Commentary to article 586. Violation of the rules for the use of bases (facilities) for parking small vessels The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the standards for basing small vessels at bases (facilities) for parking small vessels, conditions and technical requirements for the safe operation of bases (facilities), as well as the maintenance of small vessels unregistered in accordance with the established procedure at these bases (facilities) -
They impose a fine on individuals and officials in the amount of ten, on small businesses - in the amount of fifteen, on medium-sized businesses - in the amount of twenty, on large businesses - in the amount of thirty monthly calculation indices.
2. Non-compliance with the established control regime for sailing and returning to the base of small vessels -
entails a warning or fine for individuals and officials in the amount of five monthly calculation indices.
In accordance with Article 4 of the Law of the Republic of Kazakhstan dated July 6, 2004 No. 574 "On Inland Waterway Transport", one of the basic principles of carrying out activities in the field of inland waterway transport is the priority of navigation safety, protection of human life and health, nature protection and environmental safety.
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.
In the article under consideration, the general object of the offense is the normatively fixed procedure for ensuring safety in water transport. The generic object of the offense is the social and legal relations that arise when observing the rules for using bases (facilities) for parking small vessels.
The objective side of part 1 of the article under consideration is characterized by one qualifying feature in the form of:
1) violation of the standards for basing small vessels at bases (facilities) for parking small vessels
2) violation of the conditions and technical requirements for the safe operation of bases (facilities) at bases (facilities) for parking small vessels;
3) violation of the maintenance of small vessels unregistered in accordance with the established procedure at the specified bases (facilities).
Small vessels are subject to state registration in accordance with the Rules of State Registration of a vessel, including a Small vessel, and the Rights to it, approved by Order No. 51 of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated January 23, 2015. Passenger, cargo and passenger, oil tankers, tugboats, dry cargo ships, floating cranes and vessels of the technical fleet, as well as vessels that are not small vessels, are registered in the State Ship Registry of the Republic of Kazakhstan.
The entry of a vessel into the State Ship Registry of the Republic of Kazakhstan is certified by the issuance of a Ship's Certificate, which confirms the right of navigation of the vessel under the State flag of the Republic of Kazakhstan and the ownership of the vessel. The entry of a vessel into the Register of Leased Foreign Vessels is certified by the issuance of a Certificate of temporary granting of the right to sail under the State flag of the Republic of Kazakhstan to a foreign vessel. A person, within thirty calendar days from the date of purchase of the vessel, submits an application for state registration of the vessel in the prescribed form. The state registration of courts for individuals is carried out at the place of registration of an individual. The state registration of courts for legal entities is carried out at the location of the legal entity, or its branch or representative office.
The parking of vessels, including small ones, in the port is carried out in accordance with the Rules of entry of vessels into and out of the port, navigation of vessels within the water area of the port and parking in the port approved by the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 27, 2015. Anchoring of vessels or changing the parking place is carried out in each case with the permission (instruction) of the port dispatcher on duty. It is not allowed to lift various lights on ships, rafts and other floating objects, which can be mistaken for navigation lights.
The berth owner ensures that the berth is prepared for the ship's approach and departure. When preparing the berth:
1) a sufficiently free berth length is provided for mooring a suitable vessel;
2) the cordon of the berth is freed from cargo and other objects that interfere with normal mooring (mooring);
3) the bottom part of the berth is cleared of debris and snow and sprinkled with slag throughout, where mooring work will be carried out;
4) work and movement of all types of transport in the mooring area are stopped;
5) At night, the full lighting of the pier is turned on. The place of mooring of the vessel (the location of the stem) is indicated by the port dispatcher on duty: during the day - with a red flag, at night - with a red light.
A small vessel is moored to the pier only with the permission of the port dispatcher on duty. The ships are stationed at the berths by the port owner. The distance between vessels should be at least 10 meters. The allowable number of ships moored side-to-side (lagged) is determined on a case-by-case basis by the port owner. It is not allowed to park two vessels moored side by side, one of which has dangerous goods on board.
