Space Torts!

It’s been a big month for mankind’s space exploration. On August 5, NASA’s “Curiosity” rover executed a technically flawless controlled crash-landing onto the surface of Mars. Hopefully, once and for all, we’ll establish that our red-tinged neighbor is both rocky and barren. Haha! Just kidding, NASA. This is a totally cool project that is sure to reap tremendous scientific dividends. Great work; keep it up.

This piqued my interest about space torts, though. Who is liable in the event that a space vehicle—or more realistically, a piece of a space vehicle—comes crashing back to earth, causing injury or damage to the people down below? Somewhat to my surprise, this unusual legal question appears to have an answer. Granted, this circumstance doesn’t happen often. The rigors of atmospheric re-entry usually solve the issues presented by falling space debris long before they can become a problem. However, from time to time, what goes up makes it all the way back down. For example, in 1978, the Soviet-launched Cosmos 954 satellite crashed in Canada. In 1979, the United States’ Skylab crashed in Western Australia. And in 2011, debris from the United States’ UARS satellite crashed in Canada. So, there’s some concern that at some point, some space vehicle that’s outlived its useful life will go out in a true-life blaze of glory, and it may very well cause personal injury or property damage that should be compensated.

So who do we sue and how do we do it? This is largely determined by identifying, first, who launched the vehicle, and second, where the injury was sustained. In many cases, the country that launched a space vehicle is not going to be the country where the object comes crashing down. In these cases, the procedure for determining liability and obtaining compensation is addressed by the 1972 Space Liability Convention. The SLC provides that claims for personal injury or damage must be presented and resolved through international diplomatic channels; however, this does not necessarily displace any ordinary judicial process that may otherwise be available.

But what happens if a United States vehicle comes crashing back to Earth on United States soil? Presumably, in these cases, a person’s claim for injuries or damages could be pursued through the Federal Tort Claims Act, 28 U.S.C. § 2674. The specific procedure for bringing claims against the Government is laid out at 28 U.S.C. § 1346(b). Furthermore, the statute of limitations for claims under the FTCA is two years, 28 U.S.C. § 2401(b), and the only damages that can be awarded are those that are available under the law of the state in which the case is tried. In other words, if the state has an applicable cap on governmental liability, the feds get the benefit of that cap.

It’s actually somewhat quaint that we would be talking about liability for “space torts” in terms of the country that launched the vehicle. Most countries that engage in space exploration are able to do so only because they contract with private industry. To that extent, the economy of space exploration is sophisticated, globalized, and comprised of relatively few actors within private industry that have that resources and expertise available to support a country’s efforts to go into space. Therefore, in the event that a space vehicle comes crashing down, it may be wise to consider (from a litigation perspective) who the private industrial actors were who built and operated the vehicle, because they may be the same actors regardless of whether the vehicle is American, Russian, European, or Chinese.

In any event, there is almost a zero-percent chance that you will be impacted (haha…) by falling space junk. And if you are, then you probably won’t care about any of this discussion. Because, frankly, fate had cast your lot and it was time to go.

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