Risk
management in Arianespace space launch agreements
Julian
Hermida
synopsis
I.
Introduction
II.
Space Risk Management
A.
First Party Risks
B.
Second Party Risks
1.
International Liability Risks
1.1
First Layer
1.2
Second Layer
2.
Property Risks
C. Third
Party Risks
1.
First Layer: Insurance
1.1
Purpose
1.2
Acquisition of Insurance
1.3
Type of Insurance
1.4
Damage
1.5
Beneficiaries
1.6
Period
1.7
Insurance Cap
2.
Second Layer: Government Indemnification
III. Conclusion
________________________________________________________________
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pace risk management, or the process for
identifying and addressing loss exposures of all kinds, constitutes one of the
most important aspects of any commercial space transaction. In effect, its
analysis is highly relevant in financing commercial space business ventures, as
well as for insurance, contractual and even institutional purposes. In this
article we examine the way the so-called legal space risks are managed in
commercial launch services provided by Arianespace.
Space
risk management involves the executive functions of planning, organizing,
leading and controlling the factors associated with risk exposure by an entity
engaged in commercial space endeavors. As in most activities, risk management
in commercial space transportation entails basically the following elements:
(i) risk identification, (ii) risk assessment, (iii) risk control, and (iv)
risk financing.[1]
The
nature of risks deriving from a space endeavor is varied. They include
political, market, technical and legal risks. Succinctly, legal space risks
represent exposure to situations connected with a space endeavor which may
generate liability, in particular the obligation to compensate damages. These
risks encompass (i) the so-called risks among participants or first-party
risks, (ii) second-party risks and (iii) third party risks. First party risks
imply the possibility of causing damages to the participants' space objects,
i.e., the space vehicle in the case of the launch company or the payload in
case of the customer, and to the participants' personnel resulting from the
launch activity. Second party risks constitute risks to certain related
entities which, although they do not participate directly in the space
activity, are all the same exposed to some risks. In the case of launches
carried out by Arianespace, these are basically risks to the French government,
CNES, the European Space Agency and ESA's member states, risks which originated
in particular because of the use of launch facilities and related range
services and because of the consequences derived from international Space Law
liability norms.[2]
Third party risks refer to the possibility of damages caused to persons and
property thoroughly unrelated to the operation. These may include, for example,
persons and property that did not participate in any manner in the space
launch, such as the victims of the Long March accidents in the mid 1990’s.[3]
A. First Party Risks
First
party risks are assumed by each party, by means of reciprocal waivers of
liability. These are always included in the launch services agreement and trace
their origin to the reciprocal waivers of liability first adopted by NASA.[4]
They are generally drafted as follows:
"Each Party
shall bear any and all loss of or damage to property and any bodily harm
(including death) and all consequences, whether direct or indirect, of such
loss, damage or bodily harm, (including death), and/or of a Launch Mission
failure and/or of a Satellite Mission Failure, which it or its Associates may
sustain that arises in any way in connection with this Agreement, or the
performance of this Agreement. Each Party irrevocably agrees to a no-fault, no
subrogation, interparty waiver of liability, and waives the right to make any
claims or to initiate any proceedings whether judicial, arbitral,
administrative on this account against the other Party or that other Party's
Associates for any reason whatsoever.
"Each Party agrees to bear
the financial and any other consequence of such loss, damage or bodily harm
(including death), and/or of a Launch Mission failure and/or of a Satellite
Mission Failure, which it or its Associates may sustain, without recourse against
the other Party or the other Party's Associates.
"In the
event that one or more Associates of a Party shall proceed against the other
Party and/or that Party's Associates as a result of such loss, damage or bodily
harm (including death), and/or of a Launch Mission failure and/or of a
Satellite Mission Failure, the first Party shall indemnify, hold harmless,
dispose of any claim, and defend, when not contrary to the governing rules of
procedure, any liability and expense, including attorneys' fees, on account of
such loss, damage or bodily harm (including death), and/or of a Launch Mission
failure and/or of a Satellite Mission Failure and shall pay all expenses and
satisfy all judgments and awards which may be incurred or rendered against that
other Party and/or its Associates."
