Maccndray & Cc., Inc., et al.

DECISION -

C. T. ·"· CASE NO, 27 58 - 2 - The antecedent facts of this case show that the IV1S "Queensville 11 , undrr Customs Hogistry No .. 1745, arrived at the Port of Manila on June 29 , 1969 and discharged thereat , among other cargoes, 84 bal2s of cotton and rayon remnants imported from the United States .

~s dPclared i n the bill of lading , the total weight of the said cargo was 51 ,086 lbs. but upoh examination by the cus- toms authorities, it was discovered that the ship- ment actually weighs 75,152 l bsa , which is more than 2Gb of the declared weighto (see pp . 2 & 7, Customs rec -1· Consequently, on October 13, 1969, the Bureau of Customs , through the Chief , Law Division, noti- fied petitioner Macondray & Co o, Inc ., pS the ship agent of the !VIS 11 QUeensville 11 , that said vessel had discharged 84 bales of assorted textile remnants with an excess weight of more than 20% of what had been declared in the manifest ; and requiring it "to explain in writing within five

(5) days from receipt hereof and show cause , why no administrative fine in the amount of ?12, 028.00 , shoul d be imposed upon your vessel for (this) vio- lation11 of Section 2523 of the Tariff and Customs Code , or to inform the Bureau of Customs within the same period if it prefers to have the case

D~CISION -

C. T.

o Cf\SE JD . 2758 - 3 - formally investig t~d ; otherwise , its failur~ t o do so v;ould br construc>d as ? v·,ivcr of the righ-c to ue heard and the c as~ decidDd accordingly 4 (p o 13, custor.1s rec. )

I n a letter dated ~ovemb~r 18 p 1969, peti- tioner explained to the Bur au of ~ustoms that th0 v~3scl did not violate ~ecticn 25~~ · f the Sode inasmuch as th~ weight of the cargo 2s stated in the bill of lading vas supplied by the shippPr ; that the shioment was freighted on ffiPasurement basis and not on ~eight ;

~nd that the ~~claration of the w~ight of ":he c ;'1rgo in t 11e mc:.r1 ~£ ~st is not that in the rvr>nt such cxolanation was not ~uf - fi cient for the dismissa l of thP c se , the Bureau of Customs should conduct an investigation to af- f ord the vnssel an opportunity t o pr0sent 1 rvidehc" in support of h~r drfnnsc and to b~ apprised of the / ovidcnc" i'lgainst her .

11 (pp. 17-18, '::ustoms rPc. ) ThE" r,..,cords shmv that this proce,..,ding , c ap- tioned : "In the m?ttPr of i'ld~inistr~ti v e invr>stiga- tion of .s "Queensville 11 , Voy. · 34- A which arrived on June 29 , 1969 , cow yed and dischar ged 84 bales of assorted rt>mnants with an exc ess weight of 1.1or ~ than 2C% AS dPcl1rcd in the m nifest - Administrative

DECISION -

::::.T.i\. C~SE tr.·. 2758 r - 4 - Case No ~ V- 518/70"- in the E1reau of Customs , was schedu~d for hearing by the Collector of customs on November 17, 1972 at 9:30 A. M. before the Law Division, Port of Manila , as per notice of hearing dated OctobC'r 20 , 1972, a copy of which was rr..>ceivt?d by petitioner .on October 24 , 1972. (p. 19 , Customs rec.; par . 2, Answer of Respondent .) Ther~aftnr , on November 14, 1974 1 the Collector of customs of Manila renderPd a dPcision against the MS "Queens- ville" , imposing a fine of ?ll, 998.,a' upon said vessel and/or its local agent , Macondray & So. , Inc. , for violation of Section 2523 of the Tariff and Customs Code . (pp. 20- 21, customs rec.) Recourse to respondent Commissioner of Cu3toms proved un- availing ., Hence the present appeal.

l-Ias thP vessel MS nQueensvill e 11 violated Sec- tion 2523 of the Tariff and customs Code so that it and/or its 1ocal agent , petitioner herein~ are sub- ject to the fine imposed by respondent? In ~aintaining its innocence undrr Section 2523 of the Tariff arid Customs Code , and non-li ability from the fine imposed thereinp petitioner , in its memorandum, argues that:

J

DECISION -

C • T • ~ . C ,f\SE NO. 2 7 58 - 5 - The records show that the wnight aP- pearing in ~he bill of l ading was declared by the shipper Al t o Textile Export Company of New YorK .

