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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.)

DEFENDANTS' STATEMENT OF UNDISPUTED MATERIAL FACTS PURSUANT TO COMMERCIAL DIVISION RULE 19-a

Filed: September 20, 2024

Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") (collectively, "Defendants"), by and through their attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006 (Douglas Carmichael, Responsible Partner; Carlos Espinoza, Lead Associate), hereby submit this Statement of Undisputed Material Facts pursuant to Commercial Division Rule 19-a of the Rules of the Justices of the Commercial Division in support of Defendants' Motion for Partial Summary Judgment.

PRELIMINARY STATEMENT

This Statement of Undisputed Material Facts is submitted pursuant to Commercial Division Rule 19-a in support of Defendants' Motion for Partial Summary Judgment, which seeks relief on two discrete issues. First, Defendants move for summary judgment on the proper interpretation of the liquidated damages cap set forth in Clause 28 of the time charter-party dated December 3, 2020 (the "Charter-Party"), specifically that the provision establishes a single aggregate cap of $4,500,000 for the entire charter period, rather than a per-incident cap as Plaintiff Northwind Maritime Corporation ("Northwind" or "Plaintiff") contends. Second, Defendants move for summary judgment dismissing Plaintiff's deviation claim arising from the M/V Aegean Fortuna's September 2022 call at Maputo, Mozambique.

This Statement is submitted together with and should be read in conjunction with the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment, the Declaration of Carlos Espinoza, Esq. (with Exhibits A through P), the Declaration of Dr. Henrik Sørensen, and the Declaration of Dr. Constance Albright, all filed on September 20, 2024.

Each numbered statement of fact set forth below is supported by citation to admissible evidence in the record, including deposition transcripts, documentary exhibits produced in discovery, corporate and regulatory records, and expert reports and declarations. Where a deposition transcript is cited, the specific page and line references are set forth. Where an exhibit to the Espinoza Declaration is cited, the exhibit letter is identified.

I. THE PARTIES

1. Defendant Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") is a Société Anonyme (SA) organized and existing under the laws of the Hellenic Republic (Greece), with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece. TSL is an international shipping, chartering, and maritime logistics company that owns and operates a diversified fleet of approximately 34 vessels, including dry bulk carriers, tankers, and container vessels. TSL has been in continuous operation since 1997 and maintains commercial offices in Piraeus, London, Singapore, and Houston. (Espinoza Decl. Ex. A (certified copies of TSL corporate records, including the company's Articles of Association and current General Commercial Registry extract); Deposition of Alexandros Stavridis (April 22, 2024) ("Stavridis Dep.") at 14:8–16:3.)

2. Defendant Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") is a limited liability company incorporated under the laws of the Republic of Liberia, bearing Liberian Registration No. LR-C-20167845, with a registered address at 80 Broad Street, Monrovia, Liberia. Aegean Fortuna Shipholding is a wholly owned subsidiary of TSL and was formed as a single-purpose entity for the purpose of holding title to and operating the M/V Aegean Fortuna. Aegean Fortuna Shipholding is the registered owner of the M/V Aegean Fortuna as reflected in the vessel's Liberian Certificate of Registry. (Espinoza Decl. Ex. B (Liberian corporate records for Aegean Fortuna Shipholding Ltd., including Certificate of Incorporation, Certificate of Good Standing, and share register reflecting TSL's 100% ownership).)

3. Plaintiff Northwind Maritime Corporation ("Northwind") is a corporation incorporated under the laws of the Republic of the marshall Islands, marshall Islands Entity No. MI-94827, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902. Northwind is engaged in the business of commodity trading, shipping logistics, and bulk cargo operations, and regularly charters vessels for the carriage of dry bulk commodities, including iron ore, coal, grain, and bauxite. Northwind's Chief Executive Officer, Viktor Lindgren, testified that the company charters between 15 and 25 vessels at any given time. (Complaint ¶¶ 1–3; Deposition of Viktor Lindgren (May 30, 2024) ("Lindgren Dep.") at 11:4–13:19.)

II. THE VESSEL

4. The M/V Aegean Fortuna is a Supramax dry bulk carrier bearing International Maritime Organization ("IMO") Number 9847231, flagged in the Republic of Liberia, with a deadweight tonnage of 58,200 metric tons, a length overall of 199.9 meters, a beam of 32.26 meters, and five cargo holds with hydraulic folding-type hatch covers. The vessel is equipped with four deck-mounted cranes, each with a safe working load of 30 metric tons, enabling self-loading and self-discharge capability. The M/V Aegean Fortuna was constructed in 2016 by Dalian Prosperity Shipyard Co. at its facility in Dalian, People's Republic of China, under Hull No. DPS-2014-117, and was delivered to Aegean Fortuna Shipholding on August 12, 2016. (Espinoza Decl. Ex. C (vessel registration certificate issued by the Republic of Liberia Maritime Authority; classification records and certificates from the Global Maritime Classification Bureau ("GMCB"); builder's delivery certificate from Dalian Prosperity Shipyard Co.).)

5. The M/V Aegean Fortuna was classified by the Global Maritime Classification Bureau ("GMCB") under class notation +100A1, Bulk Carrier, ESP, and maintained its classification in good standing without suspension or withdrawal throughout the entire charter period from January 15, 2021 through and including January 14, 2024. All required annual, intermediate, and special surveys were completed within the time windows prescribed by GMCB rules. (Espinoza Decl. Ex. C (GMCB classification status history and survey completion records); Declaration of Dr. Henrik Sørensen dated September 20, 2024 ("Sørensen Decl.") ¶¶ 5–8.)

III. THE CHARTER-PARTY

6. On December 3, 2020, Thalassa, acting in its capacity as Owner and disponent owner, and Northwind, acting in its capacity as Charterer, executed a time charter-party for the M/V Aegean Fortuna on the New York Produce Exchange Time Charter form, 2015 revision ("NYPE 2015"), as amended by the parties through negotiated riders, addenda, and additional clauses (the "Charter-Party"). The Charter-Party bears Reference No. NW-TSL-CP-2020-1203 and was executed by Alexandros Stavridis on behalf of Thalassa and Viktor Lindgren on behalf of Northwind. (Espinoza Decl. Ex. D (Charter-Party, consisting of the NYPE 2015 printed form, Rider Clauses 25 through 52, Addendum A (Trading Limits), Addendum B (Bunker Specifications), and Side Letter dated December 3, 2020 regarding vessel description and speed/consumption warranty).)

7. The Charter-Party provided for a charter period of 36 months, commencing on the date of delivery of the vessel to the Charterer, which occurred on January 15, 2021 at the port of Singapore, and expiring on January 14, 2024. The daily hire rate was fixed at $14,750 per day, payable semi-monthly in advance in United States Dollars by wire transfer to TSL's designated account at Tidewater Securities, Piraeus Branch. Over the approximately 1,096-day charter period, the total charter value was approximately $16,166,000 ($14,750 multiplied by approximately 1,096 days). (Charter-Party Cl. 1; Espinoza Decl. Ex. D.)

8. The Charter-Party is governed by the laws of the State of New York. Clause 46 of the Charter-Party provides for arbitration of disputes in New York. However, pursuant to Clause 46(b) addendum, negotiated and agreed to by the parties, either party may, in its sole discretion, elect to litigate disputes arising under or in connection with the Charter-Party in the Supreme Court of the State of New York, New York County, as an alternative to arbitration. Northwind elected to commence this action in this Court rather than proceeding to arbitration. (Charter-Party Cl. 46, Cl. 46(b) addendum; Espinoza Decl. Ex. D.)

IV. CLAUSE 28 — THE LIQUIDATED DAMAGES PROVISION

9. Clause 28 of the Charter-Party, entitled "Liquidated Damages for Maintenance/Seaworthiness Breach," provides in its entirety as follows:

"Upon Owner's material breach of maintenance and seaworthiness obligations (Clauses 2 and 6), Charterer is entitled to liquidated damages equal to 150% of the aggregate off-hire days multiplied by the daily hire rate, subject to a cap of $4,500,000 for any single continuous period of breach. Such liquidated damages shall constitute Charterer's sole and exclusive remedy for Owner's breach of Clauses 2 and 6, and Charterer hereby waives any right to claim actual, consequential, incidental, or punitive damages arising from such breach, except as otherwise provided in Clause 29 (Cargo Claims)."

(Charter-Party Cl. 28; Espinoza Decl. Ex. D (full text of Clause 28).)

10. The phrase "any single continuous period of breach" appears exactly once in Clause 28 of the Charter-Party. This phrase is not defined in the Definitions section (Clause 1) or in any other provision of the Charter-Party, including its riders, addenda, or side letters. No other clause of the Charter-Party uses or cross-references the phrase "single continuous period of breach." (Charter-Party (entire document, including all addenda, riders, and side letter); Espinoza Decl. Ex. D.)

11. The Charter-Party does not contain any other provision that modifies, supplements, limits, or defines the term "single continuous period of breach" as used in Clause 28. No rider, addendum, side letter, or other contemporaneous writing between the parties addresses whether the $4,500,000 cap set forth in Clause 28 is intended to apply on a per-incident basis or, alternatively, as a single aggregate cap applicable once over the entire 36-month charter period. The Charter-Party is silent on this question. (Espinoza Decl. Ex. D (entire Charter-Party with all addenda, riders, and side letter); Stavridis Dep. at 78:14–79:22; Lindgren Dep. at 102:6–103:11.)

12. The Charter-Party was negotiated between sophisticated commercial parties — TSL, an international shipowner operating a fleet of 34 vessels, and Northwind, a commodity trader and shipping logistics company regularly chartering 15 to 25 vessels — each of which was represented by experienced maritime counsel throughout the negotiation process. The negotiations spanned a period of approximately six weeks, from late October 2020 through execution on December 3, 2020, and involved multiple rounds of mark-ups, counterproposals, and telephone conferences between the parties and their respective counsel. (Stavridis Dep. at 22:9–25:18; Lindgren Dep. at 30:2–34:15.)

