AGREEMENT BETWEEN THE UNITED STATES AND JAPAN CONCERNING
CROSS-WAVIER OF LIABILITY FOR COOPERATION IN THE EXPLORATION AND USE OF
SPACE PEACEFUL PURPOSE, WITH ANNEX AND EXCHANGES OF NOTES(Signed at Washington
D.C. on April 24, 1995, Proclaimed on July 20 , 1995)
The Government of the United States of America
and the Government of Japan,
Desiring to conclude an Agreement for a
cross-waiver of liability applicable to joint activities in the exploration and
use of space for peaceful purposes,
Have agreed as follows:
ARTICLE 1
The purpose of this Agreement is to establish
a framework for cross-waiver of liability in the interest of encouraging
cooperation between the Government of the United States of America and the
Government of Japan in joint activities for the exploration and use of space
for peaceful purposes. This cross-waiver of liability shall be broadly
construed to achieve this objective.
ARTICLE 2
This Agreement shall apply to joint activities
listed in the Annex, ongoing at the time of entry into force of this Agreement
or begun while this Agreement is in force. The Government of the United States
of America and the Government of Japan shall consult on a regular basis to
review the list of joint activities contained in the Annex and may revise the Annex
by mutual agreement. This Agreement shall not apply to activities undertaken
pursuant to the Agreement Among the Government of the United States of America,
Governments of Member States of the European Space Agency, the Government of
Japan, and the Government of Canada on Cooperation in the Detailed Design,
Development, Operation, and Utilization of the Permanently Manned Civil Space
Station, done at Washington, on September 29, 1988 (hereinafter referred to as
the "IGA"), or any subsequent agreement that modifies or supersedes the IGA.
ARTICLE 3
1. |
For the purposes of this Article:
(a) |
A "Party" includes the Government of the
United States of America, the Government of Japan, and their agencies. It also
includes those institutions established under the laws and regulations of the
United States of America or of Japan for the implementation of the space
development programs of the respective countries and other entities which may
be designated in the Annex, with respect to each specific joint activity for which
they are designated.
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(b) |
The term "related entity" means:
(1)
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a contractor or subcontractor of a Party at
any tier;
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(2)
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a user or customer of a Party at any tier;
or
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(3)
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a contractor or subcontractor of a user or
customer of a Party at any tier.
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The term "related entity" may also include
another State or an agency or institution of another State, where such State,
agency or institution is an entity as described in (1) through (3) above or is
otherwise involved in a joint activity listed in the Annex
The terms "contractors" and "subcontractors"
include suppliers of any kind.
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(c) |
The term "damage" means:
(1)
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bodily injury to, or other impairment of
health of, or death of, any person;
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(2)
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damage to, loss of, or loss of use of any
property;
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(3)
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loss of revenue or profits; or
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(4)
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other direct, indirect, or consequential
damage.
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(d) |
The term "launch vehicle" means an object
or any part thereof intended for launch, launched from Earth, or returning to
Earth which carries payloads or persons, or both.
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(e) |
The term "payload" means all property to
be flown or used on or in a launch vehicle.
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(f) |
The term "Protected Space Operations"
means all activities pursuant to the joint activities listed in the Annex,
including launch vehicle activities and payload activities on Earth, in outer
space, or in transit between Earth and outer space. It includes, but is not
limited to:
(1)
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research, design, development, test,
manufacture, assembly, integration, operation, or use of launch or transfer
vehicles, payloads, or instruments, as well as related support equipment and
facilities and services;
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(2)
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all activities related to ground support,
test, training, simulation, or guidance and control equipment and related
facilities or services.
The term "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 the
joint activity in question.
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2. |
(a) |
Each Party agrees to a cross-waiver of
liability pursuant to which each Party waives all claims against any of the
entities or persons listed in sub-paragraphs (1) through (3) below 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:
(1)
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the other Party;
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(2)
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a related entity of the other Party;
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(3)
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the employees of any of the entities
identified in sub-paragraphs (1) and (2) above.
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(b) |
In addition, each Party shall extend the
cross-waiver of liability as set forth in sub-paragraph 2 (a) above 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 sub-paragraphs 2 (a)
(1) through 2 (a) (3) above.
