MS "Solong" Schiffahrtsgesellschaft mbH & Co KG & Anor v Samskip Multimodal BV & Anor [2026] EWHC 1211 (Admlty)

[2026] EWHC 1211 (Admlty)Case No AD-2025-000016
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 22/05/2026
Before
MR JUSTICE ANDREW BAKER
Between
(1) MS “SOLONG” SCHIFFAHRTSGESELLSCHAFT MBH & CO KGClaimants(2) FERNANDO MARITIME LIMITEDClaimant(1) SAMSKIP MULTIMODAL BVDefendants(previously Samskip Multimodal Container Logistics BV, and trading inter alia as Samskip MCL BV)(2) All other persons claiming or being entitled to claim loss or damage arising out of or in connection with or resulting from the collision between “Solong” and “Stena Immaculate” on 10 March 2025Defendant
Luke Parsons KC and Alex Carless (instructed by Stann Law Ltd) for ClaimantsStewart Buckingham KC and Saira Paruk (instructed by Campbell Johnston Clark Ltd) for Stena InterestsNo other Defendant appeared or was represented at the hearingHearing Hearing date: 19 March 2026
Approved JudgmentThis is a reserved judgment to which CPR PD 40E has applied.Copies of this version as handed down may be treated as authentic..............................MR JUSTICE ANDREW BAKER

Introduction

[1]At 09:46:57 hrs UTC on 10 March 2025, the m.v. Solong ploughed into the port side of the m.t. Stena Immaculate, which was lying quietly at anchor off the Humber coast laden with a cargo of over 220,000 barrels of jet fuel. Solong had been on a plumb collision course with Stena Immaculate for the entire period from when the tanker will first have appeared on Solong’s radar, then c.9.5 nm distant, at c.09:10 hrs UTC. Solong was a small container ship (820 TEU), with a spray deck covering the bow end so that a mariner working on forward deck gear would be under that cover, sheltered but also unaware of what was ahead unless they happened to look out of one of the openings in the bow shell plating.[2]The master of Solong, Capt Vladimir Motin, was on duty as sole officer of the watch with an able seaman, AB Mark Pernia, on standby duty as lookout if required. Theirs was the 08:00-12:00 hrs watch, and the ship was operating on Rotterdam time (UTC+1).[3]AB Pernia was not called to the Bridge during that watch. When Solong struck Stena Immaculate, he was at the bow, under the spray deck cover, greasing deck gear. Capt Motin neither steered nor slowed his ship, nor sounded any alarm. On 2 February 2026, he was convicted by a jury at the Central Criminal Court of the gross negligence manslaughter of AB Pernia, who died in the collision or the explosion and fireball it caused and whose body was never found.[4]The basic facts of the collision suggest that Solong was a ship unaware of the risk ahead. That is the most likely explanation, other things being equal, for a modern cargo ship, at sea in good working order, sailing head on at full speed into the side of a large tanker lying quietly at anchor. In this Limitation Claim brought by Solong’s owners (‘Owners’) and demise charterers, Owners’ right to limit is disputed by the owners and demise charterers of Stena Immaculate, Stena Bulk Marine Services LLC and Crowley Stena Marine Solutions LLC respectively (‘Stena Interests’). Stena Interests’ claims against Solong would be for the massive damage caused to Stena Immaculate (which they say was so damaged as to be a constructive total loss) and for compensation for cargo and crew claims settled by them. Stena Interests rely on Article 4 of the 1976 Convention i.e. the Convention on Limitation of Liability for Maritime Claims 1976, as amended by the 1996 Protocol, all as and to the extent enacted into English law by s.185 of and Schedule 7 to the Merchant Shipping Act 1995. :
“[Owners] Stena Interests do not allege any Article 4 case against Solong’s demise charterers, and confirmed at the hearing that their right to limit under the 1976 Convention is not disputed. This judgment therefore treats the live issue as an issue only between Owners and Stena Interests, although in fact (for example) the application to strike out the Defence was brought and pursued jointly by both claimants. shall not be entitled to limit [their] liability if it is proved that the loss resulted from [their] personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.”
[5]Owners concede that Capt Motin was guilty of a gross failure of his watchkeeping and navigation duties; but they say there is no realistic prospect of Stena Interests succeeding at a trial under Article 4. By an Application Notice dated 18 July 2025, Owners apply for Stena Interests’ Defence to be struck out. The basis upon which Stena Interests assert that there is or may be an Article 4 defence is identified later in this judgment, but I note now that it is not alleged, nor is it suggested that there is any basis for alleging, that the collision was deliberate on Owners’ part.[6]I also note, to complete this introduction, that it is not alleged that the collision resulted from any act or omission of Owners with intent to cause “such loss” (and that is so whether Stena Interests or Owners are correct about the meaning of that term in Article 4). The allegation, for which Owners say there is no basis, giving rise to the application to strike out, is that the collision resulted from acts or omissions of Owners committed recklessly and with knowledge that “such loss” would probably result.[7]Owners contend that “such loss” refers to “the very loss which … actually resulted and which is the subject-matter of the claim in which the right to limit is asserted”, so that at trial Stena Interests would have to prove knowledge on Owners’ part that a collision with Stena Immaculate would probably result from their relevant reckless acts or omissions (as alleged). Stena Interests have not alleged that or claimed any prospect of being able to prove it. If Owners are correct on that point of interpretation of Article 4, their application to strike out is straightforwardly irresistible. Stena Interests contend, however, that “such loss” does not have such a specific, restrictive meaning. They say it means loss of the kind that occurred, so that it refers, as Professor Berlingieri suggested, to “the general characteristics of the damage” (Berlingieri, International Maritime Conventions: Volume 2, Chapter 11, Section 7.1(b), p.370). If that is correct, then(i) knowledge that a collision with another ship would probably result, when recklessly acting or failing to act in such a way that the actual collision did result, would be sufficient, and(ii) Owners could not and did not contend that “such loss” in Article 4 could justify their application to strike out.