13. During the negotiation of the Charter-Party, a review of the complete negotiation correspondence between the parties — including all emails, marked-up drafts, and memoranda exchanged between late October 2020 and execution on December 3, 2020 — reveals that neither Thalassa nor Northwind proposed, discussed, or introduced language specifying that the $4,500,000 cap in Clause 28 would apply on a per-incident basis. No draft of Clause 28 circulated during the negotiations contained per-incident or per-occurrence language. The final text of Clause 28 as executed is substantively identical to the initial draft proposed by Northwind's counsel on October 28, 2020, with only minor stylistic edits. (Espinoza Decl. Ex. E (complete negotiation correspondence between the parties, October 22, 2020 through December 2, 2020, including all mark-ups of Clause 28); Stavridis Dep. at 68:3–72:14; Lindgren Dep. at 95:8–99:20.)

14. No prior dealings between Thalassa and Northwind involved a charter-party with a similar or analogous liquidated damages clause. The Charter-Party for the M/V Aegean Fortuna was the first and only charter-party entered into between the parties. Prior to executing the Charter-Party, the parties had no prior contractual relationship, no course of dealing, and no established course of performance with respect to the interpretation of liquidated damages provisions. (Stavridis Dep. at 18:4–19:12; Lindgren Dep. at 26:15–28:7.)

V. NORTHWIND'S APPLICATION OF CLAUSE 28

15. In its Complaint, Northwind claims total off-hire of 68 days arising from three separate mechanical incidents that occurred during 2022, specifically: (a) 22 days of off-hire from March 12, 2022 through April 2, 2022, attributable to a turbocharger failure (hereinafter "Incident 1"); (b) 21 days of off-hire from July 8, 2022 through July 29, 2022, attributable to a ballast water treatment system malfunction and auxiliary boiler failure (hereinafter "Incident 2"); and (c) 25 days of off-hire from November 15, 2022 through December 10, 2022, attributable to a main engine cylinder liner failure (hereinafter "Incident 3"). (Complaint ¶¶ 28–42.)

16. Northwind contends that each of the three mechanical incidents constitutes a separate and independent "single continuous period of breach" under Clause 28 of the Charter-Party, such that the $4,500,000 liquidated damages cap applies independently and separately to each of the three incidents. On this basis, Northwind claims aggregate liquidated damages of $4,500,000 — a figure that Northwind asserts represents the combined total of liquidated damages capped at $4,500,000 per incident across three incidents. (Complaint ¶¶ 45–48.)

17. However, applying the Clause 28 liquidated damages formula to the 68 total off-hire days on a combined, aggregate basis — that is, treating the 68 days as a single calculation — yields total liquidated damages of $1,504,500 (68 days × $14,750 per day × 150% = $1,504,500). This amount is well below the single aggregate $4,500,000 cap. Thus, if the cap is construed as a single aggregate cap for the entire charter period, Northwind's liquidated damages recovery would be limited to $1,504,500, which represents the actual formula output. (Declaration of Dr. Constance Albright dated September 20, 2024 ("Albright Decl.") ¶¶ 12–15; Charter-Party Cl. 28.)

18. Northwind does not claim — nor could it, based on the undisputed facts — that any individual incident, standing alone, would produce liquidated damages exceeding, or even approaching, the $4,500,000 cap. The per-incident liquidated damages calculations under the Clause 28 formula are as follows:

• Incident 1 (Turbocharger Failure): 22 days × $14,750/day × 150% = $487,050

• Incident 2 (BWTS / Auxiliary Boiler Failure): 21 days × $14,750/day × 150% = $464,625

• Incident 3 (Cylinder Liner Failure): 25 days × $14,750/day × 150% = $553,125

• Combined Total: $1,504,800 (minor rounding difference from Fact 17 above attributable to day-count methodology)

None of these individual amounts approaches the $4,500,000 cap, and the combined total remains well below it. The per-incident cap theory therefore provides Northwind with no additional recovery beyond the formula calculation. (Complaint ¶¶ 45–48; Albright Decl. ¶¶ 16–18.)

19. Despite the fact that the per-incident calculations yield only $1,504,500 (or $1,504,800 depending on rounding), Northwind's Complaint seeks $4,500,000 in liquidated damages. Northwind's theory appears to rest on the assertion that three separate caps — totaling a theoretical $13,500,000 in aggregate cap room ($4,500,000 × 3 incidents) — should apply, and that Northwind is entitled to invoke the maximum of the first cap ($4,500,000) by combining the calculated damages across incidents in a manner that exceeds what any single incident would produce. Northwind confirmed this methodology in its responses to TSL's First Set of Interrogatories, specifically Interrogatory No. 7, where Northwind stated that the $4,500,000 figure represents the "aggregate liquidated damages properly due under Clause 28 when each breach period is assessed independently and the applicable cap is applied to each." (Complaint ¶ 48; Northwind's Responses to TSL's First Set of Interrogatories, Interrogatory No. 7 (served March 15, 2024).)

VI. CLAUSE 6 — MAINTENANCE AND SEAWORTHINESS OBLIGATIONS

20. Clause 6 of the Charter-Party, entitled "Maintenance and Repairs," provides in relevant part as follows:

"Owners shall maintain the vessel in a thoroughly efficient state of hull, machinery, and equipment throughout the charter period, including compliance with all classification society requirements and all applicable international, flag state, and port state regulations, at Owners' time and expense. Owners shall procure that all surveys, inspections, and certifications required by the vessel's classification society and flag state are completed within the time periods prescribed and that the vessel maintains its class notation without condition of class, recommendation, or memorandum throughout the charter period."

(Charter-Party Cl. 6; Espinoza Decl. Ex. D.)

21. Clause 2 of the Charter-Party contains the Owner's warranty that the M/V Aegean Fortuna was, at the time of delivery to Northwind on January 15, 2021 at the port of Singapore, in a seaworthy condition, tight, staunch, and strong, and in every way fitted for the service contemplated under the Charter-Party, with her machinery, boilers, and equipment in a good and efficient working order and condition. (Charter-Party Cl. 2; Espinoza Decl. Ex. D.)

VII. THE THREE MECHANICAL INCIDENTS

A. Incident 1: Turbocharger Failure (March 12–April 2, 2022)

22. On March 12, 2022, while the M/V Aegean Fortuna was en route from Paradip, India to Mombasa, Kenya, transiting the Indian Ocean at approximately latitude 6°N, longitude 77°E, the vessel's main engine turbocharger — a Ashgrove Group model TCA77 — experienced a catastrophic bearing failure, causing the vessel to lose approximately 60% of its engine power and rendering the vessel unable to maintain her warranted service speed of 14.5 knots. The Master, Capt. Nikolaos Giannopoulos, immediately reduced engine speed to approximately 6 knots as a precautionary measure and reported the casualty to TSL's technical management department. (Espinoza Decl. Ex. F (Master's casualty report dated March 12, 2022, with supporting engine room log extracts); Deposition of Capt. Nikolaos Giannopoulos (May 10, 2024) ("Giannopoulos Dep.") at 42:8–47:15.)

23. Following the turbocharger failure, the M/V Aegean Fortuna diverted to Colombo, Sri Lanka, the nearest port with adequate repair facilities, where she arrived on March 15, 2022. Repairs were performed by Fenmore Partners LLC under the supervision of GMCB surveyors. The turbocharger bearing assembly was replaced, and the vessel was released from repairs and returned to service on April 2, 2022. The vessel was off-hire for a total of 22 days, from March 12, 2022 through April 2, 2022. Northwind issued an off-hire notice to TSL on March 13, 2022, which TSL acknowledged. (Espinoza Decl. Ex. G (off-hire notice dated March 13, 2022; TSL acknowledgment dated March 14, 2022; Fenmore Partners LLC repair completion certificate dated April 2, 2022); Deposition of Petros Vlahos (June 28, 2024) ("Vlahos Dep.") at 28:3–34:17.)

24. Dr. Henrik Sørensen, TSL's retained maritime engineering expert, a naval architect and marine engineer with over 30 years of experience and former Chief Surveyor of the Danish Maritime Authority, conducted a detailed root cause analysis of the turbocharger failure. Dr. Sørensen opined, to a reasonable degree of engineering certainty, that the failure was caused by a latent manufacturing defect in the turbocharger's bearing assembly — specifically, a subsurface inclusion in the bearing's white-metal lining — that was not detectable through the Owner's routine maintenance program, visual inspections, or the GMCB classification surveys conducted prior to the failure. Dr. Sørensen further opined that the defect would not have been revealed by any commercially reasonable inspection methodology available to the Owner, including vibration analysis and oil debris monitoring, which were regularly performed and showed normal parameters prior to the failure. (Sørensen Decl. ¶¶ 12–22; Expert Report of Dr. Henrik Sørensen dated August 5, 2024 ("Sørensen Report") at 14–28.)

25. The GMCB classification survey records for the M/V Aegean Fortuna confirm that the vessel passed all annual and intermediate surveys of the main engine and turbocharger assembly without any notation of defect, condition of class, recommendation, or memorandum at any time prior to the March 2022 failure. The most recent GMCB annual survey prior to the failure was conducted on November 8, 2021 in Singapore, during which the turbocharger was inspected and found to be in satisfactory condition. (Espinoza Decl. Ex. H (GMCB survey records for the M/V Aegean Fortuna, 2016–2024, including annual survey report dated November 8, 2021); Sørensen Decl. ¶¶ 15–17.)

B. Incident 2: BWTS / Auxiliary Boiler Failure (July 8–July 29, 2022)

26. On July 8, 2022, while the M/V Aegean Fortuna was alongside at the port of Richards Bay, South Africa, loading a cargo of approximately 52,000 metric tons of iron ore for discharge at Qingdao, China, the vessel's ballast water treatment system ("BWTS") — a BallastMaster ultraviolet treatment system manufactured by Ostrander Corporation — malfunctioned due to severe clogging of its pre-filtration unit. Simultaneously, the vessel's auxiliary boiler, which provides steam for cargo hold ventilation and fuel oil heating, failed due to a cracked fire tube. These concurrent failures rendered the vessel unable to complete cargo loading operations safely and in compliance with the International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM Convention). The vessel was placed off-hire for 21 days, from July 8, 2022 through July 29, 2022. (Espinoza Decl. Ex. I (Chief Engineer's incident report dated July 9, 2022, with supporting machinery log extracts and BWTS alarm printouts); Vlahos Dep. at 52:11–63:8.)

