AAA Chair: AI and automated ships pose new challenges in casualty liability
by Jasmina Ovcina Mandra
Artificial Intelligence and the advent of automated ships will pose difficult questions in determining liability under the Hague Rules for maritime casualties, the 2022-2023 chairman of the Association of Average Adjusters, Sir Nigel Teare, cautions.
Sir Nigel drew attention to a recent case involving the containership CMA CGM Libra, which grounded due to negligent navigation.
The laden vessel left the buoyed fairway and grounded as she was leaving Xiamen, one of the largest ports in China, in May 2011, necessitating a costly salvage operation.
While most cargo interests accepted responsibility and contributed to the general average, a minority refused to do so. The shipowner’s attempts to recover the costs were unsuccessful in the Admiralty Court, the Court of Appeal, and the Supreme Court.
In his address to the association, Sir Nigel extended the question of passage planning to its potential application to vessels controlled by operators ashore or by computers on board — ships known as Maritime Autonomous Surface Ships or MASS for short.
He emphasized the need for MASS to have a seaworthy passage plan and questioned the liability of owners when software defects contribute to errors.
“They are not yet common,” he said, “but, with commendable foresight, MASS are being closely monitored by the International Maritime Organization.”
The IMO is exploring how far regulatory regimes such as Solas and the Collision Regulations can apply to autonomous ships. Its plan is to have a non-mandatory code for that type of ship by 2024, with a mandatory code in force by January 2028.
The chairman acknowledged the evolving role of software engineers in future maritime cases involving autonomous ships. He expressed concern over the potential challenges of proving negligence in monitoring software and determining liability for errors caused by artificial intelligence.
“The need for the vessel to be in the orbit of the owner before the owner is subject to the due diligence obligation in the Hague Rules [the protocol of 1924 on the allocation of risk between shipowners and cargo interests] was recognised by Lord Hamblen in the Supreme Court in the CMA CGM Libra case.
“Thus, the focus will be on the question whether the owner, once he was in possession of the software, should have appreciated, by careful and skilled monitoring of the software, that it was not in a fit condition for its purpose. If his monitoring were negligent then there will have been a failure to exercise due diligence. I suspect that it will be difficult to establish negligence of this nature.
“Where the master on board or operator ashore acts negligently when commanding the vessel that would amount to negligent navigation. But what if the error is committed by a computer? If such error is the result of a defect in the software the automated vessel would presumably be regarded as unseaworthy. Again, there would be no breach of due diligence by the owner unless the owner could and should have detected the error before the commencement of the voyage. But if the error is the result of an error by the artificial intelligence of the computer, then that might well be regarded as negligent navigation by the computer just as if it had been an error by the officer of the watch.
Sir Nigel stressed that electronic charts had not eliminated the necessity for proper passage planning. Despite the presence of electronic navigation aids, vessels must still have a comprehensive passage plan at the outset of their voyages. He urged navigational officers to receive proper training on utilizing electronic charts and to consult additional sources of information to ensure safe navigation.
The AAA chairman recalled that the CMA CMG Libra case had caused disquiet among shipowners and protection and indemnity clubs. It had been suggested that the decision would lead to more cargo claims against carriers and their insurers and to more claims in general average being resisted by cargo interests. Since the decision Sir Nigel had been informed by the P&I clubs that it was now routine to find allegations of poor passage planning in cargo claims.
But in considering whether the decision would materially increase the share of the burden of maritime casualties borne by carriers it was necessary to ask whether any defect in a passage plan would render a vessel unseaworthy.
Sir Nigel doubted that the effect of the Supreme Court decision would be as damaging to shipowner interests as some had suggested. He said that “if the decision in the case does lead to carriers bearing a greater burden of the losses caused by maritime casualties than in the past, that is because the notion of a seaworthy vessel keeps up with and reflects modern safety standards. That is not a cause for regret. Seaworthiness is the handmaiden of beneficial changes in ship management designed to promote safety at sea. “
Opinions as to what is proper passage planning might reasonably and legitimately differ. This would have to be borne in mind when deciding whether a sufficiently serious defect had been established. The reality was that the scope of the seaworthiness duty was not fixed in stone but could adapt to and encompass changes in the practice of shipping.
“What will become important will be the training of navigational officers in the art of passage planning when using electronic charts. The UK Government’s Marine Accident Investigation Branch has urged navigating officers not to rely solely on the data embedded in a computer-based system but to consult all sailing directions and notices to mariners just as they would when passage planning on paper charts. There is evidence that not all navigating officers understand the limitations of electronic charts.
“It is therefore possible that the introduction of electronic charts will give rise to more, not fewer, complaints of poor passage planning. In circumstances where the decision of the Supreme Court has so clearly resolved the issues of law, the debate in the future is more likely to concern the adequacy of the plan on the electronic chart, the significance of any defects and the adequacy of the training of officers to use electronic charts safely,” said Sir Nigel.