REMOTE CONTROLLED

AND AUTONOMOUS
SHIPPING:
UK BASED CASE STUDY

By Professors B. Soyer and A. Tettenborn and

Associate Professor G. Leloudas
(Institute of International Shipping and Trade Law, Swansea University)

With the assistance of Haofeng JIN, Christopher FLINT

and Bernard TWOMEY
This project has been funded by

1
Acknowledgements

The researchers wish to express their gratitude to the Assuring Autonomy International Programme
for funding this project. It is our hope that it will highlight the regulatory and legal barriers that
need to be removed to enable safe operation of remote controlled and autonomous ships in the
UK waters.

We are grateful to stakeholders who attended our Workshop on 23 October 2021 for their
comments on an earlier version of this Report and also for sharing their views with us. In
particular, we would like to thank the following individuals in the role they played to make the
Workshop a great success: Dr Fredrik ASPLUND (Assistant Professor, KTH Royal Institute of
Technology); Professor Simon BAUGHEN (Professor of Commercial Law, Institute of
International Shipping and Trade Law, Swansea University); Pablo CONSTENLA (Head of
Cyber Products and Claims, Continental Europe at Marsh); Dr Jonathan EARTHY (Human
Factors Coordinator, Lloyd’s Register); Captain Andrew “Fred” FIRMAN (Harbour Master);
Robert GALE (Senior Executive Officer, Maritime & Coastguard Agency); Gavin W GUNNY
(CEng MIET, York University); Tim HOWSE (Vice President, Industry Liaison, Gard (UK)
Limited); Grant HUNTER (Head of Contracts and Clauses, BIMCO); Clare JOLLEY (Legal
Department, Eastern Mediterranean Maritime Ltd); Dr Katrina KEMP (Autonomy Technical
Specialist, Maritime & Coastguard Agency); Dr Stella KOUNAKOU (Claims Executive, The
Shipowner’s Club); Dr Tabetha KURTZ-SHEFFORD (Senior Lecturer, Institute of International
Shipping and Trade Law, Swansea University); Xinge LI (PhD Candidate, Swansea University);
Dr Youri van LOGCHEM (Senior Lecturer, Institute of International Shipping and Trade Law,
Swansea University); Professor John MCDERMID (Professor of Software Engineering,
University of York); Alicia MCKENZIE (PhD Candidate, Swansea University); Thomas
MELLOR (Head of Head of Original Equipment Manufacturer Technical Support and Digital
Standards, UK Hydrographic Office); Dr Claire PEKCAN (Director & Founder, Safe Marine
Ltd); Sean T. Pribyl (Senior Counsel, Holland & Knight LLP); Ruth TAYLOR (Autonomy
Technical Specialist, Maritime & Coastguard Agency) and Erik Ingolf TVEDT (Special Adviser,
Technical Regulation, Danish Maritime Association).

2
Table of Contents

EXECUTIVE SUMMARY…………………………………………………………………………………….................4

I. SCOPE OF THE STUDY…………………………………………………………………………………..................5

II. OPERATIONAL AND NAVIGATIONAL MATTERS……………………………………………..................7

A) Remote Control Centres (RCCs)…………………………………………………………….....................7

B) Ports……………………………………………………………………………………………………...............10
C) Pilotage…………………………………………………………………………………………..............……..12
D) Salvage…………………………………………………………………………………….............……………16
E) Liability Relating to Navigation: Collision etc……………………………….....................………...18
F) Liability Relating to Navigation: Cargo Damage etc……………….....................………………22
G) Limitation of Liability…………………………………………………………...................…………………24

III. OTHER LEGAL MATTERS………………………………………………………...............…………………….26

A) The Right of Arrest……………………………………………………………..................………………….26

B) Product Liability………………………………………………………………..................…………………..28
C) Criminal Jurisdiction…………………………………………………………..................…………………..31
D) Unmanned Aircraft System (UAS)……………………………………....................…………………..33

IV. SUMMARY OF CONCLUSIONS…………………………………………............…………………………38

APPENDIX 1: Ongoing Main Autonomous Shipping Projects…………........................……………….40

APPENDIX 2: Acronyms & Abbreviations…………………………………...................……………………..47

3
EXECUTIVE SUMMARY

Various companies and organisations have been working for some time to develop Maritime
Autonomous Surface Ships (MASSs) that can be used in commercial shipping. As it is often the
case with emerging technologies, there is a risk that such technological developments might well
be ahead of the current legal and regulatory framework and that adjustments in the regulatory
sense will need to be made within a short period of time. The primary objective of this study is
to highlight the regulatory and legal challenges that need to be addressed so that MASSs can
operate within UK territorial waters without complication. Thus, for the purposes of this study three
assumptions have been made: i) the hypothetical vessel in question will navigate from Hull to
Plymouth staying entirely within UK territorial waters; ii) this vessel is registered in the UK and iii)
this craft will have a varying degree of autonomy, i.e. it will be mainly controlled remotely (from
Swansea) but will have autonomous navigation/operation-capability which will be activated in
some cases.

The Report concludes that it will be within the remit of different regulatory bodies to deal with
the legal and regulatory challenges ahead. For example, the Marine and Coastguard Agency
(MCA) is expected to provide regulatory solutions to issues concerning safety and technological
requirements of MASSs. Port and harbour authorities need to specify the conditions that a MASS
should comply with to gain access into areas that come under their jurisdiction. There is also a
requirement to deal with issues concerning pilotage by competent harbour authorities. We also
conclude that legislative changes are needed to clarify matters concerning liability (collision
liability and product liability), limitation of liability, salvage, cargo claims and arrest of MASSs as
well as to deal with criminal law issues that might emerge.

4
I. SCOPE OF THE STUDY

1. Autonomous shipping at its widest is an incredibly broad subject. Indeed, these days ships are
at least to some extent operating independent of human intervention. The International
Convention for the Safety of Life at Sea (SOLAS) 1974, for example, requires any vessel of
10,000 GRT upwards to have at the very least an automatic heading or track control system
whose function is automatically to control and keep the vessel to a heading and/or straight
track.1

2. This study concentrates on a more limited and potentially disruptive area of automation, which
is becoming increasingly topical: namely the introduction of Maritime Autonomous Surface Ships
(colloquially known as MASSs). The IMO, in the course of a recent regulatory scoping study of
potential changes to regulatory requirements arising from this,2 divided MASSs into four
categories (referred to as “degrees”):

Degree One: Ship with automated processes and decision support: Seafarers are on board to
operate and control shipboard systems and functions. Some operations may be automated and
at times be unsupervised but with seafarers on board ready to take control.

Degree Two: Remotely controlled ship with seafarers on board: The ship is controlled and
operated from another location. Seafarers are available on board to take control and to operate
the shipboard systems and functions.

Degree Three: Remotely controlled ship without seafarers on board: The ship is controlled and
operated from another location. There are no seafarers on board.

Degree Four: Fully autonomous ship: The operating system of the ship is able to make decisions
and determine actions by itself.

3. This categorisation is admittedly open to criticism for being over-simplistic in the light of recent
developments in technology. But it is a good starting point, and given its adoption by the IMO’s
Maritime Safety Committee for its future regulatory work,3 we will work from it.

4. As we understand it, the four degrees of autonomy referred to above can be most easily
understood by reference to the division of responsibilities for operation and control between
humans and computer systems, as appears in the Table below:

1
Chap.V.2.8.
2
Published on June 3 2021 and available here: MSC.1-Circ.1638 - Outcome Of The Regulatory Scoping
ExerciseFor The Use Of Maritime Autonomous Surface Ships... (Secretariat).pdf (imo.org) (last tested on 1 November 2021).
3
At its 103rd session (5 to 14 May 2021).
5
Table 1

Operation Monitoring System Assurance

Degree One Human Human Human
Degree Two System System Human
Degree Three System Human/System Human/System
Degree Four System System System

Note: there is, in principle, no operational crew on board at Degree three and upwards. It will
be assumed that monitoring is going to be undertaken by the system and also by a remote
watch officer. The remote operator in certain circumstances will be required to take control of
the ship’s operations. If no action is taken by the operator (e.g. due to a communication
failure), the system will have to act autonomously and carry on with the operation of the
vessel.

5. This is specifically a legal study. Admittedly shipping is a multijurisdictional business, and in

practice most problems in shipping law potentially involve reference to multiple systems of
municipal law. But simplification is sometimes necessary; and this study will assume that only the
law of England and Wales is in play.4 To avoid foreign law complications, we will therefore base
our comments on a domestic scenario; namely, a voyage by a coasting container vessel, the MV
Albion, British owned and UK registered, from Hull to Plymouth. The vessel is, we will assume,
directed from a control centre in Swansea, but is technically capable of Degree Four autonomy,
which is programmed automatically to kick in should contact with the control centre be lost for
any reason. The contract between Albion’s owners and the control centre expressly applies
English law and submits all claims to the jurisdiction of the High Court in London. Her voyage
plan lies entirely within UK territorial waters: that is, keeping at all times within 12 miles of the
British coast and keeping to the British side in the Straits of Dover TSZ.

6. In the next section we consider the regulatory and legal challenges that need to be
addressed to ensure that MASSs can operate without complications within UK territorial waters.
In particular, we shall refer to technical matters that need to be addressed by regulators5 so that
a voyage of the kind described above can be safely carried out. We shall also aim to highlight
the possibility of necessary changes to primary legislation, given that applying current legal
principles to MASSs may on occasion create unexpected or undesirable outcomes.

4
We deliberately refer to English and Welsh law rather than UK law. While Northern Irish shipping law can be taken to be the same as English,
Scottish shipping law is not (though it is in many ways similar). We disregard it here, not with intent to show any disrespect to the Scots, but merely to
preserve simplicity. In practice, many of our comments are likely to be equally applicable on both sides of the Tweed.
5
The main relevant regulatory body here is expected to be the Maritime and Coastguard Agency (MCA). For small vessels, the MCA, utilising the
power delegated by the Merchant Shipping (Small Workboats and Pilot Boards) Regulations 1998, has put in place a Code of Practice setting the
standards that such vessels ought to comply with concerning safety and operational matters. Recently, the MCA published the Workboat Code V2
which updates the safety and navigational requirements for such vessels. The Workboat Code V2 applies compulsorily to all vessels which are less
than 24m in length. For MASSs which are less than 24m in length, obviously the Code needs to be reviewed but also for larger vessels operating in
territorial waters of the UK one would expect the MCA to be tasked to put in place a regulatory framework designed to provide equivalent standards
for construction, operation, maintenance, emergency response, health and safety, environmental risk management especially in the absence of any
international regulation in this field. That said, the involvement of other regulatory bodies will be essential, notably port authorities (which also deal with
pilotage). In so far as primary legislation may be necessary, this is obviously a matter for Parliament.
6
II. OPERATIONAL AND NAVIGATIONAL MATTERS

(A) Remote Control Centres (RCCs)6

7. It is obvious that RCCs will play a crucial role in the operations of the MASSs by way of
remote command, control and/or monitoring. Obviously, the current maritime conventions and
national regulations are silent on the functional and operational requirements of such centres. This
is something that need to be addressed as a matter of urgency, ideally in consultation with those
developing such technology.7

8. In similar vein, there is a legal vacuum when it comes to the requirements the conventions
and national regulations lay down for the qualifications and training needs of personnel in such
centres.8 This vacuum needs dealing with in detail. One would expect such personnel to have a
good understanding of navigational matters, as with seafarers; but given that they are not
expected to go on board, some matters relevant to traditional seafarers’ qualifications may be
able to be omitted. Conversely, however, some further qualifications may well be necessary:
notably, a good technical knowledge of the relevant computer and communication systems how
to deal with an emergency within the RCC and how to respond to an emergency condition on
board the vessel or in respect of an maritime search and rescue (SAR) request.

