Autonomous vessels and the civil responsibility challenges they represent

In 1620, a ship called the Mayflower set sail from the city of Plymouth, England, carrying 102 pilgrims towards what would become the United States of America. Due to problems with the vessel, the pilgrims had to return to the port of origin twice. After repairing the ship, they continued their journey and, that same year, founded the city of Plymouth on American soil, more precisely in the state of Massachusetts.

Four hundred years later, a new Mayflower sailed from the same port in Plymouth (England) to reenact the maritime adventure. This time, though, the Mayflower featured an unimaginable novelty for English pilgrims: the vessel did not carry any passengers or crew as it sailed autonomously using artificial intelligence, a modern software, and satellite location sensors. Needless to say, the modern Mayflower is not made of wood, but aluminum and does not display a sail like the original, but rather solar-powered batteries.

By a coincidence, like its predecessor, the autonomous Mayflower faced technical issues, although certainly more sophisticated than those that delayed the pilgrims’ journey, but which also forced the vessel to return to England for repairs. Regardless, the departure of an autonomous ship, without any crew or passengers, represents a milestone in the history of navigation, indicating a fast-approaching new era in the maritime industry and the new challenges that come with it.

The development of autonomous ships, which are driven by artificial intelligence, or unmanned vessels, which are those remotely controlled by an operator, is now an unstoppable trend. Norway has been standing out at these initiatives and, at the end of last year, presented to the world a container ship (Yara Birkeland) with an all-electric, unmanned propeller, which navigates through remote monitoring. Although still at an early stage, the experiment shows that, in a not too distant future, the way we understand cargo ships can be completely transformed.

The possibilities for applying the new technology are countless. In the oil industry, unmanned vessels are already being employed in the detection of oil leaks and risky deep waters operations. In the military, as with planes and drones, unmanned and electrically powered ships tend to assume high strategic relevance. The United States, by the way, owns an unmanned military ship, the SeaHunter, which is still at an experimental stage. Finally, artificial intelligence could, in theory, drastically reduce navigation accidents, mostly caused by human error. All this, of course, depends on how fast will the technology advance.

In the legal field, the challenges are also quite relevant and varied. As disclosed in the magazine Portos e Navios (25/3/2020), the creation of a minimum legal framework that provides essential regulations for the operation of autonomous vessels in Brazilian jurisdictional waters is already being discussed. The objective is to avoid unnecessary regulatory barriers to this type of vessel, providing the necessary legal security so that the country can operate these ships in the future.

There is also a “Provisional Regulation for the Operation of Autonomous Vessels”, approved by the Directorate of Ports and Coasts (Ordinance 59/2020, of 02/19/2020). It is interesting to note that the Provisional Regulation applies only to autonomous vessels with a total length of less than or equal to 12 meters that are capable of operating or being operated remotely or autonomously; also noteworthy is that autonomous vessels greater than 12 meters are not authorized to operate in Brazilian jurisdictional waters. Finally, the Maritime Safety Committee of the International Maritime Organization (IMO) has, since 2017, fosters a study group focused on Maritime Autonomous Surface Shipping or MASS, aiming to regulate the interaction between autonomous and traditional vessels.

The aspects that are yet to be regularized are various. The first one is related to companies interested in obtaining authorization to operate these vessels in Brazilian waters. Then, perhaps more relevantly, there are the aspects related to navigation safety. No matter how advanced the technology used on these ships is, it seems impossible to completely rule out the risk of accidents.

Failures in the vessel’s equipment and navigation system, software errors, communication problems or problems with the steering sensors, the relationship with conventional ships, and even cyber attacks, among other possible risks, must be anticipated and properly regulated by responsible bodies. Existing legislation and previously ratified conventions may need to be amended to accommodate the legal treatment of these new situations and risks.

Administrative, civil, criminal, and even environmental responsibilities will all have to be rethought and debated. If ships are controlled remotely or operated using artificial intelligence, the possibility, and effectiveness of administrative, civil, criminal, and environmental liability in the event of an accident must be reconsidered. Similarly, issues relevant to maritime litigation, such as vessel arrests, demurrage, and collisions, among others, will need to be addressed in some way for the operation of an autonomous and/or unmanned ship, if technology permits.

The issue becomes more complex, for example, when investigating who will be the person (individual or legal) responsible for the erratic behavior of a vessel driven by artificial intelligence. After all, the ship’s production and operation chain will necessarily be complex, involving the builder, the shipowner, the software developer, and several other agents. Thus, it will be necessary to evaluate case by case, as well as observe possible legislative developments on the subject.

In this regard, similar to what Europe has done with robotics, there is a discussion about whether insurance companies should provide compensation for damages caused by autonomous ships, which does not necessarily imply the imposition of new mandatory insurance, but rather the adequacy of existing contracts and clauses to also provide solutions to the inherent risks associated with autonomous or unmanned navigation. Similarly, P&I clubs may need to adjust or supplement the terms that govern their members’ relationships.

All these advances represent challenges and uncharted territories for civil liability in general, which follows the emergence and implementation of new technologies.

Source: Migalhas

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https://www.migalhas.com.br/coluna/migalhas-maritimas/358299/os-navios-autonomos-e-os-novos-desafios-da-responsabilidade-civil

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