“MSC Amsterdam” – Trafigura Beheer BV and Another –v- Mediterranean Shipping Company SA27th Jul 2007
Carnoustie Universal SA and others –v- International Transport Workers’ Federation and others30th Jul 2002
Glencore International A.G. –v- Metro Trading International Inc. ; Itochu Petroleum Co. (S) Pte. Ltd....30th Jul 1999
Federal Insurance Co. And Chubb Insurance Co. Of Europe S.A. –v- Transamerica Occidental Life Insurance...21st Jun 1999
Quinta Communications SA –v- Warrington (Representative Underwriter For Underwriters At Lloyd’s Subscribing To Policy No...20th May 1999
Commercial Union Assurance Co. Plc. and Others –v- NRG Victory Reinsurance Ltd.; Skandia International Insurance...16th Mar 1998
Dominic Kendrick QC has decided to step back from acting as counsel in large trials to focus more on sitting as an arbitrator, but continues to advise clients in consultation and in writing and will act as counsel in short cases. In this capacity, he is currently (June 2020) engaged in Business Interruption and Event Cancellation insurance claims and aggregation issues, arising out of Covid 19 as well as oil and gas and long term shipping contracts, also affected by the downturn due to Covid 19.
Dominic already has an established practice as an arbitrator, and is regularly appointed as sole arbitrator, party-appointed arbitrator or as the third arbitrator in a wide range of commercial disputes, mainly in ad hoc, LCIA, ICC, LMAA and Bermuda Form disputes. His appointments cannot be described in any great detail in view of the confidential nature of the process. However they have ranged from disputes about a superyacht to the alleged illicit plundering of title to prestigious Moscow real estate, although more typically they concern shipping, insurance, commodity contracts, alleged fraud and ship building.
He has a wealth of experience to call upon having acted in many of the large commercial disputes which have occurred over the last 25 years. These include: the turmoil at Lloyd’s in the nineties; the Eastern European political risk/marine risk cases after the fall of the Soviet Bloc; the Exxon Valdez disaster; the invasion of Kuwait; the Personal Accident spiral and rigged reinsurance market; pension mis-selling; the aggregation of losses after 9/11; large losses and frauds uncovered by the 08 crash including the Madoff affair, besides a steady stream of heavy cases in shipping, sale of goods, insurance, general commercial disputes and commercial fraud.
As counsel, he has appeared regularly in arbitration, in the Commercial Court, Court of Appeal and Supreme Court. Many of these cases have involved long trials. Examples over recent years are: Government of Djibouti v Boreh  EWHC 405 (Comm) (alleged corruption and fraud in Africa); the Ocean Victory  UKSC 35 where he succeeded in the Supreme Court (shipping- safe port and marine insurance), a large Bermuda Form arbitration in 2018, and Yukos v Lynch  EWHC 2621 (Comm) (alleged rigging of a major auction of oil and gas assets in Russia).
Republic of Djibouti v Boreh (Commercial Court)  EWHC 405 (Comm). Dominic was lead counsel in a team of 4 barristers, including another QC acting for the Defendant. This was a 12 week trial in which grave charges of fraud and corruption were raised by each side against the other concerning major commercial projects in Djibouti, Africa. Dominic was successful on all issues and the corruption, (and dishonesty in answers in cross examination) was found to lie on the Claimants’ side only.
Gard Marine v China National (“The Ocean Victory”)  2 All E.R. (Comm) 894. This case arose out of the total loss of a large modern ship in appalling weather in Kashima Japan. It raises important points in shipping law (on the safe port promise in charterparties) and in insurance law (on the effect of underlying contracts on rights of subrogation). Dominic led the team of three including another QC and senior junior and was successful on both points in the Court of Appeal. The case is now going to the Supreme Court.
Boreh v Republic of Djibouti, Gibson Dunn, and Gray  3 All E.R. 577. This case was much commented upon in the legal press. After cross examination lasting 2-3 days, Dominic established that a partner in a well-known firm of solicitors had knowingly deceived the Commercial Court in obtaining a freezing injunction and subsequently tried to conceal the dishonesty. Dominic led a team of four counsel including another QC.
Rathbone Brothers Plc v Novae Corporate Underwriting Ltd  Lloyd’s Rep. I.R. 95. Dominic led a team of three barristers in this large claim on professional indemnity insurers concerning offshore trust investment advice. Dominic succeeded on all issues in the Court of Appeal including important issues on the rights of insurers in subrogation.
Beside court actions, he has also been working on issues raised by the Madoff frauds, a large rig claim in the North Sea, and as counsel for the Law Society on aggregation under its recommended insurance terms.
Alistair Schaff QC has just been involved in the major Commercial Court action involving damage to a North Sea platform (the YME MOPUstor) which was fixed for 12 weeks in October 2018 and in which the claim was allegedly worth about $1bn. The claim involved highly complex factual and expert issues concerning causation of loss and the quantum of repair and settled in September 2018. He is also currently involved in a complex total loss case which is fixed for trial for 8 weeks next year.
