Buenos Aires, April 2003
CARS AND SEEN:
File No. 14.458-A entitled BALTZER MARITIMA SRL C/DGA S/REC. OF APPEAL, and
CONSIDERING:
I.- That on pages 11/15 the plaintiff firm, through its representative, files an appeal against Resolution No. 95/00 of the administrator of the San Lorenzo customs office, issued in file SA57 No. 40/99, by which said firm was sentenced to pay two fines, one of them in lieu of the penalty of confiscation, in accordance with art. 962 of the CA, for being considered that it was carrying on board a vessel consigned to it, merchandise (fuels and lubricants, typical of the ranch regime) without declaring it in the relevant manifest. The plaintiff basically maintains that it declared the said merchandise on the relevant form and that the declared quantities coincide with those in the anchoring report; and that the merchandise was not hidden anywhere on the vessel, nor in a place reserved for the crew, nor in the possession of any crew member; at the same time that the goods were in the usual place for their transport. He makes considerations on the alleged infringement and on its scope, while pointing out different criteria of the same customs judge in analogous situations. He offers evidence and requests that the appealed decision be revoked, leaving the fine imposed without effect, absolving his party and not registering the antecedent.
II.- That on pages 26/28 the fiscal representative answers the transfer of the appeal. He refers to the facts prior to the issue and makes considerations on the type of infraction charged to the plaintiff. He maintains that in this case the merchandise not declared in the manifest of the ranch was in places of access reserved to the crew (one of the assumptions of said type of infraction), without the norm requiring concealment for this assumption. He requests that the customs ruling be confirmed.
III.- That at fs. 37 the fiscal representative accompanies the administrative acts of the background of this case. At fs. 38 the case is opened for evidence, providing for the expert opinion offered by the plaintiff (it is allowed with respect to three of the proposed points and rejected with respect to the other six proposed). At fs. 40 the naval expert is appointed for this purpose, who accepts the position at fs. 11. At fs. 43 and back there is the expert report. At fs. 56 the evidentiary period is closed and the files are submitted to this Chamber G. At fs. 57 the case is set out for argument, with the plaintiff's argument appearing at fs. 61/62 and without the treasury doing so. At fs. 64 the files are set out for judgment.
IV.- That according to the records of the administrative acts. (file SA 57 No. 40/99) background of this case, personnel from the San Lorenzo customs office carried out a mooring visit on the Turkish-flagged vessel Guzin S (consigned to the plaintiff firm in its capacity as maritime agent), a visit carried out at the Vicentin SACI dock within the jurisdiction of said customs office, as a result of which a surplus was found (ranch merchandise not declared in the respective manifest, or in excess of what was declared therein) consisting of 3.295 liters of lubricating oil, 219,29 MT of Fuel Oil and 24,47 MT of Diesel Oil (see records on pages 2/10 of the aforementioned file: mooring report, sounding measurement of fuel and lubricant tanks, declaration of navigation elements and ranch permit), merchandise that was in the vessel's tanks, and by virtue of which a complaint was filed for violation of art. 962 of the CA without seizing said merchandise, the latter for the reasons - lack of means - indicated in the complaint (see pages 1 and 11). On pages 12, file EA 57 No. 594/99 (on 4 pages) was added, through which the plaintiff firm attached form OM 1606 (Control of drafts and soundings, see pages 2 of the aforementioned EA 57-594/99) in which, according to the plaintiff's statement in the presentation, the surplus merchandise would have been declared. On pages 13, the surplus merchandise was appraised, and on pages 14 the amount of the minimum fine was determined. On pages 15/16, the opening of the summary was ordered, with the plaintiff being charged with the reported infringement, with the plaintiff being given the hearing of art. 1101 of the CA, and to inform him (for the purposes of arts. 930/932 of the CA) of the amount of the minimum fine and the fine in lieu of confiscation. At pages 24/26 the plaintiff (by means of an action ratified at pages 33) replied to the hearing. At pages 42 the response to the hearing was provided, denying the informative evidence offered there (it should be noted that in the appeal in this case said evidence was not insisted upon). At pages 45/46 the legal opinion was issued; and at pages 47/50 the appealed judgment was issued.
