For an introduction to the field of space law, click here.

Despite the fact that the hazardous endeavor of human spaceflight has been around for 51 years—ever since the Soviets launched Yuri Gagarin into orbit aboard Vostok I—there has not been much need to ponder the liability regime surrounding injury- or death-producing accidents in space. This is because so far, apart from rare exceptions such as Dennis Tito and Anousheh Ansari, who ventured to the International Space Station as “space tourists” aboard Russian rockets, astronauts have ventured into space as employees of NASA or foreign government agencies. This has meant that the entity responsible for operating the failed mission cannot face litigation because that entity is the astronaut’s government employer, and the entities that have furnished hardware for the mission are immune from suit under the so-called government contractor’s defense.

But very soon, several companies, including Virgin Galactic, XCOR and SpaceX will be taking fare-paying passengers into space. When they do, they will be surrounded by a liability atmosphere that has some familiar foundations, but nevertheless takes on very new flair. The basic composition will be a rubric of traditional state common law, spaceflight-specific federal regulations and spaceflight-specific state statutes.

Traditional state common law

Despite the federal character that we tend to impute to space activity, once stripped of its military, NASA and international overtones it is revealed to be subject to state law just like pretty much any other potentially injurious activity. All present indications are that traditional state law notions of duty, reasonable care, breach, product defect and damages, as well as familiar tort doctrines of informed consent, assumption of the risk, enforceability of releases and choice of law will dominate the liability landscape following most spaceflight accidents, just as with aviation accidents.

Spaceflight-specific federal regulations

In anticipation of the arrival of this new industry, in 2004 Congress authorized, and the Federal Aviation Administration (FAA) subsequently issued, a new set of regulations, the Human Space Flight Requirements for Crew and Space Flight Participants(the Human Spaceflight FARs). Although these regulations are, by design, extremely sparse and permissive compared to the FAA’s aviation-related regulations, and make no attempt to lay any sort of liability framework, they do require that each passenger (or “space flight participant” to use the regulatory terminology) give her informed consent after receiving a detailed and highly technical disclosure of and warning about the dangers the flight poses. Given the thoroughness of the required briefing, the passenger’s informed consent might well give rise to an effective assumption of the risk defense in many states. (The regulations also require the spaceflight operator to certify to the FAA that suitable measures are in place to prevent injury or property damage to the uninvolved public, and to procure sufficient insurance to protect the federal government against claims in the event such injury or damage occurs.)

Spaceflight-specific state statutes

In 2007 the State of Virginia passed legislation specifically geared toward protecting commercial human spaceflight companies from liability toward passengers in the wake of accidents. The statute basically says that as long as the passenger has been provided with all of the warnings and has given the informed consent required by the Human Spaceflight FARs, neither the passenger nor his heirs can pursue death or injury claims against the involved companies. Texas followed in 2011 with similar legislation. (Florida, New Mexico, Colorado and California have also passed laws relating to the liability of spaceflight companies, but due to their various exceptions and exclusions it is unclear whether they will provide the same level of protection as the Virginia and Texas statutes). The express rationale for these statutes is economics, but there is also a practical justification: Until the industry matures, there will be no established standards of reasonable care or consumer expectations upon which jurors can rely in making determinations of negligence or product defect.

As human spaceflight makes the transition from government to the private sector, space travelers or their heirs will have recourse in the courts for injury or death caused by accidents. When that occurs, courts will be applying traditional state tort law to a new set of operations and technologies, and taking a new federal regulatory scheme into account. If the host court’s choice of law doctrine calls for it, a state immunity statute such as that of Virginia or Texas might be applied as well. The body of law that will dictate the path and outcome of a given lawsuit arising from a commercial spaceflight accident is therefore somewhat uncertain, and will likely remain a moving target as the law evolves along with the industry and, possibly, becomes subject to further state regulation or even liability-related federal regulation or international treaties. Fortunately, our legal system has risen to challenges like this before, from the aviation industry to the Internet, and will no doubt do so again, lending the litigation consistency and predictability that this new industry needs to reach its full potential.