Maritime law is in many ways a
traditional area of law, were traditions are not easily discarded. Even so,
maritime law has over the years proved itself flexible and able to adapt to new
phenomena. Recent technological developments indicate that the concept of
unmanned cargo vessels could be a reality in the near future. This paper aims
to tackle the following objectives.
Firstly, is the unmanned ship,
with no captain or crew on board, still a ship? Numerous conventions dealing with private or public
maritime law are applicable to seagoing vessels, and either apply their own
definitions or do not provide any definition.
National maritime laws give an
equally heterogeneous picture.
It may be concluded with a
considerable degree of certainty that having a crew on board, including a master, is not generally
regarded as an essential part of the notion of a ship in the regulatory
definitions of the ship.
The second part of this paper aims
to give an overview of the seaworthiness understanding.
To begin with, is the unmanned
ship, with no captain or crew on board, still a seaworthy ship? By way of
methodology, this research’s scope embraces the concept of seaworthiness under
the Carriage of Goods Conventions and our Spanish Maritime Navigation Act. A
particular focus is given
to the human element as a
significant aspect of seaworthiness. This part will come to the conclusion that
the current legal framework considers the ship’s crew as a prerequisite to
qualify a ship as seaworthy, but is still necessary a “ship’s crew” on board
the ship?
Finally, we will briefly look at
how the unmanned vessel will affect private maritime law, including
transportation of goods at sea, chartering of vessels and marine insurance.
Issues concerning liability will have to be considered and dealt with in a
number of areas, including the aforementioned concept of seaworthiness for the
carriage of goods by sea, the concept of duty of care with respect to
collisions, salvage operations, limitations of liability for maritime claims or
the particular provisions concerning the liability of the master.
Additionally, the IMO is now
putting the issue of autonomous ships on the agenda, so the work to review the
legal implications of the unmanned vessel on existing international maritime
law regulatory framework is underway. However, maritime law appears to be
relatively well armed for the introduction of unmanned (either remotely
operated or autonomous) merchant ships. Most existing public and private
maritime law (and law of the sea) can in principle still be applied.
A systematized study of the
unmanned ship’s incidence on legal issues (apart from operational ones) is
necessary, but it will mean that, as in extraordinary cases takes place, the
Law will be ahead of the technology.
1. Introduction
The technology steps are going
forward by leaps and bounds in recent decades in all sectors of the world
trade, and the maritime industry is no stranger to this progress. Electronic
transport documents, automated port terminals, electronic communications, the
advances in sensor technology, data analysis, the increasing complexity of
predictive algorithms and the wide bandwidth are changing the way maritime
transport works.
The impact of technological
changes on maritime operations – especially on transport - should be analysed
under the prism of current international Conventions and their foreseeable
accommodation. The use of autonomous or unmanned vessels in the not too distant
future seems inevitable. Autonomous vessels are generating increasing interest in
the shipping industry, both due to novelty and promising commercial benefits.
If the ship is the core element of
maritime navigation, its automatization (and the eventual disappearance of the
crew on board) may bring with it great consequences that require an adequate
and thoughtful response from maritime law. To the extent that the new
technology shall be commercially beneficial, its use will prevail and it will
be necessary to develop a new legal regime or modify the existing regulation.
Nowadays there are several
operational projects working in this field. Autonomous and unmanned vessels are
seen as a key element for a competitive and sustainable European shipping
industry in the future. The European Commission has recently financed the research
project MUNIN (1) (Maritime Unmanned Navigation through Intelligence in
Networks) in order to contribute to the realization of the vision of autonomous
and unmanned vessels by developing and verifying a concept for the autonomous
ship, evaluating its possible viability as an alternative sustainable to
traditional maritime transport. Furthermore, the Re-Volt project of the company
DNV GL - one of the largest classification societies for ships, which is in the
construction phase of an unmanned vessel - 60 meters
long - capable of operating at a
speed of 6 knots with a range of 100 nautical miles and a cargo capacity of 100
twenty feet containers and fully battery powered and autonomous, requires no
crew. With no crew, there is no need for crew facilities such as the vessel’s
superstructure. The resulting increase in loading capacity and low operating
and maintenance costs mean that, compared to a diesel - run ship, the ReVolt
could save up to USD 34 million during its estimated 30 - year lifetime – saving
more than a million USD annually.
Rolls - Royce has become the
latest company to enter the autonomous shipping arena, revealing plans for a 60
meters autonomous vessel that will perform missions including patrolling,
surveillance, mine detection, and fleet screening.
All these projects, still many of
them in the prototype phase (and only a few under construction), are already
beginning to be, however, a new reality.
The generic term “unmanned craft
(ship or vessel)” refers to the way in which it can be controlled: remotely or
autonomously (5). Some of today’s unmanned craft are remote controlled by a
shore - based operator. This operator is further assisted by the live streaming
of visual, audio and infrared images of the craft’s vicinity which is facilitated
by cameras and aural sensors fitted to the
craft’s structure.
These crafts are known as “remote
controlled unmanned crafts”. On the other hand, some unmanned crafts are pre -
programmed by
shore - side programmers and
thereafter use a combination of GPS positioning, sonar radars, equipped with
high - resolution cameras, radars, LIDAR sensors, advanced satellite
communication systems and computer software and control algorithms to perform a
predetermined nautical course without any human interaction whatsoever.
These are known as “autonomous
unmanned craft”. Some authors recognize six levels of autonomy this is a
simplification for analytical clarity:
1. Human on board;
2. Operated (seafarers are on board
to operate and control shipboard systems and functions, while some operations may
be automated);
3. Directed and Delegated (the ship
is controlled and operated from another location, but seafarers are on board);
4. Monitored (the ship is controlled
and operated from another location, so there are no seafarers on board); and
5. Fully autonomous (the operating
system of the ship is able to make decisions and determine actions by itself)
As will be seen, the distinction
between remote controlled operation and autonomous operation has a deep bearing
on the relevant unmanned ship’s ability to comply with the applicable
regulatory requirements.
