Macondray & Co., Inc., et al.

DECISION

CT

C SE NO. 2CfJ7 (2) it was loaded instead on the l.~;s 11 Fernview11 which , as earlier stated , arrived on a later date , t hat is , on December 25 , 1966 o The shipment \Vas , however , unmani fested ; but to enable the consignee to take delivery thereof , the Inward Foreign Cargo vanifest of the M/S "Fcrnview" was .amended on· February 21 , 1967 . To give petitioner a chance to present its evidence in support of its stand , an administrative hearing was conducted before the Collector of Cust oms . After due hearing , the Colledtor of Customs found the M/S "Fern- v ie~ l iable for violation of Section 1005 , in relation to Se ction 2521 , of the Tariff and Cust oms Code and imposed a fine of 1, 000. a_:., upon the said vessel .

Pet-

itioner , as aJcnt of the vessel , appealed the Collect- or ' s dec i sion to the Comraissiont::r of C~stom s., who af- fi r med the same in i..Q.iQ i n his decisi on dated October 15 , 1969 .

On February 24 , 1970, the pres ent appeal was institutedo The only is sue presented for r esolution is the l egality of ~he administrative fin~ of Pl, OOO. OO. Petitioner contends t hat it should not be pen- alized for violation of Secti on 1005 of the Tariff & Customs Code because said section i~ not a penal or prohibitive statute since it i mp oses no penalty ; that .

the charge should have been for violat ion of Section 2521 i n r elation t o Section 1005 ; that assuming arc:;;: Q£!19.£. that the charge for violation of Section 1005 is proper, respondent should have presented proof of

DECISION

CTA CASE NO. 2067 (3) fraud on the part of petitioner to warrant the im- posi ti·on of the penalty considering that Section 1005 requires the element of fraud before it can be applied ; that sine~ petitioner in this case is mere - . l y an agent of the owner of the ves.sel 'fll / S Ufernview", the proper party should be the owner of the said ves- sel ; that the ~/5 "Fernview" is not subject to the administrative fine of f'l , OCO. OO because the failure to manifest the cargo .was without any fraudulent in - tent , but , rather , was due to an honest mistake or inadvertence; that an a.:nendment to the inward mani- fest was filed by petitioner when it was discovered that a cl ~ri c a l error was committed when the said one case of pipe fittings was no~ inc l uded in the vessel ' s origirral inward manifest so that whatever liability it . may have incurred was cured by the an1endment ; and that although the cargo is unmanifested , t he bills of lading, cons ular invoices and suppliers' invoices con- tain the correct number of car goes ~ Section 1005 of the Tariff and Customs Code in1- poses upon every vess el the absolute obligation to have on board a complete manifest of her cargo o That the vessel fail ed to comply with this imperative cb- li::;0tion is a clea:c violat~on of Section l CX)5 o 1.1hile said section does not provide for a penalty , it de - fin ~ s the act pun i shable under Section 2521 . In the case of Macondray & Co., Inc o ~ vs . Commissioner of Customs , C . T .

~ . Case Nc o 1930, Dec o 27 , 1969 , which

Dccrs· ON -

/.

CT

-.;ASE NO. 2067 7 ( 4) involved a simila r - iss~e , the Court held : 11 x x x Section l CC5 , of the Tariff & Custol!1s Code , supra.L is so clear and expl icit when it c om~a nds every ves - sel from a foreign port to have on board a complete manifest of all her cargo .

Non - observance of this imperative obligation· subjects a vessel to the admi- nistrative penalty under Se ction 2521 of the same ~ode x x x. " Petitioner ' s contention tha t it should have ~ been charged for violation of Section 2521 in relat - ion to Section 1005 , i nste ad of vice- v·crsa , is t o our mind off tangent .

It is clear under Section 2521 that the penalty t herein provided is i mpo sed when t here is a failu ~e on the part of a vessel to submit the requi - site manifest .

This requirement of vessel from a for - eigh port ~::o rii vr: on 'board a ca;~~letc ;nan :_f es t of ..,11 her car:o ::.s found in Section lC£ 5. VJe do not crioe to petitioner ' s theory that it should have bee-n C;.arged for vioL:tion of Section 2621 in relation to Section l OC5 .

He find , u~ert, fore , til at the charge 2~ains-t the vesse l is prope r .

Petitioner ' s contention that c ! ...

• .;;cc~lon 1005 r c - quires the elenent 0f fraud before it c an be app l ied is devoid of merit .

Vlhi l r fraud is ncntioned tl1crein , the sBme r efers to the disallowance of amendment of a cargo :nani.f ,_ st .

In other wares , at.endment of the ff1anif est raa y be all owed only in the absenc e of fraud in ·::he preparation of the manifest ; in t r.e pres- ence of fraud , no amcndaent may be allowed , but it does not nean that Section 10t.5 c an not be appl ied .

DECISIO~,!

