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Applicable treaties

Major air law treaties

To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

Brazil has ratified the following international treaties, implemented in Brazil through the decrees mentioned below:

  • Warsaw Convention of 1929, Decree No. 20,704/1931;
  • Rome Convention of 1952, Decree No. 52,019/1963;
  • Hague Protocol of 1955, Decree No. 56,463/1965;
  • Guadalajara Supplementary Convention of 1961, Decree No. 60,967/1967;
  • Tokyo Convention of 1963, Decree No. 479/1969;
  • Guatemala City Protocol of 1971 was signed but not implemented in Brazil;
  • Montreal Protocols Nos. 1 and 2 of 1975, Decree No. 2,860/1998;
  • Montreal Protocol No. 3 of 1975, Decree No. 22/1979;
  • Montreal Protocol No. 4 of 1975, Decree No. 2,861/1998; and
  • Montreal Convention of 1999, Decree No. 5,910/2006.

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 with higher 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 ignore 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 jurisprudence does not respect any of 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 to 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 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 very 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.

Since the Brazilian Supreme Court decided two cases giving the decision binding effects, recognising the supremacy of the international treaties in case of conflict with the Consumer Protection Code, expressly on the statutes of limitation, the local courts are now applying the two-year rule.

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.

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 but also on the Civil Code. There is no need to prove the negligence in case of passenger injury or death.

In 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).

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.

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 will evaluate and justify on a case-by-case evaluation.

However, the Brazilian Consumer Protection Code would not recognise the partial exclusion of the liability since, as already mentioned, the only way for the carrier to waive liability would be by demonstrating exclusive fault of the consumer or third party.

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.

Third-party actions

Seeking recovery

What are the applicable procedures to seek recovery from another party for contribution or indemnity?

The procedures include a new judicial claim (if the parties are not able to settle the matter out of court). The grounds for this claim are the payment made to a third party, usually due to joint liability, and the evidence that the defendant was originally the party liable for such damages.

When both parties are defendants in the same claim, it is common to have the judge establishing the awards already considering the final amount each party should be liable for. Unfortunately, there are still several cases in which either the court decides each party should pay 50 per cent and file another claim to discuss this division if they believe it is the case, or even have one of the parties paying 100 per cent and then filing a new lawsuit.

Time limits

What time limits apply?

The most common time limit would be the three years of the Civil Code, considering the relationship between the companies potentially involved in such a claim would not be a consumer relationship.

Nevertheless, there are decisions granting insurance companies the same statutes of limitation the passenger originally had for his or her claim against the carrier, when the insurer has indemnified the passenger and is now claiming reimbursement from the carrier.

In this case, the two-year time limit is more common now for international transportation, and the two-year, three-year and five-year time limits are also being discussed, as discussed in question 17.

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

The main source is the Brazilian Consumer Protection Code, according to which all those who did not participate in the consumption relationship and did not contract services but suffered any injury or damage will be considered consumers and the company will be liable for such injuries or damages.

Apart from the consumer legislation, the Brazilian Aeronautical Code also establishes that the carrier is liable for damages to third parties on the ground by the aircraft in flight, on the ground, or by a person injured by an object that falls from the aircraft. The liability limitations are based on the weight of the aircraft, and are not usually enforced before Brazilian courts when the claim is based on the Consumer Protection Code.

Nature and conditions of liability

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

When based on the Brazilian Consumer Protection Code, the liability will always be strict and the law adopts the theory of business risk. For this reason, whoever carries out an activity, whatever it may be, must assume the inherent risks or risks arising therefrom.

For a discussion based on the Brazilian Aeronautical Code or the Brazilian Civil Code, there would be room for a defence arguing the fault-based liability.

Liability limits

Is there any limit of carriers’ liability for ground damage?

The limits on the Brazilian Aeronautical Code would be calculated considering the weight of the aircraft. It is important to mention that they would not be applicable if there is negligence or intent from the carrier or its employees and the limits would likely be disregarded as well if a claim is based on the extension of the protection to consumers established by the Consumer Protection Code.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

For a case involving liability for ground damage, the main options for the carrier’s defence in the local courts are:

  • the victim’s relevant or exclusive fault, as these are causes to reduce or to exclude the liability;
  • absence of causal link between the damages and any action from the carrier;
  • damages resulting from the normal operation of the aircraft following navigation rules; and
  • operation of the aircraft by a third party.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

After 11 September 2001, Brazil published two new pieces of legislation. First, Law No. 10.309/01 states that the country is authorised to assume civil liability to third parties in the event of damage to property and people on the ground caused by terrorist attacks or acts of war against aircraft of Brazilian airlines in Brazil or abroad.

Subsequently, Law No. 10.744/03 clarified that victims need not to be passengers. It extended compensation not only for terrorist attacks, but also for acts of war or related events, and the compensation refers only to bodily injury, illness, invalidity or death, excluding any other damages (moral, honour, affection, freedom, profession, respect for the dead, the psyche, health, name, credit and well-being).