As
can be gathered from the quoted clause of the agreement, these waivers of
liability consist of (i) a general assumption of risks by each party, (ii) the
assumption of the consequences of those risks, (iii) a consequent waiver of
rights to make a claim for liability, (iv) a waiver for the consequences of the
losses suffered, and (v) an indemnification or hold harmless provision in case
of actions filed despite the waiver.
The
objectives sought by the reciprocal waivers of liability are basically to limit
the claims that might arise from a launch, and to eliminate, or at least
reduce, the necessity to obtain property and casualty insurance to protect
against claims which may otherwise derive from the launch.[5]
Since it is more frequent for a carrier to cause damages to its customer rather
than the reverse, i.e., damages caused by the satellite to the space vehicle,
the reciprocal waivers of liability act as a mechanism for the transfer of
first party risks to the customers, thus exempting the launch provider from
damages which it causes. In practice, this ACTS
as an exclusion of liability, which constitutes an exception to the fault
principle of the French civil law.[6]
The
scope of reciprocal waivers of liability is quite broad, for they include (i)
damage to property, (ii) bodily harm, (iii) death, (iv) all their consequences,
(v) Launch Mission failure, and (vi) Satellite Mission Failure. The waivers of
liability used in Arianespace launch services agreements also cover contractual
losses. In effect, they include Launch Mission failure, i.e., the impossibility
of placing the satellite in the agreed upon orbit due to problems caused by the
space vehicle or the launch itself, and Satellite Mission Failure, i.e., risks
of causing damage to the satellite which may impede it to attain the intended
orbit or operate successfully in it.
As
mentioned above, the reciprocal waivers of liability comprise a no-fault, no
subrogation, interparty waiver of liability, and an indemnification provision
in the event that a claim is nonetheless filed. The former implies that neither
party may make any claims or initiate any proceedings not only judicial but
also arbitral or administrative based on any reason or event connected to the
agreement. Since the waiver is a no fault- type the parties may not allege
fault on the other party to base a claim. It is not clear, however, whether a
party to an Arianespace agreement could file a claim based on willful
misconduct or even gross negligence (faute
lourde). A non-subrogation waiver means that a third party, mainly the
insurance company or a financial institution which, for example, provided
funding to the payload, may not place itself in the parties' position and make
a claim to the party causing damage based on the rights assigned to it.
The
indemnification provision for claims filed despite restriction of waivers of
liability stems from the fact that clauses whose object is the exoneration of
responsibility in cases of bodily injury are prohibited under French Law.[7]
Therefore, in the event that, for example, employees of the customer suffer
physical damages or even death they or their heirs could file a claim before
the French courts, which would be admitted despite the waiver of liability
contained in the launch services agreement. In such a case, the launch carrier
could be condemned to pay damages to that employee or their heirs. If so, the
carrier could, in turn, recover damages so paid from its customer by invoking
the indemnification and hold harmless provision of the agreement.
The
reciprocal waivers of liability encompass both Arianespace and its associates
and the satellite owner and its associates. The term associate is defined as
the personnel, the contractors and subcontractors of the launch company and the
satellite owner. Therefore, in the event of an accident triggered by a
component of the satellite, Arianespace would be precluded from making a claim
against its customer contractor or subcontractor that manufactured the part
which caused the accident. At the same time, if an accident causes damage to
the satellite and the cause of that accident is found to be a device in the
Ariane, the satellite owner may not bring a claim against Arianespace's
contractor or subcontractor that produced said device.
This
liability-waiver scheme is further complemented by obliging each party to the
agreement to make its contractors and subcontractors execute reciprocal waivers
of liability so that they will also be banned from filing claims in the event
of an accident. This is generally drafted in Arianespace launch services
agreement as follows:
"Each Party
obligates itself to take all necessary and reasonable steps to foreclose claims
for loss, damage or bodily harm (including death) by any participant in the
launch activity. Each Party shall require its Associates to agree to a
no-fault, no subrogation, inter-party waiver of liability and indemnity for
loss, damage or bodily harm (including death) its Associates sustain identical
to the Parties' undertaking under this Article ... of the Agreement..."
