Parallel universe

The starting point is somewhat of a black hole: there are no existing UK or international guidelines, treaties or regulations relating to the investigation of spaceflight accidents: the Outer Space Act 1986 does not contain any guidance and the same falls outwith the reach of current UK civil aviation accident investigation legislation. The solution, adopted by the UK Government and given voice in the draft regulations, is to create a parallel universe and to mirror, for spaceflight accident, existing domestic provision for the investigation of air accidents. The same draw in turn on the international framework for civil air accident investigation as given voice in ICAO Annex 13. It follows that there is much familiarity to stakeholders in the aerospace industry, to include insurers and reinsurers, with prior experience of air accident investigation by the UK AAIB or an equivalent overseas air accident investigation authority.

“Without the apportionment of blame or liability”

The fundamental principles of air accident investigation are first, that the sole objective of the investigation is the prevention of accidents and incidents. Secondly, it is not the purpose of the investigation to apportion blame or liability. This is the very bedrock of air accident investigation and it  finds voice, front and centre, in the draft regulations for spaceflight accident investigation.

The UK Space Accident Investigation Authority (SAIA)

The SAIA will be to spaceflight what the AAIB is to air accident investigation. A Chief Inspector, reporting to the Secretary of State, will be empowered with unrestricted authority over the conduct of spaceflight safety investigations and to operate independently both of the UK Space Agency and the Civil Aviation Authority.

The draft regulations are to apply to the investigation of spaceflight accidents occurring in or over the United Kingdom, and elsewhere, if certain circumstances set out in regulations apply. The definition of “accident” in the Act is wide and includes unexpected events which threaten the safety of any spacecraft or person, whether or not any person is injured or the spacecraft is damaged.

Duty and power to investigate

As in air accident investigation, powers to investigate are to be mandatory and also permissive. 

Mandatory

Investigation of “serious spaceflight accidents,” occurring in or over the UK will be mandatory. A spaceflight accident is classified as “serious” where there is fatal or serious injury of an individual in the course of operation of a launch vehicle or during the course of spaceflight activities where there is a high probability that such injury would occur as a result of that accident. 

• The phrase “operation” in relation to, “of a launch vehicle” is given definition, so that the temporal window of interest is clear. If there are human occupants on board (crew or passengers)  it means between boarding and disembarkation. If no persons are on board, it means between the time the launch vehicle is ready to move with the purpose of flight until such time as it comes to rest at the end of the flight and the propulsion system is shut down.

• However, there is a lack of clarity when we look at the phrase “in the course of” in the context of “spaceflight activities”. The latter phrase is given definition in the Act to embrace both space activity (launching or procuring the launch or return to earth of a space object) and sub-orbital activity (launching, procuring the launch, operating or procuring the return to earth of a craft (rocket or balloon) or an aircraft carrying such craft). The use of the term “procuring” potentially extends the reach of the SAIA much wider than we are used to in equivalent AAIB air accident investigation. It is unclear whether there is deliberate intention for the reach of the SAIA to bleed back into the procurement stage or if there is some omission here in the drafting. 

Permissive

Permissive power to investigate will extend to accidents occurring other than the UK, where there is a UK angle and an investigation is not carried out by another state, or where the UK is requested by another state to assist. As to the what constitutes a UK angle, this condition is met where the UK is the state of launch, operator domicile, design, manufacture or (and this is a new reach) maintenance.  

• Extending the investigative reach to spaceflight accidents where the UK is the state of maintenance is a significant extension from parallel provisions in civil aviation accident investigation and ICAO Annex 13.

• Secondly, the state of launch, operator domicile, design or manufacture is readily identifiable by reference to publically available registers or records and dials up a single state at any given point in time. The position is otherwise as regards the state responsible for maintenance. 

• Thirdly, as concerns the UK being either the state of manufacture and/or maintenance, the draft regulations, by express terms, are concerned not only with the launch vehicle but also “any component of the launch vehicle”. This seems incredibly far-reaching. Perhaps though it is a natural progression and builds on experience in telecommunication satellite losses in which failure in performance of a minor component part (e.g. a pyrovalve) can have serious impact on the expected life of the satellite.   

Conclusion

So, the good news for aerospace insurers is that if the current draft regulations come into force in their current provisional form, they will set a framework for spaceflight accident investigation that has much familiarity to those with existing experience of AAIB air accident investigation. However, the reach of the SAIA at least as provided for in draft regulations, looks set to be far greater than that of the AAIB in air accident investigation. That is an interesting proposal given the experience, track record and case authority surrounding the concept of accident investigation by the AAIB. It may be a fundamental principle that it is not the purpose of air accident investigation to apportion blame or liability. However, in the context of spaceflight, and a developing UK industry, what will the reality be in a global context and where the most thorough examination of cause and accident prevention will be at the hands of the newly created SAIA?

Secondly, there is the (albeit remote) possibility of cross-over between the AAIB and the SAIA – or the public perception of the same. One issue would be, for example, what happens if there is a mid-air collision over the UK between an aircraft and a UK launch vehicle? That would take us into unchartered waters in terms of what to expect from inter-action and cross-over of investigation as between the SAIA and the AAIB. 

The involvement of any stakeholder as an “interested party” in formal accident investigation can lead to significant costs for insurers and insured alike, not to mention the commitment of an insured in terms of time and resources, with key personnel diverted from day to day duties. It must be hoped that the remit, scope and authority of the SAIA gains further clarity as a result of the UK Government’s consultation – uncertainty or inconsistency of itself comes with significant cost.

There is much in the draft regulations to digest.  In a follow up article we will consider the powers to be given to the Chief Investigator of the SAIA of and the relevance that resulting SAIA accident reports will have in the sphere of civil liability claims flowing from spaceflight accidents. 

[1] The Spaceflight Activities (Investigation of Spaceflight Accidents) Regulations 2020.

[2] Unlocking Commercial Spaceflight for the UK: Consultation on draft regulations to implement the Space Industry Act 2018 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/904255/unlocking-commerical-spaceflight-for-the-uk.pdf