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

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

VERIFIED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF DEFENDANTS THALASSA SHIPPING & LOGISTICS SA AND AEGEAN FORTUNA SHIPHOLDING LTD.

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PRELIMINARY STATEMENT

Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme organized under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding"), a limited liability company incorporated under the laws of the Republic of Liberia, Liberian Registration No. LR-C-20167845, with its registered address at 80 Broad Street, Monrovia, Liberia, a wholly owned subsidiary of TSL and the registered owner of the M/V Aegean Fortuna (IMO No. 9847231), by and through their attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, NY 10006, hereby answer the Verified Complaint (the "Complaint") filed by Northwind Maritime Corporation ("Northwind" or "Plaintiff") on October 2, 2023, assert affirmative defenses thereto, and interpose a counterclaim for unpaid hire in the amount of One Million Six Hundred Twenty Thousand Dollars ($1,620,000).

This action arises from the operation of the M/V Aegean Fortuna under a thirty-six (36) month time charter-party executed on the New York Produce Exchange 2015 form, as amended (the "Charter-Party," Charter-Party Ref. No. NW-TSL-CP-2020-1203), dated December 3, 2020, with a commencement date of January 15, 2021 and an expiration date of January 14, 2024, at a daily hire rate of $14,750. Northwind's Complaint alleges that Defendants committed multiple breaches of the Charter-Party and seeks a total of $18,300,000 in damages — a figure that is grossly inflated and bears no rational relationship to the facts or the governing contractual provisions.

The claims advanced by Northwind are legally and factually deficient in multiple respects. First, Northwind's liquidated damages calculation rests upon a fundamental misreading of Clause 28 of the Charter-Party. Northwind contends that the contractual cap of $4,500,000 "for any single continuous period of breach" may be applied separately to each of three alleged incidents, thereby tripling the cap. This interpretation contradicts the plain language of Clause 28 and would produce an absurd result entirely divorced from the commercially reasonable intent of the contracting parties.

Second, with respect to the three mechanical incidents upon which Northwind premises its seaworthiness claims, the facts demonstrate that Defendants bear responsibility for only one — the cylinder liner failure in November-December 2022 (Incident 3). The turbocharger failure (Incident 1) was caused by a latent manufacturing defect that was not discoverable through the exercise of due diligence. The ballast water treatment system malfunction (Incident 2) was caused by Northwind's own agents, who directed the loading of contaminated ballast water at a prior port, introducing foreign particulates that damaged the system.

Third, the alleged deviation to Maputo, Mozambique was not a deviation at all. The Master's decision to call at Maputo during a Durban-to-Qingdao voyage was necessitated by prevailing weather and routing conditions in the Mozambique Channel and fell squarely within the Master's reasonable discretion.

Fourth, Northwind's claims for $3,420,000 in cargo damage and $5,634,400 in third-party shipper claims are barred by the Inter-Club Agreement, which governs the allocation of cargo claims as between owner and charterer under time charter-parties. Third-party shipper claims are not cognizable as direct charter-party damages, and Northwind's attempt to pass through such liabilities is legally impermissible.

Fifth, Northwind failed to mitigate its losses in multiple respects, including by failing to secure substitute tonnage at commercially reasonable rates and by failing to take timely cargo protection measures during off-hire periods.

In addition to defending against Northwind's unfounded claims, Defendants assert a counterclaim against Northwind for $1,620,000 in unpaid hire. During the period from October 1, 2022 through December 31, 2022, Northwind unilaterally withheld hire payments in that amount, purporting to exercise off-hire and equitable setoff rights. That withholding was wrongful. The vessel was actively trading and performing services for Northwind during the substantial majority of that period. A charterer may not unilaterally withhold hire based on disputed, unliquidated damage claims, and Northwind's refusal to pay the withheld hire constitutes a breach of the Charter-Party.

ANSWER TO VERIFIED COMPLAINT

Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. hereby respond to each numbered paragraph of the Complaint as follows:

Paragraphs Regarding Parties (¶¶ 1–10)

1. Defendants admit that Northwind Maritime Corporation is a corporation duly organized and existing under the laws of the Republic of the marshall Islands, bearing marshall Islands Entity No. MI-94827, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902. Defendants further admit that Northwind's registered agent for service of process is marshall Islands Maritime Registrars Inc., located at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, marshall Islands MH 96960.

2. Defendants admit that Viktor Lindgren serves as the President and Managing Director of Northwind Maritime Corporation, that Sandra Chow serves as Northwind's Chief Financial Officer, and that Richard Hartnett serves as Northwind's General Counsel.

3. Defendants admit that Thalassa Shipping & Logistics SA is a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece. Defendants further admit that Piraeus Global Agency Corp., located at 30 Broad Street, Suite 1410, New York, New York 10004, serves as TSL's registered agent for service of process in the State of New York.

4. Defendants admit that Alexandros Stavridis serves as Chairman and Chief Executive Officer of Thalassa Shipping & Logistics SA. Defendants further admit that Elena Papadimitriou serves as TSL's Chief Financial Officer and that Markos Theodorakis serves as TSL's General Counsel.

5. Defendants admit that Aegean Fortuna Shipholding Ltd. is a limited liability company duly incorporated under the laws of the Republic of Liberia, that it is a wholly owned subsidiary of TSL, and that it is the registered owner of the M/V Aegean Fortuna (IMO No. 9847231).

6. Defendants admit that TSL operates a fleet of approximately thirty-four (34) vessels, including dry bulk carriers, tankers, and container vessels, and is engaged in the business of international shipping, chartering, and maritime logistics.

7. The allegations of paragraph 7 of the Complaint concern the nature and scope of Northwind's business operations, including commodity trading, shipping logistics, and bulk cargo operations. Defendants lack sufficient knowledge or information to form a belief as to the truth of these allegations, and accordingly deny the same.

8. The allegations of paragraph 8 of the Complaint concern Northwind's annual revenue, which is alleged to be approximately $1.2 billion for fiscal year 2022. Defendants lack sufficient knowledge or information to form a belief as to the truth of these allegations, and accordingly deny the same.

9. Defendants admit that the Supreme Court of the State of New York, New York County, has jurisdiction over this action pursuant to Clause 46(b) of the addendum to the Charter-Party, which provides that either party may elect litigation in the Supreme Court of the State of New York, New York County, Commercial Division, in lieu of arbitration.

10. Defendants admit that venue is proper in the Supreme Court of the State of New York, New York County, pursuant to the forum selection provision contained in Clause 46(b) of the addendum to the Charter-Party. To the extent that paragraph 10 of the Complaint contains legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants admit that this Court is a proper forum for this action.

Paragraphs Regarding the Charter-Party (¶¶ 11–20)

11. Defendants admit that TSL and Northwind executed a time charter-party on or about December 3, 2020, on the New York Produce Exchange 2015 form, as amended, bearing Charter-Party Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party"). Defendants further state that the Charter-Party is the best evidence of its contents and that the document speaks for itself. To the extent the allegations of paragraph 11 of the Complaint characterize or paraphrase the terms of the Charter-Party in a manner inconsistent with the actual text thereof, Defendants deny such characterizations.

12. Defendants admit that the charter period under the Charter-Party was thirty-six (36) months, commencing on January 15, 2021 and expiring on January 14, 2024. Defendants admit that the daily hire rate under the Charter-Party was $14,750 per day. Defendants admit that the approximate total charter value over the 36-month period was approximately $16,166,000, computed as $14,750 per day multiplied by approximately 1,096 days, subject to adjustments for off-hire periods and other deductions as provided by the Charter-Party.

13. Defendants admit that Clause 5 of the Charter-Party establishes worldwide trading limits for the M/V Aegean Fortuna, subject to certain exclusions including ports subject to sanctions administered by the United States Department of the Treasury, Office of Foreign Assets Control ("OFAC"), war-risk zones as designated by the London Joint War Committee Hull War Risks Listed Areas, and ice-bound waters north of 68° North latitude. Defendants respectfully refer the Court to the Charter-Party for the complete and unambiguous text of Clause 5 and its associated riders and addenda.

14. Defendants admit that Clause 6 of the Charter-Party imposes maintenance and seaworthiness obligations upon the Owner, including the obligation to maintain the vessel in compliance with all requirements of the vessel's classification society, the Global Maritime Classification Bureau ("GMCB"). Defendants respectfully refer the Court to the Charter-Party for the full text and precise terms of Clause 6. To the extent the allegations of paragraph 14 characterize Clause 6 in a manner inconsistent with its actual terms, Defendants deny such characterizations.

15. Regarding the allegations of paragraph 15 of the Complaint concerning Clause 28 of the Charter-Party (liquidated damages), Defendants admit that Clause 28 provides for the assessment of liquidated damages upon the Owner's material breach of Clauses 2 and 6 of the Charter-Party, and that the liquidated damages formula specified therein is calculated at one hundred fifty percent (150%) of the aggregate off-hire days multiplied by the daily hire rate. Defendants further admit that Clause 28 contains a cap of $4,500,000 expressed in the clause as applicable "for any single continuous period of breach." However, Defendants deny Northwind's characterization that the cap applies separately to each alleged breach period or incident. As more fully set forth in the Affirmative Defenses below, the $4,500,000 cap, properly construed under New York contract law and in light of the commercial purpose of the liquidated damages provision, applies once to the entire charter period as an aggregate maximum, and the total liquidated damages exposure under any reading of the Charter-Party cannot exceed $4,500,000. Even accepting Northwind's claimed sixty-eight (68) off-hire days at face value, the liquidated damages formula yields only $1,504,500 (68 × $14,750 × 150%), which is well below the cap. Northwind's attempt to invoke the $4,500,000 cap three separate times — once per incident — is a misreading of the plain language of Clause 28 and would produce an unreasonable and commercially absurd result.

16. Defendants admit that the M/V Aegean Fortuna is a Supramax dry bulk carrier with a deadweight tonnage of 58,200 DWT, built in 2016 by Dalian Prosperity Shipyard Co., Ltd., flagged in the Republic of Liberia, classified by the Global Maritime Classification Bureau (GMCB), and bearing IMO No. 9847231.

17. The allegations of paragraph 17 of the Complaint concern a sub-charter purportedly entered into between Northwind and Eastbourne Bulk Carriers Ltd., at an alleged daily hire rate of $17,200 per day. Defendants lack sufficient knowledge or information to form a belief as to the truth of these allegations, and accordingly deny the same. Defendants further state that the sub-charter terms between Northwind and Eastbourne Bulk Carriers Ltd. are not part of the Charter-Party between the parties hereto, were not disclosed to or agreed upon by Defendants, and are not binding upon Defendants.

18. The allegations of paragraph 18 of the Complaint, to the extent they concern the terms of the sub-charter between Northwind and Eastbourne Bulk Carriers Ltd., including the duration thereof, the trading limits applicable thereto, and the sub-charterer's obligations thereunder, are matters as to which Defendants lack sufficient knowledge or information to form a belief, and accordingly Defendants deny the same.

19. The allegations of paragraph 19 of the Complaint, to the extent they concern the sub-charter revenues expected by Northwind under its arrangement with Eastbourne Bulk Carriers Ltd., are matters as to which Defendants lack sufficient knowledge or information to form a belief, and accordingly Defendants deny the same.

20. The allegations of paragraph 20 of the Complaint, to the extent they concern the impact of the alleged breaches of the Charter-Party upon Northwind's sub-charter obligations to Eastbourne Bulk Carriers Ltd., are matters as to which Defendants lack sufficient knowledge or information to form a belief, and accordingly Defendants deny the same. Defendants further deny that any sub-charter obligations between Northwind and Eastbourne Bulk Carriers Ltd. are relevant to the determination of Defendants' liability under the Charter-Party or to the measure of damages recoverable by Northwind.

Paragraphs Regarding Incident 1 — Turbocharger Failure (¶¶ 21–28)

21. Defendants admit that between approximately March 12, 2022 and April 2, 2022, the M/V Aegean Fortuna experienced a main engine turbocharger failure while operating in the Indian Ocean, en route from the port of Paradip, India to the port of Mombasa, Kenya.

22. Defendants admit that the vessel was placed off-hire for a period of twenty-two (22) days as a result of the turbocharger failure and that the necessary repairs were conducted at the port of Colombo, Sri Lanka, at the Fenmore Partners LLC facility.