This
so called flow-down waiver of liability was modeled after NASA's extension of
their waivers of liability following the Western Union launch failure.[8]
While it is clear that each party to the agreement is obliged to avoid claims
made by other participants, mainly contractors and subcontractors, to the other
party and to execute waivers of liability so that they will not sue the other
party, it is not clear whether a party may sue its own associates. This possibility
which is not forbidden in the United States systems would seem banned by the
wording of the flow-down provision, which differs slightly from the ones used
by NASA and US private sector companies.[9]
B. Second Party Risks
As
examined above, second party risks may be divided into risks derived from
international Space Law liability norms called International Liability Risks
and risks to the owners or other right-holders of the launch facilities and
related range services. The latter are called Property Risks.
1. International
Liability Risks
Second
party international liability risks involve Arianespace, the European Space
Agency, its member states and the French government. They refer to the
possibility of these governmental and supra-governmental entities' being
considered launching states and therefore liable pursuant to the Liability
Convention.[10]
These risks are distributed on a two-layered basis, where Arianespace assumes
liability up to 400,000,000 French francs through insurance and the French
government bears all liability claims above that level by means of governmental
indemnification.
1.1
First Layer
Participants
in the Production Declaration requested Arianespace to undertake to reimburse
the French Government within a ceiling of 400 million French francs per launch,
the amount of any damages it may be required to pay in case of damages caused
by Ariane launches rendered by Arianespace to third parties to such launches.[11]
This assumption of liability by Arianespace is implemented through a
reimbursement of costs to the French government for compensation it may have
paid in the event of proceedings initiated for damages caused by Arianespace to
third parties if the French government, ESA or its member states were considered
launching states and thus held liable for said damages. In this case,
Arianespace does not have to pay directly to the victims but has to refund the
French government any compensation actually paid by it to third parties or to
ESA or its member states if the Agency or its members paid a compensation to
the victims of the accident if they were deemed launching states. The cap on
the reimbursement has been set on a per launch basis. Thus, even if, for
example, Ariane carries two payloads in a single launch which causes damages to
third parties, Arianespace will still have to reimburse up to 400,000,000
French francs.
It
is worthy to note that the Declaration is silent as to whether the compensation
which Arianespace has to reimburse may include reasonable attorneys' fees or
only actual compensation paid to the victims. In our opinion, since there are
no restrictions or limitations in the text of the Declaration it is reasonable
to hold that attorneys' fees should be considered included within the obligation
to reimburse. Thus, for example, if a launch service provided by Arianespace
causes damages to foreign persons thoroughly unrelated to the launch and a
judgment is passed condemning the French government and ESA, together with its
members, to pay compensation in the amount of 200,000,000 French francs and
court costs and attorneys' fees of 50,000,000 French francs, Arianespace should
reimburse the French government 250,000,000 French francs.
There
is no procedure for reimbursement of the compensation. Neither is there a term.
We understand, however, that Arianespace should refund the compensation to the
French government immediately or at least as soon as practically feasible.
Another important aspect which is worth highlighting is the fact that the
Declaration does not expressly deal with the kind of claims paid by the French
government which Arianespace has to reimburse. In this regard, the Declaration
does not foresee, for example, whether the compensation paid by the French
government that triggers off Arianespace's reimbursement obligations must arise
from a final and definitive judgment or if, for example, the French government
may or may not settle a claim in any amount and seek reimbursement from
Arianespace.
1.2 Second Layer
According
to the Production Declaration, in the event of a claim made by the victims of
damages caused by Ariane launches, the French Government will be responsible
for the payment of any damages that may be awarded.[12] This
assumption of liability implies a governmental indemnification granted by the
French state, which has been loosely modeled after NASA's indemnification. The
quoted article of the Production Declaration is silent as to the floor and
ceiling of this governmental indemnification. However, a thorough analysis of
the Declaration indicates that since Arianespace is obliged to face all claims
up to 400,000,000 French francs through insurance, the indemnification granted
by the French government operates in practice as from that level upwards.
