Equity and the Space Tourist
- Paper number
IAC-09.E8.4.5
- Author
Ms. Zeldine Niamh O'Brien, Trinity College, Ireland
- Year
2009
- Abstract
The inclusion of cross-waivers of liability is a matter of practice in contracts for space services and may be required under domestic law. Under §70112(b) of the Commercial Space Launch Activities Act 1984 as amended in 1988, the inclusion of cross-waivers is mandatory between the US Federal Government, its contractors, subcontractors, licensees and permittees. The Commercial Space Launch Amendments Act 2004 extended this requirement to spaceflight participants. The incorporation of waivers between the carrier and the space tourist is not explicitly required under federal law, however, several states with an interest in developing spaceports have passed laws imposing this explicit requirement, such as Virginia and more recently in Florida. A similar law is currently before the New Mexican legislature. The federal requirement has been subject to some litigation before the Courts. Following the decisions in {\it Lexington Insurance v Mc Donnell Douglas}, {\it Appalachian Insurance v McDonnell Douglas }and {\it Martin Marietta v Intelsat}, it emerged that where the contract is individually negotiated between parties with equivalent specialist knowledge, the waiver will exclude all liability, including that arising in tort. However, the current industry indications favour the use of standard form contracts for space tourists. Furthermore the parties will not necessarily be of equal bargaining power or have equivalent specialist knowledge. This leaves some scope for reliance on equitable doctrines, particularly that of unconscionability. This paper will address the value of equitable doctrines for space tourists. It will address their potential in challenging waivers under US federal law, the state law of Virginia and Florida and the proposed law in New Mexico and evaluate the results against the potential of the doctrine for space tourists taking similar action in EU common law fora.- Abstract document
- Manuscript document
IAC-09.E8.4.5.pdf (🔒 authorized access only).
To get the manuscript, please contact IAF Secretariat.