AUTONOMOUS SHIPS:

DRAFT PAPER

Dr Simon Daniels1

Introduction

Autonomous ships are on the brink of launching onto international voyages; make no mistake the

technology is already in place, and the phenomenon will very shortly be a reality. Luis Benito, head of

Strategy Innovation at Lloyd's Register (LR), has already said that all ships could be automated

without any exceptions, developing the experience that has already been achieved with coastal

vessels, and LR has issued guidance for six levels of autonomous ships2.

The technology is radical, but that is nothing new in shipping, because maritime technology will

always evolve, responding to meet the demand of delivering cost-benefit advantages in marine

operations that remit a higher profit for the stakeholders. In 1824 the pioneering General Steam

Navigation Company published its prospectus which envisaged steamship operations from the UK to

global destinations; but their early years witnessed a focus on short sea trades, and it would be another

forty-five years before steamship technology really outweighed the cost-benefit advantages of the

sailing ship for high-value cargoes. The nineteenth century presents us with the first evidence of the

‘sailing ship effect’ when the most advanced sailing ships in the world, the extreme clippers of the

China Tea Races in the 1860’s, cost a quarter of the price that was needed to build, maintain and

operate a contemporary steamship, while the clippers entirely outclassed the steamships which were

hopelessly slower and less reliable in bringing their cargoes to the port of discharge when they said

they would – the critical issue for the cargo owner. But that would change as the technology – and the

Suez Canal - delivered ever more cost-effective steamship solutions3. In fact the technological

development was so rapid in remitting profits that the clippers were run off the tea trade within twenty

years. It is all a question of offering the cargo owner a more effective cost solution; if you dispense

with shipboard crewing, the investment cost is reduced by dispensing with crew accommodation,

crew resourcing is almost eliminated in an age in which the demands of training inevitably increase,

1 Senior Lecturer in Maritime Law, Solent University, Warsash School of Maritime Science & Engineering. Copyright endorsement at end 2 https://www.lr.org/en/cyber-security/3 See Daniels, S, 2016, The China Clippers, Solent University, Southampton: ssudl.solent.ac.uk/3379/2/The%20China%20Clippers.docx

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while the pool of seafarers is reducing, and the demands of the Maritime Labour Convention must be

met.

The issue, is how the law is going to have to change, because, right now, it is that which stands as the

barrier to the international operation of autonomous ships.

We therefore need to analyse carefully the issues in law which must be resolved before a body of

international law can be constructed to provide solutions.

What is Autonomy?

John Gouch of Solent University has identified the foundation issue, to define what we mean and

understand by autonomy with regards to shipping. This has been classified in a number of levels,

which have been theorised by key in the sector and can be summarised on levels which range

according to their complexity4:

1. Remote Monitoring – Taking the current level of data transmission through to shore bases to a

higher level where monitoring to the point where remote diagnosis of faults etc. can be

supported by shore based staff

2. Phased Removal of Crew – building on the Remote Monitoring concept, there is a desire to

start looking at removing engineers from the vessel. To achieve this, industry is already

looking at utilising data feeds from the vessels to essentially replicate enough of an

environment ashore whereby all operating parameters are replicated to the point full

monitoring, fault identification and fault diagnosis can be achieved.

3. Remote Control – Whilst the key practical aspects of this have been, and still are being,

demonstrated by remotely operating vessels this step build on Remote Monitoring and Phased

Removal of Crew, whereby the crew would be shore based and work along the lines of a

rotational shift system where all operations are managed ashore with data transmission

providing all of the control functions enabling a vessel to sail from A to B whilst also

maintaining all functionality that would normally be provided by a crew

4. Semi-Autonomous – A stage whereby vessels could be sailed out of a port’s waters and then

set on a course from A to B and met at the other side and taken on remote control. This Semi-

Autonomous” stage would need a functionality to make the vessel safe should any aspect of

the remote control fail such as data connectivity, hardware or software failure. This stage

builds in a contingency whereby the vessel will be able to continue some form of passage

without the need for human intervention to allow it, for example, to hold station at a safe

place off the coast of its destination so that a boarding crew could bring the vessel into port.

