As is widely known by Civil Law’s most renowned scholars, the mapping of a historical trajectory related to the adoption of objective criteria when studying civil liability, in western political societies, is inaugurated by the technological advancements introduced by the First Industrial Revolution[2]. That is due, essentially, to the speed with which said advancements became impregnated in the common citizen’s day-to-day life, as to bring forth novel legal crises rapidly to the Judiciary’s doors and, in the process, serve as ink to the pens of Europe’s most important jurists.
In this sense, upon the arrival of the Second Industrial Revolution, if Raymond Saleilles’ works perfectly captured the risks inherent to the factories of the Eighteenth Century (Les Accidents de Travail et la Responsabilité Civile, 1897), Louis Josserand broadened the academic study of risk to extracontractual civil liability, opposing, in this venture, the pre-eminence given to the notion of negligence by its scholars (De la Responsabilité du Fait des Choses Inanimées, 1897). As a result, it shouldn’t startle the dominating characterization of the norm contained in the current Brazilian Civil Code’s article 927, sole paragraph – in accordance to which “There will be an obligation to repair damages, independently of negligence, in the cases specified by Law, or when the activity normally developed by the party liable for damages implies, by nature, risk to the rights of third parties” (our translation to English) – as a general clause of risk[3], which ought to be interpreted as more extensive than the more palpable notion of danger, as to offer better legal protection to third parties[4].
In the field of transportation, where an expressive part of the most significant industrial advancements was employed, the adoption of objective criteria for civil liability possessed special traces in view of the constant influence of the state of the art in the legal regulation of the transporter’s activity. For said reason, an autonomous obligation of protection, to be performed by the transported, was established in the contractual sphere, as to mitigate the effect of exoneration clauses and in pursuance of a preventive function for civil liability[5].
In turn, extracontractual civil liability in the field of transportation is equally familiar with the referred objective criteria, to the point of initially bringing them forth in Brazilian legislation. In this sense, in accordance with article 26 of Decree n. 2.681/1912, owners of lands tangent to railroads would be guaranteed “for all damages” caused by the transporter’s activity. Curiously, a scope of protection of that magnitude wasn’t adopted by the legal regulation of air travel, with legislative authorities, international and domestic alike, opting for an indexed system of objective liability in relation to damages caused to third parties on the surface by the transporter, guaranteeing, to the former, indemnity calculated through fixed intervals determined by the aircraft’s weight.
In summary, contractual civil liability in all modes of transportation tends to benefit the passenger, with the exoneration of the transporter being beyond exceptional in light of his autonomous obligation to protect those on board his vehicle. Only when damages suffered were unforeseeable, unpredictable, and unstoppable in view of the current state of the art and the circumstances faced by the transporter, can an instance of force majeure be rightfully identified. General norms of objective civil liability remain applicable on the extracontractual sphere, with reparation being due to third party harmed by an action/omission imputable to the transporter to the extent of the damages suffered. Such is the case in the absence of specific legal regulation of fields of commerce and services, a scenario which isn’t seen in international air travel and its domestic counterpart in certain countries.
The present article, therefore, aims to analyze the origin and the motivations behind this almost centenary legislative tendency – which remains at large in Brazilian legislation (article 269 of the Brazilian Code of Aviation of 1986) and international conventions (article 11 of the Rome Convention of 1952) –, in addition to critically evaluating its pertinence with the Brazilian legal system as a whole and with modern issues that surpass national borders.
2. Origin, Motivations and the Legal Perpetuation of the Indexed System [arriba]
The indexed system of reparations owed to third parties on the surface was outlined, originally, in debates preceding the formulation of a draft for a “Convention about liability for damages caused to third parties on the surface” promoted by the Comité International Technique d’Experts Juridiques Aériens. Having prevailed, among the member states, the establishment of a system of limited liability favorable to the transporter as to said damages, the committee turned its attention to the definition of the criteria for the progressive calculation of the reparations owed by the transporter. Initially, the chosen criterion was the aircraft’s value, promptly fought back, as there “was no relation between the economic value of the aircraft and the number of damages that could be caused to third parties”. In response, the British delegation advocated, successfully, in favor of the exchange of said criterion for the aircraft’s weight, utilizing it so as to institute minimum and maximum indemnities for different weights and fixating on the draft the respective coefficients, all accounted for in franc Poincaré[6].
As is widely known, the referred criterion persisted in the Rome Convention of 1933 that, notwithstanding, never became valid due to its unsatisfactory regulation of guarantees (especially of insurances) involved in air travel, which justified the insufficient ratification of said convention. In response, the Brussels Protocol of 1938 was formulated, aiming at bridging the normative gap identified in the last treaty. However, its validity was halted by the start of the Second World War. Lastly, with the sufficient ratification of the Rome Convention of 1952, the criterion sketched by the British delegation two decades before was carved in its article 11 and, thus, became applicable to international air travel[7].
Article 11 of the Rome Convention of 1952, in turn, was altered by the Montreal Protocol of 1978 after the franc Poincaré ceased to be utilized as a monetary unit of value – an event brought on, originally, by the abolishment of the gold standard –, resulting in the indexation of reparations in accordance to the so called Special Drawing Rights[8].
As a legal source of International Law, the Rome Convention of 1952’s application is conditioned by its ratification by the parties involved and by a subjective element of difference between them, in the form of the distinct nationality of the aircraft when compared to the territory where the damaged surface is located (article 23). Evidently, the convention isn’t applicable to the transporter’s contractual liability (article 25), with the same being said as to facts regulated by norms outside of the convention, such as acts of war and civil disturbances (article 5) – circumstances typically found in instances of force majeure[9].
