1.2.1 Historical Background

As early as 1919, the Treaty of Versailles hinted at a general desireFootnote ² for an international instrument regulating the regime of ports. In this respect, the 1923 Convention and Statute on the International Régime of Maritime PortsFootnote ³ is a landmark development in the global regulation of ports. It primarily addresses the issue of equality of treatment concerning freedom of access to ports, the use of ports, and availing of benefits regarding the navigation and commercial operation and use of port facilities (see Article 2). In this respect, Article 2 of the Convention’s Statute requires the contracting parties to ensure equal treatment of vessels from other State parties regarding the freedom of entry to ports. Although PSJ is not explicitly mentioned, it also refers to the general competence of port authorities (Articles 3 and 4).

Before the 1970s, in the absence of a directly applicable clear treaty rule, port States exercised restricted jurisdiction over foreign vessels under customary law, which was mainly in the form of denying entry to their ports or imposing specific conditions on foreign vessels. It is submitted that the concept of PSJ emerged in the 1970s. In particular, the 1973 Inter-Governmental Maritime Consultative Organisation (IMCO) Conference on Marine Pollution and the 1974 Conference of the International Law Association (British Branch Committee on the Law of the Sea) appear to be early examples. At the IMCO Conference, the US proposed a draft that would allow port States to ensure compliance with global regulations. However, the proposal was not accepted (Marten Reference Marten2014, 33–35; Qi and Zhang Reference Qi and Zhang2021, 19–21). Over time, it became evident that the international shipping regulations set out in the IMO’s major instrumentsFootnote ⁴ could only be enforced by expanding the powers of port States (Özçayir Reference Özçayir2004, 74–77).

Significant developments in the evolution of PSJ occurred in the 1980s, particularly with the adoption of UNCLOS and the Paris Memorandum.Footnote ⁵ Notably, port States have assumed a critical role in ensuring compliance through various regional port State control agreements. UNCLOS (see Article 218) implicitly recognizes PSJ without providing an explicit definition, and it acknowledges the port State’s authority to set conditions for foreign ships to have access to ports. Additionally, UNCLOS enables port States to physically inspect if a ship’s actual conditions do not match its documentation. The evolution of PSJ was further enhanced in 1984 with the entry into force of the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW),Footnote ⁶ which grants port States the authority to detain ships until any deficiencies posing risks to people, property, or the environment are addressed. The evolution of PSJ has continued at both the regional and global levels; for instance, the IMO adopted the first version of Resolution A.472(18) in 1993, which set procedures for port State control (Marten Reference Marten2014, 2–3, Reference Marten2016, 471; Özçayir Reference Özçayir2004, 74–77; Qi and Zhang Reference Qi and Zhang2021, 25–26). Over time, the myriad of IMO legal instruments enhanced the PSJ regime. Finally, the “no more favourable treatment” clause, which is usually incorporated into IMO Conventions, further consolidated PSJ vis-à-vis FSJ.

1.2.2 Legal Basis of PSJ

Port States possess regulatory and enforcement authority over foreign ships in their ports. As a fundamental principle, a port State, therefore, can necessitate compliance with its national regulations for foreign vessels, provided these do not pertain to aspects entirely internal to the ship. In this context, PSJ refers to the authority of a State over ships that voluntarily visit its ports (Ringbom Reference Ringbom2011, 620–623). As a public law concept, PSJ is a direct extension of the principle of State sovereignty and is primarily a form of territorial jurisdiction, though it encompasses additional aspects.Footnote ⁷ Over time, PSJ has transformed from a voluntary application in specific areas to a more comprehensive and obligatory implementation largely through IMO instruments and their broadening reach to new areas (IMO 2023c, 9–10; Kopela Reference Kopela2016, 93–94; Marten Reference Marten2014, 1, 7, 20–21; Molenaar Reference Molenaar, Freestone, Barnes and Ong2006, 208–209; Sumer Reference Sumer2023b, 117).

PSJ is broadly viewed as allowing port States to exercise significant regulatory authority over foreign-flagged ships. In a nutshell, PSJ provides a mechanism for corrective action if flag States fail to meet their obligations. Although its significance has faded due to the expanding PSJ, FSJ remains a foundational mechanism for maintaining legal order at sea, especially on the high seas. However, over time, in response to the inadequacies of flag States in ensuring compliance of their ships, port States had to step in, and indeed, they have increasingly taken on a supplementary, if not leading, role (Derrig Reference Derrig2022, 534–536; Qi and Zhang Reference Qi and Zhang2021, 8–9).

While UNCLOS predominantly upholds FSJ over vessels, it also recognizes the growing significance of port States in ensuring adherence to international rules and standards. Indeed, the notion of the port State as a separate jurisdictional entity gained importance with the adoption of UNCLOS. However, UNCLOS, as an umbrella instrument, does not codify the scope of PSJ comprehensively. Nonetheless, it provides a legal basis, particularly in Article 218, “Enforcement by port States” (see also Articles 211(3) and 219), which also points to the IMO as the competent international organization (CIO). Acting as the secretariat for UNCLOS, the UN Division for Ocean Affairs and the Law of the Sea compiled a table elucidating the implications for the “competent or relevant international organizations” in relation to UNCLOS for ocean governance. That document, which was published in the Law of the Sea Bulletin No. 31, also confirms that the IMO is the CIO in the context of Article 218 (IMO 2014, 7–8; Marten Reference Marten2014, 2–3; OECD 2001, 28; Sumer Reference Sumer2023b, 125–126; United Nations 1996).

The authority of a port State on foreign-flagged ships docked at its ports is crucial to the routine operations of international shipping. Although States have historically exercised territorial sovereignty over their ports, the concept of the port State as a distinct jurisdictional entity was formally established by UNCLOS. In establishing the legal framework for the rights and obligations of port States, UNCLOS heavily relies on the international rules developed at the CIO. By incorporating the IMO’s regulations through rules of the reference system, UNCLOS indeed grants a significant role to the standards adopted under the auspices of the organization (Marten Reference Marten and Ringbom2015, 5–6, 109–112; Sumer Reference Sumer2023b, 139–140).

Given that UNCLOS is relatively silent on PSJ, any limitations regarding the subject matter or scope of regulations in this context must be sought outside of the Convention. This is supported by the preamble of UNCLOS, which emphasizes that matters not explicitly regulated by the Convention continue to be governed by the general international law (Marten Reference Marten and Ringbom2015, 109–112).

UNCLOS serves as the primary international legal framework, establishing the rights and obligations of States. States assume their roles as coastal, flag, and port States based on various factors, such as their geographical location, sovereignty, boundaries, and functions, as well as the treaties to which they are parties. Typically, a coastal State’s authority diminishes as the distance from the shore increases (Beckman Reference Beckman2007, 326; Mansell Reference Mansell2009; Wolfrum Reference Wolfrum2014). Article 8 of UNCLOS establishes that waters on the landward side of the baselines are part of internal waters. This recognition affirms the sovereignty of port States over the waters in their ports. Furthermore, Article 25 reaffirms the right to regulate access to internal waters, including ports. Moreover, UNCLOS strengthens the powers of port States in protecting the marine environment, allowing them to regulate the access of vessels into their ports, inspect vessels for compliance with port entry requirements, and deny access to noncompliant vessels (Galani Reference Galani2021, 609). In general, Articles 211, 218, and 219 address PSJ. Article 211(3) primarily sets the foundation for the State’s jurisdiction to adopt domestic rules. On the other hand, Articles 218 and 219 specifically outline the port State’s enforcement authority. In essence, while Article 211 focuses on the authority to legislate, Article 218 addresses the authority to enforce such legislation (Keselj Reference Keselj1999, 131–135; Özçayir Reference Özçayir2004, 80–81).

As a framework convention, the UNCLOS emphasized general principles of the law of the sea, leaving broader discretion to States rather than restricting interpretation or hindering technological development. It was undoubtedly drafted for crewed ships. However, this does not mean that the drafters intended to exclude new types of vessels (Sumer Reference Sumer2023b, 138; Veal et al. Reference Veal, Tsimplis and Serdy2019). Indeed, the UNCLOS regime is designed to evolve and address emerging issues that could not possibly have been foreseen during the adoption of UNCLOS. Therefore, it is suggested that the norms and principles regulating conventional manned vessels may apply to MASS with the necessary adjustments. In this context, Kraska aptly opines that the current legal framework for the law of the sea already offers a fundamental structure for regulating MASS (Kraska Reference Kraska2010, 44–45).

1.4.1 Construction, Design, Equipment, and Manning Standards

The primary regulatory approach to enhance the safety of shipping and to control pollution from ships involves setting standards pertinent to the construction, design, equipment, and manning of ships (CDEM standards), as in the example of SOLAS and MARPOL (Churchill Reference Churchill2016, 443). This particularly merits closer scrutiny, given the varying qualifications of MASS compared to traditional ships.

In accordance with relevant IMO Conventions, States may adopt measures that require vessels to adhere to CDEM standards as both entry criteria and rules to be followed while in ports. The application of prescriptive jurisdiction regarding CDEM standards that extend beyond international legal requirements causes issues due to their extraterritorial effect. Naturally, vessels must meet these standards as a continuous activity throughout their journey, even before approaching port. Thus, CDEM requirements need to be met on the high seas before and after the port visit, suggesting an exercise of extraterritorial jurisdiction. Nevertheless, it is submitted that the extraterritorial impact of these measures is merely incidental, not the primary objective of the port State’s domestic laws. Such static features are attributes that remain consistent regardless of a ship’s location, meaning that a ship either complies or does not comply with them wherever it is, whether in port or not. Since these features cannot easily be modified during a voyage, they are often seen as the most intrusive in relation to a ship’s navigational rights. Nonetheless, ships have the option of visiting a port. But, if they choose to do so, then, naturally, they must adhere to the CDEM standards set by the port State (Churchill Reference Churchill2016, 454–556; Kopela Reference Kopela2016, 95–96; Marten Reference Marten2016, 472–473; Ringbom Reference Ringbom2011, 620–623).

Port States have the authority to set CDEM standards for foreign ships intending to have access to their ports. It follows that port States can enforce these CDEM standards within their ports. Given that PSJ is fundamentally territorial, it stands to reason that a port State can, in principle, require foreign MASS that call at its ports to adhere to CDEM standards. The IMO Conventions often mandate port States to adopt and enforce such standards. A port State may also opt to avoid stringent CDEM measures if it values the economic benefits derived from foreign ships, including MASS, such as port fees and charges for services, and wishes to maintain its attractiveness as a port of call (Churchill Reference Churchill2016, 446–448, 467–469).

Given that ports are considered part of a State’s territory, port States have the authority to set CDEM standards for vessels calling at their ports. They may set more stringent CDEM standards than IMO standards unless there exist specific IMO Conventions or unless international laws stop them. Essentially, PSJ is subject to three key limitations with regard to CDEM standards. First, port States must respect the immunity of foreign warships and government-owned ships engaged in noncommercial activities. Second, various treaties mandate that States should not discriminate between ships based on nationality. And, finally, pursuant to Article 211(3) of UNCLOS, port States are obliged to provide due publicity to CDEM measures (Churchill Reference Churchill2016, 467–469).

Vessels can choose to ignore a port State’s regulations by not entering its ports. However, by deciding to visit a port, vessels implicitly agree to comply with the entry conditions, even if these conditions concern activities that occurred outside the port State’s territorial jurisdiction. In light of the foregoing, skeptical port States can indeed prescribe CDEM standards to deny access to MASS, unless the IMO’s GAIRS (see UNCLOS, Article 21(2)) restrict this power. Indeed, a key limitation is that a port State cannot establish CDEM standards that conflict with IMO Conventions that it has ratified, as doing so would breach its treaty obligations (Churchill Reference Churchill2016, 450–452; Ringbom Reference Ringbom2011, 626–628).

1.4.2 The Location of the Remote Operation Centers

According to the draft MASS Code, remote control involves operating the MASS or certain of its functions from a remote operation center (ROC). Under the Code, “ROC” means a distant location from the MASS that can control some or all aspects of the MASS functions. In this vein, the draft code defines a “Remote Operator” as a qualified person who is employed or engaged in operating some or all aspects of the MASS functions from a ROC. And, notably, “Remote Master” is a master in a ROC (IMO 2024b, annex I, 11).

