Rules and Regulations Implementing The Philippine Geodetic Engineering Act of 1998

THIRD DIVISION [C.T.A. CASE NO. 7671. August 23, 2011.] BARGE "CHERYL ANN," REGISTERED TO GOLD MARK SEA CARRIERS, INC. , petitioner , vs . COMMISSIONER OF CUSTOMS AND UNDERSECRETARY OF FINANCE , respondents . RESOLUTION BAUTISTA , J p : For resolution are: a) The "Motion for Reconsideration" filed by respondents on March 10, 2011, praying for the reconsideration of the Decision promulgated on February 17, 2011, which granted the Petition for Review and ordered the release of the barge "Cheryl Ann"; b) The "Motion to Admit Attached Comment with Notice of Change of Address," with attached "Comment," filed by petitioner on June 23, 2011; and c) The "Manifestation" filed by petitioner on June 30, 2011. The fallo of the assailed Decision reads: WHEREFORE , the Petition for Review is hereby GRANTED . Accordingly, the 3rd Indorsement dated May 9, 2007 issued by the Department of Finance, Undersecretary of the Legal and Revenue Operations Group, Gaudencio A. Mendoza, and the 4th Indorsement dated May 17, 2007 issued by the Bureau of Customs, Commissioner Napoleon L. Morales, insofar as barge "Cheryl Ann" is concerned, are hereby REVERSED and SET ASIDE . The respondent Commissioner of Customs is hereby ORDERED to IMMEDIATELY RELEASE the barge "Cheryl Ann" to petitioner. DcCIAa SO ORDERED . 1 In its Motion for Reconsideration, respondents assign the following grounds: I. THE HONORABLE COURT ERRED IN HEAVILY RELYING ON THE ANTECEDENTS INVOLVING THE RELEASE OF THE TUGBOAT M/T "JACOB 1"; II. THE HONORABLE COURT ERRED IN CONSIDERING THE TUGBOAT M/T "JACOB 1" AND THE TOWED BARGE "CHERYL ANNE" AS PRINCIPAL AND ACCESSORY, RESPECTIVELY. Respondents assert that the Court failed to consider the forfeiture of the cargo of the barge "Cheryl Ann," i.e. , used oil, which is governed by Republic Act ("RA") No. 6969, 2 otherwise known as the "Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990," as implemented by Department of Environment and Natural Resources ("DENR") Administrative Order No. 29-92; thus, its movement is highly regulated, controlled, and violations thereof should be sanctioned. They also argue that insofar as transportation is concerned, greater responsibility is demanded upon the owner of the barge "Cheryl Ann," since DENR Administrative Order No. 29-92 requires, inter alia , its registration as a "waste transporter," and documents evidencing the nature of the hazardous cargo. Therefore, the tugboat "Jacob 1" and the barge "Cheryl Ann" cannot be validly considered as principal and accessory, respectively, simply because of lack of mobility. TcDAHS On the other hand, the Court upon perusal of petitioner's "Motion to Admit Attached Comment with Notice of Change of Address," and "Manifestation," hereby resolves to GRANT the "Motion to Admit Attached Comment," and NOTE the "Notice of Change of Address" and "Manifestation." Accordingly, the attached "Comment" is hereby ADMITTED . Petitioner then insists that since it was able to establish that barge "Cheryl Ann" is a non-motorized vessel which was merely being towed by the tugboat "Jacob 1," the case of forfeiture under Section 2530 will not prosper considering that the barge was only forced to dock at the Port of Surigao due to emergency bunkering of the tugboat, as duly approved by the respondents. Petitioner further maintains that the factual circumstances of the case clearly show that it has no intention to defraud the government since there was no evidence to prove any intention to unload the subject cargo. After a careful consideration of the parties' submissions, the Court finds no reason to reverse or modify the assailed Decision. To reiterate, the barge "Cheryl Ann" is a non-motorized vessel being merely towed by tugboat "Jacob 1," and as duly found by respondents themselves, the latter is bound to Malaysia and would have arrived thereat were it not for the damage sustained by the tugboat necessitating an emergency bunkering at the nearest port, i.e. , the Port of Surigao. Thus, the entry of the barge into the Philippine jurisdiction was only due to the emergency needs of the tugboat. aECTcA It would therefore be absurd to relieve the tugboat "Jacob 1" of its liability, while at the same time to order for the immediate forfeiture of the barge "Cheryl Ann." Further, as clearly stated in the Disposition Form, 3 the obligation to secure permits and clearances for the importation or exportation of the cargo does not fall on the vessel the barge "Cheryl Ann" but on the owners of the cargo. Therefore, the failure of the cargo owner to secure the necessary permits/clearances to transport the used oil, and the consequent penalty thereto cannot be imposed upon the vessel subject of the case at bench. Furthermore, based on the records of the case, the Pollution Adjudication Board of the DENR ordered on February 2, 2007, the release of the tugboat "Jacob 1," subject to the payment of reduced fines amounting to Fifty Thousand Pesos (P50,000.00). A Certification from the said adjudication board was issued stating that OSM has paid the said fines in compliance with its order. 4 Thus, the barge "Cheryl Ann" must likewise benefit thereto since, as indubitably established from the records of the case, it was merely being towed by the tugboat "Jacob 1." WHEREFORE , premises considered, the Motion for Reconsideration filed by respondent is hereby DENIED for lack of merit. SDHETI SO ORDERED . (SGD.) LOVELL R. BAUTISTA Associate Justice Olga Palanca-Enriquez and Amelia R. Cotangco-Manalastas, JJ., concur. Footnotes 1. Records, p. 378. 2. An Act to Control Toxic Substances and Hazardous and Nuclear Wastes, Providing Penalties for Violations Thereof, and for Other Purposes, dated October 26, 1990. 3. Exhibit "A," Annex "E." 4. Exhibit "E," p. 6.