Regarding the motivations for the limitation of the aircraft transporter’s civil liability in relation to third parties on the surface, a myriad of reasons, of the most varied dimensions, were given by the delegations favorable to the system now preserved in article 11 of the Rome Convention of 1952. When discussing said system, Prof. Marco Fábio Morsello lists and opposes six arguments favorable to the indexation, extracted from the lessons of Huibert Drion (Limitation of Liabilities in International Air Traffic Law, 1954): (i) its protective function of the air traffic industry, promoting its development throughout the years; (ii) the plurilateral distributions of risks related to catastrophic accidents; (iii) the ex-ante knowledge of the maximum monies owed in case reparations are due; (iv) the fixation of said limit as a means for “consideration” in light of the transporter’s objective liability; (v) the hastening of resolution in regard to litigation arisen from said liability; and (vi) the uniform application of the Rome Convention of 1952’s norms[10].
Notwithstanding the doctrinal effort made for justifying the indexed system of liability analyzed, when cleansing it from reasons which are clearly peripheral to the system’s essence and true purpose (allow us, from obiter dicta that, time in time, contaminate legal discourse), we conclude that it finds its reason for existing in the mitigation of the transporter’s economic risks. Although clearly defining of the day-to-day lives of many, air travel represents such a rupture from the innate capabilities of human beings that, in its origin, it was represented by undertakings with undeniable and serious risks. For said reason, the indexation of future legal claims for reparations allowed for the would-be businessman to quantify his possible losses to the point of establishing control over risks that, in order sectors of the market, would take unpredictable dimensions. This extends even to sectors where, ordinarily, the theory of risk is applicable, insofar as the vagueness of meaning and semantic indetermination inherent in the notion of risk exist, resulting in obscurities that, as is known, permeate the notion of negligence – honored by the subjective theory of civil liability – in the same degree[11].
If for no other reason, for decades the social-economic dimension of the indexed system has been invoked by judges as an essential component for understanding the facts adjacent to its defining norms. Take, for instance, Civil Appeal n. 7.293, entered in 1948 and decided by the Court of Justice of Brazil’s Federal District, in which the reviewing body asserted that “the limitation of liability was adopted as a stimulus for air travel, as to prevent the risk of binding the liable party’s assets to reparations from discouraging the investment of activities and capital in communication and transportation services useful for the collective”[12]. Normative teleology is reduced, therefore, to mere economic worries, with other goals of the indexed system being eventual and secondary.
However objectionable it may be, said scope is certainly attractive for any economic agent that seeks to enter the domestic air travel market, with it being far from surprising the quick adoption of the indexed system by multiple nations, including several Latin American countries. In this sense, as to the Rome Convention of 1933, Mexico was clearly influenced by its draft[13], whilst Brazil adopted, in a certain degree, its system through Legislative-Decree n. 483/1938, the first “Brazilian Code of Air”.
In the referred statute, civil liability concerning third parties on the surface was regulated by its articles 96 and 102. The jointly and severally liable parties for damages were listed in article 100, which based itself on the pertinence of certain persons to the aircraft (its registration or economic application) or to the harmful act (who caused the damages). The limitation of liability, in turn, was prescribed by article 102 and, in a quite astonishing way, indexed any and all indemnity for damages caused to persons (i.e., injuries or death) to a singular value: one hundred thousand contos de réis per victim. Consequently, there was no criteria to determine a minimum or maximum value owed to a third party on the surface victim to an air traffic accident.
Improving the previously applied indexed system, the following Brazilian Code of Air (Legislative-Decree n. 32/1966) instituted the aircraft’s weight as the criterion for indexation of indemnities in its article 119 and, in the norm that followed, prescribed the proportional distribution of monies for reparation, as to guarantee some relief to personal and material damages caused without piercing any of article 119’s limits[14]. The statute’s choice, in this matter, unequivocally shows its protective scope of the transporter: between surpassing the indexed limits in light of damages owed that demonstrably exceeds them, the legal system opted for proportionally harming the victims on the surface.
Afterwards, said system was carved, and remains valid, in the Brazilian Code of Aviation of 1986 (BCA), more specifically in its article 269, having been modified in two instances, for what pertains to the present article. Firstly, instead of the indemnities’ limits having been quantified in accordance to “the highest minimum-wage paid in the Country”, they are measured in “Obligations of the National Treasury” (ONTs). Secondly, article 272 of the BCA provides us with three cases in which the transporter’s limitation of liability remains unapplicable: (i) if damages resulted from fraud or grave negligence by the transporter’s or his employees’ part (in the past, unlimited liability was present only in the existence of fraud); (ii) if damages were caused by an aircraft while on the surface and with its engines shut; and (iii) if damages were caused by a party who was operating the aircraft illegally or illegitimately.
As exposed, it is clear how international and domestic – considering the Brazilian scenario – air travel has been legally regulated as to praise an almost centenary legislative tendency, in regard to the transporter’s civil liability for damages caused to third parties on the surface, as originally stated in the Rome Convention of 1933. As such, a scrupulous critical analysis of the described system is due.
3. The Contemporary Deficiency of the Indexed System [arriba]
Summarily, the present subsistence of the indexed system in Brazilian Air Traffic Law – and, for all the present objections are worth, in International Air Traffic Law – can be disputed in three fronts, as detailed below.
Firstly, in Brazilian legislation, a similar system would present itself as invariably disconnected from other elements of extracontractual civil liability regulation. That is because, long ago, the principle of full reparation was established, and remains graved in article 944, caput, of the Brazilian Civil Code (“Reparation is measured by the extension of damages)[15]. A logical consequence of the enounced principle would, therefore, be the natural aversion of the indexation of said reparation in fixed intervals, running the constant risk of the global extension of damages felt by third parties on the surface surpassing legal limits for indemnification.
