A's friends arranged a bachelorette party for her on 6 May 2015. As a surprise, they booked a rigid inflatable boat (RIB) tour with FjordEvents AS (FE), with B as skipper. The tour took place on the fjord, from Stavanger, in an eight-metre long RIB. During the course of the tour, A's spine was injured and she was permanently disabled.

FE was insured by Gjensidige Forsikring ASA (GF). A claimed compensation from GF, but GF refused her claim. A sued GF in the Stavanger District Court, which held in her favour. GF appealed to the Gulating Court of Appeal which found in favour of GF on a 2-1 vote. A appealed to the Supreme Court against the findings of fact and the application of the law. The Supreme Court decided to allow the appeal against the application of the law. The appeal against the findings of fact was not referred.

Held: Appeal dismissed.

A carrier transporting paying passengers by ship is liable for injuries sustained by the passengers under s 418 read with s 401 of the Maritime Code. The provision itself does not contain a liability norm, but refers to the Athens Regulation (EC) No 392/2009, implemented into Norwegian law by the Act of 7 June 2013 No 30. Article 1 of the Regulation establishes that liability for carriage of passengers is governed by the rules of the Athens Convention 1974, as amended in 2002 (the Athens Convention 2002) and included in Annex I.

Article 3.2 of the Convention sets out that the carrier is liable for personal injuries caused by the fault or neglect of the carrier. Exceptions apply for shipping incidents, where the company as a starting point is liable regardless of culpability. However, this case is not a shipping incident: see art 3.5.a. Article 3.2 reads: 'For the loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier shall be liable if the incident which caused the loss was due to the fault or neglect of the carrier. The burden of proving fault or neglect shall lie with the claimant.'

The duty of care is further described in maritime legislation. Section 132 of the Maritime Code sets out that the navigation and management of the ship must accord with good seamanship: see also ss 14 and 19(1)(b) of the Ship Safety Act. Section 151 of the Maritime Code establishes the shipping company's liability for fault or neglect of any person performing work in the service of the ship. Section 405 sets out that the carrier 'shall … safeguard the carriage of the passengers … and otherwise take due care of the interests of the passengers'.

The preparatory works to the Act on the implementation of the Athens Convention into Norwegian law establishes that the condition for damages is still general negligence, in line with what was set out in s 418 of the former Maritime Code: compare the Proposition to the Storting (Bill) 54 LS (2012-2013) ch 4.3. This means that requirements of due care exist based on what the injured party may reasonably expect from the activity on the relevant area: see s 2-1-1 of the Compensatory Damages Act. Although the issue of liability before the Supreme Court is thus based on the provision of the Maritime Code, whereas the Court of Appeal decided the case based on s 2-1 of the Compensatory Damages Act, the assessment will mainly be the same.

Pursuant to the Ship Safety Act, Regulations on the operation of vessels carrying 12 or fewer passengers etc of 24 November 2009 have been adopted - also referred to as the RIB Regulations. Section 4 of the RIB Regulations imposes the shipping company to make a 'security management system'. This must include a description of risks associated with the activity and plans and measures to reduce the risk. Section 5 of the RIB Regulations is headed 'Safety briefing', and provides rules on the duty to inform the participant before the tour.

The Court found that neither B nor FE violated any regulations applicable for this type of RIB tour. Before departure, B told the passengers to notify him of any back problems or other physical afflictions, so that they could be seated at the back. He also told the passengers to hold on to the handles with both hands in front of them, and to stand up and lightly bend their knees whenever the boat hit the waves. The majority of the Court of Appeal assumed that A received the same information as the others. A had had neck problems and her bone density was somewhat reduced. However, this was never communicated to B.