Reconceptualising the Nautical Fault Exception in the Fog of Emerging Technologies

Abstract

It is expected that the maritime world will be significantly different by 2050, from smart ports through to blockchain-based shipping documents and autonomous vessels. As the maritime trade witnesses further developments in this field, there will be an inevitable struggle to harmonise the new technology vessels with the traditional rules of law. This article seeks to further the discussion of one of the main legal rules that will have a significant role in shaping sea carriers’ liability for goods carried by autonomous vessels: the nautical fault exception, which operates to remove, to some extent, sea carriers’ liability for losses arising from the acts or omissions of their employees. The main tenet of this article is that an adapted version of the exception should be available to govern the carriage of goods by new technology vessels. In this context, it advocates the use of legal personhood for the purposes of the nautical fault exception. In so doing, this article contributes to the important debate in employment law on the distribution of the risk of losses arising from autonomous systems when, in future, they take over tasks traditionally carried out by employees. In the absence of employment contracts to perform certain commercial activities, the law will need to decide whether legal personhood should be assigned to autonomous systems for efficient and fair risk allocation. This article illustrates why this may be the solution particularly where there is a ‘fine-tuned’ balance of liability already struck in the current legal landscape.