A judge in the United States has dismissed lawsuits brought by relatives of passengers on board missing Malaysia Airlines flight MH370, saying that the cases should be heard in Malaysia.

The multi-district litigation (MDL), which encompasses forty lawsuits, involves plaintiffs from the US, Australia, China, India, and Malaysia.

District Judge Ketanji Brown Jackson ruled in favour of the defendants, who had called for the case to be dismissed on the grounds that the US court was a forum non conveniens (an inconvenient forum) for the lawsuits.

“This court has concluded that litigation in the United States related to the flight MH370 disaster is inconvenient, and that dismissal of the MDL cases in favour of Malaysia is warranted,” the judge stated in her ruling, issued in Washington last Wednesday (November 21).

The judge said Malaysia had an “overwhelming interest” in the resolution of any Montreal Convention claims that had been asserted against its own national carrier.

MH370 disappeared on March 8, 2014. The Boeing 777 was en route from from Kuala Lumpur to Beijing with 239 people on board.

While some of the MDL lawsuits were brought under the Montreal Convention, an international treaty that governs air transportation incidents, others are common law claims.

The cases that assert claims under the Montreal Convention have been brought against Malaysia Airlines System Berhad (MAS) and Malaysia Airlines Berhad (MAB), and/or the insurers Allianz Global Corporate & Specialty SE (AGCS SE), and Henning Haagen, an officer at AGCS SE. (MAS was placed under administration in 2015 and MAB was incorporated to operate as Malaysia’s new national airline.¹)

There are also cases that assert common law wrongful death and products liability claims against the airplane manufacturer Boeing.

One case that has been brought under the Montreal Convention also makes wrongful death and personal injury claims, and names MAS, MAB, AGCS SE, Haagen, and Boeing as defendants.

Judge Ketanji Brown Jackson wrote in her ruling: “At its core, this case is about the unexplained disappearance of a passenger plane operated by Malaysia Airlines as part of its national air carrier fleet following its departure from a Malaysian airport.”

She added: “The disappearance of Flight MH370 was the subject of a years-long investigation by Malaysian authorities, and while a host of other countries undeniably participated and undoubtedly have some interest in the legal claims that have been made in the wake of this tragedy – including China, Australia, India, and the United State – these other points of connection do not alter the fundamental and substantial nexus between this tragic incident and the country of Malaysia.”

The judge said that the “substantial and overriding nexus to Malaysia” outweighed the “less substantial connection to the United States”.

She points out in her ruling that legal actions about the disappearance of MH370 have been brought in both Malaysia and the United States and many plaintiffs have filed suit in both jurisdictions.

“Of the 88 decedents represented in legal actions that are part of the instant MDL, 77 are also represented in the cases pending in Malaysia, and the defendants in the Malaysian cases include MAS, MAB, AGCS SE, and a number of Malaysian governmental entities. Boeing has not been named as a defendant in any of the Malaysian cases,” she stated.

In the US, complaints have been filed in California, the District of Columbia, Illinois, New York, South Carolina, and Washington state, and the Judicial Panel on Multidistrict Litigation subsequently centralised the pretrial proceedings with respect to all of these cases in the District of Columbia.

In her ruling, Judge Ketanji Brown Jackson said that there could be no dispute that Malaysia had the “primary public interest” in litigating the products liability claims.

She said that much relevant evidence was located outside the US, and the prospect of impleading raised “complex immunity considerations” that weighed in favour of dismissal.

“Whether or not Boeing can implead MAS or MAB as third party defendants raises questions of sovereign immunity, given that both MAS and MAB appear to be agencies or instrumentalities of the Malaysian government for purposes of the Foreign Sovereign Immunities Act, “ the judge wrote.

She also said there appeared to be other potentially sovereign defendants. The government entities cited as defendants in cases pending in Malaysia include the Department of Civil Aviation, the Royal Malaysian Air Force, the Immigration Department of Malaysia, and the Malaysian government, as well as certain individual Malaysian officials.

“Any effort to implead such defendants would substantially complicate any litigation involving the wrongful death and products liability claims that are pending against Boeing in the United States,” she stated.

The judge added, however, that plaintiffs were asserting manufacturing and design products liability claims directly against Boeing – a United States party – and it was undeniable that most of the evidence pertaining to these claims was inside the US.

“This would suggest,” she said, “that the private interest factor concerning the location of the evidence points squarely in the direction of litigating the claims in the United States; however, notably, Boeing has agreed to make all such evidence available in Malaysia, and has also agreed to pay any judgement that the Malaysian courts hand down.”

Even if the plaintiffs intended to base their case on the negligence of defendants in the planning, design, manufacture, assembly, testing, service, and inspection of the aircraft and its engines, the evidence regarding the crash itself and the actions of the airline were central to the tragedy, the judge added.

“Given that no one specific cause of the disappearance of Flight MH370 has been claimed affirmatively, much less that a certain known design or manufacturing defect precipitated this accident, this court is hard pressed to find that the interests of the United States in resolving the instant product-defect claims against Boeing outweigh what is, at its core, a Malaysian tragedy,” she said.

Australian Danica Weeks, whose husband Paul was on board MH370, said Wednesday’s judgement was “disgusting and disturbing”.

