MH 370: The Hard Question: Do They Call Off The Search?

After 48 days, it’s time to confront the reality that, other than the “pings” (assuming they were even from MH 370), we may never know what happened on March 8, or find any trace of the aircraft.  When asked about this, both the Malaysians and the Australians have sidestepped the issue.  The typical response has been that it’s premature to address the issue and that the search efforts will continue.  The current position we’ve heard is that when the Ocean Shield returns to port shortly, there will be a “natural pause.”  At that time, future search efforts will be focused upon.

The simple fact is that there’s no easy or right answer to the question of what happens next.

Had this accident happened in a location where the NTSB was leading the investigation, the questions wouldn’t be any less difficult, but there is a procedure in place to address them.  In 1999, the NTSB and the Air Transport Association (today The Airlines For America or A4A), signed the “Principles of Understanding Between ATA Carriers and The NTSB Regarding Certain Aviation Expenditures Related to the Recovery And Indemnification of Aviation Accident Victims” (“Principles”).

Paragraph 2 of the Principles, “Victim Recovery”, provides:

When the operating carrier or NTSB believes in good faith that the commencement or continuation of the victim recovery effort in a particular accident is not reasonably practicable, the parties agree to consult forth with in good faith to determine how, whether or to what extent to proceed, and to communicate their decision(s) jointly to the families when practical.

However, the ATA carriers agree, in general, that the operating carrier should pay or cause to be paid the reasonable out of pocket operating expenses incurred for the recovery of victims and remains (as distinct from wreckage) when the recovery effort or its continuation is reasonably practicable, and consistent with both the purpose of the recovery or salvage effort described immediately below and of the identification hierarchy described in Paragraph 3 below.  If the recovery or salvage equipment is recovering both wreckage (pursuant to an on-going accident investigation) and human remains, the operating carrier is not financially or operationally responsible for any such salvage costs; however, if the salvage equipment is intended and is used solely to recover remains, then the operating carrier is responsible subject to the provisions of these Principles of Understanding.

Applying the foregoing to the circumstances of MH 370, means that if the search efforts currently underway in the Indian Ocean were in the context of an NTSB investigation:

– the airline and the NTSB would, at some point, jointly reach a conclusion that “victim recovery” is no longer “reasonably practicable”

– the airline and the NTSB would jointly determine “how, whether or to what extent to proceed” and would jointly communicate their decision to the families.

– the airline is responsible for certain search and recovery costs “when the recovery effort or its continuation is reasonably practicable…”

The bottom line is that for recovery efforts to continue there should be a determination that recovery is “reasonably practicable.”

The efforts to locate MH 370 have been going on for 48 days with no results.  We’ve been told that the Blue Fin will complete its search of the targeted area in the next few days.  What then?

As unpopular as the decision may be, perhaps it’s time to end the search, recognizing that it’s no longer “reasonably practicable” to continue such efforts.

Nothing could possibly prepare the families for what has transpired.  Listening to interviews of these families suggests that so long as the search continues, hope continues that the aircraft will be found and that there will be survivors or, alternatively, that some debris will be located.

Formally ending the search will end that hope and will, undoubtedly, not be well received by some of the families.

Despite this fact, maybe it’s time for the Malaysians and Australians to confront the issue and determine whether there’s any reason to believe it is “reasonably practicable” that the aircraft will be found.  From media reports however, its not likely this will be done.

A hard decision?  Absolutely.  However, maybe it’s a decision, whose time has come.

(Originally posted April 25, 2014)

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