Commercial Spaceflight: The “Ticket to Ride” By Pamela L. Meredith and Marshall M. Lammers ommercial human space- Operator, where possible, will want a separate contract flight is soon upon us, with the SFP, including a release, to ensure compliance Cperhaps only a few years with the CSLA and applicable state law and to shield away. Virgin Galactic, XCOR itself from liability. Unless otherwise specified, this Aerospace, and Rocketplane article refers to the spaceflight purchase contract Global are already taking reserva- (whether the SFP or the Sponsor is the buyer) and/or tions for human suborbital space- any additional contract with the SFP as the “Contract.” flight.1 Virgin Galactic reportedly The Contract likely will cover these, among other, has signed up over 500 passengers––so-called space- topics: the spaceflight services being provided, space- flight participants (SFPs)2—and could be ready for com- flight safety, SFP health and fitness requirements, price mercial flight as early as 2013.3 Blue Origin is yet and payment conditions, the SFP’s duties, and risk allo- another prospective spaceflight operator.4 cation and insurance provisions. This article will touch One can speculate on precisely what a spaceflight upon some of the legal issues raised by these provi- “ticket to ride” will look like, but this much may be sions, with a particular focus on CSLA compliance and safe to assume: contractual risk allocation. • It will comply with the Commercial Space Launch Act5 (CSLA), which mandates that the spaceflight Spaceflight Services operator (Operator): (1) inform the SFP about the The Contract with the SFP and/or Sponsor will safety aspects of the spaceflight and obtain his or describe the spaceflight services that the Operator her written “informed consent,” (2) execute liabili- agrees to provide. In addition to the spaceflight itself, ty waivers with qualifying customers, and (3) these may include SFP training, flight preparations, re- require the SFP to execute a liability waiver with acclimatization and debriefing, as well as any related the U.S. government. SFP spaceflight equipment and instructions on how to use it (collectively, “Spaceflight Services”). • It may contain a warning statement mandated by The description of the spaceflight itself may be brief state statutes that purport to immunize Operators and concise, perhaps providing the locations of embar- and their contractors and subcontractors involved kation and disembarkation, target altitude, flight stag- in the spaceflight from liability. es, and estimated duration of the flight. The Operator • It will attempt to shield the Operator and its ven- will be careful not to make representations about the dors and suppliers from liability beyond the pro- spaceflight experience, including, e.g., sensations dur- tections afforded by the CSLA and state statutes, ing weightlessness or the view of the Earth, that may e.g., through exculpatory provisions and insurance create legal obligations to meet reasonable expecta- requirements, in order to protect against claims by tions. the SFP and others claiming through an SFP. The date of the spaceflight may well be given as a pre- • It may require compliance with U.S. space tech- liminary or target date, or as a period of time during nology export controls6 if the SFP is not a U.S. cit- which the flight will occur,10 at least in the early stages of izen or permanent resident.7 human spaceflight because of the novelty of the technolo- • It will avoid governing law jurisdictions that pro- gy and logistics involved. The Contract would then have hibit negligence releases for recreational and a mechanism for narrowing down the launch date. sports establishments.8 The Contract may have a stipulated allowance for delay by the Operator, beyond the target date or peri- In some cases, the SFP may buy the spaceflight; od. Delay beyond that time, whether due to Operator’s alternatively, a third party, e.g., a corporation or gov- default or force majeure, may result in a refund at the ernment agency, may buy it for one or more SFPs SFP’s option. (Sponsor).9 If the Sponsor buys the spaceflight, the Spaceflight Safety Pamela L. Meredith is Chair of, and Marshall M. Lammers is a counsel 11 in, the Space Law Practice Group of Zuckert Scoutt & Rasenberger, The CSLA, as detailed in FAA regulations, requires L.L.P., Washington, D.C. the Operator to provide the SFP extensive information on Published in The Air & Space Lawyer, Volume 25, Number 1, 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. issues of spaceflight. For each SFP, the Operator must: example, SFPs with medical conditions that may be 1. Inform about the “risks of the launch and reentry, aggravated by