REGULATORY SCOPING EXERCISE FOR THE USE OF MARITIME AUTONOMOUS SURFACE SHIPS (MASS)

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1 E MARITIME SAFETY COMMITTEE 100th session Agenda item 5 MSC 100/INF.6 28 September 2018 ENGLISH ONLY REGULATORY SCOPING EXERCISE FOR THE USE OF MARITIME AUTONOMOUS SURFACE SHIPS (MASS) Preliminary analysis of the International Regulations for Preventing Collisions at Sea, 1972 Submitted by China Executive summary: Strategic direction, if applicable: Output: 2.7 Action to be taken: Paragraph 6 Related documents: Introduction SUMMARY This document provides information on the preliminary analysis of the International Regulations for Preventing Collisions at Sea, 1972, for the purpose of facilitating the ongoing regulatory scoping exercise for the use of maritime autonomous surface ships 2 MSC 99/5, MSC 99/INF.7, MSC 99/22, MSC 99/WP.9 and resolution A.947(23) 1 The Working Group on Maritime Autonomous Surface Ships (MASS) established during MSC 99 was instructed by the Committee to, inter alia, develop a framework and plan of work for the regulatory scoping exercise. Having considered the report of the Working Group on MASS (MSC 99/WP.9), the Committee approved it in general and endorsed the framework for the regulatory scoping exercise, as work in progress, including the methodology for the exercise and a plan of work (MSC 99/WP.9, annex 1). 2 Document MSC 99/WP.9, annex 1, appendix 3 sets out the plan of work for the regulatory scoping exercise, organizing the methodology in two steps. The first step is to identify relevant provisions in IMO instruments in terms of applicability to MASS, after which, as the second step, an analysis is to be conducted to determine the most appropriate way of addressing MASS operations, taking into account, inter alia, human element, technology and operational factors.

2 Page 2 Analysis of the applicability of COLREG 1972 to MASS operations 3 As part of the work to facilitate the implementation of the above plan of work for the regulatory scoping exercise, China conducted a preliminary analysis of the International Regulations for Preventing Collisions at Sea (COLREG), 1972, mainly in four aspects:.1 the general impact of MASS operations on the COLREG 1972;.2 the two regimes of collision avoidance;.3 the give-way/stand-on rule; and.4 the human element. The outcome of the analysis is contained in the annex. 4 According to the preliminary glossary regarding the definition of MASS and degrees of autonomy as set out in document MSC 99/WP.9, annex 1 (paragraphs 3 to 5), it is understood that MASS may include fully autonomous ships and non-fully autonomous ships (i.e. ships without autonomous decision-making, but operated by a seafarer on board or remotely controlled). When in non-fully autonomous mode, in terms of collision avoidance at sea, a MASS is equivalent to a conventional man steered ship (MSS). Therefore, when discussing the applicability of the COLREG 1972 to MASS operations, the differences between fully autonomous mode and non-fully autonomous mode, particularly the issues arising from and the impact on collision avoidance at sea caused by the significant difference of a fully autonomous ship's decision-making system compared with that of an MSS or a MASS operating at other degrees of autonomy, should be taken into account. For ease of expression, a MASS in the annex to this document refers to a MASS operating at fully autonomous mode. 5 The preliminary analysis made in the annex indicates that, a number of provisions in the COLREG 1972 as presently drafted are not fully applicable to MASS operations. China therefore considers the most appropriate way of addressing MASS operations in this regard would be to amend the COLREG 1972 based on a holistic and comprehensive review, taking into account technological development and the human element. Action requested of the Committee 6 The Committee is invited to note the information provided in this document in the regulatory scoping exercise for use of MASS. ***