9. There are also two particular matters of specific importance concerning RCC personnel. First,
it is vital to define the technical legal status of the person in an RCC who assumes command of a
MASS. It would make sense to view them equivalent to a conventional master,9 especially given
that the relevant international regime requires flag states to ensure that each ship under their flag
is in charge of a master.10 However, this in turn creates a need to look again at a number of
international conventions that clearly assume (and arguably by implication require) the presence
of a master on board. For example, under the STCW 197811 it is stated that officers in charge
of the navigational watch should be physically present on the navigating bridge or in directly
associated locations, such as a chartroom or bridge control room at all times. It is very doubtful
whether an RCC would be considered as being a navigational bridge.

10. Secondly, and perhaps more fundamentally, it is essential to specify the relationship
between the different persons in an RCC responsible for a MASS. Discussions with the builders of
such vessels have revealed that the chain of command in respect of such vessels may be different
from conventional ships, as appears in Diagram 1 below.

6
These are also referred to as “Remote Operation Centres (ROCs)” in some reports.
7
Preliminary guidelines on these matters have been provided in a voluntary code put together by the UK Maritime Autonomous Systems Regulatory
Working Group (MASRWG) published by Maritime UK – available at https://www.maritimeuk.org/priorities/innovation/maritime-uk-autono-
mous-systems-regulatory-working-group/mass-uk-industry-conduct-principles-and-code-practice/ (last tested 1 November 2021). For example, an
RCC is defined in this document as “the set or system of equipment and control units that are needed at the site or sites where safe and effective remote
command, control and/or monitoring of the MASS, or several MASS, is conducted”. Chapter 11 defines architecture and potential responsibilities of
RCC and provide outline requirements for their functions.
8
One should not lose sight of the fact that there is also a need to consider the working conditions and rights of those working at such centres. They are
entitled to the protection that every employee working in the UK enjoys. Their working conditions are rather different than those working on board of a
ship and naturally regulations that are designed for seafearers would not be appropriate in this context.
9
Compare s.313 of the Merchant Shipping Act 1995, defining a master as a “person (except a pilot) having command of a ship”. This would seem to
cover a remote controller with full command of a MASS.
10
See the United Nations Convention on the Law of the Sea (UNCLOS) 1982, Art.94(4)(b).
11
See Reg.VIII/2 part 4-1, paras.18, 24 and 32. 7
 Diagram 1

Basic RCC Operations

8
11. In a case when the connection between the MASS and the RCC is lost (e.g. because of an
accident, a technical problem or for that matter a deliberate cyber-attack), the system ought to
be able to take immediate control of the MASS since those working in the RCC, while they will
be expected to re-establish communication or control as soon as possible, may not be able to do
so for some time. However, at this point other problems arise. What happens in cases where the
RCC system itself fails or malfunctions and accordingly the operator fails to maintain command of
the vessel? What if there is an excessive delay in activation of the autonomous functions?

12. These will have a significant bearing on the potential liability of the operator; but more
significantly it is essential for regulators to specify technical requirements expected of an RCC to
prevent such things happening as far as possible. In other words, apart from qualifications and
training for RCC personnel, regulation needs to specify (i) how the co-ordination between
different units will be achieved; (ii) the role and function of each operator within the RCC; (iii)
what technical requirements and designs an RCC should have to ensure safe operations; and (iv)
the safety management system that needs to be put in place. We believe that such regulatory
specification will play a key role when it comes to attributing liability to various parties,
especially operators, for their default or negligence.12

12
It is encouraging to see that DNV, a well-known classification society, has recently introduced the industry’s first competence standard for vessel
remote control centre operators named as DNV SeaSkill Standard ST-0324. The standard is supported by a new recommended practice that offers a
certification scheme for operators. Together, they provide a framework for training, assessing, and certifying personnel working in remote-control
centres that support or manage operations at sea. This is an encouraging development of course but it does not deter from the fact that there is an
urgent need to provide regulatory guidance in this area.
9
B) Ports

13. The use of ports in the United Kingdom is subject to a combination of national and local
regimes. Most ports are governed by the general provisions of the Harbours, Docks and Piers
Clauses Act 1847 and the Harbours Act 1964 (or in the case of ports such as Plymouth attached
to naval installations, the Dockyard Ports Regulation Act 1865). In addition, most ports are also
subject to local rules made under various subordinate legislative powers.13

14. Current English port law was not drafted with MASSs in mind. Nevertheless, there is, it
seems, no general rule of port law that can be construed as requiring vessels to be controlled by
a crew on board, or indeed to have a crew at all. MASSs therefore on principle have as much
right to use English ports as any other vessels. On the other hand, since ports have the right to
regulate their mode of use,14 subject to the principles of non-discrimination,15 it does not seem
that there is any general legislative requirement that they accept MASSs. If a port so wished, it
could therefore exclude MASSs entirely by insisting that vessels using it be crewed.

15. As we pointed out above, current English port law was drafted without reference to MASSs.
As we see it, assuming a port authority has no wish to exclude MASSs altogether, two matters
call for urgent regulatory action.

(i) The reconsideration of specific rules which, although not designed to do so, incidentally
make the use of a port by MASSs impossible. For example, within the limits of Humber port a
power-driven vessel of any size while underway is required to have a competent person on
the bridge,16 not to navigate without at least two people on board,17 and to keep at least one
person on board when moored18 or anchored.19 Again, in the Port of Plymouth it is illegal to
anchor in or near any of certain navigable channels without someone being on board,20 to
navigate anywhere in the harbour without maintaining a VHF listening watch in the
wheelhouse,21 or without maintaining a competent helmsman in a steering position when a
vessel is under the control of an automatic pilot.22 In addition all vessels are required to render
assistance on request to lifeboats, coastguard and other official vessels, which may be difficult
if a vessel is unmanned. It is our view that steps will have to be taken to disapply the above
provisions in the case of MASSs which meet particular safety standards to be specified.

13
There is, for example, a general power to make bye-laws under s.83 of the 1847 Act just mentioned, and also under ss.3, 5, 6 and 7 of the 1865
Act. The Humber Navigation Byelaws 1990 applying to the Port of Hull are made under the former powers, together with a number of more particular
pieces of legislation. The rules relating to Plymouth fall in the latter category: see the Dockyard Port of Plymouth Order 1999 (SI 1999/2029).
14
Notably because of the power to issue bye-laws under s.83 of the Harbours, Docks and Piers Clauses Act 1847, and harbour directions under
ss.40A-40D of the Harbours Act 1964.
15
Provided for by s.33 of the Harbours, Docks and Piers Clauses Act 1847 (“Upon payment of the rates made payable by this and the special Act,
and subject to the other provisions thereof, the harbour, dock, and pier shall be open to all persons for the shipping and unshipping of goods, and the
embarking and landing of passengers”).
16
Humber Navigation Byelaws 1990, Byelaw 8.
17
Humber Navigation Byelaws 1990, Byelaw 11(1).
18
Humber Navigation Byelaws 1990, Byelaw 27.
19
Humber Navigation Byelaws 1990, Byelaw 31.
20
Dockyard Port of Plymouth Order 1999 (SI 1999/2029), Sch.1, Art.3.
21
Dockyard Port of Plymouth Order 1999 (SI 1999/2029), Sch.1, Art.36.
22
Dockyard Port of Plymouth Order 1999 (SI 1999/2029), Sch.1, Art.39.
10
 (ii) References to a vessel’s “master”. As with the STWC mentioned in Para. 9 above,
legislation relating to ports frequently refers to the duties of the “master” of a vessel. This is
defined in s. 3 of the 1847 Act and other legislation23 as the “person having the command or
charge of the vessel for the time being”. Unfortunately, such a definition may be difficult to
apply to a vessel under control from an RCC, and well-nigh impossible where a vessel is
sailing entirely autonomously. We suggest two specific changes:

(a) The owners or operators of a MASS should be required by law to nominate a person to
fulfil the statutory role of “master”, to whom notices required to be sent to the “master” can be
communicated;
(b) It should be provided in law that, in the case of a MASS, any legal penalty or liability
attaching to the “master” should attach to the above person, and should also attach to the
registered owner of the vessel. This could be done by a general legislative provision stating
that wherever effective control of a vessel was being exercised by a person not on board,
then any legal penalty or liability arising under any enactment should, unless the context
required otherwise, attach to that person.

23
See s.2 of the 1865 Act and s.57 of the Harbours Act 1964, and numerous local orders and bye-laws.
11
(C) Pilotage

16. There is little international regulation on issues concerning pilotage,24 so regulating such
matters is entirely within the purview of any national state concerned. As far as the UK is
concerned, the Pilotage Act 1987 creates “competent harbour authorities” which have the power
in relation to the regulation of shipping movements and the safety of navigation within harbours
and other areas that come under their jurisdiction.25 There are over ninety competent harbour
authorities in the UK.26 Under the Pilotage Act 1987, the authority has power to determine
whether pilotage should be compulsory in their respective areas of competence,27 to set the
requirements for licensing of pilots28 and to grant pilotage exemption certificates.29

17. Obviously, the rules as they currently apply do not make any provision for remotely
controlled or autonomous vessels. It is our view that the following issues need to be considered
and regulated as a matter of priority:

(i) There is an urgent need to specify the nature of the pilotage services to be offered to such
vessels. It would make little sense for a pilot to come on board of a vessel operated through
an RCC or navigating autonomously, unless there was a pressing need. For such vessels, one
would expect pilotage services to be offered remotely. In fact, Finland has just passed a
legislation enabling remote controlled pilotage.30 There is no obstacle in the UK legislation for
the introduction of a similar pilotage service. A “pilot” in UK legislation is described as “any
person not belonging to a ship who has the conduct thereof”.31 Therefore, it is not a legal
requirement that the pilot should be on board the vessel they are assisting.

(ii) Assuming that remote pilotage is the way forward for MASSs, the following issues should
also be addressed:
(a) Competent harbour authorities (in our example in Hull and Plymouth) need to put in
place rules concerning training and operational procedures for remote pilots. It would
certainly help if such requirements were consistent nationally, so perhaps a national body,
such as the MCA, should assume the role of determining such regulatory standards.

24
Save for two exceptions. First, the Recommendations published by the IMO in 2003 on the training of, and operational procedures for, maritime
pilots other than deep sea pilots: IMO Resolution A. 960(23) of 5 December 2003. Second, in the case of collisions, the Brussels Convention 1910
requires that the owner of a vessel be responsible for the actions of a compulsory pilot.
25
See s.1(1) of the Pilotage Act 1987.
26
For example, Associated British Ports (ABP), which owns many of the UK’s larger ports, is the competent harbour authority both for Hull and
Plymouth ports
27
See s. 7 of the Pilotage Act 1987. For example, Pilotage Directions 2019 South Wales, published by ABP South Wales, stipulate that pilotage is
compulsory in the following instances:
i) All vessels or tows of over 85.00 m length overall;
ii) All vessels or tows of over 20.00 m length overall carrying: a) Dangerous or noxious liquid substances in bulk b) Twelve or more passengers. c)
Explosives.
iii) All vessels that are engaging the assistance of “Harbour tugs”
iv) All vessels or tows of more than 60 m but less than 85 m unless a bona fide deck officer has navigated the port on that vessel or a vessel of a similar
class in the past 12 months.
28
See s. 3 of the Pilotage Act 1987.
29
See s. 8 of the Pilotage Act 1987.
30
Law 51/2021, amending the Pilotage Law 2003.
31
Section 31(1) of the Pilotage Act 1987.
12
 (b) Computer systems running a ship must be able to switch over, to allow input from a
remote pilot. This is a technical issue but illustrates the need for regulators to work closely
with manufacturers of MASSs.
(c) As discussed earlier, it is imperative to determine the legal status of the remote control
operator and it would make sense to attribute this person a status akin to the status of a
master. Even so, a critical question remains: what if a vessel is under remote pilotage and
the controller feels (for example because the pilot is patently incompetent or drunk) that they
need to intervene to retake control? We are of the view that MASS systems should be
required to be developed in a way that the remote operator retains ultimate control in such a
case.32

32
This would not noticeably affect questions of legal liability. A ship operator is always liable for the negligence of a pilot in any case, whether pilot-
age is compulsory or not. The pilot is theoretically liable to third parties for any negligence they commit, but liability is limited under s.22 of the Pilotage
Act 19787 to the comparatively insignificant sum of £1,000.
13
Diagram 2

14
 (iii) Another issue regarding pilotage that needs to be addressed is whether MASSs could be
exempted from compulsory pilotage. It is, for example, in the discretion of the competent
harbour authority to request such vessels to operate at Degree 4 (in full autonomy) at
certain areas. In that scenario, there is a case to argue that a blanket exemption should be
issued for MASSs especially given that in that mode of operation manual override of the
autonomous systems of a MASS will not be viable. Although this is a possibility, we are of the
view that apart from public concern over safety, such a move, which will have the effect of
reducing the significance of the pilotage sector, will be resisted.
(iv) Lastly, there is a need to determine whether remote control operators can be issued
pilotage exemption certificates. Section 8(1) of the Pilotage Act affords a discretion to the
competent harbour authority to issue, on application, to any deck officer33 if specific
requirements are satisfied.34 On that basis, assuming that the legal position of a remote
operator is treated to be akin to a ship master, there is nothing in the current legislation
preventing such operator from making an application to a competent harbour authority to
be issued an exemption certificate from pilotage. However, we believe this is also a matter
that needs to be addressed explicitly in any relevant regulation.

