THE (IN)APPLICABILITY OF THE BRAZILIAN CONSUMER DEFENSE LAW IN MARITIME CARGO TRANSPORT

Abstract

The Commercial Code (Law no. 556, of June 25, 1850) was the first diploma to regulate transport in Brazilian Law, legislating notably on maritime transport. For some time, transport was regulated superficially and on a case-by-case basis in the Brazilian legal system, through successive government decrees dealing mainly with rail transport. The Brazilian Civil Code of 1916 did not discipline the subject, since the transport was seen as an essentially mercantile contract. The Civil Code of 2002, therefore, was the first Brazilian legal diploma to systematically regulate the typical transport contract, establishing general principles and a rule in line with consolidated practice in legal doctrine and jurisprudence of the Courts. Some exegetical challenges still remain for jurists, in particular regarding to the carrier's civil liability. In maritime transport of goods contracts, it is still important to discuss about the (in)applicability of consumer protection rules for carrier liability purposes. This issue involves relevant conflicting interests, considering that the application of the Consumer Law implies several more favorable reflexes to the transport service contractors and, consequently, less advantageous to the carriers. The great complexity of the Brazilian consumerist system, which directly touches the problem addressed here, concerns the definition of the concept of consumer and, above all, it refers to the exegesis of the expression “final recipient” contained in the text of art. 2º of the Brazilian Consumer Defense Law.