LAWYER-PILOTS BAR ASSOCIATION
L
VOL. XXXII NO. 2
"dedicated to aviation safety, the just administration of the law and continuing legal education."
CLEVELAND, OHIO
Airbus A380 takes to perfect summer skies
over Oshkosh EAA AirVenture, July 2009.
-SUMMER
MEETING-SUMMER2010
(Photo by the Editor)
Nemacolin Woodlands Resort, Farmington, PA- JULY
7-
JULY 11, 2010
THE LAWYER-PILOTS BAR ASSOCIATION JOURNAL
Published Quarterly by the Lawyer-Pilots Bar AssociationOrganized October 21, 1959
Publication Office Editorial Office
--Gary W. Allen, Esq. 21 00 Horne's Lake Rd. Williamsburg, VA 23185 c/o Tucker Ellis & West LLP
925 EUCLID AVENUE, SUITE 1150 CLEVELAND, OHIO 44115 Telephone: (216) 592-5000 Fax: (216) 592-5009 Telephone: (757) 345-6926 Cell: (703) 401-4580 E-mail: GWA1225@aol.com EDITOR
Gary W. Allen ... Williamsburg, VA E-mail: GWA1225@aol.com ASSOCIATE EDITOR Ellen L. Riddle 10710 Sherwood Trail North Royalton, OH 44133 Cell: 440-655-5478 E-mail: eriddle@sbcglobal.net CONTRIBUTING EDITORS Alan E. Armstrong ... Atlanta, GA Cecile S. Hatfield ... Miami, FL R. Christopher Julius ... Washington, D.C. Steven A. Kirsch ... Washington, D.C. Jacob I. Rosenbaum ... Cleveland, OH John S. Yodice ... Washington, D.C.
ADMINISTRATIVE OFFICE Karen Griggs
Lawyer-Pilots Bar Association P.O. Box 1510 Edgewater, MD 21037
OFFICERS PRESIDENT
Arthur E. Luman
Luman, Helfman, Fayer & Tucker 140 Grand Street White Plains, NY 10601 Tel: 914-683-1800 Fax: 914-683-1897 arthurl@tsjesq.com PRESIDENT-ELECT Charles M. Finkel
Magana, Cathcart & McCarthy 1801 Avenue of the Stars, #600 Los Angeles, CA 90067 Tel: 310-553-6630 Fax: 310-407-2295 finkelaviationlaw@earthlink.net SECRETARY Gary L. Evans Coats & Evans, P.C. P.O. Box 130246 The Woodlands, TX 77393-0246 Tel: 281-367-7732 Fax: 281-367-8003 evans@texasaviationlaw.com TREASURER Robert L. Feldman
Law Office of Robert L. Feldman 8900 SW 107th Avenue, #203 Miami, FL 33176 Tel: 305-598-4841 feldmans48@hotmail.com EXECUTIVE DIRECTOR Karen Griggs ... (410) 571-1750 Fax ... (410) 571-1780 E-mail ... lpba@lan2wan.com BOARD OF DIRECTORS Gary W. Allen (2010) ... Williamsburg, VA James K. Gilman (2010) ... Albuquerque, NM Arthur W. Hankin (2011) .... Philadelphia, PA Ronald L. Hofer (2011) ... Mooresville, NC Russell A. Klingaman (2012) ... Milwaukee, WI Keith D. McGee (2012) ... Vancouver, BC C. Glenn Cook, Jr. (2013) ... Decatur, GA PhillipS. Alpert (2013) ... San Diego, CA
REGIONAL VICE PRESIDENTS
ALASKAN
(vacant)
CENTRAL
Scott J. Gunderson - Wichita, KS
EASTERN
Arthur E. Luman - White Plains, NY
GREAT LAKES
R. Steven Polachek - Barrington, IL
NEW ENGLAND
John B. Oestreicher - N. Branford, CT
NORTHWEST MOUNTAIN
Glen D. Mark - Beaverton, OR
SOUTHERN
Robert Feldman - Miami, FL
SOUTHWEST
Winstol D. Carter, Jr. - Houston, TX
WESTERN PACIFIC
Charles M. Finkel - Los Angeles, CA
EASTERN CANADA
Patrick H. Floyd - Ottawa, Ontario
WESTERN CANADA
Vern Schwab - Edmonton, AB
INTERNATIONAL
Timothy R. Scorer - London, England Spencer R. Ferrier - Sydney, Australia Rolf W. Quist - Stuttgart, Germany
PAST PRESIDENTS Albert Rathblott, Deceased .... . George M. Bryant, Deceased .. . Virginia Hash, Deceased ... . Donald R. Krag ... . Maurice E. Gosnell, Deceased .. . Lloyd B. Ericsson, Deceased ... . Jacob I. Rosenbaum ... . Glover McGhee ... . 1959-1964 1964-1966 1966-1970 1970-1974 1974-1978 1978-1980 1980-1982 1982-1984 JohnS. Yodice . . . 1984-1986 David M. Baker, Deceased ... .
