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15
jan

Newsletter January 2013: Newsletter FLO – Aviation

Arthur Flieger, Attorney at law Flieger Law Office bvba with the cooperation of Stijn Brusseleers, Attorney at law Flieger Law office bvba

SUBORBITAL SPACEFLIGHT: WHAT KIND OF LEGAL FUTURE – AVIATION LAW OR SPACE LAW AS AN AVIATION LAYWER ONE IS CONFRONTED WITH A NEW MEAN OF POTENTIAL TRANSPORT: COMMERCIAL HUMAN SPACE FLIGHT

I.
The last years this is coming up to us: XCOR Aerospace, SXC Spaceline, Blue Origin, Virgin Galactic and a few others are already taking reservations for human suborbital spaceflight.

It’s not clear what a human spaceflight will look like, but new legislation, which will have to comply with EU-law for Europe and with the Commercial Space Launch Act (CSLA) for the United States will have to be issued. Probably the spaceflights’ participants will have to be informed about the safety aspects of the suborbital flights, and we presume that there will be an informed consent, liability waivers will be executed and probably there will also be a liability waiver towards the governments.

The position of the operators and the subcontractors will also have to be secured since their liability might be at stake. Insurance companies will probably proceed with specific immunization clauses.

The role of the vendors of the flights as well may be an issue of liability.

Complaints with the applicable space technology, Air Traffic management and the governing law jurisdictions will be at stake as well.

This is reality since Virgin Galactic reportedly has signed up over 500 space flight participants ( SFP’s), and could be ready for commercial flights in 2013.

II.
Spaceflight participants ( SFP’s) may buy spaceflights themselves or a corporation or a government agency may buy it as a sponsor for one or more SFP’s.

Act or other US Stake Law, or the applicable European legislation, in order to shield itself from liability.

One will have to make sure that there are the required contracts and/or the multiple separate contracts with the spaceflights participants, including a release to ensure compliance with the Commercial space Launch.

Those contracts will have to cover:
– Spaceflight participant Services being provided;
– Spaceflight participant safety, health and fitness requirements;
– Spaceflight participant price and payments conditions;
– Spaceflight participant duties of all parties;
– Spaceflight participant risk allocation and insurance;
– Spaceflight participant spaceflight time period of flight;
– Spaceflight participant mechanism for narrowing down the launch date;
– Spaceflight participant risks of launch and re-entry;
– Spaceflight participant not certification of the vehicle as safe by Government.

III. Content of contract
The contracts with the spaceflight participants and/or sponsor and the operator will describe the services that will be provided by the operator: The training, flights preparations, reacclimatisation and debriefing as well as any related spaceflight participant equipment and instructions on how to use it. The Operator will have to be careful not to make representations about the spaceflight experience, including f.i. sensations during weightlessness or the view of the Earth. The Operator may create otherwise legal obligations to meet reasonable expectations. Since the suborbital flights are new and because of the novelty of the technology and logistics involved, delays a.o. are to be specified.

IV. Safety
The US law and particularly the Commercial Space Launch Act as detailed by FAA regulations, requires the operator to provide extensive information on issues of the space flight.

Needless to say that under European Law still a lot should be done, and probably one may presume that due to the fact that a Dutch company SXC Spaceline NV is also getting into the market, the European legislation will become active, if not the legislators of its members.

The Lisbon Treaty introduces, for the first time ever, so called space competence, which aims to develop a European space policy to support research and coordinate efforts to use outer space. We should not forget that the EU regulations do not specifically cover space matters, which are, however, applicable to and often indispensable for space activities. The development of commercial applications and services has already posed the first problems and conflicts at the regulatory level. There is still a lot to be done despite the fact that there is already an EU Draft Code of Conduct for Outer Space Activities and Security, the activities of ESA. And in 2013 ‘The Seventh Framework Program’ ( FP7) will run out, and we are anxious to see what will come out from it.

Since the aircraft will be used for spaceflight, participants’ certification will be paramount. In the first stages the vehicle may be not-certified, the spaceflight passenger will have to be provided with sufficient information before payments and before concluding the contract. The spaceflight participant will have to receive all required information and as well the opportunity to request all questions and information. I do not see that at this stage a standard contract will be possible without having all those information included.

The safety information will have to be included in the contract, and one will be careful to avoid any representations as to the safety of the spaceflight or the used vehicle that could create contractual obligations.

