The regulatory framework tackling the rise of unmanned and automated vessels and its limits

Enrico Vergani

BonelliErede, London

enrico.vergani@belex.com  

Prof Andrea La Mattina

BonelliErede, Genoa-Milan

andrea.lamattina@belex.com

Giulia Morelli

BonelliErede, London

giulia.morelli@belex.com

The concept of an autonomous ship was first introduced in the 1980s in the book Ships and Shipping of Tomorrow, in which the author Rolf Schonknecht mentions that in the future captains will perform their duties from an onshore office building and the vessels will be navigated through the use of computers.[1]

Since then, the development of autonomous ships has been substantial and so have the applications of these crewless vessels, ranging from surveying activity and maritime scientific research to military defence.[2]

In the marine scientific research context, unmanned vessels are deployed in a wide range of operations, from routine mapping of the ocean’s floor to the exploration parts of the oceanic environment including underneath the polar ice sheets.[3] In the military context, unmanned vessels are being used (to name a few applications) for surveillance and reconnaissance missions and mine countermeasures. The Royal Navy of the United Kingdom started developing unmanned ships for military purposes in 2016, with Unmanned Warrior – ‘a showcase of autonomous robotic systems that perform a dazzling array of air, surface and sub-surface tasking, from underwater surveying to mine countermeasures’.

Most recently, trials have commenced for the use of unmanned ships in the transportation of cargo.[4] As a recent example, the Yara Birkeland, product of the combined work of Yara and KONGSBERG technology company, is set to be the first fully electric and autonomous container vessel that it set to be put in operation in 2022.[5]

At the European level, the Autoship – Autonomous Shipping Initiative for European Waters (‘Autoship’) project was launched in June 2019 and will last until November this year. The objective of the project is to speed up the transition towards the next generation of autonomous EU ships. With the help of industrial and technological experts in the European maritime sector, the EU has funded the project to build two-self navigating ships as prototypes for a fleet of next-generation, fully autonomous vessels. [6]

This rise in the construction and trials of unmanned ships has therefore increased the need for an adequate regulatory framework to be developed and for an agreed consensus between regulators to be reached.

Unmanned ships, as defined by the CMI International Working Group (CMI IWG), are vessels capable of controlled movement on the sea and inland waters in the absence of onboard crew.[7]

The terminology in relation to these types of vessels varies greatly among practitioners and authors. However, the major distinction that is drawn between these types of vessels is based on the level of automation each one possesses. For example, the International Maritime Organization (IMO) has defined such vessels as Maritime Autonomous Surface Ships (MASS). MASS ships are those which, to a varying degree, can operate independently of human interaction. The IMO has drawn a distinction between vessels that are remotely operated and vessels that are autonomous, and classified MASS based on their level of autonomy. The first degree of automation applies to a ship with automated process and decision support, but with seafarers on board ready to take control in case of need. The second degree of automation applies to a ship controlled remotely from a different location but always with seafarers on board. The third type of automation concerns a remotely controlled ship without any seafarers on board. The fourth degree of automation concerns a fully autonomous ship, whereby the operating system of the ship can make decisions and determine actions by itself.[8]

Similarly, the MASS UK Code of Practice[9] recognises six different levels of autonomy based on the type of control over the vessel, ranging from Operated (Level 1) up to Autonomous (Level 6).[10]

One of the main issues identified by different practitioners and scholars, which is being tackled by the various initiatives discussed below, is the implications that the changing role of the master and the crew onboard ship will have when dealing with autonomous ships,  and therefore how it will affect the legislation and regulations in maritime law.[11] A further issue that has arisen often in discussions concerning unmanned ships is whether these types of vessels (in all their forms) can be categorised as ‘ships’ for the purposes of various treaties and regulations.[12]

In 2017, the CMI IWG sent out a questionnaire to practitioners from various jurisdictions worldwide to appreciate whether the necessary regulations were in place for the time when unmanned ships became a technical reality. The questions posed involved whether remotely operated or autonomous ships and the implications that would flow from them (ie, no crew onboard) would fall under the definition of ships.

Regulators and legislators worldwide have accepted the need to unify and develop new or amend existing maritime legislation and treaties to make space for the advent of these new technological vessels. Below, we have identified the most recent developments at international level, by the IMO and the EU and at national level by the UK.

The IMO’s Strategic Plan

The IMO’s Strategic Plan for 2018-2023 includes a key strategic decision to ‘[i]ntegrate new and advancing technologies in the regulatory framework.’[13]

To further this decision, at its 103rd session in May 2021, the IMO completed a regulatory scoping exercise and analysed the relevant ship safety treaties in order to assess how MASS could be regulated.

The scoping exercise carried out by IMO consisted in analysing a significant number of IMO treaty instruments[14] and assessing whether or not the instruments applied to MASS operations, and in each case, whether they prevented MASS operations and whether any amendments or clarifications of the treaties were necessary.

