<em>(Please note, this matter is not currently being litigated in Australia)</em>
This page is confined to claims against Malaysia Airlines, which will be the principal right of families who have lost a loved one on-board flight MH370. Other claims may exist concurrently, and Shine Lawyers Aviation Law Department can manage those too should there be an indication that mechanical, electrical or some other aircraft system fault played a part in the incident.
This information is provided to assist families of flight MH370 understand their legal rights and the compensation they may be entitled to.
To view this page in Malay, please click here
To view this page in Mandarin (Simplified Chinese), please click here
To view this page in Russian, please click here
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Common questions about Malaysia Airlines flight MH370 Compensation
Thomas Janson, the Travel and Transport Law National Manager, specialises in representing those injured in aviation and aeronautical matters, having practised exclusively in this field since 2013. As National Manager, Thomas has been instrumental in growing Shine Lawyers’ aviation law services and introducing their maritime and travel law practices.
Thomas’ tenacity and clout as a solicitor have proven incomparable in the litigation of cornerstone aviation matters. He was instrumental in representing families of the victims of the 2014 Malaysia Airline crashes, the Air Vanuatu Flight NF crash, and the Air Bagan Flight 11 crash. His litigious proficiency extends further to aviation criminal and regulatory actions, and non-aviation cases such as criminal convictions for drug possession and sexual offences.
The law which applies to any particular passenger’s family and the jurisdiction where we will commence action can only be determined by examining each passenger’s specific itinerary of travel and depends on the origin and destination of travel.
Separate laws dealing with family assistance apply now and are distinct from aviation compensation laws internationally.
How do you work out which compensation law applies? Does it depend on where the aircraft is found?
The compensation law which applies depends on where the claim is commenced. Where the claim is commenced depends on which international treaty applies, and that in turn is determined by each particular passenger’s travel itinerary.
It is not a simple exercise, but one we are experts at handling.
General features of aviation conventions as relevant to MH370
- These laws only apply to passengers and their families, not flight and cabin crew, nor stowaways (such as those who used stolen passports to travel).
- They have a distinct and complicated history which is often poorly understood by courts in many jurisdictions due to the novelty of legal issues raised, and the lack of aviation legal expertise of some lawyers who have tried to wrestle with them. We are experts in helping foreign lawyers apply the correct aviation law to their clients’ claims.
- Families need expert advice as even experienced lawyers who have handled air crash claims before may not appreciate that this particular incident raises novel aviation legal issues. Inexpertly handled cases could mean families may not be adequately nor fairly financially compensated.
Yes – passengers or the families of passengers will have 2 years to make a claim from the date the aircraft should have arrived, not from when it is found – i.e., until 8 March 2016.
Thus, if families wait months or years for answers about the aircraft’s disappearance without seeking expert aviation legal assistance they may lose their right to compensation.
The 2 year limit applies to each and every passenger family claim. This time limit information does not mean you must accept an offer presented to you by the airline or its insurer (see below for more information on offers made by).
The Montreal Convention 1999 governs most aviation accidents and provides for the following:
1. An airline is strictly liable for the “accident” (this is a legal term, not a judgment on what has happened to MH370) This means:
- the airline must pay compensation without anyone having to prove fault, up to 113,100 “Special Drawing Rights” (in other currencies this means approx. $195,000 AUD; 1,079,000 CNY; 575,000 MYR; $175,000 USD; 10,760,000 INR; 1,993,000,000 IDR; 126,200 EUR; 105,490 GBP; $206,600 NZD; 1,663,900 UAH; or 6,421,900 RUB); and,
- if the airline cannot prove that the “accident” wasn’t at least in part due to something it or its servants/agents did or failed to do, then families can receive compensation for proven losses above the 113,100 SDR limit.
- alternatively, if the airline can’t prove to a court that the loss occurred solely due to the negligence or other wrongful act or omission of someone other than the airline, then families can also receive compensation for proven losses above the 113,100 SDR limit.
