Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 11
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 Convention[2], the meaning of
“occurrence” under Article 18 of the Warsaw Convention
1929[3], 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.
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
O 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.
O 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.
O 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.
O 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.
KLM sought to argue that “warehouse and ramp
handling” encompassed all ground handling time,
whether in relation to a specific consignment or all
Aviation Anthology 2026 - Volume I
DAC Beachcroft
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