LIABILITY RELATED TO SPACE TOURISM ACTIVITIES

1. LIABILITY RELATED TO SPACE TOURISM ACTIVITIES WHAT IS SPACE TOURISM - Orbital v.Sub-Orbital WHICH LAW APPLIES: AIR LAW OR SPACE LAW - 5 Approaches THE LIABILITY CONVENTION - State Liability and Damages NATIONAL SPACE LEGISLATION - A Model PRIVATE CLAIMS UNDER NATIONAL LAW • International Air Law Conventions • Rome Convention – third-party liability • Montreal Conventions – passenger liability • National Law • Products Liability • Tort Causes of Action • On the ground • In the air • In outer space

2. WHAT IS SPACE TOURISM? ORBITAL SPACE TOURISM • Example: Dennis Tito aboard the ISS for $20 million SUB-ORBITAL SPACE TOURISM • Example: SpaceShipOne, winner ofAnsariX-Prize in 2004

3. SpaceShipOne and WhiteKnight

4. Delta Clipper Experimental

5. WHICH LAW APPLIES: AIR LAW OR SPACE LAW 1. Spacialist Approach- determine a fixed boundary between air and space • Aerodynamic Lift • Lowest Perigee Demarcation • Orbital 2. Functional Activities Approach –nature or purpose of the activity. • Air law applies to vehicles doing airplane things • Space law should apply to space objects • Assumes preference for a uniform legal regime 3. Function Status of the Vehicle Approach • Design of aircraft versus spacecraft determines if air or space activity 4. Staggered demarcation - synthesizes the other theories • Uses a buffer zone 5. No Demarcation Needed • No legal or practical problems to address

6. THE LIABILITY CONVENTION A. State Liability States bear international responsibility for their activities in outer space Who has to pay? • Launching state that launches or procures the launching of a space object • State from whose territory or facility a space object is launched. B. Damages Covered Under the Liability Convention's Regime Only third party liability caused by the space object • Absolute liability for damage on the ground or to aircraft in flight • Negligence if the damage occurs in space Problems: • Dispute resolution • Action only by a state Absolute liability motivates nations to limit their liability. How?

7. NATIONAL SPACE LEGISLATION: US Indemnification • First $500 million insurance • Government indemnifies against excess liability for another $1.5 billion • Over $2 billion is the responsibility of the launch provider Reciprocal Waivers • Launch providers and operators must execute reciprocal waivers • Participants and crew give up the right to sue the U.S. government for damages Informed consent • Tourists give informed consent, in writing • Receipt of a vast amount of technical data and safety details may effectively nullify the "informed" nature of the consent

8. PRIVATE CLAIMS UNDER NATIONAL LAW • International Air Law Conventions • Rome Convention – third-party liability • Montreal Conventions – passenger liability • Applies to “international carriage” • National Law • Statute/National Space Legislation, if any • Products Liability • Liability of manufacturer of the vehicle and component parts • Difficulty - reasonable alternative designs • Tort Causes of Action • Negligence = ordinary standard of care • Strict Liability = does not depend on fault or intent to harm, • Res ipsaloquitur – "the thing speaks for itself”

9. TORT LIABILITY -- GENERALLY a. On the ground – Argument for Strict Liability • Analogize to aviation in its early developmental stages b. In the air – Strict Liability v. Negligence • Strict liability - abnormally dangerous activity • Negligence - aircraft assume some risk c. In outer space • Strict liability (or res ipsaloquitur) may be appropriate standard • Negligence may be more fair • Standard applied under liability convention? • Hybrid: Use vehicle function dichotomy

10. Thank You! Questions?