The last two bullet points above will present the greatest difficulty in claims arising out of MH370 but this is a challenge we have researched and are prepared to handle no matter what the eventual causes of MH370’s disappearance are found to be.
2. Families may not sue Malaysia Airlines under any countries’ local law (e.g., Chinese local law, or Australian local “tort” or “negligence” law).
3. Families do have a choice of where they can sue. In the case of MH370 the choices are as follows:
- Malaysia; or,
- the country where Malaysia Airlines has a place of business and where the travel/ticket was bought if not Malaysia; or,
- China; or,
- the country of ultimate destination if not returning to Malaysia or China; or,
- the country of the passenger’s “principal and permanent place of residence.” (This is not the same as nationality. Thus, for example, an Indian passenger who lives permanently in Canada may sue Malaysia Airlines in Canada).
Some passengers’ claims, particularly families of passengers from Indonesia and Russia, are likely to fall under an, older, regime called the Warsaw Convention. Compensation available under this convention is significantly lower than under the Montreal Convention 1999 so will require additional work to determine ways of compensating families adequately.
Yes – there are additional means open to compensating families through intercarrier agreements (IATA Intercarrier Agreement on Passenger Liability, IIA), with which we are familiar, and which Malaysia Airlines has signed.
These cases will only apply to a few of the families, particularly the Indonesian passengers’ families. This agreement allows those passengers whose claims fall under the older Warsaw regime to have their claims resolved according to the law of where they live, even if the older Warsaw Convention would not allow that.
No. In most cases, international law prevents the airline from being able to reduce the amount of compensation they pay a family, by the amount of any separate death benefits or entitlements they family would be entitled to.
Until the aircraft is located, Shine Lawyers will advocate free of charge for MH370 family members to ensure they receive their full entitlements under the law. We will openly advise families of their family assistance rights under international aviation law, as we feel this is our duty as regional experts in this field.
This means we will demand families receive the latest information in a timely way and that all their entitlements and needs at this time are met by the airline pursuant to Malaysia Airlines’ obligations as the State of the Registry of the aircraft, under international aviation law.
The families have rights to all information under international law and policy and we will continue to advocate for families to receive all news the airline has, whether or not it is verified, and whether or not such information is released to the public.
Other articles on our site describe these family assistance rights in more detail.
We will assist the families of MH370 to right wrong in all international aviation compensation claims they may pursue on a “no win no fee basis”.
We can manage the complex web of international and foreign laws applicable to passenger claims from all jurisdictions with the assistance of key expert international legal partners and associations.
In major aviation incident cases, it is normal practice for airline insurers to try and settle claims with passenger families early on. While this is not unlawful, it’s important for families to be aware that it is in the airline and its insurer’s interest to pay the lowest amount a family may be legally entitled to under the relevant Convention.
You are under no obligation to accept an offer given to you by an airline or its insurer, no matter how it is expressed, even if it is expressed to only be open for a limited time. Nor do you have to sign any document without receiving independent advice about what it means and what you might be giving away in return for a small or moderate offer of compensation.
You have the right to get your own legal advice about any offer made to you by the airline and its insurer.
We specialise in helping families receive their maximum legal entitlements under international law, and under the law of the country in which they may commence their claim (in cooperation with our focused international partners).
Lawyers who present on behalf of the airline and its insurer do not act for you. If you retain an aviation lawyer they will act for you to get you the best result from the airline and its insurer.
Our aviation legal advice is available 24 hours a day, 7 days a week. Click to contact us today.
We can also come to you, wherever you may be located.
Where you are located isn’t necessarily a barrier when it comes to obtaining the services of a lawyer. We’re experts when it comes to Aviation related claims and we can help you get the compensation you deserve.
It doesn’t matter if you are located close or far away from a Shine Lawyers office – we will always provide the same, expert advice and manage your claim with the same level of quality and commitment.
Our compensation experts are in the following locations:
New South Wales
- Gold Coast
- Hervey Bay
- North Lakes
- Stones Corner
- Sunshine Coast
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