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Journal of Air Law and Commerce

Abstract

The commercial space transportation industry is rapidly approaching the first launches of paying passengers into space—a technological and legal milestone for the maturing sector. Unfortunately, the liability regime governing the relationship between commercial space operators and spaceflight participants inadequately protects private passengers’ safety and financial interests. As part of the Commercial Space Launch Competitiveness Act of 2015 (CSLCA), Congress enacted negligence waiver and informed consent requirements that shift almost all legal liability onto spaceflight participants for death or bodily injury caused by an operator’s negligence. Private citizens should not bear the risk of these accidents.

This Comment argues that Congress should repeal the waiver and informed consent requirements, allowing states to regulate the relationship between passengers and commercial space operators like they would any other form of transportation. Part I lays out the historical development of the federal regulations that form the current liability regime for commercial space operators. Part II analyzes and critiques the CSLCA’s provisions that affect the distribution of risk between operators and passengers, including cross-waivers of liability and informed consent provisions. Part III charts the state statutes that govern the content of liability waivers between operators and passengers, highlighting the gaps and contradictions between federal and state laws. Part IV proposes regulatory changes that would allow traditional state negligence doctrines to govern the duties and standards of care owed by private space operators to their passengers—a solution to the patchwork of state and federal laws that create legal uncertainty for a growing industry. Part V concludes with recommendations for short-term and long-term changes to federal law to transition to a fair and equitable liability regime for commercial space transportation.

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