Autonomous surface ships may need their own IMO MASS Code, explains Rupert Talbot-Garman*
The IMO’s work towards enabling maritime autonomous surface ships (MASS) brings about considerable legal challenges and issues for the industry.
Autonomous shipping technology is already in place, but the lack of a clear long-term approach has been the main obstacle to the use of MASS. There are many potential hurdles ahead.
There is concern about uncrewed ships being driven by uncontrolled artificial intelligence. There are possibilities of technical errors and hacker attacks or owners dodging their legal responsibility and proper maintenance.
If these are overcome, the process of implementing MASS requires advancing through multiple steps, including regulation changes.
Working groups are due to report back to IMO’s Sub-committee on Navigation, Communications and Search and Rescue (NCSR) in April as part of a roadmap to changing regulations for MASS trials and future adoption.
They need to consider legal frameworks for when autonomous ships co-exist with traditional vessels, whether there is separation in exclusive zones from traditional vessels and when eventually there is prominence of MASS.
Those involved in MASS innovation are concerned about how unmanned ships will be dealt with by SOLAS, Marpol, collision regulations (COLREGS) and Standards of Training Certification and Watchkeeping (STCW).
IMO has undertaken a regulatory scoping exercise over the last two years to identify the extent to which the regulatory framework may need to be amended to enable the safe operation of automated vessels. The size of the challenge faced becomes apparent when glancing at a few elements of the regulatory framework that concern the human element, traditionally relied upon to ensure the seaworthiness of a vessel.
These being SOLAS Chapter V, Regulation 5 – “all ships must be sufficiently and efficiently manned”; United Nations Law of the Sea Convention, Article 94 – “each ship must be in the charge of a master possessing appropriate qualifications in seamanship, navigation, communications and marine engineering”; and ISM Code, Article 6.2 – “shipowners must ensure each ship is manned with qualified, certificated and medically fit seafarers”.
In principle, an unmanned vessel can legally be described as a ship. However, SOLAS Regulation 14 Chapter V, COLREGS Rules 2 and 5, and STCW Chapter 8 all pose certain problems in the context of MASS, particularly fully autonomous MASS.
COLREGS require “contemporaneous human sentience”, although this does not necessarily entail a person being physically on board.
Moreover, COLREGS specifically require the ability to step outside the letter of the law if the master feels that to do so would prevent an accident – a requirement currently beyond the capability of the algorithms in fully autonomous MASS.
It could also be claimed the STCW Convention does not apply in the case of MASS with no seafarers on board, as its wording consistently refers to people being on board.
It is likely remotely controlled MASS will work within the current internationally accepted standards and regulations.
However, in relation to fully autonomous MASS, where there is no human mind ready to take over in real time, the dawning age of MASS necessitates a broad alteration of the current regulatory framework.
In the short term a holistic, flexible, risk-based approach to regulation is required, with regulators not being a barrier to innovation. And there is a need for guidelines rather than hard and fast rules.
In the longer term, there is a need to amend the existing legal framework. This may well require the creation of a new MASS Code to deal with the novel concepts involved in MASS. For example, what is seaworthiness in relation to a MASS? How will liability flow if there is an incident? What was the MASS’s decision-making process at the time? Should the size of the MASS matter in relation to its regulation? Should liability be based on product liability rather than strict liability?
There will be no MASS Code or similar before 2030. However, BIMCO is already working on a MASS management contract to facilitate integration into the existing framework. There are many issues yet to be determined.
Rupert Talbot-Garman is a London-based maritime and commercial arbitrator and mediator