Comment to article 588. Violation of the rules for investigating accidents and transport accidents involving ships, including small vessels The Code of the Republic of Kazakhstan on Administrative Offences
1. Failure by the ship's captain, shipowner, or an official of hydraulic structures to provide information to the transport control authorities about an emergency involving a marine transport vessel or a river transport vessel -
entails a fine for individuals and officials in the amount of ten, for small businesses - in the amount of twenty, for medium-sized businesses - in the amount of thirty, for large businesses - in the amount of forty monthly calculation indices.
2. Failure of the skipper or shipowner to provide information to the transport control authorities about a traffic accident involving a small vessel -
entails a fine for individuals and officials in the amount of five, for small businesses - in the amount of ten, for medium-sized businesses - in the amount of twenty, for large businesses - in the amount of thirty monthly calculation indices.
3. Failure to provide or untimely provision, at the request of the body or official conducting the investigation of an accident or transport accident, of materials, certificates, explanatory notes, extracts from ship's documents or other information necessary for the investigation, -
entails a fine for individuals in the amount of five, for officials in the amount of ten, for small businesses in the amount of twenty, for medium-sized businesses in the amount of thirty, for large businesses in the amount of forty monthly calculation indices.
The general object of the offense provided for in the commented article is the social and legal relations that arise when observing the rules that ensure the safety of ship operation. The generic object is the legal relations that arise in case of accidents and transport accidents with ships, including small vessels.
An emergency is an event with a vessel that led it to disaster and entailed partial or complete loss (loss) of seaworthiness, damage by a vessel to another vessel(s), navigation equipment, shore facilities, underwater cable, underwater pipeline, loss or damage by a vessel to a towed object.
The objective side of the offense provided for in part 1 of the article in question is expressed by illegal actions in the form of failure to provide information by the ship's captain, shipowner, and an official of hydraulic structures to the transport control authorities.:
1) about an emergency with a marine transport vessel;
2) about a traffic accident involving a river transport vessel.
The violations indicated by the first qualifying feature of the first part of the commented article are essentially aimed at non-compliance or non-compliance with the Rules for Investigating Accidents involving ships developed by the Ministry of Investment and Development of the Republic of Kazakhstan in accordance with subparagraph 55-12) of paragraph 3 of Article 4 of the Law of the Republic of Kazakhstan dated January 17, 2002 "On Merchant Shipping".
The Rules for investigating Accidents with ships (Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated February 23, 2015 No. 147) determine the procedure for investigating accidents with ships during navigation or at anchor. The purpose of investigating accidents involving ships is to determine the causes of accidents and take measures to prevent them in the future.
The seagoing vessels specified in part 1 of the article under consideration should be understood as seagoing vessels:
1) under the National flag of the Republic of Kazakhstan;
2) under the flag of a foreign state during their navigation or parking in the territorial and internal waters of the Republic of Kazakhstan.
The norm does not apply to vessels flying the flag of the Naval Forces of the Republic of Kazakhstan and maritime units of the border guard service.
The captain of the vessel immediately informs the shipowner about the emergency. If an emergency has occurred in the territorial waters of the Republic of Kazakhstan or in the water area of a Kazakh port, the message is also sent to the port's maritime administration, which immediately notifies the authorized body, the department of the authorized body, the territorial division of the internal affairs bodies and the transport Prosecutor's Office of the emergency. The emergency report must contain the information listed in clause 8 of the Rules for Investigating Accidents involving Ships.
The captain of the vessel, within three days after the arrival of the vessel or its crew at the first Kazakh port, submits the following documents to the port's maritime administration:
1) a detailed emergency report, which is drawn up in any form indicating the circumstances, causes, consequences of the emergency and the persons involved in it.;
2) extracts from ship's documents;
3) explanations of the persons and witnesses involved in the accident;
4) if necessary, the tapes of the recorders, their decryption, a travel chart with a gasket;
5) maneuvering pattern;
6) damage diagrams and drawings;
7) documents related to the emergency, at the request of the maritime administration of the port.
The second qualifying feature of Part 1 of this Article violates the Rules for Conducting Investigations, Classifying and Accounting for Transport Accidents involving Vessels, including Small Vessels, on Inland Waterways, approved by Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 27, 2015 No. 358.
A transport accident is an event involving a vessel that led to disaster and resulted in loss of navigable qualities, damage by a vessel to another vessel(s), navigation equipment, hydraulic structures, and loss of a towed object by a vessel.
The territorial subdivision of the authorized body shall, within 24 hours from the moment of the transport incident, inform the authorized body, the territorial subdivision of the internal affairs bodies and the transport Prosecutor's office of information about the transport incident in accordance with the requirements of the Rules for Conducting Investigations, Classifying and Accounting for Transport Accidents involving Vessels, including Small Vessels, on Inland Waterways.
