43 – Continued discussion of CATS: Why is there inadequate attention to passenger safety?

The foundation of any civilization’s transportation infrastructure is the ability to transport passengers safely. Let’s take a look at what this means. (Please note that I am not an attorney so the following reflects my understanding of these issues.)

Here is a radar map snapshot of the commercial airliners flying above the U.S. during a moment in a typical day.

Radar snapshot of commercial airliners above the U.S. on a typical morning or afternoon


Now watch this video of a solo flier in a jet-powered wingsuit. (Most use an upowered wingsuit.) A conventional parachute is used for landing. Thus, this might be considered a two-stage flight system with both stages being fully-reusable.

Does the safety of the wingsuit/parachute compare to that of the commercial airliners? An Internet search will highlight the risk associated with unpowered wingsuit flight. By one report, 76% of wingsuit fliers have experienced a “near miss”. The experienced ex-Army parachutist, who parachuted into the 2012 London Olympics dressed as James Bond, died in a wingsuit accident. This level of risk contrasts sharply with that of airworthiness certified commercial aviation. Yet, both are fully-reusable. Thus, “fully-reusable” is not, by itself, a synonym for airline-like safety.

Passenger safety is paramount for a public transportation company

A commercial establishment owner is obligated under law to take reasonable actions to protect the safety of customers while on the company’s premises. This legal “duty to care” concept extends to public transportation companies hiring themselves out to transport the public to a destination. The transportation company is obligated to protect the safety of the passengers and to take all reasonable measures to prevent accidents that could cause harm to the passengers. Thus, the term “passenger” carries with it a specific legal obligation related to safety that cannot be waived.

Up until the late 19th century/early 20th century, the duty to care obligation was handled through civil court cases. The injured party would sue for damages and a trial would determine if the duty to care obligation had not been met. (In extreme circumstances, the case may be handled as a criminal charge as well.) This process became too legally cumbersome as the industrial age unfolded so a regulatory approach was implemented.

The government would establish the safety requirements needed to meet the duty to care obligation and, then, the government would determine, in advance, if these requirements were met. If so, a certificate to operate was issued to the business. With the certificate a transportation company can then legally operate, sell tickets, and transport passengers without undo concern about being sued should harm come to the passenger through an accident—provided that no company negligence was involved.

Every aircraft seen in the radar map above has such an operational certificate—an airworthiness certificate—indicating that each aircraft has been inspected, flown, and found to be safe to operate prior to it being introduced into passenger service. Every aircraft design has also received a “type certificate” indicating that the design of the aircraft has been reviewed, along with analyses and ground and prototype flight test results, to determine that the specific aircraft design is safe. As the radar map attests, this process works very well and should be a model for commercial human spaceflight, but it is not—yet. Commercial human spaceflight is still being treated as adventure travel, just like wingsuit flying.

Adventure travel involves participants, not passengers

White_Water_RaftingWhat may at first appear to be public transportation is often adventure travel. White-water rafting is a good example. While it would appear that the rafting company is transporting passengers, legally this is not the case. The customer hires the rafting company for an adventure, not for travel to a destination. With this distinction, the customer is not a passenger but an adventure “participant” and, as such, does not warrant the safety protection due to a passenger. Short of gross negligence, such as operating the raft while intoxicated, the rafting company has no primary legal responsibility for the participant’s safety. For business reasons, the company would most likely strive to protect the participant’s safety, but the legal requirement does not exist. This is why the rafting company often requires a legal waiver of their responsibility to be signed by the participant prior to embarking on the adventure. By signing the waiver, the participant takes the responsibility for their own safety and must make whatever decisions are necessary in this regard. If the participant falls out of the raft and drowns, then that’s just too bad. It’s why it’s called an adventure! If a waiver is required, its adventure travel.

From personal experience with white-water rafting, deciding to sign the waiver and take the rafting trip is a “what is everyone else doing” type of decision, similar to driving in bad weather. If everyone else is staying off the roads, then it is probably wise to do that as well. Some label this as making an informed decision, but this is not really the case, is it? While signing the white-water rafting waiver, perhaps days in advance, the condition of the raft, the apparent experience of the fart operator, the condition of the river and other weather conditions are not known. These, however, are considerations made by personal observation while getting ready to depart. That, by broad experience, this approach works in substantially non-technological circumstances, does not imply that it works in highly technological circumstances. When one signs a medical waiver for an upcoming complicated surgery, for example, does a normal person really understand the risks involved sufficient to make an informed decision? Commercial transportation does NOT operate in this informed decision/adventure travel model.

