Commentary to article 583. Violation of the rules of navigation on inland waterways The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation by shipmasters of ships (except small ones) of the rules of movement and giving sound and light signals, carrying ship lights and signs, as well as damage to port and hydraulic structures and equipment - entail a fine in the amount of five monthly calculation indices.
2. Exceeding the set speed by boatmasters of small vessels and other floating objects, non-compliance with the requirements of navigation signs, deliberate stopping or parking of the vessel in prohibited places, damage to hydraulic structures or technical means and signs of navigational and navigational conditions, violation of the rules of maneuvering, giving sound signals, carrying on-board lights and signs -
they entail a warning or a fine in the amount of two monthly calculation indices or deprivation of the right to operate a small vessel for up to one year.
3. Violation by boatmasters of small vessels of other rules of use of small vessels -
entails a fine in the amount of one monthly calculation index.
The general object of the offense of the commented article is the social and legal relations arising in the field of ensuring the safety of movement (navigation) of vessels, including small vessels.
Vessel - an inland waterway vessel, a self-propelled or non-self-propelled floating structure used for navigation purposes, including a river-sea navigation vessel, a ferry, a technical fleet vessel (dredging and dredging shells, a floating crane and other similar technical structures), as well as other vessels that are not small vessels.
A small vessel is a vessel with a length of not more than twenty meters with a permissible number of people on board of not more than twelve people, except for vessels built or equipped for fishing, cargo transportation, towing, prospecting, exploration and mining, construction, track, hydraulic engineering and other similar works, pilotage and icebreaking, as well as implementation of measures to protect water bodies from pollution and clogging.
The objective side of the offense provided for in part 1 of the article in question is expressed by illegal actions (omissions) in the form of violations by the skipper of vessels (except small ones):
1) rules of movement and giving sound and light signals;
2) carrying ship lights and signs;
3) damage to port and hydraulic structures and equipment .
Paragraph 155 of the Rules of Navigation on Inland Waterways, approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 No. 537, provides for signals used by vessels when they are in full view of each other, have the following meanings:
1) one short sound – "I'm changing my course to the right";
2) two short sounds – "I'm changing my course to the left";
3) three short sounds – "My engines are running in reverse";
4) four short sounds – "I intend to make a turn", "I intend to stop";
5) one short and one long sound – "Please increase the speed";
6) one long and one short sound – "Please reduce the speed";
7) one long, one short and one long sound – "Please get in touch";
8) horizontal movement of the wave flag during the day, white fire at night "Please stop";
9) one long, one short, one long and one short sounds – "I understand you."
A passenger ship makes one long sound when approaching a pier or pier, one long and three short sounds when departing, etc.
The types and mechanism of using lights, signs and signals of small and sailing vessels are provided for in paragraph 3 of the above rules.
The subjects of part 1 of the offense are individuals, namely, shipmasters (except small ones), who are directly indicated in the disposition of part one of the article under study.
The objective side of the offense provided for in part 2 of the commented article is expressed by illegal actions (omissions) in the form of violations by boatmasters of small vessels and other floating objects.:
1)the set swimming speed;
2) non-compliance with the requirements of navigation signs;
3) deliberate stopping or parking of a vessel in prohibited places;
4) damage to hydraulic structures;
5) damage to technical means and signs of navigational and navigational conditions;
6) violation of the rules of maneuvering, giving sound signals, carrying side lights and signs.
The rules of navigation on inland waterways, approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 No. 537, do not provide for a specific speed of movement of vessels, but paragraphs 50 and 51 provide for the speed selection procedure. When choosing a safe vessel speed, the following factors are taken into account:
1) the ratio of the dimensions of the track and the vessel;
2) the presence and intensity of vessel traffic in the area;
3) maneuverability of the vessel, especially the distance required for a complete stop of the vessel, and maneuverability in these conditions;
4) the direction and strength of the current, wind and waves;
5) the state of visibility and the presence of background lighting, both from coastal and from own lights, the presence of navigation signs.
Vessels using radar, when choosing a safe speed, additionally take into account:
1) Characteristics, effectiveness and limitations of radar equipment;
2) any limitations imposed by the radar range scale used;
3) the influence of conditions of the water surface, meteorological factors, as well as other sources of interference on radar detection;
4) the possibility that the radar will not detect small vessels, ice and floating objects, signs of navigation equipment, low shores at a sufficient distance;
5) the number, location and movement of vessels detected by radar.
When moving on waterways with a lateral navigation equipment system, vessels follow the navigation course, guided by the signs of the navigation situation. The navigation situation is set so that the skipper can ensure the movement of the vessel or train from sign to sign, observing the ratio of the dimensions of the vessels or trains and the waterway.
The sanction of the article provides for three types of administrative penalties in the form of:
1) Warning;
2) a fine in the amount of two monthly calculation indices;
3) deprivation of the right to operate a small vessel for a period of up to one year.
But an arbitrary choice of punishment is partially excluded. When making a decision to impose an administrative penalty under the commented article, the above-mentioned officials must take into account the requirements of part 2 of Article 43 of the Administrative Code, which states that "In the absence of circumstances provided for in Article 57 and the note to Article 366 of this Code, the court (judge), the body (official) imposing the administrative penalty is obliged to apply a warning provided for in the relevant article of the Special Part of this Code."
The subjects of Part 2 of the offense are individuals, namely boatmasters of small vessels and other floating objects.
The objective side of the offense provided for in part 3 of the commented article is expressed by one qualifying feature in the form of a violation by boatmasters of small vessels of other rules for the use of small vessels.
The peculiarity of the objective side of the offense is that it establishes responsibility for specific violations that are not listed in this article and other articles of Chapter 30 where the subject of protection and protection are the normal functioning of courts, including small vessels. The disposition of this part of Article 583 of the Administrative Code is blank, and specific violations are provided for in the Rules of Navigation on Inland Waterways approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 No. 537.
Article 25 of the Administrative Code establishes that "An administrative offense is an unlawful, culpable (intentional or negligent) action or omission of an individual or an unlawful action or omission of a legal entity for which administrative liability is provided for by this Code."
In our case, the articles of the special part of the Administrative Code list and establish administrative penalties for violations, non-compliance with certain requirements of the Rules of Navigation on Inland Waterways. However, a number of offenses remained unaccounted for. All administrative offenses in courts, including small ones, for which the articles of the Administrative Code do not explicitly provide for administrative liability, are anonymously combined in the norms of the commented article.
For example, paragraph 5 provides for rules for diverging and overtaking high-speed vessels, the violation of which is not provided for in other articles of the Administrative Code.
The subjects of part 3 of the offense are individuals, namely the boatmasters of small vessels, who are directly indicated in the disposition of the article.
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 impose administrative penalties for administrative offenses provided for in Article 583 of the Administrative Code.:
1) in part 2 - judges of specialized district and equivalent administrative courts (Part 1 of Article 684 of the Administrative Code);
2) according to part 1 - heads of the authorized body in the field of transport and communications, its territorial divisions and their deputies (part 1 of art. 691 of the Administrative Code);
3) according to parts 1 and 3 - the head of the transport control body and his deputies, heads of territorial transport control bodies and their deputies; (paragraph 1 of part 2 of Article 691 of the Administrative Code ).
They have the right to draw up protocols on administrative offenses:
1) under part 2 – authorized officials of transport control bodies (paragraph 26 of Part 1 of Article 804 of the Administrative Code );
2) in part 3 - officials of the authorized body in the field of transport and communications (paragraph 1, part 3, Article 804 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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