APRIL 17 — We the family members of MH370, through our family support association would like to highlight a few issues of concern, not only to us, but to all air travellers across the world:

For decades there has been a relentless international push for human rights and equal rights. Article 2 of the UN’s Universal Declaration of Human Rights states that everyone is entitled to all the rights and freedoms set forth in the declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Montreal Convention (MC99)

Accidents and incidents are part and parcel of the aviation industry. ICAO has addressed the issue of compensation and loss mitigation, initially through the Warsaw Convention, and improved through the current MC99.

The MC99 is supposed to establish uniformity and predictability of rules relating to carriage of passengers, baggage and cargo. It introduces a two-tier liability system that eliminates the previous requirement of proving willful neglect by the carrier to obtain additional damages and ostensibly to eliminate or reduce protracted litigation.

The MC99 sets forth a potential limit of liability, but its framers did not establish any guidelines regarding how lives will be valued. Victims are left with no recourse except to litigate to establish a value. Courts are forced to identify what law decides a families entitlement to compensation. This introduces great uncertainty and lack of uniformity or fairness. This also gives the upper hand to the airlines insurers whose only aim is their exposure and bottom-line.

The question the world must ask is “Is the life of one from a developed country more valuable than one from an economically disadvantaged nation?”

Is the life of an American more valuable their next-of-kin as compared to the value of a life of a Malaysian or Chinese or Indonesian? How does this disparity measure up against the international credo of equal rights? While money alone cannot compensate for our loss, it is important that there be some level of parity between the families of the passengers who were all Malaysia Airlines customers. The happenstance of where each passenger lived should not result in compensation levels that are so wildly different to be patently unfair.

This irony is when the insurer accepts a premium from an airline, there is no named passenger. Everybody on board is contributing a shared and equal premium. When the insurance company pays more for one passenger because of socio-political status, than it simply means that the poorer passengers are subsidising the insurance costs for the richer travellers!

Should premiums charged reflect the different values placed on lives based on different legal jurisdictions. Why not remove this uncertainty from the equation by setting values for lives and other trauma based on sum insured, as is the case in normal life insurance policies?

Shouldn’t there be a common value for a life and other forms of trauma associated with air travel since its one form of travel that routinely transcends borders. In recent press reports, victims in Taiwan were offered over US$500,000 (RM1.81 million) without having to prove anything.

In the case of MH370, Malaysia Airlines has offered US$50,000 as advance compensation payment.

Probably quoting the words of their insurers MAS had the audacity to say if the proven losses are lower, the recipients can keep the difference!!!

In other words, the loss of a life can be cheaper than US$50,000.00 to those choosing to fly Malaysia

Airlines. However, we are not implying that money can adequately compensate this devastating event and the ongoing nightmare.

For comparison, in Taiwan, victims were offered US$500,000 without having to prove anything. Is the Taiwan insurer more humane or did they collect a higher premium? Shouldn’t an airline disclose the insured value of a life so that passengers can make an informed decision when choosing an airline to fly?

In this age when you can insure anything so long as you pay the premium, why can’t there be a simple basic life insurance policy associated to each passenger on a commercial flight? Then you cannot have the grossly unfair situation of the passenger seated on the next seat to your loved one collecting millions and you get a pittance.

Why do we allow airlines to reduce expenses by having lump sum insurance that then permits insurers and lawyers to minimise compensation to the families.

In short, the MC99:  

- Dictates if/when airline is liable for passenger injury or death

- Provides only immediate legal avenue for compensation following air disasters

- Does not restrict families pursuing other at-fault parties

What about the “unprovable”?

- The MC99 liability regime does not adequately reflect the universality of human loss in air disasters

- The system also does not reflect that the legal value of human life need not be tied to individual legal systems and damages assessment methods

- The present regime fails to reflect that:

·         Air carrier litigation is no-one’s preferred option

·         Economic/commercial certainty could be achieved by standardising compensation

·         Those who suffer these losses keenly become aware of the frailties and failings of the system

- Actual compensation partially limited by MC99:

- 1st tier provable losses up to 113,100 Special Drawing Rights (SDR) - approximately US$175,000 are available strictly

- Tier 2 exists for provable losses above 113,100 SDR

- Airline is not liable for damages above 113,100 SDR if it proves:

·         The damage (death) was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents ; or

·         Such damage was solely due to the negligence or other wrongful act or omission of a third party

There is another defect in the MC99. It has a time bar of two years. MH370 raises a new variable in this equation. If the plane is not found in 2 years, do the culprits get away scot free? Shouldn’t the time limit start from the conclusion of investigations? Especially when in certain instances the investigation findings take a long time to be published.

If the normal civil statute of limitations can be up to 6 or 7 years in normal litigation, why does the MC99 cap it at two years?

Should insurers take advantage of this situation or should they, in the interest of fairness and justice elect to forgo this provision? Or would their bottom line be the determinant and consequently take every advantage to minimise pay-outs?

* Voice370 is the official association for the families of passengers and crew on board MH370.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.