Artificial Intelligence and the advent of automated ships will pose difficult questions in determining liability under the Hague Rules for maritime casualties, the 2022-2023 Chairman of the Association of Average Adjusters has cautioned.
Sir Nigel Teare raised the concern as he suggested that a recent case, in which the Supreme Court confirmed that a defective passage plan will render a vessel unseaworthy, will be scrutinised in the context of technological developments.
Sir Nigel chose for his annual chairman’s address to the association in London the topic of Seaworthiness, Negligent Navigation and Safer Ships, reviewing the implications of the general average case which he tried at Admiralty Court level in 2019, relating to the containership CMA CGM Libra.
The laden vessel left the buoyed fairway and grounded as she was leaving Xiamen, one of the largest ports in China, in May 2011, necessitating a costly salvage operation. Most of the cargo interests accepted that the cause of the casualty was negligent navigation and paid their contribution to general average, but a small minority refused to do so. The shipowner failed in proceedings in the Admiralty Court to recover general average sums from that minority, and its decision was upheld by the Court of Appeal and the Supreme Court.
In his address to the association, Sir Nigel extended the question of passage planning to its potential application to vessels controlled by operators ashore or by computers on board — ships known as Maritime Autonomous Surface Ships or MASS for short. “They are not yet common,” he said, “but, with commendable foresight, MASS are being closely monitored by the International Maritime Organization.”
The IMO is exploring how far regulatory regimes such as Solas and the Collision Regulations can apply to autonomous ships. Its plan is to have a non-mandatory code for that type of ship by 2024, with a mandatory code in force by January 2028.
There was no reason why MASS should not have a passage plan to be seaworthy for their voyage, said Sir Nigel. “Such plans may in the future be produced by a computer. What if the reason that a passage plan is defective lies in a defect in the software purchased by the owner?”
“Where the master on board or operator ashore acts negligently when commanding the vessel that would amount to negligent navigation. But what if the error is committed by a computer?”
Sir Nigel insisted that the introduction of electronic charts had not eliminated the need for proper passage planning. To be seaworthy a vessel must still at the outset of the voyage have a proper passage plan. That remained essential to safe navigation.
“What will become important will be the training of navigational officers in the art of passage planning when using electronic charts,” added Sir Nigel. The UK Government’s Marine Accident Investigation Branch has urged navigating officers not to rely solely on the data embedded in a computer-based system but to consult all sailing directions and notices to mariners just as they would when passage planning on paper charts. There is evidence that not all navigating officers understand the limitations of electronic charts.
“It is therefore possible that the introduction of electronic charts will give rise to more, not fewer, complaints of poor passage planning,” he concluded. “In circumstances where the decision of the Supreme Court has so clearly resolved the issues of law, the debate in the future is more likely to concern the adequacy of the plan on the electronic chart, the significance of any defects and the adequacy of the training of officers to use electronic charts safely,”
Sir Nigel is now an arbitrator at the 10 Fleet Street practice, having retired from the High Court in 2020.
