Updated 13 June 2014:
In conjunction with members of the Global Justice Network, Brent & Fiol, LLP represents the family members of victims of the loss of Malaysia Airlines Flight MH370. This article discusses the legal implications of the loss, and the prospects for wrongful death litigation in the United States.
Air traffic controllers lost contact with Malaysia Airlines Flight MH370 while it was en route from Kuala Lumpur, Malaysia to Beijing, China at 2:48 am on March 8, 2013. The aircraft is presumed lost along with all of its passengers and crew.
As of the time of this writing the precise reason for the loss of the passengers and crew of Flight 370 remains a mystery. By some accounts, officials continue to believe that Flight 370 was deliberately diverted from its planned route and flown by someone who was attempting to cover up his or her actions, but if that is what happened, the situation is unlike any other that has come before and seems nonsensical even in the context of criminal or terrorist activity. In previous instances in which pilots themselves have deviated from flight plans, it has been part of a suicidal act that ended with destruction of the aircraft relatively close to its planned route of travel. Where planes have been hijacked, the aircraft’s ultimate fate was never a mystery for long – hijackers and terrorists usually are seeking publicity. Moreover, the limited data available indicates that the plane flew close to, if not to the point when its fuel supply was exhausted, which seems inconsistent with controlled flight. In short, with only circumstantial evidence available at this point, a catastrophic failure of critical communications and navigation and/or control systems on the aircraft cannot be ruled out, and there should be no rush to conclude that the aircraft’s passengers fell victim to a criminal act. Even if the location of the wreckage of the aircraft will soon be known, it will take time to recover the wreckage, examine it and reach conclusions.
While the search for the aircraft has been conducted by many nations, in accordance with international law the investigation itself may involve a more limited group. Investigators from the air carrier’s domicile (Malaysia) and that of the aircraft’s and engine manufacturers (United States and England) are certain to be involved in the investigation, with likely assistance from other nations in light of the apparent maritime connection to the accident.
The flight was served by a Boeing 777-200 aircraft that was first flown in 2002. By no means would this be considered an aircraft that was beyond its expected service life. Notably, however, another 777 of similar age suffered extensive damage from a rapidly developed fire in the cockpit that was the result of electrical wiring flaws in the vicinity of lines that supplied emergency oxygen to the cockpit crew. Remedial measures were recommended by Boeing and it will be interesting to see if Malaysia Airlines complied with that recommendation. The earlier incident occurred on the ground, but if a fire developed while the aircraft was at high altitude the results could be devastating.
Claims Against Malaysia Airlines
All or most of the families of the passengers will have legal remedies against the airline under a number of international treaties. News report indicate that the passengers were from China, Malaysia, Indonesia, Australia, the United States, France, Ukraine, Canada, New Zealand, Russia, Iran, Taiwan, and Holland. The particular treaty that governs will depend on the trip origin and destination shown on the tickets of the passengers: for most of those who intended to begin and end their trips in their home countries, it appears that the airline’s liability will be governed by the Montreal Convention of 1999.
Under the 1999 Montreal Convention, Malaysia Airlines will be held liable for damages suffered by the passengers’ families without proof of fault, up to 113,100 SDRs. SDRs are monetary references used by the International Monetary Fund and others; as of the time of the accident, 113,100 SDRs were worth approximately US $175,504.
Under Article 21(2) of the 1999 Montreal Convention, the airline is liable for all of the plaintiff’s damages unless the airline proves that it was completely without fault, or that the accident was caused solely by the fault of a third party. Unlike most laws that place the burden on the plaintiff to prove his or her claim, the Convention imposes on the airline the duty to prove its lack of fault.
In this case, it remains to be seen whether the investigation will identify evidence that will allow Malaysia Airlines to mount a defense under Article 21(2). However, it should not be assumed that the airline will escape liability if the plane was diverted by a criminal act. Crime or terrorism, whether by the flight crew or passengers, is a known risk in aviation, and unless the airline could prove that it did everything possible to prevent the abduction, it will be liable to the families of the passengers for full compensatory damages.
