Legal regime of unmanned vessels

Meaning of ‘vessel’ for the purpose of this Directory: floating device of big dimension

Portuguese Legislation Link Important details
Letter of Law of 28 June 1888 – approves the Commercial Code http://www.soarescarneiro-adv.pt/attachments/article/174/Código%20Comercial.pdf The Commercial Code establishes several provisions that are relevant for the operations of unmanned vessels operations, notably in terms of liability in case of collision and regarding the rules that apply to maritime insurance. The Commercial Code sets forth a fault-based liability regime and determines which entities shall be liable in case of (i) collision caused by fault of one vessel, (ii) collision caused by fault of both vessels, and (iii) in case of collision caused by third parties. This provisions may apply to unmanned vessels, because from this regime does not seems to be compulsory that ships shall have a crew and a master onboard. In addition, the Commercial Code also defines the rules, which apply to maritime insurance, but it does not have provisions regarding specific risks resulting from the unmanned nature of the unmanned vessels.
Decree-Law No. 96/89, of 28 March – creates Madeira’s International Shipping Registry 

https://www.ibc-madeira.com/images/pdf_PT/pt-05-DL_96_89.pdf

It is the second Portuguese shipping registry that offers a more attractive tax regime. It does not provide norms for the registration of unmanned ships.
Decree-Law No. 43/2018, of 18 June – creates the National System for Vessels and Sailors

https://dre.pt/application/file/a/115526586

New electronic registration system for vessels and sailors that provides online services. It does not amend or revise the rules for registration of vessels nor does it refer to unmanned vessels. 
Decree-Law No. 2/2017 of 6 January –  establishes the legal regime of the entrance of foreign warships, aircraft and foreign land forces in the Portuguese territory (territorial sea and internal waters)

https://dre.pt/application/file/a/105714586

This legal instrument considers warship or equivalent (i) those belonging to the navy and under command of an officer whose name appears on the service list of naval officers; (i) training merchant ships in state-dependent service and used for non-commercial purposes, and under command of an officer whose name appears on the service list of naval officers; (iii) vessels used by the State for non-commercial purposes, and under the  command of a naval officer or an officer under other branch of the armed or security forces, or by a civilian specially commissioned for that purpose. Thus, in principle, unmanned warships do not fall within the definition of warship or equivalent provided for in the national law.

Legal regime of unmanned maritime vehicles

Meaning of ‘vehicle’ for the purpose of this Directory: floating device of small dimension

Portuguese Legislation Link Important details

Decree-Law No. 265/72, 31 of July – general rules of captaincies

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1721&tabela=leis

It establishes the national vessel classification based on (i) the activities to be performed, (ii) the area to be navigated, and (iii) nature of the transport to be carried out, as well as rules on vessels acquisition, construction, and modification. However, it does not provide a definition of the ship or vessel.  This legal framework does not refer to unmanned vehicles but it can be argued that they fall within the category of small crafts carried on board, and as such, exempt from registration but subject to licensing by the Maritime Authority.

Regulation (Portaria) No. 394/2012, of 29 November -   establishes the nuclear structure of the General Directorate of Natural Resources, Maritime Services and Safety

https://dre.pt/application/conteudo/190601 The Direction of Maritime Administration Services has the competence to carry out the certification of vessels and other floating devices. However, there is no definition of floating devices.
Decree-Law No. 47344/66, of 25 November – approves the Civil Code l

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=775&tabela=leis

It establishes the legal regime that regulates the fault-based non-contractual liability regime that is likely to apply to damages to people or things caused by unmanned maritime vehicles. There are several questions that may be raised in the assessment of all the requirements that shall be in place for the compensation to be paid.
Letter of Law of 28 June 1888 –approves the Commercial Code https://www.amn.pt/Lists/Legislacao/Código%20Comercial%20(Livro%20Terceiro).pdf The Commercial Code defines the rules which apply to maritime insurance, but it does not have provisions regarding specific risks that are directly related to the unmanned nature of unmanned maritime vehicles.

