As methods of transport are increasingly gravitating toward autonomous technology, the function and navigation of vessels become increasingly technology-dependent. This paper takes a holistic approach to the contemporary development of autonomous vessels and the warranty of seaworthiness, seeking to ascertain whether an autonomous vessel could determine its own seaworthiness and whether it is capable of rendering a new global vessel standard. In the judgement of Burges v Wickham, Blackburn J elaborated on the standard and scope of the implied warranty of seaworthiness, stating that it can and should improve with that of shipbuilding and navigation.
This paper explores this approach by discussing, exclusively, the English common law and legislative position of seaworthiness in its current framework in the international context of advanced maritime technology. This paper shows how such technologies could be harnessed to facilitate an autonomous determination of a vessel’s seaworthiness and the challenges to reach this capability.
Global trade is facilitated by commercial shipping with 90% of all goods and moveables transported via the sea, and world merchandise exports were valued at $15.46 trillion in 2016. As a fundamental contributor to the world economy, it is no surprise that ship-owners and builders of seaborne commerce are starting to consider and adopt the latest technologies to combat inefficiencies.
Autonomous transportation is certainly not limited to land, and fleets of autonomous vessels will take to our seas in the coming decades, with a symposium on this topic set for later this year. One major investor in maritime technology is Rolls Royce, recently announcing a £1bn maritime business initiative to develop and apply new technology. They also recently announced the successful test of a remotely controlled tugboat in Copenhagen. This also comes as the first commercial autonomous vessel is set to become a reality in 2020 with the Yara Birkeland to make voyage in Norway’s coastal waters. This is the latest step in automation as ports have already begun automating the logistics of port container transport.
A study into autonomous vessels has shown how ship-owners are increasingly interested in applying the latest technologies due to the potential savings in energy consumption, as well as the reduced costs associated with personnel, health and safety, operations and legal disputes. This comes as the industry has increased pressure to reduce CO2 emissions and increase operational costs. Although, shipping institutions have expressed caution in implementing this new degree of digitisation and automation, with cyber-security concerns being an overarching consideration.
The ongoing progress demonstrates the new capabilities in shipbuilding and navigation as technology starts to play a much more prominent role in commercial shipping. It is for this reason that this paper considers the common law approach to the implied warranty of seaworthiness and the possibility for a future autonomous vessel to determine its own seaworthiness. English common law and statutes are also the best instruments to analyse and apply in this context as multiple shipping nations around the world incorporate the English legal position with respect to seaworthiness to set its own standard.
Warranty of Seaworthiness
A warranty concerned with marine insurance law is a promissory condition in which the assured provides to the insurer. Such a warranty would be to confirm a vessel’s suitability to undertake a proposed voyage as a pre-requisite to assuming risk. The warranty of seaworthiness is an implied warranty provided by the Marine Insurance Act 1906, and it is considered paramount in marine insurance. This implied warranty applies to voyage policies of marine insurance at the commencement of the risk, and it can apply to a time policy where a vessel is sent to sea in an unseaworthy state with the privity of the assured. The importance of implied warranties in marine insurance developed in the seventeenth-century across three key cases which established the ‘warranty of convoy’ and the action of non-assumpsit, which was utilised by underwriters at the time.
The warranty of seaworthiness is one of three main implied warranties which apply to marine insurance policies, including the warranties of cargo worthiness and legality. These warranties were developed by Lord Mansfield shortly after he became the Chief Justice of Kings’ Bench in 1756. Lord Mansfield set forth a strict approach to warranties in the case of Woolmer v Muilman, including the approach that warranties should be construed according to merchant customs, the parties’ intentions, and strict compliance. This was demanded by warranties in marine insurance as reflected in the application of the Marine Insurance Act 1906.
Lord Mansfield’s strict approach to marine insurance warranties was of crucial importance to underwriters, as it enabled insurers to discharge any liability to a covered loss in case of a breach. A breach of an implied warranty is treated as significant and a condition on which the contract is founded. However, it is down to the insurer to prove an assertion that a breach of warranty has occurred with respect to the seaworthiness of the insured vessel, as it is taken, prima facie, that a ship is seaworthy at the commencement of risk.
