The Second Chamber of Public Law of the Court of Appeals of the State of Santa Catarina has issued an unanimous decision dismissing the application for moral and property damages made by the Plaintiff against an airline company in view of purported pilferage of items that were inside checked luggage on a flight from Lisbon to Florianopolis.
In such claim, the passenger alleged that his checked baggage contained a ring as a gift to his wife and a camera that he intended to give to his brother-in-law. According to the passenger, the total value for these items was around R$ 3,300.00.
In his vote, the Reporting Justice Francisco Oliveira Neto denied the plaintiff’s applications and ruled the case in favor of the airline company since the passenger did not complete the “Declaration of Goods and Valuables” available to all passengers during check-in time at the airline company counter.
The Reporting Justice pointed out that the National Civil Aviation Agency (ANAC) recommends that passengers should always take such valuable items, medication and electronic devices with them in their carry-on luggage. However, if the passenger insists on carrying these belongings in his/her checked baggage, he/she must request such form and declare the goods contained in the baggage at the time of check-in. Finally, in his vote, the Reporting Justice advises that: “If such rules are disregarded, the airline company responsible for the carriage of baggage will not be civilly liable for possible damages.”
Notwithstanding the understanding of the Superior Court of Justice (STJ) that when it comes to the relationship between passenger and airline company the Consumer Protection Code is applicable, to the detriment of the Montreal Protocol, we consider that it is not possible to impute such liability to the airline company since it is extremely hard to produce negative evidence regarding the contents of the passenger’s baggage. In this regard, the passenger should indeed complete the “Declaration of Goods and Valuables” in their own favor in order to support the application for alleged damages in potential indemnification claims.