Assessing the Risks : Tort Liability and Risk Management in the Event of a Commercial Human Space Flight Vehicle Accident

In the early 21st century, the private commercial space transportation industry demonstrated that commercial human space transportation is both technologically and economically feasible. In 2004, the United States Congress responded by passing legislation authorizing the Department of Transportation to license commercial human space flight. Today, the U.S. commercial human space flight (CHSF) industry is developing launch vehicles that will carry paying participants on suborbital flights. Licenses have been granted by the DOT to test this experimental vehicle technology and in it anticipated that CHSF vehicles carrying space flight participants will enter into operation in the near future. As CHSF vehicles begin operation, questions of tort liability and risk management will need to be addressed. To that end, this article examines U.S. tort liability law within the paradigm of a potential commercial human space flight (CHSF) vehicle accident. Given the extensive nature of tort law this section focuses on negligence, strict liability for third party damage, and products liability as it relates to CHSF operators, pilots/crew, space flight participants (SFP), and vehicle manufacturers. Analogies are drawn from aviation and adventure sports/tourism for assessment of potential causes of action, defendants, plaintiffs and applicable standards of care. The role of U.S. state law and recent state legislative initiatives regarding tort liability are examined and assessed. Whether strict liability for third party damage should be imposed on CHSF operators is evaluated. Reciprocal cross-waivers of liability and informed consent provisions established by federal law are discussed within the context of tort defense. CHSF operators, pilots/crew, SFP, and vehicle manufacturers are advised to protect against economic loss attributable to likely tort liability resulting from a CHSF vehicle accident. Finally, proposals for legal reform in the area of CHSF tort liability are given.The potential CHSF vehicle accident discussed in this article is presumed to have occurred within the United States on a flight that departs and arrives from points within the United States. The reason for this presumption is to limit the scope of accident analysis to U.S domestic tort law. The role of international law in the event of an international accident is given credence and addressed, although briefly