Dr Alexandros X.M. Ntovas - Nautical Institute London Branch · Dr Alexandros X.M. Ntovas Institute...

Legal Considerations

Dr Alexandros X.M. Ntovas

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Autonomous Ships – What does the future hold? 25–6 September, Bristol

Mr. Robert Veal, Professor Michael Tsimplis, Dr Alexandros Ntovas, Professor

Andrew Serdy (Institute of Maritime Law, University of Southampton), & Professor

Simon Quinn (Faculty of Engineering and the Environment, University of

Southampton)

The opinions and views shared in this presentation do not

necessarily reflect those of the Institute of Maritime Law

(Southampton)

2 Dr Alexandros X.M. Ntovas Institute of Maritime Law, Southampton



source: Rolls-Royce plc



Freedom of navigation United Nations Convention on the Law of the Sea (UNCLOS, 1982)

• not a self-contained regime

- an umbrella convention

- to be applied without prejudice for any

laws or rules which may previously exist

or which may be made in future

• synergies with IMO specialized instruments

– it establishes where and by whom the

provisions of various specialized

instruments will be enforced

o international standards and rules for

pollution control; manning, training

and certification; safety at sea, etc



navigation zones

Sea Level

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EEZ

12 nm

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EXCLUSIVE ECONOMIC ZONE (EEZ)

LAND

LAND

Dr Alexandros X.M. Ntovas Institute of Maritime Law, Southampton


navigation zones



navigation zones

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Port

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flag-state jurisdiction

subject to exceptions

c o a s t a l - s t a t e a n d f l a g - s t a t e j u r i s d i c t i o n s

u n d e r C h a p t e r V r e g i m e Co

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Freedom of navigation (cont.)

Freedom of the high seas (Art. 87)

• open to all States

• to be exercised under the conditions laid down by UNCLOS

and by other rules of international law

• comprises the ‘freedom of navigation’

• shall be exercised with ‘due regard’

principle of flag-state jurisdiction



The principle of flag State jurisdiction • Right of navigation (Art. 90) : “Every State, whether coastal or land-

locked, has the right to sail ships flying its flag on the high seas”

• Nationality of ships (Art. 91) – genuine link between the flag State

and the ship

• Status of ships (Art. 92) – exclusive flag State jurisdiction on the high

seas

• Duties of the flag State (Art. 94) – effective exercise of jurisdiction

and control



the principle of flag State jurisdiction (cont.)

• primacy of the national law

– registration

– duty of care

– due regard principle

– exclusive jurisdiction subject to exceptions

– state responsibility

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LAND

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navigation zones



navigation zones

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u n d e r C h a p t e r V r e g i m e



Exclusive Economic Zone UNCLOS (Art. 55) provides that: “The exclusive economic zone is an area

beyond and adjacent to the territorial sea,

– subject to the specific legal regime established in this Part,

– under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention”.

Freedom of navigation (Art’s 56 & 58)

• the high seas provisions apply in principle to the EEZ

• respective rights shall be exercised with ‘due regard’

• specific jurisdiction with regard to the protection and preservation of the marine environment

- foreign vessels to abide by coastal State’s EEZ-laws provided they are compatible with UNCLOS norms and other rules of international law

- “applicable international rules and standards for the prevention, reduction and control of pollution from vessels” (Art’s 211 & 220)

Investigation of foreign vessels (Art. 226)

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LAND

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navigation zones



navigation zones

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Co

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Territorial sea

Legal status (UNCLOS Art. 2) provides that: “The sovereignty of a coastal State extends, beyond its land territory…to an adjacent belt of sea, described as the territorial sea”;

– to be exercised subject to UNCLOS and other rules of international law

Freedom of navigation

• right to ‘innocent passage’ through the territorial sea for all foreign ships (Art. 17)

- “passage” (Art. 18) means continuous and expeditious navigation through the territorial sea to/from internal waters or port of the coastal State, or traverse without entering internal waters

- it’s “innocence” is defined on the basis of Art. 19

Coastal regulation (Art’s 21–26)

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LAND

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navigation zones



navigation zones

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Port

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flag-state jurisdiction

subject to exceptions


u n d e r C h a p t e r V r e g i m e Coa

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Internal waters Definition (UNCLOS Art. 8(1)): “…waters on the landward side of

the baseline of the territorial sea form part of the internal waters of

the State.”