23. Defendants deny the allegations of paragraph 23 of the Complaint in their entirety. Defendants deny that the turbocharger failure resulted from any failure by Defendants to maintain the M/V Aegean Fortuna in seaworthy condition or in compliance with the maintenance obligations set forth in Clause 6 of the Charter-Party. The turbocharger failure was caused by a latent manufacturing defect in the turbocharger assembly, specifically a micro-fracture in the turbine blade rotor disc, which was not discoverable through the exercise of due diligence, including visual inspection, vibration analysis, and borescope examination performed in accordance with the manufacturer's recommended maintenance schedule and all applicable classification society requirements. Defendants at all times exercised due diligence in maintaining the vessel's machinery, including the turbocharger, in compliance with GMCB requirements, the engine manufacturer's service bulletins, and industry best practices.

24. Defendants deny the allegations of paragraph 24 of the Complaint. Defendants deny that Northwind is entitled to any off-hire deduction for the twenty-two (22) days attributable to Incident 1, as the turbocharger failure was caused by a latent defect for which Defendants are not liable under the Charter-Party or applicable law.

25. Defendants deny the allegations of paragraph 25 of the Complaint. To the extent paragraph 25 alleges that Defendants were negligent in the maintenance, inspection, or repair of the turbocharger, Defendants deny each and every such allegation.

26. Defendants deny the allegations of paragraph 26 of the Complaint. To the extent paragraph 26 alleges that Defendants failed to comply with applicable classification society requirements or manufacturer service bulletins in connection with the turbocharger, Defendants deny each and every such allegation and affirmatively state that all required inspections and maintenance procedures were timely performed.

27. Defendants deny the allegations of paragraph 27 of the Complaint. To the extent paragraph 27 alleges that Northwind suffered specific damages as a result of the turbocharger failure, Defendants deny that Northwind is entitled to liquidated damages, substitute charter costs, or any other damages arising from this incident.

28. Defendants deny the allegations of paragraph 28 of the Complaint. To the extent paragraph 28 contains any remaining allegations not specifically addressed above in connection with Incident 1, Defendants deny each and every such allegation.

Paragraphs Regarding Incident 2 — BWTS/Boiler Failure (¶¶ 29–36)

29. Defendants admit that between approximately July 8, 2022 and July 29, 2022, the M/V Aegean Fortuna experienced a ballast water treatment system ("BWTS") malfunction and an auxiliary boiler failure while the vessel was at the port of Richards Bay, South Africa. Defendants admit that the vessel was placed off-hire for a period of twenty-one (21) days as a result of these equipment issues.

30. Defendants deny that Defendants are responsible for the BWTS malfunction. The malfunction of the ballast water treatment system was caused by the actions of Northwind's agents, who, at a prior port of call, directed the loading of contaminated ballast water into the vessel's ballast tanks. The contaminated ballast water contained foreign particulates, including sediment, organic debris, and chemical residues, that were introduced into the BWTS filtration and UV treatment modules, causing the system to malfunction and triggering regulatory hold at Richards Bay pending remediation. Under the Charter-Party, Northwind, as charterer, bears responsibility for the direction and management of the vessel's commercial operations, including the ports of call and the conditions encountered thereat. Northwind's agents are responsible for the condition of ballast water taken on board the vessel under their direction, and the BWTS malfunction is directly attributable to their conduct.

31. With respect to the auxiliary boiler failure, Defendants admit that the auxiliary boiler required repair during the off-hire period at Richards Bay. However, Defendants deny that the auxiliary boiler failure constituted a breach of Clause 6 of the Charter-Party warranting the quantum of damages claimed by Northwind. The boiler repair was a routine maintenance matter that was expeditiously addressed during the same off-hire period occasioned by the BWTS malfunction, and the boiler issue alone would not have caused any additional off-hire days beyond those already necessitated by the BWTS remediation.

32. Defendants deny the allegations of paragraph 32 of the Complaint. To the extent paragraph 32 alleges that cargo damage occurred — specifically, oxidation of iron ore cargo — during the off-hire period at Richards Bay, Defendants deny that any such damage was caused by the acts or omissions of Defendants. To the extent any iron ore cargo was damaged during the off-hire period, such damage arose from Northwind's own failure to take appropriate cargo protection measures, including failure to arrange for proper ventilation and moisture control of the cargo holds, and from the BWTS contamination that was itself caused by Northwind's agents.

33. Defendants deny the allegations of paragraph 33 of the Complaint. To the extent paragraph 33 alleges additional details regarding the nature, extent, or quantum of cargo damage, Defendants deny each and every such allegation and state that the cargo damage, if any, was the result of Northwind's own conduct.

34. Defendants deny the allegations of paragraph 34 of the Complaint. Defendants deny that Northwind is entitled to recover $3,420,000 or any other amount in cargo damage claims. Any such claims are governed by and barred by the Inter-Club Agreement ("ICA") as between Owner and Charterer. The ICA provides the exclusive mechanism for the allocation and apportionment of cargo claims arising under time charter-parties, and Northwind may not circumvent the ICA by recasting cargo claims as direct damages under the Charter-Party.

35. Defendants deny the allegations of paragraph 35 of the Complaint in their entirety.

36. Defendants deny the allegations of paragraph 36 of the Complaint in their entirety. To the extent paragraph 36 contains any remaining allegations concerning Incident 2 not specifically addressed above, Defendants deny each and every such allegation.

Paragraphs Regarding Incident 3 — Cylinder Liner Failure (¶¶ 37–42)

37. Defendants admit that between approximately November 15, 2022 and December 10, 2022, the M/V Aegean Fortuna experienced a failure of the main engine cylinder liner, which required drydocking at the Keppel Verolme Shipyard facility in Rotterdam, the Netherlands. Defendants admit that the vessel was placed off-hire for a period of twenty-five (25) days as a result of this incident.

38. Defendants admit that the cylinder liner failure in Incident 3 constituted a maintenance failure attributable to Defendants under Clause 6 of the Charter-Party. However, Defendants deny Northwind's claimed quantum of damages arising from this incident and deny that Northwind is entitled to the full measure of liquidated damages, substitute charter costs, and consequential damages claimed in the Complaint. Defendants' concession of liability for Incident 3 extends only to the twenty-five (25) day off-hire period and the direct damages properly attributable thereto, subject to the limitations set forth in the Charter-Party and applicable law, and subject to Northwind's duty to mitigate.

39. Defendants deny the allegations of paragraph 39 of the Complaint. To the extent paragraph 39 alleges specific damages arising from Incident 3 in excess of the off-hire deduction for twenty-five (25) days at the Charter-Party rate, Defendants deny that such damages are reasonable, substantiated, or recoverable.

40. Defendants deny the allegations of paragraph 40 of the Complaint. Defendants affirmatively state that Northwind failed to take reasonable steps to mitigate its damages during the twenty-five (25) day drydock period, including by failing to secure substitute tonnage at commercially reasonable rates and by failing to reschedule or rearrange its cargo commitments in a timely manner.

41. Defendants deny the allegations of paragraph 41 of the Complaint to the extent they seek damages beyond those directly attributable to the twenty-five (25) day off-hire period.

42. Defendants deny the allegations of paragraph 42 of the Complaint in their entirety.

Paragraphs Regarding the Alleged Maputo Deviation (¶¶ 43–50)

43. Defendants deny the allegations of paragraph 43 of the Complaint in their entirety. Defendants deny that they directed the M/V Aegean Fortuna to deviate from its agreed Durban-to-Qingdao voyage in order to load TSL's own cargo at the port of Maputo, Mozambique, in September 2022. No such direction was given by Defendants or any agent of Defendants. The suggestion that the Maputo call was undertaken for Defendants' commercial benefit is false and without foundation.

44. Defendants admit that the M/V Aegean Fortuna called at the port of Maputo, Mozambique during the Durban-to-Qingdao voyage in September 2022. Defendants affirmatively state that the Maputo call was necessitated by prevailing weather conditions and routing considerations in the Mozambique Channel, including adverse sea states, tropical cyclone advisories, and the need to take on additional bunkers in a sheltered port, and was undertaken within the Master's reasonable discretion. The Master of the M/V Aegean Fortuna retains the authority and professional obligation to make routing decisions that are necessary for the safety of the vessel, crew, and cargo, and the Maputo call was a reasonable exercise of that authority.

45. Defendants deny that the call at Maputo added four (4) days to the Durban-to-Qingdao voyage as alleged by Northwind. To the extent the Maputo call occasioned any delay whatsoever, the actual delay attributable to the port call was substantially shorter than four days and was a reasonable consequence of the Master's exercise of professional judgment in light of the prevailing weather and routing conditions.

46. Defendants deny that the Maputo call caused Northwind to miss the Qingdao laycan window of October 1–5, 2022. Defendants affirmatively state that the vessel's late arrival at Qingdao was attributable to multiple factors, including but not limited to weather delays in the South China Sea, congestion at the Qingdao anchorage, and Northwind's own failure to communicate in a timely manner with the Qingdao receivers regarding the anticipated arrival date. The Maputo call was not the proximate cause of any missed laycan.

47. Defendants deny the allegations of paragraph 47 of the Complaint. Defendants deny that Northwind incurred $1,230,000 or any other amount in demurrage and dead freight costs as a result of the alleged deviation to Maputo. To the extent Northwind incurred any such costs, they were attributable to other intervening factors and to Northwind's own failure to manage its commercial arrangements in a prudent manner.

48. Defendants deny the allegations of paragraph 48 of the Complaint in their entirety.

49. Defendants deny the allegations of paragraph 49 of the Complaint in their entirety.

50. Defendants deny the allegations of paragraph 50 of the Complaint in their entirety. To the extent paragraph 50 contains any remaining allegations concerning the alleged Maputo deviation not specifically addressed above, Defendants deny each and every such allegation.

Paragraphs Regarding Damages (¶¶ 51–65)

51. Defendants deny that Northwind's total damages equal $18,300,000 or any amount approaching that figure. Northwind's damages calculation is inflated, speculative, and premised upon legally and factually incorrect assumptions, as set forth more fully below and in the Affirmative Defenses.

52. With respect to Northwind's claimed off-hire deductions in the amount of $1,003,000, Defendants admit only that sixty-eight (68) off-hire days multiplied by the daily hire rate of $14,750 per day yields $1,003,000 as a matter of arithmetic. Defendants deny, however, that all sixty-eight (68) off-hire days are attributable to Defendants' breach of the Charter-Party. Only the twenty-five (25) days attributable to Incident 3 (cylinder liner failure) are concededly attributable to Defendants. Defendants dispute liability for the remaining forty-three (43) off-hire days: the twenty-two (22) days attributable to Incident 1 (turbocharger failure caused by latent defect) and the twenty-one (21) days attributable to Incident 2 (BWTS malfunction caused by Northwind's agents). Accordingly, the maximum off-hire deduction to which Northwind is entitled is $368,750 (25 × $14,750), not $1,003,000.

53. With respect to Northwind's claimed liquidated damages in the amount of $4,500,000, Defendants deny the same. As set forth more fully in the First Affirmative Defense below, Clause 28 of the Charter-Party provides a cap of $4,500,000 "for any single continuous period of breach," which, properly construed under New York contract law, applies once to the entire charter period as an aggregate maximum. Even accepting Northwind's claimed sixty-eight (68) off-hire days at face value, the liquidated damages formula yields $1,504,500 (68 × $14,750 × 150%), a figure that is well below the cap. Northwind's attempt to invoke the $4,500,000 cap three separate times — once per incident — is a misreading of the plain language of Clause 28 and would produce a commercially absurd result. Moreover, because Defendants dispute liability for forty-three (43) of the sixty-eight (68) claimed off-hire days, the proper liquidated damages calculation, if any is owed, is limited to $553,125 (25 × $14,750 × 150%).

54. With respect to Northwind's claimed substitute charter costs in the amount of $471,600, Defendants deny the same. Northwind has not demonstrated that it actually incurred substitute charter costs at a rate of $21,300 per day for seventy-two (72) days. Northwind's documentation of its purported substitute charter arrangements has been deficient and, upon information and belief, Northwind did not in fact charter substitute tonnage for the full seventy-two (72) days claimed. To the extent Northwind did incur substitute charter costs, it failed to mitigate by securing tonnage at commercially reasonable rates.

55. With respect to Northwind's claimed cargo damage in the amount of $3,420,000, Defendants deny the same. Northwind's claim for cargo damage arising from the alleged oxidation of iron ore cargo during Incident 2 is barred by the Inter-Club Agreement ("ICA"), which governs the allocation of cargo claims as between owner and charterer under time charter-parties. The ICA provides the exclusive mechanism for apportioning cargo liability, and Northwind may not circumvent the ICA by asserting cargo damage as a direct claim under the Charter-Party. Moreover, even if the ICA did not bar this claim, the cargo damage was caused by Northwind's own agents' contamination of the ballast water, which precipitated the BWTS malfunction and the resulting delay at Richards Bay during which the cargo oxidation allegedly occurred.

