AN EMPIRICAL STUDY ABOUT MORAL DAMAGES AND RULING 210 FROM THE BRAZILIAN SUPREME COURT IN PASSENGERS’ RIGHTS: THE NEED FOR A CLEAR PUBLIC POLICY¶
Abstract¶
THIS PAPER IS THE RESULT OF AN EMPIRICAL RESEARCH ABOUT THE MORAL DAMAGES AND RULING 210, ENACTED IN NOVEMBER 2017, BY THE BRAZILIAN SUPREME COURT ABOUT THE APPLICATION OF 1999 MONTREAL CONVENTION VERSUS THE BRAZILIAN CONSUMER CODE. IN THE JUDGMENT THAT LED TO SUCH RULING, BRAZILIAN SUPREME COURT DECLARED THAT MORAL DAMAGES WERE NOT TO BE LIMITED BY MONTREAL CONVENTION, SINCE THE BRAZILIAN FEDERAL CONSTITUTION SATES THAT SUCH DAMAGES HAVE TO BE FULLY INDEMNIFIED. THE RESEARCH HYPOTHESIS IS THAT, IN PRACTICAL TERMS, ALTHOUGH THE MORAL DAMAGES HAVE BEEN LEFT OUTSIDE THE LIMITS OF MONTREAL CONVENTION, THE AMOUNT AWARDED BY BRAZILIAN COURTS FOR SUCH DAMAGES DOES NOT SUBSTANTIALLY NOR FREQUENTLY EXCEED MONTREAL CONVENTION. TO ENSURE THAT THE EMPIRICAL RESEARCH WOULD NOT BE INFLUENCED BY EXTERNAL FACTORS, THE HYPOTHESIS WAS PUT TO TEST THROUGH THE DIRECT AND EMPIRICAL ANALYSIS OF ALL THE DECISIONS HANDED DOWN BY BRAZILIAN COURTS (FROM ANY BRAZILIAN STATE) IN CASES FILED AGAINST ONE SINGLE INTERNATIONAL AIRLINE, THAT OPERATED ONLY ONE FLIGHT A DAY, ALWAYS FROM THE SAME AIRPORT AND TO THE SAME DESTINATION, IN THE PERIOD BETWEEN 2013 AND 2022. 584 DECISIONS WHERE FOUND, REPRESENTING ALL THE DECISIONS THAT WERE HANDED DOWN IN ALL THE CASES INVOLVING SUCH AIRLINE. HAVING ALREADY REVIEWED ALL THE 290 DECISIONS WHERE MORAL DAMAGES WERE AWARDED, THE RESULTS SHOW THAT IN ONLY 42 CASES (13 FOR FLIGHT DELAY AND 29 RELATED TO LUGGAGE) THE INDEMNIFICATION FOR MORAL DAMAGE WAS AWARDED AT A LEVEL EXCEEDING THE MONTREAL CONVENTION LIMITS. THE CONCLUSION IS THAT, IN PRACTICAL TERMS AND TAKING INTO CONSIDERATION THE OVERALL LITIGATION INVOLVING AIRLINES, THE FACT THAT RULING 210 LEFT ASIDE MORAL DAMAGE, THE SITUATION HAS NOT AGGRAVATED THE RISK OF THE AIRLINES, SINCE INDEMNIFICATION FOR MORAL DAMAGE IS USUALLY AWARDED WITHIN THE LIMITS OF MONTREAL CONVENTION. HOWEVER, IT SHALL BE POINTED OUT THAT AS TO LUGGAGE, THE 32 CASES WHERE MORAL DAMAGES WERE AWARDED AT A HIGHER LEVEL THAT THE ONE SET FORTH IN THE MONTREAL CONVENTION REPRESENT 59% OF ALL THE CASES WHICH IS A SUBSTANTIAL AMOUNT AND INDICATES THAT THE LIMITS OF MONTREAL CONVENTION, IF APPLIED TO MORAL DAMAGES, WOULD HAVE AN IMPACT.
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Citing¶
@inproceedings{SIT222,
author = {JOSÉ GABRIEL ASSIS DE ALMEIDA; LYDIA DE FREITAS VIANNA; JOAO MARCELO SANT´ANNA COSTA},
title = {AN EMPIRICAL STUDY ABOUT MORAL DAMAGES AND RULING 210 FROM THE BRAZILIAN SUPREME COURT IN PASSENGERS' RIGHTS: THE NEED FOR A CLEAR PUBLIC POLICY},
booktitle = {Proceedings of the 2022 Air Transportation Symposium},
series = {SITRAER 2022},
year = {2022},
pages = {540-545},
publisher = {SBTA - Brazilian Air Transportation Research Society},
address = {São José dos Campos, Brazil,}
}
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