MH370 puzzle seen leading to out-of-court settlements

May 11, 2014

MH370_puzzleKuala Lumpur, May 11: The lack of any evidence indicating what caused flight MH370's disappearance raises a legal conundrum that is expected to force Malaysia Airlines into out-of-court settlements with angry next-of-kin, aviation law experts said.

More than two months since MH370 disappeared, no wreckage has been found to even confirm a crash, let alone apportion blame.

But relatives of the 239 people on board can still come after Malaysia Airlines because under international aviation law it is an airline's responsibility to prove it was not to blame for an accident.

"On the surface, (Malaysia Airlines) is responsible," said Jeremy Joseph, a Malaysian attorney specializing in transport law.

The "burden of proof" rests on the national carrier to clear its name, he added.

Under International Civil Aviation Organisation rules, next-of-kin in an air crash are entitled to an automatic minimum of about $175,000 per passenger, regardless of fault, payable by an airline's insurance company.

But Malaysia Airlines is also vulnerable to civil lawsuits for potentially greater damages by hundreds of relatives already infuriated over the lack of information on the case.

The Beijing-bound plane disappeared on March 8 and is believed to have crashed in the Indian Ocean. Theories on what happened include a terror act, rogue pilot action, or mechanical problems.

No significant legal moves have yet been made as families closely monitor an immensely difficult search in vast ocean depths that has so far found nothing.

"When there is no cause identified, it is hard to see how the airline has or has not shown the absence of fault," said Alan Tan, a professor of aviation law at the National University of Singapore.

The size of any damages would depend on where lawsuits are filed. Next-of-kin can file in the country where an airline is based, where tickets were purchased, where the passengers were headed or where they lived.

Since most passengers were from China or Malaysia, most cases could be filed in the two countries, where courts are more conservative in awarding damages compared to countries like the United States.

Damages are typically based on the lost lifetime earnings of a victim and thus could total in the hundreds of millions for all passengers combined.

"In the US, settlements usually are in the $1 million-$3 million range. For Malaysians or Chinese, salaries are lower, and hence, recoveries will be lower," said Paul Stephen Dempsey, director of the Institute of Air and Space Law at Canada's McGill University.

A US law firm is already planning a "multi-million-dollar" lawsuit against Malaysia Airlines and aircraft maker Boeing, on behalf of an Indonesian passenger's family.

But legal experts said few cases will likely end up in court. They expect undisclosed out-of-court settlements between families and Malaysia Airlines and its lead insurer, German giant Allianz.

This would allow the loss-making carrier — which was struggling amid intense competition even before MH370 disappeared — to quietly lay the matter to rest and focus on rebuilding its image.

"Because of its unprecedented nature, the courts are going to look at (MH370) very carefully. That is something the airline will try to avoid unless settlement expectations from the victims families are perceived by Malaysia Airlines as unreasonable," said Malaysian attorney Joseph.

Adds Tan: "This avoids court uncertainties and protracted litigation, and most claims will end up being negotiated and settled this way, particularly those outside the US."

In the case of Air France flight 447, which crashed in the Atlantic with 228 people aboard in June 2009, the airline's insurers made compensation payments to relatives.

Only a small number of lawsuits were filed, with a Brazilian court awarding one family an equivalent of more than half a million US dollars, before its flight data recorders were recovered in 2011.

A combination of mechanical failure and pilot error were eventually blamed.

Allianz would bear the brunt of any payouts for MH370, sparing the already financially struggling airline.

Malaysia Airlines told AFP its insurance coverage is adequate for all eventualities, declining to give details. But experts said the carrier will likely face higher future premiums.

Courts are considered unlikely to apportion any blame to Boeing, engine manufacturer Rolls Royce, or other parties without evidence implicating them.

Alleging incompetence and secrecy by Malaysia's government and the airline, about 300 next-of-kin already have banded together to press for answers.

Malaysia Airlines has begun making some payouts to families under an "advance compensation process" but has declined to reveal details.

