Christopher smith qc - Essex Court Chambers

CHRISTOPHER SMITH QCBorn 1964Essex Court Chambers24 Lincoln’s Inn FieldsLondon WC2A 3EGUnited KingdomTel: +44 (0) 20 7813 8000Fax: +44 (0) 20 7813 8080Out of Hours Fax: +44 (0)20 72090512Mobile: 07887 603 563Email: csmith@essexcourt.netPractice Arbitration as Counsel and Mediator Commercial Litigation Injunctions & Arrests Insurance & Reinsurance International Trade & Transport Mediation as Counsel and Mediator Professional Negligence Shipping & AdmiraltyCareer 1989 Call: Inner Temple2009 SilkChristopher Smith has a broad based commercial practiceinvolving advisory work, mediation, litigation in the Court ofAppeal and all divisions of the High Court, and arbitration both inEngland and Wales and abroad including Hong Kong, Korea,Singapore and Norway. Christopher also accepts appointmentsas an arbitrator (both as sole and as part of a three persontribunal) and is a CEDR Accredited Mediator.Education 1987 LLB (First Class Hons), Southampton UniversityAwards 1988 Duke of Edinburgh Scholarship1982 Oundle School Mathematics ScholarLanguagesMemberPublicationsFrench (working knowledge), German (working knowledge)Chartered Institute of ArbitratorsCommercial Bar Association (COMBAR)London Common Law and Commercial Bar AssociationLondon Maritime Arbitrators Association (Supporting Member)CEDR ExchangeLondon Court of International ArbitrationThe Baltic ExchangeLOF 90 and the New Salvage Convention (LLP, 1991, withGerald Darling QC)Seafarer’s Rights (Contributor) (OUP 2005)Scrutton on Charterparties and Bills of Lading (Co-Editor)(Thomson Sweet and Maxwell 2011)Specific AreasArbitration as CounselReported and other significant cases in recent years include;Re D; Instructed by the Owners of this vessel which wasChristopher Smith Page 1 of 10

and procedure.S v C Instructed by the Buyer of two ships being constructed inChina. I was originally instructed in relation to two arbitrations(one in relation to each vessel) concerning the construction ofthe vessels, but the Builder subsequently commenced courtproceedings in China. I have subsequently been involved in twofurther, related arbitrations and High Court proceedings in whichmy clients sought and obtained anti suit injunctions from theCommercial Court and the London Arbitrators.Azov v Baltic [1999] 2 Lloyd’s Rep 159; [1999] 1 Lloyd’s Rep 68;[1999] 2 Lloyd’s Rep 159; Acted for the Respondent in thisarbitration application. Reported on 2 points of practice beforebeing decided by Colman J.Vakis T [2002] 2 Lloyd’s 465. Instructed on behalf of theshipowners in this matter which involved a successful appeal tothe Commercial Court against an award of LMAA arbitrators inrespect of a failed unsafe berth claim.Moscliff Investment Limited v Philipanas Shell PetroleumCorporation; [2005] 2 Lloyds 378. Instructed by owners in thisarbitration in which both parties appealed to the CommercialCourt against the arbitrator’s decision on 3 preliminary issues.Through Transport v New India [2004] 1 Lloyd’s Rep 206. [2005]2 Lloyds Rep 378 [2005] 1 Lloyd’s Rep 67 Instructed on behalfof the Defendant insurers in this case in which the Court ofAppeal considered the question of the grant of anti suitinjunctions restraining proceedings in Lugano Convention Statesalleged to be in breach of an English Arbitration clause. Moore-Bick J. granted an injunction which was set aside by the Court ofAppeal. The matter then came back before Moore-Bick J on theClaimant’s application for the appointment of an arbitrator.Commercial LitigationReported and other significant cases in recent years include;St. Nicholas Trading Company v Tarquin Boat CompanyInstructed on behalf of the Defendant in this long runningcommercial dispute arising out of a Distribution Agreemententered into between the parties for the distribution of luxurymotor yachts. The dispute also concerned issues arising out of aSettlement Agreement by which earlier litigation had beensettled.Standard Life v DSS and GSH Instructed by the SecondDefendant in this matter which arose out of the destruction byfire of a document storage warehouse owned by the Claimant.My clients were responsible for weekly testing of the sprinklersystem which in the event failed to control the fire which mayhave been started deliberately. It was alleged that my clientsnegligently left one of the pumps isolated. This was denied andsubstantial issues of remoteness and causation also arose incircumstances where the backup pump operated but was turnedoff on the night in question.Christopher Smith Page 3 of 10