If for no other reason, when critically analyzing the most primitive indexation, inscribed in the first Brazilian Code of Air, Hugo Simas emphasized: “it is dangerous to fix an exact number for a maximum limit that, tomorrow, with developments introduced on aircrafts, can become derisory”[16]. The reasoning transcribed, in the past restricted to the statute from 1938, focuses on the mutability expected from the air traffic market and that, nowadays, extends to the monies listed in ONTs by the BCA (mutable economic dimension of the legal norm), as well as to the respective weights of the aircrafts, equally subject to continuous cutbacks (mutable technological dimension of the legal norm).
Finally, in addition to the strange integration of the indexed system to legislation guided by total civil liability, the former, now detailed by article 269 of the BCA, is dissonant from the social reality that it aims to regulate, capturing a mere static image of air travel in 1986 and, therefore, ignoring the dynamic nature inherent in any market sector[17].
In face of the clear incompatibility between legal norm and fact, we have visualized the past desertion of historical criteria – let us remember the criteria of indexed evidence, applied generally in multiple medieval civilizations of the West due to the influence of Canonical Law[18]. If it weren’t enough, to reenforce the unnatural subsistence of an indexed system of civil liability in Brazilian Law, we note that it remains applicable to the sector of the market more susceptible to affect, in mass scale, the lives of third parties in case of accidents. Therefore, it is undeniable the current superposition of a centennial normative teleology to the claims of vulnerable third parties constantly affected by the air traffic industry.
Secondly, the cases where the indexed system remains unapplicable, listed by article 272 of the BCA, are clearly insufficient to effectively protect third parties on the surface. The referred norm is at times redundant, when listing cases where the application of general rules of extracontractual civil liability would result in the imputation of an obligation to indemnify to a person different than the transporter (v.g. a party who was operating the aircraft illegally or illegitimately), and at times dealing with matters outside of air traffic per se (v.g. damages were caused by an aircraft while on the surface and with its engines shut). Moreover, the only case with a certain extensive margin for not applying the indexed system is built upon subjective criteria – in clear contrast to the adoption of objective criteria in the study of civil liability –, demanding proof of fraud or grave negligence, which is evidently more complex than proof of simple negligence.
If our most praised domestic doctrine has already recognized the long known difficulties that such subjective criteria bring to those who aim to receive reparations superior to each and every legal limit – at times emphasizing that they are “difficult to perfect”[19], at times more subtly alluding to the necessity of proving “grave signs” to characterize fraud, since dolus non presumitur nisi probetur[20] – it seems that said complications acquire even more worrying tones in air travel. This is the case, owing to the common dialogue maintained by Civil Law and criminal theories of subjective imputation in the definition of fraud or negligence, as to result in a certain importation of notions such as social disapproval and conscience of illegality[21], that, in the case now studied, would hardly give effectiveness to unlimited civil liability. For whichever angle an aerial traffic accident, the collapse of an aircraft or a collision midflight is analyzed, they result, in most cases, from a series of clearly defined events and from details that transpired without the knowledge of the crew, with it being unthinkable that any person involved wanted the end result, as well as uncertain the lines dividing grave negligence from a light negligence with serious repercussions.
Thirdly, recent technological developments on the social reality subjacent to the BCA point to the obsolescence of the indexed system engraved in its article 269. Having in mind, presently, the trivial use of the so-called Unmanned Aerial Vehicles (UAVs), for commercial reasons, as well as for the entertainment of its users, criteria that quantifies indemnification based on the weight of an aircraft would become innocuous. That is because said vehicles tend to weight but a few kilos and, in accordance with Marco Fábio Morsello’s warning, the criteria presently valid, “in light of the progress brought by nanotechnology, reveals the total dissonance from the effective quality of the damages caused”[22].
Hence, in addition to subjectively broadening the parties liable, to comply with an eventual obligation for reparations, as to extend to all members of the Communication Link[23] –, the introduction of UAVs on the fattispecie of the aircraft transporter imposes new challenges of a qualitative nature, whose resolution will now be explored, in view of the three objections previously described.
4. Fending off the Indexed System in the Courts [arriba]
If we accept that a legal norm communicates a discourse to the persons that find themselves subject to its command, with more reason we should believe that its non-application must be equally founded upon a legal discourse[24]. In other words, having become apparent the possible harm brought forth by the literal and immediate application of the BCA to third parties on the surface, the total reparation of the damages suffered by them, as a legal result, is conditioned by legal arguments. It isn’t enough, therefore, to simply denounce the incompatibility between article 269 and the social reality it aims to regulate.
Moreover, it isn’t enough to abstractly point to the private autonomy of third parties on the surface harmed – or of their family members – to sign a deal with the aircraft’s transporter in order to exceed the legal limits in case of damages caused to the former by the latter.[25] There are notorious differences between the creditors of a given firm, with clear disadvantages, in terms of risk distribution, to small and non-professional creditors, which include, in the present analysis, third parties on the surface eventually harmed, since they lack any previous contractual relationship with the liable party[26]. With scarce bargaining power in face of the transporter, the contractual alternative is of little use to victims, especially in light of the protective function assumed by article 269 of the BCA in benefit of the former.
Recognizing said dilemmas, in addition to the restrictions inherent to legal discourse, the argumentative effort of scholars opposed to article 269’s application and its insufficient mitigation by article 272 turned itself to legally evade the former’s application. The main obstacle for said effort revealed itself as the apparent superposition of the referred norms over the Brazilian Civil Code of 2002 (which, as already seen, established the principle of total reparation) when regulating the extracontractual liability of aircraft transporters, since, as a specific statute inferior to the Constitution, the BCA would be applicable in detriment to a general code of Law which is also inferior to the Constitution, notwithstanding the latter being enacted at a later date[27].
In the end, a strong doctrinal understanding was cemented as to deny application to article 269 of the BCA, taking advantage of the same criteria aimed at resolving antinomies that, in principle, seemed to advocate in favor of the indexed system.
