009/17/Gen.Inf. Who’s to blame when no one is manning the ship?

Like it or not, technology is creeping into virtually every aspect of our daily lives. In fact, some people are so psychologically attached to their smartphones, that cellphone addiction has been given a clinical name, nomophobia.[1] Mikael Makinen, president of Rolls-Royce Marine predicts, “[a]utonomous shipping is the future of the maritime industry. As disruptive as the smart phone, the smart ship will revolutionise the landscape of ship design and operation.”[2]

In April 2016, the U.S. Navy christened the “Sea Hunter,” a fully autonomous, unmanned surface vessel.[3] After an initial experimental phase, it will sail the open sea, looking for enemy submarines and underwater mines, all without human control.[4] The U.S. government is not alone in recognizing the benefits of remote controlled, unmanned vessels. Projects such as the European Union’s Maritime Unmanned Navigation through Intelligence in Networks (MUNIN)[5], and the Advanced Autonomous Waterborne Applications (AAWA) Initiative[6], funded by Rolls-Royce, imagine a future where ships no longer require an onboard master or crew. This future, and the technology to it, are on the horizon.

In March 2016, Rolls-Royce unveiled its concept drone cargo ship.[7] The computer-generated imagery shows a sleek, capsule-like vessel, ready to cut through ocean waters to destinations far and wide, all without a captain or crew,[8] and, it would seem, the potential for human error.[9] Oskar Levander, Rolls-Royce’s vice president of marine innovation, says its drone ship could be operational by 2020.[10] Rolls-Royce asserts that these vessels would be cheaper to operate than their manned counterparts and would have more space for cargo.[11] Shipowners will be able to “optimize operations and maximize profit.”[12]

Indeed, the lighter ships would burn 12 to 15 percent less fuel.[13] In addition, it has been estimated that average crew costs are $3,299 per day, accounting for about 44 percent of the total operating costs for a large container ship.[14] Disposing of 20 or more crew members per vessel and moving those duties to a remote location where a smaller seven-to-14 person “crew” could oversee a fleet of vessels, would undoubtedly cut costs.[15] Moreover, without an onboard crew, systems currently required for human accommodation, such as electricity, heating, ventilation, air-conditioning, water and sewage, would no longer be necessary, and the space traditionally dedicated for lodging could now be used for additional cargo capacity.[16]

The mainstream use of unmanned, remote-controlled or autonomous vessels may very well be the future of commercial shipping. This technological advancement, however, raises questions as to whether the international conventions and domestic rules that currently govern these activities, can adequately accommodate such changes without a major overhaul, or whether they will preclude widespread use of these vessels indefinitely. And, if these vessels do set sail, who should be liable when something inevitably goes awry?

Minimum Manning Requirements and Proper Manning

The first, obvious issue when considering an unmanned vessel is the fact that various maritime guidelines, statutes and legal regimes, recommend and/or set forth minimum manning requirements. Although not binding in the U.S., the International Maritime Organization’s (IMO) Principles of Safe Manning provide factors that should be considered when determining proper minimum manning for a particular vessel, including the size and type of ship, and the cargo to be carried.[17] Under 46 U.S.C. §8301(a), the United States has required all U.S. flagged vessels, subject to Coast Guard inspection, to carry a minimum number of crew.[18] However, this section does not contemplate an unmanned vessel. In addition, the Carriage of Goods by Sea Act (COGSA)[19] requires a ship to be seaworthy before a voyage commences, and by definition, “seaworthy” includes being properly manned.[20]

These rules and guidelines, however, all have another commonality, i.e., they were all drafted when an onboard master and crew was the only option. At the time, no one considered the possibility of an unmanned vessel. Therefore, in order to satisfy these requirements, and adapt to the modernization of the shipping industry, it appears likely that the “minimum manning” and “proper manning” standards will need to expand to include fully qualified, properly manned remote crews.[21] Further, given the fact that certain maritime treaties, such as The International Convention for the Safety of Life at Sea (SOLAS), place specific duties on the master of the ship,[22] the remote operator of the vessel will likely need to fill this role and assume these duties.

In addition, according to the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), every vessel must “at all times maintain a proper look-out by sight and hearing.”[23] It seems likely that a vessel with advanced radar and sonar capabilities might meet this requirement. While the remote crew monitoring these systems would not be stationed on the vessel, the vessel itself could incorporate these systems, constantly feeding data back to the remote crew, who could then make necessary evaluations and adjustments. Further, automated “eyes and ears” could protect against human errors arising from conditions such as fatigue. It would seem that the further these technologies advance, the more likely that electronic sensors, radar, sonar, GPS and other satellite systems, could meet the current standards.

Potential Liability Concerns

Although the full extent of potential liability issues that may arise from the commercial use of remote-controlled, unmanned ships is currently unknown, there are some concerns that we can anticipate.