Riva Bella SA v Tamsen Yachts Represented the Defendant atthe trial of this Commercial Court claim concerning theconstruction and sale of a luxury motor yacht. Various technicalissues arose as to the construction of the yacht but the claimalso involved complex contractual issues in relation to the role ofthe broker involved. The case was particularly sensitive becauseit appeared that a number of secret commissions had been paid.H v O Instructed by the agent bank in relation to a substantialsyndicated loan. Numerous issues arose between the SeniorLenders and the Junior Lenders and between the banks and theborrower. Proceedings were commenced in England and also inGreece before the borrower sought chapter 11 protection in theUnited States. I have provided advice on numerous occasionsthroughout the proceedings and also provided written evidenceon English law to the US court.Caterpillar Financial Services v SNC Passion [2004] 2 LloydsRep 99. I was instructed by the Defendant in this claim forrepayment of monies advanced for the purchase of a high speedferry.Abu Dhabi Investment Company v H. Clarkson and Company[2006] 2 Lloyd’s Rep 381. Instructed on behalf of the lendingbank in this substantial claim in which allegations of negligentmisrepresentation were made arising out of the re-financing of afleet of vessels.ABP v Ferryways [2008] 2 Lloyds Rep 333. Instructed on behalfof the 1 st Defendant in relation to this claim for repudiatorybreach of a long term contract to provide port services.Insurance & ReinsuranceReported and other significant cases in recent years include;C v H . Instructed on behalf of this Respondent in this arbitrationarising out of the alleged expropriation of the Claimants’ interestin a joint venture project in China. The dispute concerned thequestion of coverage under a political risks insurance policy.Re N; Instructed on behalf of the Claimants in this arbitrationconcerning claims under the vessel’s war risks insurance arisingout of the prolonged detention of the vessel in St. Petersburg.M v N; Instructed by the Claimant Insurers in this arbitration inwhich my clients claimed a declaration that they were not liableto the Respondents who have commenced separateproceedings against my clients in France. The arbitratorsdetermined (and declared) that they had jurisdiction to hear theclaim.Irene EM – Acted for the Defendants in this matter whichconcerns a claim by the Owners of the vessel against Hull andMachinery insurers and also her IV and ACR insurers. TheClaimant alleged that when the vessel grounded she wasrendered a total loss as a result of an insured peril. Bothelements of the claim were denied.Kyzuna Investments Ltd v Ocean Marine [2000] 1 Lloyd’s RepChristopher Smith Page 4 of 10

505; A decision of Thomas J. on a preliminary issue as towhether or not a policy of insurance for a classic yacht was avalued or unvalued policy.Professional NegligenceReported and other significant cases in recent years include;Gladman Commercial Properties v Fisher Hargreaves ProctorInstructed by the Third Defendant which concerns the attemptedsale of a plot of land for development as managed studentaccommodation. My client was one of the joint selling agentsand was accused of having made fraudulent misrepresentationsin relation to the site. The claim was struck out on variousgrounds.TVR v Clyde & Co Instructed on behalf of a leading InternationalLaw Firm, in relation to this matter in which a former clientthreatened to bring proceedings but initially failed to do so. Thematter was particularly complex because of the number ofdifferent jurisdictions involved in the underlying transactions inwhich my clients were involved. I represented my clients inproceedings which were commenced in this jurisdiction claiminga declaration that they were not liable in respect of any of thealleged claims. The Claimant subsequently commencedproceedings in Norway and I assisted in the preparation of theDefence in those proceedings and at all stages up to trial.H v H I advised the potential claimant in this matter in relation toclaims for professional negligence against the brokers and subbrokers who were required to obtain reinsurance for theclaimant. In the event no binding cover was obtained apparentlydue to the fraud of one or more persons claiming to act for thereinsurer. Difficult issues of causation arise as well as questionsas to which broker (if any) is liable.N v H Instructed on behalf of the potential defendants in thismatter. The Claimants alleged that my clients (their formersolicitors) were negligent in not protecting time in respect ofvarious claims arising under four shipbuilding contracts. Issuesarose as to if and when the underlying claims became timebarred, which are complicated by the fact that the case handlermoved firms at a time when at least arguably the claims (orsome of them) were not yet time barred.Stapleton v Howard Kennedy; Instructed on behalf of theDefendant solicitors in this claim which came on for trial after theClaimant’s appeal against summary judgment entered for theDefendants was allowed. The claim was abandoned during thecourse of cross examination of the Claimant.A & B v C & D; Acted for the Claimants in this action forprofessional negligence against the managers andadministrators of an off shore company and the insurancebrokers appointed by them. The claim arose out of the fact thatthe Claimants’ yacht was uninsured when lost by fire.London & Regional v Lawrence Graham; Instructed on behalf ofthe Defendant solicitors in this professional negligence claimrelating to a purposed joint venture agreement.Christopher Smith Page 5 of 10