George I. Whitehead, Jr., Deceased Michael R. Gallagher, Deceased . Jay Fred Cohen ... . Sidney L. Berlin, Deceased ... . H. Clark Bell ... . 1986-1988 1988-1990 1990-1992 1992-1993 1993-1994 1994-1995 John J. McNamara, Jr. . . . 1995-1996 Joseph A. Gawrys, Deceased .... 1996-1997 J. Timothy Cook... 1997-1998 Cecile S. Hatfield . . . 1998-1999 James F. Pokorny ... 1999-2000 Errol K. Kantor ... 2000-2001 William H. Wimsatt ... 2001-2002 Edward A. McConwell ... 2002-2003 Timothy E. Miller ... 2003-2004 Kathleen A. Yodice ... 2004-2005 Martin T. Weiss ... 2005-2006 Timothy S. Fretts ... 2006-2007 Edward M. Booth, Jr ... 2007-2008 Susan L. Hofer ... 2008-2009
Address
Change??
If you have a change of address, please forward
it to Karen Griggs at the LPBA Administrative Office,
P.O. Box 1510, Edgewater, MD 21037
or lpba@lan2wan.com.
The Lawyer-Pilots Bar Association Journal (ISSN 0274-9319} is published quarterly and distributed free to the membership as part of dues by the Lawyer-Pilots Bar Association, 925 Euclid Ave., Suite 1150, Cleveland, OH 44115-1475. For non-members, individual copies are available at $30.00. Foreign subscriptions are $1.00 additional per copy to cover mailing costs and handling. Periodicals postage paid at Cleveland, OH. POSTMASTER: Send address changes to Lawyer-Pilots Bar Association, P.O. Box 1510, Edgewater, MD 21037. Ride along mail enclosed.
22 LPBA JOURNAL SUMMER 2010
E ERGING ISSUES:
Unmanned Aircraft and Space Debris
John M. Socolow, Esq.
&
Brian P. Mitchell, Esq.
Pino & Associates LLP, White Plains, NY
Mr. Soco/ow is a partner in the Pino firm who specializes in representing national and international
aerospace firms in litigation-related matters, and handles a broad range of commercial, contract, and insurance matters. He gained his BA from the University of Pennsylvania and his JD from Fordham University.
Mr. Mitchell is an associate in the Pino firm, a/so handling national and international aerospace firms in litigation-related matters, as well as a broad range of commercial and tort litigation including international ADR. He gained his BA from Fordham University and his JD from St John's University. Messrs Soco/ow and Mitchell presented this paper last fall at the ABA TIPS conference in Washington, DC.
The purpose of the first part of this paper is to offer a brief overview of unmanned aerial vehicles ("UAV"), and to identify potential issues that aviation tort lawyers may encounter as utilization of UAV's continue to increase. The purpose of the second part of this paper is to offer a brief introduction to space (or orbital) debris, and to identify potential issues that lawyers may encounter as the private space industry continues to grow and more objects are placed in earth orbit.
Unmanned Aircraft I. INTRODUCTION
A recent 60 Minutes broadcast reported that the United States Air Force ("USAF") will, for the first time, be purchasing more unmanned than manned aircraft. The proliferation of UAV's has reached a point where USAF pilots "are being sent directly to UAV's for their initial assignments, nonpilots are being trained as unmanned aircraft pilots, and UAV operators will soon have their own distinct career field."1
Military use of UAV's - particu-larly in the wars in Iraq and Afghanistan -is well-known, and increasing. One function of those unmanned aircraft, frequently referred to in media reports as "drones," is to serve as the "eyes in the sky" for soldiers on the ground in those conflicts. Those UAV's are often flown by pilots who are in ground control stations in bases near cities such as Las Vegas, . Nevada,
thousands of miles away from the war zone area where the mission is being carried out. Other UAV's, which are "[s]mall enough to fit in a soldier's backpack and outfitted with cameras that feed real-time video in color or infrared to a handheld screen ... have quickly become cherished equipment to soldiers searching for terrorists in Iraq or Afghanistan."2
While UAV's may be primarily thought of as being developed and flown by the military, it may only be a matter of time before UAV's are viewed no differently than manned aircraft. The FAA's philosophy regard-ing UAV's is noted on its website, at the Unmanned Aircraft Program Office ("UAPO") page, which states that UAV's "are part of the future of aviation, and that future is on our doorstep right now. The system is in place today to accommodate the entry of new aircraft into the National Airspace System; this is nothing new for the FAA. It is our day-to-day busi-ness."3
The "future" may already have arrived. However, according to the UAPO, flight of UAV's "is not permit-ted over populapermit-ted areas and no hazardous material may be carried or objects dropped outside of Restricted Area Airspace.'"' Thus, while the FAA clearly supports UAV'~, it also has concerns about their integration into the National Airspace System. II. WHAT ARE UAV'S?
According to the FAA, an unmanned aircraft is:
[A] device that is used, or is intended to be used, for flight in the air with no onboard pilot. These devices may be as simple as a remotely controlled model aircraft used for recreational purposes or as complex as sur-veillance aircraft flying over hostile areas in warfare. They may be controlled either manu-ally or through an autopilot using a data link to connect the pilot to their aircraft. They may perform a variety of public ser-vices: surveillance, collection of air samples to determine levels of pollution, or rescue and recovery missions in crisis situ-ations. They range in size from wingspans of six inches to 246 feet; and can weigh from approximately four ounces to over 25,600 pounds. The one thing they have in common is that their numbers and uses are growing dramatically. In the United States alone, approxi-mately 50 companies, universities, and government organizations are developing and producing some 155 unmanned aircraft designs. Regulatory standards need to be developed to enable current technology for unmanned air-craft to comply with Title 14 Code of Federal Regulations (CFR).
