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Premature actions and the need for specialist aviation legal advice
The crash of Ukraine International Airlines (UIA) flight PS752 is the both latest aviation collateral damage from a conflict zone, and first aviation tragedy of 2020. It raises numerous legal and aeropolitical issues not least of which are “how could this happen again?” and “how long must families wait for justice”?
Three hours before the crash the US FAA issued a series of Notices to Airmen (NOTAMs: A0001/20; A0002/20; A0003/20) prohibiting all US air carriers and commercial operators from flying in the Tehran Flight Information Region (FIR) due to heightened military activities and increased political tensions. US carriers and many Australian carriers typically avoid the airspace anyway but it would seem UIA did not or would not review FAA NOTAMs at that time. When the plane went down, there were 176 people on board, killed as a result of an accidental targeting by the Iranian Islamic Revolutionary Guard Corps.
The region is no stranger to aircraft shoot downs and as recently as 20 June 2019, the FAA banned their carriers from flying in the region after a US drone was downed by Iran. Like this case, the risk was foreshadowed by US FAA NOTAMs, and all but a few middle eastern and central Asian airlines stayed away. It happened in roughly the same location as American forces from the USS Vincennes accidentally downed a civil Airbus A300 of Iran Air (flight 655) in a tragic incident on 3 July 1988, which caused a variety of political tensions as to its motivators in the years that followed.
The shooting down of MH17 on 17 July 2014, and other events like Iran Air flight 655, led to the creation of an International Civil Aviation Organisation (ICAO) web based conflict zone information repository to inform airlines of developing risks; but that effort sadly failed given the sensitivities of States in sharing security intelligence in such a public way. As one of many convergent sources of information most carriers supplement their own intelligence with advisories locally and from major aviation safety regulators like the FAA and EASA – but not all do, and they really must.
While FAA NOTAMs were in place the aircraft still took off and this might have been prevented if the airspace was closed by Iran.
Clearly all countries need to put public safety above conflict and close or restrict their airspace to all if conflict and military action is imminent. These are discretions codified in the Chicago Convention 1944 (CC44, Art 9). But factually this is where MH17 and PS752 depart company. In Ukraine at the time of MH17 there was an attempt to restrict some of the sky from civilian flights, but Iran regrettably or recklessly exercised its discretion to keep the skies open.
While it is certainly a breach of international law to shoot down a civilian airliner (Iran is a party to both CC44 and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation – Montreal Convention of 1971), the path to compensation paid by guilty/liable governments is far from simple. Were a State, or collective of States, to commence action against Iran in the International Court of Justice (ICJ) it would not be the first time such an action has come to the Hague. In fact, in the case most similar to PS752 that of Iran Air flight 655 (Iran v United States) in 1996, the Court would very nearly reached a decision and ordered compensation be paid by the US, but the Respondent well aware of the shaky ground on which its defences were based made an out of court settlement with Iran. Note, the settlement came some 8 years after the shoot down incident itself and the parties were States, not citizens. The US made an ex gratia payment of $300,000 USD to the family of each victim (a total amount of $87 million USD, which would be worth about $142 million USD today).
For the families of victims of flight PS752, the question of airline liability as well as the limits will be major issues. If Ukrainian passengers had booked round trip travel to Iran, then it is likely the modern Montreal Convention 1999 (MC99) would apply. Under MC99 the limits on liability for death and injury recently rose. From 28 December 2019 families who lose loved ones can receive compensation for proven financial losses up to about $178,000 USD without need for proof of fault. The previous figure was about $155,000 USD. More realistic amounts may be available in court if families demonstrate airline security risk assessments and flight path selection were negligent, as may well be the case given the situation with known regional warnings.
However, in a demonstration of the strange arbitrariness of the regime, for others who booked only one way journeys between the two countries (eg one way Tehran to Kiev) then the limits on liability of the older “Warsaw” treaty regime might apply to severely restrict the damages available to families to an archaic level, leaving many destitute. This is because Iran is one of a small number of States that has not ratified MC99.
Clearly these dollar figures are all unreflective of the horror of the losses involved especially given they were precipitated about by the actions of participants in hostilities who should have been more aware of the airspace and innocents they were risking.
A multinational victim fund
One way forward I proposed, after MH17, was to short-circuit the long ICJ processes and have the States who lost citizens in such circumstances band together to create a multinational fund to compensate the next of kin quickly, uniformly and fairly. Given the strong likelihood that a motivated Trudeau government could lead the pursuit of reparation for its lost citizens diplomatically or through the ICJ against Iran for its admitted wrongdoing, why should the Canadian or any families wait for civil justice? States should consider the creation of a fund now so the families can heal without financial burdens as the civil and criminal legal processes unfold elsewhere.
