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Malaysia Airline MH17 passenger jet shot down over Ukraine


(Please note, this matter is not currently being litigated in Australia)

Early this morning a Boeing 777 (B777-200ER, registration 9M-MRD) flight from Amsterdam to Kuala Lumpur (Malaysia Airlines Flight MH17) carrying 280 passengers and 15 crew was lost off Dutch radar screens while in Ukraine airspace while near the border with Russia and came down about 60 km east of Donetsk, near Hrabove village, Ukraine.  This aircraft is of the exact same type as that lost in the MH370 disappearance.

This part of the world has been under the microscope due to political instability in the Crimea region, and international aviation authorities have acted in recent months to minimise or eradicate the air safety threats caused by the clashing parties trying to control the same “patch” of airspace: See our 11 April 2014 article /political-unrest-ukraine-russia-threatens-air-safety/

The aircraft was shot down, reportedly by a surface to air “BUK” missile resulting in the loss of life of 154 Dutch, 27 Australians, 23 Malaysians, 11 Indonesians, 6 UK, 4 Germans, 4 Belgians, 3 Philipinos, and 1 Canadian.  The remainder of the nationalities represented have not been confirmed, and includes a crew of 15 Malaysians.  The impact zone of the aircraft is some 500km from Kiev – 7-8 hours by road from Kiev according to this morning’s reports.  The aircraft had been flying at Flight Level 33 (33,000 feet altitude) and technically outside of restricted airspace.

The area, since April 2014, has been the subject of various NOTAMs (notices to airmen) warning pilots of the risks of flying in the region, for example, the UK NOTAM issued 30 June 2014 most recently which does identify the risk of misidentification of civil aircraft over such battle zones:

E) POTENTIALLY HAZARDOUS SITUATION UKRAINE AIRSPACE, PARTICULARLY OVER CRIMEA, THE BLACK SEA, AND THE SEA OF AZOV. DUE TO THE POTENTIAL FOR CONFLICTING AIR TRAFFIC CONTROL (ATC) INSTRUCTIONS FROM UKRAINIAN AND RUSSIAN AUTHORITIES AND FOR THE RELATED POTENTIAL MISIDENTIFICATION OF CIVIL AIRCRAFT, UK AIRCRAFT OPERATORS ARE STRONGLY ADVISED TO AVOID, UNTIL FURTHER NOTICE, THE AIRSPACE OVER CRIMEA, THE BLACK SEA, AND THE SEA OF AZOV, WITHIN THE FOLLOWING LATERAL LIMITS:

454500N 0345800E-460900N 0360000E-460000N 0370000E-452700N 0364100E- 452242N 0364100E-451824N 0363524E-451442N 0363542E-451218N 0363200E- 450418N 0363418E-445600N 0363700E-443100N 0364000E-424400N 0361600E- 424700N 0340000E-424800N 0304500E-434100N 0303200E-441500N 0302400E- 444600N 0300900E-455400N 0322500E-454900N 0324700E-455400N 0330600E- 455600N 0332700E-455900N 0332900E-THEN ALONG THE CRIMEA BORDER TO 454500N 0345800E.

UNILATERAL ACTION TO ESTABLISH A NEW SIMFEROPOL (URFV) FIR THAT INCLUDES BOTH UKRAINIAN SOVEREIGN AIRSPACE OVER THE CRIMEAN PENINSULA AND INTERNATIONAL HIGH SEAS AIRSPACE MANAGED BY UKRAINE CONTRADICTS INTERNATIONAL LAW AND ICAO ANNEX 11 STANDARDS. UKRAINE NOTAM A0528/14, PUBLISHED 28 MAR 20:14 2014, REJECTS NOTAM A0907/14 PUBLISHED BY THE RUSSIAN FEDERATION.

UKRAINE CONTINUES TO PROVIDE AIR TRAFFIC SERVICES (ATS) IN THE AIRSPACE DESCRIBED IN THE PARAGRAPH ABOVE AND RUSSIA IS ALSO PROVIDING ATS IN THAT AIRSPACE. FURTHERMORE, UKRAINE NOTAM A0520/14, PUBLISHED 28 MAR 16:59 2014, CREATES A PROHIBITED AREA OVER THE CRIMEAN PENINSULA FOR OPERATIONS BELOW FL290, AND UKRAINE NOTAMS A0524/14 AND A0569/14 CLOSE VARIOUS ATS ROUTE SEGMENTS. RUSSIAN FEDERATION NOTAM A0912/14 REJECTS AND DIRECTLY CONFLICTS WITH UKRAINE NOTAMS A0520/14 AND A0524/14.

CONSEQUENTLY, THE POTENTIAL EXISTS FOR CIVIL AIRCRAFT TO RECEIVE CONFUSING AND CONFLICTING ATC INSTRUCTIONS WHILE OPERATING IN THE DISPUTED AIRSPACE. OPERATIONS ARE NORMAL IN ALL OTHER UKRAINE FIRS. HOWEVER, UK OPERATORS FLYING INTO, OUT OF, OR WITHIN LVOV (UKLV), KYIV (UKBV), DNEPTROPETROVSK (UKDV), AND ODESSA (UKOV) FIRS, AS WELL AS AIRSPACE IN THE SIMFEROPOL (UKFV) FIR THAT IS OUTSIDE THE LATERAL LIMITS OF THE AIRSPACE OVER CRIMEA, THE BLACK SEA, AND THE SEA OF AZOV DESCRIBED IN THE FIRST PARAGRAPH OF THIS NOTAM, SHOULD REVIEW CURRENT SECURITY/THREAT INFORMATION AND NOTAMS THE CONTENT OF THIS NOTAM SAFETY WILL BE RE-EVALUATED BY 01 AUG 2014.