Commercial suborbital human spaceflight is adventure travel

The 1996 Ansari XPRIZE was intended, per my understanding, to promote the formation of a commercial suborbital human spaceflight industry. The purpose of the prize was to reward the person/company that demonstrated the commercial feasibility of suborbital passenger spaceflight. (Note that experimental, fully-reusable, government rocket planes, such as the X-15, had undertaken high-speed, suborbital flight since the 1950s.) Burt Rutan led a team that used SpaceShipOne to win the Ansari XPRIZE in 2004.

An initial requirement for winning the prize was that the flight system carry three passengers. (Note that the term “passenger” was used and is still used on the websites.) As the program unfolded, carrying two passengers was seen as being too risky and the requirement was changed to carrying the equivalent in terms of mass. For the winning SpaceShipOne, the single passenger was, in fact, the pilot. Hence, the prize was won with only a pilot in the vehicle. While the goal of the prize was to demonstrate passenger suborbital spaceflight, this was not achieved. A pilot is not a passenger.

To help promote the formation of a commercial suborbital human spaceflight industry, Congress has used legislation that legally defines this as the equivalent of adventure travel. The humans aboard the flight system are either crew or spaceflight participants and specifically not passengers. All participants are required by law to sign waivers acknowledging that neither the spaceflight company nor the Federal Government has any of the typical duty to care legal burden to take all reasonable measures to protect the safety of the participants. Further, the government is not required or even permitted, as I recall, to issue any type of safety certification for the operation of the flight system. All they do is issue a launch permit that does not include any implied crew or participant safety. The only real safety concern of the government is to protect the safety of the non-involved public (on the ground) that could be harmed by an accident involving the flight system. This protection is normally established by requiring sufficient separation of the flight operations for any population center—similar to what is done for other launch vehicles.

The key point here is that, per my understanding, it is legally incorrect to refer to these suborbital spaceflight participants as passengers. To do so implies a level of safety that has not been independently verified by the government. The public understands the level of safety imposed by the government on commercial airline companies that carry passengers. To imply the same for suborbital spaceflight participants is both morally and, per my understanding, legally wrong. As with white-water rafting, a participant is responsible for all decisions made regarding their safety and accepts all responsibility for any harm they incur absent gross negligence.

The challenge this presents to the establishment of a commercial suborbital human spaceflight adventure travel industry is significant. Folks do white-water rafting on some rivers because of the preponderance of real-world experience that says this is safe on those rivers under certain river conditions. Would you expect a large number of people to take up wingsuit flying when even highly experienced parachutists die in wingsuit accidents? How is a commercial suborbital human spaceflight company, operating under adventure travel rules, to gain the confidence of a sufficient number of customers to be viable when the “duty to care” legal obligation for safety is intentionally avoided? Wouldn’t this industry do much better if it operated under commercial airline-like airworthiness rules with government-regulated certification? The adventure of suborbital spaceflight would not change, only the real risk of harm and likely death to the customer.

As a side note, in one private discussion with a senior official of the FAA office that addresses commercial suborbital spaceflight, I suggested that Congress make it mandatory that a senior FAA official, such as the person to whom I was speaking, be required to fly on the first commercial flight of any FAA-approved system under current law. The official did not smile in response to my suggestion. What does this say about the adequacy of the current commercial suborbital spaceflight law providing reasonable protection of the participants or, even, the crew? Nearly 20 years after the Ansari XPRIZE was established and 11 years after it was won, a viable commercial suborbital human spaceflight industry does not yet exist. Hence, this does not appear to be a successful model to follow for commercial orbital passenger spaceflight.

NASA commercial crew orbital spaceflight is not passenger spaceflight

The government and private industry hires employees to undertake hazardous jobs. Being an astronaut or a test pilot is such a hazardous job. Being a pilot of a commercial or military aircraft, not engaged in warfare, is not a hazardous job.