However, the strict approach that Lord Mansfield set forth has recently and fundamentally changed with the enactment of the Insurance Act 2015. Section 10 provides a more flexible, favourable and fair approach to liability for losses occurring under certain circumstances. The framework with respect to a breach of the implied warranty under the 1906 Act allowed insurers to discharge any liability should a breach of the implied warranty of seaworthiness occur; however, this allowed insurers to escape liability even where a breach had been rectified or where the breach had no bearing on the claimed loss. Section 10 omits the ‘nature of warranty’ provisions explicitly under section 33 of the Marine Insurance Act 1906 and the ‘breach of warranty excused’ provisions under section 34 of the same Act.
The Insurance Act 2015 has certainly changed the determination and aims of Lord Mansfield, highlighting the need and demand for change to make the law on marine insurance more flexible and fairer when a breach of warranty occurs preventing insurers from avoiding liability under exact circumstances where they should be adopting liability.
Regardless of the change in law to the nature of implied warranties, there still remain two areas of continued contention in relation to the implied warranty of seaworthiness. The first is identifying the action(s) or omission(s) which amount to a vessel being unseaworthy and the second is the point in time in which an action(s) or omission(s) rendered the vessel unseaworthy.
What is Seaworthiness?
The Marine Insurance Act 1906 provides that “a ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.” This provision provides a difficult case for ship-owners to determine seaworthiness, as it provides that the ship must be “reasonably fit in all respects.” In considering the various factors or elements of a vessel which could render it unseaworthy, you must consider the reasonableness of the action(s) or omission(s) in question; the relevance of the action(s) or omission(s) to the seaworthy state of the vessel; and the ordinary perils of the sea for the voyage insured.
We know that the requisite expectations considered with respect to the threshold of seaworthiness is in the subjective context of the insured voyage and vessel. The purpose of this is to avoid fixing or imposing a set standard and incubate new standards as they develop with industry practice in shipbuilding and navigation. Although this can create a degree of uncertainty in understanding what can undermine a vessel’s seaworthiness as advances develop, this ‘open’ approach maintains the relevance and applicability of statute whilst harnessing the flexibility of the common law.
When we consider common law decisions, we can ascertain that the design and construction; machinery, equipment and navigational aids; competence of crew; quantity and quality of fuel; stowage and stability; and defects to generators can all be requisite factors in determining a seaworthy vessel. However, as technology within the maritime industry begins to rapidly advance itself with new capabilities in renewable fuels and predictive fuel utilisation, or the advancement in hydrodynamics to shape autonomous vessels of the future, the relevance and applicability of certain past common law decisions concerning various elements of vessels could become utterly irrelevant to modern contexts.
When is Seaworthiness Relevant?
Section 39(1) of the Marine Insurance Act 1906 provides that, with respect to a voyage policy, the implied warranty of seaworthiness is applied at the commencement of the voyage. This section also provides that where the policy attaches while the ship is in port or where the voyage is performed at different stages requiring further preparation or equipment, the warranty shall apply in port or at the commencement of each stage. The statutory position is reflected in the case of Project Asia Line Inc v Shone (The Pride of Donegal), and it is highlighted that the warranty is not a continuing warranty in the sense that she will continue fit during the voyage.
It is further elaborated by Channell J, in McFadden v Blue Star Line that:
“[…]the ordinary warranty of seaworthiness, then does not take effect before the ship is ready to sail, nor does it continue to take effect after she has sailed: it takes effect at the time of sailing, and at the time of sailing alone.”
Taking this into consideration, although all circumstances leading up to loss occurring is relevant to identifying whether a vessel was seaworthy, the onus is on the ship-owner to warrant the vessel is in a seaworthy state at the commencement of the voyage only and not thereafter. This wording is considered in the strictest sense and as such does not include the period of time when the vessel is loading in port, nor when the voyage is already underway unless expressly provided.
This highlights the legal nature of the implied warranty of seaworthiness with regard to their position as a pre-requisite necessity to contract of marine insurance, as well as their physical condition of seaworthiness being a pre-requisite to the precise moment prior to voyage departure. The applicable scope of seaworthiness is specifically tailored to each voyage, providing a warranty of seaworthiness against an intended vessel to be insured is a promissory note that the vessel to be insured is capable in all reasonable instances to endure the perils of such a voyage. The reasonableness of this implied warranty could be questioned due to the knowledge and understanding needed of the assured, as to provide such a warranty an understanding of the present physical condition of the vessel and the foresight of the possible perils of the voyage are a combined consideration to bear a competent determination of seaworthiness.
Shipbuilding, Navigation and Technology
The warranty of seaworthiness can be seen to be directly linked to the development of shipbuilding and navigation, as the legal framework exhibits its nature of taking into account improvements and milestones made in the development in standards of design and construction of vessels. This standard resonates across the globe with the English legal and insurance markets approach being adopted internationally.
