[2025] EWHC 1706 (Comm)

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.

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

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.

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.”

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.

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.

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.

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.

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.