Sir Nigel Teare, in his role as chairman of the Association of Average Adjusters, has said that Artificial Intelligence and the advent of automated ships will pose difficult questions in determining liability under the Hague Rules for maritime casualties.
Sir Nigel suggested that the well-known CMA CGM Libra case, which he tried at Admiralty Court level in 2019 and in which the Supreme Court in the UK eventually confirmed that a defective passage plan would render a vessel unseaworthy, would be scrutinized in the context of technological developments.
The laden vessel left the buoyed fairway and grounded as it was leaving China’s Xiamen port in May 2011, necessitating a costly salvage operation. Most of the cargo interests accepted that the cause of the casualty was negligent navigation and paid their contribution to general average, but a small minority refused to do so. The shipowner failed in proceedings in the Admiralty Court to recover general average sums from that minority, and its decision was upheld by the Court of Appeal and the UK 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 (MASS). “They are not yet common but, with commendable foresight, MASS are being closely monitored by the International Maritime Organization”, he said.
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 in place by 2024, with a mandatory code in force by January 2028.
Sir Nigel said that there was no reason why MASS should not have a passage plan to be seaworthy for their voyage. “Such plans may in the future be produced by a computer. What if the reason that a passage plan is defective lies in a defect in the software purchased by the owner?” he asked, noting that Sir Richard Aikens had suggested that in such a case an owner would be able to say that he had committed no breach of due diligence because the defect came about when the ship was not under his control or, as it was put in one case, “in his orbit”. Sir Nigel agreed with this interpretation, stating that “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 was recognized by Lord Hamblen in the Supreme Court in the C CMA CGM LIBRA case”.
Thus, the focus will be on the question whether the owner, once 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 such monitoring were negligent then there would have been a failure to exercise due diligence. “I suspect that it will be difficult to establish negligence of this nature”, said Sir Nigel, continuing: “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 said that one could therefore envisage expert evidence from software engineers as to the nature of the defect and as to whether the defect could and should reasonably have been discovered by the owner, or whether it was simply a mistake by the artificial intelligence of the computer.
“At present, expert evidence in maritime cases is given by former masters and marine engineers. But in future, as and when MASS suffer a casualty, the important experts may well be software engineers. I would find that a depressing prospect; but more youthful minds may disagree,” he observed.