Houston, We Have a (Liability) Problem

• Author: Silver, Justin

Introduction

Manned space flight is an incredibly complex and dangerous endeavor. Of the 536 individuals who have travelled into space,1 18, or 3.4 percent, have died during a mission.2 Until recently, however, all manned space flights were the province of national governments. As a result, the issue of tort liability for injury or death of crew members arose infrequently and, in the United States, only within the bounds of the Federal Tort Claims Act.3 Within the past decade or so, there has been an ever-increasing push for commercial manned space flight to support and, in some instances, supplant governmental space flight.

The current proposals for commercial, human space transportation can roughly be broken down into two categories: suborbital and orbital. Suborbital space flights travel with enough speed to pass through the boundary between earth's atmosphere and space but do not achieve a high enough velocity to enter orbit around the earth. Orbital space flights, on the other hand, achieve a high enough velocity to enter orbit. The extra speed neces- sary to enter orbit is very difficult and costly to achieve.

Virgin Galactic is at the forefront of commercializing suborbital manned space flight.4 Scaled Composites and Virgin Galactic have formed a joint venture, the Spaceship Company, to construct the spacecraft that Virgin Ga- lactic will use to transport passengers into space.5 Virgin Galactic aims to build a reusable spacecraft that will carry two crew members and six passen- gers into space on a suborbital flight.6 Virgin Galactic CEO Sir Richard Branson is so confident in the safety and success of the craft that he has reserved tickets on the first flight of SpaceShipTwo for himself and his two children.7

SpaceX, one of the leading developers of orbital spacecraft,8 has devel- oped a fully recoverable capsule capable of autonomous operation that can be configured to transport cargo and passengers into space.9 The National Aeronautics and Space Administration ("NASA") picked SpaceX as one of three teams to receive funding through NASA's Commercial Crew Integrated Capability ("CCiCap") program to test and develop the capability of com- mercial transportation of crew members to the International Space Station ("ISS").10 A crewed test flight is scheduled to occur in 2015.11

Additionally, some corporations have proposed other, more exotic manned launch systems. While not as close to completion, recent proposals for suborbital point-to-point transportation would allow flights from New York to Tokyo in as little as ninety minutes.12 For example, XCOR, another spacecraft manufacturer, has developed a two-seat suborbital spacecraft with which the company plans to launch tourist flights from multiple locations in the very near future.13 XCOR expects to use the spacecraft as a test bed to develop both a reusable orbital vehicle capable of transporting people to a space station soon14 and a vehicle that can make suborbital point-to-point flights by around 2030.15

As more and more corporations seek to enter the field of manned space flight, the attendant likelihood of an accident resulting in injury or death to passengers will almost certainly increase. If and when such an accident oc- curs, it is inevitable that aggrieved parties will seek remuneration from both the space flight entity that provided the transportation and the spacecraft's manufacturers. At that point, a court will have to grapple with applying some very old doctrines to a very new field-including deciding whether the space flight entity is a common carrier, interpreting state and federal statutes regulating the private manned space flight industry, and ascertaining what duty of care the space flight entity must satisfy. The end result could be massive liability for a still nascent industry.

Faced with these dangers, private space flight entities risk liability that could cause the industry to destruct before it finds steady footing. The liabil- ity risks are numerous and not limited to entities classified as common car- riers. Even private carriers will likely face litigation regarding passengers who are injured or killed. The risks include difficulty finding insurance, costs of tort litigation, and product liability for parts manufacturers and service providers.16

One way to provide relief to companies is for the government to enact limitations on liability. In fact, some state legislatures have already done so.17 Some may question the necessity (or wisdom) of providing immunity from common carrier liability to such a small and currently niche field. Examin- ing other dangerous and previously niche industries can increase these con- cerns. Courts applied common carrier liability to the railroad and aviation industries from the very beginning of their existence.18 Even with the added constraints of common carrier liability, however, both railroads and airlines flourished.

Nonetheless, the issues that manned space flight operators face remain a concern to many within the industry and beyond. Both wealthy investors and the federal government are pushing the development of commercial space flight. The federal government hopes that companies such as SpaceX will provide much of its low-earth-orbit transportation needs in the near future.19 Given the current economic climate, the federal and state govern- ments have a vested interest in promoting the industry's growth to create needed jobs and ensure that the United States remains a leading developer of advanced technology.20 Faced with a stagnant economy and increasing budget cuts, the federal government still believes the stakes are important enough to allow NASA to fund commercial programs through Space Act Agreements21 and to task a group within the Federal Aviation Administra- tion ("FAA") with regulating and promoting the industry.22

Given these high stakes, this Note argues that Congress should create a federal statutory regime to limit the space flight industry's exposure to tort liability and, in particular, to prevent a court from deeming space flight entities common carriers. Part I briefly surveys a variety of liability issues threatening the space flight industry's viability. It then focuses its inquiry on a particularly significant source of liability- the law governing common car- riers-and how a court may apply common carrier law to manned space flight operations. Part II examines the current liability regimes in place for rocket launches, how these regimes apply specifically to manned space flights, and how these regimes may affect the common carrier analysis. Part III considers the government's compelling interest in protecting the industry from tort liability and examines tort liability reform in analogous industries. Part III also suggests, in more detail than previous proposals by other com- mentators, that because of the increased risk of liability inherent in classifi- cation as a common carrier, the United States should establish a time- limited federal statutory regime waiving tort liability for ordinary negli- gence, regardless of whether the entity is actually a common carrier. Finally, Part III examines other possible tort reforms, such as an extension of the current federal third-party insurance and cross-waiver regime to space flight participants, but concludes that these alternatives are neither as efficient nor as effective as a federally mandated tort liability waiver.

1. Liability Issues and Common Carrier Status

   This Part examines common carrier liability and its application to manned space flight operators. Section I.A discusses some liability issues facing entities apart from common carrier status. Section I.B provides an overview of the development of common carrier law throughout the United States. Section I.C argues that, despite what other commentators have claimed in the past, courts may construe certain manned space flight entities as common carriers and subject them to higher levels of tort liability.

   1. Manned Space Flight Operators Face a Variety of Liability Issues

      Private operators looking to fly humans into space face a variety of tort liability issues.23 Based on past flights, passengers are at a high risk of suffer- ing injury or death in various ways. For example, in 1971, the entire three- man crew of Soyuz 11 was killed after a pressure seal of its spacecraft failed during reentry into the atmosphere after undocking from the Salyut I space station caused depressurization.24 Additionally, in 1997, an unmanned Rus- sian Progress resupply spacecraft collided with the Mir space station, causing one module to depressurize and the space station to spiral out of control and almost deorbit.25 Because the aggregated potential for tort liability threatens the viability of the space flight industry, it militates in favor of a new liability regime.26

      In general, tort costs present a risk to the small but growing industry that is still largely supported by wealthy individuals such as Sir Richard Branson at Virgin Galactic,27 Elon Musk at SpaceX,28 and Robert Bigelow at Bigelow Aerospace.29 Introducing potentially large and devastating tort costs while the industry is trying to find its footing could scare off individuals who would otherwise be willing to place personal fortunes at risk to develop manned vehicles-especially given that tort costs grew three times as fast as the U.S. gross domestic product ("GDP") between 1950 and 2003.30 Moreo- ver, compared to the development of previous cutting-edge...