4 John Gouch, Solent University WSMSE; John.Gouch@Solent.ac.uk

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5. Autonomous – This would be the final stage whereby a vessel would be commanded with a

route i.e. port of destination and the vessel wold then leave the berth and self-navigate itself

through the local sea lanes and then out into the open oceans. All decisions would have to be

made onboard through its own software and hardware systems. This would be the ultimate

goal that some of the major industry players are seeking within this “20 year” goal.

Is an autonomous vehicle a ship?

The first point overarches everything else that we have to consider, because if we cannot resolve a

definition which can be agreed at an international level, there will not be any common ground upon

which the autonomous ship registered in a Flag State will be permitted within the territorial seas of

another Port or Coastal State. The key issue is whether an autonomous vehicle is a ‘ship’ within the

meaning of the law and so will be regulated accordingly in whichever jurisdiction it sails.

Herein lies the first obstacle, for there is no single definition under English law, so it is necessary to

explore the range of authorities that might assist in offering some consensus.

Bizarrely for the world’s principal jurisdiction for maritime law, there is no common definition of a

ship in English statutes.

The Marine Insurance Act 1906 Sch 1 r 15 provides that the term 'ship' includes the hull, materials

and outfit, stores and provisions for the officers and crew, and, in the case of vessels engaged in a

special trade, the ordinary fittings requisite for the trade, and also, in the case of a steamship, the

machinery, boilers, and coals and engine stores, if owned by the assured.

In the Carriage of Goods By Sea Act 1971 Article 1 in the Schedule follows the Hague Rules as

amended by the Brussels protocol 1968 to define a ship as: any vessel used for the carriage of goods

by sea.

Section 24 Supreme Court Act 1981 states that a ‘ship’ includes any description of vessel used in

navigation.

The Pilotage Act 1987 follows the meaning of ‘Ship’ as defined in the Harbours Act 1964:

‘ship’, where used as a noun, includes every description of vessel used in navigation, seaplanes on the

surface of the water.

And let us not even dwell on the interpretation of Regulation 3 of the Offshore Installation and

Pipeline Works (Management and Administration) Regulations 1995.

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So it is necessary to draw upon case law to divine the Courts’ interpretation of the law.

In the case of Merchants Marine Insurance v North of England P & I Club 5, Lord Scrutton observed

amusingly but unhelpfully:

One might possibly take the position of the gentleman who dealt with the elephant by saying that he

could not define an elephant but he knew what it was when he saw one…

The UN Maritime Code 1994 has been somewhat clearer and, as a body of international guidance,

might carry more persuasive influence between jurisdictions:

"ship", with the exception of the warship, is any waterborne craft intended for seagoing navigation,

exceeding 12 m in length and a gross tonnage of 15 tons, or authorized to carry more than 12

passengers.

But in the interpretation of some common understanding, some insuperable conflicts have arisen.

The case of R v Goodwin6 involved an appeal against conviction by the accused, Mark Goodwin, who

was charged following a collision between the jet ski which he was riding with another jet ski, whose

rider was injured, and indicted on a single count of Conduct endangering ships, structures or

individuals, contrary to Section 58(2)(a) Merchant Shipping Act 1995, which states that if a person,

while on board his ship or in its immediate vicinity, does any act which causes or is likely to cause the

death of or serious injury to any person, he shall be guilty of an offence.

In delivering Judgment, Lord Phillips CJ said that the relevant provisions, as the title ‘Merchant

Shipping’ suggested, were primarily aimed at shipping as a trade or business, not at pleasure craft

such as jet skis:

While it may be possible to extend the meaning of ship to vessels which are not employed in trade or

business or which are smaller than those which would normally be so employed, if this is taken too

far the reduction can become absurd7.

