To what extent can unmanned ships comply with COLREGs 1972 and how will the liability of such vessels be assessed?
| Author | Eleni Achnioti |
| Pages | 77-113 |
(2021)
Vol. 11
77
To what extent can unmanned ships comply with COLREGs 1972 and
how will the liability of such vessels be assessed?
Eleni Achnioti*
Abstract
Unmanned ships a re presently able to inf iltrate the maritime industry due to the rapid t echnological advances
of this era. Their introduction to the maritime sector could pose novel questions regarding compliance and
liability with the established framework. The aim of this research is twofold; firstly to examine the extent to
which unmanned ships may comply with COLREGs and secondly how such vessels may be held civilly liable in
case of a collision. The types of ships considered will be remote-controlled and autonomous. The underlying
theme of the essay will showcase how this binary distinction may have significant consequences regarding
compliance. The first part of the study will explore certain COLREGs Rules, namely Rules 2, 3, 5, 6 and 8. It
will be concluded that remote-controlled vessels stand a better chance at compliance than autonomous ones.
The second part of the research will focus on answering prominent questions regarding liability. It will argue
that the fault-based liability can be maintained for remote-controlled ships. Autonomous ships conversely, may
benefit from a strict liability model for policy and convenience reasons. The right to limit liability can be invoked
by unmanned shipowners and shore-based operators, but not by manufacturers nor software programmers.
Ultimately, to ensure the effective in tegration of such vessels in the industry, it will be argued that either new
regulations will need to be drafted or present ones be amended.
Chapter 1: Introduction
Unmanned ships are becoming a real prospect for the coming years and have the potential to
revolutionise one of the world’s most ancient industries. Consequently, several international
conventions may need to be reviewed in order to safely integrate such ships in the lex
maritima. The conservative nature of the shipping industry juxtaposes the innovative
character of unmanned ships, as traditionally the industry has been resistant to change,
evidenced in inter alia the failure of the Rotterdam Rules.
1
This indicates the difficulty in
altering the established regulatory landscape and highlights that the current law may struggle
to accommodate the new challenges posed by unmanned vessels.
2
Nevertheless, maritime
laws and concepts have successfully adapted from the days of sail to the introduction of steam,
diesel and nuclear propulsion.
3
There is thus no reason why the law cannot readjust to
accommodate unmanned ships.
The benefits of unmanned ships are numerous.
4
They have the potential to cut costs across
the board, as by definition, there would no longer be a need for a crew and master onboard
the ship. It follows that unmanned ships allow for the possibility of more efficient ship design,
since there would be no need for bulky crew accommodation or a bridge. This would increase
*
Dissertation submitted in partial fulfilment of the requirements for the degree of LLM Maritime Law.
1 Justyna Nawrot and Zuzanna Pepłowska-Dąbro wska, ‘Revolution Or Evolution ? Challenges Posed By
Autonomous Vessels For Nat ional And International Legal Framework’ (2019) 25 Comparative Law Review
241.
2 ibid.
3 Eric Van Hooydonk, ‘The Law Of Unmanned Merchant Shipping: An Exploration’ (2014) 20 Journal of
International Maritime Law 403.
4
See: AWAA, Remote and Autonomous Ship – The next steps (2016) <https://www.rolls-
royce.com/~/media/Files/R/Rolls-Royce/documents/customers/marine/ship-intel/aawa-whitepaper-
210616.pdf> accessed 18 August 2020, 4.
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cargo capacity and facilitate an aerodynamic design, boosting the efficiency and performance
of vessels.
5
Evidenced from current commercial projects, unmanned vessels are likely to utilise
more environmentally friendly propulsion methods than manned vessels.
6
In addition to
operational costs, unmanned vessels have the potential to reduce litigation and insurance
expenditure. This is partly due to the elimination or reduction of human error, which is
estimated to cause approximately 75% to 96% of marine casualties.
7
It is therefore easy to
understand the appeal of such vessels, since developments in the maritime industry are
primarily fuelled by economic gain. As the shipping industry alone accounts for approximately
90% of all world trade,
8
the ultimate question regarding unmanned ships is the extent to
which they can operate as safely as their manned counterparts and whether enforcement of
claims can be as effective.
9
It is therefore important to assess firstly, the way in which such
vessels will comply with present regulations to ensure that safety at sea is maintained and
secondly, how unmanned shipowners can be made liable in case of a casualty.
The International Maritime Organization (IMO) have produced a general term to encompass
all types of ships, which can operate without human interaction; MASS, meaning Maritime
Autonomous Surface Ships. This term however is somewhat unfortunate, as it could
potentially raise definitional uncertainties.
10
For this reason, when referring to both remote-
controlled and autonomous ships the umbrella term ‘unmanned’ will be used. For the
purpose of this essay, remote-controlled ships will refer to those classified in degree A2 of the
Bureau Veritas Guidelines and autonomous vessels to degree A4.
11
More detail regarding the
levels of autonomy will follow.
Unmanned ships came to the attention of the IMO in 2017, who appointed the Maritime
Safety Committee (MSC) to carry out a regulatory scoping exercise aimed to be completed
in 2020.