In that regard, following a tendency explicitly adopted by Sergio Cavalieri Filho, the aircraft transporter’s extracontractual civil liability would have been foreseen by the Brazilian Constitution of 1988 to such a degree as to effectively repeal article 269 of the CBA. The referred norm’s purging of the domestic legal system would result from the application of article 37, §6º, of the Constitution to the concessionaires of services related to air travel, leading to their unlimited extracontractual civil liability as firms that provide public services, equated, for reparatory purposes, to the State[28].
Consequently, there would exist a norm enacted after article 269 of the BCA that is also hierarchically superior to it, leaving the indexed system unapplicable, as to benefit third parties on the surface. Despite its merits, the most notable obstacle introduced by this doctrinal understanding is the absence of any declaration of unconstitutionality, until now, as to invalidate article 269, resulting in a need for the third party – ore his family members – to argue said dissonance incidentally, in every concrete case, aiming at realizing his right to total reparation. This alternative, nevertheless, would be hampered by the ratification of the Rome Convention of 1952 by Brazil, which remains valid with a similar indexed system applicable to international air travel. In other words, for better or for worse, the incidental declaration of the domestic norm’s unconstitutionality presupposes that a particular judge also understands the international norm as equally unconstitutional, which could dissuade more conservative judges from siding with the pure and simple repeal of both norms.
A more common tendency, in Case Law, is the association of the third party on the surface’s right to total reparation to a similar right of the bystander of a product liability accident, as to justify the application of the Code of Consumer Defense and Protection (CCDP) to the matter at hand. In this sense, it should be remembered that, years prior, scholars have accepted the general application of the legal system of consumer defense and protection to transportation agreements, both in the European Community[29] and in the interpretation of Brazilian Civil Code prescriptions that delineate the general regulation of said agreement[30]. Therefore, after qualifying air travel as a service provided to the passengers of the aircraft, eventual defects and failures which result in damages to third parties on the surface would remain qualified as product liability accidents, nowadays regulated by article 17 of the CCDP[31].
As a result, the third party on the surface is considered a bystander and, as such, is equaled to a consumer, having the right to “effective prevention and reparation for material and moral damages, individual, collective and diffuse”, in the exact limits defined by article 6º, VI, of the CCDP[32]. Through this reasoning, the non-application of the indexed system is compatible with the criteria directed at solving antinomies – the CCDP constitutes a special statute and is inferior to the Constitution, akin to the BCA, however the former was enacted at a later date -, as well as with the values that orient the system of consumer defense and protection, that hold important influence over the autonomous obligation of protection imposed to any transporter.
In accordance with the arguments described, they are founded upon the maintenance of extracontractual civil liability in respect to third parties on the surface in the sphere of influence of the BCA (that is, we presume that said statute is applicable to such real-life situations). Keeping with such a premise, what the mentioned scholars propose is the existence of other norms not only applicable to the matter at hand, but also that should be applied instead of article 269 of the BCA.
Naturally, the success of the described proposition relies on the social and economic inefficiency in maintaining a system explicitly protective of the transporter presently. That is necessary in view of the general result of its acceptance, that is, the wholly invalidation of a legal norm. If, however, it remains proven that the protection of the aircraft transporter through article 269 of the BCA is necessary for the provision of air traffic services domestically, it is possible to accept said norm as a valid means of lessening the burden on the liable party in benefit of the collective interest. In other words, indemnification – as a legal consequence – is mitigated proportionally to the weakening of the reasons to indemnify – as a legal hypothesis –, in a causal relation similar to the one admitted by article 944, sole paragraph, of the Brazilian Civil Code, according to which “if an excessive disproportion exists between the gravity of the negligence and the damages, the udge is permitted to reduce, equitably, the indemnification” (our translation to English). Yet again, a lessened negligence – as a legal hypothesis that gives rise to an obligation to indemnify – serves as the basis for the reduction of the indemnification owed – as a legal consequence – by the liable party[33].
As it stands, we aim to propose - especially in light of the third objection to the indexed system presented in the previous topic (modification of the social reality subjacent to the norm by technological developments that turn the weight of the aircraft obsolete as a legal criterion) – another path that sees the sphere of influence of the BCA as more restrictive, as to make possible total reparation for damages caused by UAVs[34].
Following closely the lessons of Tullio Ascarelli, an indissociable part of the application of a given norm is its interpretation, through which the construction of a typology of social reality dependent on the norm (fattispecie) is put into effect[35]. The understanding of the described phenomenon is of crucial importance to the adaptation of a normative proposition’s meaning – while keeping its text intact – to a social reality that is mutable, as to adequate its application to new claims in accordance with the norm unchanging teleological dimension. On the other hand, the notion of fattispecie clarifies the limits of a given legal norm, casting light upon unexpected situations that are in such a way unrelated to the original mens legis that completely escape the legislated text.
We believe that a similar phenomenon is verified when it comes to article 269 of the BCA, which, considering its systematic reading with the remaining norms of said statute (v.g. the regulation of airport systems by articles 26 to 46; of air traffic accidents by articles 86 to 93; and of agreements involving aircrafts by articles 115 to 202) has in mind a certain well-defined social reality, that is: the workings of international and domestic air traffic systems involving airplanes of expressive dimensions responsible for the transportation of goods and persons, in addition to extracontractual and contractual obligations arising from the maintenance of said systems.
In other words, it is unnecessary to search for a definition of “aircraft” that excludes UAVs – especially since, as with any discussion pertaining to notions that are vague by nature, a similar endeavor would be void, with results at times too generic, at times too preoccupied with details extrinsic to the object defined[36] –, insofar as the establishment of the aircraft’s weight as a criterion for article 269’s indexed system already shows that its application does not reach vehicles with negligible weights. In the same manner, the analyzed statute gives special legal importance to a business activity with a certain degree of professionalization and formalization, with it being unthinkable to incorporate in its text occasional acts of entertainment, as well as business activities consisting of the mere delivery of goods to homes which, in the near future, may be banal in urban centers.
