In brief - Regulation of autonomous vessels and legislation dealing with their safety, manning and operation remain a particular challenge both nationally and internationally

The maritime world has seen a surge of stakeholders take an active interest in the development and innovation of the technology of autonomous shipping. There is no doubt that autonomous shipping will continue to develop throughout the transport industry and across the globe. 
 
Unmanned ships can generally be categorised according to their level of automation. In general terms, remotely operated vessels are controlled and operated by human operators located onshore in shore control centres. With completely autonomous vessels, a human operator inputs destinations, and the vessel itself will navigate to these destinations without any further interaction being required.
 
This article considers the status of the legal framework that underpins autonomous shipping and the challenges ahead.

IMO Legal Committee's work programme on Maritime Autonomous Surface Ships

In April 2018, the Legal Committee of the International Maritime Organisation (IMO Legal Committee) began a work programme for Maritime Autonomous Surface Ships (MASS) with a target completion year of 2020. 
 
The aim of the IMO Legal Committee is to carry out a gap analysis of existing liability and compensation treaties and to scope the work required for MASS. This complements the work being carried out by the IMO Maritime Safety Committee (MSC) on autonomous vessels. The IMO Legal Committee has sought concrete proposals and comments on a plan of action to be made in March 2019. 
 
The IMO Legal Committee work has been informed by a study of potential MASS legal requirements undertaken by the Comite Maritime International (CMI), an international organisation comprising over 50 national maritime law associations. The CMI has analysed eight IMO conventions: SOLAS (safety at sea), MARPOL (pollution), COLREG (collision regulations), STCW (seafarer standards and training), FAL (facilitation of international traffic), SAR (search and rescue), SUA (suppression of unlawful acts in maritime navigation) and Salvage

Sir Bernard Eder addresses Comite Maritime International on challenges of unmanned vessels

In November 2018 at the CMI Assembly meeting in London (CMI Assembly), retired High Court judge Sir Bernard Eder gave a presentation entitled "Unmanned Vessels: Challenges Ahead". That presentation noted the following relevant developments:
  • A claim made by Chinese state media concerning the fastest unmanned waterborne surface vehicle having a top speed of over 50 knots. 
  • A Chinese company that started construction of the Wansham Marine Test Field for testing of autonomous maritime technology, which is claimed to be the largest testing facility of its kind in the world. 
  • China celebrating the opening of its Hong Kong - Zhuhai - Macao Bridge by holding the largest cooperative unmanned boat manoeuvre in history using 81 boats. 
  • Israel had also developed an unmanned boat known as the "Katana", an unmanned surface vehicle. 
  • Rolls Royce, in the UK, had revealed plans for an autonomous, single role, naval vessel with a range of 3,500 miles. 
  • Rolls Royce and Svitzer had successfully demonstrated the world's first remotely operated commercial vessel in Copenhagen, Denmark in 2017. 
  • The world's first fully electric and autonomous cargo ship is being built in Vard Brevik, Norway, the "Yara Birkeland". 

Autonomous shipping challenges 

There are many challenges to consider with the advent of autonomous shipping, particularly when it comes to regulation. The United Nations Convention on the Law of the Sea (UNCLOS), which is often referred to as the constitution of the seas, uses both "ship" and "vessel" interchangeably, and surprisingly, does not define either.
 
Sir Bernard Eder has suggested the need for a "universal term that makes it plain that the concept of a ship or vessel does not necessarily depend upon the extent to which any crewman may or not be on-board".
 
The practical difficulties involved in amending each and every convention to have proper regard to safety when it comes to unmanned ships are evident. Sir Bernard Eder commented that an alternative may be to create "some overarching instrument along the lines perhaps of the Polar Code", and new definitions for generic words such as "master" could be considered in order to extend the reach of conventions to shore-based personnel.
 