12
As part of the exercise, several IMO treaties will be examined including inter alia
5 Ultimately, an aerodynamic design would result in better fuel consumption, thus meeting the efficiency targets
envisaged in EEDI regulations for new ships. See: ‘Energy Efficiency Measures’ (International Maritime
Organization, 2020) <http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/
Pages/Technical-and-Operational-Measures.aspx> accessed 6 July 2020. Additionally, an aerodynamic and
smooth sh ip design could result in unmanned ships being more pirate-resistant than conventional ships, by
making them harder to board. See also Nawrot and Pepłowsk a-Dąbrowska (n 1) 242.
6 See below for examples of current projects.
7 ‘Shipping Safety - Human Error Comes In Many Forms’ (Allianz Global Corporate & Specialty, 2020)
<https://www.agcs.allianz.com/news-and-insights/expert-risk-articles/human-error-shipping-safety.html>
accessed 6 July 2020.
8 ‘Shipping And World Trade’ (International Chamber of Shipping, 2020) <https://www.ics-
shipping.org/shipping-facts/shipping-and-world-trade> accessed 4 July 2020.
9 Robert Veal and Michael Tsimplis, ‘The Integration Of Unmanned Ships Into The Le x Maritima’ [2017]
Lloyd’s Maritime and Commercial Law Quarterly 304.
10 It is noted that MASS encompasses vessels with automated functions, however in adopting that definition
there is potential that remote-controlled ships are excluded from it. This is due to the fact that remote-controlled
ships are not, strictly speaking, “autonomous”. For more in this issue se e: Robert Veal, ‘Unmanned Ships On
The IMO Work Agenda’ (2017) 17 Lloyd’s Shipping & Trade Law.
11 Bureau Veritas Guidelines for Autonomous Shipping, Guidance Note NI641DTR01E (2019)
<https://marin e-offshore.bureauveritas.com/ni641-guidelines-autonomous-shipping> accessed 28 August 2020.
12 ‘Autonomous Shipping’ (International Maritime Organization, 2020)
<http://www.imo.org/en/MediaCentre/HotTopics/Pages/Autonomous-shipping.aspx> accessed 6 July 2020.
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the COLREGs,
13
SOLAS
14
and STCW.
15
In addition, as of 2019 the MSC has approved
Interim Guidelines for MASS trials.
16
MASS have been provisionally defined as ‘a ship which
to a varying degree can operate independent of human interaction’.
17
The Interim Guidelines
are the first instrument the IMO has produced regarding MASS operation and are an
important starting point towards the integration of unmanned vessels in the shipping industry.
But as the name suggests, these rules are merely provisional and not particularly substantive,
thus they could be subject to change in the future.
18
Nevertheless, they provide an important
avenue for the commencement of MASS trials and bring the normalisation of such vessels a
step closer to reality.
19
Whether the scoping exercise will result in new regulations or
amendments is yet to be seen, as development within the IMO has halted due to the Covid-
19 outbreak.
20
This research aims to determine the extent to which remote-controlled and autonomous ships
can comply with COLREGs and how collision liability will be assessed between such vessels.
It will be shown that the distinction between remote-controlled and autonomous will have
different legal implications regarding compliance and liability. It will ultimately be argued that
remote-controlled vessels are more likely to effectively comply with COLREGs than
autonomous ones. For remote-controlled vessels to be integrated a few amendments and
clarifications need to be made to the current regulations. Conversely, for autonomous vessels
to be integrated it is most likely that a new instrument or set of rules will need to be
established. Upon analysis of the chosen COLREGs, solutions will be contemplated in order
to overcome regulatory hurdles. The Collision Convention 1910
21
as well as English law will
be considered in order to determine how the liability of unmanned vessels may be assessed.
It will be argued that remote-controlled vessels can fit within the current liability framework,
whereas autonomous vessels will pose serious problems to the regime and thus it will be
proposed that strict liability framework should be established. Regarding limitation of liability,
it will be submitted that the right should be afforded to unmanned shipowners and shore-
based operators (SBOs), however whether it should extend to manufacturers and software
developers is unclear.
1.1 Unmanned vs Autonomous vs Automated
The terminology surrounding unmanned ships is far from being consistent. There are
numerous guides defining levels of autonomy, however they are unharmonised and merely
13 Convention on the International Regulations for Preventing Collisions at Sea 1972.
14 International Convention for the Safety of Life at Sea 1974.
15 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978.
16 IMO ‘Interim Guidelines for MASS Trials’ (2019) MSC.1/Circ.1604.
17 ‘IMO Takes First Steps To Address Autonomous Ships’ (International Maritime Organization, 2018)
<http://www.imo.org/en/MediaCentre/PressBriefings/Pages/08-MSC-99-MASS-scoping.aspx> accessed 6 July
2020.
18 Robert Veal, ‘IMO Guidelines On MASS Trials: Interim Observations’ [2019] Lloyd’s Shipping & Trade
Law.
19 ibid
.
20
The IMO have recently rescheduled all the Committee meetings and the MSC is currently due to have its
102th Session on the 4-11th of November 2020. See: IMO Circular Letter No.4213/Add.6 available from
‘Meeting Summaries’ (International Maritime Organization, 2020)
<http://www.imo.org/en/MediaCentre/MeetingSummaries/Pages/Default.aspx> accessed 4 September 2020.
21 Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels 1910.
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