Consequently, the general principle inscribed in article 944 of the Brazilian Civil Code would be applicable, favorably, thus, to total reparation of damages suffered by third parties on the surface, since it is certain that a UAV with negligible weight doesn’t constitute an aircraft as admitted by the social reality considered by the Brazilian Code of Aviation¸ being, therefore, treated as but a mere good, subject to a general legal norm. As is clearly seen, there is no demand for proportionality to impose pursuance to article 269 of the BCA, exactly because the criteria for calculating reparations resides in the indemnification itself, that is, in the legal consequence.
As was emphasized by one of Brazil’s greatest legal scholars, when describing the human conquest of aerial space, its guiding light was “doing what the other animals do and him [man] cannot learn to do, because his biological path was another”[37]. Similar romantic mentions on the overcoming of human beings’ innate physical limitations justifies, in a certain way, the enthusiasm which ruled over many decades the development of the air traffic market and that served as a fuse, in the Twentieth Century, for the establishment of international and domestic legal stimuli for an economic sector by then incipient.
As the aerial mode of transportation, however, grew more common in a global perspective, to the point of comprising the day-to-day lives of many societies, not only was the above-mentioned sentimentalism lost, but also the social reality that, in the past, justified the protection of the aircraft transporter over that of the third parties on the surface and, even, over the persons transported. As a result, the subsistence of an indexed system of extracontractual civil liability for the transporter represents a historical remnant of a most curious kind, dissonant from the Brazilian civil legislation and from the current state of the art prevalent in international air travel, as to demand, if not a reform, at the very least legal arguments to mitigate said system, be it on the side of the obligation to indemnify, be it on the side of the indemnification itself.
The present article aimed, exactly, at detailing the origins, widespread adoption and critical analysis of the indexed system, as to question its validity and put into debate its non-application, as a means for prioritizing a dynamic look on air travel as an activity in constant development, full of dilemmas unthinkable in the past, as ought to be. To conclude the present scholarly endeavor, allow us to remember a preoccupation described by Hugo Simas in the beginnings of the last century and that, in some manner, serves as an ironic presage for the current crisis suffered by the indexed system, as it reenforces the benefits of a criterion founded upon weight over the limitations of a fixed limit for indemnities, when the former, as we have attempted to demonstrate, is equally subject to obsolescence: “It should be noted that, with the Convention regulation international air travel, realized by airplanes as perfect as can be based on their weights, instead of their value, making possible, for its mutable quality, its increase to the proportion of developments introduced in construction, it offers a guarantee of proportionality in terms of indemnification, which is not verified with an exact limit based on a prefixed sum. However massive it may be presently, it will become derisive when any aircraft, instead of permitting the transportation of two or three dozen of passengers, allows 120 or 200 persons.”[38]
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MORSELLO, Marco Fábio. Contratos de Transporte: Novos Paradigmas do Caso Fortuito e Força Maior [Transportation Agreements: New Paradigms of the Fortuitous Event and Force Majeure]. São Paulo, Revista dos Tribunais, 2021.
MORSELLO, Marco Fábio. Aspectos Jurídicos Palpitantes dos Veículos Aéreos não Tripulados [Palpitating Legal Aspects of Unmanned Aerial Vehicles] (in press).
NABUCO, José Thomaz; VIEIRA, João Pedro Gouvêa; CARVALHO, Francisco de Paula Rodrigues Alves da Cosa; TEIXEIRA FILHO, Ernani. A Responsabilidade Civil no Abalroamento Aéreo [Civil Liability in Air Traffic Collisions], 1950.
NEISSER, Fernando Gaspar. Dolo e Culpa na Corrupção Política: Improbidade e Imputação Subjetiva [Fraud and Negligence in Political Corruption: Improbity and Subjective Imputation]. Belo Horizonte: Fórum, 2019.
PACHECO, José da Silva. Comentários ao Código Brasileira de Aeronáutica (Lei n.° 7.565, de 19 de dezembro de 1986) [Commentary on the Brazilian Code of Avitation (Law n.° 7.565, of December 19th, 1986)]. Rio de aneiro: Forense, 1990.
PEREIRA, Caio Mário da Silva. Responsabilidade Civil[Civil Liability]– 12ª ed. – Rio de Janeiro: Forense, 2018.
PEREIRA, Maria de Lurdes. A Indemnização de Despesas Inutilizadas na Responsablidade Obrigacional [The Indemnification of Inutilized Expenses in Obligational Liability]. Coimbra: Gestlegal, 2020.
RIGALT, Antonio Francoz. Principios de Derecho Aereo [Principles of Air Traffic Law]. San Luis Potosi: Talleres Gráficos del Estado, 1939.
SALOMÃO FILHO, Calixto. A Teoria da Desconsideração da Personalidade Jurídica [The Theory of Veil Piercing]. In: O Novo Direito Societário: Eficácia e Sustentabilidade [New Company Law: Efficiency and Sustainability]. – 5ª ed. – São Paulo: Saraiva, 2019, pp. 351-410.
SANSEVERINO, Paulo de Tarso. Cláusula Geral de Risco e a Jurisprudência dos Tribunais Superiores [General Risk Clause and the Superior Courts’ Case Law]. Superior Tribunal de Justiça, Doutrina: Edição Comemorativa 25 Anos, 2015, pp. 349-370.
SCHREIBER, Anderson; TARTUCE, Flávio; SIMÃO, José Fernando; MELO, Marco Aurélio Bezerra de; DELGADO, Mário Luiz. Código Civil Comentado: Doutrina e Jurisprudência [Civil Code Comentaded: Doctrine and Case Law] – 2ª ed. – Rio de Janeiro: Forense, 2020.
