Mur Shipping BV v Louis Dreyfus Company Suisse SA

A time-bar clause requiring notification with all available supporting documents is construed according to its wording and commercial purpose. “All” indicates a broad requirement, extending beyond bare essentials, but a document must still support the claim advanced. The inquiry is claim-specific and may include material supporting liability as well as quantum. A document does not cease to be supporting merely because it is relied upon later in the arbitration. An arguable claim to privilege does not automatically exclude a document which is ultimately found not to be privileged. The clause must nevertheless be applied with sufficient certainty, and genuinely irrelevant or duplicative material is outside its scope.

Mur Shipping BV appealed under the Arbitration Act 1996 against a majority arbitration award holding that its claim under a NYPE time-charterparty was time-barred and extinguished. The charterparty required claims to be notified in detail within 12 months of completion, accompanied by all available supporting documents.

The claim concerned the termination of the charterparty after the owners refused consent to cutting additional cement feeder holes in the vessel’s hatch covers. Mur supplied a final hire statement with its claim notification but did not provide a survey report until its arbitration submissions. The tribunal majority treated the report as a non-privileged supporting document; the dissenting arbitrator considered it privileged. The issues were whether an arguably privileged document had to be supplied and whether the survey report was a supporting document.

1. Appeal dismissed. The tribunal had not erred in law in holding that the claim was time-barred.
2. The expression “all available supporting documents” required a broad construction. The word “all” extended the clause beyond documents constituting only the bare essentials, while the qualification “supporting” excluded material with no real relevance or merely duplicative material. The clause applied to documents supporting liability and quantum.
3. Whether a document was supporting depended on the claim advanced. The claim depended on the validity of termination, which in turn depended on whether the owners’ refusal was unreasonable. The CSS Report addressed that issue and therefore supported the claim, even though the final hire statement adequately documented the sums claimed.
4. A document did not lose its character as a supporting document because it emerged later or was relied upon later in the arbitration. The time-bar question was not defeated by alleged serendipity or retrospectivity.
5. The court rejected tests based on early disclosability, manifestly making out an essential element, or a rigid distinction between primary and secondary documents. A document such as the CSS Report could constitute an extended primary document. Whether genuinely secondary material created for the dispute, such as witness statements or expert reports, would fall within the clause was left undecided.
6. An arguable claim to privilege did not, without more, exclude a document from the clause where the document was ultimately not privileged. Treating arguability as decisive would create uncertainty and encourage satellite disputes. The width of the clause could create difficulties in wider disputes, but that was a matter for contractual drafting.

• Arbitration tribunal: By majority, the tribunal declared that Mur’s claim was time-barred and totally extinguished. One arbitrator dissented.
• High Court (Commercial Court): The appeal against the award was dismissed.