The Brazilian Federal Supreme Court Minister Luiz Fux, when analyzing an indemnification claim filed toward the Federal Republic of Germany because of the sinking of a fishing boat on the Brazilian coast in 1943, recognized that the Brazilian Justice is not able to judge the indemnification claim against the foreign country, since it concerns an act of war.
In the presented case, a Brazilian fishing boat called "Changri-lá" sank after being torpedoed by a German submarine U-199 in Cabo Frio's coast during World War II.
In 1944, the Maritime Court, judging the accident of navigation, understood that it was not possible to determinate the cause of the disappearance of the fishing boat, although there were strong evidences that it was caused by a military action (Case number 812 of 1944).
After 55 years, the Navy's Special Prosecutor (PEM) requested the Maritime Court to reopen the case indicating as a determining cause of the disappearance of the vessel the impact caused by the torpedo fired by the U-199 in war. The evidence used was the testimony of the German submarine crew that survived to its sinking after a military operation performed by the Brazilian and USA Air Forces.
The Maritime Court received the prosecutor's thesis and required the adoption of due measures so that the boat crew had their names inscribed in the Pantheon of War Heroes.
After the decision of the Maritime Court, a relative of two deceased crew members filed a suit for damages in the Federal Court of Rio de Janeiro against the Federal Republic of Germany.
However, the lawsuit was dismissed because of the foreign country's immunity of jurisdiction. The plaintiff filed appeals, but the court decision was upheld by the Federal Court of the 2nd Region and the Superior Court of Justice. Finally, the plaintiff filed an extraordinary appeal to the Federal Supreme Court (ARE 953656 / RJ).
In an interlocutory judgment, the Federal Supreme Court Minister, in addition to asserting procedural obstacles, judged the appeal ineffective by arguing that the acts performed by a foreign country during war period are acts of empire, resulting from the exercise of its exclusive sovereign power, consequently, operating the immunity of jurisdiction.
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