When a commercial aircraft crashes, or is shot down, it’s not always clear who should pay. Families mourning passengers on Malaysia Airlines Flight 17 are now contending with the long process of getting compensation for their loss. Like those seeking payout from other crashes, how much the relatives get may hinge on whether and where a lawsuit is filed.
Hit by a surface-to-air missile over Ukraine last month, Flight 17 originated in Amsterdam and was bound for Malaysia. In the Netherlands, home to two-thirds of the passengers, officials said Malaysia Airlines has started making $50,000 compensation payments but accepted no wrongdoing for the crash. The payments are a gesture of goodwill but not nearly as large as the $174,000 limit per passenger actually allowed by the Montreal Convention, an international agreement on air accident and baggage compensation.
Lawsuits may be filed nearly anywhere: in the victim’s home country, the country where the airline is based, wherever the ticket was bought, and even the plane’s destination country. Historically, Americans and Europeans have received higher payouts than families in places such as Malaysia, where courts usually adhere to the treaty limit, lawyers say.
“[Of] two people sitting next to each other … one gets multi millions, and the other one gets $75,000,” said Justin Green, an aviation attorney whose firm represented families of victims from Pan Am 103, brought down over Scotland in 1988 by a Libyan bomb.
Taking a “no-fault” stance, airlines sometimes pay a standard sum regardless of where the blame eventually lands. The Montreal Convention allows people to sue for cash beyond the limit if the airline or another party is found to be negligent. So Malaysia’s payments may not deter the bereaved from seeking more money.
Aviation lawyers declare it would be next to impossible to try and collect any damages from Russia or the pro-Russian rebels accused of downing Flight 17. For now, Malaysia Airlines will likely remain the sole defendant. Any lawsuits lodged against it likely would center on the plane’s planned route over Ukraine—despite the International Civil Aviation Organization’s March warning about the risk of flying over the troubled territory. British Airways and Korean Air (victim of a 1983 Soviet shootdown of its Flight 007)took heed. Malaysia, and other carriers, including Lufthansa and Singapore Airlines, continued flying routes in Ukrainian airspace. The U.S. Federal Aviation Administration had prohibited U.S. carriers from flying over part of Ukraine (the Crimean Peninsula) and only extended the ban to eastern Ukraine after Flight 17’s demise.
Malaysian officials insisted the route over eastern Ukraine was deemed safe by international aviation authorities at altitudes higher than 32,000 feet, counting on a limited range of shoulder-launched, anti-aircraft guns used by pro-Russia rebels. Flight 17 requested permission to overfly Ukraine at a possibly safer 35,000 feet, according to Reuters, but was instructed to maintain 33,000 feet.
Regardless of altitude, some aviation lawyers say there could be a strong case against Malaysia Airlines by arguing that the company should have ceased flying over eastern Ukraine immediately after rebels shot down several military aircraft earlier in the summer.
“The idea that [another carrier] was equally as stupid as they were is not that good of an argument,” said Jonathan Reiter, a New York personal-injury lawyer who has handled many aviation cases.
Compensation from this year’s major air disasters could take years as airlines and their insurers sort through all the fallout of Malaysia Airlines Flight 17 and Flight 370 (still unaccounted for), TransAsia Airways Flight 222, and Air Algerie Flight 5017.