CTA Case No. 2836

DECISION -

- 2 - necessity, the: subse~quent. appr~ oval of the: pJCoper Collec.tor: must. be: obtained." The mater:ial facts ar~e: r:elat.ively simple. On July 22, 197 2, the SS "Eas:ter.n Come't ." a vessel owne:d and oper.ated by t-he. her:ein pet.it:.ioner:, arrived at. t-he Por:t . of Manila, having, fo.1r: its ca.1cgo 6,6.67 bags of "ammonium ni tr.at::.e" un~le:r~ covering B/L No. KMA-25 consigned to the. Philippine· Explosives Corporat:ion. Shipside Permit:. No . 2312 granted the consignee's broker, Lu z,on Br.oker:age Corpor:a t:.ion, allowed t:he unlading, of the car.g;o unto light.e:rs at. the explosives anchor:ag;e consistent with the: reg;ulat.ions and or.der·. Not.wi thstanding pe.t:.i t .ioner. thr:oug;h i t .s opera t .ions ass.istant. had yet to push through an assignment of a berth at. the pie.r.s for. the SS "Eastern Come.t" for the. dischar:g,e of the same: ca][:go "withou t. indicating t.he.r.ein the presence of e.xplosi ves on board for Manila dischar:g;e x x x cont][:ary to the provisions of CAO No. 2-71. x x x. withholding, such informat.ion may have be.en pur.posely done: to secure a pie:t: be:rth due 1i::o the heavy ar.rival of ships. By so doing· she was able t:·o misled. the Ber:thing Officer who assig.ned her a berth at. Pier~ 9 whe.r.e despi t:-.e a ship- side permit. having, be.en issued for this cargp the: ship's checker allowed this car.go t:.o be discharged to the pier in v'iolat.ion of said CAO No. 2-71 and

- 3 - thus e.ndanger.ing, the safet.y of -the pier and the people therein."

(Head, Port Operations Services ' Me.mor.andum to the Collector. of Customs) •.

Appar-

ent.ly the situat:.:ion had taken a t .icklin9 ur:genc:y of cr.i t .ical concern prompt.ing, the consignee's broker. to request: " that:. the. above car~go be. trans- ferr.ecL to the consi~Jnee ' s safe magazines at Limay, Bataan" ; likewise, pre.cipi-tat.ing an appropriate administrative charge filed by the Collector of Customs against:. the err.ing vessel for violation of the Harbor Reg,ulat.ions and Customs Administrative Order No. 2-71, and meting, out a ~10 ,0 00.00 fine as a consequence thereof, pur~ suant:. to Sect.ion 2518 of the Tariff and Customs Code 1 supra (Administrative Case No. V-716/72 da·fi::ed June 9, 1976.) •. On appeal, the~ r.espondent. Commissioner. of Cus-toms affirmed t .he same (Customs Case No. 76-37 dated~ August. 3-1, 1976) •. Hence 1 t.his pet.i t .ion.

Towar.ds adding, up t:o j ust.if.ication, pet.i t.ioner~ avers that 1) the discharge of the cargo in ques- tion was duly covered by a ber~ thing permit. under the applicable Harbor. regulat.ions and Customs Admi- nist.r:at.ive Order; 2) _t .he Customs author.it.ies were furnished a copy thereof and properly not.ifie.d be- f:or:e the piers ide discharg,e of the car.g_o; and. 3) the cargo was not. inflammable or. ex.plosi ve and t.he

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4. - consignee 1 s representative was responsible for. the: discharg,e .• The basic quest.ion is nothing more than the effect.ive application of the per.t.inent. provisions of. the regulation and order andl the corresponding administ-rat-ive s anction as the same ar.e broug;ht: to bear. upon the circumstances of the case before us. The cargo of "ammonium nit-rate" is not such a pr.et:ty innocent. and innocuous stuff but. of known and obvious at:tr.ibute, i.e., an explosive.

It. is no piece of idle ceremony that. the said car:gp must come within the purview of the reg,ulat·.ion/or:der which "shall be discharg.ed unto light-ers at the explosives an- choragle, regardless of whether the same are through car:g,o or dest.ined for Manila, before the carrying vessel shall be allowed to dock alongside the pier:." Such a caveat remain~ prescribed and continues enforced.

Pet.i tioner having, come within its scope must prove compliance with the terms peremptorily requh::ed thereby.

The circumstances obtaining, however, reduced the duly issued permit. into a note of ineffectuality.

Peti t .ioner 1 s vessel effecit.ed a pierside discharge "despite a shipside permit having, been issued for: this cargo t-he ship 1 s checker allowed. this cargo to be discharged t-o the pier in violation of the said CAO No. 2-71 and thus endangering - _5 - the safety o:f the pier: and the people the:rein. 11 It.

was no cosmet:-.ic e.f.for:t nor. idle gesture for con- signee ' s broker: to have the car:go t .r:ansf.erred after. having, conce<ledly admitted that 11 this cargo is ex.plo- sive and over exposure to the elements is dang,er::ous and immediate t-ransfer to a safe magazine for: explo- sives is necessary.

11 Pet.i t .ioner substi t:·uted such a quirk of an expediency which falls short of measur- ing, up t:u the compelling impor.t and force of the rule .• On the principle that-. leg,al rig,ht.s must. be enfor-ced according to legal rules, pet.i tioner. cannot. be en- t .i t .led to a relief much less deser.ve any ext.ende:d at.t:ention but::. must. be held account::able and liable for:: a well founded breach.

WHEREFORE, the pet.i t .ion is her.e.by dismissed wi t:.h cost.s against. pet.i -tdoner..

WE CONCUR:

~_.ol;~~ /~

• ROAQUIN

Judge

Associate Judge