[2025] EWHC 1706 (Comm)

Whilst I have been referred to the fact that other consignments of perishable items, including seven of asparagus, were also carried on the same flight as the Cargo, I have been provided with no evidence as to the condition of those other consignments, whether their location within the hold was materially different to that of the Cargo (which was close to the door) or they were subject to other considerations. It is known that 7 other consignments of asparagus in the cargo hold were wrapped in malla raschel as appears from the documentation in the bundle (above at paragraph 75).

Other than that and the reference to the number and the carriage documentation, no specific evidence was adduced by KLM other than the statement from Ms Kors-Oudendijk that -

“I can confirm that KLM has received no claim in relation to Air Waybill 074-3998 4641 or any of the other asparagus shipments.”

Mr Lawson put a number of questions regarding the lack of claims to Mr Sarradj as supporting the view that there was nothing in the treatment of the Cargo by KLM which caused the damage. I have summarised his disagreement with those questions, with which I agree, above. In the absence of any detailed information that would allow reasonable inferences to be drawn, other than the use of malla raschel in the case of 7 other consignments of asparagus, I do not draw any in respect of the Cargo from the carriage of those other consignments.

It may be that KLM’s approach to the absence of other claims was directed to the case advanced through Mr François’ evidence that the use of the mesh to cover the Cargo was the cause of the damage. However, if so, this appears to have been misdirected given Mr François’ apparent failure to have recognised the use of malla raschel on those other consignments and certainly his lack of consideration of that usage in his evidence until cross-examination.