Archive for the ‘non economic damages’ Tag

MH17 Crash: Some Legal Questions Answered

For LSA, the Dutch Association of Personal Injury Lawyers, Antoinette Collignon has answered some frequently asked legal questions further to the crash of Malaysia Airlines flight MH17. The Dutch text can be found on www.lsa.nl.

Anyone involved in a crash like Malaysia Airlines MH17 on 17 July 2014 suffers beyond description. So far there are no indications that the aircraft had mechanical failures. It seems that the plane was shot down by pro-Russian rebels using arms supplied by Russia. The investigation into the crash, the recovery and repatriation of the victims are highly complex and sensitive subjects. Just as complex and sensitive is the settlement of the loss already sustained and still to be sustained by the surviving relatives. Based on the information available at the time of writing – 26 July 2014 – experts have answered nine questions of law that have come up.

1. Could Malaysia Airlines Be Held Liable?
Under the Montreal Convention, which provides for strict liability in civil aviation, Malaysia Airlines will be required to pay damages up to 113,100 SDR (around EUR 120,000) for each passenger. It is irrelevant whether Malaysia Airlines is to blame for the crash. The surviving relatives will have to demonstrate the loss. In addition, Malaysia Airlines will be liable if it is found to be at fault. However, without an independent investigation it is impossible at this point to determine whether the airline is to blame. Claims must be filed within two years of the crash or they will lapse.

2. Which Law Applies?
The Montreal Convention does not contain any rules on the law governing the travel agreement and the requirement to pay damages. A European court will apply Regulation EC/593/2008 on the law applicable to contractual obligations (Rome I). Article 5.2 of that Regulation stipulates that if the law applicable to a contract for the carriage of passengers has not been chosen by the parties the law applicable will be the law of the country where the passenger has his/her habitual residence, provided that either the place of departure or the place of destination is situated in that country. This means that for most Dutch victims of the crash the contract for their carriage is likely governed by Dutch law. For non-Dutch nationals the applicable law should be determined on a case-by-case basis.

3. What Do the Claims for Damages of the Victims’ Families Cover?
If Dutch law applies, the claims for damages consist of so-called loss of dependency (costs of repatriation, funeral, etcetera), and loss of earnings (if, for instance, one of the family’s breadwinners or the sole breadwinner has died). It is difficult to compute the loss as allowance should be made for variable and fixed costs, among other things. In some cases it is possible to claim non-economic damages if the victims’ families sustained psychological damage when confronted with the crash. Emotional loss (bereavement following the loss of family members) cannot be claimed (yet) as the Upper House  (Senate) rejected the legislative proposal in 2010.  At the time of writing the government is working on a new proposal for compensation of emotional loss. If not Dutch law applies, but the law of another country, it is possible to claim not only loss of dependency but also non-economic damages following the loss of a family member.
4. Could the Separatists Who Downed the Plane Be Held Liable?
If it is determined that separatists have shot down the plane, Dutch law allows for claims under civil law against individuals for the damage they have caused. It is irrelevant whether or not they intended downing a civil aircraft. In that case the loss and damage should be compensated in full. There is a possibility that the individuals in question could be prosecuted under criminal law. The Dutch Public Prosecution Service could issue an international arrest warrant. A complicating factor, of course, is that the Donetsk People’s Republic (the state proclaimed by the pro-Russian separatists) is not likely to act on such warrant. The Ukrainian central authorities will also lack the power in this area to help. Theoretically, therefore, it is possible to hold the separatists liable, but success is doubtful. Even if the liable party could be found, it would be difficult to force that party to pay up. It is easier to hold a country liable than a group of rebels. In 1996 the United States, for instance, paid damages to the families of the victims of the Iranian civil aircraft that in 1988 had been accidentally shot down by an American warship.

5. Could Russia Be Held Liable?
At this point there is no definite answer to this question. If it turns out that the Russian political or military powers had direct command and control to down the aircraft, Russia might be held liable. Russia could also be held liable (in part) for supplying the weapons used to shoot down the aircraft. If separatists have used an SA-11 missile it might have been provided by Russia. SA-11 grizzly – so-called double-digit surface-to-air missile (BUK) – developed by Russia is an anti-aircraft system capable of bringing down aircraft from high altitudes. There have been reports that the equipment and the crew running it were provided by Russia. However, a causal connection should be demonstrated between the supply of the system and the crash. Also established should be fault. Although difficult, legally speaking, this is not impossible. The question further arises whether under the law applicable to the crash a government could be held liable. In other words: If Russia turns out to have supplied the weapons used to take down the aircraft, Russia might be held liable.
6. Could the Ukraine Be Held Liable?
This depends on the facts and circumstances. If the investigation reveals that Ukrainian military downed the aircraft, the Ukraine could be held liable. So far there has been no mention of this in the reports. The Ukrainian aviation authorities could be liable if they have given permission to fly over the area at an altitude from which they knew missiles could take down aircraft. This, too, calls for further investigation.
7. Could the Victims’ Families Go to Court to Demand Damages from One of the States Involved?
There are possibilities for the families of the victims to file claims against the states involved for damages to the extent that these are not paid by Malaysian Airlines. It is early days yet to answer this question fully and properly.

8. Which Law Governs Claims against One of the States/Separatists?
This question should be answered under private international law. A Dutch Court will apply Regulation EC/864/2007 (Rome II). The principal rule is the lex loci damni meaning the place where the damage occurred. It could be argued that court should apply Malaysian law as the victims were on board a Malaysian plane governed by Malaysian law at the time when they sustained damage. It could be argued also that the damage occurred outside the aircraft, in Ukrainian airspace. In that case Ukrainian law would apply. Finally, it would be fair to argue that Dutch law applies. Let’s say a breadwinner died in the crash. His or her family in the Netherlands, who relied on the deceased for their livelihood, suffers loss of income. A loss sustained in the Netherlands, although the cause of the loss lies in events in the Ukraine.  The same applies to losses of victims in Belgium, the UK and other EU countries.

9.  Are There Other Potentially Liable Parties?
The investigation might show that there are other potentially liable parties. Examples are companies responsible for making or authorising the flight plans or authorities that have the power to prohibit certain routes. The crash could be due (also) to mechanical failures, which could make the manufacturer liable. As mentioned earlier, mechanical failures are likely ruled out. However, it is too early for definitive conclusions.

Conclusion
The victims’ families could hold Malaysia Airlines liable for compensation of their loss, up to EUR 120,000 approx. per passenger. Any higher amounts can be claimed only if the airline has been found at fault. At this point no fault has been determined and there are other parties that might be held liable. Investigations will have to identify those parties and whether claims can be filed successfully. It is important that the competent court and governing law will be determined on a case-by-case basis. The many victims from various countries and the range of potentially liable parties make for a complex puzzle that can be completed only once the investigation has been concluded.
Let us hope that all parties involved will proceed with the utmost urgency and care to avoid any more suffering for the many affected.

Author: Antoinette Collignon