11.30.2006
Emeralda v Mazonia
This blog is not Space Bet Probe, but a reader has challenged me to pick the team I think will win the 2007 Manfred Lachs Space Law Moot Court Competition.
As we know, in 2006 New Zealand's University of Auckland Law School conquered the space moot world and took home the trophy for its stellar and winning lawyering in the 2006 moot case, Galatea v Thalassa, held in in Valencia, Spain.
The 2007 challenge, Emeralda v Mazonia ("The Case Concerning International Liability"), looks the be another doozy.
My favorites to win in '07? Well, here on SLP we don't wager, especially on fake litigation, but I do note that Auckland has taken two titles so far this millennium, so they are on a roll. But of course McGill, which made it to the finals in '06 is overdue to blow away the moot competition. However George Washington, which won the first-ever space law moot court competition in 1992 in Washington DC, and came back to win it again in 2005 in Fukuoka, Japan, could make three a charm. Let's see... the Netherlands' University of Leiden is also a two-time champ, winning in '93 in Graz, Austria, and again in '04, in Vancouver, Canada. And, well, there are always surprises.
My only regret is that the competition is not webcast live -- or at all. Maybe one day? There's a digital first for everything.
Check the moot calendar for dates of regional rounds in Asia, Europe and North America.
And the 2007 world finals will take place during the 58th International Astronautical Congress and the International Institute of Space Law's annual colloquium, Sept. 2007 in Hyderabad, India.
Student space law litigators, fire up your laptops. And good luck to all.
(Meanwhile, got picks for who will win the Super Bowl on Feb. 4, 2007? Don't send them here.)
As we know, in 2006 New Zealand's University of Auckland Law School conquered the space moot world and took home the trophy for its stellar and winning lawyering in the 2006 moot case, Galatea v Thalassa, held in in Valencia, Spain.
The 2007 challenge, Emeralda v Mazonia ("The Case Concerning International Liability"), looks the be another doozy.
My favorites to win in '07? Well, here on SLP we don't wager, especially on fake litigation, but I do note that Auckland has taken two titles so far this millennium, so they are on a roll. But of course McGill, which made it to the finals in '06 is overdue to blow away the moot competition. However George Washington, which won the first-ever space law moot court competition in 1992 in Washington DC, and came back to win it again in 2005 in Fukuoka, Japan, could make three a charm. Let's see... the Netherlands' University of Leiden is also a two-time champ, winning in '93 in Graz, Austria, and again in '04, in Vancouver, Canada. And, well, there are always surprises.
My only regret is that the competition is not webcast live -- or at all. Maybe one day? There's a digital first for everything.
Check the moot calendar for dates of regional rounds in Asia, Europe and North America.
And the 2007 world finals will take place during the 58th International Astronautical Congress and the International Institute of Space Law's annual colloquium, Sept. 2007 in Hyderabad, India.
Student space law litigators, fire up your laptops. And good luck to all.
(Meanwhile, got picks for who will win the Super Bowl on Feb. 4, 2007? Don't send them here.)
11.28.2006
Notes from Jones Day
Not your everyday experience: sitting in a global law firm's large conference room in an office building in the middle of NYC with 100 super-powered people in business suits and no lawyers.Well, senior telecom partner Del Smith was there, but it was his firm's event. And I may have spotted one or two other lawyer types, but for the most part, the satellite industry leaders gathered at the inaugural ISCe Satellite Investment Symposium (ISIS NYC '06) at Jones Day today, including executives representing companies like (in random order) Eutelsat, ATCi, GlobeCast, Iridium, Inmarsat, Globalstar, Hughes, Boeing, SES Americom, Sirius, XM, WorldSpace, Loral Skynet and others, along with Wall Street folks from the likes of Morgan Stanley and Bear, Stearns, to name a few, all left their lawyers at home. Del did not appear at all lonely.
Check here for the organizers' briefing on the symposium's panels and sessions.
Just a few random notes:
In his keynote, FCC Commissioner Jonathan S. Adelstein said, "I'm bullish on satellite." (He also said in his home state of South Dakota "we have more dishes than we have buffalos.") Look for text of the commissioner's keynote on this FCC page (just as soon as they post it).
Analysts were both bullish and bearish about the different sectors. DBS sector stocks have done well, but some investors may be underestimating the costs.
