The top 10 maritime lawyers is one section of their feature on 2019's Top 100 most influential people in shipping. For further details please click here.

Simon Rainey QC

Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills, commercial pragmatism and commitment to client care. He has established a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance. He appears in the Commercial Court and Court of Appeal and also the Supreme Court. He has extensive experience of arbitration, regularly appearing before all of the main domestic and international arbitral bodies and trade associations. He particularly relishes complicated legal disputes and also cross-examination, especially in cases involving heavy expert evidence, of both technical disciplines and foreign law. He is well-known as a cheerful and easy to work with team player who rolls his sleeves up in long and complex trials and arbitrations.

He has been cited for many years as a Leading Silk in the areas of Shipping, Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers & Partners and Legal 500. He also sits as a Deputy High Court Judge in the Commercial Court. "He has it all under complete control, and he reads the court, his opponents and the direction of the case perfectly" (Chambers UK, 2020); "Truly a super silk - devastatingly sharp and exceptional on his feet." (Legal 500, 2020).

To view full website profile, please click here.

Simon Rainey QC

Simon is one of the best-known practitioners at the Commercial Bar with a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance and has extensive experience of international arbitration. Simon regularly acts in groundbreaking shipping and commodity cases including NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh) [2016] UKSC 20 where Simon represented Cargill. The decision is the leading one in relation to a contracting party’s responsibility for the vicarious or delegated performance by a third party of its contractual obligations, both in the common charterparty and international sale of goods contexts and more generally. In Bunge SA v Nidera SA [2015] UKSC 43 Simon represented Bunge in a landmark decision by the Supreme Court on GAFTA Default Clause and sale of goods damages after The Golden Victory. His most recent appearance in the Supreme Court was in Volcafe Ltd v Compania Sud Americana de Vapores SA [2018] UKSC 61 one of the most important shipping appeals in recent times, dealing with issues as to the burden of proof under the Hague / Hague-Visby Rules and the inherent vice defence. He has been brought in to argue the prospective Supreme Court appeal in Evergreen Marine Ltd v Nautical Challenge Ltd (The Ever Smart) [2018] EWCA Civ 2173, on the application of the ‘crossing rule’ under the Collision Regulations. 

Ranked as the “Star Individual” for shipping and commodities by Chambers UK in 2015, 2016, 2017, 2018 and again in 2019, Simon was ranked as Shipping Silk of the Year 2017 by both Chambers and Partners UK and Legal 500 UK Awards and one of the Top Ten Maritime Lawyers 2017 and again in 2018 by Lloyd’s List. He has also been cited for many years as a leading Silk in the areas of Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers UK and/or Legal 500. He was shortlisted for Shipping Silk of the Year at the Chambers UK Bar Awards 2018 and for Shipping Silk of the Year and International Arbitration Silk of the Year at the Legal 500 UK Awards 2019.

He has given expert evidence of English law to courts in several countries. He also sits as a Recorder in the Crown Court and as a Deputy High Court Judge (Commercial Court).

John Russell QC

John is an experienced and determined advocate and has acted as lead Counsel in numerous Commercial Court trials, international and marine arbitrations and appellate cases, including in the Supreme Court. He relishes both detailed legal argument and cross-examination of lay and expert witnesses. He will always ensure that a client’s case is presented in the most persuasive manner possible, both in writing and orally. John provides advice to a wide range of clients. He combines first rate technical legal analysis with a pragmatic, commercial, problem solving approach to cases. John accepts instructions in many fields of commercial dispute resolution with a particular focus on shipping, commodities, international trade and marine insurance. John has recently appeared successfully in the Supreme Court in Volcafe v CSAV, in the Court of Appeal in The “Pacific Voyager” and in the Admiralty Court in The “CMA CGM Libra”.

