On 28 July 2005, John Maj A/S (John Maj), a policyholder with insurance company If Skadeforsikring (If), had a truck TN 94919 on board the ferry Odin Sydfyen, owned by Scandlines Sydfyenske A/S (Scandlines), which sails Scandlines' route from Spodsbjerg to Tårs. When the ferry called at the harbour in Tårs, the crew opened the stern gate and called on the vehicles to disembark. When John Maj's driver drove off the ferry, the stern door fell onto the trailer as the truck passed the stern door, damaging it. Immediately afterwards, the crew lifted the stern door using the control panel, and the truck was able to drive out to the port facility. If paid out John Maj under its insurance policy, and then filed a claim against Scandlines for payment of DKK 47,720.

If argued that Scandlines, which for a fee had undertaken to transport John Maj's truck, was responsible for the M/F Odin Sydfyen at the time of the damage and thus according to s 151 of the Merchant Shipping Act, was 'liable for damage caused through fault or negligence in their service by the master, crew members, pilot or others who carry out work in the service of the ship'. Here, the control panel was inappropriately arranged. It was disputed that written instructions were set up by the control panels at the time of the damage. The defendant has not satisfied the burden of proof on this. Section 11 of the Maritime Safety Act states that the person in charge of work on board must ensure by instruction and supervision that the work is carried out in a responsible manner. Notwithstanding the fact that this provision does not explicitly impose requirements for written instructions, Scandlines bears the burden of proving that such instructions have been given orally or in writing. Scandlines is liable for damages that occur as a result of material failure. Scandlines has not provided relevant documentation for why the door closed during the truck's disembarkation. Scandlines bears the burden of proof in order to be able to invoke grounds for discharge under the Merchant Shipping Act, and this burden of proof has not been met. With a crossing time of 45 minutes, a possible hidden fault must also have been present when the ferry departed. Scandlines has thus not proved that the ferry was seaworthy, and is also responsible for the damages incurred for this reason: see 276(2) of the Merchant Shipping Act, which corresponds to arts 3.1.a and 4.1 of the Hague-Visby Rules, and provides as follows:

The carrier shall, however, be liable for loss arising from unseaworthiness, provided this is a result of the carrier himself or any person for whom he is responsible, not ensuring with due diligence that, at the beginning of the voyage, the ship was seaworthy. The burden of proof that due diligence was exercised rests upon the carrier.

Scandlines argued that, regardless of the fact that the damage to the truck occurred when the ship's stern door fell on top of the truck during its disembarkation, it was not liable pursuant to s 276(1)(i) of the Merchant Shipping Act, which corresponds to s 4.2.a of the Hague-Visby Rules, and provides: 'The carrier shall not be liable if he can prove that loss or damage arose or resulted from ... fault or neglect in the navigation or management of the ship by the master, crew, pilot or others who work in the service of the ship'. The incident was due to a fault on the part of the crew, as the door had not been locked. This is to be regarded as an error in the management of the ship displayed by the crew, and can thus not be attributed to the shipowner itself. The ship's assistant admitted that he made a mistake by forgetting to press the lock button. Scandlines has met its burden of proof, as the carrier only has to prove that an error has occurred in the operation of the ship.

The Danish Maritime Authority approved the control panel. The control panel is simply arranged and has been operated thousands of times without errors. The prescribed documents in connection with compliance with the ISM code, including procedures for operating the ship, are on board, where direct reference is made to the instructions for the control panel. Should the Court find that there is a general or specific requirement for writing, this requirement is met in connection with the written description of the workflows and the ISM manual. The ISM manual and the relevant written instructions are accepted by both the ferry's classification society and the Danish Maritime Authority. Section 11 of the Maritime Safety Act includes a duty of instruction regarding the issue of risk of personal injury, but there is no requirement for writing. The Danish Working Environment Authority's executive order on the use of technical aids does not require writing with regard to technical aids as such. However, s 8 of the Executive Order states - if a ship's gates can be perceived as a technical aid and if the Executive Order applies on board a ship - that to the extent that it is important for safety and health, an instruction manual must be prepared in Danish, which must be placed next to or directly on the aid. Scandlines has stated that the instructions on the inside of the control panel cover were set up at the time of the damage.

The ferry was seaworthy at the time of the injury. Subsequent investigations did not reveal any faults or deficiencies in the ferry, including the ferry's operating and safety system for use of the stern gate. The ferry was maintained and inspected according to internal plans, and the ferry met the Danish Maritime Authority's requirements. If has the burden of proving that the ferry was unsuitable, and has not met this burden of proof.

Even if the court finds that Scandlines cannot rely on the defence under s 276(1)(i) of the Merchant Shipping Act, it is still not liable because of s 275 of the Merchant Shipping Act, which corresponds to art 4.2.q of the Hague-Visby Rules and provides: 'The carrier shall be liable for losses resulting from loss of or damage to the goods while the goods are in his charge, unless the carrier proves that fault or neglect by him or any person for whom he is responsible have not caused or contributed to the loss'. Here, the damage to the truck must be caused by a hidden fault or defect in connection with the door. Such a hidden fault or defect has not been able to be detected with due care, which is why it must be considered proven that no fault or negligence has been shown by the ship's crew or anyone for whom Scandlines is otherwise responsible.

Held: Judgment for If.

Scandlines has not proved that the shipping company gave adequate instructions on the operation of the stern door and the associated locking mechanism, so that the seafarers involved knew how to operate the system, in particular that the lock button had to be operated only when the door was fully raised, and how to secure and check that the door was locked in the fully raised position. Given that the control panel was designed so that it was not impossible for the person operating the stern door to press the lock button, even if the door had not been raised fully, Scandlines had to ensure that adequate instructions on the correct operation were prepared in writing and were made available at the control panel.

However, the written instructions, which according to Scandlines' information were on the inside of the lid that can be closed over the control buttons, did not contain clear and adequate instructions that the door should be in the fully open position before the lock button was operated. The fact that the door must be 'locked in the open position' thus does not preclude that the button that remotely controls the locking mechanism is pressed even before the door is in the fully open position, and the experienced ship's assistant had understood the instructions he had been given to press the up and lock buttons at the same time until the red light in the lock button came on.

Scandlines thus bears responsibility for the damage that has occurred. It cannot be released from liability for this pursuant to s 276(1)(i) of the Merchant Shipping Act for damages due to errors or negligence in the navigation or treatment of the ferry displayed by the master, crew, pilot or others performing work in the ship's service, as this provision does not release the shipowner from liability for its own errors.