D.P. Mann v Egypt Re; Instructed on behalf of the brokers in thissubstantial reinsurance dispute in which allegations ofnegligence are made against the brokers involved.Banque Brussels Lambert SA v Eagle Star [1995] LRLR 17;Acted for one of the Defendant firms of valuers in this leadingcase on the proper quantum of damages.Michael Gerson Investments v Haines Watts [2002] Lloyd’sP.N. 493 Instructed on behalf of the Defendant solicitors in thisprofessional negligence claim involving 9 claims arising out of afailed tax avoidance scheme. Rimer J determined a preliminaryissue in favour of the Claimants in 2001 and the nine claimsproceeded to trial in 2002. All of the claims were eventuallysettled and contribution proceedings were they pursued againstother professional advisers involved in the scheme.Shipping & AdmiraltyReported and other significant cases in recent years include;L v P Advised the purchasers of 7 different ships beingpurchased for in excess of US$35 m each in relation to theirrights under the various shipbuilding contracts which theywished to terminate because of excessive delay by the Sellers inthe construction of all 7 ships. The original disputes were settledand I then advised in relation to disputes which arose under thesettlement agreement.Sun Cross v Rickmers Genoa Instructed on behalf of theOwners of the Defendant vessel in this collision action. I haveadvised on numerous different matters arising out of the collision(which resulted in the loss of Sun Cross and all but 2 of hercrew) which were dealt with in a number of different jurisdictionsincluding China, Korea and the United States. I represented theDefendants at the trial before the Admiralty Court of the claimsarising out of the loss of the cargo on board Sun Cross.K Instructed on behalf of the Respondents in this substantialclaim relating to the management of a specialist support vesselclassed for work involving Dynamic Positioning. A large numberof technical issues arise both as to the state of the vessel andthe level of management services provided.“M.L.” Instructed on behalf of one of the time charterers in thisdispute which concerned liability for grounding damagesustained by the vessel whilst berthing. The various claimswere passed down a long chain of back to back timecharterparties. My clients in fact sub chartered the vessel byway of a voyage charter which gave rise to the risk that theymight not be able to pass on down the line any liabilities theywere under up the line.Sappi Paper Holding -v- Gearbulk AG Instructed on behalf of theDefendants in this Commercial Court action in which theClaimants claimed damages for losses suffered as a result of afire on board my client’s vessel.Christopher Smith Page 6 of 10