The said new actors and terms cause some legal ambiguities. In particular, the location of a ROC can lead to intricate legal challenges concerning jurisdiction and the responsibilities of the flag State. For instance, customarily on the high seas, ships have been subject to the exclusive FSJ based on the view that vessels are essentially extensions of a flag State’s territory. But this reasoning would be difficult to follow for ROCs, which are hosted in another State, due to the overlap between the territorial jurisdiction of the State hosting the ROC and the jurisdiction of the flag State. There can be several related issues if the ROC is situated in a country other than the flag State with regard to ensuring the effective FSJ requirement under Article 94 of UNCLOS. Evidently, the legal tension will be less if a ROC is in the territory of the flag State. Although, at first sight, it seems plausible to ensure that ROCs are located only in the flag States, there is no such obligation in the law of the sea regime (Ishii Reference Ishii2023, 268–269). Therefore, the legal status of ROCs is likely to become a contentious issue until the IMO clarifies the issue by developing a common understanding between flag and port States (Yoo and Shan Reference Yoo and Shan2019, 563).

Once registered, the flag State is bound under Article 94 to exercise effective jurisdiction and control to ensure that the registered vessel complies with the IMO’s GAIRS. However, a critical issue arises with MASS: how the flag State can effectively oversee the remote operators to fulfil these obligations. Unlike manned ships, where the flag State can exert jurisdiction over both the vessel and the individuals on board, ROCs present unique legal complexities due to the absence of onboard crew and their presence elsewhere. Hence, the location of the ROC introduces intricate jurisdictional challenges. Notably, there may be overlapping jurisdictions between the State where the ROC is situated and the flag State. This issue can be further exacerbated depending on the legal characterization of the State in which the RCS is operated. For instance, the host State can be either a port or a coastal State, or both. Furthermore, the host State can be a landlocked State as well. Should this be the case, perhaps analogously to the presence of the dry ports, landlocked host States can arguably be considered as port States. There can be some legal creativity to address the issue in this manner, but, on the other hand, it is clearly not within the IMO’s mandate to come up with a new jurisdictional role, such as host State and/or ROC State jurisdiction, given that there is no such concept under UNCLOS. Evidently, when the ROC is within the flag State’s territory, it can exercise both prescriptive and enforcement jurisdiction. In contrast, if it is in the territory of a different State, then the flag State’s jurisdiction and reach are significantly limited, preventing it from enforcing its laws against the individual in the foreign jurisdiction without that State’s consent (Dong et al. Reference Dong, Bautista and Zhu2024, 2).

As a corollary to this, there seem to be increasing concerns about enforcing regulations against ROCs abroad. Considering the legal complexities of a ROC situated in a different State from the flag State, some delegations at the IMO suggested that discussions should focus on scenarios where the ROC is within the flag State’s territorial jurisdiction. However, other delegations argued that restricting the discussions in this way would impose an impractical limitation. The MASS Joint Working Group (JWG) subsequently agreed that the jurisdictional issue, including the conditions concerning a ROC located outside the flag State, should be reviewed by the IMO’s Legal Committee (LEG; IMO 2024h).

Indeed, in the absence of bilateral arrangements or the IMO’s GAIRS, flag States may face considerable limitations in meeting their international obligations when the ROCs are in different countries. For instance, the flag State may struggle to acquire necessary data for investigations due to a lack of cooperation or restrictions imposed by the State where the ROC is located (Ishii Reference Ishii2023, 281–284). Despite the abovementioned challenges, this is probably not a deal-breaker or a game-changing development hindering the integration of MASS. Indeed, the current legal architecture, including the trends toward stronger PSJ to ensure compliance, permits flexibility to address FSJ issues, as will be explained later.

1.4.3 Ship as a Unit Concept

It is a truism that the definition of “ship” varies depending on the subject matter and context of the convention in which it is mentioned. The terms “ship” and “vessel” are defined differently in various conventions adopted by the IMO, according to their scope of application and their objectives. At times, drafters of the legal instruments even attempted to avoid definitions so as not to confine the treaty texts to limited maneuverability spaces, as in the example of UNCLOS. Indeed, considering that UNCLOS aims to regulate all issues relating to the law of the sea, a single definition of “ship” would be neither feasible nor beneficial. On the definition issue in relation to the MASS concept, Kraska rightly observes a common aspect: that human control versus autonomous/remote control does not determine what constitutes a ship. Indeed, pursuant to Article 91 of UNCLOS, States have the discretion to fix the conditions for the granting of their nationality to vessels. In this regard, Kraska also maintains that registration of MASS is subject to national law (Kraska and Pedrozo Reference Kraska and Paul Pedrozo2023, 41–44; Petrig Reference Petrig, Johansson, Fernández, Dalaklis, Pastra and Skinner2023, 83–84).

The International Tribunal for the Law of the Sea (ITLOS) has firmly refined the definition of a ship in a few cases, including the M/V “Saiga” (No. 2) case,Footnote ¹² the M/V “Virginia G” case,Footnote ¹³ and the M/V “Norstar” case (Preliminary Objections).Footnote ¹⁴ In each of these cases, the respondent raised multiple objections regarding the admissibility of the flag State’s claims, particularly focusing on the nationality of the claims. In all instances, ITLOS dismissed the objections and proceeded to evaluate the merits of the case. Through these rulings, ITLOS emphasized the distinct identity of a ship as a single unit, highlighting the flag State’s right to pursue compensation on behalf of crew members who are not its nationals and underscoring the broader implications for maritime law. For instance, in countering the argument that a flag State cannot seek redress for crew members who are not its nationals, the Tribunal in M/V “Saiga” (No. 2), upon reviewing UNCLOS, clarified that (Heidar Reference Heidar2024):

ITLOS reaffirmed its jurisprudence in the M/V “Virginia G” case:

ITLOS reached these decisions by considering the practical elements that reflect modern maritime practices, such as the multinational and temporary composition of ship crews and the diverse interests associated with the cargo carried by a single vessel (Heidar Reference Heidar2024). Although it may be too early to consider that the ship as a unit concept can be extended to ROCs, nonetheless, it may be a useful tool to mitigate the legal tension with Article 94. Indeed, given the fact that ROCs are expected to be inherently crucial in the steering of RCS, this necessarily follows the line of thought that ROCs can perhaps be considered under the “unity principle,” even if they are located in other States (Ishii Reference Ishii2023, 268–269). However, this does not necessarily mean that there would be effective compliance mechanisms for ROCs in practice. In this context, in addition to treating ROCs as inherent parts of single units, equivalent to ship bridges, they could arguably be subject to more robust PSJ and constant port State control inspections, which would alleviate the inadequacy of flag States.

1.4.4 Latest Developments at the IMO

The IMO’s Maritime Safety Committee (MSC), the LEG, and the Facilitation Committee (FAL) conducted an RSE for the IMO Conventions under their remit to analyze the compliance issues. The RSE of the MSC and the LEG was concluded in 2021 and that of the FAL in 2022. The RSE is regarded as an important milestone in paving the way for further regulatory action with a view to adopt a goal-based MASS Code (IMO 2021).

In 2023, the MASS JWG aptly agreed that a human master should always be in charge of a MASS and should be able to reassume control when needed, irrespective of its degree of autonomy. Moreover, depending on the technology used on the MASS, the human master may not need to be on the vessel, which suggests that the human master can be a remote master located in the ROC (IMO 2024h). This is, indeed, noteworthy, as it practically corrects the shortcomings of degree four.

Currently, the development of the nonmandatory goal-based MASS Code has been limited to MASS cargo vessels (IMO 2024h, 8). The draft preamble of the MASS Code notes that specific operational functions may be controlled from a remote location and addresses necessary aspects of ROCs (4). To prevent discrepancies and ease the legal tension of the new MASS Code with UNCLOS and international law, particularly given the novel nature of the subject matter, the following text is suggested for inclusion in the MASS Code:

Notably, the current draft Code obliges flag States for the certification and verification of ROCs. It stipulates that every vessel to which the Code applies should have a valid MASS Certificate (para. 6.1). Similarly, every ROC needs to be issued a MASS ROC Certificate (para. 6.2). Moreover, the draft Code states that every administration notified by a company of its intent to operate a MASS should, as it finds practical and necessary, either independently or in collaboration with other contracting governments provide its requirements, procedures, and guidelines for incorporation of the ROC in the verification and certification process of the Document of Compliance (DoC) and Safety Management Certificate (SMC). The process for issuing the DoC is expected to include at least one assessment of the ROC during the DoC’s validity period. This assessment should be conducted by the flag State administration, a recognized organization (RO), or another contracting government at the administration’s request. The DoC should only be valid for MASS if explicitly stated in the DoC. According to the draft Code, the SMC should be issued in line with SOLAS (Chapter IX, Regulation 4.3) and the ISM Code (Part B, paras. 13–15). The SMC should specify the type of ship, indicate that it is operated as a MASS, and identify the ROC, if applicable, involved in the operation of the MASS (IMO 2024h, annex 1, 19–22).

The draft Code also has provisions on Minimum Safe Manning Document (MSMD), for MASS and ROC, in accordance with IMO Resolution A.1047(27) (IMO 2011), as amended, and to the satisfaction of the administration. In this respect, the MSMD for the MASS may show a total manning number of zero linked to specific MASS and reference personnel training and certification requirements as specified in the Code (IMO 2024h, annex 1, 19–22).

It is noteworthy that several IMO member States (Belgium, Liberia, and the Republic of Korea) recently proposed that the MSC consider the following principles for the drafting of the MASS Code: the flag State of the MASS should determine and be responsible for the verification, survey, and certification of the MASS and its ROC; an oversight system, similar to the ISM Code, should be applied to the management certification of ROCs and MASS; the responsible ISM company for the MASS should retain its responsibilities and be certified in accordance with the ISM Code; and the management of remote operations should align with the duties and responsibilities of ISM companies. Cosponsors also proposed a system called “Remote Operations Management” (ROM), with ROM being the management structure for ROCs established by the MASS Code. In this regard, it is proposed that a ROC should be operated by a ROM company holding a ROM DoC. Moreover, MASS should be operated by a ROC holding a ROC Management Certificate. One ROM company could operate one or more ROCs under one ROM DoC, which should be issued by the administration, by an RO, or at the request of the administration by another contracting government in line with the principles of the ISM Code (IMO 2024a).

Furthermore, Belgium and the Republic of Korea, in their joint document submitted to the LEG, endorsed the previous proposal by noting that the ROM system aims to ensure the completion of tasks and responsibilities specific to ROCs. Within this framework, the flag State would verify that a ROM company complies with its safety and security regulations. Like the ISM model, a ROM company could be granted a DoC, and a ROC could be awarded a ROC Management Certificate. The system is flexible enough to allow ISM companies to operate their own ROCs, thereby functioning as ROM companies. Although not directly tackling jurisdictional and ensuing compliance challenges, the ROM concept appears to provide a practical path forward for mitigating FSJ issues (IMO 2024c).

Remarkably, the current version of the MASS Code, which is drafted by the MSC, appears to presume that the duties of flag States would be applicable to MASS. The initial version of the MASS Code draws upon the framework established in SOLAS and the ISM Code for the survey and certification of ROCs. In this regard, it specifically mandates that flag States carry out the survey of ROCs. When a MASS is remotely controlled from an onshore ROC, given that remote operators will replace the traditional master or crew on board, the flag State must oversee these ROCs to ensure proper performance, particularly if they are within the flag State’s territory. For instance, pursuant to the ISM Code, to ensure an international standard for the safe management and operation of ships and for pollution prevention, flag States must conduct surveys and verify companies irrespective of their location. According to paragraph 13 of the ISM Code, vessels should be operated by a company that has been issued with a DoC as evidence that the company is capable of complying with the requirements of the ISM Code (paras. 13, 14). That DoC is issued either by the administration or by an RO, or, at the request of the administration, by another contracting government to the Convention to any company complying with the requirements of the Code. However, the flag State may certainly encounter challenges in overseeing ROCs located in other countries (IMO 2024d).

