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

ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. (collectively, "Defendants") having moved, by notice of motion dated September 20, 2024, for partial summary judgment pursuant to Section 3212 of the New York Civil Practice Law and Rules ("CPLR"), on two discrete grounds: (1) for a declaration that the liquidated damages cap set forth in Clause 28 of the time charter-party dated December 3, 2020, bearing Charter-Party Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party"), executed between Defendants and Plaintiff Northwind Maritime Corporation ("Plaintiff"), applies as a single aggregate cap of Four Million Five Hundred Thousand Dollars ($4,500,000) for the entire charter period, rather than as a per-incident or per-period cap as alleged by Plaintiff; and (2) for dismissal of Plaintiff's claim arising from the alleged route deviation to Maputo, Mozambique in September 2022 (the "Deviation Claim"), on the ground that the deviation fell within the Master's reasonable discretion under the Charter-Party and did not constitute a breach thereof; and

The Court having considered the following papers in connection with this motion:

(a) Defendants' Memorandum of Law in Support of Motion for Partial Summary Judgment, dated September 20, 2024;

(b) Defendants' Statement of Undisputed Material Facts pursuant to Commercial Division Rule 19-a, dated September 20, 2024;

(d) Declaration of Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS (maritime engineering expert for Defendants), with Exhibits 1 through 7 annexed thereto, dated September 20, 2024;

(e) Declaration of Dr. Constance Albright of Clearwater Economics LLC (damages expert for Defendants), with Exhibits A through D annexed thereto, dated September 20, 2024;

(f) Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Partial Summary Judgment, filed by Hargrove, Delacroix & Stern LLP on behalf of Plaintiff;

(g) Plaintiff's Counter-Statement of Material Facts pursuant to Commercial Division Rule 19-a;

(h) All declarations, affidavits, and expert reports submitted by Plaintiff in opposition, including any submissions from Capt. Julian Blackmore of Blackmore Maritime Advisory Ltd. and Dr. Rajesh Anand of Pinnacle Valuation Partners LLP;

(i) Defendants' Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment; and

(j) All other papers and proceedings had herein;

and the Court having heard oral argument on this motion on _____, 2024; and upon due deliberation and consideration of all of the foregoing, it is hereby

ORDERED as follows:

I. Branch One — Liquidated Damages Cap Interpretation (Clause 28 of the Charter-Party)

Defendants' motion for partial summary judgment on the interpretation of the liquidated damages provision set forth in Clause 28 of the Charter-Party is GRANTED.

It is hereby DECLARED AND ADJUDGED that:

1. The phrase "single continuous period of breach" as set forth in Clause 28 of the NYPE 2015 form time charter-party (as amended by the parties), executed on December 3, 2020, governs the Four Million Five Hundred Thousand Dollar ($4,500,000) cap as a single aggregate maximum for all liquidated damages recoverable under Clause 28 across the entire thirty-six (36) month charter period, which ran from January 15, 2021 through January 14, 2024. The language of Clause 28, read in its entirety and in accordance with its plain meaning, does not support the construction urged by Plaintiff that the $4,500,000 cap resets or applies independently to each separate incident or period of alleged breach.

2. Plaintiff's claim for liquidated damages under Clause 28 of the Charter-Party is limited to Four Million Five Hundred Thousand Dollars ($4,500,000) in the aggregate for the entire charter period, and Plaintiff may not recover separate $4,500,000 caps for each of the three alleged breach periods identified in the Complaint, to wit:

(a) Incident 1: March 12 through April 2, 2022, comprising twenty-two (22) off-hire days;

(b) Incident 2: July 8 through July 29, 2022, comprising twenty-one (21) off-hire days; and

3. Applying the mathematical formula prescribed by Clause 28 of the Charter-Party — namely, one hundred fifty percent (150%) of the aggregate off-hire days multiplied by the daily hire rate of Fourteen Thousand Seven Hundred Fifty Dollars ($14,750) — yields a liquidated damages figure of One Million Five Hundred Four Thousand Five Hundred Dollars ($1,504,500) based on the sixty-eight (68) total claimed off-hire days. Because this formula result is below the aggregate cap of $4,500,000, the cap does not operate to reduce the formula amount; however, Plaintiff's recovery of liquidated damages under Clause 28 is in any event limited to the lesser of the formula result or Four Million Five Hundred Thousand Dollars ($4,500,000). This determination is without prejudice to the parties' right to contest the number of off-hire days or the applicability of the Clause 28 formula at trial, subject to the aggregate cap declared herein.

II. Branch Two — Deviation Claim (Maputo, Mozambique — September 2022)

Defendants' motion for partial summary judgment dismissing Plaintiff's Deviation Claim is GRANTED.

