In the only analysis of its kind, Dr. Maria-Vittoria “Giugi” Carminati asks the question: if a commercial space operator kills or injures one of its spaceflight participants or a crewmember, what is the extent of the operator’s liability? In the United States, that question has no clear answer. Dr. Carminati explores the way the United States manages liability, at state and federal level, and from state to state.
Tort law in the United States exists at the state level. However, commercial spaceflight and its regulation are creatures of federal law. Understanding how these two systems interact and, often, conflict is critical to understanding how commercial spaceflight operators can manage exposure.
Maria-Vittoria “Giugi” Carminati, JD, LLM, JSD, is an attorney, an entrepreneur, and an activist. She has published numerous articles on space law as well as co-authored The Laws of Spaceflight: A Guidebook for New Space Lawyers (ABA, 2012).
Acknowledgments List of Abbreviations
Introduction 1 US Law Trinity: Common Law, Statutory Law, and Contractual Law
2 Utility of the Inquiry
3Structure of the Work
1 The Risks of Commercial Human Spaceflight 1 Market Size and Loss Exposure
2 The Risks of Spaceflight to SFPs and Crewmembers.9
2 A Review of Liability Exposure and Ways to Manage It 1 The Existence of Liability (Otherwise Known as the Existence of Legally Attributed Accountability)
2 Parties: Who are the Plaintiffs? Who are the Defendants?
3 Defenses: Affirmative and Otherwise
4 Assumption of the Risk, Whatever That Means
3 Federal Legislation and Commercial Space 1 Commercial Space Licensing
2 Maximum Probable Loss
3 Federal Informed Consent
4 Federal Jurisdiction
5 Federal Cross-Waivers
6 What Does “Gross Negligence” Mean?
4 Federal Jurisprudence and Commercial Space 1 Understanding the Boundaries of Federal Jurisdiction
2 The Federal Jurisdictional Gap
3 Federal Preemption of State Statutes
4 The Nature of Federal Jurisdiction
5 Federal Contractual Choice-of-Law
5 Federal Choice-of-Law for Disputes Outside Federal Jurisdiction 1 Federal Supremacy v. State Sovereignty
2 Federal Law of Torts
3 Federal Choice-of-law Analyses: State v. Federal, State v. State
4 Interpretation of Federal Waivers under Federal Law
6 Exculpatory Agreements in Space Friendly States 1 The Complicated World of “Express” Assumption of the Risk
2 Waiver-Enforcement for Claims Brought by Heirs: General Overview
3 Avoiding Claims by Heirs via Statute: Following the Letter of the Law
4 Waiver-Enforcement between the Injured Party and the Operator Directly: a State-by-State Analysis
7 Express Assumption of Risk in Non-Space-Friendly States 1 Alaska
14 New Jersey
15 New York
16 North Dakota
20 South Carolina
8 Statutes Limiting Liability for Space Activities 1 Spaceflight Entity
2 Participants or SFPs
3 Spaceflight Activities
4 The Degree of Culpability Immunized
5 Statutory Requirements of the Space Activities Statutes
9 Statutes Limiting Liability in Space Friendly States 1 Arizona
5 New Mexico
10 Implied Assumption of Risk in Space Friendly States 1 Defenses in Tort: Contributory Negligence, Assumption of the Risk and Comparative Negligence
2 Assumption of the Risk’s Vexed Jurisprudence
3 State Law’s Continued Relevance
11 Medical Malpractice Suits against a Commercial Space Physician and the
Operator by Co-employees and/or SFPS 1 Sources of Liability for CHSF Operators Employing
2 The Sources of Duty between the
Physicians: a Question of Scope
3 Physicians and
Operators: Why have a Physician at All?
4 Crew and
—Different Roles, Different Statuses
6 The Physician as an “Agent” of the Commercial Spaceflight Operator
7 Crewmembers and the
Physicians: Co-employee Immunity
Conclusion 1 The Phases of Spaceflight
2 Navigating the Fragmented Landscape of US Jurisprudence
3 The Federal Framework: From Federal Legislation to Federal Common Law
4 Express Assumption of the Risk: Drafting is Key!
5 Space Activities Statutes: What is Left after the Dust Settles?
6 Muddling Through the Defense of Implied Assumption of the Risk
7 What’s Up Doc? Aerospace Medicine Physicians within the Spaceflight Framework
8 Closing Remarks
Bibliography Appendix Index
All lawyers, business leaders, physicians and legislators seeking to work in or advance the field of commercial spaceflight, both in the United States and worldwide.