Refusal to apply a norm in an international convention on the grounds of its illegality
RULING Nº 444/08
23 of September of 2008
The ordinary legislature enjoys a margin of discretion in applying the right to compensation for unwarranted damage sustained by anyone as a result of another's conduct. Although full reparation of damage need not be guaranteed in all cases, the limitations that may be applied in such matters must be justified and must not result in paltry compensation.
While it is not for the Constitutional Court to determine the actual threshold beyond which compensation resulting from application of the statutory limits is so paltry that it can no longer be regarded as real reparation for the damage sustained, it must ensure that the constitutional objective of protecting citizens against injustice is respected, in accordance with the principle of evidential scrutiny.
In accordance with the Brussels Convention of 10 October 1957 on limitation of the liability of the owners of sea-going ships, a liability limitation fund was constituted at the Lisbon Maritime Court with a view to compensating victims entitled to claim compensation for damage sustained following a collision between two fishing vessels. The fund amounted to € 8.267.41.
Following an accident at sea, a total of 47,086,770 Portuguese escudos (€ 234,867.82) was claimed at the meeting of the creditors as compensation for damage to property with default interest.
The Lisbon Maritime Court considered that damage to property, in a total amount of € 65,785.04, had been substantiated and, following the distribution of the full amount in the liability limitation fund among all the claimant creditors, the sum due to two of them was set at € 2,465.34. These claimants' appeals to the Lisbon Court of Appeal and the Supreme Court of Justice were dismissed, and they accordingly appealed to the Constitutional Court arguing a breach of the rule of law in that applying the above-mentioned international convention, and, consequently, the fund provided for therein, to coastal vessels was contrary to the letter of the law, from which it was clear that Portugal had wished to apply the Brussels Convention of 10 October 1957 not to coastal vessels but solely to sea-going ships.
They maintained that application of this Convention in the case under consideration was also unconstitutional since it constituted a violation of the right to private property and to fair compensation.
With regard to the first question - application of the Convention to coastal fishing vessels - the Constitutional Court held that, under its governing law, it could not deal with the dispute concerning the scope of an international convention, since the decision appealed against had not applied or refused to apply a rule laid down in legislation violating a higher-ranking law. On reviewing the constitutionality of setting the amount in the liability limitation fund in accordance with the Brussels Convention, the Constitutional Court held that compensation representing only 3.75% of the corresponding claim must be deemed manifestly paltry, taking into account the fact that the total damage sustained by the victims amounted to € 65,785.04. The disproportion between this sum and the amount awarded as compensation was so shocking that the latter must be deemed insignificant.
Allowing that a ship, whatever its tonnage, could wrongfully collide with another ship, thereby causing it to sink, and that the maximum amount payable for the pecuniary damage caused was only € 8,267.41 clearly undermined the essence of the constitutional right to reparation of damage, as a principle inherent in the rule of law.
The Constitutional Court accordingly declared the rule setting up the liability limitation fund provided for in the Brussels Convention of 10 October 1957 on limitation of the liability of the owners of sea-going ships, as amended by the Brussels Protocol of 21 December 1979, unconstitutional in so far as the amount of compensation awarded following distribution of the fund among the claimants was equivalent to 3.75% of certain victims' claims amounting to a total of € 65,785.04.