Commercial Space Flight Liability: Are Waivers Enough?

1
Commercial Space Flight Liability Are Waivers
Enough?
Reuben Canada
10/2006
2
Acknowledgements

• Patti Smith
• Herb Bachner
• Ken Gidlow
• Laura Montgomery
• Michael Aherne
• AST Staff
• Tracy Knutson
• International Space Brokers

3
Overview

• Why waivers are needed for space flight?
• How can a written waiver be made effectively?
• How does location factor into waiver
  effectiveness?
• Recommendations

4
 70112 (b) reciprocal wavier coverage

• Government lt-gtLicensee lt-gtCustomers
• Cross waiver required
• Government lt-gt Space flight Participant
• Cross waiver required
• Licensee X Space flight Participant
• Cross waiver not required

5
Human Space Flight Requirements for Crew and
Space Flight Participants

• The CLSAA requires crew and each space flight
  participant to execute a reciprocal waiver of
  claims with the FAAThe CLSAA does not require
  crew and space flight participants to waive
  claims against each other or against a licensee
  or permittee.
• Waiver of liability between permittees/Licensees
  and Space flight participants is not required by
  federal law

6

•  70117. Relationship to other executive
  agencies, laws, and international obligations
• (c) States and Political Subdivisions. A State
  or political subdivision of a State (1) may not
  adopt or have in effect a law, regulation,
  standard, or order inconsistent with this
  chapter but
• (2) may adopt or have in effect a law,
  regulation, standard, or order consistent with
  this chapter that is in addition to or more
  stringent than a requirement of, or regulation
  prescribed under, this chapter.

7
Assumption of Risk

• Def Voluntary exposure of person or personal
  property to a known and appreciated danger due to
  the negligence of another.
• 65 C.J.S. Negligence 360 (2006).
• Protects permittee/Licensee from most acts of
  negligence.
• Allan v Snow Summit, Inc. (1996, 4th Dist) 51 Cal
  App 4th 1358, 59 Cal Rptr 2d 813, 97 CDOS 13, 97
  Daily Journal DAR 9.

8
Waiver Construction

• Must clearly state the intent to release
• Moore v. Hartley Motors, Inc., 36 P.3d 628
  (Alaska 2001).
• Clearly set out for which liability is to be
  avoided
• Seigneur v. National Fitness Institute, Inc., 132
  Md. App. 271, 752 A.2d 631 (2000)
• Speak clearly and directly to the particular
  conduct of the defendant which caused the harm
  at issue
• Empire Lumber Co. v. Thermal-Dynamic Towers,
  Inc., 132 Idaho 295, 971 P.2d 1119 (1998)
• Express the protection from liability in clear
  and unequivocal terms
• Bishop v. GenTec Inc., 2002 UT 36, 48 P.3d 218
  (Utah 2002).

9
Minors

• Parents generally cannot waive the rights of
  children
• Dixon v. U.S., 197 F. Supp. 798 (W.D. S.C. 1961).

10
Waiver Enforcement Factors

• Tunkl Factors
• Significance
• Used by a number of states currently involved in
  space travel
• Factors
• Whether activity
• Is generally subject to extensive public
  regulation
• Is it an important public service
• Is it an essential activity
• Was the injured party under the control of the
  service provider
• Was the activity open to the general public
• Is the release regarded as an Adhesion Contract
  (not bargained for)

11
State-by-State Examination

• States where action is most likely to take place

12
State-by-State Examination

• Florida
• Public policy not to interfere lightly in freedom
  to contract
• Waiver releases all sponsors or parties, even if
  not named
• Must include the word negligence
• Waivers will protect against gross negligence,
  but not intentional acts
• Minor status yet to be determined

13
State-by-State Examination

• Virginia
• Not enforceable?
• 1992 Virginia Supreme Court stated, to hold it
  was competent for one party to put the other
  parties to the contract at the mercy if its own
  misconduct can never be lawfully done where an
  enlightened system of jurisprudence prevails.
  Public policy forbids it, and contracts against
  public policy are void.
• Universal

14
State-by-State Examination

• New Mexico
• Factors
• Strict construction
• Exculpatory language should be conspicuous to the
  signer
• Tunkl factors

15
Recommendations

• Lobby state legislatures to enact bills
  recognizing waivers for negligence liability
• Follow waiver construction rules

16
Questions ?
17
State-by-State Examination

• California
• Use Tunkl Factors
• Cannot exempt fraud or willful injury
• Must distinguish between injuries due to
  negligence and inherent risks
• Should include the word negligence
• Parents may execute a release on behalf of
  children

18
State-by-State Examination

• Washington
• Public policy
• Public interest is involved
• Care greatly below standard (gross negligence,
  reckless conduct)
• Clause is inconspicuous
• Rely on Tunkl factors
• Parents cannot sign away childs rights

19
State-by-State Examination

• Texas
• Must meet requirements of fair notice
• Express negligence doctrine
• Conspicuousness requirement
• Negligence clause must be spelled out

20
State-by-State Examination

• Wisconsin
• Strict scrutiny
• Public policy element
• Must be clear, unambiguous
• When looked at in its entirety
• Gives great weight to bargaining process

21
State-by-State Examination

• Alaska
• Tunkl factors are used
• Must be clear, explicit, and comprehensible in
  each detail
• Must use the word negligence

22
State-by-State Examination

• Oklahoma
• Waivers are not against public policy
• Prohibits waivers seeking to avoid willful
  injury, fraud, or gross negligence

23
U.S. Spaceport States
24
(No Transcript)