33
Deck officer, in relation to a ship, includes the master and first mate according to s.31(1) of the Pilotage Act 1987.
34
If the skill, experience and local knowledge of the relevant person is sufficient for them to be capable of piloting the ship of which (s)he is a deck
officer (or that and any other ships specified in the certificate) within its harbour or such part of its harbour as may be so specified; and in any case
where it appears to the authority to be necessary in the interests of safety, that his/her knowledge of English is sufficient for that purpose.
15
D) Salvage

18. Under the maritime law of salvage, a person who successfully saves a vessel from imminent
danger in navigable or other waters is entitled to an award of such sum as is fair and just in the
circumstances, taking into account such matters as the degree of skill involved, the value of the
property salved, the degree of danger and a large number of other factors.35 The principle of
salvage is universally (though not identically) applicable in all significant maritime jurisdictions.

19. In England and Wales salvage is governed by the provisions of the Salvage Convention of
1989, incorporated into domestic law by the Merchant Shipping Act 1995.36 Salvage services
need not strictly speaking be rendered under a contract, so that (for example) if a vessel finds
another ship abandoned and the crew immediately proceed to salve her, a salvage liability will
still arise. In practice, however, nearly all salvage today is carried out under contract, with the
contract being contained in a standard document, such as Lloyd’s Open Form or the US Open
Form Salvage Agreement.

20. The Salvage Convention 1989 predates the introduction of MASSs. In fact a good deal
of it carries across quite neatly to autonomous vessels such as the one in our example transiting
between Hull and Plymouth. For example, this is certainly true as regards subject-matter. Under
the 1989 Convention salvage applies to any “vessel” or “property”, a “vessel” being defined as
“any ship or craft, or any structure capable of navigation”.37 There can be no serious doubt that
this includes a MASS. Again, if an abandoned vessel is found and brought safely to port, it fairly
clearly makes no difference to the nature of the services, or the remedy available to the person
providing them, whether was originally crewed or uncrewed.

21. Nevertheless, there are two points of importance where we consider regulatory updating to
be necessary.

(i) The position of the “master” of a vessel. The “master” of a vessel plays an important part in
the scheme of the 1989 Salvage Convention. S(he) features in at least five instances:.
(a) Under Art.6.2, “The master shall have the authority to conclude contracts for salvage
operations on behalf of the owner of the vessel. The master or the owner of the vessel shall
have the authority to conclude such contracts on behalf of the owner of the property on
board the vessel.”
(b) Under Art.8.2, “The owner and master of the vessel or the owner of other property in
danger shall owe a duty to the salvor (a) to co-operate fully with him during the course of
the salvage operations; (b) in so doing, to exercise due care to prevent or minimize damage
to the environment; and (c) when the vessel or other property has been brought to a place
of safety, to accept redelivery when reasonably requested by the salvor to do so.”

35
The subject is helpfully summarised in the leading legal text, Kennedy and Rose on the Law of Salvage (10th ed) (Sweet & Maxwell, 2021), Ch. 1.
36
See Part 9, Chapter 1, and Schedule 11, Part I.
37
Art.1(b).
16
 (c) Under Art.10.1, “Every master is bound, so far as he can do so without serious danger
to his vessel and persons thereon, to render assistance to any person in danger of being lost
at sea.”
(d) Under Art.15, “The apportionment between the owner, master and other persons in the
service of each salving vessel shall be determined by the law of the flag of that vessel.”
(e) Under Art.19, “Services rendered notwithstanding the express and reasonable
prohibition of the owner or master of the vessel or the owner of any other property in
danger which is not and has not been on board the vessel shall not give rise to payment
under this Convention ”

Apart from Art.15, which is inapplicable in the nature of things to a MASS, these provisions
can be difficult to apply where a vessel is uncrewed, since in such a case there is no-one who
readily answers the description of “master”. To accommodate this problem, there needs in
our view to be an amendment to the Merchant Shipping Act 1995. This should state that, for
the purposes of the Salvage Convention, where a ship is uncrewed or under RCC control the
term “master” shall include the person from time to time in control of the vessel at a relevant
control station.

(ii) The place where salvage services are rendered. The 1989 Salvage Convention defines
salvage services is “any act or activity undertaken to assist a vessel or any other property
in danger in navigable waters or in any other waters whatsoever.”38 With autonomous
vessels, the saving of the vessel from danger might well entail entirely land-based operations.
Examples might include the hiring of IT consultants to sort out an onboard computer failure,
or to rescue a vessel under computer control from the clutches of cyber-hackers intent on
taking her over. Such operations deserve to be treated as salvage. We take the view that the
Merchant Shipping Act 1995 should be amended to ensure that they are, despite the fact that
they may be entirely land-based.

38
Art.1(a).
17
(E) Liability Relating to Navigation: Collision etc

22. This section sets out the law of England and Wales on the potential liabilities of ship
operators and remote controllers for damage to other vessels, fixed or shore installations arising
out of collisions.

23. The present law is complex but can be summarised as follows.

(i) In general.

Subject to two exceptions referred to below, legal liability for damage or injury caused by
maritime collisions depends on proof of fault. Where a collision occurs entirely without fault on
anyone’s part (which is admittedly rare in practice), then losses lie where they fall and there is
no liability.

The fault may be that of those on board a vessel, such as a master, engineer or officer of the
watch; in so far as such persons are negligent, their employers (in practice the vessel’s
owners, or in the case of a vessel bareboat chartered, the charterers) will be liable. Very
relevant in this connection are the International Regulations for Preventing Collisions at Sea,
colloquially known as Colregs, which lay down rules and standards to be observed by
vessels with a view to avoiding and mitigating the risk of collision.38

But the negligence need not necessarily be that of those on board. If it can be shown that a
collision resulted from some shore-based fault of her owners or bareboat charterers, then the
latter may equally be liable. Examples would be where a casualty was shown to have
resulted from inadequate training of the crew in how to handle emergencies, or inadequate
maintenance of steering gear leading to its failure at a crucial moment. In practice, a high
standard is expected both from those on board a vessel and from those concerned with her
maintenance and the training of the crew, and even small faults are likely to lead to liability.

Where the owners or operators of a vessel are liable in respect of a collision, in practice any
damages are paid by the vessel’s hull or P&I insurers. In the rare cases where this does not
happen, or there is no valid insurance policy in force, it is open to the owner of any
property damaged, or any claimant injured (or his relatives in the case of death) to arrest the
vessel in order to secure their claim.

(ii) Cases of liability without fault.

There are two important exceptions to fault liability. Where a vessel is in collision with fixed
harbour installations in England and Wales, legislation (in the shape of a nineteenth-century
statute, the Harbours, Docks and Piers Clauses Act 1847, s.74) makes the owners
automatically liable for the damage even if they are completely without fault.

39
Their detailed effect is summarised in Marsden & Gault, Collisions at Sea (15th ed) (Sweet and Maxwell, 2021), Chapter 7.
18
 But note: this liability attaches only to the registered owners of the vessel, and applies only to
harbour installations, not e.g. other fixed objects such as exploration platforms where fault
must be shown in the ordinary way.40 The other exception is strict products liability. Where a
collision is due to the failure of new equipment placed on board a vessel, such as
navigational or radar equipment, or steering or engine control mechanisms, the producer of
the equipment may find itself strictly liable under product liability law, namely Part I of the
Consumer Protection Act 1987, for any death or personal injury resulting. This subject is dealt
with in greater detail below.41

24. The above rules were developed in the nineteenth century without reference to MASSs, but
would apply equally to the autonomous vessel sailing from Hull to Plymouth in our example,
whether she is sailing entirely under her own on-board automatic controls or under the
supervision of an RCC. Thus, subject to the two exceptions mentioned above, liability continues
to depend on fault. Of course, if there is no-one on board there can, in the nature of things, be no
question of crew negligence. But it may well still be possible to prove negligence in her
owners and operators for failing properly to supervise her operation or maintain her to an
adequate standard. Note, however, that vessel owners or operators will be liable only for their
own negligence, and will not normally bear responsibility for the fault of an RCC.

25. In addition to this, in the case of an autonomous vessel such as the one posited in our
example, there is the potential for liability on three other parties.

(i) The RCC.

While a vessel is under the direct control of a shore station, there is no doubt that the operators
of the latter entrusted with her navigation and control owe a duty of care to prevent collisions
with other vessels or installations. They would thus face potential liability for damage caused
if, for instance, (a) the employee in charge failed to take proper steps to keep a remote
look-out or otherwise avoid the risk of collision; (b) they failed to provide their employees with
proper training in how to handle emergencies, with the result that a collision occurred; or (c)
they failed to maintain adequate equipment, or to keep equipment they did have properly
tested according to reasonable professional standards.

In addition, there might also be liability even where the vessel was sailing entirely
autonomously, at least if the shore station had the ability to retake control in an emergency. It
seems likely that the station would owe at least some duty to monitor a vessel in case an
emergency situation arose requiring such a takeover, and if it did to take reasonable steps to
regain control and mitigate the risk.

40
The effect of this provision is described in some detail in Marsden & Gault, Collisions at Sea (15th ed), Paras.8-24 – 8-33.
41
In addition to the above, there is also a special strict liability regime for pollution caused by bunker oil and heavy oil; carried in bulk, but we
are not concerned with those here.
19
 (ii) Maintainers of control equipment.

Control from a shore station in the nature of things demands the use of specialised and
complex equipment, comprising (for example) computer hardware, servers and software
and devices capable of maintaining reliable communication between ship and shore. In so
far as it can be shown that the collision was caused by failure of such equipment or
hardware, and that this failure was due to the negligence of those who were tasked with
maintaining it, then the latter will in principle be liable for any damage resulting.

(ii) Product liability.

In addition, there is the possibility of a product liability suit. This is dealt with below.

26. In our view, regulatory updates are essential in a number of areas so as to allow the law to
take proper account of MASSs.

(i) Owners may unjustifiably escape liability to other vessels and shore installations.

Except as regards liability for loss or damage to cargo on board the ship in question, owners
and operators of vessels are liable for the negligence of their own employees, but not for that
of independent contractors or their workers. Ships’ crews are employees, while RCCs are
independent contractors. This means that the same act of negligence – say failure to keep a
proper look-out – will make the owner liable if committed by a crew member, but not if
committed by a remote officer. We see this as an indefensible anomaly. In our opinion
the law needs to be changed so that the owner becomes liable for the negligence of the
RCC’s employees. This change will largely assimilate the positions of the owners of uncrewed
vessels to those of crewed vessels, the latter being liable for the acts of those in control of the
vessel, though not for the negligence of third parties such as repairers and service providers.
Thus the owners of MASSs will be liable for the negligence of those in direct control of the
vessel; but they will not be liable for that of independent repairers, nor for providers of
equipment to the RCC, nor for failure of communications more generally. Apart from their
liability for the negligence of RCCs, they will only be liable for the fault of their own
employees. Where both owner and RCC are liable, the law should equally be changed
to make it clear that there can be adjustment as between owners and the shore station, and for
contribution between them.

