Wealmoor Limited v K.L.M Cia Real Holandesa De Aviacion & Anor [2025] EWHC 1706 (Comm)

[2025] EWHC 1706 (Comm)

Claim No. LM-2023-000005

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

LONDON CIRCUIT COMMERCIAL COURT

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 11 July 2025

Before

David Elvin KC

BETWEEN: -

Between

WEALMOOR LIMITEDClaimant

K.L.M CIA REAL HOLANDESA DE AVIACIONDefendant

K.L.M ROYAL DUTCH AIRLINESDefendant

Joseph Gourgey (instructed by Preston Turnbull LLP) for Claimant

Robert Lawson KC (instructed by Clyde & Co LLP) for Defendants

Hearing Hearing dates: 21-23 January 2025

Approved Judgment

This judgment was handed down remotely at 10 am on 11 July 2025 by circulation to the

parties or their representatives by e-mail and by release to the National Archives.

David Elvin KC (sitting as a Deputy High Court Judge)

[1]The Claimant, Wealmoor Limited, (“Wealmoor”) claims damages against the Defendants (“KLM”) in respect of damage to a consignment of 500 boxes of fresh green asparagus (“the Cargo”) carried by Defendants under an air waybill (“AWB”) no. 074-37845220 dated 9 January 2021 from Lima, Peru to London Heathrow. The Claimant was the consignee named in the AWB.

[2]The claim is brought under article 18(1) of the Montreal Convention 1999 (“the Convention”) as incorporated in UK law by s. 1 and Schedule 1B to the Carriage by Air Act 1961 as amended by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 SI 263. Although this case concerns a relatively modest claim for damages, I was informed that it raises an important and novel point regarding the interpretation of

article 18 of the Convention

which justified its retention in the High Court.

[3]KLM disputes liability on the basis that:(1) there was no material “event” during the carriage by air; or

(2) it is excused from liability since the damage was caused by - a) the “inherent defect, quality or vice” of the Cargo; and/or b) “the defective packing of that cargo performed by a person other than the carrier, its servants or agent” within the meaning of

article 18(2) of the Convention

[4]Evidence was given on behalf of Wealmoor by:(1) Mr Jayesh Dodhia, Wealmoor’s Head of Procurement;

(2) Mr Ian Trylesinski, Floridablanca’s Commercial and Operations Manager;

(3) As expert, Mr Samir Sarradj, Consultant Scientist (Food and Agriculture) at Minton, Treharne and Davies Ltd.

[5]Evidence was given on behalf of KLM by:(1) Joyce Kors-Oudendijk, Cargo Claims Consultant for KLM, who has extensive experience in the investigation and handling of claims for all types of cargo on behalf of KLM as well as other companies in the KLM Group. She was called as a witness of fact though she had little or no direct knowledge of the facts concerning the transport of the Cargo and was unable to answer a number of important questions concerning the carriage of the goods, e.g. why the refrigeration was turned off during aircraft descent.

(2) As expert, Mr André François, of Experts Maritimes François.

[6]Neither of Wealmoor’s witnesses of fact were called to give oral evidence since their statements were not challenged.

[7]The two experts produced a Memorandum at a meeting on 4 June 2024 (“the Joint Memorandum”). This stated at paragraphs 3.1 and 6.4:

“3.1 We agree that the cargo was delivered in sound quality and condition to KLM's ground handlers at Lima Airport” “6.4 All documents submitted to us, give indication that the asparagus were packed in good condition, so no inherent quality or vice of the cargo is applicable.”

[8]Although Mr Lawson KC for KLM sought in his skeleton argument, and orally, to resile from paras. 3.1 and 6.4 of the Joint Memorandum, and began to cross-examine Mr Sarradj on that basis, I adjourned the case ahead of the short adjournment on the second day of the hearing for Mr Lawson to consider this further to enable me to consider whether further steps would need to be taken with respect to the evidence if that approach was maintained.

[9]However, following the adjournment, Mr Lawson stated that KLM did not seek to resile from those paragraphs of the Joint Memorandum and he withdrew paras. 60, 61, 65, 66 and 69 of his skeleton argument which had proceeded on a contrary basis. In closing, Mr Lawson accepted that consideration of the cause of the damage could be restricted to the period between Lima and Amsterdam.

The characteristics of asparagus

[10]It is important to understand the key characteristics of asparagus for the purposes of this claim. Mr Sarradj explained these in his Report and summarised them at Section 2.5:

“2.5 Summary of technical background 2.5.1. To summarise, asparagus is one of the most metabolically active vegetables of commercial importance. This metabolic activity is known as respiration and involves the breakdown of energy stores resulting in detrimental physiological changes and the production of heat and carbon dioxide. In scientific literature, the rate of respiration is measured as the rate of carbon dioxide production. 2.5.2. Temperature is key to controlling the rate of respiration. The higher the temperature, the greater the rate of respiration. 2.5.3. Notwithstanding, the rate of respiration peaks after harvest as this is when the asparagus has the most energy stores available. As time elapses, the rate of respiration falls with the depletion of energy stores. 2.5.4. It is therefore imperative that post-harvest cooling occurs as soon as possible after harvest. The sooner it occurs, the greater the shelf life (assuming carriage temperature and humidity is adequate). Delays to hydrocooling can reduce the shelf life significantly. 2.5.5. The optimum carriage conditions are 0-2OC and 95-99% humidity. In practice, this temperature is not achievable hence carriage at 2-8OC occurs. This temperature range is still below 9OC-10OC, when the respiration rate of asparagus has been shown to increase rapidly. 2.5.6. Deterioration caused by respiration is irreversible.”

[11]In terms of the storage and transit requirement summarised above, Mr Sarradj explained in more detail in Section 2.4 – “2.4.1. There are various recommendations for storage temperature and humidity for asparagus spears. The most common recommendations from academic sources are relatively harmonised and these suggest that storage at 0-2OC and 95-99% humidity prolongs the self-life to about 14–21 days. 2.4.2. The basis of this at a technical level is that the rate of metabolic activity is linked closely to temperature. At lower temperatures, the rate of respiration is lower hence the rate of deterioration is slowed. Furthermore, asparagus contains a high amount of moisture and keeping it in a humid environment will prevent water loss to the atmosphere, which would otherwise lead to detrimental quality changes in weight, texture and colour. 2.4.3. In practice, it is not possible to transport asparagus by air in the 0-2OC range because it is seldom the case that one type of vegetable is transported in a dedicated airline cargo hold. The same goes for other stages of the supply chain, such as packhouses. This can be for various reasons, with the most common that I have encountered being commercial impracticality. Instead, fruits and vegetables tend to be transported within a given range, usually 2-8OC, since the optimum temperature for most fruit and vegetables are in this range. This range is below the 9-10OC that has been shown to rapidly increase the respiration rate of asparagus. … 2.4.5. If fresh green asparagus is hydrocooled quickly after harvest, and then allowed to increase to high temperatures, it would be expected that the rate of respiration at these temperatures would be high since the energy stores within the asparagus would not have been depleted in the time between harvest and hydrocooling..”

[12]Mr François’ own report did not set out any similar discussion of the characteristics of asparagus, but Mr Sarradj’s exposition was relied upon by KLM and referred to in Mr Lawson’s skeleton argument at para. 14 and in his examination of Mr Sarradj.

Facts

[13]Wealmoor specialises in importing subtropical fresh fruits, vegetables, herbs and other items and receives many shipments each day at its Greenford packhouse, including between 13 and 26 daily air shipments.

[14]KLM were the contractual carriers of the Cargo.

[15]On about 8 January 2021, Hellman Worldwide Logistics as agent for Wealmoor booked for the carriage of the Cargo by KLM direct from Lima to London Heathrow on AWB 074-37845220 (dated 9 January 2021) on Flight KL744 departing at 21:00 LT on 11 January 2021. This was subsequently changed to Flight MP7760 operated by Martinair (a wholly owned subsidiary of KLM), with routing stated to be LIM/AMS/LHR (Lima/Amsterdam/London Heathrow), as appears from AWB 074-37845220.

[16]The Cargo was booked to be carried on KLM’s “Specialized Fresh+2+8” or “Temperature Controlled” service (“Fresh 2”) for perishable goods which are stored and transported at temperatures between +2C and +8C. This was recorded on the AWB in the “Accounting Information” box:

“SPECIALIZED FRESH+2+8 VEGETABLES=FRESH 2”

[17]The AWB also recorded over the central part where weight is recorded:

“FREIGHT PREPAID PERISHABLE … TOP … URGENT … KEEP … ON … REFRIGERATION”

[18]It is common ground that the description of “Fresh 2” was set out on KLM’s website as follows, without further explanation:

“Temperature Controlled Specialized Fresh+2+8: for temperature sensitive perishables, such as flowers, fresh fish, vegetables and fruits. During warehouse-and ramp handling, shipments can be exposed to ambient temperatures. ■ Temperatures of between +2°C and +8°C ■ Warehouse storage, road- and air transportation at temperatures between +2°C and +8°C” ■ Temperatures of between +2°C and +8°C ■ Warehouse storage, road- and air transportation at temperatures between +2°C and +8°C”

■ Temperatures of between +2°C and +8°C

[19]One important issue before me, which is the subject of dispute between the parties, is what is meant by - “During warehouse-and ramp handling, shipments can be exposed to ambient temperatures.”

[20]KLM’s General Conditions of Carriage, agreed to be applicable to the contract recorded in the AWB, contained a term that:

“6.3 SCHEDULES, ROUTINGS AND CANCELLATIONS 6.3.1 Times shown in Carrier’s timetables or elsewhere are approximate and not guaranteed and form no part of the contract of Carriage. No time is fixed for commencement or completion of Carriage or delivery of Cargo. Unless specifically agreed otherwise and so indicated in the Air Waybill or Shipment Record, Carrier undertakes to carry the Cargo with reasonable dispatch but assumes no obligation to carry the Cargo by any specified aircraft or over any particular route or routes, or to make connections at any point according to any particular schedule. Carrier is hereby authorised to select or deviate from the route or routes of the Shipment, notwithstanding that the same may be stated on the face of the Air Waybill or in the Shipment Record. Carrier is not responsible for errors or omissions either in timetables or other representations of schedules. No employee, Agent or representative of Carrier is authorised to bind Carrier by any statements or representations of the dates or times of departure or arrival, or of operation of any flight.”

[21]The cargo of asparagus was supplied by Floridablanca, an established Peruvian asparagus producer, which is the largest exporter of asparagus from Peru to the UK and EU, and with which Wealmoor has worked since 2018.

[22]Mr Jayesh Dodhia (Wealmoor’s Head of Procurement) visited Floridablanca’s premises in 2018 and stated in his evidence that: “13. I visited Floridablanca in July 2018 soon after Wealmoor began trading with them with a technical manager lain Gilmour to audit and evaluate its operations including their growing operations, their fields and packhouse. 14. I was very satisfied by what I saw during the visit and according to Wealmoor's Supplier Risk Analysis, Floridablanca was found to be a "low" risk supplier”.

[23]To support this classification, Mr Dodhia produced Wealmoor’s Technical Standards Supplier Visit Report for that visit. He added:

“15. Wealmoor have a risk-based approach to visiting supplier. My colleague Lucia Licham was based in Peru and visited Floridablanca twice over the last two years. Lucia Licham had regular contact with Florida Blanca and since she departed from the business, her replacement, Geraldine Mondragon is also in contact with Ian Trylesinski who is our main point of contact at Floridablanca. 16. Volumes vary but, on average, we receive around 4 shipments of asparagus each week from Floridablanca. Each shipment is between 2.5 and 3 metric tonnes. The shipments arrive in the UK via air between late June and January which fits with the main Peruvian season for asparagus. We use their product for our important retail customers such as Waitrose, Aldi, Lidl and Morrisons. 17. I have always found Floridablanca to be a company who work to the highest possible standards and in accordance with our required specifications...”

[24]Mr Dodhia explained that Wealmoor has specific requirements that Floridablanca must follow:

“21. The Wealmoor Procurement Specifications set out the specific requirements that Floridablanca must work to including, but not limited to: a. the required quality of the asparagus; b. the stage of maturity at which the asparagus should be harvested; c. the defects from which the asparagus should be free; and d. how the asparagus should be handled post-harvest including washing, temperature and packaging. 22. Floridablanca works to the specifications set out in the Wealmoor Procurement Specifications. If there are any issues identified with a particular cargo which would result in the cargo falling foul of the defects provision in the Wealmoor Procurement Specifications, then Floridablanca will not ship that cargo.”