See Docket No. FAA-2006-25714, "Unmanned Aircraft Operations in the
National Airspace System," issued February 6, 2007.5
Regardless of their shape or size, UAV's should not be viewed in a vacuum as simply unmanned aircraft. Rather, they operate within a system. A typical unmanned aerial system ("UAS") consists of three primary components: (i) the unmanned air-craft itself; (ii) a ground control station (from where the pilot flies the air-craft); and (iii) and a data relay link, which allows the pilot at the ground control station to communicate with and control the unmanned aircraft.
There is a wide variety of UAV's in use or development today, as a sim-ple Internet images search will readily reveal. UAV's range from micro-devices that are designed to travel inside buildings, to hand-launched aircraft resembling remote controlled model airplanes, to larger aircraft
(e.g., Predator) which can be used for surveillance (of suspected terrorist activity,· and more recently, pirate activity off the coast of Africa) and missile attacks, to rotary wing and even tilt rotor aircraft. Appendix A includes a number of photographs (all obtained from the Internet) depict-ing examples of some different types of UAV's currently in existence, as well as a photograph of a pilot in a ground control station.
UAS's, and the pilots who operate them, must comply with applicable Federal Aviation Regulations ("FAR's"). Like manned aircraft, unmanned air-craft must be airworthy.6 FAA Order
8130.34 lists FAR's applicable to unmanned aircraft.
With respect to pilots, the pilot-in-command requirements of 14 C.F.R. 91.3 are applicable to the pilot-in-command of a UAV.Y In terms of medical requirements, the FAA has determined that a second-class medical certificate would be ade-quate for UAV pilots. Specifically, the FAA noted that
[T] here were several factors that mitigated the risk of pilot inca-pacitation relative to those of manned aircraft. First, factors related to changes in air pres-sure could be ignored, assuming that control stations for non-military operations would be on the ground. Second, many of the current UA systems have procedures that have been
established for lost data link. Lost data link, where the pilot cannot transmit commands to the aircraft, is functionally equivalent to pilot incapacita-tion. Third, the level of automation of a system deter-mines the criticality of pilot incapacitation because some highly automated systems (e.g., Global Hawk) will continue nor-mal flight whether a pilot is or is not present.
See DOT/FAA/AM-07/3, Unmanned Aircraft Pilot Medical Certification Requirements, Executive Summary, February 2007.
Ill. FAA POLICY
FAA policy regarding UAS's depends upon whether the unmanned aircraft is to be operated as a civil aircraft, a public aircraft, or a model aircraft.8
A. Civil Operation - Special Airworthiness Certificate Required
The FAA recognizes that civil oper-ation of UAS's is a "quickly growing and important industry."9 For civil
operation, an operator may apply to the FAA for a Special Airworthiness Certificate, Experimental Category,10 for purposes of research and devel-opment, crew training, and market surveys. The applicant must show that the entire system - not just the unmanned aircraft - "can operate safely within an assigned flight test area and cause no harm to the pub-lic."11 The applicant must describe, among other things, how the system is designed, constructed and manu-factured, software development and control, and "how and where they intend to fly."12
B. Public Operation -Certificate of
Authorization or Waiver Required
For public operation of a UAS, public agencies and organizations may apply to the FAA for a Certificate of Authorization or Waiver ("COA").13 Once issued, the COA allows the organization or agency "to operate a particular UA, for a particular pur-pose, in a particular area."14 This usually means, even for public opera-tion, that the unmanned aircraft is not operated in a populated area, and
that the aircraft is observed either by someone in a manned aircraft or by someone on the ground.15 In addition to public operation of UAS's by the military, public operation of UAS's also includes such activities as bor-der patrol, police and fire patrol, and weather observation.
C. Model Aircraft
FAA Advisory Circular 91-57, issued in June 1981, applies to oper-ation of model aircraft. Certificates do not appear to be required if a model aircraft will be flown in accor-dance with the operating standards set forth in AC 91-57.
IV. FUTURE APPLICATIONS
The military's use of UAS's has laid much of the groundwork for public and civilian use. Civilians and non-military public agencies will likely see advantages (already recognized by the military) in increasing their utiliza-tion of UAS's because, among other things, they: (i) pose less risk to crews; (ii) can remain airborne for longer periods of time, since crews can be changed on the ground; (iii) can "loiter" in a given area for longer periods of time for surveillance and reconnaissance; (iv) can be flown longer distances; and (v) are relatively smaller and lighter than manned air-craft, so they presumably use less fuel, and therefore may be "greener" and less expensive to operate.
There are countless examples of possible civilian and/or public UAS applications. Some of the more obvi-ous applications include: emergency response and search and rescue; disaster relief (e.g., delivery of cargo such as food and medical supplies); monitoring nuclear facilities; monitor-ing oil and gas pipelines; oceanic and hurricane observation; monitoring ice packs and avalanche conditions; for-est fire detection; wildlife monitoring; air quality sampling; traffic observa-tion; geological surveys; and cell phone transmissions.