Approach

[8]At a trial, the burden would be on Stena Interests to bring the case within Article 4. The burden at this stage is on Owners, as the applicants asserting that no trial is required, to persuade the court that it is unrealistic to suppose that Stena Interests might succeed if the case went to trial.[9]It was common ground that Stena Interests’ prospects of success are to be assessed at this stage not by reference only to the evidence put before the court on this application, but also taking account of evidence that can reasonably be expected to be available at trial. That is a well known aspect of the approach of the court to applications to strike out defences, or for summary judgment. The principles applicable to such applications were not in dispute and do not need to be rehearsed further in this judgment.[10]Two points arose from counsel’s submissions on the interpretation of Article 4, one uncontentious, one contentious, respectively: the ‘virtually unbreakable’ nature of the right to limit; and the meaning of “such loss” in Article 4 (as touched on already in paragraphs 6-7 above).[11]The 1976 Convention, being an international treaty enacted into English law, falls to be interpreted in accordance with the Vienna Convention on the Law of Treaties 1969. The key principles were summarised recently by the Supreme Court in The MSC Flaminia, MSC Mediterranean Shipping Co SA v Conti II Container Schiffahrts-GmbH & Co KG MS [2025] UKSC 14, [2025] 1 WLR 1835, at [57] (per Lord Hamblen JSC, with whom Lord Hodge DPSC and Lords Briggs, Leggatt and Burrows JJSC agreed). The primary rules of interpretation under the Vienna Convention are in Articles 31 and 32, and in particular:(i) Article 31.1 provides that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”;(ii) Article 31.3(a) provides that, in interpreting the provisions of a treaty, there “shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”;(iii) Article 32 provides that recourse may be had to supplementary means of interpretation, including any travaux préparatoires, “to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”[12]Article 33 of the Vienna Convention provides, inter alia, that when a treaty has been authenticated in two or more languages, the text in each language is equally authoritative, unless the treaty provides or the parties agree that a particular text is to prevail in case of divergence (Article 33.1), and that (with that same proviso) if a comparison of authentic texts discloses a difference of meaning that is not removed by the application of Articles 31 and 32, “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted” (Article 33.4).[13]For the purpose of Article 33, the 1976 Convention has four authentic texts, English, French, Spanish and Russian; and it does not provide, nor is there any agreement between the parties to the 1976 Convention, that any one of those is to prevail in case of divergence. The parties did not refer me to any of the non-English authentic texts. I therefore proceed on the basis that there is no argument to be considered that the different language texts may disclose a difference of meaning that has to be examined in order to determine the proper interpretation of Article 4 of the 1976 Convention.

Virtual Unbreakability

[14]The researches of counsel identified only one English case in which an Article 4 defence has succeeded under the 1976 Convention, and only two others in which such a defence avoided summary dismissal:(i) the defence succeeded in The Atlantik Confidence [2016] EWHC 2412 (Admlty), but that was a scuttling case where Teare J found that the ship was sunk deliberately by the master and chief engineer at the request of a Mr Agaoglu, the alter ego of the owners (see at [317]). Mr Agaoglu intended cargo to be lost as much as he intended the ship to be lost, so owners could not limit their liability to cargo interests (ibid);(ii) in The Saint Jacques II [2002] EWHC 2452 (Admlty), Gross J (as he was then) dismissed an appeal from a refusal by the Admiralty Registrar to grant summary judgment on the right to limit, or strike out the Article 4 defence, in a case where the first claimant was a co-owner and skipper of the Saint Jacques II, a fishing boat. He was on board and, to steal a march on his competition, he personally directed her ‘rogue’ navigation, on multiple occasions prior to and including the casualty voyage, through the southwest bound lane of the Dover Strait Traffic Separation Scheme, in flagrant breach of the Collision Regulations. That was conceded to be reckless conduct, it was obviously causative, and so the only question was whether there was a real prospect of a finding at trial that the first claimant realised a collision would probably result. Gross J concluded that there was, although I note that even with those “quite remarkable”features of the first claimant shipowner’s conduct (ibid, at [21]), the submission that there was no real prospect of obtaining that finding was a substantial contention that merited anxious consideration (ibid, at [21(3)]);(iii) finally, in Holyhead Marina Ltd v Farrer et al [2020] EWHC 1750 (Admlty), an Article 4 defence was not summarily dismissed where a storm had caused serious damage to boats at the claimant’s marina, there was evidence that the claimant knew of the probability of at least minor storm damage, and the actual storm involved winds of a severity that was infrequent but (it was said) foreseeable. Teare J considered it “most improbable that the requisite actual knowledge will be established” but concluded that the defence had, just, a real prospect of success (ibid, at [68], [85]).[15]That paucity of success under Article 4 reflects a view, supported by the travaux préparatoires to the 1976 Convention, that Article 4 is narrowly drawn in order that, and such that, the right to limit is ‘virtually unbreakable’. That view is now authoritative, in the sense that Article 4 is indeed to be interpreted in such a way that the right to limit under the 1976 Convention is “virtually unbreakable in nature”, by virtue of IMO Resolution A.1164(32) (the ‘Unified Interpretation Resolution’), adopted on 15 December 2021 as part of the 32nd Session of the IMO Assembly. I explain that conclusion in paragraphs 16-19 below.[16]The Unified Interpretation Resolution affirmed a stance on the proper interpretation of Article 4 of the 1976 Convention that was agreed between all states party to the 1996 Protocol that were present at that Session. There was a materially identical IMO Resolution A.1163(32), adopted as part of the same Agenda item at the 32nd Session, agreed between all states party to the 1976 Convention that were present. The history and IMO legislative process is related by Professor Gaskell in LLMC 1996: Living with Limitation of Liability (2022) 36(2) ANZ Mar LJ, section 11.3 on p.27ff.[17]All states that are party to the 1976 Convention were present at that 32nd Session of the IMO Assembly and thus adopted the Unified Interpretation Resolution, except Niue, Samoa and Syria. Paragraph 2 of the Resolution requested the IMO Secretary-General to circulate copies of the Resolution to all states which have signed, ratified or acceded to the 1996 Protocol; and paragraph 3 requested the Secretary-General to circulate copies to all IMO member states. In the absence of any contrary evidence or suggestion, I consider it right to infer that the Secretary-General will have circulated copies of the Resolution to Niue, Samoa and Syria as part of satisfying paragraph 2 (and paragraph 3 in the case of Samoa and Syria).[18]I agree with the submission of Mr Parsons KC that it is proper then to take those state parties as having accepted and adopted the Uniform Interpretation Resolution, there being no evidence or suggestion of any communicated protest or objection. As a result, by Article 31.3(a) of the Vienna Convention, the Resolution is to be taken into account as part of the primary task of interpreting Article 4 of the 1976 Convention under Article 31.1 of the Vienna Convention. I did not understand Mr Buckingham KC to advance any contrary submission.[19]The Uniform Interpretation Resolution, by paragraph 1, affirmed:
