Liability for Injury and Damage From Satellite Reentry
May 6, 2008
The February 2008 U.S. Navy shoot-down of a U.S. spy satellite that fell out of orbit has raised to the forefront the potential liability that can arise from personal injuries and/or property damage caused by the reentry of satellites from space into the earth’s atmosphere and/or incidents of damage caused by launch failures. Such liabilities are governed by international treaties, such as the Convention on International Liability for Damage Caused by Space Objects (the Convention) and/or by the laws of various states. An examination of liability issues under the Convention and under state laws follows.
Accidents Caused by Satellites Reentering the Atmosphere or by Launch Failures
Incidents of personal injury and/or property damage caused by objects reentering the atmosphere, or due to launch failures, are rare. This can be attributed to various factors. Since approximately 70 percent of the earth’s surface is covered by water, odds are that objects reentering the atmosphere from space will not strike land. Another factor that diminishes the risk of harm when satellites fall from orbit is that they generally burn up upon reentry into the earth’s atmosphere.
Due to the catastrophic risks associated with a launch failure, most satellites are launched from remote, sparsely populated locations. For example, satellites are launched by Russian-made Proton rockets from the Baikonur Cosmodrome in Kazakhstan. French-made Ariane rockets launch satellites from the Atlantic coast in Korou, French Guiana, and the Sea Launch Company, LLC offers satellite launches from a platform in the Pacific Ocean near the equator.
Incidents of personal injury and property damage occasioned by launch failures, while rare, nevertheless, have occurred. For example, on February 14, 1996, a Chinese Long March launch vehicle failed mere seconds after the intentional ignition of its engines. Chunks of the 10-story launch vehicle, together with toxic rocket fuel, poured onto a village near the launch site, the Xichang Space Launch Center. According to statistics provided by the Chinese government, 80 houses were destroyed and 56 fatalities occurred. An $85 million Intelsat 708 satellite carried by the launch vehicle was also destroyed. John Mintz, “Missile Failures Led To Loral-China Link,” Washington Post, June 12, 1998, at A12.
Similarly, on July 5, 1999, a Russian Proton rocket, which was launched from the Baikonur Cosmodrome in Kazakhstan, exploded. As a result, hepthyl, a highly toxic propellant used in the Proton, showered the area below and allegedly caused contamination. Moreover, an 80-ton rocket fragment struck the ground and other debris crashed onto residential property. Anatoly Zak, “Baikonur Launches Will Resume This Month, Proton Grounded until 2000,” Space News, Nov. 9, 1999. While the Baikonur Cosmodrome is located in a relatively remote area, such an incident occurring in a more populous region or a metropolitan area could result in a cataclysmic loss.
Recoveries for Personal Injury, Property Damage or Death, Under the Convention
The Convention was adopted in September of 1972. It elaborates upon an earlier liability scheme set forth in the Outer Space Treaty of 1967. According to the United Nations Office for Outer Space Affairs, as of January 1, 2007, 84 countries have ratified the Convention.
Article II of the Convention provides: “A launching State1 shall be absolutely liable to pay compensation for damage2 caused by its space object3 on the surface of the earth or to aircraft in flight.” (Convention, Art. II) (emphasis added) Significantly, however, Article VII precludes a state’s citizen from asserting a claim against his or her own government. It specifically provides:
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; or
(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.
Article X of the Convention imposes a one-year statute of limitations that begins to run “following the date of commencement of the damage or the identification of the launching State which is liable.” Moreover, pursuant to Article IX of the Convention, claims are to be resolved via “diplomatic channels.” However, the Convention further provides:
If no settlement of a claim is arrived at through diplomatic negotiations as provided for in Article IX, within one year from the date on which the claimant State notifies the launching State that it has submitted the documentation of its claim, the parties concerned shall establish a Claims Commission at the request of either party.
(Convention, Art. XIV)
Recoveries for Damages Outside of the Convention’s Purview
A person or entity that sustains property damage, personal injuries, or death due to a space-related accident may seek a recovery outside of the Convention’s purview. In this regard, Article XI provides, in relevant part: “Nothing in this Convention shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State … .” Moreover, if an injured party sought a recovery in American courts, such person or entity might assert claims premised upon, inter alia, absolute liability, common law negligence and/or strict product liability theories. These claims, together with possible defenses, are considered below.
- Absolute Liability
Absolute liability is defined as “[l]iability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.” Black’s Law Dictionary 934 (8th ed. 1999) A plaintiff’s lawyer might argue that absolute liability should attach to actions commenced in American courts against private launch services providers at least to the extent that damages arise out of launch failures. In this regard, the Restatement (Second) of Torts Section 519 imposes absolute liability upon those who cause harm to others by virtue of their conducting “abnormally dangerous activities.”
In determining whether an activity is “abnormally dangerous,” the following factors are to be considered: (a) the existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) the likelihood that the harm that results from it will be great; (c) the inability to eliminate the risk by the exercise of reasonable care; (d) the extent to which the activity is not a matter of common usage; (e) the inappropriateness of the activity to the place where it is carried out; and (f) the extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520 (1977).