V. EMERGING ISSUES
Like manned aircraft, UAV's can be involved in mishaps. As UAV's prolif-erate, the risk of accidents - mid-air collisions with other aircraft, and crashes on the ground - also will increase. Likely causes of such crashes include failure, or inability, of the pilot of the unmanned aircraft to
24
see and avoid other aircraft or objects, as well as reliability prob-lems that may be encountered during operation.
A. "See and Avoid"
The July 2009 mid-air collision over the Hudson River between a small airplane and a helicopter is one of the latest and most well-known examples of the need for pilots to be able to "see and avoid." One wonders whether a pilot operating an unmanned aircraft would have been better able to have avoided that colli-sion. UAV pilots, like pilots of manned aircraft, must follow the "see and avoid" rule, and must be able to respond to air traffic control com-mands.
In FAA Memorandum AFS-400 US Policy 05-01, the FAA sought to "pro-videO guidance to be used to determine if unmanned aircraft sys-tems (UAS) may be allowed to conduct flight operations in the U.S. National Airspace System (NAS)."16 The FAA noted that "[w]hile consider-able work is ongoing to develop a certifiable 'detect, sense and avoid' system, an acceptable solution to the 'see and avoid' problem for [unmanned aircraft] is many years away."17 The FAA also noted that if
operators of UAS's "were held rigor-ously to the 'see and avoid' requirements of Title 14, Code of Federal Regulations (14 CFR) part 91.113, Right-of-Way Rules, there would be no [unmanned aircraft] flights in civil airspace. The FAA sup-ports UA flight activities that can demonstrate that the proposed oper-ations can be conducted at an acceptable level of safety."18 19
Obviously, the ability to see and avoid is critical. The fact that the UAV pilot is not in the aircraft only under-scores the need for the development of technology to allow the UAV pilot to perform that function in compli-ance with Federal Aviation Regulations.20 Additionally, pilots of
manned aircraft may have a height-ened burden of seeing and avoiding UAV's, since many UAV's are smaller than manned aircraft.
B. Human Factors_
Human factors often play a role in aviation accidents. UAV's are not immune to this problem.21 Because
the UAV pilot is in a ground control
LPBA JOURNAL
station, rather than on board the air-craft, he
is deprived of a range of sen-sory cues that are available to the pilot of a manned aircraft. Rather than receiving direct sensory input from the environ-ment in which his/her vehicle is operating, a UAV operator receives only that sensory infor-mation provided by onboard sensors via datalink. Currently this consists primarily of visual imagery covering a restricted field-of-view. Sensory cues that are lost therefore include ambi-ent visual information, kinesthetic/vestibular input, and sound. As compared to the pilot of a manned aircraft, thus, a UAV operator can be said to perform in relative "sensory iso-lation" from the vehicle under his/her control. 22
Another human factors issue relates to "the quality of visual sensor information presented to the UAV operator [which] will be constrained by the bandwidth of the communica-tions link between the vehicle and its ground control station."23 Presumably, these human-factors related con-cerns may lessen as UAV technology continues to improve.
C. System Reliability & Redundancy
UAV's incorporate many new and sophisticated technologies. Because many UAV's weigh less than conven-tional aircraft, the ability to provide redundant systems is limited. This is a trade off, since the lack of redun-dancy would be unacceptable if a pilot and crew were on board. Unless technologies can be developed to address every possible system failure or adverse situation, the lack of a pilot on board lessens the likelihood of identifying and solving problems occurring in flight, let alone "hand-flying" the aircraft to a safe landing.24 Another obvious concern that may arise involves the loss of communica-tion between the ground control station and the UAV. In anticipation of this scenario, some UAV's have a lost-link profile, which is a predeter-mined autonomous flight path,25 that
would likely be appropriate for use only in remote, unpopulated areas.
SUMMER2010
VI. CONCLUSION
Although UAV's are relatively "new," many of the same legal prin-ciples, rules and regulations, applicable to manned aviation acci-dents will also apply to unmanned aviation. The FAA has expressly rec-ognized the ability to "see and avoid" as a primary concern in unmanned aviation.
As UAV's proliferate, the risk of their involvement in accidents -where other aircraft, and persons and property on the ground, are put at risk - also will increase. In the event of a UAV accident, entities which manufacture, maintain and/or oper-ate UAV's will likely face the same exposures that would be present in an accident involving a manned air-craft. Aviation liability insurers, and aviation tort lawyers for both plaintiffs and defendants, must be prepared to address the issues that will arise as this new segment of the aviation industry continues to quickly develop and mature.