Evidence collected by unmanned maritime vehicles in judicial proceedings

 

Portuguese Legislation Link Important details
Decree-Law No. 21/2013 of 26 June –approves the Code of Civil Procedures (CPC) http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1959&tabela=leis

The CPC establishes, among others, evidence that can be used in civil procedures. The evidence collected by unmanned maritime vehicles, like videos, photos or sounds records shall be admitted in the category of documentary evidence and submitted with the memorials. The party that presents the evidence shall provide to the tribunal and to the other party with the device from where the reproduction of the evidence can be made.

Decree-Law No. 47344/66 of 25 November –approves the Civil Code http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=775&tabela=leis

The CC establishes that photographic or cinematographic reproductions of phonographic records and, in general,  any other mechanical reproductions of facts or things that are presented in civil procedures, make full proof of the facts or things they represent unless their accuracy is challenged by the party against whom they are presented. It is argued that this value shall also be given to evidence collected by unmanned vessels since the law does not impose restrictions or any additional requirement regarding the devices used for its collection.

Decree-Law No. 78/87 of 17 February – approves the Code of Criminal Procedures (CPP) http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=199&tabela=leis&so_miolo

The CPP establishes, among others, evidence that can be used in criminal procedures as well as the value of such evidence. The CPP is more restrictive than the CPC and only admits evidence that is not prohibited by law. Evidence collected by unmanned maritime vehicles can be submitted in the category of documentary evidence, but its admissibility in a concrete case depends on whether the evidence is a video or a photo or a sound recorded. In principle, videos and photos are allowed to be used even when their capture was not previously authorized. In contrast, submission of sound records captured by unmanned maritime vehicles is subject to the legal regime of wiretapping, which is only allowed for  certain crimes and upon the existence of a previous authorization.

The Decree-Law No. 287/87, of 7 July –  defines the legal framework that regulates fishing and marine cultures in waters under Portuguese sovereignty and jurisdiction (internal waters, territorial sea, exclusive economic zone and the sedentary species of the continental shelf*)

 

* There is only one continental shelf, which includes the areas beyond 200 nautical miles, as reinforced in the decision of the International Tribunal for the Law of the Sea concerning the delimitation of the maritime boundary between Bangladesh and Myanmar in the bay of Bengal

http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1730&tabela=leis Within the context of administrative offenses to the legal framework that regulates fishing and marine cultures in waters under Portuguese sovereignty and jurisdiction (internal waters, territorial sea, exclusive economic zone and the sedentary species of the continental shelf), this legal instrument establishes that evidence collected by  devices, instruments or equipment used in accordance with the law, notably those collected by the vessel monitoring system (MONICAP) made prove before the court of the facts they represent, until proven otherwise. It is possible that evidence collected by unmanned maritime vehicles falls into the scope of this provision, in case they are considered equipment.

Legal regime of marine scientific research

Portuguese Legislation Link Important details

Decree-Law No. 52/85, 1 of March * - defines, among others, the legal regime and procedures for marine scientific research in areas under national sovereignty or jurisdiction (including the continental shelf beyond 200 nautical miles)

 

* The dispositions of this Decree-law regarding marine scientific research remain in force despite the fact that those applicable to fisheries have been repealed.

https://dre.pt/web/guest/pesquisa/-/search/326130/details/normal?q=Decreto-lei+n.º%2052%2F85

It regulates the legal regime for marine scientific research in areas under national sovereignty or jurisdiction (including the continental shelf beyond 200 nautical miles). However, it does not have any information regarding equipment used for marine scientific research purposes, as it may be the case of unmanned maritime vehicles. It  imposes that the marine scientific research project shall use appropriate methods of research, but it does not provide any clarification on what these methods are. It is arguable that the utilization of unmanned maritime vehicles is an appropriate method, provided that its use do not collide with other legitimate uses of the sea.