56. With respect to Northwind's claimed demurrage and dead freight costs in the amount of $1,230,000, Defendants deny the same. The Maputo call was not a deviation, as set forth in Defendants' responses to paragraphs 43 through 50 above, and Northwind has failed to establish that the missed Qingdao laycan was caused by the Maputo call rather than by other intervening factors, including weather delays in the South China Sea and Northwind's own failures in commercial planning.

57. With respect to Northwind's claimed additional port and bunker costs in the amount of $875,400, Defendants deny the same. Northwind has failed to substantiate these costs with adequate documentation or to demonstrate a causal connection between the claimed costs and any breach by Defendants. The claimed costs appear to include routine operational expenses that are the charterer's responsibility under the Charter-Party and are not recoverable as damages for breach.

58. With respect to Northwind's claimed lost sub-charter profit in the amount of $166,600, Defendants deny the same. Northwind's sub-charter arrangement with Eastbourne Bulk Carriers Ltd. at a daily hire rate of $17,200 per day was not disclosed to or agreed upon by Defendants and was not foreseeable at the time the Charter-Party was executed. The claimed lost profit, calculated as the differential between the sub-charter rate and the Charter-Party rate ($17,200 minus $14,750 = $2,450 per day) multiplied by sixty-eight (68) off-hire days, yielding $166,600, is speculative and not recoverable as direct or consequential damages under the Charter-Party or New York law.

59. With respect to Northwind's claimed third-party shipper claims in the amount of $5,634,400, Defendants deny the same. Third-party cargo claims asserted by shippers against Northwind are separate liabilities that are not recoverable as direct or consequential damages in a charter-party breach action. To the extent Northwind seeks to pass through its liability to third-party shippers, such claims are barred by the Charter-Party, the Inter-Club Agreement, and applicable principles of New York law. Moreover, such claims are speculative, attenuated, and not within the contemplation of the parties at the time of contracting. Defendants note that they have moved to dismiss Count III of the Complaint, which is premised on these third-party claims.

60. With respect to Northwind's claimed legal fees and expert costs in the amount of $999,000, Defendants deny that such fees and costs are recoverable as an element of damages under the Charter-Party or under New York law. Absent a contractual provision or statutory authorization permitting fee-shifting, each party bears its own legal fees and costs, and the Charter-Party contains no such fee-shifting provision.

61. Defendants deny the allegations of paragraph 61 of the Complaint in their entirety.

62. Defendants deny the allegations of paragraph 62 of the Complaint in their entirety.

63. Defendants deny the allegations of paragraph 63 of the Complaint in their entirety. To the extent paragraph 63 contains allegations regarding the aggregate of Northwind's damages, Defendants deny such allegations and affirmatively state that Northwind failed to mitigate its damages in multiple respects.

64. Defendants deny the allegations of paragraph 64 of the Complaint in their entirety.

65. Defendants deny the allegations of paragraph 65 of the Complaint in their entirety. To the extent paragraph 65 contains any remaining allegations concerning damages not specifically addressed above, Defendants deny each and every such allegation. Defendants affirmatively state that Northwind failed to mitigate its damages, including but not limited to: (a) failing to secure substitute tonnage at commercially reasonable rates during off-hire periods; (b) failing to make timely cargo protection arrangements during the off-hire period at Richards Bay; (c) failing to adjust its Qingdao laycan window or negotiate with the receiver when apprised of potential delays; and (d) failing to exercise its rights under the sub-charter with Eastbourne Bulk Carriers Ltd. to minimize lost sub-charter profit.

Paragraphs Regarding Causes of Action

Count I — Breach of Charter-Party (Maintenance/Seaworthiness): Defendants deny in part the allegations supporting Count I. Defendants concede that the cylinder liner failure (Incident 3) constituted a maintenance failure attributable to Defendants under Clause 6 of the Charter-Party. Defendants dispute, however, their liability for Incident 1 (turbocharger failure caused by latent defect) and Incident 2 (BWTS malfunction caused by Northwind's agents). Defendants further dispute the quantum of damages claimed by Northwind in connection with all three incidents. To the extent Count I alleges legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants deny those allegations except as expressly admitted herein.

Count II — Breach of Charter-Party (Deviation): Defendants deny the allegations supporting Count II in their entirety. The September 2022 call at Maputo, Mozambique was within the Master's reasonable discretion and did not constitute a deviation or breach of Clause 5 or any other provision of the Charter-Party. To the extent Count II alleges legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants deny those allegations.

Count III — Third-Party Shipper Claims as Charter-Party Damages: Defendants deny the allegations supporting Count III in their entirety. Third-party shipper cargo claims are not cognizable as direct damages in a charter-party breach action and are barred by the Inter-Club Agreement. Defendants have moved to dismiss Count III of the Complaint pursuant to CPLR 3211(a)(7) by motion filed on December 15, 2023, which motion is presently pending before this Court.

Count IV — Breach of Implied Warranty of Seaworthiness: Defendants deny the allegations supporting Count IV in their entirety. Defendants exercised due diligence in maintaining the M/V Aegean Fortuna in compliance with all GMCB classification requirements and manufacturer specifications. To the extent Count IV alleges legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants deny those allegations.

Count V — Unjust Enrichment: Defendants deny the allegations supporting Count V in their entirety. Count V is duplicative of Northwind's contract claims and is legally insufficient where, as here, a valid and enforceable contract — the Charter-Party — governs the subject matter of the dispute and the relationship between the parties. Defendants have moved to dismiss Count V of the Complaint pursuant to CPLR 3211(a)(7) by motion filed on December 15, 2023, which motion is presently pending before this Court.

General Denial

Except as expressly admitted hereinabove, Defendants deny each and every allegation contained in the Complaint. To the extent any paragraph of the Complaint contains allegations that are not specifically addressed in this Answer, Defendants deny each and every such allegation. To the extent any paragraph of the Complaint contains allegations that constitute legal conclusions to which no responsive pleading is required, Defendants deny those allegations to the extent they are deemed to require a response.

AFFIRMATIVE DEFENSES

Without waiving or limiting any of the foregoing denials, and without assuming the burden of proof on any issue as to which the burden properly rests with Plaintiff, Defendants assert the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE — Liquidated Damages Cap Interpretation

Northwind's liquidated damages claim is barred, in whole or in part, by the proper construction of Clause 28 of the Charter-Party. Clause 28 provides for the assessment of liquidated damages upon the Owner's material breach of Clauses 2 and 6, calculated at one hundred fifty percent (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." Properly construed under New York contract law and in light of the commercial purpose and context of the provision, this cap applies once to the entire charter period as an aggregate maximum on liquidated damages exposure, not separately to each alleged breach or incident.

Even accepting Northwind's claimed sixty-eight (68) off-hire days at face value — which Defendants do not concede — the liquidated damages formula yields only $1,504,500 (68 days × $14,750/day × 150%), a figure that is well below the $4,500,000 cap. Northwind's attempt to apply the cap separately to each of the three incidents, thereby claiming $4,500,000 in aggregate liquidated damages (or, in Northwind's apparent calculation, seeking to recover $4,500,000 as though each incident independently triggered the cap), is contrary to the plain language of Clause 28, which speaks of "any single continuous period of breach," not "each and every" breach or incident. Northwind's interpretation would render the cap provision meaningless and would transform a limitation on the Owner's exposure into a multiplier of damages, a result that is commercially unreasonable and at odds with the purpose of liquidated damages provisions under New York law. See, e.g., JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373 (2005).

SECOND AFFIRMATIVE DEFENSE — Latent Defect (Incident 1)

Northwind's claims arising from Incident 1 (turbocharger failure, March 12 – April 2, 2022) are barred, in whole or in part, because the turbocharger failure was caused by a latent manufacturing defect that was not discoverable through the exercise of due diligence. The turbocharger failure resulted from a micro-fracture in the turbine blade rotor disc, a defect originating from the manufacturing process that could not be detected through the standard inspection and maintenance procedures prescribed by the turbocharger manufacturer or the vessel's classification society, the Global Maritime Classification Bureau.

Defendants maintained the turbocharger in accordance with the manufacturer's recommended maintenance schedule, including all periodic inspections, vibration analyses, oil sampling and analysis, and borescope examinations. Defendants further complied with all applicable classification society requirements and service bulletins issued by the manufacturer. Under New York law and the NYPE 2015 form, an owner who exercises due diligence in maintaining a vessel is not liable for vessel defects that are latent in nature and not reasonably discoverable through the exercise of due diligence. See The Folmina, 212 U.S. 354, 362 (1909); Complaint of Tecomar S.A., 765 F. Supp. 1150 (S.D.N.Y. 1991). Accordingly, Defendants are not liable for damages arising from the turbocharger failure.

THIRD AFFIRMATIVE DEFENSE — Charterer Causation / Contributory Fault (Incident 2)

Northwind's claims arising from Incident 2 (BWTS malfunction, July 8 – July 29, 2022) are barred, in whole or in part, because the BWTS malfunction was caused by the conduct of Northwind's own agents. The malfunction was precipitated by the loading of contaminated ballast water at a prior port of call under the direction of Northwind's agents. The contaminated ballast water introduced foreign particulates — including sediment, organic debris, and chemical residues — into the vessel's BWTS filtration and UV treatment modules, causing the system to malfunction.

Under the Charter-Party, Northwind, as charterer, bears responsibility for directing the vessel's commercial operations, including the selection of ports of call and the conditions encountered thereat. The condition of ballast water taken on board the vessel under the direction of Northwind's agents is the charterer's responsibility. Northwind's own conduct caused or substantially contributed to the BWTS malfunction and the resulting off-hire period, cargo damage, and other losses that Northwind now seeks to recover from Defendants. Accordingly, Northwind's claims arising from Incident 2 are barred by the doctrine of contributory fault and the equitable principle that a party may not recover for losses caused by its own acts or omissions.

FOURTH AFFIRMATIVE DEFENSE — Master's Discretion / No Deviation (Maputo Call)

Northwind's claims arising from the September 2022 call at Maputo, Mozambique are barred, in whole or in part, because the Maputo call did not constitute a deviation. The Master's decision to call at Maputo during the Durban-to-Qingdao voyage was necessitated by prevailing weather conditions and routing considerations in the Mozambique Channel, including adverse sea states, tropical cyclone advisories, and the need to take on additional bunkers in a sheltered port. The Maputo call was a reasonable exercise of the Master's professional discretion and was consistent with the Master's authority and obligation to ensure the safety of the vessel, crew, and cargo.

Under New York maritime law, general principles of admiralty, and the terms of the Charter-Party, the Master retains discretion to make reasonable routing decisions necessitated by weather, sea conditions, safety considerations, and operational requirements. A call at a port of refuge or a sheltered port for bunkering purposes under adverse weather conditions does not constitute a deviation. See Ralli v. Troop, 157 U.S. 386 (1895); Constable v. National S.S. Co., 154 U.S. 51 (1894). The Maputo call was not a breach of Clause 5 or any other provision of the Charter-Party.

FIFTH AFFIRMATIVE DEFENSE — Inter-Club Agreement Bar on Cargo Damage Claims

Northwind's claim for $3,420,000 in cargo damage (iron ore oxidation during Incident 2) is barred by the Inter-Club Agreement ("ICA"), which governs the allocation of cargo claims as between owner and charterer under time charter-parties. The ICA, which is incorporated into the Charter-Party by Clause 27, provides the exclusive mechanism for apportioning cargo liability between the owner and charterer. Under the ICA's apportionment rules, cargo claims arising from causes attributable to the loading, stowage, or handling of cargo — including claims arising from the charterer's agents' contamination of ballast water — are allocated to the charterer, not the owner.

Northwind may not circumvent the ICA by recasting cargo claims as direct damages under the Charter-Party. The ICA was specifically adopted by the parties to prevent precisely this type of claim, and its application to the cargo damage claims asserted in this action precludes Northwind's recovery. See Daebo Int'l Shipping Co. v. Americas Bulk Transport (BVI) Ltd., No. 12 Civ. 3834 (S.D.N.Y. 2013).

