Article 5 - Cross-Waiver of Liability
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5.1 |
The objective of this Article is to
establish a cross-waiver of liability by the Parties to this Agreement and
related entities in the interest of encouraging participation in space
exploration, use and investment through the Space Station. In addition, in
light of the liability requirements in Article 16 of the IGA, a second purpose
of this article is to fulfill the obligation of the United States of America,
as a Partner State, to extend the cross-waiver to related entities of the
United States Government in the Space Station Program. Thus, pursuant to this
Article, RSA, as a related entity of NASA and the Government of the United
States of America, for purposes of this article, is protected by application of
the Cross-Waiver of Liability agreed to by the Partner States in the IGA. The
cross-waiver of liability shall be broadly construed to achieve the objective
of encouraging participation in space activities.
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5.2 |
For the purposes of this Article:
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(a)
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The term "damage" means:
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(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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(b)
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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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(c)
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"Partner State" means a signatory to the
IGA. A "Partner State" includes its Cooperating Agency. It also includes any entity
specified in the Memorandum of Understanding between NASA and the Government
of Japan to assist the Government of Japan's Cooperating Agency in the
implementation of that Agreement.
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(d)
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The term "payload" means all property to be
flown or used on or in a launch vehicle or the Space Station.
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(e)
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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 done in implementation of this Agreement, the IGA, the memoranda of
understanding between NASA and the Cooperating Agencies of the Space Station
Partners, or implementing arrangements under the IGA and the memoranda of
understanding. It includes, but is not limited to:
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(1)
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Research, design, development, test,
manufacture, assembly, integration, operation, or use of launch or transfer
vehicles (for example, the orbital maneuvering vehicle), the Space Station,
or a payload, 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.
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"Protected Space Operations" also includes
all activities related to evolution of the Space Station, as provided for in
Article 14 of the IGA. "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 or the IGA.
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(f)
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The term "related entity" means:
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(1)
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A contractor or subcontractor of a Party or
a Partner State at any tier;
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(2)
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A user or customer of a Party or a Partner
State 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 or a Partner State at any tier.
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"Contractors" and "subcontractors" include
suppliers of any kind.
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5.3 |
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(a)
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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 paragraphs 5.3(a)(1) through 5.3(a)(4) 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:
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(1)
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the other Party;
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(2)
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a Partner State other than the United States
of America;
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(3)
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a related entity of any entity identified in
subparagraphs 5.3(a)(1) or 5.3(a)(2) above; or
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(4)
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the employees of any of the entities
identified in subparagraphs 5.3(a)(1) through 5.3(a)(3) above.
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(b)
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In addition, each Party shall extend the
cross-waiver of liability as set forth in paragraph 5.3(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 subparagraphs
5.3(a)(1) through 5.3(a)(4) above.
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(c)
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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, of 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)
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Notwithstanding the other provisions of this
Article, this cross-waiver of liability shall not be applicable to
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(1)
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claims between NASA and RSA arising out of
activities conducted under any contract between NASA and RSA;
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(2)
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claims between a Party and its other related
entities or between its own related entities;
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(3)
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claims made by a natural person, his/her
estate, survivors, or subrogees for injury or death of such natural person;
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(4)
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claims for damage caused by willful misconduct;
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(5)
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intellectual property claims.
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(e)
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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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