[2025] EWHC 1706 (Comm)

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.

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.

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.

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.

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.

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.

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

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.

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