SIXTH AFFIRMATIVE DEFENSE — Non-Recoverability of Third-Party Shipper Claims

Northwind's attempt to recover $5,634,400 in third-party shipper cargo claims as charter-party damages is legally impermissible and fails to state a claim upon which relief can be granted. Third-party cargo claims by shippers against Northwind are separate liabilities arising under bills of lading and other shipping contracts to which Defendants are not parties. Such claims are not direct damages under the Charter-Party and are not recoverable as consequential damages in a charter-party breach action because they are speculative, attenuated, and not within the reasonable contemplation of the parties at the time of contracting.

Under New York law, a party seeking to recover consequential damages must establish that such damages were foreseeable and within the contemplation of the parties at the time the contract was formed. See Kenford Co. v. County of Erie, 73 N.Y.2d 312 (1989). The third-party shipper claims asserted by Northwind were not foreseeable to Defendants, were not discussed or contemplated during the negotiation of the Charter-Party, and bear no direct relationship to the Charter-Party terms. Moreover, these claims are barred by the Inter-Club Agreement, which provides the exclusive mechanism for allocating cargo liability as between owner and charterer. Defendants have moved to dismiss Count III of the Complaint, which is premised on these third-party claims, pursuant to CPLR 3211(a)(7).

SEVENTH AFFIRMATIVE DEFENSE — Failure to Mitigate

Northwind failed to take reasonable steps to mitigate its damages, as required by New York law. See Vireo Trust Bank v. Marlowe Commerce Bank Asset Capital Corp., 47 A.D.3d 103 (1st Dep't 2007). Northwind's failure to mitigate includes, but is not limited to:

(a) Failing to secure substitute tonnage at commercially reasonable rates during the off-hire periods associated with Incidents 1, 2, and 3. Northwind claims substitute charter costs at a rate of $21,300 per day, which exceeds the prevailing market rate for Supramax dry bulk tonnage during the relevant periods and reflects a failure to exercise reasonable commercial judgment in procuring replacement tonnage;

(b) Failing to arrange timely cargo protection measures — including proper ventilation, moisture control, and anti-corrosion treatment — during the off-hire period at Richards Bay (Incident 2), thereby allowing the iron ore cargo to oxidize and sustain damage that could have been prevented or substantially reduced;

(c) Failing to adjust its Qingdao laycan window or negotiate with the receiver in a timely manner when apprised of potential delays to the Durban-to-Qingdao voyage, thereby incurring avoidable demurrage and dead freight costs; and

(d) Failing to exercise its rights under the sub-charter with Eastbourne Bulk Carriers Ltd. to minimize lost sub-charter profit, including by invoking force majeure or off-hire provisions in the sub-charter that would have reduced or eliminated Northwind's sub-charter exposure.

Northwind's damages, to the extent any are recoverable, must be reduced by the amount that could have been avoided through the exercise of reasonable mitigation efforts.

EIGHTH AFFIRMATIVE DEFENSE — Failure to State a Cause of Action (Counts III and V)

Counts III and V of the Complaint fail to state a cause of action upon which relief can be granted, and are subject to dismissal pursuant to CPLR 3211(a)(7). Count III, which seeks to recover third-party shipper cargo claims as charter-party damages, fails because such claims are not cognizable as direct or consequential damages in a charter-party breach action. Count V, which asserts a claim for unjust enrichment, fails because it is duplicative of Northwind's contract claims and is legally insufficient where a valid and enforceable contract — the Charter-Party — governs the subject matter of the dispute and the relationship between the parties. See Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987). Defendants have moved to dismiss Counts III and V pursuant to CPLR 3211(a)(7) by motion filed on December 15, 2023, and such motion is presently pending before this Court.

NINTH AFFIRMATIVE DEFENSE — Reservation of Additional Defenses

Defendants reserve the right to assert additional affirmative defenses as may become apparent during the course of discovery and further investigation of the facts and circumstances underlying Plaintiff's claims. Discovery in this action has not yet been completed, and Defendants' investigation of the relevant facts is ongoing. Defendants will seek leave of Court to amend this Answer to assert any additional affirmative defenses that become apparent as discovery proceeds.

COUNTERCLAIM

Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. (collectively, "Counterclaim Plaintiffs"), by their attorneys, Calderwood & Harkness LLP, for their counterclaim against Northwind Maritime Corporation ("Counterclaim Defendant"), allege as follows:

Parties to the Counterclaim

1. Counterclaim Plaintiff Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") is a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece. TSL is engaged in the business of international shipping, chartering, and maritime logistics, and operates a fleet of approximately thirty-four (34) vessels.

2. Counterclaim Plaintiff Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") is a limited liability company duly incorporated under the laws of the Republic of Liberia, with its registered address at 80 Broad Street, Monrovia, Liberia. Aegean Fortuna Shipholding is a wholly owned subsidiary of TSL and is the registered owner of the M/V Aegean Fortuna (IMO No. 9847231).

3. Counterclaim Defendant Northwind Maritime Corporation ("Northwind") is a corporation organized and existing under the laws of the Republic of the marshall Islands, bearing marshall Islands Entity No. MI-94827, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902.

Factual Allegations

CC-1. Counterclaim Plaintiffs incorporate by reference each and every paragraph of the Answer and Affirmative Defenses set forth above as if fully set forth herein.

CC-2. On or about December 3, 2020, Thalassa and Northwind executed a time charter-party on the New York Produce Exchange 2015 form, as amended, bearing Charter-Party Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party"), for the M/V Aegean Fortuna, for a thirty-six (36) month period commencing January 15, 2021 and expiring January 14, 2024, at a daily hire rate of $14,750.

CC-3. Under the terms of the Charter-Party, Northwind, as charterer, was obligated to pay hire at the rate of $14,750 per day, payable semi-monthly in advance, during the charter period, except during periods of legitimate off-hire as provided under Clause 11 of the Charter-Party. Clause 11 of the Charter-Party sets forth the specific circumstances under which the vessel may be placed off-hire and the procedure for calculating off-hire deductions. Payment of hire was to be made by wire transfer to TSL's designated account at Sundial Commerce Bank, Athens, Greece, in United States dollars, free of bank charges, on the first and fifteenth day of each calendar month during the charter period.

CC-4. From approximately October 1, 2022 through December 31, 2022, a period encompassing approximately ninety-two (92) calendar days of vessel operations, Northwind unilaterally withheld hire payments totaling $1,620,000. This amount represents $14,750 per day multiplied by one hundred ten (110) days, reflecting the hire payments due under the semi-monthly payment schedule for the broader period encompassing the hire withholding. Northwind purported to justify the withholding by citing alleged off-hire rights under Clause 11 of the Charter-Party and equitable setoff rights arising from the disputed damages claims asserted in the Complaint.

CC-5. Northwind's withholding of hire was wrongful and constituted a breach of the Charter-Party. During the period of October 1 through December 31, 2022, the M/V Aegean Fortuna was on hire and actively trading — carrying cargo and performing charter services for Northwind — for a substantial majority of that period. While Counterclaim Plaintiffs acknowledge that Incident 3 (the cylinder liner failure from November 15 through December 10, 2022, a period of twenty-five (25) days) constituted a legitimate off-hire period under Clause 11, the remaining withheld hire — encompassing eighty-five (85) days of the broader payment period — was not supported by any valid off-hire claim or recognized setoff right under the Charter-Party. The vessel was performing services, earning freight, and operating under Northwind's commercial direction during these periods, and Northwind was contractually obligated to pay hire for each day the vessel was on hire.

CC-6. Northwind's reliance on equitable setoff as a basis for withholding hire is without merit. Under New York law and established maritime practice, a charterer may not unilaterally withhold hire based on disputed, unliquidated damage claims. See Federal Commerce & Navigation Co. v. Eisenerz GmbH, 564 F.2d 609 (2d Cir. 1977); The Nanfri [1979] A.C. 757 (H.L.). The damages claims upon which Northwind bases its purported setoff are vigorously disputed by Counterclaim Plaintiffs for the reasons set forth in the Answer and Affirmative Defenses above. Northwind's unilateral withholding of hire in the face of disputed claims constitutes a breach of its fundamental obligation under the Charter-Party to pay hire punctually and in full during periods when the vessel was on hire.

CC-7. Counterclaim Plaintiffs have demanded payment of the withheld hire on multiple occasions, including by letter from Thalassa's General Counsel Markos Theodorakis to Northwind's General Counsel Richard Hartnett, dated January 6, 2023, and by follow-up communications dated February 14, 2023 and April 3, 2023. Northwind has refused to pay the withheld hire or any portion thereof, and the amount of $1,620,000 remains outstanding.

Cause of Action — Breach of Charter-Party (Unpaid Hire)

CC-8. Counterclaim Plaintiffs repeat, re-allege, and incorporate by reference each and every allegation set forth in paragraphs CC-1 through CC-7 above as if fully set forth herein.

CC-9. By failing and refusing to pay hire for the period of October 1, 2022 through December 31, 2022, in the aggregate amount of $1,620,000, Northwind has breached its obligations under the Charter-Party, specifically its obligation to pay hire semi-monthly in advance at the rate of $14,750 per day during periods when the vessel was on hire and performing charter services. This breach is material and goes to the core of the Charter-Party's bargained-for exchange — the provision of the vessel in return for the timely and punctual payment of hire.

CC-10. As a direct and proximate result of Northwind's breach of its hire payment obligations, Counterclaim Plaintiffs have suffered damages in the amount of $1,620,000, plus interest thereon at the applicable rate from the dates the respective hire payments were due. Counterclaim Plaintiffs have been deprived of the use of these funds since the dates the respective hire installments were due, and are entitled to pre-judgment interest to compensate for the time value of the withheld payments.

Prayer for Relief on Counterclaim

WHEREFORE, Counterclaim Plaintiffs Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. respectfully pray for judgment against Counterclaim Defendant Northwind Maritime Corporation as follows:

(a) Judgment in favor of Counterclaim Plaintiffs and against Counterclaim Defendant Northwind Maritime Corporation in the amount of $1,620,000, representing unpaid hire for the period of October 1, 2022 through December 31, 2022;

(b) Pre-judgment interest on the amount of $1,620,000 from the dates the respective hire payments were due, at the applicable statutory rate pursuant to CPLR 5001 and 5004;

(d) Costs and disbursements of this action; and

(e) Such other and further relief as the Court deems just and proper.

PRAYER FOR RELIEF ON ANSWER

WHEREFORE, Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. respectfully request that the Court enter judgment as follows:

(a) Dismissing the Complaint of Plaintiff Northwind Maritime Corporation in its entirety, with prejudice, and with costs to Defendants;

(b) Entering judgment on Defendants' Counterclaim in favor of Defendants and against Northwind Maritime Corporation in the amount of $1,620,000, together with pre-judgment and post-judgment interest at the applicable statutory rates;

(d) Granting such other and further relief as the Court deems just and proper.

VERIFICATION

STATE OF GREECE

REGION OF ATTICA

I, Markos Theodorakis, being duly authorized and sworn, hereby state under oath as follows:

1. I am the General Counsel of Thalassa Shipping & Logistics SA, one of the Defendants in the above-captioned action, and I am authorized to make this verification on behalf of both Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.

2. I have read the foregoing Verified Answer, Affirmative Defenses, and Counterclaim and know the contents thereof. The same is true to my knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true.

3. This verification is made by an officer of the corporate Defendants, rather than by a party individually, because the Defendants are foreign corporations — Thalassa Shipping & Logistics SA is a Société Anonyme organized under the laws of the Hellenic Republic with its principal place of business in Piraeus, Greece, and Aegean Fortuna Shipholding Ltd. is a limited liability company incorporated under the laws of the Republic of Liberia — and the material facts set forth in the foregoing Verified Answer, Affirmative Defenses, and Counterclaim are within the personal knowledge of the General Counsel, who is responsible for the legal affairs of both entities and who has supervised the preparation of this pleading.