V.- That in the case, the vessel in question, as it concerns us here, left (on 22.06.99) the Port of Zárate (jurisdiction of the Campana customs) bound for the Port of San Lorenzo (jurisdiction of the San Lorenzo customs) where the anchor visit that gave rise to the complaint in this case took place on 7.07.99, having on board (at that time of departure) the ship's store manifest (that is, the Ship's Store Declaration list that includes the crew list, Crew Effect List - which appears on pages 6/8 of the administrative acts.; see in this regard pages 8 back), which manifest was presented to the San Lorenzo customs on 30.06.99 (see pages 9 of the administrative acts.).
In said manifest (see specifically fs. 6 of the administrative acts), the captain of the vessel omitted to declare (art. 956 inc. c. of the CA) the fuels and lubricants that were the subject of the complaint, that is, he specifically left blank (he only left the dotted line) the space that the document reserved for them.
Consequently, everything verified by the customs service as a result of the measurement of the respective tanks of the vessel during the anchorage visit, with respect to such lubricants and fuels (3.295 liters of lubricants - 1.095 liters of CyL and 2.200 liters of M/E-, 219,29 MT of Fuel Oil and 24,47 MT of Diesel Oil), which as it was seen were not declared as stock, and which according to their nature, quantity and species are proper and/or appropriate to the concept of stock (art. 507 of the CA), and without any evidence or invocation at all in this regard - that such merchandise had been declared in the general cargo manifest, has constituted a surplus with respect to what was declared in the transport documents, that is, undeclared merchandise on board.
Two clarifications are in order in this regard. The first, in the sense that the customs, for the purposes of the complaint, correctly deducted from the total quantities of lubricants, verified (existing on board) and not declared in the food manifest (5.400 liters of CyL lubricants, 2.200 liters of M/E lubricants and 1.400 liters of G/E lubricants), the quantities of lubricants loaded in San Lorenzo (4.305 liters of CyL and 1.435 liters of G/E), destined for food and subject to Food Permit No. 51.989-8 documented on 1.7.99 (see this Permit on page 10 of the administrative acts), since in this way it is clear that these last quantities of the respective lubricants, as loaded (and covered by the pertinent documentation of the aforementioned Permit) at the place of verification of the surplus, did not result only them- to be on board undeclared; and from there the surplus (merchandise on board undeclared) of lubricants resulted, after deducting the aforementioned quantities, of only 3.295 liters (1.095 liters of CyL and 2.200 liters of M/E), this also, as also seen- of the 219,29 MT of Fuel Oil and the 24,47 MT of Diesel Oil. The second clarification, in the sense that the referred surplus resulted with respect to the also mentioned ranch declaration, which as seen- was, and could only be, that of the list of pages 6/8 of the administrative acts. which, as was also seen, was on board when the vessel left Zárate and arrived at San Lorenzo and which was presented to the San Lorenzo customs on 30.06.99/130/135 (arts. 1 b. and 57 594.c., of the CA), without any relevance in this regard to the presentation of file EA 99-12/1 added to fs. 57 of the acts. adm.. Indeed, in said presentation (see page 594 of the aforementioned EA 99-8.07.99/1606), made on 2, it was claimed that the lubricants and fuels (not declared in the stock manifest) were declared in form OM 57 (of Draft and Sounding Control, which appears on page 594 of the aforementioned EA 99-30.06.99/1606), when, on the contrary, the stock declaration is none other than that of the indicated stock list that was on board and was presented on 3, while OM 5 does not constitute a stock declaration but rather the record of the measurement of the fuels and lubricants by sounding the respective tanks, precisely as verification of what was declared in the genuine, due and alluded to declaration in this regard, and precisely with the same data of the verification of the anchoring visit and the consequent tank survey carried out by customs, see pages 1606/8.07.99 of the administrative acts, while, in a corroborating sense, it can be seen that the presentation of said OM 57 (dated 594 according to the receipt of EA 99-1606/30.06.99, without any other date appearing from the OM 7.07.99 itself) is later than both the presentation of the genuine ranch manifest (XNUMX) and the customs verification resulting from the anchoring act (XNUMX). Therefore, the plaintiff's argument in this aspect is unsupported.
