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Of Space Law JOURNAL OF SPACE LAW VOLUME 19, NUMBER 1 1991 JOURNAL OF SPACE LAW A journal devoted to the legal problems arising out of human activities in outer space VOLUME 19 1991 NUMBER 1 EDITORIAL BOARD AND ADVISORS BERGER, HAROLD GALLOWAY, ElLENE Philadelphia, Pennsylvania Washington, D.C. BOCKSTIEGEL, KARL-HEINZ GOEDHUIS, D. Cologne, Germany London, England, BOURELY, MICHEL G. HE, QIZHI Paris, France Beijing, China COCCA, ALDO ARMANDO JASENTULlYANA, NANDASlRI Buenes Aires, Argentina New York, N.Y. DEMBLING, PAUL G. KOPAL, VLADIMIR Washington, D. C. Prague, Czechoslovakia DlEDERIKS-VERSCHOOR, LH. PH. MCDOUGAl., MYRES S. Baarn, Holland New Haven, Comiecticut FASAN, ERNST VERESHCHETlN, V.S. Neunkirchen, Austria Moscow, U.S.S.R. FINCH, EDWARD R., JR. ZANOTTI, ISIDORO New York, N.Y. Washington, D.C. STEPHEN GOROVE, Chairman University, Mississippi All correspondance should be directed to the JOURNAL OF SPACE LAW, University of Mississippi Law Center, University. Mississippi 38677. JOURNAL OF SPACE LAW. The subscription rate for 1991 is $65 (domestic) and $70 (foreign) for two issues. Single issues may be ordered at $36 per issue (postage and handling included). Copyright @ JOURNAL OF SPACE LAW 1991 Suggested abbreviation: J. SPACE L. JOURNAL OF SPACE LAW A journal devoted to the legal problems arising out of human activities in outer space VOLUME 19 1991 NUMBER 1 STUDENT EDITORIAL ASSISTANTS Rbonda G. Davis, ed. Derwin B. Govan, index & brief news ed. Pamela G. Guren Kenneth C. Johnston Alton J. Le Febvre A. Kelly Sessoms Candidates Clark C. Adams Thomas C. Levidiotis FACULTY ADVISER STEPHEN GOROVE All correspondance with reference to this publication should be directed to the JOURNAL OF SPACE LAW, University of Mississippi Law Center, University, Mississippi 38677. JOURNAL OF SPACE LAW. The subscription rate for 1991 is $65 (domestic) and $70 (foreign) for two issues. Single issues may be ordered at $36 per issue (postage and handling included). Copyright @ JOURNAL OF SPACE LAW 1991 Suggested abbreviation: J. SPACE L. JOURNAL OF SPACE LAW A journal devoted to the legal problems arising out of human activities in outer space VOLUME 19 1991 NUMBER 1 CONTENTS ARTICLES The 1986 Challenger Disaster: Legal Ramifications (Paul G. Dembling and Richard C. Walters) ........................... 1 The Commercial Development of Space: The Need for New Treaties (Bin Cheng) .................................................... 17 SPECIAL FEATURES Events of Interest.. ................................................................... .45 A. Past Events ........................................................................ .45 Reports Space Stations: Problems of Jurisdiction and Conflicts of Law (Stephen Gorove) ............................ :................................... .45 The Twenty-Eighth Session of the Scientific and Technical Sub-Committee of the United Nations Committee on the Peaceful Uses of Outer Space, 26 February to 9 March 1991 (Ralph Chipman) ...................................... .53 The Legal Sub-Committee of COPUOS Convenes its Thirtieth Session with Hope of Progress in· the Codification of Space Law (Yvonne Lodico) ............................................ .57 The Spaceplane and the Law (Tanja L. Masson-Zwaan) ......................60 Comments Emerging Law of Outer Space - The Analogy of Maritime Salvage (Harry H. Almond, Jr.) ....................................................... 67 Case Law Transpace Carriers, Inc. v. United States ........................................ 77 Short Accounts Satellite Communications and the European Community (Katherine M. Gorove) ........................................... 77 The Moon and Mars Missions: Can International Law Meet the Challenge? (Katherine M. Gorove) ........................79 AIAA Technical Committee on Legal Aspects of Aeronautics and Astronautics TC Annual Meeting, May 2, 1990 (William D. Eng /ish) ......................................................... 81 Other Events ................................................................................... 83 B riel News ...................................................................................... 8 3 B. Forthcoming Events ............................................................ 86 Book Reviews/Notices Rarr, Michael & Kohli Rajiv, Commercial Utilization of Space, An International Comparison of Framework Conditions .... 87 Johnson-Freese, Joan, Changing Patterns of International Cooperation in Space .......................................................... 8 7 Sietzen, Frank Jr., World Guide to Commercial Launch Vehicles .... 88 NAS A Thesaurus ............................................................................ 88 Recent Publications . Books ............................................................................................... 