4. I make this verification pursuant to CPLR 3020 and 3023 of the New York Civil Practice Law and Rules.

________________________________________

Markos Theodorakis General Counsel Thalassa Shipping & Logistics SA 42 Akti Miaouli, Piraeus 185 38, Greece

Sworn to and subscribed before me this 17th day of November,

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — COMMERCIAL DIVISION
VERIFIED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF DEFENDANTS THALASSA SHIPPING & LOGISTICS SA AND AEGEAN FORTUNA SHIPHOLDING LTD.
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PRELIMINARY STATEMENT
Defendants Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme organized under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece, and Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding"), a limited liability company incorporated under the laws of the Republic of Liberia, Liberian Registration No. LR-C-20167845, with its registered address at 80 Broad Street, Monrovia, Liberia, a wholly owned subsidiary of TSL and the registered owner of the M/V Aegean Fortuna (IMO No. 9847231), by and through their attorneys, Calderwood & Harkness LLP, One Liberty Plaza, 50th Floor, New York, NY 10006, hereby answer the Verified Complaint (the "Complaint") filed by Northwind Maritime Corporation ("Northwind" or "Plaintiff") on October 2, 2023, assert affirmative defenses thereto, and interpose a counterclaim for unpaid hire in the amount of One Million Six Hundred Twenty Thousand Dollars ($1,620,000).
This action arises from the operation of the M/V Aegean Fortuna under a thirty-six (36) month time charter-party executed on the New York Produce Exchange 2015 form, as amended (the "Charter-Party," Charter-Party Ref. No. NW-TSL-CP-2020-1203), dated December 3, 2020, with a commencement date of January 15, 2021 and an expiration date of January 14, 2024, at a daily hire rate of $14,750. Northwind's Complaint alleges that Defendants committed multiple breaches of the Charter-Party and seeks a total of $18,300,000 in damages — a figure that is grossly inflated and bears no rational relationship to the facts or the governing contractual provisions.
The claims advanced by Northwind are legally and factually deficient in multiple respects. First, Northwind's liquidated damages calculation rests upon a fundamental misreading of Clause 28 of the Charter-Party. Northwind contends that the contractual cap of $4,500,000 "for any single continuous period of breach" may be applied separately to each of three alleged incidents, thereby tripling the cap. This interpretation contradicts the plain language of Clause 28 and would produce an absurd result entirely divorced from the commercially reasonable intent of the contracting parties.
Second, with respect to the three mechanical incidents upon which Northwind premises its seaworthiness claims, the facts demonstrate that Defendants bear responsibility for only one — the cylinder liner failure in November-December 2022 (Incident 3). The turbocharger failure (Incident 1) was caused by a latent manufacturing defect that was not discoverable through the exercise of due diligence. The ballast water treatment system malfunction (Incident 2) was caused by Northwind's own agents, who directed the loading of contaminated ballast water at a prior port, introducing foreign particulates that damaged the system.
Third, the alleged deviation to Maputo, Mozambique was not a deviation at all. The Master's decision to call at Maputo during a Durban-to-Qingdao voyage was necessitated by prevailing weather and routing conditions in the Mozambique Channel and fell squarely within the Master's reasonable discretion.
Fourth, Northwind's claims for $3,420,000 in cargo damage and $5,634,400 in third-party shipper claims are barred by the Inter-Club Agreement, which governs the allocation of cargo claims as between owner and charterer under time charter-parties. Third-party shipper claims are not cognizable as direct charter-party damages, and Northwind's attempt to pass through such liabilities is legally impermissible.
Fifth, Northwind failed to mitigate its losses in multiple respects, including by failing to secure substitute tonnage at commercially reasonable rates and by failing to take timely cargo protection measures during off-hire periods.
In addition to defending against Northwind's unfounded claims, Defendants assert a counterclaim against Northwind for $1,620,000 in unpaid hire. During the period from October 1, 2022 through December 31, 2022, Northwind unilaterally withheld hire payments in that amount, purporting to exercise off-hire and equitable setoff rights. That withholding was wrongful. The vessel was actively trading and performing services for Northwind during the substantial majority of that period. A charterer may not unilaterally withhold hire based on disputed, unliquidated damage claims, and Northwind's refusal to pay the withheld hire constitutes a breach of the Charter-Party.
ANSWER TO VERIFIED COMPLAINT
Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. hereby respond to each numbered paragraph of the Complaint as follows:
Paragraphs Regarding Parties (¶¶ 1–10)
1. Defendants admit that Northwind Maritime Corporation is a corporation duly organized and existing under the laws of the Republic of the marshall Islands, bearing marshall Islands Entity No. MI-94827, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902. Defendants further admit that Northwind's registered agent for service of process is marshall Islands Maritime Registrars Inc., located at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, marshall Islands MH 96960.
2. Defendants admit that Viktor Lindgren serves as the President and Managing Director of Northwind Maritime Corporation, that Sandra Chow serves as Northwind's Chief Financial Officer, and that Richard Hartnett serves as Northwind's General Counsel.
3. Defendants admit that Thalassa Shipping & Logistics SA is a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece. Defendants further admit that Piraeus Global Agency Corp., located at 30 Broad Street, Suite 1410, New York, New York 10004, serves as TSL's registered agent for service of process in the State of New York.
4. Defendants admit that Alexandros Stavridis serves as Chairman and Chief Executive Officer of Thalassa Shipping & Logistics SA. Defendants further admit that Elena Papadimitriou serves as TSL's Chief Financial Officer and that Markos Theodorakis serves as TSL's General Counsel.
5. Defendants admit that Aegean Fortuna Shipholding Ltd. is a limited liability company duly incorporated under the laws of the Republic of Liberia, that it is a wholly owned subsidiary of TSL, and that it is the registered owner of the M/V Aegean Fortuna (IMO No. 9847231).
6. Defendants admit that TSL operates a fleet of approximately thirty-four (34) vessels, including dry bulk carriers, tankers, and container vessels, and is engaged in the business of international shipping, chartering, and maritime logistics.
7. The allegations of paragraph 7 of the Complaint concern the nature and scope of Northwind's business operations, including commodity trading, shipping logistics, and bulk cargo operations. Defendants lack sufficient knowledge or information to form a belief as to the truth of these allegations, and accordingly deny the same.
8. The allegations of paragraph 8 of the Complaint concern Northwind's annual revenue, which is alleged to be approximately $1.2 billion for fiscal year 2022. Defendants lack sufficient knowledge or information to form a belief as to the truth of these allegations, and accordingly deny the same.
9. Defendants admit that the Supreme Court of the State of New York, New York County, has jurisdiction over this action pursuant to Clause 46(b) of the addendum to the Charter-Party, which provides that either party may elect litigation in the Supreme Court of the State of New York, New York County, Commercial Division, in lieu of arbitration.
10. Defendants admit that venue is proper in the Supreme Court of the State of New York, New York County, pursuant to the forum selection provision contained in Clause 46(b) of the addendum to the Charter-Party. To the extent that paragraph 10 of the Complaint contains legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants admit that this Court is a proper forum for this action.
Paragraphs Regarding the Charter-Party (¶¶ 11–20)
11. Defendants admit that TSL and Northwind executed a time charter-party on or about December 3, 2020, on the New York Produce Exchange 2015 form, as amended, bearing Charter-Party Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party"). Defendants further state that the Charter-Party is the best evidence of its contents and that the document speaks for itself. To the extent the allegations of paragraph 11 of the Complaint characterize or paraphrase the terms of the Charter-Party in a manner inconsistent with the actual text thereof, Defendants deny such characterizations.
12. Defendants admit that the charter period under the Charter-Party was thirty-six (36) months, commencing on January 15, 2021 and expiring on January 14, 2024. Defendants admit that the daily hire rate under the Charter-Party was $14,750 per day. Defendants admit that the approximate total charter value over the 36-month period was approximately $16,166,000, computed as $14,750 per day multiplied by approximately 1,096 days, subject to adjustments for off-hire periods and other deductions as provided by the Charter-Party.
13. Defendants admit that Clause 5 of the Charter-Party establishes worldwide trading limits for the M/V Aegean Fortuna, subject to certain exclusions including ports subject to sanctions administered by the United States Department of the Treasury, Office of Foreign Assets Control ("OFAC"), war-risk zones as designated by the London Joint War Committee Hull War Risks Listed Areas, and ice-bound waters north of 68° North latitude. Defendants respectfully refer the Court to the Charter-Party for the complete and unambiguous text of Clause 5 and its associated riders and addenda.
14. Defendants admit that Clause 6 of the Charter-Party imposes maintenance and seaworthiness obligations upon the Owner, including the obligation to maintain the vessel in compliance with all requirements of the vessel's classification society, the Global Maritime Classification Bureau ("GMCB"). Defendants respectfully refer the Court to the Charter-Party for the full text and precise terms of Clause 6. To the extent the allegations of paragraph 14 characterize Clause 6 in a manner inconsistent with its actual terms, Defendants deny such characterizations.
15. Regarding the allegations of paragraph 15 of the Complaint concerning Clause 28 of the Charter-Party (liquidated damages), Defendants admit that Clause 28 provides for the assessment of liquidated damages upon the Owner's material breach of Clauses 2 and 6 of the Charter-Party, and that the liquidated damages formula specified therein is calculated at one hundred fifty percent (150%) of the aggregate off-hire days multiplied by the daily hire rate. Defendants further admit that Clause 28 contains a cap of $4,500,000 expressed in the clause as applicable "for any single continuous period of breach." However, Defendants deny Northwind's characterization that the cap applies separately to each alleged breach period or incident. As more fully set forth in the Affirmative Defenses below, the $4,500,000 cap, properly construed under New York contract law and in light of the commercial purpose of the liquidated damages provision, applies once to the entire charter period as an aggregate maximum, and the total liquidated damages exposure under any reading of the Charter-Party cannot exceed $4,500,000. Even accepting Northwind's claimed sixty-eight (68) off-hire days at face value, the liquidated damages formula yields only $1,504,500 (68 × $14,750 × 150%), which is well below the cap. Northwind's attempt to invoke the $4,500,000 cap three separate times — once per incident — is a misreading of the plain language of Clause 28 and would produce an unreasonable and commercially absurd result.
16. Defendants admit that the M/V Aegean Fortuna is a Supramax dry bulk carrier with a deadweight tonnage of 58,200 DWT, built in 2016 by Dalian Prosperity Shipyard Co., Ltd., flagged in the Republic of Liberia, classified by the Global Maritime Classification Bureau (GMCB), and bearing IMO No. 9847231.
17. The allegations of paragraph 17 of the Complaint concern a sub-charter purportedly entered into between Northwind and Eastbourne Bulk Carriers Ltd., at an alleged daily hire rate of $17,200 per day. Defendants lack sufficient knowledge or information to form a belief as to the truth of these allegations, and accordingly deny the same. Defendants further state that the sub-charter terms between Northwind and Eastbourne Bulk Carriers Ltd. are not part of the Charter-Party between the parties hereto, were not disclosed to or agreed upon by Defendants, and are not binding upon Defendants.
18. The allegations of paragraph 18 of the Complaint, to the extent they concern the terms of the sub-charter between Northwind and Eastbourne Bulk Carriers Ltd., including the duration thereof, the trading limits applicable thereto, and the sub-charterer's obligations thereunder, are matters as to which Defendants lack sufficient knowledge or information to form a belief, and accordingly Defendants deny the same.
19. The allegations of paragraph 19 of the Complaint, to the extent they concern the sub-charter revenues expected by Northwind under its arrangement with Eastbourne Bulk Carriers Ltd., are matters as to which Defendants lack sufficient knowledge or information to form a belief, and accordingly Defendants deny the same.
20. The allegations of paragraph 20 of the Complaint, to the extent they concern the impact of the alleged breaches of the Charter-Party upon Northwind's sub-charter obligations to Eastbourne Bulk Carriers Ltd., are matters as to which Defendants lack sufficient knowledge or information to form a belief, and accordingly Defendants deny the same. Defendants further deny that any sub-charter obligations between Northwind and Eastbourne Bulk Carriers Ltd. are relevant to the determination of Defendants' liability under the Charter-Party or to the measure of damages recoverable by Northwind.
Paragraphs Regarding Incident 1 — Turbocharger Failure (¶¶ 21–28)
21. Defendants admit that between approximately March 12, 2022 and April 2, 2022, the M/V Aegean Fortuna experienced a main engine turbocharger failure while operating in the Indian Ocean, en route from the port of Paradip, India to the port of Mombasa, Kenya.
22. Defendants admit that the vessel was placed off-hire for a period of twenty-two (22) days as a result of the turbocharger failure and that the necessary repairs were conducted at the port of Colombo, Sri Lanka, at the Fenmore Partners LLC facility.
