, which in turn contributed to the auxiliary boiler failure. The vessel was off-hire for approximately 21 days at Richards Bay, South Africa, during which both the BWTS and auxiliary boiler were repaired.
(c) Incident 3 — Cylinder Liner Failure (November 15 – December 10, 2022): Mr. Vlahos conceded that the cylinder liner failure was related to a maintenance scheduling issue—specifically, that the scheduled inspection and replacement of the cylinder liners had been deferred by approximately six weeks due to operational exigencies. However, he testified that the scope and duration of the resulting repairs, which required drydocking at Keppel Verolme Shipyard in Rotterdam, the Netherlands, were reasonable and consistent with industry practice. The vessel was off-hire for approximately 25 days during the drydocking and repair period.
(d) Mr. Vlahos's testimony regarding the M/V Aegean Fortuna's classification status with GMCB throughout the charter period. He testified that the vessel maintained its class continuously, except during the Incident 3 drydocking period when class was temporarily suspended pending completion of repairs, and that class was restored immediately upon completion of the drydocking.
G. Exhibit G — Charter-Party Negotiation Correspondence
31. Attached hereto as Exhibit G are true and correct copies of email correspondence exchanged between representatives of TSL and Northwind during the negotiation of the Charter-Party in November and December 2020. These documents were produced by both parties during the course of discovery in this action. The following emails are of particular relevance to the interpretation of Clause 28:
(a) An email dated November 18, 2020, from Alexandros Stavridis (TSL) to Viktor Lindgren (Northwind), in which Mr. Stavridis states that TSL agreed to the proposed $4,500,000 liquidated damages cap as an "aggregate maximum for the entire charter," and expressly distinguishes this from a per-incident cap. Mr. Stavridis's email states, in relevant part: "We confirm our agreement to the LD cap at $4.5M as the aggregate maximum for the entire charter period—this is a meaningful concession on our part and should not be read as a per-incident ceiling."
(b) An email dated November 22, 2020, from Richard Hartnett (Northwind General Counsel) to Markos Theodorakis (TSL in-house counsel), transmitting a revised draft of Clause 28 containing the language "for any single continuous period of breach." Notably, the transmittal email does not expressly propose or describe a per-incident application of the cap, and the draft language does not contain the phrase "per incident" or similar formulation.
(c) Response emails from Markos Theodorakis (TSL) to Richard Hartnett (Northwind) and from Mr. Stavridis to Mr. Lindgren, confirming TSL's understanding that the cap operates as an aggregate cap for the charter period.
H. Exhibit H — M/V *Aegean Fortuna* Maintenance Records (2021–2022)
32. Attached hereto as Exhibit H are true and correct copies of maintenance and classification records for the M/V Aegean Fortuna (IMO No. 9847231) covering the period from January 2021 through December 2022. These documents were produced by Defendants in discovery and bear Bates numbers within the range of TSL-003401 through TSL-007892. The records attached include:
(a) GMCB survey reports and interim class certificates for the M/V Aegean Fortuna issued during the 2021–2022 period, confirming the vessel's classification status.
(b) Planned maintenance system ("PMS") logs showing scheduled maintenance tasks and their completion dates, demonstrating that the vessel was maintained in accordance with TSL's fleet-wide maintenance protocols and the GMCB's requirements.
(c) Records documenting turbocharger inspections performed prior to Incident 1, which show that the turbocharger was inspected and serviced in accordance with the manufacturer's recommended intervals and that no indication of the latent rotor assembly defect was detected during any inspection.
(d) Ballast water treatment system maintenance logs showing that the BWTS was properly serviced and functioning within manufacturer specifications prior to Incident 2, consistent with Chief Engineer Vlahos's testimony that the malfunction was caused by contaminated ballast intake rather than inadequate maintenance.