SIMAS, Hugo. Código Brasileiro do Ar Anotado [Notes on the Brazilian Code of Air]. Rio de Janeiro: Freitas Bastos, 1939.
TEPEDINO, Gustavo. Comentários ao Novo Código Civil, Volume X (Arts. 653 a 756) [Commentary on the New Civil Code, Volume X (Arts. 653 to 756)]. TEIXEIRA, Sálvio de Figueiredo (coord.). Rio de Janeiro: Forense, 2008.
VALLADÃO, Haroldo. Verbete: Moeda Estrangeira e Padrão de Câmbio-Ouro [Foreign Currency and the Gold Standard]. In: Encliclopédia Saraiva de Direito, Volume 23: Ministério Público e Processo – Nacionalidade [Saraiva Enciclopedia of Law, Volume 23: Public Prosecutor’s Office and Procedure – Nationality]. São Paulo: Saraiva, 1977, pp. 156-160.
VALLE, Eurico Paulo. Anotações ao Código Brasileiro do Ar [Notes on the Brazilian Code of Air]. Rio de Janeiro: A. Coelho Branco, 1942.
VARELA, João de Mato Antunes. Das Obrigações em Geral, Vol. I [On Obligations in General, Vol. I] – 10 ª ed. – Coimbra: Almedina, 2000.
VILLAGOMEZ, Rafael. Condicion Juridica de la Aeronave [Legal Condition of the Aircraft]. Tesis de Licenciatura en Derecho. Faculdad Nacional de Jurisprudencia. Ciudad de Mexico, 1951.
YAÑEZ, Aurora Diaz. Ensayo sobre Navegacion Aerea [Essay on Air Travel]. Tesis de Licenciatura en Derecho. Faculdad Nacional de Jurisprudencia. Ciudad de Mexico, 1950.
ZENO-ZENCOVICH, Vincenzo. Il Contratto di Trasporto Aereo e la Tutela del Consumatore [The Air Traffic Agreement and the Protection of Consumers]. In: Il Nuovo Diritto Aeronautico: In Ricordo di Gabriele Silingardi [New Air Traffic Law: In Memory of Gabriele Silingardi]. Milano: Giuffrè, 2002, pp. 729-736.
[1] Student from the University of São Paulo – São Paulo Law School. Member of the Center for Study and Research of Transport Law (CEPDT), led by Associate Professor Marco Fábio Morsello (Civil Law).
[2] Studying said historical landmark as the beginning of legal adoption of risk as the basis for civil liability in contemporary societies: VARELA, João de Mato Antunes. Das Obrigações em Geral, Vol. I [On Obligations in General, Vol. I] – 10 ª ed. – Coimbra: Almedina, 2000, pp. 631-634; CAVALIERI FILHO, Sergio. Programa de Responsabilidade Civil [Civil Liability Course] – 14ª ed. – São Paulo: Atlas, 2020, pp. 193-194.
[3] As to the legislative and judicial reception of said notion, see the late Justice Paulo de Tarso Sanseverino’s study: Cláusula Geral de Risco e a Jurisprudência dos Tribunais Superiores [General Risk Clause and the Superior Courts’ Case Law]. Superior Tribunal de Justiça, Doutrina: Edição Comemorativa 25 Anos, 2015, pp. 349-370, specially, pp. 355-361.
[4] V.g. GODOY, Claudio Luiz Bueno de. Responsabilidade Civil pelo Risco da Atividade [Civil Liability for the Activity’s Risk] – 2ª ed. – São Paulo: Saraiva, 2010, pp. 112-113.
[5] MORSELLO, Marco Fábio. Contratos de Transporte: Novos Paradigmas do Caso Fortuito e Força Maior [Transportation Agreements: New Paradigms of the Fortuitous Event and Force Majeure]. São Paulo, Revista dos Tribunais, 2021, pp. 121-126.
[6] LEAL, Artur Pavão da Silva. Da Responsabilidade das Aeronaves pelos Prejuízos causados a Terceiros à Superfície: Convenção de Roma de 1933 (Direito Internacional Privado Aéreo) [Civil Liability of Aircrafts for Damages caused to Third Parties on the Surface: Rome Convention of 1933 (Private Internacional Law of Aviation)]. Lisboa: Procural, 1940, pp. 68-70.
[7] ALVAREZ, Maria Esther Fernandez. O Contrato de Transporte Aéreo e a Responsabilidade do Transportador. [The Air Travel Agreement and the Transporter’s Civil Liability]. Master’s Dissertation. Guidance by: Prof. Irineu Strenger (University of São Paulo – São Paulo School of Law – Internacional Law). São Paulo, 1994, pp. 173-174.
[8] MORSELLO, Marco Fábio. Responsabilidade Civil no Transporte Aéreo [Civil Liability in Air Travel]. São Paulo: Atlas, 2007, pp. 455-456. Analysing the existent ties of coins to the gold standard, the classic definition by Haroldo Valladão in: Encliclopédia Saraiva de Direito, Volume 23: Ministério Público e Processo – Nacionalidade [Saraiva Enciclopedia of Law, Volume 23: Public Prosecutor’s Office and Procedure – Nationality]. São Paulo: Saraiva, 1977, pp. 156-160).
[9] As correctly surmised by Maria Esther Fernandez Alvarez, article 5 possesses a curious directive, since it “introduces a serious rupture in the coherence of an objective civil liability system, such as the one structured by the Rome Convention of 1952” (O Contrato de Transporte Aéreo e a Responsabilidade do Transportador. [The Air Travel Agreement and the Transporter’s Civil Liability]. Master’s Dissertation. Guidance by: Prof. Irineu Strenger (University of São Paulo – São Paulo School of Law – Internacional Law). São Paulo, 1994, p. 177 – our translation to English).