This brings the argument to the critical question of the word ‘use’, which was the foundation stone of

the Court’s decision on the interpretation of a ‘Ship’. The common sense wisdom of Sheen J was

relied upon in reference to Steadman v Scofield [1992]8:

5 Merchants Marine Insurance Co. v North of England P and I Association (1926) 26 Ll. L. R. 201, at p2036 R v Goodwin [2005] EWCA Crim 3184; [2006] 1 W.L.R. 5467 Para 328 Steadman v Scofield [1992] 2 Lloyds Rep 163

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A vessel is usually a hollow receptacle for carrying goods or people. In common parlance 'vessel' is a

word used to refer to craft larger than rowing boats and it includes every description of watercraft

used or capable of being used as a means of transportation on water9.

Having addressed the authorities, Lord Phillips held,

We have concluded that those authorities which confine ‘vessel used in navigation’ to vessels which

are used to make ordered progression over the water from one place to another are correctly

decided. The words ‘used in navigation’ exclude from the definition of ‘ship or vessel’ craft that are

simply used for having fun on the water without the object of going anywhere, into which category jet

skis plainly fall10.

The rationale of the decision has been summed up succinctly by the Statute Law Review11, which

observed that the Court of Appeal wisely avoided determining whether a jet ski was a ship on the

basis of its construction, but applied the test as to whether it was used to make ordered progression

over the water from one place to another. In fact, the wisdom of the Court’s approach was somewhat

obvious, as it was focusing on the vessel use rather than her construction, which is the clear reasoning

demanded by the statutory definition under Section 313(1).

That being said, the observation of the Statute Law Review is not quite accurate because the Court

did, in fact, consider the determination of a ship based on its construction: namely in the meaning of

‘sea-going’:

… with the exception of certain specified sections [of which, in fact, section 58 is one], Part III

applies only to ‘ships which are sea-going ships and masters and seamen employed in sea-going

ships’12… The suggestion that the Waverunner was a sea-going ship is worthy of A.P.Herbert. By no

stretch of the imagination could that craft be so described. While jet-skis are used on the sea in

proximity to land, they do not go to sea on voyages nor, we suspect would they be seaworthy in heavy

weather13.

To summarise the point, having embraced the possibility of extending the meaning of a ‘Ship’ to

vessels which were not employed in trade or business, or which were smaller than those which would

normally be so employed, the Court rejected the definition that a ‘ship’ could be applied to a jet ski.

9 p16610 para 3311 Statute Law Review 27(1), iii–vi, doi:10.1093/slr/hmi02012 para 3613 para 39

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Writing in Lloyd’s Maritime and Commercial Law Quarterly, G Bowtle made a keen observation on

this rationale, that a ship which is used for pleasure purposes leaving from and returning to the same

place where the owner is regarding as ‘messing about in boats’ [as in Curtis v Wild14] will apparently

be outside the Act, but a similar ship whose owner is a little more adventurous going to other

destinations will be subject to the requirements of the Act15. This is a pertinent point, which may be

taken to the next logical step that the same boat, one day, may loaf around inshore waters and, the

next, boldly sail for another continent. In this way, the danger becomes apparent in relying on the use

of a vessel to divine its meaning in law.

A common-sense approach to this question which, of course, is that which Lord Phillips espoused so

highly, demands that the definition of a ‘Ship’ be determined as a question of fact, which

conveniently allows us to draw upon authorities from other jurisdictions. The difficulty with which

this fact is determined in comparative laws, can be observed in the approaches taken in Canada and in

the United States.

So we must turn to the decisions in other jurisdictions as a study in this key aspect of comparative

law. In the 2002 Canadian case of Attorney-General v McNally Construction16, the issue arose as to

whether the North American Free Trade Agreement (NAFTA) and the Agreement on Government

Procurement (AGP) applied to the procurement by a Government department of a jet-propelled patrol

boat for use in the coastal waters of the Maritime provinces. Essentially, McNally Construction Inc.,

an unsuccessful bidder for the building contract, filed a complaint with the Canadian International

Trade Tribunal (CITT) alleging that contrary to NAFTA and the AGT the Government department

concerned had failed to make an award in accordance with the criteria specified in the tender

documents.

