Autonomy by Sea: Navigating International Waters

Such keen interest is not surprising as 80% of global trade by volume is transported by sea, including $2.9 trillion in U.S. trade goods alone.¹ The autonomous ships market is expected to reach $11.5 billion by 2027, with a market growth rate of 7.4% from 2020 to 2027.² In addition, autonomous technologies might reduce industry costs associated with human error. Marine liability insurance claims between 2011 and 2016 show human error to be a primary factor in 75% of the value of all claims analyzed—equivalent to over $1.6 billion in losses.³

Clearly, autonomous technologies present significant opportunities to the public and private sectors. To fully harness these technologies’ benefits while mitigating risks, legal advisors must traverse treacherous waters. These waters are marked by navigational aids that, if observed, can guide the intrepid traveler.

Straight to the Facts

Merchant Vessel (MV) Wakashio entered the Indian Ocean on July 16, 2020; adjusted course on July 21 while in the Mauritian Exclusive Economic Zone (EEZ); and ran aground on a coral reef on the southeast coast of the island of Mauritius four days later. The EEZ is a maritime zone that extends no more than 200 nautical miles from the baseline where a coastal nation marks the start of its 12-nautical-mile territorial sea. The coastal nation has jurisdiction over natural resources in the EEZ, but high seas freedoms otherwise apply.

More than 1,000 tons of fuel leaked from MV Wakashio’s cracked hull into the surrounding beaches and lagoons. Mauritius asked Nagashiki Shipping, the Japan-based private company that owns and operated MV Wakashio, to pay $34 million in reparations for lost tourism. Insurance experts estimate Nagashiki’s insurance policy will limit payments at $1 billion. Estimates are not yet available for wreck removal, salvage, and environmental damage.

Preliminary fact-finding indicates the twenty-person crew was below deck celebrating a birthday and navigated closer to shore to get a stronger Wi-Fi signal. The party explains why crew did not notice city lights or the sound of breakers hitting the shore, both of which could be seen and heard from the ship’s bridge wings. Also, preliminary investigation suggests that the July 21 course correction was based on faulty electronic charts.

For the sake of the discussion that follows, assume that MV Wakashio is a U.S.-flagged remotely piloted commercial USV with no crew aboard, which we will call the “USV Wakashio.”

What Legal Regime Applies to the Hypothetical USV Wakashio?

Autonomous technological advancements and operation will take place within a legal framework of domestic and international legal obligations and policy considerations. This framework does not yet include widely agreed-upon rules specifically for unmanned surface or subsurface technologies. However, the mainstay concept and enduring obligation of due regard unites applicable areas of law and, when called upon, provides a balancing test when one entity’s rights are juxtaposed to another’s. The legal duty of due regard requires that maritime activities be conducted with “due regard” for the rights of other nations, meaning all surface, subsurface, and air maneuver must be conducted in a manner that does not interfere with the rights of other states or the safe conduct and operation of other vessels or aircraft.

Potentially applicable international obligations are largely familiar only to those with a maritime background. Legal practitioners must be able to effectively navigate these unfamiliar waters. Attorneys new to maritime practice should not hesitate to consult an expert and should remember that the enduring obligation of due regard is the central concept of the authorities listed below. Due regard is the legal navigational aid that can course-correct any wayward legal analysis. Whatever classification, wherever flagged, and no matter the mission, USVs are obliged to exercise due regard.

A brief summary of potentially relevant obligations follows:

• Customary International Law (CIL): international law established over time by the widespread consistent practice of nation states out of a sense of legal obligation.
• U.N. Convention on the Law of the Sea (UNCLOS): international treaty; only binding upon the U.S. where reflective of CIL.
• International Regulations for Preventing Collisions at Sea (COLREGS): published by the International Maritime Organization (IMO) to articulate “rules of the road” for all vessels at sea to prevent collisions.
• International Convention for the Prevention of Pollution from Ships (MARPOL 73/78): IMO’s most important environmental convention; U.S. is a signatory.
• Safety of Life at Sea (SOLAS) Convention: applicable to merchant vessels and passenger ships when engaged on an international voyage; the fundamental principal undergirding SOLAS that establishes a duty to rescue those at sea during peace or war is widely considered CIL.
• International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW): prescribes minimum standards relating to training, certification, and watchkeeping for seafarers; the United States is a signatory.

Where did USV Wakashio Go Wrong?

Scholars have opined that due regard is an example of a general “open-textured” legal concept with an “elusive” definition. Legal articles often position this lack of specificity as a problem to solve. Instead, due regard’s flexibility has led to its relevance and applicability as a mechanism to balance interests in areas beyond any one nation’s sole jurisdiction. Mauritius’s EEZ, the international water space where USV Wakashio changed course, is such a place.

Mauritius, as a coastal nation under Article 56(2), must exercise its rights, jurisdiction, and duties in its EEZ with due regard for the rights and duties of other nations and in compliance with UNCLOS provisions. USV Wakashio, as a U.S.-flagged vessel, is bound by UNCLOS in instances where UNCLOS is reflective of CIL. This includes Article 58(3)’s requirement that nations exercising their rights and performing their duties in the EEZ shall have due regard to the rights and duties of the coastal nation. Nations in the EEZ must also comply with laws and regulations adopted by the coastal nation and other compatible rules of international law.