Test pilots are a very critical link in our highly-successful aeronautics industry. Someone has to take the plane up for its first flight, conduct the flight test program to ensure that the plane operates as intended,  and record critical flight test data. Test pilots are the pilots the government and companies hire to perform this task. They are specifically hired to perform a hazardous job. As with a “participant” in adventure travel, the primary obligation to protect their safety remains with them. The test pilot will either choose to fly or not.

What is key is that to make the decision on whether to fly or not, the test pilot must have sufficient information to make an informed consent decision. This is a “gut-check” type of decision. A well-executed flight test program will use every means available to provide the test pilot with sufficient information to wisely make this decision. The test pilot will likely be embedded in the development program for months, if not years, to establish a firm technical understanding of the new aircraft. He or she will fly simulators and similar aircraft to gain a feel for how the new aircraft should perform. The test pilot will likely form personal bonds with key technical personnel so that their informal opinions on safety can be conveyed directly to the test pilot. With all of this information, the already highly-experienced and trained test pilot can then make the gut call—the informed consent decision—on whether or not to fly.

Of course, the company can hire an extreme risk taker as a test pilot. But what does this achieve—trying to fly an aircraft that experienced, but more cautious test pilots would decline to fly. The company then puts at risk all of its investment and reputation on the extreme risk taker ignoring red flag warnings that might readily be fixed. The experienced, but cautious test pilot is there to protect the company by pursuing a path that will lead to a high likelihood of a successful flight. Safety is his or her first priority!

NASA astronauts, in the past, have essentially operated within this “test pilot informed consent” model. Almost all astronauts are or become pilots while in training. All undergo years of training in preparation for the mission. This provides them with the knowledge and understanding necessary to make an informed consent decision. There is nothing wrong with this. Every adult has the right to control their own safety, within the limits of the law, provided they have the knowledge and understanding to make a real informed consent decision. Further, being a NASA astronaut has been their voluntary choice similar to deciding to become a wingsuit flyer. However, the fact that NASA astronauts choose to accept these risks does not mean this is a model for building a successful commercial orbital passenger spaceflight industry.

While NASA’s astronauts have each made this decision, the level of risk they accepted was not properly conveyed to the public. One early NASA astronaut told me the story that he and another astronaut were at the cape watching the launch of an unmanned expendable launch vehicle of the type they would fly on. The vehicle blew up on launch. One astronaut turned to the other and noted that the other astronaut was to ride the next of that particular launch vehicle on his upcoming mission. That mission went well, fortunately. This was the “right stuff” of these early astronauts that enabled the Apollo program to proceed during the race to the Moon political competition with the Soviet Union. We will see this “right stuff” emerge again when NASA astronauts undertake the exploration of Mars or similar missions in the future. Getting to low Earth orbit, however, should no longer be viewed as the realm of “right stuff’ flight given that the United States has the technological and industrial capability to do far better.

What NASA did to obscure, from the public, the high risk to the astronauts was to label their flight systems as “man-rated”, which has become “human-rated”. Human-rated sounds safe, doesn’t it? Surely, government officials wouldn’t let astronauts fly on something that wasn’t reasonably safe? (Recall the story told by one early astronaut.)

1895 Space Shuttle Challenger accident
1985 Space Shuttle Challenger accident

This concept of human-rated safety continued into the Space Shuttle program. Originally conceived as a fully-reusable, two-stage spaceflight system, the Space Shuttle system design devolved into the partially-expendable system we are familiar with. But was it safe? At the time of the first missions, NASA would imply to the public that the risk of loss of crew was in the ballpark of one-in-one thousand (1:1000). After the program ended a couple of years ago, NASA published the chart below showing their estimate of the risk of loss of crew throughout the 30 years of Space Shuttle operations. (Note that this is a retrospective analysis looking back at what happened using analytical tools not available in the early years of the Space Shuttle program.)

When the Space Shuttle started to fly, the odds of a catastrophic loss of crew was retrospectively estimated to be one-in-twelve (1:12). The next time you are sitting at a traffic light, count the cars passing. One of every dozen cars would crash and kill everyone in the car. Is this safe by any reasonable expectation? Hardly. Yet, the Space Shuttle system operated under the banner of being “human–rated” for three decades.

