The families of eight Malaysia Airlines crew members on board the ill-fated MH17 flight have been left out in the cold as their request for consent to file a negligence claim against Malaysian Airline System Berhad (MAS) for the loss of their loved ones have remained unanswered for over five months by the administrators of MAS.

On May 25, 2015, under the Malaysian Airline System Berhad (Administration) Act 2015, a moratorium period of 12 months was put into place which requires that the families obtain consent from the administrators of MAS in order to commence legal proceedings during this period.

The moratorium effectively authorises a delay in payment of debts or performance of some other legal obligation by MAS while granting its administrators the power to transfer any property, business, liabilities and affairs of MAS to Malaysia Airlines Berhad (MAB).

Families of the eight crew have appointed Jerry Skinner, a skilled international aviation litigator with over 25 years of commercial airline litigation experience, who has successfully advocated for families victimised in all types of aviation accident cases in which catastrophic loss of life or personal injury has occurred as a result of negligence.

Skinner, a special counsel at LDH Lawyers based in Australia, is assisted in Malaysia by advocates and solicitors, Messrs Thomas Philip.

Commenting on the plight of the families, Skinner said, “The families of the crew members of MH17 have suffered immense loss in the wake of the 2014 tragedy and we intend to exhaust every recourse available to ensure the families receive equitable compensation for their loss.”

“Unfortunately, thus far we have been disappointed by MAS, its administrator and MAB. They have ignored our request for consent to file the claim, proposed a settlement offer which is far off from international standards and refused to negotiate an amicable resolution for the families,” he added.

The crew members represented eight of the 298 people aboard flight MH17 from Amsterdam to Kuala Lumpur that perished when the plane was shot down from 33,000 feet in the air near the conflict zone of the Ukrainian-Russian border on July 17, 2015.

Explaining the implication of the delay, Skinner said, “With the deadline for the moratorium just a week away, the families genuinely fear that they will be left with nothing to claim. Should the claim only be filed following the lifting of the moratorium, the families will be on the same footing as MAS’ unsecured creditors, with only the remains of MAS as compensation after all its secured creditors have been compensated.

“This is why we are actively pursuing every avenue to obtain consent before this cut-off-date.”

The tragic downing of MH17, which followed close on the heels of MH370, resulted in MAS being put into administration with a view to rebuild the national carrier. While this process may be in line with the national agenda, the revival of Malaysia Airlines should not be at the expense of grieving families.

Speaking on the loss and his current predicament, the father of one of the crew members of MH17 said, “Losing a child is unbearable for any parent, but to lose our only child in such a horrific manner is indescribable. The loss has left my wife and I completely broken with no one to take care of us.”

“MAS has only compounded our grief showing no respect for our child who served the company loyally. We cannot understand how the administrators can be so heartless and calculative to refuse the consent request which our solicitors have made on numerous occasions since late last year. We plead MAS to be compassionate by granting us consent before it’s too late,” he added.

The families of crew members, unlike passengers, are neither entitled to make claims under the Montreal Convention 1999 nor under the airline’s insurance policy, and hence the pressing need to obtain consent from the administrator to file their claims before May 25, 2016.