The outcomes of the scoping exercise evidenced several high-priority issues affecting many of the instruments that were analysed, which needed to be addressed at the policy level.

The first issue that required further action was the need to develop a unified definition of MASS and related terminology such as ‘master’ and ‘crew’.

Moreover, other matters that were considered high priority related to provisions contained in legislation about manual operations and alarms on the bridge, provisions related to actions onboard that would usually be carried out by personnel and on information that would be required on board to carry out safe operations.[15]

Although the consultation has been a useful first step by the IMO to tackle pending issues in relation to the full applicability and recognition of unmanned vessels in international treaties, it will still be several years before an IMO instrument is put in place, and realistically not before 2028.[16]

United Kingdom

The United Kingdom took a similar approach to the one taken by the IMO and in September last year, the Department for Transport published the Future of transport regulatory consultation: Maritime autonomy and remote operations.[17] The main scope of the consultation was to verify whether the existing UK laws in the maritime sector sufficiently dealt with the security of operations involving unmanned and automated ships.

 The four main proposals that were included in the consultation sought to address several issues and clarify several aspects of the Merchant Shipping Act 1995.

First, and analogously to the findings of the IMO scoping exercise, they identified the need to determine key definitions and roles in the operation of autonomous and automated vessels in primary and secondary legislation, including the identification of an entity or person that should be responsible for the operations, or in the event of emergency or accident. To refer to the automated and remotely operated vessels, they proposed to adopt the definition of MASS used by the IMO. They also proposed definitions for a ‘MASS Master’, ‘Remote Operator’ and ‘Remote Operations Centre’.

The other three proposals focused on the regulation of MASS vehicles and Remote Operations Centres, and on the powers to be granted to the Maritime Coastguard Agency to regulate these also in terms of health, safety, security and environmental aspects.

The way in which the Department of Transport proposed to implement its changes was either by amending the current legal framework, specifically primary legislation, to regulate all MASS operations, or alternatively, in the absence of new legislation, the Maritime Coastguard Agency would continue to use the exemption available through the Merchant Shipping (Load Line) Regulations 1998, allowing autonomous shipping to operate within the UK waters and under the UK flag. If the second option were to be elected, MASS would nevertheless still need to comply with all other applicable Regulations, and the Workboat Code – the code of practice for small workboats in commercial use to sea and all pilot boats – would be updated to include remotely operated surface vessels less than 24 metres long. Further, if the second option were to be elected, the government would also wait for updates at the IMO level to guarantee a consistent approach to MASS at both domestic and international level.[18]

The consultation ran from 28 September to 22 November last year, and at present the feedback received is still being analysed by the government.

In November last year, Maritime UK published the fifth version of the MASS UK Code of Practice,[19] whose aim is to give guidance as to design, construction and safe operation of autonomous and semi-autonomous MASS of primarily less than 24 metres in length. However, the more detailed regulatory framework is and will be developed under the Merchant Shipping Act 1995, as discussed.

European Union

At the European level, the Autoship project has been launched as discussed, and in addition to the technical approach of the project of building two autonomous vessel prototypes), the aim of the project includes defining a regulatory framework for these new state-of-the-art vessels and bringing it forward with direct interaction with relevant authorities (including the IMO).

Further, in October 2020, the EU published its first version of EU Operational Guidelines for Safe, Secure and Sustainable Trials of Maritime Autonomous Surface Ships (MASS), which built and tried to complement the Interim Guidelines on MASS development published by the IMO in June 2019.

Most recently, on 5 April this year, the Third International Ship Autonomy and Sustainability Summit was held in cooperation with the EU Commission. This year’s theme was ‘Autonomous ships enabling new, smart and sustainable business models’, and the participants and experts addressed how countries and regions deal and will be dealing with both national and international developments for autonomous shipping. At the first panel of the summit the chair of the IMO Regulatory Scoping Exercise participated and outlined what the IMO’s steps will be going forward in relation to MASS.

Further, transport authorities from the UK and Belgium discussed their national approach to MASS and how they are planning to develop regulation and testing mechanisms for the new vessels.

In addition, the Principal Administrator of the Directorate-General for Mobility and Transport of the European Commission addressed the possibilities of having common regulations in relation to MASS and the EU’s cooperation with other authorities to develop applicable regulations for MASS.

In conclusion, the developments of these new technological vessels are already in operation and fast developing. A lot is being done both at national and international level to prepare an adequate landscape for the arrival of autonomous and remotely operated ships. However, it appears that, based on the initial scoping exercises and consultations carried out, the existing regulations and legislative frameworks are not sufficient to properly regulate these new ships, and a comprehensive and unified set of laws and regulations will be necessary soon.