Recently, the International
Maritime Organization (IMO) Legal Committee (administrative nature), 105th
session, held on 23 - 25 April 2018, agreed to include on its agenda a new work
programme item on maritime autonomous ships, with a target completion year of
2020. The aim is to carry out an analysis of existing liability and
compensation treaties and other instruments.
This will complement a scoping
exercise to be carried out by the Maritime Safety Committee
(MSC) on autonomous vessels. The
Committee noted information provided by the Committee Maritime International
(CMI) on the work of its International Working Group (IWG) on unmanned ships
(private nature), which has been set up to study the current international
legal framework and considered what amendments and/or adaptions and/or
clarifications may be required in relation to unmanned ships. The list of
instruments to be covered includes,
among others, those covering
safety (SOLAS); collision regulations (COLREG; training of seafarers (STCW);
search and rescue (SAR); MARPOL, SUA, or SALVAGE.
A systematized study of its
incidence on the legal issues (apart from in operational ones) is necessary,
and it will entail that the law will make an attempt to go ahead of the
technology, something rather infrequent and slightly risky.
As a first step, the scoping
exercise will identify current provisions in an agreed list of
instruments and assess how they
may or may not be applicable to ships with varying degrees of autonomy.
As a second step, an analysis will
be conducted to determine the most appropriate way of addressing unmanned
vessels operations, taking into account, the human element, technology and
operational factors.
The CMI Working Group on Unmanned
Ships circulated a questionnaire among the Member Associations of the CMI. The
questionnaire forms part of a regulatory scopic exercise undertaken by the
Working Group with the aim to identify the nature and extent of potential
obstacles in the current
international legal framework to the introduction of (wholly or partly) unmanned
ships.
Is the unmanned craft a “ship”
under the International conventions?
At first glance, the main
difference between a ship in a traditional sense and an unmanned vessel lies in
the lack of crew on board in the latter. Therefore, the study of this element -
the human presence on board - will be the key in order to determine if this is
an essential aspect in the classification of the maritime unmanned vehicle as
“ship”.
In the following paragraphs, we
will declare (without specific order) some of the most important maritime
Conventions and the impact of the unmanned vessels on its dispositions.
Ship’s definitions under international
maritime conventions
Most of the international
Conventions dedicate some of their articles to define the term “ship” or
“vessel”, in many cases with the purpose to set their material (as well as
possibly their geographic) scope of application. The definitions differ
depending the nature of the Convention, whether in the field of public or
private maritime law. The scope of the definitions depends on the purpose of
the legal instrument studied and, therefore, will vary, as we will see, with respect
to the material scope of each Convention.
It is important to mention the
notorious fact that the United Nations Convention on the Law of the Sea 1982
(hereinafter UNCLOS) - the most important maritime Convention - does not define
the term “ship” or “vessel”, despite the numerous references throughout of its
provisions (more than 250).
The UNCLOS text - in English
version - uses both expressions interchangeably throughout the text (to the
contrary, Spanish language versions use only one word -buque). However, as far
as concerns UNCLOS, there is no difference between.
The ship has traditionally been
endowed, unlike other movable assets, with rights and obligations (under the
well known the personification doctrine). One of these rights is the freedom of
navigation (art. 87 UNCLOS) or the right of innocent passage of the ships of
all States, whether coastal or land - locked, enjoy the right of innocent
passage, through the territorial sea (art. 17 UNCLOS and art. 37 Spanish MNA).
Nothing prevents both rights (with their consequent obligations) from being
attributed to unmanned vessels, in the same way as the manned ships are treated
today.
This lack of a definition has to
be considered along with the fact that very important institutions or instruments,
such as those that regulate the nationality of ships, their legal status or
their flag, are systematically rooted in the provisions of the UNCLOS (17).
After an analysis, which does not
intend to be exhaustive, of the ship’s definitions admitted by international
Conventions, we have not identified, neither in those related to maritime
public law.
In this regard, the art. 91
establishes that every State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory, and for
the right to fly its flag. In other words, the domestic rules of the flag’s
State are essential for the used definitions.
There must exist a genuine link
between the State and the ship.
As a curiosity, UNCLOS does define
what will be considered “pirate ship”.
The term “vessel” appears
frequently in the International Regulations for Preventing Collisions at Sea
hereinafter COLREGS. In fact, the regulations only apply to “vessels” as stated
in the definitions of the regulations. COLREG’s
Rule 1 stablishes that “these
Rules shall apply to all vessels upon the high seas and in all waters connected
therewith navigable by seagoing vessels”. “Vessels” are defined in Rule 3(a) of
the COLREGS, which states the word “vessel” includes every description of water
craft, including non - displacement craft (…) used or capable of being used as
a means of transportation on water. And Rule 5 compels every vessel shall
maintain at all times a proper look - out by sight and hearing as well as by
all available means appropriate in the prevailing circumstances and conditions
so as to make a full appraisal of the situation and of the risk of collision.
This is one of the main obstacles that with greater insistence are being
enunciated among the commentators on the legal implications of autonomous or
unmanned vessels: the necessary human presence on board for its effective
enforcement. Impediment, however, that could be solved by modern technical and
audio - visual methods that can provide even more certainty - visual and
auditory - in surveillance process than the human handling on board. In any
case, whether this was still not possible, a modification of COLREG Rules could
allow the unmanned vessels to operate legally.
The International Convention for
the Prevention of Pollution from Ships 1978 (hereinafter MARPOL) definition is
quite similar, locating the ship in the center of its scope of application
(art. 3). This Convention defines
a “ship” as “a vessel of any type whatsoever operating in the marine
environment and includes hydrofoil boats, air - cushion vehicles, submersibles,
floating craft and fixed or floating platforms” (art. 2.4).
Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other
Matter 1972. In a joint definition
of vessels and aircraft, the Convention qualifies them as “waterborne or
airborne craft of any type whatsoever. This expression includes air cushioned
craft and floating craft, whether self - propelled or not” (art. 2.2).
United Nations Convention on
Conditions for Registration of Ships, 1986.
For the purpose of this
Convention, ship is defined as “any self - propelled sea - going vessel used in
international seaborne trade for the transport of goods, passengers, or both
with the exception of vessels of less than 500 gross registered tons”. In other
words, the Convention restricts from its scope of application, vessels of more
than 500 gross registered tons, not engaged in transport operations, or even
with such purpose, these do not have an international nature.
The Nairobi International
Convention on the Removal of Wrecks, 2007, lists many types of vessels that
would be included within the definition: “Ship means a seagoing vessel of any
type whatsoever and includes hydrofoil boats, air - cushion vehicles,
submersibles, floating craft and floating platforms, except when such platforms
are on location engaged in the exploration, exploitation or production of
seabed mineral resources” (art. 1.2).
International Convention relating
to intervention on the high seas in cases of oil pollution casualties, 1969,
art. 2.2: “Ship” means: (a) any sea - going vessel of any type whatsoever,
and (b) any floating craft, with
the exception of an installation or device engaged in the exploration and exploitation
of the resources of the sea - bed and the ocean floor and the subsoil thereof”.
Convention for the suppression of
unlawful acts of
violence against the safety of maritime navigation, 2005. The text expresses a
very brief definition, and probably, as a consequence,
the widest among the mentioned.
For the purposes of this Convention, art. 1 defines “ship” as a vessel of any
type whatsoever (not permanently attached to the sea - bed), including
dynamically supported craft, submersibles, or any other floating craft. More
relevant shall be the implications of arts.
There are also numerous private
maritime law international Conventions related to, or simply focused on the
vessel that do not provide any definition
International Convention on Civil
Liability for Bunker Oil Pollution Damage, 2001.
For the purposes of this
Convention, and in a very wider formulation, “ship” means any seagoing vessel
and seaborne craft, of any type whatsoever.
Convention for the Unification of
Certain Rules of Law respecting Assistance and Salvage at Sea, 1910 and
International Convention on Salvage, 1989.
Although the first one does not
define the “ship”, nothing would prevent the application of these rules to a
salvage operation in which the salvor or the assisted vessel are unmanned. The
1989 Conventions, in force in Spain, does contain an “ambiguous” definition:
Vessel means any ship or craft, or any structure capable of navigation (art.
1.b). In other words, vehicle “capable of navigation” (nothing mentions in the
definition of its propulsion mechanisms, government, capacity or its purpose).
International Convention on Civil
Liability for Oil Pollution Damage, 1969, in force in Spain with the 1992
Protocol. This Convention offers us the most complete definition of those
previously enunciated. Due to the sensitivity of the topic, it seems
understandable that the
Legislator wants to attract in
this international instrument to the greatest number of maritime “vehicles” on
which to apply these rules in case of civil liability for oil pollution
damages.
Art. 1.1 defines the “ship” as
“any sea - going vessel and seaborne craft of any type whatsoever constructed
or adapted for the carriage of oil in bulk as cargo, provided that a ship
capable of carrying oil and other cargoes shall be regarded as a ship only when
it is actually carrying oil in bulk as cargo and during any voyage following
such carriage unless it is proved that it has no residues of such carriage of
oil in bulk aboard”.
Due to all the above, nothing
would alter the status quo of these maritime institutions in case of unmanned
vessels, provided that they fulfil the technical conditions required for the
definitions transcribed. However, as we will see further, the absence of crew
on board may seriously affect some of the contracts that these Conventions
regulate (see, as an example, the seaworthiness obligation of the ship in the
transport Conventions).
Convention for the Unification of
Certain Rules of Law with respect to Collisions between Vessels, 1910.
This Convention does not contain a
definition of the term “ship”, but some of their provisions may have an impact
on its application. Where a collision occurs between sea - going vessels or
between sea - going vessels and vessels of inland navigation (scope of application),
the compensation due for damages caused to the vessels, or to any things or
persons on board thereof, shall be settled in accordance with the following
provisions, in whatever waters the collision takes place (art. 1). After a
collision, the master of each of the vessels in collision is bound (it shall be
necessary to study how to transfer this master’s obligation in the case of
unmanned vessels, although a breach of the above provision does not of itself
impose any liability on the owner of a vessel), so far as he can do so without
serious danger to his vessel, her crew and her passengers, to render assistance
to the other vessel, her crew and her passengers (art. 8).
Based on those definitions, the
ship’s requirements are the followings:
(a) capacity to sail on the sea
(regardless of its effective navigation);
(b) capability to transport
passengers or goods (regardless of their actual carriage);
(c) full deck and
(d) a length equal to or greater
than twenty - four meters.
Nothing in this definition or in
the vessel’s one (art. 57), suggests that an unmanned vessel, fulfilling with
technical requirements, should be excluded from the legal notion of vessel and,
therefore, deprived of the aforementioned legal nature.
A brief comparative analysis of
some foreign Maritime Navigation Acts offers an heterogeneous picture. In the
United States (and with similar purpose the Italian Codice della Navigazione -
art. 136 (35)), the core factor in order to define the term, unlike what we
said for the Spanish regulation, is the use of the ship, or the ship’s
capability of being used, as a means of transportation of goods/passengers
If the craft (and therefore as
well the unmanned vessel) does not meet the requirements (c) or (d), and
provided that it is not legally qualified as a minor unit according to its
characteristics of propulsion or use, we will be before a vessel (art. 57).
