[2025] EWHC 1706 (Comm)

Fecha: 11-Jul-2025

Article 18(2) exceptions

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 0-2^OC range and that fruits and vegetables tend to be transported within a given range, usually 2-8^OC. 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 2-8^OC 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 –

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.

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.

There is no evidence that the turning off of the cooling during descent to Quito was material to the damage sustained by the Cargo.

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.

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.