(Please note, this matter is not currently being litigated in Australia)On the morning of 8 March 2014 Malaysia Airlines officially confirmed it had lost contact with flight MH370 from Kuala Lumpur to Beijing. Contact was lost with Air Traffic Control at about 2:48am Malaysian time, about two hours after the aircraft left Kuala Lumpur. The Boeing 777-200 aircraft was due at Beijing at 6:30am local time but never arrived. It was carrying 239 passengers and crew. The 227 passengers were of 13 nationalities, and there were 12 crew members aboard.
The airline advised that 6 Australians are onboard, 2 New Zealanders, 153 Chinese (including one infant), 38 Malaysians, 12 Indonesians, 3 French, 4 Americans (including one infant), 2 Ukrainians, 2 Canadians, 1 Russian, 1 Italian, 1 Taiwanese, 1 Dutch, and 1 Austrian. The Captain of the flight, 53 year old Zaharie Ahmad Shah was highly experienced, with 18,365 flying hours. He had been with the airline since 1981. The First Officer, Fariq Ab.Hamid, a Malaysian, is 27 with 2,763 flying hours. He had been with the airline since 2007.
Malaysia Airlines Group CEO Ahmad Jauhari Yahya said, in a press conference this morning, “our thoughts, and prayers are with all affected passengers, crew and their family members”. The airline is in the process of contacting family members of those onboard.
Under international standards and recommended practices promulgated by the International Civil Aviation Organisation (ICAO) Chicago Convention Annex 12, the search and rescue process for this incident involves not only Malaysian authorities (as State of operator), but those countries where the aircraft either was known to or is speculated to have landed/crashed. In these circumstances Vietnamese, Thai and other authorities in the intended flight path of the aircraft would have been notified, and their air and sea services participated in the search.
The most recent information available is that at about 3:15pm (Australian EST) reports were made by Vietnamese authorities that a signal had been detected from the missing aircraft from 120 nautical miles southwest of Vietnam’s southernmost Ca Mau province. Shortly thereafter, at 4:10pm (Australian EST) reports were received from Vietnamese media and the Navy that it had radar reports which indicate that the aircraft crashed into the sea, close to Tho Chu Island. At the time of writing Malaysia Airlines had not confirmed these reports.
An official aviation safety investigation pursuant to Annex 13 of the Chicago Convention will now follow and will involve (at least) Vietnamese, Malaysian, and United States authorities, as the (respective) States of occurrence, operator and design/manufacture of the aircraft.
The Malaysia Airlines B777 disappeared while in its cruise phase, at which point in commercial airline flights, accidents are least likely to occur. However, it is not unheard of. Most recently, a flight disappearance of similar magnitude happened on 31 May 2009: Air France flight AF447 (an Airbus 330 flight scheduled from Rio to Paris) disappeared over the South Atlantic mid-flight and the first signs of where it may have landed were not found for two days. The wreckage was finally recovered over two years later. The final report issued by the investigating authority in 2012 implicated a combination of pitot icing leading to inaccurate airspeed information, and human factors/training failures in recognising and reacting to instrument inconsistences for the eventual stall and crash of the aircraft.
The Asiana Airlines Boeing 777 which crashed on landing in San Francisco on 6 July 2013, and which killed three Chinese teenagers in the crash and its aftermath, was the first B777 accident to have resulted in passenger fatalities. The (presumed) accident today could regrettably be the second.
Further information about the search and rescue operation is expected to be released as and when it can be confirmed by Malaysia Airlines. At this point, all of the airlines’ public and media communications have been factual and sparse which is line with industry best practice guidelines for air carriers following such accidents/incidents. Airlines are specifically discouraged from publicly speculating on potential causes, evidence and crew actions especially where they may implicate wrongdoing on the part of the airline or its crews.
Update 9 March 2014: Our thoughts and prayers remain with all the passengers and crew on flight MH370, and their loved ones at this extremely difficult time. Shine Lawyers will continue to provide regular updates on the search and rescue situation and media commentary to help interested readers make sense of the morass of correct and incorrect information presently saturating the internet.
The laws which apply to such incidents are complex as they depend on a multitude of passenger-specific information. Those who seek information on the laws that affect families of passengers in international aviation incidents like this may contact Shine Lawyers.
Stage of search
The aircraft at this stage has not been found, but as noted above, the nearest likely location has been identified by the Vietnamese Navy. Air and sea searches are being conducted by Malaysian, Singaporean and Vietnamese authorities in the vicinity of two (reported, but unconfirmed) oil slicks close to where the aircraft went missing, and which could be signs of leaked fuel. The United States National Transportation Safety Board (NTSB) is sending a positioning team to assist in investigating and the team includes technical advisers from Boeing and the Federal Aviation Administration. Boeing itself has on its website expressed its deep concern for the families on the flight.
As the airline and authorities continue their search for the aircraft, airline statements reveal that emotional support is being provided to families in Beijing, and Kuala Lumpur through the Tzu Chi Foundation and an unnamed disaster recovery management specialist from the United States. Volunteers from Australia and Malaysia are also assisting. The airline has promised more caregivers will be deployed to Beijing today. It has noted that once the aircraft’s location is conclusively established, it will set up a Response Control Centre at either Kota Bharu (at the north east part of peninsular Malaysia), or Ho Chi Minh, Vietnam, whichever is closest to the site.
