On 17 July 2014 Malaysia Airlines Flight 17, a Boeing 777-200ER, flying from Amsterdam to Kuala Lumpur crashed whilst flying over the Ukraine. It is widely reported that the aircraft is believed to have been shot down with a Buk surface-to-air missile. The aircraft impacted the ground near Hrabove in Donetsk Oblast, Ukraine, about 40 km (25 mi) from the Ukraine–Russia border, killing all 283 passengers and 15 crew on board. The two sides in Ukraine's ongoing civil conflict (the Ukrainian government and the pro-Russian separatists) accused each other of shooting down the plane with a missile.

Major ramifications for the airline industry

If the aircraft was brought down by a missile, this obviously has major ramifications for the airline industry and the entities/ countries that have contributed to the unlawful shooting down of a civilian airliner. The first and foremost task is for the multi-national investigation team to be given control of the wreckage so that a comprehensive accident investigation can take place to determine the full chain of events that lead to this tragedy.

The importance of preserving evidence at the crash site cannot be overstated. Irwin Mitchell has been involved in previous cases where vital evidence has been lost which makes the job of the legal case and that of the accident investigators much more difficult. For example, in the Kenya Airways flight KQ507 that crashed in Cameroon in May 2007 wreckage was looted and lost, significantly impacting on the official accident investigation as a result. Given the difficulties in the Ukraine, it is vital that everything possible is done to prevent this happening further in the MH17 case.

On 9 September 2014 the Dutch Safety Board published a preliminary accident report which stated that the crash was a “catastrophic and rapid”.

The key findings of the report include:

• Evidence which suggests the flight was brought down by numerous high energy objects.
• That the aircraft was just 1,000ft above the restricted airspace when the incident occurred.
• Co-ordinated access to wreckage had not been possible for investigators.
• Evidence has been downloaded successfully from black-box data recorders on-board the flight, with the data stopping abruptly on the equipment with no systems warnings detected.
• Three other commercial aircraft were also flying in the same region when the incident occurred.

The fact that the report states that the damage observed to the forward fuselage and cockpit was consistent with damage that would be expected from a large number of high energy objects that penetrated the aircraft from the outside, indicates that a high energy event outside the aircraft caused a catastrophic in-flight break up.

The report does not state that these high energy objects were from a missile, but these reported facts mean that it is almost inevitable that the aircraft was brought down by a missile.

The findings in the report outlining that the data from the cockpit voice and flight data recorders was downloadable with no indication of manipulation is positive. This means the information should be reliable and should provide vital evidence during further investigations. However, the lack of access to the wreckage for the Dutch Safety Board remains a major concern and could significantly hamper investigators’ abilities to fully investigate all aspects of this incident. Of particular concern is that the investigators may be unable to examine the materials that caused the high energy impacts, which may reduce their ability to identify exactly where these materials originated from.

Vulnerable to missile threat

Even though the MH17 aircraft was flying at 33,000 feet, which was above the restriction of 32,000 feet imposed by Ukraine officials due to the conflict, the airliner was still very vulnerable to surface to air missile threat. Given the strains involved in conflict situations, mistaking the identity (through recklessness or negligence) of a civilian jet for a military jet is a known risk. Any zone where there is ongoing conflict, especially where there has been recent shooting down of three aircraft, should be avoided at all costs. There are several examples of civilian airliners being shot down by the military, such as the Korean Airlines Flight 007 shot down by the Soviet Union in 1983, Iran Air Flight 655 shot down by the US in 1988 and Siberia Airlines flight 1812 shot down by the Ukraine in 2001.

The potential risk of surface-to-air missiles in this region at the time raises the question as to why the size and height of the restricted zone was not increased earlier? Had it been, the aircraft may not have flown the route and this terrible tragedy could have been avoided.

The aircraft’s original flight plan was for it to fly at 35,000ft, however, the accident report states that the crew requested air traffic control in the area to allow them to maintain an altitude of 33,000ft. There is clearly a need to understand the reasons behind this decision and why it was made, as well as why the flight plan itself involved flying directly across a known conflict zone and restricted area.