Japan submitted a paper to the MASS JWG with a view to stimulating further discussion on the scenario where a flag State conducts an inspection to certify and verify a ROC located in other jurisdictions. Such an action, if it is conducted with the consent of the State where the ROC is located and adheres to the provisions outlined in the new MASS Code concerning ROCs, is posited not to encroach upon the sovereignty of the State. Indeed, according to SOLAS, it is broadly recognized that a flag State’s inspection to certify and verify a ship management company under the ISM Code and SOLAS does not violate the sovereignty of the State that hosts the ship management company as a SOLAS State party. In light of the above, Japan observed that a flag State’s certification and verification of a ROC under the MASS Code would not infringe upon the sovereignty of the State where the ROC is operating (IMO 2024d).

During the previous LEG meeting, IMO member States engaged in an extensive discussion on whether the potential arrangements for ROCs, especially those located in a territory different from the flag State of the MASS, fulfill the obligation laid down in Article 94 of UNCLOS. There have also been diverging positions among the IMO delegates during the discussions. For instance, the Argentinian delegation, which seems to have had a more cautious approach to MASS, expressed significant concerns regarding whether the freedom of navigation under the law of the sea regime extends to vessels with higher levels of autonomy. Remarkably, Argentina emphasized its right to regulate the entry of MASS into its jurisdictional waters. In this context, notably, Argentina also referred to Article 25 of UNCLOS, which grants the authority to States to impose restrictions on the entry of foreign ships into their ports or territorial sea (IMO 2024f).

During the subsequent discussion, several member States expressed their concerns about the ability to meet the standards for the effective exercise of FSJ when MASS are controlled by ROCs situated in countries other than the flag State. Delegates raised several notable points: UNCLOS does not allow the transfer of flag State responsibility to ROCs located in other countries; if the ROC operating a MASS is situated outside of its flag State, significant questions arise regarding the flag State’s capacity to maintain effective control over the ROC; the host State, which may have territorial jurisdiction over the ROC but no related obligations under UNCLOS, might not have a clear role; these jurisdictional uncertainties create ambiguity for flag, port, and coastal States about which country exercises jurisdiction over a MASS; this could dilute the flag State’s responsibilities to a more symbolic level, inconsistent with UNCLOS; ROCs located outside the flag State would not fall under the flag State’s effective jurisdiction; flag States might not have adequate access to ROCs situated in other countries; and applying the ISM Code model may not be sufficient to ensure effective access and oversight, thus necessitating bilateral or multilateral agreements.

Conversely, several States argued that locating a ROC abroad does not inherently weaken the jurisdictional connection. They claimed that such an arrangement is already grounded in existing maritime practices and legal frameworks. They supported the application of the ISM Code model to MASS operations through ROCs by noting that existing IMO instrumentsFootnote ¹⁵ already provide the framework for flag State oversight. Moreover, those States further expressed that currently international shipping operates efficiently with minimal physical ties to a flag State’s territory; flag States frequently oversee the operation of their ships by establishing offices in different parts of the world; and, as international law does not require the physical presence of a vessel or its associated entities within a flag State’s territory, it would be unusual to claim that ROCs must be located solely within the territory of the flag State (IMO 2024f).

Notwithstanding the positive approach of some member States that are also expected to be the leading MASS technology providers, uninterrupted shipping requires a broader consensus, including port States.

1.5.1 International Trade Law on Port States and MASS

As discussed earlier, port States can impose stricter standards than IMO norms as conditions for foreign ships to enter their ports. These high standards can regulate the behavior of foreign ships within the port area and may naturally extend to their actions outside the port before entering. Thus, through domestic laws, port States can indirectly establish extraterritorial jurisdiction over foreign ships, which is critical in the context of MASS. This can hinder MASS operations and may eventually lead to hidden trade barriers and discriminatory practices (Chen Reference Chen2023).

Even though port States usually have broad discretion under IMO and International Labour Organization instruments, this discretion can be considerably limited by bilateral or multilateral trade law treaties to which a particular port State might be a party. The most significant limitations to PSJ may originate from international trade law rather than UNCLOS. International trade treaties under the World Trade Organization (WTO) can impose restrictions on PSJ. Since PSJ can restrict international trade, particularly in goods, it could potentially conflict with WTO law – specifically the General Agreement on Tariffs and Trade,Footnote ¹⁷ which includes the principles of freedom of transit (Molenaar Reference Molenaar, Freestone, Barnes and Ong2006, 202; Ringbom Reference Ringbom2011, 632–637; Ryngaert and Ringbom Reference Ryngaert and Ringbom2016, 386–388).

1.5.2 Facilitation Committee

For the operation of RCS, technology is expected to be increasingly responsible for information sharing with the flag, coastal, or port State authorities. Indeed, remote operation requires accurate, up-to-date data and reliable communication systems. The IMO’s Facilitation Committee (FAL), which is tasked with addressing the facilitation of international shipping, concluded its RSE at the Facilitation Convention (FAL 46) in 2022 (IMO n.d.-a).

The outcome of the FAL’s RSE noted that a new type of certification and identification for MASS operations would be required for the new duties. In this respect, it is indeed important to take the procedures for declarations made on arrival and departure into account. FAL also identified certificates and other documents and the sharing of information as high-priority cross-cutting issues. Regarding the requirements for the arrival, stay, and departure of ships to and from ports, shipowners must present their certificates and other documents related to registration, measurement, safety, manning, and similar matters to public authorities. Hence, the relevant certificates, documents, and data may need to be amended if new certification requirements for RCS are developed (IMO 2022, 2024d). The future work of FAL can be instrumental in mitigating the concerns of port States, as well as facilitating the operation of RCS.

1.6.1 Definition

The conditions that ships encounter in the high seas naturally differ significantly from those in port areas. In ports, there is usually high traffic density. Additionally, tides, shallow waters, and other unique port characteristics can present higher navigational hazards than in open seas. Therefore, pilotage is indeed necessary, as it offers local knowledge. Essentially, a pilot possesses specialized knowledge of local conditions and navigational hazards and is typically brought aboard a vessel at a specific location to navigate or guide the ship through a particular channel or river, or enclosed waters, to or from a port. A “pilot” is defined as an individual who possesses specialized knowledge of local navigation conditions and potential hazards (Agripino de Castro Reference Agripino de Castro, Pasold, Attard, Fitzmaurice, Martinez, Arroyo and Belja2016, 423; Aucoin Reference Aucoin2024, 22–23).

1.6.2 Interplay between Pilotage and MASS

Pilotage services, while often seen as specialized services for shipping, also function as public services due to the significant potential risk of accidents and groundings. The success of pilotage service rests on effective communication and information exchange among the pilot and the master. At times, pilots already provide guidance remotely from shore via radio communications as well. Regardless of the method, MASS integration is likely to significantly transform the nature of pilotage operations. But, in any event, it is clear that an RCS would greatly benefit from a pilot’s insights; moreover, pilotage can serve as a reassurance for port States. The extent and direction of these changes will largely depend on technological advancements in this field. Regardless of these developments, the value of a local guide remains clear; a remote master will undoubtedly benefit from the expertise of a pilot familiar with the local maritime environment (Aro and Heiskari Reference Aro and Heiskari2018, 28–29; Uğurlu et al. Reference Uğurlu, Kaptan, Kum and Yildiz2017; Van Hooydonk Reference Van Hooydonk2014, 416).

Notably, the pilotage service is not exclusively governed by an international instrument, making the legal landscape complex. The legal status of pilots and the performance of pilotage services are regulated by domestic laws. Therefore, guidance should be sought from domestic laws until the situation changes. Typically, such laws grant local ports the authority to regulate and establish pilotage requirements at a local level. Consequently, even in a single country, different ports may have distinct pilotage requirements. Such local regulations often vary and may not be consistent even at the national level, let alone regionally or internationally. Ehlers notes that these services are thus far typically provided within national waters, especially in internal waters. Hence, the international law of the sea has only occasionally influenced pilotage in specific cases (Black Reference Black2020, 12–13; Ehlers Reference Ehlers2024).

According to the UK Pilotage Act 1987, pilot means any person not belonging to a ship who has control of the ship. Under the Maltese Maritime Pilotage Regulations, “pilotage” means the act performed by a licensed pilot to assist the master during navigation and maneuvering when entering, departing, or shifting in port areas (Article 3). The Danish Pilotage Act allows shore-based pilotage. It defines “pilotage” as navigational advice regardless of whether the advice is provided to the master on board the vessel or by means of communication from a distant location (Davies Reference Davies, Ringbom, Røsæg and Solvang2020, 281–282).

Remote pilotage is applicable to any ship but is particularly pertinent to MASS. These vessels are likely unable to utilize traditional pilotage services – where a pilot physically boards the ship to provide navigational advice – due to physical and technical constraints. For degree two ships, which have onboard crews, complying with local pilotage requirements will be a straightforward task due to the presence of crew. Degrees three and four ships, which operate without any onboard crew, present unique challenges for pilotage. For these vessels, pilotage options may need to include shore-based pilotage, where a pilot remotely guides the ship from land (Danish Maritime Authority 2017, 21; Davies Reference Davies, Ringbom, Røsæg and Solvang2020, 284–286). Indeed, there is no legal requirement for the pilot to be physically on board the vessel to which they are rendering their services. Besides, it would be impractical for a pilot to board an RCS unless necessitated by urgent circumstances or domestic regulations. For these types of vessels, pilotage services are likely to be provided remotely. For instance, Finland has recently enacted legislation that permits pilotage to be conducted remotely (Soyer et al. Reference Soyer, Tettenborn and Leloudas2022, 12–13).

The IMO Assembly, in 2003, adopted a resolution on “Recommendations on Training and Certification and on Operational Procedures for Maritime Pilots Other Than Deep-Sea Pilots.” This nonbinding resolution acknowledges the crucial role of pilots in enhancing maritime safety and protecting the marine environment. In particular, the IMO underscores that pilotage areas require highly specialized local knowledge and experience of various specific port areas and waterways. The IMO had earlier highlighted that it does not intend to be involved with the member States’ pilotage systems (IMO 2003). As early as 1968, it recommended that States organize pilotage services in areas where they enhance navigational safety more effectively than other measures. Chapter V of SOLAS (see Regulation 23) notes that vessels engaged on voyages during which pilots may be employed are required to have pilot transfer arrangements to ensure the safety of pilots. In line with SOLAS, there is an obligation for State parties to establish various maritime safety services, including aids to navigation, hydrographic, meteorological, search and rescue, and vessel traffic services. However, pilotage services are not specifically mentioned among such mandatory services. Ehlers opines that this likely stems from the absence of a perceived need for international regulation of pilotage services to date (Ehlers Reference Ehlers2024, 4). Although the IMO, thus far rightly, avoided regulating pilotage issues comprehensively because of strong reference to varying local conditions, this may need to change, in part, in the era of MASS.

1.6.3 Compulsory Pilotage

A “compulsory” pilot is one required by national laws. Conversely, a “voluntary” pilot is one whom a ship owner chooses to employ without any legal obligation (Force Reference Force2004, 149). Pursuant to the Convention and Statute on the International Régime of Maritime Ports (see Article 11), State parties have the authority to administer pilotage, including the establishment of compulsory pilotage. Given the sovereignty exercised by coastal States over their internal waters and ports, there are generally no limitations under international law on the imposition of compulsory pilotage in these areas (Ehlers Reference Ehlers2024, 9–10).

Yet, unlike the authority to designate sea lanes or traffic separation schemes, UNCLOS does not expressly specify the procedures to establish compulsory pilotage in coastal waters. Thus, the rules of the reference system also do not point out to the IMO. Moreover, State practice is also not clear in this area. Nevertheless, a few examples show the possible competence of coastal States to implement quasi-compulsory pilotage within their territorial seas, as seen, for example, in the Strait of Messina, the Great Barrier Reef, and around Svalbard Island. The adoption of such pilotage systems depends on the unique characteristics of each area, including the reliability of the system, the availability of qualified pilots, and the cost of services, and, more importantly, the nonhampering of the innocent passage (Solski Reference Solski2021, 411–414).

For pilotage services offered within internal waters, including port areas, there is generally no issue, as the coastal State exercises unrestricted sovereignty therein. Nevertheless, beyond internal waters, the legality of establishing pilotage services depends on whether such services impair the existing rights of navigation in the respective maritime zones. This consideration is crucial in maintaining the balance between enhancing safety through pilotage and upholding the principle of freedom of navigation as prescribed by international law (Ehlers Reference Ehlers2024, 5–6). Notably, one should be cautious considering that Australian efforts to impose compulsory pilotage as a protective measure in the Particularly Sensitive Sea Area of the Torres Strait have faced strong opposition from flag States underscoring their transit passage rights under international law. The eventual compromise involved enforcing compulsory pilotage in the Torres Strait exclusively for vessels entering Australian ports (Kopela Reference Kopela2016, 101–102).

