OpEd: Informed Consent for Spacefaring Passengers

by












  Space News Business

OpEd: Informed Consent for Spacefaring Passengers

By TRACEY KNUTSON

posted: 03 May 2007
07:36 pm ET


In the Commercial Space Launch Amendments Act ( CSLAA ), Congress expressly stated that space tourism is inherently risky, it is comparable to adventure travel and participants are akin to daredevils, visionaries and adventurers.

The Federal Aviation Administration Office of Commercial Space Transportation (FAA/AST) — the agency charged by Congress with regulating this emerging industry — responded to the congressional view of space tourism by expressly stating in it s “Final Rule” on Human Space Flight Requirements that before receiving compensation or agreeing to fly a space flight participant, an operator must give each participant written warnings stating that there are known and unknown hazards to space flight, that participants could be injured or killed and that none of the vehicles have been certified by the U.S. government as safe for even carrying human beings.

This constellation of warnings the operators are supposed to give to the space flight participants (“SFP”) is referred to by Congress and the FAA/AST as written “informed consent,” and is required to show that the FAA/AST is protecting the uninvolved public in a way that does not stifle the emerging industry.

In order to protect itself and fulfill its mandate, the FAA/AST will require that SFP s sign cross waivers. While there seems to be a lot of misinformation currently in the media about cross waivers, the legal fact is that they provide no protection for the SFP s or the operators from claims resulting from space flight accidents — the waivers only protect the government from claims made by operators or participants.

That is why the informed consent issue is so important to understand. Congress and the FAA/AST intended that SFP s make their own choices on space travel knowing that they will bear the physical, legal and financial risk of their decision .

So the burning question right now — realizing that the relationship between the SFP and the operators has not been legally protected by the FAA/AST’s regulations is: H ow far do the warnings have to go? What will be considered a good or complete set of warnings, and what exactly have the federal regulations mandated between the operator and the SFP in terms of information exchange? At this juncture regulators, operators, insurers, investors and wanna-be participants are all asking these questions.

Since Congress declared that space faring folks — be they the builders, operators or tourists — are to be considered adventurers and daredevils, we need to look hard at the commercial adventure world and what the law/courts have said in response to incidents in that arena.

In the adventure sport and recreational world, it is fair to say that one of the most important duties a commercial operator owes its clients is a legal duty to inform guests of the risks that they are taking in participating in an activity. Explaining/instructing/warning is the foundation of minimizing or mitigating risks associated with any activity; it is thought that informed or thoroughly briefed clients legally assume the risks of the activity and act more reasonably on their own behalf while doing the activity.

In the case of a commercial space adventure or tourism operator, however, the full range of risks in the new suborbital market is not yet realized, and standards, policies and procedures to minimize risk have not yet been developed. As a result, effective warnings are difficult to articulate.

Given mankind’s overall very limited history in space, the safety record to date of experimental or research type rocket planes and the simple disparity in vehicles currently being developed, standards are a long way off. So, w hat should a participant know in the next few years in order to make an “informed” decision on whether or not to fly on a new rocket plane ?

The answer at this stage of the game is that operators should tell you everything. Any decently drafted written warning for this developing adventure activity needs to first express the state of the industry. Such warnings must explain that one of the primary hazards or risks associated with space travel is that there are no accepted industry standards on things like physical condition of the SFP, appropriate SFP gear, passenger safety equipment , safety briefing requirements, vehicle capability for routine suborbital space travel or even on pilot qualifications.

Participants need to know up front that this industry and the hybrid technologies it is creating are experimental at best. Any consent waiver must expressly state that the industry is largely unregulated and that SFP s should not view their participation as a definite ride from point A to point B, but rather as an experience where the end result is getting to space — whether or not they come back. Wanna-be SFP s need to see themselves as visionaries and daredevils who are willing to pay, beyond just the $200,000 ticket cost, the more ultimate price. The warnings need to expressly state that it has been reliably estimated that there will be about a 1 in 200 failure rate or higher, and that historically 4 percent of the people who have flown to space have perished.

SFPs should be notified that they (or their families or estates or businesses) could literally bear some financial responsibility for an accident under the terms of the risk-sharing regime in the CSLAA. Does the public really understand this yet? How many of the millionaires who will likely make up the first wave of space tourism will actually be willing to bet the farm, or their kids’ financial future knowing this fact?


The warnings also should outline the physical realities of space flight — vomiting at certain g-force levels, space motion sickness, potential radiation exposure and the emotional or psychological risks associated with space travel — stresses to the human body of suborbital flight still are not defined completely .

To be effective and legally supportable, these warnings should be written using words that are unambiguous, simple and complete. There can be no language that hides or obfuscates the meaning of a risk or incident. For example, rather than stating: “… the Sea Launch Zenit … experienced an anomaly today during launch operations .” Instead, o perators must be prepared to say in plain language: “… the Sea Launch Zenit blew up and disintegrated in a ball of fire. “

While it is obvious why a potential SFP needs as much clear information as possible when deciding to travel to space , it probably also is obvious that if all of this is explained before travelers sign on the dotted line and hand over their credit cards, they may stay on terra firma — a definite dis incentive for the operators to give full and complete warnings. Here lies the tension between marketing and reality, and between legal liabilities and being able to defend oneself in the event of a catastrophe.

Adventure travel operators like to produce brochures, Web sites, and marketing to show off their best clients gamely recreating in fantastic places. Sexy marketing, however, is exactly why warnings should be given before money changes hands; if a customer has been lured by the glossy advertisements, an operator should be able to demonstrate that it also truthfully warned of risks before it took the customer’s money.

If the space tourism operators do a complete and clear job of warning and informing participants of the myriad risks associated with space flight, then when an incident occurs they will be able to legally and morally say that since the SFP was fully informed and decided to go along anyway, the SFP should be liable. If these risks have not been adequately explained, no court — or jury of U.S. citizens — is going to absolve the industry, especially since the federal regulations now require complete information exchange.

Someone in the space tourism industry recently commented that SFP s will be looking at industry owners for “proxy votes” on whether the industry is safe. In other words, SFP s will decide whether to ride in a space vehicle or not based on whether owners of the space liners will ride in them. To suggest that the public simply look to a company owner to vet the safety of space travel is irresponsible and ignores the point of informing potential SFP s of risks. Because of its regulatory obligations to warn and its undoubted need to shift the liabilities or risks of the space travel back to the SFP s, the industry should not suggest or encourage this line of thinking.

If it wants to be prudent, to be legally defensible and to survive, this industry should not suggest a mere lemming type of approach for those considering going to space. The space operators should tell you everything, including the fact that, once they have warned the day lights out of you, you will likely be the only one legally responsible for taking on the risks of human spaceflight.

As Grace Smith recently said, the regulation on human space flight ” boils down to making sure any passenger intending to make a suborbital flight is fully informed … based on the best and most extensive information available.”

Tracey L. Knutson is an attorney in Anchorage, Alaska, whose
practice involves working with adventure sports commercial operators, public land administrators, insurers and recreation oriented educational groups.
She
recently was appointed to COMSTAC
and will be on the Committee’s Risk Management Working Group.