International Arbitration Set of the Year
Shipping Set of the Year
Simon Croall QC - Shipping Silk of the Year
Simon Rainey QC – International Arbitration Silk of the Year and Shipping Silk of the Year
John Russell QC - Shipping Silk of the Year
Stewart Buckingham - Shipping Junior of the Year
David Semark - Shipping Junior of the Year
Benjamin Coffer - Shipping Junior of the Year

A list of all the nominations can be viewed here

Simon Croall QC

Simon Croall QC is Head of Quadrant Chambers. He is an established commercial silk who has appeared in every court (including two recent appearances in the Supreme Court). He is a sought after trial advocate as well as being respected in the appellate courts. He is particularly well known for his experience in the following fields: dry shipping and commodities, commercial litigation, International Arbitration, energy, insurance and Information Technology

He also has a global practice with a depth of experience working with Chinese and south east Asian clients. This was recognised by his ranking as a leader in International Arbitration by Chambers Asia Pacific 2018 and Legal 500 Asia Pacific Guides. Simon was named one of the top 10 maritime lawyers of 2017 by Lloyd's List. Simon was nominated for Shipping Silk of the Year at the Chambers & Partners Bar Awards 2018 and named Shipping Silk of the Year at the Legal 500 UK awards 2019.

Simon is recommended as a leading silk Shipping and Commodities (Legal 500 UK and Asia Pacific, Chambers UK, Asia Pacific and Global editions), Energy (Legal 500 UK) and Information Technology (Chambers UK). Recent praise includes: "Really attuned to the client, very clear in his thinking and very sympathetic to the client's cause. He brings clarity and a sense of humour, which makes him delightful to work with" (Chambers UK, 2020) and "A very smooth, calm and considered advocate with a masterful grip on the issues." (Legal 500, 2020)

To view full website profile, please click here.

Simon Rainey QC

Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills, commercial pragmatism and commitment to client care. He has established a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance. He appears in the Commercial Court and Court of Appeal and also the Supreme Court. He has extensive experience of arbitration, regularly appearing before all of the main domestic and international arbitral bodies and trade associations. He particularly relishes complicated legal disputes and also cross-examination, especially in cases involving heavy expert evidence, of both technical disciplines and foreign law. He is well-known as a cheerful and easy to work with team player who rolls his sleeves up in long and complex trials and arbitrations.

He has been cited for many years as a Leading Silk in the areas of Shipping, Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers & Partners and Legal 500. He also sits as a Deputy High Court Judge in the Commercial Court. "He has it all under complete control, and he reads the court, his opponents and the direction of the case perfectly" (Chambers UK, 2020); "Truly a super silk - devastatingly sharp and exceptional on his feet." (Legal 500, 2020).

To view full website profile, please click here.

John Russell QC

John is an experienced and determined commercial advocate and has acted as lead Counsel in numerous Commercial Court trials, international and marine arbitrations and appellate cases, including in the Supreme Court. He has also appeared as counsel in inquests and public enquiries.

He relishes both detailed legal argument and cross-examination of lay and expert witnesses. He will always ensure that a client's case is presented in the most persuasive manner possible, both in writing and orally.

John provides advice to a wide range of clients. He combines first rate technical legal analysis with a pragmatic, commercial, problem solving approach to cases.

John accepts instructions in many fields of commercial dispute resolution with a particular focus on shipping, commodities, international trade, marine insurance, aviation and travel.

He is ranked in the Legal 500 and Chambers & Partners in Shipping, Commodities, Aviation and Travel and was also shortlisted for Shipping Silk of the Year for the Chambers & Partners Bar Awards 2019

To view full website profile, please click here.

Stewart Buckingham

Stewart is a commercial barrister, specialising in commercial law, mainly focussing on commercial litigation and international arbitration. He has extensive trial, interlocutory and arbitration experience, and also undertakes advisory work and drafting. His takes a commercially driven approach tailored to the practical needs of his clients, and aims to deliver excellence in the services he provides. He is particularly adept at dealing with complex technical disputes.

Stewart is shortlisted for Shipping Junior of the Year for the Legal 500 UK Awards 2020. He has been consistently ranked as a 'Leading Junior' in both the leading directories for several years. Comments have included:"praised for his approachability and user-friendliness, and is further admired for his advocacy skills"; "a delight to work with"; "easily understandable advice and commercially minded, down-to-earth style" (Chambers UK).

