Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

The main sources of law for a domestic carriage case would be the Brazilian Aeronautical Code, the Civil Code and the Brazilian Consumer Protection Code. There might be some influence of the Federal Constitution itself, as well as Civil Aviation Agency regulations.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

The nature of air carrier’s liability is based mainly on the Consumer Protection Code and the Civil Code, but also, after the precedent from Brazilian Supreme Court, on the Montreal Convention too. There is no need to prove the negligence in case of passenger injury or death.

In the case of an accident or incident during the transportation and in case of damages (even if there is no injury or death), the carrier will be liable. In other words, regardless of the action taken, just the causal link and the damage itself are enough for the carrier to be liable.

However, the Brazilian Aeronautical Code, currently under review, establishes the air carrier’s liability as fault-based. This means the carrier’s fault must be proved by the passenger in order to claim for damages.

Nevertheless, courts understand the Consumer Protection Code should prevail over the Warsaw Convention (international carriage) and the Brazilian Aeronautical Code (domestic carriage).

On the other hand, even If the Consumer Protection Code prevails, there are some hypotheses of liability exclusion regarding:

  • injury or death that resulted entirely on passenger health condition;
  • passenger exclusively fault;
  • fortuitous event (Act of God) or force majeure; and
  • third-party fault.
Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

Both the Brazilian Aeronautical Code and the international treaties, such as the Warsaw Convention or the Montreal Convention, are not usually respected by the Brazilian courts on the limitation of damages established for injury or death.

The Brazilian Aeronautical Code is under review and there is an expectation that the new limitations, updated and more connected to international treaties, should be respected, if the current version of the new Code is approved.

The international treaties are now in a different position with the decision to be published, with binding effects, establishing that the international treaties will prevail in the case of any conflict with the Consumer Protection Code.

So far, the main limitation Brazilian courts already have in place is for cases in which the damage was a consequence of a passenger’s exclusive fault or a third party’s exclusive fault. Indisputable evidence is needed to confirm those cases, but it is possible to exclude liability if the carrier is able to do so.

Main defences

What are the main defences available to the air carrier?

As litigation in Brazil usually involves property and moral (pain and suffering) damages, the main options for defence in passenger claims for carriers in the local courts are:

  • statutes of limitation, trying to enforce the two-year period recently recognised by the Supreme Court as it is common to have claims filed much later than that;
  • passenger or third parties exclusive fault, as these are reasons to waive liability;
  • absence of causal link between the damages and any action from the carrier;
  • absence of damages to be indemnified, as Brazilian passengers are used to claim for indemnification related to facts that are not under the ‘accident’ and the ‘bodily injury’ concepts; and
  • enforcement of the limitations, mainly using the latest decisions of the Supreme Court.
Damages

Is the air carrier’s liability for damages joint and several?

Yes, according to the Brazilian Consumer Protection Code, when the incident has more than one perpetrator all of them will be jointly and severally liable for the damages caused.

Both the Brazilian Aeronautical Code and the Civil Code adopt the same concept, establishing that when the passenger has a contract with one carrier but is transported by another, the passenger or his or her successors may have a claim against both contractual and the actual carriers, and both will be jointly and severally liable.

It is important to mention that, under Brazilian law, the carrier paying indemnification to a passenger will have the right to claim reimbursement of such expenses from another carrier, if the other carrier was the one liable for the incident or accident and for the damages.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

Once more, Brazil has different approaches to different pieces of legislation for this topic. The Civil Code established the idea of ‘concurring fault’, which happens when the perpetrator and the victim concomitantly collaborate for the injurious result (in this case either injury or death), implying a proportional reduction of the amount to be paid as indemnification.

This means that whenever the victim has been guilty of participating in a harmful event, his or her compensation will be fixed taking into account the seriousness of his or her guilt as compared with that of the person who caused the damage.

There is no express rule on the calculation of apportioning fault, so this is something the judge shall evaluate and justify on a case-by-case evaluation.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The basic rule for statutes of limitation on a passenger claim against a carrier would generally be five years, based on the Consumer Protection Code. This is what the courts relied on the most until 2017, and is something that changed significantly for international flights after the Supreme Court recognised that international treaties should prevail in case of conflict with the Consumer Protection Code.

From that moment on, since the decision has binding effects, the two years from the Warsaw or Montreal system was enforced for international transportation.

For domestic transportation, the Brazilian Aeronautical Code established the same two years from the international treaties but the enforcement of this rule is not as strong as it is now for international transportation cases.

This could change when the new Aeronautical Code is approved and published, since a new piece of legislation would bring new arguments to enforce such a period.

The Civil Code establishes a three-year period, that is less applied than the two-year period for passenger claims. In this case, the period should be counted from the violation of the law, or when the damage takes place.

For the Brazilian Aeronautical Code, the period of two years counts from the date on which the damage took place, the date of arrival or the day on which the aircraft was supposed to arrive at the point of destination.

For the Brazilian Consumer Protection Code, the period of five years initiates from the knowledge of the damage and its authorship.

In all cases, the date the courts will use to determine if a claim is within the time limits is the date on which the claim was filed.