Legal, liability issues arise with Malaysia Airlines Flight 17 crash

Aviation attorney Robert Clifford says “shooting down civilian airplanes with military resources should not be tolerated or go without strong response.”

As investigators try to identify who was behind the likely downing of Malaysia Airlines Flight 17, a myriad of legal issues arise.

Early on, investigators had a problem reaching the crash site to inspect what remained of the flight. These included aviation specialists and forensic investigators.

Aviation attorney Ronald Goldman of Baum, Hedlund, Aristei & Goldman noted that there were reports how pro-Russian separatists “blocked inspectors from OSCE (Organization for Security and Co-operation in Europe) from having access to the wreckage.”

“World leaders have rightly called for the rebels to allow independent experts to examine the wreckage,” he added in a statement on July 18 to InsideCounsel.  “Without expert, unbiased examination, all [of] the knowable details necessary to complete the investigation will be lost.”

There were also reports how rebels allegedly destroyed or stole evidence from the crash site.

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A few days later, Aleksander Borodai, a separatist leader, has turned over the flight data recorders to Malaysian officials. It was later, too, when Dutch officials could inspect the victims’ remains. Four refrigerated rail cars left the region carrying 282 of the 298 victims for Kharkiv, Ukraine, and eventually the remains will make their way to Amsterdam, according to USA Today.

The flight left from Amsterdam last week and was supposed to land in Kuala Lumpur. But it was apparently downed in a remote area controlled by pro-Russian separatists, with all 298 passengers and crew killed.

And reports continued on July 22 that pro-Russian separatists were still tampering with the crash site, Fox News said. “A spokesman for OSCE … told Fox News that the rebels had used chainsaws to dismantle the nose cone and front sections of the Boeing 777 and had carted some pieces of the plane away.”

Russia denies it had anything to do with the crash, and also rejected suggestions that the separatist rebels were somehow involved.

Looking ahead, there are some longer-term legal issues related to the incident. Malaysian Transport Minister Liow Tiong Lai says Malaysia Airline is not liable, according to a report from Time. He also said in a press conference that the flight used “an approved route” — one used by 15 other international air carriers “routinely,” according to a news report.

However, the International Civil Aviation Organization (ICAO) last month urged “airlines to avoid Ukrainian airspace.” In particular, they cautioned flights about the Simferopol region of Ukraine.

Chris Yates, an aviation security specialist, told ABC Radio National, “Air traffic controllers should have warned the airliner of the danger.” The war-related danger in the wider zone led the Federal Aviation Administration to ban all U.S. commercial flights from flying over the area since April. That included the area over the Crimea, the Black Sea or the Sea of Azov.

Robert Clifford, an aviation attorney in Chicago, said Flight 17 was apparently shot down by at least one surface-to-air missile (SAM) in Ukrainian airspace near the Russian border. He pointed out in a statement that a cargo airplane and two Ukrainian fighter jets were shot down in the same area by surface-to-air or air-to-air missiles (AAM), recently.

“ICAO and the FAA should issue notices prohibiting non-military flights over all portions of Ukraine and neighboring Russian areas,” Clifford recommends. “ICAO and FAA should also consider doing the same for any other international conflict/terrorism areas where SAMs and AAMs are a potential threat in the altitude ranges where commercial flights transit.”

But his recommendations do not stop there. “The U.S. military and intelligence community should also use their assets to identify where the MH-17 SAM came from and then consider taking action with the United Nations to eliminate the SAM resources in those areas via military force,” he said. “Shooting down civilian airplanes with military resources should not be tolerated or go without strong response.”

In addition, future liability issues could be complex.

“Those potentially liable to compensate victims’ families in the latest crash include the airline, governments and aviation authorities in Malaysia and Holland—some of which are private—because they permitted a flight over a known war zone, experts say. The Russian or Ukrainian governments also could be liable if investigators find evidence that those behind the crash had state backing,” according to a report from The Wall Street Journal.

Under the Montreal Convention, Malaysia Airlines will likely offer about $170,000 to the family of each passenger. But it does not stop there.

"This is going to be a very long, convoluted and politically charged compensation case for those families," Joseph Wheeler, an aviation lawyer at Shine Lawyers located in Brisbane, Australia, told The Journal. "In terms of a loss this size, you are looking at hundreds of millions.”

The future of Malaysia Airlines has been called into question, as well, after this latest incident.

“How stupid do you have to be to send a commercial flight over what essentially is a warzone?” asked a commentary written for the Nasdaq.com website. “I bet it came down to trying to save some fuel costs for the airline, but come on, this is another case of an airline being penny wise and pound foolish. How much do you think the airline actually saved by taking the most direct route? Compare this figure with the amount of money they are going to pay out in liabilities to the families of the passengers on this plane. The trial lawyers must be lining up around the block on this one, not to mention the reputational damage caused by this latest incident with a Malaysia Airlines flight. Why would anybody ever fly this airline again?”

The commentary also called for an overhaul of upper management at Malaysia Airlines, especially after how they handled the inquiry into the still-missing Malaysia Airlines Flight 370.

In April,InsideCounsel reported that there was speculation Malaysia Airlines could end up in bankruptcy as a result of likely lawsuits from the families of passengers who were on the still-missing Flight 370.

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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