The appellant contended that the solicitation was covered by specific exclusions for ‘shipbuilding and

repair’ in NAFTA and the AGP. Having determined that the word ‘ship’ has both a broad and

narrower meaning, the CITT adopted the narrower definition of ‘Ship’ as a ‘large sea-going vessel’,

in the sense that it is fit to cross the sea and make distant voyages as opposed to a coasting, harbour or

river vessel. It concluded that the boat in question was not a ship and that the procurement was not in

respect of "shipbuilding" within NAFTA and the AGP.

The Appeal was heard in Ottawa in 2002, when the Appeal Judges upheld the decision, finding inter

alia:

14 Curtis v Wild [1991] 4 All ER 172, at 17415 Bowtle, G, 2007, ‘A Vessel used in Navigation?’, Lloyd’s Maritime and Commercial Law Quarterly, Part 1, Informa, London16 Canada (Attorney General) v. McNally Construction Inc. (C.A.), 2002 f CC 633

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(2) The CITT did not err in taking into account various definitions of "shipbuilding" and "ship" and

the purpose for the tendering provisions of NAFTA and the AGP in construing the language of the

exclusions. The language of the exclusions suggested that they were not intended to apply to any craft

that might conceivably fall within a broad definition of that language but only to a large seagoing

ship built or repaired on procurement of the federal government.

While the narrower definition was that which was embraced by the Court, that still embraced the

criteria for a ship as a ‘large sea-going vessel’, in the sense that it is fit to cross the sea and make

distant voyages as opposed to a coasting, harbour or river vessel.

Further examination of comparative laws offers deeper insight into this study when we consider the

case of Stewart v Dutra Construction17. The facts of this case underpin the meaning in American law

of a Ship, which can be found well-defined under the United States Code:

Title 18:

(e) Definitions.— In this section—

“ship” means a vessel of any type whatsoever not permanently attached to the sea-bed, including

dynamically supported craft, submersibles or any other floating craft, but does not include a warship,

a ship owned or operated by a government when being used as a naval auxiliary or for customs or

police purposes, or a ship which has been withdrawn from navigation or laid up.

Title 47:

(39) Ship

(A) The term “ship” or “vessel” includes every description of watercraft or other artificial

contrivance, except aircraft, used or capable of being used as a means of transportation on water,

whether or not it is actually afloat.

The 2005 case of Stewart v Dutra Construction Company involved a claim under the Jones Act,

originally adopted as the Merchant Marine Act in 1920, and codified on October 6, 2006 as 46 USC

Sec. 30104.Section 688 (a) provides:

Any seaman who shall suffer personal injury in the course of his employment may, at his election,

maintain an action for damages at law, with the right of trial by jury, and in such action all statutes

of the United States modifying or extending the common-law right or remedy in cases of personal

injury to railway employees shall apply; and in case of the death of any seaman as a result of any

such personal injury the personal representative of such seaman may maintain an action for damages

at law with the right of trial by jury, and in such action all statutes of the United States conferring or

regulating the right of action for death in the case of railway employees shall be applicable.

Jurisdiction in such actions shall be under the court of the district in which the defendant employer

resides or in which his principal office is located.

17 Stewart v Dutra Construction Company (03-814) 543 U.S. 481 (2005) 343 F.3d 10

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Dutra Construction had engaged Willard Stewart, a marine engineer, to maintain the mechanical

systems on a dredger, the Super Scoop, working in Boston Harbour. The Super Scoop was described

as a massive floating platform from which a clamshell bucket was suspended beneath the water. The

bucket removed silt from the ocean floor and dumped the sediment onto one of two scows (small

barges) that floated alongside the dredge. The Super Scoop had certain characteristics common to

seagoing vessels, such as a captain and crew, navigational lights, ballast tanks, and a crew dining area,

but had a limited means of self-propulsion, navigating short distances by manipulating its anchors and

cables. Over longer distances it had to be towed.