However, despite the limitations, Article 21(1)(a) and (f) of UNCLOS allows coastal States to implement regulations aimed at enhancing maritime safety and environmental protection. This framework arguably enables coastal States to mandate pilotage in these waters as a measure to ensure the safety of navigation and safeguard the marine environment in relation to RCS operations while still respecting the principle of innocent passage. However, any national regulations related to pilotage must not only pursue safety and environmental protection but also adhere strictly to established international norms. In light of this, the compulsory pilotage for MASS arguably would not be seen as an interference with the navigational passage rights. Therefore, compulsory pilotage, when implemented to enhance navigational safety and environmental protection, does not contravene Articles 24(1) and 211(4) and can be regarded as necessary and proportionate. Moreover, the compulsory pilotage in port approach waters beyond internal waters can be justified, especially when ships are bound to enter internal waters or ports, as coastal States can set conditions for entry to their ports based on Article 25(2). Indeed, this provision allows the coastal State to enforce regulations such as compulsory pilotage to prevent breaches of entry conditions into its waters (Ehlers Reference Ehlers2024, 9–13).

Arguably, the coastal States seem to have the discretion to mandate compulsory pilotage for RCS as a condition for port entry. For instance, while pilotage through the Turkish Straits remains optional during peace times for merchant vessels under the 1936 Montreux Convention (Articles 2 and 4),Footnote ¹⁸ Türkiye can impose obligatory pilotage services in the straits if there is an imminent threat of war (Article 6). Significantly, this situation differs for ships that are calling at a Turkish port within the straits area, where compulsory pilotage can be established as a port entry requirement. Pilotage services for RCS to alleviate the concerns of port States, and even of coastal States, should be established and elucidated under the IMO’s MASS Code to enhance the safety of navigation and environmental protection. Concurrently, the conditions under which States can mandate compulsory pilotage for MASS beyond internal waters need to be clarified to ensure consistent application and understanding. This may be contingent upon the consent of IMO member States, like existing regulations for ship routing and ship reporting services (Ehlers Reference Ehlers2024, 18–24).

2.2.1 Definition of Autonomous Ships and Analysis of Levels of Automation in Ship Operation

The notion of autonomous vessels remains notably elusive, with no singular, universally recognized definition to command the field of discourse. However, the definition posited by the IMO is one of the most widely acknowledged and frequently cited. The IMO opts for the term “Maritime Autonomous Surface Ship” (MASS), meaning “a ship which, to a varying degree, can operate independently of human interaction” (IMO 2021, annex, 3, 2018a). The IMO further refines this definition by categorizing MASS into four distinct classes, gradated according to the extent to which automation permeates the operational functions of the vessel.Footnote ²⁰ In this categorization,Footnote ²¹ with ships in the first degree of autonomy, the crew is on board for the purpose of providing the ship’s direction and management. However, there is automation in some operations and the seafarer can intervene when necessary. A ship in this group is referred to as a “ship with automated process and decision support.” Ships with a second degree of autonomy can be controlled and operated remotely. However, the crew continues to be on board to make interventions when necessary. The ships that will bring about the most radical change in the maritime industry are those with the third and fourth degrees of autonomy, due to the absence of a crew on board the ship. In third-degree ships, the crew is not on board; it is accepted that the ship is operated and managed remotely by personnel in a center established on land or on shore. A ship in this category is a “remotely controlled ship without seafarers on board,” or a semi-autonomous ship. Finally, ships with a fourth degree of autonomy, or “fully autonomous ships,” have no crew on board and no active control by personnel from the remote operation center. Through AI systems integrated into the system, the ship determines its movement by evaluating the current situation and conditions and making the necessary decisions regarding the operation of the ship without the need for human support. In spite of the self-operation feature of this group of ships, remote operation centers still exist,Footnote ²² but the role of center personnel is limited to monitoring the actions of the system and decision-making process in case of system failure (IMO 2017a, 6). Whatever the method of operation and the level of autonomy, there should be a person in charge of the autonomous ship, either on board or in a remote operation center, who has the authority to intervene, performing the duties of the master (IMO 2023e, 42, 2023b, 4). Regarding the relationship between these accepted degrees, the IMO suggests that the levels do not represent a hierarchical order (IMO 2018b, annex 1, 1, 2021, annex, 4).

Based on these autonomy levels, theoretically, in a particular case, a ship may operate at just one level. There may be no expectation that the ship’s autonomy level will change; the ship is assumed to operate at a fixed autonomy level throughout the voyage, or to maintain a “static autonomy level” (Barber et al. Reference Barber, Goel and Martin2000, 145). However, it is also possible to design systems where the autonomy level changes during the voyage, based on different conditions or operations. For example, a ship may be designed to operate autonomously while sailing on the high seas, but the design might also enable control to transfer to the operator or crew during specific phases of the voyage, such as passing through a busy strait, entering a port, or performing docking or loading operations (AAWA 2016, 30; Ringbom and Collin Reference Ringbom, Collin, Ringbom, Røsæg and Solvang2021, 14–15). A ship’s autonomy level may change multiple times during the voyage (Barber et al. Reference Barber, Goel and Martin2000, 130; Sözer Reference Sözer2024, 45). This is referred to as a “dynamic autonomy level” in ship operation. Autonomous ships will transition freely between different levels of autonomy during a particular voyage (AAWA 2016, 6–7; Fukuto Reference Fukuto2021, 47; Maritime UK 2022, 20–21; Ringbom and Collin Reference Ringbom, Collin, Ringbom, Røsæg and Solvang2021, 14–15; Yang et al. Reference Yang, Utne, Sandøy, Ramos and Rokseth2020). The operation and design of autonomous ships currently in service, such as the Yara BirkelandFootnote ²³ and the Prism Courage,Footnote ²⁴ support this submission.Footnote ²⁵ The analysis in this chapter is approached through the prism of “dynamic autonomy.” The term “autonomous ship” is used to refer to a ship operated without any crew on board.

2.2.2 Remote Operation Center

Unlike conventional ships, autonomous ships consist of two separate parts, the first of which has a classical appearance at sea. Because the crew is completely separated from the ship, its operation and monitoring involve a remote operation center.Footnote ²⁶ That center is defined as “a location remote from the MASS that can operate some or all aspects of the functions of the MASS” (IMO 2023b, 6).Footnote ²⁷ The center is also defined as a structure consisting of computer hardware, telecommunications equipment, and various high-tech tools arranged to perform a specific function, managed and operated by the relevant personnel (Sözer Reference Sözer2024, 84).Footnote ²⁸ It is possible to list the functions of the center as monitoring the ship, ensuring the ship’s direction and management, collecting data, and fulfilling certain legal obligations (Sözer Reference Sözer2024, 89–92). However, depending on the fact of each case, its main function may change during a particular voyage. Following the dynamic autonomy submission, for example, if the ship proceeds on the high seas, the main function of the center might be to monitor the ship. But, if the ship is sailing through a busy strait, the main function of the center might be to control the ship. Physical conditions and technical conditions may require such an active role change by the center during the voyage. It may not be technically possible to sail the ship remotely throughout the voyage – for example, where continuous data exchange and communication between the ship and the operation center, located either on land or aboard another vessel,Footnote ²⁹ is not provided (AAWA 2016, 4). This communication would depend on the transmission of high-resolution and large-scale data collected by various sensors, cameras, radar, infrared technology, and the Automatic Identification System (AIS), ensuring that the operation center can maintain uninterrupted access to the ship’s systems (Ciğer Reference Ciğer2024, 1145).Footnote ³⁰ The reliability of current technologies to facilitate such data transfer is debatable, particularly concerning potential risks arising from connection delays, as well as adverse factors such as weather and distance (1145).Footnote ³¹ Solutions may involve utilizing both technologies (remote operation and autonomous operation) in tandem (1146)Footnote ³² and active role changes at the remote operation center. The ship will be controlled through an interface in which the bridge is simulated in the center, which replicates camera and sensor systems on the ship, plus controls such as steering gear and joysticks for the remote operator.Footnote ³³

There are three main issues around the concept of the remote operation center. The first relates to the status of the remote operator.Footnote ³⁴ The remote operator is responsible for monitoring the ship’s condition, course, speed, and environmental factors during navigation in light of the information sent from the ship; supervising the decision held by the system; and, when necessary, taking direct operation and management of the ship (Ciğer Reference Ciğer2024, 1149; Sözer Reference Sözer2024, 88–93). The Joint Working Group (JWG) has yet to explain fully the role of the remote operator, though it has provisionally affirmed that, irrespective of the level of autonomy, a human captain must preside over each autonomous ship (IMO 2023b, 4). In the report submitted by the International Federation of Shipmaster’s Associations on the roles and responsibilities of the master, it is also emphasized that autonomous ships are ships by nature and that they need a master. Autonomous ships, like all ships, should be under the command and control of a master who has both situational awareness and sufficient maritime knowledge (IMO 2023a, 4). The role of the ship master will not disappear, but the execution of the role may be filled by a person on land who has the necessary qualifications and can exercise discretionary authority when necessary (4). A MASS ship master may be preferred over traditional manning (IMO 2023a, annex, 1). At this point, it should be mentioned that the UK was among the first countries to issue regulations on personnel working in remote operation centers. The Maritime and Coastguard Agency adopted the Workboat Code Edition 3 in December 2023. The technical requirements for the operation of ships remotely controlled are regulated within Annex 2. The Code is also important in terms of the definition of the remote operator. In Annex 2, the remote operator is defined as “any person, including the Master, with recognised or certifiable experience who is engaged in the remote operation of a [Remotely Operated Unmanned Vessel]” (MCA 2023, 27). The existence of a master in the remote operation center is also accepted by the JWG, which notes that the human master should have the means to intervene in ship operations when necessary, regardless of the mode of operation and the autonomy level (IMO 2023b, 4). Analysis held in the literature also demonstrates that the general trend is to treat the remote operator of the ship as a master while the application of master-related terms is evaluated. For example, the authors who analyze the application of Article 4(2)(a) of the Hague-Visby RulesFootnote ³⁵ to autonomous ships submitted that a remote operator can be treated as the functional equivalent of a master in the context of the relevant article, so that the carrier can escape from liability for loss and damage arising due to the fault of the remote operator in the navigation or management of the autonomous ship (Baughen Reference Baughen, Soyer and Tettenborn2021, 87–88; Stevens Reference Stevens, Soyer and Tettenborn2020, 159, 161). The prevailing view, in essence, is to regard those entrusted with the control and operation of the ship – despite their absence from the ship’s physical presence – as holding positions akin to master and crew.Footnote ³⁶ It follows that personnel tasked with the governance of autonomous ships should be recognized in a capacity resembling that of the ship’s master, bearing responsibilities comparable to those traditionally assigned to the master. This rationale, therefore, warrants the assertion that the relationship between the shore-based operational center staff and their autonomous vessels mirrors, in substance, the long-established association between the master and the time charterer.