Panels covered DBS, mobile satellite services (and the "topic du jour" for MSS -- ATC or auxiliary terrestrial components), fixed satellite services, satellite radio, and television.
Del mentions two "scary trends." 1. Antitrust, particularly in satellite radio; and 2. FCC relaxing foreign ownership limitations.
(Del also delighted everyone by reading a bit from a book about Magic the cat.)
Lots of discussion about advanced services such as HD and VOD.
Discussions about satellite radio and the IPOD threat, and the "IPOD generation." A good point: The terrestrial radio market has competed with every form of stored music there is.
Sirius, XM, Direct TV, etc. really are media companies.
I did not hear a conclusive answer in connection with nonstop rumors about a merger between Sirius and XM. But I did not expect one.
By consensus of the final panel, the answer to the question whether the romance can last between broadcasters and satellite is: Yes.
(One unrelated note: I see Fed chairman Ben S. Bernanke was also in NYC today but not talking about satellites.)
And my personal favorite comment from Del Smith as I chatted with him after the event: "I love space law." (Yes, Del, we know ;)
Government space official celebrity spotting (after all, this is NYC): Patricia G. Smith, the FAA's Associate Administrator for Commercial Space Transportation flew in (quietly) from Washington, along with manager Herb Bachner of her office, to take in a little satellite finance. It was great to see her and talk with her and Herb; I'll have a lot more on that and some cool news about the FAA/AST gathering Patti is planning for February in separate posts.
Finally, Jones Day will be making the symposium an annual event. In fact, next year's symposium is already scheduled: ISIS NYC '07, Oct. 9, 2007. (This crowd couldn't even wait 12 months to do it again ;)
* * *
Image: Delbert D. Smith, courtesy of Jones Day.
11.27.2006
Big Apple Satellite Week
Yes the holiday season is in full swing here in NYC, but if you see a lot of happy space law and business types running around town, that's because this is also "Satellite Week" in the Big Space Apple.
Many noteworthy events on tap.
First stop, top players in the way out world of satellite finance converge at Jones Day's law offices in mid-town Manhattan for the ISCe Satellite Investment Symposium -- ISIS NYC '06 -- tomorrow, Nov. 28, a hot happening, complete with a keynote by FCC Commissioner Jonathan S. Adelstein. (And see my earlier post.)
Also tomorrow, the Global VSAT Forum (GVF) holds its Disaster Recovery Satellite Summit on "Redefining the Critical Mission," at the Omni Berkshire Place Hotel.
Then, in its fifth year, the Satellite Application Technology Conference Expo (SATCON), rocks the Javits Convention Center Nov. 29-30. The show focuses on "applications for satellite, content delivery and communications including video, voice, data and internet over satellite, fiber and hybrid networks."
Lots of speeches, panels, presentations, dining, receptions and networking from here to GEO and back. So from the home office in Manhattan, SLP welcomes the satellite industry to NYC. Enjoy the nonstop action. Hope to see you here. And if you have any spare time, go shopping on Fifth Avenue ;).
11.22.2006
Fear of Oberstar
If there is anything more dangerous to the space tourism industry than this, it's this.In his ever-provocative way, Taylor Dinerman voices a worry shared by many in human spaceflight business about the Congressman from Minnesota's push to amend the CSLAA: Will James Oberstar kill the space tourism industry? (The Space Review) Read it this Thanksgiving (at halftime).
In spite of some weasel wording, the hard legal requirements of Oberstar's proposed regulation would effectively kill the whole entrepreneurial suborbital industry. The cost not only of developing a manned rocket that complies with the kind of safety burden that Oberstar wants, not to mention the astronomical cost of proving that a vehicle actually does comply with the regulations, will make it all but impossible even for the deepest pockets to build anything.
Even worse, Oberstar might open the door for the tort lawyers to come in and strip mine all the investment capital out of the industry. They almost killed off the US general aviation industry before Congress stepped in and put a stop to the lawsuit avalanche. In that case, tens of thousands of US jobs were at stake, but with the space tourism industry so far only hundreds of jobs are now at risk. The greatest danger is that all the thousands of high-paying jobs that the space tourism industry will create if the industry is left to develop under current rules will simply never exist.