To understand how an autonomous vessel would determine its own seaworthiness, we then must consider the contemporary position of the technological capabilities available to shipbuilders and navigational systems providers, as well as the approach the marine insurance industry has taken in providing structured requirements of unmanned vessels. Lloyd’s Register is one of the first underwriters for insuring commercial vessels and insuring the majority of the shipping industry. The comments of the Chief Executive at Lloyd’s Register on the shipping industry and its use of technology is a great highlight of the potential uses of sensors and unstructured data.
We know that vessels currently have sensors with some compiling unstructured data, but some providers are seeking to add software to develop its capabilities. The marine technology provider – Sea Machines – has recently developed the ‘Sea Machines 300 System,’ which can be applied to existing and new build vessels. “The system links to all onboard propulsion, steering, and thrust machinery for active vessel control as well as necessary instruments and sensors.” This technology can complete the navigational tasks of hard-working vessels using common task algorithms and is built to accept third-party software plug-ins for additional tasks such as payload control and data collection. This system could be complemented by wireless data sent from different parts of the ship for analysis and application in determining the status of various contributing elements of a ship. This data feeds into a central system for combined and structured analysis, producing an end result to either commence the voyage or conduct repairs.
In addition to Sea Machines, the well-known Norwegian shipbuilder, Kongsberg, is already constructing a fully autonomous vessel. Kongsberg is a well-placed provider of operational systems in this field, previously developing autonomous underwater vehicles and related missile programmes which utilised control algorithms for secure and safe autonomous operation. Kongsberg is one of few providers who hold multiple contracts for delivering complete autonomous ship solutions and takes precedence as a key stakeholder in the world’s first official autonomous vehicles test bed. This available and developing marine technology is tantamount to the reality of autonomous and automated ships in the near future.
China is also joining the nations with interests in unmanned vessel development with the world’s biggest test site for unmanned vessels under construction in South China, Guangdong province. China is not the only Asian nation preparing to work on unmanned vessels, with South Korea recently announcing it is stepping up its maritime cooperation with Denmark seeking to “enhance global marine navigation systems and develop technologies for automated ships.” This international response to marine technology and unmanned vessels, in particular, is befitting to the international heritage of the shipping industry, and the desirability to make autonomous vessels a worldwide reality.
The United Kingdom, being a maritime-focused island, is also heavily investing in the development of marine technology and seeking to procure the advantage of building vessels in the future. A UK company, which has specialised in maritime and computing technologies since the 1990’s, has recently announced its launch of applications which act as a unified cloud-based platform managing operations across the full breadth of the maritime ecosystem. These applications have leveraged artificial intelligence in undertaking e-navigational tasks to reduce human error. A key complementing tool to artificial intelligence in this context is the use of the internet of things on commercial vessels, with this technology predicted to accelerate in the next five years reporting on vessel performance, condition and equipment.
These various developments and the vast infrastructure in which technology is already playing, commercial shipping will change the way ship designing is comprehended and approached. As ships are built with automation in mind, the marine regulation and insurance industries will have to adapt their approach. The key insurance provider, Lloyd’s Register, is one of the first to tackle and lead the standards of unmanned vessels with the ‘Code for Unmanned Marine Systems,’ composed to establish minimum standards and expectations. This code had been composed due to the expected adoption and developments of unmanned marine systems in the near future. Such a code is evidence of the impact that technological developments will have on what insurers and industry leaders will consider to be a safe design, build and maintenance of unmanned vessel systems. The code is also evidence of the impact that such developments will have on the changing expectations, durability and capabilities of vessels and the direct correlation to the determination of seaworthiness.
We can see from contemporary marine technology and the ongoing development of autonomous vessel solutions that conducting many tasks expected of the master and crew will not be particularly difficult from a technology perspective. In a study conducted by the University of Cambridge setting out the forecast roadmap of the UK marine industry, the expectation for technological capabilities with respect to full autonomy is 2020. The same study predicts that the UK will be one of the leaders in the command and control, integration and operation of naval and merchant autonomous systems by 2025. Finally, the report also earmarks 2030 for when the technological capability for internal and external situation awareness will be automated, proactive, real-time and secure.
