The search continues for Malaysia Airlines Flight 370 after it disappeared from radar in the early hours of March 8, 2014. Since that time, both the Malaysian government and the airline have come under sharp criticism for the slow release of inaccurate information and the poor management of the search. There is no doubt, however, that there is one thing that all potentially liable parties such as Malaysian Airlines and Boeing did not procrastinate on or mismanage. That being consulting legal counsel and strategically planning every move they make in order to minimize their financial exposure to their legal adversaries.
Unfortunately, in this instance, their legal adversaries are bereaved mothers, fathers and other family members of those who were aboard Flight 370 who likely have little knowledge of the protections afforded to them under international law and how to invoke them. The Montreal Convention is an international treaty signed by 97 countries that addresses the liability of air carriers in international flights. It contains strict limitations on the time in which a claim may be brought. It holds a carrier strictly liable in the approximate amount of $175,000 per passenger in the case of an “accident.”
In a situation like the disappearance of MH370, many families will not only suffer the heartbreak and grieving that goes along with losing a loved one, but will also face great hardship due to the loss of the family’s sole income provider. The Montreal Convention protects victims of this type by allowing a plaintiff to seek an amount in excess of $175,000, if the carrier cannot prove the damage was not due to their own negligence or was solely due to the negligence of another party. So, the airlines may be able to legally minimize their loss to $175,000 per person only if they can legally blame someone or something else.
It is widely agreed that American courts will be the best venue for the families, but the convention has strict rules about where the families can file suit. If these families cannot figure out how to navigate the convention’s jurisdictional complexities, they will be stuck litigating against an airline in a courthouse in Kuala Lumpur, when they might have sought justice in a U.S. court. This has serious implications for outcome of the victims claims and all can be sure that those liable will have attorneys utilizing any strategy possible to drive litigation towards a forum that will provide them with the best outcome, meaning being obligated to take the least responsibility.
Families of the victims should not be required to litigate these complicated issues in court alone. If corporate juggernauts like Boeing and Malaysia Airlines have had counsel from the outset, it stands to reason that a grieving mother of a Chinese Flight 370 passenger with zero legal training should have counsel, too. If the average U.S. citizen doesn’t know the basics of the Montreal Convention, how fair is it for a working-class Chinese family to navigate the complexities of the treaty in an American court? The logic is inescapable: These families should have attorneys to help them.
The families of Flight 370 passengers need the services of highly skilled aviation accident attorneys who will take on the costs of litigating this case against Malaysia Airlines, a risky venture that will consume a good deal of time, resources, and effort. The families will not have to front one dollar, ringgit, or yuan. Attorneys will advance all costs and charge no fees unless a successful outcome is reached. Through this arrangement they will acquire all the risk and lose every penny they invest in a client if the case is unsuccessful. As an attorney who takes on a high-risk contingent fee case like this one potentially invites financial ruin if he or she doesn’t prevail, an enormous incentive to succeed and deliver results to the victims is created. No one should expect the families of the missing passengers—already undergoing a traumatic experience—to single-handedly deal with corporations like Malaysia Airlines and Boeing in full damage-control mode with the goal not being to care for the victims’ families, but only trying to save many millions by managing their own legal exposures.