Additionally, since there is no cap it may be concluded that the French
government has volunteered to indemnify the maximum possible loss, i.e., all
claims which may arise from the launch regardless of the aggregate amount and
their likelihood of occurrence. Therefore, Arianespace assumes liability for
what is considered maximum probable loss, i.e., 400,000,000 French francs, and
the government assumes the potential but extremely unlikely maximum possible
loss.
According
to Lafferranderie, the beneficiaries of the indemnification are the member
states of the Agency, whether or not they participate in the production phase
of the Ariane.[13]
We disagree with Lafferranderie, for there are no limitations regarding
beneficiaries in either article V.1 or elsewhere in the Declaration. In effect,
the article in question simply puts forward that the French government will
have to bear the compensation of damages. This commitment should be construed
as benefiting all entities which the Declaration addresses itself to.
Consequently, the assumption of liability made by the French government
includes not only ESA's member states, but also ESA itself and Arianespace.
2. Property Risks
In
order to distribute this category of second party risks, the ESA and
Arianespace signed a Convention on May 15, 1981[14]
- extended on September 24, 1992 - whichh aimed at putting into practice the
principles of the Production Declaration. The Convention establishes
risk-distribution provisions for two hypotheses: (i) damages caused by
Arianespace to the ESA and (ii) damages caused by the ESA to Arianespace.
With
respect to the former, Arianespace is held liable for all damages caused by it
or third parties to the ESA’s goods (or to participant states) that have been
at its disposal. In effect, whenever Arianespace causes damages to the Agency's
launch site it will have to assume liability and pay for all damages it
produces. This is also true with regard to damages caused by third parties to
the Agency. Within the meaning of the Convention, a third party would include
Arianespace's customer and CNES, among others. Thus, in event that the
satellite causes damages to the Agency's launch facilities Arianespace will
assume the risks vis à vis the Agency. In order to manage these risks assumed
by Arianespace, the launch carrier takes out insurance and passes the cost of
this insurance to its customers. This insurance covers what Arianespace
considers is the maximum probable loss that the ESA may suffer in a launch:
400,000,000 French francs. Therefore in the launch services agreement
Arianespace includes the following language in the clause dealing with
insurance requirements, which is fully analyzed below. Suffice it here to quote
the relevant part of this clause. It generally reads as follows:
“Arianespace
shall, for the Launch, take out an occurrence basis type insurance policy at
Customer's cost to protect itself and Customer against liability for property
and bodily harm which Third Parties may sustain and which are caused by the
Combined Space Vehicle or part thereof. In said insurance policy the natural
and corporate bodies hereafter shall be named as assured: “...”4. The European
Space Agency "E.S.A.", but only in its capacity as owner of certain
facility and/or outfits located in the Centre Spatial Guyanais in Kourou and
made available to Arianespace and/or C.N.E.S. for the purpose of the
preparation and the execution of the launches...”
Notice
that this insurance policy is included within the general insurance policy that
Arianespace takes out. In that insurance, Arianespace has to extend protection
to the ESA for damages to its facilities, but there is no need to acquire a new
and separate policy to cover these risks. This, nonetheless, increases the
price of the policy for the customer, who is ultimately forced to assume
through this insurance the cost of holding the ESA harmless for the damages it,
Arianespace or CNES may cause to the ESA.
With
regard to damages caused by the ESA to Arianespace, the launch services
provider has agreed to assume these risks and bear all damages. Indeed, it gave
up making any claims to the ESA for damages it may suffer which are caused by
the use of the Agency’s goods.
C. Third Party Risks
Third
party risks are distributed in Arianespace launch services agreements on a
two-layered basis. In the first level, Arianespace requires the customer to
assume the risks up to the amount of 400 million French francs through
insurance taken by Arianespace and paid for by the customer. In the second
level, the French government provides full indemnification to Arianespace above
400 million French francs.
1. First
Layer: Insurance
Due
to the importance of this clause in the Arianespace agreements, it is worth
quoting the language generally used by the French carrier:
"Arianespace
shall, for the Launch, take out an occurrence basis type insurance policy at
Customer's cost to protect itself and Customer against liability for property
and bodily harm which Third Parties may sustain and which are caused by the
Combined Space Vehicle or part thereof. In said insurance policy the natural
and corporate bodies hereafter shall be named as assured:
1. The government
of France
2. The Centre
National d'Etudes Spatiales "C.N.E.S." and any launching state as per
Convention of March 29, 1972 related to the international liability damage
caused by spacecraft.
