(Please note, this matter is not currently being litigated in Australia)History will show that the last month will have been one of, if not the, darkest in civil aviation’s short life. The disappearance of flight MH370, and the fact that there are still no clear indications of its location notwithstanding the “pings” picked up by Chinese and Australian vessels in the Indian Ocean in the last two days, demonstrates some of the glaring failures of international aviation safety and aviation regulation.
These will need to be addressed for families and the world of aviation in order to move on from the unyielding misery caused by the loss of the aircraft and all those on-board.
What needs to change?
Airliner tracking, now variously the responsibility of devices which paint aircraft with identities on radar screens (like transponders), and satellite communication systems (such as ACARS) were shown in this incident to be insufficient and vulnerable to human interference. Likewise, real time engine data communication systems were not sufficient to enable search and rescue operations to determine the location of this Malaysia Airlines aircraft.
The cockpit voice recorder and flight data recorders (ie, the “black boxes”) were roundly criticised due to the fact that they were only able to be “heard” by devices which identify and locate the transmissions which come from them for a relatively short period of time due to battery life, and also only within a relatively short distance of those seeking them. There is a need for these to be found more easily whether in water or on land.
Furthermore, the travelling public has quite rightly noted that it is relatively easy to find a lost modern smart phone using existing technology, so why is it so difficult to find a widebody aircraft? There have been criticisms that more investment goes into inflight entertainment systems than on aviation tracking and safety devices as would have found MH370 by now, if available and/or fitted.
How can it change?
On 7 April ICAO responded to the dire needs of families and the travelling public, announcing it will convene a special meeting of State and industry experts on the global tracking of airline flights, from 12 to 13 May 2014. The goal of the meeting will be to use the present momentum and demand for answers over MH370 to stimulate deliberations at international level on the technologies and capabilities (both on-aircraft and satellite) to accomplish better realtime tracking of airliners.
The President of ICAO used the occasion of the announcement as a vehicle to draw reference to ICAO’s new (ie, May 2013) policy on aircraft accident victims and their families. We have described this policy and what it entails elsewhere on our website.
As we announced previously, our concerns over events in the first week of the search operation prompted us to write to the ICAO President on 13 March 2014 requesting that ICAO take formal and informal action to ensure the Government of Malaysia fulfilled its functions under the ICAO family assistance policy. On 7 April 2014 the President of ICAO said the policy encouraged Member States to provide all necessary services and information to affected passengers and their relatives. These comments reflect the sentiments of ICAO as expressed in a letter sent directly to the Shine Lawyers Aviation Department on 26 March 2014. In its letter to us, ICAO encouraged us to liaise with the appropriate authorities of the Government of Malaysia on behalf of both passengers and crew families on matters of entitlements under the ICAO policy.
Before and since that time, we have given family members pro bono advice on this front. For those who reach out to us and whose cases trigger entitlements under the policy we will advocate for and on their behalves. We will also continue to provide assistance to family members who need advice on obligations which fall to Malaysia Airlines in such instances (eg, advance payments under the Montreal Convention of 1999).
What is left for families now?
With their questions unanswered, families are left in a strange limbo, characterised by hope but punctuated with an equally grim potential reality that the aircraft may never be found. There seems little purpose in pushing for answers which may take years to uncover. However, there seems likewise no point in giving up hope and demanding legal redress from those who can never bring back those lost and loved relatives.
The families of MH370 truly only have each other and the only people who can fully empathise are those, like the relatives of passengers and crew on-board Air France flight AF447, who have lived through the nearest equivalent of this scale of tragedy before.
What can we do?
Through our role as advocates, we’ve been able to guide and inform families of the relevant law and policies on rights now and into the future in relation to both ICAO family assistance policies, and families’ remedies against Malaysia Airlines and others under international air law. We will engage with the Government of Malaysia as needed on behalf of families, as we have been encouraged to do so by ICAO.
As aviation lawyers, these are some of the ways we can assist families who desperately need and deserve answers at this uncertain and tragic time. We have freely given of our resources to ensure those who seek this information and need it most at this time, get it.
Who has sought our comment?
In light of the contributions we can make to an understanding of the legal ramifications of such a disaster, and the less than well-known options for families as time passes, our comment has been broadly sought in relation to aviation-specific legal topics such as avenues for compensation and ICAO family assistance policy.
Our comment on this unprecedented situation was sought in the last month from the following channels and publications worldwide:
Bloomberg TV (Asia/Worldwide)
Channel News Asia (Singapore)
Channel 7 News Australia
and syndicated publications of these media sources in English and foreign languages.
Where to now?
We continue to wait and hope with the families of MH370. Our hearts go out to all who are affected by this disaster. We hope that they will receive some semblance of peace as the answers to the flight’s disappearance come to light in time.
Written by Shine Lawyers. Last modified: September 26, 2018.