Houston, We Have a (Liability) Problem

The development of private manned space flight is proceeding rapidly; there are proposals to launch paying passengers before the end of 2014. Given the historically dangerous nature of space travel, an accident will probably occur at some point, resulting in passengers' injury or death. In the event of a law-suit stemming from such an accident, a court will likely find that a space flight entity operating suborbital flights is a common carrier, while an entity operating orbital flights is not. Regardless of whether these entities are common carriers, they face a threat of high levels of liability, as well as risks stemming from an inability to obtain insurance and the escalation of tort litigation costs. Given that the private manned space flight industry is brand new and can provide many benefits to the United States and the world, it is important to protect the industry while it grows. Individual states have attempted to protect the industry by passing liability immunity statutes, but passing statutes on a state-by-state basis is insufficient to protect the industry from the liability it faces. As a result, this Note proposes a national tort liability immunity statute to shield the industry until it reaches a more advanced stage of development.IntroductionManned space flight is an incredibly complex and dangerous endeavor. Of the 536 individuals who have travelled into space,1 18, or 3.4 percent, have died during a mission.2 Until recently, however, all manned space flights were the province of national governments. As a result, the issue of tort liability for injury or death of crew members arose infrequently and, in the United States, only within the bounds of the Federal Tort Claims Act.3 Within the past decade or so, there has been an ever-increasing push for commercial manned space flight to support and, in some instances, supplant governmental space flight.The current proposals for commercial, human space transportation can roughly be broken down into two categories: suborbital and orbital. Suborbital space flights travel with enough speed to pass through the boundary between earth's atmosphere and space but do not achieve a high enough velocity to enter orbit around the earth. Orbital space flights, on the other hand, achieve a high enough velocity to enter orbit. The extra speed neces- sary to enter orbit is very difficult and costly to achieve.Virgin Galactic is at the forefront of commercializing suborbital manned space flight.4 Scaled Composites and Virgin Galactic have formed a joint venture, the Spaceship Company, to construct the spacecraft that Virgin Ga- lactic will use to transport passengers into space.5 Virgin Galactic aims to build a reusable spacecraft that will carry two crew members and six passen- gers into space on a suborbital flight.6 Virgin Galactic CEO Sir Richard Branson is so confident in the safety and success of the craft that he has reserved tickets on the first flight of SpaceShipTwo for himself and his two children.7SpaceX, one of the leading developers of orbital spacecraft,8 has devel- oped a fully recoverable capsule capable of autonomous operation that can be configured to transport cargo and passengers into space.9 The National Aeronautics and Space Administration ("NASA") picked SpaceX as one of three teams to receive funding through NASA's Commercial Crew Integrated Capability ("CCiCap") program to test and develop the capability of com- mercial transportation of crew members to the International Space Station ("ISS").10 A crewed test flight is scheduled to occur in 2015.11Additionally, some corporations have proposed other, more exotic manned launch systems. While not as close to completion, recent proposals for suborbital point-to-point transportation would allow flights from New York to Tokyo in as little as ninety minutes.12 For example, XCOR, another spacecraft manufacturer, has developed a two-seat suborbital spacecraft with which the company plans to launch tourist flights from multiple locations in the very near future. …