(e) Cylinder liner inspection records showing that the last inspection of the cylinder liners prior to Incident 3 was completed approximately six weeks before the scheduled interval, consistent with Chief Engineer Vlahos's testimony regarding the maintenance scheduling issue that contributed to the cylinder liner failure.
I. Exhibit I — Voyage Log for M/V *Aegean Fortuna* (September 2022)
33. Attached hereto as Exhibit I is a true and correct copy of the official voyage log (deck log) for the M/V Aegean Fortuna for the month of September 2022, covering the Durban-to-Qingdao voyage. This document was produced by Defendants in discovery and bears Bates numbers TSL-009201 through TSL-009248. The voyage log contains the following entries of particular relevance to Issue Two:
(a) September 14, 2022: The Master's log entry noting receipt of weather advisories for the Mozambique Channel region, including tropical cyclone warnings, and recording the Master's initial assessment of the potential impact on the vessel's intended routing.
(b) September 15–16, 2022: Entries documenting the Master's decision to call at the Port of Maputo, Mozambique, citing weather routing considerations, significant port congestion at Durban, and the Master's exercise of discretion to seek a safe and operationally efficient alternative. The entries record that the decision was communicated to TSL's operations department and to the Charterer's representatives.
(c) September 17–20, 2022: Entries documenting the vessel's four-day period at Maputo, including limited cargo operations conducted during the call and ongoing weather monitoring for the Mozambique Channel.
(d) Entries recording the vessel's departure from Maputo and the adoption of revised routing toward Qingdao, China, with notation of continued weather avoidance measures during the initial portion of the Indian Ocean crossing.
(e) Critically, no entry in the voyage log indicates that the Maputo call was directed by TSL's commercial operations department or was undertaken for TSL's own cargo purposes. This absence directly contradicts Northwind's deviation theory, which posits that TSL directed the vessel to Maputo for its own commercial benefit.
J. Exhibit J — Weather Reports and Routing Advisories (September 2022)
34. Attached hereto as Exhibit J are true and correct copies of third-party weather routing reports and advisories for the Mozambique Channel and Indian Ocean region during September 2022. These reports were obtained from the independent weather routing service, Global Maritime Weather Advisory Services Ltd. ("GMWAS"), during the course of discovery. GMWAS provided weather routing advisories to the M/V Aegean Fortuna during the relevant period.
35. The weather reports and advisories attached as Exhibit J confirm the existence of tropical cyclone warnings and adverse weather conditions in the Mozambique Channel during mid-September 2022. These reports corroborate Captain Giannopoulos's deposition testimony (Exhibit D) and the voyage log entries (Exhibit I) regarding the weather-related basis for the Master's decision to call at Maputo. The reports document sustained winds in excess of 55 knots, significant wave heights of 6 to 8 meters, and weather routing advisories recommending avoidance of the central Mozambique Channel corridor during the period of September 14–19, 2022.
K. Exhibit K — Northwind's Internal Communications Regarding the Maputo Call
36. Attached hereto as Exhibit K are true and correct copies of internal Northwind Maritime Corporation email communications regarding the M/V Aegean Fortuna's September 2022 Maputo call. These documents were produced by Northwind in response to Defendants' discovery requests and bear Bates numbers NW-005742 through NW-005789. The following emails are of particular significance to Issue Two of Defendants' motion:
(a) An internal Northwind email dated September 16, 2022, from Northwind's chartering manager, Lars Henriksen, to Viktor Lindgren and others, acknowledging the Master's weather-related routing decision and discussing the operational implications without characterizing the Maputo call as an unauthorized deviation or a breach of the Charter-Party. Mr. Henriksen's email states: "Master advises diverting to Maputo due to cyclone warning — seems prudent given the conditions."