[10] MORSELLO, Marco Fábio. Responsabilidade Civil no Transporte Aéreo [Civil Liability in Air Travel]. São Paulo: Atlas, 2007, pp. 458-462.
[11] LIMA, Alvino. Culpa e Risco [Negligence and Risk] – 2ª ed. – São Paulo: Revista dos Tribunais, 1998, pp. 199-202.
[12] The full decision – whose transcribed words, translated to English by our part, are found in its 35th page – is present in the following selection of judicial precedents reunited by lawyers José Thomaz Nabuco, João Pedro Gouvêa Vieira, Francisco de Paula Rodrigues Alves da Costa Carvalho and Ernani Teixeira Filho: A Responsabilidade Civil no Abalroamento Aéreo, [Civil Liability in Air Traffic Collisions], 1950.
[13] RIGALT, Antonio Francoz. Principios de Derecho Aereo [Principles of Air Traffic Law]. San Luis Potosi: Talleres Gráficos del Estado, 1939, pp. 128-129.
[14] When commentating the analogous norm inscribed in the Brazilian Code of Aviation (article 269), José da Silva Pacheco emphasized that this constitutes the interpretation more closely loyal to the legislator’s intent, since “in case of damages to persons and goods on the surface, article 269’s limit is the maximum that can be paid by the transporter and that should be utilized, to the last coin, to attend indemnities effectively verified and owed.” (Comentários ao Código Brasileiro de Aronáutica (Lei n.° 7.565, de 19 de dezembro de 1986) [Commentary on the Brazilian Code of Avitation (Law n.° 7.565, of December 19th, 1986)]. Rio de Janeiro: Forense, 1990, p. 541 – our translation to English). In Spain, the same interpretation of the indexed system is proposed by Luis Díez-Picazo y Ponce de León in his study of Spanish civil legislation (Fundamentos del Derecho Civil Patrimonial, V: La Responsabilidad Civil Extracontractual [Fundaments of Patrimonial Civil Law, V: Extracontractual Civil Liability]. Madrid: Civitas, 2011, p. 424).
[15] V.g. DIREITO, Carlos Alberto Menezes; CAVALIERI FILHO, Sergio. Comentários ao Novo Código Civil, Volume XIII (Arts. 927 a 965) [Commentary on the New Civil Code, Volume XIII (Arts. 927 to 965)] – 3ª ed. – TEIXEIRA, Sálvio de Figueiredo (coord.). Rio de Janeiro: Forense, 2011, pp. 371-372; SCHREIBER, Anderson. Código Civil Comentado: Doutrina e Jurisprudência [Civil Code Comentaded: Doctrine and Case Law] – 2ª ed. – Rio de Janeiro: Forense, 2020, pp. 654-657.
[16] SIMAS, Hugo. Código Brasileiro do Ar Anotado [Notes on the Brazilian Code of Air]. Rio de Janeiro: Freitas Bastos, 1939, p. 215 – our translation to English.
[17] It is, precisely, whilst peering into the dynamic nature of the market that Paula A. Forgioni dislocates the gravitational center of Commercial Law from the static vision of the firm and its profiles to the polyhedral analysis of the environment in which the firm connects itself with other economic agents, as to prevail the reality of economic interactions in comparison to the subjective subtleties of nineteenth century doctrine. (A Evolução do Direito Comercial Brasileiro: Da Mercancia ao Mercado [The Evolution of Brazilian Commercial Law: From Merchandise to Market] – 3ª ed. – São Paulo: Revista dos Tribunais, 2016, pp. 72-73).
[18] Akin to the tripartite notion of extracontractual civil liability (act, damages and causal nexus), the analysis of evidence demands concrete considerations and an individualization of cats averse to any a priori evaluations, as to justify the long establishment of a system of free and rational convincement of evidence in Brazilian Law (DINAMARCO, Cândido Rangel. Instituições de Direito Processual Civil, Volume III [Institutions of Civil Procedure, Volume III] – 8ª ed. – São Paulo: Malheiros, 2019, pp. 121-125).
[19] PEREIRA, Caio Mário da Silva. Responsabilidade Civil [Civil Liability] – 12ª ed. – Rio de Janeiro: Forense, 2018, p. 303.
[20] VALLE, Eurico Paulo. Anotações ao Código Brasileiro do Ar [Notes on the Brazilian Code of Air]. Rio de Janeiro: A. Coelho Branco, 1942, p. 80.
[21] Exploring the influence of Criminal Law over Civil Law concerning subjective imputation, the excellent book by Fernando Gaspar Neisser: Dolo e Culpa na Corrupção Política: Improbidade e Imputação Subjetiva [Fraud and Negligence in Political Corruption: Improbity and Subjective Imputation]. Belo Horizonte: Fórum, 2019, pp. 152-159.
[22] MORSELLO, Marco Fábio. Aspectos Jurídicos Palpitantes dos Veículos Aéreos não Tripulados [Palpitating Legal Aspects of Unmanned Aerial Vehicles] (in press), p. 20.
[23] Studying said effect: MORSELLO, Marco Fábio. Aspectos Jurídicos Principales de las Aeronaves no Tripuladas: Consideraciones Críticas [Main Legal Aspects of Unmanned Aerial Vehicles: Critical Considerations]. Revista del Centro de Investigación y Difusión Aeronáutico-Espacial, v. 34, n. 41-42, Montevideo, 2017/2018, pp. 9-42, pp. 23-27.
[24] In that regard, the definition of legal norms as discourses is adopted by Tercio Sampaio Ferraz Jr. exactly because it emphasizes the communicative nature of the relation existent between the norm’s creator and the recipient its command (Teoria da Norma Jurídica: Ensaio de Pragmática da Comunicação Normativa [Theory of the Legal Norm: Essay on the Pragmatics of Normative Communication] – 5ª ed. – São Paulo: Atlas, 2016, pp. 51-62).
