Namely, the wording of the 1910 Collision Convention assumes that fault can either be found among the vessels themselves or not at all, Mrs. Wiedenbach notes, and the latter cases have traditionally been referred to as events outside of the ship.
The wording of the convention does not cater for the situation that the collision was caused by the fault of a third-party contractor in relation to work undertaken to one of the ships, despite the fact that in such a situation, the cause must be said to rather lie “within” that ship than outside of it. At the same time, in relation to autonomous shipping, third party contractors, such as software or internet providers, are expected to play an increasingly important role for the safety and security of the ship.
For example, without human involvement in the navigation, a breach of the rather straightforward “do's” or “don'ts” of COLREG can no longer serve as indication for negligence in navigation. Rather, one must look at negligence in management of the ship with guidance in the more generally worded international and national objectives and principles. This arguably increases the courts’ leeway to affirm or reject fault in the individual case.
According to Mrs. Wiedenbach, it is also unclear if a national court faced with a collision caused by the fault of such a contractor would apply Art. 4 of the convention by analogy. The provision deals with the situation that both vessels are at fault but that the respective degree cannot be established. The result is a 50/50 liability split.
Alternatively, the court may instead draw an analogy to Art. 2, dealing with the situation that no vessel was at fault. In such a case each vessel has to carry its own damage. A third viable option is that the court would consider the situation to fall outside of the scope of the convention all together and apply instead to other national rules. The difference may be substantial.
In essence, it is contended that the current fault-based collision liability regime applied to autonomous ships does not preserve the unification and foresee ability that the 1910 Collision Convention was once drafted to guarantee.