liability law-of-the-sea statutory-construction
What is the exact meaning of this Article about loss of liability limitation?
<p>The Article below comes from a Convention. I am confused about the exact meaning of its last part:</p>
<blockquote>
<p>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 <strong>intent</strong> to cause such loss, or <strong>recklessly</strong> and with <strong>knowledge</strong> that such loss would probably result.</p>
</blockquote>
<p>I divide this Article into three parts for easy understanding:</p>
<ol>
<li><p>if it's proved that the loss resulted from his personal act or omission,</p>
</li>
<li><p>(which is) committed with the <strong>intent</strong> to cause such loss, or</p>
</li>
<li><p>(committed) <strong>recklessly</strong>.</p>
</li>
</ol>
<p>Thus my question is: Should the <strong>last</strong> part -- “and with knowledge that...” -- come after “recklessly,” after “committed with the intent”, or should it modify both?</p>
<p>Please let me know how you understand (and divide) this Article.</p>
<p>Any suggestions are welcome. Thank you.</p>

<p>Maritime law has a lot of weird rules, but the normal rule of statutory construction is that <em>scienter</em> requirements -- intent, knowledge, recklessness, etc. -- apply to everything that comes after them, until a new <em>scienter</em> requirement is stated. That would leave you with a statute looking like this:</p>
<blockquote>
<p>A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from:</p>
<ol>
<li>his personal act or omission, committed with the intent to cause such loss; or</li>
<li>his personal act or omission,
<ul>
<li>committed recklessly; and</li>
<li>committed with knowledge that such loss would probably result.</li>
</ul>
</li>
</ol>
</blockquote>

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

<blockquote>
<p>The last part “and with knowledge that …” should come after “recklessly” or after “committed with the intent”, or modify both?</p>
</blockquote>
<p>The element of &quot;<em>knowledge</em>&quot; qualifies only the &quot;<em>recklessly</em>&quot; premise. The alternative premise of &quot;<em>intent</em>&quot; already implies the person's knowledge --even if inaccurate-- that his act would cause the loss, whence an explicit requirement of &quot;knowledge&quot; in a context of <em>intent</em> is redundant.</p>
<p>Black's Law Dictionary defines <em>reckless</em> as &quot;<em>careless,heedless, inattentive; <strong>indifferent to consequences</strong></em>&quot; (emphasis added). <em>Recklessness</em> is distinguishable from <em>intent</em> in that the latter implies that the person is not <em>indifferent to consequences</em>: Instead, that person seeks to achieve a specific outcome and he uses his knowledge for that purpose.</p>
<p>The clause preserves a person's benefit (here, the exemption from full liability) only for the type of recklessness that is farther from <em>intent</em>.</p>