It is hereby ORDERED AND ADJUDGED that:

1. Plaintiff's claim that Defendants breached the Charter-Party by directing the M/V Aegean Fortuna (IMO No. 9847231, Liberian-flagged Supramax dry bulk carrier, 58,200 DWT) to call at the port of Maputo, Mozambique in September 2022 during a voyage from Durban, South Africa to Qingdao, People's Republic of China is hereby dismissed. The undisputed record demonstrates that the alleged deviation was within the scope of the Master's reasonable discretion under the Charter-Party and applicable principles of New York maritime law, and did not constitute a breach of Clause 5 (Trade Limits) or any other provision of the Charter-Party.

2. Plaintiff's associated claims for demurrage and dead freight arising from the missed Qingdao laycan window of October 1 through October 5, 2022, in the amount of One Million Two Hundred Thirty Thousand Dollars ($1,230,000), to the extent such claims are predicated solely on the Deviation Claim, are hereby dismissed together with the Deviation Claim.

3. The foregoing dismissal of the Deviation Claim and associated demurrage and dead freight claims is without prejudice to any other claims Plaintiff may have relating to damages arising from the mechanical incidents alleged in the Complaint, which claims shall continue in this action and shall not be affected by this Order.

III. Additional Provisions

All other relief requested by Defendants that is not expressly granted herein is denied.

The remaining claims and counterclaims in this action — including, without limitation, Defendants' counterclaim for One Million Six Hundred Twenty Thousand Dollars ($1,620,000) in withheld hire for the period October 1 through December 31, 2022 — shall proceed to trial or further proceedings in accordance with the schedule set by this Court and any applicable Case Management Orders.

This constitutes the decision and order of the Court.

SO ORDERED:

________________________________________

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 Telephone: (212) 555-7400 Facsimile: (212) 555-7401

By: Douglas Carmichael, Responsible Partner

Date Submitted: September 20, 2024

Opposing Counsel (to be served with a copy of this Order upon entry):

Hargrove, Delacroix & Stern LLP Attorneys for Plaintiff Northwind Maritime Corporation 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 555-3200 Facsimile: (212) 555-3201

