Falling Stars and Sinking Ships: How Maritime Law Fills the Gaps of the Outer Space Treaty

A blog post by McKenzie Franck, Junior Associate.

The urge to go where no man has gone before has led to great leaps in space technology that only seemed real in cinema. As more private companies attempt to take this leap, it has become clear that there are significant gaps in international space law regarding liability with private parties.[1] Within Article VII of the Outer Space Treaty, there is a laid-out structure on how states can be held liable for damages caused by celestial bodies.[2] However, the Outer Space Treaty ignores what happens if a private company causes injuries in another country or to another space craft.[3] While there has yet to be an example of a private company causing damages from negligence under space law, we know what may happen through Maritime Law.[4] With multiple similarities between maritime and space law, already established maritime regulations can easily be used as a supplementation for space law. [5]

The first way maritime law can be used to supplement the Outer Space Treaty is with limitations of liability.[6] Under the Doctrine of Limited Liability, a shipowner is restricted to only the shipowner’s interest in the vessel.[7] Through this doctrine and under maritime law, shipowners can limit the amount of their liability in respect to tort and other contract claims.[8] Moreover, limited liability protects the personal interest of an investor from any wrongdoing of a corporation.[9] Thus, countries could apply limited liability for companies sending out ships to outer space law.[10]

In addition to limited liability, insurance would also be needed to protect space vessels and cargo. Recognized as the earliest forms of insurance,[11] marine insurance covers damage and loss for ships, cargo, or any movable property while being transferred on the sea.[12] Like limitation of liability, marina insurance coverage protects ship owners and incentives them to continue doing commerce at sea.[13] Thus, private owners of space vessels would be safeguarded if maritime-like insurance applied to outer space vessels.[14] This protection could encourage private companies to explore space further.

Finally, employees also need to be considered when adding supplements to the Outer Space Treaty. As outer space commerce begins to expand, more humans will need to venture out of Earth’s orbit.[15] Additionally, like maritime employees, outer space employees can be prone to many exposures that may cause injuries or illnesses.[16] Under Maritime Employers Liability (MEL), companies can provide solutions to employees after being injured or becoming ill at sea.[17] Furthermore, this coverage can protect companies in cases of tort-based claims.[18]  Therefore, companies protect themselves and individuals by having MEL coverage. [19] By applying similar types of employers’ liability regulations to the outer space treaty, outer space companies can protect themselves and their employers from the galaxy’s unknowns.

In conclusion, Maritime law concepts should supplement Article VII of the Outer Space Treaty because of the treaty’s direct relation to maritime ideas.[20]  Specifically, creating space regulations based on maritime limited liability, vessel insurance, and employment insurance should be established. Supplementing Article VII of the Outer Space Treaty with maritime law would better prepare countries for negligence in the case of failure from private companies.[21] Applying maritime liability and insurance options to private companies would also allow further innovation and protection.[22] Thus, having a more outlined understanding of outer space law will ultimately aid in giving private companies notice and security so they can continue innovating and exploring the galaxy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Rachel Rogers, The Sea of the Universe: How Maritime Law’s Limitation on Liability Gets it Right, and Why Space Law Should Follow By Example, 26 Ind. J. Glob. Legal Stud. 741, 745 (2019).

[2] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodie, art. 7, Oct. 10, 1967, 610 U.N.T.S 205.

[3] Id.

[4]Rogers, supra note 1, at 743

[5] Jason Krause, The Outer Space Treaty turns 50. Can It Survive A New Space Race?. ABA J. (April 1, 2017, 5:00 AM), https://www.abajournal.com/magazine/article/outer.

[6] Britannica, https://www.britannica.com/topic/maritime-law/Marine-insurance (last visited Mar. 14, 2022).

[7] Upcounsel, https://www.upcounsel.com/doctrine-of-limited-liability (last visited Mar. 14, 2022).

[8] Britannica, supra note 5.

[9] Upcounsel, supra note 7.

[10] Rogers, supra note 1, at 754.

[11] Perkins Coie, https://www.perkinscoie.com/en/insurance-recovery-resource-library-1/marine-insurance.html (last visited Mar. 14, 2022).

[12] Pradhan Mantri Fasal Bima Yojana, https://nationalinsurance.nic.co.in/en/marine (last visited Mar. 14, 2022).

[13] Id.

[14] Id.

[15] See, Space: Investing In The Final Frontier, Morgan Stanley (Jul. 24, 2020), https://www.morganstanley.com/ideas/investing-in-space (explaining how progress in space for commerce will lead to needed investments to reach outer space); See, e.g., Julie Gaubert, Latest Space X Astronauts In Orbit Makes It 600 People To Reach Space in 60 Years, Euronews Next (Nov. 11, 2021), https://www.euronews.com/next/2021/11/11/latest-spacex-astronauts-in-orbit-makes-it-600-people-to-reach-space-in-60-years (explaining space X launching four astronauts into orbit.).

[16] See, Merrimac, https://www.merrimacins.com/what-is-maritime-employers-liability-coverage/ (last visited Mar. 14, 2022).

[17] Id.

[18] Id.

[19] Id.

[20] Krause, supra note 5.

[21] See Rogers, supra note 1, at 750.

[22] See Upcounsel, supra note 7.

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