Space tourism: the final frontier of law.

Author:Malfitano, David

    Ever since that fateful autumn day in 1957 when the Soviet Union surprised the world by launching Sputnik I, humankind has been fascinated with what lies above. (1) In little over a decade, that fascination was further ignited when man first walked on the surface of the moon. (2) By the summer of 1969, it seemed only a matter of time before anyone and everyone would be able to reach the heavens. Unfortunately, it would be over forty years before the opportunity to reach the stars would once again be within the reach of the common individual. (3)

    It took another fateful autumn day, some forty-seven years later, for the dream of so many to gain national exposure once again. (4) On October 4, 2004, Butt Rutan and his financier Paul Allen, were awarded the $10 million Ansari X PRIZE for successfully designing and testing a spacecraft capable of carrying three people more than 50 miles above the planet's surface twice in two weeks. (5) Mr. Rutan's success captured the nation's imagination, but at the same time, gave rise to a host of legal questions.

    Many of the major legal problems associated with the burgeoning space industry have been addressed, such as the appropriate jurisdiction for legal matters and what conduct is permitted in space. (6) However, many specific questions remain unanswered, such as how private space faring companies will be regulated, and who will be liable for any problems or accidents (i.e. the state, or the commercial space company). Additionally, the extent of personal liability for those operating spacecrafts remains in question. Are the operators to assume the risk of an obvious and inherently dangerous undertaking? Furthermore, once liability is established against either the customer or the company, how should we apportion it? These are some questions that have been posed by the birth of the private space industry and these are some of the major questions that will be addressed in this note.

    This note will take the position that over regulation would be potentially disastrous for the new industry. Caution should be used when lawyers around the world begin to create the framework that will govern this nascent industry. Furthermore, this note will outline the current model proposed in the United States, namely incorporating spacecrafts into the Federal Aviation Administration (FAA), and why this may or may not be the best route. Finally, it will discuss the liability regimes that should be in place for both the customers and employees of the future space flights.


    On October 4, 2004, the X PRIZE Foundation awarded $10 million to Scaled Composites and the Mojave Aerospace Ventures for the construction and successful flight of SpaceShipOne. (7) SpaceShipOne succeeded in not only capturing the money, but also in reinvigorating interest in the commercial space industry.

    The importance of this recent competition is obvious; without it, there would be no discussion of the private space industry, primarily because it did not exist until October of 2004. (8) SpaceShipOne was so successful in achieving its goals, that the United States Congress quickly moved to pass legislation immediately after its successful launch, (9) which laid the preliminary foundation for regulating commercial space activities by private companies. (10)

    While the X PRIZE contest has been invaluable in jump-starting the private space industry, it has also brought a plethora of potential legal dilemmas. While SpaceShipOne was the first successful flight of a privately built and operated spaceship, it is not the first time vehicles have traveled into space. An important distinction to note is that all prior spacecrafts were government controlled, and the laws which governed space up until recently have clearly reflected this.


    The first major attempt to govern space and the manner in which the world interacts with it came about in the form of the Outer Space Treaty. (11) The treaty was signed by many countries in 1967 and still serves as the basic legal framework for governing outer space among the nations of the world. (12)

    A majority of the treaty deals with issues on an international scale, such as limiting the use of nuclear weapons and military forces in space by all signatories to the treaty. (13) However, one of its primary purposes was to limit the legal jurisdiction any signatory to the treaty can exert over the skies above. (14) The treaty views space in the same light that the oceans of the world are viewed today; they can be used by all but governed by none. (15)

    Numerous other international agreements and agencies dealing with activities in space have been created throughout the past few decades, such as the agreement which governs the International Space Station and the United Nations Committee on the Peaceful Uses of Outer Space. (16) While there have been a handful of agreements which provide basic legal frameworks, very few agreements provide the technical and specific details which are essential for providing a comprehensive system necessary to regulate space activity.

    The main reason for this deficiency is likely due to the fact that until recently, the prospect of large numbers of individuals entering space seemed remote. Even more remote was the prospect of private companies engaging in space travel, in a domain historically reserved for governments with far larger budgets. (17)

    Two international efforts have taken a comprehensive approach to the problem concerning liability for entrees m space, though even these efforts are still insufficient in many respects. The Convention on international Liability for Damage Caused by Space Objects ("Liability Convention"), covers many aspects of liability that are not addressed by the Outer Space Treaty. (18) The Convention primarily imposes complete liability onto the nation from which the spacecraft originates, should any problems arise from either the craft itself or associated activities. (19) Despite the improved legal regulations that came about as a result of the Liability Convention, it only applies to state actors, not individuals or private entities. (20)

    The other major piece of legislation, domestic in origin, is the Commercial Space Launch Activities Act ("Commercial Act") passed by Congress in 1984. (21) The Act established a preliminary legal framework to regulate private entities entering space by requiring licenses, insurance, registration, and hindering the ability of companies to circumvent these requirements by launching from foreign territories. (22)

    In December of 2004, Congress amended the act to provide a more comprehensive legal framework for the regulation of private entities that wish to engage in space travel. (23) One of the primary changes in direction this act took was to place the regulation of space flight under the auspices of the FAA. (24) Despite this new piece of legislation, many questions remain unanswered and further, it remains to be seen if applying FAA regulations to the space industry is the correct course to take. (25)

    While the Commercial Act is a good start, it is far from comprehensive; the Act is fairly basic and surprisingly simple for federal regulations, seeking only to lay the preliminary framework for a more complex system of space regulation in the future. The act does, however, attempt to regulate some particular aspect of space flight with more complexity, such as demanding that all who attempt to launch any structure or vehicle into space must obtain a license from the United States Government. (26)

    The only other element of space travel that is afforded any meaningful discussion concerns the necessity of liability insurance. (27) The Commercial Act mandates that insurance must be obtained by any entity wishing to launch space vehicles and that it must be for at least $500,000,000. (28) The federal government will cover anything beyond that amount, but not exceeding $1.5 billion. (29)

    Even a cursory glance of the Commercial Act demonstrates that the federal government has only begun to seriously look at controlling space activities. The Act is sparse and lacking provisions on numerous issues from safety standards to liability in the event of a major catastrophe.

    1. Federal Aviation Law

    In order to better understand whether the law that governs airplanes would be a proper fit for the space industry, an analysis of current airline law is necessary. The FAA, under the Department of Transportation, (30) regulates and governs the law surrounding airplanes and all things that fly, deriving its authority from the Federal Aviation Regulations ("FAR"). (31) The FAR controls every aspect of flying a plane, from air traffic control, to aircraft maintenance to the acquisition of licenses for pilots. (32)

    As can be expected from such a large and complex industry, there have been thousands of adjudications that concern liability with respect to both the government and the companies involved with the ferrying of people through the skies. Despite the large plethora of case law, several cases in particular are helpful for an analysis of how these laws may play out if applied to the space industry.

    A good place to start is first to determine who is liable in the event of a crash. Under the Liability Convention, the country of origin is responsible if the spacecraft crashes in another country. (33) But what if it crashes in the country of origin? What if the government tries to shift some or all of the cost onto the private company? In the case of Cappello v. Duncan Aircraft Sales of Florida, Inc., (34) the court dealt with a plane crashing in a mountain range within minutes of takeoff. (35) At the trial level, the court found that the pilot and the air traffic controllers were comparatively negligent. (36) The Court of Appeals found that the pilot assumed the risk by failing to receive the proper training and that the...

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