Yes, overregulation can indeed stifle the development of new American space business, and litigation seriously chill the flow of venture dollars, all to the benefit of foreign competition. We'll see if the 110th Congress gets this.
And what of jobs for poor tort lawyers? Sometimes it does seem litigation is as American as football at Thanksgiving. Many folks note good tort law has saved countless innocent Americans from injury and wrongful death. But to set off what Taylor calls a "lawsuit avalanche" against space tourism interests could be deadly for an industry designed by and for knowledgeable and willing risk takers. Lawyers -- and lawmakers -- should not create a threat of economic disaster. Congress called for reasonable steps to protect public safety without causing undue economic harm to the newborn human spaceflight industry. That is the proper balance of interests here. And that's no turkey. However, as always, to do business in America is to assume the risk of getting sued.
(For the record, Oberstar is not a tort lawyer. Or a lawyer at all.)
UPDATE: See also Rand's blog for his earlier post and comments on this.
Happy Thanksgiving ;)
11.21.2006
Space Law Symposium at Cosmos Club
Get ready for an exciting day in space law at, yes, the Cosmos Club in Washington, D.C. (Space lawyers should feel right at home.) Breakfast, lunch and if we are lucky, a handshake with Rusty Schweickart, among others, is included. Here's the invitation to this excellent, free symposium. (Thank you, Prof. Joanne Gabrynowicz.)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The National Center for Remote Sensing, Air and Space Law at the University of Mississippi School of Law, the Journal of Space Law, and the International Institute of Space Law
present
The Eilene M. Galloway Symposium on
Critical Issues in Space Law
December 11, 2006
8:00 am - 3:30 pm
Cosmos Club
Washington D.C.
R.S.V.P. Required No Registration Fees, Breakfast and Lunch Included. Participants are responsible for personal parking if they drive to the event.
AGENDA
8:00 am- 9:00 am
December 11, 2006
8:00 am - 3:30 pm
Cosmos Club
Washington D.C.
R.S.V.P. Required No Registration Fees, Breakfast and Lunch Included. Participants are responsible for personal parking if they drive to the event.
AGENDA
8:00 am- 9:00 am
Breakfast
9:15 am - 9:30 am
9:15 am - 9:30 am
Welcome and Introduction
Prof. Joanne Irene Gabrynowicz, Director, NCRSASL, Director, IISL
Ms. Tanja Masson-Zwaan, Secretary, IISL
9:30 am – 10:15 am
Prof. Joanne Irene Gabrynowicz, Director, NCRSASL, Director, IISL
Ms. Tanja Masson-Zwaan, Secretary, IISL
9:30 am – 10:15 am
Maintaining Space for "Peaceful Purposes"
Dr. Jonathan F. Galloway, Vice President, IISL
10:15 – 10:30 Break
10:30 am - 11:45 pm
Dr. Jonathan F. Galloway, Vice President, IISL
10:15 – 10:30 Break
10:30 am - 11:45 pm
Interstitial Space and "Other Celestial Bodies"
Celestial Bodies and Interstitial Space in Current Law
Dr. Stephen Doyle, Honorary Director, IISL
Interstitial Space: Future Inhabitants and an Evolving Corpus Juris Spatialis
Dr. George Robinson
11:45 pm -12:45 pm
Dr. Stephen Doyle, Honorary Director, IISL
Interstitial Space: Future Inhabitants and an Evolving Corpus Juris Spatialis
Dr. George Robinson
11:45 pm -12:45 pm
Lunch Speaker
Dr. Stephen Doyle, Honorary Director, IISL
Report on the International and Interdisciplinary Workshop on Policy and Law Relating to Outer Space Resources: The Example of the Moon, Mars and Other Celestial Bodies
12:45 – 1:30
Report on the International and Interdisciplinary Workshop on Policy and Law Relating to Outer Space Resources: The Example of the Moon, Mars and Other Celestial Bodies
12:45 – 1:30
The Near Earth Orbit (NEO) Protocol
Dr. Rusty Schweickart,
Dr. Rusty Schweickart,
Chairman, Association of Space Explorers-NEO Committee
1:30 pm - 2:15 pm
1:30 pm - 2:15 pm
Space Traffic Management - IAA Cosmic Study
Ms. Corinne Contant Jorgenson,
Ms. Corinne Contant Jorgenson,
President, Advancing Space Consulting Group
2:15 – 2:30 Break
2:30 pm - 3:30 pm
2:15 – 2:30 Break
2:30 pm - 3:30 pm
Panel Discussion
Moderator: Prof. Joanne Irene Gabrynowicz
Moderator: Prof. Joanne Irene Gabrynowicz
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Image: M81, nearby spiral galaxy similar to our own (Spitzer Space Telescope, NASA).
