CTA Case No. 2679

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SEPUBLIC OF THE PHILIPPINES

OuLRT OF TAX APPEALS

QUEZON CITY

ts agent of 378 wept Ap ouR*) Pétitioner, = tersus « Celeste CAST NO, 2679 COMMISSIONER OF CUSTOMS, Respondent. 2 (29 [+0 ee a ;

— DECISION

This is a petition to review the decision of responient Commissioner of Customs dated March 12, 1975, affirming that of the Collector of Customs of Manila dated November 13, 1974, imposing on sdminics- trative fine of 12,797.00 upon the vessel S/) “Troue bedour” for violation of Section 2523 of the Tariff and @uestome Code which reads:

he gross of a t or pace kage deserthed in the fest qunecie by more than twenty per the gross wel as declared in ay or bill of lading thereof, and the Collector shall be of opin- ion that such diserepancy was due to the carelessness or incompetency of the master or pilot in command, owner or employee of the vessel or aireraft, a fine of not more than fifteen Dek Sentum of the value of the pac koge or i respect to which the dis- erenancy exists, may be impored upon the im- port ine ae veoeei ér aircraft ."

‘The entecedent facts of this case show that the 8/5 “Troubadour” ,. with Customs Registry No, 453, ar- Fived at the Port of Manile on March 20, 1968 and die- 331

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CT .hke CAST WO. 2679

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charged thereat, among other cargoes, 32 beles of assorted textile remnants imported from United States. As declared in the vetsel's mani fast and bill of lading, the total weight of the seid cargo was 11,120 lbs. or 5,039 kilos, but upon examinetion by customs avthorities, it was dis- covered that the actual weight of said merchsndise was more than 85% of the declered weight. Consequently, on December 9, 1968, the Bureau of Customs, through the Acting Chief of the lew Division, notified petitioner Macondray and Com- peny, ship agent of the vessel 8/8 “Troubadour", that said vessel had discharge’ 32 bales of as- sorted textile remnants with on excess weight of more than 20% of what was declared in the manifest, and required it (petitioner) to explain in writing within five (5) days from receipt thereof an@ show cause why no edministrative fine should be imposed upon the veasel for violation of Section 2523 of the Tariff ané Customs Code, or to inform the Bureau of Customs within the same period if it desires to have the case formally investigated, otherwise, its failure to do so would be construed as a waiver of the right to be heards (pe 4, Customs rec.)

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eTeAs GASH WO, 2679 - ba Ina reply to the Surcav of Customs dated Deo cembir 13, 1968, petitioner explained that tt did-not violate the law hecause the weleht of the subject inm- portation was supplied by the shippers, and thet the vessel was not nevlicent nor motivated by bad faith.

“Mot satisfied with the explanation of petitioner, the Collector of Seotona inctituted adzinistrative Case No, V-422 scatnat the 5/5 “Troubadour,” with peti- ttoner as rospondent, ond alter the hearing on Hovex~ ber 13, 1974, rendered # decision imposing a fine of P12, 797.00 upon said veseel and/or its ship agént, Ma- “Condeay £°Go,, for violation of Section 2523 of the Te- riff and Cudiome Code, Upon appeal, the decision of the Collector of Customs was affirmed in tebe sy the Commissioner of Custows in hic decision dated March 12, 1975, Hence, the pesaent aopeal, The tesue is whether or not the vessel @d/or petitioner hereto are ligole for the fine for vic- lation of Section 2523 of the Tariff and Customs Codes In maintainine that nelther lt nor the ves- $@1 is liable for the fine for violation of Section 2523 of tne Tariff and Customs Code, petitioner argues in its memorandum that there is no proof of the neoligence or corlessness of 333 DSCISION « .

C.T.A. CABE NO. 2679 the master, owner or employee of the vessel, and that under the Code of Commerce, it is not his duty to check the weight of the cargo leeded on board the vessel, The facts, the iscue and arguments presented in this case ere not new, In the case of Macondray & Coe, incite capacity as ship agents of the MS “OUSENSVILLE“ vs, Commissioner of Customs (CTA Case No. 2758, April 28, 1978) which is only one of the mumerous similer Ceses between the same parties already decided by this Court, citing the case of Mecondray & Ca, Inc. V8- Commissioner of Customs, CTA Case So, 2656, January 21, 1977, it was helds .

