[Code of Federal Regulations]

[Title 14, Volume 5]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 14CFR1266.104]



[Page 414-416]

 

                     TITLE 14--AERONAUTICS AND SPACE

 

                          SPACE ADMINISTRATION

 

PART 1266_CROSS-WAIVER OF LIABILITY--Table of Contents

 

Sec. 1266.104  Cross-waiver of liability for NASA expendable launch 

vehicle (ELV) program launches.



    (a) The purpose of this section is to establish a cross-waiver of 

liability between the parties to agreements for NASA ELV program 

launches, and the parties' related entities, in the interest



[[Page 415]]



of encouraging space exploration and investment. The cross-waiver of 

liability shall be broadly construed to achieve this objective.

    (b) As used in this section, the term:

    (1) Party means a person or entity that signs an agreement involving 

an ELV launch;

    (2) Related Entity means:

    (i) A contractor or subcontractor of a Party at any tier;

    (ii) A user or customer of a Party at any tier; or

    (iii) a contractor or subcontractor of a user or customer of a Party 

at any tier. Contractors and ``Subcontractors'' include suppliers of any 

kind.

    (3) Damage means:

    (i) Bodily injury to, or other impairment to health of, or death of, 

any person;

    (ii) Damage to, loss of, or loss of use of any property;

    (iii) Loss of revenue or profits; or

    (iv) Other direct, indirect, or consequential damage;

    (4) Payload means any property to be flown or used on or in an ELV; 

and

    (5) Protected Space Operations means all expendable launch vehicle 

and payload activities on Earth, in outer space, or in transit between 

Earth and outer space in implementation of the agreement. Protected 

Space Operations begins at the signature of the agreement and ends when 

all activities done in implementation of the agreement are completed. It 

includes, but is not limited to:

    (i) Research, design, development, test, manufacture, assembly, 

integration, operation, or use of: expendable launch vehicles (ELV), 

transfer vehicles, payloads, related support equipment, and facilities 

and services;

    (ii) All activities related to ground support, test, training, 

simulation, or guidance and control equipment, and related facilities or 

services. Protected Space Operations excludes activities on Earth which 

are conducted on return from space to develop further a payload's 

product or process for use other than for ELV-related activities 

necessary to complete implementation of the agreement.

    (c)(1) Each Party agrees to a cross-waiver of liability pursuant to 

which each Party waivers all claims against any of the entities or 

persons listed in paragraphs (c)(1)(i) through (c)(1)(iii) of this 

section based on damage arising out of Protected Space Operations. This 

cross-waiver shall apply only if the person, entity, or property causing 

the damage is involved in Protected Space Operations and the person, 

entity, or property damaged is damaged by virtue of its involvement in 

Protected Space Operations. The cross-waiver shall apply to any claims 

for damage, whatever the legal basis for such claims, including but not 

limited to delict and tort (including negligence of every degree and 

kind) and contract, against:

    (i) Another Party;

    (ii) A related entity of another Party;

    (iii) The employees of any of the entities identified in paragraphs 

(c)(1)(i) and (ii) of this section.

    (2) In addition, each Party shall extend the cross-waiver of 

liability as set forth in paragraph (c)(1) of this section to its own 

related entities by requiring them, by contract or otherwise, to agree 

to waive all claims against the entities or persons identified in 

paragraphs (c)(1)(i) through (c)(1)(iii) of this section.

    (3) For avoidance of doubt, this cross-waiver of liability includes 

a cross-waiver of liability arising from the Convention on International 

Liability for Damage Caused by Space Objects (Mar. 29, 1972, 24 United 

States Treaties and other International Agreements (U.S.T.) 2389, 

Treaties and other International Acts Series (T.I.A.S.) No. 7762) where 

the person, entity, or property causing the damage is involved in 

Protected Space Operations and the person, entity, or property damaged 

is damaged by virtue of its involvement in Protected Space Operations.

    (4) Notwithstanding the other provisions of this section, this 

cross-waiver shall not be applicable to:

    (i) Claims between a Party and its own related entity or between its 

own related entities;

    (ii) Claims made by a natural person, his/her estate, survivors, or 

subrogees for injury or death of such natural person;

    (iii) Claims for damage caused by willful misconduct;

    (iv) Intellectual property claims;



[[Page 416]]



    (v) Contract claims between the Parties based on the express 

contractual provisions of the agreement;

    (vi) Claims for damage based on a failure of the Parties or their 

related entities to flow-down the cross-waiver.

    (5) Nothing in this section shall be construed to create the basis 

for a claim or suit where none would otherwise exist.

    (6) This cross-waiver shall not be applicable when the Commercial 

Space Launch Act cross-waiver (49 U.S.C. app. 2615) is applicable.