The Excitement of Suborbital Flights like Virgin Galactic’s are Less and Less Exciting

As Virgin Galactic begins to offer suborbital flights, there is a sense of realness that strikes, that space tourism is now happening. (Space News). The goal now is to facilitate healthy development. As it stands, space tourism faces an inconsistent patchwork of legal uncertainty at various levels of authority. This article offers a description of the kinds of legal uncertainty that currently impact space tourism operations like Virgin Galactic’s.

As commercial interests in outer space proliferate, the prospect of space tourism becomes an immutable consequence. The prospect of creating commercially available orbital travel has a lucrative allure. There are two areas in which commercial enterprises are most likely to compete: suborbital flights and orbital flights. Suborbital flights involve a spacecraft remaining in orbit for a small, limited window of a few minutes. Orbital flights, by contrast, involve prolonged duration in orbit, and the spacecraft can remain in space from its original launch energy. Orbital flights involve space flight participants remaining in orbit for days or visiting the ISS. 

The reason to distinguish between the two types of tourism is that they have different technologies. Suborbital flights require less energy and are cheaper, while long orbital flights require heavier launch components and more extended oversight. Orbital tourism would include trips to space stations or circumnavigating the earth in a spacecraft. In addition, they also have legal consequences associated with them.

Virgin Galactic is a player in the suborbital market, meaning the space flight participants experience a limited duration in orbit. As the reality of space tourism is immutable and previously unanswered questions regarding its legality will inevitably be answered, whether proactively or incidentally. Suborbital spaceflights conducted from the United States face three international, federal, and state legislative levels.

International treaties are silent on commercial interests in outer space, but their language covers them in some circumstances. However, due to the lack of precedent, one can always argue that an international space treaty does not apply to commercial entities. Federal Law imposes several obligations upon individual spaceflight entities regarding each other. They require space flight entities to engage in cross waivers when involved jointly in a launch venture. Lastly, state requirements modify existing requirements for space flight operators concerning their services to spaceflight participants.

The International Level. 

 Suborbital tourism, for example, poses a challenging threshold question of whether space law even applies. Answering this entails defining where airspace ends, and outer space begins, which has been a question that has generated numerous working definitions. Virgin Galactic's voyage that took Richard Branson into outer space reached an altitude of 92km, which is high enough to experience properties of zero gravity but is still below the Karman line, which sits at 100 km. A definitive boundary to where space starts may have unintended consequences. For example, suborbital space tourism providers may avoid liability from space laws by conducting their flights below a certain altitude. It would still functionally be the same suborbital experience, as a passenger would not be able to tell the difference between being at 90 km or 110 km. (New York Times).

One solution may be to subject all suborbital space tourism providers to space law, regardless of the activity's altitude. However, such legislation must synthesize with other conventions. Determining where space begins is just as consequential as determining where airspace ends. The Montreal Convention governs international law governing damage sustained b people in air accidents. So, a suborbital flight is subjected to the Montreal Convention but the outer space liability convention in others. (Hobe, Nebraska Law Review).  

At the international level, there is a question of how commercial space flight participants fit within the context of the traditional outer space treaties. The Outer Space treaty and its cousins, the liability convention, the ARRA, the registration convention, and the moon agreement were all incepted during a period in which the prospect of commercial activity in outer space was far into the future. The drafters of the conventions had the idea that governments would be the only entities capable of utilizing outer space effectively. Within the context of Space Tourism, it then becomes challenging to acquiesce to what protections spaceflight participants of Virgin Galactic would have at the international level.

The ARRA uses the terms "astronaut" and "personnel aboard a spacecraft" interchangeably. Like most international definitions, it remains undefined in the treaty to allow state practice to develop the concept. However, the lack of claims under the ARRA has left the concept stagnant. So, there are two levels of uncertainty, uncertainty for what constitutes "personnel" aboard a space object and whether space flight participants meet that definition. (The Rescue Agreement).

The Agreement to Rescue and Return Astronauts is somewhat of a moot point for Virgin Galactic's current operations. Applied to virgin Galactic, the Rescue Agreement will provide extraordinarily little value in practice. Should a Virgin Galactic flight go awry, the flights do not reach a sufficient altitude to remain in orbit. So, any state that can render assistance has a prohibitively small amount of time to do anything before the spacecraft falls back to earth. In the unlikely event, the spacecraft gets stuck in orbit somehow. Then the Rescue Agreement may be of some use.

Passengers aboard a Virgin galactic spacecraft could only questionably be considered "astronauts" or "personnel" under the rescue Agreement. It would also be challenging to argue to drafters of the convention intended for it to apply to everyone in space or just people performing specific functions. Idealistically, countries should render international assistance to everyone in outer space as they would a ship at sea. However, suborbital tourism is treated more like an expedition through the Himalayas. Therefore, there is uncertainty regarding what states would have to do if a Virgin Galactic spaceflight goes awry and becomes stranded in orbit. The Rescue Agreement would oblige contracting states to render immediate and necessary assistance when possible and obliges states to coordinate efforts amongst themselves to render assistance effectively. The language of the Rescue Agreement would only oblige states to render assistance when the imperiled person is an astronaut. So stranded passengers aboard a virgin galactic spacecraft may consider how countries are obliged to come to the rescue.

Fortunately, the considerable international acceptance of the Rescue Agreement should console any passenger fearing this situation as a rescue mission, in theory, only needs one rocket.