As per today there is an absence of FAA regulations and European regulation to protect the safety.

V. Health and fitness
Medical conditions and training are required for the client. Such will be at this stage a contractual requirement set forth by the operator, who may choose to impose contractual requirements as to the spaceflight participant’s health and fitness.

It is advisable that he will have to confirm that he is in good health and free from high blood pressure, heart, back or neck problems, motion sickness or other conditions that could be aggravated by the suborbital journey.

The issue of disabled spaceflight participants will be discussed and should be elaborated.

Minors and people under custody are a delicate point that needs to be handled by their domestic law governing the contract. F.i. the FAA stated that a minor could not be adequately informed of the risk involved in spaceflight for purpose of giving the required Informed Consent.

Parental consent may not substitute for the minor’s inability to be informed. This issue will be elaborated in the same or other way under European law and/or domestic law. But under the main domestic European legislation a minor can indeed not give any consent.

VI. Payments, Conditions a.o. – Should there be a prepayment?
The contract will specify the price and the payment conditions. Payment will probably be required in full by a specific deadline or by instalments at specified dates or intervals.

Today some operators are currently taking reservations for a fee.

What about the refund for sudden illness on the part of the SSA. Will there be a cancellation premium? Will an insurance intervene a.o.?

VII. Duties Responsibilities a.o.
The Spaceflight participant will have several contractual duties and responsibilities.

He will have to participate in the training, flight preparation, reacclimatization and debriefing, use equipment as instructed, complete assigned tasks during space flights, submit to medical fitness tests, make true and accurate representations and disclosures.

He will also be required to refrain from certain acts as such.

The operator will be very attentful for the formulation of those duties and responsibilities so that they are clearly spelled in the contract.

We presume that the active role of the spaceflight passenger will be described clearly in the contract, this in order to mitigate or eliminate potential liability on the part of the Operator and the vendors and suppliers.

VIII. Insurance
This issue will be handled differently in the US and in the EU depending of the applicable domestic rules.

The operator may require from the spaceflight passenger to obtain live and health insurance with a minimum amount which will cover each passenger. Probably the operator will also require that the client will obtain subrogation waivers from his or her insurance.

At this stage we suggest that the operator will carry liability insurance to protect himself against any claims by the passengers as well their suppliers, in the event the waiver occurs to be illegal or statutes prove to be insufficient.

A prudent operator will require from a spaceflight participant a contractual waiver of claims, liability release and assumption of risk. However US and EU law are not the same, and one will have to consider as well the applicable consumer rights a.o.

Vehicle manufacturers and parts suppliers will likely carry product liability insurance of their own.

Under US law, the Commercial Space Launch Act requires the Spaceflight participant to waive liability against the US Government, and it is incumbent upon the operator to ensure as a condition of the FAA launch license, that this waiver is executed. Probably the contract will likely make the execution of this waiver as a condition of the spaceflight. I suppose that under EU law and/or domestic law of its members, one will handle likewise, but a lot will depend as well of the applicable domestic law.

The sponsor third liability insurance a.o. will require new rules as such.

One thing is clear: the operator will probably include in the contract a disclaimer of warranty with respect to the vehicle and its components and the spaceflight. Such will as well be extended to the vendor and suppliers of the operator. At this stage we notice that US law is governing this market, however once that same will take place in Europe, new regulations will also be drafted.

It is paramount that the service providers will pay attention to their contract terms, especially to the risk and liability and the protections which are to be given.

We presume that with the launch of this new mode of transport legislation will be elaborated the forthcoming years, and the last word is certainly not said. As such it should be noted that Spaceport America officials are urging the US legislations to limit potential lawsuits from spaceflight participants who take off from New Mexico, saying such bill is crucial to the future of the project. However in our view there is no way to know whether the so called informed consent laws will offer any protection to spacecraft operators and suppliers in the event something goes wrong. There is no precedent since this has never happened yet. Such measures are being pushed by states trying to compete in the fledging commercial space travel area. So one will have to wait and see…

 

For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com,  Website: www.fliegerlaw.com,  telephone: +32 3 238 77 66

 

Copyright A. Flieger
This publication is defined to provide accurate and authoritative information in regard to the subject matter covered. It is transmitted with the understanding that the publisher is not engaged in rendering legal, or any other professional services. If legal advice or other expert assistance is required, professional services should be sought. You can always contact A. Flieger at flieger@fliegerlaw.com.