Malaysia Airlines Must Compensate Families Regardless of Whether Flight 370 was Diverted by Crew or Hijacked
Someone changed the course of Flight MH370 and turned off the aircraft’s transponder. Turning off an aircraft’s transponder makes it more difficult for the plane to be tracked by radar. A hijacker with even minimal flight training would have known that.
But there is one wrinkle. The transponder was reportedly turned off when air traffic control was in the process of a “handoff” from Malaysian Air Traffic Control to Ho Chi Minh City Control in Vietnam. At that moment, the aircraft was in the shadows: on the outskirts of Malaysian radar coverage and just entering Vietnam radar coverage. The crew had said goodbye to Malaysian air traffic control, but hadn’t yet established contact with Ho Chi Minh City Control. If a crew wanted to disappear, that would be an ideal time to pull it off. Only the most sophisticated hijacker would know that.
Airline’s Obligation to Compensate Family Members
An airline’s obligation to compensate the families of those lost in the crash of an international airliner is governed by an international treaty known as the Montreal Convention. The Montreal Convention requires the airline to compensate the families of those lost whenever the crash was the result of an “accident.” An “accident” is defined as “an unexpected or unusual event or happening that is external to the passenger.” Whether the crash was caused by a pilot’s wilful misconduct, a hijacking, or even a terrorist attack -- it doesn’t matter. The crash counts as an accident and the airline is liable.
Cap on Airline Liability
An airline is strictly liable for a family's loss up to 113,100 “Special Drawing Rights,” an amount equal to about $175,000. The airline can avoid liability for sums exceeding that amount only if it can prove it was totally “free from fault.” That is usually an impossible task for an airline, even if the crash was caused by a terrorist. The air carrier can seldom show that there was nothing it could have done to avoid the accident. It’s the problem of proving a negative. Thus, if in fact flight 370 was lost in a crash, it’s unlikely the Convention’s “cap” on liability will come into play.
More in my interview appearing in the Malaysian press.