23. Defendants deny the allegations of paragraph 23 of the Complaint in their entirety. Defendants deny that the turbocharger failure resulted from any failure by Defendants to maintain the M/V Aegean Fortuna in seaworthy condition or in compliance with the maintenance obligations set forth in Clause 6 of the Charter-Party. The turbocharger failure was caused by a latent manufacturing defect in the turbocharger assembly, specifically a micro-fracture in the turbine blade rotor disc, which was not discoverable through the exercise of due diligence, including visual inspection, vibration analysis, and borescope examination performed in accordance with the manufacturer's recommended maintenance schedule and all applicable classification society requirements. Defendants at all times exercised due diligence in maintaining the vessel's machinery, including the turbocharger, in compliance with GMCB requirements, the engine manufacturer's service bulletins, and industry best practices.
24. Defendants deny the allegations of paragraph 24 of the Complaint. Defendants deny that Northwind is entitled to any off-hire deduction for the twenty-two (22) days attributable to Incident 1, as the turbocharger failure was caused by a latent defect for which Defendants are not liable under the Charter-Party or applicable law.
25. Defendants deny the allegations of paragraph 25 of the Complaint. To the extent paragraph 25 alleges that Defendants were negligent in the maintenance, inspection, or repair of the turbocharger, Defendants deny each and every such allegation.
26. Defendants deny the allegations of paragraph 26 of the Complaint. To the extent paragraph 26 alleges that Defendants failed to comply with applicable classification society requirements or manufacturer service bulletins in connection with the turbocharger, Defendants deny each and every such allegation and affirmatively state that all required inspections and maintenance procedures were timely performed.
27. Defendants deny the allegations of paragraph 27 of the Complaint. To the extent paragraph 27 alleges that Northwind suffered specific damages as a result of the turbocharger failure, Defendants deny that Northwind is entitled to liquidated damages, substitute charter costs, or any other damages arising from this incident.
28. Defendants deny the allegations of paragraph 28 of the Complaint. To the extent paragraph 28 contains any remaining allegations not specifically addressed above in connection with Incident 1, Defendants deny each and every such allegation.
Paragraphs Regarding Incident 2 — BWTS/Boiler Failure (¶¶ 29–36)
29. Defendants admit that between approximately July 8, 2022 and July 29, 2022, the M/V Aegean Fortuna experienced a ballast water treatment system ("BWTS") malfunction and an auxiliary boiler failure while the vessel was at the port of Richards Bay, South Africa. Defendants admit that the vessel was placed off-hire for a period of twenty-one (21) days as a result of these equipment issues.
30. Defendants deny that Defendants are responsible for the BWTS malfunction. The malfunction of the ballast water treatment system was caused by the actions of Northwind's agents, who, at a prior port of call, directed the loading of contaminated ballast water into the vessel's ballast tanks. The contaminated ballast water contained foreign particulates, including sediment, organic debris, and chemical residues, that were introduced into the BWTS filtration and UV treatment modules, causing the system to malfunction and triggering regulatory hold at Richards Bay pending remediation. Under the Charter-Party, Northwind, as charterer, bears responsibility for the direction and management of the vessel's commercial operations, including the ports of call and the conditions encountered thereat. Northwind's agents are responsible for the condition of ballast water taken on board the vessel under their direction, and the BWTS malfunction is directly attributable to their conduct.
31. With respect to the auxiliary boiler failure, Defendants admit that the auxiliary boiler required repair during the off-hire period at Richards Bay. However, Defendants deny that the auxiliary boiler failure constituted a breach of Clause 6 of the Charter-Party warranting the quantum of damages claimed by Northwind. The boiler repair was a routine maintenance matter that was expeditiously addressed during the same off-hire period occasioned by the BWTS malfunction, and the boiler issue alone would not have caused any additional off-hire days beyond those already necessitated by the BWTS remediation.
32. Defendants deny the allegations of paragraph 32 of the Complaint. To the extent paragraph 32 alleges that cargo damage occurred — specifically, oxidation of iron ore cargo — during the off-hire period at Richards Bay, Defendants deny that any such damage was caused by the acts or omissions of Defendants. To the extent any iron ore cargo was damaged during the off-hire period, such damage arose from Northwind's own failure to take appropriate cargo protection measures, including failure to arrange for proper ventilation and moisture control of the cargo holds, and from the BWTS contamination that was itself caused by Northwind's agents.
33. Defendants deny the allegations of paragraph 33 of the Complaint. To the extent paragraph 33 alleges additional details regarding the nature, extent, or quantum of cargo damage, Defendants deny each and every such allegation and state that the cargo damage, if any, was the result of Northwind's own conduct.
34. Defendants deny the allegations of paragraph 34 of the Complaint. Defendants deny that Northwind is entitled to recover $3,420,000 or any other amount in cargo damage claims. Any such claims are governed by and barred by the Inter-Club Agreement ("ICA") as between Owner and Charterer. The ICA provides the exclusive mechanism for the allocation and apportionment of cargo claims arising under time charter-parties, and Northwind may not circumvent the ICA by recasting cargo claims as direct damages under the Charter-Party.
35. Defendants deny the allegations of paragraph 35 of the Complaint in their entirety.
36. Defendants deny the allegations of paragraph 36 of the Complaint in their entirety. To the extent paragraph 36 contains any remaining allegations concerning Incident 2 not specifically addressed above, Defendants deny each and every such allegation.
Paragraphs Regarding Incident 3 — Cylinder Liner Failure (¶¶ 37–42)
37. Defendants admit that between approximately November 15, 2022 and December 10, 2022, the M/V Aegean Fortuna experienced a failure of the main engine cylinder liner, which required drydocking at the Keppel Verolme Shipyard facility in Rotterdam, the Netherlands. Defendants admit that the vessel was placed off-hire for a period of twenty-five (25) days as a result of this incident.
38. Defendants admit that the cylinder liner failure in Incident 3 constituted a maintenance failure attributable to Defendants under Clause 6 of the Charter-Party. However, Defendants deny Northwind's claimed quantum of damages arising from this incident and deny that Northwind is entitled to the full measure of liquidated damages, substitute charter costs, and consequential damages claimed in the Complaint. Defendants' concession of liability for Incident 3 extends only to the twenty-five (25) day off-hire period and the direct damages properly attributable thereto, subject to the limitations set forth in the Charter-Party and applicable law, and subject to Northwind's duty to mitigate.
39. Defendants deny the allegations of paragraph 39 of the Complaint. To the extent paragraph 39 alleges specific damages arising from Incident 3 in excess of the off-hire deduction for twenty-five (25) days at the Charter-Party rate, Defendants deny that such damages are reasonable, substantiated, or recoverable.
40. Defendants deny the allegations of paragraph 40 of the Complaint. Defendants affirmatively state that Northwind failed to take reasonable steps to mitigate its damages during the twenty-five (25) day drydock period, including by failing to secure substitute tonnage at commercially reasonable rates and by failing to reschedule or rearrange its cargo commitments in a timely manner.
41. Defendants deny the allegations of paragraph 41 of the Complaint to the extent they seek damages beyond those directly attributable to the twenty-five (25) day off-hire period.
42. Defendants deny the allegations of paragraph 42 of the Complaint in their entirety.
Paragraphs Regarding the Alleged Maputo Deviation (¶¶ 43–50)
43. Defendants deny the allegations of paragraph 43 of the Complaint in their entirety. Defendants deny that they directed the M/V Aegean Fortuna to deviate from its agreed Durban-to-Qingdao voyage in order to load TSL's own cargo at the port of Maputo, Mozambique, in September 2022. No such direction was given by Defendants or any agent of Defendants. The suggestion that the Maputo call was undertaken for Defendants' commercial benefit is false and without foundation.
44. Defendants admit that the M/V Aegean Fortuna called at the port of Maputo, Mozambique during the Durban-to-Qingdao voyage in September 2022. Defendants affirmatively state that the Maputo call was necessitated by prevailing weather conditions and routing considerations in the Mozambique Channel, including adverse sea states, tropical cyclone advisories, and the need to take on additional bunkers in a sheltered port, and was undertaken within the Master's reasonable discretion. The Master of the M/V Aegean Fortuna retains the authority and professional obligation to make routing decisions that are necessary for the safety of the vessel, crew, and cargo, and the Maputo call was a reasonable exercise of that authority.
45. Defendants deny that the call at Maputo added four (4) days to the Durban-to-Qingdao voyage as alleged by Northwind. To the extent the Maputo call occasioned any delay whatsoever, the actual delay attributable to the port call was substantially shorter than four days and was a reasonable consequence of the Master's exercise of professional judgment in light of the prevailing weather and routing conditions.
46. Defendants deny that the Maputo call caused Northwind to miss the Qingdao laycan window of October 1–5, 2022. Defendants affirmatively state that the vessel's late arrival at Qingdao was attributable to multiple factors, including but not limited to weather delays in the South China Sea, congestion at the Qingdao anchorage, and Northwind's own failure to communicate in a timely manner with the Qingdao receivers regarding the anticipated arrival date. The Maputo call was not the proximate cause of any missed laycan.
47. Defendants deny the allegations of paragraph 47 of the Complaint. Defendants deny that Northwind incurred $1,230,000 or any other amount in demurrage and dead freight costs as a result of the alleged deviation to Maputo. To the extent Northwind incurred any such costs, they were attributable to other intervening factors and to Northwind's own failure to manage its commercial arrangements in a prudent manner.
48. Defendants deny the allegations of paragraph 48 of the Complaint in their entirety.
49. Defendants deny the allegations of paragraph 49 of the Complaint in their entirety.
50. Defendants deny the allegations of paragraph 50 of the Complaint in their entirety. To the extent paragraph 50 contains any remaining allegations concerning the alleged Maputo deviation not specifically addressed above, Defendants deny each and every such allegation.
Paragraphs Regarding Damages (¶¶ 51–65)
51. Defendants deny that Northwind's total damages equal $18,300,000 or any amount approaching that figure. Northwind's damages calculation is inflated, speculative, and premised upon legally and factually incorrect assumptions, as set forth more fully below and in the Affirmative Defenses.
52. With respect to Northwind's claimed off-hire deductions in the amount of $1,003,000, Defendants admit only that sixty-eight (68) off-hire days multiplied by the daily hire rate of $14,750 per day yields $1,003,000 as a matter of arithmetic. Defendants deny, however, that all sixty-eight (68) off-hire days are attributable to Defendants' breach of the Charter-Party. Only the twenty-five (25) days attributable to Incident 3 (cylinder liner failure) are concededly attributable to Defendants. Defendants dispute liability for the remaining forty-three (43) off-hire days: the twenty-two (22) days attributable to Incident 1 (turbocharger failure caused by latent defect) and the twenty-one (21) days attributable to Incident 2 (BWTS malfunction caused by Northwind's agents). Accordingly, the maximum off-hire deduction to which Northwind is entitled is $368,750 (25 × $14,750), not $1,003,000.
53. With respect to Northwind's claimed liquidated damages in the amount of $4,500,000, Defendants deny the same. As set forth more fully in the First Affirmative Defense below, Clause 28 of the Charter-Party provides a cap of $4,500,000 "for any single continuous period of breach," which, properly construed under New York contract law, applies once to the entire charter period as an aggregate maximum. Even accepting Northwind's claimed sixty-eight (68) off-hire days at face value, the liquidated damages formula yields $1,504,500 (68 × $14,750 × 150%), a figure that is well below the cap. Northwind's attempt to invoke the $4,500,000 cap three separate times — once per incident — is a misreading of the plain language of Clause 28 and would produce a commercially absurd result. Moreover, because Defendants dispute liability for forty-three (43) of the sixty-eight (68) claimed off-hire days, the proper liquidated damages calculation, if any is owed, is limited to $553,125 (25 × $14,750 × 150%).
54. With respect to Northwind's claimed substitute charter costs in the amount of $471,600, Defendants deny the same. Northwind has not demonstrated that it actually incurred substitute charter costs at a rate of $21,300 per day for seventy-two (72) days. Northwind's documentation of its purported substitute charter arrangements has been deficient and, upon information and belief, Northwind did not in fact charter substitute tonnage for the full seventy-two (72) days claimed. To the extent Northwind did incur substitute charter costs, it failed to mitigate by securing tonnage at commercially reasonable rates.