“that the test for breaking the right to limit liability as contained in article 4 of the 1976 LLMC Convention is to be interpreted: (a) as virtually unbreakable in nature i.e. breakable only in very limited circumstances and based on the principle of unbreakability; (b) to mean a level of culpability analogous to wilful misconduct, namely: (i) a level higher than the concept of gross negligence, since that concept was rejected by the 1976 International Conference on Limitation of Liability for Maritime Claims; (ii) a level that would deprive the shipowner of the right to be indemnified under their marine insurance policy; and (iii) a level that provides that the loss of entitlement to limit liability should begin where the level of culpability is such that insurability ends; (c) that the term “recklessly” is to be accompanied by “knowledge” that such pollution damage, damage or loss would probably result, and that the two terms establish a level of culpability that must be met in their combined totality and should not be considered in isolation of each other; and (d) that the conduct of parties other than the shipowner, for example the master, crew or servants of the shipowner, is irrelevant and should not be taken into account when seeking to establish whether the test has been met.” (a) as virtually unbreakable in nature i.e. breakable only in very limited circumstances and based on the principle of unbreakability; (b) to mean a level of culpability analogous to wilful misconduct, namely: (i) a level higher than the concept of gross negligence, since that concept was rejected by the 1976 International Conference on Limitation of Liability for Maritime Claims; (ii) a level that would deprive the shipowner of the right to be indemnified under their marine insurance policy; and (iii) a level that provides that the loss of entitlement to limit liability should begin where the level of culpability is such that insurability ends; (c) that the term “recklessly” is to be accompanied by “knowledge” that such pollution damage, damage or loss would probably result, and that the two terms establish a level of culpability that must be met in their combined totality and should not be considered in isolation of each other; and (d) that the conduct of parties other than the shipowner, for example the master, crew or servants of the shipowner, is irrelevant and should not be taken into account when seeking to establish whether the test has been met.”
[20]Elements (a) to (c) of paragraph 1 of the Uniform Interpretation Resolution accord with the approach consistently taken in (at least) this jurisdiction, Australia, Canada and Hong Kong. As Professor Gaskell explained in LLMC 1996: Living with Limitation of Liability, supra, the call for what became the Uniform Interpretation Resolution arose out of concern that that approach was not fully consistent across all jurisdictions applying the regime of the 1976 Convention. The approach taken in Spain and France in the much litigated Prestige oil pollution disaster was one particular cause of that concern.[21]On the view I take that the Uniform Interpretation Resolution is authoritative in the sense I stated in paragraph 15 above, I do not need to investigate that prior lack of complete consistency, or deal in any detail with the case law preceding the Resolution I had in mind in the first sentence of the paragraph 20 above, viz.: The Bowbelle [1990] 1 WLR 1330, per Sheen J at 1335C-D; The MSC Rosa M [2000] 2 Lloyd’s Rep 399, per David Steel J at [13]; The Leerort [2001] EWCA Civ 1055, per Lord Phillips MR at [18]-[19]; The Saint Jacques II, supra, per Gross J at [18]; Strong Wise Ltd v Esso Australia Resources Pty Ltd et al. [2010] FCA 240 (Federal Court of Australia), per Rares J at [42]-[44]; The Realice, Peracomo Inc et al. v Telus Communications Co et al. [2014] SCC 29 (Supreme Court of Canada), at [25]; and The Star Centurion, Perusahaan Perseroan (Persero) PT Pertamina v Trevaskis Ltd [2022] HKCA 1089 (Hong Kong Court of Appeal), per Hon Kwan VP (with whom Barma JA and G Lam JA agreed) at [17]. I do however note in particular how Gross J put the point in The Saint Jacques II, supra, namely that the party seeking to break the 1976 Convention limit by invoking Article 4 must “surmount a formidable hurdle to succeed in resisting summary judgment, quite apart from succeeding at any trial. In practical terms, in the collision context, … it is likely that only truly exceptional cases will give rise to any real prospect of defeating an owner’s right to limit.” (my emphasis).[22]A little care is needed not to take element (d) of paragraph 1 of the Uniform Interpretation Resolution too far. It confirms and emphasises that even reckless or intentional action by a ship’s master who is not also an owner, deliberately causing damage or causing damage realising it would probably result, does not avoid limitation of liability under the 1976 Convention. It is therefore true to say that even such conduct is not the conduct required by Article 4 in order to break the limit and therefore is not conduct the existence of which, if proved, can establish that the test under Article 4 has been met. However, I agree with Professor Gaskell’s conclusions in 1996: Living with Limitation of Liability, supra, section 11.3.4 on p.33, that:(i) the Resolution does not deal with the important question of attribution (identifying who was the shipowner for present purposes), and: “While the intent/recklessness of mere “servants” was never intended to deprive the shipowner of the limits, it will still be necessary to investigate questions of function in the corporate hierarchy, as well as delegation (or abnegation) of those functions (particularly in a small corporate structure)”;(ii) a decision, by someone who as a matter of attribution is identified as the shipowner for the purpose of Article 4, to employ (or to continue to employ) a master known to navigate dangerously could be a personal act or omission of the shipowner allowing an Article 4 defence, if that were found to have been a reckless decision, taken with an appreciation that the loss that resulted or that type of loss would probably result.[23]Whether in that last proposition it must be ‘the loss that resulted’ or can be only ‘that type of loss’ is the question of the meaning of “such loss”, as that term appears in Article 4, to which I turn next.