"very able, easy to work with and delivers excellent advice"; "previously rare salvage experience"; "highly regarded" (The Legal 500).

To view full website profile, please click here.

David Semark

David ‘Produces excellent work and represents exceptional value for an experienced litigator.’ (Legal 500 2015). David previously trained in the Shipping Department of one of South Africa's leading maritime and international trade firms, before joining and later becoming a partner at what is now known as Reed Smith. He retrained as a barrister and became a member of Quadrant in 2010.

David specialises in commercial law, with a particular emphasis on shipping and maritime law (especially dry shipping disputes), international trade and commodities, jurisdictional disputes and insurance. Although his practice is primarily as an advocate, he is also an LCIA arbitrator.

David was in the Supreme Court with Simon Rainey QC in October 2018 on the issues as to the burden of proof under the Hague / Hague-Visby Rules raised on the appeal in Volcafe Ltd v Compania Sud Americana de Vapores SA [2016] EWCA Civ 1103.

He is the co-author of P&I Clubs: Law and Practice (2010, 4th ed.) and Maritime Letters of Indemnity (2014, 1st ed.)

To view full website profile, please click here.

Benjamin Coffer

Ben was named Shipping Junior of the Year 2019 at the Chambers & Partners Bar Awards and is described by the directories as "very calm and professional in his assessment, which conveys confidence and gravitas beyond his call." (Chambers UK, 2020); "has the ability to simplify the trickiest of legal problems in a way that is readily understandable" and "a rising star" (Legal 500, 2019). He is also recognised as a leading junior in the Legal 500 Asia Pacific Guide. Ben undertakes the full spectrum of shipping work, including every species of charterparty and bill of lading claim, as well as shipbuilding and ship finance disputes. He has developed a particular specialisim in cases involving carriage of goods under the Hague and Hague-Visby Rules, and has appeared in several of the leading cases on such claims in recent years.

To view full website profile, please click here. 

Background Facts

The case concerned a number of companies in the group commonly known as Cambridge Analytica, (hereinafter, for ease of exposition, referred to as ‘Cambridge Analytica’). The business involved the acquisition of commercial data from multiple vendors, its amalgamation and analysis and the use of the analysis to target and message clients. Cambridge Analytica’s clients included political parties and campaign groups who used its services to seek to influence voting behaviour in both the United Kingdom and the United States.

On 10 January 2017, a Professor Carroll submitted a Subject Access Request (‘SAR’) in England to one of Cambridge Analytica group companies, SCL Group Limited (‘Group’), seeking to find out whether it (or any associated companies) held any of his personal data, what was the legal basis for any processing of that data and, for each ‘data point’, full information as to its source. He did not receive a reply he regarded as satisfactory. Therefore, on 16 March 2018, he issued court proceedings against some of the group companies (including Group and Cambridge Analytica (UK) Limited) founded on section 7 of the UK Data Protection Act 1998. It would seem that Prof. Carroll’s legal action had a wider strategic purpose since on his ‘crowd funding’ website he had solicited donations to fund his campaign to establish the principle that ‘companies cannot use personal data in any way they see fit’.

Following allegations over Cambridge Analytica’s misuse of personal data of Facebook users in March 2018, the UK Information Commissioner’s Office (‘the ICO’) raided the offices of Cambridge Analytica and seized several servers and significant quantities of evidence (including accounting books and records). The controversy led to a number of Cambridge Analytica’s clients cancelling their contracts and seeking the return of payments made. Moreover, Cambridge Analytica’s inability to access accounting data meant that it failed to pay debts as and when they fell due. Consequently, each of the group companies applied to enter into administration.

At the conclusion of the hearing of the administration application (which spanned over two-days) on 3 May 2018, the Judge (Hildyard J) found, with some hesitation and ‘on balance’, that there was a real prospect of a better result for Cambridge Analytica’s creditors in an administration (compared to a liquidation) and consequently appointed Messrs. Green and Newman as the joint administrators of each of the group companies (‘the Joint Administrators’). The main plan of the Joint Administrators was to effect the sale of all or part of Cambridge Analytica’s business.