The second issue regarding the remote operation center is whether each center and remote operator will be responsible for the operation of only one ship or more than one. The MUNIN project plans for up to ninety ships controlled from a remote center (Porathe et al. Reference Porathe, Costa and Tjora2014, 2). The project also suggests that one operator may be responsible for monitoring and controlling up to six ships (Man et al. Reference Man, Lundh and Porathe2015, 2676). The possibility of a master being in charge of more than one ship was supported by the JWG (IMO 2023b, 5). It can be inferred from this approach that the general view of the JWG is that more than one ship can be controlled from one center. One of the currently active remote operation centers, Massterly in Horten, Norway, provides management and operation services for the Yara Birkeland and ASKO’s electric barges MS Marit and MS Therese. This example also demonstrates the practical application of a single center controlling multiple ships (Massterly 2024; Wilhelmsen 2024). In fact, if it is accepted that each vessel will be controlled from a separate center, this will require a huge number of centers to be set up and staffed. From an economic perspective, this proposition appears to lack rationality, so probably the most effective approach would be to operate as many ships as possible from a single center.Footnote ³⁷

The final issue is who will provide the remote operation service. It can be argued that the owner of an autonomous ship can construct its own center and staff it with personnel to monitor and operate the ship. However, these centers consist of computer hardware, telecommunications equipment, and various high-tech tools. The cost of establishing a remote operation center varies based on factors such as facility size, technology integration, and operational requirements. For example, while the cost of equipping and maintaining an autonomous bulker, inclusive of annual operational expenses and rental commitments, remains a matter of rough estimation, it is acknowledged that the investment for the development of the remote operation center lies between US$1 million and US$2.1 million, with annual operational outlay approximating US$0.87 million. The establishment of such a center entails a recurring cost of US$33,000 per vessel annually (Ziajka-Poznańska and Montewka Reference Ziajka-Poznańska and Montewka2021, 6–8), alongside the considerable infrastructure expenses, as exemplified by the KRISO research center’s construction cost of 22.1 billion Korean won (approximately US$16 million) (KRISO n.d.). Following these values, the construction of an individual center by each owner may not be considered economically viable, especially if the shipowner operates a single ship. Since, as noted above, operating more than one ship from the center is a sensible choice, it could be argued that where the shipowner operates larger fleets, it could set up its own remote operation center and all its ships could be operated from the same center. Considering the fact that shipping companies even arrange special ports for their fleet,Footnote ³⁸ this could also be done with respect to the operation center and it could be cost-effective. However, depending on the area it is traveling through, as the ship moves from one port to another it may be necessary for it to change the operation center (Sözer Reference Sözer2024, 85; see also Baughen Reference Baughen, Soyer and Tettenborn2021, 84),Footnote ³⁹ such as the air traffic control area and the vessel traffic services system.Footnote ⁴⁰ This may be due to the difficulty of transmitting information when the ship is at a great distance from the center (Sözer Reference Sözer2024, 85; see also Carey Reference Carey2019, 7).Footnote ⁴¹ When the ship goes outside the control area of the remote operation center, the owner of the ship might be required to connect with another center. Rather than the service of remote operation being provided by the shipowner and associated maritime centers throughout the entire voyage, third-party shipping management companies will usually be involved in the operation process. It is not uncommon for shipowners that do not have shipping knowledge and experience to contract with a company to provide technical, crew, and commercial management and ancillary services (Plomaritou and Papadopoulos Reference Plomaritou and Papadopoulos2017, 115). The company can provide a remote operations center and personnel to operate the ship, either onshore or on board, as well as serve as the technical managers of the ship (Hunter Reference Hunter2020).Footnote ⁴² Steps taken by the Baltic and International Maritime Council (BIMCO) actually reflect this view. The AUTOSHIPMAN agreement was recently adopted by BIMCO in view of the increasing number of remotely operated ships, with the aim of providing a contractual framework for third-party ship managers that deliver operational services for these ships. It contains terms regarding the obligations, responsibilities, and liabilities of the parties (BIMCO 2024b). The form is drafted considering the SHIPMAN 2024 agreement (BIMCO 2024a). In addition, the number of companies offering management and operation services for remotely operated and autonomous vessels is growing by the day (Massterly n.d.; Ocean Infinity 2022). The specialized nature of the capabilities and technology featured in these remote operation centers means that it is prudent to delegate ship responsibilities to specialized entities.

2.4.1. The Shipowner’s Obligation to Provide a Ship That Complies with the Charter Description at the Time of Delivery

It is common to see a clause in time charters that describes features of the ship such as class, cargo capacity, nationality, speed, and bunker consumption. From the charterer’s point of view, this clause is probably one of the most important parts of the time charter, as the charterer agrees to pay a fixed rent for an unknown vessel for the entire period of the charter, based solely on the contractual description of the vessel. The shipowner’s obligation under the description clause is to provide a ship that conforms to the contractual description (Coghlin et al. Reference Coghlin, Baker, Kenny, Kimball and Belknap2014, para. I.33). Providing a ship that does not comply with the charter description is a breach of the charter, and the charterer is entitled to damages for the loss suffered, unless the charterparty contains a provision that excludes the shipowner’s liability for its failure (para. 3.18). If the description in the charter indicates condition status,Footnote ⁵⁴ such as the ship’s class,Footnote ⁵⁵ or an intermediate term status, such as the ship’s speed and bunker consumption (Coghlin et al. Reference Coghlin, Baker, Kenny, Kimball and Belknap2014, para. 3.77),Footnote ⁵⁶ the shipowner’s failure to provide a ship that complies with the description can be considered a repudiatory breach, and the charterer has a right to terminate the charter. Under NYPE 2015, descriptions as to the ship are given in the preamble. In addition, the form contains Annex A (“Vessel Description”) – a detailed vessel questionnaire that forms part of the charterparty. There is also Clause 12, under which speed and bunker consumption are stipulated.Footnote ⁵⁷ When time charters are made for autonomous ships, the descriptive information given about the ship in the form needs to be extended.

Autonomous shipping possesses distinctive features that will facilitate functions such as mooring, berthing, and cargo handling without the need for human assistance. The Yara Birkeland, a ship that is currently expected to perform these operations, serves as a tangible example of this emerging technological development.Footnote ⁵⁸ From the charterer’s perspective, capabilities of the ship to perform these operations, especially cargo handling, might be important. Under Clause 8 of NYPE 2015, “charterers shall perform all cargo handling, including but not limited to loading, stowing, trimming, lashing, securing, dunnaging, unlashing, discharging, and tallying, at their risk and expense, under the supervision of the Master.” If the ship is capable of performing cargo-handling autonomously, this provision will be inapplicable. Since the charterer is not the one who has the right of ownership or possession of the chartered ship, it would not be reasonable to hold it liable for cargo-handling, which is performed by the ship under remote or autonomous operation without involvement of the charterer. In such a case, it will be more proper to impose this obligation on the shoulders of the shipowner. Thus, an autonomous ship’s cargo-handling capability requires a profound shift in terms of the liability. Therefore, if the autonomous ship has such a capability, the charterer will want to be aware of this information, so the description clause should be extended by making this information a part of the ship’s description.

It might also be important for the charterer to know the location of the remote operation center. Although the remote operation center and the ship are separate elements, without the center the ship will not have any meaning for the charterer. Therefore, the time charter is now a contract for the use of the ship with an associated remote operation center and personnel. This author suggests that information related to the capacity of potential remote operation centers arranged for the ship can be made a part of the ship’s description. For example, if the shipowner prefers an operation center that has limited capacity and only allows the ship to be used within the geographical limit of a particular region due to data transmission difficulties and if the shipowner does not have any intention to arrange another center that extends the employment area of the ship outside of the specified region, this information should be given as part of a description clause and/or under Clause 1(b) as part of the trading limits.Footnote ⁵⁹ It is important that the charterer knows this beforehand, because the information is relevant to plan future employment. If its intention is to use the ship outside of the designated area, it might not enter into the charter agreement for that ship. There might also be some cases in which the shipowner changes the remote operation center during the period of charter. The reason behind this may be due to problems the shipowner encounters with the remote operation center or its closure. The shipowner should be careful about such a change. One of the implied obligations imposed on the shipowner under the time charter is that the shipowner will not, at any stage of the charter, make any alterations to the ship that may (or potentially will) affect the services to be provided.Footnote ⁶⁰ Following this, if the remote operation center is changed during the charter period, the shipowner must arrange a center that has at least the same capabilities as the previous one. If we consider this in terms of the geographical area in which the operation center can provide the service, the center that limits the charterer’s area of operation compared to the previous center should not be chosen by the shipowner. Otherwise, this will be a breach of the shipowner’s implied obligation, and the charterer is entitled to damages. If it is proved that this alteration goes to the root of the contract, the charterer may also be entitled to terminate the charter.Footnote ⁶¹ Some information as to personnel in the remote operation center can also be important for the charterer to evaluate the seaworthiness of the autonomous ship. However, this information is more accurately considered under the clause dealing with the seaworthiness of the ship rather than under the description clause.

Under NYPE 2015, some changes might also be needed related to the description given to warranties for speed and bunker consumption (performance). These warranties are usually subject to weather conditions.Footnote ⁶² This means that the shipowner warrants that the ship will be able to achieve the described speed and bunker consumption only if good weather conditions exist. Good weather is commonly defined in time charters referring to the BeaufortFootnote ⁶³ and Douglas scales.Footnote ⁶⁴ For example, Clause 12(a) of NYPE 2015 refers to both scales to describe good weather as “wind up to and including Force four (4) as per the Beaufort Scale and sea state up to and including Sea State three (3) as per the Douglas Sea Scale.”Footnote ⁶⁵ In a particular case where the time charterer asserts that the ship underperformed during the voyage, the burden of proof rests on the charterer. In order to clear this hurdle, the charterer needs to show that, although good weather conditions existed, the ship underperformed. To prove this, the chartering party normally relies on a report of the ship’s performance prepared by a weather routing company (WRC). Clause 12(b) of NYPE 2015, which states that “the Charterers shall have the option of using their preferred weather routing service,” provides an option to the charterer. It is made clear later, in Clause 12(d) of NYPE 2015, that the charterer can rely on this report to support its claim for underperformance. On the other hand, the ship’s logbook prepared by the master is preferred by the shipowner as a main source of evidence to rebut the chartering party’s underperformance claims in a particular case.Footnote ⁶⁶ Since they are prepared by different parties, there are often inconsistencies between weather and sea conditions recorded in a WRC report and the ship’s logbook. Generally, the records maintained by the master in a logbook are given greater credence than those recorded in a WRC report. This perspective appears to be logical, given the master’s status as a trained weather observer recognized by the World Meteorological Organization. The master’s presence on board the vessel during the entire charter period, observing weather and sea conditions firsthand, further substantiates the credibility of these records (Harris Reference Harris2014, 4). This conventional view also supports the ship’s logbook by pointing out that the WRC report is prepared by using satellite imagery, which is just a snapshot of weather and sea conditions, and so that may not capture the local impact of weather and sea conditions, such as currents, on the ship’s performance (4). Furthermore, data for the preparation of the report is collected only once or twice a day (Alexander Reference Alexander2013). Where autonomous ships are used, the traditional view will lose its dominance because information in a ship’s logbook entriesFootnote ⁶⁷ on the effect of sea and weather conditions on the ship’s performance will no longer be recorded by the master who is on board the ship but by a person in the remote operation center, or perhaps by AI using shipboard sensors. When autonomous ships are operated under time charter, there will be no difference between the ship’s remote operation center logbookFootnote ⁶⁸ and the WRC report in terms of the way data is collected. Both will be done remotely, but the first will be more reliable as it will be collected by an advanced system of autonomous ships and during the actual voyage. There may even be no need for the charterer’s WRC arrangement. Autonomous ships will reduce the charterer’s main concern that the master may exaggerate the sea and wind conditions and make inaccurate logbook entries to the shipowner’s advantage. Even if the records are kept by personnel working at the center arranged by the shipowner, and there may be some contractual relationship between them and the shipowner or between them and a third-party manager arranged by the shipowner, the center personnel or its AI systems will make entries in the ship’s logbook based on data collected continuously from the ship. Therefore, even if the charterer has concerns about the records, it can easily request that their accuracy be validated by the shipboard sensors.

Following these explanations, it can be said that the description as to the capability of the autonomous ship to record the sea and weather conditions might also be made a part of the ship’s description under NYPE 2015, so that the charterer might not need to worry about the records and the WRC arrangement indicated under Clause 12(d). Further consideration might also be needed as to Clause 12(e) of NYPE 2015. The clause indicates that where the ship fails to perform as agreed in the charter, the parties may refer the dispute to “an independent expert or alternative weather service by mutual agreement.” These experts resolve disputes over underperformance claims arising from a discrepancy between the parties’ evidence. This clause might be changed for autonomous ships, to state that data collected through the ships will prevail.

2.4.2 The Shipowner’s Obligation to Provide a Seaworthy Ship

Under time charters, for the delivery of the ship to be valid and for the charter period to commence, it is important that the ship meets certain delivery requirements relating to delivery time, the place of delivery, and the condition of the ship, which are commonly set out in the charterparty. These requirements are deemed to be conditions precedent to delivery unless the terms of the contract provide otherwise. Therefore, if the ship does not comply with these requirements, the charterer may reject the ship (Coghlin et al. Reference Coghlin, Baker, Kenny, Kimball and Belknap2014, para. 8.3). In the context of the operation of autonomous ships, a consideration of the requirements stipulated in time charter forms indicates that those relating to the time and place of delivery may not require reevaluation. However, a more thorough analysis is necessary regarding the requirements concerning the ship’s condition.

