Change In The Brazilian Legislation: The New Brazilian Civil Code

As of 11 th January 2003 Brazilian law underwent a major transformation in its civil and commercial legislation with the coming into force of the new Brazilian Civil Code.

Until then Brazilian legal tradition had always distinguished between civil and commercial legislations. This was reflected in the existence of two separate Codes, the Civil one dated 1916 and the old Commercial Code of 1850. The new Code, however, breaking away from this tradition, was designed to unify all general principles and rules in both civil and commercial areas.

On account of that the 1916 Civil Code is now revoked, the same applying to approximately half of the Commercial Code containing the general rules of commerce (its Part I), the dispositions of which are now completely replaced by the new set of rules of the new Civil Code.

The changes are obviously immense and affect many legal matters. Therefore, doubts will inevitably exist and it will be some time until legal doctrine and court precedents help in establishing the prevailing interpretation on controversial issues. Notwithstanding, in the meantime, the maritime community involved with the effective or potential application of the Brazilian law must comply with the new regulations in a safe manner. Thus, our purpose is to provide basic information on the fundamental changes concerning two specific topics of most interest to maritime community: contracts of sea carriage and time limits .

I - CONTRACTS OF SEA CARRIAGE

I.1. Scope of application . The new Civil Code contains a whole chapter dedicated to Contracts of Carriage (articles 730 to 756). It contains some general principles applicable to any kind of carriage and two separate sections on carriage of passengers and of cargo, respectively.

The dispositions contained in the new Code apply to any type of carriage (general cargo, containers, bulk carriage and multimodal transportation), and do not revoke any statute or international treaty on this subject, provided that the provisions of these are not in conflict with those of the Civil Code. In other words, in case of conflict the dispositions of the new Code shall prevail over those of specific statutes or treaties.

From a practical point of view, the most important consequence is that the Multimodal Transportation Act of 1996 remains in force and applies, since the Civil Code has only two articles on this subject, basically repeating the broad principle already stated in the Multimodal Statute itself that carriers performing this type of contract are joint and severally liable for damages to or losses of cargo.

I.2. Cargo misdescription . One significant change has to do with cargo misdescription by cargo interests. While the new Code expressly states the general principle that cargo interests are responsible for proper and correct description of the goods that will be shipped, on the other hand it also establishes a very short term for the carrier to claim compensation from cargo interests in the case of cargo misdescription. This type of claim must be filed within 120 days and such time...