This legal instrument also imposes that information on the methods and equipment to be used in the marine research project, notably unmanned maritime vehicles, shall be mentioned in the research document as well as imposes an obligation of removal once the project is completed.

Decree-Law No. 38/2015 of 12 November –regulates the Law No. 17/2014 of 10 April, which establishes the basic framework for national marine spatial planning and management policy http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?artigo_id=2308A0058&nid=2308&tabela=leis&pagina=1&ficha=1&so_miolo=&nversao=

It sets forth the legal regime that applies for the emission of the authorization for the private use of the national maritime space for marine scientific research projects. It imposes that the document describing the project shall contain, among others, a detailed description of the processes and equipment to be used in the research. So, any application for authorization for the private use of the national maritime space that employs unmanned maritime vehicles shall have such information in the document that describes the project. The effective use of unmanned vehicles in a marine scientific research project shall observe signaling and safety measures established in the project document and it shall comply with the duty to maintain the good environmental status of the marine environment, as well as the obligation to adopt the necessary measures to reconstruct it, in case it has been affected.

This legal regime is only applicable when the marine scientific research project requires the private use of a national maritime space, that is, when the maritime area where the project is going to be carried out cannot be used for any other purpose (reservation of an area or volume). In other cases, when the project can be implemented without private use, these legal impositions do not apply.

Decree-Law No. 47344/66, of 25 November – approves the Civil Code l http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=775&tabela=leis

It establishes the strict liability regime that is likely to apply to damages caused to the marine environment by unmanned maritime vehicles used in marine scientific research projects.  In accordance with this regime, the entity in charge of the project will be liable for damages caused by the operator of the unmanned maritime vehicles, if cumulatively, the damage is caused within the scope of the research project, the operator acts in conformity with the guidelines given by the entity in charge of the project, and in case the operator is herself or himself also liable, within the fault-based liability regime.

Law of the sea general legislation

Portuguese Legislation Link Important details

Resolution of the Assembly of the Republic No. 60-B/97, 14 of October – approves in order to ratify, the United Nations Convention on the Law of the Sea and the Agreement Concerning the Implementation of Part XI of the Convention

https://dre.pt/application/file/a/152861; The Resolution of the Assembly of the Republic approves, in accordance with the Constitution of the Republic, the United Nations Convention on the Law of the Sea and the Agreement Concerning the Implementation of Part XI of the Convention. The Convention entered into force in the international legal order on 16 November 1994 and in the internal legal order on 3 December 1997.
Law No. 34/2006, 28 of July – defines the extension of the maritime areas under national sovereignty or jurisdiction and the powers of the Portuguese State therein, as well as the powers exercised on the high seas https://dre.pt/web/guest/pesquisa/-/search/539401/details/normal?p_p_auth=7a4Uv89A

When referring to the enforcement powers of the Portuguese authorities in different maritime zones, the law mentions the right of visit* not only to be performed against vessels but also against other floating devices. However, the law does not define what are floating devices.

 

*The right of visit enables a Portuguese official vessel to proceed, in the exclusive economic zone and on the high seas, to verify the documentation of a foreign flagged vessel, if there is a reasonable ground for suspecting that the vessel is engaged in piracy, slave trade, unauthorised broadcasting or when the vessel has no nationality (article 110 of the United  Nations Convention on the Law of the Sea). The right of visit has been extended by specific conventions ratified by the Portuguese State.