27. Chief Engineer Petros Vlahos, who served as the M/V Aegean Fortuna's Chief Engineer throughout the charter period, testified that the BWTS malfunction was caused by contaminated ballast water loaded at the immediately preceding port of call — specifically, ballast water taken on at the outer anchorage of Maputo, Mozambique in late June 2022 — which contained abnormally high levels of sediment, silt, and particulate matter that overwhelmed and clogged the BWTS filtration system. Mr. Vlahos testified that the contaminated ballast water was loaded under the direction and instruction of Northwind's local agents, who designated the ballast loading location and quantity. (Vlahos Dep. at 64:2–72:19; Espinoza Decl. Ex. J (independent ballast water quality analysis report prepared by SGS Maritime Services, confirming elevated sediment and total suspended solids levels in samples taken from the vessel's ballast tanks on July 9, 2022).)

28. Northwind's agents — specifically, its local port agents at Maputo, acting on instructions from Northwind's operations department in Stamford, Connecticut — directed the loading of ballast water at the outer anchorage of Maputo in late June 2022 and specified the quantity of ballast to be taken on. The Master, Capt. Giannopoulos, complied with these instructions. Email correspondence between Northwind's operations department and the vessel Master, dated June 25–27, 2022, confirms that Northwind's operations manager, Sandra Chow, directed the Master to "proceed with ballast loading at Maputo outer anchorage as per agent's instructions" and specified approximately 18,000 metric tons of ballast water. (Espinoza Decl. Ex. K (email correspondence chain between Sandra Chow (Northwind) and Capt. Giannopoulos, June 25–27, 2022); Giannopoulos Dep. at 88:14–93:6.)

29. During the 21-day period of Incident 2, while the M/V Aegean Fortuna remained alongside at Richards Bay awaiting completion of repairs, the iron ore cargo already loaded on board the vessel was exposed to moisture ingress through the vessel's cargo hold ventilation system, which was inoperative due to the auxiliary boiler failure. This moisture exposure resulted in oxidation (rusting) of a significant portion of the iron ore cargo. Northwind claims $3,420,000 in cargo damage arising from this oxidation, representing the alleged diminution in value of the affected cargo. (Complaint ¶¶ 35–38; Northwind's Responses to TSL's First Set of Interrogatories, Interrogatory No. 4 (served March 15, 2024).)

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

30. On November 15, 2022, the M/V Aegean Fortuna, while transiting the North Sea en route from Murmansk, Russia to Rotterdam, Netherlands, experienced a failure of the main engine's No. 4 cylinder liner, which cracked circumferentially at the upper collar, resulting in cooling water ingress into the cylinder and necessitating immediate shutdown of the affected cylinder. The vessel proceeded to Rotterdam at reduced speed on the remaining five cylinders and was drydocked at Keppel Verolme Shipyard in Rotterdam-Botlek for replacement of the cylinder liner and associated components. The vessel was off-hire for 25 days, from November 15, 2022 through December 10, 2022. (Espinoza Decl. Ex. L (Keppel Verolme drydock report and repair specification dated December 8, 2022; Master's casualty report dated November 15, 2022); Vlahos Dep. at 105:3–116:22.)

31. TSL concedes, for purposes of this motion and generally, that the cylinder liner failure in Incident 3 constituted a breach of the Owner's maintenance obligations under Clause 6 of the Charter-Party, in that the No. 4 cylinder liner had accumulated excessive operational hours beyond the manufacturer's recommended replacement interval, and the failure was attributable to wear and fatigue that should have been addressed during the vessel's scheduled maintenance. TSL disputes, however, the quantum of damages attributable to this incident, including the duration of off-hire (TSL contends that efficient repairs should have been completed within 18 days, not 25) and any consequential damages claimed by Northwind. (Answer ¶ 41; Stavridis Dep. at 125:8–129:14.)

32. The total off-hire days claimed by Northwind across all three mechanical incidents is 68 days, calculated as follows: 22 days (Incident 1, March 12–April 2, 2022) plus 21 days (Incident 2, July 8–July 29, 2022) plus 25 days (Incident 3, November 15–December 10, 2022) equals 68 days. (Complaint ¶ 42.)

VIII. THE ALLEGED MAPUTO DEVIATION (SEPTEMBER 2022)

A. The Agreed Voyage

33. Clause 5 of the Charter-Party, entitled "Trading Limits," permits worldwide trading of the M/V Aegean Fortuna, subject to three categories of exclusions: (a) ports and territories subject to sanctions administered by the United States Department of the Treasury, Office of Foreign Assets Control ("OFAC"); (b) ports and waters designated as war-risk zones in the London Joint War Committee Hull War Risks Listed Areas (as updated from time to time); and (c) ice-bound waters north of latitude 68°N during the period November 1 through April 30 of each year. Subject to these exclusions, the Charterer was entitled to direct the vessel to trade to any safe port or anchorage worldwide. (Charter-Party Cl. 5; Espinoza Decl. Ex. D.)

34. In September 2022, the M/V Aegean Fortuna was performing a ballast voyage from Durban, South Africa to Qingdao, China under Northwind's voyage orders dated September 8, 2022. The voyage orders instructed the vessel to proceed from Durban via the Mozambique Channel and the Indian Ocean to Qingdao, where the vessel was expected to arrive within a laycan (laydays/cancelling) window of October 1–5, 2022, in order to load a cargo of approximately 55,000 metric tons of alumina for Northwind's account. (Espinoza Decl. Ex. M (Northwind voyage orders dated September 8, 2022; email from Sandra Chow to Capt. Giannopoulos dated September 8, 2022 confirming Qingdao laycan); Lindgren Dep. at 143:5–147:20.)

B. The Maputo Call

35. On or about September 14, 2022, the M/V Aegean Fortuna called at Maputo, Mozambique during the Durban-to-Qingdao ballast voyage. The vessel arrived at Maputo outer anchorage on September 14, 2022 and departed on September 18, 2022, adding approximately 4 days to the total voyage duration as compared to the estimated direct passage time from Durban to Qingdao. (Espinoza Decl. Ex. N (vessel Automatic Identification System ("AIS") position data and port call records from Beaumont Industries the Maputo call; vessel deck logbook extracts for September 14–18, 2022); Giannopoulos Dep. at 128:11–134:22.)

36. Capt. Nikolaos Giannopoulos, the Master of the M/V Aegean Fortuna, testified that the Maputo call was necessitated by adverse weather conditions and routing considerations in the Mozambique Channel. Specifically, Capt. Giannopoulos testified that tropical weather systems — including a developing tropical disturbance that was subsequently designated by the South-West Indian Ocean Tropical Cyclone Warning Centre as Tropical Depression TD-09 — were present in the central and northern Mozambique Channel during the period September 12–16, 2022, generating gale-force winds, heavy seas, and reduced visibility that made direct northward passage through the Channel impractical and unsafe for the vessel and crew at the time. Capt. Giannopoulos further testified that he consulted with the vessel's contracted weather routing service, Brightmoor Partners LLC, which advised the vessel to shelter at Maputo until the weather system passed. (Giannopoulos Dep. at 135:3–148:17; Espinoza Decl. Ex. O (weather routing advisories issued by Brightmoor Partners LLC to the M/V Aegean Fortuna dated September 12–14, 2022, recommending shelter at Maputo).)

37. Independent meteorological data and weather records from September 2022 confirm the presence of adverse weather systems in the Mozambique Channel during the period of the Maputo call. Specifically, satellite imagery and synoptic weather charts from the South African Weather Service ("SAWS") and the Météo-France Regional Specialized Meteorological Centre in La Réunion confirm the development of Tropical Depression TD-09 in the central Mozambique Channel between September 12 and September 17, 2022, with associated sustained winds of 30–40 knots, gusting to 55 knots, and significant wave heights of 3.5–5.0 meters. Dr. Sørensen reviewed these meteorological records and opined that the weather conditions were sufficiently adverse to justify the Master's decision to seek shelter at Maputo. (Espinoza Decl. Ex. O (meteorological data from SAWS and Météo-France; Weathernews routing advisories; satellite imagery); Sørensen Decl. ¶¶ 35–40.)

38. Maputo, Mozambique is not within any of the excluded trading areas listed in Clause 5 of the Charter-Party. Specifically, Maputo is not located in a country or territory subject to OFAC sanctions; Maputo is not within any area designated by the London Joint War Committee as a Hull War Risks Listed Area; and Maputo is not within ice-bound waters north of latitude 68°N. Accordingly, the Maputo call did not violate the trading limits set forth in the Charter-Party. (Charter-Party Cl. 5; Espinoza Decl. Ex. D.)

39. Northwind alleges that the Maputo call was not weather-related but was instead directed by TSL for the purpose of loading TSL's own cargo aboard the M/V Aegean Fortuna, constituting an unauthorized deviation from the Charterer's voyage orders and a breach of the Owner's obligations under the Charter-Party. Northwind claims that the 4-day delay caused by the Maputo call resulted in the vessel missing the Qingdao laycan window of October 1–5, 2022, which in turn caused Northwind to incur $1,230,000 in demurrage charges and dead freight costs payable to the Qingdao cargo interests. (Complaint ¶¶ 43–47.)

40. TSL denies Northwind's deviation allegations and maintains that the Master exercised reasonable navigational discretion in calling at Maputo due to weather and routing conditions in the Mozambique Channel, that no TSL cargo was loaded at Maputo during the September 2022 call, and that the call was squarely within the Master's authority under the Charter-Party and applicable maritime law. TSL further contends that even if the vessel had not called at Maputo, the weather conditions in the Mozambique Channel would have caused a delay of approximately 2–3 days in any event, such that the vessel would not have arrived within the Qingdao laycan window regardless. (Answer ¶¶ 45–48.)

C. The Master's Authority

41. Under the NYPE 2015 form, the Master of the vessel retains authority and responsibility for navigational decisions affecting the safety of the vessel, her crew, and cargo, including decisions regarding routing, port calls for shelter, bunkering, and provisioning, notwithstanding that the Charterer has the right to direct the employment and agency of the vessel. Clause 8 of the Charter-Party specifically provides that the Master shall be under the orders and direction of the Charterer "as regards employment and agency," but that the Owner retains responsibility for the "navigation and management" of the vessel. (Charter-Party Cl. 8 (NYPE 2015 standard terms); Espinoza Decl. Ex. D.)