Legal status (UNCLOS Art. 2(1)) - internal waters are equated to land

territory, and thereon the sovereignty of the coastal State is the same

as on land.

Access to port

• no general right of foreign vessels to enter internal waters

e.g., Convention on Facilitation of International Maritime Traffic (1965,

as amended)



Is an ‘unmanned vessel’ a ‘ship’?

What is a ‘ship’?

no established definition in international law

• not defined in UNCLOS

- ship/vessel – interchangeable terms

• varied terminology in specialized maritime instruments

- tailor-made definitions

• a general (but non-binding) definition United Nations Convention on Conditions for Registration of Ships (1986, not yet in force), Art. 2: ship means ‘any self-propelled sea-going vessel used in international seaborne trade for the transport of goods, passengers, or both, with the exception of vessels of less than 500 gross registered tons’.



Type Definition IMO

instrument

‘passenger ship’ “a ship which carries more than twelve passengers” SOLAS I/2

‘special

purpose ship’ “means a mechanically self-propelled ship which by reason of its function

carries on board more than 12 special personnel”

SPS Code

para 1.3.12

‘general

cargo ship’ “a ship with a multi-deck or single-deck hull designed primarily for the

carriage of general cargo”

MEPC.1/Cir

c.681 Annex

‘nuclear ship’ “a ship provided with a nuclear power plant” SOLAS I/2

‘bulk carrier’

“a ship which is constructed generally with single deck, top-side tanks and

hopper side tanks in cargo spaces, and is intended primarily to carry dry

cargo in bulk, and includes such types as ore carriers and combination

carriers”

SOLAS

IX/1.6

“a ship which is intended primarily to carry dry cargo in bulk, including such

types as ore carriers and combination carriers”

SOLAS

XII/1.1

‘oil tanker’

“means a ship constructed or adapted primarily to carry oil in bulk in its

cargo spaces and includes combination carriers, any "NLS tanker" as defined

in Annex II of the present Convention and any gas carrier as defined in

regulation 3.20 of chapter II-1 of SOLAS 74 (as amended), when carrying a

cargo or part cargo of oil in bulk”

MARPOL

Annex I reg.

1.5

tailor-made definitions



Type Definition IMO

instrument

‘fishing vessel’

“a vessel used for catching fish, whales, seals, walrus or other living

resources of the sea”

SOLAS I/2

“any vessel used commercially for catching fish, whales, seals, walrus or

other living resources of the sea”

SFV 1993

article 2

‘high-speed craft’

“a craft capable of a maximum speed, in metres per second (m/s), equal

to or exceeding 3.7 times the one-sixth power of the volume of

displacement corresponding to the design waterline (m³), excluding craft

the hull of which is supported completely clear above the water surface

in non-displacement mode by aerodynamic forces generated by ground

effect”

SOLAS

X/1.2, HSC

Code 2000

para 1.4.30

‘mobile offshore

drilling unit’

“means a vessel capable of engaging in drilling operations for the

exploration for or exploitation of resources beneath the sea-bed such as

liquid or gaseous hydrocarbons, sulphur or salt”

SOLAS

IX/1,

MODU

Code 2009

para 1.3.40

tailor-made definitions (cont.)



is an ‘unmanned vessel’ a ‘ship’? (cont.) • specialized maritime instruments

- tailor-made definitions

o e.g. International Convention for the Prevention of

Pollution from Ships (1973/78 as amended) (Art. 2(4)

defines a ship as: ‘a vessel of any type whatsoever operating

in the marine environment and includes hydrofoil boats, air-

cushion vehicles, submersibles, floating craft and fixed or

floating platforms’).

o e.g. Convention for the Suppression of Unlawful Acts

against the Safety of Maritime Navigation (1988 as

amended) (Art. 1(1a) defines a ship as: ‘a vessel of any

type whatsoever not permanently attached to the sea-bed,

including dynamically supported craft, submersibles, or any

other floating craft’.



is an ‘unmanned vessel’ a ‘ship’? (cont.)

