For many of us, autonomous ships belong to a more or less distant vision of the future. However, considering present trends, it may soon become our daily reality. I think that this issue has become so current today that legal implications of introducing autonomous (crewless) ships in international shipping should be taken into consideration. A technical aspect of such vessels is already highly advanced. In the near future, tests of such ships will begin, followed by their operation in international shipping. It is worth remembering that neglecting a legal aspect in this area may become one of fundamental obstacles in the introduction of this new technology.
In this publication I will present several essential matters that should be analysed, developed and regulated by the Polish legislator as soon as possible. Otherwise, instead of gaining potential benefits from the appearance of autonomous ships, Poland will stay far behind and be marginalised.
What is ahead of us?
It is difficult to determine an exact date of allowing autonomous ships in merchant shipping, but one thing remains certain – this is a rather unavoidable direction, because most analyses indicate numerous benefits that arise from the implementation of such vessels. A great number of different institutions and businesses have developed their own ‘implementation plans’, but the one I would like to refer to consists of sea-going ship autonomisation levels according to Rolls-Royce:
• ‘0’ Level – no autonomisation, a supporting-monitoring system.
• 1st Level – partial autonomisation, if necessary optional remote control of a ship by a qualified operator.
• 2nd Level – autonomisation and partially remote control of a ship in ‘burdened zones’.
• 3rd Level – autonomous control and decision-taking, with the supervision by an operator.
• 4th Level – all tasks involved in steering a ship are carried out fully by an autonomous system.
The above-mentioned gradation of ship autonomisation should become a type of ‘roadmap’ for the Polish legislator, who in my opinion has little time for introducing relevant amendments to law. I believe that an option of creating a flexible legal system in Poland should be taken into consideration, which would encourage future owners of autonomous ships with different types of modern legal structures. I would even recommend creating the first in the world register of autonomous ships, which could counterbalance the marginal shipping register of the Polish flag, which will certainly not be ‘reactivated’ in the coming years.
It is worth remembering that first autonomous ships will start operating in Europe within the next several or dozen months (as a part of a testing phase at present). As of today, one can honestly speak about legal vacuum in Europe as regards legal regulations in this area.
Main obstacles to the implementation of autonomous ships
As of today, I get the impression that in numerous circles and organizations the issue of autonomous ships is treated as rather distant future. However, due to the Covid-19 pandemics, it may become reality very soon. It is worth mentioning that Royce-Rolls has assumed that the 4th level of ship autonomisation, i.e. all tasks involved in managing a vessel will be carried out fully by an autonomous system, is to be implemented until 2029. Certainly, considering the several-year tolerance for the implementation of this plan, it can be easily assumed that we will face more or less autonomous ships in the 2030s. An obvious question has to be asked how many such ships will be operated in international shipping. Incidentally, it is worth noting that in the next several or more years the objective is, according to plans, that about 200 small fully autonomous container ships will navigate in the Baltic Sea. It is also worth mentioning that the technology under discussion is already operating and is at the phase of very advanced tests.
I think that we may presently speak about two main obstacles to the implementation of crewless ships on a bigger scale:
1) a social-employment aspect – a large group of seafarers and people from the maritime business will lose their jobs as a result of implementing crewless ships; and
2) a legal aspect – the new technology requires in-depth regulation, which may pose a major challenge to IMO (International Maritime Organisation) and domestic legislators.
Numerous analyses already point out that crewless ships will be cheaper, safer and greener. Unfortunately, most of such analyses completely overlook the seafarers’ community, for whom a suitable alternative on the labour market should be created. It is surely hard to imagine today that the job of a seafarer will disappear completely, but it is obvious that the appearance of crewless ships may reduce the labour market for seamen significantly.
In my opinion, as of today one of the main tasks for trade unions of seafarers and ILO (International Labour Organisation) is to carry out relevant analyses and to implement legal models and programmes aimed at the retraining of seamen, which should lead to the much more constructive regulation of the seaman’s profession in correlation with the gradual implementation of the autonomous ship technology.
As I have indicated above, the implementation of relevant programmes should be considered urgently, aimed at the retraining of seamen who may potentially lose their jobs as a result of achieving the 3rd or 4th levels of vessel autonomisation. Naturally, the above-mentioned technology may lead to the appearance of many new jobs or positions in businesses that operate autonomous ships. As a consequence, such positions might be manned first of all by seamen who have lost their jobs, but have undergone relevant training in new tasks.