spaceflight (e.g., high blood pressure or including the safety record of the launch or reen- neck problems) may be disqualified or required to exe- try vehicle type”;12 cute special releases. SFPs may be required to make rep- resentations with respect to their health and medical 2. Inform that the “Government has not certified” conditions and/or to undergo physical examination. the vehicle as safe to carry crew or SFPs;13 The health and fitness requirement for Walt Disney 3. Inform of “the safety record of all launch or reen- World Resort’s Epcot Center’s simulated space ride try vehicles,” U.S. government and private, that “Mission: Space” offers an interesting point of compari- 14 have carried humans on board; and son. It provides: “For safety, you should be in good 4. Describe the “safety record of its vehicle.”15 health and free from high blood pressure, heart, back The information must be presented in a “manner that or neck problems, motion sickness or other conditions can be readily understood by [an SFP] with no special- that could be aggravated by this adventure.”27 ized education or training” and must be in writing.16 What level of disability will disqualify an SFP for Information about the risks associated with the spaceflight? As for the Epcot space ride, wheelchair- spaceflight and the fact that the vehicle has not been bound patrons may ride but must transfer to a seat on certified17 must be provided to the SFP before payment board the ride vehicle.28 Service animals are not permitted. 29 is received and before concluding the Contract, appar- Will children be allowed to participate in spaceflight, ently whether the Sponsor or the SFP is the buyer.18 with or without a parent or guardian? Probably not. The (This could be an issue where a Sponsor has not yet FAA has determined that “a minor could not be ade- designated SFPs.) quately informed” of the risks involved in spaceflight for Before spaceflight, each SFP must be afforded the purposes of giving the required Informed Consent.30 opportunity to “ask questions orally to acquire a better “Given the risks involved, parental consent may not sub- understanding of the hazards and risks of the mission . .”19 stitute for the minor’s inability to be informed.”31 As for Each SFP must “provide consent in writing”—commonly the Epcot space ride, children can ride but must be referred to as “Informed Consent”—to participate in supervised “at all times”;32 expectant mothers “should the spaceflight.20 not ride.”33 The Operator will have to decide how best to incor- porate the safety information into the Contract with the Price and Payment Conditions SFP and/or Sponsor. For example, statements of The Contract with the spaceflight buyer, whether Informed Consent and the absence of vehicle certifica- with the SFP or Sponsor, will specify the price and tion may belong in the main body of the Contract; other payment conditions. Payment in full before preflight safety information may be appended or referenced. One operations (if not spaceflight training) will likely be a way or another, the Operator will be careful to avoid requirement. The Contract may provide for an initial any representations as to the safety of the spaceflight or payment at the time of contracting, with payment in vehicle that could create contractual obligations. full by a specified deadline or by installments at speci- The extensive safety information requirements and fied dates or intervals.34 the need for Informed Consent reflect the perceived risk Where the SFP or Sponsor has paid a reservation associated with this novel technology21 and are also a fee, the fee will presumably count toward the price of corollary to the current absence of FAA regulations to the Spaceflight Services. As noted, some Operators are protect the SFP’s safety. Indeed, the FAA is prohibited currently taking reservations for a fee.35 from imposing such regulations until October 1, 2015,22 The Contract may spell out the conditions for a full to free the spaceflight industry of potentially stifling reg- or partial refund of the Contract price, or of the pay- ulations.23 The moratorium will be lifted earlier only in ments made toward that price. Such conditions may the event of a “serious or fatal injury” or in the case one include spaceflight delay, e.g., due to vehicle anomaly or more unplanned events during a flight posed a risk of or spaceflight accident requiring investigation, bank- “causing a serious or fatal injury.”24 ruptcy, or other default of the Operator. A separate question is whether sudden illness on the part of the SFP Health and Fitness SFP would qualify for a refund—perhaps for a cancel- The FAA has authority under the CSLA to issue rules lation premium.