Tort Law

Potential liability for missing Malaysia Air flight depends, in part, on finding plane


Updated: More than two weeks after a Malaysia Airlines flight disappeared en route to Beijing, it is now thought to be at the bottom of the Indian Ocean, west of Perth, Australia. All 227 passengers and 12 crew members are presumed dead.

What happened and exactly where Flight 370 went down aren’t known. Whether international investigators can answer those questions may make a difference in the compensation available to their survivors, according to Bloomberg and NBC News.

Under an international treaty known as the Montreal Convention, the airline must pay about $175,000 for the death of each individual. However, if third-party liability can be established, the potential exists for additional damages. And compensation also may depend on the country in which the passengers lived, with residents of the U.S. likely to get some of the highest amounts.

“Compensation for loss of life is vastly different between U.S. passengers and non-U.S. passengers,” Terry Rolfe told CNBC. She heads the aviation group at Integro Insurance Brokers and estimated that survivors of passengers who were U.S. residents could get as much as $10 million, while families of individuals who lived in other countries would get less than $1 million.

“If the claim is brought in the U.S. courts, it’s of significantly more value than if it’s brought into any other court,” Rolfe said. “And for U.S. citizens there is no problem getting into the U.S. courts.”

Under the Montreal Convention, claims must be brought where the airline is domiciled or has its main place of business; where the passenger lived; where the ticket was purchased; or at the flight destination.

Most passengers were Chinese, so most survivors must seek damages in China or Malaysia “and these countries have very limited views of damages as opposed to America,” aviation attorney Floyd Wisner told CNBC.

However, given the likelihood of greater damages in American courts, families of those on the flight are mulling their options. “The U.S. is always the best choice to file a lawsuit,” aviation attorney Hao Junbo of Beijing told Bloomberg. “The families may try and take a shot there. The problem is we haven’t seen any evidence to link it to the U.S. to file a claim there.”

Possible theories of liability include terrorism, mechanical or structural failure of the Boeing 777 and pilot error. At least one law firm has already made a court filing, seeking information that may shed light on what happened.

Meanwhile, investigators from multiple countries, including the U.S., continue to search an area roughly the size of Alaska in search of the missing plane, according to Bloomberg.

“The disappearance of Flight 370 remains a mystery. The legal claims against Malaysia Airlines—those are not a mystery,” said Seattle-based attorney and pilot Robert Hedrick. “If the wreckage is located, the evidence may establish liability of other parties.”

See also:

ABC News: “Malaysia Airlines Flight 370: New Data Shows Focus in the Southern Indian Ocean”

Time: “Officials Say Missing Plane Crashed at Sea, None Survived”

Updated at 5:50 p.m. to include information from subsequent ABAJournal.com post.

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