At the time of Stewart’s accident, the Super Scoop lay idle because one of its scows had suffered an

engine malfunction and the other was at sea. Stewart was working on board the idle scow, perched

beside the hatch, when the Super Scoop used its bucket to move the scow. In the process, the scow

collided with the Super Scoop, causing a jolt that plunged Stewart headfirst through the hatch to the

deck below. He was seriously injured and brought proceedings against Dutra under the Jones Act.

Unfortunately the Jones Act did not define the term ‘Vessel’, but the Judges were able to rely on the

definition contained in Title 18 (above). They developed their rationale clearly, explained in masterly

terms by Cornell Law School:

From the very beginning, these courts understood the differences between dredges and more

traditional seagoing vessels. Though smaller, the dredges at issue in the earliest cases were

essentially the same as the Super Scoop here. For instance, the court could have been speaking

equally of the Super Scoop as of The Alabama18 when it declared:

“The dredge and scows have no means of propulsion of their own except that the dredge, by use of

anchors, windlass, and rope, is moved for short distances, as required in carrying on the business of

dredging. Both the dredge and the scows are moved from place to place where they may be employed

by being towed, and some of the tows have been for long distances and upon the high seas. The

dredge and scows are not made for or adapted to the carriage of freight or passengers, and the

evidence does not show that, in point of fact, this dredge and scows had ever been so used and

employed.19”

In a unanimous opinion delivered by Justice Clarence Thomas, the Court held that a ‘vessel’ included

any watercraft capable of transportation.

18 The Alabama, 19 F. 544, 545 (SD Ala. 1884).19 http://www.law.cornell.edu/supct/html/03-814.ZO.html

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Thomas Emery, Proctor in Admiralty, with American law firm Garan Lucow Miller, may have been

expressing a somewhat critical opinion when he commented20:

In Dutra, the Supreme Court has expanded the definition of a vessel to include pretty much anything

that floats and is ‘capable of transportation’. Jet skis, oil tankers, floating slabs of concrete: if it

floats, it’s probably a boat.

If we cannot identify and apply a common definition, we need not go any further, and the application

of a body of international law breaks down. So let us proceed on the basis that we can reach a

consensus on the definition?

State responsibilities for ships and the tensions that arise

If the autonomous object is a ship, we must now consider the issues that arise between Flag State and

Port / Coastal State. A logical argument can be built on a foundation based chronologically:

1. The ship is a bit of sovereign territory of the flag state.

2. So need to comply with SOLAS, STCW, MARPOL, BWM (MLC not applying) as well as

Art 94 UNCLOS.

3. The prime responsibility for compliance with the requirements laid down in international

maritime conventions lies with the shipowner/operator. But ultimately: responsibility for

ensuring such compliance remains with the Flag State.

4. The Port State will be the ‘safety net’ monitoring compliance.

5. The Port State will carry this out under its sovereign jurisdiction - as long as the vessel is in

its territorial sea.

No better example of the tensions which arise between Port State and Flag State than the case of the

Arctic Sunrise21. In September 2013, officials of the Russian Federation boarded the vessel Arctic

Sunrise, a private vessel registered in the Flag state of the Netherlands. Althoug built as an icebreaker,

it was operated by Greenpeace International, and was present in the Russian Federation’s Exclusive

Economic Zone in order to protest against the operation of the offshore fixed oil

platform Prirazlomnaya. Russian authorities detained the Arctic Sunrise itself and all persons on

board the vessel, initially based on an accusation of piracy. The Flag State promptly commenced the

process for a claim against Russia which it alleged had violated the provisions of the United nations

Convention on the Law of the Sea (UNCLOS).

UNCLOS sets out the defining law with clarity22, and the Court duly delivered its Judgment:

20 Emery, Thomas, Proctor in Admiralty, Garan Lucow Miller, PC, 2008, Great Lakes Seaway Review, Boyne City, Mi

21 ITLOS Case No 22, the Arctic Sunrise, 2015

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By boarding, investigating, inspecting, arresting, detaining, and seizing the Arctic Sunrise without the

prior consent of the Netherlands, and by arresting, detaining, and initiating judicial proceedings

against the Arctic 30, the Russian Federation breached obligations owed by it to the Netherlands as

the flag State under Articles 56(2), 58(1), 58(2), 87(1)(a), and 92(1) of the Convention.