Standard time charter forms contain terms that specify how the condition of the ship should be at the time of delivery.Footnote ⁶⁹ Most of the forms require the ship to be seaworthy at the time of delivery.Footnote ⁷⁰ The shipowner’s seaworthiness obligation under NYPE 2015 is defined in Clause 2(b):

Even if the charter does not refer to any express seaworthiness requirement in this regard, this is implied by law.Footnote ⁷¹ The classic test for seaworthiness at common law is expressed by Scrutton L.J. as follows:

If this question is answered in the affirmative in a particular case, then it can be said that the ship is unseaworthy. The concept of seaworthiness, in relation to traditional ships, enters the analysis mainly under three groups: (1) physical defects of the ship and inadequate and insufficient equipment; (2) inadequacy and insufficiency of the crew; and (3) inadequacy of documentation.Footnote ⁷³ The legal principles in this regard are well established, and a substantial body of literature has already been written on this topic (Coghlin et al. Reference Coghlin, Baker, Kenny, Kimball and Belknap2014, ch. 8; Girvin Reference Girvin2011, 383–399; Kassem Reference Kassem2006; Zhan and Zang Reference Zhan and Zhang2023). The shipowner’s obligation to provide a seaworthy ship will continue, but these three groups should be reinterpreted and subject to potential change for autonomous ships, considered below.Footnote ⁷⁴

2.4.3 The Shipowner’s and Master’s Obligation to Comply with the Charterer’s Orders

In the context of a time charter, the shipowner, in consideration of payment of hire, grants the charterer the right to exploit the ship’s earning capacityFootnote ⁸⁸ and undertakes to provide a specified charter service. Consequently, the time charterer is entitled to provide instructions to the master about how the vessel is used. Almost all time charter forms contain a provision commonly referred to as an employment clause, which delineates the scope of the charterer’s authority to issue directives to the master concerning the employment of the ship.Footnote ⁸⁹ For example, Clause 8(a) of NYPE 2015 provides: “The Master … (although appointed by the Owners) shall be under the orders and directions of the Charterers as regards employment and agency.” In the absence of an express stipulation in this regard, the obligation is implied because it is necessary to ensure that the contract efficiently works. It should be noted that the master is not obliged to comply with every single order given by the charterer. Under a time charter, the master is obliged to comply with the charterer’s instructions as to employment, but does not have such an obligation if the instructions affect the navigation or safety of the ship. This is a well-established principle of English jurisprudence.Footnote ⁹⁰ The distinctions between employment and navigation are articulated by Lord Hobhouse in The “Hill Harmony” case: “‘Employment’ embraces the economic aspect – the exploitation of the earning potential of the vessel. ‘Navigation’ embraces matters of seamanship” (at 159). Since the charterer’s order regarding the selection of the ports of loading and discharge and orders relating to loading, carriage, and delivery of the cargo embrace an economic aspect, in an ordinary case these must be regarded as lawful employment orders (unless they affect the navigation or safety of the ship, cargo, or crew). Therefore, the master has a duty to follow these orders. Orders that affect the navigation and safety of the ship are left outside the charterer’s right to use, as these are “matters falling within the specialized professional maritime expertise of the master” (at 152).

When this obligation of the master is considered in relation to an autonomous ship, the first question is who (in the absence of any master on board the ship) will be responsible for analyzing whether the order given by the charterer has the status of an employment order that the master is obliged to follow, or affects the navigation and safety of the ship, which the master may disregard. This function can be performed by remote operators.Footnote ⁹¹ It has also been suggested that the word “master” in the abovementioned employment clause of NYPE 2015 should be replaced by “the owners and/or the person or persons operating the vessel” (Baughen Reference Baughen, Soyer and Tettenborn2021, 95). Considering that an autonomous ship is operated under a dynamic level of autonomy,Footnote ⁹² such an approach seems sensible. In a particular case, even if the ship is operated fully autonomously during service at the time of charter, when the order is given by the charterer, the level of autonomy can be reduced to remote operation. The controller can evaluate orders given in terms of safety and navigation and then decide how to proceed. In other words, here the remote operator has started to act in the capacity of the master in assessing the orders,Footnote ⁹³ and the remote operator’s “professional maritime expertise” is brought into the assessment. In such a case, there might be no need for further analysis of this obligation, as the established rules relating to the master’s assessment of the employment orders may also apply to remote operators. For example, when the order is given, it is not expected that the master is obliged to comply with every order immediately. There may be some orders that require further consideration. In such cases, the master has the right to evaluate the order for a reasonable period of time.Footnote ⁹⁴ For an autonomous ship, such time is also provided to the remote operator. Similarly, in terms of a traditional ship, if compliance with the order in question does not fall within the scope of the charter, such as the charterer’s last voyage order, causing delay, the master has the right to refuse to comply with it and to ask the charterer for a new order.Footnote ⁹⁵ This can also be applied in a similar way to autonomous ships. In such cases, the remote operator can ask the charterer for a new order.

However, considering that the remote operator is expected to be responsible for the operation and monitoring of more than one ship, it might not be practical that the autonomy level during a particular voyage is reduced and then every single order of the charterer is evaluated by the remote operator. Therefore, it might be useful to leave some place for the independent decision-making ability of the ship under full autonomy. It will be evaluated below to what extent the autonomous ship may itself evaluate the charterer’s orders under three groups without human support.

The first group comprises employment orders, with which the master is under an obligation to comply. Unless it affects the safety and navigation of the ship, it is expected that the autonomous system also complies with these orders. It is unclear whether the system is capable of making such an assessment. At this point, it might be useful to mention how these systems are to be operated.

AI applications mimic human cognitive and decision-making processes, achieving navigation safety on par with, if not exceeding, vessels manned by humans. In doing so, human-induced risks may be eliminated altogether. AI systems do not merely execute preprogrammed instructions, although it is impossible to program a system to account for every potential problem and solution. Rather, these systems must be capable of adapting to dynamic conditions, much like the crew members they aim to replace, and be able to resolve unforeseen issues (Porathe et al. Reference Porathe, Home, Rødseth, Fjørtoft, Johnsen, Haugen, Barros, Gulijk, Kongsvik and Vinnem2018, 422). As such, it is highly probable that machine-learning methods will be predominantly employed in the management of these ships (Ringbom and Collin Reference Ringbom, Collin, Ringbom, Røsæg and Solvang2021, 10; Vartdal et al. Reference Vartdal, Skjong and St. Clair2018, 10). During machine-learning processes involving technology that enables computers to perform complex tasks by learning from examples, data, and experience (Royal Society 2017, 16), humans can play an active role, either by categorizing or labeling the data for the machine to analyze or, in a more limited capacity, by correcting the machine’s erroneous predictions or selections (Wright Reference Wright2020, 54–55).Footnote ⁹⁶

In some cases, the ship itself may be capable of evaluating the employment status of the charterer’s order. For example, if the charterer’s order is to depart from the port at a certain time, as that time approaches, the ship itself can evaluate the order in terms of safety, using data on weather and sea conditions collected by the ship’s sensors. The system can then determine the most appropriate response to these conditions. Similarly, when the charterer orders the ship to slow steam or to proceed with full speed, the ship can evaluate whether it is required to comply or whether the order should be refused for safety or navigational reasons in accordance with the algorithm, engine capacity of the ship, and charterparty performance warranties. Recall, however, that time charters, by their very nature, rely on continuous adaptability to accommodate instructions from the charterer, and each order introduces potential unanticipated occurrences. Therefore, if the order given is the one that the ship itself cannot evaluate and make a decision about within its algorithm, human support might be needed. In such a case, the autonomy level can be reduced swiftly to remote operation, and the remote operator’s approval, or final decision, can proceed based on the charterer’s orders.

The second group comprises the orders that the master has a right to refuse. These are the orders that fall outside the scope of the agreed charter. If the effect of the employment order given by the charterers is to require the master to do something outside that scope of the agreed charter, the order requires the shipowner to provide services that it has not agreed to provide at the beginning. The master has a right to refuse this order. When the vessel is operated fully autonomously, it may be possible for the ship to evaluate these orders, taking into account the geographical and time restrictions of the charterparty. When the order is given, the autonomous system of the ship without any human support can consider algorithms related to agreed limitations and then refuse to comply with the order on the ground that it is outside the scope of the agreed charter terms. For example, if the last voyage order exceeds the agreed charter period given by the charterer, the system can calculate the length of the proposed voyage and then refuse it. Similarly, if the order causes the ship to proceed to a port outside the agreed geographical limits, the system can refuse to comply with the order. The system can correctly analyze the situation and refuse these orders on the ground that they are outside the scope of the charter. The master has a right to refuse the second group of orders. However, the master may also prefer to comply with this group of orders even though they exceed the limits of the charter. If an autonomous ship makes a decision that the shipowner does not like, a remote operator could come into an active position to overrule it.

Lastly, the master is under an obligation to refuse the third group of orders. These are orders that cause illegal and fraudulent acts (Williams Reference Williams2013, 148).Footnote ⁹⁷ The common example relates to a bill of lading. For example, after the cargo has been loaded on board the ship, the charterer may ask the master to sign the date of the bill earlier than the actual date. Such an order is particularly likely to be given if the charterer has entered into a sales contract under which it, as the seller, is obliged to complete the loading of the cargo on the specified date. In order not to breach its obligation under the contract of sale, the terms insist that the master signs the bill of lading as an ante-date bill of lading. Similarly, the charterer may also order the master to sign the date of charter later than the actual date (that is, postdate the bill of lading). In some cases, the charterer might also order the master to record the goods as being in apparent good order and condition, although the goods are not in such a state.Footnote ⁹⁸ Since the purpose of such orders by the charterer is to defraud the consignee, the master is obliged to refuse them. The master is also under an obligation to refuse the charterer’s order to deliver the cargo to a person who does not have a right to receive it, unless there is an express term to the contrary in this regard.Footnote ⁹⁹

Following this information, the question is whether the autonomous system can evaluate this type of order. Even if the ship is eligible to perform loading and discharging operations autonomously, given that a paper bill of lading is still required, since there will be no crew on board the ship, the evaluation of these types of orders can only be possible if there is involvement of a shipowner’s land-based personnel. This is not something that can be done by the autonomous system or by the remote operator from another center. In terms of autonomous ship operations, if the electronic bill of lading is an issue, the author believes that land-based personnel support is still needed, but signing the bill of lading as ante or postdate can be prevented by the autonomous system.

Continuous reference to human oversight for routine operations would undermine the intended efficiency of autonomous systems. Even if the autonomous system has a role in the assessment of the charterer’s order, it cannot be fully delegated to technology. An autonomous ship should do what it can to the extent of its capabilities, but if it encounters unforeseen risks or conditions that fall outside the scope of its programming and machine-learning process, it becomes essential to rely on the approvals and decisions of remote operators as to the status of the charterer’s order. Following this, it is now clear that Clause 8(a), the employment clause, of NYPE 2015 should be redrafted and the obligation to comply with the charterer’s order should be imposed on “the owners and/or the person or persons operating the ship and/or the autonomous system itself.”

Where the time charterer’s orders have been assessed by the ship’s independent decision-making ability, in some cases legal issues may also arise as to the indemnity right of the shipowner. Indemnity is normally implied when the shipowner suffers loss or liability because of complying with the charterer’s orders, unless the shipowner has agreed in the charter to bear the loss, damage, or liability in question (Coghlin et al. Reference Coghlin, Baker, Kenny, Kimball and Belknap2014, para. 19.32), or unless the order in question is one that the master is under an obligation to refuse (para. 19.19). The principle of causation is integral to indemnity claims. For shipowners to recover under implied indemnities, there must be an unbroken chain of causation between the instructions of the charterers and the loss suffered.Footnote ¹⁰⁰ The advent of autonomous systems seems to challenge this direct causation paradigm. For example, if an autonomous ship grounds at an ostensibly safe port, as in The “Erechthion” case,Footnote ¹⁰¹ causation might not be straightforward. Was the grounding due to defective programming, erroneous input data, the inherent unsafety of the port, or the charterer’s order? The court’s finding in The “Erechthion” – that the grounding was proximately caused by compliance with charterers’ orders – could be difficult to transpose onto autonomous scenarios. Moreover, The “Island Archon”Footnote ¹⁰² demonstrates that liability flows from charterers’ orders when risks are not contractually assumed by the owners. It was held by the Court of Appeal that an indemnity was to be implied, since the risk of incurring liability for dubious cargo claims was one that, under the charter, the owners had not agreed to bear. An analogous argument could arise with autonomous ships where programming errors exacerbate port risks. The legal system must address whether such errors constitute an extension of the charterers’ orders or an independent navigation failure.

