United States: MDL Court Dismisses Malaysia Airlines Flight MH370 Cases On FNC Grounds

Judy Nemsick is a litigation attorney in Holland & Knight's New York office.

On Nov. 21, 2018, multidistrict litigation (MDL) Judge Ketanji Brown Jackson dismissed all pending wrongful death cases arising from the disappearance of Flight MH370 on forum non conveniens (FNC) grounds.1 The court concluded that Malaysia was an adequate and available forum for the cases and that a balancing of the private and public interest factors weighed in favor of Malaysia as the more convenient forum. Although Boeing and a few U.S. plaintiffs and passengers were parties in the MDL cases, the court was "hard-pressed" to find that the interests of the U.S. outweighed "what is, at its core, a Malaysian tragedy."2

Flight MH370, a Boeing 777-2H6ER aircraft that departed Kuala Lumpur airport on March 4, 2014 with a scheduled destination of Beijing, China, mysteriously disappeared in the southern Indian Ocean shortly after takeoff. While transitioning from Malaysian to Vietnamese airspace, Malaysian air traffic controllers lost radar contact with the aircraft. Despite a massive international search and rescue effort by multiple governments, neither the aircraft nor its wreckage was recovered. On Jan. 28, 2015, the Malaysian Department of Civil Aviation announced that all 227 passengers and 12 crew members on board were presumed deceased.

Only a few pieces of wreckage subsequently were washed ashore on islands in the Indian Ocean and the eastern coast of Africa. The cockpit voice recorder and flight data recorder have not been found. The Malaysian International Civil Aciation Organziation (ICAO) Annex 13 Safety Investigation Team conducted more than 100 interviews of airline employees, crew member relatives, aviation officials and cargo representatives, and thoroughly researched the pilots and crew members' professional and personal lives.3 They examined air traffic control communications and recordings, satellite data and airline maintenance records.4 Although the ICAO's report found that it was "more likely" that the loss of communication with air traffic controllers was manually orchestrated, the team could not conclusively rule out an aircraft malfunction or intervention by a third party. On July 2, 2018, the team issued its official report and ultimately concluded that it was "unable to determine the real cause for the disappearance of MH370."

Parties and Litigation in Malaysia

A total of 40 complaints were pending in the MDL. Plaintiffs generally fell into two categories: (1) those asserting claims under the Montreal Convention against the defendant airlines—Malaysia Airlines System Berhad (MAS) and Malaysia Airlines Berhad (MAB)5—and/or their insurers and an officer at their insurer; and (2) those asserting common law wrongful death and products liability claims against aircraft manufacturer Boeing, including claims based on a res ipsa loquitor tort theory. One complaint asserted claims against all of the defendants.6

All 12 crewmembers on Flight MH370 were Malaysian citizens and the 227 passengers were citizens of 14 different countries, with the majority from China (152) and Malaysia (38). Only three passengers were U.S. citizens and one a legal resident, but none were living in the U.S. at the time of the accident. The majority of plaintiffs in the MDL were citizens or residents of China, India and Australia. Only six plaintiffs were U.S. citizens and one was a legal resident; however, four of these plaintiffs had no apparent relationship to the decedents.

Several lawsuits were brought in Malaysia against the air carrier with a total of 27 lawsuits transferred to a single judge for coordinated proceedings in the High Court of Malay in Kuala Lumpur. Of the 88 decedents represented in the MDL cases, 77 of the them are represented in the cases pending in Malaysia.

Malaysia Is an Adequate and Available Alternative Forum

The MDL court rejected the argument by one group of plaintiffs that Malaysia was an inadequate forum because of the Malaysian government's restructuring of the air carrier. MAS' lack of assets and status as a former commercial airline was immaterial to its ability to satisfy a judgment against it because it had an insurance policy from which claims could be paid. Even if MAS was judgment-proof, it would not make the U.S. a more convenient forum. The court also found no evidence to suggest that these plaintiffs would be deprived of all remedies or be treated unfairly. The fact that cases were pending against the airline defendants in Malaysia undermined any such argument. Likewise, the fact that Boeing may not have agreed to U.S.-style discovery when it consented to jurisdiction of the Malaysian courts was insufficient, according to the court, to render Malaysia an inadequate forum.

