Commentary on Article 357. Failure by a Ship's Captain to Render Assistance to Persons in Distress under the Criminal Code of the Republic of Kazakhstan
1. Failure by a ship's captain to render assistance to persons in distress at sea or on another waterway, where such assistance could have been rendered without serious danger to his own ship, its crew and passengers, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
2. Failure by the captain of one of the ships that have collided at sea or on a waterway to take appropriate measures to rescue the other ship, which, through negligence, has resulted in the destruction of the ship or other grave consequences, where such measures could have been taken without serious danger to his own ship, its crew and passengers, —
shall be punishable by a fine in an amount of up to one hundred and twenty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to thirty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
The public danger of the criminal offence under consideration (Part 1 — crime, Part 2 — criminal misdemeanour) lies in the fact that, as a result of the ship's captain failing to fulfil his duties to rescue other ships at sea, or the captain of one of the ships that have collided at sea or on a waterway failing to take appropriate measures to rescue the other ship, the crews and passengers of these ships, as well as the ships themselves, perish. Criminal liability for failure to render assistance to persons perishing at sea has been established by the legislators of many countries.
The criminal offence under analysis belongs to crimes of an international nature (a conventional crime).
The object of the criminal offence commented on is social relations in the sphere of ensuring maritime navigation safety. An additional object is social relations guaranteeing the protection of the life and health of persons in distress at sea or on another waterway.
The place where the criminal offence under consideration is committed is the high seas or a part of the ocean, as well as any other waterway (a navigable canal, port waters, etc.).
The objective element of the criminal offence under consideration consists in the failure of a ship's captain to render assistance to persons in distress at sea or on another waterway, where such assistance could have been rendered without serious danger to his own ship, its crew and passengers. In other words, the objective element of the criminal offence under analysis consists in inaction in the form of failure to render assistance to persons in distress, which the offender is obliged to provide.
The disposition of the criminal offence under consideration is of a blanket nature and does not define the elements of failure to render assistance to persons in distress. In this regard, in order to establish the fact of failure to render assistance to persons in distress, it is necessary to refer to other regulatory legal acts or special rules providing for the obligation of a ship's captain to render assistance to persons in distress at sea or on another waterway, in particular, the 1910 Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea (as amended on 27 May 1967), the 1958 Convention on the High Seas, the 1960 Convention on the Unification of Certain Rules Relating to the Liability Arising from Collisions between Vessels of Inland Navigation, the 1972 Convention on the International Regulations for Preventing Collisions at Sea, the 1974 International Convention for the Safety of Life at Sea, the 1982 United Nations Convention on the Law of the Sea, the International Safety Management Code of 4 November 1993, the Law of the Republic of Kazakhstan dated 17 January 2002 “On Merchant Shipping”, the Order of the Minister of Investments and Development of the Republic of Kazakhstan dated 30 January 2015 “On Approval of the Service Regulations for Ships of Maritime Transport of the Republic of Kazakhstan”, the Order of the Acting Minister of Investments and Development of the Republic of Kazakhstan dated 23 February 2015 “On Approval of the Rules for Investigation of Accidents Involving Ships”, etc.
Thus, pursuant to Article 12 of the 1958 Convention on the High Seas, every State shall require the master of a ship sailing under its flag, without exposing the ship, crew and passengers to serious danger, to render assistance to any person found at sea in danger of being lost; and to proceed with all possible speed to the rescue of persons in distress, if informed that they are in need of assistance. A similar provision is contained in Paragraph 2 of Article 31 of the Law of the Republic of Kazakhstan dated 17 January 2002 “On Merchant Shipping” and Paragraph 77 of Subparagraph 4 of Section 5 of the Service Regulations for Ships of Maritime Transport of the Republic of Kazakhstan, approved by the Order of the Minister of Investments and Development of the Republic of Kazakhstan dated 30 January 2015.
In accordance with Paragraph 78 of Subparagraph 4 of Section 5 of the Service Regulations for Ships of Maritime Transport of the Republic of Kazakhstan, when rendering assistance to a ship in distress, the captain shall take all measures to rescue people. The captain shall take measures to rescue cargo and other property only with the consent of the captain of the ship in distress, who must sign a salvage agreement.