Such Loss

[24]To establish an Article 4 defence at a trial, Stena Interests would have to prove that “the loss” in respect of which they sought to hold Owners liable, and in respect of which Owners sought to limit liability under the 1976 Convention, resulted from Owners’ personal act or omission, “committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result” (my emphasis). The disputed question is whether, properly construing Article 4, “such loss” there conveys “the said loss” or “that type of loss”, in the sense described by Professor Berlingieri from whom I quoted in paragraph 7 above. As a matter of ordinary meaning and syntax, in my view either can be said to be a natural and reasonable way of reading Article 4.[25]It can be said in favour of the narrower interpretation (“the said loss”) that it is the narrower interpretation. The exercise is one of construing an exception to a right to limit that is designed to make that right virtually unbreakable. The narrower the exception, the harder it is to break the right to limit. Therefore, favouring a narrower reading of the exception, it may be said, more fully serves that purpose of the 1976 Convention.[26]On the other hand, one must not lose sight of the fact that even a limitation of liability that is intended to be virtually unbreakable is still a limitation of liability that requires justification. It would be illogical and wrong, as a supposed reading of language in that basic context, to interpret the 1976 Convention in such a way that cases that materially equally do not justify the existence of that right to limit are not treated similarly by Article 4, if that reading is not unavoidable on the language used. Yet the very narrow interpretation proposed by Owners makes for exactly such arbitrary distinctions. They are distinctions, moreover, that run counter to the intention, evident in the travaux préparatoires and stated in terms in the Uniform Interpretation Resolution, that Article 4 set the bar at a level analogous to the notion of wilful misconduct that negatives insurance cover, such that (as it is put in paragraph 1(b)(iii) of the Resolution) “… the loss of entitlement to limit liability should begin where the level of culpability is such that insurability ends”.[27]It is easiest to see that by positing deliberate wrongdoing by or on the instruction of a shipowner (and I consider it self-evident that “such loss” has the same meaning in Article 4 whether the case is one of intent to cause it or reckless conduct with knowledge that it will probably result).[28]It is no surprise that, only one Article 4 defence having ever succeeded at trial in this jurisdiction, it was a case of scuttling (paragraph 14 above). The deliberate destruction of a ship, by or at the behest of the shipowner, with a view to making a (necessarily dishonest) insurance claim on a hull and machinery policy, is I would think the most obvious case of a known phenomenon on the wrong side of the divide between the insurable and the uninsurable. Though I am not aware of a reported example, it is not difficult to imagine deliberate collision as a chosen method. The resulting claim on a P&I Club or other liability insurer would then be equally dishonest. However, for no reason related to the tonnage limitation context or any object or purpose of the 1976 Convention, on Owners’ interpretation of Article 4, it would make all the difference whether the shipowner identified or otherwise knew in advance of the particular ship to be hit.[29]Similarly, take deliberate ramming, not with a view to the destruction of the ship, but as part of some heated maritime dispute, by no means unknown, for example, in the modern history of territorial fishing rights disputes. When the ramming victim claims damages, what reason at all, let alone reason connected to any object or purpose of the 1976 Convention, justifies depriving the guilty shipowner of the right to limit only if the particular victim had been identified or known in advance and the ramming is carried out by a skipper-owner or on the instruction of an owner ashore?[30]Similarly in concept, but away from deliberately damaging ships, suppose a shipowner deliberately does nothing about a serious known ship’s defect that causes loss of or damage to cargo on some subsequent voyage. That is the wrong side of any normal boundary between the insurable and the uninsurable (see, if necessary, ss.39(5) and 55(2)(a) of the Marine Insurance Act 1906). It would be arbitrary for the availability of the right to limit under the 1976 Convention to turn on whether the person or persons guilty of that wilful misconduct knew the identity of the particular cargo or cargo interests affected.[31]Applying Article 31.1 of the Vienna Convention, with Article 31.3(a) and the Uniform Interpretation Resolution, in my view the incongruity of the “said loss” interpretation proposed by Owners is comfortably the more powerful factor than the marginal increase in virtual unbreakability it would create. The ordinary meaning to be given to the terms of Article 4 is that “such loss” means “that type of loss”, given the tonnage limitation context and the object and purpose of ensuring that the right to limit is virtually unbreakable in nature in such a way that the loss of the right to limit is reserved for cases of personal fault by the shipowner analogous to wilful misconduct that creates uninsurability.