THE MASS CODE IS SOON TO BE A MANDATORY INSTRUMENT WITHIN THE INTERNATIONAL SHIPPING INDUSTRY

Authored by Nicholas G. Gerassimou

The recent approval by the IMO of the Maritime Autonomous Surface Ships (MASS) Code at the international level has established and constitutes, for the first time, an important framework for the operation of autonomous vessels, i.e. unmanned vessels operated by a Remote Operating Centre (ROC) or fully autonomous vessels. The above MASS Code is not mandatory for the time being. It is estimated, however that, based on the outcome of the development of a framework for an Experience-Building Phase (EBP) and the review of it by the relevant Sub-Committees, the Maritime Safety Committee (MSC) will consider various SOLAS amendments which will lead by 1 July 2030 to the adoption of the final MASS Code. It will then become mandatory and it is expected to enter into force on 1 January 2032.

Although various major technical and legal details are still under review and discussion at the international level, the announcement by the International Group of P&I Clubs regarding the availability of pooling insurance for autonomous and unmanned vessels should certainty be welcomed. This reflects the P&I positive approach towards AI and new technologies to support innovation in this developing sector, always taking into account safety, security, environmental sensitivity, potential costs, and their impact on both onboard and ashore personnel.

It is estimated that, by 2040, an average of 11–17% of worldwide commercial trade will be effected by autonomous and unmanned vessels (according to studies issued by ITF and the World Maritime University relating to national rather than international transportation), hence important legal issues have already been addressed. These include:

1. Whether such vessels are legally considered as “vessels” (although the majority of the various maritime countries, including Greece, which, as from 2023, has adopted the new Code of Private Maritime Law, have already confirmed this);

1. What would be the legal status of the Remote Operating Centre (ROC), its Head and its personnel, and, in particular, whether they may be considered as the “Master” or “Crew”, or their Functional Equivalent, insofar as they effectively have been shifted with the navigation and the operation of the vessels as they are not located on board the vessel, required under the existing international rules;

1. What would be the legal status of the relationship between the ROC, its Head and its personnel, and the shipping/managing companies? Would it be considered as a labour contract or a third party contract for rendering independent services, or otherwise, and what would be their respective liabilities?

1. How may the notion of “seaworthiness” be established, particularly where the ROC, its Head and its personnel will navigate and operate from the shore, apart from the vessel?

1. The role of the manufacturer of the autonomous digital systems will be shifted from the shipowner to the manufacturer. Therefore, the issues of potential liability will be delegated to him. Indeed, the European legislation may provide sufficient arguments to the increased role to the manufacturer’s negligence under the product liability principles. It may be questionable, however, that these principles can be applicable in the shipping industry as they mainly apply to the protection of customers rather than the shippers, the consignees, the shipowners, the shipbuilders and generally the various shipping parties involved.

1. In relation to the marine insurance coverage, it is important to note that the duty of disclosure of material circumstances will be born by senior officers who should hold sufficient information and operational technology (IT and/or OT systems). These principles are also applicable to the various cyber risks. The knowledge, however, may be extremely complicated as it is related to entirely sophisticated technical issues.

1. The autonomous vessels operation may inevitably bring into the scene new perils such as the navigation software operations in all the systems. The cyber risks are connected with the information technology – IT systems and the operational technology – OT systems. It may be doubtful, however, how these perils may be identified due to the severe technical complexity of the particular systems.

1. As regards the possible insurance cover of the inherent vice under the existing Institute Clauses it would be doubtful whether the insurer would be in a position to cover liabilities connected with such inherent vice of the software of the autonomous vessels or liabilities connected with the negligence navigation of the autonomous vessels from the ROC. Similarly, the issue of the “proximate cause” may be of a difficult applicability unless newly established exceptional clauses are found and inserted in the insurance contract.
2. The necessity for amendments to various International Conventions, such as the Convention on the International Regulations for Preventing Collisions at Sea (ColRegs 1972), MARPOL 1973/1978, the Maritime Labour Convention (MLC 2006, as amended in 2014), the STCW Convention 1978, as amended (1995 and 2010), the Hague-Visby Rules relating to the international carriage of goods by sea, the 1974 Athens Convention, as amended (1976 and 2002), related to the international carriage of passengers, the 1989 International Convention on Salvage, the Civil Liability Convention (CLC 1992, as amended by the 2000 Protocol), the Bunkers Convention 2001 and SOLAS 1974, as amended. All the above Conventions, and most probably others, will have to be modified, supplemented of amended either by protocols or otherwise, depending on the jurisdiction of each country, for the full implementation of the above MASS Code, in order to establish a full and comprehensive legal framework regulating international shipping and trade.

The International Group pooling arrangements, certainly demonstrate the Group’s confidence and predictability regarding, the final adoption and implementation of the MASS Code as a mandatory instrument in the near future within the international shipping industry.

Nicholas G. Gerassimou

Maritime Lawyer

Vice President of the Hellenic Association of Maritime Law