2.4.4 The Charterer’s Obligation to Use the Ship between the Safe Ports

The advent of autonomous ships also plants a flag on a reevaluation of traditional principles, such as the safe port obligation. The charterer’s obligation to send ships only to ports that can accommodate them safely is one of the key aspects of a time charterparty. This obligation is expressly stipulated under standard charter forms.Footnote ¹⁰³ Clause 1(b) of NYPE 2015 states: “The Vessel shall be employed in such lawful trades between safe ports and safe places within the following trading limits [text to be entered here] as the Charterers shall direct.” The existence of such a provision primarily requires the charterer to direct the ship to a prospectively safe port.Footnote ¹⁰⁴ This kind of provision is also construed to mean that if the port becomes unsafe later due to a change of circumstances while the ship is still en route, the charterer then has a secondary obligation to cancel its previous order and provide a new, prospectively safe port for the vessel.Footnote ¹⁰⁵ The reason behind imposing a secondary obligation on the charterer regarding unsafe ports is mainly to protect the shipowner and also the crew and any third-party interests.

The automation and digitization of ships and ports redefines what constitutes the well-established general principle of a “safe port” and, particularly, the meaning of “safety.” Therefore, the principle in question, rooted in protecting vessel integrity, requires recalibration to address the uniqueness posed by autonomous ships. The notion is intricately linked with the master’s responsibility to navigate the ship safely and the charterer’s obligation to nominate safe ports. This recalibration can be made through reference to the earlier decisions embodied in case law, as stated in The “Mary Lou”: points of law could arise that were not covered by the general principles, and it might then be helpful to consult earlier authorities, albeit that the conclusion of the court on such points of law should be consistent with those general principles.Footnote ¹⁰⁶ The seminal definition of a safe port was articulated by Sellers L.J. in The “Eastern City”:

The question of whether a port is safe for a particular vessel at a particular time is a subjective one, and the answer depends on the particular circumstances of each case. As English case law developed over time, various modalities emerged to define the concept. These include the identification of dangers as either temporary or persistent, the establishment of monitoring and reporting systems, the consideration of delays and inordinate duration, the evaluation of local warnings and departure systems, the adequacy of warning systems, the analysis of deficient berthing and mooring facilities, the evaluation of navigational aids, and the assessment of safety in departure. Considering these modalities, this analysis will first focus on the meaning of safe ports. Such an analysis is necessary to decide whether the charterer is in breach of its obligation to nominate a safe port under the time charter in the case of autonomous ships. The charterer’s duty to nominate a safe port must extend beyond mere physical hazards to encompass the burgeoning risks associated with cybersecurity. In this regard, digital resilience is an integral component of the “safe port” doctrine (Shazi Reference Shazi2024, 3, 14).

2.4.5 The Charterer’s Obligation to Payment of Hire-Off Hire

The payment of hire by the charterer in consideration of the use of the ship is another obligation for consideration in relation to the autonomous ship. This obligation is expressly stipulated under Clause 17 of NYPE 2015. In the case of autonomous ships operating under time charter, it is important to acknowledge that the charterer’s obligation remains unchanged. The expectation is that the remote operation services are arranged by the shipowner. In most cases, these services will be provided by third-party shipping management companies upon agreement with the shipowner, rather than the shipowner setting up its own center. Since the time charterer will be outside the contractual relationship between the shipowner and the center, the charterer should not be exposed to any further obligation as to payment made in consideration of remote and autonomous operation of the ship. This responsibility should remain with the shipowner. The author suggests that, in the context of autonomous ships engaged in time charter operations, the discussion surrounding payment of hire is likely to be predominantly focused on the concept of off-hire. An off-hire clause is a common feature of time charters.Footnote ¹²⁶ While the exact wording of these clauses varies among charters, it serves to release the charterer from its obligation to pay the hire for a period during which the ship cannot be used due to circumstances beyond its control.Footnote ¹²⁷ Clause 17 of NYPE 2015 contains two main parts. The latter part of the clause addresses the issue of loss of time resulting from a decrease in the ship’s speed. This constitutes an alternative avenue for loss recovery for the charterer in cases of underperformance of the ship.Footnote ¹²⁸ The section requiring further consideration in terms of an autonomous ship is the initial part of the clause, which refers to particular events:

There are two potentially problematic issues surrounding the off-hire clause in NYPE 2015 regarding autonomous ships in time charters. The first is the impact of the text “preventing the full working of the ship.” Although the clause quoted above is silent as to whether the charterparty must be completely interrupted or whether the partial loss of the service provided in a particular case is sufficient to accept that the full operation of the vessel is prevented, the NYPE off-hire clause is a net loss of time clause.Footnote ¹²⁹ Therefore, a partial loss of the charterparty service is also accepted as sufficient for the charterer to benefit from the off-hire clause. Following this, if an autonomous ship operation is prevented partially, for example, it can still be said that the charterer benefits from the off-hire clause.

The second problematic issue is related to events that trigger the off-hire clause. It is accepted that the vessel will be off-hired if these specified events prevent the full operation of the ship. Some of the italicized text identifies events that may still have a role in terms of autonomous ship operations. For example, issues pertaining to the radar system or sensor of the autonomous ship can be interpreted under the “machinery or equipment” group. Although the first part of the events responds, to some extent, to the need for autonomous ship operations, the problems that may arise in relation to the remote operation center, such as a physical deficiency of the center preventing the full operation of the ship, do not fall under any of the events listed. This is normal because autonomous ship operations were not considered when the clause was drafted. It is also important to explore whether at least the second part of the events expressed in the clause under the wording of “by any other similar cause” prevent the full working of the vessel and its lash-up to the operation center.

At first sight, the text appears to cover all types of events that prevent the full operation of the vessel. It may be suggested that all types of events that occur during the operation of an autonomous ship and prevent the full working of the ship could fall under this group. Following this, during the operation of an autonomous ship, if there are any problems related to the remote operation center or personnel in the center, the charterer could benefit from the off-hire provision under this category. However, due to the existence of the word “similar,” the text must be regarded as referring to the same types of causes as those previously mentioned in Clause 17.Footnote ¹³⁰ The term therefore will only apply to other similar causes listed in the first part of the clause. When the events listed in the first part above are considered in terms of autonomous ship operations, none of them appear related to events that might arise at a remote operation center. Therefore, it is difficult to include the loss of time in relation to the operation center and personnel in the center in the “any other similar cause” wording. If the word “whatsoever” is inserted and the wording in the NYPE 2015 off-hire clause is redrafted as “any other cause whatsoever,” there will be no need for the causes to be the same as those in the list to trigger the off-hire clause.Footnote ¹³¹ This approach underscores the dispositive effect of the word “whatsoever.”Footnote ¹³² In such cases, problems relating to remote operation centers or personnel at the centers can fall within the second part of the events and the charterer can gain the benefit of the off-hire clause. However, inclusion of the phrase “whatsoever” will widen the scope of the off-hire clause considerably, so it will be challenging to convince the shipowner to accept this new text. Instead, the easier solution would be that, considering the nature of autonomous ship operation, the list of events given in the initial part of the clause is expanded to include new events sui generis to the remote operation center, such as a breakdown of the connection system, software issues, and data transmission problems. It should be noted that although these problems arise, in some cases this might not prevent the full operation of the ship and loss of time may not arise. For example, if the ship is operated remotely and its control and operation are lost due to a failure in data transmission, and the ship’s autonomous operation feature comes into play (as a result of the dynamic autonomy of the ship) and the ship is still able to operate on its own, there will be no loss of time, so there will be no off-hire period. In addition, it is possible that the service provided in the operation center is disturbed due to fire, flood, earthquake, or other natural events, so that the full working of the ship is prevented. Such events might also be incorporated into the clause. As given above, the off-hire clause also refers to particular events related to the crew – such as deficiency, default, or labor strike – and those types of events might also arise at the center. Such a situation is, of course, more manageable than at sea, but might still cause loss of time for the charterer. Therefore, a deficiency, default, or labor strike of personnel in the center should be included in the clause.Footnote ¹³³

Given that the occurrence of some types of events, such as communications or software problems, may regularly disturb the operations of autonomous ships, the incorporation into the clause of a provision for de minimis events is sensible. Such a provision makes the activation of an off-hire clause conditional on the minimum period required by the clause to have been lost due to events specified in the clause.Footnote ¹³⁴ For example, according to the de minimis provision in BPTime 3, the ship is not considered to be off-hire in a case in which the loss of time is less than three hours in any calendar month. Under that clause, the charterer is deemed to have calculated the time lost due to an off-hire event incorrectly if it takes into account a loss of time less than three hours. The addition of such a provision in NYPE 2015 could prevent the expected but common problems related to software and connection problems from causing legal issues between the parties if they occur for only a short period of time.

3.2.1 AI and Autonomous Shipping

AI enables the operation of autonomous ships that can operate with few or no crew members on board, utilizing advanced technologies for navigation, safety, and efficiency. As classified by the IMO, MASS are divided into four degrees of autonomy: degree one (automated processes and decision support), degree two (remotely controlled ship with a crew on board), degree three (remotely controlled ship without a crew on board), and degree four (fully autonomous ship; Askari and Hossain Reference Askari and Hossain2022). AI is essential for MASS operations, including route optimization, collision avoidance, predictive maintenance, and autonomous decision-making. However, its integration also introduces challenges concerning crew roles, legal liability, and regulatory frameworks. Autonomous ships, especially at degrees three and four, lessen the requirement for onboard crew, potentially resulting in job losses or transitions to shore-based positions, igniting ongoing debates and discussions in the maritime industry regarding potential job displacement versus the preservation of traditional seafarer roles (Lee Reference Lee2023).

One of the notable projects involving AI applications in maritime is Yara Birkeland, widely recognized as the world’s first fully autonomous container ship. Developed by a fertilizer company with the support of Rolls-Royce, this container ship utilizes AI for navigation, collision avoidance, and energy management. The ship sails without a crew on board, relying on shore-based control, which is considered the third degree of autonomy (Youd Reference Youd2022). Rolls-Royce’s vision for autonomous vessels demonstrates just how powerful AI can be in achieving fully autonomous operations through ongoing trials (RINA 2018). Forecasts suggest that, by the mid-2030s, up to 3,000 autonomous or semi-autonomous ships will be deployed, necessitating the widespread adoption of AI, according to the HSBA 2018 report. A more recent study conducted by DNV and commissioned by the Maritime Just Transition Task Force predicts that as many as 800,000 seafarers will require additional training and upskilling by the mid-2030s to enable the shipping industry to transition toward alternative fuels and decarbonization (Kaspersen et al. Reference Kaspersen, Karlsen, Helgesen, Giskegjerde, Krugerud and Hoffmann2022). This research highlights the challenges faced by the maritime sector in addressing the increasing uncertainties about the specific skills and profiles required for the future maritime workforce.

3.2.2 Maritime Voyage Optimization

Technologies based on AI systems are revolutionizing maritime voyage planning and route optimization. As one of the most advanced technologies, AI can efficiently process vast amounts of real-time data, such as fluctuations in weather conditions, changing ocean currents, and active ship traffic, to identify the most efficient and secure maritime routes (Riviera News 2022). One example of these technologies is OptiNav AI, a commercialized solution designed as an innovative maritime voyage-planning tool that heavily relies on big data. Powered by cutting-edge technology, this tool strategically utilizes key parameters of maritime operations, including adverse weather conditions, equipment efficiency, and potential security risks.Footnote ³ OptiNav AI, through the use of advanced algorithms, has continually achieved significant fuel savings, demonstrating that such solutions can navigate intelligently – optimizing vessel performance with cost efficiency – while safely navigating the open seas (True North Marine 2025).

