(Please note, this matter is not currently being litigated in Australia)As we approach the five month mark since Malaysia Airlines flight MH370 so mysteriously disappeared sending affected families and the world into a confused state of shock, it is timely to recall that just because other disasters have replaced newspaper and television headlines, those struggling to understand why MH370 “happened” are no closer to answers.
Not only are investigators no closer to knowing where the flight ended, but there has not yet even been a trace of debris discovered, or confirmed to be from the flight. The psychological impact this has had on the families of those grieving and yet fervently hoping for knowledge about their loved ones cannot be underestimated. Grief is not a suitable word to describe the anguish and contradictory feelings faced by those thrust by cruel circumstance into the spotlight of world media attention by the loss of MH370.
Thankfully, those charged with the task of finding MH370 (the only ones able to provide meaningful answers to families’ questions) are reinvigorating their commitment to the search. In line with this sentiment on Friday 25 July 2014 the Hon Warren Truss, Deputy Prime Minister, and Minister for Infrastructure and Regional Development told the media in Australia:
I want to assure the families of those on MH370 that we have not forgotten the importance of maintaining the search for that aircraft; we are continuing that search uninterrupted…
No resources are being taken away from that search for the MH17 effort; they're different people doing a different kind of job and we remain just as committed to finding that aircraft and giving comfort to those families.While the thought of forgetting the search for MH370 may not be realistic for those in charge of the operational elements, the threat of the ongoing mystery and the despair this creates for the families affected must also not leave the public and worldwide psyche. The concern is there is a real danger that those charged with pressing for regulatory changes which would prevent such a disaster in future, will lose fervour in their significant legal and diplomatic efforts to press for better technology and laws around global airliner tracking. If the world needs more resources to handle the aftermath of two such global tragedies, it must get them.
The ICAO efforts in relation to this matter must not be sidelined and relegated to a lower priority, pressing and urgent as the events of MH17 are. Click to read our recent article about the Commitment to prioritise global airliner tracking. This loss of fervency, arguably, at ICAO and international community level followed the Air France 447 (AF447) disaster in 2009, when global airliner tracking issues were first raised. Thus the lack of urgency in the implementation of accident investigation and subsequent committee recommendations to bolster regulations and technologies on airliner tracking partially “allowed” MH370 to disappear.
This is not the time to prioritise international efforts on any international air crash investigation – all families deserve answers but we must not forget still that many of those families have no place to honour the last resting place of their loved ones. In a modern world which permits otherwise safe jet transport this is entirely unacceptable.
Families helping families
Amidst their suffering, the families of MH370 have reached out to the families of the passengers and crew of Malaysia Airlines flight MH17. They have used their suffering as a motivator to help those who are now newly coming to terms with the knowledge that their loved ones were lost on flight MH17. Media reports reproduced 10 tips MH370 families offered MH17 families. They are worth reproducing and examining here in the context of answering the question many MH17 families may now ask: “what can or should I do?”
(taken from the Sunday Times online, 18 July 2014):
1. If the airline puts all the families together in the same place, try to control your emotions as there is much to accomplish. First, exchange contact information and make a database of names, numbers, addresses and relationship to passengers.
2. The media attention will be overwhelming at first. You don't have to accept interviews if you don't want to initially, but you must take the reporters' name cards, as you can use them later!
3. If lawyers approach you, don't sign anything hastily. There will be a lot more lawyers later, and they are actually not allowed to approach you for the first 45 days. In this painful stage, do not make any decisions.
4. Do not hope for any first-hand information from the Malaysians. Your information should come primarily from media and the Internet. The most reliable information is from the government, but they will tell you last.
5. Those with communication skills and organisational ability among you should step up to serve the other families as a representative. Everyone needs people like you.
6. Insist that a multi-national investigation team with third-party country representatives be formed immediately. Do this now because if you leave it too late, it is hard to guarantee that the investigation team will be objective.
7. Take care of your health, do not be too upset by media reports, because a lot of information will change.
8. You have the right to demand free food and lodging, and to be sent to the place where the incident happened, and the authorities must facilitate this, be it visas or plane tickets.
9. Keep your receipts, as you can be reimbursed.
10. The most important: stay with your family and friends, stay with the other passengers' relatives, you will find comfort with them. We hope that you will not suffer as much as we have. If there is any need, you can contact us any time.The importance of family associations or groups
What the tips demonstrate is the power of a group of people unified in shared grief. We, as a law firm who have been privileged to have been invited to meet with and give pro bono international law advice and assistance to some of the families affected by MH370, have become intimately attuned to the fact that strength in numbers has sustained many of the families along their difficult path.