Thus, assistance is the provision of support to persons in distress in order to alleviate their plight and/or rescue them from danger, i.e. activities aimed at ensuring the well-being of people and returning them to a normal and peaceful state.
The term “assistance”, within the meaning of Article 357 of the Criminal Code, has a sufficiently broad meaning; this definition covers any efforts aimed at rescuing persons from danger. These include the issuing of orders and instructions by the ship's captain that are binding on execution, the use of material objects (means and equipment) located nearby, and the application of necessary methods involving the efforts of the crew and other persons to rescue people in distress.
In turn, failure to render assistance to persons in distress means the absence of any actions on the part of the captain to provide the necessary assistance to people who are perishing.
Assistance must be real and timely, that is, actions to rescue people must be carried out on time, at the necessary moment. In circumstances of force majeure of a natural or man-made nature (storm, fire, etc.), or when the ship's captain and crew themselves are in a helpless condition, that is, when there is no actual possibility of rendering assistance to persons in distress, criminal liability under Article 357 of the Criminal Code is excluded.
Persons in distress are people who have found themselves in a life-threatening condition, whose death is inevitable if they are left without assistance. In this regard, it does not matter whether the people are overboard or not, whether they are on a sinking or burning ship or on emergency rescue equipment (lifeboats, rafts), with or without a life belt. The reasons why people found themselves in distress at sea or on another waterway (shipwreck and sinking of a vessel, collision with another vessel or an iceberg, fire on board a vessel, etc.) are of no criminal legal significance.
Victims may be people of different ages, both male and female, of any nationality, and citizens of various States.
The sea is a part of the ocean, that is, a large body of water bounded on one or several sides by land and separated from the ocean itself by islands or elevations of the underwater relief.
According to the Law of the Republic of Kazakhstan dated 6 July 2004 “On Inland Water Transport”, waterways are natural or artificially created communication routes that can be used for navigation purposes. Thus, other waterways include straits, rivers, lakes, reservoirs, canals and port waters.
The disposition of Article 357 of the Criminal Code provides for conditions establishing the general limits of the actual possibility of rendering assistance to persons in distress. Criminal liability is excluded if there was a serious danger to one's own ship, its crew and passengers.
The concept of “serious” means important in content, not insignificant or frivolous, requiring close attention, fraught with important consequences, and dangerous. Accordingly, the term “serious danger”, enshrined in Article 357 of the Criminal Code, should be understood as a danger significant in its content and threatening the occurrence of substantial negative consequences. In the process of rendering assistance to persons in distress, such danger must not exist — a threat of death or harm to the health of those engaged in rescue operations is inadmissible. Accordingly, this may involve a very high probability of falling overboard and drowning, for example, during a storm, or dying from hypothermia in the water, or suffering burns during a fire, or sustaining injuries, bodily harm, etc.
The seriousness of the danger also extends to one's own ship, since an explosion or fire on one's own ship, a collision, the formation of holes in the hull and subsequent sinking, or the loss of stability and seaworthiness may, with a high degree of probability, result in the death of the rescuers themselves.
Actions to render assistance to people in distress at sea or on another waterway involve risks, sometimes very serious ones, for the rescuers themselves. The risk involved in rescuing people and a ship that is perishing is recognised as justified if the following conditions are simultaneously present: 1) it must correspond to the purpose for which it is undertaken; 2) the purpose cannot be achieved through ordinary actions not involving risk; 3) the risk must not develop into the deliberate causing of damage; 4) the objects of the risk must be material objects (Article 36 “Justified Risk”).
If the ship's captain refrains from taking a risk despite having the duty and opportunity to render assistance to people who are perishing, under the pretext of serious danger to his own ship, crew and passengers, when such danger was absent, he shall be subject to criminal liability under Article 357 of the Criminal Code.
The elements of the crime provided for in Part 1 of Article 357 of the Criminal Code are formal in structure. The act shall be deemed completed from the moment when persons who are perishing are discovered or distress signals or other reliable information about persons in distress are received, and the ship's captain fails to render the necessary assistance to them despite having an actual opportunity to do so without serious danger to the ship, its crew and passengers. Adverse consequences in the form of the death of people are not covered by the disposition of the provision. Nevertheless, additional qualification under Article 104 of the Criminal Code “Causing Death by Negligence” is not required. Consequences in the form of harm to the health of victims are also not provided for and, accordingly, there is no need for additional qualification under Article 114 of the Criminal Code “Causing Harm to Health by Negligence”.
