CTA Case No. 2758 (Decision)

R<;"<''[l"� y n....- -p�; ;>Fn TPPi'l"E6 Cvl�� !' t " ' l.'X 1\LB QL'i< ~(J.' l.ll 1f M,f\CC 1\UR i\Y & CC. , INC . , in its capccity as shipagents of the ;.IS 11 Qll!:::>:SVILLE" , Petitioner , - versus - C.T.A. C\SE ~C . 2758 CO!�U.iiSSICNER CF :USTOl\,S , RPspondrnt .. X - - �- - - - - - - - - X D s T I0N J._ This is a petition to review th~ decision of respond,.,nt c;ommissionrr of cus~.:oms dat"'d Srptem- ber 16 , 1975 , affirming that of the ~ollectcr of Customs , which imposed an administr?tive fine of Pll , 998.CO against the h~ ''Qucensville" for vio l a- tion of Srcti6n 2523 of the Tariff and Customs Code , whi ch reads : Sec . 2523. Discre.Qancf-Betwr?Fn .A.ctu.,a1 .,a nd Drc1_ared_,Jei.st.ht orM.,2niestc-d .A�tic1e .. - If the gross weight o!any article or 1Jackage described in thn manifest exceeds by more than twenty .�!. _�entQ.G} the gross weight as declared in the manifest or bill of lading thereof , and the Collector shall be of opi - nion that su c h di s crepancy was due to the care l essness or incompetency of the m8 ster or pilot in command , "~ner or em~ loyee of the vesse l or aircr?ft , ~ finn of not more than fifteen ~~ ~ nt um of the v alue of the package or articl e in respect to which the dis c repa n9y exists , may be imposed upon the importing vessel or aircraft .

DECISION - C. T. �" � CASE NO, 27 58 - 2- The ante c edent facts of this case show that the IV1S "Queensville 11 , undrr Customs Hog istry No .. 1745, arrived at the Port of Mani la 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 weigh to (see pp . 2 & 7, Customs rec -1� Consequently , on October 13 , 1969, the Bureau of Customs , through the Chief , Law Division , noti- fied petitioner Ma condray & Co o, Inc ., pS the ship agent of the !VIS 11 QUeensville11 , that said vessel had discharged 84 bales of assorted textile remnants with an excess weigh t 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 ves se l for (this) vio- lation11 of Section 2523 of the Tariff and Customs Code , or to inform the Burea u of Customs wit hin 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�,i vcr 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 , pet i- tioner explained to the Bur au of ~ustoms that th0 v~3scl did not violate ~ecticn 25~~ � f the Sode inasmu c h 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 or d the vnssel an opportunity t o pr0sent 1 r v idehc " 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 proc e,..,ding , c ap - tioned : "In the m?ttPr of i'ld~inistr~ti v e invr>stiga- tion of .s "Queensville11 , Voy . � 34- A which arriv ed on June 29 , 1969 , cow yed and dis char ged 84 bales of assorted rt>mnants with an exc ess weight of 1.1or ~ than 2C% AS dPcl1rcd in the m nifest - Administrativ e

