4 August 2020
Underwater drones, also known as remotely operated underwater vehicles or simply ‘ROVs’, play an important role in various Australian industries, including the oil and gas industry.
This article provides a short introduction to just one aspect of the treatment of ROVs in Australian law: whether ROVs may be classified as ‘ships’ for the purposes of the arrest procedures available in the admiralty jurisdiction of the Federal Court of Australia. It summarises the decision of Colvin J in Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard 1702 Remotely Operated Vehicle Lately on Board the Ship ‘Offshore Guardian’ [2020] FCA 273.
Guardian Offshore AU Pty Ltd v Saab Seaeye Leopard
Saab Seaeye Ltd manufactures an ROV called the ‘Seaeye Leopard’, pictured above. Saab Seaeye describe their ‘Leopard’ as ‘a versatile system capable of performing a range of work tasks in even the harshest of environments at depths of up to 3000m’. The Leopard is deployed from a ship, from which it is winched underwater. It remains connected to that main vessel by an umbilical that provides power, and tether and control mechanisms.
Guardian Offshore commenced proceedings in the Federal Court of Australia in the Court’s admiralty jurisdiction. The proceedings were brought in rem against a Leopard ROV. In January 2020, following Guardian Offshore’s request, the ROV ‘Saab Seaeye Leopard 1702 Remotely Operated Vehicle’ was arrested at DWS’ Welshpool site in Western Australia by an Admiralty Marshall.
The arrest of ships is familiar to the Federal Court’s admiralty and maritime practice area. The Court enjoys federal jurisdiction for actions in rem under section 10 of the Admiralty Act 1988 (Cth). This means that the Court has authority to decide claims brought directly against the res—the thing e.g. a “ship”—rather than against a person.
This case involved a general maritime claim, which is a typical basis for invoking the Court’s admiralty jurisdiction. What made this unusual was the character of the (contended) ”ship”.
DW Subsea Pty Ltd brought an application challenging the Court’s jurisdiction on the basis that the ROV is not a ‘ship’, among other things.
Are ROVs ships?
The Court had regard to principles of statutory construction in considering whether an ROV was a ‘ship’ within the meaning of the following definition in s 3 of the Admiralty Act:
ship means 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.
Colvin J quoted Allsop J in Elbe Shipping SA v The Ship ‘Global Peace’ (2006) 154 FCR 439, [74], who said that such a provision ‘should be interpreted liberally and without imposing limitations not found in the express words’. This is necessary to give effect to the purpose of the Admiralty jurisdiction to arrest “ships”, which, being mobile, can maneuver through the jurisdiction of various countries.
After reviewing relevant authorities, Colvin J summarised that the authorities ‘eschew any attempt at a comprehensive definition of the characteristics of a vessel used in navigation by water. They reveal that the terminology is not confined to vessels that are used to transport cargo or passengers… the cases tend to review the purpose, attributes and capabilities of the structure in issue and then draw a conclusion by reference to all of those matters as to whether the structure meets the definition’: [78], [80].
Ultimately, the Court concluded that the ROV was not a ‘ship’ within the meaning of the Admiralty Act because it ‘lacks the usual characteristics of a ship as that term is used as a matter of ordinary parlance’: [82]. He explained: ‘[t]he ROV does not look like a vessel used in navigation and in most respects does not act like a vessel used in navigation. It is a submersible piece of equipment, a vehicle for undertaking remotely-controlled activities underwater. When deployed it forms part of the equipment of the main vessel. It is not itself a vessel used in navigation’.
However, in order to reach this view, the Court had to trawl through numerous authorities in Australia and elsewhere and examine the nature and status of numerous “structures” as being “ships” (or not) according to Maritime law. This included an assessment of flying boats, barges, floating gas platforms and a Canadian case involving an uncrewed submersible used for logging, which had been arrested. It is clear that this examination did not yield consistent or conclusive judicial treatments in relation to these (in some cases) unusual craft. It is also clear that the precise configuration, capabilities and characterisation of ROVs – including how or for what purpose they are used – is relevant to the Court’s assessment.
Why this matters
This was an interlocutory decision of a single judge of the Federal Court. Future courts considering the status of ROVs may follow this decision even if they are not bound by the decision. On the other hand, it is possible another court to consider that an ROV of different characteristics to the Seaeye Leopard ought to receive different treatment under the Admiralty Act.
If ROVs are not ‘ships’, they will not be amenable to the arrest procedures available in the courts’ admiralty jurisdiction. Individuals who assert a claim against another with some proprietary interest in an ROV will need to rely on a different procedure to vindicate their rights. For example, an ROV may be subject to the personal property security regime effected by the Personal Property Securities Act 2009 (Cth), which may provide alternative security for creditors of entities that operate ROVs.
For now, operators of ROVs, and entities in commercial relationships with operators of ROVs, should not assume that an ROV may be arrested under the Federal Court’s admiralty jurisdiction in the event of a dispute. However, as underwater technologies continue their rapid advances in terms of automation, propulsion and construction, the question remains open as to the proper characterisation of specific technologies, and whether future cases will continue to challenge the current legal definitions.
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Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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