Autonomous ships in unchartered waters
Unmanned ships are sailing onto the horizon and the Norwegian maritime cluster is uniquely positioned to take a leading role internationally in the development and commercialisation of this new technology. But is the legal framework keeping pace?
Norway is already a world leader in maritime autonomy, i.e. technology that allows a vessel to sail by itself, independent of human interaction. Indeed, the world's first fully electric and autonomous containership, the "Yara Birkeland", is currently under construction for Norwegian fertiliser and chemicals company, Yara International, which, when commissioned and delivered, is expected to replace more than 40,000 annual truck journeys between Herøya, Brevik and Larvik.
ASKO, Norway's largest grocery wholesaler, is also planning two autonomous, electric sea drones that will carry goods across the Oslo fjord, saving 2 000 000 truck-kilometres per year.
With no crew onboard and the human element absent, will a claimant be able to prove culpability?
The potential environmental benefits of both projects is clearly significant, a fact that has been recognised by the Norwegian government, with the Yara and the ASKO projects having received grants of NOK 133.6m (USD 16m) and NOK 119m (USD 14m) respectively from the Norwegian government enterprise, Enova. However, the expected benefits of autonomous ships do not solely relate to the environment and relieving congested roads – with time, the hope is to reduce costs both compared with conventional ships and road transportation.
A changing risk picture
Autonomous ships will however significantly alter the risk picture at sea.
Today, the majority of maritime casualties are caused by human error. The introduction of autonomous ships equipped with radar, GPS, infrared cameras and other sensors, in addition to systems determining correct course and speed, may therefore be expected to reduce the risk of mishaps and accidents caused by human error. However, it is inconceivable that accidents involving autonomous ships will not occur and new risk factors will no doubt emerge, such as technological failures and inadequacies, cyber threats and hacker attacks.
This changing risk picture will unquestionably require action from existing market players – shipowners, charterers, banks, insurers and others – who will need to adapt their practices to the new technology, as well as providing new opportunities for new players, such as suppliers of autonomous systems and onshore operators controlling or monitoring the vessels.
In terms of insurance, although some amendments would of course have to be made, it has been assumed that cover under existing maritime insurances may simply be extended to autonomous vessels. For insurers, the greatest challenge will therefore likely be to understand and price the risk correctly. Insurers are however rising to that challenge and once again, Norway is taking a lead, with Gard already providing insurance cover over "Falco" (the first autonomous ferry, operated by Finnish state-owned ferry operator FinFerries in the testing area south of Turku, Finland) and recently announcing that it will also provide insurance for "Yara Birkeland".
Ships without liability?
A key question is how the current legal framework will fit with the emergence of autonomous ships, not only with respect to technical requirements, but also in terms of liability. If an autonomous vessel is involved in an accident and causes damage to a third party, establishing liability on the part of the shipowner will, as a starting point, be contingent upon the shipowner, or someone acting in the service of the ship, being at fault. With no crew onboard and the human element not present, will a claimant be able to prove culpability? Will a weakness in the navigational algorithm constitute a relevant fault? What about an incorrect decision from an autonomous and artificial intelligence system? It may also be questioned whether the shipowner will be held liable for errors by suppliers of autonomous systems or operators of onshore control centres.
New risk factors emerge, such as technological failures and inadequacies, cyber threats and hacker attacks.
The COLREGS (Convention on the International Regulations for Preventing Collisions at Sea 1972) set out a number of navigational requirements to avoid collisions. Some of these may be pre-programmed in algorithms. But will an autonomous system be able to observe "good seamanship" when faced with an unforeseen situation?
Clarifications are therefore needed in the various regulations and, as is often the case, the law is not keeping up with technology.
In Norway it is already possible to conduct autonomous trials in test areas established by the Norwegian maritime authorities. There is close cooperation between the companies in the Norwegian maritime cluster and the authorities, who have expressed a desire to contribute to Norway leading the way internationally on unmanned vessels.
For international autonomous trade, however, transnational regulation is required – and the European Union and the IMO (International Maritime Organisation) will need to play a decisive role going forward. In this regard, in 2018 the IMO began looking into the need to amend the international legal framework to facilitate autonomous shipping, inter alia with respect to maritime safety, manning and operations, including COLREGS, SOLAS, STCW, SAR etc. The work is expected to take years however. Meanwhile, the positive attitude of Norwegian maritime authorities constitute an obvious competitive advantage for the Norwegian maritime industry – an opportunity which the industry seems to have grabbed with both hands.