The Liability of Participants in Commercial Space Ventures and Space Insurance (상업우주사업(商業宇宙事業) 참가기업(參加企業)의 책임(責任)과 우주보험(宇宙保險))
- Lee, Kang-Bin
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- The Korean Journal of Air & Space Law and Policy
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- v.5
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- pp.101-118
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- 1993
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Generally there is no law and liability system which applies particulary to commercial space ventures. There are several international treaties and national statutes which deal with space ventures, but their impact on the liability of commercial space ventures has not been significant. Every state law in the United States will impose both tort and contract liability on those responsible for injuries or losses caused by defective products or by services performed negligently. As with the providers of other products and services, those who participate in commercial space ventures have exposure to liability in both tort and contract which is limited to the extent of the resulting damage The manufacturer of a small and cheap component which caused a satellite to fail to reach orbit or to operate nominally has the same exposure to liability as the provider of launch vehicle or the manufacturer of satellite into which the component was incorporaded. Considering the enormity of losses which may result from launch failure or satellite failure, those participated in commercial space ventures will do their best to limit their exposure to liability by contract to the extent permitted by law. In most states of the United States, contracts which limit or disclaim the liability are enforceable with respect to claims for losses or damage to property if they are drafted in compliance with the requirements of the applicable law. In California an attempt to disclaim the liability for one's own negligence will be enforceable only if the contract states explicitly that the parties intend to have the disclaimer apply to negligence claims. Most state laws of the United States will refuse to enforce contracts which attempt to disclaim the liability for gross negligence on public policy grounds. However, the public policy which favoured disclaiming the liability as to gross negligence for providers of launch services was pronounced by the United States Congress in the 1988 Amendments to the 1984 Commercial Space Launch Act. To extend the disclaimer of liability to remote purchasers, the contract of resale should state expressly that the disclaimer applies for the benefit of all contractors and subcontractors who participated in producing the product. This situation may occur when the purchaser of a satellite which has failed to reach orbit has not contracted directly with the provider of launch services. Contracts for launch services usually contain cross-waiver of liability clauses by which each participant in the launch agrees to be responsible for it's own loss and to waive any claims which it may have against other participants. The crosswaiver of liability clause may apply to the participants in the launch who are parties to the launch services agreement, but not apply to their subcontractors. The role of insurance in responding to many risks has been critical in assisting commercial space ventures grow. Today traditional property and liability insurance, such as pre-launch, launch and in-orbit insurance and third party liability insurance, have become mandatory parts of most space projects. The manufacture and pre-launch insurance covers direct physical loss or damage to the satellite, its apogee kick moter and including its related launch equipment from commencement of loading operations at the manufacture's plant until lift off. The launch and early orbit insurance covers the satellite for physical loss or damage from attachment of risk through to commissioning and for some period of initial operation between 180 days and 12 months after launch. The in-orbit insurance covers physical loss of or damage to the satellite occuring during or caused by an event during the policy period. The third party liability insurance covers the satellite owner' s liability exposure at the launch site and liability arising out of the launch and operation in orbit. In conclusion, the liability in commercial space ventures extends to any organization which participates in providing products and services used in the venture. Accordingly, it is essential for any organization participating in commercial space ventures to contractually disclaim its liability to the extent permitted by law. To achieve the effective disclaimers, it is necessary to determine the applicable law and to understand the requirements of the law which will govern the terms of the contract. A great deal of funds have been used in R&D for commercial space ventures to increase reliability, safety and success. However, the historical reliability of launches and success for commercial space ventures have proved to be slightly lower than we would have wished for. Space insurance has played an important role in reducing the high risks present in commercial space ventures.