These limitation proceedings arose from a collision between the Solong and the Stena Immaculate in 2025. The Stena interests relied on art 4 of the LLMC 1976, as amended by the 1996 Protocol, enacted into English law by s 185 and Sch 7 of the Merchant Shipping Act 1995 (UK) to the effect that the Solong's owners were not entitled to a limitation decree:

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.

The Solong's owners conceded that their master was guilty of a gross failure of his watchkeeping and navigation duties, but said that there was no realistic prospect of the Stena interests succeeding at a trial under art 4.

Held: The Stena interests' application is struck out. There will be a general limitation decree.

The LLMC, 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 Vienna Convention). 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 [57] (per Lord Hamblen JSC, with whom Lords Hodge DPSC, Briggs, Leggatt and Burrows JJSC agreed) (CMI2640). For the purpose of art 33 of the Vienna Convention, the LLMC has four authentic texts: English, French, Spanish, and Russian; and none of those is to prevail in case of divergence. The parties did not refer to any of the non-English authentic texts. There is thus no argument that the different language texts may disclose a difference of meaning that has to be examined in order to determine the proper interpretation of art 4 of the LLMC.

Counsel identified only one English case in which an art 4 defence has succeeded under the LLMC, 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; (ii) in The Saint Jacques II [2002] EWHC 2452 (Admlty) (CMI797), Gross J dismissed an appeal from a refusal by the Admiralty Registrar to grant summary judgment on the right to limit, or strike out the art 4 defence; (iii) finally, in Holyhead Marina Ltd v Farrer [2020] EWHC 1750 (Admlty) (CMI870), an art 4 defence was not summarily dismissed where a storm had caused serious damage to boats at the claimant's marina.

That paucity of success under art 4 LLMC reflects a view, supported by the travaux préparatoires to the LLMC, that art 4 is narrowly drawn in order that the right to limit is 'virtually unbreakable'. That view is now authoritative 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.

The Unified Interpretation Resolution affirmed a stance on the proper interpretation of art 4 LLMC that was agreed between all States Party to the 1996 Protocol that were present at that Session. It is proper 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, the Resolution is to be taken into account as part of the primary task of interpreting art 4 of the LLMC under art 31.1 of the Vienna Convention.

The Uniform Interpretation Resolution, by para 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.

Elements (a)-(c) of para 1 of the Uniform Interpretation Resolution accord with the approach consistently taken in (at least) the UK, Australia, Canada, and Hong Kong. A little care is needed not to take element (d) of para 1 of the Uniform Interpretation Resolution too far. It confirms and emphasises that even reckless or intentional action by a 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 LLMC.

To establish an art 4 defence at a trial, the Stena interests would have to prove that 'the loss' in respect of which they sought to hold the Solong's owners liable, and in respect of which they sought to limit their liability under the LLMC, resulted from the latter's personal act or omission, 'committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result'. The ordinary meaning to be given to the terms of art 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.