Possible Revisions to UNCLOS for Salvaging Auto-Remote Vessels Going Adrift



Article 94 (Duties of Flag State) of UNCLOS mentions the duties that fall under the responsibility of flag state. It also requires the flag states to take necessary measures for ships flying their respective flags to ensure safety at sea, with regard to inter alia ‘the construction, equipment, sea-worthiness, manning and labour conditions of ships’. The upcoming autonomous/auto-remote vessels are at a higher risk of going adrift due to the following reasons: communication link loss and failure to override systems on-board, unavailability of manned spaces, rough weather and lack of situational awareness. UNCLOS and customary salvage laws, however, haven’t specified standards for the settlement of conflicts of laws and of jurisdictional disputes between states and private parties for all salvage related incidents for these smart vessels. The reason being, the ‘IP-based communications’ element was never considered under the existing UNCLOS articles for merchant shipping.

This essay aims to provide possible revisions and upgrades to UNCLOS based merchant shipping articles by considering the guidelines of Classification Societies for unmanned ships in cases they go adrift and the relevant duties to be executed by immediate flag State where this vessel has ventured.


1. Requirement of Legal Framework for Operating Auto-remote/ Autonomous Ships: From an international legal perspective, there are several issues that arise concerning the use of unmanned/Autonomous Ships as merchant ships. The most important is: whether these ships should be regulated by international law of the sea or by COLREGs and MARPOL alone.

Hence, a legal status should be granted to an autonomous merchant vessel first. Also, it is important to understand the basic definition of a conventional merchant ship. As per the UNCLOS (1983) criteria, a ‘merchant ship’, in general, is a vessel used for transportation of goods and/or passengers for commercial and non-commercial purposes (i.e. police and customs ships). Similarly, an unmanned auto-remote merchant vessel navigates through open waters as its intended purpose is to be engaged in shipment of cargo. As a result, ‘crewlessness’ is not a decisive element in constituting a ship.


2. Extent to which Autonomous ship can be regulated by UNCLOS: All merchant vessels are under the diplomatic protection of their respective Flag States. As a signatory to the International Tribunal of the Law of the Sea (ITLOS), this requirement will be fulfilled by the fact of bare registration of the ships alone (with the International Maritime Organization). The auto- remote vessels will definitely benefit from navigational freedom in high seas as specified in UNCLOS Article 87 (Freedom of High Seas) since these vessels are functional equivalent of manned ships. Although STCW 2010 could be extended to include autonomous ships, the competence of the standards of SCC (Shore Command Centre) to ensure safety of life and marine environment won’t be equivalent to those of sea-faring officers. Removing the human element might pose a tremendous risk to both- the MASS (and its cargo) and the aquatic life if the MASS goes adrift after failing to perform fail-safe sequence. Hence, a sister convention is required which would comply with the IMO conventions and UNCLOS.

If the SCC is legally the master of the autonomous ship in distress, they have a moral duty to secure assistance from a manned ship. Of the several ways to secure the assistance in high seas, one would be to allow the most immediate Flag State (to which the vessel is approaching) to establish control over the MASS by making an attempt to override the systems. The time should be recorded and the owner of the vessel/operator/charterer should be notified of the same. A revision could be made to UNCLOS Article 98 (Duty to render assistance/Conduct Search and Rescue) [1] accordingly.

In order to be eligible to secure assistance in accordance to Article 98 of UNCLOS, the ship’s MTCAS must remain in engaged mode during ship’s transit. The reason being, MTCAS is the first and the most important defensive shield for an autonomous ship from all possible collisions with neighbouring vessel traffic and with approaching land. Article 110 (Right to Visit) of UNCLOS can be extended and exercised under following conditions:

  • i) If the MTCAS is not engaged on MASS

  • ii) Presence of defective and malfunctioning MTCAS (if detected electronically by the naval ships/ Port State Control or any other relevant authority) is found during inspections.


3. Right to Exercise UNCLOS Article 111: UNCLOS Article 111 (Right to Hot Pursuit) and Article 9 of the Salvage Conventions (Right of Coastal States) could be exercised intermittently depending on the following conditions:

  • i] The farthest extent to which the MASS has gone adrift or travelled off-course.

