Is Judgement Day coming?
Tom Walters and Jonathan Goulding take a look at the use of Autonomous Marine Vehicles
Artificial Intelligence (AI), autonomous robots and autonomous vehicles have long been the realm of science fiction. If you mention AI, many people will think of 2001: A Space Odyssey directed by Stanley Kubrick or the Terminator directed by James Cameron. In the latter, mankind battles with Skynet, a synthetic intelligent machine network, which becomes self-aware and decides to exterminate the human race by launching a nuclear attack on Russia which, in retaliation, launches a nuclear attack on the United States.
While not at Skynet’s level of awareness, the development of the Internet of Things means that it is only a matter of time before Autonomous Marine Vehicles (AMVs) become commonplace. AMV technology in the marine and oil and gas sector has advanced rapidly in the last 20 years or so. Indeed a recent report prepared by the energy consultants, Douglas-Westwood1, suggests the demand for autonomous underwater vehicles (AUVs) is expected to grow by 49 per cent in the next four years. The military sector will remain the greatest user of AUVs (73 per cent of total demand), however, the commercial sector, including oil and gas, is expected to see the greatest growth in usage.
In addition to improvements in technology, other key factors such as the need to improve safety standards and reduce risks and costs have driven autonomous technology to the forefront of many operations. Deep-water surveys, previously the domain of ROVs tethered to support vessels, are now routinely undertaken by AMVs. In the future, subsea inspection, maintenance and repair operations are also likely to be carried out by AMVs.
However, while technology is overcoming the challenges faced by AMVs with regard to endurance, battery life and data transmission, the legislative framework is currently being left behind.
AMVs are intended to act and make decisions with no or minimal human input. International maritime conventions have so far been drafted with conventional ships in mind and so if they are to apply to the use of AMVs, they will have to be re-evaluated, extended or amended. For example, there is no uniform definition of ‘ship’ or ‘vessel’ that can be used to determine whether the conventions apply to AUVs, although the majority of the conventions would appear to apply to autonomous surface vehicles (ASVs). Until there are statutory definitions of AMVs that can be adapted or existing international conventions have been extended so that the status of AMVs can be regulated, there will be ambiguity as to the status of these vehicles and the application of maritime law.
Parties engaging AMVs under contract will of course have the ability to use indemnities to allocate risk between the contracting entities. Problems will arise, however, when an incident takes place outside a contractual framework and falls to be dealt with by international law.
In order to become effective, each State signatory to a convention will have to incorporate any amendments to the articles into their national law in a different way. For example, the UK generally incorporates relevant marine conventions into English law by way of the Merchant Shipping Act 1995 (MSA 1995). As matters currently stand, until there are changes to existing UK legislation, it is unlikely that the use of autonomous technology will significantly impact upon the usual principles that apply to the determination of one party’s liability in the event of a marine incident, and whether a party is able to limit its liability.
For non-contractual liabilities, the most common basis for bringing a claim under English law is under the tort of negligence. However, even this is not clear cut. While the maritime standards set out in the Convention on the International Regulations for Preventing Collisions at Sea 1972 (COLREGs) might arguably apply to ASVs, it is unlikely that they would apply to the types of AUV described above. Nonetheless, it is likely that the English courts will measure the standard of care required of AMV operators and owners to the same standards as set out in the COLREGs and, in the absence of any other applicable national or international standards, the English courts would likely give weight to the current industry codes of practice, such as the Society for Underwater Technology’s AUV Recommended Code of Practice2.
Judgement Day is probably a long way off but nevertheless, there are some important commercial questions to address such as: if there is an incident, is the AMV operator able to reduce its liability for damage based on the tonnage of the vessel under the Convention on the Limitation of Liability for Maritime Claims (LLMC) 1976 and 1996 Protocol? If an AMV is unable to limit under the LLMC, because it is not considered a ‘ship’ for the purposes of the LLMC under the MSA 1995, will the operators of AUVs be forced to pay higher insurance premiums? Will it be necessary to distinguish between ‘hull’ and ‘liability’ risks as currently takes place with conventional shipping? HFW has previously provided pro bono legal advice to the Autonomous Marine Vehicle Working Group, a cross-industry initiative organised and sponsored by the Society of Underwater Technology and has been advising a number of clients already on the implications and the use of autonomous technology in the marine and oil and gas sectors.
1 World AUV Market Forecast 2016-2020 (http://www.douglaswestwood.com/report/oil-and-gas/world-auv-market-forecast-2016-2020/)
2 SUT “The Operation of Autonomous Underwater Vehicles Volume One: Recommended Code of Practice for the Operationof Autonomous Marine Vehicles” Second Edition
Tom Walters is a Partner and Jonathan Goulding is an Associate & Mariner at HFW. HFW is an international law firm with global capability and experience working at every stage of the oil and gas lifecycle.
For further information please visit: hfw.com/Oil-and-Gas