11.17.2006
Friday Flybys - 11.17.06
I've been tied up at a two-day Blog Law conference in midtown (well, I needed the CLE credits), so if I'm missing anything critical here, please let me know. Actually, the conference was good, and featured blog heavyweights like Jeff Jarvis of BuzzMachine, and some very hot law bloggers who I do blogroll here on SLP, including the hosts of Patently-O (Dennis Crouch), How Appealing (Howard Bashman), Internet Cases (Evan Brown), as well as Marty Schwimmer and others. It was also cool to meet Google's own copyright guru, Bill Patry. Thanks to the lovable and well-connected Jeff Neuburger of Brown Raysman for the invite.-----
KFC, anyone?
* * *
Image credit: Icarus, 1931 - one of L.W. Hine's photographs of the Empire State Building under construction; courtesy of the NY Public Library Digital Gallery.
11.15.2006
High on HD
When it comes to high definition TV, space is the highest you can get.This blog is not Space TV Probe, but early this afternoon I ducked into into a Circuit City retail outlet in Manhattan to catch the first live HD transmission from space. Lucky for me and some folks doing a bit of early holiday shopping, the Discovery Channel's HD Theater feed of this historic programming appeared on about 55 HD flat panel (plasma and LCD) TV screens all over the store, simultaneously. Pretty awesome.
I missed the beginning but from what I saw, the HD camera on the International Space Station was trained mostly inside. Yes, Commander Michael Lopez-Alegria looks excellent in HD, he's got great, high-def-ready skin, too -- I'd guess the zero-G helps a lot there. Of course, we've seen the ISS tours, living in space demos -- eating, exercising, slurping floating bubbles, etc., a zillion times. And while details of the station look sharper then we've ever seen them, what we want to see in HD is the view outside. Did not see enough of that. Next time.
Later, I noticed a lot of folks missed the milestone HD space show because rather than coming inside, they waited on a line forming in front of the store. And guess why. Yup, apparently the Playstation 3 release is scheduled for Friday (in North America), naturally shortages are expected, and folks are prepared to camp out to get one.
(I suppose in the old days to stay current, you stopped by the barber shop, local diner or cafe. Now, for all the hot happenings, hit your neighborhood electronics store.)
By the way, don't tell our hard-working ISS commander about the Sony PS3 or he will beg NASA to get him one and I don't know if they have any connections at Circuit City.
11.14.2006
Satellite Finance in NYC
A reminder: ISCe Satellite Investment Symposium (ISIS) NYC '06 comes to my hometown on Nov. 28, 2006, at co-host Jones Day's law offices in mid-town Manhattan.Come on out and schmooze New York-style with hot-shot execs in satellite TV, satellite radio, mobile satellite, fixed satellite services, IPTV, broadcasters, digital TV/SyndEx and mobile video sectors of the satellite industry along with leading New York financiers and Wall Street folks. And their lawyers, too.
Jones Day, of course, is one of Earth's top global law firms with "more than 2,200 lawyers in 30 offices around the world." And the firm's senior telecommunications counsel, Del Smith, author of, for example, the classic book, Space Stations: International Law and Policy, as well as Communication Via Satellite, and lots more, is co-chairing the event.
Have a big apple satellite day.
* * *
Image credit: Boeing; and it looks like an illustration of DIRECTV-4S, a Boeing 601 HP satellite and here is some info on it.
* * *
UPDATE 11/15/06: This just in - FCC Commissioner Jonathan S. Adelstein will be the keynote speaker at ISIS NYC '06. Excellent. And I'm sure Adelstein will share valuable insights into, among other things, how the changeover of power in Washington may impact satellite business.