55. With respect to Northwind's claimed cargo damage in the amount of $3,420,000, Defendants deny the same. Northwind's claim for cargo damage arising from the alleged oxidation of iron ore cargo during Incident 2 is barred by the Inter-Club Agreement ("ICA"), which governs the allocation of cargo claims as between owner and charterer under time charter-parties. The ICA provides the exclusive mechanism for apportioning cargo liability, and Northwind may not circumvent the ICA by asserting cargo damage as a direct claim under the Charter-Party. Moreover, even if the ICA did not bar this claim, the cargo damage was caused by Northwind's own agents' contamination of the ballast water, which precipitated the BWTS malfunction and the resulting delay at Richards Bay during which the cargo oxidation allegedly occurred.
56. With respect to Northwind's claimed demurrage and dead freight costs in the amount of $1,230,000, Defendants deny the same. The Maputo call was not a deviation, as set forth in Defendants' responses to paragraphs 43 through 50 above, and Northwind has failed to establish that the missed Qingdao laycan was caused by the Maputo call rather than by other intervening factors, including weather delays in the South China Sea and Northwind's own failures in commercial planning.
57. With respect to Northwind's claimed additional port and bunker costs in the amount of $875,400, Defendants deny the same. Northwind has failed to substantiate these costs with adequate documentation or to demonstrate a causal connection between the claimed costs and any breach by Defendants. The claimed costs appear to include routine operational expenses that are the charterer's responsibility under the Charter-Party and are not recoverable as damages for breach.
58. With respect to Northwind's claimed lost sub-charter profit in the amount of $166,600, Defendants deny the same. Northwind's sub-charter arrangement with Eastbourne Bulk Carriers Ltd. at a daily hire rate of $17,200 per day was not disclosed to or agreed upon by Defendants and was not foreseeable at the time the Charter-Party was executed. The claimed lost profit, calculated as the differential between the sub-charter rate and the Charter-Party rate ($17,200 minus $14,750 = $2,450 per day) multiplied by sixty-eight (68) off-hire days, yielding $166,600, is speculative and not recoverable as direct or consequential damages under the Charter-Party or New York law.
59. With respect to Northwind's claimed third-party shipper claims in the amount of $5,634,400, Defendants deny the same. Third-party cargo claims asserted by shippers against Northwind are separate liabilities that are not recoverable as direct or consequential damages in a charter-party breach action. To the extent Northwind seeks to pass through its liability to third-party shippers, such claims are barred by the Charter-Party, the Inter-Club Agreement, and applicable principles of New York law. Moreover, such claims are speculative, attenuated, and not within the contemplation of the parties at the time of contracting. Defendants note that they have moved to dismiss Count III of the Complaint, which is premised on these third-party claims.
60. With respect to Northwind's claimed legal fees and expert costs in the amount of $999,000, Defendants deny that such fees and costs are recoverable as an element of damages under the Charter-Party or under New York law. Absent a contractual provision or statutory authorization permitting fee-shifting, each party bears its own legal fees and costs, and the Charter-Party contains no such fee-shifting provision.
61. Defendants deny the allegations of paragraph 61 of the Complaint in their entirety.
62. Defendants deny the allegations of paragraph 62 of the Complaint in their entirety.
63. Defendants deny the allegations of paragraph 63 of the Complaint in their entirety. To the extent paragraph 63 contains allegations regarding the aggregate of Northwind's damages, Defendants deny such allegations and affirmatively state that Northwind failed to mitigate its damages in multiple respects.
64. Defendants deny the allegations of paragraph 64 of the Complaint in their entirety.
65. Defendants deny the allegations of paragraph 65 of the Complaint in their entirety. To the extent paragraph 65 contains any remaining allegations concerning damages not specifically addressed above, Defendants deny each and every such allegation. Defendants affirmatively state that Northwind failed to mitigate its damages, including but not limited to: (a) failing to secure substitute tonnage at commercially reasonable rates during off-hire periods; (b) failing to make timely cargo protection arrangements during the off-hire period at Richards Bay; (c) failing to adjust its Qingdao laycan window or negotiate with the receiver when apprised of potential delays; and (d) failing to exercise its rights under the sub-charter with Eastbourne Bulk Carriers Ltd. to minimize lost sub-charter profit.
Paragraphs Regarding Causes of Action
Count I — Breach of Charter-Party (Maintenance/Seaworthiness): Defendants deny in part the allegations supporting Count I. Defendants concede that the cylinder liner failure (Incident 3) constituted a maintenance failure attributable to Defendants under Clause 6 of the Charter-Party. Defendants dispute, however, their liability for Incident 1 (turbocharger failure caused by latent defect) and Incident 2 (BWTS malfunction caused by Northwind's agents). Defendants further dispute the quantum of damages claimed by Northwind in connection with all three incidents. To the extent Count I alleges legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants deny those allegations except as expressly admitted herein.
Count II — Breach of Charter-Party (Deviation): Defendants deny the allegations supporting Count II in their entirety. The September 2022 call at Maputo, Mozambique was within the Master's reasonable discretion and did not constitute a deviation or breach of Clause 5 or any other provision of the Charter-Party. To the extent Count II alleges legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants deny those allegations.
Count III — Third-Party Shipper Claims as Charter-Party Damages: Defendants deny the allegations supporting Count III in their entirety. Third-party shipper cargo claims are not cognizable as direct damages in a charter-party breach action and are barred by the Inter-Club Agreement. Defendants have moved to dismiss Count III of the Complaint pursuant to CPLR 3211(a)(7) by motion filed on December 15, 2023, which motion is presently pending before this Court.
Count IV — Breach of Implied Warranty of Seaworthiness: Defendants deny the allegations supporting Count IV in their entirety. Defendants exercised due diligence in maintaining the M/V Aegean Fortuna in compliance with all GMCB classification requirements and manufacturer specifications. To the extent Count IV alleges legal conclusions, no responsive pleading is required, but to the extent a response is deemed required, Defendants deny those allegations.
Count V — Unjust Enrichment: Defendants deny the allegations supporting Count V in their entirety. Count V is duplicative of Northwind's contract claims and is legally insufficient where, as here, a valid and enforceable contract — the Charter-Party — governs the subject matter of the dispute and the relationship between the parties. Defendants have moved to dismiss Count V of the Complaint pursuant to CPLR 3211(a)(7) by motion filed on December 15, 2023, which motion is presently pending before this Court.
General Denial
Except as expressly admitted hereinabove, Defendants deny each and every allegation contained in the Complaint. To the extent any paragraph of the Complaint contains allegations that are not specifically addressed in this Answer, Defendants deny each and every such allegation. To the extent any paragraph of the Complaint contains allegations that constitute legal conclusions to which no responsive pleading is required, Defendants deny those allegations to the extent they are deemed to require a response.
AFFIRMATIVE DEFENSES
Without waiving or limiting any of the foregoing denials, and without assuming the burden of proof on any issue as to which the burden properly rests with Plaintiff, Defendants assert the following affirmative defenses:
FIRST AFFIRMATIVE DEFENSE — Liquidated Damages Cap Interpretation
Northwind's liquidated damages claim is barred, in whole or in part, by the proper construction of Clause 28 of the Charter-Party. Clause 28 provides for the assessment of liquidated damages upon the Owner's material breach of Clauses 2 and 6, calculated at one hundred fifty percent (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." Properly construed under New York contract law and in light of the commercial purpose and context of the provision, this cap applies once to the entire charter period as an aggregate maximum on liquidated damages exposure, not separately to each alleged breach or incident.
Even accepting Northwind's claimed sixty-eight (68) off-hire days at face value — which Defendants do not concede — the liquidated damages formula yields only $1,504,500 (68 days × $14,750/day × 150%), a figure that is well below the $4,500,000 cap. Northwind's attempt to apply the cap separately to each of the three incidents, thereby claiming $4,500,000 in aggregate liquidated damages (or, in Northwind's apparent calculation, seeking to recover $4,500,000 as though each incident independently triggered the cap), is contrary to the plain language of Clause 28, which speaks of "any single continuous period of breach," not "each and every" breach or incident. Northwind's interpretation would render the cap provision meaningless and would transform a limitation on the Owner's exposure into a multiplier of damages, a result that is commercially unreasonable and at odds with the purpose of liquidated damages provisions under New York law. See, e.g., JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373 (2005).
SECOND AFFIRMATIVE DEFENSE — Latent Defect (Incident 1)
Northwind's claims arising from Incident 1 (turbocharger failure, March 12 – April 2, 2022) are barred, in whole or in part, because the turbocharger failure was caused by a latent manufacturing defect that was not discoverable through the exercise of due diligence. The turbocharger failure resulted from a micro-fracture in the turbine blade rotor disc, a defect originating from the manufacturing process that could not be detected through the standard inspection and maintenance procedures prescribed by the turbocharger manufacturer or the vessel's classification society, the Global Maritime Classification Bureau.
Defendants maintained the turbocharger in accordance with the manufacturer's recommended maintenance schedule, including all periodic inspections, vibration analyses, oil sampling and analysis, and borescope examinations. Defendants further complied with all applicable classification society requirements and service bulletins issued by the manufacturer. Under New York law and the NYPE 2015 form, an owner who exercises due diligence in maintaining a vessel is not liable for vessel defects that are latent in nature and not reasonably discoverable through the exercise of due diligence. See The Folmina, 212 U.S. 354, 362 (1909); Complaint of Tecomar S.A., 765 F. Supp. 1150 (S.D.N.Y. 1991). Accordingly, Defendants are not liable for damages arising from the turbocharger failure.
THIRD AFFIRMATIVE DEFENSE — Charterer Causation / Contributory Fault (Incident 2)
Northwind's claims arising from Incident 2 (BWTS malfunction, July 8 – July 29, 2022) are barred, in whole or in part, because the BWTS malfunction was caused by the conduct of Northwind's own agents. The malfunction was precipitated by the loading of contaminated ballast water at a prior port of call under the direction of Northwind's agents. The contaminated ballast water introduced foreign particulates — including sediment, organic debris, and chemical residues — into the vessel's BWTS filtration and UV treatment modules, causing the system to malfunction.
Under the Charter-Party, Northwind, as charterer, bears responsibility for directing the vessel's commercial operations, including the selection of ports of call and the conditions encountered thereat. The condition of ballast water taken on board the vessel under the direction of Northwind's agents is the charterer's responsibility. Northwind's own conduct caused or substantially contributed to the BWTS malfunction and the resulting off-hire period, cargo damage, and other losses that Northwind now seeks to recover from Defendants. Accordingly, Northwind's claims arising from Incident 2 are barred by the doctrine of contributory fault and the equitable principle that a party may not recover for losses caused by its own acts or omissions.
FOURTH AFFIRMATIVE DEFENSE — Master's Discretion / No Deviation (Maputo Call)
Northwind's claims arising from the September 2022 call at Maputo, Mozambique are barred, in whole or in part, because the Maputo call did not constitute a deviation. The Master's decision to call at Maputo during the Durban-to-Qingdao voyage was necessitated by prevailing weather conditions and routing considerations in the Mozambique Channel, including adverse sea states, tropical cyclone advisories, and the need to take on additional bunkers in a sheltered port. The Maputo call was a reasonable exercise of the Master's professional discretion and was consistent with the Master's authority and obligation to ensure the safety of the vessel, crew, and cargo.
Under New York maritime law, general principles of admiralty, and the terms of the Charter-Party, the Master retains discretion to make reasonable routing decisions necessitated by weather, sea conditions, safety considerations, and operational requirements. A call at a port of refuge or a sheltered port for bunkering purposes under adverse weather conditions does not constitute a deviation. See Ralli v. Troop, 157 U.S. 386 (1895); Constable v. National S.S. Co., 154 U.S. 51 (1894). The Maputo call was not a breach of Clause 5 or any other provision of the Charter-Party.
FIFTH AFFIRMATIVE DEFENSE — Inter-Club Agreement Bar on Cargo Damage Claims
Northwind's claim for $3,420,000 in cargo damage (iron ore oxidation during Incident 2) is barred by the Inter-Club Agreement ("ICA"), which governs the allocation of cargo claims as between owner and charterer under time charter-parties. The ICA, which is incorporated into the Charter-Party by Clause 27, provides the exclusive mechanism for apportioning cargo liability between the owner and charterer. Under the ICA's apportionment rules, cargo claims arising from causes attributable to the loading, stowage, or handling of cargo — including claims arising from the charterer's agents' contamination of ballast water — are allocated to the charterer, not the owner.
Northwind may not circumvent the ICA by recasting cargo claims as direct damages under the Charter-Party. The ICA was specifically adopted by the parties to prevent precisely this type of claim, and its application to the cargo damage claims asserted in this action precludes Northwind's recovery. See Daebo Int'l Shipping Co. v. Americas Bulk Transport (BVI) Ltd., No. 12 Civ. 3834 (S.D.N.Y. 2013).
