BRAZIL Law and Practice Contributed by: Godofredo Mendes Vianna, Camila Mendes Vianna Cardoso and Lucas Leite Marques, Kincaid | Mendes Vianna Advogados
3. Cargo Claims 3.1 Bills of Lading
the limitation clause might be considered null and void by Brazilian courts. 3.4 Misdeclaration of Cargo While there is no specific rule regulating liability for the misdeclaration of cargo in Brazil, gen - eral liability rules would apply in such a situa - tion. Therefore, a carrier that suffers damages due to the misdeclaration of cargo by the ship - per would, in principle, have a claim against the shipper. 3.5 Time Bar for Filing Claims for Damaged or Lost Cargo In general, a three-year time bar applies to indemnity and civil lawsuits related to unlawful acts, as prescribed by the Brazilian Civil Code. Specifically in relation to cargo claims resulting from sea carriage, Federal Decree No 116/1967 provides a one-year time bar from the date of discharge, similarly to the Law on Multi-modal Transportation (Law No 9,611/98) and the Law for Inland Carriage (Law No 11,442/2007). A time bar may be interrupted once at court, through a judicial notification. Once interrupted, the time bar is renewed for an equal period. It is not possible to extend the time limit by agreement between the parties, as this is a question of legal certainty that cannot be changed by the will of the parties. 4. Maritime Liens and Ship Arrests 4.1 Ship Arrests Brazil has not ratified the International Conven - tion relating to the Arrest of Sea-Going Ships, 1952, nor the International Convention on Arrest of Ships, 1999. However, Brazil is part of the 1926 Brussels International Convention for the Unification of Certain Rules of Law Relating to Maritime Liens and Mortgages, which, despite
Brazil is not a signatory to the international conventions concerning bills of lading. Law No 9,611/98 regulates the multi-modal transport of cargo in Brazil and sets forth the rules for the issuance of multi-modal bills of lading and the rights and obligations of the multi-modal trans - port operator. In addition, there are a number of domestic commercial laws dealing with sea transport and the bill of lading, such as the 1850 Commercial Code, the National Tax Code and, mainly, the 2002 Brazilian Civil Code, which is the most complete and important legislation in terms of private and commercial law in Brazil. 3.2 Title to Sue on a Bill of Lading All parties to the contract of carriage represented by the bill of lading have title to sue, such as the consignee, the shipper or the carrier, who are entitled to file a claim in the case of a breach of contractual obligations. The subrogated under - writers of the cargo are also entitled to a recov - ery lawsuit against the carrier under the bill of lading. 3.3 Ship-Owners’ Liability and Limitation of Liability for Cargo Damages The general rule in Brazil, set forth in the Brazil - ian Civil Code, is that anyone who causes dam - age to the other party must fully compensate the damages caused. As Brazilian law does not provide for punitive damages, as a rule indem - nity is limited to the direct damages suffered by the party. Indirect losses are generally excluded, unless otherwise agreed. Moreover, Article 750 of the Brazilian Civil Code establishes that the carrier’s liability is limited to the value inserted in the bill of lading. Liability may also be limited by the parties under a contract. However, if the contract is considered a contract of adhesion,
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