MH370 puzzle seen leading to out-of-court settlements

KUALA LUMPUR—The lack of any evidence indicating what caused flight MH370′s disappearance raises a legal conundrum that is expected to force Malaysia Airlines into out-of-court settlements with angry next-of-kin, aviation law experts said.

More than two months since MH370 disappeared, no wreckage has been found to even confirm a crash, let alone apportion blame.

But relatives of the 239 people on board can still come after Malaysia Airlines because under international aviation law it is an airline’s responsibility to prove it was not to blame for an accident.

“On the surface, (Malaysia Airlines) is responsible,” said Jeremy Joseph, a Malaysian attorney specializing in transport law.

The “burden of proof” rests on the national carrier to clear its name, he added.

Under International Civil Aviation Organization rules, next-of-kin in an air crash are entitled to an automatic minimum of about $175,000 per passenger, regardless of fault, payable by an airline’s insurance company.

Vulnerable to civil suits

But Malaysia Airlines is also vulnerable to civil lawsuits for potentially greater damages by hundreds of relatives already infuriated over the lack of information on the case.

The Beijing-bound plane disappeared March 8 and is believed to have crashed in the Indian Ocean. Theories on what happened include a terror act, rogue pilot action, or mechanical problems.

No significant legal moves have yet been made as families closely monitor an immensely difficult search in vast ocean depths that has so far found nothing.

“When there is no cause identified, it is hard to see how the airline has or has not shown the absence of fault,” said Alan Tan, a professor of aviation law at the National University of Singapore.

The size of any damages would depend on where lawsuits are filed.

Next-of-kin can file in the country where an airline is based, where tickets were purchased, where the passengers were headed or where they lived.

Since most passengers were from China or Malaysia, most cases could be filed in the two countries, where courts are more conservative in awarding damages than in countries like the United States.

Damages are typically based on the lost lifetime earnings of a victim and thus could total in the hundreds of millions for all passengers combined.

“In the US, settlements usually are in the $1 million-$3 million range. For Malaysians or Chinese, salaries are lower, and hence, recoveries will be lower,” said Paul Stephen Dempsey, director of the Institute of Air and Space Law at Canada’s McGill University.

A US law firm is already planning a “multi-million-dollar” lawsuit against Malaysia Airlines and aircraft maker Boeing, on behalf of an Indonesian passenger’s family.

Few court cases expected

But legal experts said few cases will likely end up in court. They expect undisclosed out-of-court settlements between families and Malaysia Airlines and its lead insurer, German giant Allianz.

This would allow the loss-making carrier — which was struggling amid intense competition even before MH370 disappeared — to quietly lay the matter to rest and focus on rebuilding its image.

“Because of its unprecedented nature, the courts are going to look at (MH370) very carefully. That is something the airline will try to avoid unless settlement expectations from the victims’ families are perceived by Malaysia Airlines as unreasonable,” said Malaysian attorney Joseph.

Adds Tan: “This avoids court uncertainties and protracted litigation, and most claims will end up being negotiated and settled this way, particularly those outside the US.”

In the case of Air France flight 447, which crashed in the Atlantic with 228 people aboard in June 2009, the airline’s insurers made compensation payments to relatives.

Only a small number of lawsuits were filed, with a Brazilian court awarding one family an equivalent of more than half a million US dollars, before its flight data recorders were recovered in 2011.

A combination of mechanical failure and pilot error were eventually blamed.

Allianz would bear the brunt of any payouts for MH370, sparing the already financially struggling airline.

Malaysia Airlines told AFP its insurance coverage is adequate for all eventualities, declining to give details. But experts said the carrier will likely face higher future premiums.

Courts are considered unlikely to apportion any blame to Boeing, engine manufacturer Rolls Royce, or other parties without evidence implicating them.

Alleging incompetence and secrecy by Malaysia’s government and the airline, about 300 next-of-kin already have banded together to press for answers.

Malaysia Airlines has begun making some payouts to families under an “advance compensation process” but has declined to reveal details.