More generally, and although a personal injury action would not normally be regarded as a ‘commercial dispute,’ he was instructed by the insurance market in what was a landmark ruling on the discount rate in relation to the award of lump sum damages. In Helmot v Simon, the Guernsey Court of Appeal had assessed damages by reference to an unprecedented negative discount rate which had the effect of increasing the multiplier to unprecedented levels. The Privy Council dismissed insurers’ appeal:  UKPC 5.
He also acted in a major dispute involving Forward Freight Agreements. An important issue arose as to whether a settlement agreement could be construed in the light of statements allegedly made in the course of ‘without prejudice’ negotiations. The Supreme Court has held that they can be relied on for that purpose, reversing the Court of Appeal who had ruled to the contrary. Oceanbulk v TMT  3 WLR 1424 is an important authority on the (reduced) scope of the ‘without prejudice’ rule.
More historically, in Great North Eastern Railway v Railcare , he acted for the successful claimant in its claim for substantial damages for negligence against a supplier of rail parts arising out of a derailment, vindicating a very substantial claim of approximately £3m in the face of an unsuccessful plea of contributory negligence.
Alistair Schaff QC has a pre-eminent insurance and reinsurance practice. In 2009, he was named the Chambers Bar Awards Insurance Silk of the Year. He has been frequently short-listed ever since.
In Atlas Navios v Navigators (the “B Atlantic”)  UKSC 26,the Supreme Court has now dismissed Owners’ appeal in relation to a claim for a total loss of a vessel which had been detained (and ultimately confiscated) by the Venezuelan authorities prior to sailing after a large consignment of cocaine had been found professionally strapped to the underwater hull. Owners, represented by Alistair Schaff QC, had claimed on their war risk policy, for a total loss by perils insured, and insurers relied on the standard ‘customs infringement’ exclusion. Although Flaux J rejected Owners’ case that there had been wrongful political interference in the judicial process, the Judge upheld the claim on the policy on the grounds that (1) as was common ground at trial and on appeal, the affixing of the drugs which had caused the detainment recklessly subjected the vessel to the risk of detainment and accordingly amounted to ‘malicious acts’ by persons unknown within the cover and (2) as a matter of construction, the standard policy exclusion did not apply where the relevant customs ‘infringement’ was no more than the manifestation of those insured ‘malicious acts’. The decision was reversed on appeal, as a matter of construction:  EWCA Civ 808. However, the Supreme Court permitted insurers to withdraw its previous concession that the relevant acts amounted to ‘malicious acts’ and has now held that the ‘malicious acts’ cover was not engaged at all, the acts of the drugs smugglers (albeit reckless) lacking the necessary spite or ill will towards the vessel to qualify as ‘malicious acts’. The decision has significantly narrowed the scope of the malicious acts cover although the exclusion was also upheld on alternative construction grounds.
Alistair Schaff QC has recently been and continues to be involved in a string of high value and complicated liability insurance or reinsurance claims which are the subject of London arbitration and in which he has acted for insurers or reinsurers. Frequently governed by New York law, and often on the Bermuda Form, these arbitrations have ranged from pharmaceutical liabilities, liabilities for patent infringement, liabilities for personal injury (mesothelioma) and maritime pollution. In the case of Equitas v MMI  EWCA (Civ) 991, the Court of Appeal has now given permission to appeal in the latest case involving mesothelioma liabilities within the ‘Fairchild enclave,’ this time at the reinsurance level. The appeal from the award of the judge arbitrator, Flaux LJ, will be heard next year.
In Involnert v Aprilgrange (the “Galatea”)  EWHC 2225 (Comm), a superyacht had been inadvertently insured for 13m euros when it was known by its owners and managers to be worth no more than 8m euros. Leggatt J. upheld the defence of Insurers, represented by Alistair Schaff QC, that the policy had ben avoided for material non-disclosure. Standard Life v Ace  EWHC 104 (Comm) involved a claim for £100m on Standard Life’s professional liability policy in respect of a cash injection made to top up the value of the Pension Sterling Fund as a result of falls in value in the Fund. Alistair Schaff QC acted for the insurance market. The litigation raised significant issues of fact and law, including the scope of Mitigation Costs coverage in a professional liability policy and novel and difficult questions of apportionment where mitigation costs are alleged to have been incurred for both insured and uninsured purposes. The Court of Appeal dismissed Insurers’ appeal from the first instance judgment in Standard Life’s favour:  EWCA Civ 1713. Aioi v Heraldglen  EWHC 154 (Comm) involved an appeal from an arbitration award in which the tribunal had held that the losses arising from the attacks on the World Trade Center arose from two events, rather than one event. Alistair Schaff QC acted for the Respondent who successfully upheld the award before Field J.