Lawsuits must be filed within two years of an accident. Families are holding off for now as they await news on the search, seeking confirmation of a crash, and emotional closure.

"If today someone cut off your limb, can you buy your limb back?" Yik-Kiong Hue, an MH370 next-of-kin, said in an email.

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News Network
April 17,2020

Beijing, Apr 17: China denied Friday it had covered up the extent of its coronavirus outbreak, as it responded to growing questions from Western powers led by the United States.

A foreign ministry spokesman acknowledged that the virus's rapid spread had contributed to undercounting that resulted in China raising its death toll earlier Friday, but he added "there has never been any concealment, and we'll never allow any concealment."

The allegations China is too close to the World Health Organization (WHO), were an attempt at "smearing" Beijing, Zhao said.

US President Donald Trump has questioned China's handling of the pandemic and whether it had been completely transparent since the virus emerged in the central city of Wuhan late last year.

On Thursday, British Foreign Secretary Dominic Raab and French President Emmanuel Macron also expressed doubts about China's virus response.

These doubts were spotlighted again on Friday when authorities in Wuhan, which has borne the brunt of Chinese deaths, abruptly raised its death toll by 50 percent -- or 1,290 deaths -- to a new total of 3,869.

That also pushed the nationwide death toll up sharply to 4,632, based on official national data released earlier in the day.

Wuhan authorities cited several reasons for the missed cases, including that the city's medical staff were overwhelmed in the early days as infections climbed, leading to "late reporting, omissions or mis-reporting".

Zhao said such miscounting was to be expected in the initial stages of a major disease outbreak.

US President Donald Trump -- under fire himself for initially denying the seriousness of the pandemic -- has accused the WHO of doing the same and being too trusting of China's assurances over the outbreak.

On Tuesday he announced a suspension of US funding to the world body.

Asked about the US allegations, Zhao defended the WHO and China.

"I think they are all smearing China and cooking up stories about China," he said, without specifying which countries he was referring to.

China has largely brought the contagion under control domestically via tough measures including the unprecedented lockdown of Wuhan and tens of millions of people in surrounding areas, but not before it spread worldwide.

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News Network
April 26,2020

Seoul, Apr 26: A train presumed to belong to North Korean's Kim Jong-un has been spotted at a station in the state's eastern coastal town of Wonsan amid speculation about the leader's health, a US monitor said on Sunday, citing commercial satellite imagery on the region, Yonhap news agency reported.

According to 38 North-- a website devoted to analysis about North Korea, the imagery showed a train "probably belonging to Kim Jong Un parked at the Leadership Railway Station servicing his Wonsan compound since at least April 21."

"The approximately 250-metre long train, although partially covered by the station's roof, can be seen at a railway station reserved for use by the Kim family. It was not present on April 15 but was present on both April 21 and 23," it said.

"The train's presence does not prove the whereabouts of the North Korean leader or indicate anything about his health, but it does lend weight to reports that Kim is staying at an elite area on the country's eastern coast," it added.

The report came as rumours about his health have spread as Kim apparently skipped an important annual visit to the Kumsusan Palace of the Sun on the occasion of the April 15 birthday of late state founder and his grandfather, Kim Il-sung.

CNN intensified the speculation by reporting earlier last week that the United States is looking into intelligence that Kim is "in grave danger" after surgery.

Seoul officials have disputed recent media reports about Kim, saying there have been no unusual signs from the North. Some said that Kim is presumed to be staying in Wonsan for unspecified reasons.

Washington has also dismissed the reports, with US President Donald Trump calling such reports "incorrect" in a press briefing late last week.

On Saturday, other media reports stated that China has dispatched a team of medical doctors and officials to North Korea "to advise on" Kim, citing multiple unnamed people familiar with the situation.

North Korea's state media, however, has not made any mention of Kim's public activity for two weeks since he was last seen in April 11 presiding over a major party meeting, though it has reported on his handling of routine state affairs, such as sending diplomatic letters.
But not all speculation has proven to be false.

