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MH 17/MH 370: One Year Later . . . . And Counting

A year ago MH 17 crashed in Ukraine, killing 298 people.  The airplane was shot down, but other than that one fact, little else is known.  Sure, there’s been a lot of geo-political finger pointing and the talking heads of the 24-hour news cycle have speculated and theorized.  However, there has been no meaningful investigation and no real closure for the families or, for that matter, the international community.

Even more frustrating is MH 370, where, despite extensive efforts to find some evidence of the airplane, here we are, 16 months later, not knowing any more than we knew on March 8, 2014, when the airplane disappeared.  At least the families of the passengers of MH 17 know how their loved ones died.  Seemingly, neither of these events rises to the level of news anymore, let alone “breaking news.”

So what happens now for these two tragedies?  The Australian/Malaysian search effort for MH 370 has been unsuccessful.  In all likelihood, whatever residual search efforts are still going on will end, followed by outcries from the families.  But the time is coming, sooner rather than later, when the involved governments will have to “bite the bullet” and declare they’ve done their best and, simply stated, there’s no place else left to look.

As for MH 17, the involved governments have never gotten past the finger pointing and political games. To date, there has been no meaningful accident investigation.  ICAO Annex 13 has become a theoretical exercise and the international community has essentially found itself, if not powerless, pretty close to it.  At this point, it appears that there may never be a meaningful investigation of this aviation tragedy.

It is a tremendous contradiction that while the safety of airline travel is at unprecedented levels, we still have two airline disasters with very few meaningful answers.

MH 17/MH 370: One Year Later . . . . And Counting

MH 17/MH 370: A Whole Lot of Nothing!

Reuters recently reported that Dutch investigators looking into downing of Malaysia Airlines MH 17, the Boeing 777 aircraft shot down on July 17 over the Ukraine, are finding themselves having to largely rely on publicly available information.  Because the crash occurred over rebel-held territory, investigators have determined the site is too dangerous to visit.

There are also reports of discussions between the Dutch and US intelligence communities aimed at getting satellite and/or radar data which might settle the question of the source of the weapon that downed the aircraft.  The Russians — always a trustworthy source —- say it was a Ukrainian military aircraft.  The United States has stated that it was shot down by Russian–backed rebels using a ground–to–air missile.

Lost in this discussion are the families of the 298 crew and passengers who perished.  Governments care about the source of the instrument of destruction.  Accident investigators care about causation.  At least in this case, we can all agree the aircraft was shot down and, quite frankly, we know very little else.  Meanwhile, on November 10, a “somber” commemoration ceremony took place in Amsterdam, attended by 1600 family and friends of the 298 passengers and crew who perished.

We also note that the greatest aviation mystery since the disappearance of Amelia Earhart continues, as the search for Malaysia Airlines Flight 370 goes on.  Once again, a planeload of passengers and the aircraft disappeared, and a large group of friends and families know virtually nothing about what happened on March 8, except that it’s a big ocean which doesn’t easily yield answers.

Plane-ly Spoken, like everyone else, waits for answers.

MH 17/MH 370: A Whole Lot of Nothing!

MH 17: Malaysia Airlines Shootdown: An Update

We recently reported that the search for MH 370 has been resumed by the Australians.  But little has been reported about what is going on in either the investigation or related proceedings regarding MH 17, the Malaysia Airlines aircraft shot down on July 17, 2014.

With 38 Australians perishing on the aircraft, The Sydney Morning Herald recently reported about the “insulting” monetary offers made to the families of the Australian families by Malaysia Airlines.

Plane-ly Spoken has, on several prior occasions, focused on the general issue of  airline responsibility in both MH 370 and MH 17.

What’s noteworthy about this latest media account is the report that a plaintiff’s attorney from the United States has become a “co-associate” of a Sydney law firm in representing eight Australian families.

Now, don’t get us wrong, we’re all in favor of all of the families receiving proper representation.  But is it really necessary for a US lawyer to travel halfway around the world to “co-associate” with an Australian law firm, to represent Australian families in connection with an airline loss that has virtually no contact with the United States – a foreign airline, foreign citizens, shot down by foreigners, over a foreign country?  Granted, it was an airplane built in the United States, but that has nothing to do with the airplane being shot down.

Is the Australian plaintiff’s bar really so lacking in competence, they need some American lawyer to help them out?  Or is it a comment on the plaintiffs’ bar in the United States that they have to go halfway around the world to get business?

We hope this is not a reflection on the competence or skill of the Australian authorities as they resume the search for MH 370 in the Indian Ocean.

MH 17: Malaysia Airlines Shootdown: An Update

MH 17: Plaintiffs v. Russia : Who, What, When, Where, Why and How?

Within the past few days, a law firm in England announced they’re going to sue Russia and its President, Vladimir Putin, for wrongful death damages arising from their role in the shootdown of MH 17.

Now don’t get us wrong, the circumstantial and direct evidence certainly suggest that Russia was involved in some manner.  What remains unclear is their precise role, i.e. was the Russian military actually involved in “pressing the button,” what did Mr. Putin or others in the Russian Government know and when did they know it, etc.

While we may agree with the sentiment underlying the announcement to sue President Putin and Russia, the reality is significantly more complicated.  For example:

In What Court Do You Sue?

The real issue here is that of sovereign immunity.  Russia, like it or not, enjoys (if that’s the right word to use here) the same immunities as any other nation.  Accordingly, it is highly unlikely that Russia can be successfully sued.  Moreover, the same is true of suing Mr. Putin, as a head of state.

