Malaysian air families weigh their legal options

Updated: 2014-03-31 10:58

By Chen Jia in San Francisco (China Daily USA)

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The airline will not usually feel the sting of a verdict, but its insurer will and that fact is important for the families of the MH370 passengers on MH370, aviation lawyers said in the United States.

"Airlines can't fly in many countries without insurance and if they are consistently bad and accident prone they will find they cannot get insurance or it is very, very expensive," Mary Schiavo, an aviation lawyerof the Motley Rice Law Firm, told China Daily. "The airline has ample insurance to cover all damages it must pay."

In her opinion, the defendants to a lawsuit will include Malaysia Airlines and may include Boeing, a cargo shipper (such as the battery shipper) if the cargo caused a fire or a fume event, maintenance contractors if there was a mechanical problem with something they worked on, electronics manufacturer if there was a fire or malfunction in the electronics and the oxygen systems if they malfunctioned.

The airlines must be sued under the rules of the Montreal Treaty.The airline is automatically liable for damages up to about $175,000 and is liable for all additional damages, she said. Passengers' families have two years to file suit, the deadline under the treaty.

She suggested passengers' families not sign any releases with the airline or anyone else.

"If the airline wants to give you money for hotels, food, incidentals, transportation, etc, take it, but make sure you are not releasing any rights in taking it," she said.

"Do not share personal information about your family with the Airline.Airlines have used information about families against them later in litigation," she added.

Floyd Wisner, the principal at Chicago-based Wisner Law Firm and an aviation crash attorney,told China Daily a member of their legal team has had conversations with representatives of some Chinese families.

"We expect we will represent some Chinese families when they are ready to retain counsel," he said.

The families of the passengers of Flight 370 may assert claims against Malaysia Air even if the wreckage or the black boxes are never found and even if bodies are never recovered, he said.

"This is because Malaysia Air's liability is governed by the Montreal Convention and under that Convention, Malaysia Air will be liable to the passengers, in my view, no matter what the cause of the crash ultimately may turn out to be," Wisner said.

However, the Montreal Convention also mandates the jurisdictions in which a claim against Malaysia Air may be brought. "For the Chinese passengers, this generally will be China or Malaysia. They will not be able to bring a claim against Malaysia Air in the US," he said.

The insurers of Malaysia Air will try to settle the claims of the Chinese passengers for amounts far less than the amounts which will be paid, for example, to the passengers of the American passengers, because these insurers know a US jury is likely to award far greater damages than a Chinese court, he said.

The families with whom we have had preliminary discussions may try to resist this by forming a victims' family association,retaining one experienced counsel and negotiating as a unified group with Malaysia Air's insurers, he said.

The Chinese and other victims' families also may have a claim against Boeing, the aircraft manufacturer, and possibly component manufacturers, which, unlike the claim against Malaysia Air, could be brought in a US court, he said.

However, it is important to emphasize that a claim against Boeing or any other manufacturer may be brought only if there is evidence that Boeing or another manufacturer caused this crash, he said. "Without such evidence, such a claim would fail," he said.

Robert Hedrick, an aviation accident attorney at Aviation Law Group PS, told China Daily "right now is not a time to file lawsuits, especially ones without factual support".

"While the search has narrowed, the investigation is ongoing and no parts of the aircraft wreckage have yet been located," he said.

(China Daily USA 03/31/2014 page1)