Navigating Autonomous Shipping: Legal And Regulatory Challenges

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Navigating Autonomous Shipping

Autonomous ships could transform the safety, efficiency and sustainability of shipping, but there are still plenty of liability, legal and regulatory questions to answer.The notion of uncrewed ships may appear revolutionary or even far fetched, but in reality, it is already here. Bulk carrier Pyxis Ocean set sail in 2023 fitted with Windwing sails which are set and trimmed automatically rather than by the crew.

Current Developments

Yara Birkland, an electric-autonomous 120-TEU container ship was launched in Q2 2022 for shortsea voyages between Heroya and Eindangerfjorden, Norway. It can load and unload containers autonomously.

Market Growth

The autonomous ships market is growing rapidly, with a projected compound annual growth rate of 6.8% through 2031, reaching a revenue of over US$89M in 2021.

Reed Smith partner Thor Maalouf and transportation attorney and policy lead Julia Norsetter considered the regulatory, liability and definition of autonomy.

Levels of Automation

“Autonomous ships operate independently to a widely varying degree,” they explained. IMO has defined several levels of automation. Degree one is a ship with automated processes and decision support, and seafarers on board. Operations may be automated and at times be unsupervised, but seafarers are ready to take control.

Degree two is for a remotely controlled ship with seafarers on board to take control and operate the shipboard systems and functions if required.

Regulatory Framework

Degree three covers a remotely controlled ship without seafarers on board, while degree four would be a fully autonomous ship with an operating system able to make decisions and determine actions by itself.IMO has a working group developing a regulatory code for Maritime Autonomous Surface Ships (MASS).

“The goal is to adopt a non-mandatory MASS Code to take effect in 2025, to form the basis for a mandatory MASS Code to take effect in 2028,” explained Ms Maalouf.

“Successful proliferation of a MASS Code is rife with complications, like rapidly advancing technology and existing maritime conventions.”

Functional Requirements

IMO is revising existing maritime conventions like SOLAS, STCW, and COLREGs to accommodate autonomous ship operations and define roles and responsibilities.

“These may need to be amended to take account of factors including the role and responsibility of the master,” said Ms Maalouf.

Liability Considerations

The latest report from the MASS Code working group published in April 2024 includes a recommendation that all MASS have a person designated as a master, whether on board or in a remote location.

The legal notion of seaworthiness involves a ship being properly constructed, prepared, manned and equipped for the intended voyage. “How can the owner of an autonomous ship exercise due diligence to ensure this if they have little understanding of the software and components involved in automated features?” asked Ms Maalouf.

Challenges and Solutions

“Could responsibility for seaworthiness be shifted to the supplier or manufacturer of automated functions? In English law, the possibility to delegate responsibility for seaworthiness to, for example, a contractor, software provider or remote operator, is limited.”

As far back as 1961, the Muncaster Castle case found a shipowner responsible for a failure to exercise due diligence to make a ship seaworthy after a shipyard worker failed to tighten screws before a voyage.

“However, in English law a shipowner might not be responsible for faults by third parties before the ship came into their possession or orbit, such as pre-existing faults during construction, or faults during a previous ownership of the vessel,” Ms Maalouf continued.

“Similarly, could a shipowner claim a defect in the vessel’s autonomous systems if the fault is outside its orbit?”Scope for human error on board a ship could be replaced by an autonomous system failing to understand or categorise what its sensors have detected, by patchy communications, or by a mistake by a remote human operator.

“Could a shipowner categorise such glitches as navigational faults, for which they should not be responsible under the familiar Hague Visby Rules exception?” Ms Maalouf asked.

MASS Code

“The proliferation of a MASS Code will no doubt enhance confidence in the use of autonomous ships, but questions on liability abound and shipowners and legal experts will increasingly rely on help from software and other technical experts.”

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Source: Riviera