The applicant, a supplier of offshore installations, commissioned the carriage of two stainless steel cylinders together with an accumulator assembly from Antwerp to Singapore. The goods were taken on board the Rickmers New Orleans in Antwerp on 27 December 2017. In Hamburg, further cargo was accepted, including a consignment of rails originating from Austria, which were stowed on deck next to the applicant's cylinders. A bill of lading was issued for these rails by the first defendant, R Line, 'as agent on behalf of the carrier'. The R Line bill of lading conditions contained an arbitration agreement.

The applicant claimed that en route to Genoa the rails shifted, which caused damage to the applicant's stainless steel cylinders. The applicant claimed that this damage occurred because the rails were not properly packed by the defendants, the shippers of the rails. The applicant submitted that the contract between the defendants and the carrier - at least in so far as the obligations under § 484 of the Handelsgesetzbuch / Commercial Code (HGB) are concerned - is a contract with protective effect in favour of third parties, so that the arbitration clause in that contract also applied to the relationship between the parties to the present proceedings. The applicant requested a declaration that arbitration under the rules of the German Maritime Arbitration Association (GMAA) against the defendants was admissible.

The defendants requested that the application be dismissed. The defendants disputed the applicant’s right to bring proceedings. The defendants denied that they were shippers with regard to the maritime transport of the rails. The order for the disputed sea transport of the rails had rather been placed by a third party. The defendants also submitted that a maritime transport contract is not a contract that has a protective effect in favour of third parties (namely other shippers). Even if that were the case, it would not lead to an extension of the arbitration clause here.

Held: Application dismissed.

The Court understands the applicant’s argument to mean that what matters is not the arbitration clause in the contract between it and R Line, but the arbitration clause in the contract which the defendants are alleged to have concluded as shippers with R Line as carrier. The Court understands the applicant’s submission as meaning that R Line always agreed an arbitration clause in the bill of lading conditions and did so with the defendants (if they were - as the applicant claims - shippers). The question is whether the defendants are bound by the arbitration clause they themselves agreed upon (but only in relation to the applicant). The issue therefore is whether the arbitration agreement in the (alleged) contract between the defendants and the carrier is a contract with protective effect in favour of third parties. The arbitration agreement in the contract between the applicant and the carrier is not relevant.

There is no contract with protective effect in favour of third parties here. An arbitration clause is likely to be effective in relation to the beneficiary third party if it has been agreed in a contract with protective effect in favour of third parties. It is generally recognised that there is the possibility of an arbitration agreement in favour of third parties (see OLG Düsseldorf, SchiedsVZ 2006, 331). Apart from this, the arbitration clause shall apply to the third party beneficiary if a contract is concluded in favour of a third party within the meaning of §§ 328 ff BGB. This also applies to the beneficiary of a contract with protective effect in favour of third parties. This Court endorsed this view in an unpublished decision of 23 May 2019 (6 Sch 1/19).

This presupposes, however, that a contract with protective effect in favour of third parties has actually been concluded. This question is decisive, on the one hand, as to whether the applicant may, if necessary, assert a substantive contractual claim against the defendants. On the other hand, it is also decisive for whether an arbitration agreement binding the parties to the present proceedings has been concluded. In this respect this is a doubly relevant circumstance. A contract of carriage by sea between a shipper and a carrier is not a contract having a protective effect in favour of other shippers. This also applies to the extent that obligations under § 484 HGB are involved.

The intention of the contracting parties to include a third party in the scope of protection of the agreement concluded between them must then be determined on the basis of a careful balancing of their interests worthy of protection and those of the third party. The inclusion of a third party within the scope of protection of the contract is subject to the following conditions: The third party must be in contact with the (main) performance as intended and be exposed to the dangers of breaches of protection obligations in the same way as the creditor. The creditor must have an interest in the inclusion of the third party in the scope of protection of the contract. The debtor must be able to recognise the third party’s proximity to the performance and its inclusion in the scope of protection of the contract and must be able to reasonably expect it to do so. In addition, the balancing of interests required in the context of the interpretation, taking into account good faith, requires that there is a need for the extension of contractual protection. A protective effect therefore does not apply if the third party is entitled to its own contractual claims which have the same or at least equivalent content as those claims which he would be entitled to if they were included in the scope of protection of the contract (see BGH, NJW 2018, 1537).

