New Mexico Senate Approves Informed Consent Law

The New Mexico Senate approved a measure that extends liability protections to spacecraft manufacturers and equipment suppliers by a 34-0 vote earlier today. The measure, which is supported by Gov. Susana Martinez, now goes to the House, where it is expected to pass.

The informed consent measure would provide protection against lawsuits from injured passengers and their heirs to a spacecraft operator, manufacturer or supplier unless it:

commits an act or omission that constitutes willful, wanton or reckless disregard for the safety of the participant and that act or omission proximately causes injury, damage or death to the participant;

has actual knowledge or reasonably should have known of a dangerous condition on the land or in the facilities or equipment used in the space flight activities and the danger proximately causes injury, damage or death to the participant; or

intentionally injures the participant.

The new law would require that spaceflight entities carry insurance coverage.

A space flight entity shall present to and file with the spaceport authority a certificate of insurance coverage in the amount of at least one million dollars ($1,000,000) that covers liability by the space flight entity for all space flight activities. No space flight entity that fails to satisfy the requirements of this section shall receive any of the protections afforded by the Space Flight Informed Consent Act.

Virgin Galactic — the anchor and lone tenant at the state-built Spaceport America — is already required to maintain insurance as an spacecraft operator as part of its lease with the New Mexico Spaceport Authority. [Emphasis mine]

Virgin will procure and maintain comprehensive aviation liability policies of insurance, including Aircraft liability, passenger liability, Airport/Spaceport premises liability, contractual liability and products/completed operations of no less than Two Hundred Million and No/100s Dollars ($200,000,000.00) combined single limit per occurrence and in the aggregate as respects Products. Virgin will also procure and maintain policies of insurance for vehicle liability insurance for all vehicles used in its operation at the Spaceport in amounts not less than One Million and No/100s Dollars ($1,000,000.00) per occurrence and no less than Five Million and No/100s Dollars ($5,000,000.00) in the aggregate single limit liability for bodily injury, including death, and property damage.

The measure would delay the repeal of the liability protections from July 1, 2018 to July 1, 2021. Virgin Galactic is running significantly behind schedule and has not yet flown from Spaceport America.

The legislation provides protections to Virgin Galactic as both an operator and a manufacturer of its SpaceShipTwo suborbital vehicle and the WhiteKnightTwo carrier aircraft.

The company and state officials also argued the protections were necessary to attract other tenants to the $209 million spaceport in Southern New Mexico. The additional tenants will help cover operating and maintenance costs, which is a major concern for both Virgin Galactic and the New Mexico Spaceport Authority.