What is the exact meaning of this Article about loss of liability limitation?

Question

The Article below comes from a Convention. I am confused about the exact meaning of its last part:

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.

I divide this Article into three parts for easy understanding:

1. if it's proved that the loss resulted from his personal act or omission,

2. (which is) committed with the intent to cause such loss, or

3. (committed) recklessly.

Thus my question is: Should the last part -- “and with knowledge that...” -- come after “recklessly,” after “committed with the intent”, or should it modify both?

Please let me know how you understand (and divide) this Article.

Any suggestions are welcome. Thank you.

Answer 1

Maritime law has a lot of weird rules, but the normal rule of statutory construction is that scienter requirements -- intent, knowledge, recklessness, etc. -- apply to everything that comes after them, until a new scienter requirement is stated. That would leave you with a statute looking like this:

A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from:

1. his personal act or omission, committed with the intent to cause such loss; or
2. his personal act or omission,
   • committed recklessly; and
   • committed with knowledge that such loss would probably result.

Answer 2

"Recklessly", which is an adverb, must modify a verb. It can only be sensibly construed as modifying "committed" – the action is committed recklessly. The clause "with the intent to cause such loss" is what is technically known as a "sister" of the clause "recklessly and with knowledge that such loss would probably result", thus the clause means "[committed with the intent to cause such loss], or (else) [committed recklessly and with knowledge that such loss would probably result]". Because the second clause says "and", the action has to both be reckless, and done with knowledge that loss is probable.

Answer 3

The last part “and with knowledge that …” should come after “recklessly” or after “committed with the intent”, or modify both?

The element of "knowledge" qualifies only the "recklessly" premise. The alternative premise of "intent" already implies the person's knowledge --even if inaccurate-- that his act would cause the loss, whence an explicit requirement of "knowledge" in a context of intent is redundant.

Black's Law Dictionary defines reckless as "careless,heedless, inattentive; indifferent to consequences" (emphasis added). Recklessness is distinguishable from intent in that the latter implies that the person is not indifferent to consequences: Instead, that person seeks to achieve a specific outcome and he uses his knowledge for that purpose.

The clause preserves a person's benefit (here, the exemption from full liability) only for the type of recklessness that is farther from intent.