Nothing prevents a vessel from being equally autonomous or unmanned. If the
craft does not comply with the necessary capacity to navigate (requirement
(a)), and regardless of its length or deck, we will be facing a naval artefact,
which despite being a floating construction with capacity and structure to
house people or goods, the specific purpose hereof is not navigation, but
rather to remain in a fixed place on the waters. Similar status shall also be
given to a “craft” that has lost its condition as such due to having been
moored, beached or anchored at a fixed place and assigned, permanently, to
activities other than navigation (art. 58).
“Per nave s’ intende qualsiasi
costruzioni destinata al trasporto per acqua, anche a scopo di rimorchio, di
pesca, di diporto, o ad altro scopo”. The aforementioned definition does not
entail any limitation related to the manner in which the ship is manned.
Therefore, any ship capable of navigating, regardless of its particular use,
shall be considered a ship in accordance with Italian legislation, even if it
is controlled remotely without human supervision.
Similar purpose the Norwegian
Maritime Code (37)) stipulates that within the term “ship” every description of
vehicle used in navigation (Section 313 (1)) (38). In a narrow approach, Greek
(39) and Russian (40) legislation define the vessel on the basis of capacity of
the craft and the self - propulsion criteria, while in a broader approach, German
legislation recognizes as a ship any floating construction (41).
Summary
From the above brief exploration
and legislative analysis, it may be concluded, with a considerable degree of
certainty, that having a crew (or human presence) onboard or not, is not
necessarily regarded as an essential part of the definition of a ship (42); and
therefore, the unmanned or autonomous vehicles fall Court has defined the meaning
of “vessel”, underlining that “not every floating structure is a `vessel’....
(a) structure does not fall within
the scope of the statutory phrase unless a reasonable observer, looking to the
(thing’s) physical characteristics - and activities, would consider it designed
to a practical degree for carrying people or things over water”.
The criterion that any craft is
considered to be a ship if it is used “for navigation” has been analyzed for
the Courts. However, there is not clear reasons why an unmanned ship does not
conform to the Merchant Shipping Act definition of “ship” simply because it is
unmanned.
Within the scope of application of
most national and international legislations - both public and private nature -
analyzed in the same way as conventional manned vessels (43). Accordingly, the
future existence of unmanned ships should not be an impediment to its legal
recognition by the existing Conventions, which will be applicable, in
principle, regardless of the type of ship (unmanned or even autonomous) and
will continue to be functional in respect of these craft.
In our opinion, any of the so -
called “autonomous or non - manned vessels” that meet the characteristics
required by the domestic legislation will be able to be qualified as a ship/vessel
(independently of being remotely controlled or autonomously). However, it would
be desirable if, once the unmanned ships begin operating in the market,
specific regulations were promulgated in order to affirm the necessary legal
certainty regarding this issue.
Seaworthiness in unmanned cargo
ships and its legal implications
The obligations of the carrier -
regardless of the mode of transportation of the cargo - may be summarized in
the following: carriage of goods from origin to destination - by sea, air, road
or rail - and their custody. The Hague – Visby Rules (as other rules on the
contract of maritime carriage) break down these two generic obligations into
specific ones: the carrier shall properly and carefully load, handle, stow,
carry, keep, care for, and discharge the goods carried (art.3.2).
These subcategories are not
independent or autonomous in themselves, but are embedded in the generic
carriage obligation, despite which the Convention addresses these duties
individually in light of their practical importance (44).
As a general observation, it is
common ground that seaworthiness is the ability of a ship to sail on the sea,
and more specifically the sufficiency of the ship to face the perils of the sea
and other incidental risks to which of necessity she must be exposed in the
course of a voyage.
In other words, the carrier shall
ensure that the ship is in an adequate seaworthy state to receive the cargo on
board and to transport it safely to its destination, taking into account the
foreseeable circumstances of the voyage planned, its phases and the nature of
the cargo contracted. However, the term seaworthiness does not include only the
physical state of the ship but also encompasses other factors. Art. 3.2 HVR
states that “the carrier shall be bound (before and at the beginning of the
voyage (45)) to exercise due diligence, additionally to make the ship
seaworthy, to properly man, equip and supply the ship”.
The seaworthiness of the ship is,
from an international perspective on the contract of carriage of goods by sea,
the main obligation of the carrier before and at the beginning of the voyage.
Its study in a paper on autonomous or unmanned ships, as we will see, is
embodied of capital importance, given that the absence of crew on board has a
considerable impact on the specific obligation to “properly man and equip” the
ship, as a subcategory within the generic obligation of seaworthiness.
So much so, that it will be argued
by many authors that an unmanned ship is a non - equipped craft, which may
imply its unseaworthiness, giving rise to contractual breaches at the beginning
of the contract.
This obligation of the carrier is
defined in the HVR as follows: “The carrier shall be bound before and at the
beginning of the voyage to exercise due diligence to:
(a) Make the ship seaworthy (in
other words, seaworthiness falls on the structural capacity of the ship);
(b) Properly man (or crew (47)),
equip and supply the ship;
(c) Make the holds, refrigerating
and cool chambers, and all other parts of the ship in which goods are carried,
fit and safe for their reception, carriage and preservation”.
This non - delegable - inherent -
obligation for the carrier, unlike those listed in art. 3 HVR, is not
formulated - unlike the common law duty - in terms of result or absolute
warranty (strict liability), but in a more favourable way for the carrier, as
an obligation of due diligence (only) in respect of both these aspects.
This is, therefore, a preparatory
activity, that the carrier is required to perform before the commencement of
loading.
The obligations enunciated as (a)
and (b) have traditionally been incardinated under the term of seaworthiness,
while (c) in the cargoworthiness.