Space Debris
I. INTRODUCTION
Debris in orbit is becoming an increasing hazard as more and more objects are launched into earth orbit joining those objects already there. While national and international gov-ernmental organizations are still the big players in space, the growth of the private, commercial space satel-lite and launch industries has been contributing to the growth of orbital traffic. Although governments and the scientific community may be looking into ways to prevent or mini-mize the hazard of collision, to mitigate the damage to active space assets, and to better exchange infor-mation regarding debris tracking and "space situational awareness,"2627 the possibility and risk of loss continues to exist. But as those technical experts try to deal with the problem in space, what will the lawyer be called to do when a space asset is damaged or destroyed by space debris? The lawyer must traverse a legal framework that is disjointed because a damaged party may not be able to identify who is responsible and may not be able to pursue the offending party, if known, because there are no binding "rules of the
road" in space. Ultimately, a client whose space asset is in danger of being damaged by space junk may not have any effective form of redress available in the event of a collision. Rather they may have no choice but to rely exclusively on insurance, tech-nological and information-sharing advancements for collision avoidance and mitigation, and blind luck to pro-tect their investment.
II. THE PROBLEM OF SPACE JUNK
According to NASA's Orbital Debris Program Office,28 "orbital debris" is defined as "any man-made object in orbit about the Earth which no longer serves a useful purpose."29 NASA lists examples of this debris as "[d]erelict spacecraft and upper stages of launch vehicles, carriers for multiple payloads, debris intentionally released during spacecraft separa-tion from its launch vehicle or during mission operations, debris created as a result of spacecraft or upper stage explosions or collisions, solid rocket motor effluents, and tiny flecks of paint released by thermal stress or small particle impacts."30 The known number of objects in space larger than 10cm is approximately 19,000.31 The estimated population of particles between 1cm and 10cm in diameter is approximately 500,000, while the estimated population of particles smaller than 1 em is greater than tens of millions.32 33 The average relative velocity of these objects is nearly 10km/sec.34 According to NASA, the
principal source of large orbital debris is now satellite explosions and colli-sions; prior to 2007, the principal source of debris was old upper launch vehicle stages left in orbit.35
Regardless of the danger posed by the various sizes of debris and their sources, it seems that the debris receiving the most news headlines are those that either may affect manned missions (i.e., the International Space Station ("ISS") or the Space Shuttle), or those that are caused by collisions or explosions. Among the many newsworthy debris events,36 four of the most recent and more notable are:
1. September 4, 2009 close encounter of 1.3km between the Space Shuttle Discovery [STS-128] linked to the ISS and
the remains of a European Ariane 5 rocket about 19 square meters in size;37
2. February 10, 2009 fortuitous "collision of an operational commercial satellite [Iridium 33] and a spent Russian spacecraft [Cosmos 2251]" resulting "in a decades-long pollution of a widely used orbit;"38 39
3. February 20, 2008 shoot down of a crippled U.S. spy satellite [US 193] carrying hazardous fuel by a U.S. Navy cruiser;40 and
4. January 11, 2007 intentional destruction of the Chinese weather satellite [Fengyun-1 C] by China via an anti-satellite device.41
As recently as September 7, 2009, NASA was "tracking a piece of left-over space junk from [the] 2007 Chinese anti-satellite test that [was] expected to fly near the [ISS] ... to determine whether it could pose a threat to the space station ... [requir-ing the ISS] to fire its thrusters in order to dodge the satellite rem-nant. .. "42
NASA currently states that "the probability of two large objects ([greater than] 10 em in diameter) accidentally colliding [to be] very low."43 Indeed, prior to the February
10, 2009 Iridium/Cosmos collision, many nations had been approaching the issue of space debris under what is called the "Big Sky Theory."44 This theory charges that three-dimen-sional space is so vast that the odds of a collision are infinitesimal.45 Whatever the probability may be, the February 10, 2009 Iridium/Cosmos collision occurred and will force sat-ellite operators (commercial or otherwise) "to play 'dodgeball' for decades to avoid debris from the [February 10, 2009] collision.''46 Ill. THE POTENTIAL LEGAL
ISSUES OF SPACE DEBRIS When identifying potential legal issues presented by a loss caused by space debris, the first two questions lawyers may want to ask themselves are: (1) what legal framework, if any, is available to their damaged client; and (2) how does that framework operate.
On the international level, "damage · to and by spacecraft is covered" by the March 29, 1972 Convention on International Liability for Damage Caused by Space Objects ("Space Liability Convention").4748 See 24 UST 2389, 961 UNTS 187. The Space Liability Convention recognizes the "need to elaborate effective interna-tional rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt pay-ment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage ... " See Space Liability Convention at Preamble. The treaty defines "damage" as loss of life, personal injury or other impair-ment of health; or loss of or damage
to property of States or of persons, natural or juridical, or property of
international intergovernmental orga-nizations ... " See Space Liability Convention at Art. I (emphasis added). The Space Liability Convention further states:
In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable
only if the damage is due to its fault or the fault of persons for whom it
is
responsible.See Space liability Convention at Art. Ill (emphasis added). It seems that any claim made for damage caused by a space object to another space object is not absolute (as is the case for damage on the ground or to aircraft in flight),49 but is based on fault. 5°
Therefore, one issue (if one were to invoke Art. Ill of the Space liability Convention) would be that a dam-aged party would have to at least identify the source (i.e., country of origin) of the defunct spacecraft or debris, if at all possible, to try to positively assign fault for the damage incurred. Under the Space liability Convention, however, it is the "launch-ing State" that would be responsible under Art. Ill. A "launching State" is defined as: "(i) A State which launches or procures the launching of a space object; (ii) A State from whose
terri-26
tory of facility a space object is launched." See Space Liability Convention at Art. I. Given the tre-mendous growth and the numerous private and governmental players in the business of launching satellites from so many different locations around the globe, the legal issues to simply identify a responsible party under the treaty can be complex.