AI algorithms also play an important role in conducting accurate energy-based performance analysis of maritime routes. By comparing features such as variable weather conditions, ocean currents, and fuel consumption ratios of ships, the algorithms can optimize energy-efficient routes for vessels (Unoks 2024). With these sophisticated systems, delivery operations can organize power more efficiently, ultimately affecting overall performance and reliability. This technology could simultaneously reduce the need for specific human roles, potentially leading to job displacement. This shift prompts significant debates and discussions about the onboard roles of seafarers, many of whom derive pride and fulfillment from their expertise at sea. However, the integration of AI may lead to the creation of new roles, requiring upskilling and adaptation. As with other emerging technologies, the resilience and adaptability of seafarers will be crucial in aiding navigation through this transformation of the industry.

As this type of technology automates the navigational routines of ships, its impact on seafarers must be carefully managed. The maritime industry should prioritize collaboration between humans and AI over complete automation to maintain human judgment, empathy, teamwork, and creativity.

3.2.3 Predictive Maintenance

AI is also transforming predictive maintenance within the maritime sector, providing substantial improvements in operational efficiency and safety. AI-driven predictive maintenance systems analyze real-time data from sensors installed on ship components, employing machine-learning algorithms to detect early signs of potential failures (Hamidah Reference Hamidah2024). This approach enables ship operators to perform proactive and preventive maintenance, thereby minimizing unanticipated downtime and extending the ship’s lifespan. Through continuous monitoring of equipment health and performance, AI algorithms can identify minor changes in vibration, temperature, or other parameters that may indicate emerging technical issues (Nautilus Shipping 2024). This early detection allows maintenance personnel to address problems before they escalate into major failures, thereby reducing the risks of accidents and costly repairs. A significant advantage of AI-driven predictive maintenance is its ability to integrate and analyze extensive datasets swiftly and accurately, leading to more precise decision-making regarding maintenance schedules (Buzinkay Reference Buzinkay2023).

However, the impact of AI on maritime labor is complex. Although AI-driven predictive maintenance solutions can automate many routine tasks, they are not expected to completely replace crew members. Instead, these machines enhance human capabilities, allowing the crew to focus on more complex and critical responsibilities. By providing real-time data analytics and risk assessments, AI systems empower maritime professionals to make better, informed, and safety-centric decisions (Editorial Team 2024a). Nevertheless, the integration of AI in maritime operations presents challenges. Resistance to change may exist among crew members and other relevant maritime stakeholders, and ensuring data quality and reliability from various sources can be difficult (Durlik et al. Reference Durlik, Miller, Kostecka and Tuński2024).

The deployment of AI systems requires significant investment in technology and training, which may create financial challenges for some maritime operators. Despite these hurdles, the potential benefits of AI in predictive maintenance for maritime work are substantial. By reducing unforeseen failures and improving maintenance schedules, AI helps to create safer conditions for seafarers onboard ships (Nautilus Shipping 2024). Additionally, AI can track the working hours and health indicators of crew members to prevent overexertion and fatigue, common factors in maritime accidents. Moreover, the growing integration of AI technologies in the maritime industry for predictive maintenance is expected to change the roles of the workforce onboard ships. While some tasks may become automated, new roles will arise, concentrated on supervising and evaluating AI-generated insights. This transformation will demand ongoing training and upskilling to ensure effective collaboration with AI systems (Editorial Team 2024a).

3.2.4 Maritime Security and Risk Management

AI applications in maritime security and risk management cover several areas, including predictive maintenance, route optimization, cybersecurity, and port operations. AI-driven sensors and machine-learning algorithms facilitate operations in turbulent seas.

The legal framework governing AI in maritime operations continues to evolve in order to address the unique challenges posed by this technology. The IMO has recognized the importance of cybersecurity in maritime operations and has released guidelines for protecting digital systems on ships. However, the implementation of these cybersecurity standards for MASS presents new challenges, as their reliance on AI and external communication systems increases their susceptibility to cyber threats.

A key legal concern is liability in mishaps utilizing AI-driven systems. The conventional notion of flag State responsibility, as outlined in the United Nations Convention on the Law of the Sea,Footnote ⁴ may need reassessment in relation to AI-operated vessels. For instance, if a system failure leads to a multi-vessel collision in international waters, establishing liability becomes complicated when several ships rely on the same machine-learning algorithms (Adnan Reference Adnan2023). The EU’s Artificial Intelligence Act (AI Act),Footnote ⁵ currently in development, is anticipated to significantly impact the maritime sector. This legislation aims to regulate AI systems based on their risk levels, affecting all areas of the shipping industry. The AI Act underscores safety, data protection, transparency, and accountability tied to the use of AI systems, which will certainly shape the design and operation of autonomous vessels.

Incorporating AI into maritime operations offers advantages and challenges for seafarers. While AI can improve safety by minimizing human errors and offering real-time decision support, it raises concerns about job displacement. Automating maritime operations may result in considerable job displacement among seafarers, requiring a transformation in skills and roles within the industry.

The legal ramifications of AI in maritime security pertain to data protection and privacy. MASS produces and conveys substantial volumes of data, encompassing sensitive details regarding vessel operations and positioning. Securing this data is essential to avert unauthorized access and privacy violations. Therefore, a comprehensive legislative framework is essential to govern the collection, storage, and transfer of data from ships, emphasizing protection against cyberattacks.

3.2.5 Use of AI in Employment Management

While automation provides numerous advantages for managing seafarers’ employment, it also presents notable challenges. The incorporation of process automation and AI into the maritime industry can greatly diminish labor demand, particularly for low-skilled positions. However, highly skilled roles, such as captains and engineers, are likely to be less impacted (WMU 2023).

To mitigate the impact of automation on employment, it is crucial to invest in training, upskilling, and reskilling seafarers while also ensuring their retention in the sector. Improving seafarer qualifications and training seafarers in emerging technologies are essential to help the workforce adapt to the sector’s demands. At the European level, for example, Recommendation (EU) 2024/236 of the European Commission emphasizes the importance of skill-based training.Footnote ⁶ This training should focus on knowledge, methodology, participation, and adapting workers’ skills to new technologies and processes. Government training initiatives and the modernization of regulated vocational training are key tools in preparing maritime professionals for the automation era. This effort can transform challenges associated with automation into a productive advantage rather than a threat. AI-driven tools can further support the analysis of future skill needs and gaps at the national and industry levels and help individuals identify potential career paths and learning opportunities. These tools, which are already utilized by some public employment services (OECD 2022), can also offer opportunities for additional systemic solutions in various transportation sectors, not just maritime.

3.3.1 Ongoing Discussions and Future Outlook

International organizations, including the IMO, are endeavoring to regulate autonomous vessels, taking into account labor law ramifications, including the definition of “crew” in the context of remote operations. The International Labor Organization (ILO), although not explicitly addressing autonomous ships, is examining the larger labor implications of AI, which may guide the maritime sector adjustments. Upcoming modifications may entail revised training mandates and alterations to social security, mirroring the dynamic characteristics of maritime employment that are likely to influence different maritime legal instruments governing seafarers’ rights.

3.4.1 Intersection of the AI Act with the MASS Code

Currently, the IMO is advancing the development of the MASS Code, which serves as a regulatory instrument for MASS capable of operating at various levels of autonomy, as discussed earlier. The nonmandatory MASS Code aims to ensure safety, security, and environmental protection, and it was expected to be adopted by May 2025. In contrast, a mandatory code could come into effect as early as July 2030, with enforcement potentially beginning in January 2032 (Editorial Team 2024c). This framework is essential as a wide range of sectors within the marine industry start to implement AI and automation, which could transform traditional roles and responsibilities.

The AI Act significantly affects the maritime industry, particularly in relation to MASS. The Act establishes a risk-based framework for AI regulation, which has real implications for autonomous ships where AI systems are responsible for navigation, collision avoidance, and other essential functions. This classification necessitates rigorous testing for compliance before these systems can be commercialized and for subsequent adherence to operational and safety standards for autonomous vessels. On a broader scale, the Act requires human oversight for high-risk AI systems, which could entail ensuring remote monitoring for fully autonomous MASS (degree four) when no crew members are present. The MASS Code, centered on safety, likely aligns by mandating human intervention capabilities, especially for higher levels of autonomy, to address risks such as cyberattacks or system failures (Kepesedi Reference Kepesedi2022).

The AI Act’s requirements for high-risk AI systems will likely influence the MASS Code, particularly for MASS operating in or related to the EU. For degrees one and two, human oversight is clear, with seafarers on board providing direct control. However, for degree three, remote operators must ensure effective monitoring, aligning with the Act’s transparency and oversight requirements. Degree four, which involves fully autonomous ships, presents a significant challenge, as the Act mandates human involvement, potentially requiring remote monitoring systems or contingency plans for human intervention (Lölfing Reference Lölfing2023). As the MASS Code is still under development, it must incorporate these requirements to ensure compliance, potentially leading to provisions for remote operation centers and clear definitions of remote operator responsibilities (Editorial Team 2024b).

So far, there are no examples directly linked to the AI Act and MASS; however, parallels can be drawn from regulations on autonomous vehicles. For instance, the Act’s influence on autonomous vehicles indicates that MASS providers might benefit from AI regulatory sandboxes, which would allow testing in controlled environments (Güçlütürk and Vural Reference Güçlütürk and Vural2024). Trials of MASS conducted by companies in Korea, Japan, and Norway highlight the necessity for robust AI systems with human oversight, aligning with both frameworks.

3.4.2 The AI Act’s Potential Impact on Seafarers’ Roles and Job Prospects

As previously discussed, the AI Act requires human involvement for high-risk AI systems, including MASS, for navigation and decision-making. Even fully autonomous ships (degree four, with no crew on board) may need remote monitoring or intervention, shifting traditional seafaring roles to shore-based positions such as operators based in remote centers. For ships with lower autonomy (degrees one and two, with crew on board), seafarers will continue to oversee AI systems. Still, their roles may evolve to include more monitoring and less hands-on control. This change could reduce demand for on-board seafarers, potentially leading to job displacement, but it also creates new opportunities in remote operation centers. As a general fact, seafarers may need retraining and upskilling to adapt to these new roles, focusing on competencies such as remote monitoring, AI system management, and cybersecurity. This aligns with the AI Act’s focus on a human-centric AI approach and may involve collaborations with training institutions both inside and outside Europe (Meier and Spichiger Reference Meier and Spichiger2024).

3.4.3 Potential Opportunities and Challenges

The alignment of the MASS Code with the AI Act could enhance safety. However, it faces challenges – such as defining human oversight for fully autonomous ships, harmonizing regulatory frameworks, and addressing potential cyber threats – as highlighted in a UN Trade and Development report (Kepesedi Reference Kepesedi2022). Unlike conventional ships, where crew members can respond immediately to emergencies, remote operators must rely on robust communication systems and real-time data to make critical decisions. This dependence on technology introduces new vulnerabilities, such as cybersecurity risks and threats, along with the possibility of communication breakdowns, which could compromise the safety of the vessel, its cargo, and the marine environment. Solutions may include remote monitoring systems or innovative contingency plans. This intersection emphasizes the need for international cooperation, such as between IMO and EU bodies, and the development of codes of best practice for AI in maritime applications (Caroli Reference Caroli2025).

The future outlook suggests a balanced approach that ensures innovation while prioritizing safety and ethical considerations, with ongoing updates to the AI Act and MASS Code as technology evolves. This intersection also underscores the need for collaborative regulatory efforts to navigate the complexities of autonomous shipping and the use of emerging technologies, such as AI, onboard ships. The development of best practice codes for AI in maritime applications is another area where international cooperation could yield significant benefits. Such practice codes could standardize training requirements and define roles for seafarers involved in remote operations, ensuring a consistent approach across different jurisdictions (Wylie Reference Wylie2024). This standardization is crucial for building trust in the use of autonomous shipping technologies and facilitating their global adoption.

Last but not least, as the maritime industry navigates these uncharted waters, it is clear that successfully integrating emerging technologies such as AI into global shipping operations will require a delicate balance between technological innovation and regulatory oversight. The ongoing dialogue between regulatory bodies, industry stakeholders, and technology providers will be crucial in shaping a future where autonomous ships can operate safely and efficiently alongside conventional vessels.