(Please note, this matter is not currently being litigated in Australia)The announcement made last night by the head of Malaysia’s Department of Civil Aviation (DCA) was the subject of conflicting and angry reactions from the families of those on-board the flight. In brief, the announcement was the combination of an update on the ongoing search and recovery operation in the Indian Ocean, but also a formal declaration of sorts that, in the opinion of the DCA, the aircraft suffered an “accident” as that term is understood in public international air law.
The former update was of little importance to the families who have regrettably learned over time that the only thing which may stand between themselves getting answers or not, is time and effort (both time they spend waiting, and effort on behalf of the international team spearheading the actual search efforts).
However, the latter announcement has raised suspicions and upset families owing to what it does and does not clarify. Aviation lawyers know that when an aircraft does not reach its destination then the resulting mishap is most likely, in legal terms the result of an “accident” (as that term is understood in Article 17 of both the Warsaw and Montreal Conventions). However, that understanding was already seemingly acknowledged by the Malaysian Government on the 24th of March 2014 when the Prime Minister of Malaysia made a publicly televised announcement, coinciding with a mass-SMS mail out, that the flight had most likely “ended in the Southern Indian Ocean”, and that all on-board were “presumed dead”.
Those expressions carry with them a weight of meaning which essentially links the meaning of “accident” as expressed in the International Convention on Civil Aviation (Chicago Convention 1944) with the meaning of “accident” in Article 17 of the Montreal Convention (the latter which triggers an airline’s liability to pay compensation).
As the Director General of the DCA rightly noted, Chapter 1 of Annex 13 to the Chicago Convention sets out a definition of “accident” which includes the situation in which the aircraft is missing. When one links that definition of “missing” (meaning when the search [for survivors] has been terminated) in Annex 12 to the Chicago Convention, the result is a legal presumption that an aircraft accident has occurred. The meaning of “search” is informed by another part of Annex 12 which states:
Search and rescue operations shall continue, when practicable, until all survivors are delivered to a place of safety or until all reasonable hopes of rescuing survivors has passed.Paragraph 5.5.2:
The responsible rescue coordination centre shall normally be responsible for determining when to discontinue search and rescue operations.
Note. – Contracting States may require input from other appropriate State authorities in the decision-making process leading to termination of SAR operations.In the case of the search for flight MH370, the “responsible rescue coordination centre” can be thought of in terms of a hierarchy – the search and rescue operation was originally initiated in Malaysia and so Malaysia has overall responsibility. However, the discretion to share and in effect, devolve part of that responsibility (under para 5.2.4(b) of Annex 12) was exercised on 17 March 2014. Malaysia gave Australia responsibility for part of the overall search.
Thus, on 28 April 2014, as the DCA Director General noted, the search coordinated by AMSA transitioned to a search and recovery phase presumably as a reflection of the realisation that the most likely location of passengers was in a highly non-survivable area of the ocean.
The upshot of this analysis that the Malaysian Government now officially presumes the death of all those on-board as the result of an “accident” and thus, with such an admission, there can (one would expect) be no question from the airline that such an “accident” occurred, triggering its liability to pay compensation to the next of kin of those lost.
The reason this article involves the word “dejavu” is because none of this is new nor novel. As we have mentioned, the 24 March 2014 statement accomplished the same purpose, albeit one would have to argue, in less of a formal fashion, and with less appeal to legal authority. The result is the same and Malaysia Airlines remains liable to compensate the families of those lost.
The background of and puzzling issues as to why this announcement was made at this time can be considered to be practical in origin. It takes some time to prove and negotiate compensation claims and these all must be completed or litigation commenced before the 8th of March 2016 in order to avoid a legal impediment or limitation date (from the Montreal Convention) which effectively stops all claims after that date.
It takes time to assess individual claimant’s claims and follow legal processes to get access to information which would evidence the magnitude of loss. In the circumstances of an aircraft disappearance there are often legal challenges (though not insurmountable) to have legal recognition of “death” in the absence of a deceased’s remains – this is needed not only for compensation but for finding out what the deceased’s assets/liabilities are/were – such processes may have to happen in court in various nations and can take time too.
As there is a bit over a year left before the claims’ can be made that would reflect about enough time to sort through those issues, including any unexpected problems faced on the airline side.
It may well be the airlines’ insurer is keen to conclude the claims over this disaster as soon as possible because the total amount of claims they face remains an almost unknown liability to the insurers until each family/claimant makes their claim or accepts an airline offer.
Our own thoughts are, while perhaps cynical, still reasonably possible. We reflected upon the fact (in past articles on MH370) that we expect this disaster will create some new or noticeable “MH370 syndrome” or a psychiatric disorder or mental illness linked with the ongoing uncertainty and lack of information these families have had to endure (while at the same time having a glimmer of hope that their loved ones may be alive). We are not aware if this has received attention from medical quarters yet. Certainly, dealing with grief and hope together with the attendant difficulties of dealing with the authorities as such families have faced in the past 10 months and may still face in the foreseeable future, would and has, to our knowledge, created health issues.
It may be that the Malaysian Government and/or Malaysia Airlines is aware there are likely to be such claims (quite separate to the aviation compensation claims) made against them and are, with the best of intentions, trying to prevent any further harm to the families by identifying a “line in the sand” to help the families cope as best as they are able. Either way it is clear that families, especially those vulnerable from the long wait for answers, must reach out for help with their compensation queries, as it would be imprudent to accept an airline offer without advice, or negotiate compensation without the assistance of experts.
Written by Shine Lawyers. Last modified: January 29, 2015.