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SELF-REGULATION OF THE COMMERCIAL HUMAN SPACEFLIGHT INDUSTRY & LIABILITY ISSUES 16 March 2015 Tommaso Sgobba & Mclee Kerolle IAASS & IIASL, Leiden University TABLE OF CONTENTS • Classification Societies • Why should we model Safety Institute in the commercial human spaceflight industry from the maritime industry • Why industry self-policing should be a supplement to government regulation • Self-regulation & the need for liability limitations. • Suggestions/Conclusions CLASSIFICATION SOCIETIES: • Originated in 18th century in England by insurance underwriters. • A Classification Society is a non-profit, nongovernmental organization. • Their purpose is to determine the level of compliance of a ship with safety standards • The reference for their work are rules they define for ships design and constructions based on the ‘state of the art’ of maritime technologies and best practices. WHY INDUSTRY SELF-POLICING SHOULD BE A SUPPLEMENT TO GOVERNMENT REGULATION: • Government regulation should be goal oriented and process based • There is an obsolescence risk when detailed prescriptive requirements are issued by government because they may have difficulty in following the pace of technological development. • An example of prescriptive requirements and how they can sometimes dramatically fail due to obsolescence, is that of the people who died on the Titanic disaster because of insufficient number of lifeboats. • The point to emphasize here is that the detailed technical standards are better developed and enforced by industry. Legal Analysis of the Limitation of Liability of Maritime Classification Societies & How to protect Classification Societies • If the U.S. Congress decides that Classification Societies are a good model for self-policing of commercial human spaceflight industry then organizations like a ‘Space Safety Institute,’ that set-up standards and perform compliance verifications may become the prime target for litigation in the event of an accident that results in injury or death. • The value of Classification Societies and the standards they set in the maritime setting have already been recognized by United States federal regulations dealing specifically with their activities in the United States. For example: in 33 CFR § 157.04, in 46 CFR § 298.11, and in 46 U.S.C. § 3316 • One of the practical solutions that may be available to help limit the risks of liability is through insurance. Classification Societies should be found liable in so far as they are negligently involved in a maritime incident through a fault-based system of liability. Nonetheless, Classification Societies should be allowed to cap such liability to an extent which that does not discourage them from remaining in business, nor allows them to get too comfortable with the thought of being protected. • While it seems highly improbable that any insurance company will offer coverage to a ‘Space Safety Institute’ if their liability is unlimited, the organization should have the ability of insuring itself against the potentially disastrous effects of liability. CONCLUSIONS & SUGGESTIONS Once the moratorium on the Commercial Space Launch Act has expired, a potential way to incorporate the Classification Society model is for the United States Congress to amend the Commercial Space Launch Act to formally recognize the contribution that an organization like a ‘Space Safety Institute’ can make in ensuring spaceflight safety and provide some form of liability protection.