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(c) |
This cross-waiver of liability shall be
applicable to liability arising from the Convention on International Liability
for Damage Caused by Space Objects, done at the cities of Washington, London
and Moscow, on March 29, 1972, 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.
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(d) |
Notwithstanding the other provisions of
this Article, this cross-waiver of liability shall not be applicable to:
(1)
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claims between a Party and its own related
entity or between its own related entities;
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(2)
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claims made by a natural person, his/her
estate, survivors, or subrogees for bodily injury, other impairment of health
or death of such natural person;
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(3)
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claims for damage caused by willful
misconduct;
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(4)
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intellectual property claims;
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(5)
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claims for damage resulting from a failure
of the Parties to extend the cross-waiver of liability as set forth in
sub-paragraph 2 (b) or from a failure of the Parties to ensure that their
related entities extend the cross-waiver of liability as set forth in
sub-paragraph 2 (b); or.
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(6)
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contract claims between the Parties based on
the express contractual provisions.
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(e) |
Nothing in this Article shall be construed
to create the basis for a claim or suit where none would otherwise exist.
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ARTICLE 4
Notwithstanding the provisions of Article 3 of
this Agreement, this cross-waiver may be limited by mutual agreement between
the two Governments, to take into account the particular characteristics of the
joint activities listed in the Annex.
ARTICLE 5
1. |
This Agreement shall enter into force on
the date on which the Government of the United States of America and the
Government of Japan exchange notes informing each other that their respective
legal procedures necessary for entry into force of this Agreement have been
completed and shall remain in force for a period of five years. It shall remain
in force thereafter unless terminated by either Government upon giving six
months written notice to the other Government.
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2. |
The termination of the Agreement shall not
affect its application to any claims arising out of joint activities listed in
the Annex at the time of termination of this Agreement, whether or not such
activities are executed before the termination.
IN WITNESS WHEREOF the undersigned, being duly
authorized, have signed this Agreement.
DONE at Washington, this twenty-fourth day of
April, 1995, in duplicate, in the English and Japanese language, both texts
being equally authentic.
FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:
FOR THE GOVERNMENT
OF JAPAN:
ANNEX
Joint activities to which the Agreement applies in
accordance with Article 2
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Agency/Institution/Entity referred to in Article 3
paragraph 1. (a)
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Japan
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U.S.A.
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1. Advanced Earth Observing Satellite
(ADEOS) Program
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National Space Development Agency (NASDA),
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National Aeronautics and Space (NASA)
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2. Astronaut Training Program
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NASDA
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NASA
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3. Manipulator Flight Demonstration program
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NASDA
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NASA
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4. Tropical Rainfall Measuring Mission
(TRMM)
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NASDA
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NASA
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5. Advanced Earth Observing Satellite - II
(ADEOS - II) Program
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NASDA
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NASA
National Oceanic and Atmospheric
Administration
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6. The Advanced Spaceborne Thermal Emission
and Reflection Radiometer (ASTER) Program
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Ministry of International Trade and Industry
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NASA
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7. Very Long Baseline Interferometer Space
Observatory Program (VSOP)
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Institute of Space and Aeronautical Science
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NASA
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LETTERHEAD OF THE DEPARTMENT OF STATE
WASHINGTON
His Excellency,
Takakazu Kuriyam,
Ambassador of Japan.
Excellency:
I have the honor to acknowledge the receipt of
Your Excellency's Note of today's date, which reads as follows:
"Sir,
I have the honor to refer to the negotiations
for the conclusion of the Agreement between the Government of Japan and the
Government of the United States of America Concerning Cross-Waiver of Liability
for Cooperation in the Exploration and Use of Space for Peaceful Purposes,
which was signed today (hereinafter referred to as "the Agreement"), and to
propose, on behalf of the Government of Japan, the following:
With reference to Article 3 of the Agreement:
1. In consideration of the mutual interest
that may be derived from a broader cross-waiver of liability for encouraging
joint activities for exploration and use of space for peaceful purposes, the
two Governments agree that if either of the two Governments, pursuant to
sub-paragraph 2(d)(2), makes claims as a subrogee against the entities or
persons identified in sub-paragraphs 2(a)(1) through 2(a)(3) based on damage
arising out of Protected Space Operations, the claiming Government will take
such measures as appropriate and necessary to minimize to the fullest extent
possible the relevant financial burden of the said entities or persons.