Attention: Margaret Delacroix, Lead Partner

NORTHWIND MARITIME CORPORATION,

Plaintiff,

Index No. 655421/2023

-against-	Part 49
THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD.,	Motion Seq. No. 003
<!-- indent:2 -->Defendants.<!-- /indent -->	Hon. Lorraine K. Chen, J.S.C.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK COMMERCIAL DIVISION
ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. (collectively, "Defendants") having moved, by notice of motion dated September 20, 2024, for partial summary judgment pursuant to Section 3212 of the New York Civil Practice Law and Rules ("CPLR"), on two discrete grounds: (1) for a declaration that the liquidated damages cap set forth in Clause 28 of the time charter-party dated December 3, 2020, bearing Charter-Party Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party"), executed between Defendants and Plaintiff Northwind Maritime Corporation ("Plaintiff"), applies as a single aggregate cap of Four Million Five Hundred Thousand Dollars ($4,500,000) for the entire charter period, rather than as a per-incident or per-period cap as alleged by Plaintiff; and (2) for dismissal of Plaintiff's claim arising from the alleged route deviation to Maputo, Mozambique in September 2022 (the "Deviation Claim"), on the ground that the deviation fell within the Master's reasonable discretion under the Charter-Party and did not constitute a breach thereof; and
The Court having considered the following papers in connection with this motion:
(a) Defendants' Memorandum of Law in Support of Motion for Partial Summary Judgment, dated September 20, 2024;
(b) Defendants' Statement of Undisputed Material Facts pursuant to Commercial Division Rule 19-a, dated September 20, 2024;
(c) Declaration of Carlos Espinoza, with Exhibits A through M annexed thereto, dated September 20, 2024;
(d) Declaration of Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS (maritime engineering expert for Defendants), with Exhibits 1 through 7 annexed thereto, dated September 20, 2024;
(e) Declaration of Dr. Constance Albright of Clearwater Economics LLC (damages expert for Defendants), with Exhibits A through D annexed thereto, dated September 20, 2024;
(f) Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Partial Summary Judgment, filed by Hargrove, Delacroix & Stern LLP on behalf of Plaintiff;
(g) Plaintiff's Counter-Statement of Material Facts pursuant to Commercial Division Rule 19-a;
(h) All declarations, affidavits, and expert reports submitted by Plaintiff in opposition, including any submissions from Capt. Julian Blackmore of Blackmore Maritime Advisory Ltd. and Dr. Rajesh Anand of Pinnacle Valuation Partners LLP;
(i) Defendants' Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment; and
(j) All other papers and proceedings had herein;
and the Court having heard oral argument on this motion on _____, 2024; and upon due deliberation and consideration of all of the foregoing, it is hereby
ORDERED as follows:
I. Branch One — Liquidated Damages Cap Interpretation (Clause 28 of the Charter-Party)
Defendants' motion for partial summary judgment on the interpretation of the liquidated damages provision set forth in Clause 28 of the Charter-Party is GRANTED.
It is hereby DECLARED AND ADJUDGED that:
1.  The phrase "single continuous period of breach" as set forth in Clause 28 of the NYPE 2015 form time charter-party (as amended by the parties), executed on December 3, 2020, governs the Four Million Five Hundred Thousand Dollar ($4,500,000) cap as a single aggregate maximum for all liquidated damages recoverable under Clause 28 across the entire thirty-six (36) month charter period, which ran from January 15, 2021 through January 14, 2024. The language of Clause 28, read in its entirety and in accordance with its plain meaning, does not support the construction urged by Plaintiff that the $4,500,000 cap resets or applies independently to each separate incident or period of alleged breach.
2.  Plaintiff's claim for liquidated damages under Clause 28 of the Charter-Party is limited to Four Million Five Hundred Thousand Dollars ($4,500,000) in the aggregate for the entire charter period, and Plaintiff may not recover separate $4,500,000 caps for each of the three alleged breach periods identified in the Complaint, to wit:
(a) Incident 1: March 12 through April 2, 2022, comprising twenty-two (22) off-hire days;
(b) Incident 2: July 8 through July 29, 2022, comprising twenty-one (21) off-hire days; and
(c) Incident 3: November 15 through December 10, 2022, comprising twenty-five (25) off-hire days.
3.  Applying the mathematical formula prescribed by Clause 28 of the Charter-Party — namely, one hundred fifty percent (150%) of the aggregate off-hire days multiplied by the daily hire rate of Fourteen Thousand Seven Hundred Fifty Dollars ($14,750) — yields a liquidated damages figure of One Million Five Hundred Four Thousand Five Hundred Dollars ($1,504,500) based on the sixty-eight (68) total claimed off-hire days. Because this formula result is below the aggregate cap of $4,500,000, the cap does not operate to reduce the formula amount; however, Plaintiff's recovery of liquidated damages under Clause 28 is in any event limited to the lesser of the formula result or Four Million Five Hundred Thousand Dollars ($4,500,000). This determination is without prejudice to the parties' right to contest the number of off-hire days or the applicability of the Clause 28 formula at trial, subject to the aggregate cap declared herein.
II. Branch Two — Deviation Claim (Maputo, Mozambique — September 2022)
Defendants' motion for partial summary judgment dismissing Plaintiff's Deviation Claim is GRANTED.
It is hereby ORDERED AND ADJUDGED that:
1.  Plaintiff's claim that Defendants breached the Charter-Party by directing the M/V Aegean Fortuna (IMO No. 9847231, Liberian-flagged Supramax dry bulk carrier, 58,200 DWT) to call at the port of Maputo, Mozambique in September 2022 during a voyage from Durban, South Africa to Qingdao, People's Republic of China is hereby dismissed. The undisputed record demonstrates that the alleged deviation was within the scope of the Master's reasonable discretion under the Charter-Party and applicable principles of New York maritime law, and did not constitute a breach of Clause 5 (Trade Limits) or any other provision of the Charter-Party.
2.  Plaintiff's associated claims for demurrage and dead freight arising from the missed Qingdao laycan window of October 1 through October 5, 2022, in the amount of One Million Two Hundred Thirty Thousand Dollars ($1,230,000), to the extent such claims are predicated solely on the Deviation Claim, are hereby dismissed together with the Deviation Claim.
3.  The foregoing dismissal of the Deviation Claim and associated demurrage and dead freight claims is without prejudice to any other claims Plaintiff may have relating to damages arising from the mechanical incidents alleged in the Complaint, which claims shall continue in this action and shall not be affected by this Order.
III. Additional Provisions
All other relief requested by Defendants that is not expressly granted herein is denied.
The remaining claims and counterclaims in this action — including, without limitation, Defendants' counterclaim for One Million Six Hundred Twenty Thousand Dollars ($1,620,000) in withheld hire for the period October 1 through December 31, 2022 — shall proceed to trial or further proceedings in accordance with the schedule set by this Court and any applicable Case Management Orders.
This constitutes the decision and order of the Court.
SO ORDERED:
________________________________________
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 Telephone: (212) 555-7400 Facsimile: (212) 555-7401
By: Douglas Carmichael, Responsible Partner
Date Submitted: September 20, 2024
Opposing Counsel (to be served with a copy of this Order upon entry):
Hargrove, Delacroix & Stern LLP Attorneys for Plaintiff Northwind Maritime Corporation 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 555-3200 Facsimile: (212) 555-3201
Attention: Margaret Delacroix, Lead Partner
NORTHWIND MARITIME CORPORATION,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Index No. 655421/2023
-against- | Part 49
THALASSA SHIPPING & LOGISTICS SA and AEGEAN FORTUNA SHIPHOLDING LTD., | Motion Seq. No. 003
<!-- indent:2 -->Defendants.<!-- /indent --> | Hon. Lorraine K. Chen, J.S.C.

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

ORDER ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

SO ORDERED:

NORTHWIND MARITIME CORPORATION,

Record

Parties

Dates

Amounts