CIA ~ SE NO. 2067 ~ (5) Stated otherwise , whether or not an inco~plete mani- ' fest is amended , Section 1005 is violat ed upon fail - ur€ to submit a complete cargo man~ fest o Th& dcfcncJ 'of good faith for failure to manifest a cargo ~ as already p~sicd upon in ~he case of Smith Bell & Co., (Philippines) Inc o vs . Commissioner of c,ustoms , . T. \.

asE::S Nos . 1728 & 1921 , July 22 , 1969, wherein it was held that -

11Undcr

Sec·~ion 1005 of the Tariff and Customs Code , it is an imperative obligation of every vessel from a foreign port to have on Board a complete manifest of all her cargo .

No oception is mentioned in the statute .

tleithcr is there mention of any exception in Section 2521 of said Code prov~ding for a fine for vessels with- O't proper manifests , nor in Section 2530 " thereof providing for the confisca~ion of unmanifested goods .

The recognition by the Court of any attempt to read into Lhe sta- tute any exc ption , such as misshipment of goods , jwould be contrary to the pervasive spirit as well as the clear language of ~he aforesaid provisions o11 On the mat~cr of anentlmcnt of the cargo manifest , t1e Court , in the ~ ase of Compafiia General de Tabacos dE.~ Filipinas vs . ,__,o:run. of '""'ustoms , C.T . A. Case No . 1939 , FEbruary 26 , 1971 , held :

11Petitioncr furthtr asserts that ' the provision of the law on amendoent is de - signed co protect the master , agent or consignee from the . error , mistake ,or dis- crepancy committed by him in the prepara- tion of the original manifest and that it is unfair and uncalled for to conclude , as the respondent held in this cast , that the right to amend the manifest is for ~he principal purpose of protecting innocent importers .' \Jhethe r the purpose of the l9w in permit~ing amendment of a vessels ' man i - fest is to protect tne master , agent or consignee of the vessels , or the importer • DECIS O!.J -

CT

C -.JE l'J( '· 2067 r ( 6) of the goods , is to our mind of sli~ht sig- nificance .

und r Section 2521 of the Tariff and Customs Code , no relief from liability for the fine is gr~nted w1ere an a.1wndment of the man if( st is allQwed o" Hth_ respect to pt ti-c ion ·r ' s claim tha".: an agent cannot be lc~ally held l iabl e for violation of any law conoitted by its principal , we believe tnat the same is unmerito.r:iDus .

perusal of the decision subject of th~s appeal will show th~: the fine is impos d under Section 2521 of '.:he Tariff K Cus-:o:ns Code upon . "':.he off nding vessel.

The fine was imposed upon the vessel in a seizure proce( dine, , w.hich is in f..§.ill , as provided in the T2riff and Customs Code . (See Sees .

2205-2212 ; Sees . 23Gl- 2307 ; and S cs . 2312- 2315 , in relation to Sec . 2532 of 1:i1C:: Tariff & vUStoms Coci . ) Petitioner was al ternately held licbl . for "Che fine for the reason tha: i~ submitted itself to the jurisai c ~ - ! ion of .·:he Bureau o{ Gus".:;oGJs as agent of the vessel . 1~.. is well to note , howev r , thc:t :i.t can cho c. se not to ay ~he fine ; in the event tha: it chooses not to pay , the vessel will be subject to seizure under Sec- tion 2532 of ~he Tariff G Customs Code .

etitioner ' s argufJtcnt ,::ha"'.: although the cargo is unmanifested , the bills of laaing , consular invoices , anc suppliers ' inv"Oices submitted \Ji th the manifest , reflected the co1.=ect cargo , is of no oo:nent . On this point , th~s Court held :

"The foct that the whole shipment was in~icated in the bill of ladin~ docs not /

DECISION

CT

CASE NO. 2C67 (7) excuse compliance from the requitement of a manif~st . x x x.

All these can - not be a c com~ l ished by the mere use of the bill of ladi.n g inasmuch as th bill of lading is not required to be present- ed to the boarding CGstoms officers o ( ac ondray & ~ o ., lnc . vs . Commissioner of Customs , C. T • • Case No . 1641 , Nov. 15 , 1965. ) ~ .· In view of the above , we believe that the im- osition of the fine upon ~ he er ring vesse l is legal . Hovvevcr , considering the circumstances of the case , we are of the opinion that a fine of ·-soo .• cc, instead of i"l , COO. OO , wou l d be an adequate penalty for the offense .

FOil THE

FCREGOI:J~3 80~:SIDi::i( TIONS , the decision sppcaled from ~s he~eby modif5cd by reducing the fine of "1 ,000. 00 to i-'500. 00..

c cordin~Jly , petitioner is order d to pay the sum of i'I:JOC. O(i within thirty (30)

I

days fro:n the date this decision becomes fina l , other- wi se , appropriate proceediog shoul d be taken against the vessel M/ S " Fc..r nvicw , " purs uant to Section 2532 of t:~ Tarif f and Cus-coms Code .

uczon ity , Oct ober 6 , 1972 .

( (