11.10.2006
SpaceLawTube [update]
It's been a hectic, high-drama week, and now, just in time for the weekend, I thought I'd share some nifty, relaxing, unstar-studded space law videos I've been collecting.Of course, no legal specialty -- not even space law -- quite lends itself to a glamorous multimedia makeover. Nonetheless, in keeping with our digital times, space law webcasts, videos and other action-unpacked offerings do pop up around webspace.
But no, you won't find any of these items making the hit lists on YouTube.
First, feast your eyes on a collection of space law videos from the 15th ECSL Summer Course on Space Law and Policy, which took place took place in Noordwijk, The Netherlands in September 2006. Here is the menu of available video presentations:
-- Mr. B. Smith (Alcatel) talks about intellectual property rights and why frequencies cannot be patented but orbits or their use can.
-- Dr. Jean Clavel (head of the astronomy division of the Directorate of
Science Programme of ESA) explains the universe and presents the ESA missions
Herschel, Plank and Lisa.
-- Mr. Jerome Bequignon (Directorate of Earth Observation of ESA) talks about the International Charter of Space and Major Disasters and the cooperative mechanism of disaster management.
-- Prof. R. Harris (University of London) discusses the legal policies in
place regarding earth observation data based on examples from the US, Europe,
Canada and India.
-- Prof. Frans van der Dunk (University of Leiden) talks about legal implications of space tourism."
And yes, in later posts, I summarize some of these interesting talks.
Next, via ESA TV (that's the European Space Agency), a feed from the European Commission's "Europe by Satellite" (EbS) service -- a five minute interview with ESA's Director of Legal and External Relations, Rene Oosterlinck, who is also a Professor of Space Law at Gent University in Belgium. The professor talks about who owns and regulates space and why space laws are necessary. (If this sounds familiar, I notice Clark Lindsey, Esq. had already found and linked this vodcast on HobbySpace.) By the way, for you true geeks -- and we know who you are -- don't worry, ESA TV provides satellite parameters on this: EUTELSAT HOT BIRD at 13° East (DVB/MPEG-2) Horizontal, F=12,476 MHz (MCPC, Europe by Satellite) SR=27,500 MS/sec, FEC=3/4. There.
(And, only for those who must, here is a PDF script of the video.)
Moving right along, we have a very scintillating item titled, Careers for the 21st Century: Space Lawyer, presented by, of all things, the Encyclopedia Britannica Online. The undated (but most likely circa late 20th century) clip features space lawyers Stewart Harris and George Robinson, both ready for their close-ups, talking briefly about their cool profession.
What else? As I've previously linked, from EuroNews, here's a short video on space law.
So kick back, pop some kettle corn, and watch littlele space law on the web. (And try to ignore -- and no I will not link -- that unfortunate YouTube clip, rebroadcast on MSNBC last night, of the guy shooting a bottle rocket from a part of his anatomy usually not reserved for, well, that sort of endeavor. And if the guy injured himself and calls asking for a lawyer, we don't know any.)
Keep in mind this space law stuff is videotaped and recorded exclusively on Earth. But if you are looking for action and images from space, rather than the unspectacular spectacle of lawyers on Earth yapping about space, tune in, for example, to NASA's historic first live high def broadcast from ISS -- that's next week.
And you don't need an ESApod to enjoy any of the above.
Pass the Goobers?
* * *
UPDATE 11/13/06: Ah. Over the weekend, an SLP reader and online video wrangler kindly shared with me the very strange and somewhat disturbing, George the Space Lawyer, a short flash animation featuring a rather nonscrupulous lawyer, a proposed plan to commit insurance fraud and a belligerent, talking log cabin that commits suicide. How did I miss this? The offering represents a genre all its own, and I would not necessarily be remiss to exclude it here since despite the catchy title, George is not really a space lawyer at all ;). But check it out for yourself. (And thanks for the link, CR!)
11.08.2006
Post-election Space
Up late watching election returns .... Hmm, didn't hear a single exit poll result that included the words "commercial space." OK, so this was not among the nation's top ten, or even twenty mid-term election issues. What are the implications of the big Congressional changeover for space interests? We will see. Meanwhile, as we await the final results on the Senate side, Space Politics contemplates some effects of the democratic takeover of the House on space issues. Uh-oh. Looks like Rep. Oberstar gets himself a chairmanship. We know about the congressman and his space regulatory activities. I agree with Jeff, there's not much in last month's GAO report to fuel Oberstar's desire to amend CSLAA. But then, he didn't need much encouragement before.
