Sorry that I haven’t had much of the will to blog lately. It’s not that I’ve been too busy, just that I needed to recuperate a bit after the last several weeks. Anyhow, I wanted to link to the much improved “Governor’s Amendment” version of Virginia’s Spaceflight Liability and Immunity Act that Jesse Londin just posted on Space Law Probe.
At Space Access they mentioned that the good intentioned individual who had drafted the original law actually had a background in I think it was something like farm tourism or ecotourism or something like that(?!?) and had borrowed heavily from a recent bill on that topic. The newer language is a lot better (though hats off to the guy who got this started, even if it did need some polishing), including more closely linking it to the federal regulations like the CSLAA. The biggest improvement though is how well it cleaned up the language regarding exceptions to the act. Here is the original text before the governor’s amendment:
B. Nothing in subsection A shall prevent or limit the liability of a spaceflight entity if the spaceflight entity does any one or more of the following:
1. Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and that act or omission proximately causes injury, damage, or death to the participant;
2. Has actual knowledge or reasonably should have known of a dangerous condition on the land or in the facilities or equipment used in the spaceflight activities and the danger proximately causes injury, damage, or death to the participant; or
3. Intentionally injures the participant.
And here’s the governor’s amendment:
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.
Much better, no? The original language left loopholes so big that they would’ve almost completely eliminated any benefit of passing the bill. “Reasonably should have had knowledge” can mean just about anything a lawyer wants. Also notice that the word change from “gross negligence or willful or wanton disregard” to “gross negligence evincing willful or wanton disregard”.
I’m not a space lawyer, but I have to say this governor’s version seems a lot more solid, and a lot more along the lines of what I think the intent of the Congress and Senate of Virginia thought they were passing originally. If they ok this, and this becomes law in Virginia, I think it will mark a huge step forward for the personal spaceflight industry. As mentioned at Space Access, it’ll be important to start following on to this with similar bills in other space states including Oklahoma and New Mexico (and possibly Wyoming, Florida, and eventually California).
Good job guys!
Jonathan Goff
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I dimly recall (probably just need to scroll down a couple of pages) that Virginia was more of a problem since one couldn’t waive their right to sue. Do any of the other states in question have similar problems with their liability laws?
Karl,
Yeah, as I understand it, Virginia is a particularly bad case. Not sure if any of the other “space states” have laws that broken. However, since it is state law (not federal) that governs torts, I would think that even with the CSLAA liability waiver language, that you would need the state you were operating out of to adopt similar language to get reasonable legal risk reduction.
So even if most other states were starting from a better position than Virginia re: waivers of liability/assumption of risk, they still need it on the state law books that their state will operate that way. And having an example of a state that has passed a solid liability immunity act like this should help quite a bit.
At least, that’s my take.
~Jon
The FAA 4th Quarter 2006 Launch Report contains a Special Report on state liability law relating to commercial space launches. It is well worth the read for those interested. And, Jon you are correct. The states with active spaceports had best start looking to the Virginia model.
Virginia is rated first in the nation as a pro-business state. This is just the first legislative salvo coming to boost the FAA-licesned commercial Mid-Atlantic Regional Spaceport. The measure may, hopefully, result in lower insurance cost for commercial launch firms.
I have no idea where the comment about the first draft bill relating to “farm tourism” started but it is an error and no less than absurd and very condescending. Just a little sidebar colour I suppose.
The bottomline RESULTS are all that count. Standby for Virginia to be ‘5×5’ on Spaceflight Laibility and Immunity effective July 1, 2007.
Jack,
Yeah, it’s the final draft that matters, and as I said, the final draft is much better. As for the farm/ecotourism thing…I’m just reporting what I heard. Now I may have mangled it a bit (I don’t have my notes on hand), but that’s what I remembered hearing. Wasn’t trying to be denegrating at all. Whoever took the lead on getting that first draft rolling deserves a lot of praise and respect, regardless of what their background is, or any flaws in the first draft of the bill. As you say, it’s the end results that matter most in a situation like this.
~Jon
Sic Semper Tyrannus.
Virginians rock!