Jim Dunstan is giving a talk on acceptable levels of risk for various transportation modes. Case in point, we could reduce our forty-thousand traffic deaths but aren’t willing to pay the cost. We accepted significant loss of life for early aviation. It was recognized in developing the Warsaw Convention that we had to “do for law what the engineers were doing for machines,” which meant we needed a liability regime. Aviation has strict liability, with a cap per the convention. Space currently has an uncapped liability, driven by the 1967 Outer Space Treaty and the 1972 liability convention.

He thinks that he’s perhaps found a loophole in the liability convention for spaceflight participant, though it’s not clear whether “participant” means “crew” or “passengers” (or both). Unfortunately there’s enough wiggle room for plaintiff’s lawyers to have a field day.

He is still amazed that we won the battle a couple years ago in getting the FAA to keep hands off passenger safety regs for now, but the battle isn’t over. It established a “Informed Risk Regime” for spaceflight participants. Implication for this is that, since there is no federal tort law, it will be matter for state laws (at least in the states in which people operate, if not in all fifty, just to be safe). This is the “next frontier” for space lawyers. Gaol is to provide immunity for operators who have FAA licenses and have obtained “informed consent,” based on extreme sports, such as helicopter skiing.

Virginia has passed such a law, though it needs to have a governor’s amendment with help from the space lawyers, because original law was based on an agricultural tourism bill to protect farmers on historical farms. Tractors and spaceships aren’t quite the same thing, so they took the existing language and tied it back into the FAA regulations as much as possible. Virginia needed to do this early, because they have a spaceport at Wallops, and they also have a common law that says that citizens cannot waive right to sue in prospect. The law had to be amended to override this. It has been submitted to the governor, who accepted the amended language, and it’s hoped that it will be repassed in April. He is giving credit to Jack Kennedy to make this happen (in the face of opposition from the Trial Lawyers Association). Still problems with the bill–could be better from a clean sheet of paper, but it’s good enough for now.

Next targets–Oklahoma, New Mexico, and California (which might require a state constitutional amendment).

Another concern is if someone comes down with cancer after flying and attempts to blame it on the flight. Need to characterize environment of vehicles during testing to help fight this.

And somehow, it seems appropriate to point to this article that describes how lousy the human mind is at assessing risk. This may be one of the biggest problems with this industry.

[Update at 5 PM MST]

Jack Kennedy checks in in comments with a link to the latest version of the bill.