42. Capt. Nikolaos Giannopoulos has served as a licensed Master mariner for over 20 years, holding a Master's Certificate of Competency (Class I, Unlimited) issued by the Hellenic Republic Ministry of Mercantile Marine. He held the command of the M/V Aegean Fortuna continuously from the vessel's delivery to Northwind on January 15, 2021 through the expiration of the charter period on January 14, 2024. Capt. Giannopoulos has commanded Supramax and Panamax dry bulk carriers on worldwide trading routes for TSL since 2008 and has logged in excess of 250,000 nautical miles in command. (Giannopoulos Dep. at 8:4–12:18.)

IX. NORTHWIND'S CLAIMED DAMAGES

43. Northwind's Complaint seeks total damages of $18,300,000, comprised of the following categories:

(Complaint ¶¶ 49–62.)

44. Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne Bulk Carriers Ltd. ("Eastbourne"), a United Kingdom-based dry bulk operator, pursuant to a back-to-back sub-charter dated January 10, 2021, at a daily hire rate of $17,200 per day for the same 36-month period as the head charter. This sub-charter yielded Northwind a daily profit of $2,450 per day ($17,200 minus $14,750). Northwind claims loss of sub-charter profit for the 68 days of off-hire at $2,450 per day, totaling $166,600. (Deposition of Sandra Chow (June 14, 2024) ("Chow Dep.") at 22:6–28:14; Espinoza Decl. Ex. P (Eastbourne sub-charter agreement dated January 10, 2021, produced by Northwind in discovery under Bates Nos. NW-00004215 through NW-00004248).)

X. TSL'S COUNTERCLAIM

45. TSL filed a counterclaim on November 17, 2023, seeking recovery of $1,620,000 in unpaid hire for the period October 1, 2022 through December 31, 2022 — a period of approximately 92 days (which, at the daily hire rate of $14,750 per day, equals approximately $1,357,000; however, TSL's counterclaim also includes $263,000 in late payment interest calculated at the contractual rate of 6% per annum, bringing the total counterclaim to $1,620,000). Northwind withheld these hire payments citing purported off-hire under Clause 11 of the Charter-Party and asserting equitable setoff rights for its affirmative claims. (Answer and Counterclaim ¶¶ 55–62.)

46. Northwind's position, as set forth in its Reply to the Counterclaim, is that the withholding of hire was proper under Clause 11 (the off-hire provision) of the Charter-Party and under principles of equitable setoff, and that Northwind was entitled to deduct from hire payments the amounts it claims as off-hire and damages arising from the three mechanical incidents and the alleged Maputo deviation. (Northwind's Reply to Counterclaim ¶¶ 3–8 (filed December 15, 2023).)

XI. PRIOR PROCEEDINGS IN THIS ACTION

47. Northwind filed the Complaint commencing this action on October 2, 2023 in the Supreme Court of the State of New York, New York County, Commercial Division, and the action was assigned Index No. 655421/2023. The case was assigned to the Honorable Lorraine K. Chen, Justice of the Supreme Court, Part 49 of the Commercial Division. (Complaint (filed October 2, 2023, NYSCEF Doc. No. 1).)

48. TSL filed its Verified Answer, Affirmative Defenses, and Counterclaim on November 17, 2023. TSL's Answer asserted thirteen affirmative defenses, including, inter alia, failure to state a cause of action, comparative fault, contractual limitations on liability, and the doctrines of avoidable consequences and mitigation of damages. (Answer and Counterclaim (filed November 17, 2023, NYSCEF Doc. No. 8).)

49. On December 15, 2023, TSL moved to dismiss Counts III (seeking to recover, as charter-party damages, amounts paid or payable by Northwind to third-party shippers for cargo claims) and V (unjust enrichment) of Northwind's 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 (unjust enrichment) in its entirety on the grounds that it was duplicative of Northwind's breach of contract claims, and narrowing Count III by limiting Northwind's recovery to cargo claims for which Northwind demonstrated that it had already paid or settled the underlying third-party claims and could establish a causal nexus between the Owner's breach and the cargo loss. (Decision and Order dated March 8, 2024, NYSCEF Doc. No. 22.)

50. Fact discovery was conducted from January 2024 through August 2024, pursuant to a discovery schedule set by Preliminary Conference Order dated January 12, 2024. The parties exchanged approximately 47,000 pages of documents and took depositions of the following witnesses:

• Alexandros Stavridis, Managing Director, TSL (April 22, 2024);

• Capt. Nikolaos Giannopoulos, Master, M/V Aegean Fortuna (May 10, 2024);

• Viktor Lindgren, CEO, Northwind (May 30, 2024);

• Sandra Chow, Vice President of Operations, Northwind (June 14, 2024);

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

• Three additional fact witnesses (July 2024), including Northwind's in-house counsel, TSL's technical superintendent, and a representative of the vessel's P&I Club.

(Deposition transcripts filed herewith as Espinoza Decl. Exhibits Q through W.)

51. Expert reports were served in accordance with the Court's scheduling order. TSL served its initial expert reports on August 5, 2024, consisting of the Expert Report of Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS (maritime engineering) and the Expert Report of Dr. Constance Albright of Clearwater Economics LLC (damages and financial analysis). Northwind served its initial expert reports on August 19, 2024, consisting of the Expert Report of Capt. Julian Blackmore (Ret.) of Blackmore Maritime Advisory Ltd. (maritime operations and navigational practice) and the Expert Report of Dr. Rajesh Anand of Pinnacle Valuation Partners LLP (damages and financial analysis). Rebuttal expert reports were exchanged by both parties on September 9, 2024. (Expert reports filed herewith as exhibits to the Espinoza Declaration and as stand-alone submissions.)

XII. EXPERT OPINIONS RELEVANT TO THE PENDING MOTION

A. TSL's Damages Expert — Dr. Constance Albright

52. Dr. Constance Albright, Ph.D. in Economics (Columbia University), CFA, Managing Director of Clearwater Economics LLC, with over 18 years of experience providing expert economic analysis in commercial litigation and maritime disputes, opined that Clause 28's liquidated damages cap of $4,500,000 for "any single continuous period of breach" is properly construed as a single aggregate cap applicable to the entire charter period, rather than as a per-incident cap. Dr. Albright further opined that, under this construction, Northwind's maximum liquidated damages recovery is limited to $1,504,500 (68 days × $14,750 × 150%), which is the actual output of the Clause 28 formula applied to all claimed off-hire days on a combined basis. This amount falls well below the $4,500,000 cap. Dr. Albright's analysis included a review of the Charter-Party, the parties' damages calculations, industry norms for liquidated damages provisions in time charters, and the economic implications of the competing cap interpretations. (Albright Decl. ¶¶ 10–22; Expert Report of Dr. Constance Albright dated August 5, 2024 ("Albright Report") at 8–24.)

B. TSL's Maritime Engineering Expert — Dr. Henrik Sørensen

53. Dr. Henrik Sørensen, Ph.D. in Naval Architecture and Marine Engineering (Technical University of Denmark), former Chief Surveyor of the Danish Maritime Authority, and Principal of Nordic Maritime Consulting Group ApS, Copenhagen, with over 30 years of experience in marine engineering, vessel classification, and maritime casualty investigation, opined that the September 2022 Maputo call was consistent with reasonable and prudent navigational practice given the weather and routing conditions in the Mozambique Channel at the time. Dr. Sørensen reviewed the meteorological data, satellite imagery, Weathernews routing advisories, the vessel's deck and engine room logbooks, AIS position data, and the deposition testimony of Capt. Giannopoulos. Based on his analysis, Dr. Sørensen concluded that the Master's decision to shelter at Maputo was a reasonable exercise of navigational discretion in the face of Tropical Depression TD-09 and associated adverse sea and weather conditions, and that the decision was consistent with the duty of care owed by the Master to the vessel, crew, and cargo under both the Charter-Party and applicable international maritime conventions. (Sørensen Decl. ¶¶ 35–45; Expert Report of Dr. Henrik Sørensen dated August 5, 2024 ("Sørensen Report") at 42–58.)

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

By: ________

Douglas Carmichael (Partner) Carlos Espinoza (Lead Associate)

One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 506-7800 Facsimile: (212) 506-7801 dcarmichael@calderwoodharkness.com cespinoza@calderwoodharkness.com

Dated: September 20, 2024

CERTIFICATE OF SERVICE

I, Carlos Espinoza, an attorney duly admitted to practice before the courts of the State of New York, hereby certify that on September 20, 2024, I caused a true and correct copy of the foregoing Defendants' Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a, together with all accompanying exhibits and declarations, to be served upon counsel for Plaintiff Northwind Maritime Corporation by filing and service through the New York State Courts Electronic Filing System ("NYSCEF") and by electronic mail transmission to the following:

Margaret Delacroix, Esq. Jason Trumbull, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 891-4500 mdelacroix@hdslaw.com jtrumbull@hdslaw.com

________________________________________

Carlos Espinoza

Dated: New York, New York September 20, 2024

Damages Category	Claimed Amount
Off-hire deductions (68 days × $14,750/day)	$1,003,000
Liquidated damages under Clause 28	$4,500,000
Substitute charter costs (replacement vessel for periods of off-hire)	$471,600
Cargo damage claims (iron ore oxidation, Incident 2)	$3,420,000
Demurrage and dead freight (Qingdao laycan miss, September 2022)	$1,230,000
Additional port costs, agency fees, and bunker surcharges	$875,400
Loss of sub-charter profit (Eastbourne Bulk Carriers Ltd. sub-charter at $17,200/day)	$166,600
Cargo claims from third-party shippers (three claims, partially narrowed by Court's March 8, 2024 Order)	$5,634,400
Legal fees and expert costs	$999,000
Total	$18,300,000

