By IDA LIM
KUALA LUMPUR, March 21 — Families of the 227 passengers onboard the missing Malaysia Airlines (MAS) flight MH370 should be wary of losing their rights to more compensation when signing off on documents, lawyers have said.
US aviation lawyer Floyd Wisner warned that families could unwittingly free airlines of their responsibilities while receiving only a small sum in return if they were not careful.
“In many cases in which my law firm has been involved, the airline or its insurer has made fairly nominal payments to families in need of financial aid in exchange for the families signing a document which releases the airline and all other potentially responsible parties from liability. This is unfair and should not be allowed,” Wisner told The Malay Mail Online in an email interview.
His firm had represented clients in the 2009 Air France Flight 447 that went down in the Atlantic Ocean, killing all 216 passengers and 12 crew onboard.
Two other lawyers — David Fiol and Shailender Bhar — stressed that passengers’ families should seek legal advice before signing compensation documents.
“It is extremely important that the families consult with an experienced lawyer before signing anything submitted to them by the airline or its representatives,” Fiol, a US lawyer, told The Malay Mail Online in a recent email interview.
“What may be of specific relevance is as and when the airlines are paying out compensation, what are the terms and conditions that are being agreed to. Are families of the deceased waiving their rights to bring forth a legal claim in court? This would be important to note,” said Shailender, a lawyer with a Malaysian law firm specialising in insurance claims.
MAS’s lead insurer Allianz said on Tuesday that it has started making initial payments along with other unnamed co-reinsurers over claims linked to the missing MH370.
How much can families get?
In lawsuits, families would first have to prove that the airline negligently caused the plane crash and is legally responsible for the victims’ death, Wisner said.
“The amount of each family’s claim will depend upon such facts as the age and earnings of the deceased and the ages and number of family members for whom he was providing financial support,” he said, stating that there was no maximum amount that families can ask for in a lawsuit.
Fiol also said the amount of compensation awarded in lawsuits would depend on the facts of each case, the earnings history of the dead person and also the country where the case is filed, with awards in the US typically being higher.
“In most nations, there will be an attempt to provide the survivors with the projected amount that the decedent would have contributed to the family’s budget, had he or she lived a normal lifespan. Obviously, the more professionally successful the person, the more his or her family will receive,” said the lawyer who had represented families in the Pan American Flight 103 crash in Lockerbie, Scotland in 1988.
Datuk Brijnandan Singh Bhar said airline’s insurers would determine compensation based on the passengers’ class of travel, instead of factors such as their age or nationality.
“Normally first-class passengers will get the highest compensation, followed by business class and then economy class. This is because a certain portion of your airline ticket price goes towards the insurance,” said the Malaysia-based lawyer specialising in personal injury and accident compensation claims, referring to the October 31, 2000 Singapore Airlines crash in Taiwan.
Time limit
But families must sue MAS within two years of the plane crash to prevent their claim from being barred, Wisner said.
Shailender similarly pointed to the two-year time limitation from the “date on which the aircraft ought to have arrived”, citing Article 35 of the Montreal Convention — an international treaty binding Malaysia on claims against airlines over deaths in crashes.
Where?
Pointing to the Montreal Convention, the lawyers said lawsuits against MAS is possible in five places, including the place where the airline was incorporated and run, the country where the ticket was bought, the passenger’s ultimate destination or residing country.
“For example, the families of the Chinese passengers will be able to sue in China. Claims may be filed in the US for those passengers who resided in the US or whose tickets showed the US as the final destination,” Fiol said.
No lawsuits against airlines, but still getting paid
But Wisner also said families could skip going to court if their lawyers are able to get compensation by negotiating directly with the airline’s insurers instead.
“If direct negotiation of the families’ claims with the insurers’ representatives does not result in a resolution, it would be necessary to file a lawsuit against all responsible parties to prove those parties are responsible for the crash of this aircraft,” he said.
Besides MAS, who else can the families sue?
Depending on the cause of a plane crash, families may be able to sue the companies that built the plane or provided its component parts, the lawyers said.
“The families may seek compensation from any other party responsible for the loss of this aircraft. This may include Boeing, as the manufacturer of the aircraft, Rolls Royce, as the engine manufacturer and other aircraft component manufacturers,” Wisner said.
Although families can sue the plane’s manufacturer if a “structural or mechanical fault” caused the crash, Brijnandan said the claim can only be made against either the airline or manufacture and “not both”.
Fiol also said: “If the accident was the result of pilot error, and an outside company provided training to the pilot who was responsible, that training provider may be sued.”
Can families sue the government?
While Wisner acknowledged that there was a possibility of governments being hauled to court, he said this would depend on the local laws.
“The families possibly could sue the government and such claims could include damages for mental anguish resulting from slow response and misinformation,” he said, but added that governments in most countries have “immunity” from such liability.
“Generally, the families would not lose the right to sue the government if they receive compensation from the airline or other parties, but again the families must be very careful in signing any document presented by the airline as it may include a release of the government from such liability,” he said.
Brijnandan said lawsuits against governments would only be possible if the families could prove that lives may have been saved if the government had “taken early positive action”, or show that the government “misled” the public into believing it was carrying out a search and rescue operation when it did not.
“This is rare as in such a situation all countries will provide some sort of help, as can be seen in the latest air crash of flight MH370,” he said.
Sharing compensation costs with China Southern Airlines
The lawyers also said that airlines who code share, which in the MH370 case would be the China Southern Airlines, may have to share the damages.
“An airline which has a flight sharing agreement with Malaysia Airlines could also be responsible for the damages of the passengers of this aircraft,” Wisner said.
Brijnandan explained that a code share arrangement would see another airline — China Southern Airlines in this case — buying up a number of seats on a flight before issuing tickets to passengers.
“When it comes to compensation they will pay their own to families of the deceased passengers. As not to delay the compensation being paid the aircraft airline will first pay the compensation and get a reimbursement from the code share airline,” Brijnandan said, confirming that both airlines could be sued.
Citing Article 39 of the Montreal Convention, Fiol said that if passengers had bought tickets from another airline under a code share agreement instead of a direct purchase from MAS, families would be able to sue either airlines or both.
The MH370 Beijing-bound flight — which set out from Kuala Lumpur on March 8 with 227 passengers and 12 crew members on board — has been missing for 13 days.
ORIGINAL ARTICLE: The Malay Mail Online
