Commentary to article 578. Violation of rules ensuring traffic safety in maritime transport The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the established procedure for maneuvering and movement of vessels in maritime transport, non-compliance with the prescribed speed, requirements for giving sound and light signals, carrying ship lights and signs, deliberate stopping or parking of the vessel in prohibited places, violation of the procedure for towing vessels, as well as failure to comply with the mandatory requirements of the dispatcher -
they entail a fine in the amount of seven monthly calculation indices.
2. Carrying out diving operations in port waters without proper permission or non-compliance with the rules for signaling during these operations -
entails a fine in the amount of ten monthly calculation indices.
Despite the title of the article, Kazakhstan has not adopted specialized Rules for ensuring traffic safety in maritime transport. The concept of maritime transport is also not specified. However, since the administrative jurisdictional powers of applying this article are assigned to the jurisdiction of transport control authorities, it follows that the subject of an offense may be naval vessels, which means that public relations are regulated by the Law of the Republic of Kazakhstan dated January 17, 2002 No. 284 "On Merchant Shipping". This Law defines the legal, organizational, economic and international foundations of public administration in the field of merchant shipping and regulates relations related to the transportation of passengers, baggage and cargo, ensuring safety in maritime transport and environmental protection.
The object of the offense of the commented article is the social and legal relations arising in the field of traffic safety in maritime transport.
The objective side of the offense provided for in part 1 of the article in question is expressed by illegal actions (omissions) and is characterized by the following qualifying features in the form:
1)violation of the established procedure for maneuvering and movement of vessels in maritime transport;
2) non-compliance with the prescribed speed on sea transport;
3) non-compliance with the requirements of sound and light signals in maritime transport;
4) non-observance of ship lights and signs in maritime transport;
5) deliberate stopping or parking of a vessel in prohibited places;
6) violation of the procedure for towing vessels;
7) failure to comply with the mandatory requirements of the dispatcher.
The above acts contain a complete list of qualifying signs of an administrative offense and are not subject to extended interpretation. The mechanism of lawful actions ensuring the safety of maritime transport is set out in the Charter of the Marine Transport Service of the Republic of Kazakhstan, which was approved by Order No. 73 of the Minister of Investment and Development of the Republic of Kazakhstan dated January 30, 2015.
The disposition of the article does not apply to vessels flying the flag of the Naval Forces of the Republic of Kazakhstan and marine units of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan.
The subject of an offense may be only naval vessels that have passed the state registration of vessels and their rights in accordance with the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated February 24, 2015 No. 165. Marine, passenger, cargo and passenger, oil tankers, tugboats, floating drilling rigs, dry cargo ships, floating cranes and vessels of the technical fleet (dredgers and others), as well as vessels that are not small vessels, are subject to registration in the State Ship Registry.
The place of commission of the offense is the sea waters of the Republic of Kazakhstan, which are defined by Article 14 of the Water Code of the Republic of Kazakhstan dated July 9, 2003 No. 481. The waters of the Caspian and Aral Seas within the State border of the Republic of Kazakhstan, unless otherwise provided by international treaties ratified by the Republic of Kazakhstan, include the waters of the Caspian and Aral Seas.
The subjects of the offense provided for in part 1 of the article under study are individuals, namely, the crew of a marine vessel, whose responsibility is to ensure traffic safety in maritime transport.
Based on article 22 of the Law of the Republic of Kazakhstan dated January 17, 2002 "On Merchant Shipping", it was determined that the ship's crew includes the ship's captain, other officers of the ship and the ship's crew. The ship's commanding staff includes the ship's captain's assistants, mechanics, electromechanics, radio specialists and doctors. Other specialists may also be assigned to the ship's command staff by the authorized body. The ship's crew consists of persons who are not part of the ship's command staff.
The objective side of the offense provided for in part 2 of the analyzed article is expressed by illegal actions (omissions) and is characterized by two qualifying signs in the form of:
1) carrying out diving operations in port waters without proper permission;
2) non-compliance with the rules of signaling during diving operations in port waters.
The mechanism of diving operations in the seaports of the Republic of Kazakhstan is set out in paragraphs 137-139 of the Rules of Navigation and Parking of Vessels in the Seaports of the Republic of Kazakhstan and on approaches to them, approved by the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated February 24, 2015 No. 162.
Diving operations are carried out in the port during the daytime and only by order of the captain of the seaport. All vessels, boats and dinghies, when passing the diving site, reduce their speed to acceptable limits in advance and take special care. It is not allowed to lower the anchor at the diving site. In case of rearrangement of vessels in the port in the area of diving operations, the dispatcher on duty warns the vessel engaged in diving operations in advance, no later than 1 hour in advance.
The rules and list of signaling, including during diving operations, were approved by Appendices No. 1 and No. 2 of the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated February 24, 2015 No. 162.
The subjects of the offense provided for in paragraph 2 of this article are individuals, namely the crew of a marine vessel or seaport, who are appointed responsible for performing diving operations.
The subjective side of both parts of the commented article can be expressed in the form of direct intent or a careless form of guilt.
The head of the transport control body and his deputies, heads of territorial transport control bodies and their deputies have the right to consider cases of administrative offenses provided for in Article 578 of the Administrative Code and impose administrative penalties on behalf of the transport control bodies (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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