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Commercial Space Flight Liability: Are Waivers Enough?

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Patti Smith. Herb Bachner. Ken Gidlow. Laura Montgomery. Michael Aherne. AST Staff. Tracy Knutson ... 798 (W.D. S.C. 1961). Commercial Space Flight Liability: ... – PowerPoint PPT presentation

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Title: Commercial Space Flight Liability: Are Waivers Enough?


1
Commercial Space Flight Liability Are Waivers
Enough?
Reuben Canada
10/2006
2
Acknowledgements
  • Patti Smith
  • Herb Bachner
  • Ken Gidlow
  • Laura Montgomery
  • Michael Aherne
  • AST Staff
  • Tracy Knutson
  • International Space Brokers

3
Overview
  • Why waivers are needed for space flight?
  • How can a written waiver be made effectively?
  • How does location factor into waiver
    effectiveness?
  • Recommendations

4
 70112 (b) reciprocal wavier coverage
  • Government lt-gtLicensee lt-gtCustomers
  • Cross waiver required
  • Government lt-gt Space flight Participant
  • Cross waiver required
  • Licensee X Space flight Participant
  • Cross waiver not required

5
Human Space Flight Requirements for Crew and
Space Flight Participants
  • The CLSAA requires crew and each space flight
    participant to execute a reciprocal waiver of
    claims with the FAAThe CLSAA does not require
    crew and space flight participants to waive
    claims against each other or against a licensee
    or permittee.
  • Waiver of liability between permittees/Licensees
    and Space flight participants is not required by
    federal law

6
  •  70117. Relationship to other executive
    agencies, laws, and international obligations
  • (c) States and Political Subdivisions. A State
    or political subdivision of a State (1) may not
    adopt or have in effect a law, regulation,
    standard, or order inconsistent with this
    chapter but
  • (2) may adopt or have in effect a law,
    regulation, standard, or order consistent with
    this chapter that is in addition to or more
    stringent than a requirement of, or regulation
    prescribed under, this chapter.

7
Assumption of Risk
  • Def Voluntary exposure of person or personal
    property to a known and appreciated danger due to
    the negligence of another.
  • 65 C.J.S. Negligence 360 (2006).
  • Protects permittee/Licensee from most acts of
    negligence.
  • Allan v Snow Summit, Inc. (1996, 4th Dist) 51 Cal
    App 4th 1358, 59 Cal Rptr 2d 813, 97 CDOS 13, 97
    Daily Journal DAR 9.

8
Waiver Construction
  • Must clearly state the intent to release
  • Moore v. Hartley Motors, Inc., 36 P.3d 628
    (Alaska 2001).
  • Clearly set out for which liability is to be
    avoided
  • Seigneur v. National Fitness Institute, Inc., 132
    Md. App. 271, 752 A.2d 631 (2000)
  • Speak clearly and directly to the particular
    conduct of the defendant which caused the harm
    at issue
  • Empire Lumber Co. v. Thermal-Dynamic Towers,
    Inc., 132 Idaho 295, 971 P.2d 1119 (1998)
  • Express the protection from liability in clear
    and unequivocal terms
  • Bishop v. GenTec Inc., 2002 UT 36, 48 P.3d 218
    (Utah 2002).

9
Minors
  • Parents generally cannot waive the rights of
    children
  • Dixon v. U.S., 197 F. Supp. 798 (W.D. S.C. 1961).

10
Waiver Enforcement Factors
  • Tunkl Factors
  • Significance
  • Used by a number of states currently involved in
    space travel
  • Factors
  • Whether activity
  • Is generally subject to extensive public
    regulation
  • Is it an important public service
  • Is it an essential activity
  • Was the injured party under the control of the
    service provider
  • Was the activity open to the general public
  • Is the release regarded as an Adhesion Contract
    (not bargained for)

11
State-by-State Examination
  • States where action is most likely to take place

12
State-by-State Examination
  • Florida
  • Public policy not to interfere lightly in freedom
    to contract
  • Waiver releases all sponsors or parties, even if
    not named
  • Must include the word negligence
  • Waivers will protect against gross negligence,
    but not intentional acts
  • Minor status yet to be determined

13
State-by-State Examination
  • Virginia
  • Not enforceable?
  • 1992 Virginia Supreme Court stated, to hold it
    was competent for one party to put the other
    parties to the contract at the mercy if its own
    misconduct can never be lawfully done where an
    enlightened system of jurisprudence prevails.
    Public policy forbids it, and contracts against
    public policy are void.
  • Universal

14
State-by-State Examination
  • New Mexico
  • Factors
  • Strict construction
  • Exculpatory language should be conspicuous to the
    signer
  • Tunkl factors

15
Recommendations
  • Lobby state legislatures to enact bills
    recognizing waivers for negligence liability
  • Follow waiver construction rules

16
Questions ?
17
State-by-State Examination
  • California
  • Use Tunkl Factors
  • Cannot exempt fraud or willful injury
  • Must distinguish between injuries due to
    negligence and inherent risks
  • Should include the word negligence
  • Parents may execute a release on behalf of
    children

18
State-by-State Examination
  • Washington
  • Public policy
  • Public interest is involved
  • Care greatly below standard (gross negligence,
    reckless conduct)
  • Clause is inconspicuous
  • Rely on Tunkl factors
  • Parents cannot sign away childs rights

19
State-by-State Examination
  • Texas
  • Must meet requirements of fair notice
  • Express negligence doctrine
  • Conspicuousness requirement
  • Negligence clause must be spelled out

20
State-by-State Examination
  • Wisconsin
  • Strict scrutiny
  • Public policy element
  • Must be clear, unambiguous
  • When looked at in its entirety
  • Gives great weight to bargaining process

21
State-by-State Examination
  • Alaska
  • Tunkl factors are used
  • Must be clear, explicit, and comprehensible in
    each detail
  • Must use the word negligence

22
State-by-State Examination
  • Oklahoma
  • Waivers are not against public policy
  • Prohibits waivers seeking to avoid willful
    injury, fraud, or gross negligence

23
U.S. Spaceport States
24
(No Transcript)
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