State Sponsor of Terrorism

The United States does not include Russia on its list of state sponsors of terrorism, a designation which, theoretically, might have allowed Russia to be sued somewhere.  Iran, Syria, Sudan and Cuba are the four countries currently on the US Department of State’s list.

Proof of Liability

It’s one thing for lawyers to hold press conferences, or even for the media to conclude the evidence points to Russia’s involvement.  It’s quite another to establish by a preponderance of evidence, in a court of law, the right to recover monetary damages.

Perhaps now that some investigators have, after several weeks, arrived at the site, we will finally see some semblance of an investigation and factual evidence of Russian involvement developed.  However, it still seems like something of a daunting task to establish, as a matter of law, that monetary damages should be awarded against Russia or Putin, assuming one can even sue them.

Certainly there are international forums which might be available like the International Court of Justice at The Hague (“The World Court”).  But the World Court’s jurisdiction is typically not available to individuals.  Thus, for example, The Netherlands would have to initiate action on behalf of its citizens who perished on MH 17 and, even then, the recovery of monetary damages would be problematic as The World Court’s main function is to provide advisory opinions on legal questions.

Another possibility, perhaps less unlikely than The World Court, is the European Court of Human Rights.  This Court does hear claims by individuals against Contracting States, which includes Russia, for violations of human rights.  However, even a decision against Russia may not result in payment since getting a decision is one thing and collecting it is another.

There is little doubt that lawyers, being litigious and not averse to publicity, are going to find it impossible to resist the filing of litigation somewhere, in some court.  While there will undoubtedly be, as we have already seen, a flurry of publicity and notoriety accompanying such filings, the reality of what happens next is unlikely to be nearly as satisfying.

All we can say to those lawyers who choose to lead the charge against Russia and President Putin is good luck and “go get’em!”

MH 17: Plaintiffs v. Russia : Who, What, When, Where, Why and How?

MH 17 Let The Speculation Begin!!

As we pointed out the other day, there was little doubt that as the drama of the shootdown of MH 17 unfolds, the speculation regarding fault, blame and fingerpointing was likely to start almost immediately.  Sure enough, it has started.

Not unexpectedly, plaintiffs lawyers are leading the charge.  Just this past Saturday, The Washington Post quoted a plaintiff’s lawyer suggesting the reason MH 17 was flying on the route it was when it was shot down was so the airline could save money.  The rationale presented was that if the aircraft had flown a different flight path, it would have required more fuel and could cost the airline more money.

Nothing could be more irresponsible than for lawyers or, for that matter, anyone, to engage in such outrageous fingerpointing at the airline.  MH 17 was operating within an internationally recognized commercial air corridor, used by multiple international carriers.  MH 17 was precisely where they were  supposed to be, complying with all route and altitude instructions and properly operating consistent with their air traffic clearances.  If Eurocontrol or the Ukrainian Government believed that the  flights over this area were unsafe due to hostilities on the ground, it was their responsibility to do something.

Hindsight is a great thing.  It’s never wrong!  Sure, some carriers and nations told their flights to avoid that airspace.  However, many major international carriers did not.  The fact that Malaysia Airlines, along with other airlines, continued to use that route does not make them negligent.

Let’s make this simple.  Until there’s some evidence presented that Malaysia Airlines or its flight crew did something wrong, those who choose to speculate should keep their mouths shut.  To suggest there were economic motives driving the airline’s route selection or that flight crew should engage in the analysis of intelligence data (which they’re not privy to anyway), when there’s not a scintilla of evidence that the airline or its pilots did any wrong, is shameful.

Haven’t we learned anything from MH 370!

MH 17 Let The Speculation Begin!!

MH 17: Lessons Learned from MH 370

After the months of continuing intrigue surrounding the fate of Malaysia Airlines Flight 370,  no one could have imagined we would be talking about Malaysia Airlines Flight 17.  Almost 300 passengers and crew lost their lives when the aircraft was shot out of the sky, a casualty of the hostilities in that part of the world.

We don’t have to speculate about where the wreckage is located or what caused the aircraft to crash.  However, let there be no doubt about it, there will be plenty of speculation.  After all, without speculation, how do you fill the airwaves 24 hours a day, seven days a week.  Let’s hope however that everyone, the media and the “talking heads” alike, have learned something from the media frenzy following MH 370.

Most importantly, let’s not forget about the families of the 300 who perished on MH 17, whatever the cause, or the families of those on MH 370, who still don’t know anything.

The overlay of geo-political issues is clearly the main focus in MH 17.  The Russians blame the Ukrainians.  The Ukrainians blame he Russians.

A few words of caution:

  • Let’s not lose sight of the fact that the investigation of this tragedy should proceed free of the political finger pointing that is already starting.
  • Let’s refrain from speculation, whether it originates from the media or the never-ending parade of “experts” they bring into their studios to fill airtime.
  • Let’s remember, first and foremost, this is a human tragedy and not lose sight of the families.
  • Let’s remember that, unless someone can present facts to the contrary, Malaysia Airlines is just as much a victim as everyone else.
  • Let’s not look for ways to connect the tragedy of MH 370 to that of MH 17.

The next several weeks are sure to present a series of revelations, some of which will be accurate, many of which will not be.  As the facts unfold, let’s all remember the lessons of MH 370.


MH 17: Lessons Learned from MH 370