As such, the investigation also needs to determine to what extent the decision making by Malaysian Airlines and/or the captain of the aircraft contributed to this tragedy, which could have significant implications for the airline, its insurers, and possibly other airlines. The international convention that governs airliners liability for injury/death of passengers is the Montreal Convention. Under this convention, the airline has strict liability for each passenger up to 113,100 Special drawing Rights (SDR) - around US$173,000.

However, under Article 21 of the convention, the carrier will not be liable for damage beyond 113,100 SDR if it can prove that the damage was not due to its negligence or the damage was solely due to the negligence/wrongful act of a third party. If the route planning decisions are shown to not have properly considered the risks of the route chosen, Malaysian airlines liability may not be capped.

In addition, under the Montreal Convention, Malaysian Airlines may not be the only carrier liable. If the flight was booked through another airline, the contracting carrier, that other airline is also liable under the Montreal Convention. Given that there were over 180 Dutch passengers onboard and there are reports that a number of them did not book their flights through Malaysia Airlines, another airline may also be liable for this crash under the Convention.

Irwin Mitchell's experience in international aviation disasters

Apart from the liability of the airline(s), there is also the issue of holding to account other entities who contributed to the tragedy, including those who were involved in any way with the shooting down of the aircraft. These additional causes of action are complex as they are likely to have legal and political perspectives. As well as having extensive experience in representing the families of those killed in international aviation disasters, the Irwin Mitchell Aviation Law team also has specialist expertise in representing the victims of civilian air accidents that occur in war and conflict zones or as a result of terrorism.

In addition to acting for relatives of those killed in the Twin Towers during the 9/11 attacks, Irwin Mitchell also acted for families who lost loved ones in the Lockerbie disaster, where compensation was firstly recovered from the airline then from Libya following political pressure.

The aviation team currently acts for dozens of Afghan, UK and US families who lost loved ones when a civilian flight operated by Pamir Airways came down in Afghanistan in 2010.

Like other crashes in an area of conflict, the Pamir case has been fraught with difficulty from the start. The crash involved the loss of 44 lives when the aircraft crashed in a war zone, creating significant difficulties for the accident investigation. In addition, the Afghan authorities required specialist expertise so they were heavily reliant on international support, particularly from US accident investigation experts. Due to the lack of any information about the progress of the official investigation, the aviation team conducted its own independent investigation and liaised with UK, US and Afghan politicians to procure an accident report and put pressure on the entities responsible. This complicated and political process eventually resulted in an accident report and the aviation team is now pursuing the families’ claims for damages through the courts in the United States against the US company that was providing air traffic control services, along with the manufacturer of the aircraft ground proximity warning system.

Jurisdictions available to families

Further to determining who should be held to account for this tragedy, there is also the issue of which jurisdiction(s) they should be held to account in? Given the nature of the potential actions and potential defendants, there are a number of available jurisdictions to file the legal cases. For the airline(s), under the Montreal convention there are five jurisdictions available to the families – the domicile of the carrier, the principal place of business of the carrier, where it has a place of business through which the contract was made, the place of destination and where the passenger has his/her principal place of residence to and from which the carrier operates services. These jurisdiction options are further complicated if another carrier is liable as contracting carrier or if the accident flight was part of a series of successive flights, where the destination under the convention will be the country in which the last flight was due to land.

For other entities that may be responsible for or contributed to this tragedy, there may be additional jurisdictions available, depending on (amongst other things) where those entities are located.

Obtaining answers and improving flight safety

The MH17 tragedy should never have happened but this event is just the beginning of a very complex technical, legal and political process that is likely to take years to resolve. Ultimately the international aviation industry and authorities need to learn from what has happened so that measures can be taken to prevent this from ever happening again. In parallel to the process of obtaining answers and improving flight safety of international air travel, the families of those passengers and crew who perished, as well as many in the wider international community, will want all those individuals who played a part in causing this tragedy brought to account and for justice to be done.

If you would like to speak in confidence to an expert regarding this accident, or any other aviation incident you were involved in, please contact a member of the aviation team on 0800 056 4110. The team will be able to advise you on the accident, the relevant law and the parties who may be liable.