During the summer of 2025, the High Court delivered a noteworthy judgment on cargo liability under the Montreal Convention 1999 in the case of Wealmoor Ltd v KLM CIA Real Holandesa De Aviacion & Anor1, clarifying for the first time in England and Wales what qualifies as an “event” causing damage to cargo during carriage by air under the Montreal Convention 1999. The judgment also provided guidance on the "inherent vice" and "defective packing" defences available to carriers under the Montreal Convention.
Background
The dispute concerned a claim for damage to a consignment of 500 boxes of fresh green asparagus which were carried by KLM from Lima to London in January 2021. The consignment was carried on behalf of Wealmoor, the consignee and a major importer and supplier of fresh produce to supermarkets and retailers in the UK.
The shipment was booked to be carried under the airline's "temperature controlled" or "Fresh 2" service under which perishable goods are stored and transported within a temperature range of +2°C to +8°C. The "Fresh 2" service was described on KLM's website as follows:
"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 to +8°C
- Warehouse storage, road and air transportation at temperatures between +2°C to +8°C"
The consignment was carried by aircraft between Lima and Amsterdam, routed via Quito and Miami, and thereafter carried by refrigerated truck from Amsterdam to London. It was agreed between the parties that the consignment had been delivered to KLM's agents in Lima in good condition and was delivered to Wealmoor's agents in London in bad condition, the issue being what caused the damage, particularly as there were eight other shipments of asparagus on the same flight in respect of which no claims were made.
Wealmoor subsequently brought a claim against KLM for the damaged asparagus under Article 18(1) of the Montreal Convention 1999 (the "Convention"). A carrier is liable for damage to cargo under Article 18(1) “upon condition only that the event which caused the damage so sustained took place during the carriage by air”. KLM disputed liability on the basis that there was no "event" during the carriage by air for the purposes of Article 18(1).
KLM also argued that, even if it were liable under Article 18(1), it should be excused from liability as, within the meaning of Article 18(2), the damage was caused by:
- An inherent defect, quality or vice of the cargo, on the basis the asparagus' naturally high respiration rate and exposure to temperatures within the prescribed threshold caused the damage
- The defective packing of the cargo performed by a person other than KLM, its servants or agents, on the basis that the "malla raschel" or mesh wrapping, applied to the asparagus prior to acceptance of the cargo by KLM's ground handling agents, caused or exacerbated the damage
KLM argued in the alternative that the asparagus was carried in accordance with the terms and conditions of the "Fresh 2" service on the basis that the asparagus was only exposed to ambient temperatures "during warehouse and ramp handling".
Judgment
Meaning of 'event'
In coming to his decision, the Judge, David Elvin KC, considered the authorities on the meaning of "accident" under Article 17 of the Convention2, the meaning of "occurrence" under Article 18 of the Warsaw Convention 19293, and the ordinary meaning of "event".
The Judge differentiated the meaning of "event" under Article 18 from the more restrictive "accident" under Article 17, considering "event" to have a broader meaning. The Judge found that an "event" must cause the damage and be external to that damage (i.e., more than the mere internal deterioration of the cargo) and that an "event" need not be fortuitous nor "unusual or unexpected". It simply requires an "event or happening which caused the damage and which took place during the carriage by air."
The Judge found that KLM's exposure of the asparagus to ambient temperatures during ramp handling in Lima and during the stopovers in Quito and Miami, together with the turning off of the aircraft's cargo hold refrigeration during the descent into Quito, Miami and Amsterdam, amounted to an "event" under Article 18(1) and found KLM liable for these reasons.
Inherent vice and defective packing defence
The Judge also considered KLM's "inherent vice" defence under Article 18(2)(a) of the Convention and the "defective packing" defence under Article 18(2)(b).
