2.5 Extracting the central criteria
Looking at the selected conventions, it is immediately noticeable that none of the conventions link their application to the specifics of the navigation system onboard, nor are they particularly concerned with the presence of officers and/or crew onboard the vessel. They may contain provisions as to the obligations of the officers/crew,(1) See Salvage Convention 1989, Art. 10 on the master’s duty to render assistance.or regarding the legal effect of human error committed by the crew,(2) See HVR Art. IV(2)(a), as mentioned under section 1.but the presence of a crew is not a precondition for the application of the regulations as such. Further, even if some of the conventions apply to specific vessel-types, none of the conventions concern themselves with e.g. the extent of remote controlling or the autonomy of the navigation. In other words, at first glance, they seem technology neutral.
Still, certain themes present themselves regarding the scope of application. First and foremost, most conventions require for their application that the claim is connected to the operation of specific constructs, namely “ships” or “vessels”. The conventions dealing with contractual liability are not so focused on the specifications of the transport unit, but rather, on the definition of which contract, or indeed which type of document, they apply to. Additionally, a few conventions provide a different focus, and apply to specific persons/legal entities, whereas a specific decision-making process is finally requested by the YAR Rules 2016.
Therefore, depending on the regulation, we must ask the following questions:
Is the craft a ‘vessel’ or a ‘ship’, or even a particular type of vessel or ship,
Is the dispute governed by a contract for carriage of goods or persons at sea, or even a ‘bill of lading’,
Is the person or legal entity claiming the application of the rule named as an entity covered by the regulation, and/or
Is the action which has led to the dispute a result of a decision-making process as indicated in the regulation?
If the respective requirements are not satisfied, the maritime regulation may be out of scope and the dispute will have to be dealt with by the background law rules, providing a pitfall for the unified systems. In the following, these pitfalls will be dealt with in turn.