According to these criteria, there is no contract having a protective effect in favour of third parties here. It is not sufficient in this respect that in maritime freight transport, goods of different shippers are frequently transported on one ship and are therefore possibly exposed to dangers which may emanate directly or indirectly from other goods. The circle of protected persons must be narrowly defined in order to avoid a boundless extension of contractual claims. Particularly in the freight business, in view of the typical interests of the often numerous persons who come into contact with the transport in one form or another, it makes sense, in order to clearly and unambiguously delimit the different interests, to either expressly include duties of protection and corresponding claims for compensation or to leave them out of consideration (cf Karlsruhe Higher Regional Court, Higher Maritime Court, VersR 1998, 212). It would be mistaken to include all possible owners of tangible assets which may be endangered in a contract of carriage by inland waterway vessels (or sea-going vessels) due to their geographical proximity or intended use in the scope of protection of a contract of carriage in such a way that they should benefit from the same contractual protection against defective performance as is incumbent on the contracting parties (see Karlsruhe Higher Regional Court, cited above; also OLG Cologne, Higher Maritime Court, TranspR 2013, 123; BGH II ZR 349/96).

Section 484 of the HGB states: 'the shipper shall package the goods such that they are protected against loss and physical damage and that the carrier suffers no detriment'. The Court assumes that this is not an editorial error, since the old version of the law (§ 563(1) HGB old version, § 564(1) HGB old version) made a distinction between liability towards the carrier and towards other persons (mentioned in § 512 HGB old version). Even if there were still a provision like §§ 563(1) and 564(1) of the old HGB, it would be questionable whether the liability regulated there would be based on a contract with protective effect in favour of third parties (with the consequence of the parties being bound by an arbitration agreement) or whether it would be a liability regulated by law (where there would be no reason to be bound by an arbitration agreement).

A contract with a protective effect in favour of third parties also does not exist because such an interpretation of the contract would not be reasonable for a shipper. Particularly in the case of sea freight, it is the case that goods of very many shippers are transported together, which - depending on the type of possible damage (eg fire) - could be affected. For a shipper, it is not at all foreseeable how many other shippers will have goods transported on the same ship, how susceptible they are to danger, and what value they may have. The ensuing liability would be unmanageable. The Federal Court of Justice (BGH) considered liability towards a basically unlimited group of persons to be unreasonable and not covered by the intention of the parties (see BGH VersR 2017, 839). In the present case, the number of other shippers is admittedly not completely unlimited, because this is limited by the size of the ship. However, the number and the scope of liability would be completely unmanageable, so the Court assumes that even in such a case it would be unreasonable to expect this.

In the light of the foregoing, it can be left open whether the acceptance of a contract with protective effect in favour of third parties also fails because the applicant may have its own contractual claim against the carrier. If such a claim exists, which has the same or at least an equivalent content as the claim which the third party would have if it were included in the scope of protection of the contract, there is no need for an extension of the contractual claims. However, the BGH has stated that a claim subject to a shorter limitation period is not equivalent. If one applies the considerations of the BGH regarding equivalence to the present case, it must be pointed out that claims against a carrier - apart from exceptions (cf § 507 HGB) - are subject to a maximum liability (cf § 504 HGB), whereas the liability of the shipper is generally unlimited, according to § 488(1)(3) HGB read with § 484 HGB (which would also apply to the third party in the case of a contract with protective effect in favour of third parties). This argues against an equivalence of the liability of the carrier, which, however, is not relevant for the reasons mentioned above.