Artificial Intelligence and Autonomous Shipping

Developing the International Legal Framework

Baris Soyer, Andrew Tettenborn, Baris Soyer, Andrew Tettenborn

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509933372
• Edition: 1
• Topic: Jura
• Subtopic: Seerecht

This collection of essays critically evaluates the legal framework necessary for the use of autonomous ships in international waters. The work is divided into three parts: Part 1 evaluates how far national shipping regulation, and the public international law background that lies behind it, may need modification and updating to accommodate the use of autonomous ships on international voyages. Part 2 deals with private law and insurance issues such as collision and pollution liability, salvage, limitation of liability and allocation of risk between carrier and cargo interests. Part 3 analyses international convention regimes dealing with maritime safety and other matters, arguing for specific changes in the existing conventions such as SOLAS and MARPOL, which would provide the international framework that is necessary for putting autonomous ships into commercial use. The book also takes the view that amendment of international conventions is important in the case of liability issues, arguing that leaving such matters to national law, particularly issues concerning product liability, could not only restrict or hinder the availability of liability insurance but also hamper the development of technology in this field. Written by internationally-known experts in their respective areas, the book offers a holistic approach to the debate on autonomous ships and makes a timely and important contribution to the literature.

PART I

MASS in the Context of the Existing Legal Framework

1

International Regulation of Shipping and Unmanned Vessels

PROFESSORS SIMON BAUGHEN* AND ANDREW TETTENBORN**

I.Introduction

International regulation of vessels as regards safety, navigation and other matters is primarily achieved through a UN organisation, the International Maritime Organization (IMO), established in 1958 by the Convention on the International Maritime Organization.¹ Its purposes, as mentioned in Article 1(a) of the Convention, are ‘to provide machinery for cooperation among governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships’. Today, its primary roles are to promote safe, secure, environmentally sound, efficient and sustainable shipping through cooperation.

The IMO has developed a variety of conventions regulating aspects of international shipping, which are then transposed into national law by state parties to those conventions. Its conventions are subscribed to by 90 per cent of states, representing about 99 per cent of world tonnage. The IMO’s principal regulatory conventions comprise eight instruments, most of which are periodically amended:

–The International Convention for the Safety of Life at Sea of 1974 (SOLAS), an instrument that also gives legal force to the International Ship and Port Facility Security Code (ISPS), the International Safety Management Code (ISM), and the Polar Code.

–The International Convention for the Prevention of Pollution from Ships of 1973, as modified by Protocols of 1978 and 1997 (MARPOL).

–The International Convention on Oil Pollution Preparedness, Response and Co-operation of 1969 (OPRC) 1969.

–The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers of 1978 as amended in 1995 and 2010 (STCW).

–The Convention on Facilitation of International Maritime Traffic of 1965 (FAL).

–The International Convention on Maritime Search and Rescue of 1979 (SAR).

–The Convention on the International Regulations for Preventing Collisions at Sea of 1972 (COLREG).

–The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1988, amended by the 2005 Protocol (SUA).

There are also various IMO civil liability conventions (notably the 1969 and 1992 CLC and the 1992 Fund Conventions, the 2001 Bunker Oil Pollution Convention, and the 2007 Nairobi Wreck Removal Convention), and also the International Labour Organisation’s Maritime Labour Convention of 2006.

A.Degrees of Automation

The IMO is currently assessing its existing instruments to see how they might apply to ships with varying degrees of automation, through a regulatory scoping exercise on Maritime Autonomous Surface Ships (MASS). The degrees of autonomy identified for the purpose of the scoping exercise are:

MASS 1: Ship with automated processes and decision support, with seafarers on board to operate and control shipboard systems and functions. Some operations may be automated and at times be unsupervised but with seafarers on board ready to take control.

MASS 2: Remotely controlled ship with seafarers on board, but controlled and operated from another location. The seafarers on board are there to take control if necessary, and to operate the shipboard systems and functions.

MASS 3: Remotely controlled ship without seafarers on board, the vessel being entirely controlled and operated from another location.

MASS 4: Fully autonomous ship, whose operating system is able to make decisions and determine actions by itself.

The key factor differentiating MASS 3 and MASS 4 on this scheme would be the level of operational control exercised by human shore-based controllers.

It is worth noting that other more detailed scales of autonomous operation exist. There is Sheridan’s 10-point scale from 1992,² running as follows:

1.The computer offers no assistance, human must do it all. (This would equate to MASS 1.)

2.The computer offers a complete set of action alternatives, and/or

3.narrows the selection down to a few, or

4.suggests one, and

5.executes that suggestion if the human approves, or

6.allows the human a restricted time to veto before automatic execution.

(These levels (2)–(6) would fall within the scope of MASS 2–3, depending on whether there was any human being on board the vessel.)

7.The computer executes automatically, then necessarily informs the human, or

8.the computer informs the human after execution only if asked.
(These are on the border between MASS 3 and 4.)

