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Written by Peter Carter

August 31, 2014

The shooting down of an MAS Boeing 777 passenger jet in July in European airspace will bring litigation against some unlikely protagonists.
Air routes chosen by a pilot or an airline’s operations or scheduling personnel, must conform with those designated by the relevant airspace authority. MH-17 was in fact flying at flight level 330 (33.000 ft.) – just 1,000 ft above airspace closed by the Ukrainian authorities from ground level – and on an approved route (airway L980) over the northeast of the country enroute to TAMAK waypoint on the Russian border.

All 298 passengers and crew who departed Amsterdam at 12.15pm and who expected to arrive at Kuala Lumpur International Airport 12 hours later at 6.10 am the next morning, died as a result of the missile impact or subsequent depressurization.

The attack occurred two hours after take-off, 20km east of rebel stronghold Donetsk and 30km west of the TAMAK waypoint where Ukrainian and Russian airspace and air routes converge.

That the Ukrainian airspace authorities had cleared civil flights at that level implicates it in the potential litigation but it also implicates the European Organisation for the Safety of Air Navigation, (Eurocontrol), a co-operative charged by its 40 member nations to coordinate air traffic control for all of Europe.

Since the incident, Ukrainian authorities have closed all air routes, with Eurocontrol’s agreement, in its eastern conflict zone at all flight levels. The International Civil Aviation Organisation (ICAO) has distanced itself from any responsibility for the flight path. “Warnings about potential dangers such as military conflicts falls to individual nations”.

Australia’s CASA has also notified airlines to “avoid the airspace of the Simferopol (UKFV) FIR and circumnavigate it by using available alternative routings and circumnavigate prohibited routes in Dnepropetrovsk (UKDV) FIR.‘’

The MH-17 route was the most common route flown from Europe to South East Asia. Although Qantas had avoided the route for several months, flight numbers of 15 – 20/hour were normal over the region. Apart from the air space regulators, there are many other potential defendants in the massive litigation that is likely to follow to recoup payouts on the $300 million aircraft; $10 million in baggage, personal effects and cargo; and up to a $100 mil in life insurance cover.

These include the prime minister of the self-proclaimed “Donetsk Republic,” Alexander Zakharchenko; the Donetsk Republic itself and also – if the source of the Buk mobile missile launcher can be confirmed as Rusia – the Russian Federation where worldwide assets will be available to meet any orders from payment.

Categories: Aviation law , Personal Injury , Litigation & Law Practice

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