Sea Hauler and United Star: Substantially involved in the formalinvestigation arising out of the collision between these two smallcommercial craft. Issues including the respective fault of twovessels but also the applicability of various regulatory andlicensing regimes.The V; Instructed on behalf of the Owners of a cruise vessel.She suffered a significant casualty at sea as a result of which alarge number of passengers were injured. The Charterersalleged that she was unseaworthy and claim damages and anindemnity in respect of the personal injury claims which theyhave settled.MSC Napoli; Instructed on behalf of one of the NVOCCs in thislitigation arising out of the MSC Napoli casualty in January 2007Re E; Instructed on behalf of the Claimant sellers in relation tothis dispute which arose out of the sale of the vessel. TheRespondents failed to complete the purchase of the vessel,alleging that she was not in every way physically ready fordelivery. Substantial issues arose as to the state of the vessel atvarious times and the defects alleged by the Respondents tohave been present.N A; Instructed on behalf of the charterers in this unsafe portclaim arising out of the grounding of the vessel and a serious oilpollution incident in Venezuela.European Vision; Instructed on behalf of the lending bank inrelation to this ship financing dispute relating to a cruise linerbefore the Admiralty Court in Barbados.The A; Instructed on behalf of the Claimant charterers and bill oflading holders in this unseaworthiness arbitration in which thetribunal issued an interim award in my client’s favour in relationto the question of incorporation of the Hague Rules into thecharterparty.A v B; Instructed on behalf of the Defendant sellers in thisdispute arising out of the sale of a Ro-Ro car ferry whichsuffered major engine damage shortly after delivery. The claimwas withdrawn part way through the cross examination of theClaimant’s witnesses.The River Gurara [1998] QB 610; Acted for the Defendantowners in this dispute concerning package limitation.The “Pa Mar” [1999] 1 Lloyd’s Rep 338. Instructed on behalf ofcargo owners in this long running salvage dispute concerningthe extent to which cargo was bound by the terms of an LOFsalvage agreement entered into by ship owners. Afterdetermination of jurisdictional issues by the Admiralty Court in1997, the remaining claim for salvage which salvors were heldto be entitled to pursue was eventually settled.The “Tychy” [1999] 2 Lloyd’s Rep 11; The “Tychy No 2” [2001] 1Lloyd’s Rep. 403. Instructed on behalf of the Defendants in thisdispute arising out of a slot charterparty operated under theTACA conference agreement. An initial challenge to thejurisdiction of the Court was rejected by the Admiralty Court andChristopher Smith Page 7 of 10

the Court of Appeal. At trial the Claimants made a substantialrecovery and the matter eventually settled after the Court ofAppeal overturned the decision of the trial Judge as to theproper identity of the contracting party.Alimport v Soubert Shipping Co Ltd [2000] 2 Lloyd’s Rep 447; Adecision of Timothy Walker J. on preliminary issues arising outof the ante dating of a bill of lading by time charterer’s agentsand the extent to which this could effect the existence of acontract of carriage to which shipowners were a party.The ‘Ruta’ [2000] 1 Lloyd’s Rep 359; Acted for the wages claimants(not defendants as stated in the report) in this action in which DavidSteel J. declined to follow a supposed rule set out in a number of textbooks and instead applied the Admiralty Court’s wide equitablediscretion so as to accord priority to the claims of unpaid crewmembers above the claims of the holders of damage maritime liens.The Bumbesti [2000] QB 559; Acted for the Claimants in thisdispute concerning the right of arrest to enforce arbitration awards.Aktieselskabet Dampskibsselskabet Svendborg v Mobil NorthSea [2001] 2 Lloyd’s Rep. 127. Instructed by the Claimantowners in this dispute concerning the proper construction of thetermination provisions of a Charterparty for the provision of oilrig anchor handling vessels in the North Sea. The claim wassettled after the Court determined various preliminary issues ofconstruction.The “Sitarem” and the “Spirit” [2001] 2 Lloyd’s Rep. 107.Instructed on behalf of the Claimants in this collision claim.Domansa and others v Derin Shipping [2001] 1 Lloyd’s Rep.362; Instructed on behalf of the Defendant shipowners in thisclaim arising out of the death in service of three crew members.The commercial court determined a challenge to the jurisdictionin 2000, and the claim (which involved issues of construction ofthe deceased’ contracts of employment as well as more usualissues under the Fatal Accidents Act) subsequently settled.The “Bow Cedar” [2005] 1 Lloyds Rep 275. Acted for theClaimant in this dispute concerning the quantum of damagesrecoverable for repudiatory breach in a voyage charter party.Yachts & Small VesselsHaving owned, cruised, raced and maintained a number ofyachts and other small craft Chris Smith has a particular interestand involvement in disputes concerning yachts and small craft –both pleasure and commercial. He was a member of the panelof specialist mediators and arbitrators maintained by the CIArbon behalf of the RYA and BMIF to deal with disputes relating toyachts and small craft. He has been involved in numerous casesinvolving the construction, sale, repair and management ofyachts and small craft, as well as insurance and surveyingdisputes, collisions and disputes arising out of the regulatoryregimes relating to yachts and small craft. Reported and othersignificant cases include;A v S; Instructed by the Buyer of a luxery motor yacht whoChristopher Smith Page 8 of 10