ThP master ~ owner and employee of the vessrl have nothing to do with it . They rel i ed on the information supplied by the shioper .

It served as the basis of the c arrier' in manifesti ng the cargoo The ship- ment was freighted on measure~ent basis and not on weight.

The weight is imm terial in- s ofar as freight is concerned and whatever weight was declared by the shipper is taken as true and correct weight of the cargo by · the carrier .

The declaration of the weight of the cargo in the manifest is not r~quired by l aw.

·· From the foregoing 1 it is we l l - nigh clear th9t the al l eged under aec l aration in the we1ght of said cargo can not be attributed to the carelessness or negl igence of the master , pil ot , owner or empl oyee of the ves- sel .

Moreover 7 thern is nothing in the re cords , muchless any pi ece of evidence in- troduced to show carel essness and negligPnce of the master , pil ot, owner or emg l oyee of the vessel with-respect to the alleged undrr declaration of the weight of the cargo. This , bPing so, ,9etitioner can not bv 0eld liabl e under Sec~1on 2523 . (p. 3 , Pet1t1oner ' s MPmo- r andum) Petitione± ' s position calls to mind Macondray & Co., Inc . vs . Co~missioner of Cus~oms , CT

Case

No . 2656 , January 21, 1977; Certiorari denied in G.R . No . L- 46287 , June 20 » 19 7 7 ~ involving idrntical parties and under substanti~lly similar fa cts , and where this Court disposed of the same arguments and contentions in the fol lowing wise: As regards the contention of pe~1- tioner that the discrepangy is not due to the carFlessness or incompetenc e of the

I

t

DECISION -

C. T . .A. CASE I\C . 2758 - 6 - master , 01nner, or er.1pl oyee of the vessel be c ~use thr weight declared in the bill of l~ding or manifest was suppli ed by the shipp~r , ~nd that under Section 612 of the Code of Commer ce , and ev~n undrr the Ta- riff and Customs Code , the caotain or master of the vessel is not r~quired to ascertain the weight of the c argo , a simi- l ar issue was settl ed by this Court in the case of "F .E. Zuel ig » Inc4 , in its capacity as agent of the M/V "Hongkong Gr~ c e 11 , vs . Ccbmmi ssioner of Customs , CTA Case No . 2360, April 10 , 1975 , wher"'in i t was ruled that the fact that the c aptain cl ~ vessel is not careless on the basi s of his duties under the Code of commerce is no d 0 f~nse aga i nst this pen9lty . ~e~ c ause of its controlling effect on the present case , we will quote from the deci - sion ..

• • • On the other hand , petitioner claimed that the said di~ c £0D ... rtCY is oy rtu moall::.

a"tl:r~out .Jblc to the rnaster or captain of the vessel because , under Article 612 cf thE> Codr of .Commer ce l isting the duties of thE> said offi- cial, he is not required to ascertain the actual weight of the c argo of any particular shipper .

Consequently, it is argued that neither carel essness nor incompetence can be imr.uted against the c apta~ n of thE> vessel 'Hongkong Grace" to justify the i mposition cf the pe- nalty imposed by the Tariff and cus- toms Code ..

It is not Articl e 612 of the Code of Commerc e which dea l s with the duties of the c aptain cf · a vesse l

but Section 2523 of the Tariff and

customs Code that governs this Case . Undrr the l,tter lew the fact that the captain of a vessel is not care- l ess on the bases of his duti~s as enu- merated in the Code of Commerce is no defense against the penalty.

Thr law includes the carelessness of the ownrr or omployeo of the vessel. The expl a- ~ation of the manager of the Shipping Division of petitioner to the effect that no shipping lin~ in thA United

DECISION -

C.T • • CASE NO. 2758 / - 7 - St~tes h?S faci l ities fOI checking the weight or contents of the goods s hipDE' d th~rpfrom ; th2t· the::. ~PJ.ght .2..f_the cargg is declared...§y_ t~ sh~Q­ _Q eE..._and i'l~sor ep anct J. n weJ.gFit J.S EeyoncrtFir control rJ th0 shi.QQing c omt:anv is no~ val id excuse ~ A c cept ~ Ing p~tioRPr s-exPianation riS a valid defense is virtual ly nullifying Section 2523 of thE' T~riff and customs CodP , brushing aside the::. Rrovisions of Section 2523 of the said c oae as ~ drad l etter . Doing business in the Philippi nAs , it behooves petitioner to abide by our Customs l2ws and to ignore them is nothing short of gross c arelessness . It is an omission of the concern that one with ordinary prudence should have of thE' Customs laws of the country wfiich. it does business o (Und~rlining s upp l J.ed.)

