3.2 Is a remotely controlled or autonomous waterborne device a ‘vessel’ or ‘ship’?
3.2.a “Vessels” or “ships”
Having reviewed the above provisions, even if the application of most of the conventions requires the activity in question to be connected to a ship or a vessel, they are less specific on how such an entity should be defined. Apart from the CLC Convention 1992, definitions found in the conventions are de facto void of any real content. The lack of a meaningful definition in the conventions tallies with the approach of other maritime regulations. As put by Falkanger/Bull & Brautaset regarding the term ‘ship’: “[t]he term has a relatively well-established meaning and legislators typically do not concern themselves with an exact definition”.(1) Falkanger, Bull, Brautaset, “Scandinavian Maritime Law, The Norwegian Perspective,” 4th ed., Universitetsforlaget 2017, p. 50. Some legislators do provide for a little more guidance. The Swedish maritime code 1994 § 1-2, sub-sec. 1, laconically provides that if the vessel is not at least 24 meters long it is not a ship. It is a boat.Rather, the question of whether an entity is a ‘vessel’ or a ‘ship’ would tend to be determined on a case by case basis, considering the scope of application of the rule in question and, in case of doubt, the purpose and underlying rationale of such rule. This is not only the case for Scandinavian law. For example, even if U.S. law formally contains a definition, the definition does not take the reader much further, as 1.U.S. Code § 3 simply states that “[the] word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”.(2) US Code, Title 1, Chapter 1, § 3. Chwedczuck puts it this way: “U.S. law is relatively clear about the bare minimum needed to qualify as a vessel: it must be reasonably capable of transportation on water.” M. Chwedczuck, ”Analysis of the Legal Status of Unmanned Commercial Vessels in U.S. Admiralty and Maritime Law”, Journal of Maritime Law & Commerce, Vol. 47, No.2. April 2016, p. 123-169, on p. 130.Consequently, we must resort to general considerations of what is a ship/vessel, and some rules of thumb have indeed been established in practice and literature: 1) The device must be hollow (or at least able to float) and designed to move on or through water; and 2) The device must not be too insignificant. (3) Falkanger, Bull, Brautaset, “Scandinavian Maritime Law, The Norwegian Perspective,” 4th ed., Universitetsforlaget, 2017, p. 50; N. Krause, “Praxishandbuch Shiffsregister”, de Gruyter, 2012, p. 4.
The question remains, however, if for our purpose it is possible to be somewhat more exact. As shown above, several of the conventions tie their application to whether the device in question is registered in the ships’ register in a contracting state. One might therefore expect to find some guidance there on the definition of a ship or vessel. However, even such rules are limited in their definitions – and in any case will vary according to the flag state in question.
Using Scandinavian law as an example: Under Norwegian law, a ship must be registered if it is more than 15 meters long and may be registered if it is more than 7 meters long, see the Norwegian Maritime Code 1994, § 15, sub-sec. 2. Under Danish law the requirement is that the ship is more than 20 GRT, whereas a ship may be registered if it is more than 5 GRT, see the Danish Maritime Code 1994 § 10, sub-sec. 1 and sub-sec. 2. Finally, the Swedish Maritime Code 1994 § 1-2, sub-sec.1, cf. § 2-1, sub-sec. 1, requires that ships are registered if they are over 24 m in length.(4) The Swedish Maritime Code § 1-2, sub-sec. 1, laconically continues to provide that if the vessel is not at least 24 meters long it is no longer a ship. It is a boat.In the same vein, under UK law, the Merchant Shipping Act 1995 does not concern itself with what is a vessel, but with what is a British and/or registrable vessel.(5) Merchant Shipping Act 1995, Chapter 21, sec. 1 and 2.In this way, the focus in these rules is not on “what is a ship/vessel”, but rather, on which sub-group of ships or vessels it is appropriate to register in the ships register. Consequently, the requirements for registration presume an underlying understanding of what is a ship/vessel and therefore do not alleviate the lack of definitive criteria displayed in the convention texts and background law. Neither do they provide much assistance in determining whether a remotely controlled or autonomous vessel/ship will still be covered by the convention system.
Still, despite the vagueness in language, the private law maritime conventions do display common denominators. Firstly, as mentioned above, none of the conventions connect the concept of a ship or vessel to whether the construct has a crew onboard. Second, the definition of ‘ship’ or ‘vessel’ do not contain a requirement for either a specific structure in the decision-making process or a maximum level of technological advancement. Therefore, this writer suggests that the prima facie assumption should be that if the construction looks like a ship/vessel, it is a ship/vessel in the meaning of the maritime conventions – including if it is remotely controlled or autonomously operating.
