DOJ Opinion No. 069, s. 2004

DOJ OPINION NO. 069 , s. 2004 June 15, 2004 Commissioner Antonio M. Bernardo Bureau of Customs Port Area, Manila Sir : Reference is made to your request for legal opinion relative to the interpretation of Section 1009 of the Tariff and Customs Code (TCC) of the Philippines, as amended, which reads: "Section 1009. Clearance of Foreign Vessels To and From Coastwise Ports . Passengers or articles arriving from abroad upon a foreign vessel may be carried by the same vessel through any port of entry to the port of destination in the Philippines or articles intended for export may be carried in a foreign vessel through a Philippine port. iatdc2004 Upon such reasonable condition as he may impose, the Commissioner may clear foreign vessels for any port and authorize the conveyance therein of either articles or passengers brought from abroad upon such vessels; and he may, likewise, upon such conditions as he may impose, allow a foreign vessel to take cargo and passengers at any port and convey the same upon such vessel to a foreign port ." (stress supplied) Specifically, your inquiry is: (W)hether a liberal interpretation of the provision, particularly the second paragraph thereof, is legally tenable such that the Commissioner of Customs, upon such reasonable condition as he may impose, may allow export cargoes to be loaded onto any foreign vessel at a Philippine port for transshipment to another domestic port, and their eventual conveyance by the same or another foreign vessel to a foreign port of destination. We surmise that the request is made in view of the apparently divergent opinions expressed on the matter by the Export Development Council (EDC), on one hand, and the domestic shipping lines and the Maritime Industry Authority (MARINA), the government agency which has jurisdiction over domestic shipping, on the other, as revealed by the documents accompanying your request. The EDC adheres to the view that the Commissioner of Customs may "allow transshipment by a foreign vessel of foreign (export/import) cargo corning from or headed towards a foreign port to or from any Philippine outport, provided that the cargo has not entered Philippine commerce". In support of its position, EDC submits that "[e]xport goods and the carriage of the same are part of foreign commerce and should not be misunderstood as part of domestic trade" and, citing DOJ Opinion No. 79, 1998, that "[i]n statutory construction, the law must be interpreted in accordance with the developments and conditions of the period to give it full substance and efficacy". However, both MARINA and the domestic shipping lines contend that "a liberal interpretation would entail coastwise trade and would thus be violative of the cabotage principle" and that the "passenger or articles must be carried by the 'same vessel'". Upon the other hand, you state that it is clear from the aforequoted provision that a foreign vessel is allowed to load export cargoes at any Philippine port for conveyance to a foreign port by the same vessel; and that while the movement is domestic transshipment, it only involves foreign vessels and export cargoes, hence, falls outside the meaning of coastwise trade. HTASIa Although the Secretary of Justice, in line with settled policy and precedents, does not pass upon issues which involve the substantive rights of private parties, in this case, EDC and the domestic shipping lines, upon which the opinion of this Department has no binding effect and which might, in all probability, take the matter to courts when they find the opinion adverse to their interest, 1 we will endeavor to resolve and clarify the issue at hand considering that we have previously ruled on a similar request. In Opinion No. 73, s. 1997, this Department, acting upon the request of then MARINA Administrator RAdm Pio H. Garrido, Jr., for the proper interpretation of certain provisions of the TCC, as amended, particularly Section 1009 thereof, categorically stated: . . . Section 1009 , viewed in its entirety, clearly allows a foreign vessel to carry and unload its passengers and/or cargoes from abroad at any Philippine port, not necessarily a port of entry, subject to prior clearance from the Commissioner. It also allows a foreign vessel, also with prior clearance from the Commissioner, to load passengers and/or cargoes destined for abroad at the port of disembarkation (i . e . the port where passengers and/or cargoes from abroad are unloaded) or other local port and convey the same directly to a foreign port of destination . Section 1009 does not in terms provide that a foreign vessel may pick up passengers and/or cargoes at one local port and unload them at another local port for loading in another foreign vessel. And we do not think that the provision can be construed as authorizing such activity. Otherwise, a foreign vessel could engage in coastwise trade which is a nationalized activity reserved only to vessels of Philippine registry (see Sec. 902, infra ). xxx xxx xxx With respect to foreign vessels, the general rule is laid down in Section 1001 which mandates that such foreign vessels "shall touch at ports of entry only . " But it also admits of exceptions when it states: except as otherwise specially allowed ", obviously referring to a case under Section 1009 where the Commissioner allows a foreign vessel carrying passengers and/or cargoes from abroad and destined to a Philippine port, not only to touch at a port of entry, but proceed to and unload its passengers and/or cargoes at the port of destination; or a case under the same provision where the Commissioner allows a foreign vessel to load passengers and/or cargoes at any local port or transshipment directly to a foreign port of destination . . . . Based on the foregoing, we are of the view that a foreign vessel may be allowed by the Commissioner to unload its passengers and/or cargoes loaded from abroad at any Philippine port, not necessarily a port of entry, and likewise to pick up passengers and/or cargoes destined to a foreign country at any Philippine port and the same vessel to directly convey such passengers and/or cargoes for unloading at the final port of destination abroad . 2 Indubitably, and as we have stressed, while Section 1009 does not of itself gives foreign vessels the privileges stated therein they being restricted by Section 1001 to "touch at ports of entry only", the Commissioner of Customs is given under Section 1009 the discretion "upon such condition as he may impose" whether to allow or not foreign vessels to take passengers/cargoes at any port of entry and convey the same to a foreign port. The provision of Section 1009 is clear and leaves no room for doubt. The use of the word "may" is permissive and operates to confer discretion. 3 For the same reason, there is no need for an interpretation, liberal or otherwise, only application. This is consonance with the settled doctrine in statutory interpretation that only statutes with an ambiguous or doubtful meaning may be the subjects of statutory construction. 4 The rationale being that when the law speaks in clear and categorical language, there is no room for interpretation; there is only room for application. 5 Please be guided accordingly. Very truly yours, (SGD.) MA. MERCEDITAS N. GUTIERREZ Acting Secretary Footnotes 1. Secretary of Justice Opinion 1, s. 2004, citing opinions. 2. Id ., No. 73, s. 1997; emphasis ours. 3. Bersabal vs. Salvador , 89 SCRA 176, citing Dizon vs. Encarnacion , 9 SCRA 714. 4. Daoang vs. Municipal Judge , 159 SCRA 369 (1988). 5. DOJ Op. No. 88, s. 2003, citing cases.