In December 2003, PK Justesen A/S (Justesen) and a ferry operator, Mols-Linien A/S, concluded a co-operation agreement concerning carriage of trailers.

Justesen had booked the carriage of a trailer loaded with tiles to be shipped between two Danish ports (from Aarhus to Kalundborg) during the first weekend of September 2006. On Friday afternoon, the trailer was driven into Mols-Linien’s terminal area at the port in Aarhus by one of Justesen’s drivers. However, when Justesen came to pick up the trailer in Kalundborg on Monday morning, it was discovered that the trailer had been stolen. The trailer was later found empty in Jutland.

Tryg Vesta Forsikring A/S (Tryg) paid out insurance to Justesen and subrogated into its claim against Mols-Linien for loss of the goods and reimbursement of the freight charges.

Held: The question was whether Mols-Linien was liable for the loss since the trailer had been stolen from Mols Linien’s terminal area at the port in Aarhus.

According to s 274 of the Danish Merchant Shipping Act, a carrier is liable for loss or damages to the goods while the goods are in the custody of the carrier at the loading dock. Furthermore, according to s 254 of the Danish Merchant Shipping Act, corresponding with art 3.8 of the Hague-Visby Rules, any contract of carriage relieving the carrier from liability for loss or damages to goods arising from negligence, fault or failure shall be null and void and of no effect.

The Supreme Court found that the purpose of s 274 of the Danish Merchant Shipping Act is to avoid conflicts concerning the beginning and end of custody periods and that the provision exhaustively regulates this question. However, the provision does not prevent the parties from governing in detail what is covered by of the contract of carriage. According to s 274 of the Danish Merchant Shipping Act, the cargo is in the custody of the carrier when the carrier has received the cargo from the consignor. The custody period must be determined by taking into account the circumstances of the actual cargo handling. The cargo is in the custody of the carrier when it is being handled by the carrier’s employees or when it is under the carrier’s disposal.

Mols Linien had not issued a delivery receipt, a sea waybill or a bill of lading. Nor had it issued any other documents confirming receipt of the trailer or confirming taking the trailer into its custody. Mols Linie had only issued a ticket which did not contain any receipt of delivery. The co-operation agreement between Justesen and Mols-Linien concerned carriage of trailers between Aarhus-Kalundborg and the freight rates included 'on board and ashore transportation'. The co-operation agreement referred to Mols Linien’s terms of business according to which cargo is considered handed over and in the custody of Mols-Linien when a sea waybill has been issued. Furthermore, according to the co-operation agreement, cargo left at Mols Linien’s terminal area is left at the risk of Justesen.

The terminal area was not fenced off or kept under surveillance. The area by the entrance had a ticket office and a toll bar, but there was no monitoring of the exits and consequently there was free access to the terminal area. The terminal area was also used by haulage contractors for parking trailers that were not going on the ferry. In these circumstances, the Supreme Court found that the parking of the trailer at Mols-Linien’s terminal area did not constitute receipt of the trailer by Mols-Linien. The trailer was thus not in the custody of Mols-Linien pursuant to s 274 of the Danish Merchant Shipping Act. Tryg’s claim for damages was therefore dismissed.