3 Annex, page 1 ANNEX PRELIMINARY ANALYSIS OF THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA (COLREG), The general impact of MASS operations on COLREG During the sailing ship era, the COLREG was designed to regulate collision encounters only between sailing ships. With the advent of steam ships around two centuries ago, a then new COLREG was developed to regulate not only new collision encounters between two steam ships (now power-driven vessels) and between a steam ship and a sailing ship, but also between two sailing ships already regulated by the previous COLREG. It is noteworthy that, under the new COLREG, i.e. the current COLREG 1972, because of the co-existence of power-driven vessels and sailing ships in the same environment, a unified set of rules had been developed for observance by both power-driven vessels and sailing ships, though different obligations for collision avoidance had been laid down for them according to their different manoeuvrabilities. 1.2 The advent of MASS is today prompting the development of future COLREG which is envisaged to regulate not only collision encounters between two MASS and between a MASS and an MSS, but also collision encounters already regulated by the previous COLREG. On the other hand, the future COLREG should be applicable not only to MASS fitted with radar, AIS and other maritime autonomous systems etc. but also to MSS without those modern shipboard navigation devices. 1.3 Under the COLREG 1972, collision avoidance is dependent on the condition of visibility, i.e. whether or not two vessels are in sight of one another, if in sight of one another, collision avoidance will be based on vessels' categories. The purpose of distinguishing vessels' categories is to allocate more obligations of collision avoidance to the more manoeuvrable category. In accordance with the definition of "in sight of one another" provided in Rule 3(k) of the COLREG 1972, the identification of another vessel's category is currently achieved only through observing, by human visual sight, the lights or shape(s) it possibly exhibits. The COLREG 1972 is therefore not readily applicable to MASS due to the unavailability of human visual sight to them. On the other hand, for two MASSes in a risk of collision, their categories and manoeuvrabilities can be indicated and identified readily through electronic devices, such as AIS fitted on board, the functionality of which is not subject to the condition of visibility. Under such circumstances, collision avoidance between two MASSes will no longer be dependent on the condition of visibility. Therefore, it can be envisaged that the rules for collision avoidance between MASSes will be different from the existing rules for MSSes. 1.4 MASS and MSS will inevitably co-exist in the same environment in the future. In a possible collision situation between a MASS and an MSS, if their respective rules are applied, uncertainty and incoordination would arise, which are contributory factors present in a number of maritime casualties. On the other hand, if a MASS is required to meet a set of new rules in an encounter with another MASS, and to meet the existing rules in an encounter with an MSS, uncertainty and incoordination would also arise. 1.5 For the purpose of certainty and coordination, it is preferable to have a unified set of rules to be developed for observance by both MSS and MASS. It is anticipated, therefore, that the advent of MASS is not only necessitating amendment to the COLREG 1972 for application to MASS, but also necessitating review and consideration of the current collision avoidance framework of applying two sets of rules based on judgment by human visual sight.

4 Annex, page 2 2 The two regimes of collision avoidance in the COLREG 1972 The two regimes of collision avoidance 2.1 There are two independent regimes of collision avoidance in the COLREG 1972, each of which was designed to address encounters between two vessels with various meeting angles, though under different conditions of visibility. One regime is the conduct of vessels in sight of one another, as contained in Section II of Part B (Steering and Sailing Rules), which lays down the following main provisions: Rule 12 (sailing vessels): one sailing vessel as the give-way vessel shall keep out of the way of another sailing vessel; Rule 13 (overtaking): the overtaking vessel shall keep out of way of the overtaken vessel; Rule 14 (head-on situation): each of two power-driven vessels shall alter her course to starboard so that each shall pass on the port side of the other; Rule 15 (crossing situation): one power-driven vessel as the give-way vessel shall keep out of the way of another power-driven vessel; Rule 18 (responsibilities between vessels): the more manoeuvrable vessel shall keep out of the way of the less manoeuvrable vessel. 2.2 The other regime is the conduct of vessels not in sight of one another, as contained in Section III of Part B, which lays down the following main provision: Paragraph (d) of Rule 19: a vessel, if her avoiding action includes alteration of course, shall alter course to starboard for a vessel forward of her beam, other than for a vessel being overtaken, and shall alter course away from a vessel abeam or abaft the beam. The legislative models 2.3 It can be seen in the provisions listed above that the two regimes have adopted different legislative models. In general, the regime for vessels in sight of one another was drafted from the perspective of a regulatory third party to allocate general obligations of collision avoidance to two meeting vessels, without providing specific collision avoidance manoeuvres to them, while the regime for vessels not in sight of one another was drafted from the perspective of a vessel to provide specific collision avoidance manoeuvres, and specify each vessel's independent obligation for collision avoidance, instead of allocating such obligation between two meeting vessels. 2.4 With the development of the COLREG 1972, general principles of collision avoidance manoeuvres have been adopted and incorporated into the regime for vessels in sight of one another, e.g. the requirement for the give-way vessel in a crossing situation to avoid crossing ahead of the other vessel if the circumstances of the case admit (Rule 15). However, those principles are still too generalized to change the status quo of the two apparently different legislative models.

