Families of flight MH17 victims could wait years for compensation

Airline could still face lawsuits over flight MH17’s downing over Ukraine

PUBLISHED : Tuesday, 26 August, 2014, 11:37pm
UPDATED : Wednesday, 27 August, 2014, 1:46am


Families of passengers who were on the Malaysia Airlines plane shot down over Ukraine are starting the long process of gaining compensation for their loss.

Officials in the Netherlands, where the majority of flight MH17 victims lived, say Malaysia Airlines has been making US$50,000 payments to families without admitting wrongdoing.

Such payments may create goodwill, lawyers say, but are not likely to discourage some from seeking more than the amount promised under an international treaty – about US$174,000.

Since the early days of commercial aviation, international agreements have governed compensation for crash victims. It is a no-fault system – the airline pays a standard compensation even if it is blameless. Under  the Montreal Convention, families can sue for more if the airline or another party was negligent.

Aviation-accident lawyers say it would be almost impossible to collect damages from Russia or the pro-Russian rebels accused of shooting down the plane with a surface-to-air missile.

Malaysia Airlines will be left as the prime – maybe the only – defendant, and lawsuits are likely to hinge on the plane’s planned route from Amsterdam to Kuala Lumpur on July 17. Malaysian officials have said that the route over eastern Ukraine was deemed safe by international aviation authorities as long as the plane flew above 9,750 metres. 

Below that, Ukraine had closed the airspace, presumably because of the threat posed by pro-Russia rebels armed with shoulder-held anti-aircraft guns, which have a limited range.

While the US Federal Aviation Administration had prohibited flights over the Crimean Peninsula, the US ban did not extend to eastern Ukraine until after the plane was shot down.

And, Malaysian officials have noted, other airlines continued to fly the same route, even on the day that flight 17 was shot down.

But some aviation lawyers say that the families could have a strong case by arguing that Malaysia Airlines should have stopped flying over eastern Ukraine after the rebels shot down military jets earlier in July.

“The idea that somebody else 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.

Families of those involved in this year’s major air crashes – of MH17; Malaysia Airlines flight 370, which disappeared as it flew from Kuala Lumpur to Beijing; and the crash of Air Algerie flight 5017 in Mali – could be waiting years for compensation from the airlines and their insurers.

Under the Montreal treaty, lawsuits can be filed in the home country of the victim, the country where the airline is based, where the ticket was bought or where the plane was headed. 

For some relatives of those on flight 17, the pain is still too raw to decide whether to go to court.

In the Netherlands, Kevin Fan is grappling with the job of running two Rotterdam restaurants that were owned by his Hong Kong-born father, Fan Shun-po, who died in the crash along with Kevin’s Malaysian-born mother  and grandmother. 

“It is overwhelming. There is just a lot to arrange,” he said. 

As for suing the airline, Fan said: “I’m not focused on that right now.”

Additional reporting by Agence France-Presse