Thursday, 4 December 2014

MH17 and Pan Am 103 compensation claims compared

[What follows is excerpted from an article published in today’s edition of the Daily Mail:]

Eight families who lost loved ones in the Malaysia Airlines flight MH17 disaster when it was shot out of the sky in rebel-controlled eastern Ukraine are preparing to sue Russia, Ukraine and Malaysia.

The Boeing 777 was travelling from Amsterdam to Kuala Lumpur on July 17 when it was downed, killing all 298 people on board, including 38 Australian citizens and residents. (...)

Aviation lawyer Jerry Skinner, who is based in Alaska, has taken up their case and is preparing to lodge it at the European Court of Human Rights.

Back in July the lawyer first told the Sydney Morning Herald that he could potentially achieve million dollar payouts for the MH17 victims’ families, like he had obtained from Libya for the families of the 1988 Lockerbie disaster.

'Something creative is going to have to be done here because this is too big and too complicated for the judicial system to handle on its own and it involves people who will not yield to the judicial system, such as the Russians and the Ukrainians,' he said.

‘What happened in Lockerbie was that politics got involved and sanctions got involved and we said to the Libyans, if you want to settle this, it doesn't matter what the individuals did [for a living].

‘The parties that are the main participants here are probably the Russians and their allies and also Malaysia Airlines. Both of them bear a lot of responsibility for this.’

Now, Mr Skinner has said he will file a ‘very broad’ claim against Russia, Ukraine, Malaysia and Malaysia Airlines as soon as he gets some final information from the Dutch Safety Board.

[A report published today on the Radio Australia website contains the following:]

An international aviation lawyer is preparing a lawsuit on behalf of families of the Australian victims of the MH17 plane crash.

Jerry Skinner was part of the team that won $US2.7 billion in compensation from Libya over the Lockerbie bombing.

He has been engaged by at least five Australian families who lost relatives when the Malaysia Airlines plane was shot down over Ukraine in July.

Mr Skinner said they deserve the same compensation as the Lockerbie families.

"What happened in the Pan Am bombing, when an action is intentional and not negligent it generates more damages, and those damages were in the neighbourhood of $10 million for families," he said.

"In my way of thinking, since this was an intentional act and the nation states sort of took the bait of a low-flying aeroplane, that would be appropriate."

Mr Skinner is preparing the case against Russia, Ukraine and Malaysia while other families consider joining the action.

The lawsuit is expected to be filed with the European Court of Human Rights.

[RB: There is much about this story that I do not understand. Here is just one example. The European Convention on Human Rights, article 35, provides that the European Court of Human Rights may only deal with a matter after all domestic remedies have been exhausted. The Court is primarily a supervisory or appellate body, not a tribunal of first instance. A case arising out of the destruction of MH17 might well end up in the European Court of Human Rights, but I do not see how it could begin there. Where cases seeking compensation were raised following the Lockerbie disaster, they were -- correctly -- brought in domestic courts, not in the European Court of Human Rights.

Jerry Skinner is not a name that I have previously encountered in connection with the Pan Am 103 case. While a number of US attorneys represented relatives of Lockerbie victims in compensation negotiations with Libya, the lead firm was Kreindler & Kreindler.]

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