The act of attacking a passenger aircraft can be considered to be an act of war in international legal terms, which is why an emergency meeting of the United Nations Security Council has been convened. But in the past such events have happened as a result of human errors in targeting. The attack on the Malaysia Airlines jet, follows two instances of pro-Russian separatists shooting down Ukrainian aircraft in the last week over the contested , including a SU-25 fighter. We send our thoughts and condolences to those families affected by this tragedy.

Russia blames the Ukraine, and Ukraine blames Russia for this tragic event.

How does this happen?

In December 2013 we reported on how the Chinese “ADIZ” or air defence identification zone threatened the targeting of innocent civilian flights due to political demarcation of territory and airspace issues: see /who-owns-the-airspace-chinese-adiz/. The kinds of threats heralded by both the Ukrainian airspace control issues, which the world community thought had been resolved, and those identified following the imposition of the Chinese ADIZ, seem to have resulted in the nightmare situation of MH17 today.

International air law

The context of such incidents is that the international aviation community has long stood together against the use of violence or arms against civil aviation.  Destruction of an in-service aircraft is considered an act of unlawful interference under Annex 17 to the Chicago Convention (the Convention on International Civil Aviation).

Terrorist or other kinds of unlawful interferences with civil aviation result in air carrier liability in the first instance (under the Montreal Convention of 1999 in most instances), but political and diplomatic efforts can result in passengers’ families getting redress in other forms as the following past instances demonstrate.

Past instances of similar tragedies

As discussed in our article about the Chinese ADIZ, and summarised below, in the past, airspace incursions at times of political or military tension have led to hostilities erroneously directed against passenger carrying civil airliners. The examples described below demonstrate such tragedies.

In 1954 a Cathay Pacific aircraft enroute from Bangkok to Hong Kong was fired at by Chinese fighter interceptors, without warning. The aircraft crash landed killing some of the passengers, drowning others. The Chinese apologised and promised compensation claiming their military mistook the aircraft for a Chinese Nationalists’ military aircraft, implying they would not knowingly open fire against unarmed civil aircraft.

Cold war tensions in 1983 led to Soviet forces shooting down a Korean Airlines passenger B747 (KAL 007) which was flying from New York to Seoul and which unwittingly strayed into Soviet Union territory away from its intended flight path. The aircraft strayed through a mixture of pilot error and a lack of technology now commonplace on such airliners that helps aircraft remain fixed on their intended track. However, it was noted that the pilots did not take heed of Soviet warnings and non-radio communications to exit the airspace they had unwittingly entered. Sadly, 246 passengers and 23 crew died as a result of this tension and the innocent mixup.

Likewise, an Iran Air A300 flying from Tehran to Dubai in 1988 (IAF 655) was shot down by a US guided missile cruiser, the USS Vincennes, when it was mistaken by the US forces as a fighter jet scrambled to attack. The aircraft was on its normal path but did not respond to radio calls on military channels (as it was a civilian aircraft) warning it that it would be attacked. As a result 274 passengers and 16 crew died when the aircraft was hit by a surface to air missile. The US ship had been deployed to protect the sealanes in the Strait of Hormuz and tensions were high as the ship had just drawn small arms fire from Iranian patrol vessels.  In this event the US Government paid compensation of about $200,000 USD to the family of each victim of the attack.

Update 30 July 2014

The International Civil Aviation Organisation (ICAO) met with civil aviation and international air travel industry groups to consider how better to avoid areas where anti-aircraft missiles could be used, as discussed on our website article yesterday.

Calls were made by the President of the ICAO Council for countries to provide better intelligence to allow airlines to better evaluate the risks. The head of the International Air Transport Association (IATA) warned against “wholesale changes to an industry that has proven to work, over many years”.

The main subject of concern was whether providing airlines with more information on conflict zones would compromise individual states’ desire to keep intelligence secret. There is a need to both sanitise information transmitted without compromising intelligence sources. Malaysia Airlines is strongly in support of moves to take the responsibility for making decisions about what constitutes safe flight paths away from commercial airlines.  IATA has called for stronger international laws controlling the manufacture and use of anti-aircraft weapons.

The high level meeting agreed on the need for better communications for operational planning of flight paths over sensitive regions. ICAO announced form a senior level task force comprised of state and industry experts to look at how to best collect and disseminate information for flight over conflict zones.

Those findings will be submitted at the next ICAO meeting in February 2015.

Monitoring continues

This event is expected to have significant international security and legal consequences as it involves the deaths of innocent civilians as a by-product of a political and territorial dispute.

Shine Lawyers Aviation Department will continue to monitor international events in relation to this terrible tragedy and provide aviation legal commentary as needed or requested.  Our team has current and recent experience in dealing with international aviation tragedies of this magnitude and those with questions are encouraged to the Shine Lawyers Aviation Department.

Accompanying image from Russavia, used under the following license. Image modified from its original state.

Written by Shine Lawyers. Last modified: November 19, 2018.

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