In the event of a transport accident, the captain of the vessel, the skipper, the shipowner, officials of hydraulic structures, regardless of the form of ownership and departmental affiliation:
1) within 24 hours from the moment of the traffic accident, the traffic accident is reported to the territorial subdivision of the authorized body;
2) within 48 hours from the moment of the transport accident, they compile detailed information about the transport accident and submit it to the territorial subdivision of the authorized body, on the basis of which the registration of the transport accident is carried out.
The subjects of the offense under paragraph 1 of this article are directly indicated in the disposition of the article: the captain of the vessel, the shipowner, officials of hydraulic structures. Moreover, the subjects of the offense in the status of officials and legal entities are subject to administrative responsibility in accordance with the requirements of Articles 30 and 33 of the Administrative Code .
The ship's captain is the person responsible for managing the ship, including navigation, taking measures to ensure the safety of navigation, environmental protection, maintaining order on the ship, and preventing harm to the ship, people on board, and cargo (art. 29).
Shipowner is a person who operates a vessel on his own behalf, regardless of whether he owns the vessel or uses it on another legal basis (paragraph 24 of Article 1).
Hydraulic engineering structures are engineering structures used for water resources management, water supply to water users, water supply and sanitation, and prevention of harmful effects of water (subparagraph 4, paragraph 2).
The objective side of the offense provided for in part 2 of the article in question is expressed by unlawful omissions in the form of failure by the skipper or shipowner to provide information to the transport control authorities about a traffic accident involving a small vessel.
The concept of a boatmaster was given by the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated April 17, 2015 No. 457 "On approval of the Rules for certification of boatmasters for the right to operate a small vessel". Boatmaster of a small vessel is a person who manages a small vessel, regardless of whether he owns a small vessel or operates it on another legal basis, and has the appropriate certificate. A navigation instructor is equivalent to a skipper.
The subjects of the offense under part 2 of this article are individuals and officials, as well as legal entities in the form of small, medium and large enterprises. The disposition of the article indicates that only boatmasters and shipowners can be subjects of an offense.
The objective side of the offense provided for in part 3 of the article under study is expressed by illegal actions (omissions) in the form of failure or late provision of materials, certificates, explanatory notes, extracts from ship's documents or other information necessary for the investigation of an accident or a transport accident at the request of the body or official conducting the investigation.
Information about a traffic accident contains the following information:
1) date and place of the traffic accident, information about the originators (position, surname, first name, patronymic, and for witnesses - address of residence);
2) basic information about the vessel and hydraulic structure (name, type, capacity, load capacity, dimensions, type of cargo, and others);
3) information about the participants in the traffic accident (position, age, special education, general work experience in water transport, in command positions and positions held, work diploma or certificate, date of receipt and by whom issued);
4) hydrological characteristics of the site where the traffic accident occurred, weather conditions, visibility, dimensions of the ship's course and their compliance with the declared ones, the presence of navigation signs in regular places;
5) assessment of actions before a traffic accident and circumstances related to it;
6) the circumstances of the traffic accident (a detailed description of the incident indicating the sequence of all maneuvers, speed, orders, commands, signals, etc.);
7) subsequent actions of the skipper or crew, including actions to eliminate the consequences of a traffic accident, rescue people and cargo;
8) the number of injured or dead people, their surnames, first names, place of residence, year of birth;
9) damage to the hull, mechanisms, propellers, steering devices, which are designed in any form;
10) consequences of damage (flooding of compartments, loss or damage of cargo, environmental pollution, possibility of movement, etc.);
11) the date and signatures of the originators of the information about the traffic accident.
Information about a traffic accident involving hydraulic structures is processed with the participation of representatives of their owners. In the case of two or more participants in a traffic accident, information about the traffic accident is compiled by them jointly. If the participants in a traffic accident disagree about its causes and consequences, information about the traffic accident is compiled separately.
The subjects of the offense under part 3 of the commented article are the persons specified in parts 1 and 2 of art. 588 of the Administrative Code.
The subjective side of all parts of the commented article can be expressed in the form of direct intent or a careless form of guilt.
They have the right to draw up protocols on administrative offenses provided for in all parts of Article 588 of the Administrative Code and impose administrative penalties.:
1) heads of the transport control body and its deputies, heads of territorial transport control bodies and their deputies (Clause 1, Part 2, Article 691 of the Administrative Code);
2) authorized officials of the transport control authorities (paragraph 2 of Part 2 of Article 691 of the Administrative Code).
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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