By Lewis Brisbois –
In October 2019, San Francisco Marine & Energy Partner David Russo spoke at the BiLog Conference in La Spezia, Italy about the advent of autonomous and highly automated vessels. Beyond the numerous legal and technical issues raised by the advancement of this technology (discussed in this article), it was noted at the conference that this technology was accelerating. It was expected then that an extended Atlantic voyage would happen in 2020. That has now occurred.
In August 2020, the U.K. company Sea-Kit successfully operated its autonomous 12-meter vessel on a 22-day voyage mapping the ocean floor in the North Atlantic. The vessel was operated from the company’s shoreside office. This followed an earlier test crossing of the North Sea.
NYK Line has been on the forefront of this technology, having operated a 70,000-ton autonomous ship for a three-day voyage in September 2019. And earlier this year, it tested a manned but remote-operated tugboat in Tokyo Bay.
Perhaps the best sign of the significance of this developing technology was the U.S. Coast Guard’s recent action on this subject. In August 2020, the Coast Guard issued a public Request for Information to address the numerous issues raised by this technology. The Coast Guard solicited comment on matters including (1) the identification of current statutory or regulatory obstacles to the development and implementation of this technology, (2) recommendations for regulatory changes to advance the technology, (3) the benefits, costs, and risks of the technology, including impacts on the maritime workforce, safety, the environment, and cybersecurity, (4) necessary changes in training, and (5) infrastructure needs.
A variety of entities (e.g., IMO, BIMCO, American Bureau of Shipping) are already developing standards in this arena. How the Coast Guard will regulate this area remains to be seen in the years ahead. Interestingly, the Coast Guard was testing its own unmanned vessel for coastal waters surveillance in Hawaii at the time of this writing.
So, what are some of the legal implications of autonomous vessels? While we understand the concept of an unseaworthy ship with current technology, how will that change with smart ships and autonomous ships? Does every software glitch cause the vessel to be unseaworthy? What new standards will apply to define an unseaworthy ship? With the coming of the autonomous ship, we have to re-ask the questions, “What is the vessel owner’s duty of care? What will it mean to provide a reasonably safe ship when its operation is controlled by computer programs? Who will be considered the captain of the vessel? Will there be persons defined as seamen anymore, when those operating the ship are not exposed to the perils of the sea?” These are some of the questions that the courts and lawyers will have to address in the years ahead.