James Watthey

Call:2000

Introduction and Contact details

"...Good, sensible and strategic advice" Legal 500 (2009)

"...concise in his presentation and highly commercial." - Chambers UK (2009)

“… impressively commercial … a respected junior” - Chambers UK (2010)

James is an experienced commercial litigator and regularly deals with cases in all the usual arenas for commercial dispute resolution, including the London Mercantile Court, the Commercial and Admiralty Courts, and in Arbitrations. In addition, he appears in County Courts, other divisions of the High Court and in Appeals. He is also an experienced Mediation negotiator.

James was previously at Lovells, where his work involved him in a wide range of commercial matters, with a particular emphasis on Insurance and Reinsurance litigation. He is therefore well placed to understand the needs of Solicitors and commercial clients. Due to his experience in the City, he is permitted to accept instructions directly from members of the public, insurers and commercial undertakings in appropriate cases.

Outside of work, James enjoys being creative in the kitchen.  He also loves sailing and is a member of RORC and the Royal Corinthian Yacht Club as well as the Bar Yacht Club.  He is an RYA Coastal Skipper, holds the Yachtmaster shorebased certificate and is a joint owner of an Oyster SJ 27 Quarter Tonner racing yacht called "Merlin".  He lives in Central London with his wife Susan.

Tel:    020 7691 0002/4 (clerks)
ddi:    020 7691 0006 (direct)
Fax:   020 7691 1234

Email: james.watthey@hardwicke.co.uk

Commercial

James’s work covers the full range of disputes that arise in domestic and international commerce.  Due to his background in shipping and insurance, he has particular experience of international actions involving conflict of laws or jurisdictional issues. James has been involved in numerous cases where domestic or worldwide freezing injunctions have been made or discharged.

Arbitration

Due to his experience in international trade, insurance and charterparty disputes, James has been involved in a large number of arbitrations. 

He handles disputes under LMAA, GAFTA, FOSFA and other industry rules as well as ad. hoc. commercial references.

Banking, Finance & Credit Law

James has broad experience all manner of retail and commercial banking dispute, from the recovery of mistaken payments to clearing bank customers to documentary credits and high value asset finance.  

Recent work

In the current economic climate, he is particularly busy with:

• Claims on guarantees and indemnities
• Recovery of commercial debts
• Realisation of security
• Derivatives disputes, including swaps in volatile markets
• Documentary credits

Cases

Oliver v Dubai Bank Kenya Limited (Com Ct, 2007) [2007] All ER (D) 135 (Sep).  Andrew Smith J.  A £1.29m letter of credit claim involving novel issues of law, being the only authority on the legal test where one of the documents to be presented was a certificate of compliance with the underlying contract that had to be issued by the Issuing Bank.  Held that the condition was compatible with UCP 500 and that the Issuing Bank was therefore entitled under the terms of the credit to refuse to issue the said document.    

X Bank v Y Co Advising on anticipated proceedings by a German Landesbank against the drawer and indorser of a bill of exchange indorsed on a “non recourse” basis and not paid by the acceptor. 

X v Y Bank Advising on and drafting proceedings on a dishonoured counter cheque. 

X Shipping Co v Y Shipping Co Advising on and drafting proceedings in a US$13million freight derivates dispute.

Construction & Engineering

James works on all manner of international and UK projects but with a particular emphasis on:

• Ship building and repair;
• Construction of dock facilities;
• Oil and gas rig and pipeline work and energy distribution; and
• Large scale engineering projects.

Cases

Braceforce Warehousing v Mediterranean Shipping Company LTL 4/6/2009 Doc No. AC9400896 (extempore judgment of Ramsey J - full reports pending) which is the only authority on the application of the Limitation Act to Expert Determination and the question of when such a process is "commenced" for limitation purposes.  It is also a useful illustration of the effect of "standstill" clauses.

Professional Negligence

James regularly advises and appears on both sides of professional negligence actions and related coverage disputes. 