[32]Applying Article 32, I consider that the travaux préparatoires confirm that meaning. Had I considered that Article 31 left the meaning of Article 4 ambiguous or obscure, I would have said the travaux préparatoires determined the outcome in favour of that meaning. Had I considered that Article 31 gave Article 4 the interpretation that “such loss” meant “the said loss”, I would have said that the incongruity I have relied on against that meaning rendered it an unreasonable interpretation and the travaux préparatoires would then have determined the outcome in favour of interpreting “such loss” to mean “that type of loss”. For each of those possible ways of analysing the matter, the material from the travaux préparatoires I have in mind is as follows:(i) on p.121, in the Second Report of the Chairman to the Hamburg Conference, it is explained that a choice was being made in favour of a test of “intent to cause loss or reckless[ness] … with knowledge that loss would probably occur” over a test of “actual fault or privity”, because the latter allowed the right to limit to be defeated by simple negligence, and that limitation should not be forfeited only because the person has acted with intent to cause or recklessly with knowledge that they would probably cause “some sort of a loss. If the actual loss is a remote consequence of the act, limitation should not be denied”, indicating a focus on types of loss (intended or appreciated to be probable), not even more narrowly on the very loss that occurs;(ii) on p.122, in the Text and Commentary of the Hamburg Draft Convention, it was again noted that the right to limit should not be lost through simple negligence, and “It is proposed, therefore, that the right of limitation shall not be lost unless the person liable has acted with intent or a certain recklessness”, and it was explained that the language of Article 4 came “very near to the English legal term “wilful misconduct”, which normally is the degree of blame required if the insurance cover shall be forfeited (Marine Insurance Act (1906) Sect. 55 (2) a). The proposed text, therefore, implies that there will be right of limitation where the insurance cover is intact. Making the limitation unbreakable to this extent should make possible a significant raise of the limits of liability”;(iii) on pp.123-124, in the Report of the 25th Session of the Legal Committee, it was noted that the language of Article 4 was intended to restore “a measure of “unbreakability” to the limitation which the Convention provides, and thereby … to assure the highest possible insurable limits” and that the language reflected that used in international air law and previous IMCO Conventions (in which appreciation of the likelihood of the type of damage that is suffered is sufficient, see e.g. Goldman v Thai Airways [1983] 1 WLR 1186 in relation to the Warsaw Convention);(iv) on p.125, in the Report of the 28th Session of the Legal Committee, a general view was recorded “that a system with a more or less “unbreakable” limitation would make it possible to fix higher monetary figures than would be insurable where conduct barring limitation could be commonly and successfully pleaded”, again making the connection between insurability and the right to limit, and conversely between conduct barring limitation and conduct negativing insurability.[33]Owners drew attention to views expressed, obiter, by Lord Phillips MR in The Leerort, supra, and by Gross J in The Saint Jacques II, supra, and to some of the textbooks.[34]In The Leerort at [14]-[18], Lord Phillips MR rejected a submission that “such loss” in Article 4 meant only the applicable type of loss that brought the claim within Article 2. The contention was that, therefore, knowledge of likelihood of loss of or damage to property (of any kind, however caused) would be enough to break the limit if the claim was for loss of or damage to property, an Article 2 category of claim. That, I should make clear, is a far wider notion of ‘type of loss’ than that which I have said I find in the language of Article 4.[35]The Master of the Rolls said, at [13], that the language required “foresight of the very loss that actually occurs, not merely of the type of loss that occurs” and, at[15], that the words “such loss” in Article 4 “clearly refer back to the loss that has actually resulted and which is the subject matter of the claim in which the right to limit is asserted”. He suggested, at [16], that where the claim results from a collision between ship A and ship B, the owner of ship A, or an owner of cargo in ship A, would only defeat ship B’s owner’s right to limit upon proof of intention that ship B should collide with ship A or recklessness with knowledge that it was likely to do so. However, he also said, at [17], that it was “perhaps arguable” that intention that ship B have a collision with another ship, or recklessness with knowledge that it was likely to do so, would suffice, and noted, at [18], that it was not necessary to decide which alternative was correct.[36]Lord Phillips MR’s preference, obiter, for the narrower view, which favours Owners’ argument in the present case, is not authoritative, and I do not find it persuasive. His recognition that the view I have taken is arguable acknowledges, I think, that it is a reasonable reading of the language of Article 4; he did not consider the aspect that Article 4 was designed broadly to match the breaking of the limit with an absence of insurability; and the Uniform Interpretation Resolution did not exist when The Leerort was decided.[37]In The Saint Jacques II, at [16(5)], having quoted The Leerort at [13]-[19], Gross J said, compendiously as regards that entire passage, that “whether or not these observations are … strictly obiter, I respectfully regard them as both authoritative and persuasive and I shall follow them”. If by that Gross J meant to adopt, specifically, Lord Phillips MR’s preference for a collision with ship A rather than a collision, as the sense of “such loss” in a claim arising from a collision with ship A, then for the reasons given in paragraph 36 above, I do not agree that it was, or is, authoritative or persuasive. I do not consider Gross J’s observation can be read as such a specific endorsement anyway. Certainly, he did not apply any such view to decide The Saint Jacques II. The sense in which Gross J followed Lord Phillips MR’s observations, so far as material, was that he treated the wider view as arguable and sufficient to avoid summary judgment; and even that was not a matter of decision in The Saint Jacques II because, as Gross J said in the same paragraph, counsel for the claimant seeking to overturn the Admiralty Registrar’s refusal to dismiss the Article 4 defence summarily conceded that for the matter to go to trial, it was sufficient if there was a real prospect of showing knowledge within either of Lord Phillips MR’s alternative formulations.