• it will be a matter for the national law of the flag state



is an ‘unmanned vessel’ a ‘ship’? (cont.) Belgium (S.1(1) of 21 December 1990 Act ):

“any floating craft, self-propelled or not, with or without any water

displacement, used or fit to be used as means of locomotion in, above or

under the water, including the installations not permanently attached to the

shore or to the soil”.

England and Wales (S.313(1) Merchant Shipping Act 1995):

“unless the context otherwise requires … ‘ship’ includes every description of

vessel used in navigation”.

– but, when exactly a vessel is “used in navigation”? Substantial case-law!

France (Ordinance No. 1307 of the Transport Code 2010):

“Except as indicated to the contrary, for the purposes of the present Code

ships are:

1) Any floating craft, built and manned for maritime merchant navigation, or

for fishing, or for yachting, and dedicated to it.

2) Any floating craft, built and manned for maritime navigation, dedicated to

administrative or industrial and commercial public services”



Is the human presence on-board a constitutive element’?

‘master’ / ‘crew’, or ‘seafarer(s)’ • not defined in UNCLOS

• no conclusive definitions in specialized maritime instruments

• a matter for the flag State (i.e., national law)

is an ‘unmanned vessel’ a ‘ship’? (cont.)



the human presence on-board (cont.)




“in the charge of a master…,”


for example, US (46 U.S. Code §10101(1)):

In this part—

(1) “master” means the individual having command of a vessel.

(2) “owner” means the person to whom the vessel belongs.

(3) “seaman” means an individual (…) engaged or employed in any capacity on board a vessel.




“in the charge of a master…,”



International Convention for the Safety of Life at Sea (SOLAS) (1974 as

amended)

• Art. 2: “ships entitled to fly the flag of States the Governments of

which are Contracting Governments”

– cargo ships of more than 500 gross tonnage

• “ship” is not generally defined

– Chapter 1 - Regulation 1(b) “classes of ships to which each chapter

applies are more precisely defined … in each chapter”

• possible exemptions from Chapters II-1, II-2, III and IV of SOLAS

– Subject to Regulation I/4(b) (‘novel features’)

• broad equivalence principle

• regulation V/24 (Use of heading and/or track control systems) – immediate change-over from automatic to manual control in given conditions.

– requirement for additional helmsperson in such conditions

– changeover to be supervised by officer

– testing of manual steering after prolonged period in autopilot

SOLAS



International Regulations for Preventing Collisions at Sea 1972 as annexed to the

Convention on the International Regulations for Preventing Collisions at Sea

(COLREGS) (1972 as amended)

• Rule 3(a) - considers a ‘vessel’ to be: ‘every description of water craft,

including non-displacement craft, WIG craft and seaplanes, used or capable

of being used as a means of transportation on water’.

– Rule 1(a) provides: “These Rules shall apply to all vessels upon the high

seas and in all waters connected therewith navigable by seagoing vessels.”

• Rule 2(a), states: “Nothing in these Rules shall exonerate any vessel, or the

owner, master, or crew thereof, from the consequences of any neglect to

comply with these Rules or of the neglect of any precaution which may be

required by the ordinary practice of seamen, or by the circumstances of the

case.”

– the duty of good seamanship

– compliance by shore-based operators

COLREGS



The International Convention on Standards of Training, Certification and

Watchkeeping for Seafarers (STCW) (1995/2010 as amended)

• Art. 1(2): The Parties undertake to promulgate all laws, decrees,

orders and regulations and to take all other steps which may be

necessary to give the Convention full and complete effect, so as to

ensure that, from the point of view of safety of life and property at

sea and the protection of the marine environment, seafarers on

board ships are qualified and fit for their duties”

– also, Art. 3: “The Convention shall apply to seafarers serving on board

seagoing ships entitled to fly the flag of a Party.”

STCW

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