After states began to explore the outer space in the 20th century, humanity has begun to commercialise the outer space in the 21st century. Private actors now engage in trade and transport goods as well as passengers into and through the outer space. However, there is a lack of suitable German and European commercial law regulating transport between private actors, such as carriers and shippers. This is because existing freight contract / transportation law is not applicable to transport in outer space.
The German legislator links the law on freight contracts found in the German Commercial Code to certain prerequisites which do not open up the scope of application of the law on freight contracts in the case of transport by a space ship / starship. According to section 407, paragraph 3 of the German Commercial Code (HGB), the provisions of the law on contracts of carriage only apply if the goods are carried by land, inland waterways or by air. In the case of carriage by air, the scope of application of the law on contracts of carriage thus depends on the means of transport, namely the aircraft. According to § 1 para. 2 LuftVG (Luftverkehrsgesetz), aircrafts can also be spacecrafts, rockets and similar flying objects, but they are only considered as aircraft as long as they are in the airspace. Airspace is the space filled with air above the earth’s surface, which, however, ends at an altitude of approximately 100 km at the so-called Kármán line. This is also where the sovereign territory of the state ends and outer space begins, which is legally comparable to the high seas, but for which, contrary to maritime trade law, there is no corresponding Commercial transport law (yet).
In addition to the existing international conventions on exploration and liability between states and the national outer space laws currently being planned, which shall in particular regulate the relationship between the state and the private actor, in the author’s view it is indispensable to also create the regulatory framework for the private actors among themselves, namely to develop an outer space trade / transportation law. A look into the past shows that the other modes of transport, in particular the shipping industry, were only able to develop properly after appropriate legal principles were developed for the private actors that regulated the legal relationship between the carrier and cargo interests such as consignors/shippers/goods owners and its insurers. One example is the right to limit the liability of the shipowner, which made the risky activity of shipping on the high seas insurable and thus commercially viable, which resulted in a prosperous outer space transport and insurance industry.
For further interest, reference is made to the recently published article in the Journal Recht für Transportwirtschaft, Goebel, (Europäisches) Frachtvertragsrecht im Weltraum – Ein zivilfrachtvertragglicher Beitrag zur Notwendigkeit eines Weltraumhandelsrechts, RdTW 2023, 307.