She added: “We have reached a very sad state in the world when a big corporation like Boeing is not answerable in a case like this when so many lives have been lost.”

Danica Weeks at the MH370 remembrance event in KL in 2017.

American amateur investigator Blaine Alan Gibson, who has found numerous pieces of plane debris, said: “The plane was designed and made in America. The company that made it is American. Three American citizens were on board. That should be enough to establish the court’s jurisdiction.”

K.S. Narendran, whose wife Chandrika was on board MH370, and who has written a book entitled Life After MH370, said: “How a product liability case against Boeing is best litigated in Malaysia is beyond my comprehension.”

Narendran, who is from India, published a piece on Facebook in which he said he was shocked, perplexed, and disappointed by Judge Ketanji Brown Jackson’s ruling.

Narendran at this year’s MH370 remembrance day event in KL.

‘The logical thing to do is to wait for the lawyers to take stock, strategise, and let us know the way forward. Is there an appeal process? We don’t know. Should we take our plaints to Malaysia and let it run its course?” Narendran wrote.

“After being accustomed to a state of ‘not knowing’ regarding MH370 during the past four years and more, dealing with uncertainty should come easy. But it doesn’t.”

The plaintiffs allege that there were design flaws in Boeing’s tracking and communications systems that endangered lives.

“There were superior technologies available that should have been part of the product in the interests of passenger safety,” Narendran wrote.

Boeing’s research, design, development, manufacturing, and sales are all primarily located in and directed from the US, and Boeing’s headquarters is in the US, Narendran notes.

“In light of this, it seems contrary to common sense to hold that ‘litigation in the United States related to the flight MH370 disaster is inconvenient.”

While the context that gave rise to the plaints is the same, the parties to the litigation, the arguments, and the pleas are varied, Narendran adds.

“Hearing all cases together perhaps creates a fiction that the case is one,” he wrote on Facebook.

The next of kin have waited more than two and a half years for Wednesday’s ruling. “How long this case might take in the Malaysian courts is anybody’s guess,” Narendran wrote.

“Meanwhile, we watch Boeing deftly manoeuvre its way out of the Boeing 737 Max 8 safety issues that caused the Indonesian airline Lion Air’s JT610 to fall from the sky at high speed last month killing more than 180 people on board.

“Huge orders are at stake. Large corporations like Boeing and Allianz can be expected to unleash the full force of their corporate communications and legal teams to manage fallout, and the lobbyists to contain any demands for change.”

The search for MH370

Not a trace of MH370 was found during lengthy searches in the southern Indian Ocean – initially by an Australian-led team.

The Australia-led search went on for 1,046 days and was suspended on January 17 last year. An area spanning more than 120,000 square kilometres was scoured.

The American seabed exploration company Ocean Infinity then searched, and collected data from, an area spanning about 120,000 square kilometres, which was far in excess of the initial 25,000-square-kilometre target.

The only debris that is said to be from MH370 has been retrieved on the African mainland and on islands off the African coast.

The full report released on July 30 this year by the Malaysian International Civil Aviation Organisation (ICAO) Annex 13 Safety Investigation Team for MH370 says that items of debris possibly from MH370 have been found as far north as the eastern coast of Tanzania and as far south as the eastern coast of South Africa.

It says that this is “in addition to several islands and island nations off the east coast of the African continent”.

Of these items of debris, the flaperon, a part of the right outboard flap, and a section of the left outboard flap were confirmed to be from MH370, the report states.

The report states that 27 significant pieces of debris have been recovered and examined.  In addition to the three pieces confirmed to be from MH370, seven pieces, including some cabin interior items, have been determined to be “almost certainly” from the plane. The report says eight pieces of debris are “highly likely” to be from MH370 and one piece is “likely” to be from the plane. Eight pieces of debris were not identifiable.

Twenty-six pieces of debris are with the Malaysian authorities, but the flaperon found on Reunion island is still with the French judicial authority.

Blaine Alan Gibson with debris found on an island in eastern Madagascar.

Lead investigator Kok Soo Chon said when releasing the report that the safety investigation team was “unable to determine the real cause for the disappearance of MH370”.

1. After the disappearance of MH370, the Malaysian government’s sovereign wealth fund Khazanah Nasional Berhad purchased the remaining ownership shares of MAS from minority shareholders and MAS was delisted from the Malaysian stock exchange. The government then enacted the 2015 Malaysian Airline System Berhad (Administration) Act, pursuant to which MAS was placed under administration and a new, separate entity – MAB – was incorporated to operate as the national airline. 

Update 28/11/2018

On Friday (November 30), relatives of passengers and crew who were on board MH370 will meet Malaysia’s transport minister, Anthony Loke Siew Fook, to hand over five pieces of debris that were found on the island of Madagascar and will be examined to see if they are from the missing plane.

“Five new pieces of potential MH370 debris have been recovered, including one piece that has part of a label still readable and one piece recovered as recently as August 2018,” the next of kin said in a statement released today by the family support group Voice370.

The next of kin added that family members wished to discuss and seek assurances that the Malaysian government would “continue the efforts to find a satisfactory resolution to the mystery of MH370’s disappearance”.

There had been no word on further efforts and/or developments from Malaysia since the release of the safety investigation report in July, the relatives said.