Suborbital Activities and the Need for Legal Reform Benjamyn Ian Scott benjamyn.scott@gmail.com

Keep in Mind Under current international law there is no definition of suborbital, suborbital activities or suborbital vehicles.

Space Law – Outer Space Treaty The Outer Space Treaty, Article VII: “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.”

Space Law – Liability Convention Liability Convention, Article VII: “The provisions of this Convention shall not apply to damage caused by a space object of a launching State to: (a) nationals of that launching State; (b) foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching State.”

National Law – in the United States Title 51 U.S.C. § 50905(5):   “(A) The holder of the license or permit has informed the space flight participant in writing about the risks of the launch and reentry, including the safety record of the launch or reentry vehicle type … (B) The holder of the license or permit has informed any space flight participant in writing, prior to receiving any compensation from that space flight participant … (C) … The space flight participant has provided written informed consent to participate in the launch and reentry …” Fly At Your Own Risk

Information and Consent

National Law – in Europe Council Directive 93/13/EEC (1993) Unfair Terms in Consumer Contracts. “excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier” may be regarded as unfair. France: Under the general principle of civil liability, such a waiver whether by contract or by unilateral declaration, would likely be unenforceable as far as human injury or death is affected.

Air Law – Montreal Convention Montreal Convention, Article 17: “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Air Law – Aircraft Montreal Convention, Article 1: The transportation vehicle must be an ‘aircraft’. Aircraft has been defined in the CC44’s Annexes. “Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.” Broad application of the term ‘aircraft’ under the MC99 Gliders: Mount Beauty Gliding Club Inc. v Jacob, VSCA 151 [2004]. Balloons: Disley v Levine, 45 1 WLR 785 (CA) [2002]. Helicopters: Case C-6/14 Wucher Helicopter GmbH v Fridolin Santer.

Air Law – International Carriage Montreal Convention, Article 1: It “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.” Article 1(b): “the place of departure and the place of destination … are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State”. A to A carriage via outer space A to A carriage via another State A to B journey via outer space

Air Law – Exclusivity Montreal Convention, Article 29: “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.” Sidhu v British Airways 1997 (UK) Tony Hook v British Airways 2011 (UK) Mc Auley v Aer Lingus 2011 (Ireland) Thibodeau v Air Canada 2012 (Canada) Paradis v Ghana Airways 2004 (US)

Air Law – Limitation of Liability Montreal Convention, Article 26: “Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.”

Reform Use the existing laws? Adapt the existing laws? Sui Generis? Content: sovereignty, jurisdiction, liability, responsibility, registration, ownership, safety, and security Overlap: Jurisdiction Dichotomy: Sovereignty New: Passenger Liability

Thank you! benjamyn.scott@gmail.com Benjamyn Ian Scott, ‘International Suborbital Passenger Transportation: An Analysis of the Current Legal Situation of Transit and Traffic Rights and its Appropriate Regulation’, Issues in Aviation Law and Policy (May 2015). Benjamyn Ian Scott, ‘The Regulation of Personal Injuries in International Carriage by Suborbital Vehicles under Air Law’, 15(2) The Aviation and Space Journal 20 (2014).