Autonomous Regions legislation

Portuguese Legislation Link Important details
Law No. 39/80, of 5 August – approves the Political and Administrative Statue of the Autonomous Region of Azores

https://www.azores.gov.pt/NR/rdonlyres/
08A0FC8F-7FDC-46AA-A53F-
7F168690FA63/0/EstatutoPol%C3%ADticoAdministrativoda
RegiãoAutónomadosAçores_PT.pdf

It defines norms that grant the Autonomous Region of Azores powers to legislate in matters that may be related to the use of unmanned maritime vessels and vehicles. In the fisheries sector, the Region can impose specific conditions for the use of unmanned maritime vehicles and vessels in the internal waters and in the territorial sea adjacent to its coast, and also regarding registration of vessels in the Region. In land, aerial and maritime transportation, the Region also has powers that may be extended to unmanned maritime vessels and vehicles. The Region also has the competence to regulate research and technological innovation, which can include unmanned maritime vehicles. In terms of public safety and civil protection, notably regarding oceanography, monitoring and surveillance the Region can also adopt legislation, including matters on unmanned maritime vehicles. 

Law No. 13/91, of 5 July approves the Political and Administrative Statue of the Autonomous Region of Madeira http://www.cne.pt/sites/default/files/dl/legis_eparam_2012.pdf

It defines norms that grant the Autonomous Region of Madeira the power to legislate in matters that may be related to the use of unmanned maritime vessels and vehicles. The Region has general powers to legislate in the fisheries sector, and it may introduce regulations regarding the use of unmanned maritime vehicles and vessels. The Statute also determines the competence of the Region regarding maritime infrastructures and transports, so the Region can regulate the use of unmanned maritime vehicles and vessels if they are used as means of transport. The Region has the competence to legislate in the area of construction, installation, and use of infrastructures for marine scientific research purpose, which can include equipment, notably unmanned maritime vehicles.

Regional Legislative Decree No. 9/2012/A of 20 March – defines the legal regime for access and use of natural resources of the Autonomous Region of Azores for scientific purposes http://www.azores.gov.pt/JO/Serie+I
/2012/Série+I+Nº+46+de+21+
de+Março+de+2012/Decreto+
Legislativo+Regional+N+9+de+2012_A.htm
Access to natural resources of the Autonomous Region of Azores is subject to administrative licensee or authorisation. This legal instrument does not have any information regarding marine data collection instruments, such as unmanned maritime vehicles.

European Union

European Legislation Link Important details
Council Decision 98/392/CE of 23 of March - concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July relating to the implementation of Part XI thereof http://eur-lex.europa.eu/legal-content/PT/TXT/HTML/?uri=CELEX:31998D0392&from=PT It establishes the matters governed by the United Nations Convention on the Law of the Sea, which are transferred to the European Union by the Member States, particularly in accordance with articles 3 and 4 of the Treaty on the Functioning of the European Union. By exclusion, rules for registration of vessels and flagging, as well as marine scientific research are under the regulatory power of the Member States. Accordingly, the creation of a registration for unmanned maritime vehicles will be under the competence of the Member States.

International Conventions

International Conventions Important details

International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Vessels, 1926

http://treaties.fco.gov.uk/docs/pdf/1980/TS0015.pdf

Adopted 10, April 1926, Brussels

Date of entry into force: 8 January 1937

Date of entry into force in Portugal: 27 December 1938

It grants immunity from jurisdiction to State ships, including auxiliary ships or other State vessels belonging to the State and used for non-commercial purposes. It can be argued that it applies to unmanned maritime vehicles owned or used by the State, provided that they are not used for commercial purposes.

Convention on the International Maritime Organization

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XII-1&chapter=12&lang=en.

Adopted 6, March 1948, Geneva

Date of entry into force: 17 March 1958

Date of entry into force in Portugal: 17 March 1976

 

The International Maritime Organisation is the global standard-setting authority for the safety, security and environmental performance of international shipping. It is the international organisation, which will probably prepare and define guidelines for international sipping performed by unmanned maritime vessels.