It quickly became apparent, however, that Cambridge Analytica could not continue to trade because the ICO had seized its laptops and servers such that the sale of the business could not be achieved. Consequently, the Joint Administrators proposed to creditors that the group companies of Cambridge Analytica should be placed into compulsory liquidation and that they, the Joint Administrators, be appointed as Joint Liquidators. The creditors for each of the group companies accepted the proposal. Prof. Carroll voted against the proposal as far as it concerned SCL Elections Limited (‘Elections’), the only group company in whose administration he held voting rights as a contingent creditor.

On 11 August 2018 the Joint Administrators presented petitions for the winding up of Cambridge Analytica and their appointment as Joint Liquidators. Prof. Carroll objected to the proposal. He initially expressed his objections on the basis that ‘he was concerned that the administrators [were] insufficiently objective’ and would ‘fail to hold the balance fairly as between him … and the directors/shareholders of Cambridge Analytica who were responsible for their initial appointment’. He subsequently broadened his objections so as to attack both the personal integrity and professional competence of the Joint Administrators. His objections were wide-ranging. Some of those objections are addressed immediately below.

The objections to the Joint Administrators’ conduct

The Joint Administrators’ alleged failure to disclose Prof. Carroll’s pending court proceedings at the time of the administration order

Since, on the evidence, it was clear that the Joint Administrators only became aware of the court proceedings after the administration order was made, Prof. Carroll mainly argued that the Joint Administrators’ duty of candour included a duty to make reasonable enquiries (analogous to the duty of parties applying ‘without notice’ for interim relief). In this regard Prof. Carroll relied on the case of Re OGX3 (a case concerning an application for recognition of a Brazilian insolvency proceeding under the GB Cross-Border Insolvency Regulations 2006 specifically in order to obtain a stay of a London arbitration, where the judge was not told that the subject matter of the arbitration was not affected by the collective insolvency proceedings in Brazil). He argued that had such investigations been made, the court proceedings would have come to light and the Court would have modified the automatic stay to permit the court proceedings to continue notwithstanding the administration order.

The Judge (Norris J) rejected the submission on the basis that the Joint Administrators had a duty to make reasonable enquiries relating to their ability:

a. to provide a certificate that one of the purposes of the administration was reasonably likely to be achieved; and

b. to perform the duties of their office.

In light of those duties the Joint Administrators were under no duty to make themselves as fully informed about the company’s general affairs as the applicant company. As noted by the Judge:

‘In general (there is always the possibility of an exceptional case) he or she [the administrator] is not before appointment bound to seek out every piece of litigation in which the company is involved and to consider the impact of the statutory moratorium upon it: not least because the alternative will generally be liquidation, which will impose its own stringent moratorium under section 130 [of the Insolvency Act 1986.]’

The Joint Administrators’ alleged lack of candour concerning the funding of their fees

The Judge found that it was not unusual, as in this case, for the ultimate holding company (which is also a major creditor) to underwrite the costs of the administration of its subsidiaries in order to obtain the best recovery. The Judge did, however, emphasise that administrators were not the sole judges of what may or may not be material as regards funding and should, where necessary, be prepared to expose their judgement to the consideration of others (including the Court). The Judge found that the Joint Administrators ‘belatedly’ disclosed the funding arrangement to the Judge hearing the administration application (and, in so doing, belatedly complied with their duty in this regard). However, the Judge did find that the Joint Administrators showed misjudgement in not having volunteered information concerning the funding of their fees earlier in the administration application.

The Joint Administrators’ alleged incompetence in certifying that there was a reasonable likelihood of achieving the purpose of the administration

Given the concerns expressed by Hildyard J at the administration application hearing, the Judge found that this allegation potentially had some weight. After eschewing the ‘hindsight element’ (this is what happened, so it should have been foreseen) the Judge set out the relevant question as follows:

‘The question for the proposed administrators was whether at the date of the hearing (and in particular on its second day), and looking ahead from the standpoint of their current knowledge, they were able to abide by the statement in their respective consents to act that ‘the purpose of administration was reasonably likely to be achieved’ i.e. that there was a real prospect of that outcome. This is a question of immediate judgment, where there may be a reasonable difference of view.’

