Cook County Record

Wednesday, December 11, 2019

Families of MH17 victims sue Malaysian Airlines, pro-Russian Donetsk rebel leader for downing of airliner

By Jonathan Bilyk | Jul 15, 2015


The families of those killed when pro-Russian separatists in the Donetsk region of Ukraine shot down their Malaysian Airlines flight en route from Amsterdam to Kuala Lumpur have filed suit against both the airline and the leader of the declared Donetsk People’s Republic, demanding at least $50 million for each passenger aboard the doomed flight.

On July 15, families of the 298 passengers of Malaysia Airlines Flight 17 (MH17) brought their complaint in federal court in Chicago, alleging liability against the airline for not rerouting the flight around the known war zone in Eastern Ukraine and multiple violations of international law against DNR leader Igor Girkin. The plaintiffs assert these violations entitle them to demand damages under U.S. federal law for the attack on the airliner.

Plaintiffs include Reine Dalziel, widow of South African helicopter pilot Cameron Dalziel, and Yasmine Calehr, an American citizen whose relatives, Shaka Panduwinata and Miguel Panduwinata, died when the aircraft was shot down.

The lawsuit comes almost a year to the day MH17 was shot down by an anti-aircraft missile believed to have been fired by DNR fighters in Eastern Ukraine on July 17, 2014.

Recent published reports indicate Dutch authorities investigating the incident will blame the pro-Russian DNR army for the attack, indicating the missile was a Russian-made weapon and was fired from territory controlled by the DNR at the time. The report is also said to indicate Malaysian Airlines continued to fly over the known war zone, even though other airlines had rerouted their aircraft around the region and several countries had issued warnings about the risks of operating over the Donetsk region.

In the complaint, the plaintiffs allege Malaysia Airlines should have heeded those warnings, and was negligent for choosing not to, playing a large role in the ultimate loss of the aircraft and death of its passengers.

“Many other non-US airlines, such as British Airways, Qantas, Cathay Pacific, China Airlines, Asiana, Korean Air, and Pakistan International Airlines had conducted risk assessments of over-flight of the region and had decided to re-route around the conflict zone,” the complaint notes.

The plaintiffs demanded unspecified damages against the airline under both the terms of the so-called Montreal Convention, governing air carriage, and Malaysia Airlines’ own so-called “General Conditions of Carriage.”

The plaintiffs note the airlines’ carriage conditions entitle them to “unlimited damages” to be awarded without the airline moving to “raise any defenses for compensatory damages arising out of death of its passengers.”

The complaint alleges Girkin, as “commander-in-chief” of the DNR armed forces, is responsible for the “extrajudicial killing” of those aboard the MH17 by the use of “deadly force against a civilian airliner,” an act “expressly forbidden in international law under numerous international treaties.”

The plaintiffs allege Girkin, in allegedly ordering the attack on the airliner, was “acting under actual or apparent authority or color of law of Russia and/or the DNR.”

They also allege DNR soldiers and officials, acting under Girkin’s orders, transferred personal effects and possessions of those aboard the downed airliner from the crash site to DNR headquarters “where the valuables would be transferred to the Defense Fund of the DNR.”

The plaintiffs argue they are eligible to collect damages for the attack in U.S. federal court as Malaysia Airlines does business in the U.S., the fares of some passengers were purchased in the U.S., and federal law, specifically the Torture Victim Protection Act, allows for the recovery of damages from those liable for extrajudicial killings under international law.

The plaintiffs are represented by attorney Floyd A. Wisner, of the Wisner Law Firm, of Geneva, Ill.

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