MH370 families lose US court appeal

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January 13, 2020
MH370

The families of victims of missing Malaysia Airlines Flight MH370 crash have lost an appeal against a court ruling that lawsuits against the carrier, insurer Allianz and manufacturer Boeing do not belong in the US.

Lawyers for the families had appealed a 2018 ruling by a US District Court judge that 40 wrongful death and product liability lawsuits should be heard in Malaysia.

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Malaysia Airlines Flight MH370 disappeared in March 2014 while flying from Kuala Lumpur to Beijing with 239 people on board and is believed to have crashed in the Southern Indian Ocean.

Extensive searches failed to find the wreckage and a final report on the disappearance was unable to determine a cause for the crash, although a widely held belief is that it was a murder-suicide involving the plane’s captain.

A three-judge panel with the US Court of Appeals for the District of Columbia Circuit found that a lower court did not abuse its discretion when it decided the case should be tried in Malaysia.

The ruling is a setback the families of more than 100 MH370 victims from countries such as Australia, China, India and Malaysia.

The district court found Malaysia’s public interest in hearing claims arising from the MH370 disappearance “far outweighed” that of the United States, even when it came to claims made against Boeing.

It also found that private interest factors tilted strongly in favor of trying the cases in Malaysia, given the overwhelming amount of evidence located in the South-East Asian nation and the “potentially insurmountable challenges” of making that evidence available in a US court.

Lawyers for the victims’ families had argued the court refused to afford any deference to the decision to sue in the US or to specify the precise degree of deference it had applied.

The Court of Appeals backed the lower court’s decision, describing it as a well-reasoned opinion and noting it had did not abuse its discretion that the balance of public and private interests weighed heavily in favor of trying the case in Malaysia.

It said the district court’s analysis reflected a careful consideration of the foreign families’ interests and a thoughtful balancing of the public and private interest factors” with respect to individuals.

The lower court also correctly recognized that Thomas Wood, a US citizen and resident suing on behalf of his dead brother, was entitled to the greatest degree of deference.

“We find no reversible error in the district court’s reasoning regarding the appropriate levels of deference afforded to appellants’ claims,’’ it said.

The issue was further complicated when Malaysia decided to renationalize the airline in late 2014 and restructure it by creating a new, separate entity, Malaysia Airlines Berhad (MAB).

The assets of Malaysia Airlines System were transferred to MAB and the original company was placed under administration. MAB did not assume the liabilities related to MH370.

Lawyers for the families were critical of the district court’s analysis of issues related to the MAS/MAB restructure and its immunity claims.

The panel found it was entirely proper for the district court to recognize that serious jurisdictional questions existed and weigh that as a factor in favor of dismissal.