Whilst the focus of legal reform inevitably must be on safety, Sir Bernard Eder pointed out that it should not be overlooked that legal liability conventions also may need to be considered. Due diligence is something that the courts will have to give consideration to in relation to questions of seaworthiness. Whether an owner has complied with its duties of due diligence in, for example, the carriage of goods liability regimes will be challenging in the context of MASS.
 
Other industry leaders offered their views at the CMI Assembly during a workshop entitled "The Challenging Convergence of Modern Technology, Cybercrime and Marine Insurance."
 
Robert Veal from Southampton University questioned whether a more significant role for product or manufacturers' liability insurers concerning autonomous technology is necessary. 
 
Lina Wiedenbach questioned whether the present fault-based liability regime in the Collision Regulations may have to be reassessed in the light of autonomous vessels. She queried whether:
  • there might have to be a shift from considering negligence in navigation to negligence in management
  • vicarious liability principles for independent contractors should be applied to operators of MASS
  • it might be necessary to extend the circle of persons for whose fault ship owners might be liable, creating a regime of strict liability for MASS
  • liability exceptions might be available to owners and whether they could include wilful acts of third parties, or contributory negligence

Maritime Safety Committee determines framework and methodology for autonomous vessels regulatory scoping exercise

In December 2018, the MSC approved the framework and methodology for the regulatory scoping exercise which it had agreed to undertake in 2017. In effect, for each instrument related to maritime safety and security and for each degree of autonomy provisions are to be identified which:
  • apply to MASS and prevent MASS operation, or
  • apply to MASS and do not prevent MASS operations and require no action, or
  • apply to MASS and do not prevent MASS operations but may need to be amended or clarified, and/or may contain gaps, or
  • have no application to MASS operation
MSC has identified four degrees of autonomy. They are:
  • Degree 1: Ships with automated processes and decision support: seafarers are on board to operate and control ship port systems and functions. Some operations may be automated and at times be unsupervised but with seafarers on board ready to take control.
  • Degree 2: Remotely controlled ship with seafarers on-board: the ship is controlled and operated from another location. Seafarers are available on-board to take control and to operate the ship board systems and functions.
  • Degree 3: Remotely controlled ship without seafarers on-board: the ship is controlled and operated from another location. There are no seafarers on-board.
  • Degree 4: Fully autonomous ship: the operating system of the ship is able to make decisions and determine actions by itself.
It was also decided that once the first step has been completed the second step will be to analyse and determine the most appropriate way of addressing MASS operations, taking into account the human element, technology and operational factors. The analysis will identify the need for:
  • equivalences as provided for by the instruments or developing interpretations, and/or
  • amending existing instruments, and/or
  • developing new instruments, or
  • none of the above as the result of the analysis
The instruments to be covered in the MSC scoping exercise for MASS includes: SOLAS, COLREG, Load Lines (loading and stability), STCW, STCW-F (training of seafarers and fishers), SAR, Tonnage Convention, CSC (safe containers) and STP (special trade passenger ships).
 
The initial review of the instruments is to be conducted during the first half of 2019 with the aim of concluding the exercise in 2020.

Are Australia's national and state laws on operation, manning and safety of autonomous vessels fit for purpose?

The challenges for MASS do not only involve international regulatory bodies. The problems come much closer to home, when consideration is given to local legislation dealing with safety, manning, and operation of ships.
 
Whilst the definitions of "ships" and "vessels" in both federal and state legislation may be broad enough to encompass autonomous vessels, the more difficult question to be determined is whether the laws that are in force in national or state legislation relating to the operation, manning or safety features of such vessels are fit for purpose. Clearly at the time of enactment most such provisions did not have unmanned or autonomous ships in contemplation, let alone the other types of vessels which may be partly manned or partly autonomous.
 
Clearly there is still much work to be done by regulators at both an international and national level.  

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

Related Articles

Insurance

General insurance sales funnel

The report of the Royal Commissioner makes various suggestions as to changes in the law that may have a long term effect on the general insurance sales process.