The location of the site will have legal implications for the responsibility of the ensuing investigation (eg, protection of evidence and safe custody of the aircraft) as the country of the occurrence is the one with prime responsibility for investigation.
Mystery as to causes of disappearance without warning
The disappearance of the aircraft without distress signal, or calls from the flight deck to air traffic control or similar communications is extremely puzzling. The fact that weather reports at the location of the last known location of the aircraft were “unusually dry” is likewise confounding attempts to explain what has happened. The dearth of information and warning that the flight was in distress certainly points to a sudden catastrophic event, or chain of events.
The B777 is a very sophisticated aircraft and the one operating flight MH370 was only 11 years old (registration 9M-MRO). The only other incident the aircraft had been involved in was a taxiing incident on 9 August 2012, when it clipped the tail of a China Eastern Airbus 340 at Shanghai Pudong International Airport. As ex-Senior Air Safety Investigator of the NTSB Greg Feith described in media commentary today, the B777 has battery backup and other redundancies to ensure pilots can remain in contact with the ground during emergencies. Mr Feith also noted that a sudden depressurisation could account for the lack of contact with air traffic control.
Role of depressurisation in brief
Depressurisation at altitude can lead to sudden incapacitation due to hypoxia, and is one of several theories investigators will look at to account for the loss of contact. This was a major factor in the crash of a Boeing 737 of Helios Airways (flight 522) on 14 August 2005 which killed all 115 passengers and 6 crew on board. In that disaster a lack of oxygen (hypoxia) incapacitated the crew and the flight continued on in an automatic holding pattern until it crashed due to fuel exhaustion.
Terrorism implications appraised
Malaysia Airlines has, since yesterday, released the passenger manifest for the flight. In the preparation of this document, a few initial inaccuracies were clarified. First, there were in fact 5 Indian nationals aboard and 7 Indonesians. Initially it had been thought there were 12 Indonesians, but this was due to a mix up with country code abbreviations.
Second, it was determined that two of the passengers onboard were travelling with stolen passports. Mr Luigi Maraldi from Cesena was named on the manifest but rang his worried parents in Italy telling them he was safe and well in Thailand. His passport had been stolen in August 2013. Also, Christian Kozel from Austria contacted his family to say he was not on flight MH370. His passport was stolen in Thailand two years ago.
Without wanting to add fuel to the fire of rampant speculation and innuendo surrounding the potential causes of the flight’s unexpected disappearance, the possibility of terrorism cannot be excluded. Stolen passports disguise criminal activity by allowing their holders to assume the identity of unsuspecting victims. At this stage nothing is known factually with respect to the identities of those who actually boarded the aircraft with the stolen passports. Whether terrorist activity was to blame for the presumed accident can only be learned in the fullness of time, once the aircraft is located, and this will involve examining the aircraft for signs of tampering, identification of particular patterns of damage consistent with bombing, or other interference, plus analysis of the aircraft’s “black box” recorders. However, it is a fact that civil aviation has often been targeted by criminal elements for political or other ends and notable examples like the 11 September 2001 hijackings and attacks are common knowledge.
Pan Am Flight 103 – the Lockerbie bombing
One of the most shocking acts of terrorism using civil aviation was in 1988. Pan Am Flight 103 from Frankfurt to Detroit (via London and New York) was the target of a mid-air explosion on 21 December 1988 killing all 243 passengers and 16 crew, plus 11 people in the town of Lockerbie on the ground. The aircraft “disappeared” from radio contact as it cruised over Scottish airspace at 31,000 feet. An explosion had detonated in a cassette player stored in checked baggage by bombers. This remains one of the biggest examples of state sponsored terrorism and in the end Libya took responsibility for the attack.
Kunming railway massacre on 1 March 2014
A savage terror attack in a Chinese railway station just over a week ago, which resulted in at least 29 people being killed, and 140 people injured, may potentially hold clues as to potential motivations for any attack targeting a flight which was predominantly carrying Chinese passengers. While no terrorist group has claimed responsibility for the loss of flight MH370, the mystery disappearance follows close on the heels of the major attack in China last Saturday.
In that attack a group of knife wielding assailants unleashed an attack in Kunming in south west China. The attackers were identified as belonging to an extremist Muslim ethnic minority (Uighur) from Xinjiang. The attack was considered to be timed early this month to precede the most important Chinese annual political event, the National People's Congress which goes from 5 to 13 March. The Uighurs, a Turkic ethnic minority who look very different from China’s Han majority, are concentrated in the western Central Asian border of China. They seek autonomy and even separation from the Chinese state due to what some sources describe as decades of institutionalised repression (eg, limits on worship and career opportunities).
Less insidious causes
Other causes of sudden catastrophic in flight aircraft losses may be less insidious but the results are equally tragic. Many readers will be familiar with Trans World Airlines flight 800 (TWA 800) which exploded and crashed near New York in the Atlantic Ocean on 17 July 1996. The accident took the lives of all 230 on board. Twelve minutes after take-off on a scheduled passenger flight from New York to Rome, the aircraft exploded. This was officially attributed to an explosion of fuel/air vapours in a fuel tank, potentially caused by a short circuit in electrical wiring. Alternative (and conspiracy) theories implicate terrorist activity including missile strike.
Shine Lawyers will continue to provide regular updates on the situation and commentary on the many facets of aviation, law, and politics, which arise from this tragic situation.
Written by Shine Lawyers on March 8, 2014. Last modified: September 26, 2018.