SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK, COMMERCIAL DIVISION
Part 49
NORTHWIND MARITIME CORPORATION,
Plaintiff,
\- against -
THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD.,
Defendants.
Index No.: 655421/2023
Assigned Justice: Hon. Lorraine K. Chen, J.S.C.
ORDER ON DEFENDANTS' MOTION TO DISMISS COUNTS III AND V OF THE COMPLAINT
The following papers, numbered and identified in the record, were considered by the Court in connection with Defendants' motion to dismiss Counts III and V of the Complaint:
WHEREAS, Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. (collectively, "Defendants"), by their attorneys Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006, moved by notice of motion dated December 15, 2023, pursuant to CPLR 3211(a)(7), for an order dismissing Count III (third-party shipper cargo claims asserted as charter-party damages) and Count V (unjust enrichment) of the Complaint filed by Plaintiff Northwind Maritime Corporation ("Plaintiff"); and
WHEREAS, Plaintiff Northwind Maritime Corporation, by its attorneys Hargrove, Delacroix & Stern LLP, 600 Lexington Avenue, 28th Floor, New York, New York 10022, opposed the motion; and
WHEREAS, the Court has reviewed and fully considered the following submissions:
(a) Defendants' Memorandum of Law in Support of the Motion to Dismiss, dated December 15, 2023;
(b) Declaration of Douglas Carmichael in Support of the Motion to Dismiss, dated December 15, 2023, together with all exhibits annexed thereto;
(c) Plaintiff's Memorandum of Law in Opposition to the Motion to Dismiss, dated January 12, 2024;
(d) Defendants' Reply Memorandum of Law in Further Support of the Motion to Dismiss, dated January 26, 2024; and
(e) all other papers and proceedings had herein; and
WHEREAS, the Court has heard oral argument on the motion; and the Court being otherwise fully advised in the premises,
NOW, on due deliberation, it is hereby:
ORDERED as follows:
1. Count V (Unjust Enrichment) — GRANTED.
It is ORDERED that Defendants' motion to dismiss Count V of the Complaint, sounding in unjust enrichment, is GRANTED in its entirety, and Count V is hereby dismissed with prejudice. The Court finds that the existence of a valid and enforceable written contract — namely, the time charter-party dated December 3, 2020 (Reference No. NW-TSL-CP-2020-1203) governing the charter of the M/V Aegean Fortuna (IMO No. 9847231) — between Plaintiff and Defendants covers and governs the very subject matter at issue in Count V. It is well settled under New York law that where the parties have entered into a binding, written agreement that governs the dispute, a cause of action for unjust enrichment does not lie, as the express agreement defines the parties' respective rights and obligations and forecloses resort to quasi-contractual remedies. See Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987); IDT Corp. v. Meridian Financial, 12 N.Y.3d 132, 142 (2009). Plaintiff does not dispute the existence or enforceability of the charter-party, and its unjust enrichment claim is duplicative of its contract-based claims arising under the same instrument. Accordingly, Count V fails to state a cause of action as a matter of law and is dismissed with prejudice; and it is further
2. Count III (Third-Party Shipper Cargo Claims) — GRANTED IN PART and DENIED IN PART.
It is ORDERED that Defendants' motion to dismiss Count III of the Complaint is GRANTED IN PART and DENIED IN PART as follows:
(a) To the extent Count III seeks to recover, as charter-party damages on a pass-through basis, the full aggregate amount of third-party shipper cargo claims — alleged by Plaintiff to total Five Million Six Hundred Thirty-Four Thousand Four Hundred Dollars ($5,634,400.00) across three separate cargo damage claims — without demonstrating that Plaintiff has actually paid, settled, or been held liable on any such claims, Count III is hereby dismissed without prejudice. As currently pleaded, Count III impermissibly seeks to recover as its own damages sums that Plaintiff has neither paid nor been adjudicated or otherwise determined to owe to the third-party shippers in question. Plaintiff may not treat contingent or speculative third-party claims as liquidated damages under the charter-party absent a demonstration that it has incurred actual, concrete liability. This dismissal is without prejudice to renewal upon a proper showing that Plaintiff has paid, settled, or been held liable on any or all of the underlying third-party shipper cargo claims.
(b) To the extent Count III alleges that Plaintiff has incurred or will incur actual liability to third-party shippers arising from Defendants' alleged breach of their seaworthiness and maintenance obligations under Clauses 2 and 6 of the charter-party dated December 3, 2020, and seeks indemnification or damages measured by such actual, incurred liability, Defendants' motion to dismiss is DENIED, and those claims may proceed. Count III is hereby narrowed to permit only claims for which Plaintiff can demonstrate, through competent proof, actual incurred liability or payment to the third-party shippers.
(c) The Court notes that the proper allocation of cargo damage liability as between Owner and Charterer under the charter-party — including, without limitation, the potential applicability and operative effect of the Inter-Club New York Produce Exchange Agreement (Inter-Club Agreement) — remains a question of fact and law for determination in further proceedings and is not resolved by this Order.
And it is further
3. Survival of Remaining Counts.
It is ORDERED that all other counts of the Complaint — specifically, Count I (breach of charter-party — failure to maintain class), Count II (breach of charter-party — off-hire claims), Count IV (breach of the implied covenant of good faith and fair dealing), and any other remaining claims asserted in the Complaint — are wholly unaffected by this Order and shall proceed in due course; and it is further
4. Discovery and Scheduling.
It is ORDERED that discovery shall proceed in accordance with the Court's Preliminary Conference Order and scheduling directives previously entered in this action. Any necessary adjustments to the discovery schedule or case management deadlines occasioned by this Order shall be addressed at the next status or compliance conference, and the parties are directed to meet and confer regarding any such adjustments in advance of that conference; and it is further
5. Service of Order with Notice of Entry.
It is ORDERED that counsel for Defendants shall serve a copy of this Order with notice of entry upon all parties and upon the Clerk of the Court within five (5) business days of entry of this Order.
This constitutes the Decision and Order of the Court.
________________________________________
Hon. Lorraine K. Chen, J.S.C.
Dated: New York, New York ____, 2024
Submitted by:
CALDERWOOD & HARKNESS LLP Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
One Liberty Plaza, 50th Floor New York, New York 10006
By: ________
Douglas Carmichael, Esq. Responsible Partner
Telephone: (212) 558-__
Email: dcarmichael@calderwoodharkness.com
CLERK'S NOTATION
Index No.: 655421/2023
Filed: ____
County Clerk, New York County
[STAMP]