The subjective element of the crime provided for in Part 1 of Article 357 of the Criminal Code is characterised by an intentional form of guilt, that is, the ship's captain is aware of the existence of danger to people in distress at sea or on another waterway and of the existing possibility of rendering assistance to them without serious danger to his own ship, crew and passengers; however, he remains inactive, wishing to evade the provision of such assistance.
Motive and purpose, in relation to the crime under examination, have the status of optional elements of the subjective side. Accordingly, they do not affect the qualification of the offence. Motives may vary (concern for the cargo being transported, greed, etc.) and must be taken into account when imposing punishment.
The subject of the crime provided for in Part 1 of Article 357 of the Criminal Code is a special subject, namely, the ship's captain. According to Paragraph 37 of Subparagraph 1 of Section 5 of the Service Regulations for Ships of Maritime Transport of the Republic of Kazakhstan, the captain is the head of the ship's crew, an authorised representative of the shipowner, responsible for the preservation of the ship, the lives of the people on board and the cargo being transported.
The captain exercises command over the ship on the basis of the principle of sole authority and reports directly to the shipowner.
All instructions relating to the activities of the ship are communicated to the captain, who is responsible for their implementation (Paragraph 38 of the above-mentioned Regulations).
The presence of senior officials on board the ship does not release the captain from the responsibility imposed on him for the performance of his duties (Paragraph 39 of the above-mentioned Regulations).
According to Article 35 of the Law of the Republic of Kazakhstan “On Inland Water Transport”, the captain of a ship must be a citizen of the Republic of Kazakhstan whose qualification level meets the established requirements. Qualification requirements for a ship's captain and the procedure for his certification shall be determined by the authorised body.
The ship's captain is entrusted with the management of the ship, including navigation, taking measures to ensure the safety of the ship's navigation, maintaining order on board, protecting the environment, and preventing damage to the ship, the people on board, baggage and cargo.
In the absence of the ship's owner, shipowner, consignor or their representatives, the ship's captain shall act as the representative of the ship's owner, shipowner and consignor when, in cases of necessity, entering into transactions concerning the ship, cargo or navigation of the ship, as well as filing claims in respect of property located on board the ship.
If, in the opinion of the ship's captain, the ship faces imminent destruction, after taking all measures to rescue passengers, he shall permit the crew members to abandon the ship. The ship's captain shall be the last to leave the ship after taking all measures within his power to rescue the ship's logbook, engine room logbook, route charts, ship's seal, documents and valuables.
The ship's owner and shipowner shall not be liable for the ship's captain's violation of the above-mentioned duties.
The regulatory legal acts of domestic legislation governing matters relating to water transport establish that there are captains who do not exercise any administrative powers on specific ships. These may include a port captain, a captain-engineer, the chief captain of a fishing area, a supervising captain (operational duty officer) from the monitoring service, etc. Naturally, such officials cannot be subjects of the crime under analysis.
In the absence of the captain due to illness or any other reason, his duties shall be performed by the chief mate. He is the captain's first deputy and is responsible for organising the general shipboard service on the vessel; when necessary, he must always be ready to replace the captain and assume command of the ship. In the absence of the captain, the chief mate independently carries out the shifting of moorings and the movement of the ship in port waters, calling a pilot and port tugs when necessary.
According to Subparagraph 10) of Article 1 of the Law of the Republic of Kazakhstan “On Inland Water Transport”, a vessel is an inland waterway vessel that is not a small vessel, a self-propelled or non-self-propelled floating structure used for navigation purposes, including a river-sea vessel, ferry, and technical fleet vessel (dredging and cleaning equipment, floating crane and other technical structures of a similar nature).
Self-propelled structures, that is, structures whose source of movement is their own engine or wind power (a sailing vessel), include hovercraft, hydrofoil vessels, mixed-type vessels (river-sea), etc.
Non-self-propelled structures, that is, structures incapable of autonomous navigation, include barges, lighters, floating docks, floating cranes, as well as technical and auxiliary equipment — dredging and cleaning equipment, cable-laying vessels, etc.
In accordance with Subparagraph 22) of Article 1 of the Law of the Republic of Kazakhstan dated 17 January 2002 “On Merchant Shipping”, a vessel is a self-propelled or non-self-propelled floating structure, including a non-displacement vessel and a seaplane, used for the purposes of merchant shipping.
