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Malaysia Air Flight 370: Lawyers begin their search in earnest

With experience working two Northwest crashes and fluent in the Montreal Convention, Tony Randgaard addresses what will happen next.

Expect U.S. law firms to be very aggressive in finding Flight 370 clients and convincing them they can gain legal standing in the U.S. court system.
REUTERS/Samsul Said

After holding his daily prayer meeting for the victims of the downed aircraft, Father John Irish retreated to the hotel bar and joined a large group of airline representatives. The team had spent another trying day supporting the families of the 154 deceased passengers of Northwest Flight 255. Clad in crisp white collars and gray vestments, Father Irish struck a heroic visage. Flowing gray locks and the rugged good looks of Omar Sharif, he was articulate and charming. He worked his way around the bar greeting Northwest managers by name and ordered a mixed drink on the master tab. No one batted an eye, as the same tab had been open all week and would be paid for by Northwest’s aviation insurer anyway.

Irish interrupted the din by announcing: “Will you please join me in prayer?” He delivered a polished blessing for the group asking for vigilance and comfort during this difficult time. The message was poignant and well-received. I spent the next three hours enjoying the padre’s lively yarns and engaging personality. Moreover, we marveled in his fortitude to spend hour after hour with grieving family members in the Detroit Metro “Family Center.” What a model of care and compassion!

He spent 10 days mingling and providing support for the victims’ families while recording a hotel, food and refreshment tab exceeding $1,500. When he left the hotel without paying, it actually took Northwest more than a week to realize:

Father Irish was not a priest.

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In true ‘Catch Me If You Can’ fashion, Irish played the role of a priest brilliantly, succeeding in his mission to secure the Flight 255 passenger manifest and family contact names for an unidentified, unseemly law firm. It was never revealed who hired him, but the Northwest settlements ranged from $1 million to $2 million per passenger, with attorneys earning an estimated 25-33 percent share.

U.S.: a modern Gold Rush

In the Malaysian Flight 370 tragedy, the next act of the drama will focus on the lawyers. Already, prominent U.S. aviation attorneys are stepping forward to promote their firm’s expertise and to make public estimates of settlements reaching $8 million per passenger. An initial filing for information was made in an Illinois court this week. With only three Americans listed on the flight, why the volume of activity by U.S. law firms? The answer is that U.S. courts reflect a modern Gold Rush — the most lucrative venue in the world for paying airline accident settlements.    

Let’s look at the legal precedence. The Montreal Convention is a worldwide treaty originally built in 1929 and binding on virtually every country in the world, including China and Malaysia. The pact establishes the limits of liability for airline accidents, cargo claims and even lost baggage. For airline accidents, the current compensation limit is $176,000 per passenger. This is the baseline, starting point. Much larger amounts can be tacked on for airline negligence, pain and suffering as well as the value of the passenger’s lifelong companionship.  

The treaty allows attorneys to file suit in their choice of five locations:

  • Origin city of the Malaysian flight
  • Destination city of the flight
  • Country where the ticket was purchased
  • Home base of the airline
  • Or location of the passenger’s principal residence

Because U.S. courts are the only venue where the settlement damages recognize the value of the passengers’ enduring companionship and lost income, it is always the preferred location to file suit. Industry analysts estimate that a U.S.-based suit can garner an $8 million to $10 million settlement. At the same time, the standard for negligence and liability is particularly narrow in most foreign countries. CNN reported that suits litigated in Malaysia or China would experience a large valuation gap and that settlements may not even reach $1 million per passenger. 

This backdrop will motivate U.S. law firms to be very aggressive in finding Flight 370 clients and convincing them they can gain legal standing in the U.S. court system.  

The black box and verified debris

Another important factor is the search for the black box and verified debris. Without critical evidence, it will be much more challenging for lawyers to establish negligence by Malaysia Air. Plaintiffs need material facts about willful misconduct in order to effectively argue for damages exceeding the Montreal Convention level of $176,000.  

In the Air France 447 crash, many families of international victims filed suit in U.S. courts with little success. Without residency or a ticket purchased in the U.S., the vast majority were dismissed by judges strictly construing the Montreal Convention terms. Those rulings pushed cases to international jurisdictions. Not only may settlements be slashed, but even more distressing, cases tend to languish in international courts. Most of the Air France 447 cases are settled, but it is alarming to note there are still unresolved damages cases from the Air France Concorde accident that occurred in 2000!  

Clearly, the combination of heart-wrenching search delays, the prospect of a seemingly unfair settlement playing field and the slow pace of international courts highlights a grim outlook for the families of Malaysia Air 370.

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Tony Randgaard, of Minneapolis and Chicago, worked for Northwest Airlines for 24 years and has been with United Airlines for eight. He has been published in Air Cargo News, the Forward, CNS Focus, the Rake and other publications.