89 Contributions to Books .................................................................... 8 9 Articles ...........................................................................................90 Reports ............................................................................................91 Notes/Comments ..............................................................................92 Short Accounts ................................................................................ 92 Book ReviewsIN otices ...................................................................... 92 Official Publications ....................................................................... 93 Cases ...................................... ;......................................................... 96 Miscellaneous ..................................................................................96 Current Documents I. Senate Joint Resolution on the 1992 International Space Year ... l00 II. President Bush's Policy Decision of March 8, 1990, on his Space Exploration Initiative of July 20, 1989 ................... 101 THE 1986 CHALLENGER DISASTER: LEGAL RAMIFICATIONS Paul G. Dembling* and Richard C. Walters" The 1986 Challenger (Shuttle) Disaster, quite aside from the horror and personal tragedy it created, raised distinct legal ramifications which are worthy of analysis and comment. The Disaster deserves special study and attention in terms of the role it has, or might have, played in the continuing evolution of two theories or doctrines which govern the extent to which tort liability is imposed on the federal Government and the private concerns which work under contract to serve the Government's needs. The first is the so-called "F eres doctrine" and the second is the "Government contractor defense." As in most cases, a clear understanding of the operative facts is crucial to an appreciation of their legal import. Background On January 28, 1986,1 an explosion destroyed the Space Shuttle Challenger on its Flight 51-L seventy-three seconds after the liftoff from the Kennedy Space Center, Florida. Seven astronauts were killed. Among these were two military personnel, three employees of the National Aeronautics and Space Administration ("NASA"), and two non-Government . civilians, one of whom was Christa McAuliffe, who was to be the "first teacher in space." A report issued on June 6, 1986 by an independent commission appointed by President Reagan to investigate the accident (commonly known as the "Rogers Commission") concluded that the cause of the accident was a failure in the seal of the joint (the so-called "O-Ring") situated between two segments of the right Solid Rocket Motor ("SRM"). According to the report, hot gases escaped through a leak in the joint's seal and caused the explosion which had destroyed the Challenger. The joint failure, the Commission found, was due to a "faulty design U1lacceptably sensitive to a number of factors [including] temperature, physical '" Partner. Schnader. Harrison, Segal and Lewis, Washington. D.C.; former General Counsel of NASA and the General Accounting Office; member, Editorial Board. JOURNAL OF SPACE LAW. .. Senior Attorney, Schnader, Harrison, Segal and Lewis. Washington, D.C . 1 Ironically, the Apollo fire which caused the death of three astronauts (Grissom, Chaffee, and White) occurred on January 27, 1967. 1 2 JOURNAL OF SPACE LAW Vol. 19, No.1. dimensions, the character of materials, the effects of reusability, processing, and the reaction of the joint to dynamic loading.:'2 "The Commission also determined that a contributing cause of the accident was NASA's decision to proceed with the launch notwithstanding unusually cold temperatures, which affected the joint's ability to seal itself, and despite warnings from engineers at Morton Thiokol, Inc. ("MTI"), the company which had designed and furnished the SRM in question. In its 1988 opinion, the United States District Court for· the Northern District of Utah stated, in the lawsuit instituted by one of the. MTI engineers who warned the company, as fOllows: [The Commission concluded] that the process by which that [NASA] decision was reached within NASA's complex decision-making hierarchy was itself flawed. It found that engineers at MTI, including Roger Boisjoly, were concerned with the performance of the seals in SRM joints at the predicted temperatures. Prior flights launched at significantly warmer temperatures had experienced incomplete seals and minor gas escapes. The engineers made their concerns known to MTI management and to those NASA officials directly involved with the SRM aspect of the Shuttle Program. MTI management initially recommended to NASA officials that the launch
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