(Please note, this matter is not currently being litigated in Australia)As an international contingent of search and rescue teams continue to look for the missing B777 aircraft and its passengers, the latest information released by official sources has only added to existing speculation of terrorism and foul play in the disappearance.
It has been confirmed by the airline that while 5 passengers did not actually board the aircraft, their baggage had also been removed from the flight. This follows normal airline protocols to ensure no passenger baggage travels unaccompanied. Such procedures were implemented worldwide after the Air India Flight 182 bombing in 1985. That bombing was traced to a device packed in checked baggage that was never accompanied by the passenger who checked it in.
Despite that clarification by the airline, speculation still abounds as to terrorist or hijacking related causes, for reasons described in our previous update. It appears now that the two passengers who boarded using stolen passports bought tickets for the flights together – they were one way Malaysia to Europe tickets with a Beijing stopover, and ticketed through China Southern Airlines, China’s largest air carrier. The tickets were purchased by a third person in Thailand, and Malaysia Airlines is working with various security organisations like Interpol and the FBI to investigate these and potentially other unlawful interference scenarios. The airline has said it will release CCTV pictures of the unknown passengers at an appropriate time.
There are as yet no concrete facts in relation to the speculation that those passengers were somehow responsible for what has happened. At this stage all that is definitely known is that the aircraft could be anywhere within a large footprint of area on land or in water and that its Aircraft Communications Addressing and Reporting System (ACARS) did not automatically transmit any information about distress calls or anything else. The search area has been expanded considerably from yesterday, and now sits further to the West of the Gulf of Thailand into Straits of Malacca and covers the land area in between that region and the intended track of the aircraft. This change is potentially in response to an indication that the aircraft either turned back to Malaysia, or away from its intended track.
Initial suspicions that floating debris belonged to the aircraft were quickly dismissed, and officially nothing has been found.
The airline’s avowed focus continues to be the care of the affected families, including transporting them to either Kuala Lumpur or Beijing, and accommodating them and offering counselling services. Reports are varied as to whether the promise of providing families with timely information about search developments is actually being fulfilled for all involved.
What are families’ rights?
While the world waits for answers, and prays for relief, families should note that in such circumstances the international community has agreed on crisis assistance which should be provided by (variously) the country where the incident occurred, the country of the airline, and the country of each family.
Affected passengers’ families should note they have rights under Annex 9 to the Chicago Convention. This sets out recommended practices for countries in relation to urgently admitting family members of victims of aircraft accidents to the country in which the “occurrence” occurred. Entry and exit of countries at times like this should be expedited for family members.
All other countries who are parties to the Chicago Convention are recommended to offer any other necessary assistance (from arranging transport to help clearing customs) for those family members travelling to where an incident has occurred.
Additionally, under aviation liability treaties and International Civil Aviation Organisation (ICAO) policies on assistance to aircraft accident victims and their families, when the aircraft cannot be found, governments of countries in which the aircraft is registered (here, Malaysia) must provide advance payments to families to meet their immediate economic needs following such incidents.
Each country should have a family assistance plan which makes it possible to provide such assistance at very short notice.
Also, countries involved with such incidents are recommended by ICAO to support the establishment of family associations to ensure the proper handling of common issues, but also to enable families to take emotional support from others who share their unique situation.
After air disasters of all descriptions such family associations have been instrumental in helping families achieve for themselves a measure of justice.
Written by Shine Lawyers. Last modified: September 26, 2018.