(ii) The standards of Colregs.

Much of the determination of fault in a collision context depends, in practice, on their

application and whether they were broken.

Colregs were drafted without reference to autonomous vessels. Many of their requirements, for
example lights to be shown by vessels, can be carried across easily: some, such as the precise
rules relating to overtaking, crossing and narrow channels, are if anything better suited to
mathematical than human following. But regulatory change is needed for some others.

20
 Notably the requirement for the keeping of a proper look-out under Reg.5 of Colregs clearly
assumes a look-out by those on board; so too the requirement to proceed at an appropriate
speed under Reg.6, when it refers to the state of visibility and local factors that that may impair
it. In our view, three things must be made clear by amending legislation. One is that
references to a proper look-out comport, in the case of a MASS under the control of an RCC,
such a lookout as is reasonable to expect from a reasonable controller in respect of a vessel
properly equipped with the correct on-board sensing equipment, etc. Secondly, visibility
should be defined in the case of an autonomous vessel to mean visibility available to a
reasonable shore-based controller. Thirdly, it should be stated that in so far as is practicable,
the scope and range of any “virtual” look-out should be no less extensive than that which
would have obtained had the relevant lookouts been an onboard crew.

Table 2

Table 3

21
(E) Liability relating to Navigation: Cargo Damage etc

27. This section sets out the law of England and Wales on the potential liabilities of ship
operators and remote controllers for damage to cargo on board. The present law again is
complex, but is summarised as follows.

(i) In general. As regards cargo loss or damage, the liability of the ship operator depends on
the terms of the contract of carriage. If this is contained, as it often is, in a bill of lading
governed by the Hague-Visby Rules,42 then the operator is essentially liable in two cases: (1)
where it fails to take proper care to load, stow and look after the cargo,43 and (2) where at
any time before the beginning of the voyage it fails to show due diligence to ensure that the
carrying vessel is seaworthy and fit to carry the cargo.44 It should be noted that both these
duties are referred to in law as “non-delegable”: that is, the ship operator is liable not only for
its own fault, but for that of independent contractors employed by it.45

Note, however, that this is balanced by two immunities. The ship operator is not liable for
navigational fault (“act, neglect, or default of the master, mariner, pilot, or the servants of the
carrier in the navigation or in the management of the ship”), even where cargo is lost or
damaged as a result; nor is it liable for loss or damage caused by fire, unless due to the fault
of its senior management.46

Where carriage is governed by a voyage charter, liability depends on the terms of the
charter. Very often the charter will contain similar terms to the above; but freedom of contract
prevails here, and on occasion liability may be more limited.

(ii) Liability to cargo interests: the position of autonomous vessels and shore stations. There is
no special rule for autonomous vessels here, but the application of the existing rules may give
rise to slightly unexpected results.

The ship operator. As regards the duty to look after the cargo and provide a seaworthy ship,
the operator will be liable not only for its own negligence but also for any fault by the shore
station employed as an independent contractor (see above). This can be significant. If, for
example, the shore station in programming a voyage fails to plan it properly so as to avoid
hazards or heavy weather, this amounts to failure to provide a seaworthy ship; from which it
follows that the ship operator will be liable for any resulting cargo loss. Again, imagine the
shore station has control over hold ventilation, and fails to exercise it, with the result that in the
tropics a cargo of wheat overheats and sprouts. This is failure to take care to look after the
cargo, for which the ship operator will be liable.

42
The full legal effect of which is described in some detail, for those interested, in Scrutton on Charterparties and Bills of Lading, 24th ed, (Sweet &
Maxwell, 2019) Ch.14
43
Hague-Visby Rules, Art.III.2.
44
Hague-Visby Rules, Art.III.1.
45
Scrutton on Charterparties and Bills of Lading, 24th ed, (Sweet & Maxwell), Paras.14-46 and 14-51.
46
See Hague-Visby Rules, Art.IV.2(a) and Art.IV.2(b).
22
 The RCC. The position of the control station, which is not party to the contract of carriage, is
less clear as a matter of law. Very possibly, however, it owes a general duty of care to the
owner of cargo on board a vessel under its control. If so, any negligence on its part, such as
failing to take care to ventilate cargo, avoid a collision or cause the vessel to sail round an
area of heavy weather will make it liable to cargo interests for any damage suffered as a
result. Ironically, this may mean that the centre will be liable to cargo in cases where the ship
operator itself would not be, as with navigational fault.

28. Many of the rules on cargo liability carry over well to MASSs and RCC-controlled vessels.
But in our view there is a need for one important regulatory change.

29. We see it as anomalous that there should be a possibility of cargo claims lying against
shore-based controllers when they would not lie against a carrier itself because of the terms of
the contract of carriage. It is our view that legislation should make it clear that any defence or
limitation of liability which would have been available to a carrier may also be invoked by a
shore-based controller.

23
(G) Limitation of Liability

30. In maritime law, the shipowners and certain others connected with the operation of a ship
have traditionally enjoyed a right to limit their liability when facing maritime claims from third
parties. Although this privilege has often attracted criticism, it provides the backbone of the
liability regime for maritime claims. The ultimate beneficiary of such regime is liability insurers as
such limitation enables them to calculate their maximum exposure in case of a maritime incident
concerning the vessel they provide insurance cover for.

31. The UK is party to the Convention on Limitation of Liability for Maritime Claims 1976 as
amended by the 1996 Protocol (known as the LLMC 1996).47 Under this regime, the right of
limitation is afforded to “shipowners”, “salvors” and “persons for whose acts the shipowner or
the salvor responsible”. The registered owner, the charterer and the operator of a seagoing ship
are deemed to be within the definition of a shipowner for the purposes of this regime so they are
also entitled to limitation of liability.48 When it comes to our remote controlled vessel (with the
ability for autonomous navigation) completing its journey from Hull to Swansea, a number of
issues emerge:

(i) Would it be possible for this craft to limit its liability under the LLMC 1996? The Convention
does not define a “ship”; but the MSA 1995 does, stating that “ship” includes “any structure
(whether completed or in the course of completion) launched and intended for use in
navigation as a ship or part of a ship”. As such the definition is similar to that in s. 313 of the
same Act, regarding a “ship” as “every description of vessel used in navigation”, save that
an intent to use the vessel in navigation also suffices. To that extent, in so far as s. 313 includes
autonomous vessels, so does Schedule 7 providing for the right to limit. On that basis, we do
not believe this creates any difficulty.

(ii) A more difficult question is whether an RCC or those working at a RCC would be entitled to
limit their liability in case of a casualty. We believe that it is within the spirit of the Convention
that where immediate operation of a vessel is entrusted to any third party, that third party
should be entitled to limit. Put differently, it is our view that the term “operator” in the
Convention should be construed to include those in control of the ship in an RCC or the RCC
itself.

46
This has been implemented into English law by ss. 185-186 and Schedule 7 of the Merchant Shipping Act (MSA) 1995. The limits have been
amended by the MSA 1995 (Amendment) Order 2016, SI 2016/1061.
47
Article 1.2 of the LLMC 1996..
24
 (iii) Another point to consider with regard to limitation is the position of a shipowner/operator.
The right of limitation is not indefinite and might be lost in some instances. Under the LLMC
1996, for example, a person liable shall not be entitled to limit his liability “if it is proved that
the loss resulted from his personal act or omission, committed with the intent to cause such
loss, or recklessly and with knowledge that such loss would probably result.”49 Unless this test
is amended, it is submitted that it will be virtually impossible to break the limits if a
programming or software error causes a collision between a vessel in autonomous navigation
mode and other vessels. In that scenario, it will be rather difficult if not impossible for third
parties to demonstrate the personal act or omission of the shipowner/operator. The outcome
will probably be the same even if ship managers fail to upload software updates onto the
system, as in most instances such a conduct will fall short of “recklessness”50 required to break
the limits.

32. Last but not least, it is clear that manufacturers, such as software producers and programme
designers, will not be able to limit their liability under LLMC 1996 when a recourse action is
brought against them by the shipowner or by a third party involved in a collision for malfunction
of parts manufactured by them. Whether the right of limitation of liability should be extended to
such parties is ultimately a political decision. But we would point out that if it is not, the liability of
the builder of an autonomous vessel, or the manufacturer of the systems used to control the
vessel, will be higher than the liabilities faced by the shipowner itself. This might have serious
implications in insurance arrangements and cost of liability insurance that manufacturers would
need to purchase.

49
Article 4. The same test also applies in other maritime conventions, such as International Convention for the Unification of Certain Rules of Law
relating to Bills of Lading 1968 and Convention relating to the Carriage of Passengers and their Luggage by Sea 1974/2002.
50
Recklessness is understood to be “a state of mind stopping short of deliberate intention, and going beyond mere inadvertence”. See, R. v. Lawrence
(Stephen) [1981] 1 All ER 974, at p. 978, per Lord Hailsham.
25
III. OTHER LEGAL MATTERS

(A) The Right of Arrest

33. In a number of situations a person with a claim against the owners or operators of a vessel
may have a right to enforce that claim by arresting either that vessel, or a sister-ship in the same
ownership. This right can be important, in that a person arresting a ship becomes, in common
with anyone else with a right to arrest her, a secured creditor and therefore at least partly
protected if the owner is insolvent. The situations where arrest is allowed are listed in s.20 of the
Senior Courts Act 1981. The more significant ones are claims for salvage and towage, and for
damage done by a ship; cargo claims; claims for injury suffered on board a vessel; claims for
wages by master and crew; claims arising out of the supply of commodities such as bunkers; and
claims arising out of charters.

34. The rights of arrest were last updated legislatively in 1981, well before the advent of MASSs.
Nevertheless, most can be applied straightforwardly to the kind of autonomous vessels imagined
in this report. Although the right of arrest is limited to “ships”, there is no difficulty in applying the
legal definition of a “ship” (“any description of vessel used in navigation”)51 to an autonomous
or uncrewed vessel such as the one in our example. Nor is there any problem with many of the
specific claims. A claim for bunker supply, or salvage, or towage, is of exactly the same nature
whether it relates to a ship with or without a crew on board; so too a claim for breach of a
charterparty. But a few could cause problems: see below.

35. We take the view, however, that there is a need for legislative and/or regulatory change in
a few cases, namely (i) claims for “damage done by a ship”; (ii) claims for loss of life or personal
injury suffered in consequence of ship operations; (iii) claims for fees due to control centres; and
(iv) claims for wages by the master or crew of a ship.

(i) Claims for “damage done by a ship.” (Senior Courts Act 1981, s.20(2)(e)). Under the
present law the concept of “damage done by a ship” is interpreted as covering cases where
the damage is due to the negligence of those in possession of the vessel, such as an owner,
operator or bareboat charterer, or their employees.52 It is not clear whether such a right would
arise where control of a vessel has been delegated to persons not on board, such as a
third-party control centre ashore. We take the view that a right of arrest should be available
in such a case, and that the 1981 Act should be amended accordingly. It should in addition be
made clear that the additional security afforded by a maritime lien over the vessel for damage
done cannot be denied merely because the relevant fault is that of those at a shore-based
control centre.

51
See s.24(1) of the 1981 Act.
52
A. Tettenborn & F. Rose, Admiralty Claims (Sweet & Maxwell, 2020), Paras. 2-21 – 2-30.
26
 (ii) Claims for loss of life. (Senior Courts Act 1981, s.20(2)(f)). Section 20(2)(f) allows arrest
for any claim described as follows:

“any claim for loss of life or personal injury sustained in consequence of any defect in a ship
or in her apparel or equipment, or in consequence of the wrongful act, neglect or default
of—

(i) the owners, charterers or persons in possession or control of a ship; or

(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or
defaults the owners, charterers or persons in possession or control of a ship are responsible,

being an act, neglect or default in the navigation or management of the ship, in the loading,
carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or
disembarkation of persons on, in or from the ship.”