[25]Mr Ian Trylesinski (Floridablanca’s Commercial and Operations Manager) explains in some detail in his unchallenged first witness statement the procedures Floridablanca has in place for dealing with asparagus:

“15. Our procedures for dealing with the cargo from harvesting to being placed on a truck to travel to the airport are as follows: Reception Area a. The asparagus is harvested and brought to the reception area of the packing house by truck at regular intervals during the day where it is weighed, and its temperature taken. b. The asparagus then undergoes an initial pre-cool wash by placing it on rails of the c. The asparagus is then chlorinated to destroy any present pathogenic bacteria d. The asparagus is then cooled via a second wash to bring down the temperature of the asparagus from the field temperature post-harvesting. How long the product is subject to the second cooling wash depends on the field temperature of the asparagus. For example, asparagus that arrives in the middle of the day may require an hour of this second cooling wash but usually this will take around 15 minutes. Main processing room e. At this stage, our quality control team conducts a random check of the asparagus. If the quality control team are unhappy with the asparagus at any stage throughout the washing/cooling/packing process it would be removed from the packing line. f. The asparagus is then processed ready for packing. Roughly 100kg of asparagus is processed in a conveyor belt system every hour. Cold storage g. The asparagus is then packed in boxes before being subject to hydrocooling. This is a very cold wash which brings down the temperature of the asparagus further. Asparagus usually undergoes about 15 minutes of hydrocooling. h. The boxes are then put into cold storage at between 1 - 2.5 degrees Celsius while awaiting the arrival of the truck. i. On arrival the trucks are backed up into the warehouse and the pallets of asparagus are moved into the trucks via connecting ramps.”

Reception Area Main processing room

Cold storage

[26]Mr Trylesinski stated that the above procedures were carried out in the case of the Cargo.

[27]The Cargo was transported from Floridablanca’s packhouse by truck to Lima airport late on 8 January 2021, which Mr Trylesinski stated was kept at a controlled temperature of 3-6 C and:

“21. It is crucial for Floridablanca that the “cool chain” started in the packing house is maintained throughout the journey to the airport. Mis 8 Amores’ trucks are always temperature controlled at between 3 to 6 degrees Celsius to ensure that this “cool chain” is maintained with a temperature device situated inside each truck. 22. Every part of the journey controlled by Floridablanca is therefore totally controlled when it comes to temperature. If we did not have rigorous processes in place that we do, Floridablanca would not be able to exist.”

[28]The Cargo arrived at Lima Airport in the early hours of 9 January. The journey to Lima Airport takes around 5-6 hours from Floridablanca’s packhouse in Ica, Peru. At 02:28 LT on that same morning, Frio Aereo (KLM’s ground handling agents) accepted the Cargo, taking the temperature of each pallet removed from the truck in the process which ranged from 4.7C – 6.5C, as recorded in the “Registro de Ingresa de Carga”.

[29]Before the Cargo was delivered to KLM’s agent in Lima, each of the pallets in which it was contained were wrapped in a mesh known as malla raschel for pest control purposes. Mr Trylesinski stated in his second witness statement: “7. As I explained in my first statement, after processing, the asparagus is packed in boxes ready for loading onto the truck for delivery to the airport. Pallets of asparagus destined for Europe and the UK are wrapped in mesh. Wealmoor's cargo, destined for the UK, will have been packaged in this manner. 8. The mesh is either added by us or by our freight forwarder to the pallets. It is normal practice for the freight forwarder to add this mesh to Europe and UK-destined asparagus, before delivery to the carrier. However, I do not recall whether it was us or our freight forwarder that added the mesh to this cargo on this occasion. 9. The specification of mesh used is attached. The make is FIBRAFIL and the weave is 90%, meaning the mesh provides 90% shade coverage. 10. This product has been in use by us and our freight forwarder since 2010 and is used for pest control. 11. For asparagus destined for Europe and the UK, air carriers commonly use routes which transit through USA because of the frequency of flights and for cost reasons. Any Peruvian products that enter the USA have to be fumigated due to quarantine protocols. The USDA permits the transit of asparagus without fumigation provided that the pallets are covered by this mesh, which is insect proof. 12. I do not recall any customer ever complaining that the mesh has inhibited airflow or caused temperature damage in some way”.

[30]Absent Mr Trylesinski’s evidence, the form of malla raschel was not clear from the photographic evidence taken after delivery to Wealmoor and once the mesh had been removed - although fragments of the mesh can be seen in one or two photographs. KLM’s surveyors were not able to observe the Cargo within its webbing. Mr Francois commented on Mr Trylesinski’s second statement in his supplementary report. However, there was no evidence that the Cargo had suffered from condensation.

[31]One of the issues for my consideration, in terms both of causation and article 18(2), is the effect the mesh had, or may have had, on the temperature of the Cargo in transit and on the condition of the asparagus.

[32]It is common ground that the asparagus was in good condition when delivered to the warehouse operated by Frio Aereo, within the control of KLM. This is the subject of expert agreement at para. 3.1 of the Joint Memorandum. The Cargo was within KLM’s control from that point onwards and on 10 January 2021 at 10:52-11:26 local time was loaded onto Flight MP7760 from Lima.

[33]Notwithstanding what had appeared on the AWB, the Cargo was in fact routed via Quito and Miami and spent considerable time in the cargo hold on the ground in conditions above the necessary 2C-8C. However, the conditions of carriage (above) allowed deviations and changes to be made to the route originally shown, though this may nonetheless be relevant to the issue of temperatures experienced and damage to the Cargo.

[34]An Xsense recorder was placed in the pallet in which the Cargo was wrapped, although the Joint Memorandum notes:

“5.1 We agree that the Xsense Temperature Recorder provided accurate temperatures of the pallet in which it was placed. 5.2 We agree that we do not know where in the specific pallet that the Xsense device was placed.”

[35]The Joint Memorandum states:

“5.6 The Registro de Seguimient de Temperature en Platforma (Defendant's Supplemental Disclosure) reported that the asparagus (AWB: 074- 37845220) was removed from the cold store at Lima airport at 1052 hrs and loaded to the aircraft at 11.26 hr. The temperature of the asparagus at these two points in time were 4.8°C and 5.7°C, respectively. No further temperatures of the asparagus were obtained despite the final cargo being loaded to the aircraft at 12.40 hrs. The temperature recorder however showed 20°C, evidently the ambient temperature under the MR cover and not the pulp temperature of the asparagus.”

[36]A coloured graph (“the Graph”) has been compiled from the available raw Xsense data (Bundle B pp. 602-607) by the Defendants (in Bundle B at p. 657) and is exhibited by Ms Kors-Oudendijk, and explained at para. 30 of her witness statement. The Graph shows the ambient temperatures for Lima, and the other destinations visited by Flight MP7760 and what was logged by the Xsense recorder from the Cargo, as well as marking lines to represent 2C and 8C. The times recorded are in UTC (coordinated universal time) not local time shown on the Xsense logs, which is 5 hours behind UTC.

[37]Eleven numbered events in the carriage of the Cargo are noted on the Graph:(1) consignment(s) removed from warehouse in Lima;

(2) uplift onto the aircraft in Lima;

(3) departed Lima;

(4) arrival in Quito;

(5) departed Quito;

(6) arrival in Miami;

(7) departed Miami;

(8) arrival in Amsterdam;

(9) departed Amsterdam;

(10) arrival at London Heathrow;

(11) released to Wealmoor.

[38]The Graph shows clearly the increase in temperature logged by Xsense from about 4C at c 14:55 to almost 20C at about 17:18 with an ambient temperature for Lima of 24.9-25C which was noted by Frio Aereo on the Platform Temperature Monitoring Record (“Registro de Seguimiento de Temperatura en Plataforma”). Mr Gourgey for Wealmoor submits that this was probably as a result of exposure to direct sunlight during loading. This is not inconsistent with Ms Kors-Oudendijk’s evidence or the on board temperature records provided by Martinair.

[39]Mr Gourgey submits that the evidence shows that the Cargo was routed via Quito and Miami and spent considerable time in the cargo hold on the ground in conditions well above the necessary 2-8C, as well as during ascent and descent between the various stops en route to Amsterdam. Indeed, as the records and Graph show, the temperature of the Cargo as logged by Xsense did not fall within the 2C-8C range specified by Fresh 2 at any time following removal from the Lima warehouse until it was released to Wealmoor. With two spikes, the temperature of the Cargo climbed steadily from 11C to 23C from its arrival in Amsterdam when it was released to Wealmoor.

[40]Mr Gourgey sets out in his skeleton argument at para. 22 a summary on which Wealmoor relies of the conditions, alongside the reported temperatures of the Xsense recorder at each stage of the Cargo’s journey, from loading in Lima to arrival at Amsterdam (leaving bundle references but removing footnotes). Mr Lawson has also produced a separate table which is broadly equivalent to Mr Gourgey’s summary. Detailed logging of ambient and cargo hold temperatures have been provided by both parties, together with the Xsense data. I have combined the information and, where necessary, converted the time index from both tables and from the evidence below. Date and time (UTC) Period Outside air temperature Cargo hold temperature Cargo temperature (from Xsense) [10.1.21] 15:52–16:26 UTC (10:52-11:26 local) Loading from warehouse onto aircraft at Lima 34 mins 21C- 25C - 4.8C at warehouse rising to 20C 16:26–18:43 (11:26-13:43 local) Cargo kept in hold at Lima 2hrs 17 mins One source says 23C, another 21C 22C on departure 20C at 16:18 reducing to 17.3C at 18:18 18:43–18:56 (13:43-13:56 local) Ascent from Lima en route to Quito 13 mins - 19C 17.3C at 13:18 falling to 16.3C 18:56-20:13 Cruising between Lima to Quito 1 hr 17 mins - 7C 16.3C falling to 13.8C 20:13-20:43 Descent to Quito 30 mins - 15C 13.8C falling to 13C 20:43-22:46 Cargo kept in hold in Quito, hold doors open 2 hrs 3 mins 22C on arrival, 20C on departure 22C on arrival, 19C on departure 13C rising to 14C 22:46 – 23:00 Ascent from Quito en route to Miami 14 mins - 18C 14C rising to 14.5C [10/11.1.21] 23:00-01:40 Cruising between Quito and Miami 2 hrs 40 mins - 6C 14.5C falling to 13C [11.1.21] 01:40-02:09 Descent to Miami 30 mins - 7C 13C 02:09 – 03:27 Cargo kept in hold in Miami 1 hr 18 mins 18C-19C 14C on arrival, 19C on departure 13C rising to 13.5C 03:27–03:47 Ascent from Miami en route to Amsterdam 20 mins - 16C 13.5C rising to 14C 03:47-10:54 Cruising between Miami and Amsterdam 7 hrs 7 mins - 7C 14C falling to 11C 10:54-11:19 Descent to Amsterdam 25 mins - 8C 11C rising to 12.8C [11.1.21-12.1.21] 11:19-11:19 on 12.1.21 Arrival at Amsterdam and placed in cold storage until loading in trucks for transport to Heathrow 24 hrs 6-8C 8C on arrival at Amsterdam From 11C ending at 14.3C, with a high of 16.5C between c. 07:00 and 09:00 on 12.1.21

[41]Ms Kors-Oudendijk stated in her evidence that:

“During the loading procedure, perishable cargo carried under KLM’s ‘Fresh 2’ service are exposed to ambient temperatures as it is not possible to control the temperature on the ramp next to the aircraft where cargo is prepared for loading. In my experience, this process would usually take one to two hours, however Frío Aéreo’s cargo exit record discussed in paragraph 12 shows that the Consignment was on the ramp for approximately 53 minutes from the time it was removed from cold storage in the warehouse to the time it was loaded onto the aircraft. The ambient temperature in Lima at this time was around +23°C based on archived weather data from Lima’s METAR station retrieved during my investigations of this claim.”

[42]At para. 31 of her witness statement, Ms Kors-Oudendijk stated, by reference to the events numbered on the Graph:

“31 The graph shows that the temperature recorded by the data logger reached +19.3°C whilst the Consignment was exposed to ambient temperatures in Lima for loading onto the aircraft between events 1 and 2 (for approximately one hour). As described above, such exposure is an unavoidable part of the transport chain for consignments booked under KLM's `Fresh 2' service. The temperature nonetheless drops rapidly after event 2, with a consistent downward trend until the Consignment arrived in Amsterdam on 11 January 2021 (event 8) which is consistent with the fact the Consignment was refrigerated for the whole of the flight, with the exception of brief, unavoidable exposures to ambient temperatures in Quito and Miami”

[43]Ms Kors-Oudendijk made clear she was a claims handler, and said in cross-examination that she had no technical expertise with regard to the operation of the flight or the refrigeration of the cargo, and appeared to derive most of what she said from the documentation and from her knowledge of general practice. She explained with regard to the “Fresh 2” service KLM provides information regarding this via its website. The reference in the Fresh 2 description to “ramp handling” was, she said, to the time when the cargo was on the ramp and also included the time when the aircraft was on the ground, without the engine running or cooling in operation. She said it was “common sense” that the aircraft engine could not be kept running when it was on the ground and that the cargo was not refrigerated on loading. The refrigeration goes on when the aircraft takes off.