The COLREGS and the U.S. Coast Guard’s Uniform Inland Navigation Rules provide navigational rules that all vessels are required to follow.[24] These rules seek to avoid collisions at sea when one vessel encounters another. In addition, violations of these rules play a part in determining fault and liability should a collision occur.[25] In order to comply with these rules and avoid potential liability, the remote operator of an unmanned vessel must have the ability to monitor and adjust the navigation of the vessel to the same extent that would be available if the vessel were manned. Indeed, there should be no excusable delay in the decision-making and reaction time of a remote crew and master. Any failure or inability to accomplish a real time maneuver should expose the unmanned vessel to potential liability.

Under U.S. and international maritime laws, vessels have a duty to rescue other vessels or persons at sea that are in distress.[26] An unmanned ship, unable to accommodate passengers, raises a question as to how the ship will comply with these laws. This is especially true when the legal duty to render assistance rests on the master or individual in charge of the ship.[27] Unmanned vessels may need to be equipped with a certain amount of food, water, supplies, etc., to deploy in the event the duty to rescue is triggered. In addition, the remote master may be responsible for monitoring supply levels, ensuring that supplies are properly deployed, and contacting other nearby vessels that could provide assistance. However, if those in distress suffer damages or injuries that could have been avoided if the ship had been manned, then it could follow that the unmanned vessel may be exposed to liability for any exacerbated damages or injuries.

COGSA gives carriers immunity for fires, “unless caused by the actual fault or privity of the carrier.”[28] Where there is no onboard crew to fight a fire, unmanned vessels will need to be equipped with automated fire suppression systems that either meet or exceed the fire-fighting capabilities of a crew. Otherwise, a carrier may be liable for damages that were caused by the fire.

COGSA also provides immunity to a carrier[29] for errors in navigation or management.[30] The theory behind this immunity is that once the ship sets sail, the carrier no longer has control over it. This immunity, however, may not be justified when the operators of the ship, likely to be considered the servants of the carrier, are all remote. Indeed, a carrier is going to be hard-pressed to argue that it did not have privity or knowledge, if the navigation and management of the ship are potentially occurring in an office down the hall.

In general, the Limitation of Vessel Owner’s Liability Act of 1851,[31] currently limits a shipowner’s liability for most maritime injuries, ranging from cargo damage to collisions to negligence of the master and crew. In order to benefit from the Limitation Act, however, the shipowner must show that the injury occurred without their privity or knowledge. With the emergence of remote controlled, unmanned vessels, as noted above, a shipowner’s ability to make this showing will likely become much more difficult, and the Limitation Act may become obsolete.

Finally, Rolls-Royce identified an increase in the threats of piracy and cyberattacks as potential risks associated with its autonomous cargo ships:

In principle, anybody skilful and capable to attain access into the ICT system could take control of the ship and change its operation according to hackers’ objectives. This could mean simply some disruptive actions or manoeuvres introduced for annoyance or demonstration, hijacking of the ship and cargo for ransom, but also powered groundings or collisions created on purpose to cause severe destruction.[32]

Cybersecurity and cyberattacks are already an issue of widespread concern in many industries, as well as a growing exposure recognized by underwriters. While Rolls-Royce discusses both piracy and cyberattacks as security concerns, a question is raised as to whether hackers may fall within the definition of pirates. What we can assume is that pirates with the mission of hijacking a ship to hold its crew hostage for ransom, should no longer be a concern. In addition, while pirates who intend to board a cargo ship to hijack the vessel for ransom or parts and/or to steal cargo, may be able to do so more easily with reduced security, if the systems on the ship can be shut down remotely, then it could take a highly tech-savvy pirate to override it. For these reasons, traditional piracy may be less of a concern with unmanned, autonomous vessels. Simply put, it may not be worth the effort to the traditional pirate. Whether hackers could be considered pirates, however, poses the bigger issue.

Under the United Nations Convention on the Law of the Sea (UNCLOS), piracy is defined as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship … on the high sea, against another ship … .”[33] While it would depend on the specific circumstances, a hacker arguably might fall within this definition. Ultimately, shipowners and marine insurers alike should be aware of the cybersecurity issues, and how hackers or “cyberpirates” might affect their liability, as well as the availability of insurance coverage, when they assess the risks of unmanned vessels.

Conclusion

An entirely new legal regime applicable to unmanned vessels, while possible, is neither an efficient nor necessary answer. The existing conventions and laws that apply to commercial shipping can be adapted as needed. The biggest adaptations would be considering a qualified remote crew the equivalent of a properly manned ship, a remote operator as the master of the ship, and the electronic sensor systems as their eyes and ears. Otherwise, it appears that many potential liability issues can be adequately evaluated under the current rules. For example, if an unmanned ship’s fire suppression system were to fail where an onboard crew could have contained it, then the carrier should not be granted immunity under COGSA. Further, in that scenario, the injured party might also have additional avenues of recovery, i.e., against the various parties connected to that fire suppression system — the manufacturer, installer and any outside maintenance vendors. As history has shown, the marine industry has been able to evolve with the times and the impending era of smart ships should be no different.

Source : Zelle LLP

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Thank you & Best Regards,

Eng. Dimitrios Nikolaos Spanos
Lead Maritime Auditor / Principal Surveyor
Member of IRCA, IIMS, ELINT, HELMEPA & Nautical Institute

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