The captain of the vessel moored at the pier takes measures to eliminate contamination of the water surface, the pier and the bottom, and also organizes constant cleaning of snow and dirt in the area of the gangways. Gangways and ladders provided from the ship to the pier are equipped with handrails or rails. A safety net is stretched under the ramp and gangplank, eliminating the possibility of people falling into the water. The gangways are illuminated at night. At night, outdoor lighting is turned on on a ship moored, and lights indicating the extremities of the vessel are displayed on the forecastle and stern.
Vessels placed on wintering grounds have developed, approved by the shipowner and agreed with the territorial division action plans to ensure the safety of the vessel during the berthing period. Before loading on bulk carriers, a complete cleaning and degassing of tanks and pumping compartments is carried out. Liquid fuel reserves on a wintering vessel are left only with the permission of the port owner. During the stay, vessels are provided with communication with the owner of the port.
The subject of the offense under part 1 of the commented article may be individuals, as well as officials who are responsible for the maintenance of small vessels at their locations.
The objective side of the 2nd part of the commented article is characterized by actions (inactions) in the form of:
1)non-compliance with the established control regime for sailing small vessels;
2) non-compliance with the established control regime for the return of small vessels to the base.
Paragraphs 26-16 and 26-17 of Article 9 of the Law of the Republic of Kazakhstan dated July 6, 2004 No. 574 "On Inland Waterway Transport" provide the legal basis for the regime of exit and return of small vessels to the port area.
The powers of the authorized body (the Ministry of Investment and Development of the Republic of Kazakhstan) and its territorial bodies include:
1) approval of the rules of entry of vessels into and out of the port, navigation of vessels within the water area of the port and parking in the port;
2) determining the procedure for the installation of temporary devices and floating structures for mooring, mooring and parking ships, rafts and other floating objects, boarding and disembarking passengers from ships, loading, unloading and storing cargo.
The rules of entry of vessels into and out of the port, navigation of vessels within the water area of the port and parking in the port were approved by the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 27, 2015 No. 361. They apply to individuals and legal entities operating on the territory of ports and their waters, as well as to vessels entering and exiting ports, sailing and standing within the waters of the port. The entry of foreign vessels into the ports of the Republic of Kazakhstan and their maintenance are carried out on the basis of international agreements.
Information about the ship's approach to the destination port is transmitted by the ship's captain to the port dispatcher on duty 12 hours in advance and clarified 4 hours before the approach. If the transit duration is less than 12 hours - within 2 hours after the ship leaves the port of departure. The captains of the fishing fleet vessels inform the time of decommissioning, as well as the time of approach to the port no later than 12 hours in advance.
When sailing within the water area of the port and on approaches to it, it is necessary to adhere to the established routes of movement, take into account the peculiarities of divergence from dredging vessels and know the distinctive signals of ships, guardhouses and coastal posts through which ships are notified of the navigation regime. A foreign vessel is given the opportunity to enter the territorial waters of the Republic of Kazakhstan and sail in them in the presence of documents established by the legislation of the Republic of Kazakhstan in the field of inland waterway transport and international treaties ratified by the Republic of Kazakhstan.
A ship entering the port gives way to a ship leaving the port. The exceptions are cases according to 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, namely when a ship entering the port:
1) is limited in the ability to give way, and carries appropriate lights and signs;
2) it is constrained by its draft and carries signals according to the Rules of navigation on Inland Waterways.
The subject of the offense in part 2 of the article under study may be individuals, as well as officials who are responsible for the departure and return of small vessels to bases (facilities) for parking small vessels.
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 586 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).
Based on paragraph 1 of part 3 of Article 804 of the Administrative Code, officials of the authorized body in the field of transport and communications have the right to draw up a protocol on administrative offenses under Article 582 of the Administrative Code.
In case of violations provided for in this article, the above-mentioned officials have the right to detain, deliver and prohibit the operation of a small vessel by delivering them for temporary storage using another vessel or small vessel, until the reasons for the detention are eliminated. (paragraph 1 of Article 1 of Article 797 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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