1.2 Delimitation
To both focus and limit the discussion, the question asked in the following will be whether the overall application of the regulation in question is challenged. The discussion concerns the applicability of the regulations per se, taking as its starting point the rules determining the application of the convention in question. Discussions of specific substantive provisions and requirements of those rules must be found elsewhere,(1) See e.g., for a multifaceted approach, Ringbom, Røsæg, Solvang (eds.), “Autonomous Ships and the Law”, Routledge, 2020.unless they have direct bearing on the overall applicability of the regulation of which they form part. Some regulations do not distinguish between the rules on their application of the regime as such and the substantive criteria for their use; normally because their application is governed by other rules, such as statutory regulation or incorporation by reference into standard contracts, see e.g., YAR Rules 2016.(2) The York Antwerp Rules 2016 on general average are soft law and not a convention but will nonetheless be included in the analysis in the following. Their application may follow from statutory rules, such as the Danish and Norwegian Maritime Codes sec. 461, or Conlinebill 2000 cl. 12.Therefore, some excursions will be made beyond what the intended distinction should indicate.
To provide an example: The exemption of liability for navigational errors committed by the crew in the Hague Visby Rules 1968 Art. IV(2)(a) may potentially be inapplicable in the context of an unmanned autonomous vessel; however, this will not be dealt with below. Instead, this article will consider whether the Hague Visby Rules 1968 as a system of regulation may still be applied to e.g. autonomously operating vessels in the first place, and the focus will instead be on Art. X of that convention.
The analysis will focus on two factual scenarios: That the vessel is remotely navigated from ashore (scenario 1) or that the vessel is totally autonomous/AI-operated, or at least that it is in “autonomous mode” at the time of the incident in question (scenario 2). In both situations the onboard human factor is removed at the time of the incident. Where relevant, the application of the convention or regulation in question will be tested against these scenarios.
The article will fall in three parts: First, in section 2, the applicability of the main conventions will be scrutinized, mapping the criteria for their applicability. Analyzing the findings in section 2, the main issues potentially hindering the applicability of the conventions will be extracted and further discussed in section 3, allowing for a conclusion on the robustness of the convention system to take place in section 4.