The Brazilian Supreme Court (STF) reaffirmed that international agreements, such as the Warsaw and Montreal Conventions, override national rules in cases of loss, damage or delay of cargo on international flights. The unanimous decision was made in the Extraordinary Appeal trial (RE) 1520841.
The measure extends to the transportation of cargo the understanding that the STF already had regarding the transportation of engers and lost luggage, with the application of the procedure of general repercussion (Topic 1.366). This means that the thesis established by the Court must be followed in all similar cases that are being processed in the Court.
The Warsaw and Montreal Conventions establish specific limits on the compensation to be paid by airlines in cases of breach of contract due to shortages or damage to cargo during carriage. The prevalence of these agreements over the Civil Code and the Consumer Protection Code was recognized by the STF based on article 178 of the Constitution.
In practice, international airlines will only need to compensate for losses within the limits established by these international conventions.
Concrete case
RE 1520841 involves an action in which the Brazilian insurance company Akad Seguros SA asked the Dutch airline KLM to pay R$13,6 thousand in compensation for the loss of cargo transported under contract with the Foundation for Scientific Development in Health (Fiotec).
The compensation calculation was based on the value declared by Fiotec. As the cargo was lost by KLM, Akad covered the loss and sought compensation from the airline based on the rules of the Brazilian Civil Code, which guarantees full compensation for the damage.
However, since this is an international transport issue, the STF decided that the Warsaw and Montreal international conventions should also prevail in actions that deal with compensation and reimbursement for cargo and goods. In his vote, Justice Luís Roberto Barroso, the rapporteur for the case, recalled that, in 2017, the STF had already decided that these conventions should prevail, in a judgment that also had general repercussions (Topic 210), but limited to relations with engers and baggage, such as flight delays.
The Montreal Convention establishes that, in the event of loss or damage to cargo or baggage, the international airline must pay up to 17 Special Drawing Rights per kilogram (SDR, an international monetary instrument that follows specific calculation parameters). Based on this calculation, KLM was required to compensate Fiotec in the amount of R$164,23.
Tese
The thesis established was the following:
- The claim for compensation for material damages in international air transport of cargo and goods is subject to the limits provided for in international standards and treaties signed by Brazil, in particular the Warsaw and Montreal Conventions;
- The controversy over the removal of the limitation on the claim for compensation when the carrier is aware of the value of the cargo or acts with intent or gross negligence is infra-constitutional and factual.
Via STF