For passengers, and for damages that are not covered by the rules described above, the liability follows the injury or death caused by any other incident or accident, and the carrier will be liable preserving the right to recover damages from the person causing the damages originally.

Nature and conditions of liability

What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?

The nature of air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event does not change significantly from the liability for similar events to passengers in accidents that do not involve an unruly passenger or a terrorist event. It is based mainly on the Consumer Protection Code but also on the Civil Code and there is no need to prove the carrier’s 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, merely the causal link and the damage itself are required for the carrier to be liable.

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

Nevertheless, on this specific topic of nature of liability, the courts still understand the Consumer Protection Code should prevail over the Montreal Convention (international carriage) and the Brazilian Aeronautical Code (domestic carriage).

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

Both the Brazilian Aeronautical Code and the international treaties, such as the Warsaw Convention and the Montreal Convention, are not usually respected by the Brazilian courts on the limitation of damages established in case of such events.

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

International treaties are now in a different position with the decision of the Supreme Court establishing that international treaties will prevail in case of conflict with the Consumer Protection Code, even though this understanding is being applied much more on baggage-related incidents.

So far, the main limitation Brazilian courts already have in place, and more relevant for unruly passengers and terrorist events, is for cases in which 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 in a claim for injury or death caused by an unruly passenger or a terrorist event?

Considering the usual defences for passenger claims and the fact that an unruly passenger or terrorist incident claim would not be much different from such claims, the strategies described in question 14 should be applicable with special attention to the passenger or third parties exclusive fault, as these are causes for the exclusion of the liability.

Consumer protection and passenger rights

Applicable legislation

Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

Brazil has relevant passenger rights and consumer protection oriented laws and regulations. Apart from the Consumer Protection Code itself, which creates a system applicable to all kinds of industries relevant to air transportation, there are also regulations related to passengers with special needs (or reduced mobility), assistance for passengers in cases of delays, cancellations, denied boarding, call centre and sales services, cancellation of tickets, reimbursement or changes in itinerary.

To focus on the most relevant pieces, the Brazilian Civil Aviation Agency’s (ANAC’s) Resolution 400, published in 2016, focuses on protecting passengers in case of delays, cancellations or denied boarding. It guarantees alternatives such as endorsement for a different carrier, full reimbursement, tickets for the next available flight, fines to be paid directly to the passenger in the case of denied boarding and assistance (meals, communications and eventually hotel) for passengers during the disruption.

It also establishes tight deadlines (usually seven days) for reimbursement of cancelled tickets and indemnifications for baggage claims; enables passengers to correct the spelling of their names on tickets up until check-in time; to inform carriers they are not using a leg on domestic flights but want the next ones not to be cancelled; and creates rules for the customer services and call centres.

For passengers with special needs, ANAC’s Resolution 280 grants rights such as discounted tickets for a companion in specific cases, assistance to be provided from the check-in to the airport’s public area after arrival, priority boarding, service dogs or extra allowance for transportation of equipment.

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

Governmental entities providing services to carriers such as airport authorities are usually treated as private companies in terms of liability and evaluation of damages and most of the discussions are based on the Civil Code. The main difference would be in terms of the nature of the liability, as explained in question 30.

There are specific regulations to each one of the possible services such as air traffic control, airport authorities, and suchlike, but the principles for liability claims are those established by the Civil Code.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

Based on a specific provision of the federal Constitution, the government’s liability is strict. Based on that provision, the government is liable for damages caused by its agents, and the existence of intent or relevant negligence is irrelevant for the liability itself, being relevant just to evaluate the possibility of the government recovering such damages from the agent.

Liability limits

Are there any limitations to seeking recovery from the government entity?

The most relevant limitation is not in the amount of the damages itself, but on the payment mechanism, which often involves a long-term payment plan respecting a chronological order.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

The system for criminal responsibility in Brazil is based on the idea that a person is usually criminally responsible for a crime, not a company. The main exception is the evaluation of environmental crimes, in which companies can be prosecuted as responsible for the crimes.

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

A decision in a criminal proceeding against the carrier’s employee or representative can be used as grounds for a civil request for indemnification.

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

In a criminal proceeding, a minimum amount of indemnification might be established but such amount needs to be collected through a civil claim.

Effect of carrier's conditions of carriage and tariffs

Liability

What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

The consumer protection system in Brazil is based on the right of proper information. One of the main topics of any discussion between a consumer and a service provider in court will usually be the lack of proper information on any aspect of the service.

The conditions of carriage are binding on the carrier, and if they are clear and public, they could also be binding on the passenger.

Most courts will give the conditions of carriage effect if they are 100 per cent compliant with local regulation, and clear and accessible to passengers. But if, for some reason, the passengers challenge the conditions themselves, their validity before the local regulation or the availability and access to the information, this could change.

