Federal Court case: Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle Lately On Board The Ship ‘Offshore Guardian’ [2020] FCA 273 (9 March 2020)
This is an interesting example of new technology escaping definitions in existing legal frameworks, in this case the Admiralty Act 1988. (And an example of a very long case name – itself perhaps an omen of the trouble of an in rem action against something that turned out not be what the plaintiff wanted it to be.)
The question is whether a “remote operated vessel” (ROV) is a “ship”? The plaintiff in this case sought to arrest the ROV under admiralty law. But if not a “ship”, the arrest warrant is invalid.
The ROV in question was an under-sea remotely operated submersible, working up to 2,000 metres below the surface of its host ship to which it is tethered by an umbilical and from which controlled. It’s a little over 2 metres long and 1 metre wide, has a payload of some 200kg, and propelled by thrusters to a speed of 3.5 knots.
In the Act, a “ship” is defined (emphasis added) as:
“a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved, and includes:(a) a barge, lighter or other floating vessel;(b) a hovercraft;(c) an off-shore industry mobile unit; and(d) a vessel that has sunk or is stranded and the remains of such a vessel;but does not include:(e) a seaplane;(f) an inland waterways vessel; or(g) a vessel under construction that has not been launched.”
At face value (as the plaintiff argued), the ROV might seem to be “a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved”.
Nonetheless, drawing on a wealth of historical precedents (which are perhaps not always apt in determining whether new technology will fit within an old concept) that variously examined the meaning of ship or vessel what it means to “navigate”, the Court found that the ROV “lacks the usual characteristics of a ship”, including because it is not buoyant nor displaces water, it is usually itself cargo on its host ship until launched, navigated and winched down to the depths, and only has limited self-propulsion, it is small, and is not actually registered as a ship. Therefore, in an exercise of statutory construction, the ROV was determined not to be a “ship”, and not subject to arrest.
Key takeaway: The law can remain out of step as new technology develops. Check carefully before you start whether your technology is going to be a square peg in a round hole.
