| NEW YORK, July 18
NEW YORK, July 18 Malaysia Airlines may need to
convince judges from several countries that it was not negligent
to send a plane over wartorn eastern Ukraine if the airline
hopes to avoid an outsize legal exposure for the downing of
Flight MH17, aviation lawyers said.
The lawyers told Reuters they expected at least some of the
families of the 283 passengers on board the flight to sue
Malaysia Airlines for damages above the amount they
can already seek under an international agreement.
There was no consensus among the lawyers about whether there
was a strong case that Malaysia Airlines was negligent. Some
lawyers said the carrier could argue that other carriers had
used the same airspace many times in the past week.
Malaysian Transport Minister Liow Tiong Lai in fact stressed
this point on Friday. He said the national airline took no undue
risk in flying over Ukraine.
The potential lawsuits could be filed in any of several
jurisdictions, such as Amsterdam, where the plane took off,
Malaysia, where it was supposed to land and where the airline is
based, or the home countries of individual passengers.
At least one passenger had American citizenship, U.S.
President Barack Obama said on Friday, so his family could
attempt to sue Malaysia Airlines in the United States.
Obama said the crash had a global impact with victims from
11 countries across four continents. There were no survivors,
and authorities believe a surface-to-air missile downed the
flight on its way to Kuala Lumpur.
Under an international agreement known as the Montreal
Convention of 1999, an airline cannot escape liability for a
passenger death even when an event such as an act of war or
terrorism causes a plane to crash.
For each death, a carrier can be liable for up to 113,100
special drawing rights, a reserve asset created by the
International Monetary Fund. On Thursday, the day of MH17's
downing, the amount was equal to about $174,000, or $49 million
for 283 passengers.
But families of passengers may sue for damages above that,
and under the Montreal Convention, it is up to a carrier to
prove it was not negligent or that a death was the sole fault of
a third party such as armed militants. If the lawsuits were
successful, the awards in theory would be without limit.
It was not known on Friday whether anyone connected to the
passengers had taken steps to sue.
Damages related to the 15 crew members on board would be
covered by other legal authorities, such as Malaysian
worker-compensation law, said William Angelley, a lawyer in
Dallas who specializes in aviation law.
WHO'S TO BLAME?
In April, the U.S. Federal Aviation Administration (FAA)
prohibited U.S. air carriers from operating over much of the
Crimean Peninsula after Russia moved to annex the disputed area.
But the majority of carriers continued to fly over an area
in eastern Ukraine where pro-Russian rebels are fighting
Ukrainian forces, using a route popular with long-distance
flights from Europe to southeast Asia.
According to Flightradar24, an online flight-tracking
service, 66 other carriers flew hundreds of times in the area
where the plane was shot down in the last week. Malaysia flew
there 48 times and Singapore Airlines Ltd 75 times. United Air
Lines Inc flew through five times.
"Other airlines were flying there. There was no indication
that commercial airlines were being targeted. Was it a good
idea? No. But I'd argue that that wasn't negligence," said Bruce
Ottley, dean of the DePaul University College of Law and
co-director of its International Aviation Law Institute.
A handful of airlines like Qantas Airways did alter
their flight paths some time ago to avoid Ukrainian air space
after fighting flared up in the region.
"An investigation will look at who shot the airline down but
also if Malaysia Airlines acted appropriately in continuing to
schedule its flights over the area," said Justin Green, a lawyer
in New York who has represented families in airline disasters.
"The airline will be completely liable for all damages until
they can prove that flying over the wartorn area was not
negligent as a matter of law," Green said.
"We've flown this route for many years, it's safe and that's
the reason why we are taking this route," Malaysian transport
minister Liow told a news conference where reporters repeatedly
questioned why the airline chose to fly over a conflict zone.
ARGUMENT ON NEGLIGENCE
The definition of negligence varies among legal
jurisdictions. U.S. law looks to what a reasonable person or
company would have done under similar circumstances.
The airspace in question around Donetsk, near the crash
area, was not closed off at the airplane's altitude.
Eurocontrol, the European airspace coordinator, has said that
Ukrainian authorities closed the route up to about 32,000 feet.
MH17 was flying at 33,000 feet.
A trade group for carriers said its members depended on
governments and air traffic control to tell them where to fly.
"It is very similar to driving a car," Tony Tyler, chief
executive of the International Air Transport Association, said
in a statement on Friday. "If the road is open, you assume that
it is safe. If it's closed you find an alternate route."
Aviation lawyers said that unless airspace is closed or air
traffic controllers divert a plane, the ultimate decision on a
route is made by carriers, not government aviation regulators,
so suing regulators would be a long-shot.
DePaul University's Ottley said he had never heard of a suit
filed against an aviation regulator over a flight path.
Another long shot could be a suit against the separatists of
eastern Ukraine. Even if the militants were sued in U.S. courts,
"whether you can process them and serve them (with court papers)
might be impossible," New York aviation lawyer Jim Kreindler
After the 1988 bombing of Pan Am Flight 103 over Lockerbie,
Scotland, the United States removed sovereign immunity from
countries it listed as state sponsors of terrorism. The move
allowed families to sue Libya, which in 2003 agreed to pay $2.7
Neither Ukraine nor Russia is on the terrorism-sponsor list,
meaning "there are daunting challenges to that kind of
litigation" for the Malaysian Airlines disaster, Green said.
(Reporting by David Ingram and Andrew Chung in New York and
Jane Wardell in Sydney; Editing by Ted Botha and Ross Colvin)