International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Brazil has ratified and implemented both the Warsaw Convention and the Montreal Convention and the local courts interpret their similar liability provisions in the same way.

The only relevant difference comes from the fact that since the enforcement of Warsaw was always a challenge before Brazilian courts, Montreal is more accepted for being more recent and bringing higher indemnity limits.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

Brazil has several sources for courts to consider when it comes to carrier liability for passenger injury or death. The main sources are the Federal Constitution, the Civil Code, the Brazilian Aeronautical Code, the Consumer Protection Code, the International Treaties and the Civil Aviation Agency’s regulations.

Even though the Consumer Protection Code is usually the main source, which was always a reason for courts to disregard some of the Warsaw and Montreal Conventions provisions, in 2017, the Brazilian Supreme Court decided two different cases establishing a new binding position recognising the supremacy of the international treaties in case of conflict with the Consumer Protection Code. Since then, Brazilian courts have started to apply the Montreal Convention limitations without relevant discussion for claims involving baggage loss and started recognising the two-year statute of limitation rule for international flights. The challenges carriers still face before Brazilian courts are now more connected to moral damages, which were not included in the Supreme Court decision and are still a relevant part of the awards paid in the country.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

Carriers are companies that operate commercial air transportation of passengers, goods or mail, according to the Brazilian civil aviation regulation. This concept does not extend to ground handling agents and other service providers.

To evaluate if a carriage is ‘successive carriage’ for purposes of article 1(3) of the Montreal Convention, the most relevant aspect is the intention of the parties to have a single transportation operation, even if formalised in more than one contract.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

This is one of the aspects in which the Brazilian courts are still far removed from most countries applying the Warsaw or Montreal Conventions. Local main jurisprudence does not consider those terms as a condition for air carrier liability, which means the absence of an accident or a bodily injury is not a bar to passengers receiving damages from carriers.

Even though the recent decisions from the Supreme Court are bringing Brazilian courts closer to the international framework, several aspects such as this one are still a challenge for carriers in Brazil.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

Owing to the current status of the Consumer Protection Code as the main source in the vast majority of cases judged, courts in Brazil are not likely to discuss the ‘no negligence’ defence. Brazilian law establishes the objective standard for liability and the absence of negligence does not exclude it.

The Consumer Protection Code creates a system in which the relevant aspects are the existence of the damage and the causal link between damage and act. The same applies to the ‘all reasonable measures’ defence, as it is commonly used as a way to mitigate liability and reduce the amounts of indemnification, but not as a way to avoid liability.

Following the same rationale, the wilful misconduct would not be the main reason for the existence of liability, but could increase the exposure or be considered as a reason to incur indemnification.

Brazilian legislation currently establishes a system with limitations on carrier liability on domestic flights, and the limitation is excluded in the case of ‘wilful misconduct’ of the carrier or its employees. With different amounts from the international treaties and disregarded by most courts, that legislation is currently under review by the congress.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

In the case of an accident, the most common way of advance payment is a preventive measure granted by a judge to protect a deceased passenger’s family. Even though there is no exact description in the Aeronautical Code of the standard payment, courts are likely to consider how relevant was the contribution of the deceased to the family’s income, what are the current ordinary expenses of the family and the impact of the event on the maintenance of such expenses.

The Brazilian Aeronautical Code establishes a 60-day procedure for the extrajudicial payment of indemnifications, but owing to the lack of certainty on the amounts, this procedure is rarely applied and usually there is no automatic advance payment for every injured passenger.

Occasionally, similar preventive measures are issued for injured passengers following the same rationale.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Brazilian courts do not have any record of excluding the jurisdictions set forth in article 33 of the Montreal Convention or in article 28 of the Warsaw Convention.

Even though the most frequent practice in Brazil is filing the lawsuit in the domicile of the passenger, following the rule of the Consumer Protection Code and similar to the ‘fifth jurisdiction’ created by the Montreal Convention, any of the options of international treaties before Brazilian courts are usually accepted.

The forum non conveniens doctrine is not usually applied by the local courts. The majority of the Brazilian jurisprudence was built upon the idea that there are several options of jurisdiction and the choice of one of them must be respected.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

This was, until 2017, a complicated discussion as most courts usually applied the five-year statute of limitation from the Consumer Protection Code, even though some decisions from the Supreme Court were already aligned with the two-year period.

As the Brazilian Supreme Court has determined the prevalence of the Montreal Convention in light of the Consumer Protection Code, in cases involving air transportation contracts, the international rules are being observed to a great extent by Brazilian courts.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

The Brazilian Consumer Protection Code establishes a joint liability system when more than one company is part of the chain of providers. The idea is that the consumer is not responsible for the adjustments between the companies and can sue all of them or any of them, at his or her sole discretion.

Even though local courts would recognise the liability of the code-sharing carrier (as opposed to the contracting carrier) if the actual carrier is sued directly, they would also grant awards against the contractual carrier protecting its rights to collect payment from the actual carrier in a different claim.