anent petitioner ' s averment that the freightage of the subject shipment was m~de on a measurement basis , suffice it to state that freightage is merely the charge or compensation pai d by the ship- per or importer to the carrier , and i s not a det~rminativ e fa ctor in thE' assess- ment and imposition of duties and penalties on the imported go ods .

As aptly observed by the respondent , freightage is nevrr a fa ctor in determining thE' responsibility of the vespel under Section 2523 of the Tariff and Customs Codc o Accordingly, since it has bern esta- blished that there is a discrepancy of 71 , 450 lbs. (24,066 l bso in the present c ase) between the de clared weight (59 , 938 l bs.) ; nd the actual weight {131, 388 l bs . ) of the subje::oct import~tion (51,016 l bs . and 75 , 152 lb~ . in the instant appeal ) , which discX""'Y)2ncy is obvious l y more than 20;& of the·;q .. \reight 1 anrl which is attributable to the carelessness or ~ ncompetcn c e of the master, officer or empl oyee of the vesse l bec ause of his reliance sol el y on the declarrd weight furnished by the shipper and failure to take steps to ascertain and verify the correct weight of the cargo be- f or~ transporting the same , in utter dis- regard of his obligation imposed on him

DECISION -

C.T • .

C~SE ~D. 2758 .

- 8 - by the law, the vessel hS

11Fernbank11

and/or its ship agent are li9blP for the fine of not more than 1~ of th value of s~id shipment pursuant to Section 2523 of the Tariff and cus ~ toms Cod e o x x x.

We find no plausible and valid r~ason to modify , much less depart from the conclusion reachPd in Macondray & Coo , Inc . vs. Commissioner cf Customs , CIA Case i\Jo .. 2656g January 2lp 1977, as stated in the above- quoted opinion of the court , and the same should therefore r~solve the same question now brought before us in the instant appeal. More so when it is .ccnsidnred that the petition for review on certiorari of the decision of this Court in the said case was denied by' the Supreme Court for l~ck of merit in L- 46287, July 21 , 1 977 ~ not more than fifteen .2J:E centQ!Il imposPd for violation of Section 2523 of the Tariff and Customs Codp should be· based on "thP value of the package or article in respect to which th~ dr--ficiency exists" , in accordance with the express provision of the l Rw. (See Macondray & Co# , Inc. vs . Commissioner of Customs , CIA Case No.

2741 ~ February 3, 1977; Delgado Shipping

DECISICN -

C. T . , o C,t..SE

~:C

. 2758 - 9 - gencies , Inco vs. CommissionPr of Customs, CT£1. Case No ~ 2685 , FPbruary 15 , 1977o) ThPre bring no showing in the instant case ~hat thr amount of the fine imposed by the Burrau of Customs is not in ~ccordance with the lpw, and since the rAcords of the case are silent on this point , we take it that the amount of 111, 998oOO imposed by respondrnt

on MS

11Quecnsville 11 and/or petitionpr is not more ' than fifteen ~ centum of the value of the package ~ article in respect to which the deficiency exists. Nonetheles ~ considrring that thP nAgligence or in- competrnce of the master , owner , officer or employPe of the vrsse l dOAS not amount to willful nagli@ence or gross incompet~"nce 1 and thP law allows latitude in the imposition of the fine , we df'rm it just imposed on the I.1S 11QUPr--nsville 11 and/or poti tionrr Macondray & Co., Inc. , as ship agent of the vessel WHEREFOR£ , the dPcision appealPd from is IvDDIFIED and the vessel MS 11QUepnsville11 and/or petitioner herein are hereby orderPd to pay to the Bureau of Customs the finP of '3 ,5CO .. OO for violation 7

DECISION -

C.T.A. CASE NO. 2758 z - 10- of Section 2523 of the Tariff and Customs Code. With costs, SO CRDERED.

Quezon City, April 28, 1978.

AMANTE PILIER

acting Presiding Judge

I CONCUR:

)

CONSTANTE CZ ROAQUIN

Maseoliete Judge