[44]Ms Kors-Oudendijk also said in cross-examination that Fresh 2 does not guarantee that the temperatures will be 2C-8C, that KLM seeks to keep them within that range but if they could not do so, then the temperatures may increase. She was unable to confirm that, if the refrigeration was kept on for the whole flight, the temperature might be expected to remain between 2C and 8C since she said “it does not happen” and that she had never seen a situation where the cargo hold did not match the local temperature.

[45]She accepted that there is no mention in the KLM Fresh 2 description of what is done during descent or reference to the ambient temperatures (other than “during warehouse-and ramp handling”) when the aircraft lands. She said that “maybe we have to change some things” but that they could not guarantee cold storage all the time since the aircraft is not a refrigerator and the refrigeration has to be shut down at times.

[46]Ms Kors-Oudendijk agreed that when carrying goods at a particular temperature it was important to limit their exposure to high temperatures and to limit exposure to ambient temperatures. When asked whether it would have been expected that the refrigeration was in operation while the aircraft was descending, Ms Kors-Oudendijk said she was not sure and would imagine that the refrigeration would be turned off during descent. Her lack of knowledge was surprising given she was the only witness for KLM giving evidence to explain how the Cargo was transported and cooled. No clear reason was given by her to explain why the refrigeration would be turned on when the engines were running during ascent and flight but not during descent.

[47]At Quito, the cargo hold doors were opened and the hold temperature generally mirrored the ambient temperature of 20-22C and the cargo hold was recorded at the temperature of 22C eventually falling to 19C on departure. This covered the 2 hour 3 minute period on the ground at Quito from 20:43 to its departure for Miami at 22:46 when the cargo hold was recorded at 19C.

[48]This evidence contradicted Ms Kors-Oudendijk’s statement at para. 17 where she had stated that the cargo door would only be open for a few minutes and that “[a]ny exposure to ambient temperatures is minimal and probably less than five minutes”. I therefore discount her evidence at para. 17 in favour of her oral evidence in the light of the documentation.

[49]In respect of the leg of the flight to and from Miami, as appears from the summary table above, the temperature records show hold temperatures within the Fresh 2 range while cruising, and during descent, but higher during ascent (18C) and when on the ground at Miami (14-19C). However, the Cargo temperature, while it varied and reduced slightly when the hold was cooled, did not fall below 13C.

[50]I find that Ms Kors-Oudendijk’s (and I assume KLM’s) understanding of the Fresh 2 terms, and how they were operated, was:(1) They only required cooling to maintain the stipulated temperature range of 2C-8C when the aircraft was in flight, but not when it was descending or on the ground;

(2) Cooling of the cargo hold and cargo would therefore only occur when the aircraft was ascending or in flight;

(3) It was to be expected the cargo hold and cargo might be exposed to ambient temperatures when the aircraft was on the ground; and

(4) “Ramp handling” in the Fresh 2 description (“During warehouse-and ramp handling, shipments can be exposed to ambient temperatures”) included not only the handing of the cargo on the ramp into the cargo hold but any time spent on the ramp (impliedly, however long) and any time the aircraft was on the ground (whether or not the cargo doors were left open for loading/unloading of other cargo).

[51]Additionally, it is clear that the cargo hold was exposed to higher ambient temperatures for a period of 2 hours 3 minutes at Quito and that the refrigeration had been turned off during the descent of 30 minutes from Lima. It is shown in the on board temperature analysis as 15C during descent (a significant increase from 7C during flight) and 22C on arrival at Quito, which lowered to 19C on departure (comparable with the 20-22C ambient temperature at Quito).

[52]The temperature of the Cargo as logged by Xsense rose from 4.8C when it left the warehouse at Lima to 20C 34 minutes later when it was loaded into the hold. The ambient temperature at Lima was 21C. The temperature of the Cargo was logged as falling from 20C to 17.3C during the 2 hours 17 minutes it sat in the hold prior to take-off and lowered to 16.3C during ascent. The hold temperature prior to take-off was 22C reducing to 19C during ascent. During the 1 hour 17 minutes cruising between Lima and Quito the Cargo temperature reduced from 16.3C to 13.8C despite a hold temperature of 7C which may be an indication that exposure to high temperatures during loading and while the Cargo sat in the hold at Lima prior to take-off had started an irreversible warming of the asparagus, given the interruptions in cooling during the stopovers, and thus deterioration in the Cargo.

[53]Both experts agree in the Joint Memorandum that the cargo was likely damaged by the time of its arrival in Amsterdam as a result of respiration during transport:

“5.3 The damage to the asparagus (i.e. the increase in temperature and deterioration of the spears) was a result of respiration during transport. 5.4 Between removal of the pallets from the cold storage at Lima Airport, and cruising altitude being reached on the leg to Amsterdam, the cargo was exposed to ambient temperatures exceeding the 2-8°C carriage temperature for 7 hours and 29 minutes. 5.5 The cargo was likely damaged on arrival in Amsterdam.”

[54]Upon arrival in Amsterdam, the Cargo was kept in storage until 08:50 UTC on 12 January 2021. No records have been provided of the temperatures in this storage place, but Ms Kors-Oudendijk has stated that it would have been moved into cold storage and kept at between 2C and 8C.

[55]The Cargo was trucked from Amsterdam to London. Air entering the truck was between 5.1C – 9.5C. The Cargo arrived at London Heathrow at 05:00 UTC on 13 January 2021. Wealmoor was notified of the consignment’s arrival at 15:31 UTC, and the Cargo was kept in the warehouse until collection by Wealmoor’s agents at 20:35 UTC. The conditions in the London Heathrow warehouse ranged from 7.8C to 10.5C.

[56]By the time the Cargo was collected by Wealmoor’s agents, the Xsense recorded a temperature of approximately 28.8C. The Graph and data show Xsense logged temperatures of no less than 11C from the arrival of the Cargo at Amsterdam and rising from that gradually (with higher spikes) to the high of 28.8C on collection by Wealmoor.

[57]The Cargo was described by ClaimsWrights, a claims consultancy instructed by Wealmoor, as:

“Following our survey, we concurred with your staff that the asparagus inspected displayed high levels of melting tips, discolouration, rots to the butts and dehydration to the stems, Also, there was a strong rotting odour throughout and in our opinion the asparagus did not meet the required quality specification.”

[58]The pulp temperature of the cargo was recorded as between 18.5 and 34.5C, well in excess of what is acceptable for asparagus.

[59]The Cargo was already too far gone to save it and, as a result, Wealmoor was required to sell some of the Cargo as distressed cargo, whilst other boxes had to be dumped in their entirety.

The expert evidence

[60]In considering the expert evidence, I do not deal with the evidence of handling prior to the delivery to the warehouse in Lima given KLM’s concessions at the hearing referred to earlier, and the experts’ Joint Statement that:

“3.1 We agree that the cargo was delivered in sound quality and condition to KLM's ground handlers at Lima Airport” “6.4 All documents submitted to us, give indication that the asparagus were packed in good condition, so no inherent quality or vice of the cargo is applicable.”

[61]In considering the expert evidence as to the cause of the damage to the Cargo, it is also necessary to consider the allegations made by KLM regarding the defective wrapping of the Cargo in malla raschel (or rashel) and whether its use caused, or contributed to, the damage.

[62]Wealmoor’s expert, Mr Samir Sarradj set out his expertise in biology and in investigating, evaluating and advising on disputes involving a range of food and agricultural commodities. In chief, he gave evidence as to the characteristics of asparagus (see earlier) and that:(1) With regard to post-harvest procedures and transportation he considered that – “The documentation that accompanied these procedures is indicative of a well-run supplier who is aware of the requirements of stringent export markets and certifications.”

(2) With regard to the temperature of the Cargo he stated – “On departure from the supplier, the temperature of the asparagus was optimal. By the time it reached Lima, the temperature had increased, but was still within the 2-8OC range. This temperature was reduced rapidly once in storage in Lima.”

(3) As to the temperatures after the Cargo left the warehouse at Lima, he explained - “5.4.5 I do not know how the cargo temperatures in the ‘Record of Temperatures on the Platform’ … were obtained, but this document showed that the cargo was loaded at 1126 hrs (the first consignment loaded onto the aircraft). The asparagus was then left at environmental temperatures of 22OC or thereabouts for over 2 hours before departure. This would have contributed to the asparagus warming and respiring. Extrapolating from the above rate of a 0.9OC increase every 35 minutes (rounded for ease), then it is feasible that the asparagus temperature increased by 1.8OC an hour in Lima. In the 2 hours and 17 minutes between loading at 1126 hrs LT and departure at 1343 hrs LT, the asparagus may have increased by as much as 4OC to ~9OC since it left the cold storage. This is however an extrapolation of the data and not based on recordings provided by the Xsense device or pulp temperatures. 5.4.6. Once en route to Quito, the cargo temperature fell as inferred by measurements from the Xsense device. The fall was relatively rapid at 2.5OC in one hour (from 16.3OC to 13.8OC). This fall in temperature however was interrupted by the flight landing at Quito. Once the flight had departed Quito, the temperature per the Xsense device began to fall again, from 14.5OC at the start of the journey to 13OC on landing in Miami. This fall in temperature was slower, as it was only a 1.5OC fall in two hours. Notwithstanding, this decrease in temperature was interrupted for a second time by the landing and storage on the ground in Miami. 5.4.7. The subsequent flight to Amsterdam occurred and despite 7 hours of exposure to 7OC, the cargo temperature (per the Xsense device) did not fall below 11OC. This was likely the result of the asparagus continuing to undergo respiration and generating heat. 5.4.8. Crucially, once the cargo was said to have been placed in the cold storage at Amsterdam, the temperature initially rose from 11OC on descent of the flight to 14.5OC before being stored for ~20 hours and departing the storage at a temperature of 16.5OC, based on the Xsense recordings. This increase in temperature during storage is difficult to explain if the asparagus had in fact been placed in a cold store, which I have no details on but also no reason to doubt. It is therefore likely that the asparagus had deteriorated significantly by this stage since this heating can only be explained by an increase in respiration. This heating of the asparagus did not stabilise during the trucking transport, despite being held at 5OC according to records … The temperature increased to 17.5OC on arrival at Heathrow. Again, the only reasonable explanation is respiration especially in light of the reported ambient temperatures in Amsterdam and London during January 2021. The temperatures increased from 17.5OC to 26.3OC whilst in storage at Heathrow and during trucking to Wealmoor.”

(4) He considered that during the exposure of the Cargo to higher temperatures (e.g. during loading) - “the rate of respiration would have increased. The greatest rate would have been found during the initial loading of the aircraft in Peru because of the quality and availability of energy stores.”

(5) However, he noted that - “the rapid downturn in temperature of the asparagus as inferred from the Xsense device during the first leg of the journey would suggest that the level of degradation caused by this initial spike was low. This could be explained by the fact that it took a significant amount of time to warm the asparagus from ~5.7OC when loaded to the aircraft to temperatures of ~20OC. If the level of deterioration on loading the aircraft was significant, the rate of cooling would have been much slower as seen in the Miami to Amsterdam leg of the flight.” (I note, however, that during the ascent and cruise between Lima and Quito the temperature of the Cargo did not fall below 13.8C).

(6) He concluded - “6.9 It is therefore my considered expert opinion that by stopping at Quito and Miami, the cargo was prevented from falling within the carriage temperature. The result of this was a warming of the cargo that started during loading in Peru. This warming increased the rate of respiration of the asparagus and promoted deterioration to continue throughout transit. It is also my opinion that if the aircraft had not landed at Quito (and by extension, Miami), there is a likelihood that the cargo would have continued to cool and have arrived in Amsterdam in a commercially acceptable condition. This is supported by the relatively rapid decrease in temperature (2.5OC in one hour) during the Lima to Quito leg of the journey, which suggested that the higher temperatures recorded by the Xsense on loading were impacted by the ambient temperature and possible sunlight rather than being directly the result of warm cargo. 6.10 Since the cargo could not be transported at the 2-8OC range, deterioration continued and the asparagus continued to generate heat. This is supported by the slowed decrease in temperature during the flight to Amsterdam and the continued increase in temperature in the cold storage of Amsterdam and the trucking to Heathrow. In the case of the latter, there are records from the trucking company that report a supply air temperature of 5OC to the cargo space. Despite this, the Xsense temperature recordings ranged from 14OC early in the trip to 17.3OC on arrival at Heathrow. The Xsense temperature recordings were within the range of pulp temperatures recorded on arrival at Wealmoor’s facility in London, which would suggest that the Xsense device was functioning correctly.”