9.The computer informs human after execution if it, the computer, decides to do so, or

10.The computer decides everything and acts autonomously, ignoring the human.

(These last categories are roughly equivalent to MASS 4.)

There is alternatively a six-point scale set out in the 2017 of the Danish Maritime Law Association, itself adapted from Lloyd’s Register. In summary the points can be described thus:

AL0: Manual controlled. Navigation controls or waypoints for course are handled manually. The operator is on board or controls the vessel remotely through radio link. This would seem to be MASS 2, though issues are raised as to how many operators should be on board for a long voyage, and will necessitate examination of, inter alia, the requirements in the MLC requirements and the STCW.

The next levels, described below, see a move to MASS 3 with diminishing navigational input by the onshore operator.

AL 1: Decision support on board. Automatic navigation is possible according to set references and schedule. Course and speed are measured by onboard sensors. The operator sets course as waypoints and determines desired speed. The operator monitors and changes course and speed if necessary.

AL 2: Decision support on board or from shore. Course navigation is achieved through a sequence of waypoints, and the course calculated according to a planned schedule. An external system can upload a new schedule. The operator monitors operation and surroundings, and can change course and speed if needed. Suggestions for interventions may be provided by algorithms.

AL 3: Execution by operator on board who monitors and authorises actions. The system recommends navigational actions on the basis of sensor information from the ship and its surroundings. The operator monitors the system’s functions and actions, and authorises actions before they are carried out.

AL 4: Execution by operator who monitors and is able to intervene. Decisions on navigation and operational actions are calculated by the system that executes them on the basis of its calculations following approval from the operator. The operator monitors the system’s actions, and takes correctional actions as needed. Monitoring may take place from shore.

The next level starts to look like borderline MASS 3–4.

AL 5: Monitored autonomy. Overall decisions regarding navigation and operation are made by the system, which also assesses consequences and risks. Sensors capture relevant information about the surrounding circumstances; the system interprets it, calculates its actions and executes them automatically. The operator is however alerted unless the system is very certain of its interpretation of the surroundings, its own state and of the following calculated actions. Furthermore, general goals are determined by the operator. Monitoring may take place from shore.

Finally there is AL6, equivalent to MASS 4 save that there is a still a human in the navigational process on shore, subject to referral by the system. At MASS 4 one cannot sensibly speak of any person being ‘in command’ of the vessel.

AL 6: Full autonomy. Overall decisions regarding navigation and operation are made by the system, which also assessws consequences and risks. The system acts on the basis of analysis and calculations of both own actions and any responses to them; moreover, knowledge of past and hypothetical situations is continuously factored in via machine learning. The system makes its own decisions and actions, calculating own capability and predicting the behaviour of surrounding traffic. The operator is alerted in the event that the system fails to determine what to do. General goals may be determined by the system. Any monitoring is from shore.

B.The Approach of the CMI and this Chapter

A recent spreadsheet submitted by the Comite Maritime International (CMI) to the IMO identifies numerous convention provisions which, according to its researches, presuppose or indeed require the existence of a master and/or a crew of some sort on board the vessel.³ These matters will clearly pose regulatory challenges in respect of vessels at MASS levels 3 and 4. This chapter seeks to build on this and identify the possible amendments required to the existing regulatory structure (or where necessary to identify areas where completely new regulatory work may be necessary).

One point should be noted. This chapter will not be concerned with the definition of a ‘ship’. Instead, we will proceed on the assumption, which we consider justified, that in connection with autonomous vessels, no issue arises over the definition of a ‘ship’ as regards whether a vessel is manned or not. An uncrewed or partly crewed vessel is just as much a ‘ship’ as its fully crewed equivalent would be.⁴

C.The Master and the Crew – A Definitional Issue

Throughout the various regulatory schemes there appear frequent references to the position of the ‘master’ (and sometimes the crew). This has always been based on the assumption, hitherto correct, that every vessel had a master, and that the identification of who fulfilled this role was relatively straightforward. The functions which a master is assumed to perform are several: navigational and command, things connected with cargo handling and carriage, disciplinary, and compliance. However, as soon as we reach autonomy corresponding to the person directly answering to this description at levels MASS 3 and MASS 4 – at least on board the vessel – a question arises: when there is a reference to a ‘master’, need this by definition refer to a person actually aboard? The answer would seem to be: sometimes.

John Cartner’s The International Law of the Shipmaster, which is as good a source as any, defines the master as ‘a natural person who is responsible for a vessel and all things and persons in it and is responsible for enforcing the maritime laws of the flag state’.⁵ This definition does not in terms require him actually to be on board the vessel under his command. Some national legal definitions are to similar effect. In the UK, for example, section 313 of the Merchant Shipping Act 1995 reflects the definition just given: it defines ‘master’ as ‘every person (except a pilot) having command or charge of a ship’. The definition does not require onboard presence and could therefore encompass...