– Mohammad Rubaiyat Rahman
Author is pursuing LL.M. in South Asian University (SAU) and an awardee of SAU President Scholarship (2012-2014).
Author’s SSRN Link:
The query of who weighs legal liability is now a burning issue entwining around the Flight MH 370 incident. No doubt, Malaysia Airlines’ financial liabilities could be substantial. Questions about the Malaysia’s handling of the crisis are becoming more common. Malaysia Airlines has so far offered a payment of $5,000 per family as financial assistance for expenses while the wait continues. Malaysia has also been paying for 2 dedicated caregivers each family to help the affected relatives to cope the crisis.
However, there are minimum payouts due under international convention. Montreal convention is a multilateral treaty as well as uniform legal framework adopted in 1999 concerning monetary compensation for the scourged victims of air crash accident. The treaty is formally familiar as Convention for the Unification of Certain Rules for International Carriage by Air. The treaty has replaced not-in-vague Warsaw Convention of 1929. 239 passengers of ill fated MH 370 belong to 14 countries. Other than Indonesia, Iran and the Netherlands– rest of the 11 countries are member to 1999 Montreal Convention.
Salient features of Montreal Convention are advance payment principles (article 28 of Montreal Convention); two tier liability system in tandem with facilitation of recovering proven damages without any compulsory lengthy litigation. The first tier is strict carrier liability and the second one is the ‘presumed fault of the carrier’ (i.e, for MH 370, it is the Boeing company- manufacturer of the Boeing 777- 200ER). However, Boeing can escape its liability by proving that the plane was not at fault and in that case the burden of proof would be on Boeing.
At present, maximum liability for air carriers is more than $180,000/per passenger (Articles 21 & 23). Compensation is supposed to be paid to the victims’ family members (Chapter III).
Latterly, a Chicago based law firm has filed a petition in Illinois Circuit Court (on behalf of the father of an Indonesian victim passenger of Flight MH 370) against Malaysia Airlines and Boeing Company. Although there has been confusion as to the proper identity of the plaintiff; the suit has been brewing motley of legal issues to mull. The petition aims to secure evidence of possible design and manufacturing defects deeming to have contribution behind the MH 370 incident. It also includes crew training records evaluation, safety and rescue training. The petition also requested the Judge of the Circuit Court for summoning the plane manufacturing company to provide identity of the plane’s manufacturing components in tandem with extensive list of components. The Court scheduled a hearing in about 4 weeks.
The present world is very different than that of the preceding time and the same is applicable to the booming aviation industry. Thence, it is not unusual that carrier manufacturers may find that they can also be sued for any of its built carrier and their much vaunted reputation may get ruffled by their own gilt edged and most reliable aircraft. Although the suit is brought into the circuit court basing upon ‘failure of the carrier’s equipment’, there is zero-conclusive evidence of mechanical failure of Flight MH 370. Furthermore, the fly-by-wire Boeing 777-200 ER has quite impressive (and also envying) flying records for the preceding two decades.
As per wordings of article 33 of the Montreal Convention, plaintiffs’ choice of jurisdiction can be bifurcated into:
1. the domicile and principal place of business of the airline; and
2. ‘final destination’ of the passengers (i.e., last destination of the entire trip).
Although there is no obstacle in bringing valid claims against U.S. defendants in U.S. courts, the present suit may create ‘piecemeal obstacles’ (in the following days) for non-US resident Malaysian and Chinese victims’ kins to claim compensation either against Malaysian Airlines or Boeing Company.
According to International Law, bringing multi-million dollar legal action suit against airlines and carrier manufacturing company is not invalid. Despite, such ‘too early’ institution of legal suit may swerve into a disservice step for those victims of MH 370 who belong to developed countries. In reality, such early initiatives would only provide narrow window ( to kin of developed countries’ victims of Flight MH 370) for bargaining larger amount of monetary claim.
Mohammad Rubaiyat Rahman, ‘Missing Flight of Malaysia Airlines (MH 370) and Scrambling to the Runway of ‘Legal Action” (South Asia Canteen 2014) <https://southasiacanteen.wordpress.com/2014/03/28/missing-flight-of-malaysia-airlines-mh-370-and-scrambling-to-the-runway-of-legal-action/> accessed