Damages

Damage recovery

What damages are recoverable for the personal injury of a passenger?

For personal injury cases, the recoverable damages are: property damages (which includes medical), ceasing profits (concerning the amount that passenger did not earn), moral damages and aesthetic damages (physical deformity that should be compensated, which is not the same as moral damages, since it is specifically related to physical integrity).

The limitation for international flights of 100,000 SDR comes from the Montreal Convention. For domestic flights, the limitation derives from the Brazilian Aeronautical Code, established on a local index that currently would be about £16,000.

Punitive damages are not allowed in accordance with Brazilian law, but several courts apply them currently while they ignore the limitations above considering the full reparability principle mainly highlighted in the Consumer Protection Code.

If the passenger is able to request compensation, he or she is entitled to file the claim and would be the beneficiary. If the passenger has no conditions to file the claim or for some reason does not have sufficient mental capacity, his or her heirs stand to claim and would be the beneficiaries.

What damages are recoverable for the death of a passenger?

For the death of a passenger, the rules are similar to the ones described in question 36: property damages, ceasing profits and moral damages may be compensated by the carrier. The main difference is that family members would stand to claim.

Each family or group of families can appoint their own representatives to file claims against the carrier and the limitation is similar to the one described in question 36. The amount can be exceeded in the case of intent or negligence.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

Investigations of air accidents are conducted by the Aeronautical Accidents Investigation and Prevention Centre (CENIPA).

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

All the information regarding the accident investigation (reports, flight data recorder information and cockpit voice recordings) is confidential until the end of the investigation by CENIPA. According to Brazilian law, this is an independent procedure, unconnected with criminal or civil investigation.

CENIPA’s final report is public and disclosed on its website. Even though the main goal is the prevention of future accidents, the report may be used in litigation matters.

Relevant post-accident assistance laws

Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

The rules for the provision of assistance to passengers and their family after an accident are not established on a specific regulation, but are actually a sum of the provisions of the Civil Code, the Consumer Protection Code and the Aeronautical Code, as well as international treaties and the Civil Aviation Agency’s regulation.

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

As a general rule for operating in Brazil, any person or company exploring an aircraft has the legal duty to hire insurance covering damages to passengers, crew, the aircraft itself and damages on the ground.

The amount of the insurance policy is calculated considering the liability limitations established in the Aeronautical Code and the international treaties to which Brazil is a party. The issuance or renewal of the airworthiness certificate depends on the proof of a valid insurance policy.

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

Claims between passengers and carriers can be filed before civil courts or small claims courts.

The vast majority of passenger claims in Brazil are filed before the small claims courts, as they are less than the limit of roughly £7,000. A hearing is usually scheduled for both a settlement discussion and evidence to be collected and a decision is issued on the same act or on a different date. From that decision, both parties have the right to appeal to a court of appeals. After the decision by the court of appeals, only appeals to the Supreme Court, arguing conflicts with the Constitution, may be filed.

Usually cases involving higher amounts are filed before civil courts. Accidents, disputes between companies, relevant incidents or significant baggage losses fall into this group. The main difference, apart from the amount involved, is that the procedure is more formal, takes longer and there is one more appeal available, to the Superior Court of Justice to discuss conflicts with federal law.

There is also room for administrative litigation if a passenger files a claim before the Consumer Protection Agency (Procon), but in such cases the intention is to reach a settlement. Procon can only issue fines against carriers for non-compliance with the law and regulations, and cannot grant awards in favour of passengers.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

Local legislation limits access and does not facilitate, as other jurisdictions do, the use of evidence that might belong to or be in the possession of the adverse party. An injunction or court order to access computers, files or to have the adverse party delivering correspondence, drafts or memos is not a provision in local law and is not usual for local courts.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

There are measures to prevent the risk of an evidence to become unachievable, and there are mechanisms to produce evidence and have the official records before a lawsuit is filed.

In criminal cases, if there is any risk of spoliation of evidence, the defendants may be arrested preventively and the documents related to the case can be sent to a bona fide depositary until the end of the pre-trial phase.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

For civil court cases, the losing party is ordered to pay an amount referring to attorney fees to the adverse counsel and refund court costs paid by the adverse party. The contractual attorney fees are usually not recoverable.

For small claims court cases, there are usually no attorney fees included in the award.

Judgments and settlement

Pre and post-judgment Interest

Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?

Awards usually include adjustment for inflation purposes using an official index plus 1 per cent interest per month.

Settlements

Is court approval required for settlements?

After a lawsuit is filed, yes. The judge needs to approve the settlement in order to close the case.

What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?

Yes, if there is enough evidence confirming the damage, the likelihood of an unfavourable decision and confirming the settlement was actually a way to reduce costs.

Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?

It is always important to evaluate the tax treatment on awards or settlements, since there are payments that might require retention of taxes depending on the nature of the payment.