[63]In cross-examination by Mr Lawson, Mr Sarradj was questioned about the rate at which asparagus deteriorated and he accepted that the rate at which it was heating will affect the rate of respiration and if it is heated quickly, the rate of respiration will increase quickly. He did not agree that it would deteriorate significantly if kept between 2C and 8C and when it was pointed out that Fresh 2 meant keeping it above the optimum 0C-2C (see his 2.5.5), Mr Sarradj preferred to describe that range as “recommended”. He agreed some deterioration would be expected above 2C and that deterioration could only be slowed down. However, he pointed out that asparagus that did not deteriorate could not be found. He also said that 2C-8C was a very common temperature range used by airlines so that many fruits and vegetables were able to be stored during carriage without injury by heat.

[64]With regard to the use of malla raschel mesh to wrap the Cargo, in the light of Mr François’ evidence, Mr Sarradj agreed that packaging should allow the keeping of cargo at the correct temperature and as cool as possible. The USA has stringent sanitary laws and the use of malla raschel is to prevent insects escaping, moving away from chemical interventions to the use of physical barriers. He considered the mesh allowed the exchange of air. He disagreed that the mesh was necessarily dense since insects were not difficult to keep in. He did not accept that the use of the mesh necessarily blocked cool air, whilst a plastic wrapping would, and he disagreed that the use of the mesh would create a ‘greenhouse effect” and, had it had that effect, he would have expected the temperature to have risen non-stop and for there to have been condensation. He did not expect the Cargo to have been wrapped in multiple layers of mesh since one layer would be sufficient to create the necessary physical barrier.

[65]Mr Lawson suggested that the greatest rate of damage to the Cargo was caused during the initial loading phase at Lima, and Mr Sarradj agreed it would have been the most energy it received and that if the asparagus was at the temperatures recorded by Xsense then it would have experienced the greatest rate of respiration causing damage at that point.

[66]Mr Sarradj accepted that damage may have begun to be caused in Lima but he maintained that damage was also caused by the interruption of cooling by the stopovers in Quito and Miami and as a result of the temperatures to which the Cargo was then subject. He said he could not be sure that the circumstances in Quito and Miami had compounded what was existing damage, though he could not rule out that if following the first exposure to the high ambient temperature in Lima the aircraft had gone directly to Amsterdam, the Cargo would not have come down in temperature due to the cooling in flight. The nature of asparagus would only cause a deterioration insofar as it was caused by the process of respiration, which was itself controlled by the temperature.

[67]When asked by Mr Lawson to consider the condition of the other cargoes in the hold on arrival in Amsterdam, Mr Sarradj said it would be necessary to be able to correlate the loading operations and it could make a difference where in the hold the cargo was placed. He refused to infer that the problem experienced was specific to the Cargo and the fact there were no other claims were brought in respect of other perishables carried on the same flight did not mean there was no damage. Claims would be modest and not all would pursue them. He pointed out that no survey reports have been produced for the other cargoes.

[68]Mr Sarradj said he doubted that the use of the malla raschel would have had any significant effect on the Cargo’s temperature. If it had been holding in the heat, the Cargo would be covered in condensation and he was familiar with condensation damage which occurs. While a greenhouse effect was a potential explanation, Mr Sarradj considered it more likely that damage was caused at Lima and it was being slowly dissipated in the aircraft when cruising before it was interrupted by the other stops.

[69]KLM’s expert Mr André François did not give detailed evidence as to the characteristics of asparagus and did not profess to have the same biological expertise as Mr Sarradj. He considered that the cause of the deterioration in the Cargo was the packaging and in his main report stated:

“The large difference between the recordings measured among the asparagus by the recorder and recordings of sensors in the aircraft can be explained by the fact the open cartons were wrapped in earlier mentioned MR fabric under the usual plastic straps holding the cartons together. Inside this fabric heating of the asparagus occurred due to absence of fresh air and contact with refrigerated air. Due to this process the Xsense recorder is recording even more rising in temperature during the transit time at AMS and during the following transport in a refrigerated truck arriving at Heathrow airport January 13, 2021 09.21 hours … The recorder was stopped upon receipt by consignees January 14, 2021 01.32 hours last recording +24°C. This was matching with temperatures reportedly found by consignees being between + 18.50°C and + 34.50°C proving the temperatures recorded by Xsense recorder reflected the actual pulp temperatures of the asparagus underneath the fabric. If the recorder had been in contact with free air in the open cartons, it should have fluctuated with ambient temperatures during transport and not as visible, constant rising during transport. It is evident that the asparagus suffered from absence of contact with refrigerated air and fresh air and became damaged by suffocation and high temperatures during heating of the asparagus. The fabric prevented access to the air prevailing during transit, suffocation started, and heat produce resulted in further increase of the pulp temperature. Having checked all photos made by consignees straight after arrival, they clearly show remains of this fabric which was previously around the cartons which must concern the relevant transport packing”

[70]Having considered the evidence of the use of malla raschel, Mr François added:

“We attach a few photos showing correct packing in cartons and support by corner posts held together with straps. These photos are originating from Procedimiento de inspeccion del esparrago verde fresco' present among Wealmoor's disclosures (Appendix 5). The usually applied corner posts / straps are also visible on ‘Instruction de seguimiento de temperatura en Plataforma’ also present among Wealmoor’s disclosures (Appendix 6). This kind of packing enables proper breathing of the asparagus and contact with surrounding refrigerated air. The kind of applied fabric mentioned as MR on the packing list and of which remains are visible on photos made by Wealmoor after receipt is uncertain. In the ‘Procedimiento de inspeccion del esparrago verde fresco’ examples of fabric are show in black colour (Appendix 7) and on the website of Frioaereo fabric in green (Appendix 8). On the website of manufacturers Malles Rachel different qualities are visible (Appendix 9). The fabric visible on photos of the remains after receipt are black and seem similar to the ones with (90%). These are of the thickest quality with less ventilation purposes. But only from these rather poor photos which were only made for the purpose of showing temperatures and not for showing original packing (only remains are present), the Undersigned cannot trace the exact material used. In the experience of the Undersigned, some of the fabrics are also made for temperature isolation purposes with aluminium foil in combination with the MR fabric, opposing parties did not supply detailed information of quality or thickness, even stronger, presence of it was not reported at all.”

[71]In conclusion he stated:

“I have to conclude, taking the damage pattern into consideration, that the kind of fabric is used not enabling proper ventilation and contact with surrounding refrigerated air, causing high temperatures recorded by the shippers recorder inside the fabric. The asparagus could not breath properly and internal heating started causing the alleged "rots, breakdown and melting tips together with foul odour … subject shipment was indeed defectively packed it is not a bare inference, because due to using a fabric around the cartons breathing and contact with surrounding refrigerated air was evidently prevented”

[72]This point was repeated in a Note following the conclusions which included the following: “Due to presence of the fabric, the recorder only slowly followed the lower temperatures in the aircraft as this refrigerated air is without cooling fans and could not reach the asparagus properly. During the course of transport, after arrival at AMS and on carriage per truck trailer, the recorder started to record a rise in temperature produced by the asparagus themselves as so called heating occurred in absence of fresh refrigerated air We conclude that the damage was caused by wrapping the pallets in fabric of which the thickness and isolation factor was evidently enough to cause suffocation, high temperatures, bad odour and rotting of the asparagus. This in combination with, in the booking foreseen and agreed, longer transit time via AMS, compared to a direct flight to LHR”.

[73]In a Supplementary Report Mr François stated:

“In my report of 22 May 2024, I emphasized that there are many different types of malla raschel. Some are for protection against insects, others are to protect cargo against outside temperatures. The exact quantity of the malla raschel that was used remains unknown as receivers removed it and did not inform surveyors about its existence. Wealmoor has not established how the consignment arrived ex truck, i.e. whether it was still on the unit load device or on individual pallets. Mr. Trylesinski states at paragraph 8 of his witness statement dated 12 November 2024 that "I do not recall whether it was us or our freight forwarder that added the mesh to this cargo on this occasion". Floridablanca has also not confirmed as to how the subject pallets were presented to KLM upon presentation for loading. It leaves the possibility open that the freight forwarders, who assembled the pallets on the subject ULD PMC KL24017, applied different malla raschel covers or put extra wrapping around the consignment in addition to the usual cargo nets to stabilise the pallets on the unit load device. It is my opinion that the covers/wrapping applied were so tightly woven that cold air in the aircraft and the truck trailer in addition to the outside temperatures in January could not come in contact with the asparagus. This resulted in the heating air of the asparagus not being able to escape in transit, resulting in the constant increasing of temperatures visible on the recorder.”

[74]In cross-examination by Mr Gourgey, Mr François accepted that his specialism was in marine surveying but that he did some 20 to 50 surveys a year for KLM and other companies. He could not recall when he had last surveyed a shipment of asparagus, possibly about 3 years previously.

[75]Mr François initially firmly rejected the suggestion that the use of malla raschel was standard practice for consignments of asparagus to the UK or EU. However, he was taken to the documentation which showed that 7 other consignments of asparagus on the same flight were shown on Frio Aereo’s cargo registration document dated 10 January 2021 and were also recorded as being wrapped in malla raschel. He first answered that it was not standard practice and that the wrapping had been applied by the same shipper but, once shown the documents (which he appeared not to be familiar with), he then accepted they were consignments from different shippers. The Frio Aereo cargo entry record for 9 January 2021 (Bundle B p. 113 and Appendix 1 to Mr François’ first report) showed a standard abbreviation of “MR” for “malla raschel” and “SM” (“sin mala”) for “without malla” on its printed form. When he was asked about the lack of reference to the other use of malla raschel in his reports he said he considered it “not relevant” and maintained he had no way of checking it.

[76]Mr François’ attention was drawn to Ian Trylesinski’s second statement as to the common usage by Wealmoor of malla raschel and the reasons for its use. Mr François accepted that malla raschel was suitable if applied in the ordinary way but drew attention to the fact that there was no information as to how it had been applied. He accepted that he had inferred from the damage pattern that the mesh had been incorrectly applied. He confirmed in response to a further question that his conclusion was based on a bare inference, and agreed that it was based on the presence of the fabric and that “any fabric is detrimental”. For him it was enough that the mesh was on the Cargo, given “the temperature rising all the time” and that it had led to his conclusion, though by a bare inference.

[77]Although Mr François expressed uncertainty about the exact location of the Xsense recorder, he agreed it was inside the malla raschel and that the malla raschel had openings. He agreed that the wrapping did not prevent cooling and that it was not airtight. When his attention was drawn to the fact that on removal from the warehouse, the Cargo was not recorded as being at the same temperature as the outside air, he said that this was due to cold air escaping from the asparagus.

[78]Mr François also agreed that if the Cargo had been refrigerated at 2C-8C on the ground at Lima, its temperature would have come down much quicker, although he pointed out that the cooling in the cargo hold was not as a result of forced air circulation. In respect of evidence of the Cargo temperature lowering, he agreed that this was the result of it coming into contact with cold air but that if it had not been for the malla raschel it should have lowered much more.

[79]With respect to the question of suffocation, Mr François did not agree that if it had happened this would not have increased the rate of respiration even though it would have meant the production of more carbon dioxide and that it did not occur on route to Quito. He did not consider that there was any damage occurring at all between Lima and Quito or between Quito and Miami.

[80]When it was suggested to Mr François that he had not commented in his report on the effect of high ambient temperatures on the rate of respiration, he declined to answer but then ventured the view that in the periods of time concerned it had “hardly any influence”. When asked about the rise and fall in temperatures and that there was only a steady rise after Amsterdam, he said that it was very poor evidence of the condition of the asparagus. Suffocation, he thought, started around Miami and his answer to the question regarding a fall in Cargo temperature repeated that suffocation would not have happened if there had been no malla raschel around it.

[81]Mr François agreed that there had not been a constant increase in Cargo temperature, contrary to what he had stated in his second report, although he did not accept that decreases were due to hot air being able to escape from the asparagus. The dispute before the Court.

[82]There is considerable common ground between the parties, which I will refer to later in this judgment. In that context, the issues for my decision are:(1) What is meant by “an event causing damage” within

article 18(1) of the Convention

and where the burden of proof lies in respect of that issue;

(2) How prima facie liability under article 18(1) may be avoided by the application of one or more exceptions under article 18(2);

(3) Given the undisputed damaged state of the asparagus by the time of its arrival in Amsterdam, was there an event between the removal of the asparagus from the warehouse in Lima to its arrival in Amsterdam which caused that damage;

(4) What were the terms of the contract of carriage and, in particular, what was the extent of the obligation under KLM’s “Fresh 2” terms for the carriage of fruit and vegetables;

(5) If I find that there was an event causing damage within article 18(1) whether any of the article 18(2) exceptions apply given that it is common ground that - a) The damage was caused by the extent of the deterioration in the quality of the asparagus as a result of respiration; b) A critical factor in deterioration due to respiration in asparagus is the temperature of the asparagus, it also being common ground that keeping the asparagus at between 2 and 8 degrees would have inhibited respiration sufficiently so that it would have been of merchantable quality on its arrival at its destination; c) The pallet on which the cartons of asparagus was placed was covered with malla raschel mesh covering with a 90% weave, which Mr Trylesinski states means the mesh provides 90% shade coverage.