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.)
DEFENDANTS' STATEMENT OF UNDISPUTED MATERIAL FACTS PURSUANT TO COMMERCIAL DIVISION RULE 19-a
Filed: September 20, 2024
Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") (collectively, "Defendants"), by and through their attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, New York 10006 (Douglas Carmichael, Responsible Partner; Carlos Espinoza, Lead Associate), hereby submit this Statement of Undisputed Material Facts pursuant to Commercial Division Rule 19-a of the Rules of the Justices of the Commercial Division in support of Defendants' Motion for Partial Summary Judgment.
PRELIMINARY STATEMENT
This Statement of Undisputed Material Facts is submitted pursuant to Commercial Division Rule 19-a in support of Defendants' Motion for Partial Summary Judgment, which seeks relief on two discrete issues. First, Defendants move for summary judgment on the proper interpretation of the liquidated damages cap set forth in Clause 28 of the time charter-party dated December 3, 2020 (the "Charter-Party"), specifically that the provision establishes a single aggregate cap of $4,500,000 for the entire charter period, rather than a per-incident cap as Plaintiff Northwind Maritime Corporation ("Northwind" or "Plaintiff") contends. Second, Defendants move for summary judgment dismissing Plaintiff's deviation claim arising from the M/V Aegean Fortuna's September 2022 call at Maputo, Mozambique.
This Statement is submitted together with and should be read in conjunction with the accompanying Memorandum of Law in Support of Defendants' Motion for Partial Summary Judgment, the Declaration of Carlos Espinoza, Esq. (with Exhibits A through P), the Declaration of Dr. Henrik Sørensen, and the Declaration of Dr. Constance Albright, all filed on September 20, 2024.
Each numbered statement of fact set forth below is supported by citation to admissible evidence in the record, including deposition transcripts, documentary exhibits produced in discovery, corporate and regulatory records, and expert reports and declarations. Where a deposition transcript is cited, the specific page and line references are set forth. Where an exhibit to the Espinoza Declaration is cited, the exhibit letter is identified.
I. THE PARTIES
1. Defendant Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") is a Société Anonyme (SA) organized and existing under the laws of the Hellenic Republic (Greece), with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece. TSL is an international shipping, chartering, and maritime logistics company that owns and operates a diversified fleet of approximately 34 vessels, including dry bulk carriers, tankers, and container vessels. TSL has been in continuous operation since 1997 and maintains commercial offices in Piraeus, London, Singapore, and Houston. (Espinoza Decl. Ex. A (certified copies of TSL corporate records, including the company's Articles of Association and current General Commercial Registry extract); Deposition of Alexandros Stavridis (April 22, 2024) ("Stavridis Dep.") at 14:8–16:3.)
2. Defendant Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") is a limited liability company incorporated under the laws of the Republic of Liberia, bearing Liberian Registration No. LR-C-20167845, with a registered address at 80 Broad Street, Monrovia, Liberia. Aegean Fortuna Shipholding is a wholly owned subsidiary of TSL and was formed as a single-purpose entity for the purpose of holding title to and operating the M/V Aegean Fortuna. Aegean Fortuna Shipholding is the registered owner of the M/V Aegean Fortuna as reflected in the vessel's Liberian Certificate of Registry. (Espinoza Decl. Ex. B (Liberian corporate records for Aegean Fortuna Shipholding Ltd., including Certificate of Incorporation, Certificate of Good Standing, and share register reflecting TSL's 100% ownership).)
3. Plaintiff Northwind Maritime Corporation ("Northwind") is a corporation incorporated under the laws of the Republic of the marshall Islands, marshall Islands Entity No. MI-94827, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902. Northwind is engaged in the business of commodity trading, shipping logistics, and bulk cargo operations, and regularly charters vessels for the carriage of dry bulk commodities, including iron ore, coal, grain, and bauxite. Northwind's Chief Executive Officer, Viktor Lindgren, testified that the company charters between 15 and 25 vessels at any given time. (Complaint ¶¶ 1–3; Deposition of Viktor Lindgren (May 30, 2024) ("Lindgren Dep.") at 11:4–13:19.)
II. THE VESSEL
4. The M/V Aegean Fortuna is a Supramax dry bulk carrier bearing International Maritime Organization ("IMO") Number 9847231, flagged in the Republic of Liberia, with a deadweight tonnage of 58,200 metric tons, a length overall of 199.9 meters, a beam of 32.26 meters, and five cargo holds with hydraulic folding-type hatch covers. The vessel is equipped with four deck-mounted cranes, each with a safe working load of 30 metric tons, enabling self-loading and self-discharge capability. The M/V Aegean Fortuna was constructed in 2016 by Dalian Prosperity Shipyard Co. at its facility in Dalian, People's Republic of China, under Hull No. DPS-2014-117, and was delivered to Aegean Fortuna Shipholding on August 12, 2016. (Espinoza Decl. Ex. C (vessel registration certificate issued by the Republic of Liberia Maritime Authority; classification records and certificates from the Global Maritime Classification Bureau ("GMCB"); builder's delivery certificate from Dalian Prosperity Shipyard Co.).)
5. The M/V Aegean Fortuna was classified by the Global Maritime Classification Bureau ("GMCB") under class notation +100A1, Bulk Carrier, ESP, and maintained its classification in good standing without suspension or withdrawal throughout the entire charter period from January 15, 2021 through and including January 14, 2024. All required annual, intermediate, and special surveys were completed within the time windows prescribed by GMCB rules. (Espinoza Decl. Ex. C (GMCB classification status history and survey completion records); Declaration of Dr. Henrik Sørensen dated September 20, 2024 ("Sørensen Decl.") ¶¶ 5–8.)
III. THE CHARTER-PARTY
6. On December 3, 2020, Thalassa, acting in its capacity as Owner and disponent owner, and Northwind, acting in its capacity as Charterer, executed a time charter-party for the M/V Aegean Fortuna on the New York Produce Exchange Time Charter form, 2015 revision ("NYPE 2015"), as amended by the parties through negotiated riders, addenda, and additional clauses (the "Charter-Party"). The Charter-Party bears Reference No. NW-TSL-CP-2020-1203 and was executed by Alexandros Stavridis on behalf of Thalassa and Viktor Lindgren on behalf of Northwind. (Espinoza Decl. Ex. D (Charter-Party, consisting of the NYPE 2015 printed form, Rider Clauses 25 through 52, Addendum A (Trading Limits), Addendum B (Bunker Specifications), and Side Letter dated December 3, 2020 regarding vessel description and speed/consumption warranty).)
7. The Charter-Party provided for a charter period of 36 months, commencing on the date of delivery of the vessel to the Charterer, which occurred on January 15, 2021 at the port of Singapore, and expiring on January 14, 2024. The daily hire rate was fixed at $14,750 per day, payable semi-monthly in advance in United States Dollars by wire transfer to TSL's designated account at Tidewater Securities, Piraeus Branch. Over the approximately 1,096-day charter period, the total charter value was approximately $16,166,000 ($14,750 multiplied by approximately 1,096 days). (Charter-Party Cl. 1; Espinoza Decl. Ex. D.)
8. The Charter-Party is governed by the laws of the State of New York. Clause 46 of the Charter-Party provides for arbitration of disputes in New York. However, pursuant to Clause 46(b) addendum, negotiated and agreed to by the parties, either party may, in its sole discretion, elect to litigate disputes arising under or in connection with the Charter-Party in the Supreme Court of the State of New York, New York County, as an alternative to arbitration. Northwind elected to commence this action in this Court rather than proceeding to arbitration. (Charter-Party Cl. 46, Cl. 46(b) addendum; Espinoza Decl. Ex. D.)
IV. CLAUSE 28 — THE LIQUIDATED DAMAGES PROVISION
9. Clause 28 of the Charter-Party, entitled "Liquidated Damages for Maintenance/Seaworthiness Breach," provides in its entirety as follows:
"Upon Owner's material breach of maintenance and seaworthiness obligations (Clauses 2 and 6), Charterer is entitled to liquidated damages equal to 150% of the aggregate off-hire days multiplied by the daily hire rate, subject to a cap of $4,500,000 for any single continuous period of breach. Such liquidated damages shall constitute Charterer's sole and exclusive remedy for Owner's breach of Clauses 2 and 6, and Charterer hereby waives any right to claim actual, consequential, incidental, or punitive damages arising from such breach, except as otherwise provided in Clause 29 (Cargo Claims)."
(Charter-Party Cl. 28; Espinoza Decl. Ex. D (full text of Clause 28).)
10. The phrase "any single continuous period of breach" appears exactly once in Clause 28 of the Charter-Party. This phrase is not defined in the Definitions section (Clause 1) or in any other provision of the Charter-Party, including its riders, addenda, or side letters. No other clause of the Charter-Party uses or cross-references the phrase "single continuous period of breach." (Charter-Party (entire document, including all addenda, riders, and side letter); Espinoza Decl. Ex. D.)
11. The Charter-Party does not contain any other provision that modifies, supplements, limits, or defines the term "single continuous period of breach" as used in Clause 28. No rider, addendum, side letter, or other contemporaneous writing between the parties addresses whether the $4,500,000 cap set forth in Clause 28 is intended to apply on a per-incident basis or, alternatively, as a single aggregate cap applicable once over the entire 36-month charter period. The Charter-Party is silent on this question. (Espinoza Decl. Ex. D (entire Charter-Party with all addenda, riders, and side letter); Stavridis Dep. at 78:14–79:22; Lindgren Dep. at 102:6–103:11.)
12. The Charter-Party was negotiated between sophisticated commercial parties — TSL, an international shipowner operating a fleet of 34 vessels, and Northwind, a commodity trader and shipping logistics company regularly chartering 15 to 25 vessels — each of which was represented by experienced maritime counsel throughout the negotiation process. The negotiations spanned a period of approximately six weeks, from late October 2020 through execution on December 3, 2020, and involved multiple rounds of mark-ups, counterproposals, and telephone conferences between the parties and their respective counsel. (Stavridis Dep. at 22:9–25:18; Lindgren Dep. at 30:2–34:15.)