Thus, a vessel should be understood as a structure of any type capable of navigating, that is, one that can be used as a means of transportation on water to achieve certain objectives (merchant shipping, transportation of passengers and cargo, development of mineral resources of the seabed, extraction of aquatic biological resources, conducting scientific research, hydraulic engineering works, etc.).
In Part 2 of Article 357 of the Criminal Code, the legislator has provided for liability as an independent criminal misdemeanour for the failure of the captain of one of the ships that have collided at sea or on a waterway to take appropriate measures to rescue the other ship, which, through negligence, has resulted in the destruction of the ship or other grave consequences, where such measures could have been taken without serious danger to his own ship, its crew and passengers.
From the objective side, the criminal misdemeanour provided for in Part 2 of Article 357 of the Criminal Code is expressed in the failure of the captain of one of the ships that have collided to perform actions mandatory for him and necessary to eliminate the danger of the other ship being destroyed. Liability arises provided that there is an actual possibility of rendering assistance without serious danger to his own ship, its crew and passengers.
The duties of a ship's captain are established in Article 12 of the 1958 Convention on the High Seas, Article 31 of the Law of the Republic of Kazakhstan “On Merchant Shipping”, Article 36 of the Law of the Republic of Kazakhstan “On Inland Water Transport”, and Paragraph 81 of the Service Regulations for Ships of Maritime Transport of the Republic of Kazakhstan, approved by the Order of the Minister of Investments and Development of the Republic of Kazakhstan. According to these provisions, in the event of a collision with another ship, the captain shall: a) ask the captain of the ship with which the collision occurred whether assistance is required and, if necessary, render such assistance, provided that this does not pose a serious danger to his own ship, crew and passengers; b) request the name of the ship, its port of registry, its port of departure and destination, and the nature of the damage sustained, and also communicate similar information about his own ship to the nearest port he will call at; c) if, in the captain's opinion, the ship faces imminent destruction, take all measures to rescue the persons on board.
When rescuing people, the captain shall ensure that children, sick persons, women and elderly people are rescued first. The captain shall be the last to leave the ship, having taken all possible measures to rescue nautical charts with plotted courses and other navigational documents reflecting the ship's manoeuvres, as well as the ship's, engine room and radiotelegraph logs, ship's documents and valuables, and the diplomas and certificates of the crew.
Thus, the mandatory actions of the captain of one of the ships that have collided include: asking the captain of the ship with which the collision occurred whether his ship, crew and passengers require assistance, as well as requesting the name of the ship, its port of registry, its port of departure and destination, and the nature of the damage sustained; communicating the above-mentioned information and similar information about his own ship to the nearest port that the ship will call at; rendering assistance to the ship with which the collision occurred, if necessary; rescuing the persons on board if they are threatened with death.
Accordingly, failure to take appropriate measures should be understood as a criminal act in the form of inaction, where the captain of one of the ships that have collided at sea or on a waterway fails to perform the actions provided for by regulatory legal acts governing his professional activities.
At the same time, in accordance with Paragraph 78 of Subparagraph 4 of Section 5 of the Service Regulations for Ships of Maritime Transport of the Republic of Kazakhstan, the captain shall take measures to rescue cargo and other property only with the consent of the captain of the ship in distress, who must sign a salvage agreement.
If the captain of the ship in distress is unable to sign the salvage agreement due to natural disasters or other circumstances, the captain shall obtain his consent to sign the agreement at the first opportunity, and a corresponding entry shall be made in the ship's logbook.
The elements of the criminal misdemeanour provided for in Part 2 of Article 357 of the Criminal Code are material in structure. The act shall be deemed completed from the moment the socially dangerous consequences occur.
The destruction of a ship means significant structural damage to it, which excludes any technical possibility of restoration, or the sinking of a ship where its raising is impossible or impractical.
The concept of “grave consequences” is established in Subparagraph 4) of Article 3 of the Criminal Code.
When establishing the elements of the objective side of the criminal misdemeanour under analysis, law enforcement authorities must, in addition to establishing the very fact that the captain of one of the ships that have collided at sea or on a waterway failed to take appropriate measures, establish a causal relationship between the unlawful actions of the ship's captain and the consequences that have occurred.
