Certainly, an examination of litigations arising out of the breach of international air transportation contracts, quite commonly, makes reference to discussions on the opinion of jurists and the case law on the legislation applicable to the case. This is so because there is a series of international treaties addressing the subject, which are adopted and followed by several countries in the world.
However, in view of other specific legislations in Brazil, as the Civil Code and the Consumer Protection Code, several Courts do not apply the international treaties ratified by Brazil and apply the Brazilian legislation, what causes certain astonishment and recklessness to foreign companies established in the country to provide their services, as it is the case of airline companies.
As known, the Federal Constitution provides that international treaties to which Brazil is a signatory must be strictly complied with, pursuant to the rules in article 5, paragraph 2 and article 178, with its wording given by Constitutional Amendment no. 7, of 1995.
The Warsaw Convention and subsequently, the Montreal Convention, signed and ratified by the signatory countries, Brazil included, sought to build a uniform and standardized regulation at international levels on air traffic, especially in regard to the setting up of parameters for damages, limitations of liability, among other significant aspects deriving from the air transportation.
In summary, the International Conventions represented a significant step towards unified rules governing the international air transportation, bringing certainty to both passengers and companies operating in this market and providing a consonant development to the sector.
Well, although the Conventions are in effect under the Brazilian Law, the fact is that after enactment of the Consumer Protection Code (CDC), their application to consumer relations started to be rejected by the case law.
In other words, a consumer relation will always be established whenever there is a product or service supplier on the one side, and a person, whether an individual or a legal entity that purchases the product or service as the end recipient on the other side. To this effect, the airline company is considered a legal entity that offers air transportation services, while the passenger is considered an individual who purchases the transportation services as the end recipient thereof.
The Consumer Protection Code determines that the civil liability has a strict...