claimed to have validly rejected the yacht on account ofnumerous defects present on delivery. The Builder refused torefund the purchase price and counterclaimed for damages.Riva Bella SA v Tamsen Yachts Represented the Defendant atthe trial of this Commercial Court claim concerning theconstruction and sale of a luxury motor yacht. Various technicalissues arose as to the construction of the yacht but the claimalso involved complex contractual issues in relation to the role ofthe broker involved. The case was particularly sensitive becauseit appeared that a number of secret commissions had been paid.St. Nicholas Trading Company v Tarquin Boat CompanyInstructed on behalf of the Defendant in this long runningcommercial dispute arising out of a Distribution Agreemententered into between the parties for the distribution of luxurymotor yachts. The dispute also concerned issues arising out of aSettlement Agreement by which earlier litigation had beensettled.Bodell v Salter Projects; Instructed on behalf of the Defendantsin this claim in which the Claimants alleged negligence in theperformance of a survey of a large motor yacht.A & B v C & D; Acted for the Claimants in this action forprofessional negligence against the managers andadministrators of an off shore company and the insurancebrokers appointed by them. The claim arose out of the fact thatthe Claimants’ yacht was uninsured when lost by fire.Sweet v The Owners of the Blyth Lifeboat; Instructed on behalfof the RNLI in this claim arising out of a collision in which theAdmiralty Court determined preliminary issues concerning therelevant limitation period.Waldman v Tarquin; Instructed by the Defendant vendors in thisdispute arising out of the construction and sale of a luxury motoryacht. Issues included the incidence of VAT and whether or notthe yacht, which was CE marked and MCA coded, had beenproperly constructed in accordance with the Recreational CraftDirective.A v B and A v C; Acted for the Claimant in these two relatedclaims involving a commercial yacht used for corporatehospitality events. My Client was injured (and there were twofatalities) as a result of this incident which led to claims againstthe owner/skipper and the organiser of the event. Issues arosein relation to the proper certification of the yacht and theapplicability of the Small Commercial Craft Regulations.Sea Hauler and United Star; I was substantially involved in theformal investigation arising out of the collision between thesetwo small commercial draft. Issues included the respective faultof the two vessels but also the applicability of various regulatoryand licensing regimes.The A; I acted for the owners and managers of a large motoryacht in a claim against their insurers and brokers arising out ofinsurers’ refusal to indemnify the owners against a personalinjury claim being pursued in the USA.Christopher Smith Page 9 of 10

A v B; I acted for the vendors of a motor yacht which wasdestroyed by fire during the course of her pre-deliveryinspections and trials. Issues arose as to the cause of the fireand the respective liabilities of the manufacturer, distributor anddealer.A & B v C; Instructed by the vendors of this sailing yacht whichsank shortly after delivery to her buyers. Issues include thecause of the sinking and the extent of the Defendant’scontractual responsibilities.The E; Acted for the purchaser of this luxury motor yacht whoclaimed substantial damages as a result of the defectivecondition of the yacht on delivery and the Builder’s failure torectify warranty matters.The Shizelle [1992] 2 Lloyds Rep 444; Instructed by theClaimant lenders in this case concerning mortgages ofunregistered vessels.Kyzuna Investments Ltd v Ocean Marine [2000] 1 Lloyd’s Rep505; A decision of Thomas J. on a preliminary issue as towhether or not a policy of insurance for a classic yacht was avalued or unvalued policy. This case is of considerableimportance to many yacht owners who may have believed thatthe phrase ‘sum insured’ in their policy meant that the value ofthe yacht had been agreed in that amount.If you require further information please contactclerksroom@essexcourt.netChristopher Smith Page 10 of 10