[2025] EWHC 1706 (Comm)

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”

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:

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”.

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.

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.

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

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

And

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

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.

I do not consider that the terms of carriage with regard to routing, or even the IATA Perishable Cargo Regulations (20^th 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. …”

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.”

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.”

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.

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).