[2025] EWHC 1706 (Comm)

Wealmoor specialises in importing subtropical fresh fruits, vegetables, herbs and other items and receives many shipments each day at its Greenford packhouse, including between 13 and 26 daily air shipments.

KLM were the contractual carriers of the Cargo.

On about 8 January 2021, Hellman Worldwide Logistics as agent for Wealmoor booked for the carriage of the Cargo by KLM direct from Lima to London Heathrow on AWB 074-37845220 (dated 9 January 2021) on Flight KL744 departing at 21:00 LT on 11 January 2021. This was subsequently changed to Flight MP7760 operated by Martinair (a wholly owned subsidiary of KLM), with routing stated to be LIM/AMS/LHR (Lima/Amsterdam/London Heathrow), as appears from AWB 074-37845220.

The Cargo was booked to be carried on KLM’s “Specialized Fresh+2+8” or “Temperature Controlled” service (“Fresh 2”) for perishable goods which are stored and transported at temperatures between +2C and +8C. This was recorded on the AWB in the “Accounting Information” box:

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

The AWB also recorded over the central part where weight is recorded:

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

It is common ground that the description of “Fresh 2” was set out on KLM’s website as follows, without further explanation:

“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”

One important issue before me, which is the subject of dispute between the parties, is what is meant by -

“During warehouse-and ramp handling, shipments can be exposed to ambient temperatures.”

KLM’s General Conditions of Carriage, agreed to be applicable to the contract recorded in the AWB, contained a term that:

“6.3

SCHEDULES, ROUTINGS AND CANCELLATIONS

6.3.1

Times shown in Carrier’s timetables or elsewhere are approximate and not guaranteed and form no part of the contract of Carriage. No time is fixed for commencement or completion of Carriage or delivery of Cargo. Unless specifically agreed otherwise and so indicated in the Air Waybill or Shipment Record, Carrier undertakes to carry the Cargo with reasonable dispatch but assumes no obligation to carry the Cargo by any specified aircraft or over any particular route or routes, or to make connections at any point according to any particular schedule. Carrier is hereby authorised to select or deviate from the route or routes of the Shipment, notwithstanding that the same may be stated on the face of the Air Waybill or in the Shipment Record. Carrier is not responsible for errors or omissions either in timetables or other representations of schedules. No employee, Agent or representative of Carrier is authorised to bind Carrier by any statements or representations of the dates or times of departure or arrival, or of operation of any flight.”

The cargo of asparagus was supplied by Floridablanca, an established Peruvian asparagus producer, which is the largest exporter of asparagus from Peru to the UK and EU, and with which Wealmoor has worked since 2018.

Mr Jayesh Dodhia (Wealmoor’s Head of Procurement) visited Floridablanca’s premises in 2018 and stated in his evidence that:

“13.

I visited Floridablanca in July 2018 soon after Wealmoor began trading with them with a technical manager lain Gilmour to audit and evaluate its operations including their growing operations, their fields and packhouse.

14.

I was very satisfied by what I saw during the visit and according to Wealmoor's Supplier Risk Analysis, Floridablanca was found to be a "low" risk supplier”.

To support this classification, Mr Dodhia produced Wealmoor’s Technical Standards Supplier Visit Report for that visit. He added:

“15.

Wealmoor have a risk-based approach to visiting supplier. My colleague Lucia Licham was based in Peru and visited Floridablanca twice over the last two years. Lucia Licham had regular contact with Florida Blanca and since she departed from the business, her replacement, Geraldine Mondragon is also in contact with Ian Trylesinski who is our main point of contact at Floridablanca.

16.

Volumes vary but, on average, we receive around 4 shipments of asparagus each week from Floridablanca. Each shipment is between 2.5 and 3 metric tonnes. The shipments arrive in the UK via air between late June and January which fits with the main Peruvian season for asparagus. We use their product for our important retail customers such as Waitrose, Aldi, Lidl and Morrisons.

17.

I have always found Floridablanca to be a company who work to the highest possible standards and in accordance with our required specifications...”

Mr Dodhia explained that Wealmoor has specific requirements that Floridablanca must follow:

“21.

