Fault-Based Liability and Autonomy: An Analysis of Negligence in the Context of Autonomous Shipping

Sammanfattning

The development of Maritime Autonomous Surface Ships (‘MASS’) presents significant challenges to the existing framework of maritime liability law. Fault-based liability and the concept of negligence are traditionally structured around the assessment of human conduct, decision-making and control. This raises the question of whether negligence and fault remain conceptually coherent where operational decisions are made by autonomous systems rather than by human actors. This thesis examines how the degree of human involvement in MASS operations affects the assessment of negligence under the fault-based liability framework, whether the framework remains coherent at the higher degrees of autonomy and to what extent strict liability and product liability may provide viable alternative frameworks. The analysis is conducted using a legal dogmatic method, relying on international maritime conventions, including SOLAS, the COLREGs and the STCW Convention, as well as legal doctrine, legal principles and recent regulatory developments within the International Maritime Organization (‘IMO’), particularly the IMO Draft MASS Code. The thesis demonstrates that the degree of human involvement in the operation of the vessel is decisive for the assessment of negligence. At degrees 2 and 3 of autonomy, where human actors remain involved in navigational control or retain the practical ability to monitor and intervene, the fault-based framework may remain coherent, although its application becomes more complex. In particular, autonomous operation raises questions regarding the responsibilities of the shore-based controllers, the allocation of operational control and the conditions under which a duty to intervene can practically be fulfilled. At degree 4 of autonomy, where the vessel operates without human involvement in the operational decision-making process, the application of negligence becomes conceptually strained as there may be no human conduct to assess in relation to navigational negligence. Duties relating to ship management, seaworthiness and vessel maintenance may still provide a partial basis for fault in some cases but do not cover all instances in which damage results from autonomous navigation or technical defects. In addition, the IMO Draft MASS Code’s mandatory master requirement preserves a human duty-holder within the regulatory framework but may be insufficient where the master does not have effective control over the autonomous operation of the vessel. In this respect, the mandatory master requirement represents an important regulatory response but attempts to preserve the fault-based structure without ensuring the human control on which it depends. The thesis further demonstrates that strict liability and product liability offer only partial responses to these issues. Whilst strict liability may resolve the issues of fault attribution by removing the need to establish fault, it departs from the underlying fault-based structure of collision liability. Product liability provides a closer connection to autonomous technology but remains dependent on proving defects and causation. Neither framework therefore fully resolves the structural limitations of a liability framework based on human fault in the context of autonomous decision-making. The thesis concludes that fault-based liability should not be replaced by an alternative framework. Instead, its rules of attribution should be adapted to reflect autonomous operation, so that collisions caused by technical defects or autonomous decisions during fully autonomous navigation should not fail to result in liability merely because no negligent human actor can be identified. The concept of negligence may therefore remain coherent, provided that the standard of care can be applied to autonomous decisions and the systems through which they are made and executed.