He has particular expertise in claims against solicitors and barristers, valuers and surveyors, and professionals in the marine, insurance, financial services and construction spheres.  In addition, he deals with policy coverage disputes between underwriters and assured professionals.

Recent cases include

• Bringing a claim against solicitors who were alleged to have failed to advise on the necessary formalities for execution of a will.
• The allegedly negligent failure of conveyancing solicitors to advise unmarried purchasers of property on the best method of co-ownership;
• An allegation that conveyancers had failed to consider and advise on the effect of new-build property being sold without the benefit of NHBC cover in circumstances where the building suffered heave damage after Completion;
• Allegedly negligent advocacy leading to a claim for catastrophic financial losses;
• A series of actions acting for banks against valuers who were accused of negligent or even fraudulent valuations;
• Defending a claim against a marine surveyor engaged to supervise an amateur build of a catamaran;
• Bringing a claim against a marine surveyor who had surveyed a new vessel built for liveaboard purposes.  

Shipping Law

RECOMMENDED BY THE LEGAL 500 and CHAMBERS & PARTNERS 2009

James has specialised in shipping law since the start of his career and his work comes from a strong and increasing list of clients.

The Legal 500 said in 2009 that he is "recommended for his increasingly high-profile arbitration and P&I matters" and in 2010 that he is praised for "good, sensible strategic advice"

Chambers & Partners said in 2009:  “...'Concise in his presentation, and highly commercial', James Watthey is also recommended. He tends to act on marine insurance and all manner of shipping disputes". 

In 2010, Chambers again recommended “the ‘impressively commercial’ James Watthey, a respected junior who handles a significant proportion of shipping, insurance and yacht work. Recently, he has been undertaking an increasing number of charter party and carriage of goods disputes”.

He is also recommended in Legal Experts.

As well as being an established favourite for many of the City firms, he has been successful in building relationships directly with P&I Clubs.

He has a deep interest in the full range of marine disputes and recoveries, including:

• Contentious sale and purchase, including under SALEFORM 1993. 
• Freight derivatives, particularly Forward Freight Agreements (FFAs) based on ISDA 1992 and 2002.
• Bills of lading and Charterparty disputes: loss, delay and damage to cargo, indemnity claims, time bars, unsafe ports, demurrage/hire and the defences to such claims.
• Admiralty matters.
• Ship mortgages.
• Arrest.
• Ship construction and repairs.
• Yachts and pleasure-craft; racing.
• Personal injury on board and dockside; London; Athens; time bars; Limitation.
• Cruise liner claims under Athens and the Package Travel Regulations.
• International (CMR) and domestic carriage by road.
• Warehousing.
• Multi-modal transport. 
• Marine insurance (see separate section).
• Aviation, including airline insurance and carriage of goods and passengers.

Recent work

• Among the first large Forward Freight Agreement (FFA) disputes to be dealt with in litigation (including a US$7m claim recently issued in the Commercial Court concerning a series of swaps under ISDA 1992 and FFABA terms).
• Cancelled builds, alleged defects and failures/refusal to pay, which are becoming increasingly numerous in the current climate.  These cannot be listed for reasons of confidentiality.
• A series of arrests and forced judicial sales to enforce security by lenders under marine mortgages.
• Numerous charterparty disputes.

Cases

“P”  An appeal from an Award on an point of general importance (awaiting listing).

“NM”  Advising on the right to commence Arbitration upon an equitable assignment of sub-sub-freight.

“VR” Defending a claim for early delivery damages on the basis of failure to mitigate.

“H”  Advising on the effect of an approximate notice of redelivery in light of “The Zenovia”.

“HOOLIGAN V”  Defending a high profile keel failure claim.

“INTERCEPTOR 1” Defending an unsafe berth claim, which was withdrawn just before an Admiralty Court trial.

"RUNNER 4" Com Ct, acting for the Claimant, which was successful after the Defendant’s breach of an unless order.  Total loss of US$14m worth of cargo following a collision and sinking of the carrying vessel in the Baltic while ice-bound.  