The causal relationship is excluded if the ship's captain did not violate the navigation rules and the consequences that occurred were caused by the actions of other factors (weather conditions, unlawful actions of other persons, etc.).
In accordance with Paragraph 23 of the Order of the Acting Minister of Investments and Development of the Republic of Kazakhstan dated 23 February 2015 “On Approval of the Rules for Investigation of Accidents Involving Ships”, the investigation commission shall establish the following as a result of investigating an accident: compliance of the ship, crew, supplies and equipment with the requirements established by the legislation of the Republic of Kazakhstan in the field of merchant shipping; analysis of the navigational situation; the conditions and circumstances under which the accident occurred; the causes that led to the accident, its consequences and classification; assessment of the actions of persons involved in the accident, taking into account the impact of external factors on them, their psychological condition and degree of fatigue; a list of officials whose actions led and/or contributed to the occurrence of the accident, indicating by whom and which regulatory requirements were violated, not fulfilled or not observed; compliance of the actions taken with the established requirements for maritime navigation safety, taking into account justified risk.
Risk shall be recognised as justified if the following conditions are simultaneously present: the risk corresponds to the purpose for which it is undertaken; the purpose cannot be achieved through ordinary actions not involving risk; the risk does not develop into the deliberate causing of damage; the objects of the risk are material objects.
Liability under Part 2 of Article 357 of the Criminal Code arises regardless of who is at fault for the collision of the ships. Failure by the captain of a ship to render assistance to another ship that has suffered as a result of a collision with a third ship or for other reasons does not entail criminal liability.
The subjective side of the elements of the criminal misdemeanour provided for in Part 2 of Article 357 of the Criminal Code is characterised by a negligent form of guilt. However, it should be taken into account that, in relation to the very fact of the captain of one of the ships that have collided at sea or on a waterway failing to take appropriate measures to rescue the other ship, an intentional form of guilt may also be present, in particular indirect intent. At the same time, the very fact that the captain of one of the ships that have collided failed to take appropriate measures to rescue the other ship does not constitute a criminal act and becomes such only if it has resulted in adverse consequences through negligence.
Similarly to Part 1 of Article 357 of the Criminal Code, the subject is the captain of a ship of any class and purpose, or a person performing his duties at the time when the need arose to render assistance to another ship that had suffered in a collision.
It is important to distinguish between the elements of criminal offences provided for in Articles 357 and 119 of the Criminal Code.
Failure to render assistance to persons in distress on a waterway is a special provision in relation to Article 119 of the Criminal Code “Leaving a Person in Danger”. In accordance with Part 3 of Article 13 of the Criminal Code, there is no aggregate of crimes, and the criminal liability of the ship's captain arises only under Article 357 of the Criminal Code.
The actual rendering of assistance by a ship's captain consists primarily in the exercise of his administrative powers in relation to his subordinates. Accordingly, if crew members fail to comply with the captain's orders and instructions to rescue people who are perishing, their inaction should be qualified under Article 119 of the Criminal Code “Leaving a Person in Danger”.
In cases where the ship's captain himself has violated the safety rules governing the movement of maritime or inland water transport (for example, a collision with another ship has occurred) and fails to take appropriate measures to rescue persons in distress, his actions should be qualified cumulatively under Article 344 of the Criminal Code “Violation of Safety Rules for the Movement or Operation of Railway, Air, Maritime or River Transport” and Article 357 of the Criminal Code. For the purposes of qualification, it does not matter whether the victims were passengers and crew members of his own ship or of another ship.
In a situation where the captain of a ship that has itself suffered an accident fails to render assistance to its own passengers and crew, his inaction should be qualified under Article 119 of the Criminal Code “Leaving a Person in Danger”. Leaving people in a condition dangerous to their life and health must be deliberate, provided that the victims had no opportunity to take measures for self-preservation due to their helpless condition. Criminal liability is determined by the fact that the captain was initially obliged, in accordance with the regulatory legal acts governing his professional activities, to take care of the crew members and all persons on board the ship, and that he had an actual opportunity to render assistance to them.
The act provided for in Part 1 of Article 357 of the Criminal Code belongs to the category of crimes of minor gravity.
The act provided for in Part 2 of Article 357 of the Criminal Code belongs to the category of criminal misdemeanours.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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