In truth, the decision turned out to be somewhat academic, because the Russian Federation denied that

the Court had jurisdiction to interfere in Russia’s sovereignty.

It can be well-understood, therefore, that, once consensus has been reached on the definition of an

autonomous ship which brings it within the jurisdiction of international law, the issue arises as to who

is to be responsible for the vessel when tensions arise. This has traditionally been vested in the

Master; but the Master of an autonomous ship will not be on board, but safely residing in some other

jurisdiction entirely, out of reach of the Port State. So how will we define and apply the rôle of the

Master?

The Master’s Accountability

Under s13 Merchant Shipping Act 1995, the ‘Master’ includes every person (except a pilot) having

command or charge of a ship; qualification is defined under the Merchant Shipping (Training and

Certification) Regulations 1997 and the revocation powers of the Flag State are regulated under s62

Merchant Shipping Act 1995.

In short, the Flag State has accredited the Master to be their representative on their bit of sovereign

jurisdiction, which is the Ship. His, in law, is the ultimate authority for that vessel and he is

responsible to the flag state for compliance with its maritime regulations. There are very good reasons

for the Flag State’s unfettered management control of the Master:

1. The State maintains order, so their appointed Master gives up absolute freedom only to the

Flag State authority

2. The State must itself maintain management control in order to meet its obligations under

UNCLOS towards others, whether in International Waters or the Territorial Seas of other

States.

But then, the State clothes the Master with Absolute Discretion; in the UK this is set out in the

Merchant Shipping (Safety of Navigation) (Amendment) Regulations 201123, which does nothing

more than implement the provisions in SOLAS V Reg 34 – 1, the Safe navigation and avoidance of

dangerous situations:

22 See Appendix 123 2011 No 2978

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The owner, the charterer, the company operating the ship as defined… or any other person shall not

prevent or restrict the master of the ship from taking or executing any decision which, in the master's

professional judgement, is necessary for safety of life at sea and protection of the marine

environment.

It is apparent that the Master’s absolute discretion defines their risk management function24, which

may be defined as the activity which co-ordinates recognition of risk, risk assessment, developing

strategies to manage it, and mitigation of risk using managerial resources.

The objective of risk management is to reduce different risks related to a pre-selected domain to the

level accepted by society through statutory authority of common law precedents. We can take some

key issues of the Master’s responsibility and apply them in the context of the operation of the

autonomous ship in another State’s jurisdiction:

The Master’s responsibility for the seaworthiness of the vessel arises at the time of her

sailing; so if the Master is not on board, how will they manage this obligation when pressed

by the Port State?

S98 Merchant Shipping Act 1995 imposes criminal liability for a dangerously unsafe ship;

how will they discharge this responsibility if they cannot undertake a full inspection on the

spot for which they must be accountable in a prosecution?

The Pilotage Age 1987 raises particular concerns, in particular the provisions of s15; how will

the Master remain in command of the ship simply by monitoring its progress, for example by

communicating with the Port’s radar as well as by theirs? Effectively, will the pilot have

command of the vessel as well as the existing control of its navigation: If so, the Master as

Flag state representative and Owner’s representative loses absolute discretion. In the context

of the Master-Pilotage relationship, which has repeatedly been highlighted as a major issue in

cases of the navigation of conventional ships in compulsory pilotage areas, this will be a

particularly complex problem both as to management control and as to communication

between the Master and the Pilot and the Master and the Pilotage Authority.

The International Regulations for Preventing Collisions at Sea 1972 (Colregs) is an essential

tool for defining and applying internationally agreed rules of the road for the prevention of

collision between ships. Rule 5 provides:

Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by

all available means appropriate in the prevailing circumstances and conditions so as to make

a full appraisal of the situation and of the risk of collision.

While the Master of an autonomous ship will have an abundance of electronic wizardry to

assist them, it would be a bold Master who felt satisfied that their responsibility could be 24 Risk may best be defined as the rate of occurrence of an event multiplied by the impact of the event.