Lawsuits must be filed within two years of an accident. Families are holding off for now as they await news on the search, seeking confirmation of a crash, and emotional closure.

“If today someone cut off your limb, can you buy your limb back?” Yik-Kiong Hue, an MH370 next-of-kin, said in an email to Agence France-Presse.

source: newsinfo.inquirer.net

Canadian pilot believes missing Malaysian jet caught fire

KUALA LUMPUR — A veteran Canadian pilot with over two decades experience in the cockpit believes that a fire, not a hijacking, is the main reason behind the disappearance of MAS flight MH370.

In a Google+ post, pilot Chris Goodfellow argues that the missing MH370 probably fell victim to a fire.

According to Goodfellow, the sharp turn executed by the plane points to a problem on the plane.

He wrote, “The left turn is the key here. (Capt) Zaharie Ahmad Shah was a very experienced senior captain with 18,000 hours of flight time. We old pilots were drilled to know what is the closest airport of safe harbor while in cruise. Airports behind us, airports abeam us, and airports ahead of us. They’re always in our head. Always.

“If something happens, you don’t want to be thinking about what are you going to do – you already know what you are going to do.

“When I saw that left turn with a direct heading, I instinctively knew he was heading for an airport. He was taking a direct route to Palau Langkawi, a 13,000-foot airstrip with an approach over water and no obstacles.

The captain did not turn back to Kuala Lampur because he knew he had 8,000-foot ridges to cross. He knew the terrain was friendlier toward Langkawi, which also was closer.”

Goodfellow also believes that an electrical fire could explain MH370’s failure to communicate.

“For me, the loss of transponders and communications makes perfect sense in a fire. And there most likely was an electrical fire.

“In the case of a fire, the first response is to pull the main busses and restore circuits one by one until you have isolated the bad one. If they pulled the busses, the plane would go silent. It probably was a serious event and the flight crew was occupied with controlling the plane and trying to fight the fire.

“Aviate, navigate, and lastly, communicate is the mantra in such situations,” Goodfellow wrote.

The veteran pilot also suggests that an electrical fire could have been caused by an overheat during takeoff.

He wrote, “Given the timeline, that there was an overheat on one of the front landing gear tyres, it blew on takeoff and started slowly burning. Yes, this happens with underinflated tyres.

“Once going, a tyre fire would produce horrific, incapacitating smoke. Yes, pilots have access to oxygen masks, but this is a no-no with fire. Most have access to a smoke hood with a filter, but this will last only a few minutes depending on the smoke level.”

He continues, “What I think happened is the flight crew was overcome by smoke and the plane continued on the heading, probably on George (autopilot), until it ran out of fuel or the fire destroyed the control surfaces and it crashed. You will find it along that route – looking elsewhere is pointless.”

Goodfellow thinks that the final “all right, good night” communication is indicative that everything was fine on the flight deck up to that point.

“There are many ways a pilot can communicate distress. A hijack code or even transponder code off by one digit would alert ATC that something was wrong,” Goodfellow wrote.

“Every good pilot knows keying an SOS over the mike always is an option. Even three short clicks would raise an alert. So I conclude that at the point of voice transmission all was perceived as well on the flight deck by the pilots.

“But things could have been in the process of going wrong, unknown to the pilots.”

Goodfellow is also of the opinion that the pilots were unaware that the ACARS system was not transmitting.

With regard the ascent to 45,000 feet, the pilot believes that there may have been a very good reason.

He says, “Let’s accept for a minute that the pilot may have ascended to 45,000 feet in a last-ditch effort to quell a fire by seeking the lowest level of oxygen. That is an acceptable scenario.

“At 45,000 feet, it would be tough to keep this aircraft stable, as the flight envelope is very narrow and loss of control in a stall is entirely possible.

“The aircraft is at the top of its operational ceiling. The reported rapid rates of descent could have been generated by a stall, followed by a recovery at 25,000 feet. The pilot may even have been diving to extinguish flames. But going to 45,000 feet in a hijack scenario doesn’t make any good sense to me.”

source: newsinfo.inquirer.net