(6) If I find there is liability on KLM’s part, whether the quantum of damage claimed has been established.

The Convention

[83]The relevant provisions of the Convention provide:

“Chapter I General Provisions Article 1—Scope of Application 1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. 2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. … … Article 10—Responsibility for Particulars of Documentation 1. The consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on its behalf to the carrier for insertion in the cargo receipt or for insertion in the record preserved by the other means referred to in paragraph 2 of Article 4. The foregoing shall also apply where the person acting on behalf of the consignor is also the agent of the carrier. 2. The consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf. 3. Subject to the provisions of paragraphs 1 and 2 of this Article, the carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved by the other means referred to in paragraph 2 of Article 4. …. Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17—Death and Injury of Passengers—Damage to Baggage 1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. … … Article 18—Damage to Cargo 1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. 2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: (a) inherent defect, quality or vice of that cargo; (b) defective packing of that cargo performed by a person other than the carrier or its servants or agents; (c) an act of war or an armed conflict; (d) an act of public authority carried out in connection with the entry, exit or transit of the cargo. 3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier. …”

General Provisions Article 1—Scope of Application Article 10—Responsibility for Particulars of Documentation Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17—Death and Injury of Passengers—Damage to Baggage Article 18—Damage to Cargo (a) inherent defect, quality or vice of that cargo; (b) defective packing of that cargo performed by a person other than the carrier or its servants or agents; (c) an act of war or an armed conflict; (d) an act of public authority carried out in connection with the entry, exit or transit of the cargo.

Article 18—Damage to Cargo

[84]Liability under article 18(1) is strict provided the event which caused the damage to cargo took place during the carriage by air, unless one or more of the exceptions in article 18(2) apply.

The meaning of “event” in article 18(1)

[85]In In re Deep Vein Thrombosis and Air Travel Group Litigation

[2006] 1 AC 495

the issue was the meaning of “accident” in article 17 of the Warsaw Convention: see Lord Scott at para. [1] of the judgment. The House of Lords held that the occurrence of deep vein thrombosis by passengers while in the air was not the result of an “accident” since it was not the result of an “unintended and unexpected happening” but occurred during the normal operation of the aircraft in normal conditions. However, the House of Lords considered the context of the relationship between articles 17 and 18 which, under the Warsaw Convention, referred to an “occurrence causing damage” rather than an “event”.

[86]Indeed, the judgments turned on the fact that DVT was not the result of an accident in the sense of an event affecting a passenger adversely on an aircraft which was unexpected and unusual and that an event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an “accident” for the purposes of article 17.

[87]In considering the interpretation of “accident”, Lord Scott held:

“7. The use of the term “accident” in article 17 but the term “occurrence” in article 18 must be significant. Both terms impart the idea that something or other has happened. But “occurrence” is entirely general in its natural meaning. It permits no distinction to be drawn between different types of happening. “Accident” on the other hand must have been intended to denote an occurrence of a particular quality, an occurrence having particular characteristics. In the many decided cases in which the issue was whether the occurrence in question constituted an “accident” for article 17 purposes, the judges have had to ask themselves whether the occurrence possessed the necessary quality or characteristics to qualify as an “accident”

. It is evident that it was never, or should never have been, enough for there to have been an occurrence that caused the damage. For article 17 liability the occurrence had to have the characteristics of an “accident”.”.

[88]Lord Scott reviewed a number of US Supreme Court cases on the Convention, namely Air France v Saks (1985) 470 US 392 and Husain v Olympic Airways (2004) 540 US 644, noting at [12] that:

“12. I think at this point a word of caution about the process of interpretation is in order. It is not the function of any court in any of the Convention countries to try to produce in language different from that used in the Convention a comprehensive formulation of the conditions which will lead to article 17 liability, or of any of those conditions. The language of the Convention itself must always be the starting point. The function of the court is to apply that language to the facts of the case in issue. In order to do so and to explain its decision, and to provide a guide to other courts that may subsequently be faced with similar facts, the court may well need to try to express in its own language the idea inherent in the language used in the Convention. So a judge faced with deciding whether particular facts do or do not constitute an article 17 accident will often describe in his or her own language the characteristics that an event or happening must have in order to qualify as an article 17 accident. But a judicial formulation of the characteristics of an article 17 accident should not, in my opinion, ever be treated as a substitute for the language used in the Convention. It should be treated for what it is, namely, an exposition of the reasons for the decision reached and a guide to the application of the Convention language to facts of a type similar to those of the case in question”

[89]He concluded at [23]-[24]:

“23. Of more importance for present purposes is that nothing in the Husain case casts doubt upon the two important requirements of an article 17 accident that were established in the Saks case and have been applied fairly consistently ever since, namely, that an event or happening which is no more than the normal operation of the aircraft in normal conditions cannot constitute an article 17 accident and, second, that the event or happening that has caused the damage of which complaint is made must be something external to the passenger. 24. These two requirements appear to me to rule out article 17 recovery in DVT cases where no more can be said than that the cramped seating arrangements in the aircraft were a causative link in the onset of the DVT. The failure by an airline to warn its passengers of the danger of DVT and of the precautions that might be taken to guard against that danger does not, in my opinion, improve the case, at least where there is no established practice of airlines generally or of a defendant airline in particular to issue such warnings. How the case would look if there were such an established practice and if by an oversight the usual warnings were not given does not arise for consideration in the present case. The specimen matrix includes no such assumed facts.”

[90]Lord Steyn stated at [30]-[33]:

“30. The issues come before the House on assumed facts. Those assumptions include a normal and unremarkable flight. It specifically must be assumed that there was no unusual or unexpected event external to the passenger which could have caused the DVT. The causal mechanism under consideration was the impact of the flight as a whole on a particular passenger. It was not an event external to the passenger. In the ordinary acceptation of the meaning of accident it does not appear to extend to the onset of DVT by itself. … 33. Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident…”

[91]Lord Mance noted at [69]:

“Taking the paraphrase suggested in Saks which both sides accepted as a starting point, the issue before us can be broken down into three aspects, namely whether there was (a) an event, which was (b) unexpected or unusual and (c) external to the passenger.”

[92]This echoed Lord Phillips MR in the Court of Appeal at [23]:

“23. One can break down the definition of an accident into two elements. (1) There must be an event; (2) the event must be unusual, unexpected or untoward. I would endorse the approval by the United States Court of Appeals, Third Circuit in Abramson v Japan Airlines Co Ltd (1984) 739 F 2d 130, 132, of the following charge to a jury as to the correct legal standard for determining the occurrence of an accident under article 17: "An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening."” "An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening."”

[93]Lord Phillips first considered the meaning of “event” within those elements: “An event24. I turn to consider in a little more detail the first element of an accident. It must be an event. The first meaning of accident that is given by the Oxford English Dictionary is: "Anything that happens ... An occurrence, incident, event." That meaning is however obsolete, in that it has become replaced by the second meaning that the dictionary gives: "Anything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause; a casualty, a contingency." The first element of an accident is to be found in all of these.

25. A critical issue in this appeal is whether a failure to act, or an omission, can constitute an accident for the purposes of article 17. Often a failure to act results in an accident, or forms part of a series of acts and omissions which together constitute an accident. In such circumstances it may not be easy to distinguish between acts and omissions. I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident.

26. Mr Thanki drew our attention to a description of the natural meaning of an event given by Lord Mustill, in a quite different context, in Axa Reinsurance (UK) plc v Field

[1996] 1 WLR 1026

, 1035: "In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way. I believe that this is how the Court of Appeal understood the word. A cause is to my mind something altogether less constricted. It can be a continuing state of affairs; it can be the absence of something happening." To a degree I consider that this passage can be applied to an accident in the context of article 17. That article postulates that the accident must "take place on board the aircraft or in the course of any of the operations of embarking or disembarking". This suggests that the accident will be an ephemeral event. However, the requirement of flexibility and a purposive approach means that one cannot preclude the possibility that an activity that continues for a period, such as circulating contaminated air, could amount to an accident for the purposes of article 17 .” "In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way. I believe that this is how the Court of Appeal understood the word. A cause is to my mind something altogether less constricted. It can be a continuing state of affairs; it can be the absence of something happening."

[94]While the judgments are not determinative of the meaning of “event” in article 18(1), they are helpful in that the critical issue was whether there was an event, though one which was unexpected or unusual (and external to the passenger). In particular, at para. [45] Lord Walker cited Lord Phillips with approval in his analysis of the Husain case in the US Supreme Court:

“45. Later in his judgment Lord Phillips MR related these general observations to Olympic Airways v Husain, which had been decided by the United States Court of Appeals, Ninth Circuit (2002) 316 F 3d 829; after the decision of the Court of Appeal in this case, Husain went to the United States Supreme Court, (2004) 540 US 644, which was divided. Lord Phillips MR stated [2004] QB 234, 254, at para 50: “The refusal of the flight attendant to move Dr Hanson cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr Hanson was exposed to smoke in circumstances that can properly be described as unusual and unexpected.” 46. I respectfully agree with that view of Husain …” “The refusal of the flight attendant to move Dr Hanson cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr Hanson was exposed to smoke in circumstances that can properly be described as unusual and unexpected.”

[95]In Singapore Airlines Cargo Pte Limited v Principle International Pty Ltd [2017] NSWCA 216 the Supreme Court of New South Wales considered a claim arising from the inadequate ventilation of cattle carried by air from Melbourne to China. This was a case which directly concerned

article 18(1) of the Convention

. The Court considered the decision of the Court of Appeal in Deep Vein Thrombosis where the meaning of “event” was considered (above) by the Master of the Rolls in terms which were approved by the House of Lords.

[96]Beazley P held at [53]:

“53. In this case, SIA Cargo’s liability under Art 18(1) is dependent upon there being an “event”, which caused the deaths of the cattle, that took place during the carriage by air, being the period in which the cargo is in the charge of the carrier: see Art 18(3). It is neither relevant nor necessary, for the purposes of identifying the “event”, for the cause of death to be established. As is apparent from the respective submissions of the parties, each seeks to identify the “event” within the meaning of Art 18(1) as having occurred when the cattle were in the charge of the other. According to Mr Muir’s evidence, the exporter was responsible for loading the cattle into the crates and that occurred on the tarmac. It appears that thereafter, the cattle were in the charge of the carrier’s agent, who was responsible for weighing the cattle, placing each crate onto a ULD and then loading the ULDs onto the aircraft (see above at [22]). The placement of each ULD within the aircraft was done by reference to the LIR prepared in Singapore.”

[97]Having considered the “accident” cases, Beazley P continued:

“68. By contrast, when the question in issue, as it is for the purposes of Art 18(1), is whether “the event which caused the damage … took place during the carriage by air”, the inquiry is not directed to ascertaining whether something occurred that was unusual or unexpected, that is, something that was not part of the usual course of carriage, as SIA Cargo argued. Rather, the inquiry is to identify, as Art 18(1) by its terms expressly specifies, whether there was an event or happening which caused the damage and which took place during the carriage by air. The event must be identified in the context of an “event which caused the damage”

. The inquiry is not directed to ascertaining whether there was something unusual or unexpected happening outside the normal incidents of the flight. That is relevant to determining whether there was an accident for the purposes of Art 17(1). 69. In this case, there was no damage caused to the cattle by the mere fact that they were placed in crates. Accordingly, that could not have been the “event” which caused the damage. Nor is it relevant, as argued by SIA Cargo, that the lack of ventilation was merely a condition of the flight. As I have explained, that is not the relevant inquiry for the purposes of Art 18(1). The cause of death, as SIA Cargo recognised, was the lack of ventilation to the cattle in those crates as placed on the lower deck. However, that was not the “event” for the purposes of Art 18(1). Rather, as is clear from the evidence, it was the placement of the crates, each containing nine cattle, on the lower deck given the conditions on the lower deck, which was the “event” which caused the damage. 70. It follows that, contrary to SIA Cargo’s submission, there was an “event” within the meaning of Art 18(1) in respect of which SIA Cargo was liable for damage sustained, which in this case, was the loss of the cattle.”

