MH370 families should get more time to claim
15th Apr 2016
How much is a life worth? This is a difficult question, especially in the aftermath of the loss of a loved one but the law demands that it be answered.
In a cruel twist for the families of the victims of Malaysia Airlines flight MH370, in particular, that question must be answered now or they lose forever the chance to claim even that most unsatisfying though necessary of consolations: compensation.
The families of MH370 passengers that I am representing in the international legal claims have told me they feel like their lives stopped on March 8, 2014. However, the days have inexorably passed along with the economic void for necessities that only monetary compensation can fill.
Compensation in air disasters worldwide is controlled by a hodgepodge of international treaties that originated in 1929. At the heart of this system is a quid pro quo that many may say is nonsensical: the injured passenger or family of a deceased passenger doesn’t need to prove the airline negligently caused their loss, merely that an accident happened. In return the airline can limit its financial payouts in certain ways and you must bring your claim quickly — within two years rather than three years or longer for other kinds of legal claims. The reason for this diplomatic deal was to protect the fledgling aviation industry from financial demise, back when civil air transport was a much riskier enterprise.
This regime impresses as one that supports quick compensation payouts while avoiding independent and in-depth judicial focus on the accidental failings of the aviation industry. The aggrieved family representative must make their claim within the strict two-year timeframe or lose those rights forever. That’s not enough time in all instances, as exemplified by MH370, and an unfair burden for relatives to shoulder.
The injustice is that families have to make legal decisions with limited information and with their backs against the wall.
It is hardly fair that the state of the law supports a situation where people suffering in the aftermath of such a disaster can be pushed into the claims process prematurely, before they even know what may have befallen their loved one (or seen proof of death). Similar injustices arise when one considers that the purpose of compensation is restorative rather than punitive. What about those who didn’t contribute financially to a household; for example, children or the elderly? The fact is the actuarial/legal calculations are very different and, some may say, obscene. We live in a world where the law that spells this out for air crash victims implicitly fosters such a difference.
So what are the solutions?
First, we should be revisiting the quid pro quo so an extension of time is available to those who need it, so they are not forced into making their private legal concerns the public problems of courts worldwide.
Second, there must be a shift in the thinking of the international community away from compensation for proven financial losses to an agreed legal recognition of the uniform value of life, no matter what nationality or age. Would it be a hard task diplomatically and legally? Yes. Impossible? No. Important? Absolutely.
Joseph Wheeler MRAeS is the Principal of aviation law firm IALPG, and Special Counsel (Aviation) at Maurice Blackburn Lawyers where he acts on behalf of those injured or who have lost loved ones in air disasters and accidents. Joseph is an elected Member of the Royal Aeronautical Society, is a member of the Legal Advisory Group of the International Federation of Airline Pilots’ Associations (IFALPA) in Montreal, and is national Aviation Spokesperson of the ALA.
Disclaimer: this article has been previously published in The Australian, however, The Australian Lawyers Alliance has been given permission from the author to republish.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).