(b) An internal Northwind email dated September 20, 2022, discussing the potential impact of the Maputo call on the vessel's ability to meet the Qingdao laycan window (October 1–5, 2022) but not raising any breach allegations or characterizing the Maputo call as a deviation. The email focuses on logistical planning and contingency measures, not legal claims.
(c) An internal Northwind email dated October 8, 2022, which constitutes the first internal Northwind communication to characterize the Maputo call as a "deviation." This email was sent only after the Qingdao laycan was missed and Northwind had begun to face demurrage and dead freight exposure under its cargo commitment. The timing of this email, coming more than three weeks after the Maputo call and only after the adverse commercial consequences materialized, strongly supports the inference that Northwind's deviation claim was formulated post hoc as a vehicle for recovering its Qingdao-related losses, rather than reflecting a genuine, contemporaneous assessment that the Maputo call was unauthorized.
L. Exhibit L — Expert Report of Dr. Henrik Sørensen (August 5, 2024)
37. Attached hereto as Exhibit L is a true and correct copy of the expert report of Dr. Henrik Sørensen, dated August 5, 2024. Dr. Sørensen is a Principal at Nordic Maritime Consulting Group ApS, located at Amaliegade 33, 1256 Copenhagen K, Denmark. He holds a Ph.D. in Marine Engineering from the Technical University of Denmark and has more than twenty-five years of experience in maritime engineering, vessel maintenance, and classification matters. Dr. Sørensen was retained by Defendants as an expert witness in this action.
38. In his report, Dr. Sørensen opines, among other things, as follows:
(a) The Incident 1 turbocharger failure was attributable to a latent manufacturing defect in the turbocharger rotor assembly that was not detectable through standard maintenance protocols, and that TSL exercised due diligence in the maintenance and inspection of the turbocharger prior to the failure.
(b) The Incident 2 BWTS malfunction was consistent with contamination of the ballast water intake at a prior port, rather than inadequate maintenance of the BWTS by TSL or the vessel's crew. Dr. Sørensen's analysis of the BWTS maintenance logs and the nature of the fouling supports the conclusion that the malfunction was caused by external contaminants introduced during ballast water loading operations that were directed by the Charterer.
(c) The Incident 3 cylinder liner failure was a maintenance-related issue attributable to the deferred inspection schedule. However, Dr. Sørensen opines that the scope and duration of the resulting repairs—25 days of drydocking at Keppel Verolme Shipyard—were reasonable and consistent with industry practice for a failure of this nature.
(d) Taken as a whole, the M/V Aegean Fortuna was maintained in compliance with GMCB classification requirements throughout the charter period, with the exception of the acknowledged maintenance gap that contributed to Incident 3.
39. Dr. Sørensen's separate declaration, submitted pursuant to CPLR § 2106, is filed concurrently with this declaration.
M. Exhibit M — Expert Report of Dr. Constance Albright (August 5, 2024)
40. Attached hereto as Exhibit M is a true and correct copy of the expert report of Dr. Constance Albright, dated August 5, 2024. Dr. Albright is a Managing Director at Clearwater Economics LLC, located at 1001 Pennsylvania Avenue NW, Suite 700, Washington, DC 20004. She holds a Ph.D. in Economics from the University of Chicago and specializes in commercial damages analysis, with particular expertise in maritime and transportation disputes. Dr. Albright was retained by Defendants as an expert witness on damages issues in this action.
41. In her report, Dr. Albright opines, among other things, as follows:
(a) The proper application of the Clause 28 liquidated damages formula yields a total of $1,504,500.00, computed as 68 total off-hire days multiplied by the daily hire rate of $14,750.00, multiplied by 150%. This amount is subject to the $4,500,000.00 cap, but because the formula result ($1,504,500.00) is less than the cap, the cap does not come into play under either party's interpretation.