Another complication regarding space tourism arises from the Outer Space Liability Convention. Suppose a space tourist is also a foreign national injured or killed in suborbital spaceflight. That nationals state may be able to seek compensation against the United States if they can adequately attribute fault.

Federal Level. 

There is also legislation that obliges entities involved in launch services to abide by specific requirements at the federal level. Activity in Outer space is tremendously risky and insanely expensive. But offers lucrative efforts and provides benefits to general society. Federal law requires cross waivers to mitigate risk for space flight activity, thereby incentivizing commercialization.(14 C.F.R. § 1266.104 ).

There are multiple entities usually involved in any space flight. Cross waivers serve to insulate each entity from liability against each other. Current legislation obliges all parties to space flight to sign cross waivers of claims, including space flight participants. However, it should be noted that in 2025, the statute removes space flight participants from this requirement. Space flight participants do not need to sign cross waivers. Consequently, it then seems that by 2025, space flight participants will be able to bring claims against providers of space tourism or other entities involved in the launch services, at least on the federal level. 

An injured spaceflight participant may have recourse against some entities providing launch services at the federal level. This removal serves to boost the competitiveness of providers of spaceflight tourism. Financial claims against space tourism providers may also have a lasting effect on the insurance market, creating an added financial risk to insurance companies. On the flip side, a bolstering space tourism sector is a solid foundation to facilitate the emergence of suborbital transportation and other commercial outer space applications.

State Level

Some gaps are left in the FAA's protection given to space flight participants at the national level. Most statutes protect individual space flight entities, those entities involved in the launch services, from liability from each other. The government must also sign waivers on behalf of its governmental activities involving outer space. Even though waivers are already federally mandated, state laws also impose their waivers. A court has never decided whether the federal waiver requirement preempts the state laws, as there has been no litigation. So, there is a glaring inconsistency because federal law will allow space flight participants to bring claims against operators. In contrast, state laws continue to require space flight participants to sign waivers. Federal courts also have not decided the validity of state waivers, and state courts have not interpreted the fairness or constitutionality of their own waivers. 

There are different rules for space flight participants imposed by state law to fill in gaps left by the federal framework. As a result, some states offer different protections to space flight participants than others. So not only is there inconsistency between federal and state laws, but there are also inconsistencies between several states. 

In general, there is a duty that a space flight operator owes to space flight participants, similar to a duty that airliners would cause woe to their passengers. However, due to the inherently risky nature of space flight, suborbital flights are legally more akin to Himalayan expeditions. At the State level there, space flight participants are often required, by state law, to sign waivers. These limit a spaceflight participant's claims toward a launch operator rendering space flight services. The waivers only apply to a certain extent, so a space flight operator may still bring a claim against a spaceflight operator when the space flight operator breaches their standard of care. However, Different states impose a different standard of care owed to space flight participants. Some jurisdictions do not allow waivers to cover claims when the operator is grossly negligent. Other jurisdictions raise this standard to only willful and wanton acts.

In other words, whether a spaceflight participant can sue a spaceflight operator for injury incurred during a space flight activity depends heavily upon the jurisdiction that sets the standard for the late level of care. So, waivers are only as effective as state law permits them.

State law also applies further complications to different spaceflight participants. Some states incorporate an inherent risk doctrine, which limits the liability of space flight operators. The doctrine states that defendants are not liable for injuries sustained from activities involving an inherent risk when such injuries arise from risky activity. The state that inspired this rule provides almost total immunity to space flight operators that may injure space flight participants.

Virgin Galactic operates out of New Mexico, whose statute effectively bars claims by space flight participants for injuries resulting "exclusively" from the inherent risks of space travel. As there is yet to be a case concerning precisely how excusably from inherent risk differs from an injury arising out of inherent risk is yet to be determined, as no court has interpreted the statute. So, Space flight participants aboard Virgin's first flights out of New Mexico are subject to the three different sets of laws at the international level, the federal level, and the local level of New Mexico. There is, therefore, considerable uncertainty regarding whether an injured space flight participant would be able to bring a claim against Verigin Galactic. The language of the New Mexico statute is too uncertain to ascertain when an injury exclusively results from a spaceflight activity, and one scholar has pointed out at least five ways in which this statute is uncertain. (Hobe, Nebraska Law Review).  

The emergence of Virgin Galactic’s first flights illustrates a fascinating juncture in the broader commercial space sector. Also entering the market is Blue Origins, and as more entities come into play and the competition will hopefully incentives wider availability in the future. Now, a ticket aboard a virgin galactic flight sits at $250,000, well out of the price range of most people. However, commercial air travel was also a privilege once a privilege also reserved for the wealthy; the first commercial services for Zeppelin travel cost $ 11,000 in today’s dollars. It was not until a sufficient market developed to make the cheaper options were available to the wider public. Now a plane ticket to New York from Denver can be found for about $300 and the flight is both quicker and safer. Albeit it’s likely less enjoyable than a Zeppelin ride. Air travel is now so intertwined with modern society that many people consider it annoying rather than a luxury. There was a period when every plane that flew overhead was sheerly awe-inspiring, and passengers lucky enough to be on board were thrilled by their aviator status. Now people find jets flying above a minor nuisance while trying to have a conversation outside, and people flying aboard aircraft are usually disgruntled by all the hoops they have to jump through at security, ticketing, arranging transportation etc.  The hope is that space tourism will follow this same trajectory, where in the future the average person will be able to get to New York in minutes and not hours, will find that space flight is safer than driving, and find the process of going through spaceport security, annoying.