VI.- Having thus defined the facts that give rise to the issue at hand, it is necessary to determine their legal framework.
The CA, in its regulation of the on-board stay regime (articles 185 to 190), a regime that specifically includes merchandise on the cargo manifest (article 188), contemplates the case of the shortage in its article 190, establishing in this regard the presumption without proof to the contrary and for tax purposes only - of the importation for consumption of the shortage (with the consequent tax liability), without prejudice to the illicit act that may have been committed. The aforementioned shortage is none other than (as is clearly evident from the context of the arrival regulations as a whole (Title 1 of Section III) the shortage in relation to the merchandise documented in the cargo, cargo or cargo manifests, as the case may be (that is, it includes the shortage with respect to the content of the cargo manifest).
In the regulation of this regime of permanence on board, nothing is specifically stated regarding the surplus on board (that is, regarding merchandise subject to said regime), and therefore nothing is stated regarding the legal possibility of justifying it, being that this surplus - if verified - is obviously also in relation to what is declared and/or consigned in the referred manifests, as well as the surplus - always in relation to said manifests - at the end of the unloading (assumptions that are expressly provided for in arts. 141, 150, 156 and 163 of the CA, and even with the express possibility of prior justification in time and form, in the sole sense that if such justification is not given - the sanctions for the illicit act that has been committed must be applied). Nor in the case in the referred art. 190 - it is expected that the shortage could be justified in a timely manner and in the proper manner, as if this is provided for in the regulated time and form - in the event that the shortage is found upon completion of unloading (articles 142, 151, 157 and 164 of the CA), a shortage which, in such cases, is also obviously a shortage in relation to what was declared and/or recorded in one of the transport manifests.
However, and specifically because (the surpluses and shortages both on board and at the end of unloading) are surpluses and shortages of the same nature, that is to say in all cases and indistinctly in relation to what is documented and/or declared in the aforementioned transport manifests, nothing prevents - and on the contrary it is necessarily analogous - that the surplus found on board (not expressly provided for in the on-board stay regime) has the same treatment as the surplus at the end of unloading, that is to say that it can be justified in due time and form (those regulated for the surplus at unloading) and that if such justification is not given - the sanctions for the illicit act that has been committed are applied (this without prejudice to the fact that in any case and as will be seen the surplus will effectively fall into one of the three illicit acts that, depending on the case and the circumstances, may include it), nor does anything prevent - as indicated to complete the interpretative scheme as a whole - that the shortage noted on board (the one expressly provided for in art. 190) should also be treated in the same way as the shortage at the end of unloading, that is to say that it is also possible to justify it in the regulated time and form (in the case regulated for the shortage at unloading), and that therefore the effect provided for in said art. 190 only occurs in the absence or non-observance of such justification.
In the present case, no justification (understood as the effective accreditation of the fact or circumstance that reasonably and/or without infringing any rule would have caused the undeclared merchandise to be found on board as surplus) has been given in this regard, of any kind (it has only been invoked, inconsistently as it was seen, that the undeclared merchandise was declared). Therefore, since it is appropriate to apply to said surplus, as was said, the same treatment as that of the surplus at the end of unloading, it must be concluded that, there having been no justification in this regard (and precisely by virtue of this) the sanctions must be applied in accordance with the illicit act committed.