The Wealmoor Procurement Specifications set out the specific requirements that Floridablanca must work to including, but not limited to:

a.

the required quality of the asparagus;

b.

the stage of maturity at which the asparagus should be harvested;

c.

the defects from which the asparagus should be free; and

d.

how the asparagus should be handled post-harvest including washing, temperature and packaging.

22.

Floridablanca works to the specifications set out in the Wealmoor Procurement Specifications. If there are any issues identified with a particular cargo which would result in the cargo falling foul of the defects provision in the Wealmoor Procurement Specifications, then Floridablanca will not ship that cargo.”

Mr Ian Trylesinski (Floridablanca’s Commercial and Operations Manager) explains in some detail in his unchallenged first witness statement the procedures Floridablanca has in place for dealing with asparagus:

“15.

Our procedures for dealing with the cargo from harvesting to being placed on a truck to travel to the airport are as follows:

Reception Area

a.

The asparagus is harvested and brought to the reception area of the packing house by truck at regular intervals during the day where it is weighed, and its temperature taken.

b.

The asparagus then undergoes an initial pre-cool wash by placing it on rails of the

c.

The asparagus is then chlorinated to destroy any present pathogenic bacteria

d.

The asparagus is then cooled via a second wash to bring down the temperature of the asparagus from the field temperature post-harvesting. How long the product is subject to the second cooling wash depends on the field temperature of the asparagus. For example, asparagus that arrives in the middle of the day may require an hour of this second cooling wash but usually this will take around 15 minutes.

Main processing room

e.

At this stage, our quality control team conducts a random check of the asparagus. If the quality control team are unhappy with the asparagus at any stage throughout the washing/cooling/packing process it would be removed from the packing line.

f.

The asparagus is then processed ready for packing. Roughly 100kg of asparagus is processed in a conveyor belt system every hour.

Cold storage

g.

The asparagus is then packed in boxes before being subject to hydrocooling. This is a very cold wash which brings down the temperature of the asparagus further. Asparagus usually undergoes about 15 minutes of hydrocooling.

h.

The boxes are then put into cold storage at between 1 - 2.5 degrees Celsius while awaiting the arrival of the truck.

i.

On arrival the trucks are backed up into the warehouse and the pallets of asparagus are moved into the trucks via connecting ramps.”

Mr Trylesinski stated that the above procedures were carried out in the case of the Cargo.

The Cargo was transported from Floridablanca’s packhouse by truck to Lima airport late on 8 January 2021, which Mr Trylesinski stated was kept at a controlled temperature of 3-6 C and:

“21.

It is crucial for Floridablanca that the “cool chain” started in the packing house is maintained throughout the journey to the airport. Mis 8 Amores’ trucks are always temperature controlled at between 3 to 6 degrees Celsius to ensure that this “cool chain” is maintained with a temperature device situated inside each truck.

22.

Every part of the journey controlled by Floridablanca is therefore totally controlled when it comes to temperature. If we did not have rigorous processes in place that we do, Floridablanca would not be able to exist.”

The Cargo arrived at Lima Airport in the early hours of 9 January. The journey to Lima Airport takes around 5-6 hours from Floridablanca’s packhouse in Ica, Peru. At 02:28 LT on that same morning, Frio Aereo (KLM’s ground handling agents) accepted the Cargo, taking the temperature of each pallet removed from the truck in the process which ranged from 4.7C – 6.5C, as recorded in the “Registro de Ingresa de Carga”.

Before the Cargo was delivered to KLM’s agent in Lima, each of the pallets in which it was contained were wrapped in a mesh known as malla raschel for pest control purposes. Mr Trylesinski stated in his second witness statement:

“7.

As I explained in my first statement, after processing, the asparagus is packed in boxes ready for loading onto the truck for delivery to the airport. Pallets of asparagus destined for Europe and the UK are wrapped in mesh. Wealmoor's cargo, destined for the UK, will have been packaged in this manner.

8.

The mesh is either added by us or by our freight forwarder to the pallets. It is normal practice for the freight forwarder to add this mesh to Europe and UK-destined asparagus, before delivery to the carrier. However, I do not recall whether it was us or our freight forwarder that added the mesh to this cargo on this occasion.