UNCLOS Articles 56(2) and 58(3) are in tension. The “general thrust” of both is “attached to a balance of interests . . . a general obligation to be aware of and take into consideration the interests of the other party. . . .”⁴ Additional facts must be developed before determining whether USV Wakashio acted with due regard for Mauritius’s rights when USV Wakashio relied upon faulty electronic charts. Perhaps a remote operator would have noticed the navigational error in time to course-correct. Or a remote operator might be more reliant than embarked crew upon electronic charts considering the remote operator must make navigational decisions at a distance. In addition, while USV Wakashio would not have been below decks at a birthday party, a remotely operated USV would only have recognized city lights or the sound of breakers on the shore if that USV’s sensors were programmed to do so.

From an environmental protection perspective, USV Wakashio is likely bound by MARPOL 73/78. UNCLOS Part XII, Articles 192 through 196, is also applicable where reflective of CIL and notes that nations have an obligation to protect and preserve the marine environment. Due regard likely requires that a nation’s activities in international waters are not at odds with environmental protections.

SOLAS, STCW, and COLREGS are likely applicable to USV Wakashio, but with a twist. These conventions were negotiated with the understanding that crew members would be embarked upon any vessels to which the conventions apply. Additional work must be done to determine whether USV Wakashio’s remote operator must abide by STCW’s crew rest requirements. USV Wakashio would likely carry SOLAS obligations as a U.S.-flagged vessel. However, the manner of execution if USV Wakashio received a distress beacon remains unclear.

Due regard continues to be a unifying legal concept and features in COLREGS. Rule 2 includes a specific duty of due regard for all dangers of navigation and collision and any special circumstances, including the limitations of vessels that may depart from the rules to avoid immediate danger. Rule 2’s pronouncement that nothing shall exonerate any vessel, owner, master, or crew from neglecting to take any precaution required by the ordinary practice of a seaman dovetails with Rule 8’s requirement that any action to avoid collision shall be made with due regard to observance of good seamanship.

USV Wakashio may be able to meet this “seamanship” requirement through the remote operator’s exercise of due regard, but this is a challenging burden to meet from a distance. Future versions of USV Wakashio might include artificial intelligence (AI) technologies that enhance a remote operator’s abilities to respond to emergent events. Alternatively, embarked AI may be smart enough to interpret and apply the ordinary practice of seamanship in real time.

Another COLREGS issue is that language throughout appears to anticipate a human being embarked onboard and in control of navigation. For example, Rule 5 requires every vessel to “at all times maintain a proper look-out by sight as well as by hearing. . . .” USV Wakashio could only comply with COLREGS, as currently written, if Rule 5 was interpreted to include data communicated to the remote operator via USV sensors, cameras, or microphones as analogous to direct observation by human senses. Reinterpretation of COLREGS may be sufficient to ensure USV compliance, but a rewrite may also be necessary.

USV Wakashio struggled with meeting the legal requirements of UNCLOS, SOLAS, STCW, and COLREGS. However, these struggles do not seem to have contributed to USV Wakashio running aground. Faulty charts are the bane of both autonomous and human operators.

USV Wakashio’s legal advisors might have circumvented these issues early in the planning stages of USV Wakashio’s transit. Attorneys should review USV remote operator and AI capabilities and obligations. Also, attorneys must be cognizant of contractual parameters. Care must be taken to ensure minimum deltas between what a remote operator or AI is obligated to do and what the operator or AI is capable of doing.

Minimum due diligence should include ensuring AI programming and contractual obligations consider environmental protections, recognition of safety of life at sea signals such as distress beacons, and watch standing requirements. If an identified delta is too broad, such as an AI programming limitation, attorneys should not hesitate to ensure decision-makers are witting of any risk. Moreover, attorneys should recommend any appropriate changes to contractual obligations. Rules specifically for unmanned surface and subsurface technologies are under development. Now is the time to shape existing legal frameworks to make room for these new technologies.

The Takeaway

Dauntless legal advisors seeking to maximize autonomous technology opportunities while managing risk should keep the following in mind:

• Turn to the enduring legal obligation of due regard to prevent legal analysis from drifting off course.
• Determining a USV’s appropriate legal regime is complex. International and domestic legal obligations are dense and heavily fact dependent. Avoid unnecessary problems by reaching out to a maritime law subject matter expert.
• Various maritime legal instruments were negotiated prior to the advent of autonomous technologies. Reinterpret! Renegotiate! Rewrite!

Endnotes

1. UNCTAD, Review of Maritime Transport 2019 (Jan. 31, 2020), available at https://unctad.org/system/files/official-document/rmt2019_en.pdf.

2. Global Autonomous Ships Market—Industry Trends and Forecast to 2027, Data Bridge Mkt. Rsch., https://www.databridgemarketresearch.com/reports/global-autonomous-ships-market.

3. Shipping Safety—Human Error Comes in Many Forms, Allianz Global Corp.e & Specialty, https://www.agcs.allianz.com/news-and-insights/expert-risk-articles/human-error-shipping-safety.html.

4. Maria Gavouneli, Functional Jurisdiction in the Law of the Sea 69 (2007).