It is our view that for the avoidance of doubt, legislation should confirm that, for the purposes
of s.20(2)(f), the words “master or crew” should be interpreted as including any persons from
time to time in control of a vessel from a shore control station.

(iii) Claims for sums due to RCCs. Under s.20(2)(m) there is a right of arrest in respect of “any
claim in respect of goods or materials supplied to a ship for her operation or maintenance.”
This has been interpreted as including at least some supplies of services to a vessel, such as
stevedoring or crewing agency services.53 It would probably be construed as also applying to
shore control services, but the matter cannot be regarded as beyond doubt. Legislation should
make it clear that this is indeed the case.

(iv) Claims for wages. Under s.20(2)(o) of the 1981 Act there is a right to arrest a ship, and in
addition a maritime lien against the vessel herself, in respect of “any claim by a master or
member of the crew of a ship for wages (including any sum allotted out of wages or adjudged
by a superintendent to be due by way of wages)”. What is not clear is whether this would
apply to controllers in a shore station. We take the view that it should not. The right of crew to
arrest a ship for wages seems to us to be based on the assumption that seafarers physically on
board a vessel, perhaps far from home, need special protection in this respect. We do not
think that any such need applies to remote shore controllers, and would urge that, by way of
clarification, statute should provide that such persons shall not be regarded as master or crew
for the purposes of s.20(2)(o). We would also call for confirmation that such persons are not
entitled to a maritime lien on the vessel.

53
A. Tettenborn & F. Rose, Admiralty Claims, (Sweet & Maxwell, 2020), Para. 2-43.
27
(B) Product Liability

36. Liability for marine casualties is normally thought of in terms of suits brought against
shipowners and charterers. Typical are cargo claims against the carrying vessel, and claims
arising out of collisions brought against vessel owners by the owners of other vessels damaged,
together with crew and others injured aboard those other vessels.

37. But these are not the only possible claims. It is possible to sue others as well as vessel
owners and operators. In particular, one chance of potential defendants, including in particular
the producers of safety or control equipment, and for that matter (at least theoretically)
shipbuilders. Moreover, as will appear, once control of a vessel passes from crew onboard to
operators ashore the liability of third parties, including product liability, may become much more
important. The law is briefly summed up below.

(i) Negligence liability.

There is no doubt that the producer of any item, including a compiler of computer software,
owes a duty of care to anyone likely to suffer damage or injury as a result of a defect in it. If
the product has been negligently manufactured, then unless there is a probability of
intermediate inspection the manufacturer will be liable to anyone suffering foreseeable injury
or property damage as a result.54

A similar rule applies to those elsewhere in the distribution chain, such as distributors and
suppliers: if a company distributes an item it ought to know is dangerous, or negligently installs
it in such a way that damage is foreseeable, it is potentially liable for that damage.

(ii) Strict liability.

In some cases there is liability for damage done by defective products independently of fault.
Under Part I of the Consumer Protection Act 1987, reproducing an EU Directive55 and still in
force despite Brexit, the producer of any product, and anyone importing it into the United
Kingdom, is liable to anyone suffering death or personal injury as a result of that product
being unsafe: that is, as a result of it not having that degree of safety which persons generally
are reasonably entitled to expect. Negligence does not need to be shown; merely
defectiveness, and injury suffered as a result.56 It should be noted, however, that this liability is
subject to a number of restrictions. It only applies to the producer of a physical product, and
not to computer software (though where defective software is incorporated into a physical
product and causes it to malfunction the latter may itself be defective as a result). And it only
applies to defects causing death or personal injury: damage to commercial property, such as
ships, cargoes, platforms or harbour installations, is excluded.57

54
The law on this is described in full in Clerk & Lindsell on Torts, 23 ed, (Sweet & Maxwell, 2020), Paras.10-08 – 10-44.
55
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States
concerning liability for defective products.
56
See Clerk & Lindsell on Torts (23 ed), (Sweet & Maxwell, 2020) paras.10-45 – 10-91.
57
There is theoretically liability for damage to non-commercial property, but this is of little relevance here
28
38. Both these heads of liability are potentially significant in the case of our example of an
autonomous vessel sailing though UK territorial waters between Swansea and Hull. For example:

(i) A refrigerated container cargo is destroyed when the temperature in the container
unexpectedly rises. The cause is a glitch in negligently-written control software, which
prevents temperature readings reaching the control centre to be monitored (or causes
adjustment instructions entered onshore not to be transmitted to the vessel and given effect).
The writer of the software is potentially liable.

(ii) A collision occurs between the autonomous vessel and another ship, causing extensive
damage to the latter and badly injuring one of her crew. The cause is the failure of a
negligently-manufactured onboard sensor on board the autonomous vessel (or a
negligently-made servo which would otherwise have caused a change of course). The
manufacturer concerned is likely to face liability.

(iii) A collision occurs between the autonomous vessel and another ship, causing extensive
damage to the latter and badly injuring one of her crew. The cause is the failure of a defective
engine control mechanism which the person supplying it had reason to know to be an
unreliable product. The supplier is potentially liable.

(iv) A collision occurs between an autonomous vessel and another ship as above, damaging
the latter injuring a crew member. The cause of the collision is that the control station at a
critical moment loses control of an autonomous ship as a result of an electric “fault” which
disabled the controlling computer. An adequate over-voltage protector which would have
prevented this could have been built into the relevant hardware, but the assemblers had
negligently failed to do this. The assemblers are likely to be liable.

(v) Imagine, for example, that a crew member on a ship is killed or injured in a collision when
an autonomous vessel loses control and hits his own vessel. It is quite possible that (s)he, or
her/his estate, may be able to prove that the casualty occurred because of a defect in any
one of numerous pieces of equipment or elements of the system. Examples include any of the
control or sensing equipment on the autonomous ship; communication equipment on that
vessel or in the shore station controlling her; or the detailed control hardware in the latter
place. In every case the producer of the equipment, or in the case of equipment imported into
the UK the importer of it, is potentially liable for the injury or death.

29
39. In our view, in order to accommodate MASSs within the scheme of product liability, there is
a need for a number of legislative and/or regulatory changes.

(i) The geographical scope of the Consumer Protection Act 1987.

It is unclear what the territorial extent of the Consumer Protection Act 1987 is.58 In particular,
does it apply to injury suffered on the high seas (assuming that the vessel in our example
briefly strays outside territorial waters), or outside the UK land mass but within UK territorial
waters? And does it apply to goods produced abroad? It is our view that this matter needs
to be clarified. In our opinion, it should be made clear by statute that the Act extends (a) to
any injury suffered in UK territorial waters, and (b) to defective products wherever
manufactured. Thus where injury is suffered in UK territorial waters because of a malfunction
in defective equipment in a control centre abroad, it should be possible to hold the
manufacturer strictly liable wherever the equipment was produced. Marine casualties are,
after all, in their nature transnational; and in the context of autonomous ships the positioning
of the control centre (or centres) is likely to be entirely arbitrary.

(ii) The applicable law in product liability cases.

The present rules about whether English law, or some foreign system, applies to a product
liability claim are entirely inappropriate to the context of autonomous (or for that matter any)
shipping law. Contained in retained EU legislation known as the Rome II Regulation,59 they
essentially say that English law applies only to cases where steps were taken to market the
offending product in the UK.60

This is in our view wholly inappropriate in the context of claims brought in respect of damage
caused by defective products aboard a vessel, or products being used or deployed in an
autonomous vessel control centre. We would urge that, in the context of claims for damages
arising out of a marine casualty, it should be stated that the rules of English law apply
whenever the casualty took place in England or its territorial waters, and wherever the
offending property was at the time of the casualty.

(iii) Limitation of liability.

We argue elsewhere that the right to limit liability which presently inheres in shipowners and
charterers is too narrow. It is our view that it should be extended to product liability claims. For
details see paragraph 32, above.

58
It has been decided by the High Court that it does not apply to injury caused in a foreign country (see Allen v Depuy International Ltd [2014] EWHC
753 (QB); [2015] 2 W.L.R. 442); but beyond that there is no guidance.
59
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations.
60
See Art.5 of the above Regulation.
30
(C) Criminal Jurisdiction

40. The jurisdiction of English and Welsh courts over criminal offences is based on the principle
of territoriality that requires the commission of the crime (wholly or partially) within England and
Wales,61 including their territorial waters.62 But it also extends further. The courts have jurisdiction
to try offences committed on, under or above an offshore platform in designated areas or “any
waters within five hundred metres of any such installation”.63 In addition, acts in relation to
person or property done by seamen employed on a UK ship may be tried in England wherever
they occur;64 and the same goes for offences under the Merchant Shipping Act committed
anywhere by British citizens, and by non-British citizens aboard British vessels.65

41. One important issue to note is that offences committed by foreign nationals on board foreign
ships within English territorial waters are only to be prosecuted if the Secretary of State
consents.66 Such procedure satisfies Article 27 UNCLOS which prohibits the exercise of criminal
jurisdiction of the coastal State “on board a foreign ship passing through the territorial sea to
arrest any person or to conduct any investigation in connection with any crime committed on
board the ship during its passage”, save only for a limited type of situations mentioned therein.

42. In our scenario, there is no extraterritorial element as the MV Albion is a British registered
vessel operating exclusively within the territorial waters of England and Wales and controlled by
a remote-control centre in Wales. Its operation falls squarely within the ambit of English criminal
laws.

43. Having said that, the fact that the RCC, being in Swansea, is subject to the jurisdiction of
the English or Welsh criminal courts is only the beginning of the story as several maritime-related
criminal offences are linked to the behaviour of the master or a seaman.67

44. First, s. 58(2) of the MSA creates a criminal offence of conduct endangering ships,
structures or individuals which is deliberate, negligent or drink-induced. It is addressed to the
master of, or any seaman employed in, a UK ship or in a non-UK ship that is in a UK port or
within UK waters while proceeding to or from such port.68 However, this provision is of limited
use in the case of a MASS, since an offence is only committed if the defendant is at the time “on
board his ship or in its immediate vicinity”, which will almost always not be the case in respect
of acts or omissions taking place in a RCC. It is a big stretch to argue that a remote operator in
Swansea is in the vicinity of a ship sailing from Hull to Plymouth.

61
R v Harden [1963] 1 QB 8 where a conviction for the offence of obtaining property by false pretences was quashed because the property was
obtained in Jersey. For these purposes not only the Channel Islands, but Scotland, Northern Ireland and the Isle of Man are outside the jurisdiction of
the English courts: M Hirst, Jurisdiction and the Ambit of Criminal Law (OUP, 2003), at 61.
62
s. 2 of the Territorial Waters Jurisdiction Act 1878.
63
s. 2 of the Criminal Jurisdiction (Off shore Activities) Order 1987 (SI 1987 No. 2198) and s. 10 of the Petroleum Act 1998.
64
Merchant Shipping Act 1995, s. 282
65
Merchant Shipping Act 1995, s.281
66
See s.3 of the Territorial Waters Jurisdiction Act 1878. This limitation is now required by Art. 27 of UNCLOS, which generally prohibits the exercise of
criminal jurisdiction of the coastal State “on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation
in connection with any crime committed on board the ship during its passage”.
67
We focus on marine-specific criminal offences in this report, yet it is possible that offences under general criminal law, such as manslaughter and
criminal damage under the Criminal Damage Act 1971 might also be relevant.
68
See s. 58(1) MSA 1995
31
45. Secondly, there is s.58(4) MSA, dealing with neglect of duty. This has a slightly broader
scope of application and does not require presence on or near the vessel. If the person in an
RCC with control of a vessel is regarded as a master, which we consider likely, this would be apt
to catch the negligent controller. But it might well not catch anyone else, since it applies only to
the “master of, or any seaman employed in,” a vessel;69 and it might well be argued that a
subordinate controller in an RCC was neither a seafarer nor employed in a vessel.