(b) Even under Northwind's per-incident interpretation of the Clause 28 cap, the liquidated damages formula applied to each individual incident yields amounts that fall far below the $4,500,000.00 cap: Incident 1 yields $487,050.00 (22 days × $14,750 × 150%); Incident 2 yields $464,625.00 (21 days × $14,750 × 150%); and Incident 3 yields $552,825.00 (25 days × $14,750 × 150%). Accordingly, the per-incident interpretation does not change the result: the total liquidated damages under the formula remain $1,504,500.00.
(c) Northwind's claim of $4,500,000.00 in liquidated damages is unsupported by either interpretation of Clause 28 and appears to treat the cap as the damages award itself rather than as a ceiling on the formula-derived amount. There is no basis in the Charter-Party language or in standard commercial practice for using a damages cap as the starting point for a damages calculation.
(d) Several categories of Northwind's total claimed damages of $18,300,000.00 overlap or double-count losses, including the simultaneous claim for liquidated damages, lost sub-charter profits, and substitute charter costs for the same off-hire periods. Dr. Albright identifies and quantifies the specific areas of overlap and double-counting.
42. Dr. Albright's separate declaration, submitted pursuant to CPLR § 2106, is filed concurrently with this declaration.
N. Exhibit N — Sub-Charter Agreement Between Northwind and Eastbourne Bulk Carriers Ltd.
43. Attached hereto as Exhibit N is a true and correct copy of the sub-charter agreement entered into between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd. for the M/V Aegean Fortuna. This document was produced by Northwind following a discovery dispute regarding Northwind's initially deficient production of sub-charter documents. The dispute was the subject of my letter dated April 5, 2024, addressed to Jason Trumbull, Esq. at Hargrove, Delacroix & Stern LLP, in which I identified the deficiencies in Northwind's production and requested supplemental production of all sub-charter agreements. Northwind produced the sub-charter agreement in its supplemental production on April 22, 2024.
44. The sub-charter agreement establishes a sub-charter rate of $17,200.00 per day, which represents a premium of $2,450.00 per day over the Charter-Party hire rate of $14,750.00. This sub-charter rate is relevant to the computation of Northwind's claimed lost sub-charter profits, which Defendants calculate as ($17,200 − $14,750) × 68 off-hire days = $166,600.00. The sub-charter agreement is also relevant to the mitigation analysis, as it establishes the rate at which Northwind was earning income from the vessel during the charter period and provides context for evaluating the reasonableness of Northwind's substitute charter at $21,300.00 per day.
O. Exhibit O — Demurrage and Dead Freight Documentation (Qingdao Laycan)
45. Attached hereto as Exhibit O are true and correct copies of documents relating to the Qingdao laycan window of October 1–5, 2022, including the underlying cargo contract between Northwind and the cargo interests, the relevant laycan provisions, and Northwind's demurrage and dead freight claim in the amount of $1,230,000.00. These documents were produced by Northwind in discovery.
46. This documentation is relevant to Issue Two of Defendants' motion. Northwind's demurrage and dead freight claim of $1,230,000.00 is predicated on the allegation that the September 2022 Maputo call constituted an unauthorized deviation that caused the vessel to miss the Qingdao laycan. If the Court determines, as Defendants urge, that the Maputo call was not a breach of the Charter-Party—because it fell within the Master's reasonable discretion and was consistent with the trade limits under Clause 5—then the demurrage and dead freight claim attributable to the alleged deviation necessarily fails, and Northwind cannot recover those losses as against Defendants.
V. STATEMENT REGARDING AUTHENTICITY AND COMPLETENESS
47. I hereby state that each exhibit attached to this declaration, Exhibits A through O, is a true and correct copy of the original document as produced in discovery in this action or as otherwise obtained from the sources identified above. No material alterations, modifications, or redactions have been made to the attached exhibits, except for the extraction of relevant excerpts from deposition transcripts as specifically noted above.
