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Richard C. Walters, Esq.
Senior Attorney and Dispute Resolution Officer
Federal Aviation Administration
Office of Dispute Resolution for Acquisition

JURIST Special Guest Columnist

Note: The following article represents the personal views of the author and not those of the Federal Aviation Administration.

Aside from the national tragedy and the pain and suffering experienced by relatives and friends of the astronauts who perished in the latest NASA shuttle disaster, the re-entry break-up of Columbia on February 1, 2003, much like the Challenger explosion of January 28, 1986, will give rise to some rather unique legal issues (on Challenger, see Paul G. Dembling & Richard C. Walters, The 1986 Challenger Disaster: Legal Ramifications, 19 Journal of Space Law 1 (1991)). More particularly, because of special international Space-related treaties, federal statutes, possible contract provisions and a variety of legal doctrines that may be called into play, recovery for the astronauts deaths and any other collateral damage that may have been incurred by reason of the Columbia痴 disintegration will be anything but simple and straightforward.

U.S Government Liability

Liability of the Government for the astronauts deaths will depend, in part, upon their citizenship and employment status. The seven-member crew of the Columbia included six United States citizens (one - Kalpana Chawla - born in India and naturalized as a U.S. citizen in 1990) and one Israeli citizen (Col. Ilan Ramon), the first Israeli ever to go into Space. Of the six American citizens, three were members of the U.S. military (Col. Rick Douglas Husband - U.S. Air Force; and Capt. David M. Brown, Cdr. Laurel Clark and Cdr. William McCool - U.S. Navy). The two others (Michael P. Anderson and Kalpana Chawla) were both NASA civilian employees.

International Treaties

Article VII of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the 徹uter Space Treaty), of which both Israel and the United States are signatories, reads, in part: 摘ach State Party that launches or procures the launching of an object into outer space . . . is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts . . . . On the other hand, the 1972 Convention On International Liability for Damage Caused By Space Objects (the 鏑iability Convention), to which both Israel and the United States also are signatories, exempts from liability coverage under the Outer Space Treaty damage sustained by 吐oreign nationals during such time as they are participating in the operation of [the] space object. . . as the result of an invitation by [the] launching State. This would clearly eliminate liability of the U.S. Government to the State of Israel on behalf of personal representatives of Col. Ramon, the sole non-American astronaut, at least under the Outer Space Treaty.

The Outer Space Treaty, however, could afford a remedy for 田ollateral damage, i.e., damage or personal injury to foreign nationals and their property that may have resulted from the mishap. The language of the Treaty does not require the establishment of negligence on the part of the 斗aunching State and thus would appear to create strict liability. Accordingly, if any claim on behalf of a foreign national or entity emerges, the Treaty may well be relied upon as a basis for establishing U.S. Government liability. In connection with the 1986 Challenger disaster, there was one reported claim by a Brazilian boat owner filed with NASA, not under the Treaty, but under the Federal Tort Claims Act, 28 U.S.C. ァァ2671-2680 (擢TCA). The claimant in that case alleged that, while he was sailing off the coast of Georgia, falling debris from the Challenger caused his boat to sink and killed his son, who was below deck. NASA denied the claim for lack of credibility, and the matter was dropped without further action by the boat owner (see Dembling and Walters, supra, 3, fn. 7). As of this writing, debris from the Columbia reportedly has been spotted as far West as California, with the great majority having been located in East Texas and Louisiana. Claims for personal injury and property damage sustained by reason of the debris - either by Americans or foreign nationals - have yet to surface.

Federal Statutes

Unlike the Outer Space Treaty, the FTCA is governed by the applicable state law where the Government 殿ct or omission occurred and requires proof of Government negligence. Laird v. Nelms, 406 U.S. 797 (1972). NASA has just initiated its investigation into the cause or causes for the Columbia disaster. Although, in the immediate aftermath of the tragedy, there had been reference to break-away insulation foam possibly damaging critical tiles in the shuttle wing area, NASA appears to have since discounted this theory (Washington Post, February 6, 2003). Notwithstanding other current speculation about the effects of continual budget cutting for NASA over the past decade, and the associated lack of adequate NASA oversight, anyone submitting a claim under the FTCA relating to the Columbia disaster will have to demonstrate the breach of a legal duty and proximate causation between specific agency acts and omissions and the injuries or loss sustained.

Further, to recover under the FTCA, any claimant would have to overcome one or more hurdles posed by the language of the Act. In particular, the FTCA excludes as actionable torts, inter alia, 田laims arising out of the exercise or performance of (or failure to exercise or perform) a discretionary function, whether or not the discretion is abused. 28 U.S.C. ァ2680. Such matters as funding and how the shuttle program has been managed by NASA arguably would qualify as discretionary functions. The FTCA also exempts from its coverage 田laims arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. Id. Although the activities of the Columbia痴 military astronauts obviously would not technically be 田ombatant activities . . . during time of war, the U.S. Supreme Court, in Feres v. United States, 340 U.S. 135 (1950), expanded and extended this FTCA exemption to bar Government liability under the FTCA 吐or injuries to servicemen where the injuries arise out of or are in the course of activity incident to the service [emphasis added]. Id. at 146.

