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When Airline Disasters and Legal Issues Intersect


The recent mystery surrounding the disappearance of Malaysia Flight 370 has raised a number of legal issues that may take years to resolve.

Our hearts ache for the families, but we wonder how many passengers on the flight had any kind of estate documents covering what they owned and how it should pass to the people they love.

Also, when are the passengers considered dead for estate planning purposes and the payment of life insurance policies if the plane or its wreckage is never found?

Further, when can family of missing passengers institute lawsuits of any kind? Who would they sue? The airline?

The manufacturer of the plane and its parts? The maintenance provider? The pilots’ estate? Another passenger’s estate that may have had a hand in the mystery? Air traffic controllers? The Malaysian government for negligence? Search crews who might have been negligent? All or some of the above?

It gets complicated when an international flight is involved and the Montreal Convention (a multinational treaty concerning compensation for victims of air disasters) often applies.

Another major issue is venue. Where should an action be filed? These kinds of actions can take years.

Usually in the U.S. a person is officially declared deceased when a doctor or a medical examiner declares a person dead. Normally there is a dead body and a death certificate issued. But if a person is missing, then what?

Many countries and states follow the seven-year rule where a person will be presumed dead after seven years, i.e., death in absentia.

Different jurisdictions have different rules. Depending on the state, this rule can be shortened if a particular state’s legislation changes it. After the catastrophe of 9/11, for example, New York and states surrounding New York allowed persons to be declared dead if they were missing for a few months and death certificates were issued. Some bodies were vaporized in the 9/11 disaster so no bodies or remains of bodies were ever found. A legal presumption was made, however, that certain persons were indeed missing, were in or near the World Trade Center, were never found, and were very likely to have died in the calamity there.

Usually courts have to find a ‘reasonable’ belief that someone is dead by not only the fact of the missing person but also the circumstances surrounding their disappearance. A court would also have to be convinced that reasonable and good faith efforts were made to find the person or his or her remains.

Some jurisdictions may also hold up proceedings if the presumed deceased had a very large estate just to have more scrutiny.

Not all countries have the seven-year rule. Italy, for example, requires 20 years missing to be declared legally dead. One can file an application in Italy after 10 years of a person missing and then wait another 10 years for an official court adjudication.

What are some of the lessons to be taken from the Flight 370 mystery? Again it is a grim reminder to get your affairs in order, both personal and business.

An estate plan is about smoothing the road after death no matter how big or small your estate is now.

It is never too early to have an estate plan. Every adult over the age of 18 needs one to make things as easy as possible for their loved ones.

While there have been other types if international disaster it would be hard to remember one as dramatic as this which features the intersection of so many legal areas: estate planning, aviation law, tort law, labor and employment law, family law, insurance law, etc.

As with other catastrophes, Malaysia Flight 370 is a major wake up call.