46. Thirdly, s.98(1) of the MSA 1995 provides that the master and the owner of the ship are
guilty of an offence if a ship which is in a UK port or a UK ship is unfit to go to sea without serious
danger to human life (unless they show that steps had been taken to effect repairs before she put
to sea). This provision does not require the master to either be on board or in the vicinity of the
dangerous ship, making it arguable that a remote operator falls within its ambit, subject to being
given status equivalent to that of the master. Similarly, the owner might well be held liable
under this provision or the operator; indeed, s.98(2) of the MSA casts the net wider by extending
the ambit of the provision to any person who has assumed the responsibilities of the owner with
respect to the matters relevant to the safety of the ship by agreement with the owner.

47. Our scenario has no extraterritorial elements, yet it is expected that the operation of MASSs
will eventually involve multiple jurisdictions and the High Seas, where the exercise of criminal
jurisdiction becomes complicated. Without going into detailed analysis, English criminal law can
only rarely extend its ambit to offences committed abroad, even by British nationals. This is a
complex subject and we do not discuss it here. Suffice to say that the regulators should
consider carefully whether it should be allowed for a MASS operator to be based outside the
UK. As we indicated, this will not only create significant legal difficulties and no doubt
international law issues will emerge as to what extent criminal sanctions could be imposed and
enforced for those operating MASS extra territorially.

48. While clarification about the status of remote operators as masters or seamen would bring
legal certainty, the criminal law provisions of the MSA, by and large, do not require an overhaul
in order to fit into the autonomous era. Having said that, what might be required is the creation
of tailor-made offences reflecting the division of duties in a RCC as well as the new manners of
operating vessels.

69
See s. 58(1) MSA.
32
(D) Unmanned Aircraft Systems (UAS)

49. The UK Civil Aviation Authority (CAA) has implemented rules about the operation of civil
Unmanned Aircraft Systems (UASs), commonly known as “drones”, and the licensing of their
remote pilots.70 We believe that a short introduction to them gives insight into the future regulation
of MASSs especially with respect to remote pilots and RCCs. Although the operating
environments of MASSs and UASs are different, they have several conceptual issues in common
that the CAA has (or is in the process) of addressing regarding UASs. Its lead can potentially
inform the discussion about the regulation of MASSs in the UK.

50. The rules on the operation of civil UASs in the UK are divided in three categories which are
guided by the following principles. They are

(i) operation-centric in that they reflect the diverse environments where UAS operate;

(ii) risk-based in that they focus on the risk created by the operations; and

(iii) performance-based in that they identify the required level of performance without
prescribing exact means to achieve it.71

51. Guided by them the UK CAA has established the Open Category, the Specific Category
and the Certified Category of operations. A short synopsis of them follows.

51. Open Category

(i) For UAS that pose little risk to third parties, a remote pilot is required merely to pass an
online theory test that enables her/him to hold a Flyer-ID. They must also register as a UAS
operator and thereby become responsible for the safe operation of the UAS.72

(ii) If the UAS is to be operated within residential, commercial, industrial or recreational areas
and in close proximity to uninvolved persons, the remote pilot is also required to obtain an A2
Certificate of Competency (theory test) that “assures an appropriate knowledge of the
technical and operational mitigations for ground risk”.73 This certificate enables the remote
pilot to reduce the minimum horizontal distance from uninvolved people to 30 metres and to 5
metres if the UAS is operated in the “low-speed” mode.74

70
In the UK, UAS operations are governed mainly by retained EU law, namely the Implementing Regulation 2019/947 on the rules and procedures
for the operation of unmanned aircraft (UAS Implementing Regulation) and the Delegated Regulation 2019/945 on unmanned aircraft systems and on
third-country operators of unmanned aircraft systems (UAS Delegated Regulation), as well as the Air Navigation Order 2016. The UK CAA has also
issued detailed guidance regarding UAS operations in the UK airspace in the form of UK CAA, CAP 722: Unmanned Aircraft System Operations in UK
Airspace – Guidance (2020) (CAP 722).
71
See EASA, “Opinion No. 01/2018. Introduction of a Regulatory Framework for the Operation of Unmanned Aircraft Systems in the ‘Open’ and
‘Specific’ Categories.
72
UK CAA, CAP 722: Unmanned Aircraft System Operations in UK Airspace – Guidance (2020), paras 1.5 and 4.2.3.1 (CAP 722).
73
Ibid., para 4.2.3.1.2.
74
Ibid., para 2.2.1.2.
33
 (iii) If a UAS operator employs more than one remote pilot, the operator is required to “
develop and produce procedures for in order to coordinate the activities between its
employees; and establish and maintain a list of their personnel and their assigned duties”.75
In the Open Category, operators are not required to obtain authorisation by the UK CAA, nor
to submit a special declaration to the CAA regarding the safety of the UAS operation. UAS
operated in the open category are not permitted to carry dangerous goods or drop any
materials.

(iv) This rather lax regulatory approach is explained by the following two factors:76

o The Open Category is intended for UASs with limited operational capabilities. They
have a Maximum Take Off Mass (mass of the unmanned aircraft, including payload and
fuel - MTOM) of less than 25 kg and are to be operated within the Visual Line of Sight
(VLOS) of the remote pilot and at an altitude of less than 120 m/400ft from the ground.77

o Also, UAS under the Open Category will bear (as of 1 January 2023) a class
identification label, ranging from C0 to C4, which corresponds to product safety
requirements and determines how close the machine is permitted to fly to uninvolved
people.78

53. Specific Category

(i) For UAS operations outside the Open Category, the operator is required to obtain an
operational authorisation from the UK CAA by performing a risk assessment in the form of an
Operating Safety Case (OSC). The OSC must describe the characteristics of the UAS
operation, identify potential risks to third parties or property, and propose adequate
mitigating measures. The UK CAA requires operators to detail the role and responsibilities of
the flight team, namely, commander, remote pilots, observers and other support staff, such
as ground station operators, payload operators, radio operators etc.79 In addition, it requires
a statement as to whether the UAS will be operated within VLOS, extended VLOS or Beyond
the Visual Line of Sight (BVLOS) basis and also the procedures to be followed in cases of
emergency recovery, loss of control link and how to avoid aircraft.80

(ii) The licensing requirements of remote pilots in the Specific Category depend on the nature
of the activity authorised and are identified within the authorisation.

75
Ibid., para. 4.1.2.1.
76
For a detailed critique see G. Leloudas & M. Chatzipanagiotis “Use of Unmanned Aircraft Systems in a Maritime Context: Operational, Regulatory
and Legal Issues” in B Soyer and A Tettenborn (eds) Disruptive Technologies and Climate Change in Shipping (Informa Law from Routledge,
forthcoming 2022).
77
The UK CAA presumes that the VLOS requirements are satisfied when the UAS is flown up to a distance of 500 metres horizontally from the remote
pilot which can be extended by the use of observers under strict conditions - see CAP 722, para 2.1.1.
78
Ibid., para. 2.2.1.2.
79
UK CAA, CAP 722A Unmanned Aircraft System Operations in UK Airspace – Operating Safety Cases (2019), Section 1, para 3.3 (CAP 722A).
80
CAP 722, para. 2.4.3.
34
 (iii) It is possible that a remote pilot will only be required to obtain a Flyer-ID with an A2
Certificate of Competency, yet in most cases the UK CAA would require obtaining the
General VLOS Certificate which is an “one stop qualification that satisfies the remote pilot
competency requirements for VLOS operations”.81 The test consists of both a theoretical and a
practical flight test and additional examination modules can be added depending on the
complexity of the UAS operation. It is important to note that this certificate is not sufficient for
BVLOS operations where the remote controller is not in sight of the UAS, for which a Remote
Pilot Licence or a manned aircraft pilot’s licence is required (see below for more information).

54. Certified Category

(i) To regulate UASs that operate at a high level of risk, i.e. posing an equivalent risk to that of
manned aviation, the Certified Category has been created. For operations falling herein
authorisation is provided through the certification of the design, production and maintenance
of the UAS, the certification of the UAS operator and by imposing more stringent requirements
for the licensing of remote pilots.

(ii) The requirements of the certified category apply to UASs which (a) have a characteristic
dimension of at least 3 m and are designed to be operated over assemblies of people; (b)
are designed for transporting people; (c) are designed for transporting dangerous goods; or
(d) are considered by the competent authority to pose operational risks that can only be
adequately mitigated through the certification process.82

(iii) The remote pilot is expected to hold a manned aircraft’s pilot licence “with appropriate
mitigation related to the operation of the particular unmanned aircraft”.83 The expectation is
that remote pilots in this category will require to obtain an RPL when the exact requirements
are fully developed that are not expected until 2024 at the latest.

(iv) Until detailed rules are developed for the Certified Category, the UK CAA is requiring
operators to comply with the rules applicable to manned aircraft regarding airworthiness,
operations and licensing, such as the need for a type certificate and a certificate of
airworthiness, which in practice requires vigorous and time-consuming efforts; the UK CAA
expects that “the full suite of documentation, as expected for an equivalent manned aircraft
operation, will be required”.84

81
Ibid., para 4.2.3.2.1.
82
Art 40(1) UAS Delegated Regulation and Article 6(1) UAS Implementing Regulation.
83
CAP 722, para. 4.2.3.
84
Ibid., para. 4.1.2.1.
35
55. BVLOS

(i) One of the most pressing demands of commercial UAS operators in the UK is for the UK
CAA to facilitate the operations of UAS in BVLOS mode. BVLOS operations do not require
the remote pilot to maintain visual contact with the UAS during flight, enabling their
operation for distances longer than 500m from the pilot and consequently the establishment
of RCCs. Equally important is to allow such operations in non-segregated airspace, namely
airspace that is shared with manned aircraft.

(ii) BVLOS operations are not prohibited by the current regulations (except for operations in
the Open Category), but the UK CAA, in order to mitigate the increased risk of collisions,
grants permissions only if one of the following three circumstances are satisfied:

•a Detect-and-Avoid (DAA) capability has been integrated into the UAS;

•the UAS operates in airspace that has been reserved for it, usually by means of
establishing a temporary Dangerous Area (DA); or
•the operator provides clear evidence that the UAS flight poses “no aviation threat” and
that the safety of persons and objects on the ground has been properly addressed.

(iii) While remote pilots in VLOS operations must comply with visual flight rules and have
primary responsibility to avoid collisions,85 a UAS in BVLOS mode must be able to perform an
equivalent function in terms of detecting and avoiding collisions.86 The UK CAA has stressed
that installing live-feed cameras on board the UAS is not an acceptable mean of compliance
with the DAA requirement. For the permission to be granted, the installed technology is
required to take autonomous decisions by avoiding obstacles and generating flight paths.

