Lack of any evidence indicating what caused flight MH370’s disappearance raises a legal conundrum that is expected to force Malaysia Airlines into out-of-court settlements with angry next-of-kin of the passengers on board, Malaysian media quoting aviation law experts said on Sunday.
More than two months since the Beijing-bound MH370 disappeared, no wreckage has been found to even confirm a crash, let alone apportion blame.
Relatives of the 239 people on board can come after Malaysia Airlines because under international aviation law it is an airline’s responsibility to prove it was not to blame for an accident.
“On the surface, (Malaysia Airlines) is responsible,” said Malaysian attorney Jeremy Joseph, adding that the “burden of proof” rests on the national carrier to clear its name.
Under International Civil Aviation Organisation (ICAO) rules, next-of-kin in an air crash are entitled to an automatic minimum of about $175,000 per passenger, regardless of fault, payable by an airline’s insurance company.
The size of any damages would depend on where lawsuits are filed and can be filed in the country where an airline is based, where tickets were purchased, where the passengers were headed or where they lived.
Since most passengers were from China or Malaysia, most cases could be filed in the two countries.
Damages are based on the lost lifetime earnings of a victim and thus could total in hundreds of millions for all passengers combined.
McGill University Institute of Air and Space Law Director Paul Stephen said, “In the US, settlements usually are in the $1 million to $3 million range. For Malaysians or Chinese, salaries are lower, and hence, recoveries will be lower.”
Legal experts expect undisclosed out-of-court settlements between families and Malaysia Airlines and its lead insurer, German giant Allianz.
Malaysian attorney Joseph said that the airline would try to avoid going to court unless it perceives settlement expectations from the victims’ families as unreasonable.
Malaysia Airlines said its insurance coverage is adequate for all eventualities and has begun making some payouts to families under an “advance compensation process” but declined to reveal details.
Lawsuits must be filed within two years of an accident. Families are holding off for now as they await news on the search, seeking confirmation of a crash, and emotional closure.
