Long fight for justice for relatives of Flight MH370 victims

With Flight MH370 having been missing for over a month, lawyers are gearing up to fight for relatives seeking compensation. The US could be the battleground, writes Gillian Wong

SINCE Malaysia Airlines Flight 370 went missing, some lawyers have claimed they can get several millions of dollars in damages for each lost passenger by taking the cases to the US. But past lawsuits show US federal courts are more likely to throw such cases out if the crashes happened overseas.

Major disasters draw lawyers looking to sign up clients for big lawsuits, and the missing Malaysian plane, which was carrying mostly Chinese passengers, has been no exception. Lawyers from various firms have descended on a Beijing hotel where relatives of the passengers have been staying, and have even travelled around China to visit them in their homes.

The Chinese relatives say their main focus remains on the search for the plane, so lawyers have had little luck so far in signing up clients, despite dangling the potential of major damage awards. “This is not the right point in time to discuss legal matters because nothing has been found yet and everybody has no idea what exactly happened to the plane,” said Steve Wang, a representative of some of the Chinese relatives.

Relatives can expect to get at least €126,500 from Malaysia Airlines for each lost passenger under terms of the Montreal Convention, an international treaty governing air travel compensation. The relatives can also sue the carrier in Malaysia or their home countries for further damages.

Chinese made up two thirds of the 227 passengers aboard Flight 370, which disappeared March 8 en route from Kuala Lumpur, Malaysia, to Beijing. Searchers looking in a stretch of the southern Indian Ocean have yet to find any debris from the plane.

Malaysia Airlines said it was focused on helping the families of the passengers and 12 crew members, and that “other matters will be dealt with appropriately”.

Some lawyers have argued that the families could still sue in America if they alleged the plane’s US manufacturer, Boeing, was somehow responsible for the disaster.

But such lawsuits are likely to be rejected if they’re filed in the US because federal courts there have dismissed many similar foreign air crash cases, especially if most of the plaintiffs are not American.

The courts have tossed out lawsuits against US parts-makers in connection with the 2009 crash of Air France Flight 447 in the Atlantic Ocean. They also dismissed lawsuits against Boeing in the 2008 Spanair flight that crashed on take-off in Madrid and the 2005 Helios Airways flight that crashed near Athens, Greece, when a loss of cabin pressure caused the people on board to lose consciousness.

US courts have ruled it would be more convenient for claims to be heard by a court in the country where the crash happened or where the investigation is taking place, making it easier to obtain witnesses and evidence.

“Courts with crowded dockets are likely to dismiss foreign plaintiffs where there are language problems, esoteric laws and/or missing witnesses,” said Joseph Sweeney, of Fordham University in New York.

Sweeney said dismissal of foreign claimants based on such grounds has been “almost customary” since a US Supreme Court decision in 1981.

US courts are a popular forum for lawsuits on damages related to air crashes because juries are often sympathetic to the plaintiffs and are perceived as being more likely to award sizeable damages. In domestic air crashes, juries have awarded plaintiffs sometimes millions of dollars per passenger.

For the same reasons, they attract lawsuits even when the crashes take place outside America and involve non-US airlines and passengers and crew who are citizens of other countries.

“America is the land of liability opportunity,” said Steve Dedmon, an aviation law expert at Embry-Riddle Aeronautical University’s Daytona, Florida, campus.

“We are very plaintiff friendly.”

Some attorneys are already telling relatives they should consider suing Boeing, because it made the 777 plane. Boeing declined to comment.

“As long as the possibility that the Boeing plane is related to the incident is not eliminated, there are no limitations on seeking compensation from Boeing,” said Wang Guanhua, a Chinese-based lawyer working for Chicago firm Ribbeck Law Chartered.

Wang was speaking by phone from the eastern province of Zhejiang, where he had visited a number of relatives in their homes. His visits to family members have also taken him to four major Chinese cities. Wang said the relatives would best benefit from suing Boeing in the US and that he believed they could get over €4m in damages for each passenger.

A judge criticised Ribbeck Law last month for filing a petition asking Cook County Circuit Court to order Malaysia Airlines and Boeing to turn over any documents related to the plane’s disappearance. Judge Kathy Flanagan described the request as improper and threatened to impose sanctions if the firm tried a similar motion again.

Other attorneys have criticised the claims of multimillion-euro settlements for foreign families as misleading. “Neither we nor any responsible lawyer would presently say that there is any case that can be brought in the United States,” said Justin Green, a partner at aviation accident law firm Kreindler & Kreindler in New York. “We will need the wreckage in order to establish a case against Boeing.”

Another team of lawyers has argued that rather than take the litigious route in the US, the families are better off negotiating a settlement with Malaysia Airlines’ insurers.

“We want a quicker settlement and a reasonable settlement,” said David Tang, a lawyer working with UK firm Stewarts Law and a US firm, who have teamed up and say they’ve been approached by family members for advice.

Tang was in Beijing this past weekend meeting with Chinese relatives at a hotel where they’ve been staying. He showed the relatives an information sheet describing how insurance payments for loss of life differ according to nationality.

“What we argue is that a Chinese life should not be worth less than an American’s, or whatever,” said Tang.

The legal team, if hired by the families, intends to demand more than €1.3m for each passenger, James Healy-Pratt of Stewarts Law said.

If Chinese families sued the Malaysian carrier in China, they could get around 1.5m yuan (€180,000) per passenger, depending on their age, job, income, and other factors, according to Beijing-based aviation lawyer Zhang Qihuai.

In Malaysia, a court would probably not stray too far from the €126,500) compensation limit set by the Montreal Convention, said Jeremy Joseph, a Malaysian aviation lawyer. “The judicial trend for awarding damages in Malaysia is very conservative. It is not the trend here for courts to issue massive awards in damages to the millions,” he said.