Legal Translation for International Litigation

Litigation Surrounding Malaysia Flight 370

We’ve blogged before about certified translation services for litigation, legal translation services for international litigation, translation of foreign evidence, the Hague Convention, and the dismissal of lawsuits under the principal of forum non conveniens. The case below touches on all of these issues and involves an international tragedy that remains a mystery to this day.

Disappearance of Malaysia Airlines Flight 370

Most people have heard about the disappearance of Malaysia Airlines Flight MH370, which went missing somewhere in the Indian Ocean on March 4, 2014. Although some pieces of the plane have washed ashore, the body of the plane remains unaccounted for and the mystery surrounding what led to the crash remains. After several civil and criminal investigations that yielded no determinative result, in January of 2015, the Malaysia Department of Civil Aviation announced that all persons aboard the flight were presumed dead.

Background on Air Disaster

The doomed flight took off from Kuala Lumpur International Airport in Malaysia on March 8, 2014 destined for Beijing, China. There were 227 passengers on board with 14 nationalities represented, including Chinese, Malaysian, and U.S. citizens. At 1:19 a.m., while the airplane was over the South China Sea and transitioning into Vietnamese airspace, air traffic controllers instructed the pilots to contact Vietnamese air traffic controllers on a certain radio frequency. Instead of reading back the assigned frequency in accordance with procedures, the pilot stated, “Good night Malaysian Three Seven Zero.” This was the last recorded radio transmission, and Malaysian air traffic controllers lost contact with the aircraft two minutes later. Although there is insufficient evidence to prove the exact cause, many believe that the pilot deliberately crashed the airplane in an act of mass murder and suicide.

Lawsuits Filed in U.S. and Malaysia

After this international air disaster, many legal representatives and beneficiaries of the deceased passengers filed lawsuits in both the United States and in Malaysia. The cases filed in the U.S. combined and centralized by the Judicial Panel on Multidistrict Litigation. The court grouped the cases into two categories depending on the nature of the allegations. The first group of cases involved claims under the Montreal Convention against Malaysia Airlines and other defendants. The second group of cases involved wrongful death and products liability claims against Boeing under the theory of res ipsa loquitor. The U.S. plaintiffs included individuals from several other countries besides the United States, including India, Australia, China, Indonesia, and Japan.

Along with the cases pending in the U.S., there were also at least 27 other civil cases pending in the High Court of Malaya at Kuala Lumpur.

Defendants Move to Dismiss Lawsuits Pending in the U.S.

The defendants moved to dismiss the cases for a number of reasons including forum non conveniens, governmental immunity, the Montreal Convention, lack of personal jurisdiction and failure to state a claim for relief. The Montreal Convention is an international treaty which sets forth uniform rules for claims arising out of incidents involving international air transportation. The court began its analysis of the defendants’ motions to dismiss by considering the defendants’ forum non conveniens argument.

In evaluating a motion to dismiss based on forum non conveniens, the court explained that the moving party bears the burden of establishing that “(1) there is an available and adequate available forum; and (2) the balance of various public and private interest factors indicates that maintaining the case in the current form is comparatively inconvenient.” The court further noted that, according to In re Air Crash Over Mid-Atl. on June 1, 2009, 760 F.Supp.2d 832, 839 (N.D. Cal. 2010), “the plaintiff’s choice of forum will not be disturbed unless the private and public interest factors strongly favor trial in the foreign country.”

Court Grants Motion to Dismiss Based on Forum Non Conveniens Grounds

The court ultimately held that the U.S. was an inconvenient forum in which to resolve the litigation of the plaintiffs’ claims when compared to Malaysia. The court found that Malaysia was an available and adequate forum for litigating the plaintiffs’ claims and that Malaysia had a significant public interest in litigating the Montreal Convention Claims arising from the air disaster. The court’s reasoning was extensive and multi-faceted.

First, the court reasoned that even though the airplane disappeared over international waters, Malaysia had a “myriad” of connections to the fatal flight, including the fact that it was a Malaysia national air carrier that operated the flight and the flight departed from Kuala Lumpur, Malaysia. In addition, the court reasoned that Malaysian air traffic authorities were the last people to have contact with the airplane and Malaysian authorities handled both a civil and criminal investigation into of the disappearance of the aircraft.

The court also noted that there was a plethora of lawsuits pending in Malaysia from representatives and heirs of the descendants and that 77 or the 88 flight passengers whose interests were at stake in the U.S. litigation were also parties to cases in the Malaysian lawsuits. Furthermore, the court considered the fact that the airplane disaster was of such significance to Malaysia that it even enacted legislation reorganizing Malaysian Airlines.

The court also explained that keeping the cases in the United States would involve complex conflicts of law questions, another factor which weighed in favor of dismissing the cases under forum non conveniens grounds under the public interest factor. The court held that “questions regarding the validity of foreign laws that are effective in foreign countries are better left to courts in those countries.”

Court Considers Location of Evidence as a Factor in Dismissing Cases

In addition to the reasons discussed above, the court also considered other potentially problematic factors by virtue of the unique nature and location of the disaster. The court noted that many relevant witnesses were located in Malaysia, such as airline employees and air traffic controllers. The court explained that because Malaysia is not a party to the Hague Convention, that the only way to enforce discovery requests would be to go through the letters rogatory process, which the court deemed “burdensome, costly, and time-consuming,”
In addition, the court reasoned that most of the evidence related to many of the plaintiffs’ claims was likely located in China or Malaysia and held that “it is no more convenient to have that evidence translated into English and brought to the United States than it is to have that evidence translated to Malay and brought to the Malaysian courts to be considered along with any other evidence pertaining to both damages and liability…”

The case is In Re: Air Crash Over the Southern Indian Ocean on March 8, 2014, MDL Docket No. 2712, decided on November 21, 2018 in the United States District Court for the District of Columbia.

**This legal translations blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.***

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