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”.

Absent Mr Trylesinski’s evidence, the form of malla raschel was not clear from the photographic evidence taken after delivery to Wealmoor and once the mesh had been removed - although fragments of the mesh can be seen in one or two photographs. KLM’s surveyors were not able to observe the Cargo within its webbing. Mr Francois commented on Mr Trylesinski’s second statement in his supplementary report. However, there was no evidence that the Cargo had suffered from condensation.

One of the issues for my consideration, in terms both of causation and article 18(2), is the effect the mesh had, or may have had, on the temperature of the Cargo in transit and on the condition of the asparagus.

It is common ground that the asparagus was in good condition when delivered to the warehouse operated by Frio Aereo, within the control of KLM. This is the subject of expert agreement at para. 3.1 of the Joint Memorandum. The Cargo was within KLM’s control from that point onwards and on 10 January 2021 at 10:52-11:26 local time was loaded onto Flight MP7760 from Lima.

Notwithstanding what had appeared on the AWB, the Cargo was in fact routed via Quito and Miami and spent considerable time in the cargo hold on the ground in conditions above the necessary 2C-8C. However, the conditions of carriage (above) allowed deviations and changes to be made to the route originally shown, though this may nonetheless be relevant to the issue of temperatures experienced and damage to the Cargo.

An Xsense recorder was placed in the pallet in which the Cargo was wrapped, although the Joint Memorandum notes:

“5.1

We agree that the Xsense Temperature Recorder provided accurate temperatures of the pallet in which it was placed.

5.2

We agree that we do not know where in the specific pallet that the Xsense device was placed.”

The Joint Memorandum states:

“5.6

The Registro de Seguimient de Temperature en Platforma (Defendant's Supplemental Disclosure) reported that the asparagus (AWB: 074- 37845220) was removed from the cold store at Lima airport at 1052 hrs and loaded to the aircraft at 11.26 hr. The temperature of the asparagus at these two points in time were 4.8°C and 5.7°C, respectively. No further temperatures of the asparagus were obtained despite the final cargo being loaded to the aircraft at 12.40 hrs. The temperature recorder however showed 20°C, evidently the ambient temperature under the MR cover and not the pulp temperature of the asparagus.”

A coloured graph (“the Graph”) has been compiled from the available raw Xsense data (Bundle B pp. 602-607) by the Defendants (in Bundle B at p. 657) and is exhibited by Ms Kors-Oudendijk, and explained at para. 30 of her witness statement. The Graph shows the ambient temperatures for Lima, and the other destinations visited by Flight MP7760 and what was logged by the Xsense recorder from the Cargo, as well as marking lines to represent 2C and 8C. The times recorded are in UTC (coordinated universal time) not local time shown on the Xsense logs, which is 5 hours behind UTC.

Eleven numbered events in the carriage of the Cargo are noted on the Graph:

The Graph shows clearly the increase in temperature logged by Xsense from about 4C at c 14:55 to almost 20C at about 17:18 with an ambient temperature for Lima of 24.9-25C which was noted by Frio Aereo on the Platform Temperature Monitoring Record (“Registro de Seguimiento de Temperatura en Plataforma”). Mr Gourgey for Wealmoor submits that this was probably as a result of exposure to direct sunlight during loading. This is not inconsistent with Ms Kors-Oudendijk’s evidence or the on board temperature records provided by Martinair.

Mr Gourgey submits that the evidence shows that the Cargo was routed via Quito and Miami and spent considerable time in the cargo hold on the ground in conditions well above the necessary 2-8C, as well as during ascent and descent between the various stops en route to Amsterdam. Indeed, as the records and Graph show, the temperature of the Cargo as logged by Xsense did not fall within the 2C-8C range specified by Fresh 2 at any time following removal from the Lima warehouse until it was released to Wealmoor. With two spikes, the temperature of the Cargo climbed steadily from 11C to 23C from its arrival in Amsterdam when it was released to Wealmoor.