[98]Meagher JA agreed and explained the event causing damage in these terms:

“126. It is a mischaracterisation of the primary judge’s formulation of that event to say that it is only concerned with the operation of the aircraft’s ventilation system. Her Honour’s formulation refers to a “lack of ventilation to the cows in the two crates” in the aft section of the lower deck. The evidence and primary judge’s findings show that there were three conditions or factors which contributed to that “lack of ventilation”: (1) the presence of nine cattle in each crate; (2) the stowage of the crates in a part of the lower deck where there was very little distance between the top of the crate and the roof of the lower deck; and (3) the limitations inherent in the normal operation of the aircraft’s air ventilation system in that part of the lower deck. So understood, the primary judge’s formulation describes in a short hand way the combination of conditions to which the cattle were subject that resulted in their deaths. The cattle were held in those conditions from some time shortly after the two crates were stowed. The stowing of the crates in that position, which was the event within Art 18(1), occurred after the cattle were in the carrier’s charge, and accordingly during the carriage by air. That act exposed them to the “lack of ventilation” which resulted in their deaths. This formulation of the Art 18(1) event more clearly identifies something which happened during the carriage by air. Although the shipper (Principle) did not plead the happening of an event in those terms, counsel for SIA Cargo accepted in this Court that that description reflects the way in which this first question was argued before the primary judge. Given that it does not involve any allegation of different conduct by the carrier, reliance upon it at this stage of the proceedings does not give rise to any prejudice. It follows that the deaths of the cattle in the two crates were caused by something which happened, or an event that took place, during the carriage by air. Grounds 1, 2, 3 and 7 should be dismissed.”

[99]See also Contracts for Carriage by Air, Malcolm Clarke (2nd ed.) at pp. 104-5 and Wolf Müller-Rostin on Article 18, Damage to Cargo in Montreal Convention (annotated by Giemulla, Schmid, Müller-Rostin and others) at paras. 25 to 27. Professor Dr Müller-Rostin states at [27]:

“Indeed, the 1968 edition of Black’s Law Dictionary defines an event as ‘anything that happens, the consequence of anything’. An event does not need to be sudden or unforeseeable, and it makes no difference whether it is a natural occurrence or the conduct of the carrier or of an unconnected third party since the carrier is wholly liable unless one of the grounds under paragraph 2 applies or the defence of exoneration is available under Article 20. … The reason why the Convention renders the carrier liable for any event which causes damage to cargo or checked baggage during carriage by air but restricts its liability for the death or injury of passengers to accidents is that the consignor of cargo and the passenger who checks baggage surrender control of their property to the carrier who assumes responsibility for its safekeeping.”

[100]In further litigation under the Warsaw Convention concerning deterioration in a cargo of peaches and nectarines, Winchester Fruit Ltd v American Airlines Inc [2002] 2 Lloyds Rep. 265 HHJ Hallgarten QC at [38] found that:

“38. The view which I have formed is that the extent of such blemishes as may have affected the peaches on delivery to the defendants was probably within the range of what might have been expected, and that the dominant cause of what was found on outturn was indeed exposure to ambient temperatures at Asuncion and whatever conditions prevailed during the course of the various flights and stopping places prior to delivery to Fastfruit at Heathrow. I considered that the problem was given "a kick-start" in Asuncion by the goods spending as much time as they did at high ambient temperatures in the open, exposed to the sun and possibly to the wind…”

[101]At [42] he equated “occurrence” in article 18(1) with “accident” in article 17(1):

“42. The Convention does not affirmatively exclude liability where the destruction, loss or damage results from the inherent defect, quality or vice of the cargo carried, but instead, by art. 23(2) validates any contractual provisions which govern that eventuality. Does that mean that, absent any such express provision, a carrier is liable in the event that destruction, loss or damage is attributable to inherent defect etc? I do not think so because, as I see it, in such a case the claimant would not be able to identify any relevant occurrence: as a matter of construction of the Convention there must be an occurrence which is something separate from the very destruction, loss or damage itself. In this context, I am unable to discern any material distinction between the use of the word "occurrence" in art. 18 and "accident" in art. 17 …”

[102]He applied Chaudhari v. British Airways plc (C.A.) The Times, May 7, 1997 as approved by Morris v. KLM Royal Dutch Airlines [2002] Q.B. 100 (which was an “accident” case involving harm to a child):

“In Chaudhari it was held was that liability did not attach to the carrier because the alleged injury "was not caused by any unexpected or unusual event external to [the claimant], but by his own personal, particular or peculiar reaction to the normal operation of the aircraft". To revert to art. 18, it seems to me that the example given by Mr. Reeve of the despatch of a parcel of ice to be carried unrefrigerated is very much in point. The melting of the ice will certainly represent damage, but no occurrence can be identified: the melting will have taken place in consequence of a given state of affairs and would have taken place in the ordinary course of events.”

[103]In my judgment, Winchester Fruit does not apply the correct approach to article 18(1) as it currently stands, and indeed is not consistent with the judgments in Deep Vein Thrombosis and the clear reasons for the distinction between recovery by passengers for personal injury or death under article 17 and the wider imposition of liability for goods under article 18. The Judge’s approach was clearly influenced by the approach to “accident” which is curious given that in Morris, at p. 110, Lord Phillips MR had drawn a clear distinction between articles 17 and 18:

“The word "accident" in article 17 is inapposite linguistically to describe what happened to the claimant and is used in contradistinction to "occurrence" in article 18 which bears a wider meaning: see the travaux préparatoires and Chaudhari v British Airways plc The Times, 7 May 1997; Court of Appeal (Civil Division) Transcript No 590 of 1997; and Air France v Saks (1985) 470 US 392 . An "accident" involves an unexpected or unusual event or happening which is external to the passenger and which relates to the operation of the aircraft and/or could be regarded as a characteristic of air travel: see Chaudhari v British Airways plc 16 April 1997 and Harley Price v British Airways plc (1992) 23 Avi 18, 465, 18,466-18, 467; and contrast Air France v Saks 470 US 392.”

[104]Mr Lawson for KLM accepted that the dictum equating “accident” and “occurrence” should not be followed. He submits that an “event” must be something at a particular time, place and in a particular way that happens fortuitously and external to the cargo, and causes the damage complained of; and that this is reinforced by what is then provided in article 18(2), which forms an integral part of the same article. A damage-causing “event” must be something external to the cargo that happens fortuitously at a particular time, at a particular place, in a particular way, but it does not need to be unexpected or unusual.

[105]In my judgment, the meaning of “event” in the light of the above authorities should be approached as follows:(1) An event is something that caused damage to be sustained by the cargo during its carriage by air and is additional, and external to, that damage;

(2) As a matter of language, “event” is wider in meaning than “accident” which in article 17 is intended to be more restrictive of liability;

(3) “event” should not be equated with “accident” since the language is deliberately different and liability for cargo under article 18 is intended to be strict if damage is sustained during carriage by air;

(4) “event” means “[i]n ordinary speech, … something which happens at a particular time, at a particular place, in a particular way” (Axa Reinsurance (UK) plc v Field

[1996] 1 WLR 1026

, 1035). Although this was stated in the course of a reinsurance claim, it is a matter of ordinary language and relevant in this context given its application by the Master of the Rolls in Deep Vein Thrombosis. In any event, it appears to be common ground between the parties;

(5) An “event” does not have to be fortuitous, as KLM argues, since “event” may include deliberate actions on the part of the carrier (as here, for example, the turning off of the refrigeration) and it is not implicit in the term “event” that it should be fortuitous, provided it is external to the damage. Indeed, to assume as much would bring it close to the meaning of “accident” in article 17;

(6) It follows that article 18(1) is not directed to ascertaining whether something occurred that was “unusual or unexpected”, as would be in the case of liability for “accident” under article 17, nor does it need to be fortuitous, but whether there was an event or happening which caused the damage and which took place during the carriage by air.

[106]Mr Lawson submits that in determining liability the approach is that:(1) In the ordinary course of events if the claimant proves that the cargo concerned was shipped in good order and condition and arrived damaged then the evidential burden of proof shifts to the carrier and absent some explanation, provided that the cause of the damage was consistent with being the consequence of some “event” (as defined above), the carrier would be liable under article 18(1).

(2) But the carrier can escape any such liability if and to the extent that it proves that the destruction, loss of, or damage to the cargo resulted from one or more of the exceptions in article 18(2).

(3) where the cargo arrives with evidence of external physical impact, this presents no difficulty in application since the carrier will have the evidential burden of proving that the puncture or crushing was not caused by an “event” during the carriage by air and, if it cannot do this, will only escape liability if it can prove that it was caused by one of the exceptions in article 18(2). It is only where, as here, there is no sign of external damage to the packaging, only alleged damage to the contents, that its application is more challenging.

[107]Mr Lawson summarised the circumstances from Ms Kors-Oudendijk’s written statement at para. 23 of his skeleton argument:

“(1) The Cargo was exposed to ambient temperatures in Lima during the process of loading. (2) The temperature dropped on the flight from Lima to Quito, which is consistent with the pilots having followed the instruction to deploy its refrigeration system at between 2-8oC. (3) The lower cargo deck door would have been opened whilst the aircraft was on the ground in Quito and the aircraft’s refrigeration system shut off. (4) Having risen whilst the aircraft was on the ground there, the temperature dropped on the flight between Quito and Miami, which is consistent with the pilots having followed the instruction to deploy its refrigeration system at between 2-8oC. (5) Whilst on the ground in Miami the lower deck door was not opened but the aircraft’s refrigeration system was shut off. (6) Having risen whilst the aircraft was on the ground there, the temperature dropped on the flight between Miami and Amsterdam, which is consistent with the pilots having followed the instruction to deploy its refrigeration system at between 2-8oC.”

[108]He accepted on behalf of KLM at para. 24 that - “during this time, the Cargo was thereby exposed to ambient temperatures exceeding 2-8oC for a total of 7 hours and 29 minutes. It says that this exposure was unavoidable.”

[109]However, this summary makes a number of assumptions:(1) The exception in “Fresh 2” for ramp-handling did not simply relate to the handing of the Cargo as it was loaded but included any time the Cargo was on the ground (whether inside the cargo hold or otherwise).

(2) A temperature of 2C-8C would not, or possibly could not, be maintained throughout the carriage of the goods following handling and loading. It was not, however, suggested that the intermediate stops by the aircraft were not part of the overall carriage of the goods by air.

[110]I do not accept these assumptions were consistent with the terms of “Fresh 2”, properly understood, or that the exposure of the asparagus to high ambient temperatures was “unavoidable” within the scope of the terms of carriage, at least once the Cargo had been loaded into the cargo hold at Lima.

Did KLM comply with the terms of “Fresh 2”

[111]The terms of carriage by KLM’s “Fresh 2” were” “Temperature Controlled Specialized Fresh+2+8: for temperature sensitive perishables, such as flowers, fresh fish, vegetables and fruits. During warehouse-and ramp handling, shipments can be exposed to ambient temperatures. ■ Temperatures of between +2°C and +8°C ■ Warehouse storage, road- and air transportation at temperatures between +2°C and +8°C” ■ Temperatures of between +2°C and +8°C ■ Warehouse storage, road- and air transportation at temperatures between +2°C and +8°C”

■ Temperatures of between +2°C and +8°C

[112]In the absence of any further explanation in contemporaneous documentation, or otherwise it appears to me that applying the language of the terms in their context of the carriage of temperature sensitive perishables:(1) The service offered was, as stated - a) specifically for “temperature sensitive perishables”; and b) “temperature controlled” at “temperatures between +2°C and +8°C” and, specifically, “Warehouse storage, road- and air transportation at temperatures between +2°C and +8°C”;

(2) The exception to this was stated as being “[d]uring warehouse-and ramp handling, shipments can be exposed to ambient temperatures”

(3) It is not in accordance with the ordinary meaning of the phrase “ramp handling” to include anything beyond the handing of the goods ready for loading into the aircraft and their loading. It is certainly not appropriate in the absence of a clear explanation to consider “ramp handling” to include - a) any time the cargo is sitting on the ground in the cargo hold, once it has been loaded; b) any time the aircraft is in the air but descending towards one of its stops; and c) following descent, any time during its carriage that the cargo is sitting on the ground in the hold waiting for take-off to the next destination.

[113]No explanation has been provided as to why it was not made clear in the context of the Fresh 2 terms (even by the time of the hearing) that the “temperature controlled” nature of the carriage of the perishable cargo was operated for considerably less time than suggested by the limited exclusions and in circumstances simply not explained in the terms. It would have been very easy for such explanation to be given even if it did significantly qualify the overall description of “temperature controlled”.

[114]Ms Kors-Oudendijk accepted that it might be necessary for KLM to review the terms of Fresh 2 to clarify the exclusion of times when the cargo would not be temperature controlled but had not done so despite these proceedings.

[115]In the context that Fresh 2 offered temperature controlled carriage by air for temperature sensitive perishables with the limited exceptions set out above, I consider that KLM failed to meet the terms it had agreed in that no temperature control was applied to maintain the agreed temperature range following loading, during descent and while on the ground at intermediate stops en route for the ultimate destination.

[116]Indeed, the AWB stated on its face in clear terms:

“SPECIALIZED FRESH+2+8 VEGETABLES=FRESH 2”

And “PERISHABLE … TOP URGENT … KEEP … ON REFRIGERATION …”

[117]Whilst the second statement did not itself stipulate the temperature, the fact that Wealmoor sought Fresh 2 with its stipulated temperature range as also indicated on the AWB made it clear what the range should be, and the above statement made it clear that it expected the refrigeration to be kept on. It is also an indication that it did not understand the Fresh 2 terms as being subject to the wide interpretation of the exclusions which KLM clearly considered should be applied.