The 屠udicially-created Feres doctrine that grew out of that 1950 decision was applied in Smith v. Morton Thiokol, Inc., 712 F. Supp. 893 (M.D. Fla. 1988) to bar a claim against the Government raised by the estate of Navy Cdr. Michael J. Smith, one of the seven Challenger astronauts. In that case, the United States District Court for the Middle District of Florida, relying upon a 1987 Supreme Court case that had reaffirmed the 砺itality of Feres (United States v. Johnson, 481 U.S. 681 (1987)), found that, although Cdr. Smith痴 activities on the Challenger might not have been regarded as normal military activities, his participation in the Shuttle Program was only by virtue of his 都tatus as a member of the armed services and his participation in a military program under which military personnel 殿re detailed to NASA to perform appropriate services. Smith, 712 F. Supp. at 898. The District Court痴 decision was affirmed by the United States Court of Appeals for the Eleventh Circuit, Smith v. United States, 877 F.2d 40 (11th Cir. 1989), and a petition for certiorari was subsequently denied by the Supreme Court. Smith v. United States, 110 S. Ct. 1111 (Memo. Ord., February 20, 1990). The Smith case probably would be cited in defense of FTCA claims brought by representatives of any of the three military astronauts of the Columbia. Deaths of the military astronauts, however, could entitle their survivors to benefits under the Veterans Benefits Act. See Title 38, United States Code, Veterans Benefits, Part II, Chapter 11 (鼎ompensation for Service-Connected Disability or Death).

As to the two NASA civilian employee astronauts (Michael P. Anderson and Kalpana Chawla), although the FTCA does not itself contain an exemption for federal civilian employees claims, the Federal Employees Compensation Act (擢ECA) states that the relief it provides survivors for death of civilian Government employees sustained during the performance of their duties (see 5 U.S.C. ァ8102) is 兎xclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. 5 U.S.C. ァ8116(c). In addition, the NASA Act, 42 U.S.C. ァァ2451-2486, which is neither 殿 workmen痴 compensation statute nor a 擢ederal tort liability statute, provides for the administrative processing of claims for damage, death, or bodily injury 途esulting from the conduct of the Administration痴 [NASA痴] functions of up to $25,000. 42 U.S.C. ァ2473(b)(13)A). This amount can be increased by means of special Congressional legislation, with the recommendation of NASA. Id. at ァ2473(b)(13)(B). Representatives of NASA employee astronauts who perished in the Challenger disaster did not avail themselves of this administrative remedy, perhaps because of the low dollar recovery it afforded and/or the necessity for pursuing special Congressional action to increase that recovery. Dembling and Walters, supra.

Interestingly, none of the above statutory provisions or legal doctrines would, in and of themselves, prevent the personal representatives of Israeli Air Col. Ramon from pursuing a claim against the U.S. Government under the FTCA. Of course, they would still have to demonstrate Government negligence and a causal nexus between Government acts or omissions and the loss of Col. Ramon痴 life in order to qualify for FTCA relief. Also, the acts or omissions would have to fall outside the above-mentioned 電iscretionary function exemption or any of the other exceptions to applicability specified by the FTCA. See 28 U.S.C. ァ2680.

Other Possible Considerations

In connection with any FTCA action, should the matter proceed to litigation, thorny issues could be encountered surrounding the establishment of which state law would apply, i.e., determining where the alleged tort occurred. This, in turn, would depend upon the nature of the acts or omissions upon which the action is founded, the identity of the individuals who were involved, and the locations where such individuals operated.

Another issue in terms of federal Government liability would be whether the astronauts assumed the risk of what clearly was inherently dangerous work. In this regard, one must consider the extent to which, by means of written agreements or waivers, the astronauts may have relinquished or limited prospectively any claims they or their estates might have for injury or death related to their duties on the Columbia or in connection with the Shuttle Program. If any waiver or relinquishment of rights was obtained, the inquiry would focus on, among other concerns, whether adequate consideration was provided as well as the nature and scope of the release from liability.

Liability of Private Entities

Depending on the root cause(s) of the Columbia痴 failure - whether found based on the current investigation of NASA痴 Columbia Accident Investigation Board or on any investigation by a Blue Ribbon Commission that the President may choose to appoint (along the lines of the Rogers Commission that had investigated the Challenger disaster) - personal representatives of the deceased astronauts and other possible claimants may consider seeking redress from one or more private entities that served as Government contractors and that had been involved in the design, construction, or maintenance of the Shuttle Columbia or of any facilities or computer hardware or software that interfaced with, monitored or controlled the operation of that vehicle.