Its bad enough the best ICAO attempt at preventing such conflict zone deaths failed; why should families of this disaster wait out ICJ processes they cannot be directly involved in as private citizens? While we wait for ICAO to do the next logical thing (create liability treaties or agreements compensating passengers specifically in the case of shoot down incidents), Canada, Sweden, Ukraine, the UK and Afghanistan (and Iran) should act in concert to ensure the next of kin of their deceased innocents are provided justice swiftly.
On 24 January 2020, class action proceedings were commenced in the Ontario Superior Court of Justice, Toronto, by a couple of local Toronto firms in reaction to the downing of PS752, which directly listed the Republic of Iran, the Iranian Revolutionary Guard Corps, Iranian Armed Forces, and even the leader of Iran Ali Khamenei, as defendants in the suit. The proceedings initiated in Toronto were not unexpected, as 63 Canadians were on board of during the downing of PS752, the second most affected nation after Iran. However, many of the Canadian Passport holders on board had lived throughout Canada, and were not confined solely to Ontario, and the action is in our view premature.
It can be difficult to ascertain the appropriateness of a suit in a particular jurisdiction, especially since class action proceedings in Canada generally operate on an “opt-out” format, whereby loved ones and kin of those tragically affected would need to specifically “opt-out” of a suit if they feel that they are not being properly and fairly represented. In Ontario, even if you are a non-resident of the province, you will nevertheless be bound by class action judgement given by the court. The Supreme Court confirmed that the Class Proceedings Acts in Ontario granted judges discretionary powers to manage proceedings, including the power to sit outside their home province. In doing so, the Supreme Court confirmed that the Class Proceedings Acts are to be interpreted broadly, in accordance with their purpose of enhancing access to justice.
The problems with such a system of automatic inclusion into class action proceedings are twofold.
First, the loved ones of those affected from another province may not be aware of proceedings, and if the proceedings are dismissed, then they are bound by the judgement and will deprived of the right to be compensated for loss or injury to their loved ones.
Second, such a system encourages law firms to hastily begin proceedings against defendants for compensation, in order to beat others to the punch, and to avoid being barred from bringing the same cause of action against the defendant.
Consequently, law firms who rush to start proceedings, often focus on the prospective compensation from the defendant, rather than the true needs and wellbeing of those affected. Let’s not forget that often,there can be divergent interests among the identifiable class of people, who might not be interested in only compensation.
It is always prudent to consult specialist aviation lawyers who are better placed in understanding, and evaluating a client’s needs and wants. Often the best thing in certain class action suits is to “opt-out”, so that families can bring a suit better tailored to their true needs, while assuring themselves that they will not be unnecessarily or impractically bound by prior judgements of courts.
Initial considerations – 9 January 2020
The crash of Ukraine International Airlines (UIA) flight PS752 may be the latest collateral damage in hostilities between Iran and the US in the Middle East, or the first accidental aviation tragedy of 2020 – either way, it raises a number of aviation legal and aeropolitical issues in addition to the usual safety investigative matters that follow international air accidents.
On Wednesday, 8 Jan 2020 at 3.37am (Iranian local time) the United States Federal Aviation Administration (FAA) issued a series of Notices to Airmen (NOTAMs: A0001/20; A0002/20; A0003/20) prohibiting all US air carriers and commercial operators from flying in the Tehran Flight Information Region (FIR) due to heightened military activities and increased political tensions in the Middle East, which present a conflict-zone type risk for civil aviation – eg, an inadvertent targeting risk due to the potential for miscalculation or misidentification. This was published in response to Iran launching missiles into Iraq over the busy commercial corridor in eastern Iraq. While this is typically not an area traversed by US civilian aircraft anyway due to pre-existing warnings by the FAA, it is a salutary warning to other carriers who monitor FAA NOTAMS to beware in the region.
Less than 3 hours after the NOTAM issue, at 6.12 am, flight PS752, a Boeing 737-800 departed Imam Khomeini International Airport in Tehran and crashed only minutes later killing all 176 people on board. Of those on board, 82 were Iranian, 11 Ukrainian, 63 Canadian, 10 Swedish, 4 from Afghanistan, 3 Germans, and 3 from the United Kingdom.
No one has claimed responsibility for bringing down flight PS752, and before any air crash investigation there has and can really only be speculation as to the causes of the crash. It may be that the accident occurred due to one or more of a variety of technical, systemic and human factors issues. What cannot be discounted, given the timing and location of the crash, is that the aircraft may have become caught up in hostile action either not intended to affect civil aircraft, or perhaps directly targeted to bring attention to the region.
