Up In The Air

The year of 2014 is a turbulent year in Malaysia's (perhaps the world's) aviation history.

Amidst the three consecutive major aviation incidents happened in 2014, much has been said on the rights of the passengers to damages under the Convention for the Unification of Certain Rules for International Carriage by Air- Montreal, 28 May 1999 ("Montreal Convention") against the carrier and other relevant parties.

Subsequent to the MH370 incident, the American law firm, Ribbeck Law Chartered, filed a petition for discovery in Illinois Court against both Malaysian Airline System Berhad ("MAS") and Boeing. The Cook County Circuit Court threw out the petition and threatened to punish the lawyers if they attempted to use such a tactic again to force the firms to turn over data about the missing MAS flight.

However, on or about 7 January 2015, the Illinois Appeals Court found that the Cook County Circuit Court had erred in his judgment and ordered the lower court to hear the petitions against the airline and aircraft manufacturer Boeing Co.1

At this juncture, MAS and Boeing Co. other than submitting to the jurisdiction of the United States Court, may apply for an injunction in the Malaysian Court to restrain the plaintiff from taking any legal proceedings in any jurisdiction other than Malaysia. The case on point is Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 ("Lee Kui Jak").

Before we discuss the case of Lee Kui Jak, it is pertinent to firstly answer whether the Malaysian Court has jurisdiction to hear the dispute arising from MH370 incident.

Whether the High Court of Malaya has jurisdiction to adjudicate over the dispute arising from MH370 incident?

The jurisdictional question must be determined by examining the content of the plaintiff's claim and to test it against the provision of Section 23 (1) of the Courts of Judicature Act 1964, which reads-

"23. Civil Jurisdiction- general

(1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where -

(a) the cause of action arose;

(b) the defendant or one of several defendants resides or has his place of business;

(c) the facts on which the proceedings are based exist or are alleged to have occurred; or

(d) any land the ownership of which is disputed is situated,

within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court."

To-date, we do not know the cause of action and the facts which triggered the incident. However, it may still be arguable that the High Court of Malaya has jurisdiction to hear the claim arising from MH370 incident. This is because one of the possible defendants in this incident, Malaysia Airline System Berhad, maintains its place of business in Malaysia.

Be that as it may, Article 33 of the Montreal Convention may lend support to the argument that the High Court of Malaya has jurisdiction to adjudicate over the dispute arising from MH370. In gist, Article 33 of the Montreal Convention provides that an action for damages can be taken in Malaysia (where the airline is based), in China (its destination) or in the country where the ticket was bought.

It should be noted that even if a private commercial agreement contains an express ouster clause with regard to Malaysia Court's jurisdiction to try a dispute arising from the same agreement, the Malaysian Court thus far is quite reluctant to give effect to the ouster clause if the plaintiff's claim fall within Section 23(1) of the Courts of Judicature Act 1964.2

Case study of Lee Kui Jak

The case of Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 is relevant when it comes to the law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction.

The case of Lee Kui Jak shares a few identical features...