- Negligence
A second theory of recovery that could be asserted in courts outside of the Convention’s purview is one premised upon common-law negligence. Under the laws of most American states, in order to prove a prima facie negligence claim, a plaintiff must demonstrate that the defendant owed the plaintiff a duty of care; that the defendant breached that duty by engaging in negligent conduct; and that the defendant’s negligent conduct was the proximate cause of the damages that the plaintiff sustained. See, e.g., Hyatt v. Metro-North Commuter R.R., 16 A.D.3d 218, 792 N.Y.S.2d 391, 392 (1st Dep’t 2005). Negligence claims arising from a space-related accident might include whether the satellite manufacturer acted reasonably by designing and/or constructing a satellite that did not burn up upon reentry into the earth’s atmosphere or whether the satellite manufacturer acted reasonably by including certain toxic or hazardous substances within the satellite or launch vehicle.4
- Strict Products Liability
In addition to a simple negligence claim, an injured party could assert strict product liability claims. Such claims generally are premised upon design defects, manufacturing defects, or warning defects. See Sorto-Romero v. Delta Intern. Mach. Corp, No. 05-CV-5172 (SJF)(AKT), 2007 WL 2816191, at *10 (E.D.N.Y. Sep. 24, 2007). “[A] design defect ... results when the product as designed is unreasonably dangerous for its intended use.” Id. “[A] warning defect ... occurs when the inadequacy or failure to warn of a reasonably foreseeable risk accompanying a product causes harm.” Id. Lastly, “a manufacturing defect ... results when a product that is ordinarily safe is rendered dangerous by a mistake in manufacturing, such that the defective product causes harm.” Id.
It is likely that strict product liability claims arising from space-related accidents would focus on design defects, rather than manufacturing defects, for various reasons, one of which entails problems of proof. Presumably, a space object that reentered the earth’s atmosphere and caused damage to persons or property on the ground would itself sustain significant damage in any such accident. Thus, it would be difficult to demonstrate from the product’s mangled remains that it was “defective when it left the manufacturer’s control.” By contrast, a plaintiff may prove a design defect by reference to the product’s blueprints and other design documents. See, e.g., Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914, 924 (Pa. 1974). The foregoing evidentiary obstacles should not be an issue for a person or entity asserting a claim under Article II of the Convention because that section, as noted, imposes absolute liability upon a launching state.
- Government Contractor’s Defense
Consider the scenario in which an American launch services provider experienced a failure that injured third parties and/or their property while launching a government-owned satellite via a launch vehicle that was designed and constructed in conformance with governmental specifications. In the ensuing action, the launch services provider might interpose the government contractor’s defense.
The purpose of the government contractor’s defense is to “prevent the contractor from being held liable when the government is actually at fault ... .” Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1478 (5th Cir. 1989). Thus, “[w]hen a contractor acts under the authority and direction of the United States, it shares in the immunity enjoyed by the Government.” Zinck v. ITT Corp., 690 F. Supp. 1331, 1333 (S.D.N.Y. 1988) (citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 22 (1940)). The government contractor defense will shield a manufacturer from liability where: “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Boyle v. United Tech. Corp., 487 U.S. 500, 512 (1988).
It is quite possible that plaintiffs asserting claims in court against American launch service providers may encounter this defense. This defense would be inapplicable to claims asserted under the Convention, however, because the Convention imposes absolute liability.
- ITAR Considerations
If the plaintiff in an action against an American satellite manufacturer and/or launch services provider is not an American citizen, he or she may encounter obstacles posed by the International Traffic In Arms Regulations (ITAR), 22 C.F.R. §§ 120-30. ITAR is a series of governmental regulations that controls the export and import of defense-related articles and services included in the United States Munitions List (USML), and it covers satellites and launch vehicles. See 22 C.F.R. § 121.1. The dissemination of information regarding any item included on the USML requires an export license, which is issued by the United States State Department, prior to being provided to a non-U.S. person. See 22 C.F.R. § 125, et seq. Procuring such licenses may be arduous and will delay any litigation. This consideration should be inapposite, however, for recoveries sought under the Convention given its imposition of absolute liability for space-related accidents occurring on the earth’s surface.
(Convention, Art. II.)
Conclusion
Fortunately, third-party liability claims arising from space-related accidents are rare. Nevertheless, if such a catastrophe occurred, the losses could be significant, and, therefore, consideration of the foregoing issues is warranted.
For more information, email Rich Pelliccio at rich.pelliccio@hklaw.com or call toll free, 1.888.688.8500.
A more comprehensive treatment of third-party liability arising out of space activities can be found in an article by Randal R. Craft, Jr. entitled “Manufacturers’ Liability Under United States Law For Products Used In Commercial Space Activities,” 14 Journal of Space Law 113 (1986), copies of which are available upon request.
1 Pursuant to Article I of the Convention, the term “launching State” means “(i) a state which launches or procures the launching of a space object; or (ii) a State from whose territory or facility a space object is launched.”
2 Pursuant to Article I of the Convention, the term “damage” means loss of life, personal injury, or other impairment of health, or loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations.
3 Pursuant to Article I of the Convention, the term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof.
4 The European Union is considering a measure to ban lead from satellites. See “Mystery ‘Tin Whiskers’ Ruin Electronics, Stoke Debate Over Safety of European Lead-Free Law,” International Herald Tribune, Oct. 10, 2007. However, notwithstanding the known, deleterious effects of lead, banning its incorporation into satellites, poses certain drawbacks. For example, including lead in satellites tends to prevent the growth of “tin whiskers.” As those familiar with the commercial space industry are aware, “tin whiskers” have been identified as the likely cause of the loss of certain satellites, such as PanAmSat’s Galaxy IV spacecraft which was deemed to be a constructive total loss in 1998.
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