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[CEBU UNITED ENTERPRISES v. VS.JOSE GALLOFIN](https://lawyerly.ph/juris/view/c3401?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. L-12859, Nov 18, 1959 ]

CEBU UNITED ENTERPRISES v. VS.JOSE GALLOFIN +

DECISION

106 Phil. 491

[ G.R. No. L-12859, November 18, 1959 ]

CEBU UNITED ENTERPRISES, PLAINTIFF AND APPELLEE,VS.JOSE GALLOFIN, COLLECTOR OF CUSTOMS, CEBU PORT, DEFENDANT AND APPELLANT.

D E C I S I O N

REYES, J.B.L., J.:

This  suit for mandatory injunction was instituted in the Court of First Instance of Cebu by the Cebu. United Enterprise to compel Jose Gallofin, as  Collector  of  Customs, Cebu Port, to release and deliver to the plaintiff two imported shipments of 7,834 bales of over-issue newspapers purchased by  the  latter from  the United States.   As ancillary relief during  the pendency of the action,  the plaintiff prayed for the  issuance  of a writ of preliminary mandatory injunction, which  was  granted  by  the court after the plaintiff posted a bond in the amount of P60,000.00 in favor of  the defendant.  Thereafter, the goods  were released to the  plaintiff, it  appearing  further  that the advance sales tax due on  the same had been  duly  paid upon  arrival of the merchandise at port.

The importation of the aforesaid shipments was made under and by virtue of an  Import  Control Commission License  No.  1225 issued by the defunct Import Control Commission.  Under the terms of the license, the plaintiff could import, on a no-dollar  remittance basis,  over-issue newspapers up  to the amount or value of $118,000.00.

The refusal of the  defendant to deliver the  imported items is premised on  his contention that while the  five bills of lading covering the two shipments of the over issue newspapers were all dated at Los Angeles, U.S.A. December  17,  1953, or one  day before  the expiration  of the import license in question, the vessels M/S Ventura  and M/S Bataan, carrying on  board  the said  merchandise, actually  left the ports of embarkation, Los  Angeles,  and San Francisco,  on January  12 and January  16,  1954 respectively.  Hence, according to the defendant, the importation must be considered as having been made without a valid  import  license,  because under  the  regulations issued by  the Central Bank and  the Monetary  Board, "all shipments that left the  port of origin after June 30, 1953, and are covered by  ICC licenses, may be  released by the  Bureau  of Customs  without the  need of a Central Bank release certificate; provided  they left the port of origin within the period of validity of the licenses".  No Central Bank certificate for the release of the goods  having been shown or  presented to  the  defendant,  the  latter refused to make the delivery.

The lower court was thus confronted with the issue of determining whether  the  valid period of the license in question should be counted up to the time when the  vessels carrying the  imported items left the  ports  of origin on January 12 and January 16, 1954, or when the corresponding bills  of lading were dated, or December 17,  1953.  The court chose the latter date, and held:
"IN VIEW THEREFORE, this Court pronounces judgment making the writ  of preliminary mandatory injunction issued against defendant permanent, with orders for the cancellation of plaintiff's bond, this after whatever  advance sales tax or any taxes, surcharges and so forth might be due on the goods shall have been paid, without costs."
The defendant appealed to the Court of Appeals.  The question  raised,  however, being  purely  one of  law,  the appeal was certified to us pursuant to a resolution of said court dated July 19, 1957.  The  appeal has no merit.

The authority of the appellee to import was contained in the Import Control  Commission  License No.  17225, validated on June 18, 1953, and under Resolution  70 of the Commission (adopted March 27, 1952), the same had  a six-month period  of validity counted  from  the  said date of June 18, 1953.   This license states-,  among other conditions, that
"Commodities  covered by  this license must  be skipped  from the country of origin before the expiry date of the license, and are subject to sec. 13 of Republic  Act No. 650."
Although Republic Act No. 650, creating the Import Control  Commission,  expired on  July 31,  1953,  it is  to be conceded that  its duly executed acts can have valid effects even  beyond the life span of said governmental agency.

What is important to  consider  only  is the legal connotation  of the word  "shipped" as the term was  used in the license.   Defendant  maintains that  it is when  the  vessel leaves the port of embarkation, while plaintiff  holds that it is  the dates of the bills of lading, which  are usually issued after the cargo is placed on board the vessel.   That the date of the shipment is the  date  when the  goods for dispatch are loaded on board the vessel, and not necessarily when the ship puts to  sea, is  clearly  implied  from our ruling in the case of U.S. Tobacco  Corporation vs. Rufino Luna, et al., (87 Phil., 4), wherein we said:
"By section 6 of Act No. 426, all  goods including leaf tobacco have  been placed under control.  Petitioner's  merchandise left the port of departure before the passage of that Act but arrived  in Manila after its approval.   For the purpose of enforcing  or applying said Section 6, there can only be one date of importation.  Which was the date?  The date the goods were ordered  the date they were put on board vessel, or  the date they reached the port of  destination? We are of the opinion  that the date of  importation is.  the date  of shipment and not the date of arrival in Manila."  (Italics supplied)
The  issuance of  the  bill of  lading,  furthermore, presupposes or carries  the  presumption that the goods  were delivered to the carrier for immediate shipment (13 C. J. S. sec.  123 (2). pp. 235, and cases cited therein).  It does not  appear here that  the bill  of lading specified any designated day on which the vessels were to lift anchor, nor  was it shown that plaintiff  had any knowledge that the vessels M/S Ventura and M/S Bataan  were not to depart soon after he placed his  cargo on board  and the corresponding bills of lading issued to him.  From this latter time, the goods, in contemplation of law, are deemed already in transit (New Civil Code, Arts. 1531 and 1736).

It should also be considered that it is entirely outside the shipper's hands to fix the dates of departure, route or arrival  of  a vessel  (unless he  charters the  whole ship [see Art. 656, Code  of Commerce]).

Defendant's reliance upon Central Bank regulations that the shipment licensed must have "left the port of origin within the period of  validity of  the license" is not maintainable in the present  case, because the regulations came into effect only on July 1, 1953 already after  issuance of the appellee's license and can not be "read into the same (see 49 Off. Gaz. No. 6, p. 2189).

The Solicitor General's  contention  that, assuming the six months are counted up to the date the imported goods were placed on board the vessels for shipment the period of validity had  likewise already elapsed because, legally, six months mean 180 days, which in this case expired  on December  15,  cannot  now  be  entertained because  the defendant-appellant, under paragraph  3 of his Answer to the "Complaint, expressly admitted that the date appearing on the bills of lading (December 17, 1953) as the date of loading on board the vessels " is one  day before the expiration of the validity of the import license".  What  he only questioned in the court below is the legal connotation of the word "shipped" under the import license.

In the light of the  resolution we  have taken on the main issue, it becomes unnecessary  for us to dwell further upon the other  questions raised by the parties.

Wherefore,  the  appeal  should  be dismissed  and  the judgment of the  lower court affirmed.  So ordered.

Paras, C.  J.,  Bengzon, Padilla, Montemayor,  Bautista Angela, Labrador, Endencia, Barrera, and Gutierrez David, JJ., concur.

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