Passenger and Cargo Compensation in Brazil
Written by Nicole Cunha with Basch & Rameh
www.linkedin.com/in/nicolerenecunha
Brazil is a signatory to the Montreal Convention, which limits the amount of compensation for cargo and baggage claims. At the same time, Brazil also has a federal law that addresses consumer rights—the Consumer Protection Code (Federal Law 8.078/1990) (“CDC”)—as well as the Civil Code (Law 10.406/2002), which generally governs compensatory rights. For many years, there has been an ongoing debate over which legislation should prevail in cases of compensation for damage to cargo and baggage.
For years, Brazilian courts have applied the Consumer Protection Code (CDC) in preference to the Montreal Convention when compensating passengers. The supremacy of the CDC significantly increases the limits of material damage compensation owed by airlines. Furthermore, the CDC also provides for so-called moral damages (non-material damages), which are compensatory awards granted in addition to material damages. However, in recent years, we have begun to see a shift in this interpretation.
The Federal Supreme Court (STF) has ruled more than once—and most recently in 2025 (Special Appeal 1520841)—in favor of the supremacy of the Montreal Convention’s compensation limits in the context of international cargo transport over the Civil Code or the CDC. Reinforcing this understanding is critically important for the aviation industry, which bears one of the heaviest financial burdens from judicial compensation awards in the world.
In an earlier ruling, the Federal Supreme Court, through the judgment in Special Appeal 636.331 (Topic 210/RG), applied the principle of lex specialis, as established in Article 178 of the Federal Constitution. This article provides that “the law shall regulate air, water, and land transport, and for international transport, it must comply with treaties signed by the Union, observing the principle of reciprocity.” Thus, the precedence of international treaties ratified by Brazil—in this specific case, the Warsaw and Montreal Conventions—was affirmed.
However, a major issue still faced by airlines in Brazilian courts concerns moral damages. Although the Brazilian Civil Code recognizes the possibility of moral damage compensation, its definition and application are subject to the discretionary interpretation of local courts, especially regarding the amounts awarded. Additionally, lawsuits involving such claims are often filed in the Special Civil Courts, which do not require court fees, making legal action more accessible to claimants. According to a study presented by the Brazilian Association of Airlines in September 2024, 98.5% of lawsuits filed against airlines take place in Brazil.
Therefore, it is possible to observe progress in the interpretation by Brazil’s higher courts concerning the application of international treaties over federal legislation, thereby ensuring the principle of reciprocity. Nonetheless, airlines continue to face the challenges posed by the subjective nature of moral damage assessments.