Airline Will Not Escape Liability if Act of War Caused Crash

Airline Will Not Escape Liability if Act of War Caused Crash

JULY 17, 2014

Anna Bahr

Although money cannot replace a lost life, wrongful death law requires Malaysia Airlines to pay compensation for any passenger who is killed in a crash of one of its flights, even if caused by an act of war.

Officials say 283 passengers and 15 crew members died when the flight crashed in Ukraine near the Russian border on Thursday. So far, there is no evidence that the aircraft malfunctioned; officials say it was brought down by a Russian-made antiaircraft missile.

But according to the Montreal Convention, a 1999 international treaty that governs airline liability and compensation for the victims of air disasters, Malaysia Airlines is liable, regardless of whether it is at fault for the crash.

Airlines do not have to pay for damaged cargo if it’s damaged in an act of war. But in the case of death or injury to passengers, the aircraft carrier can be held liable for up to 100,000 Special Drawing Rights, an updating, weighted average of convertible currencies. On Thursday those rights amounted to $154,139 per passenger. Multiplied by 283 passengers, Malaysia Airlines would pay about $44 million to the families of victims of the crash. (Crew members are treated differently by treaty.)

Malaysia Airlines is already dealing with claims related to the March 8 disappearance of its Flight MH370. In June, families of the missing passengers received initial compensation payments of $50,000 from the airline’s insurer. At least 47 families have filed claims so far, and relatives of any person onboard can claim up to $175,000, based on the currency rates at the time of the crash.

Families may seek additional damages, but the airline is shielded if it can prove that the crash was solely the result of third-party negligence.

Proving third-party negligence, however, might be difficult.

The airline would have to show convincingly, for example, that flying a commercial flight through airspace in which a military transport plane and a Sukhoi Su-25 jet were shot down earlier in the week was a responsible choice.

In April, the United States’ Federal Aviation Administration issued a warning that prohibited American flight operations from occupying airspace over Crimea, the Black Sea and the Sea of Azov. But the commercial airspace remained open for most flight routes. Malaysia Airlines was certainly not the only airline operating over the turmoil in Ukraine.

Malaysia Airlines officials could sue a third party for damages. But whom would they drag into court?

It might be some time before those responsible for the flight crash are identified. Ukrainian officials are blaming pro-Russian separatists; insurgents in eastern Ukraine deny any involvement. Determining any formal association with the Russian government (or lack thereof) will be difficult.

Brian F. Havel, director of the International Aviation Law Institute and associate dean for International Studies at DePaul University College of Law, said the airline was in a fix. “How likely is it that Malaysian can prove in court a direct connection between specific individuals who shot down the plane and the Russian state?” he said in an email. “Malaysian may have a legal right to recourse, but I’m skeptical they’ll be able to collect.”

NYTimes,
7/18/2014
Online Edition