MH370 Some relatives of the MH370 passengers could be eligible for millions of dollars in compensation for the loss of their loved ones, while others may be left with nothing, aviation lawyers say.

The amount of damages that could be awarded to each family would vary, depending on which jurisdiction they chose to bring legal action in, and a number of options are available under the Montreal Convention, says Australian aviation lawyer Joseph Wheeler.

The families could choose to file their lawsuits for the MH370 crash in Malaysia, as the country of the airline and its principal place of business; in China, as the destination of the flight; or in the country where the passengers had their principal and permanent residence, regardless of their nationality.

Damages would be as high as each family’s proven losses are, Wheeler (left) said.

“If they file their claim in a Malaysian court, and they manage to make out the level of loss of support from their loved ones to their families, whatever that is should be claimable.

“How much they earned, how much they were likely to earn in the future, and how much the members of their families depended on the support of the passengers are all considered,” he said in an interview with Malaysiakini on Thursday.

Families of Indonesian and Russian passengers would be eligible for less compensation as their countries have not ratified the Montreal Convention, and operate instead under the older Warsaw Convention.

“From what we understand, their damages could be capped at about US$8,000 (about RM26,000).

“There is a way of topping that up. Malaysia Airlines has agreed to the inter-carrier agreement... which puts the limit on damages, although it is still lower than the cap in the Montreal Convention.

“So, it’s some assistance to those families that the inter-carrier agreement is there, but it’s not a great deal. It’s not as good as the Montreal Convention,” Wheeler said.

Nothing for duo with stolen passports

The families of Pouria Nourmohammadi, 18, and Delavar Seyed Mohammad Reza, 29, the two Iranian passengers who boarded Flight MH370 with stolen passports, are likely to be left with nothing.

The Montreal Convention does not provide compensation for injury or death of stowaways, which the two are considered to be, as under the treaty they had boarded the aircraft illegally.

Along with being ineligible for the automatic compensation payment, their families also have no right to sue Malaysia Airlines (MAS) for any negligence.

“Their families will not be covered at all (under the convention). If they had some insurance policies of their own, maybe, but it would be speculative to think about how their being on board the plane illegally will affect that,” Wheeler said.

The Montreal Convention also does not cover compensation for families of the 12 Malaysian crew members, which would be dealt with under their individual employment agreements with MAS, he said.

“They would have compensation available through the airline workers’ compensation. There would be insurance coverage for that, but not under these provisions.

“I imagine it would be reasonably similar (to the Montreal Convention provisions), but with different ways of the airline’s liability being triggered.”

Damages could reach RM800mil

In the event of an accident such as MH370 is believed to have undergone, the airline involved must pay compensation for every passenger killed, without anyone having to prove fault, or without the cause of the crash being established, under the Montreal Convention.

The amount is capped at an equivalent of about RM572,000, although the treaty allows families to seek higher damages from the airline.

If a lawsuit is brought against MAS, a reverse burden of proof falls on the airline to show, even in the absence of any wreckage being recovered, that the accident was not due to its negligence or was due to the negligence of a third party.

The cap on damages per passenger under the Montreal Convention will not apply if the airline cannot fend off the allegation of negligence, and Wheeler estimates that the total damages awarded for the MH370 claims could reach US$250 million (RM820 million).

“I think they’re preparing to be sued, preparing to fight this, because of how different a situation this is,” he said.

However, this is not the time to consider any legal action, Wheeler said, as the families were still grieving and in shock over their loss.

He nevertheless cautioned the relatives of the missing passengers to be wary of accepting any settlement offered by the airline without seeking legal advice, as any agreement could waive the right of the families to future claims they could have as more evidence emerges once the investigations are completed.

“It is in the interest of the insurers to settle for the lowest sum they legally can. So, without proper guidance, the relatives won’t know that what seems like a decent sum is probably too low.

“It wouldn’t surprise us if offers are made by the airline to the families in a very short period, within weeks.”

Families of passengers will have two years, from the time the plane was due to land at 6.30am on March 8, to bring a claim, and they should therefore not feel pressured to settle with the airline if presented with an offer, Wheeler added.