New Mexico: Space Flight Liability and Immunity Act

February 12, 2009 at 10:42 am | Posted in Space Law | Leave a comment

by P.J. Blount with the blog faculty

New Mexico SB 37: Space Flight Liability and Immunity Act was introduced on January 13, 2009. The bill is currently in the New Mexico Senate Judiciary Committee:

SENATE BILL 37
49TH LEGISLATURE – STATE OF NEW MEXICO – FIRST SESSION, 2009
INTRODUCED BY Clinton D. Harden

FOR THE NEW MEXICO FINANCE AUTHORITY OVERSIGHT COMMITTEE
AN ACT RELATING TO TORT CLAIMS; PROVIDING IMMUNITY FROM TORT LIABILITY FOR CERTAIN ENTITIES ENGAGING IN SPACE FLIGHT ACTIVITIES. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.–This act may be cited as the “Space Flight Liability and Immunity Act”.

Section 2. LEGISLATIVE FINDINGS AND PURPOSE.–The legislature finds that:

A. the commercial human space flight industry is an emerging and important industry, and private industry has begun to develop vehicles capable of carrying human beings into space. New Mexico and its residents will gain significant economic and personal benefits from the development of a successful and robust commercial human space flight industry, while playing a significant role in its growth. The development of the spaceport will create jobs and have a positive effect on the state’s tax base;

B. commercial human space flight activities involve inherent risks that cannot be eliminated or controlled through the exercise of reasonable care and that justify the exculpation of ordinary negligence, and that these inherent risks provide the challenge and excitement that entice space flight participants to participate in these activities;

C. space flight participants should be informed of the risks inherent in space flight activities that cannot be completely eliminated and should accept responsibility for the inherent risks of participating in space flight activities; and

D. the purpose of the Space Flight Liability and Immunity Act is to permit the use of waivers and releases of liability for space flight entities that will exculpate them from the inherent risks of space flight activities and their negligence.

Section 3. DEFINITIONS.–As used in the Space Flight Liability and Immunity Act:

A. “participant” means a space flight participant as that term is defined in 49 U.S.C. Section 70102;

B. “participant injury” means an injury sustained by a participant, including bodily injury, death, emotional injury or property damage;

C. “space flight activities” means launch services or reentry services as those terms are defined in 49 U.S.C. Section 70102; and

D. “space flight entity” means any public or private entity holding, either directly or through a corporate subsidiary or parent, a license, permit or other authorization issued by the United States federal aviation administration pursuant to the federal Commercial Space Launch Amendments Act of 2004, including, but not limited to, a safety approval and a payload determination. “Space flight entity” includes any manufacturer or supplier of components, services or vehicles that have been reviewed by the United States federal aviation administration as part of issuing such a license, permit or authorization.

Section 4. CIVIL IMMUNITY FOR SPACE FLIGHT ENTITIES.–
A. Except as provided in Subsection C of this section, a space flight entity is not liable for a participant injury resulting from the risks of space flight activities; provided that:

(1) the participant has been informed of the risks of space flight activities as required by the Space Flight Liability and Immunity Act and by federal law; and

(2) the participant has given informed consent that the participant is voluntarily participating in space flight activities after having been informed of the risks of those activities as required by the Space Flight Liability and Immunity Act and by federal law.

B. Except as provided in Subsection C of this section, no participant, participant’s representative, including the heirs, administrators, executors, assignees, next of kin and estate of the participant, or any other person who attempts to bring a claim on behalf of the participant for a participant injury may bring or maintain an action against or recover from a space flight entity for a participant injury that resulted from the risks of space flight activities.

C. Nothing in Subsection A or B of this section shall prevent or limit the liability of a space flight entity if the space flight entity:

(1) commits an act or omission that constitutes gross negligence evidencing willful or wanton disregard for the safety of a participant and that act or omission proximately causes a participant injury; or
(2) intentionally causes a participant injury.

D. Any limitation on legal liability afforded by this section to a space flight entity is in addition to any other limitations of legal liability otherwise provided by law.

Section 5. WARNING REQUIRED.–

A. A space flight entity providing space flight activities to a participant shall have each participant sign the warning statement that shall contain, at a minimum and in addition to any language required by federal law, the following statement:
“WARNING AND ACKNOWLEDGMENT: I understand and acknowledge that, under New Mexico law, there is no civil liability for bodily injury, including death, emotional injury or property damage, sustained by a participant in space flight activities provided by a space flight entity if such injury or damage results from the risks of the space flight activity. I have given my informed consent to participate in space flight activities after receiving a description of the risks of space flight activities as required by federal law pursuant to 49 U.S.C. Section 70105 and 14 C.F.R. Section 460.45. The consent that I have given acknowledges that the risks of space flight activities include, but are not limited to, risks of bodily injury, including death, emotional injury and property damage. I understand and acknowledge that I am participating in space flight activities at my own risk. I have been given the opportunity to consult with an attorney before signing this statement.”.

B. Failure to comply with the requirements concerning the warning statement provided in this section shall prevent a space flight entity from invoking the privileges of immunity provided by the Space Flight Liability and Immunity Act.

A Fiscal Impact Report for the bill is also available.

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