MarIus

2.4 Conventions governing claims in tort or negotiorum gestio

The conventions dealing with accidents and emergencies may be divided into two groups, according to whether they are of general application or whether they aim at a specific incident. At one end of the spectrum, the Salvage Convention 1989 and the York Antwerp Rules on General Average 2006 (YAR Rules) both aim to ensure that property at risk of being lost at sea is salvaged and that the cost of doing so is split between parties sharing the same peril. As for the Salvage Convention, it applies not only to ships but also to other property at sea, so even seagoing drones may be salvaged. There is also nothing to indicate that remote controlled vessels may not be salvors. (Autonomous salvor vessels are still for the future). The YAR Rules do not distinguish between what one could call their formal scope of application and the criteria which must be satisfied for a general average situation to exist, but the rules still continue along the lines given by the Salvage Convention and apply to any “vessel” finding itself in a “common safety” or “common peril” situation. The term “vessel” is even wider than the term “ship”, and the owner of the vessel, having found itself in a general average situation, should still be expected to be able to declare general average, even if the vessel is remotely controlled. One problem, however, may present itself, is that it is a condition for the application of the YAR Rules that the sacrifice or expenditure involved is made “intentionally”.(1) YAR Rule A(1).There must be a decision-making process involved, and it is uncertain if a fully autonomous vessel which e.g., beaches itself to avoid sinking may be seen to have done so “intentionally”.

Conversely, the CLC Convention 1992 on oil pollution damage at sea(2) International Convention on Civil Liability for Pollution Damage 1992 (CLC).is aimed at a specific sector of the maritime market, namely the tanker trade. For that reason, it has a limited scope and is only applicable to oil tankers that are in fact transporting oil in bulk, but also here – as with most other conventions – we see that the definition of a ship is not concerned with how the decision-making processes onboard are carried out, but rather with the construction and purpose of the ship. This picture repeats itself with the Collision Convention 1910(3) The International Convention for the Unification of Certain Rules of Law with Respect to Collision Between Vessels, 1910 (Collision Convention 1910)and the Wreck Removal Convention 2007, which apply respectively to “seagoing vessels”(4) Collision Convention 1910, Art. 1.or to wrecks from what used to be “ships”(5) Wreck Removal 2007, Art 1(2) cf. Art. 1(4).. Indeed, the Wreck Removal Convention specifically states that a “ship” includes “…a seagoing vessel of any type whatsoever [including] hydrofoil boats, air-cushion vehicles, submersibles, floating craft, and floating platforms.”(6) Wreck Removal 2007, Art. 1(2).Considering the purpose of the Wreck Removal Convention (namely to ensure that wrecks are removed by their owners), such a wide scope is appropriate, and an owner of a fully autonomous vessel can expect to be encompassed by the Convention, should that vessel become a wreck.

Again, apart from the YAR Rules’ requirement for an intentional sacrifice of expenditure to have occurred, if the Rules are to apply, we see a system that should remain coherent despite technological advances, as long as an autonomous or remotely controlled craft is still recognizable as a ‘vessel’ or ‘ship’.