COMPAÑIA GENERAL DE TABACOS DE FILIPINAS, PETITIONER, VS. ACTING COMMISSIONER OF CUSTOMS, RSPONDENT.

The lone question tendered for resolution is whether a vessel, engaged
in foreign trade, which berths at a privately-owned wharf or pier is liable to
the payment of berthing fees under section 2903 of the Tariff and Customs Code
which reads:

“Ports without cargo shed.  – Every vessel engaged in foreign trade which
berths at a pier, wharf, bulkhead-wharf, river or channel marginal wharf at any
national port in the Philippines without cargo sheds, or which makes fast to
any vessel lying at such wharf or pier, for the purpose of discharging and/or
loading cargo shall pay a berthing fee of three centavos per registered gross
ton of the vessel for the first twenty-four hours, or part thereof, exceeding
three hours: Provided, That the maximum charge shall not exceed three
hundred pesos per day.”

The petitioner, contending that it was
exempt from the payment of such fees, asked for a refund of what it had
paid.  The Collector of Customs of the port
of Cagayan de Oro
denied the claim for refund.  So did the
Commissioner of Customs.  A resort to the
Court of Tax Appeals likewise proved unavailing.

Hence the present recourse.

In June, 1961 the vessels Rita Maersk
and Effie Maersk docked at the Bugo pier at the port
of Cagayan de Oro,
for doing which the Collector of Customs of the port levied and assessed on
them the sum of P379.25 as berthing fees. 
The petitioner Compañia General de Tabacos de Filipinas, as agent of the ships, protested the
imposition and collection of the fees on the ground that the Bugo pier is owned and operated by the Philippine Packing
Corporation, and that under section 2903 berthing fees are assessable only
against a vessel berthing at a Government pier or wharf.  It maintains that such charges can be
collected only if the Government affords pier sand wharf facilities in the
port.

To begin with, berthing charges are assessed against, a vessel
“for mooring or berthing at a pier, wharf, bulkhead-wharf, river or
channel marginal wharf . . . or for mooring or making fast to a vessel so
berthed; or for coming or moor­ing within any slip, channel, basin or river or
canal under the jurisdiction of any port of the Philippines.”^[1]
They are like wharfage dues in the sense that they
are imposed for the use of the wharf regardless of the ownership thereof, the
only difference between the two being that while berthing charges are assessed
against the vessel,^[2] wharfage dues are assessed against the cargo.^[3]
In an early case,^[4]
this Court noted that the old Customs Tariff Law of November 15, 1901 “has
been construed . . . to mean that the Government of the Philippine Islands is
entitled to levy and collect a duty of $1 per gross ton ‘as a charge for wharfage’ upon all articles, goods, wares and merchandise
exported, through the ports of entry of the Philippine Islands, and that
construction has been acquiesced in and accepted, and the money paid without
any protest or objection for twenty-six years, for many years of which the
Government never even owned or operated a wharf.”^[5]
This was held significant because “the very fact that Congress has not
seen fit to repeal or change the law is a very potent argument in favor of
sustaining that construction.”^[6]
The Court could rightly conclude, therefore, that wharfage
dues are collectible regardless of the fact that shipment is made from a
private wharf.  That is still good law.^[7]
And as berthing fees are identical to wharfage dues
in policy the same rule must perforce apply with respect to them.

Is this a governmental imposition from which there is no
conceivable benefit to be derived by those on thorn it falls?  As noted in Philippine Sugar Centrals
Agency, the money derived from wharfage dues
(and We may add, from berthing charges) constitutes a trust fund for the
purpose of acquiring and constructing wharves by the Government.  The Government maintains bodies of water in
navigable condition and is to support its operations in this regard that dues
and charges are imposed for the use of piers and wharves regardless of their
ownership.  Otherwise stated, these dues
and charges are in the nature of taxes which are collected by the Government to
support its operations in relation to customs affairs.^[8]

Indeed, the issue is not one of first impression.  In Luzon Stevedoring Corporation vs. Court
of Tax Appeals and Commissioner of Customs,^[9]
where the factual setting is similar to that in the case at bar, this Court,
speaking through Mr. Justice Conrado V. Sanchez,
unequivocally sustained the Government’s right to collect berthing charges even
if the pier be privately owned, in the following words:

“Adverting to the terms of the law, it is quite apparent that
the government’s right to collect berthing charges is not planted upon the
condition that the pier be publicly owned. 
The statute employs the word pier — without more.  Nothing there said speaks a private or
public pier.  Where the law does not
exact the nature of ownership as a condition, that condition should not be read
into the law.  We are not to indulge in
statutory construction.  Because the law
is clear.  Our plain duty is to apply the
law as it is written. * * * *

“It thus results that a vessel which as much as comes
within any slip, channel, basin, river or canal under the jurisdiction of any
port in the Philippines is subject to the charge.  It is unnecessary that that vessel be moored
to a pier or to a berthed vessel.  But
why?  Because port facilities afford
benefits to the vessels mentioned in the statute; and the maintenance and
development of the port, and the purchase, conditioning and replacement of the
equipment thereof — all to enable such vessels to make use of pier or wharf —
are the concern of the government.^[10]
Petitioner’s vessels enjoy the benefits of such governmental undertaking.  Petitioner should thus contribute
thereto.”

ACCORDINGLY, the decision dated January 28, 1965 of the Court of Tax Appeals is
affirmed, at petitioner’s cost.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, and Angeles, JJ., concur.

Concepcion, C.J., in the result.

^[1]
Tariff and Customs Code, sec. 2901.

^[2] Id.

^[3] Id.,
sec. 2801.

^[4]
Philippine Sugar Centrals Agency v. Collector of Customs, 51 Phil. 131
(1927).

^[5] Id.143.

^[6] Id,
at 148.

^[7] See,
e.g., Hawaiian-Philippine Co. v. Auditor General, L-1840,
Oct. 25, 1967; Procter & Gamble PMC v. Commissioner of Customs,
L-22819, April 27, 1967.

^[8] Cf.
Procter Gamble PMC v. Commissioner of Customs supra, note
7.

^[9]
L-21005, October 22, 1966,
18 SCRA 436, 438-439.

^[10]
Republic Act 2695.