CTA Case No. 2745 (Decision)

REPU~1.1(: oF THF PillL!#r. ~ce CoURT o; 'lAX APPEALS QUEZON CITY IN'rERNATIONAL HARVESTER, .MACLEOD~ CTA CASE ~0 . 2745 INC ., in its cap~city as agent o f the ves se l M/S " TAI MYR "~ Petitioner, - versus - COMl'~USS I ONER OF CUSTOMS 1 Respondent . X- - - - - - - - - - - - - - - X DE C I S I 0 N Petitioner Inte rnational Harvester Macleod, Inc ., in its capacity as agent of the v essel M/S "TAIMYR", has appealed f rom the dec ision of respon:_ dent Commissioner of Customs, dated August 25, 1975, affirming the decision o f the Collector of Customs of Manila (in Administrative Case No . V-781/73) im- posing a fine of P5 , 000g00 upon the sai d vessel f or the violation of Section 25 29 (h) - 5 of the Tariff and Customs Code , as ame nded, and Customs Adm inis- trative Order No . 2- 71 dated June 3, 197lo The part.ies have submitted the case for deci- sion based on the pleadings and customs r ecords , wherein the following facts appear : On May 7, 1973, petitioner International Harvester Macleod, Inc . , ship age nt in the Philippines of the Norwegian ve ss el M/S "TlUMYR ", sent a � l e tter I to the Bureau o f Customs, advising the l a tt e r that

DECISION - C . T . A. CASE NO . 2745 - 2- said ves s el was arriving at the Port of Manila loaded, among other cargoes, with chemicals and explosives consigeed to the Philippine Explosives Corporation. On May 10, 1973, while still outside the breakwater, the vessel ' s Hatch No. 4 caught fire and it was dis- covered by Customs Inspector Alfonso Catambay, who boarded and inspected the vessel, that the fire was caused by the burning of chemicals . The fire was extinguished only on May 14, 1973p The following day1 Ok on May 15, 1973 , petitioner, through its manager, requested the Customs Berthing Officer in writing that the M/S "TAIMYR" be assigned a pier berth in order that it can discharge its cargoes, and stating therein that the hatch that caught fire had already been cleared. This request was granted by customs authorities and the vessel was allowed to dock at Pier 5, Berth 4, after a chemist, who was hired by petitioner, conducted an occular inspection to determine the pre- sence or absence of smoke or fumes resulting from the fire and who had submitted a report, the pertinent portion of which reads: FINDINGS AND OBSERVATIONS : 1 . After boarding the ship, the first and some uortion of the cover of the second deck of Hatch # 4 were noted opened. Several p e rsons were also noted cleaning and collecting burned trash from the cove r of the second deck.

. -I DECISION - C . T . A. CASE NO . 2745 T - 3- 2o Hatch Noo 4 has three deckso Only the first and second decks were inspected in as much a s there is no access door through which deck No . 3 could be insp ectedo N0f smo ke o r fumes were noted coming from the rst an d i second deck o 3o All mate rials seen still inside the two decks were noted charredo REMARKS AND RECOMMENDATION: Based on the above findings and observa- tions, it is recommended that the unloading shall only be made of the cargo in first and second decks of Hatch Noo 4p Unloading the 3rd deck i>Vill only be undertaken afte r it has been deter- mined that it contains no fumes hazardous to hu- man healtho �ased upon the above recommendation and the granting of the request to discharge its cargoes~ i t bega n to unload its cargoeso Unfortunately1 on May 16, 1973, during the unloading of the cargoes, some stevedores working in the are a of Hatch 4 of the ves- sel were - seriously ill by showing ~tqq� of stricken dizziness and during their confinement and treatment in the hospital, four (4) of these stevedores died of gas poisoning. As � a result of this incident* work on board the vessel was immediately stopped/ and all hatches of the vessel were closed upon order of the Deputy Collec tor of Customso Subsequ4ntly, Administrative Case N0 � V-781/ 73 was instituted by the Collector of Customs of Manila against the ve s sel M/S "TAIMYR" (with petitioner rep- resenting it as party-respondent) for causing the emission and spread of harmful gas, fumes and chemicals

