OVERVIEW
For the first time since taking effect under English Law, the High Court in Wealmoor Ltd v KLM [2025] EWHC 1706 (Comm) considered the test for an "event" causing damage under Article 18(1) of the Montreal Convention 1999 ("Convention") in an air cargo claim. The Court held that a cargo claimant need not show that the cargo was damaged by anything unusual, unexpected or fortuitous in order to successfully claim against the carrier.
The Facts
The claim concerned a cargo of fresh green asparagus transported by air from Lima to London ("Cargo") on board KLM's aircraft. It was common ground by the time of trial that the Cargo had been delivered to KLM in good condition and re-delivered to Wealmoor in bad condition.
The Cargo was booked to be carried at a temperature of between 2-8C in accordance with KLM's Fresh 2 product for perishable goods. However, between its removal from Lima Airport for loading on board the aircraft until its arrival in Amsterdam, the Cargo was exposed to high ambient temperatures for over 7 hours.
Wealmoor claimed that this exposure to high temperatures was the cause of the damage and constituted an "event" under Article 18(1) of the Convention. KLM denied that this was the cause of the damage, but in any event disputed that mere exposure to high temperatures could constitute an "event" under the Convention where: (i) there was nothing external which caused the damage; and (ii) exposure to high temperatures was not 'fortuitous'.
Articles 18(1) of the Montreal Convention
Under Article 18(1) of the Convention, a carrier is liable for damage to cargo "upon condition only that the event which caused the damage so sustained took place during the carriage by air". Should the claimant prove that there was such an 'event' causing damage, the carrier can escape liability if it can prove that the damage resulted from one of the exceptions in Article 18(2), in this case inherent vice or defective packing.
The principal dispute between the parties with respect to the meaning of 'event' turned on whether the event had to be something that was 'fortuitous', or whether it was simply any happening causing the damage.
David Elvin KC (sitting as a deputy High Court Judge) considered the authorities on the interpretation of an "accident" under Article 17 of the Convention (concerning injury and death), along with decisions from different jurisdictions on the meaning of 'event' under Article 18, and held as follows [105]:
- An event is something that caused damage to be sustained by the
cargo during its carriage by air and is additional, and external
to, that damage;
- As a matter of language, "event" is wider in meaning
than "accident" which in Article 17 is intended to be
more restrictive of liability;
- "Event" should not be equated with
"accident" since the language is deliberately different
and liability for cargo under Article 18 is intended to be strict
if damage is sustained during carriage by air;
- "Event" means "something which happens at a
particular time, at a particular place, in a particular
way".
- An event does not have to be fortuitous, since an event can
include deliberate actions on the part of the carrier. To do so
would bring it closer to the meaning of "accident" in
Article 17 of the Convention.
- It follows that Article 18(1) is not directed to ascertaining whether something occurred that was "unusual or unexpected". Instead, the focus is simply on whether there was an event or happening which caused the damage.
In the process, the Judge departed from the approach taken by HHJ Hallgarten QC in Winchester Fruit Ltd v American Airlines [2002] Lloyd's Rep. 265 (in the context of an air cargo claim under the similarly worded Warsaw Convention), where the judge had held that the 'occurrence' had to be unusual or unexpected. David Elvin KC considered that the judge there erroneously conflated the test for cargo claims and personal injury under the Warsaw Convention.
In the present case, the Judge found that there were multiple 'events' which caused the damage, including the turning off of the refrigeration by KLM and allowing the cargo hold temperature to increase (e.g. by leaving open the cargo door during layovers). KLM was accordingly liable for the damage under Article 18(1) of the Convention.
Inherent Vice and Defective Packing
The Judge rejected KLM's defences under Article 18(2) and in the process gave a useful restatement of principles concerning inherent vice and defective packing.
The Judge dismissed KLM's inherent vice defence, noting that the question of whether this defence is applicable must be assessed by reference to the nature of the service contracted for. Since the Cargo ought to have been refrigerated, KLM could not rely upon the Cargo's deterioration in hot weather as 'inherent vice'.
As for defective packing, the Judge rejected KLM's defence that it was the wrapping of the Cargo which caused the damage. Along with dismissing this defence on the facts, the Judge noted that: (i) if the goods were packed in a way which complied with normal practice (which they were here), or (ii) where the nature of the packaging was obvious to the carrier on receipt, but it was nevertheless prepared to take goods without complaint (as was the case here), the carrier should not be able to rely on this defence.
Conclusion
This judgment provides much needed clarity on the relevant test to be applied for cargo claims by air, making clear that a cargo claimant need not prove that the event causing damage was 'unusual or unexpected'. This judgment also provides useful guidance on the applicability of the defences of inherent vice and defective packing in cargo claims more generally.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
