A responsabilidade civil nos contratos de transporte aéreo internacional e a controvérsia surgida após o julgamento do RE 636.331 pelo STF: a (in)conpatibilidade do dano moral com os limites indenizatórios previstos nas Convenções de Varsóvia e Montreal

Abstract

The present study is about the civil liability of air carriers for damages that occurred on international flight and aims to present the incompatibility of the compensation for moral damage with the indemnity limits provided for in the Warsaw and Montreal Conventions. For this purpose, an introduction about the main considerations of the civil liability and about the fundamental aspects of the liability of international air carriers will be made. There will be an analysis of the national and international laws that regulate the subject and an exposition of the normative conflicts between the Consumer Protection Code and the Warsaw and Montreal Conventions. After presenting the legal antinomies, the classic criteria for the resolution of the conflicts of laws will be displayed, as well as several doctrinal positions regarding which legislation should prevail and be observed in the specific case. The decision of Extraordinary Appeal 636.331 will be addressed, which led to the fixation of a thesis for the theme with general repercussion 210. Although the Supreme Federal Court has signed a decision to give prevalence to the application of the rules set out in the Warsaw and Montreal Conventions, in terms of compensation claims for damages that occurred on international flights, a controversy still persists and will be discussed: the compensation limits provided for in the aforementioned international treaties apply only to the calculation of the compensation for material damages or do they also extend to moral damages? Finally, there will be a conclusion by the non-application of indemnity limits to the calculation of the compensation for moral damages, due to the compensatory nature of this compensation, as well as the very personal nature of the personality rights protected by it, which demand a subjective evaluation of the concrete case to dimension the extent of the damage, and due to the need to comply the principle of full reparation, constitutionally instituted, which ensures compensation equivalent to the damage borne by the victim. The research methodology adopted was descriptive, associated with a qualitative methodological approach and supported by bibliographic analysis, focusing on the exploration of doctrines, jurisprudence consolidated by the Superior Courts, scientific articles, legal magazine, constitutional and infra-constitutional norms.