In 2010, a foreign shipping company operating in Brazil filed at the São Paulo State Court of Appeals an action for the collection of demurrage due to late return of containers, having the first instance court (in the Judicial District of Santos) held the claim invalid under the grounds that the claim was time-barred.
According to the position adopted by the Judge who rendered the decision, it would be applicable, in casu, the one-year statutory period of article 22 of Law no. 9611/98 with sets forth provisions on Multimodal Transport of Cargoes. Discontented with the decision, the ocean carrier filed the Appeal no. 0045504-46.2010.8.26.0562 before the São Paulo State Court of Appeals (TJSP) seeking that the limitation period were discarded and that its claim held valid. In its appeal, the ocean carrier emphasized that when it comes to unimodal transport, that rule would be inapplicable and that in view of nonexistence of a specific rule, the general ten-year statutory period of article 205 of the Civil Code would apply.
In the judgment session held at the 15th Chamber of Private Law of the São Paulo State Court of Appeals, after oral arguments on behalf of Appellant in which the caselaw controversy concerning the governing rule of the statutory period for lawsuits of this nature has been highlighted, the Judge-Rapporteur acknowledging a dissention as regards to this matter in several Chambers of the São Paulo State Court of Appeals, proposed to the panel of judges that a court precedents standardization procedural incident were raised, which has been unanimously accepted.
Afterwards, the referred procedural incident no. 0127698-38.2013.8.26.0000 was judged and after an intense debate among the 16 judges, the Special Panel of the Private Law 2 Section of the São Paulo State Court of Appeals, by absolute majority of votes, established the statutory period in 5 and 10 years, should there be a contractual provision or not – art. 206, §5, subitem I and art. 205, head provision, both of them of the Civil Code.
As a synthesis of such position, a precedent will be published soon, which will serve as a guidance to all Magistrates of the São Paulo Court of Appeals and will certainly have repercussions on other Brazilian courts decisions
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.