Chicago Convention on International Civil Aviation, 1948

https://www.icao.int/publications/Documents/7300_cons.pdf

Adopted 7, December 1944, Chicago

Date of entry into force: 4, April 1947

Date of entry into force in Portugal: 4, April 1947

It establishes the rules regarding civil aviation. The Convention has a rule that specifically regulates unmanned aircraft, which can only fly the territory of a State with prior authorisation and in accordance with the conditions established by the State. It also determines that each State undertakes to ensure that the flight of unmanned aircraft in regions open to civil aviation shall be so controlled as to obviate danger.

International Regulations for Preventing Collision at Sea (COLREGS Convention), 1972

http://www.imo.org/en/Publications/Documents/Supplements%20and%20CDs/English/QB904E_012016.pdf

Adopted 20, October 1972, London

Date of entry into force: 15, July 1977

 

Date of entry into force in Portugal: 17 October 1978

It defines rules aimed at preventing collision at sea, defining, among others, the duty of care and the standards for good seamanship. The definition of vessel - as every description of water craft, including non-displacement craft and seaplanes, used or capable of being used as a means of transpiration on water - may exclude from its scope of application some unmanned maritime vehicles, depending on their features. 

International Convention for the Prevention of Pollution from Ships (MARPOL Convention), 1973/78

http://www.imo.org/en/Publications/Documents/Supplements%20and%20CDs/English/QD520E_092015.pdf

Adopted 2 November 1973, London; 1978 Protocol, 1997 Protocol 

Date of entry into force: 2 October  1983

 

Date of entry into force in Portugal: 22 January 1988

The Convention defines ships as a vessel of any type whatsoever operating in the marine environment, and includes hydrofoil boats, air-cushion vehicles, submersibles, floating crafts, and fixed or floating platforms.  Submersibles are mentioned in the Convention, which may induce one to argue that it applies to unmanned underwater vehicles, especially, if they are capable of discharging pollutants. The application of the Convention to other unmanned maritime vehicles depends on the specific features of the vehicles themselves and whether or not they fit in the technical standards provided for in the annexes.

International Convention for the Safety of Life at Sea (SOLAS Convention), 1974

http://www.imo.org/en/about/conventions/listofconventions/pages/international-convention-for-the-safety-of-life-at-sea-(solas),-1974.aspx

Adopted 21 November 1974, London

Date of entry into force: 25 May 1980

Date of entry into force in Portugal: 7 February 1984

 

The Convention sets for the minimum standards regarding construction equipment and operation of ships, aimed at primarily ensuring the safety of life physical integrity of those who are onboard. Accordingly, many of its dispositions are not applicable to unmanned maritime vessels and vehicles.

United Nations Convention on the Law of the Sea, 1982

http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

Adopted 10 December 1982, Montego Bay

Date of entry into force: 16 November 1994

 

Date of entry into force in Portugal: 3 December 1997

Referred as the “constitution for the oceans” the United Nations Convention on the Law of the Sea aims to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and to promote the equitable and efficient utilization of the marine resources. The Convention establishes the main principles and rules regarding marine scientific research, such as the rights and duties of the States. Marine scientific research activities carried out through unmanned maritime vehicles shall then comply with the Convention, namely Part XIII. The Convention lists the powers and duties of the States over vessels flying its flag. It is argued that these powers and duties shall apply to unmanned maritime vehicles. The Convention also determines the powers of the coastal State regarding the prevention of pollution from vessels. These provisions are to be applicable, in principle, to unmanned maritime vessels. The legal regime of surveillance activities at sea is also regulated within the Convention and depends on the maritime area where the operation is carried out. The utilization of unmanned maritime vehicles in surveillance activities is subject to the rules of the Convention established for each maritime area.

Draft Convention on the Legal Status of Ocean Data Acquisition System, Aids and Devices (ODAS), of the Intergovernmental Oceanographic Commission of UNESCO, 1993

http://unesdoc.unesco.org/images/0009/000979/097992eb.pdf

Not yet in force

It has never been subject to adoption. The draft convention establishes several rules applicable to equipment used for the purpose of collecting data and information from the marine environment. It also regulates the legal regime that applies to different maritime zones.