(Please note, this matter is not currently being litigated in Australia)Update on search and implications on potential whereabouts of the aircraft
The search for debris or other clues as to the location of the Malaysia airlines flight has now taken a southerly turn, as the Australian Maritime Safety Authority (AMSA) tries to identify two pieces of floating or partially submerged objects captured on satellite images 2500 km south west of Perth, Western Australia.
The satellite images were dated 16 March 2014 which means locating the items now based on the last known position will require significant calculation, modelling and ingenuity by search teams under the AMSA’s oversight.
The search operation is hampered by weather and by logistical difficulties such as the last known area of the objects being a four hour flight from the nearest city, Perth.
If the aircraft is found to be in this region, it would be firmly placed in international waters. This fact has implications for the actors, and roles which will follow the forthcoming formal aviation safety accident investigation which follows.
Chapter 3 of Annex 13 of the Chicago Convention, to which both Malaysia and Australia are parties (Aircraft Accident and Incident Investigation), opens as follows:
The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability.
It is not the case, as many may believe, that the role of oversight of the accident investigation will immediately go to Australia if the aircraft is found within AMSA’s search and rescue zone.
AMSA is the Australian agency which has regulatory oversight of the aircraft search and rescue provisions of international obligations to which Australia is a party. Its role in aviation search and rescue is dictated by international laws and norms common to countries which have ratified the Chicago Convention (i.e., all ICAO states).
However, Annex 13 to the Chicago convention sets out the binding international standards and recommended practices for ICAO states in relation to aircraft accident investigation.
Chapter 5 describes the rights and obligations in relation to accident investigation and which countries take part in the event that an aircraft accidents happens, or the "occurrence" is one located on the high seas, in international waters (which means not within the territorial legal sovereignty of any particular country).
In such a case, Malaysia would retain authority of the investigation as the “State of Registry” of the aircraft. It has the discretion to delegate the whole or any part of the investigation to another State by mutual arrangement and consent. The State which conducts the investigation may call upon the best technical expertise from any source. In this instance, as the US NTSB has already been involved with calculating the likely vectors of the last potential movements of the aircraft from the point of last known satellite signals, it will very likely be involved in the investigation, as will Australia’s own ATSB. Additionally, the French Bureau d'Enquêtes et d'Analyses pour la sécurité de l'aviation civile (BEA), due to its experience in the investigation of Air France flight AF447 which crashed into the Atlantic Ocean in 2009, will very likely be closely involved.
What does this mean for the resulting production of investigation reports?
The BEA, the NTSB and ATSB are highly respected international aviation accident investigative authorities and will produce timely and accurate preliminary and final investigation reports. Their involvement will ensure families get the answers they need as quickly as possible.
Annex 13 gives clear rights to other entities to be involved in the investigation. These are the State of Registry and Operator (Malaysia), the State of Design (of the aircraft, the US), and the State of the Manufacturer (US, as this is a Boeing 777 aircraft).
Also, and importantly, each country which has a special interest in an accident by virtue of fatalities or serious injuries to its citizens is entitled to appoint an expert who is entitled to visit the scene of the accident/incident, have access to the relevant factual information which is approved for public release by the authority/country in charge of the investigation, and information on the progress of the investigation.
When can we expect to know the cause(s)?
No matter how competent the air accident authorities, the investigation itself will only begin once there is confirmation of an accident. As yet there is nothing but potential indications of an accident. An investigation would be hampered by the depth of ocean in any salvage efforts of the aircraft (deeper than the ocean in which Air France Flight AF447 was found) and the tyranny of distance of the potential site of the aircraft (on present thinking) and Perth, which is where wreckage (should there be any) will be sent.
It may take several years for such an operation to completely gather as much evidence as would be required to fully inform an accident investigation.
Annex 13 puts in place a recommendation that the country conducting the investigation should release established factual information and indicate the progress of the investigation at least during the first year of the investigation.
How does MH370 change aviation? And when will rules change?
