Houston, we have a (liability) problem.

• Author: Silver, Justin
• Position: Private manned space flight liability

The development of private manned space flight is proceeding rapidly; there are proposals to launch paying passengers before the end of 2014. Given the historically dangerous nature of space travel, an accident will probably occur at some point, resulting in passengers' injury or death. In the event of a lawsuit stemming from such an accident, a court will likely find that a space flight entity operating suborbital flights is a common carrier, while an entity operating orbital flights is not. Regardless of whether these entities are common carriers, they face a threat of high levels of liability, as well as risks stemming from an inability to obtain insurance and the escalation of tort litigation costs. Given that the private manned space flight industry is brand new and can provide many benefits to the United States and the world, it is important to protect the industry while it grows. Individual states have attempted to protect the industry by passing liability immunity statutes, but passing statutes on a state-by-state basis is insufficient to protect the industry from the liability it faces. As a result, this Note proposes a national tort liability immunity statute to shield the industry until it reaches a more advanced stage of development.

TABLE OF CONTENTS INTRODUCTION I. LIABILITY ISSUES AND COMMON CARRIER STATUS A. Manned Space Flight Operators Face a Variety of Liability Issues B. The Law Governing Common Carriers C. Courts Will Construe Certain Manned Space Flight Entities as Common Carriers II. THE CURRENT LIABILITY REGIME A. Current Federal Space Flight Tort Liability Regime B. Current State-Level Space Flight Tort Liability Regimes C. Despite These Regulations, Space Flight Entities Would Be Subject to Common Carrier Liability III. LIABILITY REFORM A. Federal Governmental Interest in Preventing Industry Collapse B. Previously Instituted Methods of Tort Liability Protection Would Not Be as Effective in the Manned Space Flight Context C. Federal Legislation Is the Most Efficient Solution to Limit Tort Liability CONCLUSION 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 necessary 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 Galactic will use to transport passengers into space. (5) Virgin Galactic aims to build a reusable spacecraft that will carry two crew members and six passengers 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 developed 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 commercial transportation of crew members to the International Space Station ("ISS"). (10) 11 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 soon (14) 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 occurs, 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 liability risks are numerous and not limited to entities classified as common carriers. 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. Examining other dangerous and previously niche industries can increase these concerns. 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 governments 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 Agreements (21) and to task a group within the Federal Aviation Administration ("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 carriers--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 commentators, that because of the increased risk of liability inherent in classification as a common carrier, the United States should establish a time-limited federal statutory regime waiving tort liability for ordinary negligence, 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...