13. During the negotiation of the Charter-Party, a review of the complete negotiation correspondence between the parties — including all emails, marked-up drafts, and memoranda exchanged between late October 2020 and execution on December 3, 2020 — reveals that neither Thalassa nor Northwind proposed, discussed, or introduced language specifying that the $4,500,000 cap in Clause 28 would apply on a per-incident basis. No draft of Clause 28 circulated during the negotiations contained per-incident or per-occurrence language. The final text of Clause 28 as executed is substantively identical to the initial draft proposed by Northwind's counsel on October 28, 2020, with only minor stylistic edits. (Espinoza Decl. Ex. E (complete negotiation correspondence between the parties, October 22, 2020 through December 2, 2020, including all mark-ups of Clause 28); Stavridis Dep. at 68:3–72:14; Lindgren Dep. at 95:8–99:20.)
14. No prior dealings between Thalassa and Northwind involved a charter-party with a similar or analogous liquidated damages clause. The Charter-Party for the M/V Aegean Fortuna was the first and only charter-party entered into between the parties. Prior to executing the Charter-Party, the parties had no prior contractual relationship, no course of dealing, and no established course of performance with respect to the interpretation of liquidated damages provisions. (Stavridis Dep. at 18:4–19:12; Lindgren Dep. at 26:15–28:7.)
V. NORTHWIND'S APPLICATION OF CLAUSE 28
15. In its Complaint, Northwind claims total off-hire of 68 days arising from three separate mechanical incidents that occurred during 2022, specifically: (a) 22 days of off-hire from March 12, 2022 through April 2, 2022, attributable to a turbocharger failure (hereinafter "Incident 1"); (b) 21 days of off-hire from July 8, 2022 through July 29, 2022, attributable to a ballast water treatment system malfunction and auxiliary boiler failure (hereinafter "Incident 2"); and (c) 25 days of off-hire from November 15, 2022 through December 10, 2022, attributable to a main engine cylinder liner failure (hereinafter "Incident 3"). (Complaint ¶¶ 28–42.)
16. Northwind contends that each of the three mechanical incidents constitutes a separate and independent "single continuous period of breach" under Clause 28 of the Charter-Party, such that the $4,500,000 liquidated damages cap applies independently and separately to each of the three incidents. On this basis, Northwind claims aggregate liquidated damages of $4,500,000 — a figure that Northwind asserts represents the combined total of liquidated damages capped at $4,500,000 per incident across three incidents. (Complaint ¶¶ 45–48.)
17. However, applying the Clause 28 liquidated damages formula to the 68 total off-hire days on a combined, aggregate basis — that is, treating the 68 days as a single calculation — yields total liquidated damages of $1,504,500 (68 days × $14,750 per day × 150% = $1,504,500). This amount is well below the single aggregate $4,500,000 cap. Thus, if the cap is construed as a single aggregate cap for the entire charter period, Northwind's liquidated damages recovery would be limited to $1,504,500, which represents the actual formula output. (Declaration of Dr. Constance Albright dated September 20, 2024 ("Albright Decl.") ¶¶ 12–15; Charter-Party Cl. 28.)
18. Northwind does not claim — nor could it, based on the undisputed facts — that any individual incident, standing alone, would produce liquidated damages exceeding, or even approaching, the $4,500,000 cap. The per-incident liquidated damages calculations under the Clause 28 formula are as follows:
• Incident 1 (Turbocharger Failure): 22 days × $14,750/day × 150% = $487,050
• Incident 2 (BWTS / Auxiliary Boiler Failure): 21 days × $14,750/day × 150% = $464,625
• Incident 3 (Cylinder Liner Failure): 25 days × $14,750/day × 150% = $553,125
• Combined Total: $1,504,800 (minor rounding difference from Fact 17 above attributable to day-count methodology)
None of these individual amounts approaches the $4,500,000 cap, and the combined total remains well below it. The per-incident cap theory therefore provides Northwind with no additional recovery beyond the formula calculation. (Complaint ¶¶ 45–48; Albright Decl. ¶¶ 16–18.)
19. Despite the fact that the per-incident calculations yield only $1,504,500 (or $1,504,800 depending on rounding), Northwind's Complaint seeks $4,500,000 in liquidated damages. Northwind's theory appears to rest on the assertion that three separate caps — totaling a theoretical $13,500,000 in aggregate cap room ($4,500,000 × 3 incidents) — should apply, and that Northwind is entitled to invoke the maximum of the first cap ($4,500,000) by combining the calculated damages across incidents in a manner that exceeds what any single incident would produce. Northwind confirmed this methodology in its responses to TSL's First Set of Interrogatories, specifically Interrogatory No. 7, where Northwind stated that the $4,500,000 figure represents the "aggregate liquidated damages properly due under Clause 28 when each breach period is assessed independently and the applicable cap is applied to each." (Complaint ¶ 48; Northwind's Responses to TSL's First Set of Interrogatories, Interrogatory No. 7 (served March 15, 2024).)
VI. CLAUSE 6 — MAINTENANCE AND SEAWORTHINESS OBLIGATIONS
20. Clause 6 of the Charter-Party, entitled "Maintenance and Repairs," provides in relevant part as follows:
"Owners shall maintain the vessel in a thoroughly efficient state of hull, machinery, and equipment throughout the charter period, including compliance with all classification society requirements and all applicable international, flag state, and port state regulations, at Owners' time and expense. Owners shall procure that all surveys, inspections, and certifications required by the vessel's classification society and flag state are completed within the time periods prescribed and that the vessel maintains its class notation without condition of class, recommendation, or memorandum throughout the charter period."
(Charter-Party Cl. 6; Espinoza Decl. Ex. D.)
21. Clause 2 of the Charter-Party contains the Owner's warranty that the M/V Aegean Fortuna was, at the time of delivery to Northwind on January 15, 2021 at the port of Singapore, in a seaworthy condition, tight, staunch, and strong, and in every way fitted for the service contemplated under the Charter-Party, with her machinery, boilers, and equipment in a good and efficient working order and condition. (Charter-Party Cl. 2; Espinoza Decl. Ex. D.)
VII. THE THREE MECHANICAL INCIDENTS
A. Incident 1: Turbocharger Failure (March 12–April 2, 2022)
22. On March 12, 2022, while the M/V Aegean Fortuna was en route from Paradip, India to Mombasa, Kenya, transiting the Indian Ocean at approximately latitude 6°N, longitude 77°E, the vessel's main engine turbocharger — a Ashgrove Group model TCA77 — experienced a catastrophic bearing failure, causing the vessel to lose approximately 60% of its engine power and rendering the vessel unable to maintain her warranted service speed of 14.5 knots. The Master, Capt. Nikolaos Giannopoulos, immediately reduced engine speed to approximately 6 knots as a precautionary measure and reported the casualty to TSL's technical management department. (Espinoza Decl. Ex. F (Master's casualty report dated March 12, 2022, with supporting engine room log extracts); Deposition of Capt. Nikolaos Giannopoulos (May 10, 2024) ("Giannopoulos Dep.") at 42:8–47:15.)
23. Following the turbocharger failure, the M/V Aegean Fortuna diverted to Colombo, Sri Lanka, the nearest port with adequate repair facilities, where she arrived on March 15, 2022. Repairs were performed by Fenmore Partners LLC under the supervision of GMCB surveyors. The turbocharger bearing assembly was replaced, and the vessel was released from repairs and returned to service on April 2, 2022. The vessel was off-hire for a total of 22 days, from March 12, 2022 through April 2, 2022. Northwind issued an off-hire notice to TSL on March 13, 2022, which TSL acknowledged. (Espinoza Decl. Ex. G (off-hire notice dated March 13, 2022; TSL acknowledgment dated March 14, 2022; Fenmore Partners LLC repair completion certificate dated April 2, 2022); Deposition of Petros Vlahos (June 28, 2024) ("Vlahos Dep.") at 28:3–34:17.)
24. Dr. Henrik Sørensen, TSL's retained maritime engineering expert, a naval architect and marine engineer with over 30 years of experience and former Chief Surveyor of the Danish Maritime Authority, conducted a detailed root cause analysis of the turbocharger failure. Dr. Sørensen opined, to a reasonable degree of engineering certainty, that the failure was caused by a latent manufacturing defect in the turbocharger's bearing assembly — specifically, a subsurface inclusion in the bearing's white-metal lining — that was not detectable through the Owner's routine maintenance program, visual inspections, or the GMCB classification surveys conducted prior to the failure. Dr. Sørensen further opined that the defect would not have been revealed by any commercially reasonable inspection methodology available to the Owner, including vibration analysis and oil debris monitoring, which were regularly performed and showed normal parameters prior to the failure. (Sørensen Decl. ¶¶ 12–22; Expert Report of Dr. Henrik Sørensen dated August 5, 2024 ("Sørensen Report") at 14–28.)
25. The GMCB classification survey records for the M/V Aegean Fortuna confirm that the vessel passed all annual and intermediate surveys of the main engine and turbocharger assembly without any notation of defect, condition of class, recommendation, or memorandum at any time prior to the March 2022 failure. The most recent GMCB annual survey prior to the failure was conducted on November 8, 2021 in Singapore, during which the turbocharger was inspected and found to be in satisfactory condition. (Espinoza Decl. Ex. H (GMCB survey records for the M/V Aegean Fortuna, 2016–2024, including annual survey report dated November 8, 2021); Sørensen Decl. ¶¶ 15–17.)
B. Incident 2: BWTS / Auxiliary Boiler Failure (July 8–July 29, 2022)
26. On July 8, 2022, while the M/V Aegean Fortuna was alongside at the port of Richards Bay, South Africa, loading a cargo of approximately 52,000 metric tons of iron ore for discharge at Qingdao, China, the vessel's ballast water treatment system ("BWTS") — a BallastMaster ultraviolet treatment system manufactured by Ostrander Corporation — malfunctioned due to severe clogging of its pre-filtration unit. Simultaneously, the vessel's auxiliary boiler, which provides steam for cargo hold ventilation and fuel oil heating, failed due to a cracked fire tube. These concurrent failures rendered the vessel unable to complete cargo loading operations safely and in compliance with the International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM Convention). The vessel was placed off-hire for 21 days, from July 8, 2022 through July 29, 2022. (Espinoza Decl. Ex. I (Chief Engineer's incident report dated July 9, 2022, with supporting machinery log extracts and BWTS alarm printouts); Vlahos Dep. at 52:11–63:8.)
