Matthew Schaefer is director of the Space, Cyber and Telecommunications Law Program at the University of Nebraska College of Law.
He discusses the legal and political implications of Tuesday’s explosion of an unmanned commercial rocket headed for the International Space Station. The Antares rocket was suppled by contractor Orbital Sciences, which blew up six seconds after liftoff from NASA’s space launch facility on the Eastern Shore of Virginia.
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Some of Schaefer’s observations:
“This incident emphasizes that rockets are tricky. We do have accidents, it’s not 100 percent fool-proof. You’re dealing with technology that has 20 times more fuel versus the weight of the rocket itself. When something goes wrong, there’s likely to be an explosion. That’s why you have those fire-clouds.”
“Accidents do occur, albeit very infrequently. You have to have a liability and insurance regime in place to prepare for them, and the United States does.”
In the case of commercial cargo space flights, the regime includes cross-waivers of liability so that participants – NASA, its contractors and their subcontractors and even schools that provide materials and equipment for a space-station experiment – cannot sue one another. In addition, Congress requires insurance coverage up to a maximum possible loss (MPL) for damages and injuries for innocent bystanders. The MPL amount is based on a massive catastrophic accident so rare that it would be exceeded only once in every ten million launches. Though the dollar figure differs by launch, it averages about $82 million. The federal government has promised to indemnify commercial space operators in case of an incident with third-party damages exceeding the maximum possible loss amount.
“We’ve never had an MPL-exceeding event and have never even come close. We launch these rockets from areas close to the ocean, from launch pads that have significant buffer zones. It’s highly, highly unlikely to have any third-party damage and if you did, it’s even more unlikely to have an MPL-exceeding event.”
Some expect Congress next year to reconsider existing insurance requirements and indemnification provisions. Schaefer maintains that Congress should not increase the maximum possible loss requirement. Rather, it should consider capping third-party liability at the MPL so that the U.S. commercial space industry is put on equal footing with competitors in several other nations, including France, Russia and China.
“The incident also demonstrates the importance of creating redundancy by encouraging the existence of multiple space operators. With Orbital Sciences out of commission while the incident is investigated, a second carrier, SpaceX, can handle cargo flights to the space station. We don’t want to lose a space operator in the exceedingly rare chance of massive, third-party damages and that is one reason in favor of third-party liability caps.”