Look back at the video of the wingsuit flyer. This, in my view, illustrates the risk-acceptance mindset of the astronauts that flew on the Space Shuttle. (All, that is, in my expectation, except for the first civilian {teacher} lost in the Challenger accident. In my opinion, she had no idea of the level of risk she was accepting because of how NASA publicly portrayed the safety of the Space Shuttle when she applied and very publicly accepted and promoted.) Is this human-rated level of risk suitable for commercial passenger spaceflight? Look again at the radar map of the commercial airliners in the sky. This is what real safety looks like to the public. The term “human-rated”, in my opinion, has no implicit safety merit and should not be used.

NASA is now developing its Commercial Crew Program to provide an American capability to transport astronauts to the ISS. There is nothing wrong with this. NASA astronauts are quite capable of making the informed consent decision to fly on this system. These systems will employ crew capsules and expendable launch vehicles. Hence, they will not be fully-reusable and, as discussed below, are not capable of achieving an airworthiness-type safety certification. NASA has elected to go this approach ever since the loss of the Columbia in 2003 rather then develop a fully-reusable system.

For the Commercial Crew Program, the objective risk of loss of crew has been set at at least one-in-two hundred fifty (1:250) per my understanding. This is provided the escape system works. My impression is that the risk of loss of the vehicle is expected to be in the range of one-in-twenty five (1:25) or in the same range as the Space Shuttle operated. The escape system then boosts this to 1:250. One its website, NASA describes the Commercial Crew Program as “safe”. What makes this work for NASA is that Congress apparently doesn’t much care and the flight rate of the system will be so low that the interval between failures will likely be years. My expectation is that NASA is willing to accept the political risk of having to periodically endure the political difficulties from a failure that kills astronauts. The Challenger accident was in 1985 and the Columbia was in 2003. The time separation was primarily due to the very low flight rate the Shuttle.  Congress appears to concur with this political strategy as they are funding the current approach.

While I understand the cost constraints on NASA as it attempts to replace the Space Shuttle, in my opinion it should be very clear to everyone concerned with America becoming a true commercial human spacefaring nation that the Commercial Crew Program is not developing an operational system suitable for commercial orbital passenger spaceflight. Any who argue that it is should be asked the question of will there be a requirement for a waiver of liability? Do you sign a waiver when you get on an elevator? A train? A bus? A commercial airliner? Why should any commercial spaceflight company be given a pass on meeting the time-tested legal obligation to meet their “duty to care” obligations for providing safe passenger travel? I don’t believe they should.

The reason we have the duty to care obligation is that this makes our transportation systems function with acceptable risk and legal liability. Imagine the chaos of entire airlines or subway systems or the elevators in your office building shutting down when a lawsuit alleging injury from negligence is filed. Transportation is a critical part of any civilization. From the start of building a new infrastructure, this critical nature must be recognized.

How “fully-reusable” can be used incorrectly to describe the safety of a human spaceflight system

Your car is a fully-reusable transportation system. Yes, tires are replaced, brakes are replaced, various engine components and batteries are periodically replaced, etc. But, the basic system is used, parked, turned-off, started, and put back into service without the need to do anything to ensure safety or operability except to make sure you have gas in the tank. (You don’t even have to “kick the tires” as most cars today will indicate a low or flat tire.)

I’ve yet to identify, other than human space transportation, any mode of human transport that is not fully-reusable. From skateboards to airliners, the practical and safe method for human transportation involves the use of fully-reusable systems. But not all of these are equivalent. When the risk of serious harm increases, the safety of the system is demonstrated by some form of independent regulation and certification. This involves the demonstration of the normal and emergency operability of each deployed system before the system is put into operation. Hence, while a skateboard is probably not certified, every elevator is, as is everything else I can think of that involves greater kinetic or potential energy in the transportation of people.

