MASS and Liability for Damages

The following discussion addresses two different legal aspects that are interrelated and that will become more practically relevant in an emerging era of commercial applications of maritime autonomous surface ships (MASS): first and inevitably, there will be situations in the future that will trigger questions of MASS-related liability. Those incidents—while always requiring undisputed facts, evidence, and detailed technical context—could involve potential damages caused either by a MASS or to a MASS, thus calling for compensation or other forms of financial cover. From a marine insurance perspective, one of the core questions will be whether established concepts, case-law-based tests, and general legal principles will change in relation to higher levels of automation/autonomous operations. This includes the issue of whether any damages in question have been proximately caused by/onboard a MASS and whether the understanding of “perils insured against” is actually linked to the “autonomous” nature of maritime operations, above all, including any type of “cyber events.” In fact, MASS are often assumed to be more vulnerable to “cyber events” as compared to conventionally designed ships. In this context, contractually agreed exclusions and specific products to cover “cyber” are relevant. Second, the discussion summarizes and highlights some of the latest developments in the area of product liability law, particularly the potential effects of the completely updated and revised EU Product Liability Directive. This new EU law is designed for the digital era. It will lay down rules on the liability of manufacturers (and other subjects of liability in the value chain) for damages suffered by natural persons caused by defective products and on compensation for such damages. Nevertheless, there could still be important legal effects generated by the completely updated understanding of (strict) product liability law and its significantly widened scope of application, for example, for defective software.