NEW CHALLENGES FOR THE WARSAW/MONTREAL

SYSTEM?

Which legal regime for space transportation with regard to passengers?

by

Prof. Dr. Stephan Hobe LL.M. Director of the Institute of Air and Space Law

University of Cologne, Germany1

I. Introductory Reflexions

Suborbital Vehicles: space objects or aircrafts?

Institute of Air and Space LawUniversity of Cologne

2Prof. Dr. Stephan Hobe

I. Introductory Reflexions

Liability in Airspace Contractual Liability

Warsaw Convention 1929- System for the initial international air transport- 152 Party States

Montreal Convention 1999- Two-tier-liability system- 107 State Party

Third Party Liability Rome Convention 1952

- General Risk Convention (2009-not in force)- Unlawful Interference Convention (2009-not in force)

Institute of Air and Space LawUniversity of Cologne

3Prof. Dr. Stephan Hobe

I. Introductory Reflexions

Space Liability

Outer Space Treaty 1967 Third Party State Liability Convention 1972 Liability

Passengers liability?? No regulation!!

4

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Suborbital Vehicles: which liability regime does apply?

Special rules or general rules-tortuos and contractual liability-?

Under special rules: space or air law?

5

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Suborbital Vehicles: which liability regime does apply?

Suborbital vehicles: Cross airspace, exit atmosphere, altitude 100-120 Km Combine (most of them) technical specifications of aircraft

and space objects

6

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Suborbital Vehicles: which liability regime does apply?

Suborbital vehicles: Differente theories None gives a satisfactory

- Spatial theory solution- Functional theory- Technical theory

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Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

Contractual Liability

II. Space Touristic Activities: Current legal regulation

Suborbital Vehicles: which liability regime does apply?

Rome Convention1952

..damage caused by aircraft in flight…

UIC 09 damage to third parties…caused by aircraft in flight

GRC 09 damage to third parties…caused by aircraft in flight

Reg. 2027/97 Damage…on board an aircraft or in the course of the operations of embarking or disembarking

MC‘99 international carriage…performed by aircraft

8

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Suborbital Vehicles: which liability regime does apply?

De lege data no possible general application of wether air not space law liability regulations.

Need of special rules? Would the Space/Air law liability regulations appropiate?

9

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Liability of the Operator: Contract (US law)

Passengers „Waiver of liability“ Space activities ultra-hazardous Expense and risk of passenger

Why so? Let‘s compare air and space Law at this point

10

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

Contractual Liability

II. Space Touristic Activities: Current legal regulation

Air Law Liability Sytem

WC‘29 Fault Based Liability

Low limit of damage

Low liability risk on the air carrier(protection of the air carriers)

MC‘99 Two-tier-system: strict+fault based liability

Limited liability for the air carrier

Increase of air carrier‘s risk

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Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Space Law Liability Sytem

OST’67LC‘72

Launching State‘s unlimited liability

Third Party liability

High liability risk for the State

None (?) for the „space transporter“- so far

Space activities only by States

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Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

II. Space Touristic Activities: Current legal regulation

Space law liability system: future needs

If intervention of „private transporters“ Risk‘s assesment required Insurance market will develop Need for certainty of diligence

MC‘99 appropiate system13

Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe

III. Summary

Necessity of liability system for suborbital flights

Not only States as space actors

Use of elements of aviation liability+insurance system

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Institute of Air and Space LawUniversity of CologneProf. Dr. Stephan Hobe