A legal aspect will be discussed more thoroughly hereinafter, but one essential issue has to be noted already here. In order to create good law, one has to be aware of the subject matter that is to be regulated. Therefore, without creating a multi-disciplinary forum of cooperation, for example a commission or a working group (consisting of lawyers, engineers, ethicists, ship-owners, classifiers, maritime administration, trade unions, etc.), which will start to work on new regulations, we will either be left without any regulation at all or with a useless defective law, which will certainly block the implementation of the discussed technology in Poland or will lead to the generation of numerous legal risks for its recipients. As I have mentioned many a time before, we will soon see a ‘technological leap’ and if we fail to take the same ‘leap’ in the area of legislation, it may turn out that Poland will be to a large extent excluded from the possibility of operating autonomous ships.
Legal status of an autonomous ship
Before we start to discuss detailed regulations concerning autonomous ships, it is worth considering how autonomous ships are to be qualified legally at all. In this context, there are two available ways:
1) a ship as a movable object, and
2) a ship as an electronic person.
Incidentally, it is worth noting that the Polish legal system is not adapted at all to the appearance of semi-autonomous ships, what to speak of fully autonomous vessels. At present, neither the Polish Civil Code nor the Polish Maritime Code provide for regulations in this respect. What is more, the problem may be the status of an autonomous ship operator, which in fact will be a quasi-master of a vessel.
It is also worth remembering that until the introduction of relevant legal solutions that will reflect the spirit of times, the responsibility of a ship-owner for potential loss caused in the course of navigating autonomous ships will most probably be based on the principle that stems from art. 435 of the Civil Code, that is liability based on the risk of entrepreneurs.
Ship as a movable object – If the Polish legislator assumes that an autonomous ship is a thing, different patterns of regulation may be taken into consideration, which may be useful in this respect. The main problem to be regulated will be the question of self-dependence and self-decision-making of an autonomous ship, which, during the first phase, will be based on a specific algorithm, reactions of an operator and, finally, on different ‘experiences’ of an autonomous ship herself, which will ‘learn’ how to operate in specific bodies of water. Several ideas emerge in this respect. On the one hand, a concept can be assumed, at least to a certain extent, of responsibility as in the case of responsibility of an owner for animals; however, on the other hand, it has to be kept in mind that the level of interference of an owner or user of an autonomous ship in the algorithm of a vessel will go much beyond animal training.
Perhaps one should refer to legal regulations that concern genetic tests on humans or limitations within the interference in the human genotype? On a theoretical level this idea does not seem to be bad, but unfortunately Poland has not developed yet suitable regulations related to the principles of conducting genetic tests, storage of DNA material or security of genetic data, which does not bode well for fast and comprehensive regulations in the area of autonomous ships.
Ship as an electronic person – As I have indicated before in a publication concerning autonomous port facilities, the European Commission does not exclude that exceptionally advanced machines may become ‘electronic persons’ in the future, which would be granted personality by law.
For many this vision comes straight from science fiction novels, but should we really treat it in such categories? Just to remind you, in 2017 Japan granted the right of permanent residence in Tokyo to artificial intelligence named Mirai, which was created in the likeness of a 7-year-old boy and has no artificial body. Sophia created by Hanson Robotics is a different case, as she received the citizenship of Saudi Arabia. Considering the status of women in that country, it aroused major controversies. On the other hand, a robot named Fran Pepper was registered in the civil registry office in Belgium in 2017.
Granting ‘electronic personality’ is postulated first of all by manufacturers of robots, as it releases them from the liability for actions of robots and for damage caused or even crimes committed by them. This approach, however, excites growing controversies, both of legal and ethical nature.
On the other hand, in the maritime sector ship-owners who want to limit their liability for damage that is caused as a result of operating a vessel they manage, in great many cases create so-called one-ship companies. In fact these are special purpose vehicles, whose sole and main task is to ‘manage a ship’ as a daughter company, thus minimising the risk for a parent company and incurring liability, which is assumed to give legal protection to a parent company.