In the event of a proven surplus on board (i.e. merchandise on board that has not been documented in any of the transport manifests), the virtual possibilities of the offence committed range from smuggling (this depends on the manner, circumstances and place in which the merchandise is located, as would be the case, for example, if it were hidden in such a cunning manner that it was suitable as a means to prevent or hinder customs control, in which case the type of art. 864 inc. d. of the CA could occur) or its attempt (arts. 864 inc. d. and 871 of the CA), through the infringement of art. 962 of the CA, to the infringement of art. 954 incs. a) and c) of the CA.
In this case, the customs judge has understood that the case falls within the type of infraction of the aforementioned art. 962.
In this regard, it should be noted that (the fact not constituting a case of smuggling or attempted smuggling), by virtue of the provisions of art. 964 of the CA, the figure of art. 962 is more specific than the figure of art. 954, such that, both conducts described in said norms constituting an objective inaccurate declaration made in the manifest in question (the situation of the merchandise that is on board without declaring is demonstrative of a difference between what was declared and what was verified), the fact will fall under art. 962 if any of the elements that typify this figure are present, excluding the omission of the declaration, and only if none of these elements are present, the fact would fall under the type of infraction of art. 954 (always of course that in turn any of the effects of subsections a., b. or c. of said article are present and that none of the assumptions of art. 959 are present).
The aforementioned distinctive elements of the type of art. 962 result from the fact that the merchandise not declared in any of the manifests is found: a) hidden (clearly not in such a way that it could constitute smuggling or an attempt at it), b) in places of access reserved for the crew, or c) in the possession of a crew member (these aspects do not constitute the figure of art. 954).
In this case, the surplus merchandise (both fuel and lubricating oils) was found in the tanks of the vessel (see the tank survey sheet and the customs report, pages 5 and 11 of the administrative acts), that is, in the place where it could be said - naturally said merchandise should be on board, (except that it was not documented in the respective manifest (and except in turn that which was documented although as proof of what was correctly loaded, in the Ranch Permit by which that load was authorized, and which was therefore discounted from the verified as not manifested in the ranch manifest), at the same time that it was not there - although in the tanks themselves - in a double compartment or simulated compartment or some other type of concealment with respect to that natural environment, since this is not stated in the proceedings; therefore, it is evident that it was not hidden (without it being appropriate here, by obviousness, to refer to the concept of hidden or to make further comment on the point), although, also Obviously, it was not visible (i.e., with the naked eye) but its existence or detection resulted from a survey measurement.
The elements or circumstances indicated above as b) and c), must be understood, at the discretion of the undersigned necessarily (in accordance with the rules established by jurisprudence in this regard, that is, not only literally, which is the first mode of interpretation, but also unraveling the spirit of the norm and the intention of the legislator, and harmonizing some provisions with others, cf.: CSJN, Fallos, 297:142 and 303:612 among others), integrated with the concept of concealment of merchandise. It is evident that it is such a situation (some form of concealment - although not constituting smuggling or an attempt at it -) which marks the aforementioned distinctive or more specific character of the figure, since if the undocumented merchandise (and proper to the cargo) were found in the hold of the cargo ship (where the cargo is naturally transported and/or slinged), and therefore in a place of obvious access reserved for the crew (this is obvious), it could not be affirmed that the fact falls within art. 962 (unless, in the hold, it were somehow hidden with respect to the remaining non-concealed merchandise). The references, therefore, to places of access reserved for the crew or to being in the possession of some crew member, must be considered reasonably comprehensive of some specific form of concealment; That is to say, when the merchandise is in the normal sphere of exclusive custody of a crew member (for example, in the captain's cabin, or in that of an officer, in the wardrobe of a crew member, etc.), whether this exclusivity is given with respect to potential passengers or is given between crew members themselves. However, due to the obvious lack of concealment - in the opinion of the undersigned, the figure would not be included when the merchandise is in the natural place of the merchandise, such as in the case of merchandise suitable as cargo that is found in the cargo hold, or, as in the case at hand, in which the surplus merchandise (the lubricants and fuels not declared) is in the proper place of the same (the tanks for this purpose) and without concealment of which there is evidence, especially when dealing with a vessel exclusively for cargo (which is evident from the records of the Ranch Permit of fs. 10 of the administrative acts) so it could not be said that it was hidden from the passengers, and this although, hypothetically, the area where the aforementioned tanks are located would eventually only be accessed by the Captain, the Chief Engineer and some personnel assigned to that area, since such a place reserved for some would evidently be so due to an internal disciplinary aspect with respect to the total of the crew, but not in the sense that the existence there of undeclared or excess merchandise but in the proper place of that merchandise and without intrinsic or autonomous concealment, constitutes only for that reason the concealment that, in the opinion of the undersigned, is required by the figure of art. 962.
