Chapter 4: The RAN and the Rules

The last chapter stopped deliberately just short of the warship. For civil shipping the chain of obligation is complete, and it ends in enforceable law. The Convention is put into domestic legislation, and a merchant master who breaches the Rules has broken the law of the flag state. The warship sits at a different point in that chain, and the difference is sharp enough to raise a fair question. An international convention binds states. A state enforces it through a civil regime aimed at its merchant fleet. So what exactly compels the bridge of a warship, when that warship stands, by long-settled international law, outside the reach of almost everyone else’s jurisdiction? This chapter answers that. And the answer matters more for a warship than the question suggests, because the reasons a warship obeys the Rules also set the standard she is held to when she does.

The answer, in two parts

The first part of the answer is that the navy binds itself, and does so in the firmest terms. The professional doctrine an OOW is trained on does not treat the Rules as advisory for a warship. The Admiralty Manual of Navigation states that when operating at sea the Rules are to be strictly adhered to, subject only to the supplementary tactical instructions that govern manoeuvring between allied warships (BR45 Vol 4, para 0124h). It describes the proper and timely application of the Rules as the primary means of preventing collision at sea (BR45 Vol 4, para 0127). A warship’s compliance is therefore not a matter of the OOW’s discretion. It is mandated from inside the service, through doctrine and through the Commanding Officer’s orders, and it carries the full weight of a lawful command. The external enforcement that disciplines the merchant fleet is simply replaced, for the warship, by internal command authority.

DRAFTING ISSUE: RN doctrine and the RAN instrument

The Admiralty Manual of Navigation (BR45) is shared professional doctrine across the Royal Navy and the Royal Australian Navy. The passages cited here state the requirement in the Manual’s own (Royal Navy) voice, referring to RN policy and RN warships. The principle holds identically for the RAN: the service binds its own ships to the Rules by command authority, not by civil law. The precise Australian instrument that mandates it, the relevant Defence or RAN navigation publication or instruction, should be cited here in place of this note. It is named on purpose rather than guessed at, because a sourcing claim about which authority binds an Australian warship is exactly the kind of statement that needs the actual reference, and Moses holds that reference. [Insert RAN authority.]

The second part of the answer is the one that should stay with an OOW longest, because it does not depend on any instrument at all. The Rules work only because they make every vessel predictable to every other, as Chapter 1 set out. That system breaks the instant any participant opts out of it. A warship that manoeuvres unpredictably is not made safer by her immunity, her armament or her tonnage. She is exactly as dangerous to the bridge watching her as a merchant ship behaving the same way. And given the closing speeds a warship can generate, often more so. Sovereign immunity protects a warship from another state’s courts. It gives her no protection at all against a collision. The Rules are about avoiding the collision, not about the courts. The Manual’s own statement of purpose is the same one this guide opened with: the aim of the Rules is to make the actions of other ships as predictable as possible (BR45 Vol 4, para 1003). A warship that exempted herself in practice would be defeating the very system her safety depends on, and would gain nothing for it. The legal answer tells you the warship must comply. This one tells you why compliance is in her own interest, even if no one could ever make her.

The standard a warship is held to

Once it is clear that a warship is fully inside the Rules, a further point follows that an OOW should not miss. She is generally held to a higher practical standard within them, not a lower one. The Rules set obligations that every vessel must meet, but several of them are written in terms of what is reasonable in the circumstances. And the circumstances of a warship include resources most merchant ships do not have. A warship typically keeps a full bridge team, posts dedicated lookouts by day and night and in restricted visibility, and runs radar and plotting capability of a standard the Rules assume only in general terms (BR45 Vol 4, para 0127). When Rule 5 requires a proper lookout by all available means appropriate to the circumstances, the available means on a warship’s bridge are considerable. So the standard of lookout she is expected to keep rises accordingly.

This connects directly to Rule 2 and the ordinary practice of seamen, which Chapter 10 treats in full. Rule 2 holds every vessel to the standard of good seamanship. It refuses to let mere compliance with the letter of a rule excuse a poor decision. The Manual puts it bluntly: slavish obedience to the Rules is no defence where it would be seamanlike to depart from them, and such a departure is itself in accordance with the Rules (BR45 Vol 4, para 1003d, reflecting Rule 2). What good seamanship requires is measured against what a competent mariner in that vessel, with those means, could and should have done. For a warship the means are high, so the expectation is high. The Rules set a minimum every vessel must reach. The better-found and better-manned the ship, the further above that minimum good seamanship expects her to operate. Immunity does not lower the standard. If anything, the warship’s resources raise it.

