Electronic Proceedings - United Nations Office for Outer Space Affairs

RICKY J. LEEThe Australian Space Activities Act 1998: Building the Regulatory Capacity for an Australian Launch IndustryThe term “liability period” means the period of thirty days from the launch or from arelevant re-entry manoeuvre to the time when the space object comes to rest on Earth. 220With this in mind, it appears that there are several scenarios for damage to be causedoutside this liability period, including (but not limited to):a) damage caused by remnants of the launch vehicle over thirty days after its launch,such as the re-entry of a third stage rocket colliding with an aircraft in flight; orb) damage caused by the payload over thirty days after its launch, such as a collisionwith another satellite.Where an Australian third party suffers the damage, that third party will have recourseagainst either the launch operator or the payload owner in common law. The proceduresand limitations imposed under the Act will have no application on such claims as Part 4is confined in its scope to liability caused within the liability period. 221 The choice of theappropriate defendant in such a claim may depend on several factors, the most importantof which would be the degree of fault or negligence. Other factors would likely includethe insurance cover, financial support, fault or negligence and the location of the launchoperator or payload owner.If a foreign third party suffers the damage outside the liability period, Australia will beliable as a launching State for the purposes of the Liability Convention. 222 The foreignthird party would have several options:a) the third party may choose to sue in Australian domestic courts against the launchoperator, in which case the claim will be determined in accordance with commonlaw principles of tort and the damages that may be payable would be unlimited;b) the third party may choose to sue in foreign courts against the Australian launchoperator, subject to various jurisdiction and enforcement issues, and the claim willbe determined in accordance with the local principles of tort and the damages thatmay be payable would again be unlimited; orc) the national government of the third party may choose to pursue a claim againstthe Australian Government in accordance with the Liability Convention, in whichcase the Australian Government, and not the private operator, would be liable inaccordance with Articles II and III of the Liability Convention. It is unclearwhether the Australian Government will have recourse against the launch operatorin such case, though it is unlikely in the absence of any legislative provision topermit it.While the concept of the liability period was designed to limit the liability exposure ofAustralian launch operators, it appears somewhat strange that the Act would fail toprovide any protection to the launch operator in the case of liability falling outside theliability period. As it currently stands, a prudent launch operator would ensure that itsinsurance cover extends for a period sufficiently long for the third or fourth stages of the220Section 8.221Section 63.222Liability Convention, Article I.152