Brazilian Supreme Court Rules: Consumer Compensation for Damages in International Air Transport

International air transport is governed by international norms and treaties, particularly the Warsaw and Montreal Conventions. These conventions stipulate maximum amounts that carriers may be required to pay in cases of civil liability arising from international air transport, adopting the rule of limited or fixed compensation.

Fixed compensation operates on a principle where the compensatory value is not directly linked to the actual value of the affected good, but rather to predefined amounts, which can often be significantly lower than the value of the good itself.

The Brazilian Supreme Court (STF), in a recent decision, reaffirmed an important milestone for consumer rights in the context of international air transport. The judgment of RE 1.394.401/SP, reported by Minister Rosa Weber and concluded in December 2022, brought to light the discussion on the applicability of the Consumer Defense Code (CDC) against the Warsaw and Montreal Conventions.

In cases of baggage loss occurring in international transport involving a consumer, there was a question of whether to apply the Consumer Defense Code (CDC) or the fixed compensation provided for in the Warsaw and Montreal Conventions. According to Article 178 of the Republic's Constitution, the norms and international treaties that limit the liability of air carriers have precedence over the CDC.

For the STF, the compensatory limitation provided for in the Warsaw and Montreal Conventions covers only material damage compensation and does not apply to moral damages compensation. In cases of moral damages, the Consumer Defense Code applies over the Warsaw and Montreal Conventions.

At this point, it is important to make a distinction between material and moral damages. While the former refers to direct, tangible, and quantifiable financial losses, the latter relates to psychological and emotional harm, which is inherently more complex to measure and continues to be fully compensable under the consumer defense code. 

Thus, it is very important for consumers to be aware of the risks of sending high-value goods in international air transport, as there may be a loss or damage to the luggage without receiving full compensation, leading to a financial loss for the value of the items. On the other hand, they still have the right to claim full compensation for any possible moral damage suffered.

It is important to note that this rule applies only to international air transport. In the case of domestic air transport, compensation is full for both material and moral damages, as per the consumer defense code.

Stay alert and assert your rights.

REFERENCE

BRAZIL. Brazilian Supreme Court. Extraordinary Appeal No. 1.394.401/SP. Reporter: Minister Rosa Weber. General Repercussion - Theme 1.240. Brasília, DF, December 15, 2022.