Stone Chambers | Barristers

Tom Whitehead Shipping & Trade Profile

Tom Whitehead specialises in all areas of shipping and commercial law including the carriage and sale of goods, international trade, arbitration, jurisdiction and the conflict of laws. He regularly appears in the Admiralty and Commercial Courts and in maritime arbitrations concerning the full range of wet and dry shipping claims. He is recommended in the Legal 500 as a leading barrister for shipping and for shipping & commodities in Chambers & Partners 2012. In the Legal 500 (2010) he was singled out as ‘a star in the making’.

The bulk of Tom’s practice concerns dry shipping work. He has considerable experience of jurisdiction disputes and claims to anti-suit injunctions (both seeking and resisting such orders).

Tom is increasingly instructed in insurance litigation and a growing number of joint venture disputes.

Cases of Interest:

Jurisdiction

Ensco 69 (Com. Ct & Dallas State Court): US$65million insurance claim arising out of the alleged expropriation of an oil rig by the Government of Venezuela. Instructed (with Steven Gee QC) by London market underwriters in English proceedings seeking to uphold a London arbitration clause, and to provide expert evidence on English law to a Texas Court in opposition to an anti suit injunction granted to the assured by the Texas court to restrain the English proceedings.
National Navigation Co v Endesa Generacion SA (The Wadi Sudr) - Court of Appeal [2009] EWCA Civ 1397; [2010] 1 Lloyd’s Rep 193; [2009] 2 CLC 1004; [2010] I.L.Pr. 10; Times, February 8, 2010; Gloster J [2009] EWHC 196 (Comm); [2009] 1 Lloyd’s Rep. 666; [2009] 1 CLC 393: the leading case on recognition and enforcement in England and Wales of a foreign judgment obtained from a court in another EU Member State in breach of a London arbitration clause under the Judgments Regulation (EU Regulation 44/2001). Tom addressed the Court of Appeal on the scope of the Judgments Regulation and as to when a judgment would qualify for recognition and enforcement thereunder (following Vasanti Selvaratnam QC). The Court of Appeal interpreted the recent ECJ decision The Front Comor as not only precluding the English Courts from granting an anti-suit injunction to prevent litigation in breach of an arbitration agreement, but also as having the wider consequence that a decision of the foreign court on the question of whether there was an arbitration agreement between the parties would be binding on both the London tribunal and the English Court, if obtained before a judgment of the English Court to the contrary. In such circumstances, the London tribunal would be bound to conclude that it had no jurisdiction, and no action to recover damages for breach of the arbitration agreement could be brought.
The Hijaz (Com Ct) 2010; The Ibn Hayyan (Com Ct) 2010: instructed as junior Counsel on applications for anti-suit injunctions to restrain Gulf State proceedings. Issues raised included the validity of the exercise of an option in favour of English jurisdiction post-dispute (with Vasanti Selvaratnam QC).
The Edgar Lehmann (Sup Ct Gibraltar) 2010: instructed to act on behalf of the carrier in litigation concerning a US$3.9 million claim for damage to cargo during shipment. One issue in the case was a jurisdictional battle between the parties as to whether the Spanish or Gibraltar courts had jurisdiction to determine the cargo claim. Questions arose as to the jurisdiction of the Supreme Court of Gibraltar, the effect of default judgments, the status and effect of Part 8 proceedings, the validity of an exclusive jurisdiction clause in favour of Flag-State courts, Part 36 offers in jurisdictional disputes, and the Bills of Lading Act 1855.
The ECE icw General Grot Rowecki (Adm Ct): junior Counsel instructed on behalf of the owners of the GGR in proceedings arising out of this collision in the English Channel in January 2006. Issues raised concerned jurisdiction under the Judgments Regulation (with Elizabeth Blackburn QC).
The HAN icw ALIOS ARTEMIS (Adm Ct): instructed on behalf of the owners of the Alios Artemis in relation to limitation and jurisdiction issues arising out of this collision off Hydra.

Joint Ventures

LCIA Arbitration: instructed as junior Counsel on behalf of the Claimant in a US$30m+ claim arising out of a joint venture agreement for the operation of an East European airline (with Steven Gee QC). Issues include the existence and scope of fiduciary duties in the joint venture context.
LCIA Arbitration: instructed as junior Counsel on behalf of the Respondent to a US$35m claim arising out of a share purchase agreement concerning the purchase of shares in an East European airline (with Steven Gee QC).
Trafigura v Soboh Petroleum (Com Ct): instructed on behalf of defendants in an on-going multi-million dollar joint venture dispute concerning the supply of jet fuel.

