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Can the law explain the loss of MH370?
The reasoning in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 suggests that, without sufficient evidence, we cannot simply assume an explanation by eliminating other possibilities. Applying this to the loss of Malaysia Airlines Flight MH370, we face a similar problem: (i) The aircraft disappeared over the Indian Ocean in 2014, and despite extensive searches, only limited debris has been recovered.(ii) Several theories exist, including mechanical failure, pilot action, hijacking, or some unknown catastrophic event.
However, no single theory has been conclusively proven on the balance of probabilities due to the lack of direct evidence.
Neither is Sherlock Holmes that helpful -“when you have eliminated the impossible, whatever remains, however improbable, must be the truth.” A court must find facts based on positive proof, not just elimination.
Following Rhesa Shipping, a court would not be able to determine a definitive cause without clear proof. The mystery of MH370 remains unresolved because, much like the case, the available evidence does not support one theory strongly enough to meet the legal burden of proof.
MH370 Final Report
On 8 March 2014, a Boeing 777 aircraft, operated as Malaysia Airlines flight 370 (MH370), was lost during a flight from Kuala Lumpur in Malaysia to Beijing in the People’s Republic of China, carrying 12 crew and 227 passengers.
Source: Australian Transport Safety Bureau
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Malaysia Airlines flight MH370
On 8 March 2014, a Boeing 777 aircraft, operated as Malaysia Airlines flight 370 (MH370), was lost during a flight from Kuala Lumpur in Malaysia to Beijing in the People’s Republic of China, carrying 12 crew and 227 passengers.
Under Annex 13 to the Convention on International Civil Aviation Aircraft Accident and Incident Investigation, Malaysia, as the state of registry and operation, has investigative responsibility for the accident. In accordance with paragraphs 5.23 and 5.24 of Annex 13, on 1 April 2014, the ATSB appointed an accredited representative to the investigation, along with a number of advisors to the accredited representative (ATSB investigators). These investigators’ work was undertaken as part of an External Investigation under the provisions of the Australian Transport Safety Investigation Act 2003. The ATSB accredited representative and advisors provided support to the Malaysian ICAO Annex 13 Safety Investigation Team for MH370 (MIASIT).
At the request of the Malaysian Government, the Australian Government accepted responsibility for initial search operations in the southern part of the Indian Ocean on 17 March 2014. On 30 March 2014, the Australian Government established the Joint Agency Coordination Centre (JACC) to coordinate the Australian Government’s support for the search for missing flight MH370. The JACC was the coordination point for whole-of-Australian Government information, messaging and international engagement, including keeping the families of those on board and the general public informed of the progress of the search.
On 31 March 2014, the Malaysian Government accepted the Government of Australia’s offer to lead the search and recovery operation in the southern Indian Ocean in support of the Malaysian accident investigation. This assistance and expertise was provided through the accredited representative mechanism detailed in Annex 13.
On 2 July 2018, the MIASIT submitted its investigation report to the Malaysian Ministry of Transport (MOT). It was released on 30 July 2018.The report and information on the investigation is available from the Malaysian website: www.mh370.gov.my
The ATSB released a report on the search on 3 October 2017, which is contained under the ‘Final ATSB report on search’ tab at www.atsb.gov.au/publications/investigation_reports/2014/aair/ae-2014-054.
The ATSB has finalised its work in support of Malaysia’s Annex 13 investigation.
Further enquiries can be directed as follows:
Enquiries in relation to the Malaysian Annex 13 safety investigation into MH370
Ministry of Transport (Malaysia)
Online: www.mh370.gov.my
Email: MH370SafetyInvestigation@mot.gov.my
Enquiries in relation to other searches for MH370
Civil Aviation Authority of Malaysia (CAAM)
Online: www.caam.gov.my
Email: MH370_QA@dca.gov.my
Source: Australian Transport Safety Bureau