Egripment v TNT Express NL, Merc Ct, acting for Dutch defendant carriers.  Camera equipment by road and air; theft in transit.

"X" Claim for hire with complex submissions on the effect of post 9/11 US legislation;  whether detention by USCG for failure to file e-NOA/D puts vessel off-hire; allocation of duty for filing e-NOA/D

“Y” Defending a hire and indemnity claim in circumstances where a Master had signed clean Bills of Lading against a letter of indemnity, when the Mate’s Receipt had contained remarks that the cargo had pre-shipment damage.  The issues where whether the vessel was off-hire during arrest by receivers and whether Owners lost their right to an indemnity against the following cargo claim.

“SOPHIEMAC” Damage to a vessel during a tug & tow operation by the agent of a production company which was carrying out a televised "makeover" of the living quarters on-board for the BBC show "Changing Rooms" (Adm Ct, 2004).

"AQUA NOVA" (Adm Ct, 2008)  Before Paul Walker J (subsequent committal proceedings before Field and Andrew Smith JJ).  The only English authority for the proposition that: (1) mooring fees under a private law contract constitute "dock dues" under section 20(n) and thereby give rise to a right to arrest; and (2) that  a "liveaboard" vessel is to be subject to the normal Admiralty procedure.

"BON AMI" [2009] EWHC 816 (Admlty) [2009] All ER (D) 147 (Apr) Successfully defending an unsafe port claim against wharfingers in a 3 day trial before Gloster J, concerning a wooden-hulled ship that suffered sagging damage when taking the ground in a tidal berth.  The decision establishes the duty of care for wharfingers who own and control the quay wall but not the tidal foreshore on which moored vessels come to ground at low water.

"ZANA" (2007) Advising the holders of a registered ship mortgage over a super maxi, which was threatened with arrest by former crew and suppliers. Later advising the same client as to VAT liabilities on import.  

"MAGGIE" (Com Ct), Christopher Clarke J (LTL 5/10/2005; [2005] EWHC 2042. Junior Counsel. An important decision on freezing injunctions, arising out of a sinking.

Castle Air Charters v Jermon & ors (2009)  Representing the Defendants in an ongoing claim concerning damage allegedly suffered by helicopter turbines during a charter.   

Trade

All aspects of domestic and international trade, including: import and export of physical commodities, futures / derivatives including contracts based on ISDA 1992 and 2002, trade finance and letters of credit, oil and gas trading, sale and supply of goods and services. For letters of credit, see Banking section.

Disputes are handled in court, arbitrations (such as LCIA, ICC, or UNCITRAL) and under GAFTA and LME rules, including appeals from arbitrations to the Commercial Court.

He is recommended by Chambers & Partners for Shipping and Commodities due to this “impressively commercial” approach.

INSURANCE

During his time in the Insurance and Reinsurance litigation team at Lovells, James was involved in high value litigation (often multi billion US$) and mediations involving multinationals and high net worth individuals. He also acted for insurers and intermediaries in drafting deeds of guarantee aimed at increasing S&P ratings, numerous insurance product distribution agreements and security for release of vessels.

Since coming to the Bar, he has continued to expand his insurance and reinsurance work.

He has a well-developed marine insurance practice, and has worked for most of the top P&I Clubs, often directly. 

He has also developed a niche in life products and has advised on references to the Financial Ombudsman based on the ICOB(S) rules.

For sector specific work, see the appropriate heading below.

Recent general insurance work:

A series of cases acting for Nigerian Assureds, in which Underwriters defended the claims on the bases that (1) the brokers had no authority to bind them (2) the policies had been unilaterally cancelled and (3) if the policies were valid on their face, they were illegal by the law of Nigeria and therefore unenforceable as a matter of English public policy.  The claims were settled favourably.

