[2025] EWHC 1706 (Comm)

Fecha: 11-Jul-2025

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

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

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.

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.

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 -

the “inherent defect, quality or vice” of the Cargo; and/or

“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.

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.

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.

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

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.”

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.

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.