Consequently, the figure of art. 962 should be ruled out in the case and therefore it should be classified under the figure of art. 954. In paragraph a) of the latter, since if the surplus had not been detected, the merchandise thereof could (the mere possibility suffices) have entered the market without paying the corresponding taxes for its importation for consumption, constituting this the fiscal damage (in the potential case) of the aforementioned paragraph a); and also in its paragraph. c) because, given that although the carrier does not declare the value and neither he nor his agent intervene in the price or in the negotiation of currencies - the resulting excess merchandise is obviously of a different objective value with respect to the value of the respective declared merchandise, this (thus: the mere difference in value between the resulting and the declared, indistinctly and without more) is framed within the assumption of said section by virtue of the criteria of the SCJN established, successively, in the cases Frigorífico Rioplatense, judgment of 12.5.92, Bunge and Born, judgment of 11.6.98, and more recently and in specific reference to the liability of the transport agent in these cases - Agencia Marítima Río Paraná, judgment of 30.4.02, criteria that the undersigned abide by for elementary reasons of procedural economy without prejudice to leaving their opinion to the contrary.
Therefore, in accordance with the provisions of art. 954, paragraph 2 of the CA, it is appropriate in this case to apply the penalty provided for in paragraph c), and therefore, taking into account the determination of the value of the excess and/or undeclared merchandise in this case (which is the value of the difference between what was declared and the resulting value), a determination made on page 13 of the administrative acts and not disputed, the plaintiff should be imposed, for the surplus in question, only a fine of $29.410,56 (art. 926 of the CA).
It should be noted that the decision thus made is appropriate as a legal re-clarification of the alleged act, without the need for a new hearing to be held on the matter, by applying a fortiori the provisions of art. 1102 of the CA (if possible for the customs judge, it should also be possible in the appeal proceedings), since the facts that deserve sanction (the surplus or the difference between what was declared and what was proven) are the same as the facts alleged when the hearing of art. 1101 of the CA was held and in the sentence applied by said customs judge, and since in this case there is no sentence for an infraction with a greater penalty (but a lesser one) with respect to the infraction alleged in the appealed sentence.
V.- Based on the above, the appealed resolution must be partially confirmed, replacing the sanctions imposed in relation to the proven surplus with a single fine of $29.410,56 in accordance with art. 954 inc. c) of the CA; with costs in proportion to the mutual due dates (art. 1163 of the CA).
Therefore, IT IS RESOLVED:
1.- Partially confirm Resolution No. 95/00 issued in file SA57 No. 40/99, appealed in this case, replacing the fines imposed on the plaintiff in said Resolution with a single fine of twenty-nine thousand four hundred and ten pesos and fifty-six cents ($29.410,56), which is imposed in accordance with the terms of art. 954, paragraph c) of the CA; with costs to the treasury at 66% and to the plaintiff at 34%.
2.- Prior to the regulation of the fees of the lawyers of the case, the plaintiff's lawyer must declare his CUIT and his status with respect to VAT, and, where applicable, must attach proof of registration for said tax (art. 2 of the General Resolution AFIP 689/99).
Register, notify, return administrative acts, and file.
This document is signed by Drs. Jorge C. Sarli and Rodolfo H. Cambra because Dr. Elena D. Fernández de la Puente is on leave (art. 1162 of the CA).