The 10 tips also demonstrate the importance of assistance to families by authorities in the aftermath of an air disaster. The International Civil Aviation Organisation (ICAO) Policy on Assistance to Aircraft Accident Victims and their Families (ICAO Policy) was promulgated for just such situations. As we described on our website in the context of the MH370 immediate aftermath, and as reproduced below, the ICAO Policy is something families of MH17 should be made aware of, and are unlikely to be made aware of if past history with such incidents is anything to go by.
Thus, by way of explicating the legal basis for some of the rights noted by the families of MH370, and learned through bitter experience, families of MH17 passengers are invited to note the following:
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.
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.The author has discovered, through conversations with family members of MH370 passengers, that the Malaysian Government did not assist family members with support for the establishment of a family association.
The fact that the several family groups which now exist have come about at all is a testament to the strength of individual next of kins of MH370 passengers, and the organisational skills of several of them. Furthermore, the fact that the airline decided to require next of kin to return to their homes in late April/early May 2014, before making available details about the payment of Montreal Convention “advance payments”, may imply that the airline itself, or its insurers, benefit from family members acting individually rather than as a cohesive group.
Either way, the Shine Lawyers Aviation Department strongly believes in the wisdom espoused by MH370 families and confirms the legal basis for, and refreshes its own demands for, Malaysia to support the establishment of an association or group for the next of kin of those onboard flight MH17, to learn who each other are, and how they may be able to take strength from each other. We have discussed the importance of family associations following air disasters in Australian and foreign media.
Lawyers and “45 days”
A perennial and distasteful problem following air crashes internationally, is unsolicited attention to grieving family members by lawyers, including well intentioned ones. The “45 day rule” is an American federal law that regulates the conduct of US plaintiff lawyers in the aftermath of air disasters, and prohibits unwelcome approaches made to the vulnerable families of those affected by such tragedies.
No American lawyer or even those claiming to be agents for American lawyers should make contact with MH17 families until or after 31 August 2014. If they do, this should be reported to US authorities for action. Sadly, following the loss of MH370 certain US lawyers, in their haste to “sign up” clients, pursued baseless court processes in the US which resulted in judicial rebukes and threats of sanction. The better firms avoid direct contact with families at all times unless invited, or unless families happen to already be known to the firm.
The MH370 families are correct in that now is not the time to worry about compensation and litigation for what has happened, but it is the time to use every available resource to arm oneself with information as legal issues will inevitably have to be faced in time. As we have noted above, there is even “aviation law” which informs the matter of assistance of victims’ families – if you are affected, and do not feel supported by Malaysia Airlines at the moment, then it is time to get help.
What is the primary legal point to remember about compensation?
The most important thing for all families to note is there is no hurry – compensation claims, under international air law conventions, must be made against Malaysia Airlines no later than 17 July 2016 (ie, 2 years from the loss of MH17). In most cases, if that is borne in mind, the rest can wait for now.
There are other potential avenues for compensation, but these are the subject of our MH17 compensation page. These efforts will require concerted team efforts by suitably qualified lawyers on behalf of families or groups of families, politicians and even the United Nations, to start.
How do I get further information?
The Shine Lawyers Aviation Department recommends that if there is a need for further immediate information, families should take it from the free published and authoritive sources available to all on the websites of expert aviation legal practitioners, such as available under our Aviation Law News website section.
Feel free to reach out for pro bono advice from suitably qualified and experienced practitioners. You can use the opportunity to gauge whether the lawyer you speak with is someone you would trust to deal with about the claims may make in future on behalf of your loved one. Note that while many may claim to be “aviation lawyers” there are few genuine expert practitioners.
How is “aviation law” different?
Aviation law is a discrete niche legal specialisation. The law of negligence and public liability claims knowledge is of little to no relevance in the pursuit of compensation for international aviation disasters such as MH17.
This is especially the case when the circumstances of an incident, like the downing of flight MH17, involve not only principles of “private” international air law (such as compensation treaties and how they work for people of diverse nationalities travelling on different itineraries) but “public” international air law – ie, the law applicable to flying over hostile airspace, and the rules and regulations which control how that and other elements (including armed attacks) are dealt with under international air law.
This is not the domain of most Australian lawyers except those specifically trained and experienced in air and space law.
To find out more, families are invited to look at our MH17 compensation question and answer pages to get some essential unambiguous information about the context of flight MH17 and how justice may be pursued for those now suffering in its aftermath.
If you have questions, do not hesitate to contact the Shine Lawyers Aviation Department. Our expert comment on the law applicable to MH17 has already been sought in Australia by:
- Channel 7 (Afternoon news; 6pm national news);
- Channel 10 (News; The Project);
- ABC News 24,
- ABC online,
- BBC TV World News (Asia Business Report);
- The Wall St Journal;
Written by Shine Lawyers. Last modified: July 28, 2014.