5 Annex, page 3 The commonality of the two regimes in terms of collision avoidance manoeuvres 2.5 According to the COLREG 1972,.1 under the regime for vessels in sight of one another, it requires:.1 in a head-on situation, each of the two power-driven vessels to alter course to starboard (Rule 14(a));.2 in a crossing situation, if the circumstances of the case admit, the give-way vessel to alter course to starboard to avoid crossing ahead of the stand-on vessel on her starboard side (Rule 15), and the stand-on vessel, when permitted to take avoiding action by her manoeuvre alone, to alter course to starboard to avoid altering course to port toward the give-way vessel on her port side (Rule 17(c)); and.3 in a collision encounter between two sailing vessels, when each has the wind on a different side, the sailing vessel which has the wind on her port side to keep out of the way (Rule 12(a)(i)), impliedly, by altering course to her starboard, because it is much easier and more practicable for the sailing vessel with the wind on her port side to turn with the wind to her starboard than to turn against the wind to her port..2 Under the regime for vessels not in sight of one another, regardless of vessels' categories and the distinction between various possible collision situations, each vessel is required to alter course to starboard for a vessel forward of her beam, other than for a vessel being overtaken, and to alter course away from a vessel abeam or abaft the beam (Rule 19(d)). 2.6 Based on the comparison above, it is understood that the "starboard turn rule" in the COLREG 1972 is the common core principle adopted in both regimes, which should also apply to any other collision encounters not mentioned above, such as those specified in Rule 18 (responsibilities between vessels). Since the core principle is shared, in terms of collision avoidance manoeuvres, the regime for vessels not in sight of one another can be, in a sense, regarded as a simplified version of the regime for vessels in sight of one another, by merging the various possible collision situations for vessels in sight of one another (Rules 12 to 18) into the one single rule for vessels not in sight of one another (Rule 19). Scope of application of the two regimes 2.7 The application of regime for vessels in sight of one another is dependent on the knowledge, by human visual sight, of an approaching vessel's category (excluding overtaking situation) which is indicated by the shape of the vessel or the lights it exhibits. With the increase of vessels' size, speed and safe passing distance, it may happen that, at the normal range of collision avoidance, no matter how excellent the visibility is, a vessel usually cannot identify the category of an approaching vessel by human visual sight, rendering this regime's actual scope of application more limited than its intended use, as discussed in detail in document MSC 99/INF.7.