DECISION - C . T . A. CASE NO . 2745 - 4- in violation of Section 2529 (h) - 5 of the Tariff and Customs Code, and for the alleged failure to state in its 11 notice of arrival" of the existence of explosives and inflamables on board there of in violation of Customs Administrative Order Noo 2- 7lr dated June 3, 1971 9 On December 12, 1974 , after proper hearing, the Collector of Customs rendered a decision holding the M/S "TAIMYR" liable . as charged, and punished by a fine of f>"?,OOO.,OO , thus: In this connection, evide nce show that the ves s el before entering this Port �caught fire produced from chemicals it carried and destined for this Port . When Ha.tch 4 was opened while already in Port aod after the fire has b een a llegedly put out, a thick smoke billowed out of the hatch. This Of- fice takes notice that smoke from the ves- sel has been seen as far as Sta. Cruz and Sam aloe with attendant abnoxious odor ., It may be stated that four 4 stevedo res ha:d died while severa l others we re str icken ill alle gedly as a consequence of this particu- lar incidento In view of the foregoing, this Office finds and so hol ds that the M/ S 11 Taimyr 11 is liable for the imputed violations . 'i~HEREFORE 1 by virtue of Sec tion 2312 of the Tariff and Customs Code, i t is hereby ordered and decre ed that the ves sel M/ S "Ta imyr" for violation of Section 2529 (h) - 5 of the Revis e d Tariff and Customs Code, and also Customs Administra t ive Order No. 2-71, covered by Admini s trative C2se No. 781/7 3. be me t ed a fi n e of FI~E THOUSAND ( ~ 5 1 000o 00) PESOS . Fai lur e of resp o n dent vesse'l to pay said fine winh i n fifteen (1 5) days from re- ceipt he reof subjects the vessel to seizure pursuant to Section 2533 of the Tariff and

DECISION - C . T . A. CASE NO . 2745 - 5- Cu s toms Code . (Underlining s uppli ed) Upon appeal# the Commissione r of Customs, on August 25, 1975, affirmed the d e cision of the Col- lector, holding as follows: After a care ful s crutiny of the facts of this case, this Office finds no possible excuse for the guilt of the ves s el . All ave- nues point to the inexcus able negligence and nonchalant attitude of the respondent in its concern for the safety and well- being of the are~ whe re the vessel is to dock. Knowing fully well that th e vessel was loaded with chemicals and explosives that was on fire for days1 precautions should have been in- tensified enough ~ to secure that no ill- e f fects would follow when the burnt hatches will b e opened .. As it was, the respondent merely relied on a half hazzard r epor t of a chemis t who did not probe enough to really d e t e rmine t h e extent of the damage . Every- thing was assume d that the f i re was already contamned but as to the effe c ts of the fire on the chemicals and the explos ives, nothing has been over- emphasized. Thus , the tragic de ath of the four stevedores working on the burnt hatches \-There the harmful gas carne from.;. vlliEREFORE , finding no reason to reve rse or modify the decision appealed from, the same is hereby affirmed. Hence, this present appeal., The issue is whether or no t the M/S "TAIMYR 11 has committed the o ffe nse mnd ~- i..s _ ~ punishable by a fine of P5 ,ooo~oo f o r violation of section 2529 ( h)-5 of the T~riff and Customs Cod~as ame nded, whic h s tates : SEC. 2529.. Mi scellaneous Offenses .. - The following admini s trative fines shall be imposed upon ~y vessel that s ails or operates under any of the circumstance s hereunder spe- cified: XXX XXX XXX

DECI S ION - C . T . g . CASE NO . 274 5 - 6- h o A ve s s el shall be fined in an amount here~fte r fixed for : XXX XXX XXX XXX (5) Caus ing the emission and spread of h a rmful gas , fumes and chemicals, five thous and pesos for each offense . and Customs Administrative Order No . 2-7lo In maintaining that the vesse l M/ S "TAIMYR " is not liable for violation of said Section 2529 (h)-5 of the Tariff and Customs Code and Customs Administrative Order N0 � 2- 71 , p e tition e r argues (1) tha t the chemicals .on bo a rd the ve s sel were not harmful a s the vessel was allowe d by the Bu- reau of Cu stoms to berth at the pier; (2) that the gas fumes which emitted from the ves s el were not harmful but merel y smelled bad; ( 3) the ship agent had informe d the Bureau of Customs, through the Chief, Water Patrol Division, that the v e ssel was arriving at the Port of Manila with a c a rgo of explosives consigne d to the Philippine Explo- sives Corporation; and ( 4 ) the ves s el was given a clearance and permission by the Bure au of Cus - toms t o berth at Pie r 5 to unload its cargoes., (Paragrap h V, Petition, p . 2, CTA rec . ) Furthe r - more # p e titioner cite s~in supp ort of its plea of non-liabi lity, the f ind ings and recommendations of the che mi s t who h a d determine d the exte nt of the

