On July 17, 2014, Malaysian Air Flight 17 was outbound from Amsterdam to Kuala Lumpur. Flight 17 crossed into the airspace over a portion of Ukraine where the Donetsk People’s Republic, a separatist rebel army, was waging war against the government. The rebels shot Flight 17 with a missile, causing the Boeing 777 to crash and killing all 297 aboard. On the anniversary of that catastrophe, the estates of 15 of the victims killed filed a lawsuit seeking recovery against Malaysian Airlines and the rebel commander, Igor Girkin (aka Igor Strelkov).
The plaintiffs allege strict liability against Malaysian Airlines and claim Malaysian Airlines operated in known dangerous conditions. The complaint also cites Malaysian Airlines’ general conditions of carriage, in which it allegedly waives the Montreal Convention’s limitations of liability for death, which would otherwise be set at 113,100 special drawing rights (or about $158,000 USD).
Most of the allegations of wrongdoing are aimed at Girkin. The plaintiffs suggest a conspiracy with Russia in transporting the missile used to shoot down the aircraft, as well as in prosecuting the rebellion itself. The complaint also alleges that troops under Girkin’s command pilfered personal effects from the wreckage field.
Plaintiffs assert that this disaster was an “extra judicial killing” conducted under the “apparent authority or color of law of a foreign state or nation.” The complaint suggests that either Russia or the rebels would satisfy the “foreign state” requirement. The complaint also states a more generic intentional infliction of emotional distress claim and requests punitive damages in the amount of $50 million per death.
The obvious focus of this complaint is not Igor Girkin, but rather Russia and the DPR. This litigation is reminiscent of Pan Am Flight 103 which resulted in a full recovery from Libya in the amount of $2.7 billion ($10 million per family). Plaintiffs have many significant challenges, from service and jurisdiction to establishing liability for the conspiracy. Even then, there is an enormous difference between Libya and Russia.