[118]I do not consider that the terms of carriage with regard to routing, or even the IATA Perishable Cargo Regulations (20th edition), overrode the terms of the agreement with KLM to provide Fresh 2 conditions. Reliance is placed by KLM on part of regulation 6.2.1.1 “… While every effort must be made to keep exposure to temperatures outside the designated range to an absolute minimum, stakeholders must be aware that transport temperature ranges cannot be maintained at all times through the supply chain. …”

[119]However, this regulation also recognises the critical nature of cargo temperatures, that maintaining these is a challenging task, and makes clear that specific service levels agreed are key. It states:

“It is critical that the Shipper provides the appropriate transportation temperature range at the time of booking. Further it must be assessed if the range can be maintained at the involved stations and whether the shipment can tolerate a break in the cool chain. If at origin, transit location or destination, adequate handling cannot be achieved (i.e. facilities, during flight or processes), the Shipper should be informed by the responsible party for alternate solutions or procedures be agreed upon.”

[120]The IATA Regulations make clear that the terms of the booking are key:

“6.2 Booking The initial booking is the key step to successful cargo transportation and will trigger the specific and/or appropriate handling and operational processes associated to perishables transport and/or logistics.”

[121]It appears therefore that the terms of the booking and service agreed are critical and it is notable that there is no evidence that KLM sought to explain to prospective consignees, or the market generally, the wide meaning it ascribed to ramp handling and gave no warning at the time of booking, or otherwise, of the significant periods during carriage in which refrigeration would be turned off, apparently as a matter of course.

[122]These periods when the refrigeration was turned off, and the leaving of the cargo in conditions of high ambient temperatures during carriage, notwithstanding that they were clearly regarded as standard by Ms Kors-Oudendijk, support my conclusion that there were “events” in the carriage of the asparagus that were capable of falling within article 18(1).

Conclusion as to “event” and “causing damage”

[123]In the light of the above and of the terms of the Fresh 2 agreement, I consider that the turning off of the refrigeration in the cargo hold during aircraft descent and the allowing of the temperature of the cargo hold to increase (above the contracted range), including by the opening (and leaving open) of the cargo door while on the ground at Quito, and leaving the cargo in ambient temperatures over 10°C for more than 7 hours other than during “warehouse-and ramp handling” were each an “event” within article 18(1). I also note that the placing of the Cargo located it near the cargo door which may have exacerbated the exposure to higher temperatures.

[124]There appears to be a clear overlap between the arguments concerning causation and the issues under article 18(2).

[125]It was Mr Sarradj’s evidence, and agreed between the parties, that asparagus is sensitive to temperature increases and that the higher the temperature, the greater the rate of respiration, that above 9°C-10°C the respiration rate of asparagus increases rapidly and, finally, that deterioration caused by respiration is irreversible.

[126]It is agreed by the experts in their Joint Memorandum that:

“6. WAS THE ALLEGED DAMAGE TO THE CARGO CAUSED BY THE INHERENT QUALITY OR VICE OF THE CARGO? 6.1 We agree that the heating and subsequent damage to the cargo was caused by respiration. 6.2 Respiration is a normal process that all food and agricultural commodities do. 6.3 The rate of respiration is dependent on temperature, oxygen and carbon dioxide levels. 6.4 All documents submitted to us, give indication that the asparagus were packed in good condition, so no inherent quality or vice of the cargo is applicable.”

[127]The cargo was agreed to be in good condition when it left the warehouse in Lima and was clearly subsequently exposed to temperatures significantly in excess of 10°C for substantial periods of time, as appears from the summary table set out earlier in this judgment. The fact that the KLM flight included 2 intermediate stops before Amsterdam meant that on two occasions the refrigeration was turned off for the descent and for the time the aircraft was on the ground. I find that in those circumstances, this would have caused an increase in respiration, and thus deterioration, in the Cargo which would not have been reversed by the subsequent lowering of the temperature.

[128]Mr François’ view, which I have summarised in some detail, was that the damage was caused by the application of the malla raschel mesh to the exterior of the Cargo which prevented heat from escaping and cooling air from penetrating to the extent which would have been the case had the mesh not been applied and the asparagus been allowed to breathe. He rejected the suggestions that the damage was caused by the high ambient temperatures experienced over the carriage of the Cargo to Amsterdam but rather maintained that it was caused by suffocation caused by the malla raschel.

[129]I will deal at greater length with the evidence regarding the use and effect of the malla raschel mesh under the issue of defective packaging below, but for present purposes and for the reasons given later, I reject KLM’s evidence that its use caused, or contributed to, the damage to the Cargo.

[130]Mr Sarradj on the contrary considered that had the initial exposure to high ambient temperatures in the cargo hold at Lima might not have led to the damage experienced had the flight gone directly to Amsterdam and the cargo been kept at 2C-8C (as it was during cruising), but this did not occur. His view, which I accept, was that the subsequent increases in ambient temperature, and the turning off of the cargo hold cooling at Quito and Miami, prevented the necessary cooling to the Cargo following departure from Lima and ultimately caused the damage agreed to have occurred by Amsterdam.

[131]They were matters which were caused as the result of actions (or failures) by KLM or its agents i.e. as a result of the events comprising the failure to turn on the refrigeration until the aircraft was ascending or in the air, the decision (for reasons not explained) to turn it off during aircraft descent and not to maintain it when on the ground (with or without opening the cargo door) even if the goods were not undergoing warehouse or ramp handling and regardless of ambient temperatures. They were matters that were external to the cargo itself and were within the control of KLM and the result of KLM’s flawed view as to how it was entitled to perform its agreement under Fresh 2.

Conclusion on article 18(1)

[132]While the evidence contained some uncertainties, e.g. with regard to the precise placement of the heat sensor, applying the usual civil standard of proof in my judgment the subjection of the asparagus to periods of high ambient temperature after it had been loaded at Lima, and during the descents to and periods on the ground at Quito and Miami when the cooling was turned off, would have increased it above the temperature at which it should have been kept in order to prevent deterioration.

[133]As noted there remains the issue of the wrapping of the Cargo with malla raschel, which I will deal with below in the context of article 18(2) as mentioned above, but reject as being the cause of the damage.

[134]I therefore conclude, subject to my detailed reasons on issue of the wrapping, that the conditions for the application of article 18(1) were met in that damage was sustained by the cargo of asparagus and the event (in fact multiple events, namely the manipulation of the refrigeration) which caused the damage so sustained took place during the carriage by air.

[135]In that event, Wealmoor will succeed in its claim under article 18 unless one or more of the exceptions in article 18(2) applies and/or the mesh wrapping caused or contributed to the damage to the Cargo.

Other consignments on the same flight

[136]Whilst I have been referred to the fact that other consignments of perishable items, including seven of asparagus, were also carried on the same flight as the Cargo, I have been provided with no evidence as to the condition of those other consignments, whether their location within the hold was materially different to that of the Cargo (which was close to the door) or they were subject to other considerations. It is known that 7 other consignments of asparagus in the cargo hold were wrapped in malla raschel as appears from the documentation in the bundle (above at paragraph 75).

[137]Other than that and the reference to the number and the carriage documentation, no specific evidence was adduced by KLM other than the statement from Ms Kors-Oudendijk that - “I can confirm that KLM has received no claim in relation to Air Waybill 074-3998 4641 or any of the other asparagus shipments.”

[138]Mr Lawson put a number of questions regarding the lack of claims to Mr Sarradj as supporting the view that there was nothing in the treatment of the Cargo by KLM which caused the damage. I have summarised his disagreement with those questions, with which I agree, above. In the absence of any detailed information that would allow reasonable inferences to be drawn, other than the use of malla raschel in the case of 7 other consignments of asparagus, I do not draw any in respect of the Cargo from the carriage of those other consignments.

[139]It may be that KLM’s approach to the absence of other claims was directed to the case advanced through Mr François’ evidence that the use of the mesh to cover the Cargo was the cause of the damage. However, if so, this appears to have been misdirected given Mr François’ apparent failure to have recognised the use of malla raschel on those other consignments and certainly his lack of consideration of that usage in his evidence until cross-examination.

Article 18(2) exceptions

[140]KLM contends that even if the claim falls within article 18(1) then it should fail as a result of the existence of one or more of the exclusions in article 18(2). KLM has the legal burden of proof in respect of establishing the application of article 18(2).

[141]As noted earlier, it is agreed at 3.1 and 6.4 of the Joint Memorandum that “the cargo was delivered in sound quality and condition to KLM's ground handlers at Lima Airport” and “the asparagus were packed in good condition, so no inherent quality or vice of the cargo is applicable”.

[142]The issue raised by KLM is whether the malla raschel either caused or contributed to the damaged sustained by the Cargo or whether its use amounted to “inherent vice” or “defective packaging” for the purposes of article 18(2).

[143]With regard to “inherent vice” Mr Lawson accepts that whether there is an inherent defect, quality or vice of the cargo in issue must be assessed by reference to the nature of the service contracted for. In The Albacora [1966] 2 Lloyd’s Rep. 53, Lord Reid held at p. 59:

“By "the ordinary transit" I would understand the kind of transit which the contract requires the carrier to afford. …. It follows that whether there is an inherent defect or vice must depend on the kind of transit required by the contract. If this contract had required refrigeration there would have been no inherent vice. But as it did not there was inherent vice because the goods could not stand the treatment which the contract authorized or required.”

[144]Mr Lawson referred to the perishable nature of asparagus and, notwithstanding the agreement between experts, submitted that the recommended storage for asparagus was 0C to 2C (which he took from Mr Sarradj’s Report at 2.4.1) which was not the service booked by Wealmoor. However, Mr Lawson was not complete in his reference to Mr Sarradj’s Report at 2.4.1 since his evidence also referred at 2.4.3 and 2.5.5 (quoted earlier) to the fact that it is not possible to transport asparagus by air in the 0-2OC range and that fruits and vegetables tend to be transported within a given range, usually 2-8OC. Mr Sarradj emphasised in cross-examination that the 0-2C was “optimal” and not “recommended”.

[145]This was not disputed by Mr François. In my judgment, the carriage of the asparagus at the stipulated temperature range of 2-8C is standard commercial practice and there is no evidence that the use of that range (if properly observed) gives rise to damage.

[146]Further, it was agreed in the Joint Memorandum at 3.1, 3.2 and 6.4 that(1) The asparagus was packed in good condition;

(2) The Cargo was delivered in sound quality and condition to KLM’s ground handlers at Lima Airport;

(3) The Cargo temperature was still within the stipulated 2-8OC carriage temperature on arrival in Lima.

[147]With respect to the nature of the service contracted for, I have already given my reasons why I do not consider that KLM complied with the terms of Fresh 2 and operated Fresh 2 in a manner which was not disclosed to those booking the service.

[148]I therefore reject the contention of “inherent vice”.

[149]With regard to the use of the malla raschel wrapping, although it was submitted that this might also come under the “inherent vice” heading overlapping with “defective packaging”, I will deal with it in terms of the latter since (at least in this case) this appears more apt to cover the use of external wrapping by or on behalf of the consignor.

[150]Mr Gourgey for Wealmoor submitted that Mr Sarradj’s evidence for the cause of the harm was to be preferred, that the evidence of the use of malla raschel did not establish it as a case of harm, and further submitted that:(1) If goods are packed in a way which complies with normal practice, the carrier will not be able to rely upon the packaging as a defence. See Flaux J. (as he then was) in Exportadora Santa Elena v Maersk Line

[2010] EWHC 3324 (Comm)

at [116], although I note that, in that case, no point was being taken with regard to the packaging inhibiting the flow of cooling air to the cargo;

(2) Where the nature of the packaging was obvious to the carrier upon receipt, as the Frio Aereo documents show, but it was nevertheless prepared to take the goods without complaint, the carrier should not be able to rely upon the packaging as a defence to liability. See Silver v Ocean Steamship [1930] 1 K.B. 416 at 440-441.

[151]Mr Lawson submitted that KLM had complied with Fresh 2 and that the malla raschel was the cause of the damage found when the Cargo was delivered. He submitted that:(1) Consideration of the cause of the damage to the Cargo could be restricted to the period between Lima and Amsterdam.

(2) The criticism of Mr. François, who was an experienced witness, was unduly pedantic and focussed on what he had not said in his reports.