Mr Gourgey sets out in his skeleton argument at para. 22 a summary on which Wealmoor relies of the conditions, alongside the reported temperatures of the Xsense recorder at each stage of the Cargo’s journey, from loading in Lima to arrival at Amsterdam (leaving bundle references but removing footnotes). Mr Lawson has also produced a separate table which is broadly equivalent to Mr Gourgey’s summary. Detailed logging of ambient and cargo hold temperatures have been provided by both parties, together with the Xsense data. I have combined the information and, where necessary, converted the time index from both tables and from the evidence below.

Ms Kors-Oudendijk stated in her evidence that:

“During the loading procedure, perishable cargo carried under KLM’s ‘Fresh 2’ service are exposed to ambient temperatures as it is not possible to control the temperature on the ramp next to the aircraft where cargo is prepared for loading. In my experience, this process would usually take one to two hours, however Frío Aéreo’s cargo exit record discussed in paragraph 12 shows that the Consignment was on the ramp for approximately 53 minutes from the time it was removed from cold storage in the warehouse to the time it was loaded onto the aircraft. The ambient temperature in Lima at this time was around +23°C based on archived weather data from Lima’s METAR station retrieved during my investigations of this claim.”

At para. 31 of her witness statement, Ms Kors-Oudendijk stated, by reference to the events numbered on the Graph:

“31 The graph shows that the temperature recorded by the data logger reached +19.3°C whilst the Consignment was exposed to ambient temperatures in Lima for loading onto the aircraft between events 1 and 2 (for approximately one hour). As described above, such exposure is an unavoidable part of the transport chain for consignments booked under KLM's `Fresh 2' service. The temperature nonetheless drops rapidly after event 2, with a consistent downward trend until the Consignment arrived in Amsterdam on 11 January 2021 (event 8) which is consistent with the fact the Consignment was refrigerated for the whole of the flight, with the exception of brief, unavoidable exposures to ambient temperatures in Quito and Miami”

Ms Kors-Oudendijk made clear she was a claims handler, and said in cross-examination that she had no technical expertise with regard to the operation of the flight or the refrigeration of the cargo, and appeared to derive most of what she said from the documentation and from her knowledge of general practice. She explained with regard to the “Fresh 2” service KLM provides information regarding this via its website. The reference in the Fresh 2 description to “ramp handling” was, she said, to the time when the cargo was on the ramp and also included the time when the aircraft was on the ground, without the engine running or cooling in operation. She said it was “common sense” that the aircraft engine could not be kept running when it was on the ground and that the cargo was not refrigerated on loading. The refrigeration goes on when the aircraft takes off.

Ms Kors-Oudendijk also said in cross-examination that Fresh 2 does not guarantee that the temperatures will be 2C-8C, that KLM seeks to keep them within that range but if they could not do so, then the temperatures may increase. She was unable to confirm that, if the refrigeration was kept on for the whole flight, the temperature might be expected to remain between 2C and 8C since she said “it does not happen” and that she had never seen a situation where the cargo hold did not match the local temperature.

She accepted that there is no mention in the KLM Fresh 2 description of what is done during descent or reference to the ambient temperatures (other than “during warehouse-and ramp handling”) when the aircraft lands. She said that “maybe we have to change some things” but that they could not guarantee cold storage all the time since the aircraft is not a refrigerator and the refrigeration has to be shut down at times.

Ms Kors-Oudendijk agreed that when carrying goods at a particular temperature it was important to limit their exposure to high temperatures and to limit exposure to ambient temperatures. When asked whether it would have been expected that the refrigeration was in operation while the aircraft was descending, Ms Kors-Oudendijk said she was not sure and would imagine that the refrigeration would be turned off during descent. Her lack of knowledge was surprising given she was the only witness for KLM giving evidence to explain how the Cargo was transported and cooled. No clear reason was given by her to explain why the refrigeration would be turned on when the engines were running during ascent and flight but not during descent.

At Quito, the cargo hold doors were opened and the hold temperature generally mirrored the ambient temperature of 20-22C and the cargo hold was recorded at the temperature of 22C eventually falling to 19C on departure. This covered the 2 hour 3 minute period on the ground at Quito from 20:43 to its departure for Miami at 22:46 when the cargo hold was recorded at 19C.

