In November 2004 the ship Vicuña had a violent explosion while unloading methanol at the Port of Paranaguá, at the flammable products terminal. This explosion led to the total loss of the ship and consequential pollution due to methanol and fuel oil spill.

Among the victims of the pollution were the Indians living in the Cotinga Island, located in the Bay of Paranaguá.

The National Indian Foundation (Funai), performing its legal duties of protector of the indigenous people of Brazil brought a lawsuit holding the ship owner, a renowned Chilean shipping company, liable for psychological and material damage sustained by the Indians living in the referred island. According to Funai, the indigenous population withstood health risks, loss of agricultural and fishing production as well as pain and suffering due to their losses. 

In first instance, the ship owner was ordered to pay R$ 50,000.00 in damages, adjusted, for the entire indigenous family residing in Cotinga Island at the time the accident with the ship Vicuña happened, for pain and suffering.

Dissatisfied, FUNAI appealed the decision (AC 5002029-57.2013.404.7008/TRF – Federal Court of the 4th Region) while the ship owner submitted a motion for clarification against the decision and then an appeal.

However, after the judgment of the motion for clarification submitted by the ship owner, Funai did not have ratify the reasons for the appeal.

As a consequence, the appeal filed by Funai was not entertained on account of being untimely (premature), since for the appeal to be entertained, the appeal reasons had to be ratified within 15 days of the date of the publication of the decision that judged the Motion for Clarification.

Thus, the 3rd Panel of the Federal Court of the 4th Region (TRF-4) had to judge only the appeal submitted by the ship owner.

At the judgment of the appeal filed by the ship owner, the justices understood in short that Funai is the party with standing to represent the indigenous communities, as it is inferred from the contents of the sole paragraph of article 1 of Law No. 5.371/67 and that the ship owner is strictly liable for the environmental damage caused, which includes pain and suffering.

In light of such aspects, the 3rd panel of the TRF-4 unanimously decided to reduce the indemnity to be paid on account of pain and suffering from R$ 50,000.00 to R$ 10,000.00 to each indigenous family  related to the case.

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