A hypothetical example may help to illustrate the complexity of the present state of affairs regarding the nationalities and parties participating in the launch of spacecraft: Private Satellite Owner/Operator of State A together with the Government of State B, as a joint scientific (or com-mercial) venture, procure and launch their satellite aboard a vehicle of Private Launch Company of State C, which has a joint launch business venture with companies of State D, from a launch facility operated by the military of State D, which is geo-graphically located in State E.
The next issue is which forum, if any, to choose to bring a claim. If one can positively identify the source of the debris and the responsible "launching State(s)," a claim for com-pensation for damage against the identified negligent party under the Space Liability Convention must be brought or sponsored by a State against the responsible "launching State" and must be made through diplomatic channels. See Space Liability Convention at Art. IX. However, the Space Liability Convention is not the only avenue to seek compensation. The Space Liability Convention states that:
Nothing in this Convention shall prevent a State, or natural or
juridical persons it might repre-sent, from pursuing a claim in the courts or administrative tri-bunals or agencies of a launching State. A State shall not, however, be entitled to present a claim under this Convention in respect of the same damage for which a claim is being pursued in the courts or administrative tribunals or agen-cies of a launching State or under another international agreement which is binding on the States concerned.
See Space Liability Convention at Art. Xl(2) (emphasis added). The possible
LPBA JOURNAL
permutations of forum, jurisdiction, and applicable law to consider when seeking recovery outside the Space Liability Convention in a local forum are many. Since nations retain "juris-diction and control" over their spacecraft even when they are inoper-able, 51 the local forum of an offending
state may have jurisdiction and its laws may apply. This is an issue that a damaged party may be forced to explore on a case by case basis. Moreover, the convention itself fortu-nately does "not require the prior exhaustion of any local remedies which may be available to a claimant State or to natural or juridical [i.e., pri-vate companies] persons [the Claimant State] represents." See Space Liability Convention at Art. Xl(1).
Assuming the source of the trans-gressing spacecraft or debris is identified and one has brought the claim in a proper forum, there now remains the legal issue of how the damaged party may prove fault or negligence. "Operating a spacecraft in a way that poses a foreseeable risk to others is probably negligent. .. "52
Although de-orbiting defunct space-craft or placing them in harmless graveyard orbits before they become inoperable may be good practice or
APPENDIX A
SUMMER 2010
recommended by governments,53 it does not seem that satellite operators presently have an internationally rec-ognized duty to do so. 54 To date, there
are only voluntary "guidelines."55 56 At least under American jurisprudence, without a duty one cannot be negli-gent. So without concrete and binding international space standards of practice to establish such a duty, the damaged party may be out of luck to actually bring a claim against an iden-tified transgressor under the Space Liability Convention or in a local forum.
Ill. CONCLUSION
As debris from explosions and col-lisions presents an immediate (i.e.,
decades long51) problem for
space-craft safety and as additional objects are placed into earth orbit each year, 58
the problem of space junk seems to be an issue that the international and aerospace legal community may want to consider very seriously. In the aftermath of the February 10, 2009 Iridium/Cosmos collision, Major Regina Winchester, of the U.S. Strategic Command, said: "Space is getting pretty crowded. The fact that this hasn't happened before- maybe we were getting a little bit lucky."59
(Above) Small UAV's. (Right) Micro-Devices.
(Above) Predator. (Right) Rotary Wing.
171t Rotor
Ground Control Station
APPENDIX 8
This computer-generated image
shows objects (white dots) currently being tracked in low Earth orbit, which is the most concentrated area for orbital debris. See http://www. msnbc.msn.com/id/23708987/.
NASA artist's image show plotting of satellites that orbit the Earth. See http:! lwww.nydailynews.com/news/ us_world/2009/03/23/2009-03-23_ space_debris_becoming_more _of _a_
problem_.html.
Endnotes
Anna Mulrine, "UAV Pilots," Air Force Magazine, January 2009.
2 Jonathan Fahey, "You Can Run But...," Forbes, July 13, 2009.
3 http://www.faa.gov/about!office_org/head-q u arters_offi ces/ a vs/ offices/air /h http://www.faa.gov/about!office_org/head-q/ engineering/uapo (last visited Sept. 8, 2009).
4 http://www.faa.gov/about!office_org/head-q u arte rs_ offices/ a to/service_ units/ systemops/aaim/organizations/uas (last visited Sept. 8, 2009).
5 http://www. faa.gov/aircraft/air _cert/ design_approvals/uas/reg/media/frnotice_ uas.pdf (lasted visited Sept. 18, 2009). 6 Federal Aviation Administration
Memorandum, AFS-400 UAS Policy 05-01, September 16, 2005 at p. 4.
7 /d. at p. 3.
8 http://www. faa.gov/aircraft/air _certl design_approvals/uas/reg/media/frnotice_ uas.pdf (Docket No. FAA-2006-25714, "Unmanned Aircraft Operations in the National Airspace System," issued February 6, 2007).
