SENATE BILL 9
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Mary Kay Papen
FOR THE NEW MEXICO FINANCE AUTHORITY OVERSIGHT COMMITTEE
AND THE ECONOMIC AND RURAL DEVELOPMENT COMMITTEE
AN ACT
RELATING TO TORT CLAIMS; REQUIRING INFORMED CONSENT OF SPACE
FLIGHT PARTICIPANTS; ESTABLISHING A PUBLIC POLICY THAT INFORMED SPACE FLIGHT PARTICIPANTS WHO EXECUTE WAIVERS ASSUME THE RISKS OF 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 Informed Consent Act".
Section 2. LEGISLATIVE FINDINGS AND STATEMENT OF PUBLIC POLICY.--
A. The legislature finds that:
(1) 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. Spaceport development will create jobs and have a positive effect on the state's tax base;
(2) commercial human space flight activities involve inherent risks that cannot be eliminated or controlled through the exercise of reasonable care; and
(3) space flight participants have the bargaining position and the right to contract to assume the risk of space flight activities.
B. The legislature declares that it is the public policy of New Mexico that space flight participants who are informed of the risk of space flight activities as required by the Space Flight Informed Consent Act and who voluntarily release space flight entities from liability have assumed the risk of any space flight participant injury.
Section 3. DEFINITIONS.--As used in the Space Flight Informed Consent Act:
A. "crew" means any employee of a space flight entity, or of a contractor or subcontractor of a space flight entity, who performs activities in the course of that employment directly relating to the launch, reentry or other operation of or in a launch vehicle or reentry vehicle that carries human beings;
B. "launch" means to place or try to place a launch vehicle or reentry vehicle and any payload, crew or space flight participant:
(1) in a suborbital trajectory;
(2) in earth orbit in outer space; or
(3) otherwise in outer space, including activities involved in the preparation of a launch vehicle or payload for launch;
C. "launch vehicle" means a vehicle built to operate in or place a payload or human beings in outer space; or a suborbital rocket;
D. "reentry" means to return or attempt to return a reentry vehicle and any payload, crew or space flight participant from suborbit, earth orbit or outer space to earth;
E. "reentry vehicle" means a vehicle designed to return from suborbit, earth orbit or outer space to earth, or a reusable launch vehicle designed to return from suborbit, earth orbit or outer space to earth, substantially intact;
F. "space flight activities" means activities and training in all phases of preparing for and undertaking space flight, including:
(1) the preparation of a launch vehicle, payload, crew or space flight participant for launch, space flight and reentry;
(2) the conduct of the launch;
(3) conduct occurring between the launch and reentry;
(4) the preparation of a reentry vehicle, payload, crew, or space flight participant for reentry;
(5) the conduct of reentry and descent;
(6) the conduct of the landing; and
(7) the conduct of post-landing recovery of a reentry vehicle, payload, crew or space flight participant;
G. "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. "Space flight entity" also includes an employee, officer, director, owner, stockholder, member, manager or partner of the entity, manufacturer or supplier;
H. "space flight participant" means an individual, who is not crew, carried within a launch vehicle or reentry vehicle; and
I. "space flight participant injury" means an injury sustained by a space flight participant, including bodily injury, death, emotional injury or property damage or any other loss arising from the individual's participation in space flight activities.
Section 4. ASSUMPTION OF THE RISK BY SPACE FLIGHT PARTICIPANTS.--
A. Except as provided in Subsection B of this section, a written waiver of claims or release of liability regarding the risks of space flight activities shall be enforceable between a space flight entity and a space flight participant; provided that the agreement was knowing and voluntary and the space flight participant had the capacity to contract.
B. A waiver of claims or release of liability shall not release a space flight entity from liability for a space flight injury caused by the space flight entity's gross negligence that evidences reckless or wanton disregard for the safety of the space flight participant.
C. Space flight entities are not required to transport space flight participants who chose not to sign a written waiver of claims or release of liability.
D. If a valid waiver of claims or release of liability has been signed by a space flight participant, no space flight participant, space flight participant's representative, including the heirs, administrators, executors, assignees, next of kin and estate of the space flight participant, or any other person may bring or maintain an action against or recover from a space flight entity for a space flight participant injury that resulted from the risks of space flight activities.
Section 5. REQUIRED WARNING OF RISKS AND RELEASE OF LIABILITY.--
A. A space flight entity providing space flight activities shall inform each space flight participant of the risks of the space flight activities and shall provide a warning statement and release of liability for each space flight participant's signature at least seven days prior to the space flight activities, or as soon as practical for space flight activities contracted for within seven days of the activity. The warning statement and release of liability shall, at a minimum, contain the following language plus any additional language required by federal law:
"WARNING OF RISKS AND RELEASE OF LIABILITY:
1. I understand that the commercial human space flight industry is an emerging industry and that private industry has begun to develop vehicles capable of carrying human beings into space.
2. I understand that commercial human space flight activities involve inherent risks that cannot be eliminated or controlled through the exercise of reasonable care.
3. I therefore understand, acknowledge and agree that I am waiving all claims for any loss, damage or injury, including bodily injury, emotional injury, death or property damage, that I sustain in space flight activities provided by a space flight entity if the loss, damage or injury results from the risks of the space flight activity.
4. I understand, acknowledge and agree that this waiver shall also be binding on my representatives, including my heirs, administrators, executors, assignees, next of kin and estate, or any other person who attempts to bring a claim on my behalf.
5. I have been informed 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, and I consent to participate in space flight activities after receiving a description of risks.
6. I acknowledge 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, acknowledge and agree that I am participating in space flight activities at my own risk.
7. I have been given adequate opportunity to consult with an attorney of my own choosing before signing this warning of risks and release of liability.".
B. Failure to provide the warning of risks and release of liability required by Subsection A of this section to a space flight participant and failure to obtain a fully executed waiver from the space flight participant prior to space flight activities shall prevent a space flight entity from invoking the assumption of risk provisions of the Space Flight Informed Consent Act with regard to that space flight participant.
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