The 敵overnment Contractor Defense

The United States Supreme Court, in Boyle v. United Technologies Corporation, 487 U.S. 500 (1988), rehearing denied, 489 U.S. 1047 (1989), ruled that liability cannot be imposed on a Government contractor by those injured by a product furnished by the contractor under its Government contract, so long as a three-part test is satisfied:

  1. The United States approved reasonably precise specifications for the contractor;
  2. The contractor痴 equipment conformed to those specifications; and
  3. The supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.

Boyle, 487 U.S. at 511. See also Correctional Services Corporation v. John E. Malesko, 534 U.S. 61 at 63, n6 (2001) (展here the government has directed a conractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense. Boyle v. United Technologies Corp., 487 U.S. 500, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988) . . . . ). Earlier case law surrounding the development of the so-called 敵overnment contractor defense had indicated that, in order to invoke the defense, specifications had to be developed by the Government rather than by the contractor. See In re Agent Orange, Product Liability Litigation, 534 F. Supp. 1046, 1055 (E.D.N.Y. 1982). Dispelling this notion, the Supreme Court in Boyle made clear that the Government need only 殿pprove the specifications. Subsequent decisions have elaborated on the requirement for 殿pproval, noting that 殿pproval can include such things as informal 田ontinuous back and forth discussions between the Government and its contractors regarding the details of specifications, as well as more formal indications of approval. See Smith v. Xerox Corp., 866 F.2d 135 (5th Cir. 1989); see also Linda Kerstetter, et al. v. Pacific Scientific Company, et al., 210 F.2d 431 (5th Cir. 2000).

The 敵overnment contractor defense can and probably would be raised in response to any lawsuit against private entities relating to injury or loss associated with the Columbia disaster. Of note, however, is the fact that NASA, in recent years, has been relying more heavily than ever on the use of private contractors to perform necessary and essential functions that once were within the purview of NASA employees. According to the Associated Press, nine out of every ten dollars expended by the Agency now goes to contractors (Washington Post, February 4, 2003). This fact may well have some bearing on the extent to which NASA contractors can establish Government oversight and specification 殿pproval in an attempt to invoke the 敵overnment contractor defense.

Contract Provisions

The press also has indicated that NASA contracts relating to the Shuttle Program may include special clauses that provide liability caps and/or Government indemnification for certain kinds of liability associated with contract performance (Washington Post, February 4, 2003, page E01, 鉄huttle Contractors May Face Liability Suits). It will be interesting to see how those clauses are viewed in light of prior case law that precluded Government indemnification of its contractors, where the Government itself would be immune from liability by reason of the Feres doctrine. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977); but cf. Hercules Incorporated, et al., v. United States, 516 U.S. 417, dissent of Justice Breyer at 440-441 (的t [Stencel] nowhere says, or directly implies, that the law prohibits the Government from agreeing, explicitly or implicitly, to indemnify a contractor. Indeed, this Court has explicitly written that it 素ail[s] to see how the Stencel holding . . . supports the conclusion that if the Tort Claims Act bars a tort remedy, neither is there a contractual remedy. The absence of Government tort liability has not been thought to bar contractual remedies on implied-in-fact contracts, even in those cases also having elements of a tort. [Citations omitted]).

A Parting Observation

Notwithstanding the availability of the Feres doctrine and the Government contractor defense, both NASA and Morton Thiokol, the contractor that had furnished the fatal 徹 ring implicated in the 1986 Challenger disaster, chose to pay out millions of dollars for settlements of claims on behalf of deceased Shuttle astronauts. See Dembling and Walters, supra. Perhaps their rationale was that outright refusal to pay such claims might have created an even more damaging public relations disaster for them than the Challenger痴 demise seventy-three seconds after liftoff. Certainly, the Challenger disaster posed so high a profile that their actions in relation to it would not escape notice. It has yet to be seen whether the same approach will be adopted for the victims of the Columbia disaster.

Richard C. Walters is Senior Attorney and Dispute Resolution Officer in the Federal Aviation Administration's Office of Dispute Resolution for Acquisition.

February 10, 2003


JURIST Special Guest Columnist Richard C. Walters, Esq. is Senior Attorney and Dispute Resolution Officer with the Federal Aviation Administration's Office of Dispute Resolution for Acquisition. A graduate of the University of Pennsylvania痴 Wharton School of Finance (B.S.E., cum laude, 1968) and Law School (J.D. 1971), Mr. Walters has over 30 years of experience in federal Government contract law. Mr. Walters has specialized in civil litigation and public contracts matters, including bid protests before the General Accounting Office (GAO), and contract claims formulation, audits, negotiation, and litigation before the agency Boards of Contract Appeals, the United States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit, as well as Alternative Dispute Resolution (ADR).

Mr. Walters lectures frequently on federal Government contract and ADR issues and has authored/co-authored numerous articles, including The Challenger Disaster: Legal Ramifications, Journal of Space Law, Vol. 19, No. 1 (1991).