All risks

James regularly receives instructions to advise on the construction of all risks polices, in both the marine and non-marine context.  In particular, home and contents, fire and business interruption insurance policies have been examined.  Often, this work comes direct from leading insurers in the market.

BTE & ATE

At an early stage in litigation, James is often asked by Solicitors to consider whether the legal expenses section in their client’s general business or household cover can provide a source of funding.  He does not advise on ATE cover.

Recent work

• Advising a retailer whether its commercial policy would provide cover for health and safety prosecution.
• Advising a legal expenses insurer as to the merits of a claim brought against it for an indemnity.

Employers’ liability

James advises on coverage disputes between all employers and their EL insurers, although with particular experience of maritime industries.

Fire damage

Through his marine and product liability work, James has built up considerable expertise on fire damage cases and has experience of working with loss adjusters and forensic fire investigators to determine the cause of fires.

He is currently advising Underwriters on a Direct Access basis in relation to a fire at an Assured’s premises, in which there is a evidence that the fire was caused or contributed to by deliberate or reckless conduct of the Assured. 

Marine

James acts as an advocate and adviser on all manner of P&I, hull & machinery and cargo coverage disputes. 

He has acted for most of the marine underwriters on the London market as well as for P&I Clubs directly.  The Legal 500 praises him for his P&I work in particular. 

James is also a specialist in defending marine and aviation injuries.  He is regularly instructed by underwriters to defend claims suffered by crew and passengers on ships, in docks and marine installations and on aircraft.  Being a keen sailor himself, as well as a shipping lawyer, he is well placed to understand the special requirements of this area of work.

Recent work

• Advising Hull Underwriters on a claim in respect of a vessel thought to have been unseaworthy with privity of the Assured, but which claim had previously been compromised before information on unseaworthiness came to light.
• Defending a claim by an assured after a fire and partial sinking of his vessel. The Defence avoids the policy by alleging scuttling.
• Total loss of a vessel lost after striking a reef, involving breach of a warranty as to minimum complement of crew.
• Coverage disputes arising out of a fatal accident at a marina.
• A claim in which a young passenger is said to have suffered chronic pain syndrome as the result of a sunlounger having allegedly blown across the deck. 
• An elderly passenger allegedly injured during embarkation after tripping on the boarding ramp, which involved detailed consideration of the Athens Convention and, in particular, the relationship between Articles 14 & 16 of Athens and CPR Part 19.5 after her solicitors sued the wrong entity on the day before limitation expired.

Cases

Alanod v CNA Insurance Co Ltd (Merc List, 2004) Direct claim against Insurers under the Third Parties (Rights Against Insurers) Act 1930; Insurers' non-coverage defence.

"GREAT BALEEN" (Merc Ct, 2007) Marine insurance coverage and quantum dispute; duty to act as prudent uninsured; proximate cause.

Occupiers’ Liability

James advises on all coverage disputes relating to this head of cover, but with particular experience of maritime industries.

Product liability

James’s underwriter clients instruct him to defend a wide range of product liability claims.  In general his work comes from the same selection of City firms that instruct him on his other insurance and insurance-backed caseload.

Recent work

• Defending a claim brought against the manufacturer of a household appliance which is alleged to have caused a fire in the purchaser's property.  The defence required expert input from the fields of both electrical engineering and forensic fire investigation.  Further details will follow as confidentiality permits.

Professional indemnity

As set out in the Professional Negligence section, James has extensive experience of both bringing and defending claims against professionals.  On numerous occasions when underwriters are facing a claim, they ask James to consider whether they are required to indemnify the professional in respect of it; in light of his background in insurance, James is well placed to give that advice.

Public liability

James is regularly instructed to bring subrogated claims and to defend claims in the public liability sphere, as well as to advise on the public liability cover provided by commercial policies. 

Recent work

• Advising on a marina’s public liability coverage, in respect of a fatality suffered by a customer when visiting the yard.
• Bringing a claim by a laboratory arising out of the explosion at the Buncefield oil depot.