| Article 16 |
Cross-Waiver of Liability |
| 1. |
The objective of this Article is to establish
a cross-waiver of liability by the Partner States and related entities
in the interest of encouraging participation in the exploration, exploitation,
and use of outer space through the Space Station. This cross-waiver
of liability shall be broadly construed to achieve this objective. |
| 2. |
For the purposes of this Article:
| (a) |
A "Partner State" includes
its Cooperating Agency. It also includes any entity specifies
in the MOU between NASA and the Government of Japan to assist
the Government of Japan's Cooperating Agency in the implementation
of that MOU. |
| (b) |
The term "related entity"
means:
| (1) |
a contractor or subcontractor
of a Partner State at any tier; |
| (2) |
a user or customer of a Partner
State at any tier; or |
| (3) |
a contractor or subcontractor
of a user or customer of a Partner State at any tier. |
This subparagraph may also apply to a State, or an agency or
institution of a State, having the same relationship to a partner
State as described in subparagraphs 2 (b) (1) through (b) (3)
above or otherwise engaged in the implementation of Protected
Space Operations as defined in subparagraph 2 (f) below.
"Contractors" and "subcontractors" include
supplies of any kind.
|
| (c) |
The term "damage" means:
| (1) |
bodily injury to, or other impairment
of health of, or death of, any person; |
| (2) |
damage to, loss of, or loss
of use of any property; |
| (3) |
loss of revenue or profits;
or |
| (4) |
other direct, indirect or consequential
damage. |
|
| (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. |
| (e) |
The team "payload" means
all property to be flown or used on or in a launch vehicle or
the Space Station.
|
| (f) |
The term "Protected Space Operations"
means all launch vehicle activities, Space Station activities,
and payload activities on Earth, in outer space, or in transit
between Earth and outer space in implementation of this Agreement,
the MOUs, and implementing arrangements. It includes, but is
not limited to:
| (1) |
research, design, development,
test, manufacture, assembly, integration, operation, or
use of launch or transfer vehicles, the Space Station,
or a payload, as well ass related support equipment and
facilities and services; and |
| (2) |
all activities related to ground
support, test, training, simulation, or guidance and control
equipment and related facilities or services. |
|
"Protected Space Operations" also includes all activities
related to evolution of the Space Station, as provided for in Article
14. "protected Space Operations" excludes activities on
Earth which are conducted on return from the Space Station to develop
further a payload's product or process for use other than for Space
Station related activities in implementation of this Agreement. |
| 3. |
| (a) |
Each Partner State agrees to a cross-waiver
of liability pursuant to which each partner State waives all
claims against any of the entities or persons listed in subparagraphs
3 (a) (1) through 3 (a) (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 against:
| (1) |
another partner State; |
| (2) |
a related entity of another
partner State; |
| (3) |
the employees of any of the
entities identified in subparagraphs 3 (a) (1) and 3 (a)
(2) above. |
|
| (b) |
In addition, each Partner State shall,
by contract or otherwise, extend the cross-waiver of liability
as set forth in subparagraph 3 (a) above to its related entities
by requiring them to:
| (1) |
waive all claims against the
entities or persons identified in subparagraphs 3 (a)
(1) through 3 (a) (3) above; and |
| (2) |
require that their related entities
waive all claims against the entities or persons identified
in subparagraphs 3 (a) (1) through 3 (a) (3) above. |
|
| (c) |
For avoidance of doubt, this cross-waiver
of liability includes a cross-waiver of liability arising from
the Liability Convention 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. |
| (d) |
Notwithstanding the other provisions
of this Article, this cross-waiver of liability shall not be
applicable to:
| (1) |
claims between a Partner State
and its related entity or between its own related entities; |
| (2) |
claims made by a natural person,
his/her estate, survivors or subrogees (expect when a
subrogee is a partner State) for bodily injury to, or
other impairment of health of, or death of such natural
person; |
| (3) |
claims for damage caused by
willful misconduct; |
| (4) |
intellectual property claims; |
| (5) |
claims for damage resulting
from a failure of a Partner State to extend the cross-waiver
of liability to its related entities, pursuant to subparagraph
3 (b) above. |
|
| (e) |
With respect to subparagraph 3 (d)
(2) above, in the event that a subrogated claim of the Government
of Japan is not based upon government employee accident compensation
law, the Government of Japan shall fulfill its obligation to
waive such subrogated claim by ensuring that any assisting entity
specified pursuant to subparagraph 2 (a) above indemnifies,
in a manner consistent with Article 15 (2) and in accordance
with applicable laws and regulations of Japan, any entity or
person identified in subparagraph 3 (a) (1) through 3 (a) (3)
above against liability arising from such subrogated claim by
the Government of Japan. Nothing in this Article shall preclude
the Government of Japan from waiving the foregoing subrogated
claims. |
| (f) |
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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