[38]Owners also referred me to The Rena, Daina Shipping Company et al v Te Runanga O Ngati Awa [2013] NZHC 500, [2013] 2 NZLR 799, per Woodhouse J at [37]-[42]. Mr Parsons KC submitted that in that passage, Woodhouse J endorsed and applied Lord Phillips MR’s preferred approach. I agree with Mr Buckingham KC’s submission that that misreads the judgment. In fact, like Gross J in The Saint Jacques II, Woodhouse J actually followed The Leerort in the rather different sense that he treated both of Lord Phillips MR’s two alternative formulations as potentially correct and did not need to, and did not, choose between them. Woodhouse J noted at [40] that if the narrower of the two formulations was applied, it might be said that Article 4 required in that case “knowledge of the probability of loss or injury or damage to Mr Lancaster [the party objecting to tonnage limitation] or to his business”; but then continued, at [41], that “At the least, the senior management person, for each of the plaintiffs, would have to have known not only that it was probable that the Rena would collide with the Astrolabe Reef, but also that oil would be discharged, float ashore, and cause loss to business owners operating from the beaches”. He proceeded on the equivocal basis (as regards which of those was correct), at [43], that “there must at the least be knowledge, when related to the facts of this case, of the probability of loss or injury or damage to business owners operating from the beaches and with this arising from oil pollution arising from grounding on the Astrolabe Reef”.[39]As regards textbooks, Owners referred me to:(i) Marsden and Gault on Collisions at Sea, 16th Edition (2025), at 13.27 (Article 4 “requires proof of actual knowledge or foresight of the very loss that actually occurred”, citing The Leerort, supra, and The MSC Rosa M, supra, neither of which decides that, and also The Realice, supra, which likewise left the point open (ibid at [28]-[31]));(ii) Gaskell and Forrest on the Law of Wreck (2019), at 2.5.7 (“the reference in Art 4 to “such loss” indicates that the knowledge must relate to the very loss that actually occurred and not loss generally”, citing The Leerort, which does decide that knowledge concerning ‘loss generally’ is insufficient, but not that it has to be knowledge of the very loss that occurred);(iii) Fogarty on Merchant Shipping Legislation, 3rd Edition (2017), at 15.190 (“It would appear that article 4 requires that the claimant prove that the person seeking to limit his liability was in fact aware and appreciated that his acts would probably result in the loss sustained”, citing no authority); and(iv) Derrington and Turner, The Law and Practice of Admiralty Matters, 2nd Edition (2016), at 10.104 (adopting the narrower view preferred, obiter, by Lord Phillips MR in The Leerort, supra, but on an incorrect basis that the case decided it to be correct, which it did not).[40]Mr Buckingham KC relied on Berlingieri, International Maritime Conventions: Volume 2, Chapter 11, Section 7.1(b), p.370, as I noted in paragraph 7 above. The full passage is as follows:
“If really the addition of the word ‘such’ had the meaning first given to it by Lord Phillips it would be absolutely impossible to break the limit. But that could definitely not have been the intention, for otherwise the rule would not produce the effect for which it was adopted. It appears more logical that the purpose of the addition has merely been that of indicating what was already implied, namely, the general characteristics of the damage. In the Leerort case it would have sufficed that the owner of ship B acted recklessly with knowledge that his ship would have caused damage to property inside the port: it might have been another ship, or a pier, or a crane on a pier.”
[41]Finally as regards textbooks, I note the views of:(i) Meeson and Kimbell, Admiralty Jurisdiction and Practice, 5th Edition (2018) at 8.84, that Article 4 requires at least anticipation of damage of the same kind as that suffered, arguably including “the actual manner of damage”; and(ii) Griggs, Williams and Farr, Limitation of Liability for Maritime Claims, 4th Edition (2005), at pp.36-37, which somewhat inconsistently presents the idea that “the use of the words “such loss” in Article 4 seem [sic.] to underline the fact that the right to limit is barred only if the type of loss intended or envisaged by the “person liable” is the actual loss suffered by the claimant” and the idea that the use of those words “suggests that in order to defeat the right to limit under the 1976 Convention it must be proved that the damage complained of is the same damage known to be the probable result”, and inaccurately reports The Leerort, The MSC Rosa M, and The Saint Jacques II all as having decided that foresight of the very loss actually suffered is necessary under Article 4.[42]That collection of textbook commentary, a somewhat mixed bag, does not cause me to reconsider the view I formed, applying the Vienna Convention to interpret Article 4. It contains no additional reasoning or analysis that might support Owners’ argument. Only Professor Berlingieri’s work offers reasoning beyond assertion as to meaning, and it is against Owners; and there is a troublesome trend in the commentary favourable to Owners of treating cases as authority for points not decided by them.[43]For all those reasons, Owners’ application to strike out Stena Interests’ Defence does not succeed upon the first ground argued, namely the absence of any allegation or prospective ability to allege knowledge of a probability of Solong colliding with Stena Immaculate specifically. That argument depends on what I have decided is a misinterpretation of the term “such loss” in Article 4 of the 1976 Convention.