27. Chief Engineer Petros Vlahos, who served as the M/V Aegean Fortuna's Chief Engineer throughout the charter period, testified that the BWTS malfunction was caused by contaminated ballast water loaded at the immediately preceding port of call — specifically, ballast water taken on at the outer anchorage of Maputo, Mozambique in late June 2022 — which contained abnormally high levels of sediment, silt, and particulate matter that overwhelmed and clogged the BWTS filtration system. Mr. Vlahos testified that the contaminated ballast water was loaded under the direction and instruction of Northwind's local agents, who designated the ballast loading location and quantity. (Vlahos Dep. at 64:2–72:19; Espinoza Decl. Ex. J (independent ballast water quality analysis report prepared by SGS Maritime Services, confirming elevated sediment and total suspended solids levels in samples taken from the vessel's ballast tanks on July 9, 2022).)
28. Northwind's agents — specifically, its local port agents at Maputo, acting on instructions from Northwind's operations department in Stamford, Connecticut — directed the loading of ballast water at the outer anchorage of Maputo in late June 2022 and specified the quantity of ballast to be taken on. The Master, Capt. Giannopoulos, complied with these instructions. Email correspondence between Northwind's operations department and the vessel Master, dated June 25–27, 2022, confirms that Northwind's operations manager, Sandra Chow, directed the Master to "proceed with ballast loading at Maputo outer anchorage as per agent's instructions" and specified approximately 18,000 metric tons of ballast water. (Espinoza Decl. Ex. K (email correspondence chain between Sandra Chow (Northwind) and Capt. Giannopoulos, June 25–27, 2022); Giannopoulos Dep. at 88:14–93:6.)
29. During the 21-day period of Incident 2, while the M/V Aegean Fortuna remained alongside at Richards Bay awaiting completion of repairs, the iron ore cargo already loaded on board the vessel was exposed to moisture ingress through the vessel's cargo hold ventilation system, which was inoperative due to the auxiliary boiler failure. This moisture exposure resulted in oxidation (rusting) of a significant portion of the iron ore cargo. Northwind claims $3,420,000 in cargo damage arising from this oxidation, representing the alleged diminution in value of the affected cargo. (Complaint ¶¶ 35–38; Northwind's Responses to TSL's First Set of Interrogatories, Interrogatory No. 4 (served March 15, 2024).)
C. Incident 3: Cylinder Liner Failure (November 15–December 10, 2022)
30. On November 15, 2022, the M/V Aegean Fortuna, while transiting the North Sea en route from Murmansk, Russia to Rotterdam, Netherlands, experienced a failure of the main engine's No. 4 cylinder liner, which cracked circumferentially at the upper collar, resulting in cooling water ingress into the cylinder and necessitating immediate shutdown of the affected cylinder. The vessel proceeded to Rotterdam at reduced speed on the remaining five cylinders and was drydocked at Keppel Verolme Shipyard in Rotterdam-Botlek for replacement of the cylinder liner and associated components. The vessel was off-hire for 25 days, from November 15, 2022 through December 10, 2022. (Espinoza Decl. Ex. L (Keppel Verolme drydock report and repair specification dated December 8, 2022; Master's casualty report dated November 15, 2022); Vlahos Dep. at 105:3–116:22.)
31. TSL concedes, for purposes of this motion and generally, that the cylinder liner failure in Incident 3 constituted a breach of the Owner's maintenance obligations under Clause 6 of the Charter-Party, in that the No. 4 cylinder liner had accumulated excessive operational hours beyond the manufacturer's recommended replacement interval, and the failure was attributable to wear and fatigue that should have been addressed during the vessel's scheduled maintenance. TSL disputes, however, the quantum of damages attributable to this incident, including the duration of off-hire (TSL contends that efficient repairs should have been completed within 18 days, not 25) and any consequential damages claimed by Northwind. (Answer ¶ 41; Stavridis Dep. at 125:8–129:14.)
32. The total off-hire days claimed by Northwind across all three mechanical incidents is 68 days, calculated as follows: 22 days (Incident 1, March 12–April 2, 2022) plus 21 days (Incident 2, July 8–July 29, 2022) plus 25 days (Incident 3, November 15–December 10, 2022) equals 68 days. (Complaint ¶ 42.)
VIII. THE ALLEGED MAPUTO DEVIATION (SEPTEMBER 2022)
A. The Agreed Voyage
33. Clause 5 of the Charter-Party, entitled "Trading Limits," permits worldwide trading of the M/V Aegean Fortuna, subject to three categories of exclusions: (a) ports and territories subject to sanctions administered by the United States Department of the Treasury, Office of Foreign Assets Control ("OFAC"); (b) ports and waters designated as war-risk zones in the London Joint War Committee Hull War Risks Listed Areas (as updated from time to time); and (c) ice-bound waters north of latitude 68°N during the period November 1 through April 30 of each year. Subject to these exclusions, the Charterer was entitled to direct the vessel to trade to any safe port or anchorage worldwide. (Charter-Party Cl. 5; Espinoza Decl. Ex. D.)
34. In September 2022, the M/V Aegean Fortuna was performing a ballast voyage from Durban, South Africa to Qingdao, China under Northwind's voyage orders dated September 8, 2022. The voyage orders instructed the vessel to proceed from Durban via the Mozambique Channel and the Indian Ocean to Qingdao, where the vessel was expected to arrive within a laycan (laydays/cancelling) window of October 1–5, 2022, in order to load a cargo of approximately 55,000 metric tons of alumina for Northwind's account. (Espinoza Decl. Ex. M (Northwind voyage orders dated September 8, 2022; email from Sandra Chow to Capt. Giannopoulos dated September 8, 2022 confirming Qingdao laycan); Lindgren Dep. at 143:5–147:20.)
B. The Maputo Call
35. On or about September 14, 2022, the M/V Aegean Fortuna called at Maputo, Mozambique during the Durban-to-Qingdao ballast voyage. The vessel arrived at Maputo outer anchorage on September 14, 2022 and departed on September 18, 2022, adding approximately 4 days to the total voyage duration as compared to the estimated direct passage time from Durban to Qingdao. (Espinoza Decl. Ex. N (vessel Automatic Identification System ("AIS") position data and port call records from Beaumont Industries the Maputo call; vessel deck logbook extracts for September 14–18, 2022); Giannopoulos Dep. at 128:11–134:22.)
36. Capt. Nikolaos Giannopoulos, the Master of the M/V Aegean Fortuna, testified that the Maputo call was necessitated by adverse weather conditions and routing considerations in the Mozambique Channel. Specifically, Capt. Giannopoulos testified that tropical weather systems — including a developing tropical disturbance that was subsequently designated by the South-West Indian Ocean Tropical Cyclone Warning Centre as Tropical Depression TD-09 — were present in the central and northern Mozambique Channel during the period September 12–16, 2022, generating gale-force winds, heavy seas, and reduced visibility that made direct northward passage through the Channel impractical and unsafe for the vessel and crew at the time. Capt. Giannopoulos further testified that he consulted with the vessel's contracted weather routing service, Brightmoor Partners LLC, which advised the vessel to shelter at Maputo until the weather system passed. (Giannopoulos Dep. at 135:3–148:17; Espinoza Decl. Ex. O (weather routing advisories issued by Brightmoor Partners LLC to the M/V Aegean Fortuna dated September 12–14, 2022, recommending shelter at Maputo).)
37. Independent meteorological data and weather records from September 2022 confirm the presence of adverse weather systems in the Mozambique Channel during the period of the Maputo call. Specifically, satellite imagery and synoptic weather charts from the South African Weather Service ("SAWS") and the Météo-France Regional Specialized Meteorological Centre in La Réunion confirm the development of Tropical Depression TD-09 in the central Mozambique Channel between September 12 and September 17, 2022, with associated sustained winds of 30–40 knots, gusting to 55 knots, and significant wave heights of 3.5–5.0 meters. Dr. Sørensen reviewed these meteorological records and opined that the weather conditions were sufficiently adverse to justify the Master's decision to seek shelter at Maputo. (Espinoza Decl. Ex. O (meteorological data from SAWS and Météo-France; Weathernews routing advisories; satellite imagery); Sørensen Decl. ¶¶ 35–40.)
38. Maputo, Mozambique is not within any of the excluded trading areas listed in Clause 5 of the Charter-Party. Specifically, Maputo is not located in a country or territory subject to OFAC sanctions; Maputo is not within any area designated by the London Joint War Committee as a Hull War Risks Listed Area; and Maputo is not within ice-bound waters north of latitude 68°N. Accordingly, the Maputo call did not violate the trading limits set forth in the Charter-Party. (Charter-Party Cl. 5; Espinoza Decl. Ex. D.)
39. Northwind alleges that the Maputo call was not weather-related but was instead directed by TSL for the purpose of loading TSL's own cargo aboard the M/V Aegean Fortuna, constituting an unauthorized deviation from the Charterer's voyage orders and a breach of the Owner's obligations under the Charter-Party. Northwind claims that the 4-day delay caused by the Maputo call resulted in the vessel missing the Qingdao laycan window of October 1–5, 2022, which in turn caused Northwind to incur $1,230,000 in demurrage charges and dead freight costs payable to the Qingdao cargo interests. (Complaint ¶¶ 43–47.)
40. TSL denies Northwind's deviation allegations and maintains that the Master exercised reasonable navigational discretion in calling at Maputo due to weather and routing conditions in the Mozambique Channel, that no TSL cargo was loaded at Maputo during the September 2022 call, and that the call was squarely within the Master's authority under the Charter-Party and applicable maritime law. TSL further contends that even if the vessel had not called at Maputo, the weather conditions in the Mozambique Channel would have caused a delay of approximately 2–3 days in any event, such that the vessel would not have arrived within the Qingdao laycan window regardless. (Answer ¶¶ 45–48.)
C. The Master's Authority
