Wealmoor Limited v K.L.M Cia Real Holandesa De Aviacion & Anor

Article 18(1) of the Montreal Convention 1999 imposes strict liability where an event causing cargo damage occurs during carriage by air, subject to the exceptions in article 18(2).

An event is something that happens, causes damage, and is additional and external to the damage itself. It need not be unusual, unexpected or fortuitous. The wider expression “event” must not be equated with the narrower “accident” used in article 17.

Where a carrier contracts to provide temperature-controlled carriage, an ambiguous exception for ramp handling does not ordinarily extend to periods after loading, during descent or while cargo remains on the ground at intermediate stops. The carrier bears the legal burden of proving an applicable article 18(2) exception.

Wealmoor claimed damages for 500 boxes of asparagus carried by KLM from Lima to London under an air waybill providing for KLM’s Fresh 2 temperature-controlled service. The cargo was in sound condition when delivered to KLM’s ground handlers at Lima.

During carriage via Quito and Miami, refrigeration was not maintained during descent and while the aircraft was on the ground. The cargo was exposed to temperatures above the contractual 2°C–8°C range and was damaged by respiration. KLM relied on the absence of an article 18(1) event, inherent defect or vice, and defective packing through the use of malla raschel mesh.

The central issues were the meaning of “event” in article 18(1), the contractual scope of Fresh 2, causation, and the article 18(2) exceptions.

1. Liability under article 18(1). The claim fell within article 18(1) of the Montreal Convention 1999. An event is something which causes damage during carriage by air and is additional and external to the damage. It is wider than “accident” in article 17 and need not be unusual, unexpected or fortuitous. The approach in Winchester Fruit Ltd v American Airlines Inc [2002] 2 Lloyds Rep. 265, insofar as it equated occurrence with accident and required a separate occurrence distinct from the relevant damage in that restrictive sense, was not followed.
2. Contractual temperature obligation. Fresh 2 promised temperature-controlled warehouse, road and air transportation between 2°C and 8°C, subject only to exposure to ambient temperatures during warehouse and ramp handling. “Ramp handling” did not include cargo sitting in the hold after loading, aircraft descent, or time on the ground at intermediate stops. KLM therefore failed to comply with the agreed service by turning off refrigeration during descent and ground periods.
3. Causation. The exposure of the asparagus to high temperatures at Lima, Quito and Miami was an event or series of events during carriage by air. It increased respiration and caused irreversible deterioration. The agreed evidence established that the cargo was damaged by arrival in Amsterdam. The principal cause was KLM’s failure to maintain the agreed temperature conditions, not the malla raschel mesh.
4. Article 18(2). KLM bore the legal burden of proving an exception. Inherent vice was not established because the asparagus was sound when delivered to KLM and carriage at 2°C–8°C was standard commercial practice. Defective packing was also not established: the mesh was commonly used for pest control, was permeable, and was not shown to have caused or contributed to the damage.
5. Disposition. KLM was liable for the cargo damage. Damages were assessed at £18,442. Decisions on costs, permission to appeal and consequential matters were reserved.