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discharged without actually being on the spot with all the essential features demanded by such

spatial awareness.

S58 Merchant Shipping Act 1995, commonly summarised as conduct endangering the safety

of life at sea, applies criminal accountability to a Master who does (or fails to do) any act

anywhere in the world which causes or is likely to cause the loss or destruction of or serious

damage to his ship or its machinery, navigational equipment or safety equipment, or the loss

or destruction of or serious damage to any other ship or any structure, or the death of or

serious injury to any person, and in very serious cases can lead to imprisonment. The criminal

pleading evidence and practice must necessarily be tempered by the Master’s culpability

given their remote position from the ship at the time.

The Flag State will still depend on the Master no matter where the ship is, for the State will

depend on one person, as their representative, to manage the State’s accountability with other

States.

The Master’s responsibility will undoubtedly remain in meeting Port State laws, for there

must be one person to meet accountability in the event of the breach of those laws. This must

include the Master’s criminal accountability for breaches of Port State laws and the Master’s

rôle as senior manager in Corporate Manslaughter cases.

Ultimately it is the Master’s discretion which determines if the Port is safe – it is their

decision which will prevail. Without the benefit of spatial awareness to which they will apply

the information delivered by remote technology, this may prove challenging.

Flag State - Port State issues need to be resolved on the spot, if the vessel is to avoid seizure,

or worse: with no Master on board there is no Flag State representative on the spot with

whom they can interface.

How will Port State interference be governed? The matter of the Arctic Sunrise offers a grim

case study.

How will the Master respond from a remote position if the backups and fallbacks fail and

control is temporarily lost?

How would an autonomous vessel defend itself? The Master’s discretion in the use of lethal

or non-lethal defensive force or response to hacking effectively losing control.

This leads us to the matter of how the Master must exercise their ultimate responsibility for

ISPS.

It is not as if the Owner is without liability in many respects, and the Company shares the risk

management responsibility under the International Safety Management Code, which has been

given the force of law by virtue of its incorporation in SOLAS Chapter IX, while, in the

broader picture, the Master and the Owner shall ensure that a raft of risks are managed, not

the least being

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The condition of the ship, including its structure, machinery and equipment, is maintained to

regulation standards

No material change is made after a survey, except by direct replacement

whenever an accident occurs or a defect is discovered it is reported at the earliest opportunity

to Flag state

S98 Merchant Shipping Act 1995: If a ship which is in a port is dangerously unsafe, then the

Master and the Owner of the ship shall each be guilty of an offence.

What about liability for cargo?

Risk management is as much about the contractual demands of the marine adventure as about the Flag

State responsibility for the vessel. The Shipowner – the Carrier - will be held to the absolute promise

to deliver the cargo in the condition it was in when it crossed the ship’s rail. This underpins the

rationale for the Master’s signature on the Bill of Lading, as the Carrier’s agent, and the Claimant

cargo owner has got the Hague-Visby Rules to back them up, placing an obligation on the Carrier to

meet statutory limitation obligations:

1. to carriage between any ports in different states, provided that the bill of lading is issued in a

state that has ratified the Protocol; and

2. where the contract is governed by UK law and the parties agree that a bill of lading or a non-

negotiable receipt subject to the Rules shall be issued.

How this obligation can be met will be an issue not just for the Owners, but also for the P & I Club

underwriting the cargo risk.

Conclusion

This paper has done nothing more than highlight some of the complexities in law which must be

resolved before the first autonomous ship enters some other State’s jurisdiction. But it is not like such

solutions cannot be found; on the contrary, it is imperative that solutions must be found, for the

advantages of autonomous ships cannot be allowed to wither on the vine.

In this context we should be guided by the wisdom of Professor John Augustus Shedd:

A ship in harbor is safe, but that is not what ships are built for25.

25 Quoted by Shapiro, F, 2006, The Yale Book of Quotations, Yale University Press, New Haven, p705

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APPENDIX 1: RELEVANT PROVISIONS OF UNCLOS IN RELATIONS BETWEEN FLAG

AND PORT STATES

Art 2.1 The sovereignty of a coastal State extends beyond its land territory and internal waters to an

adjacent belt of sea, described as the territorial sea.

