Cross-Waivers of Liability in Agreements to Explore Outer Space: What The Are and How They Work

Vol. 9, No. 1

Since 1999, Steve Mirmina has worked in the International Law division of the Office of the General Counsel of NASA. He has received commendations for his work from both NASA and the White House. Steve has spoken widely, authored numerous articles, and edited several books in international air and space law. He is a Member of the Bar of the US Supreme Court and teaches space law as an adjunct professor at Georgetown Law School.

The National Aeronautics and Space Administration (NASA) has a long history of using cross-waivers in agreements with other space agencies to explore outer space. This article will discuss cross-waivers, as they are used in cooperative agreements for outer space exploration, and explain how they are structured.1 Because cross-waivers are legally complex, this article is intended to provide a general overview of how they work and why they are used for cooperative activities in outer space, such as the International Space Station (ISS). Additionally, the Federal Aviation Administration (FAA) requires that commercial licensees and their contractors and customers enter into cross waivers with each other and the US government in connection with the launch or reentry of a private spacecraft, and thus, understanding NASA’s cross-waiver practice may be somewhat helpful in understanding FAA’s requirements on the commercial sector.

What Is a Cross-Waiver?

Essentially, a cross-waiver is a set of promises made by parties to an agreement in which each of the parties pledges not to sue the other for damages caused by the other, except under specific circumstances. Moreover, each party also pledges that not only will it not sue the other, but also it will ensure that any entity related to it will not sue the other or any entity related to the other, except, again, in those same very few, and very limited, circumstances. This is graphically illustrated on page 12 in Figure 1.2

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