Two landmark victories were for the successful reinsurers in the leading case of Wasa v Lexington  UKHL 40 in which the House of Lords considered the nature of a ‘back to back’ facultative reinsurance contract and held that reinsurers were not liable to indemnify the reassured in respect of an underlying liability for property damage which had occurred outside the policy period (see  J.B.L. page 9 for an article which he has written on this case); and in Equitas v R&Q  EWHC 2787 (Comm) in which Gross J. upheld the use of actuarial models as a means of kick-starting the LMX spiral in the aftermath of the incorrect aggregation and/or settlement of KAC / BA and Exxon Valdez losses.
Alistair Schaff QC has a major international arbitration practice. He has acted as Counsel in commercial arbitrations for over 30 years, both in London and overseas, including in the Far East and in the Caribbean. His arbitration practice covers all aspects of international commercial disputes, both of a general commercial nature and involving insurance or maritime-related disputes. He recently appeared as Counsel in a significant case on enforcement of a Swedish arbitration award in Carpatsky v Ukrnafta EWHC 769 (Comm).He has recently been involved as Counsel in a number of significant New York law and Bermuda Form arbitrations concerning liability insurance involving a wide range of subjects such as pharmaceutical products, patent infringement and maritime pollution, as well as an English law arbitration involving liability for mesothelioma at the reinsurance level which went to the Court of Appeal: Equitas v MMI  EWCA (Civ) 991 and settled shortly before an appeal to the Supreme Court.
Alistair Schaff QC regularly sits as a commercial arbitrator in ICC, LCIA, UNCITRAL, LMAA and other arbitrations, as sole or party-appointed arbitrator or chair, dealing with a very broad range of international commercial disputes, both general and of an insurance or maritime nature.
Insurance and reinsurance disputes
Alistair Schaff QC has always enjoyed and is experienced in handling difficult jurisdictional issues. In 2011, he acted in the long-running Masri litigation in connection with difficult issues concerning the scope and application of Articles 27 and 28 of the Brussels 1 Regulation: Masri v CCI  EWHC 1780 (Comm).
Professional negligence experience involves claims against financial service providers, solicitors, accountants/auditors and insurance brokers. In Clarks v In Focus  EWCA Civ 118, Alistair Schaff QC led on a very important appeal to the Court of Appeal concerning claims for professional negligence against a financial adviser which had been previously been referred to and determined in the complainants’ favour by the Financial Ombudsman Service (FOS). The Court of Appeal reversed Cranston J. and accepted the submission that the application of res judicata and merger principles prevent a complainant from bringing subsequent court proceedings for claims in excess of the maximum amount awardable under the FOS jurisdiction, in circumstances where the complainant has previously accepted a FOS determination for the maximum sum awardable and thereby rendered it final and binding under the Financial Services Act. Hehas acted for insurance brokers in relation to significant commercial litigation, first involving the insurance against product liability risks and and secondly concerning the alleged loss of over $400m worth of gold in Turkey and the disputed insurance arrangements surrounding that gold. He is currently acting for liability insurers in relation to a number of mis-selling claims against financial advisers, concerning the question of aggregation.
In the shipping context, Alistair Schaff QC he has over 30 years of experience in litigation and arbitration, beginning with demurrage disputes and culminating in several of the leading cases on shipping law. He has recently been named the Chambers Bar Awards Shipping Silk of the Year for 2018 (and he was also named Legal 500 Awards Shipping Silk of the Year for 2015).
Alistair Schaff QC is currently acting for insurers in a complex total loss case. He recently acted for the shipowners in Atlas Navios v Navigators (the “B Atlantic”)  EHHC 4133 (Comm);  EWCA Civ 808;  UKSC 26, in which the Owners claim for a total loss on their war risk insurance in circumstances where cocaine had been found strapped to the vessel’s hull and the Venezuelan authorities had consequently detained the vessel was ultimately dismissed. He acted for the successful super-yacht insurers in Involnert v Aprilgrange (the “Galatea”)  EWHC 2225 (Comm), where the policy was avoided for non-disclosure of the fact that the yacht had been over-valued. He acted for shipowners in a major piece of Commercial Court litigation involving microbially induced corrosion and whether such corrosion amounted to or arose from ‘perils of the seas’ or ordinary wear and tear or poor maintenance.
In other recent cases, he has also acted for shipping interests in relation to the commissioning and operation of new port facilities in Latin America and for ship purchasers in a Singapore arbitration concerning alleged illegality in the form of alleged non-compliance with IACS shipbuilding regulations. He acted for shipowners in the latest recent case on Letters of Indemnity in The “Songa Winds”  EWHC 397 (Comm) and in a case on COGSA 1992 in The “Baltic Strait”.
MA (Cantab). Dip Law (distinction)
Languages: French (working knowledge)
Elite footballer secures apology and compensation from the World Anti-Doping Agency
7KBW have an unprecedented amount of nominations in The Legal 500 2018 Awards
The Chambers UK Bar Awards 2017
Ocean Victory – Supreme Court Judgment
The Republic of Djibouti & ors v Abdourahman Boreh & ors