Brazil Pursuit of Legal Certainty: Judicial Developments in Passenger Rights, Cargo Liability, and Customs Enforcement

1. Introduction
   In recent years, the legal framework for international air transport in Brazil has changed significantly. Airlines have historically faced high litigation risk and broad interpretations of liability, increasing exposure and reducing predictability.
   This reality continues, but there are signs of change. Recent rulings from Brazil’s Superior Court of Justice (STJ) and the Supreme Federal Court (STF) signal a transition toward legal certainty, stronger adherence to international conventions, and stricter limits on judicial discretion.
   Throughout 2024, these Courts issued key decisions for the aviation industry. These rulings fall under three domains: (i) the pushback of presumed moral damages (in re ipsa) in international passenger claims and developments affecting passenger rights—including case law on animal transport and the applicability of the “right of regret” under the Consumer Defense Code; (ii) the STF’s reaffirmation of the Montreal Convention’s supremacy over domestic law in cargo disputes; and (iii) the STJ’s application of a strict three-year limitation period on customs penalties.
   These rulings provide powerful tools for airlines to defend against excessive claims and penalties, signaling a broader institutional movement to challenge what some observers label Brazil’s “moral damage industry.”

2. Evolving Passenger Claims: In Re Ipsa, Animal Transport, and the Right of Regret
   2.1 Pushback on In Re Ipsa Moral Damage Awards
   Brazilian courts have long relied on the doctrine of in re ipsa—presumed harm—to award moral damages in air transport disputes, especially in cases involving delays, cancellations, or lost baggage. This fostered a litigation culture in which passengers were granted compensation without proving emotional distress.
   This approach has come under scrutiny, particularly after Law No. 14.034/2020, which introduced Article 251-A to the Brazilian Aeronautical Code. This provision states that moral damages in air transport require objective proof.
   Recent rulings from the STJ reflect this shift. The Court reiterated that claims resulting from flight cancellations and delays must be evaluated in light of the inherent characteristics of air transport, which is subject to technical, operational, meteorological, and human contingencies. Accordingly, moral damages cannot be presumed; passengers must prove actual harm.
   By rejecting presumed damages and requiring evidence, the STJ is fostering greater legal certainty and curbing abusive litigation.

2.2 Case Law on Animal Transport: Affirming Airline Autonomy
An increasingly litigated issue concerns whether airlines can be forced to transport animals—particularly emotional support animals—when passengers fail to comply with internal rules. Rather than focusing on compensation, the central issue is whether courts can override airline policy.
In a recent precedent, the STJ confirmed that in the absence of specific legislation, carriers may adopt internal rules regarding the carriage of animals. Airlines are not required to accept animals onboard if passengers fail to meet safety and procedural requirements like weight limits and container specifications.
The Court emphasized that admitting animals outside safety standards could compromise flight security. The decision also clarified that emotional support animals are not equivalent to guide dogs, which are protected by law and subject to training standards.
This ruling affirms airline autonomy in managing operational and safety-related aspects of animal transport. Although lower courts may still issue divergent decisions, the STJ’s position sets a strong precedent.

2.3 STJ Recognizes General Repercussion in Right of Repentance Cases
In a noteworthy development, the STJ acknowledged general repercussion in a case discussing whether the "right of repentance" applies to air tickets purchased online.
Article 49 of the Consumer Defense Code (CDC) guarantees a seven-day cancellation right for purchases made outside a commercial establishment. However, airline ticket sales—especially online—have typically followed a 24-hour cancellation policy per ANAC Resolution No. 400/2016.
The discrepancy stems from the nature of air travel: tickets represent perishable service slots rather than goods requiring inspection.
Although there are favorable rulings confirming that the CDC’s right of repentance does not apply to air tickets, the decision to recognize general repercussion elevates the issue and opens the door to harmonized jurisprudence.

3. STF Affirms Supremacy of International Conventions in Cargo Transport
   In a milestone decision under Theme 1.366, the STF ruled in RE 1.520.841 that the Warsaw and Montreal Conventions prevail over national laws—including the Civil Code and the CDC—in international air cargo cases.
   Although prior STF precedents applied the Montreal Convention to cargo, the decision under Theme 1.366 confirmed that the understanding reached in passenger cases (Theme 210) also applies to cargo.
   The Court held that international treaties—specifically the Montreal Convention—apply equally to baggage and cargo, since Brazil’s obligations under Article 178 of the Federal Constitution prevail over conflicting national rules.
   The Supreme Court also rejected the notion that subrogation grants insurers broader rights than those held by the original cargo owner, confirming that the liability regime under the Montreal Convention applies regardless of subrogation.
   Because the STF’s ruling has erga omnes effect, it marks a significant step toward reinforcing treaty compliance within Brazil’s judicial system and enhancing predictability for carriers and insurers in cargo disputes.

4. STJ Imposes Three-Year Limitation on Customs Penalties
   A significant shift in customs enforcement emerged in 2025, following the STJ’s ruling in Theme No. 1.293, addressing the statute of limitations on customs fines arising from administrative infractions. Airlines have long struggled with penalties imposed after years of administrative inaction.
   The STJ held that if administrative proceedings related to customs fines remain inactive for three consecutive years, the fines are time-barred. This includes fines stemming from non-tax-related customs violations such as documentation and procedural issues.
   The decision carries substantial implications for airlines, as customs authorities must now observe stricter procedural deadlines, limiting the previous tendency to delay enforcement while interest and penalties accumulated. Airlines may now reevaluate ongoing cases to determine whether the three-year rule applies.
   By affirming the three-year rule for customs-related penalties, the STJ offers an important tool to control exposure to legacy fines and promote procedural efficiency.

5. Conclusion
   These judicial developments foster a more structured and predictable legal environment for international air carriage in Brazil. Rulings from Brazil’s higher courts reflect a reluctance to entertain claims that exceed treaty-based obligations or rely on presumed damages unsupported by evidence.
   These shifts benefit not only airlines but contribute to a more stable business environment by promoting predictability, proportionality, and contractual fairness. While challenges remain, these developments offer more robust tools for risk management in a highly regulated industry.