Guillaume de Dinechin. Astronauts in Space: Liability and Insurance Coverage

Transcription

1 Guillaume de Dinechin Executive Vice President International Space Brokers Astronauts in Space: Liability and Insurance Coverage Among the various topics regarding the legal and ethical framework surrounding astronauts sojourns in space, there is a quite unexpected one, that is the issue of liabilities. Until recently, to send a man in space was the exclusive deed of states or governmental agencies. The legal environment ruling liability in space has essentially been crafted to suit this situation. With private ventures becoming interested in and even capable of sending tourists, the landscape of liabilities and insurance is perhaps about to change significantly. Liability in space, at international level, is ruled by two instruments: - The 1972 convention on liability, and - The intergovernmental agreement relating to the use of the international space station. The 1972 Liability Convention essentially establishes the following: It defines Launching State as any state which launches or procures the launching of a space object; or from whose territory or facility a space object is launched, It makes the Launching State liable to pay compensation for damage caused by its space objects, The liability is i) absolute for any damage on earth (i.e. regardless of any fault) and ii) tort for damages caused to third parties in space (i.e. the Launching State is liable only if the damage is due to its fault or the fault of persons for whom it is responsible). In respect of the astronauts themselves, the Liability Convention applies and is complemented by the International Space Station Intergovernmental Agreement (more briefly called the ISS IGA) which establishes the principle of cross waiver of liability. By this Agreement all Partner States and their Related Entities (being another participant in the same mission at whatever level, be it an astronaut on board or a Company having vested

2 interest in the mission e.g. hardware, experiments ) agree to a Cross Waiver of Liability pursuant to which each Partner State waives all claims based on damage arising out of Protected Space Operations as the term is defined in said IGA against any of the entities or persons. As a result, the liability of one participant in a space mission towards other parties depends on whether the other party is a Related Entity or merely a Third Party. Among Related Entities, the cross waiver of liability entails that no indemnification is claimable for any damage suffered arising out of acts, or omissions of another Related Entity. Acknowledging that space operations are risky, all participants to a space mission accept a every man for himself principle. In respect of damage to Third Parties, Third Parties not involved in the space mission can be of two kinds: - Parties involved in a space mission other than to the International Space Station, towards which the liability borne by a participant in a space mission is a fault liability, i.e. the entity responsible for the damage is liable for compensation to the party suffering the damage. - Or just the man in the street, towards which the liability borne by a participant in a space mission is absolute. The current liability allocation arising out of the 1972 Liability Convention and the ISS IGA can be summarized as per the chart in figure 1. Figure 1 Related Entity Third Party In space: tort liability Cross waiver of Liability ISS IGA Mission Participant On earth: absolute liability Liability Convention As a practical result, participants in an ISS mission don t have to take insurance for damage they cause to others. They are free to take insurance as they like for their own damage, or to cover their own astronauts. In respect of liability towards third parties, the states concerned -essentially those states which have a launching capacity- usually require that a launching authority take a minimum insurance to cover amounts that such Launching State or launching authority may legally be required to pay as a compensation for damage suffered by third parties arising out of launch operations as well as, in

3 some cases, in-orbit operations. The minimum amount of insurance required varies from one country to the other. The insurance coverage available on the specialised insurance market ranges from 100 to 500m$. Practically, this means that the first m$ worth of damage will be covered by insurance and any compensation to be paid to a third party in excess of this amount is covered by the Launching State. In respect of coverage of astronauts themselves, the issue is twofold: - Bodily injury suffered by astronauts, - Damage/bodily injury caused by astronauts. This part is ruled as described above, i.e. damage to other participants of the space mission by the ISS IGA and damage to third parties by the 1972 Liability Convention. Bodily injury suffered by astronauts can be and is frequently covered by insurance. What ISB have seen or placed up to now, essentially covers those injuries that the astronaut may suffer as a result of the space mission. The coverage usually starts from the moment the astronaut enters the space vessels in the perspective the launch and runs until the time when the astronaut has left the vessel, either because of launch abort or failure, or after return on earth when the mission is fulfilled. The coverage provides compensation for injury, loss of limb, loss of sight, permanent partial or total disablement, all of which is nothing pleasant to mention in the presence of our distinguished astronauts present here today, but which form a portion of the compensation they would receive in case of an accident. One could say that, as of today, with man in space being essentially a fact of governmental or intergovernmental bodies, the allocation of liabilities as framed by the existing international instruments is rather well established. But today, the increasing number of private attempts to fly man to space and the recent remarkable success of one of them- opens significant perspectives unsuspected only 10 years ago. Until the first flight of a tourist in space, any manned space flight was a matter for government organizations, and it has remained so until now, except for two notable exceptions: the flights of MM. Tito and Shuttleworth. With private entities becoming successful, man in space using nongovernmental facilities and privately developed vessels is becoming much more than a remote possibility, it is a highly probable very close future. The question is easily raised: is space tourism going to totally turn the issue of man in space upside down? Insofar as liability and insurance is concerned, there is no doubt that space tourism will have an impact. Whether this leads to a major change in terms of liabilities and insurance is impossible to predict, but one thing is certain: a similar change from public to private has a precedent in the history of space. Reference here is made to launch services: only a half-century ago -in the early days of space- launching any unmanned satellite was a matter for governmental agencies. Today, it has now become a business of its own with privately capitalised ventures. This has given birth to all sorts of connected space businesses, one of which being space insurance. It is very likely that if space tourism develops as a similar business there will be an similar evolution for manned flights. In respect of liabilities and insurance, the advent of space tourism raises at least the following questions:

4 - Are there new risks that space tourists run that professional astronauts didn t, or do tourists endanger third parties more than professional astronauts? - In what legal frame are the issues of third party liability and liability towards other participants in the space mission going to be handled? - Can the risk taken by space tourists be covered? And by whom: states or private insurance? Yes, there are new risks for tourists that professional astronauts didn t run. Not risk of bodily injury, but risk of financial losses. It most likely however that such risks will be coverable by insurance and actually, some have already been. For previous space tourists, coverage providing compensations for bodily injury or death resulting from the mission have already been placed and implemented, that is nothing any different from what is done for professional astronauts. Insurances can indeed be found which are very specific to tourists and in particular to cover events which lead to the cancellation of the mission. After all, a space tourist is merely a customer who pays a significant amount of money for a travel service and, as such, he is exposed to losses of his expenses engaged in the venture. So there can be insurance for various cases which cover expenses committed to the space journey, e.g. if the candidate is disqualified by the medical committee (whether he breaks a leg or is otherwise declared unfit); or the candidate dies before the mission. And there s more interesting: Political risk. Insurance could cover the case where for some political reason the licence to fly is denied after the candidate has committed to payment of the mission. Whether space tourism emerges as a business or not, space remains a strategic area for all space nations: there is no reason to think that tourism would not be subject to political risk as are other areas in space business. Those are all issues, which relate to the risk run by the space tourist, essentially of a financial nature, in addition to the more traditional risk of bodily injury or death. The other issue is that of risk run by others, due to space tourism and in particular the legal frame in which such risk will be handled. Regarding the liability towards participants of a same space mission toward the International Space Station, we understand that Visiting Crews are not part of the ISS IGA. The cross waiver of liability arising out of the IGA covers Expeditions crew, i.e. those professional astronauts who remain for long periods of time on board the ISS, and who are the very purpose of the ISS. What is the legal statute of a tourist? What is the legal statute of a tourist visiting the ISS and what is the legal statute of a space tourist not visiting the ISS? What legal instruments rule the allocations of liabilities? The ISS IGA may have to be revisited for tourist missions to the ISS. Moreover, the liability regime for tourists not involved at all in any ISS missions may have to be invented. Does the 1967 Treaty On Exploration And Use Of Outer Space Including The Moon And Other Celestial Bodies apply to non-governmental, private manned space ventures? Does the 1968 Agreement On Rescue of Astronauts also apply? And how? The 1968 Agreement on Rescue of Astronauts provides that expenses incurred in fulfilling obligations to recover and return a space object shall be borne by the Launching State : how are Launching States going to legally implement that obligation when dealing with private space tourism venture? And how much are they willing to do so? As we mentioned before, there are precedents in respect of this

5 transfer from governmental to private business, so the way is pretty much paved. But there is certainly room for detailed legal improvement. Regarding Third Party Liability, i.e. possible damages caused by tourist astronauts to parties not involved in any way in the mission, the 1972 Convention should apply but that will require that insurance requirements be agreed between the Launching State and the private venture under its authority. The next question will be: will the insurance market be able to expand so as to cover liabilities arising out of space tourism? Conclusion Currently the astronaut liability regime is pretty well established and so is the insurance that goes with it. It is a fact, a happy one, that there is little experience of having to claim under such insurance policies. With the current regimes in place, whether a damage is caused by an astronaut, or as the mere result of an instrument failure isn t the issue. With space tourism becoming the next frontier, there is most likely to be some work ahead for lawyers specialised in space law and space liability in order to make the current frame operational for this challenge that is coming up. We cannot predict what the governments policies will be in that respect, but we can guarantee that there is enough creativity in the space insurance market to provide insurance coverage where insurance is needed. The current space insurance market is a rather recent one, as compared to marine or automobile or even aviation insurance markets. It really emerged in the seventies and expanded in the eighties. But it is coming to some level of maturity. For now, it essentially addresses the financial losses of investors in space businesses such as satellite telephony or direct television broadcasting and that represents the core of this business. Nonetheless is has always been receptive to non-telecomm applications: earth observation since long represents a notable part of this business and this is growing in proportion to the earth observation s share in space applications. The insurance markets are already open to manned space in its current status. There is no doubt that creativity will enable proper welcoming of insurance for tourist astronauts.