Art 3 Every State has the right to establish the breadth of its territorial sea up to a limit not

exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Art 17 Ships of all States enjoy the right of innocent passage through the territorial sea.

Article 24 defines the duties of the coastal State:

1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea

except in accordance with this Convention. In particular, in the application of this Convention or of

any laws or regulations adopted in conformity with this Convention, the coastal State shall not:

(a) impose requirements on foreign ships which have the practical effect of denying or impairing the

right of innocent passage; or

(b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes to,

from or on behalf of any State.

2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has

knowledge, within its territorial sea.

Article 27 defines criminal jurisdiction on board a foreign ship:

1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship

passing through the territorial sea to arrest any person or to conduct any investigation in connection

with any crime committed on board the ship during its passage, save only in the following cases:

(a) if the consequences of the crime extend to the coastal State;

(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

(c) if the assistance of the local authorities has been requested by the master of the ship or by a

diplomatic agent or consular officer of the flag State; or

(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or

psychotropic substances.

2. The above provisions do not affect the right of the coastal State to take any steps authorized by its

laws for the purpose of an arrest or investigation on board a foreign ship passing through the

territorial sea after leaving internal waters.

3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests,

notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall

facilitate contact between such agent or officer and the ship's crew. In cases of emergency this

notification may be communicated while the measures are being taken.

4. In considering whether or in what manner an arrest should be made, the local authorities shall have

due regard to the interests of navigation.

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5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in

accordance with Part V, the coastal State may not take any steps on board a foreign ship passing

through the territorial sea to arrest any person or to conduct any investigation in connection with any

crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port,

is only passing through the territorial sea without entering internal waters.

Article 28 defines civil jurisdiction in relation to foreign ships:

1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the

purpose of exercising civil jurisdiction in relation to a person on board the ship.

2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil

proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in

the course or for the purpose of its voyage through the waters of the coastal State.

3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to

levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the

territorial sea, or passing through the territorial sea after leaving internal waters.

Art 94 sets out the duties of the flag State:

1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and

social matters over ships flying its flag.

2. In particular every State shall:

(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and

crew in respect of administrative, technical and social matters concerning the ship.

3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea

with regard, inter alia, to:

(a) the construction, equipment and seaworthiness of ships;

(b) the manning of ships, labour conditions and the training of crews, taking into account the

applicable international instruments;

(c) the use of signals, the maintenance of communications and the prevention of collisions.

4. Such measures shall include those necessary to ensure:

(b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in

particular in seamanship, navigation, communications and marine engineering, and that the crew is

appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;

(c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and

required to observe the applicable international regulations concerning the safety of life at sea, the

prevention of collisions, the prevention, reduction and control of marine pollution, and the

maintenance of communications by radio.

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APPENDIX 2: INTERNATIONAL MANAGEMENT CODE FOR THE SAFE OPERATION OF

SHIPS AND FOR POLLUTION PREVENTION (INTERNATIONAL SAFETY MANAGEMENT

(ISM) CODE), revised 1 January 2015

5. MASTER'S RESPONSIBILITY AND AUTHORITY

5.1 The Company should clearly define and document the master's responsibility with

regard to:

.1 implementing the safety and environmental-protection policy of the Company;

.2 motivating the crew in the observation of that policy;

.3 issuing appropriate orders and instructions in a clear and simple manner;

.4 verifying that specified requirements are observed; and

.5 periodically reviewing the SMS and reporting its deficiencies to the shore-based

management.

5.2 The Company should ensure that the SMS operating on board the ship contains a

clear statement emphasizing the master's authority. The Company should establish in

the SMS that the master has the overriding authority and the responsibility to make

decisions with respect to safety and pollution prevention and to request the Company's

assistance as may be necessary

© Simon Daniels, 2018, all rights assigned to Solent University, East Park Terrace, Southampton, Hampshire, SO14 0YN

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