Malaysia Airlines may face global legal claims
New York, July 19, 2014
Malaysia Airlines may need to convince judges from several countries that it was not negligent to send a plane over war-torn eastern Ukraine if the airline hopes to avoid an outsize legal exposure for the downing of Flight MH17, aviation lawyers said.
The lawyers told Reuters they expected at least some of the families of the 283 passengers on board the flight to sue Malaysia Airlines for damages above the amount they can already seek under an international agreement.
There was no consensus among the lawyers about whether there was a strong case that Malaysia Airlines was negligent. Some lawyers said the carrier could argue that other carriers had used the same airspace many times in the past week.
Malaysian Transport Minister Liow Tiong Lai in fact stressed this point on Friday. He said the national airline took no undue risk in flying over Ukraine.
The potential lawsuits could be filed in any of several jurisdictions, such as Amsterdam, where the plane took off; Malaysia, where it was supposed to land and where the airline is based, or the home countries of individual passengers.
At least one passenger had American citizenship, US President Barack Obama said on Friday, so his family could attempt to sue Malaysia Airlines in the US.
Obama said the crash had a global impact with victims from 11 countries across four continents. There were no survivors, and authorities believe a surface-to-air missile downed the flight on its way to Kuala Lumpur.
Under an international agreement known as the Montreal Convention of 1999, an airline cannot escape liability for a passenger death even when an event such as an act of war or terrorism causes a plane to crash.
For each death, a carrier can be liable for up to 113,100 special drawing rights, a reserve asset created by the International Monetary Fund. On Thursday, the day of MH17's downing, the amount was equal to about $174,000, or $49 million for 283 passengers.
But families of passengers may sue for damages above that, and under the Montreal Convention, it is up to a carrier to prove it was not negligent or that a death was the sole fault of a third party such as armed militants. If the lawsuits were successful, the awards in theory would be without limit.
It was not known on Friday whether anyone connected to the passengers had taken steps to sue.
Damages related to the 15 crew members on board would be covered by other legal authorities, such as Malaysian worker-compensation law, said William Angelley, a lawyer in Dallas who specializes in aviation law.
WHO'S TO BLAME?
In April, the US Federal Aviation Administration (FAA) prohibited US air carriers from operating over much of the Crimean Peninsula after Russia moved to annex the disputed area.
But the majority of carriers continued to fly over an area in eastern Ukraine where pro-Russian rebels are fighting Ukrainian forces, using a route popular with long-distance flights from Europe to southeast Asia.
According to Flightradar24, an online flight-tracking service, 66 other carriers flew hundreds of times in the area where the plane was shot down in the last week. Malaysia flew there 48 times and Singapore Airlines 75 times. United Air Lines flew through five times.
"Other airlines were flying there. There was no indication that commercial airlines were being targeted. Was it a good idea? No. But I'd argue that that wasn't negligence," said Bruce Ottley, dean of the DePaul University College of Law and co-director of its International Aviation Law Institute.
A handful of airlines like Qantas Airways did alter their flight paths some time ago to avoid Ukrainian air space after fighting flared up in the region.
"An investigation will look at who shot the airline down but also if Malaysia Airlines acted appropriately in continuing to schedule its flights over the area," said Justin Green, a lawyer in New York who has represented families in airline disasters.
"The airline will be completely liable for all damages until they can prove that flying over the wartorn area was not negligent as a matter of law," Green said.
"We've flown this route for many years, it's safe and that's the reason why we are taking this route," Malaysian transport minister Liow told a news conference where reporters repeatedly questioned why the airline chose to fly over a conflict zone. - Reuters