There can be nothing but sympathy for Malaysia Airlines and those onboard MH17, and their relatives and families, following the likely shooting down of the aircraft by surface-to-air missiles, possibly fired by pro-Russian rebels in eastern Ukraine. While investigations continue to seek confirmation of the cause of the disaster, insurers for the airline, and lawyers representing the dependants of passengers, will be reviewing the legal framework by which claims may be made.
CONVENTIONS
Aviation law is subject to international conventions that govern the way claims can be made, relating to the international carriage by air of passengers by an airline. The present multilateral treaty is the Montreal Convention – claims are made, and liability established, under its provisions. The countries that are signatories to the convention agree to implement its terms in their own domestic legislation.
Claims for death or injury to passengers under the Montreal Convention are in a two-tier liability system. For damages not exceeding 113,100 Special Drawing Rights (international reserve assets, created by the International Monetary Fund – in this case, the equivalent of approximately £103,500), the carrier is not able to exclude or limit liability, and these amounts are available to the passenger or their dependants whether the carrier was at fault or not.
Some airlines operate enhanced limits above the levels set in the Montreal Convention, and there are usually arrangements in force under national law to make advance payments without delay to those entitled to claim compensation.
The airline is not liable to pay damages above the initial tier if it can show that the damage caused was not due to the carriers’ negligence, or other wrongful act or omission, or that the damage was solely due to the negligence, or wrongful act or omission, of a third party.
It is, therefore, easy to recognise the importance of current arguments concerning the routing operated for flight MH17 – through air space in which a military transport plane was shot down in the days before this accident. Because of the burden of proof, it will be for Malaysia Airlines to show that it was not negligent to follow a route over Eastern Ukraine. The airline will be able to argue that other carriers have used the same routing at about the same time.
Dependants of passengers entitled to claim may consider bringing claims in a number of jurisdictions. These would include Amsterdam, where the aircraft departed; Malaysia, where it was intended to land and where the airline is based; and the home jurisdictions of individual passengers. It is more likely that groups of dependants will bring claims jointly in the same jurisdiction, to avoid duplication of legal costs and to seek a quick and early settlement.
ACT OF TERRORISM
For many commentators, it may seem harsh to recover very substantial payments from an airline which essentially was doing nothing more than flying to its destination, with the accident resulting from a deliberate act of terrorism. Usually, liability might be avoided in these circumstances due to force majeure, where an unexpected and unlawful attack by terrorists might arguably not fall within the carriers’ liability. The airlines’ public liability insurers will no doubt seek to argue the lack of any second tier liability under the convention, and that there was no intentional or reckless misconduct by the airline.
Hopefully, it will emerge in the coming weeks whether any negligence by a third party might be established by Malaysia Airlines. The progress of passenger claims under the convention will be watched closely.