The notion that unmanned/autonomous vessels do not challenge the term ‘ship’ or ‘vessel’ is shared by e.g. Chwedczuck and van Hooydonk; Chwedczuck concluding that it would be “…safe to assume that there will be no dispute in courts about their vessel status under the law[,]”(6) Ibid. p. 131.and van Hooydonk saying somewhat more cautiously that “…it would appear that the existing conventions … would in principle continue to be functional in respect of these craft.” (7) E. van Hooydonk, “The Law of Unmanned Merchant Shipping”, Journal of International Maritime Law (2014) 20 JIML, p. 403-423, on p. 409.Indeed, it is hard to find reasons to negate this assumption. A purposive interpretation of the maritime convention system does not seem to indicate any real legal considerations that should entail the use of autonomous navigational systems or remotely controlled navigation putting a device outside the scope of the term ship/ vessel, provided the device is “…intended for, and capable of moving on or through water.”(8) Falkanger, Bull, Brautaset, “Scandinavian Maritime Law, The Norwegian Perspective,” 4th ed., Universitetsforlaget 2017, p. 50.As put by Maraist, et al, with reference to the position under US (case) law: “The essential judicial guideline is that the determination of vessel status depends upon ‘the purpose for which the craft was constructed, and the business in which it is engaged’.”(9) Maraist, Calligan, Maraist & Sutherland, Cases and Materials on Maritime Law, 3rd ed., West Academic Publishers, 2016, p. 41f.For this writer, autonomous or remotely controlled navigation does not change the purpose of the device – as long as that device was originally intended for traditional maritime activities. This writer therefore concurs with the assessment that the ship/vessel criterion in the maritime convention system is not challenged by the use of remotely controlled (scenario 1) or autonomously operating ships (scenario 2).
3.2.b Other property at sea: ROVs, AUVs and drones
Turning our gaze away from the more traditional trades of transport of goods and passengers, the emerging technologies do provide for new possibilities at the small end of the spectrum: We already have remotely operated vehicles (ROVs), as well as autonomous underwater vehicles (AUVs) which are too small to qualify as vessels under e.g., the rules on registration of vessels or ships, being used in connection with e.g. mapping or the seabed, maintenance of pipelines or other underwater investigations, including participation in salvage operations. Nonetheless, the units are normally deployed from a vessel, and would be appurtenances of the (mother-) vessel. The ship or vessel criterion will therefore be satisfied if the criterion is satisfied as regards the mother-vessel.
ROVs, AUVs and underwater drones in general may also qualify independently under the conventions. As may be seen from Fig. 3., the Salvage Convention 1989 and the YAR Rules 2006 on general average aim at ensuring 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. ROVs and AUVs etc. may be salvaged in their own right, irrespectively of whether they are connected with a mother-vessel. As mentioned above, several of the maritime conventions base their application on whether or not the device in question is registered in the ships’ register of a contracting state. If the ROV or AUV is too small to satisfy the flag state requirements for size, it will therefore be outside the scope of those conventions. Still, aside from that, if the unit is large enough to independently carry goods or passengers against payment on an international voyage,(10) Maersk has experimented with having air-drones delivering small packages to vessels (in the case cited: biscuits). See e.g. https://www.marineinsight.com/videos/drone- delivers-cookies-to-maersk-tanker/ (accessed 01.04.2022). or https://www.soefart.dk/ article/view/272753/maersk_tankers_lofter_forste_test_af_droneleverancer_i_kalundborg_fjord (accessed 01.04.2022).or to successfully engage in salvage operations, one should expect that it may be designated as a ship or vessel – even if not a registrable one. Indeed, when giving examples of what is too small to be a ship, Falkanger/Bull & Brautaset suggests rowing boats or kayaks.(11) Falkanger, Bull, Brautaset, ”Scandinavian Maritime Law, The Norwegian Perspective”, 4th ed., Universitetsforlaget 2017, p. 51.It follows that also in this regard there does not seem to be any basis for outright rejecting the application of the maritime convention system. Instead, the application of the conventions must be individually assessed, based on the concrete criteria of the case. In this evaluation it is suggested that it is the size of the device and its use in the given situation which should be seen as central, rather than the level of autonomy or remote controlling applied in its navigation.