6 Annex, page Under the regime for vessels not in sight of one another, distinctions between overtaking, head-on and crossing situations, between vessels' categories and between a give-way vessel and a stand-on vessel are no longer required. The only distinction in this regard required of a seafarer to make is whether an approaching vessel is from forward of beam or otherwise. Obviously such distinction can be made by an MSS or a MASS through human visual sight in good visibility or through radar and other navigation aids in any condition of visibility. Therefore, the regime for vessels not in sight of one another can apply to MSS and MASS in any condition of visibility, rendering the actual application scope of the regime being wider than its intended use. 3 The give-way/stand-on rule in the COLREG 1972 The give-way/stand-on rule 3.1 The give-way/stand-on rule, including the give-way rule (Rule 16) and the stand-on rule (Rule 17), requires one of two approaching vessels to keep out of the way while the other vessel to stand on. The rule applies to four collision encounters in the COLREG 1972, i.e. the sailing vessel situation (Rule 12), the overtaking situation (Rule 13), the crossing situation (Rule 15) and the situation between vessels of different categories (Rule 18). The legal barrier 3.2 The give-way/stand-on rule does not take into account the substantial differentiation in size and speed between approaching vessels of the same categories, which could cause substantially differential manoeuvring capabilities, nor does it take into account restricted waters, such as narrow channels and fairways, that could severely restrict the manoeuvring room of a give-way vessel. For instance, the crossing rule (Rule 15) of the COLREG 1972 directs a power-driven vessel to keep out of the way of another power-driven vessel on her starboard side, regardless of the differentiation in their manoeuvring capabilities. This is a specific mandatory requirement regarding allocation of obligations for collision avoidance. Thus, strict compliance with the crossing rule would become unreasonable and impracticable when a large and slow vessel, in the position of the give-way vessel, is required to keep out of the way of the stand-on vessel which is small and fast. 3.3 Under such circumstances, VHF or AIS communication may be established to negotiate an agreement under which the more manoeuvrable vessel is to give up stand-on action and take positive action in ample time, in order to relieve the give-way vessel of her obligation to keep out of the way. This seems to be reasonable and not rare in practice. However, according to the principle of "Jus publicum privatorum pactis mutari non potest (public law cannot be changed by agreement made between private persons)", such practice is not legitimate, since the COLREG 1972 is public international law, which precludes and prohibits private agreement or practice (such as the so-called good seamanship or ordinary practice of seamen) that contradicts the mandatory requirement regarding allocating obligations for collision avoidance. 3.4 Generally, when the speed of the stand-on vessel is 1.5 times or more of that of the give-way vessel, the stand-on vessel will find it impracticable or even risky to wait for the slower give-way vessel to keep out of the way. This may have also caused difficulties to experts studying automatic collision avoidance when developing algorithms for a system that is both appropriate for the practice of collision avoidance and in conformity with the COLREG 1972 requirements. In other words, under the existing COLREG 1972 and with the above legal barrier, MASS operations could not be fully addressed in terms of collision avoidance at sea.

7 Annex, page 5 4 Human element in the COLREG 1972 Background 4.1 Recognizing the prominent role of human element in maritime casualties, the need for increased focus on human-related activities in the safe operation of ships and the need to achieve and maintain high standards of safety, security and environmental protection for the purpose of significantly reducing maritime casualties, the Assembly, at its 23rd session, by updating resolution A.850(20), adopted resolution A.947(23) on Human element vision, principles and goals for the Organization. According to resolution A.947(23), human element is a complex multi-dimensional issue that affects maritime safety, security and marine environmental protection, involving the entire spectrum of human activities performed by ships' crews and, inter alia, regulatory bodies, legislators, all of whom need to cooperate to address human element issues effectively. Human element in collision avoidance 4.2 Collision avoidance at sea, presently, is conducted by seafarers on board, where obviously human element is deeply involved. Keeping a proper lookout, processing of lookout information, operation of navigation aids, communication with other vessels, judgement of being in sight of one another or not and of the categories of an approaching vessel, as well as the decision-making on collision avoidance manoeuvres, all involve human element. The Working Group on MASS established during MSC 99 agreed that consideration of the human element was vital, in particular for the second step when conducting the analysis of the most appropriate way of addressing MASS operations (MSC 99/WP.9, paragraph 9). 4.3 For MASS with certain degrees of autonomy, the monitoring and the occasional human intervention of their operation may be executed by an onboard seafarer or by an operator at a location away from the ship, who will perform the monitoring and watchkeeping duties on board or ashore instead of a duty officer on a navigating bridge. Under such circumstance, the human element will be involved in collision avoidance at various degrees. For MASS operating in fully autonomous mode, human element should also be taken into account when, in a possible collision situation, meeting an MSS or a non-fully autonomous ship. For the purpose of considering human element in collision avoidance, several human element issues are briefly discussed in the following paragraphs. The principle of ensuring that a single human error will not cause an accident 4.4 Resolution A.947(23) lists eight principles to be followed when considering human element issues, and the fourth of which provides that: "in the process of developing regulations, it should be recognized that adequate safeguards must be in place to ensure that a single human or organizational error will not cause an accident through the application of these regulations." 4.5 In an ordinary two-vessel collision situation, without the intervention of the COLREG 1972, appropriate avoiding action taken by either vessel will result in a safe passing. In other words, there are natural double safeguards for the situation, as a single human error, i.e. the failure of only one vessel to take avoiding action, will not cause a collision. However, under the give-way/stand-on rule, requiring the stand-on vessel to keep her course and speed, a single human error of the give-way vessel (i.e. not to give way) would bring the two vessels to a close range, increasing the chance of a collision. As a result, the give-way/stand-on rule is not fully in conformity with the captioned principle, thereby both MSS and MASS will be potentially affected, particularly when meeting another MSS which is in the position of the give-way vessel.

