Legal questions around unmanned workboats
According to Charles Hattersley, Partner and Head of Marine at Ashfords, a Law practice in Exeter, UK, unmanned workboats are quickly appearing over the horizon, but the legal framework may end up playing catch-up with the rapid technological progress.
The International Maritime Organisation will shortly consider changing the international Convention for the Safety of Life at Sea (SOLAS) to allow ships with no captain or crew to become operational.
The offshore industry, with the assistance of the IMO, is developing technology for ships that will operate autonomously in open water and be remotely controlled by a land based ‘captain’ when entering or leaving port.
Although the processes of changing the rules with SOLAS and the IMO are slow, progress is being made and by no later than 2024 some workboats operating off European coasts will almost certainly be unmanned.
The important question for the legal and insurance professions is how will the operation of unmanned craft be regulated? Will the operation of these vessels require the creation of an entirely new legal framework?
The current regulatory framework is codified in large part by the United Nations Convention on the Law of the Sea 1982 – (UNCLOS). This refers expressly to ‘ships’ which raises the fundamental question of whether unmanned craft are in fact ‘ships’. Under English law a ship is defined as including ‘every description of vessel used in navigation’. The term ‘navigation’ is undefined. There are a few cases that offer guidance but none are definitive. The best view is that, under English law, there is nothing in the authorities that would categorically preclude an unmanned craft from constituting a ship. This means that unmanned ‘ships’- which will include workboats - should comply with the current maritime regulatory framework and have the benefit of the standards and certification regime under SOLAS. Owners would, as a result, be able to limit their liability under the Limitation of Liability of Maritime Claims Convention 1976 (as amended). However, in order to do so they must comply with regulatory requirements.
Flag state obligations are set out in UNCLOS article 94 which states flag states must execute effective jurisdiction over their flag ships and ensure that they are adequately crewed with suitable personnel provided. Whether remote controllers can constitute unknown ship masters is an undecided point. ‘Master’ is not defined under UNCLOS although several domestic laws define the term as simply the individual having ‘command’ or ‘charge’ of a ship.
Under Regulation 14 of SOLAS contracting governments undertake that each of its ships shall be both ‘sufficiently and efficiently manned’ and that ships' manning requirements are established by a transparent documentary procedure. There is no express requirement for ships to have at least one seafarer on board - nevertheless regulation 14 still presents a conundrum for the unmanned vessel because, although there is a requirement for manning adequacy, there is not an outright prohibition of unmanned ships. The issue to be addressed by IMO and SOLAS is whether or not safety will, in any way, be compromised.
SIGNALLING AND COLLISION AVOIDANCE
The most important provisions are, of course, the International Regulations for Prosecuting Collisions at Sea 1972 (COLREGS).
A relevant COLREG provision is rule 2. The rule confirms the primacy of adherence to good seamanship over a doctrinaire compliance with the letter of the Rules and that in select circumstances alternative action may be required. In this respect ‘seamanship’ involves the adequacy of the ship's crew.
Arguably the most pressing issue is that posed by rule 5, ie., the extent to which an unmanned ship can maintain a ‘look out by sight and hearing …’. The question is whether a lookout may be lawfully provided by alternative technological means. Unmanned craft can be fitted with cameras and sensors of such sophistication that a very thorough projection of the vessel's vicinity can be streamed to the shore command. The important point therefore is whether this can be said to be a ‘proper lookout’.
This issue has not been decided by the English Courts although authorities have held that both shore based assistance and ‘technical advancements’, in given situations, do comprise essential aspects of the lookout obligations.
However, there is no certainty whether remote control, using the most sophisticated optical and aural sensors, will satisfy the rule 5 obligations. Additionally, unmanned ships will not enjoy any navigational priority over their manned counterparts under COLREGS in circumstances where communications with the unmanned ship are lost - for instance by lack of satellite coverage. It is possible the ship may then claim to be ‘not under command’ ie rule 18 would apply and this would place the onus on other vessels to take necessary action to avoid collisions.
The wording of the existing regulatory regime for unmanned workboats is problematic. The real challenges are twofold.
First, is the current absence of, and consequent need to develop, standards and practices in relation to the new procedures which unmanned operations introduce. The development of these practices and their international standardisation will be a long term process but such practices are essential. This in turn will make the technology insurable and will give maritime authorities the confidence to certify the safety of operational support vessels.
The second is an international consensus. In the absence of even an internationally agreed definition of ‘ship’ there is clear scope for disagreement which may limit the development of this embryonic industry. That is why it is so important to establish an international forum for dialogue. Good progress has been made through the CMI in Paris; however there is, at present, insufficient international engagement for the potential divisive issues to be clarified.
Once these obstacles are overcome then unmanned ships will begin to realise their staggering potential.
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