The Judge found that the Joint Administrators had (among other things) acted on information from the directors about ‘concrete expression[s] of interest’ in the businesses so that they were entitled to form the view they did. The Judge found that the Joint Administrators’ view was not ‘irrational, perverse or outside the range of views that might be held by reasonably competent practitioners (even if some proposed office holders would have taken a different view)’.6 The Judge also suggested that in order to prove such a case of incompetence against administrators appropriate expert evidence might be necessary.

The Joint Administrators’ alleged lack of candour concerning the costs of the administrations

The Joint Administrators’ proposed fees were almost double the fees contained in their initial estimated outcome statement. Prof. Carroll argued that in the circumstances the Joint Administrators had not told the truth about their fees such that they were rendered unfit to be liquidators. The Judge rejected the argument. The Judge found that the increase from the initial estimated fees (based on four days of familiarity of the companies’ business) to the actual fees did not mean that the Joint Administrators had not told the truth or lacked candour. Taking a pragmatic approach, the Judge was also comforted by the fact that, in addition to Creditor Committee scrutiny, the approval of creditors was required in any event before the Joint Administrators could draw their fees.

The Joint Administrators’ alleged actual bias against Prof. Carroll

Prof. Carroll had requested the provision of all the materials adduced for the administration application. The Joint Administrators’ solicitors refused the request on grounds of costs. The Judge found that the Joint Administrators should have disclosed to Prof. Carroll their preappointment certificates, estimated outcome statement and skeleton argument relied on at the administration application hearing when asked since such documents were readily to hand. The Judge applied the following test: ‘Are the acts of the Joint Administrators disclosed by the incontrovertible parts of the documentary record so perverse that they can only be attributed to bias?’ The Judge found that the acts and omissions of the Joint Administrators were equally consistent with the Joint Administrators thinking in good faith (for good reason or bad) that they had a strong case for acting as they did, supported by the majority of the general body of creditors. As such, the Judge rejected the allegation of actual bias by the Joint Administrators against Prof. Carroll.

The Joint Administrators’ alleged misconduct in not petitioning for liquidation sooner

The Judge found that the Joint Administrators could have applied for directions from the Court earlier as soon as it became clear that the sale of the business could not occur. However, the Judge found that it was not outside the proper range of decisions for the Joint Administrators to wait for the delivery of the Statement of Affairs in order to ascertain the number and value of creditors and seek their views on the proposal to place Cambridge Analytica into compulsory liquidation.

The Joint Administrators’ alleged misconduct in relation to Prof. Carroll’s Subject Access Request

On 4 May 2018, the ICO served an Enforcement Notice on Elections requiring it to provide better answers to Prof. Carroll’s SAR. The Joint Administrators did not cause Elections to take steps to comply with the Enforcement Notice since (a) they were not themselves ‘data controllers’ (per Re Southern Pacific Personal Loans Ltd);7 (b) the relevant servers were in the custody and control of the ICO; (c) from 22 May 2018, Elections had no staff; and (d) the costs of complying would have been disproportionate to the value of the assets and would impact adversely on recovery for the general body of creditors. Elections pleaded guilty to a subsequent prosecution by the ICO for not complying with the Enforcement Notice. It was fined £15,00 and ordered to pay in addition £6000 in costs. Prof. Carroll argued that the Joint Administrators were guilty of misconduct in relation to the Enforcement Notice. The Judge found that the attempts at compliance with the Enforcement Notice would have involved Elections incurring costs that would have ranked as an expense of the administration (to the potential detriment of general creditors); in contrast, non-compliance by Elections with the Enforcement Notice had resulted in some minimal costs and an additional unsecured claim. Since there was no evidence that the latter situation would be more burdensome to the creditors than the former situation, the Judge could not find that the Joint Administrators had misconducted themselves.

