MH370 With no trace of Malaysian Airlines Flight MH370 found thus far, aviation lawyers warn that it is wide open to potential lawsuits from the relatives of those on board.
Brisbane-based lawyer Joseph Wheeler (left) explained that under the Montreal Convention of 1999 (updated in 2009), airlines were strictly liable to damages of up to RM570,820.
To fend off suits claiming damages higher than RM570,820,according to the convention MAS would need to prove in court that the loss of the aircraft was not due to its own negligence, or that a third party is solely responsible for it.
This is where MAS may hit a stumbling block.
"The evidence isn’t there for them to argue that they weren’t at fault. They can’t argue that something else was at fault like an aircraft component or a terrorist bombing - something that is potentially not in their control.
"We are thinking that families will have that high level of proven loss damage available to them if there is no debris, because MAS haven't got a chance to prove themselves," he told Malaysiakini in an interview yesterday.
Malaysia is one of the signatories to the Montreal Convention, which spells out liabilities in event of damage or loss of air cargo, baggage, or passengers. On the other hand, crew members are covered by workers' compensation schemes.
Terrorism not a defence
Without the means to defend themselves, Wheeler says the next-of-kin of the passengers aboard MH370 could be awarded the full amount of whatever sum they can prove are their losses.
The court will consider factors such as loss of income, the deceased's likely future income, loss of support, and how much the next-of-kin are dependent on the deceased.
"It is to the extent of you what you can prove that you have lost, so one family may be able to prove a million dollars, another family may be able prove five," said the lawyer from the Australian firm Shine Lawyers.
Wheeler says he is representing the kin of some of those on board the aircraft, but declined to disclose who or how many, citing client-counsel confidentiality.
To a question on potential acts of terrorism, Wheeler says it can still be argued that MAS and airport security should have taken certain steps to prevent them.
Shine Lawyers manager, Patrick Nunan, added that this approach has been used in suits before, such as those following the September 11, 2001 terrorist attacks on the World Trade Centre and the Pentagon in United States.
MH370 - a most complex disappearance
Despite arguing that MAS is an easy target, Nunan nevertheless said the MH370 case was extremely complex.
"This is probably the most complex case that I know of in the last 30 to 40 years," he says.
"In that period of time, you have probably the greatest number of serious aircraft crashes. This (MH370) outshines Air France significantly,” he said, referring to the Flight 447 that crashed into the Atlantic Ocean in 2009.
Although it took two years to recover that aircraft's black box, pieces of it had been found much earlier and there were other indications of problems.
"They were able to find debris in a couple of weeks, they knew the location within a couple of days. So even though it took two years to pull the aircraft out, a lot could be done and pieced together based on the location where the pieces were found," Wheeler said.
Nunan (right) added that once a piece of wreckage is found, crash investigators typically go to the extent of drawing out an outline of the aircraft in an hangar, and try to piece it together like a jigsaw puzzle and figure out what had happened.
MAS Flight 370 went missing on March 8 when it was mysteriously diverted from its original flight path to Beijing and is presumed to have crashed in the southern Indian Ocean.
Despite what has been considered as the largest search operation in aviation history, no wreckage or debris has been found since it vanished almost a month ago. It was carrying 12 crew members and 227 passengers.
Brisbane-based lawyer Joseph Wheeler (left) explained that under the Montreal Convention of 1999 (updated in 2009), airlines were strictly liable to damages of up to RM570,820.To fend off suits claiming damages higher than RM570,820,according to the convention MAS would need to prove in court that the loss of the aircraft was not due to its own negligence, or that a third party is solely responsible for it.
This is where MAS may hit a stumbling block.
"The evidence isn’t there for them to argue that they weren’t at fault. They can’t argue that something else was at fault like an aircraft component or a terrorist bombing - something that is potentially not in their control."We are thinking that families will have that high level of proven loss damage available to them if there is no debris, because MAS haven't got a chance to prove themselves," he told Malaysiakini in an interview yesterday.
Malaysia is one of the signatories to the Montreal Convention, which spells out liabilities in event of damage or loss of air cargo, baggage, or passengers. On the other hand, crew members are covered by workers' compensation schemes.
Terrorism not a defence
Without the means to defend themselves, Wheeler says the next-of-kin of the passengers aboard MH370 could be awarded the full amount of whatever sum they can prove are their losses.
The court will consider factors such as loss of income, the deceased's likely future income, loss of support, and how much the next-of-kin are dependent on the deceased."It is to the extent of you what you can prove that you have lost, so one family may be able to prove a million dollars, another family may be able prove five," said the lawyer from the Australian firm Shine Lawyers.
Wheeler says he is representing the kin of some of those on board the aircraft, but declined to disclose who or how many, citing client-counsel confidentiality.
To a question on potential acts of terrorism, Wheeler says it can still be argued that MAS and airport security should have taken certain steps to prevent them.
Shine Lawyers manager, Patrick Nunan, added that this approach has been used in suits before, such as those following the September 11, 2001 terrorist attacks on the World Trade Centre and the Pentagon in United States.
MH370 - a most complex disappearance
Despite arguing that MAS is an easy target, Nunan nevertheless said the MH370 case was extremely complex.
"This is probably the most complex case that I know of in the last 30 to 40 years," he says.
"In that period of time, you have probably the greatest number of serious aircraft crashes. This (MH370) outshines Air France significantly,” he said, referring to the Flight 447 that crashed into the Atlantic Ocean in 2009.Although it took two years to recover that aircraft's black box, pieces of it had been found much earlier and there were other indications of problems.
"They were able to find debris in a couple of weeks, they knew the location within a couple of days. So even though it took two years to pull the aircraft out, a lot could be done and pieced together based on the location where the pieces were found," Wheeler said.
Nunan (right) added that once a piece of wreckage is found, crash investigators typically go to the extent of drawing out an outline of the aircraft in an hangar, and try to piece it together like a jigsaw puzzle and figure out what had happened.MAS Flight 370 went missing on March 8 when it was mysteriously diverted from its original flight path to Beijing and is presumed to have crashed in the southern Indian Ocean.
Despite what has been considered as the largest search operation in aviation history, no wreckage or debris has been found since it vanished almost a month ago. It was carrying 12 crew members and 227 passengers.
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