[25] Noting said alternative in the contractual sphere of relations: YAÑEZ, Aurora Diaz. Ensayo sobre Navegacion Aerea [Essay on Air Travel]. Tesis de Licenciatura en Derecho. Faculdad Nacional de Jurisprudencia. Ciudad de Mexico, 1950, p. 109.
[26] SALOMÃO FILHO, Calixto. A Teoria da Desconsideração da Personalidade Jurídica [The Theory of Veil Piercing] In: O Novo Direito Societário: Eficácia e Sustentabilidade [New Company Law: Efficiency and Sustainability] – 5ª ed. – São Paulo: Saraiva, 2019, pp. 351-410, pp. 397-401.
[27] It is, therefore, applicable the adage “lex posterior generalis non derogat prori speciali” (BOBBIO, Norberto. Teoria do Ordenamento Jurídico [Theory of the Legal System]. Trad. Ari Marcelo Solon – 2ª ed. – São Paulo: Edipro, 2014, pp. 106-107).
[28] CAVALIERI FILHO, Sergio. Programa de Responsabilidade Civil [Civil Liability Course] – 14ª ed. – São Paulo: Atlas, 2020, p. 388.
[29] When studying the influence of Consumer Law in the community’s regulation of air traffic agreements, Vincenzo Zeno-Zencovichi alludes to the former’s influence on three matters important to consumer protection and defense: (i) the concealment of contractual clauses; (ii) the establishment of general contractual conditions by firms in a cartel; and (iii) the effects of the absence of competition in contractual (Il Contratto di Trasporto Aereo e la Tutela del Consumatore [The Air Traffic Agreement and the Protection of Consumers]. In: Il Nuovo Diritto Aeronautico: In Ricordo di Gabriele Silingardi [New Air Traffic Law: In Memory of Gabriele Silingardi]. Milano: Giuffrè, 2002, pp. 729-736).
[30] As is the case of article 734 of the Brazilian Civil Code, when it prescribes the unlimited civil liability of the transporter of persons and invalidates contractual clauses which perchance exclude said liability, typically associated with articles 6º, VI, and 22, sole paragraph, of the CCDP (total reparation), as well as with articles 25 and 51, I (prohibition of clauses that limit the provider’s liability), also from the CCDP (V.g. TEPEDINO, Gustavo. Comentários ao Novo Código Civil, Volume X (Arts. 653 a 756) [Commentary on the New Civil Code, Volume X (Arts. 653 to 756)]. TEIXEIRA, Sálvio de Figueiredo (coord.). Rio de Janeiro: Forense, 2008, pp. 481-496).
[31] To reenforce the legal plausibility of the described application of the CCDP, it is sufficient to remember that, among the known cases where its article 17 is applicable, there is the automobile accident caused by a defective vehicle (V.g. DENARI, Zelmo. Código Brasileiro de Defesa do Consumidor comentado pelos Autores do Anteprojeto [Brazilian Code of Consumer Defense and Protection commentated by the Authors of its Draft] – 11ª ed. – Rio de Janeiro: Forense, 2017, p. 214). In the matter studied, we would merely be substituting the vehicle (product) by the transportation (service), with both being in the scope of the CCDP, pursuant to its article 3.
[32] MORSELLO, Marco Fábio. Responsabilidade Civil no Transporte Aéreo [Civil Liability in Air Travel]. São Paulo: Atlas, 2007, pp. 458-462.
[33] I thank Prof. Maria de Lurdes Pereira, from the University of Lisbon – Lisbon School of Law, for sharing some of her many teachings on the matter of indemnification and of the obligation to indemnify, which greatly influenced the present paragraph. For a more in-depth analysis, see: PEREIRA, Maria de Lurdes. A Indemnização de Despesas Inutilizadas na Responsablidade Obrigacional [The Indemnification of Inutilized Expenses in Obligational Liability]. Coimbra: Gestlegal, 2020.
[34] Making use of reasoning analogous to the one proposed, José de Aguiar Dias purports a restrictive interpretation of the indexed system applicable to contractual legal claims for reparations – as prescribed by the Warsaw Convention of 1929 – aiming at excluding its applicability to damages caused by delays from the transporter’s part. (Da Responsabilidade Civil [Civil Liability] – 11ª ed. – Rio de Janeiro: Renovar, 2006, p. 283).
[35] ASCARELLI. Tullio. Antigone e Porzia [Antigone and Portia]. Rivista Internazionale di Filosofia del Diritto, Anno XXXII, Serie III. Milano: Giuffrè, 1955, pp. 756-766, pp. 763-764. For an in-depth study of the notions of fattispecie and regula juris: COMPARATO, Fábio Konder; SALOMÃO FILHO, Calixto. O Poder de Controle na Sociedade Anônima [Control on the Corporation] – 5ª ed. – Rio de Janeiro: Forense, 2008, pp. 334-338.
[36] As is understood from Rafael Villagomez’s work, which considers excessively ample the definition of “aircraft” that emphasizes its autonomous suspension in the atmosphere, and excessively restrict its definition that clings onto the Transportation of goods and persons (Condicion Juridica de la Aeronave [Legal Condition of the Aircraft]. Tesis de Licenciatura en Derecho. Faculdad Nacional de Jurisprudencia. Ciudad de Mexico, 1951, pp. 7-11).
[37] MIRANDA, Francisco Cavalcanti Pontes de. Tratado de Direito Privado, Tomo LIV [Treaty of Private Law, Tome LIV]. São Paulo: Revista dos Tribunais, 2012, p. 96 – our translation to English.
[38] SIMAS, Hugo. Código Brasileiro do Ar Anotado [Notes on the Brazilian Code of Air]. Rio de Janeiro: Freitas Bastos, 1939, p. 216-217 – our translation to English.
