The advent of unmanned ships does raise questions as to how maritime law should address this development which is becoming increasingly relevant across the maritime industry. The current view is that internationally a joint set of rules and regulations should be developed, preferably under the auspices of the IMO where in February 2017 a paper was submitted by nine flag states to propose a regulatory scoping exercise. The Comité Maritime International (CMI) has also recently established a Working Group on “Maritime law for unmanned craft” to consider how international conventions and regulations can be adapted to provide for the operation of unmanned ships on the high seas.
In this article it will firstly very briefly examined whether the international legal framework is applicable to unmanned ships at all and, therefore, the operation also of unmanned ships falls within its ambit.
Thereafter it will be discussed whether the rules on liability of the ship owner in tort or the manufacturer or IT provider of the ship should be amended to reflect strict “no fault” liability governing product liability to a
Finally, it will be discussed whether to introduce a requirement for mandatory insurance with the right of direct actions against the insurer.
- International legal framework and unmanned ships
When looking at the international legal framework the question arises whether the “Constitution of the Seas”, the United Nations Convention on the Law of the Seas (“UNCLOS”) is applicable to unmanned ships and therefore especially the right of innocent passage through the territorial sea remains fully applicable. This is of utmost importance because otherwise unmanned ships will be more or less commercially useless to their owners.It seems so far undisputed that UNCLOS also applies to unmanned ships. The main argument put forward in support of this view is that an unmanned vessel is also a “ship” within the meaning of UNCLOS since UNCLOS is not defining a “ship” to begin with. Furthermore it is put forward that the UNCLOS references as to manning of the vessel (Art. 94 (2) (b)) and the duty of the captain to render assistance (Art. 98) do not require that the crew is in fact on board of the vessel. Also, the UNCLOS requirement of a genuine link between the flag state and the ship (Art. 91 (1) 2nd sentence) should be achievable at least in cases where the vessel is controlled by an operational center in the respective flag state and not fully autonomous. As from the UNCLOS perspective unmanned ships do therefore seem to be operable. However, obviously the wording of UNLCOS is based on the concept of manned ships and the applicability of the arguments put forward might be questioned in cases of fully autonomous shipping, meaning that the ship is not navigated by remote control.
With regard to the International Convention for the Safety of Life at Sea (“SOLAS”) the applicability is likewise not questioned as an unmanned ship is also a ship in the sense of “SOLAS”. It is, however, questioned whether an unmanned ship complies with the requirement to switch over to manual steering with the assistance of a helmsman (Chapter V, Regulation 24). Another example of SOLAS regulations difficult to apply to unmanned ships is the requirement of a “continuous watch” (Chapter IV, Regulation 12) or the International Safety Management Code (“ISM Code” – Chapter IX) that is referring to the crew “on board”. However, again the rules can be made operable by a wide interpretation at least if the vessel is steered remotely and not fully autonomous.
Finally, the International Regulations for Preventing Collisions at Sea (“COLREGs”) and International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (“STCW”) as well as the Martime Labour Convention (“MLC”) would generally also apply to unmanned ships as again the term “ship” within the meaning of these regulations do not require a crew on board. However, the rules are clearly drafted with a crew on board in mind – e.g. proper look out (Rule 5 COLREGs), identification of collision risks and collision avoidance actions (Rule 7 COLREGs), as well as training and certification requirements exclusively for services on board by crew (STCW and MLC). In the view of this it could be argued that the regulatory subject matter of at least the STCW and MLC has become obsolete with regard to unmanned ships and would lose all relevance. This does not, however, appear to be the position with regard to the COLREGs as, if interpreted widely, they seem to work in cases where the vessel is navigated remotely and not fully autonomous.
- Strict “no fault” liability?
The question of liability in the context of unmanned ships is how to deal with the requirement of culpable fault or failure to exercise due diligence especially because it is highly problematic from the injured party’s perspective to prove fault when the human factor is even less involved than it already is. Furthermore the manufacturer or the IT-provider will become increasingly relevant as a potentially liable party which does not, however, lighten the burden on the injured party to prove fault. A solution might be to introduce a strict non-contractual “no fault” tort liability in the context of unmanned ships.However, when looking at the international liability regimes from a strict “no fault” non-contratual tort liability perspective it is questionable whether, for example, this concept can be reconciled with the 1910 Collision Convention. The Collision Convention is governing the liability in cases of “error”, i.e. a “fault” based liability, and it would require that the contracting states agree on a strict “no fault liability” if unmanned ships are involved in a collision.