When he was absent from public for about a month in 2014, speculation arose about his health and a political crisis in the secretive state. He later reemerged with a cane and a limp reportedly after having a cyst removed from his ankle.

The 36-year-old leader is known to have various health problems apparently caused by obesity and heavy smoking. He took office as leader of the communist state after his father, Kim Jong-il, died of a heart attack in late 2011.

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Agencies
June 24,2020

Seoul, Jun 24: North Korea on Wednesday said leader Kim Jong Un suspended a planned military retaliation against South Korea, possibly slowing the pressure campaign it has waged against its rival amid stalled nuclear negotiations with the Trump administration.

Last week, the North had declared relations with the South as fully ruptured, destroyed an inter-Korean liaison office in its territory and threatened unspecified military action to censure Seoul for a lack of progress in bilateral cooperation and for activists floating anti-Pyongyang leaflets across the border.

Analysts say North Korea, after weeks deliberately raising tensions, may be pulling away just enough to make room for South Korean concessions.

Pyongyang's official Korean Central News Agency said Kim presided by video conference over a meeting Tuesday of the ruling Workers' Party's Central Military Commission, which decided to postpone plans for military action against the South brought up by the North's military leaders.

KCNA didn't specify why the decision was made. It said other discussions included bolstering the country's "war deterrent".

Yoh Sang-key, spokesman of South Korea's Unification Ministry, said Seoul was "closely reviewing" the North's report but didn't further elaborate.

Yoh also said it was the first report in state media of Kim holding a video conferencing meeting, but he didn't provide a specific answer when asked whether that would have something to do with the coronavirus.

The North says there hasn't been a single COVID-19 case on its territory, but the claim is questioned by outside experts.

Kim Dong-yub, an analyst from Seoul's Institute for Far Eastern Studies, said it's likely that the North is waiting for further action from the South to salvage ties from what it sees as a position of strength, rather than softening its stance on its rival.

"What's clear is that the North said (the military action) was postponed, not cancelled," said Kim, a former South Korean military official who participated in inter-Korean military negotiations.

Other experts say the North would be seeking something major from the South, possibly a commitment to resume operations at a shuttered joint factory park in Kaesong, which was where the liaison office was located, or restart South Korean tours to the North's Diamond Mountain resort.

Those steps are prohibited by the international sanctions against the North over its nuclear weapons programme.

The public face of the North's recent bashing of the South has been Kim Yo Jong, the powerful sister of leader Kim Jong Un, who has been confirmed as his top official on inter-Korean affairs.

Issuing harsh statements through state media, she had said the North's demolishing of the liaison office would be just the first in a series of retaliatory action against the enemy South and that she would leave it to the North's military to come up with the next steps.

The General Staff of the North's military has said it would send troops to the mothballed inter-Korean cooperation sites in Kaesong and Diamond Mountain and restart military drills in frontline areas.

Such steps would nullify a set of deals the Koreas reached during a flurry of diplomacy in 2018 that prohibited them from taking hostile action against each other.

Also condemning the South over North Korean refugees floating anti-Pyongyang leaflets across the border, the North said Monday it printed 12 million of its own propaganda leaflets to be dropped over the South in what would be its largest ever anti-Seoul leafleting campaign.

It wasn't immediately clear whether Kim's decision to hold back military action would affect the country's plans for leafleting. The North's military had said it would open border areas on land and sea and provide protection for civilians involved in the leafleting campaigns.

The North has a history of dialling up pressure against the South when it fails to get what it wants from the United States. The North's recent steps came after months of frustration over Seoul's unwillingness to defy US-led sanctions and restart the inter-Korean economic projects that would breathe life into its broken economy.

Nuclear negotiations between Pyongyang and Washington largely stalled after Kim's second summit with President Donald Trump last year in Vietnam, where the Americans rejected North Korea's demands for major sanctions relief in exchange for a partial surrender of its nuclear capabilities.

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