Carriers always comply when they
exercise reasonable or due diligence monitoring, before and at the beginning of
the voyage, the nautical conditions of the ship.
Based on the fact that the human
element is one the main differences between a traditional vessel and an
unmanned/autonomous ship, it seems essential to focus on the carrier’s
obligation regarding the ship’s equipment. Its obligation is not only limited
to equipping the ship in a sufficient number of crew members, but it also has
the duty to guarantee the professional competence of the crew.
In order to delve into the key
element of this study, it is important to focus on the second aspect of the
seaworthiness, namely the ship’s crew onboard the ship.
In accordance with the HVR, the
ship must be “properly manned” (or equipped), which means that the manning will
be an essential element for navigation.
However, two elements must be
distinguished:
-
Firstly,
the reference to the numerical sufficiency of the crew (in order to achieve
this, the carrier has the duty to employ an adequate number of crew members for
a proper navigation);
-
secondly,
is related to the professional competence of the crew members and the master of
the ship on board (in other words, the crew has to be sufficiently trained and
prepared to manage the ship during the maritime voyage).
Therefore, “due diligence” cannot
be considered if the crew is not adequate enough for that particular ship and
voyage, or because it is not competent in terms of training and experience
However, and despite the aforementioned, it is important to emphasize that the
manned obligation is extended in time and not only limited before and at the
beginning of the voyage due to the continuing obligation of custody of the
cargo (art. 3.2 RHV).
The consequence of crew
If a carrier exercises due
diligence prior to the voyage to make the vessel seaworthy and to properly man,
equip, and supply it, then the carrier will not be liable for loss or damage to
cargo resulting from: errors of navigation or management of the vessel; perils
of the sea; acts of God; acts of public enemies; inherent defects, qualities,
or vices of the cargo; insufficient packaging; seizure under process of law;
loss resulting from any act or omission of the shipper or owner of the cargo;
or the saving or attempt to save life or property at sea, or from any subsequent
delays encountered in rendering such service.
In other words, it is the crew
(in)competence, rather than their number on board, the determinant element on
the unseaworthiness of the ship (51).
Focusing on unmanned ships, and adopting
the previous arguments, if the shore - based controller is competent and
trained to operate the vessel and her equipment competently and safely (holding
valid certificates in accordance with the requirements of the law of the flag
state), that fact will not constitute a breach of the seaworthiness obligation
even if there is not human presence on board.
It could be argued that in
conventional manned shipping the master and the crew are onboard the vessel
while in the autonomous shipping context the shore personnel have to be
considered as a master and crew. Accordingly, the sufficiency and competency
have to be judged - under an analogous legal reasoning – in respect to the
shore personnel (52).
Rotterdam Rules, similar to HVR,
include among the specific obligations applicable to the voyage by sea the
seaworthiness of the ship (art. 14):
The carrier is bound to exercise
due diligence to:
(a) Make and keep the ship
seaworthy;
(b) Properly crew, equip and
supply the ship and keep the ship so crewed, equipped
Incompetence or inefficiency is a
question of fact. Each case needs to be examined on its own merits and
sometimes it is difficult to draw the line between crew negligence and incompetence.
There is extensive case law on this topic with the leading case being The
Eurasian gave valuable guidance as to what may constitute incompetence. In this
brief article, however, a summary only of the forms or different types of
incompetence as derived from the existing case law can be given.
Charterparty clauses regulate this aspect of the
voyage. See cl. 2 Shelltime 4: “At the date of delivery of the vessel under
this charter and throughout the charter period:
(i)
she
shall have a full and efficient complement of master, officers and crew for a vessel
of her tonnage, who shall in any event be not less than the number required by
the laws of the flag state and who shall be trained to operate the vessel and
her equipment competently and safely;
(ii)
(ii)
all shipboard personnel shall hold valid certificates of competence in
accordance with the requirements of the law of the flag state”.
However, this obligation is
extended not only “before, at the beginning of the voyage”, but as well during
the voyage by sea until destination.
From this brief analysis, it can
be inferred that there is no doubt that a sea carrier will be vicariously
liable for causes arising from errors of the ship’s shore - based operator -
acting as agents or servants of the. However, regarding the well - known
exoneration of liability of the carrier due to an act, neglect, or default of
the master, mariner, pilot, or the servants of the carrier in the navigation or
in the management of the ship (art 4.2.a - nautical fault) we have some doubts
whether this will remain being effective or not: on one hand, since this not
only applies to the master, but also to each crew member - who collaborates
with the carrier in the navigation or in the management of the ship - it can be
concluded, that the shore operator of the unmanned ship is one of them
(exoneration cause that has disappeared in the RR and HR); however, due to the
fact that the nautical fault is based on the remoteness of the vessel and its
crew, if this “requirement” is, under unmanned ships, broken, then the nautical
fault will be inapplicable.
The legal challenges of unmanned
ships in the maritime contracting
The sea navigation of un(manned)
ships does not mean that the liability - contractual or extracontractual -
ceases to exist (un (liability)). The fact that no one firmly holds the wheel,
does not imply that the legal consequences, in terms of liability disappear
because of the fact that there is a shore - based operator of the ship in a
monitoring room holding a joystick and using a desktop computer.
It is therefore necessary, even
more than in the field of public law, to consider the legal consequences that
the commercial operations of the unmanned vessels may cause, and more
specifically, in the field of maritime contracting institutions.
Regarding the use of charterparties,
we do not appreciate any relevant impediments to following operating and
playing their role in the maritime traffic of goods under contracts of carriage
in case of unmanned ships voyages.
However, those contracts shall
must modify the wording of some of its current clauses, in particular those
relating to the distribution of competences, costs and responsibility between
the carrier and the charterer on the recruitment, functions and replacement of
the master and the other members of the crew.