Outcome

Having rejected the complaints of Prof. Carroll the Judge stepped back and considered whether it was right in any event to place Cambridge Analytica into compulsory liquidation with the Joint Administrators as the Joint Liquidators. The Judge found that it would be ‘conducive to the proper operation of the liquidation’ to place Cambridge Analytica into compulsory liquidation and appoint the Joint Administrators as the Joint Liquidators, especially in light of the Joint Administrators’ familiarity with the business.

Conclusion

The case emphasises the generous margin that administrators are afforded by the court in making difficult decisions in the conduct and affairs of a company in administration. It also provides some welcome clarification of the extent to which the administrators have a duty to make reasonable enquiries of a company pre-their appointment as administrators.

Jeremy Richmond

Jeremy specialises in commercial and modern chancery law.  He is described in Chambers and Partners as a “superb advocate” whose “expertise in chancery, commercial and banking matters is a useful complement to his insolvency skills”. He has been ranked as 'Leading Junior' for Commercial Litigation and Insolvency in The Legal 500 2020. 

Jeremy’s practice spans a broad range of commercial chancery and insolvency matters.  It encompasses company law (including directors misfeasance), shareholder and joint venture disputes, banking law, sale of goods (both international and domestic), fraud (with an emphasis on asset recovery) and all aspects of general commercial law.   He also has a specialisation in cross-border insolvency issues particularly in relation to the shipping, commodities, insurance and aviation sectors.  Jeremy has advised and / or appeared for key parties in OW Bunker, Hanjin Shipping, STX Pan Ocean, Alpha Insurance and Arik Airlines. He regularly appears in the Chancery Division as well as in the Commercial and Circuit Commercial Courts.   Jeremy often works in conjunction with Counsel from other jurisdictions and with experts. 

> To view Jeremy's full profile, please click here.

jeremy.richmond@quadrantchambers.com

Matthew Reeve

Matthew is a highly experienced barrister with a wide-ranging commercial practice. He appears as the front-line advocate at all levels of the senior courts, especially the Commercial Court, the Court of Appeal and the House of Lords, as well as in international commercial arbitrations (in which he also receives appointments as an arbitrator).

He has attracted recognition for his handling of larger cases requiring complex legal and factual analysis and the coordination of large teams of lawyers and experts on cases from around the world including (recently) Saudi Arabia, Brunei, Bermuda, Dubai, China, Korea, Cayman Islands, India and New Zealand. Clients include members of royal families, senior military figures, three premiership football clubs, international sportsmen and well-known business personalities in the United States and UK, aviation authorities (in the UK and abroad), insurance regulatory authorities, as well as international insurance and reinsurance companies and airlines.

Matthew combines the highest standards of advocacy (including traditional cross-examination skills) with the application of the most modern litigation-management techniques. He is consistently ranked as a 'Leading Junior' in the latest editions of both Chambers UK and The Legal 500 for Aviation, Shipping and International Arbitration and was shorltisted for Shipping Junior of the Year for the Legal 500 UK Awards 2019.

> View Matthew's profile

The Case

The dispute arose from the grounding of the “BSLE SUNRISE” off Valencia in September 2012. The owners declared general average. Cargo interests issued general average bonds. The defendant insurers provided security for those bonds on the standard form general average guarantee approved by the Association of Average Adjusters and the Institute of London Underwriters.

Owners brought a claim under the guarantees for contribution in general average and it was agreed that the question of whether the wording of the guarantees made a Rule D defence available in principle to the guarantors would be decided by way of preliminary issue.

The guarantees provided that the insurers undertook to pay ‘“any contribution to General Average and/or Salvage and/or Special Charges which may hereafter be ascertained to be properly due in respect of the said goods.” 

Judgment

HHJ Pelling QC, siting as a High Court Judge, held that if the actionable fault defence was available to the receivers, no sums were payable under the guarantees. The standard form wording preserved the insurer’s right to rely on the defence available to the receivers under Rule D if the loss was caused by the shipowner’s actionable fault.

