A limitação da responsabilidade civil do transportador aéreo por extravio de bagagens em vôos internacionais frente à decisão do Supremo Tribunal Federal no julgamento conjunto dos RE 636.331 e ARE 766.618

Abstract

The purpose of this study is to analyze whether the decision of the STF in the case of ARE 766.618 and RE 636.331 that the determination of civil liability of the air carrier and the settlement of damages arising from incidents on international flights must be in accordance with the Warsaw Conventions and Montreal to the detriment of the Consumer Protection Code, constituted a setback to consumer rights with weakened understanding of reparations for damages under domestic law. An initial identification is made of which legal diplomas are proposed to regulate air transport, establishing the regime of civil liability proposed by each of them. From this, it delimits the normative incompatibility between the consumer law and the special international legislation with respect to civil liability of the air carrier for lost luggage. It addresses the position of the national courts for the resolution of the antinomy, which had a consolidated understanding due to the impossibility of applying the indemnity limits. We present the arguments that leads to the conclusion that the STF position in the judgment of appeals represents a relativization to the rights of consumers, changing an important paradigm fixed in the understanding of the reparation of damages by contemporary Brazilian law. It rescues the protection of the consumer as a discipline elevated to Fundamental Law status; focuses on the system of full compensation for damages, demonstrating arguments that point to the unconstitutionality of the indemnity limits and, it is concluded by the STF failure to observe the principle of prohibition of retrocession.