The Defence Asserted

[44]The argument sensibly proceeded by reference to a draft Amended Defence served by Stena Interests to show amendments they wish to make in the light of the evidence given at Capt Motin’s criminal trial (see paragraph 3 above), transcripts of which they have obtained. There is no reason to refuse permission to amend unless it be that, even taking account of the proposed amendments, the Defence would not raise an Article 4 defence fit to be tried.[45]In my judgment, that is the position. The pleaded Article 4 defence is an exercise in evident speculation without foundation, a lawyers’ construct of what would have to be true in this case for the right to limit to be defeated under Article 4 and the pleading, on no more than that as foundation, that it is to be inferred that those matters are true.[46]Mr Buckingham KC emphasised as context that this was no ordinary or common collision, but a highly unusual case. As he noted, it is common ground that Stena Immaculate was visible on Solong’s radar from approaching 10 nm off, at c.09:10 hrs UTC, over half an hour before impact, yet Solong proceeded on a direct collision course at a steady 16 kn until impact, through a known auxiliary anchorage area, without in fact registering that Stena Immaculate was there. (In his evidence to the jury at his criminal trial, Capt Motin insisted that he was well aware of Stena Immaculate from when she was first picked up by his radar, and gave an improbable account of steps he claimed to have taken in an unsuccessful attempt to steer around her. Owners do not plead in this court any factual case based on that account.)[47]He argued that there is real reason for proposing that this was not some one-off navigational error or aberration, but something much more serious that was a result of fundamental underlying problems with how Solong was skippered by Capt Motin. He said that important and startling matters had been revealed by the evidence at Capt Motin’s criminal trial, that matters of reporting and awareness ashore of practices on board Solong were exclusively within the knowledge of Owners, and that it was realistic to envisage that evidence from the prosecution file, which Stena Interests are hoping to inspect, or from disclosure in these proceedings, or from the collision claims that are also before this court (Claim Nos. AD-2025-000017 and 000019), might lend support to the asserted Article 4 defence.[48]That asserted defence is that:(i) with Capt Motin in command, Solong was unseaworthy because of his navigational or shipboard management practices (as alleged by Stena Interests) and/or because he was not a competent master, as evidenced by those (alleged) practices;(ii) it is to be inferred that that was known to a person or persons that prior to disclosure Stena Interests cannot identify who was or were the directing mind and will of Owners so that their knowledge, acts and omissions were Owners’ knowledge, acts and omissions;(iii) that individual or those individuals failed to ensure, or take reasonable steps to ensure, that Solong was seaworthy (up to and including, if necessary, replacing Capt Motin);(iv) it would have been obvious to that individual or those individuals, if they indeed had the knowledge allegedly to be inferred and if they did then, as allegedly to be inferred, fail to ensure or take reasonable steps to ensure that the issues on board Solong were rectified, that Solong “would likely come into collision or allision with another vessel or vessels”, resulting in vessel damage, loss of use, salvage costs, loss of and/or damage to cargo, and crew claims; and(v) therefore, it is to be inferred that that individual or individuals (a) was or were reckless, choosing unjustifiably to run a risk of collision of which they were aware, and (b) was or were aware, when thus acting recklessly, that a collision or allision with another vessel or vessels, with such consequences, would probably result.[49]Owners’ summary challenge to that defence concerns steps (ii) to (v). They do not deny that there is a proper basis for Stena Interests’ case at step (i) or say that a trial would not be required and justified to determine that part of the case.[50]On the identity of the individual or individuals whose acts or omissions Stena Interests might say at trial were the personal acts or omissions of Owners for the purpose of Article 4, one alleged candidate is Solong’s Designated Person Ashore (‘DPA’). Owners put in evidence that the DPA was Dariusz Kotlicki, a qualified master mariner with significant seagoing experience, including on container ships, and about 20 years’ experience as a DPA. The allegation though is not that Mr Kotlicki (assuming he was indeed the DPA at the time) was the (or a) directing mind and will of Owners because of anything about him as an individual or because there is any basis for alleging that he has a role in the senior management of Owners. The allegation is a simple assertion that a DPA is necessarily a directing mind and will. That is not arguable:(i) The ISM Code provides, at Article 4, that: “To ensure the safe operation of each ship and to provide a link between the company and those on board, every company, as appropriate, should designate a person or persons ashore having direct access to the highest level of management. The responsibility and authority of the designated person or persons should include monitoring the safety and pollution prevention aspects of the operation of each ship and to ensure that adequate resources and shore based support are applied, as required.”(ii) The IMO guidelines in MSC-MEPC.7/Circ.5 provide that the DPA must be given “authority for reporting non-conformities and observations to the highest level of management”.(iii) The principal role of the DPA is to act as a link between the ship and the shipowner or other person who has assumed responsibility for operation of the ship under the ISM Code. The DPA is not the shipowner or other responsible operator. The DPA performs that linking role through having direct access to the decision-making management level. The DPA is not a decision-making management level role.[51]It can be the case, of course, in small ship owning outfits that a person who does personify the shipowner (a directing mind and will of the ship owning company) may act as DPA. That does not negative or qualify what I have said, above. Such a person is still not a directing mind and will of the shipowner because they are the DPA for the ship, they are a directing mind and will of the shipowner who happens also, given the modest scale of the business, to be the DPA. Stena Interests’ allegation here, however, is that Solong’s DPA (whoever that may have been) was a directing mind and will of the shipowner because they were the DPA. That is not an arguable proposition.