The Judge considered that the word “due” in the bonds signified a sum that was legally owing or payable. He relied on the judgment of Sheen J in The Jute Express [1991] 2 Lloyds Rep 55 in holding that “and which is payable” means “and which is legally due.” He noted that the payment was to be made “on behalf” of the cargo interests concerned, suggesting that what the insurer was agreeing to pay was what the parties to the adventure would otherwise have had to pay themselves.

The inclusion of the word “properly” served to put the point beyond doubt. The Judge found support in the success of insurers resisting claims under similarly worded guarantees in The Cape Bonny [2017] EWHC 3036 and The Kamsar Voyager [2002] 2 Lloyds Rep 57 (the Judge inferring that the guarantee in Kamsar was worded similarly to those in the present case).

Owners relied upon The Maersk Neuchatel [2014] EWHC 1643 in support of their interpretation. Hamblen J had held a that Letter of Undertaking assumed an obligation to pay the sum determined under the average adjustment. The Judge distinguished the case on the basis that the wording of the LOU in that case was different.

Conclusion

It is now clear that actionable fault is a defence available to insurers under the standard form ILU / AAA guarantee. The same is also likely to be true for most other forms of guarantee: the Judge considered that his conclusion was in accordance with the settled practice and understanding of the shipping industry, and that only very clear wording could justify departing from that practice and understanding. The Maersk Neuchatel looks to be the exception rather than the rule. 

> download a copy of the judgment here

Ruth Hosking

Ruth’s practice encompasses the broad range of general commercial litigation and arbitration.  Her particular areas of specialism include shipping, civil fraud, private international law and commodities.  She undertakes drafting and advisory work in all areas of her practice and regularly appears in court and in arbitration, both as sole counsel and as a junior.  Ruth also accepts appointments as an arbitrator (both as sole and as part of a panel).

Ruth has appeared in the House of Lords, Court of Appeal, High Court and has represented clients in a variety of international and trade arbitrations (including ICC, LCIA, LMAA, GAFTA and FOSFA).  She has been involved in a number of high profile cases, including "The Achilleas", a leading case on the contractual principles of remoteness of damage and "The Atlantik Confidence", the first case in which an English Court has determined that a person was barred from relying on the limits provided by the Limitation Convention. 

> view Ruth's full profile

ruth.hosking@quadrantchambers.com

Benjamin Coffer

Ben was named Shipping Junior of the Year 2019 at the Chambers & Partners Bar Awards. He is described by the directories as  "a rising star" (Legal 500, 2019); “a standout shipping and commodities junior" (Chambers & Partners, 2018) and “a star of the future” (Chambers & Partners, 2017). He is also recognised as a leading junior in the Legal 500 Asia Pacific Guide. His significant recent cases include: 

• Volcafe v. CSAV [2019] AC 358, the Supreme Court's authoritative analysis of the inherent vice defence and the burden of proof in cargo claims;
• The Lady M [2019] 2 Lloyd's Rep. 109 (Court of Appeal), the first modern decision on the meaning of 'barratry' and its effect on the defences under the Hague Rules;
• Alba Exotic Fruit v MSC Mediterranean Shipping Co [2019] EWHC 1779 (Comm), considering the test to be applied on an application to strike out for intentional delay;
• The Maersk Tangier [2018] 2 Lloyd’s Rep 59 (Court of Appeal), the leading English case on package limitation for containerised cargoes under the Hague-Visby Rules; 
• Al Khattiya c/w Jag Laadki [2018] 2 Lloyd's Rep. 243, concerning the significance of the place of a collision in a forum non conveniens application; and,
• The Aqasia [2018] 1 Lloyd's Rep 530 (Court of Appeal), settling a 90-year dispute as to whether Article IV.5 applies to bulk cargoes. 