This evidence contradicted Ms Kors-Oudendijk’s statement at para. 17 where she had stated that the cargo door would only be open for a few minutes and that “[a]ny exposure to ambient temperatures is minimal and probably less than five minutes”. I therefore discount her evidence at para. 17 in favour of her oral evidence in the light of the documentation.

In respect of the leg of the flight to and from Miami, as appears from the summary table above, the temperature records show hold temperatures within the Fresh 2 range while cruising, and during descent, but higher during ascent (18C) and when on the ground at Miami (14-19C). However, the Cargo temperature, while it varied and reduced slightly when the hold was cooled, did not fall below 13C.

I find that Ms Kors-Oudendijk’s (and I assume KLM’s) understanding of the Fresh 2 terms, and how they were operated, was:

Additionally, it is clear that the cargo hold was exposed to higher ambient temperatures for a period of 2 hours 3 minutes at Quito and that the refrigeration had been turned off during the descent of 30 minutes from Lima. It is shown in the on board temperature analysis as 15C during descent (a significant increase from 7C during flight) and 22C on arrival at Quito, which lowered to 19C on departure (comparable with the 20-22C ambient temperature at Quito).

The temperature of the Cargo as logged by Xsense rose from 4.8C when it left the warehouse at Lima to 20C 34 minutes later when it was loaded into the hold. The ambient temperature at Lima was 21C. The temperature of the Cargo was logged as falling from 20C to 17.3C during the 2 hours 17 minutes it sat in the hold prior to take-off and lowered to 16.3C during ascent. The hold temperature prior to take-off was 22C reducing to 19C during ascent. During the 1 hour 17 minutes cruising between Lima and Quito the Cargo temperature reduced from 16.3C to 13.8C despite a hold temperature of 7C which may be an indication that exposure to high temperatures during loading and while the Cargo sat in the hold at Lima prior to take-off had started an irreversible warming of the asparagus, given the interruptions in cooling during the stopovers, and thus deterioration in the Cargo.

Both experts agree in the Joint Memorandum that the cargo was likely damaged by the time of its arrival in Amsterdam as a result of respiration during transport:

“5.3

The damage to the asparagus (i.e. the increase in temperature and deterioration of the spears) was a result of respiration during transport.

5.4

Between removal of the pallets from the cold storage at Lima Airport, and cruising altitude being reached on the leg to Amsterdam, the cargo was exposed to ambient temperatures exceeding the 2-8°C carriage temperature for 7 hours and 29 minutes.

5.5

The cargo was likely damaged on arrival in Amsterdam.”

Upon arrival in Amsterdam, the Cargo was kept in storage until 08:50 UTC on 12 January 2021. No records have been provided of the temperatures in this storage place, but Ms Kors-Oudendijk has stated that it would have been moved into cold storage and kept at between 2C and 8C.

The Cargo was trucked from Amsterdam to London. Air entering the truck was between 5.1C – 9.5C. The Cargo arrived at London Heathrow at 05:00 UTC on 13 January 2021. Wealmoor was notified of the consignment’s arrival at 15:31 UTC, and the Cargo was kept in the warehouse until collection by Wealmoor’s agents at 20:35 UTC. The conditions in the London Heathrow warehouse ranged from 7.8C to 10.5C.

By the time the Cargo was collected by Wealmoor’s agents, the Xsense recorded a temperature of approximately 28.8C. The Graph and data show Xsense logged temperatures of no less than 11C from the arrival of the Cargo at Amsterdam and rising from that gradually (with higher spikes) to the high of 28.8C on collection by Wealmoor.

The Cargo was described by ClaimsWrights, a claims consultancy instructed by Wealmoor, as:

“Following our survey, we concurred with your staff that the asparagus inspected displayed high levels of melting tips, discolouration, rots to the butts and dehydration to the stems, Also, there was a strong rotting odour throughout and in our opinion the asparagus did not meet the required quality specification.”

The pulp temperature of the cargo was recorded as between 18.5 and 34.5C, well in excess of what is acceptable for asparagus.

The Cargo was already too far gone to save it and, as a result, Wealmoor was required to sell some of the Cargo as distressed cargo, whilst other boxes had to be dumped in their entirety.