MH 370 Four Hours Is Way Too Long: Negligent Search and Rescue

The aviation plaintiffs’ bar has never been shy about presenting novel, and sometimes questionable, theories of liability in pursuit of potential defendants after an accident.  The Malaysian Government’s recent release of its preliminary report into the disappearance of Flight MH 370 contains a hint of one possible theory that may show up in subsequent litigation, negligent rescue.

Although the preliminary report is very brief, it does contain a complete timeline of the flight of MH 370.  At 1:19, the aircraft made its last radio contact with controllers at Kuala Lumpur, and the aircraft was instructed to make radio contact with controllers in Ho Chih Minh, Vietnam.  Three minutes later, Kuala Lumpur lost radar contact with the airplane.

At 1:38, controllers at Ho Chi Minh contacted Malaysian controllers and asked about the plane’s location, as they had never heard from MH 370.  Malaysian controllers waited until 5:30, four hours later, to contact the Rescue Coordination Center.

This delay raises a number of questions.  Did controllers follow the proper procedures in waiting four hours?  Since it appears the plane was still flying during this period, would earlier notification have made it possible to locate the aircraft?  Did the delay worsen the chances that the passengers could have been found alive?

The doctrine of negligent rescue is primarily employed where a would-be rescuer negligently does something that makes the victim’s situation worse than it would have been had nothing been done, or if the rescuer acts recklessly and wantonly.  For example, the United States Navy was liable for the death of a seaman that occurred during a rescue attempt when the Navy vessel accidently collided with the ship it was attempting to rescue, sinking it.

However, there have been situations where liability has been imposed based on a failure to act more quickly and more thoroughly.  For example, in 1986, the Coast Guard was held liable in the deaths of two sail boaters even though they never dispatched a ship to perform a rescue (http://www.maritimeconsultant.com/macnewsletters/fall86/coast_guard_liable_for_negligent.htm).  The sailboat was in peril and radioed the Coast Guard for assistance.  Through a series of miscommunications, the Coast Guard, which was assisting other vessels, assumed that civilian freighters were conducting a rescue, while the civilian vessels which could have helped, assumed that the Coast Guard had the situation under control.  Similarly, the Coast Guard was held liable in a situation where it had received a garbled call for help, and then only made a half-hearted attempt to determine if someone was in need of assistance (http://www.leagle.com/decision/2001879134FSupp2d745_1811.xml/HURD%20v.%20U.S.).

At this point, there are still a great many imponderables regarding what was actually happening, both in the air and on the ground, between 1:30 and 5:30.  As a result, it is impossible to know if a negligent rescue claim will be possible much less whether one would be allowable under Malaysian law.  Further, there would no doubt be issues of sovereign immunity that would have to be sorted out.  Such matters, however, have rarely stopped plaintiffs’ counsel in the past, and it will be interesting if an effort is made to pursue these claims.

(Originally posted May 7, 2014)

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