Given the location and geo-political implications of the occurrence involving Malaysia Airlines Flight MH 17, speculation as to its cause will likely run rampant for years and remain vehemently contested even after a governmental probable cause is determined.
Yet regardless of the ultimate cause of the occurrence, the rights of the passenger’s beneficiaries to recover compensation for damages from Malaysia Airlines will be governed by the Montreal Convention of 1999. Even out-of-court, private settlements between the air carrier and passengers’ beneficiaries would be predicated on the provisions of the Montreal Convention.
Article 17(1) of the Convention provides:
“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
Beyond this threshold requirement, Article 21 of the Convention establishes a two-tiered scheme of liability for compensation. First, the air carrier is strictly liability up to an amount of 100,000 Special Drawing Rights (SDRs), which had the equivalent of US $154,166 on July 17, 2014. Thereafter, there is presumptive liability to an unlimited amount unless the air carrier proves that:
“(a) Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) Such damage was solely due to the negligence or other wrongful act or omission of a third party.”
If an air carrier and the passenger’s beneficiaries are unable to reach an agreement on the amount of compensation for damages, a court action must be brought within the two years prescribed under Article 35.
The location or jurisdiction for the bringing of such a court action is limited under Article 33 of the Convention to one of five places:
1. a court in the country where the air carrier maintains its domicile;
2. a court in the country where the air carrier maintains its principal place of business;
3. a court in the country where the air carrier has a place of business through which the contract has been made (usually considered the place the ticket was purchased);
4. a court in the country of the place of destination; or
5. a court in the country in which the passenger had his or her principal and permanent residence, so long as the air carrier or its code sharing partner does business there.
Many of these five potential jurisdictions are often the same in a given action. However, to the extent that they are different, it is the option of the plaintiff as to which of the five jurisdictions the action is to be brought.
Once an action is brought, the Montreal Convention continues to govern the substantive legal remedies of the parties, but under Article 33(4), “questions of procedure shall be governed by the law of the court seised of the case.” Such applicable procedural law may well contain limitations of the nature and amount of the recoverable damages. This must be appreciated and understood before settlement or proceeding with an action in any court.