  • ii] If the on-board computers and navigation systems have been hacked.

  • iii] If the vessel fails to complete a fail-safe sequence [2]

Furthermore, the unmanned ships also need to maintain a safe distance from manned vessels such cruise ships, pleasure yachts, naval ships and special purpose boats. This demands subsequent revision of Article 90 (Right to Navigation) of UNCLOS. It should be updated by integrating the guidelines of COLREGs. It has been mentioned that an electronic look-out would be compliant with Rule 5 of COLREGs as long as its ability is at least comparable to human. The SCC can possibly request the Flag State/ Coastal State (nearest to the vessel) to intervene if fail-safe sequence isn’t successful. The salvor Flag State/ Coastal State can then exercise UNCLOS Article 111 in compliance with Article 9 (Right of Coastal States) of the IMO’s International Convention on Salvage.


4. ,,Ghost Ship’’ and Cyber Attack events: An Autonomous Ship can be declared as ‘derelict’ or ‘ghost ship’ only if she has gone adrift and/or untraced in international waters for more than 12 hours and fails to return to her intended waypoint and heading in high seas. The nearest coastal State needs to be informed of her speed and course heading if her waypoints include zones with high traffic density.


In an event of cyber attack, the salvor Flag State Administration/ Port State Control must without delay exercise Article 111 of UNCLOS once the ship’s SCC confirms malware attack or cyber hack into ship’s systems. Article 101 (Definition of Piracy) of UNCLOS needs to be revised to include electronic hacking as a part of ‘cyber related piracy’ definitions. Though there would be no potential threat to human life during cyber-attacks (since vessel is unmanned), the Flag State/ Coastal State must make all possible attempts to protect valuable cargo, offshore installations and ecologically fragile areas (in case the hackers redirect the ship towards sensitive areas with an intention to cause damage on a mass scale).

Following situations/instances should be added to Article 101 for a Flag State to exercise

Article 111 in events where communications link of auto-remote vessels is compromised: 1) Pre-planned and intended damage to ship structures by pirates, terrorists, hackers, etc. 2) Attempt of unauthorized boarding (by pirates, smugglers, stowaways, terrorists, etc.) with an intention to steal cargo and blueprints of the vessel. 3) Jamming or spoofing of communications, hacker attack on ship’s communication systems or SCC. Should the vessel have appropriate manned space with the helm and manual controls on board, the nearest Flag State must authorize its naval/seafaring officer to assume command of the navigational watch of the autonomous vessel and execute all the duties as per the guidelines of COLREGs for prevention of collision. Once on-board, all the guidelines of existing IMO Conventions (i.e. COLREGs, STCW, SOLAS, etc.) would be applicable to the auto-remote vessel and the navigating officer. These instances must be specified when UNCLOS would be revised or in its upcoming editions.


Additionally, the salvaging attempts would be easier if the vessel operator confides in the salvor. Some conditions and rewards must exist as an appreciation of the efforts of the salvor Flag-State. This leads us to conclude that the conditions for securing the reward would remain same as per IMO’s International Convention on Salvage Article 12: ‘if the salvor Flag State successfully regains the control of the vessel and successfully redirects her to her original course heading’.


Written by ANMOL JADAV MSc. Technical Ship Management, Saltire Scholar 2018-19, University of Strathclyde, United Kingdom and SeaFocus Trainee


References [1] D. Singh, International Maritime Law Conventions, London: Stevens and Sons Limited, 1983. [2] Bureau Veritas, France, Guidelines for Autonomous Shipping, Bureau Veritas, 2017.

Keywords:

  • MASS- Marine Autonomous Surface Ships

  • COLREGS- International Regulations for Preventing Collisions at Sea (1972)

  • STCW- International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1978)

  • SOLAS- International Convention for Safety of Life at Sea

  • UNCLOS- United Nations Convention of the Law of the Sea/The International Law of the Sea

  • SCC- Shore Command Centre (also ‘ROC’-Remote Operating Centre)