Brazil is signatory of International Conventions and, among them, we have the Montreal Convention, enacted by the Decree 5,910/2006, which regulates the limitation of liability of the international air transport, whose applicability is still controversial on Brazilian Courts.
The Convention is regulated by our Federal Constitution of 1988 (CF/88), on its article 5th, 2nd par. and article 7th of our Consumer Defense Code (CDC). Such art. 5th, 2nd par., is applicable to the basic rights and guarantees not foreseen in the Convention and the article 178 regulates the inclusion of Treaties and Conventions in the Legal System.
The application of the Convention is controversial, considering the status of the Convention in the legal system. Some legal specialists understand that it has the status of a special ordinary law but is above general ordinary laws such as CDC and the Civil Code (CC). In this regard, in conflicts involving international air transports the Convention shall be applied.
Generally, in conflicts involving international air transport of people, CDC has been applied and, in case of goods, CC or even CDC. To conflicts involving international air transports there are already some decisions applying the Convention in disregard of other laws. In recourse of the insurance company to the transport company, still prevails the applicability of CDC and/or CC in disregard to the Convention.
The current discussion is about the regularity the application of CDC to comercial relationship. If the importing company is not the end user of the goods, is it possible for the insurance company to acquire the recourse right through the incorporation of the rights of the importing company, also acquire different rights of those which belong to the insured company? The major court decisions understand that this relation is of consumer nature and, therefore, regulated by CDC, while a small part of the decisions applies the CC, and there are even some decision favorable to the applicability of the Convention. A recent decision from the São Paulo Court has rejected the applicability of CDC and CC in a lawsuit filed by an importing company against the transport company and applied the Convention.
The highest Courts of the country are controversial about the subject: the Superior Court (STJ) understands that CDC and/or CC shall be applicable to international air transport but, on the other hand, the Supreme Court (STF) understands the Convention shall be applied in case of consumer relation. This decision has analyzed only the lawsuit status of limitation of 5 years on CDC and 2 years of the Convention, prevailing, in this case, the 2 years of the Convention.
This subject is under discussion on STF in the attempt of reaching a sole understanding that the rules of the Convention shall be applied to international air transport of people upon indemnification rate, so called, Special Withdrawal Right. If this subject happens to have a favorable decision rebounding to consumer relations, it may further unify the understanding for the applicability (or not) of the Convention to international commercial air transport.
Our Constitution foresees that, if Brazil signs an International Convention, it is enforced to comply in respect of the reciprocity principle. The Courts shall contribute applying the (internal and/or welcomed law) always in order to preserve the rights of all parties involved and, if possible, unify the understanding about the applicable law to international air transport preserving the international relationship.
By Valdirene Laginski and Ana Lucia Villela lawyers of Pacheco Neto Pacheco Neto, Sanden, Teisseire law Office.