3. The
auxiliaries of any kind, whom Arianespace and/or the C.N.E.S. would call for in
view of the preparation and execution of the launching operations.
4. The European Space
Agency "E.S.A.", but only in its capacity as owner of certain
facility and/or outfits located in the Centre Spatial Guyanais in Kourou and
made available to Arianespace and/or C.N.E.S. for the purpose of the
preparation and the execution of the launches.
5. The firms, who
have participated in the design and/or in the execution and/or who have
provided the components of the Launch Vehicle, of its support equipment
including propellants and other products either liquid or gaseous necessary for
the functioning of the said Launch Vehicle, their contractors, subcontractors
and suppliers.
6. Customer and
Third Party Customer(s) of Arianespace on whose behalf Arianespace executes the
launch services as well as their co-contractors and subcontractors.
7. When they act
in the scope of their activities, the Officers and Directors, the legal
representatives, the Managing Director, the employees, agents, as well as the
interim staff employed by Arianespace or by the Assured mentioned in hereabove
Paragraph 1 to 6 (included).
Said insurance
coverage shall come into effect as of the day of the Launch, and shall be
maintained for thirty-six (36) months or for so long as all or part of the
Combined Space Vehicle remains in orbit, whichever period is shorter.
The insurance
policy shall be taken out in the amount of 400,000,000 French francs.[15]
1.1 Purpose
As
can be seen in the above quoted clause, it is Arianespace that undertakes to
procure the insurance to protect from third party liability, but it is the customer
that actually has to pay for it. The reason for this mechanism lies in the fact
that the space insurance industry has proven to be quite volatile. Indeed,
space insurance is a "specialty line and only a relatively small community
within the totality of the insurance industry is actively involved in providing
insurance for space launches."[16] In the early
1980's, right before the risk allocation system for Arianespace was conceived,
the space insurance industry suffered a number of serious losses due to launch
failures and the loss of payloads.[17]
1.2 Acquisition of Insurance
In
light of these characteristics of the space insurance market, it is believed
that if Arianespace directly negotiates the premiums for its customers with the
insurance companies it may obtain better prices than if satellite operators
individually intend to procure space insurance. This is especially so in the
case of start up, small companies or companies from developing countries with
little experience negotiating with the space insurance industry. Additionally,
this is beneficial for all satellite companies in the event of a crisis of the
space insurance market, which, as analyzed above, may occur somewhat
frequently. Unlike NASA, Arianespace has no authority to waive the cost of the
insurance to certain entities that find it more difficult to obtain insurance,
either because of their financial situation or because of market conditions.[18]
1.3 Type of Insurance
The
kind of insurance contemplated in the launch services agreement is an
occurrence type, i.e., that insurance which requires notice of a reportable
occurrence to the insurer as soon as practicable. Within the meaning of
insurance, an occurrence is an incident which is sufficiently serious to lead
the insured to believe that it might give rise to a claim for damages covered
by the policy.
1.4 Damage
The
insurance has to protect against liability for property and bodily harm that
may be suffered by third parties. Although not always expressly mentioned in
the launch services agreement, it is obvious that liability for death also has
to be covered by the insurance. Under the quoted section of the agreement,
liability, which should be covered in the insurance, is that caused by the
combined space vehicle, i.e., the Ariane, the payload assist module, and their
parts.
1.5 Beneficiaries
Apart
from certain entities such as the French government, CNES or ESA fully analyzed
within the category of second party risks, the insurance policy has to include
as insured Arianespace, the customer, companies which participated in the
design and execution, or companies that provided certain components to the
launch vehicle, and the contractors and subcontractors of the customer and
Arianespace. It is worth recalling that contractors and subcontractors are
protected against claims which may be filed against them on the grounds of the
product liability theory.
