Thus far, the FAA has put forth an informed consent regime in which passengers must acknowledge they are undertaking a risky activity. At least six U.S. states have passed informed consent laws that provide space companies with various levels of protection from lawsuits filed over accidents, injuries and deaths during spaceflight operations.
At the recent World Space Risk Forum, Global Aerospace President Jeffrey Cassidy said the outcome could depend upon whether spacecraft operators were designated as “common carriers.”
Railroads have been considered common carriers since they began, as were commercial aircraft services.
Courts have nonetheless ruled that adventure travel involving transportation — the helicopter taking skiers to places with no designated slopes, the aircraft carrying skydivers — should not carry the common-carrier label.
But Cassidy said the adventure-travel precedent is not a good legal fit for space tourism because the adventure-travel businesses are using transportation only as a means to the real event, which is skydiving or heli-skiing.
“Going into space could be considered an adventure,” Cassidy said, but legal precedent in California, at least, makes that less likely. California courts in the 1930s determined that a company offering sightseeing flights over the Grand Canyon and other attractions were in fact common carriers.
If that precedent holds for suborbital space travel, then “the whole notion of informed consent — the waivers that participants have signed — would be called into question in the event of an accident,” Cassidy said. “A liability award may be higher than you anticipated under the regulations.”
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