> view Ben's full profile

benjamin.coffer@quadrantchambers.com

Benjamin Coffer

Ben was named Shipping Junior of the Year 2019 at the Chambers & Partners Bar Awards. He is described by the directories as  "a rising star" (Legal 500, 2019); “a standout shipping and commodities junior" (Chambers & Partners, 2018) and “a star of the future” (Chambers & Partners, 2017). He is also recognised as a leading junior in the Legal 500 Asia Pacific Guide. His significant recent cases include: 

• Volcafe v. CSAV [2019] AC 358, the Supreme Court's authoritative analysis of the inherent vice defence and the burden of proof in cargo claims;
• The Lady M [2019] 2 Lloyd's Rep. 109 (Court of Appeal), the first modern decision on the meaning of 'barratry' and its effect on the defences under the Hague Rules;
• Alba Exotic Fruit v MSC Mediterranean Shipping Co [2019] EWHC 1779 (Comm), considering the test to be applied on an application to strike out for intentional delay;
• The Maersk Tangier [2018] 2 Lloyd’s Rep 59 (Court of Appeal), the leading English case on package limitation for containerised cargoes under the Hague-Visby Rules; 
• Al Khattiya c/w Jag Laadki [2018] 2 Lloyd's Rep. 243, concerning the significance of the place of a collision in a forum non conveniens application; and,
• The Aqasia [2018] 1 Lloyd's Rep 530 (Court of Appeal), settling a 90-year dispute as to whether Article IV.5 applies to bulk cargoes. 

Ben's broad international commercial practice has a particular emphasis on commodities, insurance / reinsurance and shipping. He appears as sole and junior counsel in the Court of Appeal, the Commercial Court and the London Mercantile Court, and before arbitral tribunals under the rules of many different international organisations including the LMAA, the LCIA, the ICC, the SIAC, the HKIAC, the Swiss Chambers' Arbitration Institution, FOSFA and GAFTA.

Ben undertakes the full spectrum of shipping work, including every species of charterparty and bill of lading claim, as well as shipbuilding and ship finance disputes. He has developed a particular specialisim in cases involving carriage of goods under the Hague and Hague-Visby Rules, and has appeared in several of the leading cases on such claims in recent years in the Court of Appeal and Supreme Court. 

> view Ben's profile

Jeremy and Max’s client was a former director of a private merchant bank, the arranger for the investment. The claimant investor alleged that Jeremy and Max’s client had induced it to invest US$3m on the basis of allegedly deceitful statements about the investment sums already raised.

The trial began on 2 October 2019, listed for 10 days before HHJ Pelling QC (sitting as a Judge of the High Court). After 2 days of evidence by the claimant’s witnesses (including Jeremy’s cross-examination of the claimant’s sole director), the claimant discontinued its claim and agreed to pay the defendants’ costs of the proceedings on the indemnity basis.

Jeremy Richmond

Jeremy specialises in commercial and modern chancery law.  He is described in Chambers and Partners as a “superb advocate” whose “expertise in chancery, commercial and banking matters is a useful complement to his insolvency skills”. He has been ranked as 'Leading Junior' for Commercial Litigation and Insolvency in The Legal 500 2020. 

Jeremy’s practice spans a broad range of commercial chancery and insolvency matters.  It encompasses company law (including directors misfeasance), shareholder and joint venture disputes, banking law, sale of goods (both international and domestic), fraud (with an emphasis on asset recovery) and all aspects of general commercial law.   He also has a specialisation in cross-border insolvency issues particularly in relation to the shipping, commodities, insurance and aviation sectors.  Jeremy has advised and / or appeared for key parties in OW Bunker, Hanjin Shipping, STX Pan Ocean, Alpha Insurance and Arik Airlines. He regularly appears in the Chancery Division as well as in the Commercial and Circuit Commercial Courts.   Jeremy often works in conjunction with Counsel from other jurisdictions and with experts. 

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Max Davidson

Max undertakes work in a broad range of commercial disputes, including shipping, sale of goods, international arbitration, conflicts of law, aviation, energy and insurance. He regularly appears in the Commercial Court and in international arbitration.

Prior to joining Quadrant Chambers, Max studied law at King's College London, Oxford and Harvard. He was also a Visiting Tutor in Contract Law and Trusts Law and an Examiner in Commercial Arbitration at King's College London during 2012-2013.

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