9 /d.
10 http://www. faa.gov/aircraft/air _cert/ design_approvals/uas/cert! (last visited Sept. 8, 2009). 11 /d. 12 /d. 13 /d. 14 /d. 15 /d.
16 Federal Aviation Administration Memorandum, AFS-400 UAS Policy 05-01, September 16, 2005 at p. 1.
17 /d. at p. 2.
18 /d.
19 14 C.F.R. § 91.113 provides, in pertinent part, that vigilance shall be maintained by each person operating an aircraft so as to see and avoid other aircraft.
20 http://www .faa.gov/aircraftlair _certl design_approvals/uas/reg/media/frnotice_ uas.pdf (Docket No. FAA-2006-25714, "Unmanned Aircraft ()perations in the National Airspace System," issued February 6, 2007).
21 A brief search of the NTSB's aviation acci-dent database revealed several acciacci-dents involving UAV's, at least two of which were attributable to pilot error.
22 See McCarley, Jason S. & Wickens, Christopher D., "Human Factors Concerns in UAV Flight," Institute of Aviation, Aviation Human Factors Division, University of Illinois at Urbana-Champaign.
23 /d.
24 An official from a police department in a major American city who has requested anonymity expressed to us his belief that the use of UAV's in densely populated urban areas was unlikely because, in the event of a system failure, they cannot be "hand flown."
25 http://www.ntsb.gov/ntsb/brief2.asp?ev_ id=20060509X00531 &ntsbno=CHI06MA 12 1 &akey=1 (last visited Sept. 18, 2009). 26 Some methods to reduce the threat of
orbital debris include: (1) limiting the cre-ation of orbital debris; (2} preventing
30
EMERGING ISSUES
(Continued from page 27)
satellite explosions by venting or burning remaining fuel in rockets and by designing better batteries; (3) removing satellites from popular orbits at the end of life (i.e. to "graveyard" orbits at 300 km above geo-synchronous orbit or to lower altitudes to encourage natural decay); {4) enhancing tracking and encourage collision avoid-ance; {5) employing NASA Safety Standard 1740:14 (which establishes guidelines and provides supporting analysis tools for: {a) limiting the generation of orbital debris, {b) assessing the risk of collision with existing space debris, and (c) assessing the poten-tial of spacecraft gein13rated debris fragments to impact the Earth's surface); and {6) developing some form of clean-up program {which does not seem to be a cost-effective and feasible solution to date). See http://www.orbitaldebris.jsc. nasa.gov/library/EducationPackage.pdf {last visited Sept. 16, 2009). See also http://orbitaldebris.jsc.nasa.gov/library/ NSS1740_14/nss1740_14-1995.pdf (last visited Sept. 16, 2009).
27 Marion C. Blakey, Editorial, Space Debris: A Threat We Can't "Duck," SPACE NEWs, June 15, 2009, at 19, http://www.space-n ews. com/reso urce-cehttp://www.space-nter/shttp://www.space-n_pdfs/ SPN_20090615_Jun_2009.pdf. ("Although we are beginning to make great advances in improving our situational awareness for aircraft operating in the Federal Aviation Administration's air traffic control system, it is now time to improve that level of service for our assets in space.").
28 http://www .orbitaldebris.jsc.nasa.gov/ index.html {last visited Sept. 16, 2009}. 29 http:/ /www.orbitaldebris.jsc.nasa.gov I
faqs.html#1 (last visited Sept. 16, 2009). 30 /d.
31 /d.
32 /d.
33 See Appendix B for artist- and computer-generated image of space traffic.
34 http://www. orbitaldebris.jsc.nasa.gov/ library/EducationPackage.pdf {last visited Sept. 16, 2009}.
35 http:/ /www.orbitaldebris.jsc.nasa.gov/ faqs.html#1 (last visited Sept. 16, 2009). 36 On July 24, 1996, the CERISE
communica-tions satellite collided with a piece of fragmentation debris {about the size of a briefcase traveling at a relative velocity of 14km/sec or 31 ,500 mph for a head on col-lision) from an Ariane 1 rocket body. The satellite's 6 meter long stabilization boom was severed requiring the satellite's com-puter to be reprogrammed for attitude control. See http://www.orbitaldebris.jsc. nasa.gov/library/EducationPackage.pdf {last visited Sept. 16, 2009).
37 Ariane 5 Remnant Buzzes Space Station
and Shuttle, SPACE NEWs, Sept. 7, 2009, at
3, http:/ /www.spacenews.com/resource-center/sn_pdfs/SPN_-20090907 _ Sep_2009.pdf.
LPBA JOURNAL
38 Peter B. de Selding, Collision Avoidance
Practices Questioned Following Incident,
SPACE NEWs, Feb. 23, 2009, at 1, http:// www.spacenews.com/resource-center/sn_ pdfs/SPN_20090223_Feb_2009.pdf. 39 "The two satellites had collided 500 miles
above Siberia at 26,000 mph, generating a debris cloud that spread around the Earth in just a few hours. The junk was in the orbital path of the Hubble Space Telescope and just 250 miles higher than the orbit of the International Space Station." See http://www.popularmechanics.com/sci-ence/air_space/4326022.html (last visited Sept. 16, 2009).
