The following article about the legal and insurance implications of unmanned ships has been written by Prof. Dr. Dieter Schwampe, Dr. Maximilian Guth and Dr. Carolin Schilling-Schulz, who work for German law firm Dabelstein & Passehl. The original text was published in IUMI Eye, the International Union of Marine Insurance’s monthly newsletter.
Unmanned ships and how the maritime legal framework should deal with this new development is a topic coming more and more into focus. At a recent German congress of traffic law the view was expressed that German rules on contractual liability of a carrier are essentially applicable to unmanned ships, whereas in respect of the liability of the ship owner in tort or the manufacturer of the ship according to product liability rules, it was suggested that the liability should be a strict ‘no fault’ liability. Furthermore, it was stated that it should be considered whether the strict non-contractual liability of the owner and the manufacturer of the ship should be coupled with a requirement for mandatory insurance with the right of direct actions against the insurer. However, there was also the view that a German unilateral go-ahead should be omitted in favour of a joint endeavour, preferably in the framework of the IMO.
The CMI has recently implemented a Working Group on “Maritime law for unmanned craft” to become involved and consider how international conventions and regulations can be adapted to provide for the operation of unmanned ships on the high seas. Additionally, IUMI’s Political Forum recently included this topic to its list for monitoring to be part of the review discussion. Although the discussions are just starting, it is already foreseeable that unmanned vessels will change the landscape of the maritime insurance industry.
The marine insurance sector has already reacted to cyber risks. The English market for example has introduced the Institute Cyber Attack Exclusion clause CL 380 which is generally incorporated into policies. The German DTV-ADS contain a cyber risk exclusion clause in clause 36. Accordingly, the market solution is to exclude this risk in H&M policies. As with unmanned vessels, cyber risks will become even more important and further risks like, for example, the loss of an essential data link to the land based remote controller arise. It is, therefore, debatable whether in future the solution will still be as simple as excluding these risks.
The existing conditions will need to be reviewed not only from the perils covered perspective but also whether they work in the context of unmanned vessels. As long as the human factor is involved the rules on alteration of risk, willful misconduct as well as unseaworthiness might still be operable. But what will a policy look like that covers fully autonomous ships that are not even navigated by remote control? A further question is how the claims handling will be influenced by the fact that there is no crew that can report on what happened onboard of the vessel?