With regard to "inherent vice", the Judge found that "whether there is an inherent defect, quality or vice of the cargo in issue must be assessed by reference to the nature of the service contracted for".4 Wealmoor (or its agents) had contracted for a refrigerated service within a temperature range of +2°C to +8°C and "there [was] no evidence that the use of that range (if properly observed) gives rise to damage". The Judge found that KLM could not rely on the "inherent vice" defence since the damage was caused by the exposure to ambient temperatures rather than from the contracted carriage within temperatures of +2°C to +8°C.
As for the "defective packing", the Judge found that the "malla raschel" wrapping applied to the asparagus was common practice in the shipment of asparagus from Peru (particularly for shipments routed through the US). Having considered expert evidence, he found that the packing was neither the cause of the damage nor did it contribute to the damage. As such, the Judge did not consider the packing to be "defective".
The "Fresh 2" service and "ramp handling"
The Judge then turned to KLM's "Fresh 2" cargo service and what was covered by the description of the service on KLM's website, in particular what was meant by "warehouse and ramp handling" during which KLM said the cargo can be exposed to ambient temperatures.
KLM sought to argue that "warehouse and ramp handling" encompassed all ground handling time, whether in relation to a specific consignment or all operations for a flight. The Judge, opposing KLM, said that "[i]t is not in accordance with the ordinary meaning of the phrase to include anything beyond the hand[l]ing of the goods ready for loading into the aircraft and their loading".
The Judge also gave example of what he did not consider to be included, including any time the cargo is sitting on the ground in the cargo hold, once it has been loaded; any time the aircraft is in the air but descending towards one of the stops; and, following descent, any time during its carriage that the cargo is sitting on the ground during a stopover.
The Judge suggested that KLM (and carriers generally) could have very easily made clear what was covered by a particular service or offering, "even if it did significantly qualify the overall description of "temperature controlled"".
What it means and why it matters
- Lower threshold for potential claimants… Shippers or consignees need only show a causative "event or happening" during carriage; there is no need to characterise it as unusual. That shifts focus from debating “fortuity” to linking operational events (e.g., cooling gaps, apron delays, door‑open time) and their causal links to damage.
- A greater onus on air carriers and ground handlers. It will now be even more important for carriers and their agents to be able to account for the cargo and to ensure continuous management of the cargo's environment, not only to prevent damage but also to be able to defend claims with evidence of the carriage conditions.
Records should be kept of any necessary exposures or deviations to the agreed parameters, particularly to counter any deviations detected by temperature or environment loggers attached by the shipper which may not be accurate.
- Temperature‑controlled commitments under the microscope.Where a +2°C to +8°C product is offered to shippers, it appears the Court now expects credible operational delivery and robust records of the conditions of shipment. The decision reduces the circumstances in which parties can rely on “industry practice” to excuse uncontrolled temperature excursions.
- Narrower scope for carrier defences. The "inherent vice" defence under Article 18(2)(a) of the Convention is not as simple as relying on the fragile properties of the cargo; carriers must prove that damage was not caused by anything outside of the agreed carriage parameters. It also appears that the "defective packing" defence under Article 18(2)(b) of the Convention will be difficult to uphold where packaging is standard and is (or should be) obvious to the carrier on acceptance of the cargo.
- Clarity from carriers in cargo services. Ensure that there is absolute clarity with the shipper when cargo is accepted, with disclaimers about cargo sensitivities and what is guaranteed within a particular cargo service. This may not prevent liability from being established if there is an "event" under Article 18(1) but may entitle the carrier to rely on the defences under Article 18(2) if, for example, the damage arises from something typical of the particular service booked by the shipper.
[1] [2025] EWHC 1706 (Comm); [2025] WLR(D) 380
[2] Article 17 concerns carrier liability for the bodily injury or death of passengers, and an "accident" requires there to be an unusual or unexpected event or happening that is external to the passenger.
[3] The Warsaw Convention 1929 preceded the Montreal Convention 1999
[4] The Albacora [1996] 2 Lloyd's Rep 53