8 Annex, page 6 The principles of being simple, clear and comprehensive and of decreasing the possibility of human error as far as possible 4.6 The fifth and eighth principles set out in paragraphs (e) and (h) provide respectively that: "rules and regulations which address seafarers directly should be simple, clear and comprehensive" and "consideration of human element matters should aim at decreasing the possibility of human and organizational error as far as possible". 4.7 COLREG 1972, as a set of rules that addresses seafarers directly, is broken down into six parts and four annexes. Part B, Steering and Sailing Rules, is further divided into three sections. In respect of applying the rules under Section II, distinctions have to be made between different collision situations (head-on, crossing and overtaking), give-way vessel and stand-on vessel, and various categories of vessels, supplemented by the "not to impede" provisions. In addition, the system of collision avoidance actions under Part B has become fairly complicated, including: to keep out of the way (risk of collision is required to exist) Rules 12 and 15; to keep out of the way (risk of collision is not required to exist) Rules 13 and 18(a) and (b); to keep out of the way, so far as possible (risk of collision is not required to exist) Rule 18(c); not to impede the passage Rules 9(b) and (c), and 10(i); not to impede the safe passage Rule 10(j); to avoid impeding the safe passage Rule 18(d)(i); to avoid impeding navigation (only before risk of collision exists) Rule 18(e); to avoid impeding navigation (before and after risk of collision exists) Rule 18(f)(i); and dual action Rules 14 and It can be seen that the current system of collision avoidance actions, mainly the regime for vessels in sight of one another, is not in conformity with the captioned principles by getting complicated and requiring vessels to make more judgements and distinguish finer differences. It is expected that MASS, like MSS, will have difficulty in interpreting and distinguishing the very fine differences between the various concepts and requirements, and thereby increasing the possibility of involving human error in a collision encounter. Comprehensive review of the COLREG 1972 from the human element perspective 4.9 Resolution A.947(23) further lists seven goals to achieve in addressing human element issues. The second goal, as provided in paragraph (b), is "to conduct a comprehensive review of selected existing IMO instruments from the human element perspective."

9 Annex, page As discussed above, COLREG 1972 is directly involved in human element for both MSS and MASS. COLREG 1972 is an existing IMO instrument that had been drafted long before the introduction of the human element concept and the consideration of its principles, hence human element issues stated in resolution A.947(23) might not have been fully taken into account when drafting and amending COLREG The above goal is in fact encouraging to take a comprehensive review of COLREG 1972 from the human element perspective, which, however, has not been done so far.

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