Under the bareboat or demise
charter, the shore - based controller of the ship will be hired by the
charterer (as is currently the case with the master or the crew members); while
under a time charter the shipowner is the one who will make available to the
charterer the shore - controller of the unmanned vessel and the charterer will be
able to continue giving instructions to the operator on some aspects of the voyage.
In a very close situation, in the voyage charters, the shore - based operator will
be supplied by the owner of the ship.
The impact of unmanned vessels in
the contract of carriage of goods does not also seem to substantially alter the
current legal regime. One of the elements that, doubtless, shall be no longer
used with the arrival of the unmanned vessel will be the paper bill of lading.
Nowadays, the bill of lading (which includes the description of the goods taken
on board) shall be signed - after receiving the goods into his charge - by the
carrier or by the carrier’s agent who is acting on its behalf with sufficient
powers or by the master (on behalf of the carrier mentioned in the bill (54)),
on demand of the shipper, issue to the shipper a bill of lading (art. 3.3 HVR
and art. 249 Spanish MNA). In the Rotterdam Rules the master is pushed more
into the background and his/her possible intervention in the issue of a
transport document (the term “bill of lading” as a transport document despair
as well) is no longer even mentioned.
One of the consequences the fact
that the master disappears from the scene in the event of unmanned ships is the
increase in the use, if not exclusively, of electronic forms. There also is the
possibility that the agents of the carrier, acting on behalf of the carrier
(place here the shore - based controller) may benefit from the same exonerations
and limitations of liability as the International Conventions provide for the
carrier (art. 4bis HVR, art. 10.2 HR and art. 4 RR or, contractually, by using
a Himalaya clause). However, if the unmanned vessel is controlled or supervised
by a third - party provider of nautical services other than an agent or servant
of the carrier, several legal difficulties could arise.
To sum up, the introduction of
unmanned vessels does not seem to have a significant impact on International
Conventions on the liability of the carrier.
Although the rules on liability
should be modified in order to adequate the operation of unmanned vessels, this
issue will not be the most urgent nor the most complex.
LIMITATION OF LIABILITY
The limitation of the liability of
shipowners is governed by the LLMC Convention of 1976. The formulation of which
appears to be likewise neutral in respect of the presence or otherwise of a
master or a crew on board (56). If a claim subject to limitation is made
against any person for whose act, neglect or default the shipowner is
responsible, such person shall be entitled (e.g. shore – based vessel
controller) to avail himself of the limitation of liability provided for in
this Convention. However, the LLMC Convention may not govern employment -
related claims by a controller who
is a servant of the shipowner (art. 1.4 LLMC).
In other words, if a claim subject
to limitation is made against a controller of an unmanned vessel, whose acts,
omissions or negligence the shipowner is responsible, they may invoke the right
of limitation of liability in same terms that they do nowadays under a
traditional or manned vessel. However, the rules of this Convention shall not
apply to claims by servants of the shipowner whose duties are connected with
the ship, including claims of their employees or other persons entitled to make
such claim (art. 3.e). The existing Law has solutions to attribute liability in
case the vessel that causes damages to third parties is unmanned.
COLLISION
The 1910 Convention for the
Unification of Certain Rules of Law with respect to collisions between vessels
governs the liability for collisions on the basis of the errors of ships (arts.
3 and 4), and not the errors of the master and the other crew members (even
though these are of course the cause of the collision).
Although the use of unmanned
vessels may reduce the human errors as a cause of ship’s collision, it is
inevitable that this kind of accidents shall continue to occur in the near
future. The rules on liability caused to third parties by maritime collision
(diff. COLREG on rules over prevention of collisions) do not seem to be
affected by the arrival of the unmanned vehicles.
Despite the Convention does not
contain a definition of ships, there are certain rules that may have an impact
on its application.
Where a collision occurs between
sea - going vessels or between sea - going vessels and vessels of inland navigation,
the compensation due for damages caused to the vessels, or to any things or
persons on board thereof, shall be settled in accordance with the provisions of
the Convention (art. 1).
Moreover, if the collision is
caused by the fault of one of the vessels, liability attaches to the one (the
ship, not the person managing the craft) which has committed the fault (58).
This consideration would allow affirming that the navigation of an unmanned
vessel would not alter the legal regime of responsibility applicable to the
rest of ships, that would continue Under the LLMC Convention of 1957, the
persons to whom this provision applies were, in addition to the master and crew
(those references have now disappeared):
(a) servants of the owner not on
board the ship whose duties are connected with the ship. The reference to the
servants not on board the ships (nowadays shore - based vessel operators)
differs from that in art. 1
(b) LLMC 1957 Convention where in reference
is made to servants for whose act, neglect or default the owner is responsible
provided such act, neglect or default being, however, limited to those that
occur in the navigation or management of the ship.
Being based on the fault regime;
since the subject responsible for the collision is the “ship” itself (at no
time is mentioned in these precepts to the master or any other member of the
crew. Under the common law personification doctrine, the vessel is a legal
entity distinct from its owner (and this “legal fiction” remains essential
where a single tort or breach of contract often entitles a claimant to both an
in personam claim against the responsible party and an in rem claim against the
vessel itself).
If we transfer these assumptions
to the use of an unmanned vessel and its collision was caused by a shore -
based operator, nothing shall change with respect to the current liability
system based on proved fault. Should the collision be caused by the error of a
shore - based controller nothing will change regarding liability. Shipowners
will be held liable for the acts caused by fault of a shore -based operator of
an unmanned vessel. Collision law also appears to be able to stand up well
against the arrival of unmanned ships.
However, certain provisions would
lose relevance, especially those aimed at regulating liability to third parties
for damages caused by death or personal injuries on board (art. 4) or the
master’s duty, after a collision, to render assistance to the other vessel, her
crew and her passengers (art. 8 (61)). Given that the fact that the unmanned
vessels will sail without crew on board (excepts in case of passenger’s ships,
which will foreseeably have auxiliary crew), this provision will be disused.