2. The two Governments also agree that the
measures mentioned in paragraph 1 above will be taken in accordance with the
applicable laws and regulations of each country and will be subject to the
availability of appropriated funds.
I have further the honor to propose that, if
the foregoing is acceptable to the Government of the United States of America,
this Note and your Note in reply shall constitute an agreement between the two
Governments, which will enter into force on the date of entry into force of the
Agreement."
I have further the honor to confirm on behalf
of the Government of the United States of America that the foregoing is
acceptable to the Government of the United States of America and agree that
Your Excellency's Note and this Note in reply shall constitute an agreement
between the two Governments, which will enter into force on the date of entry
into force of the Agreement between the Government of the United States of
America and the Government of Japan Concerning Cross-Waiver of Liability for
Cooperation in the Exploration and Use of Space for Peaceful Purposes.
Accept, Excellency, the assurance of my
highest consideration.
Timothy E. Wirth
Under Secretary for Global Affairs of the
United States of America
Mr. Timothy E. Wirth
Under Secretary for Global Affairs
of the United States of America
Sir,
I have the honor to refer to the negotiations
for the conclusion of the Agreement between the Government of Japan and the
Government of the United States of America Concerning Cross-Waiver of Liability
for Cooperation in the Exploration and Use of Space for Peaceful Purposes,
which was signed today (hereinafter referred to as "the Agreement"), and to
propose, on behalf of the Government of Japan, the following:
With reference to Article 3 of the Agreement:
1. In consideration of the mutual interest
that may be derived from a broader cross-waiver of liability for encouraging
joint activities for exploration and use of space for peaceful purposes, the
two Governments agree that if either of the two Governments, pursuant to
sub-paragraph 2 (d) (2), makes claims as a subrogee against the entities or
persons identified in sub-paragraphs 2 (a) (1) through 2 (a) (3) based on
damage arising out of Protected Space Operations, the claiming Government will
take such measures as appropriate and necessary to minimize to the fullest
extent possible the relevant financial burden of the said entities or persons.
2. The two Governments also agree that the
measures mentioned in paragraph 1 above will be taken in accordance with the
applicable laws and regulations of each country and will be subject to the
availability of appropriated funds.
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I have further the honor to propose that, if the
foregoing is acceptable to the Government of the United States of America, this
Note and your Note in reply shall constitute an agreement between the two
Governments, which will enter into force on the date of entry into force of the
Agreement.
Accept, Sir, the assurance of my high
consideration.
Takakazu Kuriyama
Ambassador Extraordinary
and Plenipotentiary of Japan
to the United States of America
The Department of State acknowledges receipt
of note No. P-38, dated April 24, 1995, from the Embassy of Japan relating to
the Exchange of Notes concerning the Agreement between the Government of the
United States of America and the Government of Japan Concerning Cross-Waiver of
Liability for Cooperation in the Exploration and Use of Space for Peaceful Purposes.
The Department of State informs the Embassy
that, if the Government of the United States of America makes claims as a
subrogee against the entities or persons as provided for in paragraph 1 of said
Exchange of Notes, such claims will be notified to the Embassy so that the
implementing agencies concerned will have the opportunity to deal with the
claims in a manner pursuant to the aforementioned Exchange of Notes.
Department of State,
Washington, April 24, 1995
LETTERHEAD OF THE EMBASSY OF JAPAN WASHINGTON, D.C.
April 24,
1995
The Embassy of Japan presents its compliments
to the Department of State and, with reference to the Exchange of Notes dated
today concerning the Agreement between the Government of Japan and the
Government of the United States of America Concerning Cross-Waiver of Liability
for Cooperation in the Exploration and Use of Space for Peaceful Purposes, has
the honor to inform the latter that, if the Government of Japan makes claims as
a subrogee against the entities or persons as provided in paragraph 1 of said
Exchange of Notes, such claims will be notified to the Department of State so
that the implementing agencies concerned will have the opportunity to deal with
the claims in a manner pursuant to the aforementioned Exchange of Notes.
The Embassy of Japan avails itself of this
opportunity to renew to the Department of State the assurance of its highest
consideration.
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