As a young practitioner, I have always been fascinated about the developments of the law and its practice within various industries. However, of recent I have been particularly intrigued by the technological development in the maritime industry and how the law within this industry can be developed to accommodate the inevitable technological takeover.
From ships that are designed to produce less carbon emissions, to autonomous and unmanned vessels, indeed technology has infiltrated the industry far beyond what one can imagine. Personally, I am concerned about the repercussions of the introduction of autonomous and unmanned vessels. Although the terms ‘autonomous’ and ‘unmanned’ are used interchangeably, they are fundamentally different. The former relates to pre-programmed vessels which uses artificial intelligence to navigate remotely and or autonomously. The latter refers to vessels that do not require the presence of a crew on board but are operated and controlled remotely from the shore by humans.
In December 2020, the National Engineering Policy Centre’s project on Safety and Ethics of Autonomous Systems gathered professionals from different disciplines of modes of transportation to discuss the latest state of play in autonomy and issues which arise from that. It was summarily agreed that autonomous systems can create safer, more efficient, and lower carbon transportation systems.
Notwithstanding the positive response the introduction of autonomous/unmanned vessels has received, there are issues that must be addressed in considering a fully operational industry equipped with autonomous systems. To this end, the International Maritime Organization (“IMO”) and other regulatory bodies need to consider how to implement new policies and or amend existing ones in ensuring that these types of vessels are able to operate within the bounds of the law.
Instinctively, the first concern would be about job security for current seafarers who are not trained to operate these type of vessels and the possible increment of unemployment rate, globally. The argument advanced by many is that the introduction of these vessels will greatly affect the prospects of seafarers already trained in terms of the existing regulations such as the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) which establishes basic requirements for the training, certification, and watchkeeping of seafarers on an international level. In the circumstances, the operation of autonomous and unmanned vessels would ultimately require the existing laws and regulations to be amended or entirely repealed.
In addition to concerns relating to the possible unemployment of seafarers, there are three legal concepts that should be of particular interest to the industry's role players, and these include: Seaworthiness, Navigation, and Liability.
1. Seaworthiness
In this regard, it will be necessary to consider the existing laws on the determination of seaworthiness and how the IMO can address the gap in developing policies which will ensure that autonomous and unmanned vessels are compliant with the requirements of seaworthiness.
The discussion should include factors such as physical capabilities of the vessels to sail on water and the ability to withstand common risks during shipping, the equivalent of competent staff and manpower, as well as seaworthiness by documentation.
2. Navigation
Here, it will be important to consider the provisions of the International Regulations for Preventing Collisions at Sea (“COLREGS”) and interrogate how they can be applied to autonomous and unmanned vessels to the extent that it is possible or suggest how COLREGS may be amended to incorporate the operation of these vessels.
The discussion should specifically consider, amongst others, the following concepts:
Look-out: how will autonomous and unmanned vessels be able to keep sight and process sound of its surrounding areas and communicate it back to the vessel's system in ensuring safe navigation of the vessel;
Risk of collision: how will the risk of collision be detected on autonomous and unmanned vessels - especially considering that these vessels may very well be operational amidst manned vessels;
Action to avoid collision: actions that autonomous and unmanned vessels would adopt to avoid collisions at sea such as altering course and speed; and,
3. Liability
The operation of autonomous and unmanned vessels raises several concerns especially when it comes to the attribution of liability and apportionment of damages. COLREGs set out rules on navigation that are to be followed by ships at sea and they, inter alia, prescribe what will be taken into consideration in determining liability where two or more vessels collide. One of the things that will be considered is whether the ship/crew kept a proper lookout, gave necessary signals, and abided by the overall rules on navigation.
Liability will be apportioned according to each party’s contributory negligence, if any. The question where autonomous and unmanned vessels are concerned is ‘how will liability be assessed should these vessels be involved in a collision?’ Assuming the collision would be due to some technical error which resulted in the malfunctioning of the vessel - who then becomes liable, the owner, the manufacturer, or the insurance company?
Accordingly, the question remains, what happens to the principle of contributory negligence, especially if a vessel’s movement is pre-programmed? If the system of vessel “A” malfunctions, leading to a collision with vessel “B” which has a perfectly operational system, surely the law cannot attribute any form of liability to that vessel, unless it was sufficiently equipped to be able to detect the movement of the other approaching vessel and alter its course accordingly – which would require that the vessel should override the pre-programmed co-ordinates.
Notwithstanding the above, none of the concerns addressed suggests that the operation of autonomous and unmanned vessels would be impossible, instead, the purpose is to simply highlight those issues which the IMO and other regulatory bodies need to consider in more detail when implementing policies that will regulate the operation of these vessels. We cannot deny that technology is indeed a safer option for the shipping industry, however, we should also not be oblivious to the difficulties presented by this technological development and what that means for the industry.
Therefore, while we cannot say with utmost confidence that these type of vessels are unnecessary, in the same light, we should not ignore changes that will come with their operation.
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