3.5 Is the action which has led to the dispute a result of a decision-making process as indicated in the regulation?
It has been stated repeatedly above that the maritime convention system does not seem to concern itself much with company structures, outsourcing, or decision-making processes. As a caveat, therefore, it is only fitting to finish the discussion of the pitfalls of the unified maritime and transport regulations with some considerations regarding the York Antwerp Rules on general average Rule A(1). According to the provision, “[t]here is a general average act when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.”(1) My emphasis.The provision does not seem to pose particular challenges with regard to remotely controlled vessels (scenario 1). Both intentional and reasonable decisions may be made from a distance. Also, it seems conceivable that an autonomous vessel may be coded so that it may evaluate potential outcomes and their negative economic impact and act accordingly. Thus, an autonomous vessel may well act ‘reasonably’ within the meaning of the provision. Still, the rule presupposes that a decision-making process is involved,(2) Falkanger, Bull, Brautaset, Scandinavian Maritime Law, The Norwegian Perspective, 4th ed., Universitetsforlaget 2017, p. 595.and even a fully autonomous vessel which e.g. beaches itself to avoid sinking, may hardly be seen to have done so ‘intentionally’. Future owners of fully autonomous vessels should therefore ensure a fail-safe function, so that the vessel demands a confirmation form ashore before it performs a general average act. If this is done, the unified system of general average would seem to remain intact.