Author: David White, 12KBW
Readers of this blog will remember that in respect of claims arising from accidents at sea, other than Athens Convention claims, shipowners are able to limit their liability to a certain sum (excluding interest) in accordance with the Convention on Limitation of Liability for Maritime Claims 1976, as amended (“the 1976 Convention”), which was enacted into English law by s.185 and Schedule 7 of the Merchant Shipping Act 1995.
Under the 1976 Convention, total liability is capped by reference to the tonnage of the vessel, unless a party who wishes to claim against the at fault party is able “break the limit” by successfully relying upon Article 4 of the 1976 Convention, which provides as follows:-
“A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.”
This defence was recently tested in MS “Solong” Schiffahrtsgesellschaft MBH & Co KG v Samskip Multimodal BV [2026] EWHC 1211 (Admlty), heard by Mr Justice Andrew Baker, the Judge in Charge of the Admiralty Court.
In this blog post, David White considers the decision and its implications.
Facts
The claim arose from a collision at sea between two merchant ships off the Humber coast. The Stena Immaculate was lying at anchor with a cargo of 220,000 barrels of jet fuel and the MS Solong ploughed into the port side with no warning having been given in advance.
There is no explanation as to how the collision came to happen, but the inference is that there was clear negligence of the person or persons in control of steering and navigation of the MS Solong, including no proper watch being kept for other vessels moving or at anchor in the vicinity and on the navigational path.
We are told that an able seaman, AB Pernia, was working on the forward deck gear of Stena Immaculate oblivious to the impending collision and, tragically, he was killed in the collision or fireball that the collision caused, and his body was never found. The master of the MS Solong, Captain Motin, was subsequently convicted by a jury at the Central Criminal Court of the gross negligence manslaughter of the deckhand who died.
The Limitation Claim
The owners of the MS Solong (“Owners”) brought a limitation action in the Admiralty Court seeking a declaration as to the limitation of their total liability in accordance with the 1976 Convention so they could constitute a limitation fund from which claims against them would be paid. Commencing a limitation action to constitute a “limitation fund” is common practice in admiralty claims, and has specific procedural rules as detailed in Part 61 of the Civil Procedure Rules and the Practice Direction to Part 61.
The owner and charterers of Stena Immaculate (“Stena Interests”) disputed Owners’ right to limit liability and filed a defence relying upon Article 4 and pleading as follows:-
“[Owners] 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.”
Owners applied to strike out Stena Interests’ Article 4 defence, and the application came before Baker J for determination.
Judgment on the Strike-Out Application
Baker J allowed the strike-out application by Owners, and in so doing the Court has provided some clarity as to the scope of Article 4 and when it can be relied upon.
Firstly, the judgment emphasises the extremely high hurdle that any party faces in seeking to break the limit. Baker J endorsed the words of Gross J in The Saint Jaques II (Margolle v Delta Maritime Co. Ltd [2002] EWHC 2452 (Admlty), 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”.
It was noted that the only reported case in England and Wales where an Article 4 defence had succeeded on the facts was the case of a deliberate scuttling of the vessel, namely The Atlantik Conference [2016] EWHC 2412 (Admlty), in which Teare J found that the ship was sunk deliberately by the master and chief engineer at the request of an individual who was the alter ego of the owners.
Second, it was argued by Owners that for the Article 4 defence to be made out, the words “such loss” should be construed in a narrow way, such that for the requirements of Article 4 to be met, the requisite intention that would have to be proven was not mere intent or recklessness as to a collision with a vessel in general, rather intent or recklessness as to causing a collision with the vessel that the offending vessel in fact collided with, in this case a collision with Stena Immaculate herself. The Court saw merit in both interpretations of the phrase “such loss” but preferred the broader interpretation (contended for by Stena Interests), such that construing Article 4 properly, “such loss” was held to mean “that type of loss” rather than “the said loss”. Finally, the Court had to consider what level of corporate knowledge was required for the limit to be broken. The fact that Captain Motin, the master of the MS Solong, had been grossly negligent was not enough for Article 4 to be made out. Stena Interests’ defence averred that it was to be inferred from the conduct of Captain Motin that one or more persons who were a directing mind of Owners knew of the Captain’s negligent navigational and/or shipboard management practices, yet allowed him to remain in charge of the vessel with no remedial or corrective action taken. However, the Court regarded this assertion as speculative and unsupported by the evidence and it was given short shrift:-
“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.”
Therefore, the result was that the application by Owners (the party responsible for the ship at fault in the collision) to strike out Stena Interests’ Defence that sought to disapply the financial limitation of liability was granted. The right to limit liability in accordance with the 1976 Convention was therefore affirmed.
Concluding Thoughts
What is the relevance of this case to international injury practitioners who may have a claim arising from an accident at sea?
As stated at the outset, this recent decision from the Admiralty Judge in Charge is only relevant to claims that are not covered by the Athens Convention (where there is a per passenger limit in respect of compensation). I would suggest three points to take away:-
- The decision in MS Solong confirms the orthodox position that the limit on liability remains virtually unbreakable and disapplication of the relevant limit by article 4 remains exceptional. It remains the case that the only case in the jurisdiction where the Article 4 limit has successfully been broken was a case of deliberate scuttling, namely The Atlantik Conference.
- On the facts of the present case, namely a master allowing a vessel to remain on a collision course with a vessel she would go on to collide with for 10 nautical miles or approximately half an hour (which suggests gross negligence and/or recklessness), this alone was not sufficient to break the limitation limit because of the lack of evidence of requisite knowledge on the part of a controlling mind of the owners of the vessel as to the danger that the captain posed to other ships
- I would suggest that to have a realistic prospect of succeeding with an Article 4 defence and breaking the limit, the facts would have to be truly exceptional.
This blog post was written by David White.
David is a member of the 12KBW International and Travel team. David has a particular interest in accidents arising from incidents at sea or on the water. David is a member of the Admiralty Bar Group.
