MS "Solong" Schiffahrtsgesellschaft mbH & Co KG & Anor v Samskip Multimodal BV & Anor

Article 4 of the 1976 Convention creates a virtually unbreakable exception to the right to limit liability. It requires personal fault by the shipowner at a level analogous to wilful misconduct, involving recklessness combined with knowledge that the relevant type of loss would probably result. Gross negligence is insufficient.

The words “such loss” refer to the type or general characteristics of the loss, rather than necessarily the precise loss or identified victim that occurred. A defence based only on speculation about unidentified senior management knowledge is inadequate. A designated person ashore is not, merely by holding that role, the directing mind and will of the shipowner.

The claimants, owners and demise charterers of the container ship Solong, sought limitation of liability following its collision with the anchored tanker Stena Immaculate on 10 March 2025.

The owners applied to strike out the defence advanced by the tanker interests under article 4 of the Convention on Limitation of Liability for Maritime Claims 1976. They argued that there was no realistic prospect of proving that the owners personally acted recklessly with knowledge that a collision with Stena Immaculate specifically would probably result.

The tanker interests relied on proposed amendments alleging knowledge and inaction by a directing mind of the owners concerning the master's alleged unsafe practices. The issues were the meaning of “such loss”, the attribution of conduct to the shipowner, and whether the pleaded defence had a proper evidential foundation.

1. Application to strike out. The owners bore the burden of showing that it was unrealistic to suppose that the article 4 defence might succeed at trial. The court could consider evidence reasonably expected to be available at trial, but a defence had to have a proper foundation rather than rest on speculation.
2. Article 4 standard. The 1976 Convention, as enacted by Merchant Shipping Act 1995, s 185 and Schedule 7, had to be interpreted under the Vienna Convention. The IMO Unified Interpretation Resolution was a subsequent agreement relevant under article 31.3(a). Article 4 was virtually unbreakable. The required culpability was analogous to wilful misconduct, higher than gross negligence, and depended on recklessness and knowledge considered together. Conduct by a servant or master who was not also the shipowner was insufficient, subject to questions of attribution, delegation and the identity of the shipowner.
3. Meaning of “such loss”. Applying the ordinary meaning, context, object and purpose of the Convention, and the travaux préparatoires, “such loss” meant that type of loss or its general characteristics. It did not require foresight of the precise vessel, claimant or loss that ultimately occurred. The narrower approach expressed obiter in The Leerort was not authoritative or persuasive.
4. Pleading and attribution. A designated person ashore was a link between the ship and senior management, not necessarily a decision-making management role or the directing mind and will of the shipowner. The pleaded inference that someone in senior management knew of the alleged practices, appreciated their consequences, and deliberately failed to act had no proper factual or evidential basis. Disclosure could not be used to search speculatively for a defence.
5. The defence was struck out. Permission to amend was refused. A general limitation decree would be granted on appropriate terms, with consequential matters including costs to be addressed if not agreed.

First-instance decision. No prior appellate decision is stated in the judgment.