41. Under the NYPE 2015 form, the Master of the vessel retains authority and responsibility for navigational decisions affecting the safety of the vessel, her crew, and cargo, including decisions regarding routing, port calls for shelter, bunkering, and provisioning, notwithstanding that the Charterer has the right to direct the employment and agency of the vessel. Clause 8 of the Charter-Party specifically provides that the Master shall be under the orders and direction of the Charterer "as regards employment and agency," but that the Owner retains responsibility for the "navigation and management" of the vessel. (Charter-Party Cl. 8 (NYPE 2015 standard terms); Espinoza Decl. Ex. D.)
42. Capt. Nikolaos Giannopoulos has served as a licensed Master mariner for over 20 years, holding a Master's Certificate of Competency (Class I, Unlimited) issued by the Hellenic Republic Ministry of Mercantile Marine. He held the command of the M/V Aegean Fortuna continuously from the vessel's delivery to Northwind on January 15, 2021 through the expiration of the charter period on January 14, 2024. Capt. Giannopoulos has commanded Supramax and Panamax dry bulk carriers on worldwide trading routes for TSL since 2008 and has logged in excess of 250,000 nautical miles in command. (Giannopoulos Dep. at 8:4–12:18.)
IX. NORTHWIND'S CLAIMED DAMAGES
43. Northwind's Complaint seeks total damages of $18,300,000, comprised of the following categories:
(Complaint ¶¶ 49–62.)
44. Northwind sub-chartered the M/V Aegean Fortuna to Eastbourne Bulk Carriers Ltd. ("Eastbourne"), a United Kingdom-based dry bulk operator, pursuant to a back-to-back sub-charter dated January 10, 2021, at a daily hire rate of $17,200 per day for the same 36-month period as the head charter. This sub-charter yielded Northwind a daily profit of $2,450 per day ($17,200 minus $14,750). Northwind claims loss of sub-charter profit for the 68 days of off-hire at $2,450 per day, totaling $166,600. (Deposition of Sandra Chow (June 14, 2024) ("Chow Dep.") at 22:6–28:14; Espinoza Decl. Ex. P (Eastbourne sub-charter agreement dated January 10, 2021, produced by Northwind in discovery under Bates Nos. NW-00004215 through NW-00004248).)
X. TSL'S COUNTERCLAIM
45. TSL filed a counterclaim on November 17, 2023, seeking recovery of $1,620,000 in unpaid hire for the period October 1, 2022 through December 31, 2022 — a period of approximately 92 days (which, at the daily hire rate of $14,750 per day, equals approximately $1,357,000; however, TSL's counterclaim also includes $263,000 in late payment interest calculated at the contractual rate of 6% per annum, bringing the total counterclaim to $1,620,000). Northwind withheld these hire payments citing purported off-hire under Clause 11 of the Charter-Party and asserting equitable setoff rights for its affirmative claims. (Answer and Counterclaim ¶¶ 55–62.)
46. Northwind's position, as set forth in its Reply to the Counterclaim, is that the withholding of hire was proper under Clause 11 (the off-hire provision) of the Charter-Party and under principles of equitable setoff, and that Northwind was entitled to deduct from hire payments the amounts it claims as off-hire and damages arising from the three mechanical incidents and the alleged Maputo deviation. (Northwind's Reply to Counterclaim ¶¶ 3–8 (filed December 15, 2023).)
XI. PRIOR PROCEEDINGS IN THIS ACTION
47. Northwind filed the Complaint commencing this action on October 2, 2023 in the Supreme Court of the State of New York, New York County, Commercial Division, and the action was assigned Index No. 655421/2023. The case was assigned to the Honorable Lorraine K. Chen, Justice of the Supreme Court, Part 49 of the Commercial Division. (Complaint (filed October 2, 2023, NYSCEF Doc. No. 1).)
48. TSL filed its Verified Answer, Affirmative Defenses, and Counterclaim on November 17, 2023. TSL's Answer asserted thirteen affirmative defenses, including, inter alia, failure to state a cause of action, comparative fault, contractual limitations on liability, and the doctrines of avoidable consequences and mitigation of damages. (Answer and Counterclaim (filed November 17, 2023, NYSCEF Doc. No. 8).)
49. On December 15, 2023, TSL moved to dismiss Counts III (seeking to recover, as charter-party damages, amounts paid or payable by Northwind to third-party shippers for cargo claims) and V (unjust enrichment) of Northwind's 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 (unjust enrichment) in its entirety on the grounds that it was duplicative of Northwind's breach of contract claims, and narrowing Count III by limiting Northwind's recovery to cargo claims for which Northwind demonstrated that it had already paid or settled the underlying third-party claims and could establish a causal nexus between the Owner's breach and the cargo loss. (Decision and Order dated March 8, 2024, NYSCEF Doc. No. 22.)
50. Fact discovery was conducted from January 2024 through August 2024, pursuant to a discovery schedule set by Preliminary Conference Order dated January 12, 2024. The parties exchanged approximately 47,000 pages of documents and took depositions of the following witnesses:
• Alexandros Stavridis, Managing Director, TSL (April 22, 2024);
• Capt. Nikolaos Giannopoulos, Master, M/V Aegean Fortuna (May 10, 2024);
• Viktor Lindgren, CEO, Northwind (May 30, 2024);
• Sandra Chow, Vice President of Operations, Northwind (June 14, 2024);
• Petros Vlahos, Chief Engineer, M/V Aegean Fortuna (June 28, 2024);
• Three additional fact witnesses (July 2024), including Northwind's in-house counsel, TSL's technical superintendent, and a representative of the vessel's P&I Club.
(Deposition transcripts filed herewith as Espinoza Decl. Exhibits Q through W.)
51. Expert reports were served in accordance with the Court's scheduling order. TSL served its initial expert reports on August 5, 2024, consisting of the Expert Report of Dr. Henrik Sørensen of Nordic Maritime Consulting Group ApS (maritime engineering) and the Expert Report of Dr. Constance Albright of Clearwater Economics LLC (damages and financial analysis). Northwind served its initial expert reports on August 19, 2024, consisting of the Expert Report of Capt. Julian Blackmore (Ret.) of Blackmore Maritime Advisory Ltd. (maritime operations and navigational practice) and the Expert Report of Dr. Rajesh Anand of Pinnacle Valuation Partners LLP (damages and financial analysis). Rebuttal expert reports were exchanged by both parties on September 9, 2024. (Expert reports filed herewith as exhibits to the Espinoza Declaration and as stand-alone submissions.)
XII. EXPERT OPINIONS RELEVANT TO THE PENDING MOTION
A. TSL's Damages Expert — Dr. Constance Albright
52. Dr. Constance Albright, Ph.D. in Economics (Columbia University), CFA, Managing Director of Clearwater Economics LLC, with over 18 years of experience providing expert economic analysis in commercial litigation and maritime disputes, opined that Clause 28's liquidated damages cap of $4,500,000 for "any single continuous period of breach" is properly construed as a single aggregate cap applicable to the entire charter period, rather than as a per-incident cap. Dr. Albright further opined that, under this construction, Northwind's maximum liquidated damages recovery is limited to $1,504,500 (68 days × $14,750 × 150%), which is the actual output of the Clause 28 formula applied to all claimed off-hire days on a combined basis. This amount falls well below the $4,500,000 cap. Dr. Albright's analysis included a review of the Charter-Party, the parties' damages calculations, industry norms for liquidated damages provisions in time charters, and the economic implications of the competing cap interpretations. (Albright Decl. ¶¶ 10–22; Expert Report of Dr. Constance Albright dated August 5, 2024 ("Albright Report") at 8–24.)
B. TSL's Maritime Engineering Expert — Dr. Henrik Sørensen
53. Dr. Henrik Sørensen, Ph.D. in Naval Architecture and Marine Engineering (Technical University of Denmark), former Chief Surveyor of the Danish Maritime Authority, and Principal of Nordic Maritime Consulting Group ApS, Copenhagen, with over 30 years of experience in marine engineering, vessel classification, and maritime casualty investigation, opined that the September 2022 Maputo call was consistent with reasonable and prudent navigational practice given the weather and routing conditions in the Mozambique Channel at the time. Dr. Sørensen reviewed the meteorological data, satellite imagery, Weathernews routing advisories, the vessel's deck and engine room logbooks, AIS position data, and the deposition testimony of Capt. Giannopoulos. Based on his analysis, Dr. Sørensen concluded that the Master's decision to shelter at Maputo was a reasonable exercise of navigational discretion in the face of Tropical Depression TD-09 and associated adverse sea and weather conditions, and that the decision was consistent with the duty of care owed by the Master to the vessel, crew, and cargo under both the Charter-Party and applicable international maritime conventions. (Sørensen Decl. ¶¶ 35–45; Expert Report of Dr. Henrik Sørensen dated August 5, 2024 ("Sørensen Report") at 42–58.)
CALDERWOOD & HARKNESS LLP Attorneys for Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
By: ________
Douglas Carmichael (Partner) Carlos Espinoza (Lead Associate)
One Liberty Plaza, 50th Floor New York, New York 10006 Telephone: (212) 506-7800 Facsimile: (212) 506-7801 dcarmichael@calderwoodharkness.com cespinoza@calderwoodharkness.com
Dated: September 20, 2024
CERTIFICATE OF SERVICE
I, Carlos Espinoza, an attorney duly admitted to practice before the courts of the State of New York, hereby certify that on September 20, 2024, I caused a true and correct copy of the foregoing Defendants' Statement of Undisputed Material Facts Pursuant to Commercial Division Rule 19-a, together with all accompanying exhibits and declarations, to be served upon counsel for Plaintiff Northwind Maritime Corporation by filing and service through the New York State Courts Electronic Filing System ("NYSCEF") and by electronic mail transmission to the following:
Margaret Delacroix, Esq. Jason Trumbull, Esq. Hargrove, Delacroix & Stern LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 891-4500 mdelacroix@hdslaw.com jtrumbull@hdslaw.com
________________________________________
Carlos Espinoza
Dated: New York, New York September 20, 2024
Damages Category | Claimed Amount
Off-hire deductions (68 days × $14,750/day) | $1,003,000
Liquidated damages under Clause 28 | $4,500,000
Substitute charter costs (replacement vessel for periods of off-hire) | $471,600
Cargo damage claims (iron ore oxidation, Incident 2) | $3,420,000
Demurrage and dead freight (Qingdao laycan miss, September 2022) | $1,230,000
Additional port costs, agency fees, and bunker surcharges | $875,400
Loss of sub-charter profit (Eastbourne Bulk Carriers Ltd. sub-charter at $17,200/day) | $166,600
Cargo claims from third-party shippers (three claims, partially narrowed by Court's March 8, 2024 Order) | $5,634,400
Legal fees and expert costs | $999,000
Total | $18,300,000