Although
not specifically mentioned, suppliers of the customer should also be named as
insured. Indeed, the agreements generally establish that the suppliers of the
launch company should be included in the insurance policy. However, we
understand that the spirit of this provision extends to all suppliers of
component parts of the satellite. In effect, we are of the view that the concept
of supplier is included within the meaning of the phrase "contractors and
subcontractors."
According
to the quoted article, the insurance will also include as additional insured the
officers, directors, legal representatives, managing director, employees,
agents and interim staff of Arianespace and the customer and their contractors
and subcontractors. In order to be covered by the policy, these people must
have acted in the scope of their activities at the time of the occurrence of
the accident which caused damages. It is to be noted that this policy does not
qualify as life insurance for these people. In actuality, it protects them from
liability claims made by third parties.
1.6 Period
The
effective period of the insurance coverage commences with the launch and ends
at the earlier of the end of the thirty-sixth month as from the launch, or as
long as a part or all of the combined space launch vehicle is in orbit.[19]
Controversies may arise for the determination of the moment when the space
vehicle, or rather a component part, ceases to be in orbit. Since a part of a
launch vehicle, or any other space object for that matter, may remain in outer
space for years it is sometimes difficult to determine the moment when the
insurance coverage has ended. Following Mireille Couston, if the satellite
causes damages to a third party once the insurance policy has expired, the
customer will have to face these damages.[20]
Indeed, for example, in the event OF
an accident occurring after the thirty-sixth month period where debris from the
satellite cause damages to a third person on Earth, the customer will have to
compensate these damages. In the author’s opinion, however, the customer will
only have to pay for damages up to 400,000,000 French Francs, for the
governmental indemnification covers any claim above that amount.
1.7 Insurance Cap
The
insurance requirements have been capped at the amount of 400,000,000 French francs. In effect, Arianespace
has to hire an insurance policy of only 400,000,000 Ff. According to a
statement made by Douglas A. Heydon before the US House of Representatives, the
historical basis for Arianespace's requiring the customer to obtain 400,000,000
French francs coverage is simply that when Arianespace began writing its first
contracts the only model available was NASA. At that time, in the 1970's, NASA
required a coverage of US$ 100,000,000. The French Franc was four to the
dollar, which equaled 400,000,000 French francs. [21]
2. Second
Layer: Government Indemnification
Claims
for third party liability which exceed 400,000,000 French francs are assumed by
the French government through indemnification. In effect, following NASA's
distribution of risks and assignment of liability system, in the event of a
claim by a third party filed against the user, Arianespace takes full
responsibility for these risks and agrees to cover its customers. In turn, the
French government has undertaken to hold Arianespace harmless from all these
claims exceeding 400,000,000 French francs.[22]
As
in the NASA system, governmental indemnification constitutes a fundamental
risk-sharing instrument aimed at protecting Arianespace's customers for claims
above the level of insurance. Through this indemnification the customer is
relieved from the risks of having to face claims above 400,000,000 French
francs. This indemnification does not presently cost a single Franc to French
taxpayers, for the government will only have to make a payment in the event of
a catastrophic accident, which is rather unlikely to occur.
III. Conclusion
In
light of the risks which commercial space launches entail, risk management has
achieved considerable significance in the space industry. In the commercial
space launch sector the risk-allocation system, in particular the management of
legal space risks, has become quite standardized and highly regulated, thus
allowing practically no possibility of deviating from the system stemming from
this regulation. Under the Arianespace risk-sharing regime the management of
legal risks is limited to the prescriptions of agreements executed at the
national and Agency levels and the provisions of the contracts, which are
neither easily nor frequently modified by the participants.
The
above analysis has shown that the first-party regime is quite comprehensive and
it is characterized by the transfer of risk to the user and by the launcher's
limitation of liability. However, the third party regime places the customer in
a very advantageous position, especially given the low levels of liability
insurance required. The second party regime provides a favorable situation for
both the launcher and the carrier as a result of the assumption of liability by
the French government motivated by its desire to maintain French leadership in
space.
[1] . J. Trieschmann, R. Gustavson & G. Sandra, Risk Management & Insurance, 9th ed. (Cincinatti: South Western College Publishing, 1995) at 4.