Public and Private Interest Factors Favored Malaysian Forum

The court separately analyzed the FNC factors with respect to the Montreal Convention claims against the airline defendants and the wrongful death and product liability claims against Boeing. In each instance, the court reached the conclusion that the "overriding connections to Malaysia outweigh the connections these claims have to the United States."

MAS, the operator of Flight MH370, was the national air carrier of Malaysia and maintained the aircraft; Malaysian air traffic controllers were the last to have contact with the crew; Malaysian officials were responsible for leading the aviation safety investigation; and a criminal investigation was conducted in Malaysia. Numerous Malaysia citizens died on the flight and lawsuits were pending before the High Court of Malay. Complex choice-of-law questions also weighed in favor of dismissal. Thus, although the flight disappeared over international waters and several countries participated in the investigation, the court concluded that Malaysia's "myriad connections" to the flight were "undeniably substantial."

Plaintiffs argued that the Montreal Convention's strict liability standard would not inconvenience the airline defendants because plaintiffs would make all damages-related evidence available in the U.S. at their expense. However, because plaintiffs intended to seek damages in excess of the treaty's strict liability limit, the airline defendants would need access to evidence to argue its treaty defenses, i.e., that the accident was solely attributable to another party's conduct or was not caused by the negligence or other wrongful act of the carrier. Accordingly, liability-related evidence would be very relevant and much of it would be found outside the U.S. Damages evidence related to these mostly foreign decedents likewise would be located outside the U.S.

With respect to claims against Boeing, the court noted that "courts evaluating similar products liability litigation have routinely considered the public interest of the carrier's country to be weighed most heavily in the context of their consideration of forum non conveniens." The private interests were a "closer call," but the court found that the majority of relevant causation evidence, along with damages evidence, would be located outside the U.S. This was particularly true because plaintiffs were proceeding against Boeing primarily on a res ipsa theory of causation. The court further recognized that the inability to implead the foreign sovereign air carrier, and other third-party, defendants in the U.S. would "substantially complicate" litigation in this forum and potentially deprive Boeing of the ability to obtain indemnity or contribution.


The decision joins numerous other foreign airline accident cases that have been dismissed on FNC grounds despite involvement of U.S. manufacturers and U.S. plaintiffs and/or decedents.7 Much depends, however, on the facts of each case and the balancing of the FNC private and public interest factors. Here, the MDL court was not swayed to retain the cases even though it recognized the deference afforded to cases involving U.S. plaintiffs and decedents, concluding that it was "Malaysia's strong interest in the events [giving] rise to the claims...that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans on board Flight MH370."8 Even with respect to the claims against Boeing, which arguably presented an even greater U.S. connection, the court concluded that the U.S. contacts were "overshadowed by Malaysia's overwhelming interest in the resolution of claims concerning this national disaster."


1 In re: Air Crash Over the Southern Indian Ocean on Mar. 8, 2014, MDL No. 2712, Misc. No. 16-1184, 2018 WL 6133070 (D.D.C. Nov. 21, 2018).

2 The decision rendered moot several additional motions to dismiss, including lack of subject matter jurisdiction under the Montreal Convention and Foreign Sovereign Immunities Act.

3 Malaysian authorities also conducted a criminal investigation into Flight MH370's disappearance.

4 The maintenance records for the aircraft showed compliance with all regular maintenance and Airworthiness Directives. Only the battery on the aircraft's flight data recorder underwater locator was overdue for replacement.

5 The Government of Malaysia had a direct controlling stake in MAS, the operator of Flight MH370. Following the accident, the country's sovereign fund purchased the remaining shares from minority shareholders and, pursuant to legislation, created a new entity (MAB) to operate as the national airline.

6 One complaint named all of the defendants.

7 See, e.g., Schijndel v. Boeing Co., 263 Fed. App'x 555 (9th Cir. 2008); In re Air Crash Over Mid-Atlantic on June 1, 2009, 760 F. Supp. 2d 832, 839 (N.D. Cal. 2010).

8 The U.S. interest in the U.S.-connected plaintiffs and decedents' claims was minimized by the fact that the U.S.-citizen decedents were all living abroad at the time of the accident and several of the U.S.-citizen plaintiffs lacked any pre-accident connection to the decedents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions