Right before the deadline in Australia, one last attempt to tap some MH17 cash
With just days before lawsuit deadlines expired last month, a Sydney, Australia, law firm has filed a new compensation claim on behalf of a victim of the Malaysian Airline MH17 crash of July 17, 2014. The new case, filed in the Australian Federal Court on July 5, targets the airline on behalf of a single Australian applicant. It also makes a pitch for relatives of all 298 passengers and crew who lost their lives on the flight, to join the gravy train, whatever their nationality and wherever they live. How much money the lawyers are seeking, they refuse to say.
The new case has been brought by a Sydney law firm called Leitch Hasson & Dent (LHD). The firm has already lodged a parallel case against the airline in the New South Wales (NSW) state court. The same lawyers, led by an American, Jerry Skinner (lead image), has also filed in the European Court of Human Rights; that claims compensation from the Russian government for allegedly masterminding the destruction of the aircraft and supplying the weapon used. A parallel claim in the European Court, lodged for some of the same MH17 victims by a German lawyer, Elmar Giemulla, charges the Ukraine Government with negligence in allowing airspace over a war zone to remain open , and with liability to compensate those killed.
One plaintiff, Tim Lauschet of Sydney, is pursuing his interest with Skinner and Giemulla in all four lawsuits; his mother, Gabrielle Lauschet, was a passenger on MH17. It is unclear how closely the lawyers in these cases are cooperating with one another to boost the number of targets in order to increase the payout, and the lawyers’ take. By suing in the Australian court last month, and inviting all other victims’ families to share in the proceeds, legal experts believe the evidence and argument for liability in the new case may undermine the claims against Ukraine and Russia in the European Court. On July 5, the day the federal court case commenced in Sydney, the European Court issued a notice to the lawyers to explain why their claims should not be dismissed.
Skinner and LHD released a copy of their claim to a selected Australian reporter last month. They refuse to provide the same documents to other reporters, claiming “matters between our firm and our clients are the subject of legal privilege. “ The federal court has provided the 4-page statement of claim. It can be read in full here.
Applying for compensation is Cassandra Gibson (below, left), daughter of Liliane Derden (right), an Australian passenger killed on MH17. After her death the family told the press of fraudsters attempting to exploit the publicity surrounding the crash.
In a new media appearance arranged by LHD, Gibson reportedly said: “I'm shocked by the way Malaysia Airlines has reacted to this horrible incident. I don't understand how they could ignore such important risk management procedures just to save on fuel costs.”
An LHD lawyer added: “Under the first tier [Montreal Convention, Article 21, Part 1] the claimant does not need to establish negligence against Malaysia Airlines but must establish both that their relative was killed and that they were, to some extent, financially dependant [sic] upon them…Damages under the second tier [Article 21, Part 2], where negligence of the carrier is a critical issue, are open-ended and could result in a much larger payout.”
Omitted from these allegations, and also from the court record to date, are the requirements of the Montreal Convention for evidence to prove the culpability of the airline.
The Montreal Convention is an international pact on liability for aircraft death, injury and property damage. It was signed in 1999 and subsequently ratified by 119 states plus the European Union. All states of which the MH17 passengers were citizens have accepted the Convention, as does Ukraine. Article 21, Part 1, of the Convention expresses the compensation limit for the death of passengers in Special Drawing Rights (SDRs). Read the Convention in full here. The Convention currently provides a no-liability maximum 113,100 SDRs per death. The value changes with normal foreign exchange movements; the current US equivalent is $156,600; the Australian equivalent is about A$206,000.
Malaysian Airline has been paying advance amounts of US$50,000 to victims’ families, but the airline’s lawyers refuse to respond to claims from lawyers and victim families who say there have been unreasonable delays in settling the final amounts.
Part 2 of Article 21 of the Convention provides that an airline may be liable for more than the 113,100 SDR-limit, but not if it can prove “negligence or other wrongful act or omission” was caused by another party, not the airline.
LHD’s latest claim doesn’t accuse Malaysian Airline. Instead, it says: “On about17 July 2014, MH17 followed its planned and chosen route, AirWay L980 across Ukraine. On about17 July 2014, MH17 was shot down in the airspace over the warzone (the "incident"). The in-flight disintegration of MH17 was the result of the denotation of a warhead.” The court paper admits the SDR limit on compensation, but adds: “the applicant and group members claim compensation for all losses under Article 21(2) of MC99.” This implies there was negligence by Malaysian Airline.
Court sources say there will be a first session of lawyers for Gibson and for the airline with the judge in the new case, Justice Nye Perram (right),on August 22. For the time being, LHD is making its case through a local newspaper selected for the purpose. “Damages…where negligence of the carrier is a critical issue, are open-ended and could result in a much larger payout,” an LHD lawyer told the Sydney Morning Herald.
The new court claim also extends its bid for payout to all 298 passengers and crew of MH17. This is expressed as those “not being resident in Australia, who are the legal representatives of a passenger [excluding crew] who was killed on MH17 and express the desire to take the benefit of the action (Civil Aviation (Carrier's Liability) Act 1959 (Cth), Section 9D(6)(b)).”
The Australian statute says "damages in compensation for death in an aircraft incident must be limited to “(a) loss of earnings or profits up to the date of death of the passenger; or (b) funeral, medical or hospital expenses paid or incurred by the passenger before the passenger's death or by the passenger's personal representative.” For domestic aircraft fatalities, the Australian law provides more than double the compensation (260,000 SDRs) as the international limit.
The law also curbs lawyers - “only one action may be brought in Australia in respect of the death of any one passenger.” This appears to rule out of the new case LHD’s claim for Lauschet already proceeding in NSW state court. For more on that case, read this.
The Australian carriers liability law provides that claimants may sue if they “(a) are resident in Australia; or (b) not being resident in Australia, express the desire to take the benefit of the action.” The second proviso is the one which Skinner and his colleagues are hoping to make international. However, a search of the case law has failed to turn up a single court case allowing a class action under the Australian statute to become a global bandwagon. “There is no case law that I'm aware of that deals with this particular section,” a barrister engaged by LHD for the case, John Rowe (right), is quoted as telling local media.
Asked for comment on whether it is likely the Australian court will allow extension of jurisdiction to the rest of the world, leading Australian aviation lawyers are reluctant to say.
LHD was asked if there is a contradiction between the claims it has made in other courts about fault, cause and liability for the downing of MH17 as an act of war and homicide, and what they are now charging against Malaysian Airline. The firm replied: “other than offering you corrective advice regarding spelling, we have nothing further to say.”
Last month in Strasbourg, France, the European Court of Human Rights (ECHR) officially commenced proceedings on the first MH17 cases on file. The plaintiffs in these cases accuse the Ukrainian government of negligence in failing to close the airspace to MH17 because of the war between Kiev’s forces and separatists of the Donbass.
“The final report of the Dutch Safety Board [DSB] from October, 2015, supports the view”, the ECHR papers say, “that the government of the Ukraine bears the responsibility for the disaster because it has not closed the airspace above eastern Ukraine at the altitude of the flight plan in spite of knowledge of the circumstances.” In support, the case file includes the DSB report’s analysis of Ukrainian airspace management, military operations in the eastern region airspace, and Ukrainian government officials’ failure to protect civil aviation in the Dniepropetrovsk air traffic control area through which MH17’s flight path, L980, crossed.
The DSB report noted that airspace below the MH17’s altitude had been restricted, but that its flight path L980 at 30,000 feet was open. The DSB concluded the Ukrainian military were responsible for deciding on airspace controls, and that “the Ukrainian authorities took insufficient notice of the possibility of of a civil aeroplane at cruising altitude being fired upon… No measures were taken to protect civil aeroplanes against these weapon systems… the sovereign state bears sole responsibility for the safety of the airspace” (DSB report, page 209). The DSB also noted, without definitive conclusion, that “considerations other than those related to safety could also have played a part in Ukraine’s decision not to completely close the airspace to civil aviation, such as possible financial consequences [loss of overflight fees]. A complete closure may also have given the impression that the state had lost control over a part of its airspace.”
Nothing had been heard from the Strasbourg court on the two-year old cases against Ukraine until a public notice dated July 5, 2016. Read this paper in full. The ECHR has now accepted four separate case applications from German citizens, filed on behalf of three MH17 passengers – Olga Ioppa (below, left), Denise Lauschet, and Wilhelmus Grootscholten. The filings in November and December of 2014, and January 2015, were all made by Giemulla (right).
For more on the Grootscholten case, the delays and secrecy at the court, read this.
The ECHR has now “done the minimum”, an international legal expert says. It has put questions to the plaintiffs, “meaning that if it isn’t satisfied with the answers, the court will not proceed with the claims.” Giemulla says he didn’t receive the court notice until last Friday. The day before he had claimed: “The status is still the same as it was before: No sign of living from the Court.”
The ECHR’s latest action has raised doubts among lawyers and analysts already involved in the MH17 case. The court’s first question is: “Had the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, what kind of domestic remedies in Ukraine were available to the applicants?” Giemulla for the applicants answered this question explicitly in a document filed (in German) with the court in January 2015; that was entitled “the non-effectiveness of an action for damages against the Ukrainian state.” According to the submission, the courts of Ukraine have produced a record of political intervention, prejudice, and corruption going back to the trial and conviction of former prime minister Yulia Tymoshenko in 2013. For details of that case, read this.
“There are serious doubts”, Giemulla wrote the court in January 2015, “whether an action for damages against the Ukrainian government would be successful, even if it would imply the existence of the substantive requirements for such a claim… There are no detailed procedures for the enforcement of this particular type of complaint before domestic [Ukrainian] courts… Even if one were to assume that the current [Kiev] government has set the rule of law independent of government, so one must consider that -- even if one assumes the appropriate political will -- some time is needed to change the system… so as to fill the legal gaps in the protection of the previous system. It is unlikely that this could be done properly in view of the present, politically crucial case.”
The court notice reveals that Giemulla has filed for Lauschet as a German citizen. So the second question asked challenges whether he can proceed in more than one court at the same time. The court question is:“did the applicants invoke before the national authorities, at least in substance, the right under Article 2 on which they now wished to rely before the Court?”
In July 2015, Lauschet told Australian media he had received the airline’s advance payment of $50,000, but had run out of money, lost his job, and been forced to sell his mother’s home. He was filing in the state supreme court in Sydney, engaging Skinner. The court papers show Skinner was acting with LHD. They didn’t reveal that Lauschet was already in the ECHR as a German, suing the Ukraine through Giemulla. Lauschet has not revealed his Australian nationality to the ECHR.
According to Giemulla, “if the defendant is not the same - no problem”. The court’s question, however, refers to “substance”, not target. Lawyer sources believe this means the MH17 cases with the same evidence though different defendants, including Giemulla’s lawsuit for Lauschet against Ukraine in Strasbourg; and Skinner’s cases for Lauschet in Sydney against Malaysian Airline and in Strasbourg against Russia. According to Giemulla, in “the Lauschet case I am instructed just for the ECtHR and not for claims against MAS [Malaysian Airline System] or others. This is done by Mr Skinner.”
Have he and Skinner been coordinating? Giemulla won’t say. Speaking of himself and his German clients, he said: “we aim at deleting the causes of such crashes for the future. Compensation is of minor importance.”