What this tells us is that these transportation systems are fully-reusable because this is required to demonstrate the safety of each system prior to that system being placed into commercial passenger operation. The system’s safety comes not from being fully-reusable, but from the fully-reusable system’s demonstrated compliance with the design, fabrication, inspection, operation, maintenance, and repair standards imposed by government regulation to meet the legal “duty to care” requirement of the transportation company. Expendable and partially-expendable systems cannot meet this certification-by-demonstration requirement as each expendable component only flies once. Thus, such systems cannot achieve passenger-level safety certification. However, without independent regulation and certification, just being fully-reusable has no inherent safety value. This is where, in my opinion, the draft CATS legislation gets it wrong.

Imagine if someone flies a fully-reusable wingsuit through a hole in a mountainside. Does this mean that this is safe for the public to do? You decide.

In the CATS draft legislation, the focus is on “fully-reusable” and not on passenger safety

The above discussions establish linkage between these four points:

  1. Transportation infrastructure transport passengers.
  2. Transporting passengers brings with it a “duty-to-care” legal safety protection obligation.
  3. The “duty-to-care” obligation is met by demonstrating design and operational compliance with government safety regulations.
  4. Full reusability in the transportation system is needed to be able to show that each operational system meets the safety regulations prior to it being placed into commercial service.

In the draft legislative language, Section 2, Findings, includes the following:

“9. Rapid, inexpensive transportation of humans and cargo to low Earth orbit will open new markets for commercial passenger travel while also creating opportunities for commercial stations in low Earth orbit.”

This is the only place in the draft that the term “passenger” is used. If the authors’ understand and are implying the accepted legal usage of “passenger”, then this is very good. This would then establish a legal “duty-to-care” safety protection obligation by the companies developing their spaceflight system and a need for the Federal Government to establish an airworthiness-type safety certification process for these spaceflight systems. My expectation is that this use of “passenger” is not meant to imply a duty to care obligation.

In Section 3, Definitions, the confusion begins:

“(2) Reusable Launch Vehicle (RLV) shall be any vehicle which is used to propel a crew and cargo into a low Earth orbit, the primary components of which, including but not limited to, rocket engines or other propulsion engine systems, and airframe or similar structures, shall be re-used for each flight.”

There is no mention of a Reusable Launch Vehicle being defined as carrying passengers. Further, the vehicle is only required to carry crew. Crew are employees, not passengers. Their consent is implicit in their continued employment. Without the ability to carry passengers, the above mentioned Finding 9 is not relevant. Hence, at the basic definition level, in my opinion this draft legislation fails to achieve its fundamental goal of opening “new markets for commercial passenger travel” as it avoids any discussion of passengers.

As NASA did with the use of “human-rated”, the intent now would appear to be to replace safety with “fully-reusable” with the implication being that a fully-reusable spaceflight system is inherently safe. (Don’t confuse “safer” with “safe”. Safe is compliance with a regulatory criteria.)

The concern about the missing reference to passengers in definitions emerges again in Section 4, Award Program General Requirements:

“(2) Transportation of a payload of at least 1 metric ton, including 2 crew members, to the Minimum Required Orbit, using a Reusable Launch Vehicle, where it will complete at least one complete orbit of the Earth, and then return safely to the surface of the Earth.”

Again, no mention of passengers. While it is not necessary to include a requirement to actually carry passengers on the prize award flights, the requirement should be very clear that the ability to carry passengers be available and that all implicit passenger duty-to-care safety certification requirements must be certified as being met prior to the start of the award flights. This is what prototypes of commercial airliners do. A failure to be explicit about the duty to care/certification indicates, in my opinion, a desire to NOT actually pursue passenger safety. Again, the draft legislation fails to meet one of its primary stated goals.

A likely response to these criticisms is that the draft legislation is intended to comply with the existing federal suborbital human spaceflight requirements geared at the legal equivalent of adventure travel. In the above discussions, the inherent flaws with the existing approach are clearly identified. Why should this yet-to-be-proven model for developing commercial suborbital human spaceflight, with its lack of focus on passenger safety, be extended to commercial orbital spaceflight when there is a well-proven commercial airworthiness model that can be readily applied? The answer to this question appears to rest with the underlying intent of this draft legislation as currently written. It is not clear to me that the goal to “open new markets for commercial passenger travel” is the real focus of this draft legislation because achieving passenger safety, which must be at the heart of this effort, is absent.

More to come.