Following major aviation incidents like MH370 the international community typically reacts to amend laws and policies to prevent such incidents occurring again. Incident by incident and reaction by reaction, safety improves overall over time. However, when one considers how slowly aviation regulation can sometimes move (as it depends on the diplomatic agreement of diverse nations through and under ICAO) it may be several years before any changes to law and policy are in place to prevent another event such as the disappearance of MH370.
The September 11, 2001 terrorist attacks happened on US soil using domestic airline flights and, in terms of passenger liability and liability to people for damage caused by the events on the ground by the attacks, laws were not put in place by ICAO until 2009. Some of these are still not in force. As the principal issues with the loss of MH370 revolve around technical issues of aircraft tracking and passenger facilitation (i.e., dealing with families while a search operation continues to look after their welfare) rather than something as visible and memorable as a major terrorist attack, the reaction may unfortunately be even slower, unless nations demand swifter change.
The existing ICAO policy on care of families following aviation accidents, is very thin, and needs updating to ensure families are treated as well or as highly as the various diplomatic, and aviation technical stakeholders in the industry which cooperate and coordinate international searches and investigations.
In short, passengers’ families need to be represented within investigations, both during the search phase and during the investigation phase.
It is only these people, with their human feelings and passionate concerns for answers (owing to their unique losses and experience), which can serve to remind investigators of the reason they are doing what they are doing – to prevent the suffering which has been caused to family members – not the lofty ambition of “making aviation safer” (a trite comment in the context of the shared global pain of those hoping with the families of MH370 passengers to get answers).
As it stands, if the aircraft is located off the waters of Western Australia in the Indian Ocean, passengers’ families were already, and will be entitled under international norms as follows:
- Support by Malaysia for the establishment of a family association,
- Timely information about the occurrence,
- Coordination of their travel and lodging at a family assistance centre, as well as assistance to those not travelling,
- Coordination of a visit to an accident site, where access is practicable,
- Support for immediate financial needs,
- Information about location and status of victims, and the recovery, and identification and disposition of remains,
- Information regarding the recovery, management and return of personal effects,
- Social, emotional and psychological support, and
- Information about the progress of the investigation and its objective
In addition to the ICAO policy, Annex 9 to the Chicago Convention (Facilitation) puts binding obligations on countries as follows:
- State of Occurrence (here international waters, but in its place, Australia) should make arrangements as needed to facilitate the entry of family members of those on the flight
- Australia would also need to facilitate the speedy arrival of authorised representatives for the investigation, from overseas, and
- Australia should expedite the provision of emergency travel documents for these purposes.
It is not the case that, in the event compensation is paid by the airline to families that any of the expenses paid for in relation to family assistance (such as flights and lodging) must be paid back to the airline.
Advance payments of cash to families is recoverable as part of eventual compensation and will be deducted from any settlement or verdict against the airline.
We believe that history and the law will change as a result of the exceptionally long search operation for flight and MH370, and the suffering and anguish it has created – laws and policies will likely require much more transparency by airlines and their governments at times like this.
What should families’ rights be? Does there need to be a passenger family bill of rights? What could have been done better? An immediate triggering of international cooperation through ICAO? Immediately presume a search area is bigger and further away than one would expect given the last signs of the aircraft from voice, radar, and satellite communications? Is there a more profound need for normal aircraft communications with the ground to be redundantly added to the list of information transmitted by ACARS?
These and other questions will emerge as issues in time as the search, investigation and safety lessons are learned from MH370.
Shine Lawyers Aviation Department wants to ensure passengers’ families have a firm voice during this distressing time. Our unilateral actions have and will continue to publicly highlight the need to reduce the suffering these families endure as a result of slow and strategic releases of information.
Our demand for answers from Malaysia Airlines will only strengthen as time goes on, and we plan to unite our voices with those around the world who share our passion.
For more information please contact us.
Written by Shine Lawyers. Last modified: September 26, 2018.