The legal issues will be slightly different for the families of passengers from Holland, Indonesia, Russia, and Taiwan: those nations have not adopted the Montreal Convention. Those families may be required to resort to the 1929 Warsaw Convention, the predecessor of the Montreal Convention, or make claims under domestic laws. Fortunately for them, however, Malaysia Airlines voluntarily waived the extremely restrictive limits of liability contained in the Warsaw Convention, so their compensation rights should be similar to what is provided for in the Montreal Convention.
Litigation in the United States
Families should be very skeptical about the claims of U.S. lawyers who promise to bring successful claims for large damages in U.S. courts. No one can honestly make these promises. Firstly, few of any of the passengers will be entitled to sue Malaysia Airlines in the United States. Article 33 of the Montreal Convention offers plaintiffs a choice of jurisdictions to bring their cases. Two of those are usually the same – the domicile and principal place of business of the airline – in this case both are Malaysia. The other three choices also are often the same: the passenger’s “final destination” (in other words, the very last stop for the entire trip shown on the passenger’s ticket or flight confirmation), the place where the ticket was purchased (a complex question when the ticket is purchased online), and the place where the passenger had his or her permanent residence, as long as the airline does business in that country. On the basis of these three factors, those passengers who lived in the United States at the time of the accident, or who had round trip tickets that ended in the U.S., will have the right to bring claims in U.S. Courts. If any passengers do not meet those two criteria but purchased their tickets from U.S. based travel agencies, it may be argued that they can bring claims in the U.S. as well. For those foreign passengers who traveled on tickets that ultimately brought them home to Malaysia, China or elsewhere, and who purchased their tickets overseas, it likely will be impossible for them to maintain a case in the U.S. against the airline.
Claims Against Other Parties May Be Possible in the United States
For many families that cannot sue Malaysia Airlines in the United States under the jurisdictional provisions of the Montreal Convention, it is a virtual certainty that their attorneys will bring product defect claims in the U.S. against additional parties such as Boeing, the aircraft’s manufacturer, assuming of course that the loss was due to a mechanical problem. Claims against these other defendants are not governed by the Montreal Convention and there are few jurisdictional rules that would prevent these defendants from being sued in U.S. courts. If successful, these suits against U.S. defendants will allow foreign plaintiffs to obtain U.S.-scale damages. Moreover, foreign plaintiffs may argue that since they have valid claims against U.S. defendants in U.S. courts, they should be permitted to pursue their claims against Malaysia Airlines in the same courts, to avoid piecemeal litigation. This latter argument will be difficult to prevail on, but is worth trying. That said, success in making these product defect claims is far from assured.
Potential for Dismissals Based on Forum Non Conveniens
Even where a court has legal jurisdiction over a claim, under U.S. law it retains the ability to conclude that the case before it cannot be conveniently tried in its jurisdiction because of the location of evidence and witnesses. Thus, even if claims are properly brought in the U.S. against Malaysia Airlines, Boeing or other defendants, it is almost certain the defendants will argue (especially for claims brought by non-U.S. residents) that it would be more convenient to try the claims in the courts of countries located closer to the relevant evidence. If the court agrees, it will either dismiss the case or place it on hold, and direct the plaintiffs to file their claims in the foreign country. If for some reason the claims cannot be maintained in the foreign country (due to no fault of the plaintiff), the U.S. court will allow the case to resume.
International law should provide most if not all families of the passengers of Flight 370 with, at the very least, up to US $175,000 in compensation for the loss of their loved ones, in accordance with the damages laws selected by the forum courts. To the extent proven, additional compensation beyond that threshold likely will be available. However, the prospects for successful litigation in the United States are limited and speculative, and families should be very skeptical of those who promise otherwise.