[52]Owners are ultimately majority owned by Ernst Russ AG, which is based in Hamburg and manages 26 ships, mostly container ships. The CEO and CCO of Ernst Russ AG are Robert Gärtner and Joseph Schuchmann, above whom sits a four-member Supervisory Board. Messrs Gärtner and Schuchmann are also the directors of the personally-liable corporate partner of Owners. Mr Parsons KC realistically accepted that if there were some basis for pleading that Mr Gärtner or Mr Schuchmann acted or failed to act recklessly, and with knowledge that as a result of doing so Solong would probably have a collision, that would viably plead a relevant personal act or omission of Owners. There is no basis for any such pleading, however.[53]It is entirely speculative to suppose – and Stena Interests do not in fact plead – that anyone below Messrs Gärtner and Schuchmann would qualify as a directing mind and will of Owners for the purpose of Article 4.[54]Whether the focus had to be on Messrs Gärtner and Schuchmann, or could be on someone else not currently identified by Stena Interests, the asserted Article 4 defence would require that the directing mind or will in question(a) knew of the practices on board Solong alleged by Stena Interests to have amounted to unseaworthiness rendering her a collision waiting to happen,(b) appreciated that that was the effect of those practices, and(c) did nothing about them. There is however no basis even for alleging any of those matters (except, I suppose, for a contingent but internally logical basis for (c), viz. that if (a) and (b) were true and yet the practices continued and the collision with Stena Immaculate occurred, it might be properly arguable that the fair inference to be drawn was that (c) was also true).[55]Stena Interests plead a bare assertion that “it is to be inferred that, in the normal course, the [allegedly dangerous] practices … would have been reported to and/or become known to [a directing mind and will of Owners]”. It is said that that is to be inferred, in particular, because reporting procedures should be in place for the purpose of compliance with the ISM, the STCW Convention, the Hours of Rest Regulations, the Merchant Shipping Act (Hours of Work) Regulations 2002, IMO Resolution A.1047(27) Annex 3, and/or SOLAS. There is, however, in my view, no a priori reason at all to suppose that the matters of which Stena Interests complain would have been reported.[56]As for the argument that Stena Interests should be allowed to pursue the Article 4 defence as far at least as disclosure, in my view that would be an exercise in surmise and Micawberism of exactly the type deprecated in previous decisions in this context. In The Leerort, supra, at [29]-[30], Lord Phillips MR quoted from the judgment of David Steel J in that case, upheld by the Court of Appeal, by which the judge determined that the owners of the Zim Piraeus, which had collided with the stationary Leerort (lying quietly moored to a berth at a container terminal), were entitled to limit liability. The owners of Leerort and some cargo interests had sought to resist that determination, arguing that there should be disclosure sufficient to enable them to investigate thoroughly what happened to see if a basis for challenging the right to limit under Article 4 would be revealed. I consider that this case is materially the same, except only that the Leerort interests accepted their inability properly to plead an Article 4 defence and argued (intellectually honestly, but unsuccessfully) that there should be disclosure before any determination of the right to limit, whereas in this case Stena Interests have seen fit to plead an Article 4 defence (and counsel have persuaded themselves that they can properly put their names to the pleading), although there is no basis for such a pleading, and it is then said that they are not seeking disclosure to inform a decision whether to challenge the right to limit, because they have decided to challenge it and do mount that challenge.[57]Stena Interests’ asserted Article 4 defence, as Mr Parsons KC submitted, depends upon the inherently fanciful notion that someone in senior management at Owners actually realised that Solong, under Capt Motin’s command, was operated and navigated in ways that were dangerous, rendering it probable that she would have a collision on one of her North Sea transits, and did nothing about that, choosing to roll the dice. Stena Interests plead, without any basis or evidence for supposing that that might have happened, that it is to be inferred that it did. That pleading is an exercise in speculative imagination, not a pleading disclosing any reasonable basis for defending Owners’ claim to be entitled to limit liability under the 1976 Convention.

Conclusion

[58]For the reasons I have set out above, the application to strike out Stena Interests’ Defence is well founded and succeeds. The conclusion that there is no proper basis for the asserted Article 4 defence took into account the amendments to the Defence proposed by Stena Interests’ application to amend. I shall therefore dismiss that application.[59]The Application Notice for the application to strike out sought, as additional substantive relief,(i) judgment on the Limitation Claim against Stena Interests, and(ii) directions for the re-listing of the claimants’ application for a general limitation decree. The application for a general limitation decree was made by a duly completed Form ADM17A dated 4 April 2025. It was listed to be heard by the Admiralty Registrar on 27 May 2025, but that hearing was vacated under a Consent Order dated 23 May 2025 and the general decree application has not been brought back on for hearing because of the Article 4 issue raised by Stena Interests that is now determined against them by this judgment.[60]In the meantime, and pursuant to an Order of the Admiralty Registrar dated 30 May 2025, a limitation fund was constituted by a letter of undertaking. The re-listing of the general decree application for a hearing is an unnecessary step that will serve only to cause further delay and increase costs. Mr Parsons KC made it clear at the hearing that in the circumstances, if Stena Interests’ Defence was struck out, Owners would request that I determine the adjourned general decree application by granting the decree sought. I did not understand Mr Buckingham KC to suggest there was any reason not to grant that request.[61]There will therefore be a general limitation decree upon appropriate terms as to advertisement and the like (CPR 61.11(13)-(17)). I shall hear counsel as to those terms, if they cannot be agreed, and as to whether some (other) form of judgment against Stena Interests on the Limitation Claim needs to be pronounced or recorded, and also as to costs and any other consequential matters that may arise, in each case likewise if (and to the extent that) such matters are not agreed.