40 http://www.boston.com/news/nation/ articles/2008/02/21 /us_missile_hits_crip-pled_satellite/ (last visited Sept. 16, 2009). 41 http:/ /www.space.com/news/070202_
china_spacedebris.html (last visited Sept. 16, 2009).
42 http: I lwww. space. com/mission launches/090907 -sts128-chinese-debris. html (last visited Sept. 16, 2009}.
43 http:/ /www.orbitaldebris.jsc.nasa.gov/ faqs.html#1 (last visited Sept. 16, 2009). 44
http://www.thestar.com/News/World/arti-cle/586943 (last visited Sept. 16, 2009). 45 /d.
46 http://www. reuters.com/article/science-News/idUSN1244243120090212?sp=true {last visited Sept. 16, 2009).
47 http:/ /www.popularmechanics.com/sci-ence/air_space/4303567.html (last visited Sept. 16, 2009).
48 http:/ /www.oosa. unvienna.org/pdf/publi-cations/STSPACE11 E. pdf {last visited Sept. 16, 2009).
49 "Under that treaty, liability for damage caused to people or property on the ground is 'absolute'-meaning that the country that launched the spacecraft is liable for damages even if there was no negligence. The same is true if a crashing space object
strikes an aircraft. It does not matter how
the accident happened: If your spacecraft does damage, you pay." See http://www. popularmechanics.com/science/air_ space/4303567.html (emphasis added) (last visited Sept. 16, 2009). See also Convention on International Uability for Damage Caused by Space Objects art. II, March 29, 1972, 24 UST 2389, 961 UNTS 187 ("A launching State shall be absolutely
liable to pay compensation for damage
caused by its space object on the surface
of the Earth or to aircraft in flight.")
(empha-sis added).
50 U.S. Congress, Office of Technology Assessment, Orbiting Debris: A Space
Environmental Problem-Background
Paper, OTA-BP-ISC-72 (Washington, DC: U.S. Government Printing Office, September 1990). See a/so http://www. spacelaw.olemiss.edu/library/space/US/ Legislative/OTA/OTA-BP-ISC-72%20-%20 Orbiting%20Debris.pdf {last visited Sept. 16, 2009).
51 http://www. popularmechanics.com/sci-ence/air_space/4303567.html (last visited Sept. 16, 2009). See also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
SUMMER 2010
Space, including the Moon and Other Celestial Bodies art. VIII, Jan. 27, 1967, 18 UST 2410, 610 UNTS. 205, http://www. oosa. u nvi enna. o rg/pdf/pu b I ications/ STSPACE11 E. pdf (last visited Sept. 18, 2009).
52 http:/ /www.popularmechanics.com/sci-ence/air_space/4303567.html {last visited Sept. 16, 2009).
53 U.S. Government Orbital Debris Mitigation Standard Practices, http://www. orbitaldebris.jsc.nasa.gov/library/USG_ OD_Standard_Practices.pdf (last visited Sept. 18, 2009).
54 One would assume that if an operator were powerless to either de-orbit or place a spacecraft into a graveyard orbit because of an unforeseen malfunction, etc., they would not be held responsible because they would not have breached a duty. 55 "In 1995 NASA was the first space agency
in the world to issue a comprehensive set of orbital debris mitigation guidelines. Two years later, the U.S. Government devel-oped a set of Orbital Debris Mitigation
Standard Practices based on the NASA
guidelines. Other countries and organiza-tions, including Japan, France, Russia, and the European Space Agency (ESA}, have followed suit with their own orbital debris mitigation guidelines. In 2002, after a multi-year effort, the Inter-Agency Space Debris Coordination Committee {IADC), com-prised of the space agencies of 1 0 countries as well as ESA, adopted a con-sensus set of guidelines designed to mitigate the growth of the orbital debris population. In February 2007, the Scientific and Technical Subcommittee (STSC) of the United Nations' Committee on the Peaceful Uses of Outer Space (COPUOS) complet-ed a multi-year work plan with the adoption of a consensus set of space debris mitiga-tion guidelines very similar to the IADC guidelines. The guidelines were accepted by the COPUOS in June 2007 and endorsed by the United Nations in January 2008." See http:/ /www.orbitaldebris.jsc. nasa.gov/mitigate/mitigation.html (last vis-ited Sept. 18, 2009).
56 http:/ /www.secureworldfoundation.org/ index.php?id=14&page=Mitigation_of_ Orbitai_Debris (last visited Sept. 18, 2009}. 57 The length of time debris will remain in orbit depends upon the altitude of the orbit. An object with an altitude of less than 200 km will remain in orbit a few days. An object with an orbit between 600 and 800 km will remain in orbit for decades and for centuries with an orbit of greater than 800 km. See http:/ /www.orbitaldebris.jsc.nasa. gov/library/EducationPackage.pdf (last vis-ited Sept. 16, 2009}.
58 There are approximately seventy-five (75) spacecraft launches per year. See http:// www.orbitaldebris.jsc.nasa.gov/library/ EducationPackage.pdf {last visited Sept. 16, 2009).
59 http://www.cnn.com/2009/TECH/02/12/ us.russia.satellite.crash/index.html (last visited Sept. 16, 2009).
