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 autonomous shipping technology. 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 will navigate to these destinations without any further interaction being required.

IMO and MASS
In April 2018, the Legal Committee of the International Maritime Organisation began a work program for Maritime Autonomous Surface Ships with a target completion year of 2020. The aim of the IMO Legal Committee is to do a gap analysis of liability and compensation treaties and to scope the work required for MASS. This complements the work being done by the IMO Maritime Safety Committee on autonomous vessels. The committee has sought concrete proposals and comments on a plan of action.

MASS law requirements
The IMO Legal Committee work has been informed by a study of potential MASS legal requirements done by the Comite Maritime International, an international organisation comprising more than 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.

Developments in unmanned vessels
In November 2018 at the CMI Assembly meeting in London, retired High Court judge Sir Bernard Eder gave a presentation entitled Unmanned Vessels: Challenges Ahead. That presentation noted the following 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 building the Wansham Marine Test Field for testing of autonomous maritime technology, which is claimed to be the largest 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 developing an unmanned boat known as the Katana, an unmanned surface vehicle.
  • Rolls Royce in the UK revealing plans for an autonomous, single role, naval vessel with a range of 3500 miles.
  • Rolls Royce and Svitzer successfully demonstrating 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 autonomous shipping, particularly with regulation. The UN Convention on the Law of the Sea, 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 said 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. While the focus of legal reform inevitably must be on safety, Sir Bernard Eder said it should not be overlooked that legal liability conventions also may need to be considered. Due diligence is something 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.

International maritime lawyer Dr 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.

Dr Wiedenbach suggested that vicarious liability principles for independent contractors should be applied to operators of MASS; and that 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.

Maritime Safety Committee framework
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.
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, 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).

Are Australia’s laws 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.

While the definitions of “ships” and “vessels” in both federal and state legislation may be broad enough to encompass autonomous vessels, the more difficult question 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 partly manned or partly autonomous. There is still much work to be done by regulators.

LEVELS OF AUTONOMY
The Maritime Safety Committee has identified four degrees of autonomy. They are defined as follows:
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.

* Michelle Taylor is a partner at Colin Biggers & Paisley. Stuart Hetherington is a partner at Colin Biggers & Paisley

This article appeared in the May 2019 edition of DCN Magazine

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