DECISION - tr.� . 2758 ::::.T.i\ . C~SE 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 re c.; 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 appea l. l-Ias thP vessel MS nQueensvill e11 violated Se c- 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 re c ords show that the wnight aP- pearing in ~he bill of l ading was de c lared by the shipper Al t o Textile Export Company of New YorK . ThP master ~ owner and employee of the vessr l hav e 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 teria l in- s ofa r as freight is concerned and whatever weigh t was declared by the shipper is taken as true and correct weight of the carg o by � the c arrier . The declaration of the weight of the cargo in the manifest is not r~quired by l aw. �� th9t From th e for egoing a1 e i t is t we l l -n i gh c l e a r the al l eg ed under c l ara ion in the we1gh t of said cargo can not be attributed to the c arelessness or neg l igence of the master , pi l ot , owner or emp l oyee of the ves- se l . rdMs ,ormeouvcehrl7e th ern is nothing in the re c o ss any pi ece of evidence in- troduced to show c are l essness and negligPnce of the master , pi l ot , owner or emg l oyee of the vessel with-respect to the alleged undrr declaration of the weight of the cargo . This , bPing Sseoc, ~,91oent i tion er ( c an 3 not bv t 0eld l ia bl e under 2523 . p . ,P et1 1oner ' 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, 197 7 ; Certiorari denied in G.R . No . L- 46287 , June 20 � 19 7 7 ~ involving idrntical parties and under substanti~lly similar fa c ts , and where this Court disposed of the same arguments and contentions in the fo l lowing wise: As regards the contention of pe~1- tioner that the dis crepangy 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.1p l oyee of the v esse l 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 c e , and ev~n undrr the Ta - riff and Customs Code , the caotain or master of the vessel is not r~quired to asc ertain the weight of the c argo , a simi- l ar issue was sett l ed by this Court in the case of "F . E. Zue l ig � Inc4 , in its capa c it y as agent of the M/V "Hongkong Gr~ c e 11 , vs . Ccbmmi s sioner 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 commer c e is no d 0 f~nse aga i nst this pen9lty . ~e~ c ause of its controlling effect on the present c ase , we will quote from the de c i - sion .. � � � On the other hand , petitioner claimed that the said di~ c �0D ... rtCY is oy rtu moa ll ::. a"tl:r~out .Jblc to the rnaster or captain of the vessel because , under Artic le 612 cf thE> Codr of .Commer c e l isting the duties of thE> said offi- cial, he is not required to asc ertain the ac tua l 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> v essel '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 Commer c 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 Commer c e is no defense against the penalty. Thr law includes the c arelessness of the ownrr or omployeo of the vesse l. 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 fa c i l ities fOI che c king the weight or contents of the goods s hipDE' d th~rpfrom ; th2t � the::.~PJ.ght .2..f_the c argg is de c lared...�y_ t~ sh~Q _Q eE..._a nd i'l~sor ep anct J. n weJ.gFit J.S EeyoncrtFir c ontrol rJ th0 shi.QQing c omt:anv is no~ va l id excuse ~ A c cept ~ Ing p~tioRPr s-exPianation riS a v alid defense is virtual ly nullifying Section 2523 of thE' T~riff and customs CodP , brushing aside the::. Rrovisions of Se c tion 2523 of the said c oae as ~ drad l etter . Doing business in the Philipp i 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 c oncern that one with ordinary prudence should hav e of thE' Customs laws of the c ountry wfii c h . it does business o (Und~rlining s upp l J.ed .) anent petitioner ' s av erment that the freightage of the subje c t shipment was m~de on a measurement basis , suffice it to state that freightage is merely the c harge or c ompensation pa i d by the ship- per or imp orter to the c arrier , and i s not a det~rminativ e fa c tor in thE' assess - ment and imposition of duties and penalties on the imported go ods . As aptly observed by the respondent , freightage is ne v rr a fa c tor in determining thE' responsibility of the vespel under Se ction 2523 of the Tariff and Customs Codc o Accordingly , sinc e 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 c lared weight (59 , 938 l bs.) ; nd the ac tual weight {131 , 388 l bs . ) of the subje::oct import~tion (5 1, 0 16 l bs . and 7 5 , 152 lb~ . in the instant appeal ) , whi c h discX""'Y)2nc y is obvious l y more than 20;& of the �;q .\r eig hlets1 s an rl s wh i c h is attribu t ab l e to the c are ne s o r of th e ~ ncompetcn c e master , officer or emp l oyee of the v esse l be c ause of his relianc e so l el y on the de cl arrd weight furnished by the shipper and fa il ure to take steps to as certain 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 11 Fernbank11 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 , mu c h les s depart from the conclusion reachPd in Ma c ondray & 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 de ci sion 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 c entQ!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--ficien cy exists" , in accor dance with the express provision of the l Rw . (See Macondra y & 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 sin c e the rAcords of the case are silent on this point , we take it that the amount of 111 , 998oOO imposed by respondrnt on MS 11 Quecnsville11 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- c ompetrnce of the master , owner , officer or employPe of the vrs se 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 11 QUPr--nsville 11 and/or potitionrr Macondray & Co ., Inc. , as ship agent of the vessel WHEREFOR� , the dPcision appealPd from is IvDDIFIED and the vessel MS 11 QUepnsville11 and/or petitioner herein are hereby orderPd to pay to the Bureau of Customs the finP of '3 ,5CO ..OO for violation

D'S ISIOtr - S .T. A. C S_ rD. 2758 - 10 - of Section 2523 of the Tariff 2-nd Customs ~odro ~lith costso 3) ffiDF. :SD ., Quezon City, A ri1 28 , 1978. ~m. / M NTE 7r~~ cting Prsiding Judge I COf\CUR: J C~WQUIN s~ c,i t~ Judge �