The Brazilian Superior Tribunal of Justice has decided that the Brazilian Consumer Code of 1990 5-year limitation period potentially applies to surface damage claims arising out of aviation accidents.

In October 1996, a TAM Fokker 100, performing flight 402 from São Paulo (Congonhas) airport to Rio de Janeiro (Santos Dumont) airport, crashed in a heavily populated area soon after taking off, killing a total of 99 people (all those on board plus three people on the ground).

In May 2003 (nearly 7 years after the event), a person who lived close to the accident site started proceedings in a São Paulo State Court seeking moral damages from TAM.

The claimant alleged that she had been psychologically affected due to the accident and was unable to undertake ordinary domestic activities after seeing several badly burnt and charred bodies and witnessing the general destruction in her neighbourhood.

The First Instance court held that the claim was time-barred and applied the 2-year limitation period contained in the Brazilian Aeronautical Code of 1986.

A Second Instance ruling held that the claim was not yet time-barred because the 20-year limitation period contained in the Brazilian Civil Code of 1916 was applicable. TAM appealed this decision to the Superior Tribunal of Justice (the Superior Tribunal).

The Superior Tribunal found that the claimant, as a bystander, should be treated as if she was a consumer, because she had been affected by the execution of TAM’s services. In accordance with Article 17 of the Consumer Code, the Superior Tribunal held that the victims of an event, such as the ground victims or affected bystanders of an aviation accident, can be treated as consumers and that therefore a 5-year limitation period applies.

Pursuant to previous Superior Tribunal decisions, when there is a conflict between the Civil Code and the Consumer Code, the latter should be applied due to its more specialist content. The Second Instance decision was therefore reversed and the Superior Tribunal found that the claim was time barred.

The Superior Tribunal then considered the conflict between the Consumer Code and the Aeronautical Code, both specialist pieces of legislation which address the issue of air carriers’ liability. While the Aeronautical Code is specialist because of the type of service it governs (carriage by air), the Consumer Code is specialist because of the special contractual relationships it seeks to govern (consumer relationships).

In order to decide which regime should prevail, the Superior Tribunal was guided by the Brazilian Constitution of 1988, which came into force after the Aeronautical Code.

The Superior Tribunal ruled that the Consumer Code, by protecting the weaker party (i.e. the consumer), is more in line with the Constitution, which has, as one of its main principles, the protection of “human dignity”.

The Superior Tribunal also commented that the Consumer Code has been rightly and consistently applied to lost baggage or flight delay claims. Therefore, it appears that the Consumer Code’s 5-year limitation period applies to aviation claims filed by passengers or bystanders, which arise out of domestic or international flights. This decision serves to reinforce the consumer focus in carriage by air claims in Brazil, notwithstanding the existence of specific aviation legislation designed to govern such matters.