With the second successful test flight of Virgin Galactic’s VSS Unity and the eighth successful test flight of Blue Origin’s New Shepard, it is likely that suborbital space tourism will commence in the next 6 months.1 Here are three tips for future space tourists.
1. Understand the liability regime governing your flight.
Although a passenger on a commercial spacecraft may seem similar to a commercial airline passenger, the liability regime governing their voyages is vastly different. If a commercial airline passenger is physically injured or dies as a result of an airplane accident, they have a cause of action against the air carrier and possibly others. This is true for both domestic flights, governed by U.S. law, as well as international flights, under the Montreal Convention.
Not so with space travel. Under federal law, space tourists — referred to as “space flight participants” under federal law — are required to sign a waiver of liability before they can fly to space.2 In the written waiver, space tourists waive and release any claims they may have against the commercial spacecraft operator, the U.S. government, and their contractors and subcontractors.3
Reinforcing the waiver, space tourists are also required to “hold harmless” and “indemnify” the spacecraft operator and the U.S. government if anyone pursues a wrongful death or personal injury claim on their behalf. The only exception to the waiver is for claims resulting from “willful misconduct,” which is an onerous legal standard. The waivers are reciprocal, that is spacecraft operators, the U.S. government, and their contractors must also waive any claims they may have against the space tourist.4 But practically speaking, the waivers largely inure to the benefit of the operator not the space tourist, who is unlikely to bear legal responsibility for an accident except in unusual circumstances.
From a legal perspective then, a space tourist is more akin to a skydiver than a commercial airline passenger. Similar to a skydiver, space tourists are provided with detailed information regarding the hazards they are voluntarily undertaking, and then must sign an “informed consent” form acknowledging those risks.5 And after being apprised of the risks attendant to space travel, space tourists must give up any legal claims they have against the commercial spacecraft operator or the U.S. government except for willful misconduct claims.
While there are stringent insurance requirements for commercial space flight launches in addition to indemnification from the U.S. government above a certain dollar threshold, the insurance policies are only required to protect against claims of third-parties, such as ground victims and property owners, not space tourists.6
The upshot is this: in the event of an accident, a space tourist may not be able to pursue a claim against the commercial spacecraft operator or seek coverage under the operator’s policy for their own personal injuries. Accordingly, space tourists should consult with an experienced insurance broker and verify that they have appropriate insurance coverage before their voyage.
2. Get a medical check up.
As we discussed in a prior article, commercial space travel may pose an increased risk of harm to at-risk members of the population, such as those with chronic heart conditions. Commercial spacecraft operators require space tourists to complete medical questionnaires and some may require a physical exam. Even if a physical exam is not required, however, it makes good sense for a space tourist to consult with an aerospace physician to review their medical history and conduct any necessary tests to assure they are fit for travel. While it does not appear that the health risks associated with a suborbital flight are substantially greater than commercial airline travel, it would be prudent to get a medical check up.
Space tourists may also wish to discuss with an aerospace physician whether a particular flight profile impacts the potential health risks. Virgin Galactic’s VSS Unity, for example, is a space plane that is air launched by a carrier aircraft, WhiteKnightTwo, at 50,000 feet and then travels from there above the Karman line. The passenger experience may feel more similar to commercial airline travel than a vertical launch. On the other hand, Blue Origin’s New Shepard is a vertical takeoff, vertical landing (VTVL) spacecraft. It consists of a capsule atop a booster, both of which are launched vertically and then separate.
3. Bring the right camera.
Finally, space tourists should make sure to bring along the right camera to capture the stunning views from space. While smartphone cameras have become quite advanced, it is best to purchase a camera that is designed for astrophotography. Nikon makes an excellent camera designed for astrophotography, the Nikon D10A, as does Canon, the EOS 6D DSLR.
We are not overlooking SpaceX, a leader in the commercial space industry. It appears, however, that SpaceX is focusing on flights to low Earth orbit and beyond.
The waiver requirement is contained within the Federal Aviation Regulations, namely 14 C.F.R. 440.17(d). The waiver was broadened in 2015 by the U.S. Commercial Space Launch Competitiveness Act (CSLCA), 51 U.S.C. 50914(b), which requires space flight participants to also waive any claims they may have against commercial spacecraft operators. While current Federal Aviation Regulations do not expressly require space flight participants to enter into a reciprocal waiver agreement with a commercial spacecraft operator, the CSLCA requires this and the FAA is following the statutory requirement. The FAA’s Chief Counsel recently confirmed this in a legal interpretation, which can be found here.
A sample waiver is provided at Appendix E to 14 C.F.R. Part 440, which can be viewed here. As discussed above in footnote 2, the CSLCA broadened the waiver to require space flight participants to also waive and release any claims against spacecraft operators. A waiver releasing claims by a space flight participant against an operator would be substantially similar to Appendix E. See FAA Chief Counsel interpretation.
See footnote 2 above.
A sample “informed consent” form is located at Appendix C in the FAA’s Guidance on Informing Crew and Space Flight Participants of Risk, Version 1.1, at p. 20, which can be viewed here.
See 14 C.F.R. 440.9