DECISION - C . T . A. CASE NO . 27 45 - 7- damage of the cargoes, chemicals, and explosive s (Par . VIII , Petition, Po 31 CTA rec a ) and who certi- fied that unloading can be partly undertaken in the first and second decks of hatch 4 and that unloading in the 3~d deck will be undertaken only after it has been determined that it contains no fumes hazardness to human health. From our perusal of the facts , there appears to be no violation by the M/S "TAIMYR " of Customs Administrative Order N0 � 2- 71 . The letter of peti- tioner dated May 7, 1973~ which was presented as evidence during the administrative proceedings in the Bureau of Customs (Exh . lr p p 731 Customs rec. ) and, i n fact, admitted by the Commissioner of Customs in his decision (p o 1 581 Customs rec . ), had properly adviced the Bureau of Customs , through the Hater Patrol Division1 that the vessel was arriving at the Port of Manila with a cargo of chemicals and explosives consigned to the Philippine Explosives Corporation.. The said letter, in our opinion, cons- titutes a sufficient notice or information as to the existence of explosives and inflamables carried by the vessel and s ubstantially satisfies the require- ment � of Customs Administrative Order No . 2- 7 l o How- ever, the facts and circumstances of the case strongly justify the conclusion that the vessel and/or peti- tioner here in are liable for violation of Section 2529

DECISION - C . T . A. CASE NO . 2745 - 8- (h)-5 of the Tariff and Customs Code . From the re- cords of the Bureau of Customs, we find no iota of evidence to support petitioner's allegation that the chemicals on board the ves s el and the gas fumes which emitted therefrom were not harmful o In fact, from the very tenor of the report of the chemist (Exh9 6z p . 68 , Customs rec. ), which has been cited by petitioner, the recommend~tio n based on his fin d ings and observat ions, was that the unloading of the cargoes shall only be made on the first and second decks of Hatch N0 .. 4 where the fire took place but that "the unloading of the third deck will only be undertaken after it has been determined that it contains no fumes hazardous to human h eal tho" ,; S~id report of the chemist, which v.1as made after the f ire had b e en extinguished, was with caution'-' which implies, th a t the unloading of cargoes was not yet wholly safe as the hatches may still contain gas fumes which are dangerous to human health o There is nothin g in the said report of the c hemist which states that the chemicals or gas fumes are not harmful as averred by petitioner.,.

DECISION C.T.A . C SE NO. 2745 - 9- In the absence of compete nt and positive evi- dence that the chemicals and gas fumes emitted from the vessel were not harmful and that the illness of some* and death of four., stev edore s working on board the ve ssel during the unloading of the cargoes, were not caused by, or connected with, the said gas ~umes and chemicals, the inevitable and inescapable conclusion is that the gas ~umes and chemicals were not only harmful or injurious but patently lethalo To our mind, for the violation of Section 2529 (h)-B of the Tariff and Customs Code, as am e nded~ it is of no mome nt, much l e ss an exculpatory def e nse,. that the petitioner informed the Bureau of Customs that the vessel M/S "TAIMYR" was carrying chemicals and explos ives and that s aid ves s el was permitted by Customs authorities to dock at the pier afte r the fire was extinguishedo The act or o f f ense punishable by law is 11 for causing the emission and spre ad of harmful ga:s, fume s and chemicals," and this circums- tance had occurred exactly in this case. Besides, we believe t hat the clearance or p e rmi ss ion g ranted by the Bureau of Customs for the said vessel to berth at the pier cannot be an evide nce to establish th e fact tha t the chemicals which the v e s s el carried and the gas fumes it emitte d were not harmful or in~urious to human h e alth. In fa ct, that permi s sion

';' DECISION - C . T . A . CASE NO . 2745 - 10 to berth the vessel and unload its cargo can not even be a guarantee that the vessel was free f rom and not responsible for inj urious s ubstances1 s uch as gas fumes and chemicals , the emi ssion and harmful eff ects of which were particularly within its full c o ntrol a t all times that the chemical s and explosives were on board thereof . For this violation of the v essel, we find no circumsta nc e that will mitigate the fine imp o sed by the Bur e au of Customs . For, i n deed, extreme preT cautions should have been taken by the officers and crew membe r s of the vessel to prevent the commissio n of the offense, knowing as they d id that a fire had already occurred in that p orti o n of the v ess el v-1here the cargo of chemicals a nd explosives were loaded . ~lliEREFORE 1 the deci sion appealed from is here by affirmed . Th e v essel M/S "T.: IMYR" and/or its agent , the International Harvester, Macleod, Inc . , i s ordered to pay to the Burea u of Cus tom s a fine of r 5,ooo . eo fo r violation of Section 2529 (h)-5 of the Tariff and Customs Code, a s amended. F ailure of s a i d ve ssel and/or its ship agent to

DECI SION .... C. T . A. CASE NO . 2745 - 11 - pay the fine will subj e ct the former to s eizure unde r S ection 2533 of the Tariff and Customs Co de, as amended o With costs .. SO ORDERED . Quezon City, D ec e~ber 23, 1977o c~~~1oAQUIN ~ Associate Judge I Acting Pre iding Judge