A® regards the contention of petitioner that the discrepancy is not due to the i Mess or tence of the mester, owner, or of vessel because the weight dec- Jered in the bill of lading or manifest was supe plied by the shipper, end thet under Section 612 of the Code of Commerce, and even under the Tariff ané Customs Code, the captain or master of the verse] is not required to ase certain the weight of the cargo, 4 similer iesue wes settled by this Court, in the case of “?,5,*uelig, Inc., in its capacity as agent of the M/V “Hongkong Grace,"vs. Conmiesioner of Customa, CTA Case Wo. 2360, April 10, 19768, wherein it was rujed thet the fect thet the ceptain of ea vessel is not careless on the basis of his duties under the Code of Commerce is no defense ageinest this penalty, Bee cause of its controlling effect on the present case, we will quote from the decision:

cleimed thet the said discrepancy is by no weene ettributeble to the waster or captain of the vessel because, under Are ticle 612 of the Code of Guascoon listing 334

DECISION «

a= 5S wo the duties of the said official, he is not required to ascertein the actual weight ef the cargo of any particular shipper. Consequently, it is exrgqued that neither eareleseness nor incompetence can be ime puted ageinst the captain of the vessel khong Grace” to justify the imposition of the penalty imposed by the Tariff and Customs Code, It is not article 612 of the Code of Commerce which deals with the duties of the captain of 4 vessel but section 2523 of the Pariff and Customs Code that goe verns this case, Under the letter law the fact thet the captain of a vessel is not careless on the beses of his duties es enue meraeted in the Code of Commerce is no de«W. fense against the penalty. The lew includes the carelessness Bod the owner or employee of the vessel, The explanation of the mee nager of the Shipping “ivision of petiae tioner to the effect that no shipping line in the United State has fecilitiaes for checking the weight or contents ae the = re. samy therefrom: hh weigh -ani_diectepancy in seia nt_is_bevoms CUSE. pe se as a velia poe hen in virtually lifying Section 2523 of the Teriff ond Custome Code, brushing eside the provisions ef Section 2523 of the said Code as e dead letter, Doing business in the ilippines, it behooves petitioner to nage Wy our Custome lews ond to ignore them is sothing short of gross carelessness, is an omise - Sion of the concern thst one with ordinary prudence should have of the Custome laws of the country which it does business, (Undere lining supplied.)

K x x x Accordingly, since it has been esta- pe that there is discrepany of 71, 450 lba. nn libs, in the case) between ared weight (59,938 ibe.) and the actual weight (131,388 lbe,) of the subject 335.

DECISION «.

— 7 ation (51,016 lbs. and 72,152 ibs, in the instant appeal), which discrepancy is obvicusly more than 20% of the weight, and which ie attributeble to the careless~- nees or incompetence of the master, officer o£ employee of the vessel because of his reliance solely on the dedared weight furnished by the shipper end failure to take steps to ascertain and verify the correct weight of the cargo before transporting the same, in utter disregsréd of his eblie gation imposed on him by the law, the vese sel MS “"Pernbank" and/or its ship ageat are liable for the fine of nor more than 15K of the value of said shipment pursuant te Section 2523 of the Teriff and Customs Code, Aa to the amount of the fine, the Court observes that petitioner does not dispute how it was arrived at of computed by the Bureeu of Customs, Nonetheless, considering that the negligence or incompetence of the mester, owner, officer or employee of the vassel Goes not amount to willful negligence ex gross income petence, and the law allows latitude in the imposition ef fine, we deem it jubt and reasonable to reduce the imposable fine from "12,797,00 to #$, 000,00, ‘HEREPORS, the decision appealed from is hereby modified, and the vessel 5/5 ‘Troubedour” and/or petie tioner herein are hereby ordered to pay to the Bureau of Customs e fine of 75,900,00 for vielation of Section 2523 of the Tariff and Customs Cede, With costs against 50 ORDERED, Quezon Cyty, Jyne 27, 1978. po _—

Cons E Ce ROAQUIN

rc Jt 5 Associate Judge f AMANTE pruue “

Acting Prediding Judge

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