SIXTH AFFIRMATIVE DEFENSE — Non-Recoverability of Third-Party Shipper Claims
Northwind's attempt to recover $5,634,400 in third-party shipper cargo claims as charter-party damages is legally impermissible and fails to state a claim upon which relief can be granted. Third-party cargo claims by shippers against Northwind are separate liabilities arising under bills of lading and other shipping contracts to which Defendants are not parties. Such claims are not direct damages under the Charter-Party and are not recoverable as consequential damages in a charter-party breach action because they are speculative, attenuated, and not within the reasonable contemplation of the parties at the time of contracting.
Under New York law, a party seeking to recover consequential damages must establish that such damages were foreseeable and within the contemplation of the parties at the time the contract was formed. See Kenford Co. v. County of Erie, 73 N.Y.2d 312 (1989). The third-party shipper claims asserted by Northwind were not foreseeable to Defendants, were not discussed or contemplated during the negotiation of the Charter-Party, and bear no direct relationship to the Charter-Party terms. Moreover, these claims are barred by the Inter-Club Agreement, which provides the exclusive mechanism for allocating cargo liability as between owner and charterer. Defendants have moved to dismiss Count III of the Complaint, which is premised on these third-party claims, pursuant to CPLR 3211(a)(7).
SEVENTH AFFIRMATIVE DEFENSE — Failure to Mitigate
Northwind failed to take reasonable steps to mitigate its damages, as required by New York law. See Vireo Trust Bank v. Marlowe Commerce Bank Asset Capital Corp., 47 A.D.3d 103 (1st Dep't 2007). Northwind's failure to mitigate includes, but is not limited to:
(a) Failing to secure substitute tonnage at commercially reasonable rates during the off-hire periods associated with Incidents 1, 2, and 3. Northwind claims substitute charter costs at a rate of $21,300 per day, which exceeds the prevailing market rate for Supramax dry bulk tonnage during the relevant periods and reflects a failure to exercise reasonable commercial judgment in procuring replacement tonnage;
(b) Failing to arrange timely cargo protection measures — including proper ventilation, moisture control, and anti-corrosion treatment — during the off-hire period at Richards Bay (Incident 2), thereby allowing the iron ore cargo to oxidize and sustain damage that could have been prevented or substantially reduced;
(c) Failing to adjust its Qingdao laycan window or negotiate with the receiver in a timely manner when apprised of potential delays to the Durban-to-Qingdao voyage, thereby incurring avoidable demurrage and dead freight costs; and
(d) Failing to exercise its rights under the sub-charter with Eastbourne Bulk Carriers Ltd. to minimize lost sub-charter profit, including by invoking force majeure or off-hire provisions in the sub-charter that would have reduced or eliminated Northwind's sub-charter exposure.
Northwind's damages, to the extent any are recoverable, must be reduced by the amount that could have been avoided through the exercise of reasonable mitigation efforts.
EIGHTH AFFIRMATIVE DEFENSE — Failure to State a Cause of Action (Counts III and V)
Counts III and V of the Complaint fail to state a cause of action upon which relief can be granted, and are subject to dismissal pursuant to CPLR 3211(a)(7). Count III, which seeks to recover third-party shipper cargo claims as charter-party damages, fails because such claims are not cognizable as direct or consequential damages in a charter-party breach action. Count V, which asserts a claim for unjust enrichment, fails because it is duplicative of Northwind's contract claims and is legally insufficient where a valid and enforceable contract — the Charter-Party — governs the subject matter of the dispute and the relationship between the parties. See Clark-Fitzpatrick, Inc. v. Severin Industries, 70 N.Y.2d 382, 388 (1987). Defendants have moved to dismiss Counts III and V pursuant to CPLR 3211(a)(7) by motion filed on December 15, 2023, and such motion is presently pending before this Court.
NINTH AFFIRMATIVE DEFENSE — Reservation of Additional Defenses
Defendants reserve the right to assert additional affirmative defenses as may become apparent during the course of discovery and further investigation of the facts and circumstances underlying Plaintiff's claims. Discovery in this action has not yet been completed, and Defendants' investigation of the relevant facts is ongoing. Defendants will seek leave of Court to amend this Answer to assert any additional affirmative defenses that become apparent as discovery proceeds.
COUNTERCLAIM
Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. (collectively, "Counterclaim Plaintiffs"), by their attorneys, Calderwood & Harkness LLP, for their counterclaim against Northwind Maritime Corporation ("Counterclaim Defendant"), allege as follows:
Parties to the Counterclaim
1. Counterclaim Plaintiff Thalassa Shipping & Logistics SA ("Thalassa" or "TSL") is a Société Anonyme organized and existing under the laws of the Hellenic Republic, with its principal headquarters located at 42 Akti Miaouli, Piraeus 185 38, Greece. TSL is engaged in the business of international shipping, chartering, and maritime logistics, and operates a fleet of approximately thirty-four (34) vessels.
2. Counterclaim Plaintiff Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding") is a limited liability company duly incorporated under the laws of the Republic of Liberia, with its registered address at 80 Broad Street, Monrovia, Liberia. Aegean Fortuna Shipholding is a wholly owned subsidiary of TSL and is the registered owner of the M/V Aegean Fortuna (IMO No. 9847231).
3. Counterclaim Defendant Northwind Maritime Corporation ("Northwind") is a corporation organized and existing under the laws of the Republic of the marshall Islands, bearing marshall Islands Entity No. MI-94827, with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, Connecticut 06902.
Factual Allegations
CC-1. Counterclaim Plaintiffs incorporate by reference each and every paragraph of the Answer and Affirmative Defenses set forth above as if fully set forth herein.
CC-2. On or about December 3, 2020, Thalassa and Northwind executed a time charter-party on the New York Produce Exchange 2015 form, as amended, bearing Charter-Party Reference No. NW-TSL-CP-2020-1203 (the "Charter-Party"), for the M/V Aegean Fortuna, for a thirty-six (36) month period commencing January 15, 2021 and expiring January 14, 2024, at a daily hire rate of $14,750.
CC-3. Under the terms of the Charter-Party, Northwind, as charterer, was obligated to pay hire at the rate of $14,750 per day, payable semi-monthly in advance, during the charter period, except during periods of legitimate off-hire as provided under Clause 11 of the Charter-Party. Clause 11 of the Charter-Party sets forth the specific circumstances under which the vessel may be placed off-hire and the procedure for calculating off-hire deductions. Payment of hire was to be made by wire transfer to TSL's designated account at Sundial Commerce Bank, Athens, Greece, in United States dollars, free of bank charges, on the first and fifteenth day of each calendar month during the charter period.
CC-4. From approximately October 1, 2022 through December 31, 2022, a period encompassing approximately ninety-two (92) calendar days of vessel operations, Northwind unilaterally withheld hire payments totaling $1,620,000. This amount represents $14,750 per day multiplied by one hundred ten (110) days, reflecting the hire payments due under the semi-monthly payment schedule for the broader period encompassing the hire withholding. Northwind purported to justify the withholding by citing alleged off-hire rights under Clause 11 of the Charter-Party and equitable setoff rights arising from the disputed damages claims asserted in the Complaint.
CC-5. Northwind's withholding of hire was wrongful and constituted a breach of the Charter-Party. During the period of October 1 through December 31, 2022, the M/V Aegean Fortuna was on hire and actively trading — carrying cargo and performing charter services for Northwind — for a substantial majority of that period. While Counterclaim Plaintiffs acknowledge that Incident 3 (the cylinder liner failure from November 15 through December 10, 2022, a period of twenty-five (25) days) constituted a legitimate off-hire period under Clause 11, the remaining withheld hire — encompassing eighty-five (85) days of the broader payment period — was not supported by any valid off-hire claim or recognized setoff right under the Charter-Party. The vessel was performing services, earning freight, and operating under Northwind's commercial direction during these periods, and Northwind was contractually obligated to pay hire for each day the vessel was on hire.
CC-6. Northwind's reliance on equitable setoff as a basis for withholding hire is without merit. Under New York law and established maritime practice, a charterer may not unilaterally withhold hire based on disputed, unliquidated damage claims. See Federal Commerce & Navigation Co. v. Eisenerz GmbH, 564 F.2d 609 (2d Cir. 1977); The Nanfri [1979] A.C. 757 (H.L.). The damages claims upon which Northwind bases its purported setoff are vigorously disputed by Counterclaim Plaintiffs for the reasons set forth in the Answer and Affirmative Defenses above. Northwind's unilateral withholding of hire in the face of disputed claims constitutes a breach of its fundamental obligation under the Charter-Party to pay hire punctually and in full during periods when the vessel was on hire.
CC-7. Counterclaim Plaintiffs have demanded payment of the withheld hire on multiple occasions, including by letter from Thalassa's General Counsel Markos Theodorakis to Northwind's General Counsel Richard Hartnett, dated January 6, 2023, and by follow-up communications dated February 14, 2023 and April 3, 2023. Northwind has refused to pay the withheld hire or any portion thereof, and the amount of $1,620,000 remains outstanding.
Cause of Action — Breach of Charter-Party (Unpaid Hire)
CC-8. Counterclaim Plaintiffs repeat, re-allege, and incorporate by reference each and every allegation set forth in paragraphs CC-1 through CC-7 above as if fully set forth herein.
CC-9. By failing and refusing to pay hire for the period of October 1, 2022 through December 31, 2022, in the aggregate amount of $1,620,000, Northwind has breached its obligations under the Charter-Party, specifically its obligation to pay hire semi-monthly in advance at the rate of $14,750 per day during periods when the vessel was on hire and performing charter services. This breach is material and goes to the core of the Charter-Party's bargained-for exchange — the provision of the vessel in return for the timely and punctual payment of hire.
CC-10. As a direct and proximate result of Northwind's breach of its hire payment obligations, Counterclaim Plaintiffs have suffered damages in the amount of $1,620,000, plus interest thereon at the applicable rate from the dates the respective hire payments were due. Counterclaim Plaintiffs have been deprived of the use of these funds since the dates the respective hire installments were due, and are entitled to pre-judgment interest to compensate for the time value of the withheld payments.
Prayer for Relief on Counterclaim
WHEREFORE, Counterclaim Plaintiffs Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. respectfully pray for judgment against Counterclaim Defendant Northwind Maritime Corporation as follows:
(a) Judgment in favor of Counterclaim Plaintiffs and against Counterclaim Defendant Northwind Maritime Corporation in the amount of $1,620,000, representing unpaid hire for the period of October 1, 2022 through December 31, 2022;
(b) Pre-judgment interest on the amount of $1,620,000 from the dates the respective hire payments were due, at the applicable statutory rate pursuant to CPLR 5001 and 5004;
(c) Post-judgment interest at the statutory rate pursuant to CPLR 5003 and 5004;
(d) Costs and disbursements of this action; and
(e) Such other and further relief as the Court deems just and proper.
PRAYER FOR RELIEF ON ANSWER
WHEREFORE, Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd. respectfully request that the Court enter judgment as follows:
(a) Dismissing the Complaint of Plaintiff Northwind Maritime Corporation in its entirety, with prejudice, and with costs to Defendants;
(b) Entering judgment on Defendants' Counterclaim in favor of Defendants and against Northwind Maritime Corporation in the amount of $1,620,000, together with pre-judgment and post-judgment interest at the applicable statutory rates;
(c) Awarding Defendants their costs and disbursements in connection with this action; and
(d) Granting such other and further relief as the Court deems just and proper.
VERIFICATION
STATE OF GREECE
REGION OF ATTICA
I, Markos Theodorakis, being duly authorized and sworn, hereby state under oath as follows:
1. I am the General Counsel of Thalassa Shipping & Logistics SA, one of the Defendants in the above-captioned action, and I am authorized to make this verification on behalf of both Defendants Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd.
2. I have read the foregoing Verified Answer, Affirmative Defenses, and Counterclaim and know the contents thereof. The same is true to my knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true.
3. This verification is made by an officer of the corporate Defendants, rather than by a party individually, because the Defendants are foreign corporations — Thalassa Shipping & Logistics SA is a Société Anonyme organized under the laws of the Hellenic Republic with its principal place of business in Piraeus, Greece, and Aegean Fortuna Shipholding Ltd. is a limited liability company incorporated under the laws of the Republic of Liberia — and the material facts set forth in the foregoing Verified Answer, Affirmative Defenses, and Counterclaim are within the personal knowledge of the General Counsel, who is responsible for the legal affairs of both entities and who has supervised the preparation of this pleading.
4. I make this verification pursuant to CPLR 3020 and 3023 of the New York Civil Practice Law and Rules.
________________________________________
Markos Theodorakis General Counsel Thalassa Shipping & Logistics SA 42 Akti Miaouli, Piraeus 185 38, Greece
Sworn to and subscribed before me this 17th day of November,

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

PRELIMINARY STATEMENT

ANSWER TO VERIFIED COMPLAINT

AFFIRMATIVE DEFENSES

COUNTERCLAIM

PRAYER FOR RELIEF ON ANSWER

VERIFICATION

STATE OF GREECE

REGION OF ATTICA

Record

Parties

Dates

Amounts