Governor's amendent to Virginia space law
You'll note a number of improvements reflected in this version. Some top flight space lawyers advised the governor on this -- Jack Kennedy has the scoop on the whole fascinating process. For now, SLP congratulates the Personal Spaceflight Federation team of lawyers and everyone involved in putting together this landmark legislation.
First, the governor's amendment goes a long way to bring the bill into sync with the federal Commercial Space Launch Amendments Act (49 U.S.C. § 70101, et seq.) This focus and clarity was missing initially. The bill cites the federal statute; incorporates federal definitions as well as CSLAA's and FAA's "informed consent" scheme; federal language is added to the warning statement, etc.
Now, participants must be informed of the risks of spaceflight and acknowledge and consent ("... a spaceflight entity is not liable for a participant injury resulting from the risks of spaceflight activities, provided that the participant has been informed of the risks of spaceflight activities as required by federal law pursuant to federal law and this article, and the participant has given his informed consent...")
One big hole, the existence of liability if the spaceflight provider had "actual knowledge or reasonably should have known of a dangerous condition," is eliminated. (What were they thinking??) (You should see some of the email I got on that. Hey, I didn't write the provision.)
"Participant injury" is defined.
"Inherent risk" is now "risk." Period.
“Participant’s representative” is clarified.
Also, new language in the warning and acknowledgement statement: "I have been given the opportunity to consult with an attorney before signing this statement." (Yup, more work for space lawyers ;)
Take a look.
* * *
HOUSE BILL NO. 3184
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Governor on March 26, 2007)
(Patron Prior to Substitute--Delegate Kilgore)
A BILL to amend the Code of Virginia by adding in Chapter 3 of Title 8.01 an article numbered 24, consisting of sections numbered 8.01-227.8 through 8.01-227.10, relating to the promotion of spaceflight in Virginia.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding in Chapter 3 of Title 8.01 an article numbered 24, consisting of sections numbered 8.01-227.8 through 8.01-227.10, as follows:
Spaceflight Liability and Immunity Act.
§ 8.01-227.8. Definitions.
For purposes of this section:
"Participant" means any space flight participant as that term is defined in 49 U.S.C. § 70102.
"Participant Injury" means any bodily injury, including death; emotional injury; or property damage sustained by the participant.
"Spaceflight activities" means launch services or reentry services as those terms are defined in 49 U.S.C. § 70102.
"Spaceflight entity" means any public or private entity holding, either directly or through a corporate subsidiary or parent, a license, permit, or other authorization issued by the United States Federal Aviation Administration pursuant to the Federal Space Launch Amendments Act (49 U.S.C. §70101 et seq.), including, but not limited to, a safety approval and a payload determination. "Spaceflight entity" shall also include any manufacturer or supplier of components, services, or vehicles that have been reviewed by the United States Federal Aviation Administration as part of issuing such a license, permit, or authorization
§ 8.01-227.9. Civil immunity for spaceflight entities.
A. Except as provided in subsection B, a spaceflight entity is not liable for a participant injury resulting from the risks of spaceflight activities, provided that the participant has been informed of the risks of spaceflight activities as required by federal law pursuant to federal law and this article, and the participant has given his informed consent that he is voluntarily participating in spaceflight activities after having been informed of the risks of those activities as required by federal law and this article. Except as provided in subsection B, no (i) participant, (ii) participant's representative, including the heirs, administrators, executors, assignees, next of kin, and estate of the participant, or (iii) any person who attempts to bring a claim on behalf of the participant for a participant injury, is authorized to maintain an action against or recover from a spaceflight entity for a participant injury that resulted from the risks of spaceflight activities.
B. Nothing in subsection A shall prevent or limit the liability of a spaceflight entity if the spaceflight entity does either of the following:
1. Commits an act or omission that constitutes gross negligence evidencing willful or wanton disregard for the safety of the participant, and that act or omission proximately causes a participant injury; or
2. Intentionally causes a participant injury.
C. Any limitation on legal liability afforded by this section to a spaceflight entity is in addition to any other limitations of legal liability otherwise provided by law.
§ 8.01-227.10. Warning required.
A. Every spaceflight entity providing spaceflight activities to a participant shall have each participant sign the warning statement specified in subsection B.
B. The warning statement described in subsection A shall contain, at a minimum and in addition to any language required by federal law, the following statement:
"WARNING AND ACKNOWLEDGEMENT: I understand and acknowledge that, under Virginia law, there is no civil liability for bodily injury, including death, emotional injury, or property damage sustained by a participant in spaceflight activities provided by a spaceflight entity if such injury or damage results from the risks of the spaceflight activity. I have given my informed consent to participate in spaceflight activities after receiving a description of the risks of spaceflight activities as required by federal law pursuant to 49 U.S.C. § 70105 and 14 C.F.R. § 460.45. The consent that I have given acknowledges that the risks of spaceflight activities include, but are not limited to, risks of bodily injury, including death, emotional injury, and property damage. I understand and acknowledge that I am participating in spaceflight activities at my own risk. I have been given the opportunity to consult with an attorney before signing this statement."
C. Failure to comply with the requirements concerning the warning statement provided in this section shall prevent a spaceflight entity from invoking the privileges of immunity provided by this article.
2. That the provisions of this act shall expire on July 1, 2013.
* * *
IMAGE: Mid-Atlantic Regional Spaceport, Wallops Island, Virginia; courtesy Steve Earley, The Virginian-Pilot