Ok, (not to change the subject, but...) a few non-election items today:
I'll save some items for later (in the event I post a Friday Flybys this week).
Meanwhile, perhaps someone ought to offer Speaker-to-be Nancy Pelosi a complimentary sub-orbital flight? That should give her some great perspective on new directions in space business.
11.06.2006
Canadian Space Chamber of Commerce
The first national meeting of the newly established Canadian Space Chamber of Commerce (CSCC), will take place at the Canadian Space Society's annual Space Summit at Carleton University in Ottawa, Nov. 18-19.According to its website, CSCC "represents entrepreneurs pursing commercial opportunities in space. The chamber promotes a favourable economic, legal and political environment for Canadian entrepreneurs in this field. Members of the chamber include leaders in space tourism and entertainment, launch services, engineering and manufacturing, space law ad corporate financing."
Our kind of group.
And by the way, over at the Space Summit itself, I note that space law professor Ram Jakhu, of McGill University, among other notable folks, is scheduled to speak.
11.03.2006
Friday Flybys - 11.03.06
Love this painting. (See credit below.)Vote early, vote often.
I am not Zack Space and I approved this blog post.
* * *
Image: A new Peter Max painting of the ever-smiling space explorer, Anousheh Ansari, via Space.com.
Commercial Space Risk Sharing Study
In case you can't wait for this to appear on FAA/AST's site (any day now), here is Dr. James A. Vedda's congressionally mandated, Study of the Liability Risk-Sharing Regime in the United States for Commercial Space Transportation, which, as I noted, Dr. Vedda outlined at the recent COMSTAC gatherings. (He graciously forwarded the document to me this week, and I'm happy to post it.)
Space Politics blog also comments on the study.
And by the way, also in the "show me the money" department, here's something different but also quite interesting that is available on FAA/AST now: Funding Resources for Launch Vehicle and Spaceport Technology Research and Development (Oct. 2006).
Space Politics blog also comments on the study.
And by the way, also in the "show me the money" department, here's something different but also quite interesting that is available on FAA/AST now: Funding Resources for Launch Vehicle and Spaceport Technology Research and Development (Oct. 2006).
11.02.2006
Commenting on ULA
The public comment period is closed and the FTC has posted feedback submitted in connection with the consent agreement in the matter of United Launch Alliance -- the proposed joint venture between Lockheed and Boeing.Here are the comments filed by Northrop Grumman (by VP and general counsel Stephen D. Yslas) and SpaceX (by VP for international and government affairs Lawrence H. Williams).
As expected, and as it has argued all along (including in federal court,) SpaceX comments that the ULA merger "violates the United States antitrust laws" (that's right, section 7 of the Clayton Act and section 5 of the FTC Act, and Larry Williams does not mind repeating himself on this). Further, "DoD' s unsubstantiated assertion" of "national security benefits flowing from ULA" is "not an effective defense against an otherwise illegal merger."
SpaceX says the consent agreement "wholly ignores any concerns about the creation of a horizontal monopoly in the EELV market."
SpaceX concludes the FTC "should not allow the ULA, an anti-competitive venture, to proceed" however, if the Commission does permit the JV to go forward, it must take further steps to limit ULA's monopoly power by conditioning its approval on Boeing's and Lockheed Martin's acceptance of a consent decree containing certain "remedial provisions" to "help mitigate the loss of competition." SpaceX's proposed remedies include: "prevent the ULA from using its monopoly power and government subsidies to distort competition outside of the defense market" by requiring "total cost-disclosure" and "reimbursement." It also suggests eliminating multi-year launch allocations. Read the whole comment.
For its part, Northrop tells the FTC, "the creation of the durable launch services monopoly embodied within the ULA will end Northrop's ability to rely on the safeguard of competition; but, it will not end Northrop's dependence on Lockheed, Boeing and the ULA for launch services."
Northrop agrees with Commissioner Harbour's concurring statement that "a highy regulatory system of oversight by a 'compliance officer' appointed by the Secretary of Defense... would not be considered an effective remedy" against competitive harm.
The company spends a good part of its 4-page submission discussing its concerns about the confidentiality provisions of the proposed ULA consent order and the Transition Services Agreements. "In fact, it appears there is a hole in the confidentiality wall through which Northrop information may pour."