General Shipping

The following examples are representative of Tom's practice:

LMAA Arbitration: GA contribution - instructed as sole Counsel on behalf of shipowners seeking to recover US$1m+ general average contribution following a grounding in the River Parana.
LMAA Arbitration: Blacking - instructed as sole Counsel on behalf of charterers resisting claim to hire following blacking in Finland of a Chinese-flagged vessel by Finnish trades unions affiliated to the IFT due to a Chinese crew being employed on terms of a Chinese collective bargaining agreement.
LMAA Arbitration: Clausing of bills of lading / Inter Club Agreement - chain arbitrations raising important issues as to the responsibility of the Master and Chief Officer to clause mate's receipts / bills of lading and the Master's duty as regards the issue of accurate bills of lading. Instructed on behalf of charterers.
LMAA Arbitration: Yemeni cargo claims / Speed and performance - on-going arbitration concerned with Yemeni cargo claims (issues include port safety) and deviation (issues include the circumstances in which a deviation for medial assistance is permitted and how any such deviation is affected by claims that the injury was caused by unseaworthiness). Instructed on behalf of owners.
LMAA Arbitration: Cleaning / Maintenance - on-going arbitration concerned with responsibility for cargo cleaning and maintenance of an OBO vessel. Issues include the meaning of "charter service". Charterers are claiming US$10m+ Instructed on behalf of owners.
LMAA Arbitration: Dry docking / Cancellation - on-going arbitration concerning inter alia the purported exercise by an owner of a right to withdraw a vessel from charter service for dry docking. Also concerns the meaning and effect of a "best endeavours" clause. Instructed on behalf of charterers.
Ad hoc arbitration: Ship sale and purchase - instructed on behalf of buyers in on-going reference resisting claim to US$1m+ damages by sellers following cancellation of MOA for secondhand bulk carrier.
Tamoyo Maiden: Ship sale and purchase - dispute under the NSF - incorporation of the statutory implied terms of the Sale of Goods Act, Clause 11 and misrepresentation (with Timothy Hill).
MFV Annie (Adm Ct): Ship mortgage - claim by Mortgagee to enforce mortgage. Issues raised included claim against demise charterer and the Contracts (Rights of Third Parties) Act 1999. Instructed on behalf of Mortgagee.
The Bon Ami [2009] EWHC 816 (Admlty) [2009] 2 Lloyd's Rep 356 (Adm Ct): Unsafe berth - Counsel for Defendant in 3-day trial of unsafe berth claim.
MSC NAPOLI (Adm Ct): Limitation - acted on behalf of Fire Brigade in claim for services rendered in assisting salvage effort as a result of the high-profile grounding and break up of the MSC NAPOLI off the Devon coast.
The Fino icw Cape Passero (Adm Ct): Collision - instructed on behalf of the owners of the Fino in relation to their claim arising out of this collision in Abidjan in July 2009.
"MAERSK VYBORG" icw "CAPTAIN ADAMS" (Adm Ct): Collision - instructed on behalf of the owners of the Maersk Vyborg in relation to their claim arising out of this collision in April 2007 in Douala Harbour.
Evergreen Marine UK Ltd & Others v Woolworths PLC (In Administration) (Ch Div); OOCL v Woolworths PLC (In Administration) (Ch Div): Liens and insolvency - instructed on behalf of container lines in relation to claims for freight and other charges against Woolworths following high profile administration. Issues raised included enforceability of liens and other security rights.
ABP v Ferryways: Guarantee - £50 million breach of contract claim - proper construction of agreements for the use of a ferry terminal; whether guarantee or indemnity; whether contract to be construed as guarantee or as indemnity or as a legally binding letter of comfort (with Timothy Hill).
Exfin Shipping (India) Ltd Mumbai v Tolani Shipping Co Ltd Mumbai [2006] 2 Lloyd's Rep 389; [2006] 2 All ER (Comm) 938 (Com Ct): Meaning of "dispute" - whether an admitted but unpaid liability constitutes a "dispute" within the meaning of an arbitration clause as held by the Tribunal. Successfully obtained indemnity costs order against the Claimant.

Expert Evidence for Foreign Courts

Tom has provided expert evidence on English law for foreign courts. For example, Tom has been instructed to provide opinions for use in four separate claims before the South Korean courts, and has travelled to Texas to act as an expert witness in proceedings before the Dallas State Court.