The shipping industry is one of the biggest and facilitates international trades around the world, but it is largely conducted far at sea and in closed ports. Despite this, the nature of the industry could be one of the most applicable to technological innovation with high-value impact to shippers, charterers and ship-owners, with the added drive of a thriving market in the trillions. It can also be determined that the technological capabilities of interconnected smart devices and their data are of continued interest whilst states continue to digest the potential global value of the ‘smart’ shipping market and structure national maritime approaches. We can consider that although these technologies have not been widely adopted at present, they are capable of conducting a mounting array of tasks which would otherwise have been carried out by trained humans.
As billions are invested through private corporations, states and intergovernmental agencies, the overall assertion that autonomous vessels will take to the seas is not a struggle to realise on exploration. However, despite the flexibility of the common law and statutory position of the warranty of seaworthiness, the notion of self-determining seaworthiness will only be comprehensive at the latter end of full industry integration and adoption if the requirement of seaworthiness and its framework are to go unchanged. This is because of the unpredictability of human involvement and natural forces, as to be reasonably deemed seaworthy the vessel must be able to encounter the ordinary perils of the sea. This requires a competent master and crew, who ensure navigation and make determinations based on what is discovered on their voyage. For such an equivalent to match human capability, a highly advanced system with continuous satellite connectivity, sea bearing object detection and predictive weather forecasting based on compiled weather data would be required.
One distinct encounter which cannot be accounted for, nor predicted, is human error and the possibility for vessels to run aground or otherwise deviate from their route. In such circumstances, the doctrine of deviation makes clear that vessels that encounter such a vessel in distress can deviate themselves to save life. This would be a particular challenge for autonomous vessels to overcome. Although the application of seaworthiness only applies at the commencement of the voyage, we know that the master must be competent at such a time to encounter such a peril. If an autonomous vessel were to encounter this scenario, it would find difficulty in making an adequate determination as to whether life is on-board the stranded vessel. Furthermore, it would find difficulty in safely approaching and loading persons to its ship. There are also the considerations that autonomous vessels will likely be customised to facilitate the technological system on-board and not cater to humans, such as stocking food, sleeping quarters and medical provisions. To satisfy this human element comprehensively, you will need to remove humans from vessels entirely, as then there will no longer be a need to save life and, thus, a vessel could simply record and report a stranded vessel to the relevant authorities based on its location and course.
This example highlights the necessity for a trained and comprehensive system that can make an almost instant judgement regarding unexpected circumstances. Although most circumstances have established guidelines and expectations, the unpredictability and unique nature of each incident demands expert judgement. It is the absence of fixed parameters and guidelines to these instances that cause uncertainty in the notion of self-determined seaworthiness. However, there is much a ‘smart’ vessel could do in determining the seaworthiness of the vessel by utilising sensors and the internet of things. These devices can identify hull stability and breaches, fire, gas and chemical spill detection, as well as automate hatch and bolster door closing mechanisms. The same sensors could also detect weight distribution, equipment and machinery working status, fuel quality and volume and navigational correctness. What these sensors and other technologies cannot do at present is foresee the unforeseeable or account for the unaccountable.
As the scope of seaworthiness and technology is absorbed in its contemporary climate, the capability of determining seaworthiness is unlikely to occur in the near future amongst the current regulatory framework. However, the contemporary position of technology could fulfil a vast majority of the necessary systems and equipment tests and quality checks a vessel requires to determine seaworthiness. It is also noted that the previous centuries-old nature of warranties recently changed to establish a fairer balance in a modern context, demonstrating the ability to change the statutory position as the industry develops. As such, although technology and regulation in its current capabilities cannot facilitate self-determination of a vessel’s own seaworthiness comprehensively, this does not mean the notion of complete self-determination of seaworthiness is unrealistic in the future. The technological revolution within the shipping industry is just starting, and mass adoption of autonomous vessels is predicted by 2050. It is at this point that self-determined seaworthiness may become a reality and a new global standard established.
Coming to this conclusion, we must consider and applaud the development of the centuries-old common law consensus of the standard of seaworthiness and its ‘open’ approach, which demonstrates the flexibility, adaptability and continued applicability of this logical and necessary warranty. Although this advanced maritime technology may not have been foreseen in its capabilities as the law was developed and brought into statute, the inevitable advancement of the design and construction of vessels was, as history can exhibit, the staged development over centuries from wooden vessels to reinforced cast-iron steel and ores to high capacity diesel combustion engines. Innovation within this industry is not only needed but expected. This understanding and foresight in common law and legislative thinking reinforces the relevance of the warranty of seaworthiness and its ability to continue to apply as digitisation and automation are adopted throughout the shipping industry.