[2] D. Maniatis, "The Law Governing Liability for Damage Caused by Space Objects: From State Responsibility to Private Liability", (1997) XXII Ann. Air & Sp. L. at 373; B. A. Hurwitz, State Liability for Outer Space Activities (Dordrecht: Martinus Nijhoff, 1992) at 39; B. Cheng, Studies in International Space Law (Oxford: Clarendon Press, 1997) at 330; M. D. Forkosch, Outer Space and Legal Liability (Dordrecht: Martinus Nijhoff, 1982) at 48.
[3]V. Kayser, Legal Aspects of Private Launch Services in the United States, (LL.M., Thesis, McGill University, 1991) [unpublished], at 136.
[4] J. Hermida, Norms governing launch services by NASA and commercial US private companies, (LL.D. Thesis, Catholic University of Cordoba, Doctorate of Laws Thesis 2000) at 126 [unpublished].
[5] These objectives are also the same ones sought by NASA and the US private industry for the implementation of the US first party risk- distribution system.
[6] M. Couston, Droit Spatial Economique (Paris: SIDES, 1994) at 245.
[7]E. Loquin, "La gestion
contractuelle des risques de l'exploitation commerciale de l'espace", in
P. Kahn, ed., L'Exploitation commerciale
de l'espace: droit positif, droit prospectif, (Dijon: Litec Credimi, 1992)
at 173.
[8] P. D. Bostwick, “Liability of Aerospace Manufacturers: MacPherson v. Buick Sputters into the Space Age”, (1994) 22 J.Sp.L. at 80.
[9]In these latter cases, it is unquestionable that the prohibition to make claims is restricted only to the contractors and subcontractors of the other party, thus allowing one party to sue its own contractors and subcontractors.
[10] Convention on the International Liability for Damage Caused by Space Objects, March 29, 1972, 961 U.N.T.S. 187, 24 U.ST. 2389, T.I.A.S. No. 7762 [hereinafter the “Liability Convention”].
[11]Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase signed by states participating in the Ariane production phase, VOL.II-BIS/G02V [hereinafter the “Production Declaraion”], article 3.8. This Declaration, engineered by the French government, entered into force in April 14, 1980 and was signed by states participating in the Ariane production phase. According to the Declaration, the participants decided to entrust an industrial structure, Arianespace, with the execution of the Ariane launcher production phase. The objective of this production phase was to meet the launch requirements of the world market subject only to the following conditions: (i) that it should be carried out for peaceful purposes in conformity with the ESA Convention and the Outer Space Treaty, and (ii) that ESA and the participant states should have priority over third party customers. Arianespace was thus assigned the manufacture, marketing and launch of the Ariane launchers.
[12]Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase signed by states participating in the Ariane production phase, VOL.II-BIS/G02V, article 4.1 [hereinafter the “Convention”].
[13]G. Lafferranderie,
"Responsabilité juridique internationale et activités de lancement d'objets
spatiaux au CSG", (1994) 80 ESA Bulletin at 58.
[14] Convention between ESA and Arianespace signed May 15, 1981, ESA/C(81)11.
[15] STANDARD ARIANESPACE LAUNCH SERVICES AGREEMENT (SAMPLE), (UNDATED), [UNPUBLISHED].
[16]Commercial Space Launch Act Amendment of 1988, Report of the Senate Committee on Commerce, Science and Transportation on H.R. 4399, SR 100-593, Oct. 7, 1988, US Government Printing Office, Washington, 1988 at 14.
[17] Bender, R., Space Transport Liability: National and International Aspects (The Hague: Martinus Nijhoff, 1995) at 132.
[18]J. Hermida, Commercial Space Law: International, National and Contractual Aspects (Buenos Aires: Ediciones Depalma, 1997) at 206.
[19] A. A. Cocca, “Prospective Space Law”, (1998) 26 J.Sp.L. at. 52.
[20] Couston, supra note 6 at 249.
[21]
Subcommittee on Space Science Applications of the Committee on Space Science
and Technology, US House of Representatives, 100th Congress 2nd Session,
February 16, 17, 1988, US Government Printing Office, 1988 at 285.
[22]W. Thomas, “Launch Service Contracts”, 29 ESA Bulletin at 50.