MH370: Time running out for families to file legal case

Families of passengers and crew of Malaysia Airlines flight MH370 have about eight months to file a legal case, before the two year period under the international aviation treaty Montreal Convention 1999 becomes null and void.

According to US-based aviation attorney Gerald Sterns, the best bet for the families is to have a legal case filed within the next eight months to ensure they have ‘the right to damages’ following the MH370 tragedy.

“There is no Plan B and no common law remedies. The families should be sure to have a legal case on file within the two years noted (under the Convention) and do not assume that time can or will be extended,” Sterns said in an exclusive email interview with Astro AWANI.

With regard to some lawyers or officials to ‘extend’ the time to file a claim in court, until the exact cause of MH370’s disappearance is determined, Sterns said, “Under the existing very clear rules of the Convention, this most probably cannot be done.

“Article 35 (of the Convention) provides that the right to damages shall be ‘extinguished’ unless legal action is filed in a Court having jurisdiction, within two years.”

The two period is referenced beginning from the time the aircraft failed to reach its scheduled destination.

Also, Article 35 is held as of Repose, which means the time allowed to file a legal case runs not from the time damage is incurred or a death is confirmed, but from the scheduled arrival of a destination.

“MH370 is a perfect example of how this provision can operate to ‘extinguish’ the right to damages, two years after that scheduled arrival time. The fact that the aircraft has not been found, or may never be, and/or the actual cause never determined, is legally irrelevant,” said Sterns of the San Francisco Bay Area-based law firm Sterns &,Walker.

Under established international law rules, the Convention in which Malaysia is a member of, would override any local law regarding the time frame for filing a legal case. Malaysia signed on to the treaty in 2008.

“It is an International Treaty to which Malaysia is a Party, it cannot be altered or ‘extended’ by either the Malaysian government or the airline.

“This is not to say the airline or its insurers might, under certain circumstances, agree to more time; there is nothing to compel them to do so. And if that remains the status quo, all rights of families in question will be ‘extinguished’ as of the two-year anniversary of the scheduled arrival time,” he told Astro AWANI.

MH370 disappeared on 8 March 2014, while flying from Kuala Lumpur to Beijing, China.

Sterns said the most prudent course for the families legally, is to get a proper case filed immediately.

“Even though they may seek some leeway by agreement, per abovewould be to ensure that a proper legal case is filed with a proper court well before that time, so as to not cut it too close. The fact that a case is filed does not mean it has to be resolved at the same time,” Sterns added.

He reiterated, the Convention is the “exclusive remedy” for any ticketed passenger or the survivors thereof, and there is no common law remedy which may be sought to get around this.

Sterns added that for Malaysian claimants, unless flying on a non-round trip ticket (making China the final destination in the case of MH370), the only court option available is Malaysia.