(iv) It is expected that DAA technologies will pave the way for the frequent use of UAS in
BVLOS mode and will eventually lead to their fully autonomous operation without any human
intervention during flight.87 Full level of autonomy is not currently permitted in
non-segregated airspace as the UK CAA requires that the remote pilot shall always be
“capable of immediately taking active control of the UA”.88 At the same time, operations of
UAS in BVLOS mode in non-segregated airspace must comply with Instrument or Visual Flight
Rules (as appropriate to the flight in question) and the remote pilot is required to monitor the
UAS performance and communications with Air Traffic Controller “in a timescale comparable
with that of a manned aircraft” while making controllers fully aware that they are dealing with
a UAS by including “the word “UNMANNED” on first contact with the ATS provider”.89

85
Ibid., paras 3.6.1 and 3.6.4.
86
UK CAA, “Beyond Visual Line of Sight in Non-Segregated Airspace Fundamental Principles & Terminology” (October 2020) <https://publicapps.
caa.co.uk/docs/33/CAP%201861%20-%20BVLOS%20Fundamentals%20v2.pdf> accessed 5 October 2021.
87
UK CAA, “Beyond Visual Line of Sight in Non-Segregated Airspace. Fundamental Principles & Terminology” (October 2020) <https://publicapps.
caa.co.uk/docs/33/CAP%201861%20-%20BVLOS%20Fundamentals%20v2.pdf> accessed 5 October 2021.
88
CAP 722, para. 2.4.2.
89
Ibid., para 2.4.1
36
56. International Operations of UAS

(i) In international law, rules applicable to UASs can be found in the 1944 International
Convention on Civil Aviation (the Chicago Convention).90

(ii) Article 8 of the Chicago Convention prohibits flights of pilotless aircraft over the territory of
a contracting State without special authorisation from that State, while contracting States
undertake to ensure the safety of such flights as to the risks posed to other airspace users.
The territory of a State includes the land areas and its territorial waters.91

(iii) Due to this prohibition, UAS operations must comply with the licensing, certification and
operational requirements of the State of operations. Inevitably, this arrangement makes the
establishment of RCCs in a country other than the country of operation of the UAS a
complicated process as requires dual permissions. Similarly, operating a UAS to a State other
than the State of its registration or on a cross-border basis would require the granting of
permissions from both the country of origin and the country of destination. The International
Civil Aviation Organisation (ICAO) is currently “developing international SARPS covering
Remotely Piloted Aircraft Systems which are conducting international Instrument Flight Rules
(IFR) operations within controlled airspace and from aerodromes... The appropriate UK
regulations will be adapted in accordance with these SARPS when they are completed”.92

57. While the operational environments of UASs and MASSs are rather different, the rules of the
UK CAA highlight that a one-size-fits-all approach in regulating autonomous modes of transport
is not advisable. The tripartite division of the UAS rules reflects the different levels of risk envis-
aged in each category and allows the regulator to make tailor-made arrangements based on
the risk profile of the proposed operation. This flexibility is essential to accommodate the rapid
technological developments in the field and to encourage new type of operations (for example
the use of UASs in the maritime field). While detailed rules in the Certified Category are not yet
implemented, it is expected that the technological developments in the field of DAA will enable
their drafting both at an international (ICAO) and a domestic level within this decade at which
point the establishment of RCCs is expected to become a reality. As such, the CAA operates on
an incremental basis, having created an overarching regulatory framework that motivates further
research while enabling the creation of detailed rules once the technological risks are
considered acceptable.

90
Convention on International Civil Aviation, done at Chicago on 7 December 1944, in force since 4 April 1947.
91
Art 2 Chicago Convention.
92
CAP 722, para. 1.2.2.1.
37
IV. SUMMARY OF CONCLUSIONS

58. The main objective of this report is to illustrate the legal and regulatory difficulties that a
MASS could encounter when navigating from Hull to Plymouth remotely controlled or
navigating autonomously. Obviously, the analysis gets more complicated if the same vessel
attempts to undertake a voyage outside the jurisdiction of the United Kingdom as in that case
different international legal regimes would become relevant. However, that discussion is beyond
the scope of this project.

59. In the concluding part, we would like to summarise our findings with reference to what
legislators and regulatory bodies need to do to ensure a vessel like MV Albion could operate in
UK waters safely and in the full knowledge of its legal standing with regard to civil and criminal
matters.

60. It is worth noting that it will not be within the purview of one single regulatory body to
effect all the recommendations made in this report. Below we shall highlight our main
recommendations highlighting which regulatory body or bodies need to engage in their
implementation.

61. Regulatory bodies, led by MCA, would need to consider safety and other technical
requirements that need to be put in place. In particular:

• Defining technical and manning requirements (including training) for RCCs. It is also
essential to define the legal status of those working at RCC and i) the role and function of
each officer within the RCC; ii) how co-ordination between different units within the RCC will
be achieved; iii) safety management system that needs to be put in place at the RCC to ensure
safety.

•It is also essential to specify the design and technical requirements a MASS operating
in UK waters should comply with.

62. Port and Competent harbour authorities need to specify:

•The conditions (technical and manning (including RCC operators)) that a MASS should
satisfy prior to being given access to a particular UK port.

•How far there should be a derogation for the benefit of MASSs from requirements in
byelaws that vessels in harbours should in various circumstances have someone on board.

•How the owners or operators of a MASS could fulfil the role of a “master”- essentially a
person to whom notices required to be sent to the master can be communicated. It is also
essential to define the legal status of such person- we are firmly of the view that any legal
penalty, liability attaching to the “master” should attach to this person.

63. We also believe that legislative measures would be necessary on the following matters:
38
(a) Salvage

•There is a need for legislative intervention (i) to state that, for the purposes of the Salvage
Convention, where a ship is uncrewed or under RCC control the term “master” shall include
the person from time to time in control of her at a relevant control station; and (ii) to make it
clear that operations carried out entirely on land may in a suitable case be classified as
salvage.

(b) Navigation and collisions

•There is a need for legislative intervention (i) to provide that owners are liable for the
negligence of RCCs and their owners even though the latter may in law be independent
contractors; and (ii) to adapt the provisions of COLREGS on matters such as lookout to make
sure they are appropriate for conditions on a MASS.

(c) Cargo claims

•There is a need for legislative intervention to make it clear that any defence or limitation of
liability which would have been available to a carrier may also be invoked by a
shore-based controller.

(d) Right of Arrest

•We see a need for legislative intervention to clarify (i) that claims for “damage done by a
ship” extend to damage done by a vessel under the control of a RCC; (ii) that claims for loss
of life due to the default of the master or crew of a vessel should extend to vessels under RCC
control; (iii) that there is a right of arrest for RCC dues; and (iv) that claims for wages do not
encompass those employed on RCCs.

(e) Product liability

•Legislation should make it clear (i) that the 1987 Act applies to any injury suffered in UK
territorial waters, and to defective products wherever manufactured; and (ii) that in the context
of claims arising out of a marine casualty, the rules of English law apply whenever the
casualty took place in England or its territorial waters, and wherever the offending property
was at the time of the casualty.

64. We also believe that legislative interference would be necessary

on the following matters:

•It is essential to create tailor-made criminal offences in the

MSA reflecting the division of duties in an RCC and the remote
operations of ships.

•Study the structure of the regulations regarding UAS to establish

whether any lessons can be learned regarding the training and
certification of remote controllers and MASS. 39
APPENDIX 1

Ongoing Main Autonomous Shipping Projects

Name: Yara Birkeland92

Funded by: Yara and Kongsberg

When it will be ready: The hull of this vessel was launched in February 2020 and was
delivered under tow to a shipyard in Norway in May of 2020. She was handed over to Yara
in November 2020 and made her first voyage in November 2021. The vessel is currently fitted
with a detachable bridge and is undergoing further development of it’s autonomous systems. It
is planned to be launched later this year as a manned vessel and is currently being scheduled to
enter fully autonomous operation in 2022.

What it will be used for: The range of this vessel will be somewhat limited. It is being planned
to be operated between three ports in Norway, Heroya, Brevik and Larvik, and will be running
commercially just for Yara products. This is a feeder container vessel with a cargo capacity of
120 twenty foot containers, operating at a service speed of 6 knots.

Project Outline: The Yara Birkeland is the world’s first autonomous feeder container vessel. It
has a length over all of 79.5m and will be propelled by two electrically powered azimuth pods
and two thrusters. This is in many ways one of the most advanced unmanned vessel projects,
however there are a few limitations. The max speed of 13 knots and the service speed of 6 knots
for a vessel of this size shows the limits of electrically powered vessels operating at sea. The area
of operation within 12 miles of the Norwegian coast is a further indication that this sort of
propulsion system is not up to the challenge of operating further afield. Another reason for its
area of operation is that will be fulfilling a very specific commercial purpose. It’s small cargo
capacity of 120 twenty foot containers is well below the average size of a comparable
feeder vessel, which can carry between 300 and 1000.93 This added to its slow service speed
will make it significantly less efficient in terms of cargo carrying capacity, even over traditional
feeder routes. The vessel is also due to be operated only within the control of the Brevik Vessel
Traffic Service (VTS) area. It seems likely that this is so that VTS operators will have extra training
to deal with vessels operating autonomously, in particular when it comes to other vessels using
the same area. The ports themselves will need to be adjusted to accommodate autonomous
operation, and are due to be fully automated. This will require significant infrastructure upgrades
in all the ports being used. It is important to note that Yara are to use this vessel to relieve
pressure on lorries operating between the three ports, and carry their cargo. The fact that there is
only one stakeholder involved with support from the Norwegian government is why such a
project is possible.

92
Kongsberg, “Autonomous Ship Project, Key Facts about Yara Birkeland” https://www.kongsberg.com/maritime/support/themes/autonomous-
ship-project-key-facts-about-yara-birkeland/ (last tested on 1 November 2021)
93
https://container-xchange.com/blog/feeder-vessels/ (last tested on 1 November 2021)
40
Name: Rolls Royce SVAN

Funded by: Rolls Royce and Finnferries

When it will be ready: Rolls Royce have already demonstrated autonomous operation of a
ferry in Finland called the Falco.94 However, it is currently being used to develop its “intelligent
awareness” navigation95 system that is in development.

What it will be used for: Currently this project is limited to small double ended car ferries
operating between islands. The Falco is 53.8m in length and is powered by Rolls-Royce Azimuth
thrusters. It is due to be used across a small route between Paranien and Nauvo in the Turku
archipelago in Finland.

Project Outline: This is the development of an autonomous navigation system that can be
retrofitted on to current vessels. In fact, whilst the use of the automated systems on the Falco looks
to bring this project into the realms of projects such as the Yara Birkeland, the scope is perhaps
more limited. Rolls Royce is developing it’s intelligent awareness navigation system, with four
stages of implementation. The first will be an onboard advisory system, which simply provides
enhanced situational awareness to the OOW, however it is ultimately the onboard crew who will
execute any navigational actions. The second stage involves onboard control, the autonomous
system will have a greater decision making role, however once again it will still be the OOW
who approves any action. The third step is called “bridge zero” where the vessel is in full control
of an autonomous system, however there will be a standby OOW who can be called to bridge
should they be required. This can perhaps be more closely compared to unmanned machinery
spaces. Full remote and autonomous navigation is the end goal of this project, however it is clear
that Rolls Royce are looking to have a commercially viable system operating on larger vessels
much sooner. The major advantage with these advanced decision making systems is that they
can be retro fitted on to current vessels, however they are also likely to be expensive and will, at
most, reduce crew by perhaps one or two. The initial outlay is likely to be much larger than any
commercial benefits, and so will perhaps be more useful on vessels that require officers for other
activities, or are engaged in high end safety critical activities. It is unlikely that this will be of much
commercial interest to more traditional cargo vessels operating internationally.

94
Royce, “Rolls-Royce and Finferries demonstrate world’s first Fully Autonomous Ferry” https://www.rolls-royce.com/media/press-releas-
es/2018/03-12-2018-rr-and-finferries-demonstrate-worlds-first-fully-autonomous-ferry.aspx (last tested on 1 November 2021)
95
The Maritime Executive “Rolls-Royce Launches “intelligent Awareness” Navigation System https://www.maritime-executive.com/article/
rolls-royce-launches-intelligent-awareness-navigation-system
41
Name: Mayflower 40096

Funded by: Promare and IBM

When it will be ready: The vessel made a first attempt at an autonomous crossing of the
Atlantic in July of this year, however this was aborted due to a machinery malfunction. The vessel
is currently undergoing repairs before it makes a second attempt.

What it will be used for: The Mayflower 400 is one of a number of autonomous vessel
projects designed to study the marine environment. These vessels will be able to spend significant
time at sea collecting marine data, however it is likely that their area of operation will be mostly
deep sea.