With regard to the liability in tort that is mainly still regulated individually by the national regulator again the liability is generally a strict “fault” liability. However, in the context of the liability of car owner this has been changed in Germany with the introduction of a special rule that introduces a strict no fault liability. The same applies in cases of product liability if the German product liability code is applicable. In the context of merchant unmanned shipping, however, this would only apply in cases of personal injury and not in cases of damage to property. The reason for this is that property damage is only governed by the German product liability code if the damage is caused to a subject being designated for private use. Obviously, this does not apply to of merchant unmanned ships.
However, if, discussions of generous interpretations of current laws and regulations or strict liability notwithstanding the bottom line remains to make it possible for the injured party to claim damages. Whether the solution in fact is to be found in a strict non-contractual “no fault” tort liability or in any other way like for example a “deemed fault” based liability needs to be investigated. An argument against a strict non-contractual tort liability could be that it might be problematic for the owner, the manufacturer or the IT-provider to arrange for affordable strict liability insurance.
- Mandatory insurance and the right of direct actions against the insurer?
Another question is whether a mandatory insurance requirement should be introduced for unmanned ships and whether this should be coupled with a right of direct actions by the injured party against the insurer. This has already been implemented, for example, in relation to tankers by Art. VII of the International Convention on Civil Liability for Oil Pollution damage, 1992. Art. VII 1. stipulates that “The owner of a ship registered in a Contracting State and carrying more than 2,000 tons of oil in bulk as cargo shall be required to maintain insurance or other financial security…”.This is supplemented by Art, VII 8. stipulating, that “any claim for compensation for pollution damage may be brought directly against the insurer or other person providing financial security for the owner’s liability for pollution damage.” The fear that this risk could not be insurable did not materialise. P & I Clubs do take this risk and act as garantors and provide the necessary evidence that cover is in place as required.On the other hand, generally, a compulsory insurance requirement for third party liability cover under a H&M Policy and/or P&I-Insurance does not exist. Nevertheless many ports have made the existence of such cover a prerequisite to enter their port. Furthermore, with the introduction of an Act in accordance with EU-directive 2009/20/EC on the insurance of shipowners for maritime claims a further compulsory insurance requirement was introduced in Europe and Germany. It seems, therefore, that at least as owners are concerned, a further compulsory insurance requirement in the context of unmanned ships is not required.
As far as direct action is concerned, this is a matter intensly discussed especially due to the P&I “pay-to-be-paid” rule. Although questioned by some national legislators and courts the rule is still widely accepted in the market. It is doubtful, therefore, whether indeed a general change should be introduced or if it is a better choice to retain the concept – following the rule, “if it ain’t broke, don’t mend it”. Furthermore, the insurance market might be reluctant to accept a general deviation from “pay-to-be-paid” and the risks could then become uninsurable. A possible solution might be to limit the right of direct action to new technology risks that are particular to unmanned ships.
In summary, the existing international maritime legal framework generally applies to unmanned ships and although clearly being drafted with manned ships in mind, they can, in essence, be made to work also in the context of unmanned ships. Nevertheless adaptions are required and these will be difficult to achieve in the foreseeable future as the past has shown that the process of innovation on an international level is a long and cumbersome one. The commercial pressure to take up unmanned vessel operations will, however, in all likelihood move things forward at a much faster pace and these ships will soon be reality and the legal groundwork should be prepared for this new development. Whether this includes strict non-contractual “no fault” tort liability and/or mandatory insurance and the right of direct actions against the insurer will have to be decided at some point and preferably by not completely changing the existing concepts but to carefully adapt them where appropriate to unmanned ships.
 For further details and references see Van Hooydonk The law of unmanned merchant shipping – an exploration (2014) 20 JIML 403 – 423.
 Van Hooydonk The law of unmanned merchant shipping – an exploration (2014) 20 JIML 414 with reference to Brown/Gaskell The Opertion of Autonomous Underwater Vehicles. Vol. Two: Report on Law (London 2000); Vol. Three: The Law Governing AUV Operations (London 2011).
 Van Hooydonk The law of unmanned merchant shipping – an exploration (2014) 20 JIML 412.
 § 7 StVG (German Law of Street traffic).
 Hazelwood P&I Clubs Law and Paractice (London 2010) 180 para 10.226.
 Gesetz über bestimmte Versicherungsnachweise in der Seeschifffahrt („SeeVersNachwG“).