(3) By reference to a number of periods it is agreed that the Cargo was exposed to ambient temperatures for 7 hours 29 minutes but – a) 3 hours 4 minutes in Lima which included 2 hours and 17 minutes while the Cargo was in the cargo hold (and the hold open for the remainder of loading) and 13 minutes’ ascent. 34 minutes were required for removal from the warehouse for loading which is accepted to have been ramp handling. KLM submit the whole period should be considered ramp handling when it was unavoidable and common sense that there would not be cooling. b) 7C was achieved in the cargo hold while cruising between Lima and Quito which was clearly consistent with the Fresh 2 terms. It would take time for the cargo to cool down from the ambient temperature. Fresh 2 was a cooling not a chilling service. The fact that the cargo only cooled to 13.8C was a result of its exposure to ambient temperatures during ramp handling in Lima. c) There is no evidence that the turning off of the cooling during descent to Quito was material to the damage sustained by the Cargo. d) The period of 2 hours 47 minutes from the descent to Quito (30 minutes), when the temperature in the hold rose to 15C; the time spent on the ground at Quito (2 hours 3 minutes) where the ambient temperature was 20-22C, and the hold was at 22C, which had reduced to 19C on departure; and 14 minutes’ ascent with the hold at 18C. There was no evidence that Fresh 2 was not complied with. e) After cruising for 2 hours and 40 minutes with a hold temperature of 6C, the aircraft descended to Miami and the hold increased to 7C but rose to 14C on arrival in Miami. The aircraft was on the ground at Miami for 1 hour 18 minutes and although the ambient temperature was 18-19C the hold was not opened but the temperature in the hold had risen from 14C to 19C on departure.

[152]It is true that there is limited surveyed evidence following delivery with regard to the malla raschel applied to the Cargo since it had been removed by the time the cargo was inspected and its precise specification could not be determined from the material used. The evidence in the form of a photograph taken during inspection (at Bundle B pp. 147 and 295), and not for this purpose, showed only remnants of the wrapping, apparently dark green in colour, though referred to by Mr François as black. However, the use and type of malla raschel used was explained by Mr Trylesinski in his second statement, which was not challenged, but was commented on by Mr François in his second report.

[153]While Mr François rejected in cross-examination the suggestion that the use of malla raschel was standard practice at least in consignments from Peru, I did not find his view convincing for a number of reasons. Mr Trylesinski made clear that the use of this mesh was normal practice for Europe and UK destined asparagus: “9. The specification of mesh used is attached. The make is FIBRAFIL and the weave is 90%, meaning the mesh provides 90% shade coverage.10. This product has been in use by us and our freight forwarder since 2010 and is used for pest control.

11. For asparagus destined for Europe and the UK, air carriers commonly use routes which transit through USA because of the frequency of flights and for cost reasons. Any Peruvian products that enter the USA have to be fumigated due to quarantine protocols. The USDA permits the transit of asparagus without fumigation provided that the pallets are covered by this mesh, which is insect proof.

12. I do not recall any customer ever complaining that the mesh has inhibited airflow or caused temperature damage in some way”.

[154]Mr François’ experience in the carriage of asparagus from South America to Europe appeared relatively limited in comparison to Wealmoor and Mr Sarradj. More significantly:(1) Mr François accepted that malla raschel was suitable if applied in the ordinary way but drew attention to the fact that there was no information as to how it had been applied. He was therefore unable to demonstrate that the Cargo had been wrapped incorrectly and accepted that he merely inferred it was used incorrectly from the fact of damage. Mr Sarradj, on the other hand, had said that there was no reason to assume that more wrapping had been used than was necessary and that a single layer would provide the required physical barrier.

(2) At the Lima warehouse, although Mr François speculated this was due to the presence of the cooling fans (not present in the aircraft), the evidence shows that the malla raschel did not prevent the lowering of the temperature of the Cargo from 4.7C to 6.5C to 2.5C to 5C.

(3) He failed to record or acknowledge until cross-examined the fact that the other 7 consignments of asparagus on the flight shown on Frio Aereo’s cargo registration document dated 10 January 2021 were also recorded as being wrapped in malla raschel. Finally, when examined on that subject he suggested the wrapping had been applied by the same shipper rather than showing similar practice by different shippers. This was incorrect and, when shown the documents, he accepted they were consignments from different shippers. Indeed, the Frio Aereo cargo entry record for 9 January 2021 (Bundle B p. 113 and Appendix 1 to Mr François’ first report) has a standard abbreviation of “MR” for “malla rashel” and “SM” (“sin mala”) for “without malla” on its printed form which supports its frequent usage. While Mr Lawson claimed the point to be unduly pedantic, I disagree. Where an expert gives evidence which relies very heavily, if not exclusively, on the presence of malla raschel as causing the damage, and where his client makes a point about the absence of other claims in respect of other cargoes of asparagus on the same flight, it is to be expected that at the very least the usage of the mesh for the other consignments on the same flight should be referred to and addressed. It was apparent to me that Mr François, regardless of the length of his experience, had not properly considered the evidence of the other cargoes or recognised what it meant and considered it against his conclusion that the mesh caused the damage.

(4) I was not satisfied that Mr François had properly considered the significance of the ambient temperatures and their contribution to the heating of the Cargo despite the exposure for 2 hours and 17 minutes to high hold temperatures following loading at Lima, and further instances at Quito and Miami. His claim that it was irrelevant given the undoubted sensitivity of asparagus to temperature, especially at 9C and above, pressed by Mr Lawson in cross-examination of Mr Sarradj, was unconvincing set against the fact that the evidence showed that at no time did the logged cargo temperature following its loading at Lima fall below 11C and for the majority of the journey was at 13C or higher. I did not understand his responses to questions as to how some form of greenhouse effect which was the result of the mesh must have increased temperature and how carbon dioxide emission did not slow down suffocation.

(5) The recorded temperature rose while the cargo was being loaded at Lima and awaited take-off but dropped by some 7C once en route to Quito. Mr François’ suggestion in cross-examination that the temperature should have fallen by 10C and its failure to do so must be attributable to the wrapping was raised for the first time when he was questioned and is not consistent with Mr Sarradj’s evidence. Further, Mr Sarradj said that had the malla raschel had the “greenhouse effect” suggested, it would not have reduced in temperature as it did and there would have been condensation on the Cargo. There was no evidence of condensation. Mr Lawson’s submission that the inspection might have taken place after it had evaporated was no more than speculation and, although the greenhouse effect theory was KLM’s, it produced no evidence other than Mr François’ inferences.

(6) Moreover, he exaggerated the effect of the mesh. He accepted in cross-examination that his conclusion in his Supplementary Report that the use of malla raschel resulted “in the constant increasing of temperatures visible on the recorder” was incorrect. He accepted several times during evidence that there had been decreases in temperature, which he explained would have been greater but for the mesh. Indeed, the recorded temperatures may have been above 8C but they did rise and fall, as the logged figures (and KLM’s own graph) demonstrate, particularly at times when the hold was being cooled. That also supported Mr Sarradj’s view that the mesh was permeable and did allow air in and out. Notwithstanding Mr Lawson’s submissions to the contrary, the suggestions made that the mesh only inhibited cooling appeared to be a late attempt to counteract the more absolute position adopted by Mr François in his evidence in chief e.g. - “The fabric prevented access to the air prevailing during transit, suffocation started, and heat produced resulted in further increase of the pulp temperature…’ “… subject shipment was indeed defectively packed it is not a bare inference, because due to using a fabric around the cartons breathing and contact with surrounding refrigerated air was evidently prevented …” “It is my opinion that the covers/wrapping applied were so tightly woven that cold air in the aircraft and the truck trailer in addition to the outside temperatures in January could not come in contact with the asparagus. This resulted in the heating air of the asparagus not being able to escape in transit, resulting in the constant increasing of temperatures visible on the recorder.” I am not satisfied that this was simply the result of inaccuracy of language and, had it been the case, it should have been raised and clarified in his evidence and not simply in submission by Mr Lawson.

[155]With reluctance, I agree with Mr Gourgey’s submission that Mr François appeared less inclined to give an objective expert view to the Court based on a proper consideration of the evidence than to argue the position he had first taken in support of KLM’s case. His exaggeration of the effects of the mesh and his failure to consider the use of the mesh generally by Wealmoor and on other cargoes of asparagus in the same hold did not suggest objectivity or care in the giving of evidence.

[156]In my judgment, the evidence before the Court supports the conclusion that the use of malla raschel was common practice in the consignment of asparagus from Peru, and had been used by Wealmoor without complaint since 2010, for the reasons explained by Mr Trylesinski, namely because of US requirements with regard to quarantine from insects coming from Peru. As Mr Sarradj explained, the mesh was an effective barrier to insects and did not require to be used in more than one layer.

[157]Wealmoor’s case is also supported by the fact that the use of malla raschel was common practice and that no attempt had been made by the carrier to raise any concerns with it on receipt: see the authorities cited by Mr Gourgey, above. However, this issue is resolved on the evidence for the reasons I have given.

[158]I therefore prefer the expert evidence of Mr Sarradj and that the cause of the damage was not the malla raschel, used to prevent insects escaping, and commonly used in the consignment of asparagus from Peru to Europe, but the exposure to high temperatures, the failure by KLM to meet the Fresh 2 terms after loading at Lima and the fact that the cooling of the Cargo was interrupted after the exposure at Lima by the increases in temperature as a result of the stops at Quito and Miami. While KLM was contractually entitled to modify its route, and include stopovers, this did not alter its obligations under the Fresh 2 terms as I have found them to be. As I have found, at no stage from the time the Cargo was loaded into the hold at Lima did the Cargo achieve even the top of the Fresh 2 temperature range and throughout exceeded it by at least 3C, if not more.

[159]Some damage may have been caused, or begun, by exposure in Lima but the greatest part of that exposure was after loading, with the hold being loaded with other consignments for 2 hours and 17 minutes during which time the hold temperature was recorded at 22C, and then 19C during ascent. If the damage was begun here, and it is a fair inference that it was, given the temperature logged was higher than the ambient, then the majority was attributable to a period which was not properly classified as ramp handling since the Cargo was loaded. The extent to which its location near the doors contributed to this is unclear.

[160]It appears that any beneficial effect from the cooling that was applied was insufficient to counteract the effects of the high temperatures experienced: in the hold at Lima and during the following ascent; during the descent to, and time on the ground at, Quito (when the hold was open) and following ascent; and during the descent to and time on the ground at Miami and subsequent ascent en route to Amsterdam.

[161]Since I have rejected the submission that most of the period of exposure to high temperatures in the hold on the ground was properly to be excluded as “ramp handing” within the Fresh 2 exception, I find that the Cargo was exposed for some 7 hours 29 minutes to high temperatures including 2 hours 30 minutes at Lima (including ascent) after loading which probably was the main factor in beginning what Mr Sarradj described as a vicious circle of deterioration in the Cargo. Whilst periods of Fresh 2 compliant cooling were achieved in the hold during cruising between Lima and Quito, Quito and Miami and Miami and Amsterdam, and these caused some modest reductions in Cargo temperature, these were not sufficient to bring it within, or even close to, the Fresh 2 range and cooling, after being held at high temperatures in the hold at Lima, was inhibited by the periods of high ambient temperature.

[162]Finally, having rejected malla raschel as the cause of the damage, I do not consider that the evidence supports an alternative finding that it contributed to the damage. Mr François’ evidence was that it was the sole cause of the damage and he rejected Mr Gourgey’s suggestions that the high ambient temperatures were relevant to the damage.

Conclusions on liability

[163]On liability, I therefore conclude that KLM are liable under article 18 for the damage to the Cargo and that the event which caused that damage took place during the carriage by air from Lima to Amsterdam and I reject KLM’s contentions that liability is negatived by either of the article 18(2) exclusions relied upon.

Loss

[164]Evidence as to the quantum of loss is limited. Wealmoor claims £18,442.00 based on the market value of the Cargo had it arrived in sound condition at the date of delivery less the salvage sales of the Cargo.

[165]The market value of the Cargo had it arrived in sound condition was £19,203.20 [B/488-498]. The salvage sales raised £1,623 which should be deducted. There should be added to the loss the survey fees incurred of £661.80 and the costs of sorting and repacking of £200, which amounts to £18,442.

[166]Mr Gourgey points out that the claim could have been made at £1.50 per pack (rather than £0.97) based on the order of 16.1.21 (bundle B, p. 501) which would have yielded a higher total loss, but that Wealmoor does not seek to increase its claim.

[167]Mr Lawson submits that the evidence of loss is extremely thin and that there is no evidence of a contract (or contracts) of sale for the Cargo which would have evidenced its market value or even of the existence of a purchaser for the cargo.

[168]On balance of probabilities, it appears to me that there is no reason to doubt that there would have been a market for asparagus shipped to the UK and that the contemporaneous invoices provided sufficient evidence of market value at the time that the Cargo was delivered, when it had to be sold off in salvage sales or otherwise disposed of. Whilst there is no contract produced for the sale (assuming good condition) the fact that the invoices support a higher figure than that claimed provides sufficient confidence that the claim has not been overstated.

[169]I therefore assess damages in the sum of £18,442.

[170]I will give my decisions as to costs, permission to appeal and other consequential issues at a later date, following receipt of further submissions from the parties.

[171]I am grateful to counsel for their conduct of this case and their submissions.