[2025] EWHC 1706 (Comm)

Fecha: 11-Jul-2025

The dispute before the Court

The dispute before the Court.

82.

There is considerable common ground between the parties, which I will refer to later in this judgment. In that context, the issues for my decision are:

(1)

What is meant by “an event causing damage” within article 18(1) of the Convention and where the burden of proof lies in respect of that issue;

(2)

How prima facie liability under article 18(1) may be avoided by the application of one or more exceptions under article 18(2);

(3)

Given the undisputed damaged state of the asparagus by the time of its arrival in Amsterdam, was there an event between the removal of the asparagus from the warehouse in Lima to its arrival in Amsterdam which caused that damage;

(4)

What were the terms of the contract of carriage and, in particular, what was the extent of the obligation under KLM’s “Fresh 2” terms for the carriage of fruit and vegetables;

(5)

If I find that there was an event causing damage within article 18(1) whether any of the article 18(2) exceptions apply given that it is common ground that -

The damage was caused by the extent of the deterioration in the quality of the asparagus as a result of respiration;

A critical factor in deterioration due to respiration in asparagus is the temperature of the asparagus, it also being common ground that keeping the asparagus at between 2 and 8 degrees would have inhibited respiration sufficiently so that it would have been of merchantable quality on its arrival at its destination;

The pallet on which the cartons of asparagus was placed was covered with malla raschel mesh covering with a 90% weave, which Mr Trylesinski states means the mesh provides 90% shade coverage.

(6)

If I find there is liability on KLM’s part, whether the quantum of damage claimed has been established.