48. All deposition excerpts attached hereto are true and correct excerpts from the certified transcripts of depositions taken in this action. The full transcripts are available and will be made available to the Court upon request.
49. I have personally reviewed each exhibit attached hereto and confirm its accuracy and authenticity based on my personal knowledge and my involvement in the discovery proceedings in this action.
VI. CONCLUSION
50. I respectfully submit this declaration and the attached Exhibits A through O in support of Defendants' Motion for Partial Summary Judgment. I respectfully request that the Court consider these exhibits in connection with the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment and the Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a, both of which are filed concurrently herewith on September 20, 2024.
51. For the reasons set forth in the accompanying Memorandum of Law, Defendants respectfully submit that the undisputed record evidence establishes their entitlement to partial summary judgment on both Issue One (the interpretation of the Clause 28 liquidated damages cap) and Issue Two (dismissal of the deviation claim related to the September 2022 Maputo call), and that there are no genuine disputes of material fact precluding entry of judgment on either issue.
I declare under penalty of perjury under the laws of the State of New York that the foregoing is true and correct.
Dated: New York, New York September 20, 2024
________________________________________
Carlos Espinoza
Carlos Espinoza (Senior Associate) Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
CERTIFICATE OF SERVICE
I, Carlos Espinoza, hereby certify that on September 20, 2024, a true and correct copy of the foregoing Declaration of Carlos Espinoza in Support of Defendants' Motion for Partial Summary Judgment, together with all exhibits attached thereto (Exhibits A through O), was served upon counsel for Plaintiff via the New York State Courts Electronic Filing system ("NYSCEF") and by electronic mail to the following:
Margaret Delacroix, Esq. Jason Trumbull, Esq. Priya Mehta, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022
________________________________________
Carlos Espinoza
INDEX OF EXHIBITS
Exhibit | Description
A | Time Charter-Party (NW-TSL-CP-2020-1203), executed December 3, 2020, between Aegean Fortuna Shipholding Ltd. and Northwind Maritime Corporation for M/V Aegean Fortuna (TSL-000001 through TSL-000078)
B | Excerpts from Deposition of Alexandros Stavridis, Chairman and CEO of TSL (April 22, 2024)
C | Excerpts from Deposition of Viktor Lindgren, President and Managing Director of Northwind Maritime Corporation (May 30, 2024)
D | Excerpts from Deposition of Capt. Nikolaos Giannopoulos, Master, M/V Aegean Fortuna (May 10, 2024)
E | Excerpts from Deposition of Sandra Chow, CFO of Northwind Maritime Corporation (June 14, 2024)
F | Excerpts from Deposition of Chief Engineer Petros Vlahos, M/V Aegean Fortuna (June 28, 2024)
G | Charter-Party Negotiation Correspondence between TSL and Northwind (November–December 2020)
H | M/V Aegean Fortuna Maintenance and Classification Records (January 2021–December 2022)
I | Voyage Log (Deck Log) for M/V Aegean Fortuna (September 2022)
J | Weather Reports and Routing Advisories for Mozambique Channel / Indian Ocean Region (September 2022)
K | Northwind Maritime Corporation Internal Communications Regarding the September 2022 Maputo Call
L | Expert Report of Dr. Henrik Sørensen, Nordic Maritime Consulting Group ApS (August 5, 2024)
M | Expert Report of Dr. Constance Albright, Clearwater Economics LLC (August 5, 2024)
N | Sub-Charter Agreement between Northwind Maritime Corporation and Eastbourne Bulk Carriers Ltd.
O | Demurrage and Dead Freight Documentation — Qingdao Laycan (October 1–5, 2022)

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

NORTHWIND MARITIME CORPORATION,

PRELIMINARY STATEMENT

I. BACKGROUND OF THE ACTION

II. PURPOSE OF THIS DECLARATION

III. DISCOVERY PROCEEDINGS AND RECORD

IV. DESCRIPTION AND AUTHENTICATION OF EXHIBITS

V. STATEMENT REGARDING AUTHENTICITY AND COMPLETENESS

VI. CONCLUSION

CERTIFICATE OF SERVICE

INDEX OF EXHIBITS

Record

Parties

Dates

Amounts