Project Outline: The Mayflower 400 is the first autonomous project to have tested on the high
seas. Whilst the attempt was aborted, it is likely to be the first major project to navigate
autonomously between two separate States, whilst also transiting international waters. The focus
of this project is software related, IBM have developed advanced decision making systems that
provide real time analysis based on inputted data. Interestingly, this software is very versatile and
has been developed to be used in systems beyond autonomous shipping. The limitation of this
project is that it is clearly being designed to develop smaller autonomous vessels that are there
to collect ocean data. It’s design is specifically to allow it to spend long periods at sea collecting
data. It is only 15m long and so is not envisaged to be scaled up for operation as a cargo vessel.
Once again, it is electrically powered with lithium batteries charged by solar power. It has two
20kW motors, and so its propulsion power is very lim-ited. The space required for even this small
amount of power is significant, as any attempt to scale up to a larger vessel would be difficult.

96
https://mas400.com (last tested on 1 November 2021)
42
Name: Jin Dou Yun O Hao

Funded by: Chinese Government

When it will be ready: This vessel was successfully tested in December 2019 in a limited
capacity. However it is part of a wider number of autonomous shipping projects supported by
the Chinese government, with the aim to have autonomous vessels in operation by 2025.97

What it will be used for: This particular project was a test in order to demonstrate the
autonomous capacity being developed in China. The ship only carried one container across
the bay in Guangdong. As such, it has no practical use itself, although it is the first step in a fast
paced autonomous shipping community in China.

Project Outline: It is difficult to gain too much information about the type of software being
used in these projects, as there is a certain amount of secrecy surrounding this. It is likely,
however, that it uses similar principles to other autonomous shipping projects, namely inputs
from radar, lidar, cameras etc into a decision making software. Presumably there will also be
some machine learning. Indeed, much of the technology seems to be based on what has been
developed elsewhere, in particular from Norway. What is interesting in China is that Chinese
shipbuilders are already starting to integrate a capacity for autonomous operation into their new
build vessels. The fact that China is one of the biggest centres for shipbuilding, with shipyards that
are supported by the Chinese government, mean that there is huge access to resources for the
development of autonomous shipping in China. China has this year launched a research vessel
that can be operated autonomously or remotely. This vessel will still have onboard crew and it
is planned to be used to launch further unmanned vehicles for scientific research. China is also
developing a container vessel similar to the Yara Birkeland. Many of these projects have
similarities to those been developed elsewhere, however what is particularly interesting is that
they are all being developed in conjunction with each other. China is creating the world’s largest
test area for autonomous shipping in Zhuhai and is aiming to be a world leader in autonomous
shipping.98 With the resources available to them and the support of their large shipbuilding
industry, this seems a very achievable goal.

97
N. Chubb, “China will be a Leader in Autonomous Shipping by 2025” https://thetius.com/china-will-be-a-leader-in-autonomous-shipping-
by-2025/ (last tested on 1 November 2021)
98
Maritime Executive “China to build Autonomous Ship Test Bed” https://www.maritime-executive.com/article/china-to-build-autonomous-ship-test-
bed (last tested on 1 November 2021))
43
Name: ABB

Funded by: Maritime and Port Authority of Singapore

When it will be ready: ABB have already operated a tug by remote control in Singapore as
a test project in April 2021.99 It is hoped to test the vessel autonomously towards the end of this
year. The project is part of the port’s Singapore Maritime R&D Roadmap 2030,100 with the aim to
have fully autonomous berthing and cargo handling by 2025.

What it will be used for: These tugs will be used to remotely pilot Singapore harbour tugs,
with orders placed for specially built tugs. They will aid vessels using the port, and are likely to
be used in conjunction with remote pilotage. The aim is for them to be operating in autonomous
mode to take up station for incoming vessel, and then under remote control when manoeuvring.

Project Outline: ABB Group are a major company in this area, and have numerous projects
involving remote control and MASS. They are also a major propulsion leader, which may be
useful as compared to some of the more “navigation” based MASS projects, such as
Kongsberg. It is interesting to note that they are heavily pushing sustainable or electrical
propulsion for large vessels, in particular Azipod propulsion. This is almost certainly a more
ealistic form of propulsion for MASS or remote control vessels then traditional slow speed
engines. Indeed, if we look at any current MASS project, they are exclusively running on azipods
or electrical motors of some kind, or even wind power. The problem here is that this limits the size
of the vessels, and also means higher costs as generators require a higher grade of fuel than slow
speed engines. This may become less of an issue in the future, as these lower grade fuels are
being slowly fazed out, but will certainly price many shipowners out of investing in autonomous
technology. Cruise ships often use this type of propulsion, however cruise ships need electrical
power throughout the ship and so routing power throughout the vessel becomes less of a
problem and generators can be placed wherever. On cargo vessels, running lots of cabling
around the vessel can only be done down the “Burma roads” or sides of the vessel, creating
much less redundancy in terms of rerouting power in the event of any failure. All this serves as
evidence as to the focus of ABB when it comes to their MASS projects, which are inland ferries in
Finland and also tugs in the port of Singapore. The primary means of control is due to be a
remote control operator working ashore, however as with any remote control system there will
be an autonomous element. The reasoning behind this is that the operator can be “rested” when
required to perform manoeuvres with the ship, although the main reason is probably that remote
control will only be economically viable if one controller is able to operate multiple vessels. As
such, the plan is for these vessels to navigate the waters of the port of Singapore autonomously to
take up station, and to only be controlled remotely when connected to the vessel. These tugs are
likely to have an onboard crew, who will be needed when passing lines to vessels entering the
harbour, however it is felt that routine tasks will be able to be carried out by autonomous systems.
In particular, it is likely that the onboard crew will be used in more of a maintenance role, and
will have longer rest periods whilst taking up their station. The vessel’s shore based operator will
be monitoring the vessel from a shore based remote control centre. It is likely that they will be
responsible for monitoring multiple vessels at the same time.
99
ABB “ABB and Keppel O&M Reach Key Autonomy Milestone with Remote Vessel Operation Trial in Port of Singapore” https://new.abb.com/
news/detail/79622/abb-and-keppel-om-reach-key-autonomy-milestone-with-remote-vessel-operation-trial-in-port-of-singapore (last tested on 1
November 2021)
44
100
Singapore Maritime Institute, Singapore R&D Roadmap 2030, (Singapore, 2020)
Name: Wartsila

Funded by: Government of Finland/Finnpilot

When it will be ready: Trials are due to be started this year, with simulator based trials having
already taken place. The aim is to be ready for remote pilotage at some point in 2025.101

What it will be used for: It will be used to replace onboard pilotage for certain vessels using
ports in Finland. It is not due to replace all vessels, and is for the moment seen as providing
flexibility in the event of bad weather or commercial pressures on pilotage services.

Project Outline: This is a reasonably well advanced project dealing with remote pilotage for
vessels operating within Finnish waterways. It is a remote control system, with vessels being
piloted from a shore based station, however as with any system there will be an autonomous
aspect. The idea will be that vessels will be able to undertake the more simple parts of the route,
such as straight legs, with pilots being able to monitor and step in at the more complicated
areas, long turns, areas of shallows or strong tides for example. The benefits to shipowners from
this type of project should become fairly clear straight away. Whereas with autonomous or
decision support systems on larger vessels that remain fully crewed, the costs will probably
outweigh the benefits as they will at most save perhaps on one deck officer, here the costs
involved in pilotage can be enormous and removing them will be of great interest to ship-owners.
Indeed, it is not just the costs, but also safety involved in embarking pilots out at sea. This can be
a very risky procedure, especially in rough seas, and so the prospect of only embarking a
docking pilot within striking distance of the dock will be of much more interest.

Of course, there are a few limitations as well. This project will require retrofitting of vessels and
will require additional training for both the remote pilots and for seafarers operating under
emote pilotage. It is not envisaged that this will be a system for all vessels arriving in Finland.
Indeed, a simulation was run with a remote pilot in one simulator operating a vessel being
navigated by a Master and Chief Officer in another simulator. Despite the fact that the Master
and Chief Officer were familiar with the waters being navigated, and the fact that everyone
involved was Finnish, there was a disconnect between the onboard crew and the remote pilot.
These problems would be even greater if we were to introduce foreign nationals and crew
unfamiliar with the surroundings into the mix. Already we can see huge language problems
between vessels. The fact that communication will become so vital when using remote pilotage
means that the capacity for things to go wrong is much greater. Indeed, the forced use of
remote pilotage during the COVID pandemic has received a great deal of criticism form many
P&I clubs.102

101
Port of Turku, “Will Ships be piloted remotely in the future?” https://aboard.portofturku.fi/en/2021/01/will-ships-be-piloted-remotely-in-the-fu-
ture/ (last tested on 1 November 2021)
102
Standard Club, “Remote Pilotage – Perspective and risks to Consider” https://www.standard-club.com/fileadmin/uploads/standardclub/Docu-
ments/Import/publications/loss-prevention-industry-expertise-handouts/3314373-remote_pilotage_pdf.pdf (last tested on 1 November 2021)
45
In order to develop better forms of remote pilotage, this projects has focused on the creation of a
so called“port ecosystem”. It seems that many of the early adoption of MASS will be within self
contained bubbles. Yara Birkeland is an example, the various small ferries and the tugs in
Singapore. Indeed, it would seem likely that areas where these types of vessels are operating
would see an expanded VTS service, more akin to air traffic control.103 At the moment VTS is very
much an advisory service, and even where the advice they give is followed and results in an
accident, ultimate responsibility remains with the Master. The Finnpilot project is looking to
expand both the power, and the knowledge required to run these types of service. At the
moment VTS operators learn radio procedure, however they have a very basic understanding of
the rules of the road and ship operations. It is likely that their role would have to become much
more expansive in the future if MASS ships are to operate safely. An expanded VTS would be
one example of the types of physical infrastructure that would be required for MASS vessels,
including 5G connectivity for data sharing, so called “smart fairways” and better
communications. This would presumably be the responsibility of the port to maintain, but
certainly raises a question as to whether it would be even possible of such vessels to operate in
multiple port ecosystems, and of course how they could operate in between such ecosystems.

Having said all this, remote pilotage is something that both shipowners and ports will be
motivated to introduce. Ports will clearly pass on any costs of such a system to shipowners,
however the amount of maintenance required would probably be much less than the current
infrastructure. For example, in larger rivers such as the Elbe or the St Lawerence pilots are either
required to spend time at staging posts, or travelling to and from vessels, reducing the amount of
time they can be engaged on actual pilotage duties. Overall, the costs involved in running
remote pilotage will be much less than with onboard pilots. Shipowners will obviously like this, as
well as reducing waiting times at pilot stations. Indeed, this can already be shown by how keen
shipowners are for their masters to have pilotage exemption certificates for ports they
regularly visit. Quite apart from this, there is a safety element to this too. Embarking pilots can be
very dangerous, and whilst shipowners will not spend excessive amounts to improve safety, they
are often very keen to look to improve overall safety if it can provide other benefits.

Wartsila, “Pilotage Digitalisation. How Remote is the Remote Pilotage” https://www.wartsila.com/insights/article/pilotage-digitalisation-how-re-

103

mote-is-the-remote-pilotage (last tested on 1 November 2021)

46
APPENDIX 2

Acronyms & Abbreviations

BVLOS Beyond Visual Line of Sight

CAA Civil Aviation Authority
Colregs International Regulations for Preventing Collisions at Sea 1972 (as updated)
IMO International Maritime Organisation
LLMC Convention on Limitation of Liability for Maritime Claims 1976
MASRWG Maritime Autonomous Systems Regulatory Working Group
MASS Maritime Autonomous Surface Ship
MCA Maritime and Coastguard Agency
MSA Merchant Shipping Act 1995
MTOM Maximum Take Off Mass
RCC Remote control centre
SOLAS International Convention for the Safety of Life at Sea 1974
STCW International Convention on Standards of Training, Certification and
Watchkeeping for Seafarers 1984
UAS Unmanned Aircraft Systems
UNCLOS UN Convention on the Law of the Sea 1982
VLOS Visual Line of Sight

47