Manoeuvring inside a task group

The hardest part of the warship picture is that a warship often has to obey two systems at once. When warships operate together, their manoeuvring relative to one another is governed by allied tactical instructions, the NATO special rules contained in ATP-1. These exist purely to govern interactions between warships and military aircraft, and, for the avoidance of doubt, they do not apply to merchant or civilian vessels at all (BR45 Vol 4, Chapter 10, nomenclature, and Section 9; see also para 0124h). Inside a force, then, ships manoeuvre to tactical signals and to the direction of the officer in tactical command, and a junior OOW can be forgiven for feeling that the COLREGs have somehow been suspended. They have not. The tactical instructions are a supplementary layer laid over the Rules, for the specific, closed case of warships working with warships. They do not switch the COLREGs off, and the duty to avoid collision underneath them never lifts.

The principle to hold onto is that the supplementary layer is bounded by who is in the encounter. Between the ships of the force, the tactical instructions organise the manoeuvring, but they assume the collision-avoidance obligation rather than replace it. The moment a vessel outside the force enters the picture, a merchant ship crossing the formation, a fishing vessel, any civilian craft, the tactical instructions have nothing to say about her, because by their own terms they do not apply to her. The warship’s conduct toward that vessel is governed by the plain COLREGs, exactly as it would be for any power-driven vessel. A warship in company is therefore under two systems at once: bound to her consorts by tactical instruction, and bound to the rest of the world by the Rules. Confusing the two, and treating a merchant ship as though she were part of the tactical picture, is exactly the error that puts a warship in the wrong.

Foreign warships and CUES

The last case is two sovereign-immune warships meeting, and it exposes a real gap. Both are bound by the COLREGs, because the Rules apply to all vessels regardless of flag (MISCPUB 0127, Rule 1(a)), so the basic obligation is intact. But the allied tactical instructions that would organise a manoeuvre between friendly warships do not necessarily apply between warships of different and unaligned states. That can leave two professional bridges correct on the COLREGs but with no shared supplementary language for the kind of close, deliberate manoeuvring that warships do. Into that gap comes the Code for Unplanned Encounters at Sea. CUES is a product of the Western Pacific Naval Symposium, approved in its current form at Qingdao in April 2014 (CUES, WPNS, Version 1.0, 2014). It provides agreed safety procedures and manoeuvring instructions for naval ships and naval aircraft of different states that encounter one another in an unplanned manner (CUES, para 1.1). Australia is among the Western Pacific Naval Symposium navies, and CUES is distributed to WPNS members (CUES, distribution note), so it is part of the RAN’s own toolkit for exactly these meetings.

Two things about CUES need to be understood precisely. The first is its legal character. Navies that adopt CUES do so on a voluntary and non-binding basis (CUES, para 1.4.1). CUES does not constitute an international agreement or treaty, and is accordingly not legally binding under international law (CUES, para 1.6.1). It is a common standard, not a treaty obligation, and it cannot override the COLREGs or anything else binding. The Code itself states that it does not supersede rules applicable under international agreements, treaties or international law (CUES, para 1.5.2). It also states that nothing in it absolves a Commander or Master from the consequences of neglecting any precaution required by the ordinary practice of seamen or by the special circumstances of the case (CUES, para 1.4.2). That is the same reservation Rule 2 makes within the COLREGs themselves. CUES sits alongside the Rules as a shared professional standard that makes two unfamiliar warships more predictable to each other. It is not a substitute for them. The second thing to understand is the reason CUES exists at all, which is the thread that runs through this entire guide. CUES is the predictability principle reaching into the one corner the binding rules leave thin: the unplanned encounter between warships of states that share no other framework. It is the same idea as the COLREGs, built for the same reason. An OOW who has understood why the COLREGs are written as they are will understand at once why navies reached for something like CUES to cover what the COLREGs could not.

A short worked case: the warship under two systems

Picture an RAN warship stationed in a task group on a steady course and speed. A merchant ship is developing on a crossing bearing from the group’s starboard side. Toward her consorts the warship is manoeuvring to tactical instruction, holding station under the officer in tactical command. Toward the merchant ship she is nothing more or less than a power-driven vessel in a crossing situation, and the COLREGs govern that encounter in full. The merchant ship is on her own starboard side, so the warship is the give-way vessel and owes the merchantman early and substantial action to keep clear, tactical station or not. The hard judgement is when keeping station and keeping the Rules pull in different directions. Here the order of priority is not in doubt. The duty to avoid collision with the vessel outside the force is the governing obligation. The tactical requirement yields to it, and the OOW reports and acts. There is a related and subtler trap worth flagging now and developing later. A warship manoeuvring within a formation can, by her own movement, create a situation she then has to resolve. She cannot shelter behind a stand-on role she manufactured by her own helm. That principle is treated where it belongs, in the analysis of how situations develop and in Rule 2 (Chapters 8 and 10). The lesson of this chapter is the simpler one underneath it. A warship is never less bound by the Rules than the ship she is meeting, and usually she is held to more.

See also: Ch 3 (how the Rules reach civil shipping, and the enforcement chain a warship sits outside), Ch 8 (how situations develop, including manufactured stand-on positions), Ch 10 (Rule 2, good seamanship, and the standard a well-found ship is held to).