Autonomous ships in unchartered waters

Introduction
A changing risk picture
Ghost ships without liability?
Norway's competitive advantage


Introduction

Unmanned ships are on the horizon and the Norwegian maritime sector is uniquely positioned to take a leading role internationally in the development and commercialisation of this technology. Autonomous shipping may be Norway's maritime equivalent of Project Apollo, but is the legal framework keeping pace?

Norway is already a world leader in maritime autonomy (ie, technology that allows a vessel to sail by itself, independent of human interaction). The world's first fully electric and autonomous containership, the Yara Birkeland, is currently under construction. When in service, it is expected to replace more than 40,000 annual truck journeys between Herøya, Brevik and Larvik.

ASKO, Norway's largest grocery wholesaler, is planning two autonomous and electric sea drones that will carry goods across the Oslo fjord, saving 2 million truck kilometres per year. Recently, it was announced that Enova, a Norwegian state enterprise responsible for the environmentally friendly production and consumption of energy, had pledged Nkr119 million in support of the project.

These are just a couple of the projects that show how the Norwegian maritime industry is evolving and embracing eco-friendly transportation. 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 compared with conventional ships and road transportation.

A changing risk picture

Autonomous ships will also change the risk picture. Today, most maritime casualties are caused by human error. The introduction of autonomous ships is expected to reduce the risk of mishaps and accidents. To prevent such incidents, autonomous ships will be equipped with radar, GPS, infrared cameras and other sensors, in addition to systems determining course and speed. That does not mean that accidents involving autonomous ships will not occur. New risk factors emerge, such as technological failures and inadequacies, cyber threats and hacker attacks.

The changing risk picture will unquestionably affect all existing market players – shipowners, charterers, banks, insurers and others – in addition to new parties, such as the suppliers of autonomous systems and the onshore operators controlling or supervising vessels.

Although amendments would have to be made, it has been assumed that cover under existing maritime insurances may be extended to autonomous vessels. For insurers, the greatest challenge will probably be to understand and price the risk correctly. While hull and machinery cover is manageable, protection and indemnity insurance cover poses particular challenges. However, insurers are meeting these challenges. Gard is reported to provide cover for the Yara Birkeland and the Shipowners' Club provides an all-risks type liability policy for autonomous vessels.

Ghost 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 part of the shipowner will, in Norway, 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 such culpability? Will a weakness in the navigational algorithm constitute a relevant fault? What about an incorrect decision from an autonomous and artificially intelligent system? It may also be questioned whether shipowners will be held liable for errors made by suppliers of autonomous systems or operators in on-shore control centres.

The rules of the sea set out a number of navigational requirements to avoid collisions. Some of these may be met by pre-programmed algorithms. But will an autonomous system be able to observe good seamanship when faced with an unforeseen situation?

Clarifications are needed – and as is often the case – the law is not keeping up with technology.

Norway's competitive advantage

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, which have expressed a wish to contribute so that Norway leads the way internationally on unmanned vessels. However, for international autonomous trade, transnational regulation is required – and the European Union and the International Maritime Organisation will play a deceive role.

In 2018, the International Maritime Organisation began looking into the need to make amendments to the international legal framework to facilitate autonomous shipping, among other things, with respect to maritime safety, manning and operations. The work is expected to take years. Meanwhile, the positive attitude of Norwegian maritime authorities constitutes an obvious competitive advantage for the Norwegian maritime industry. The industry has grabbed the opportunities created with both hands. Now it is just a matter of staying the course.

For further information on this topic please contact Herman Steen or Sindre Slettevold at Wikborg Rein by telephone (+47 22 82 75 00) or email (hst@wr.no or sis@wr.no​). The Wikborg Rein website can be accessed at www.wr.no.