Kuala Lumpur: 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 specialising 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 USD 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 than in 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 USD 1 million-USD 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.