The Realm of Autonomous Vessels and the Legal Implications around them
by Alkistis Petroula Anastasiou
Global trade continues to grow drastically due the interdependence of goods and services internationally. Direct aftermath of this phenomenon is the gradual increase of marine congestion. Higher levels of marine traffic can generate more casualties at sea. The leading cause of such marine accidents lies on human hands. According to findings of the maritime claims’ domain, human error in a vessel’s operation is the predominant source of multiple marine casualties.[1]
What is an autonomous ship?
The term ‘autonomous ship’ commonly refers to a “self-sailing crewless vessel”. However, autonomy does not have only one but multiple levels. Pursuant to the Lloyd’s Register, autonomy levels vary from ‘AL0’, this being a common manned ship to ‘AL6,’ this being a completely autonomous ship with a self-operating system, which does not leave space for human intrusion.[2]
Having presented some primary nuances of autonomous shipping, it follows that an autonomous ship is not necessarily unmanned, while the remote control of an unmanned ship does not directly render the vessel autonomous.[3]
What are the potential legal implications regarding the use of autonomous vessels?
Currently, there is no legal framework surrounding the use of autonomous vessels, something which renders the idea of autonomy a very long-term vision. Should autonomy be actualized right now in the marine sector, then it would come across many challenges, not being able to conform with the essential standards of the current maritime legislation. Such legislation contains several international major international treaties such as the UN Law of the Sea Convention 1982 (UNCLOS)[4], the International Convention for the Safety of Life at Sea 1974 (SOLAS)[5] and perhaps most importantly, the International Regulations for Preventing Collisions at Sea 1972 (COLREGS).[6][7] On that basis, practically some of the challenges reflected appear to be the absence of crew to closely supervise the navigation of the vessel as well as to correspond to the perils of the sea, such as rescuing people whose life is in danger, realizing any stowaways’ presence in the vessel and generally contributing to any urgent human accident via the provision of medical, legal or any other help.[8]
There are also some environmental considerations that should be noted. Absence of crew onboard could lead to lack of immediate action regarding a potential environmental tribulation in high seas. In the same orbit is the cybersecurity of the vessel which in case of an attack, threat of attack or a mere dysfunction will be unable to defuse such an incident.[9]
Moreover, we should be mindful that in the absence of any crew in the vessel, legal preconditions such as the seaworthiness of the vessel or the performance of cargo operations, will pass to the responsibility of the land-based personnel or even the shipowner and/or charterer.[10] Considering this alteration, the heads of liability potentially will not only include the shipowners and the charterers, but they will extend further, embracing remote operators, manufacturers, suppliers, mechanics, hardware and software installers etc. This means that third parties enabling the concept of the vessel’s autonomy will start being major actors rather than distant spectators, as they currently are.[11]
What are the liability structures that could serve the autonomous vessels regime?
Under a reality where autonomous vessels are predominant, potential structures of liability could vary from shared liability of the shipowner and/or charterer and the above-mentioned actors, full liability of the above-mentioned actors, or full liability of the shipowner and/ or charterer depending on the applicable laws that will be created to regulate that.[12]
In case the actors of liability multiply reaching manufacturers etc., the claimant would not only need to acknowledge all the responsible parties but would also be requested to indicate and prove their contribution to the damage occurred. Such a process would render any financial recovery attempt costly and extensive, which would stagnate the efficient resolution of the dispute.[13]
On the other hand, in case the full liability remains in the hands of the shipowner and/or charterer, then this might be a more viable path. Viable would be because it would facilitate the claimant to progress with their claim and recover potential loss. Simultaneously, this structure would be more practical because it also would prevent the technology manufacturers from coming across with sound claims for damage and/or loss liability. Regarding the shipowners, they would be legally authorized to limit their liability in respect of maritime claims pursuant to the Convention on Limitation of Liability for Maritime Claims (LLMC).[14] This would consequently entitle them to better insurance coverages and therefore more secure overall conditions.[15] Under such a strict liability regime, we would expect the shipowner to generally maintain the right to a recovery action against the manufacturers of the vessel’s automatic technology for any liability risen.
What would be the most viable liability regime – is there any?
In conclusion, we could reasonably argue that a strict liability regime is the most advantageous scenario, especially because it would be able to handle more efficiently maritime liability claims deriving from operations of autonomous vessels. Even though such a legal framework would burden the shipowner and/ or charterer primarily, this does not appear to be unreasonable since the shipowner and/or charterer is the one who decides to set in motion such an autonomous ship acknowledging all the severe potential risks as well as the liabilities around them. However, if an exception should be established this should be in relation to losses incurred while the vessel is not in autonomous mode, such as when she is idle. In such a case, the shipowner’s and/or the charterer’s actions would not generate any navigational peril, while the identification of the party causing the damage or loss, would be a more facile process.[16] Nevertheless, even if the strict liability regime does not apply or co-applies causing the increase of hands in the liability domain, this might also have a counteractive output, this being that the risk of owning and/or chartering a vessel will most likely decrease, raising the number of stakeholders interested in maritime operations.
What are the interim steps that could be taken until the era of autonomous vessels arrives?
In conclusion, mindful of all the above, until autonomous vessels fully dominate the shipping market, national jurisdiction, contractual stipulations and insurance policies might be expected to cover the chasm of law. A characteristic example is the Maritime UK, which has already created an Industry Code of Practice for Maritime Autonomous Systems Ships (MASS), aiming to lay out standards and best practices for autonomous vessels having length less than 24 metres.[17]
Would you agree with this quote?
The goal is not to sail the boat, but to help the boat sail herself. John Rousmaniere
References
[1] International Shipping News, ‘The Good, the Bad and the Ugly: Unmanned Ships’, 28 January 2020.
[2] Callum O Brien, ‘Key advantages and disadvantages of ship autonomy’, E-Navigation Opinions, September 21, 2018.
[3] International Shipping News, ‘The Good, the Bad and the Ugly: Unmanned Ships’, 28 January 2020.
[4] UN General Assembly, Convention on the Law of the Sea, 10 December 1982.
[5] International Maritime Organization (IMO), International Convention for the Safety of Life At Sea, 1 November 1974, 1184 UNTS 3.
[6] International Maritime Organization (IMO), Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 UNTS 16.
[7] The Shipowners’ Protection Limited, ‘Unmanned and Autonomous Vessels – the Legal Implications from a P&I Perspective’.
[8] Jose Pellicer, ‘Automation and liability in maritime law’, Kennedys, 13 August 2018.
[9] Scott Krist, ‘How will autonomous shipping affect the maritime industry?’, The Krist Law Firm, 26 October 2017.
[10] Jose Pellicer, ‘Automation and liability in maritime law’, Kennedys, 13 August 2018.
[11] Jose Pellicer, ‘Automation and liability in maritime law’, Kennedys, 13 August 2018.
[12] Jose Pellicer, ‘Automation and liability in maritime law’, Kennedys, 13 August 2018.
[13] Enare Erim, ‘Autonomous vessels: Resolving the Liability Matrix’, 20 March 2023.
[14] International Maritime Organization (IMO), ‘Convention on Limitation of Liability for Maritime Claims’, 19 November 1976, 1456 UNTS 221.
[15] Enare Erim, ‘Autonomous vessels: Resolving the Liability Matrix’, 20 March 2023.
[16] Enare Erim, ‘Autonomous vessels: Resolving the Liability Matrix’, 20 March 2023.
[17] The Shipowners’ Protection Limited, ‘Unmanned and Autonomous Vessels – the Legal Implications from a P&I Perspective’.
