SUBORBITAL ACTIVITIES
AND THE NEED FOR LEGAL
REFORM
Benjamyn Ian Scott
benjamyn.scott@gmail.com
KEEP IN MIND
 Under current international law there is no definition of suborbital,
suborbital activities or suborbital vehicles.
SPACE LAW – OUTER SPACE TREATY
 The Outer Space Treaty, Article VII:
“Each State Party to the Treaty that launches or
procures the launching of an object into outer
space, including the moon and other celestial
bodies, and each State Party from whose
territory or facility an object is launched, is
internationally liable for damage to another State
Party to the Treaty or to its natural or juridical
persons by such object or its component parts
on the Earth, in air or in outer space, including
the moon and other celestial bodies.”
SPACE LAW – LIABILITY CONVENTION
Liability Convention, Article VII:
“The provisions of this Convention shall not apply to
damage caused by a space object of a launching State
to:
(a) nationals of that launching State;
(b) foreign nationals during such time as they are
participating in the operation of that space object
from the time of its launching or at any stage
thereafter until its descent, or during such time as
they are in the immediate vicinity of a planned
launching or recovery area as the result of an
invitation by that launching State.”
NATIONAL LAW – IN THE UNITED STATES
 Title 51 U.S.C. § 50905(5):
“(A) The holder of the license or permit has informed the space flight participant in
writing about the risks of the launch and reentry, including the safety record of the
launch or reentry vehicle type …
(B) The holder of the license or permit has informed any space flight participant in
writing, prior to receiving any compensation from that space flight participant …
(C) … The space flight participant has provided written informed consent to
participate in the launch and reentry …”
Fly At Your Own Risk
Information and Consent
NATIONAL LAW – IN EUROPE
 Council Directive 93/13/EEC (1993) Unfair
Terms in Consumer Contracts. “excluding or
limiting the legal liability of a seller or supplier
in the event of the death of a consumer or
personal injury to the latter resulting from an
act or omission of that seller or supplier” may
be regarded as unfair.
 France: Under the general principle of civil
liability, such a waiver whether by contract or
by unilateral declaration, would likely be
unenforceable as far as human injury or death
is affected.
AIR LAW – MONTREAL CONVENTION
 Montreal Convention, Article 17:
1.
“The carrier is liable for damage
sustained in case of death or bodily
injury of a passenger upon
condition only that the accident
which caused the death or injury
took place on board the aircraft or
in the course of any of the
operations of embarking or
disembarking.”
AIR LAW – AIRCRAFT
 Montreal Convention, Article 1:
1.
The transportation vehicle must be an ‘aircraft’. Aircraft has been defined in
the CC44’s Annexes.
“Any machine that can derive support in the atmosphere from the reactions of the
air other than the reactions of the air against the earth’s surface.”
Broad application of the term ‘aircraft’ under the MC99
 Gliders: Mount Beauty Gliding Club Inc. v Jacob,VSCA 151 [2004].
 Balloons: Disley v Levine, 45 1 WLR 785 (CA) [2002].
 Helicopters: Case C-6/14 Wucher Helicopter GmbH v Fridolin Santer.
AIR LAW – INTERNATIONAL CARRIAGE
 Montreal Convention, Article 1:
1.
It “applies to all international carriage of persons, baggage or cargo performed by
aircraft for reward. It applies equally to gratuitous carriage by aircraft performed
by an air transport undertaking.”
 Article 1(b): “the place of departure and the place of destination … are situated
either within the territories of two States Parties, or within the territory of a
single State Party if there is an agreed stopping place within the territory of
another State”.
 A to A carriage via outer space
 A to A carriage via another State
 A to B journey via outer space
AIR LAW – EXCLUSIVITY
 Montreal Convention, Article 29:
“In the carriage of passengers, baggage and cargo, any action for
damages, however founded, whether under this Convention or in
contract or in tort or otherwise, can only be brought subject to the
conditions and such limits of liability as are set out in this
Convention without prejudice to the question as to who are the
persons who have the right to bring suit and what are their
respective rights. In any such action, punitive, exemplary or any
other non-compensatory damages shall not be recoverable.”
 Sidhu v British Airways 1997 (UK)
 Tony Hook v British Airways 2011 (UK)
 Mc Auley v Aer Lingus 2011 (Ireland)
 Thibodeau v Air Canada 2012 (Canada)
 Paradis v Ghana Airways 2004 (US)
AIR LAW – LIMITATION OF LIABILITY
 Montreal Convention, Article 26:
“Any provision tending to relieve the carrier of
liability or to fix a lower limit than that which is
laid down in this Convention shall be null and
void, but the nullity of any such provision does
not involve the nullity of the whole contract,
which shall remain subject to the provisions of
this Convention.”
REFORM
Use the existing laws?
Adapt the existing laws?
Sui Generis?
 Content: sovereignty, jurisdiction, liability, responsibility, registration,
ownership, safety, and security
 Overlap: Jurisdiction
 Dichotomy: Sovereignty
 New: Passenger Liability
THANK YOU!
BENJAMYN.SCOTT@GMAIL.COM
Benjamyn Ian Scott, ‘International Suborbital Passenger Transportation: An Analysis of the Current Legal Situation of
Transit and Traffic Rights and its Appropriate Regulation’, Issues in Aviation Law and Policy (May 2015).
Benjamyn Ian Scott, ‘The Regulation of Personal Injuries in International Carriage by Suborbital Vehicles under Air Law’,
15(2) The Aviation and Space Journal 20 (2014).