The company is concerned about Boeing's and Lockheed's "incentive to share confidential Northrop information" and asks how its confidentiality will be protected. It also wants to see a current version of the Boeing-Lockheed Master Agreement, as amended. (So would I.)
That's it. Only two sets of comments submitted. I'll check back to see if the FTC adds others. And I'm surprised Citizens Against Government Waste, for example, an outspoken critic of the ULA deal did not weigh in. (No matter, CAGW is cited on page one of SpaceX's comments.)
It's FTC's move. (And I'll keep my comments to myself about what I think that may be.)
11.01.2006
Rocket Ride Waivers
Some lawyers and commercial space industry folks can't stop thinking, talking and writing about liability waivers. And with good reason. In its 4th Quarter 2006 Quarterly Launch Report, FAA/AST includes a short (four-page plus footnotes) section entitled, Waivers of Liability: Are They Enough for Permittees and Licensees?A good question. As we know, and FAA overviews here, under the CSLAA, "crew and each space flight participant must execute a reciprocal waiver of claims with the FAA." However, the statute "does not require crew and space flight participants to waive claims against each other or against a licensee or permittee." Thankfully, as FAA notes, "[e]ven though the federal government does not explicitly require it, licensees and permittees can still protect themselves by using contractual waivers."
A liability waiver (or, release, exculpatory clause,) is "a voluntary forfeiture of rights to causes of action otherwise available." And FAA says a bit about assumption of risk doctrine, then offers an overview of some key issues in waiver construction.
By the way, as FAA points out, liability for intentional torts, willful or wanton misconduct, or gross negligence cannot be waived. (Even I remembered that from law school.)
Drafting spaceflight participant liability waivers necessarily depends on the jrisdiction you are in. State law controls here and proper drafting is critical since courts of course do not love waivers and will quickly throw out defective ones. The FAA offers a round-up of major "limits on waiver effectiveness for states where personal space flight is being contemplated" which I've taken the liberty of copying here (and see the report for citations):
Alaska
• Use of the word negligence is mandatory.
California
• For waivers to be valid they should distinguish between injuries due to negligence and those due to the inherent risks of activity.
• Case law is not clear if the word “negligence” is mandatory to validate a waiver.
• Parents may execute waivers on behalf of a minor child.
Florida
• Waivers release all sponsors or parties even if not named in the waiver.
• Damages of parent’s loss of filial consortium is limited to the period of a child’s minority.
• Law unclear on whether a parent can waive a minor’s rights.
New Mexico
• State has a strong public policy of freedom to contract.
Oklahoma
• Public policy does not prohibit waivers, but since they are not favored by law they will be construed against the relying party.
• State Supreme Court stated gross negligence cannot be waived.
Texas
• Waiver will be narrowly construed in favor of the party releasing liability.
• Strict requirement for fair notice.
• Both loss of consortium and wrongful death are derivative of the claim of the injured spouse.
• Case law is unclear on whether gross negligence can be waived.
Virginia
• Public policy forbids releases from liability for personal injury due to future acts of negligence “universally.”
Washington
• Waivers will only protect the service provider from those risks contemplated or assumed by the client.
• Parental consortium is an independent cause of action.
• The Supreme Court has stated that Washington courts should use common sense in interpreting waivers.
• Gross negligence or willful and wanton misconduct cannot be covered.
• Parents cannot waiver childrens’ rights, but parents can waive their right to recover for the injury to the minor.
Wisconsin
• Supreme Court stated that each waiver case would be decided on its merits under strict scrutiny.
• While wrongful death claims are derivative of claims by injured parties, loss of consortium is an independent cause of action.
• Waiver signed by the parent on behalf of a minor is enforceable.
And FAA concludes:
Although the CSLAA does not protect launch providers explicitly from space flight participants’ claims of liability, the industry is not defenseless. Properly constructed waivers are now used successfully by other recreational activity industries and can also be used by the personal space flight industry. Further, the opportunity to lobby for state legislative protection is still available. Considering the strong public support enjoyed by the commercial space industry, creating a system of waivers seems to be quite an achievable task.
Image credit: “Sky Scooters” 1950's ad, via Lileks.com