A question arises, what if the lobby that intends to introduce such regulations on the status of autonomous vessels enforces the solution in which such ships obtain legal personality? What does it mean in practice? A ship-owner will be able to execute a contract with a robot (a crewless ship) for a specific service, for example carriage of goods from point A to point B, just like with any other entrepreneur. In this situation, an autonomous ship, being an electronic person, will have to render the service at her risk and take on liability in case of default on the service. In addition, such a ship will certainly collect consideration due for the rendered service. An autonomous ship will have to undergo an inspection just as a ship-owner and insure herself. What is more, the ship will, as a party, be obliged to account for with service providers (perhaps via ‘live’ agents or through the agency of other robots?).
Status of an autonomous ship operator
As a reminder – a master of a ship pursuant to the Maritime Code is a person who manages a ship and performs other functions specified in regulations (art. 53(1)). There is no doubt that in the event of autonomous ships (minimum 3rd level according to Royce-Rolls), a person who moves a ship using an ITC system (or a similar system) will in fact manage her directly; therefore, considering the present level of regulations, legally the person should be qualified as a master (in fact in all legal systems).
On the other hand, an operator will not be capable of fulfilling a number of functions that are typical for a master, for example, the necessity to secure evidence of committing a prohibited act that takes place on-board an autonomous ship or as a result of her action or omission and the possibility of their performance by a ship ‘operator’. What is more, some of the duties fulfilled by a master are completely impossible, despite the potentially best intentions of an operator, for example: ‘A master cannot leave a ship that is at sea, except for her stop at the roadstead or anchorage or that is exposed to any peril, unless absolutely necessary’ (art. 58 Maritime Code).
Another issue that requires an in-depth analysis, not to mention the issue of obtaining qualifications necessary to pilot an autonomous ship, is if one can at all imagine a situation where a ship operator is not at the same time a master of ‘traditional’ shipping? What experience in traditional navigation should such an operator have?
Another question that needs to be thought over: ‘A master of a ship may object to a ship-owner about the composition and professional qualifications of persons who are entered into the list of crew’ (art. 55 Maritime Code). Will an autonomous ship from the 3rd level on have a list of crew at all? What will a safety card of such a vessel look like?
A person who is not a master in the traditional meaning of this word will certainly not have qualifications to assess risks at sea. In the context of qualifications it is also worth remembering that a drone operator does not need to have a pilot licence. Drone operators that are used for commercial purposes may obtain a qualification certificate issued by the Civil Aviation Authority in Poland. Will a new category of qualifications be created also for operators of ships, which will enable to pilot them, and who will be eligible for such qualifications (who will confer them)?
Will an operator of a crewless ship, just like a master, be obliged to provide aid at sea? This duty is included, among other, in provisions of art. 10(1) of the International Convention on Salvage, IMO 1989 ‘Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea.’
Several questions arise in the context of this issue, which require a prompt answer and legal regulations: Will an operator of a ship or a person who supervises her movement have this duty (let us not forget about the final purpose of autonomisation, i.e. ships that are fully autonomous), just like a master? Can an operator render any aid at all other than only through signalling/notifying about another noticed vessel/persons in need at sea? Will a master of a traditional ship have an obligation to render assistance to a fully autonomous ship, as she will have no crew, so there will be no lives to be rescued (to what extent will the custom of ‘sea rescue’ be translated to rescuing property of third parties, located on autonomous ships). What if an autonomous ship in this situation is an electronic person?
Polish register of autonomous ships
A wide-ranging discussion has recently broken out on the ‘reactivation of Polish flag’. In my opinion, this issue is much closer to science fiction stories than the appearance of autonomous vessels in international shipping, which will need a ‘friendly’ legal environment for themselves, for ship-owners, operators, etc.
The Polish lawmaker should perhaps completely change his narration and consider the establishment of a modern register of autonomous ships, which would become a ‘flag of convenience’ for automated (crewless) ships. In this situation, issues of personnel burdens, which largely block the regulation of the Polish flag register, would simply disappear.
Creating a structure in which the system of certification, inspection and insurance of such ships would be cheap and efficient, may prove a good way for Poland, which at present, despite its access to the sea, has a marginal importance as a register.
Summing up, in my opinion, the issue of autonomous ships will become a reality for the maritime sector much faster than it seems for many people at present. As usual in the case of new technologies, an essential element that hinders the development is the lack of awareness of the actual level of technology and the far-reaching implications, which may result from its implementation.
I think it is high time to create a forum that would enable the open dialogue in this respect, which will make it possible to create, as far as possible, modern, up-to-date and safe law for entities that use, either directly or indirectly, autonomous ships, regardless of the level of their automation.
Legal Counsel Mateusz Romowicz