Houston, We Have a (Liability) Problem

The development of private manned space flight is proceeding rapidly; there are proposals to launch paying passengers before the end of 2014. Given the historically dangerous nature of space travel, an accident will probably occur at some point, resulting in passengers’ injury or death. In the event of a lawsuit stemming from such an accident, a court will likely find that a space flight entity operating suborbital flights is a common carrier, while an entity operating orbital flights is not. Regardless of whether these entities are common carriers, they face a threat of high levels of liability, as well as risks stemming from an inability to obtain insurance and the escalation of tort litigation costs. Given that the private manned space flight industry is brand new and can provide many benefits to the United States and the world, it is important to protect the industry while it grows. Individual states have attempted to protect the industry by passing liability immunity statutes, but passing statutes on a state-by-state basis is insufficient to protect the industry from the liability it faces. As a result, this Note proposes a national tort liability immunity statute to shield the industry until it reaches a more advanced stage of development.