A very typical example subject of
study will be a collision of a ship - navigating autonomously - and the
malfunction is the sole cause of collision damage. In Spain, a Court would
focus on the facts leading to the malfunction. The only reference to the master
in the Convention refers to the cases of render assistance by this to the other
vessel, her crew and her passengers so far as he can do so without serious
danger to his vessel, her crew and her passengers (art. 8).
POLLUTION
The rules of the Conventions
relating to pollution damage (CLC and Fund Conventions (65)) appear to remain
entirely unaffected. The use of unmanned vessels nothing is going to change
with respect to the strict (but limited) liability and insurance duty incumbent
on the owner of an oil tanker.
Claims for compensation for
pollution damage will be channeled against the shipowner and no claim against
the shore - based controller of the vessel may be made (expressly excluded from
the Convention), either because he is a servant of the shipowner, or because he
must be regarded as “ (an) other person who, without being a member of the
crew, performs services for the ship” (CLC 1992 art III.4 (a) (b)).
In none of the two categories, the
controller of an unmanned vessel that provides its services could be
incardinated.
Along with the technology that
makes the ship autonomous, the next generation of new ships will be powered by
electric energy (as an alternative mean to oil (68)). For that reason, their
transport will be being more and more residual, International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution
Damage, 1992 and the Protocol of 2003 to the International Convention.
The 1992 Convention governs the liability
of shipowners for oil pollution damage by laying down the principle of strict
liability for shipowners and creating a system of compulsory liability
insurance. The shipowner is normally entitled to limit his liability to an
amount which is linked to the tonnage of his ship.
Additionally, from the first
moment the liable party is identified, that is, who will have to proceed to the
compensation of the damages caused: the registered shipowner of the ship at the
time of the event (or, in the absence of registration, the person or persons
owning the ship).
Identification that has the aim to
facilitate to the injured parties to exercise the corresponding claims against
an owner that can be easily located.
Nor the Fund Convention 1992
neither its Protocol of 2003, the Bunkers Convention 2001 or HNS do not appear
to be likewise unaffected. Moreover, the observations regarding CLC 1992 appear
to be applicable in respect of the HNS Convention (See art 7.5(a)(b)).
Although the Bunkers Convention
does not adopt the channeling approach also appears to be capable of surviving
unscathed in the era of unmanned merchant ships. Data from maritime industry
shows that just 15 of the world’s biggest ships may now emit as much pollution
as all the world’s 760m cars. Low - grade ship bunker fuel (or fuel oil) has up
to 2,000 times the sulphur content of diesel fuel used in US and European
automobiles and, consequently, the danger of maritime pollution.
Therefore, the Rules on pollution
by oil will lose relevance in the international scene.
SALVAGE
Salvage operation means any act or
activity undertaken to assist a vessel or any other property in danger. As it
may be assumed, due to the risks of the sea, that unmanned ships will come into
danger, although the technology will progress in maritime safety, the salvage
rules will also continue to be useful (69).
Likewise, the unmanned ships will
be able to carry out salvage operations regarding other vessels, both unmanned
or manned, as long as the technology permits.
However, certain institutions of
the salvage operations will lose their relevance (or will become purely
academic), especially
(a) those related to the master’s authority
to conclude or sign contracts salvage agreements on behalf of the owners of the
vessel and the cargo interests (art. 6.2);
(b) all those duties to render assistance
to any person in distress at sea (also, art 98 Montego Bay Convention)- so far
as he can do so without serious danger to his vessel and persons
thereon - (art. 10.1 SALVAGE);
(c) those related with the right
of the master and crew to a share of the salvage fee also lose their relevance
(art 15.2 SALVAGE) (70);
(d) those rules on salvage of
persons on board on the occasion of the accident
(art. 16 SALVAGE) (71); or,
(e) to work with the salvor to
prevent or limit environmental damage (although this latter obligation continues
to rest on the owner of the ship) (art. 8.2 SALVAGE).
Although it is quite conceivable
that the shore - based vessel operator might be given the authority to conclude
a salvage contract, and it is evident that he must cooperate with the
salvage operation, some authors
have put on doubt if receiving a share in the salvage fee seems excessive.
GENERAL AVERAGE
There is a general average act
when any extraordinary sacrifice or expenditure is intentionally and reasonably
made or incurred for the common safety for the purpose of preserving from peril
the property involved in a common maritime adventure (safety of the ship, its
crew, passengers and cargo).
In other words, general average
presupposes a voluntary sacrifice or expense. Those sacrifices and expenditures
shall be borne by the holders of the interests at risk at the moment of the
failure, in proportion and within the limit of value salvaged of each one of
these.
There is not any element in the
YORK - ANTWERP RULES 2016 that allows us to affirm that a decision of the
master on board is necessary to carry out this act, so it could be considered
the valid intervention of a shore - based controller who made this decision.
The expenses of
(a) entering in a port or place of
refuge, in consequence of accident, sacrifice or other extraordinary
circumstances which render that necessary for the common safety;
(b) wages and maintenance of
master, officers and crew reasonably incurred during the prolongation of the
voyage occasioned by a ship entering a port or place of refuge;
(c) detention costs for repairs to
ship’s damages; or
(d) cargo or ship’s materials
necessarily used for the common safety (although whether cargo could be
remotely jettisoned is another question; perhaps in the future this could
become technically possible for containers carried on deck) at a time of peril,
shall be allowed as general average.
Additionally, all of them, between
others, will be perfectly subsumable actions in general average under unmanned
vessels. In absence of persons on board, there will be no reason to maintain
the rules concerning the crew in the case of an extension of the voyage
occasioned by a ship entering a port of refuge or similar (Rule XI).
