Τρίτη 14 Απριλίου 2020

The Legal Challenges of Unmanned Ships in the Maritime Law: What Laws should change?


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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