According to the latest article published on our website, flight delays and cancellation that departs and arrives from Brazil create obligations through the airlines toward their passengers, in accordance with Resolution 400 of the National Civil Aviation Agency (ANAC). Whether the airline fails to fulfill its duties, it may be legally compelled to compensate passengers for pain and suffering and economic damage suffered.
Having overcome the subject, in this article we will cover a closely related topic that warrants special attention: the cancellation and delay of international flights, as well as damage, loss, and misplacement of baggage on international flights.
Unlike domestic flights, the airlines’ obligations toward international passengers are governed by the Montreal Convention. This means that any international flight issue that brings about any compensation will be adjudicated in accordance with the provisions of that Convention, which does not apply to domestic flights.
1. Pain and suffering and economic damage
For a comprehensive understanding of the subject, it is essential to distinguish economic damage from pain and suffering. The first one refers to financial losses suffered by the passenger, meaning the loss or deterioration of goods or belongings that have economic value, such as electronic devices, clothing, watches, and jewelry.
On the other hand, pain and suffering is the violation of the passenger's honor, privacy, peace of mind and dignity. For instance, pain and suffering resulting from an international flight delay may include situations where a passenger is forced to wait in long queues at the airline's counter without being assisted, sleep at the airport, miss an important commitment, lose a day of vacation, become ill due to the lack of access to necessary medication packed in lost luggage, experience anxiety attacks, repeatedly travel to the airport in search of information about their baggage without success, or be unable to file a complaint due to the airline’s failure to provide a proper communication channel for reporting damage, loss, or misplacement of luggage.
These are merely examples. Any harm that affects the consumer’s physical, psychological, or moral well-being qualifies as pain and suffering.
2. International Flights and Compensation for Material Damages
Regarding material damages, the Montreal Convention establishes that airlines are fully responsible for safeguarding passengers' baggage. In cases where baggage is lost, damaged, or misplaced, the airline is obligated to compensate the passenger.
The compensation amount is subject to a maximum limit. According to Article 22 of the Convention, the airline’s liability for baggage damage, loss, or misplacement is capped at 1,000 Special Drawing Rights (SDRs) per passenger, which, at the time this article was written, corresponds to R$ 7,993.20 (based on the exchange rate published by the Central Bank).
Since this amount represents the maximum compensation limit, it is likely that the airline will attempt to settle for the lowest possible amount, well below the legal cap. Therefore, we strongly recommend that passengers take photos and record videos of the contents of their luggage and retain receipts for purchases made during the trip. This documentation will significantly increase the likelihood of receiving compensation closer to the R$ 7,993.20 limit in the event of lost baggage on an international flight.
If you are carrying high-value items in your luggage, we advise you to submit a Special Declaration of Value to the airline before checking in your baggage, as stipulated in Article 22 of the Montreal Convention. If you are carrying high-value items in your luggage, we advise you to submit a Special Declaration of Value to the airline before checking in your baggage, as stipulated in Article 22 of the Montreal Convention. In this case, you will be required to pay an additional fee; however, if your baggage is lost, the airline must compensate you based on the declared value, which may exceed the R$ 7,993.20 cap.
2.1. Lost Baggage on an International Flight: What Should I Do?
If your baggage has been lost on an international flight, the airline has a period of twenty-one days to return it, as established in Article 17 of the Montreal Convention. However, if the deadline is approaching and your baggage has not yet been returned, you must file a formal complaint with the airline, either at a physical service counter or through the airline's online platform. If you fail to submit the complaint within the twenty-one-day period, you will no longer be entitled to compensation for economic damage. However, this does not prevent you from seeking compensation for pain and suffering, as we will explain further below.
2.2. Damaged Baggage on an International Flight: What Should I Do?
If your baggage is damaged during an international flight, you must file a complaint with the airline immediately upon noticing the damage, or at the latest, within seven days of your arrival at your destination. Failure to submit the complaint within this period will result in the loss of your right to compensation for economic damage - however, this does not prevent you from seeking pain and suffering, as we will explain later.
3. International Flights and Compensation for Moral Damages
All economic damage eligible for compensation - capped at R$ 7,993.20 per passenger - refer specifically to baggage damage, loss, or misplacement on international flights. However, there are no restrictions preventing passengers from seeking compensation for both pain and suffering and economic damage, the latter of which has no legal cap.
Pain and suffering can arise in various circumstances, such as being forced to wait in long lines at the airline's counter for hours, having to sleep at the airport, missing an important appointment, losing a day of vacation, falling ill due to the lack of access to necessary medication packed in lost baggage, experiencing anxiety attacks, making multiple trips to the airport in search of information about the luggage - without success - or being unable to file a complaint because the airline failed to provide a proper communication channel for reporting baggage damage, loss, or misplacement. These are merely examples; any harm affecting the passenger’s physical, psychological, or moral well-being qualifies as pain and suffering.
Fortunately, the Supreme Federal Court recently ruled that the 1,000 Special Drawing Rights (SDR) cap - approximately R$ 7,993.20 - applies exclusively to economic damage and does not extend to claims for pain and suffering arising from international flight cancellations or delays, or from baggage damage, loss, or misplacement on international flights. This ruling is binding, meaning that all judges in the country must adhere to the Supreme Federal Court’s decision.
5. Notable Case
A passenger purchased airline tickets from Lufthansa Airline for a trip from Barcelona (SPA) to São Paulo (BRA) with a connection in Frankfurt (GER). However, due to a delay in the flight departing from Spain, she missed her connection and was forced to spend the night at the German airport without receiving any assistance from the airline. As a result, she arrived at her final destination 24 hours late. Additionally, her baggage was lost during the international flight and was only delivered four days after she arrived in São Paulo.
The case was recently adjudicated, and the Supreme Federal Court ruled that the airline must pay the passenger R$ 12,000.00 in compensation for the pain and suffering caused by the flight delay and baggage loss. It is worth noting that this amount far exceeds the 1,000 Special Drawing Rights (SDRs) (approximately R$ 7,993.20) established by the Montreal Convention. This is because, as previously mentioned, this limit applies only to economic damage suffered by the passenger. Thus, in this passenger’s case, nothing would have prevented her from also filing a claim for economic damage, in addition to the pain and suffering compensation. This could include compensation for any damage to her luggage, expenses for food and accommodation due to the flight delay. However, the compensation for material damages would be subject to the R$ 7,993.20 limit.
5. Deadline for Filing a Lawsuit.
Regarding the deadline for filing a lawsuit, if the claim is only for economic damage, the passenger has two years from the travel date, as established in Article 35 of the Montreal Convention. However, if the claim involves pain and suffering the passenger has five years from the travel date to file the lawsuit.
6. Duration of the Legal Process
A lawsuit generally takes between 2 and 6 months, though this period may vary, particularly if the airline chooses to settle the case through an agreement.
7. Assert Your Rights.
If an airline causes material or moral distress to a passenger due to an international flight delay or baggage damage, loss, or misplacement, the only recourse available to the consumer may be to file a lawsuit to seek rightful compensation.
Given the specific nature of lawsuits against airlines - especially the fact that airlines typically comply with court-ordered compensation promptly after the judgment - it is common for law firms to charge legal fees only in case of a successful outcome.
These fees typically range between 30% and 40% of the amount awarded by the court, depending on the damage suffered by the consumer. The key to a successful claim lies in properly documenting complaints, gathering solid evidence and hiring a skilled attorney.
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