Conclusion
How unmanned navigation will be
integrated into ships of the future and in the maritime industry (and
specifically on the management of the crew) is an open question.
Maritime law, characterized by the
notes of traditionalism or immobility, should move dynamically in this sense.
So, what are the advantages and disadvantages of unmanned cargo ships?
Advantages:
- the absence of crew on board
will considerably reduce the risks of “traditional” piracy (while, however, the
“computer” piracy can be extended);
- the use of unmanned vehicles
would decrease the human error risk
and the resulting associated
accidents, which, according to widely accepted estimates, represents
approximately 80% of all fatalities that occur on a ship during sea navigation
(there are about 900 fatalities per year occurring in shipping);
- the development of this
technology will give rise to new business activities and new labour challenges
(shore - based controllers, engineers, programmers, etc.);
- significant reduction of total
operating expenses, especially in seafarer’s costs (accounting for 44% of total
operating cost for a large container ship) and important increase on safety on
board (representing a significant part of the shipowner’s as well current
costs);
- offsetting the expected shortage
of seafarers in the future (there is an expected shortfall of approximately
21,700 officers this year);
- reduction of collisions (due to
the technological improvements that presumably will reduce this type of
accidents);
- reduction of salvage operations
(at least as far as the human factor is concerned);
- reduction of pollution (given
the foreseeable implementation in this type of renewable energy vessels) and
reduction of fuel costs, by the reduction of emissions to the atmosphere from
the burning of fuels for navigation and by the pollution caused by spills of
transported hydrocarbons to the sea.
Dis-Advantages:
However, like everything that
involves innovation, the benefits have certain risks (or disadvantages) that
must be borne, among which are the following:
- the lack of reaction and
experience - given that there will be no human presence on the ship - with the
same intuitive feeling in each of the possible situations and unknown safety
risks that occur during navigation as if it were on board the ship, relying
solely on the technological measures installed in the vessel. Current machines
are unable to replicate the human element of professional seafarers;
- vulnerability to computer
hackers hijacking control of the ship. The computer systems or the software
could break down resulting in loss of ships and/or casualties during
navigation. The computer malfunction can take place resulting in the loss of
control in the vessel;
- as a parallel to the creation of
new business models and labour relations, there will be a reduction of seafarer
jobs (officers, sailors, masters, etc.). It does not seem, however, that the
development of the autonomous vessel has a real impact, as the current projects
are not configured for the fishing activities. This type of maritime activities
will still need, at the moment, the presence of crew on board to carry out
these tasks;
- this new navigation paradigm
will mean the recognition of new risks in maritime navigation and the
disappearance of others. Irrigations that must be covered by contracting
insurance policies, which will increase the costs of the premiums. Among the
former, one might think, in the case of loss of communication between the
controller on the ground and the ship and the consequent assistance that must
be provided, even by moving personnel on board the ship;
Risks of hacking or even the loss
of the ship.
In its literalness, the
aforementioned ship’s definitions do admit - in its own terms - the unmanned or
the autonomous vessels. All in all, we must make a few differences. In most of
International Conventions of private maritime law, the fact that the ship has
or does not have a crew onboard does not acquire material relevance in the
legal regime they rule, because the material scope that regulates and its operation
is not determined in any way by this fact (e.g. limitation of liability, liens
and mortgage, etc.). In other cases, and especially, but not
only, in public maritime law
Treaties, although the notion of ship does not include any requirement regarding
its endowment, it is formulated, however, by counting on it in general terms.
In these cases, the concept of ship is the basis of the material scope of a
multitude of rules that are dictated to trace the legal status of the ship, and
more broadly the navigation made with it, and these rules are the that in many
cases they count on the manned character of the ship, in consonance with the
reality that they contemplate in its genesis.
In short, although the currents
legal definitions of ships apparently “work” for this new reality, the truth is
that the system does not, and must be changed from its base. The “vehicle”
element remains essentially linked to the human presence onboard in navigation
in almost all aspects of which we can frame the administrative “regulatory
compliance” (safety, operation, work on board, discipline, registration,
control and organization of navigation, stay in port ...), and the pair of
forces that currently exist between the two, and the relationship in which it
results in the logic of the rules, is the one that has to be inevitably
altered.
Before the unmanned vessels fully
enter into commercial operations, especially for the carriage of goods, there
are important legal obstacles that must be overcome. The lack of a crew on board
can make this type of ships, according to existing - national and international
- legislation, not suitable for sea navigation.
The traditional concept of
seaworthiness (both under common law or under international conventions) was
developed to cover the needs of conventional manned transportation and,
therefore, the human element is evident in all corners of the current
regulatory framework.
Consequently, the unmanned -
navigation concept is not automatically adaptable to the current legal framework
of seaworthiness. Although we have not found relevant impediments and those
that might exist - under an analogous legal reasoning - can be softened, it
will be prudent to clarify the liability of the shipowner/carrier regarding the
damages, losses or delay that the goods may suffer as a consequence of the
unmanned navigation and its effects on the seaworthiness (we have already
indicated that this is not conceived as a guarantee of compliance, but a due
diligence obligations). It seems foreseeable, however, that the greatest
problems shall be referred on rules on safety (which has not been analyzed in
this work) and those relating to the crew, since the current legislation was
drafted - from the very beginning - under the premise that ships sail manned
(and governed by a master).
Along with the aforementioned
problems, undoubtedly many others will arise as the ongoing projects are
developed. However, what seems indisputable is the commercial benefits that the
development of the autonomous vessel can bring. The international maritime
regime has proven - in the recent years - to be flexible in order to adapt to
the technological advances (the electronic communications or the container,
among others). What seems clear is that maritime law is facing a phenomenon
that has no turning back.
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