The Gulf is no stranger to aircraft shoot down attempts and as recently as 20 June 2019, the FAA banned their carriers from flying in the Persian Gulf and Gulf of Oman after a drone shoot down by Iran, in a move already actioned by several other airlines including Australia’s Qantas. Such emergency NOTAMs by the FAA are significant in that several States follow FAA warnings about conflict zones, in the wake of the MH17 shoot down. The shoot down of the drone happened in roughly the same location as American forces from the USS Vincennes downed an Airbus A300 of Iran Air (flight 655) in a tragic incident on 3 July 1988, which caused a variety of political tensions and debate in the years that followed as to the motivations behind the shoot down.
Under international law however, families of the victims may be eligible for compensation from the air carrier Ukraine International Airlines as a matter of law, even if the airline is found to not be primarily at fault and even if the aircraft was brought down as a result of being mistargeted or targeted actively within the conflict zone. This was the case for passengers who lost their lives on Malaysia Airlines flight MH17, which was considered to have been brought down in a conflict zone by rebel forces but where the air carrier was still required to compensate the grieving families. The shooting down of MH17, after other events like Iran Air flight 655, led to the creation of an International Civil Aviation Organisation (ICAO) conflict zone risk information repository but that failed given the sensitivities of States sharing security intelligence in such a public way. As one of many convergent sources of information most carriers supplement their own intelligence with advisories locally and from major aviation safety regulators like the FAA and EASA.
In relation to whether airline compensation claims are possible, and the extent to which they could be made out, will vary depending on the routing/ticketing and itinerary of the passenger and a variety of complex associated jurisdictional questions to determine which private international air law scheme will apply to each passengers’ carriage.
There are two main international conventions that govern air carrier liability for international flights such as this, they are known as the Warsaw Convention 1929 and the Montreal Convention 1999 (MC99).
For the families of victims of flight 752, the question of liability as well as the limit will be live issues. If Ukrainian passengers had booked round trip travel to Iran, then it is likely the modern and passenger friendly MC99 would apply, but if others had booked only one way journeys between the two countries (eg one way Tehran to Kiev) then the limits on liability of the older Warsaw regime might apply to severely restrict the damages available to families.
For those passengers whose travel could be considered to attract the provisions of the MC99, then the freedom to sue in their home country might be an attractive option given that unlike Warsaw, the Montreal Convention permits passenger actions for death to be brought in the territory the passenger has his or her principal and permanent residence at the time of the accident, as long as some other requirements in relation to connection of the air carrier to that jurisdiction are also met.
In addition, under MC99 the limits on liability for death and injury have risen recently under the escalator clause, Article 24, of the Convention. Revised limits of liability established under Articles 21 and 22 of the Convention, in a currency tied to a basket of currencies known as Special Drawing Rights (SDRs), are effective as of 28 December 2019, as follows:
| Original limit (SDRs) | Revised limit (SDRs) as of 28 December 2019 | |
| Compensation in Case of Death or Injury to Passengers | 100 000 | 128 821 |
This means that for families who have lost loved ones, compensation may be offered up to 128,821 SDRs (or about $177,869.40USD at 9 January 2020 exchange rates) without need for proof of fault of the carrier under prevailing air carrier insurance arrangements which should be in place at Ukraine International Airlines. More may be available under certain conditions which we can advise on.
How we can help
IALPG has a long track record in aviation litigation and claims worldwide and is focussed on achieving the best outcomes for families affected by tragedies like flight PS752.
IALPG’s Legal Practice Director, Joseph Wheeler, was the lead lawyer in a team which resolved the claims of 38 Ukrainian and Russian citizens who lost their lives out of the 55 passengers lost on Flydubai flight FZ981 in March 2016. This was the last major crash of a Boeing 737-800 in civilian service before UIA flight PS752. He has also pursued cases for families affected by the tragic 2014 downing by missile of Malaysia Airlines flight MH17 over Ukraine.
IALPG is also pursuing a class action against Boeing with our partners at Chicago firm PMJ PLLC in the United States District Court for the Northern District of Illinois on behalf of more than 7,000 Boeing 737 MAX pilots from 13 airlines worldwide, and the remaining global class of MAX pilots, who were financially and socially aggrieved by the issues which led to the grounding of the MAX in March 2019 after the second of two fatal crashes of the MAX (see 1:19-cv-05008 Pilot X v. The Boeing Company, In re: Boeing 737 MAX Pilots Litigation).
For information about compensation or your rights following air crashes contact us at [email protected] or +61 7 3040 1099.