In the field of foreign trade operations, certain particular situations often arise, which call into question the responsibilities of professionals in the handling of documentation and the destination of the goods. We know that there are certain legal responsibilities shared between the owners of the goods and the Customs Brokers and Customs Transport Agents. But the situation must change when one of these foreign trade auxiliaries limits itself to presenting the pertinent documentation without the goods being cleared to the market and re-exported from the same place of the warehouse where they were located.
Temporary Import and Export Warehouse
In our Customs Code we have two regulations of identical tenor with reference to different destinations; namely, the Import Warehouse and the Export Warehouse. In the first, regulated in Section III, Title I Chapter IX of the Customs Code, specifically between arts 198 to 216, in relation to the so-called Temporary Import Warehouse; and in the second case, in Title II, Chapter I, in reference to the Temporary Export Warehouse, arts 397 to 402.
In accordance with these regulations and in order not to be overly detailed, it should be specified that when merchandise enters the customs territory and is not given an immediate destination, it remains under the Provisional Import Warehouse regime, mentioning as "depository" the person who is responsible for this function, having as a consequence in this case the custody and responsibility of the merchandise as long as it remains provisionally in a warehouse without said merchandise leaving the primary zone.
Furthermore, it is presumed (and the Code provides for it) that the importer and the Transport Agent request a written record from the warehouse about the receipt of the merchandise. It is also indicated that the registration of the entry of the merchandise into the provisional import warehouse will be done under the supervision of the customs service and during the hours authorized for that purpose.
However, if the goods disappear, the Code enables the Treasury to consider that they have been imported for consumption, only for tax purposes. But that does not exempt the depositary from liability to the owner of the goods, as stated at the end of article 216, in the sense that his liability to whoever has the right to the goods is governed by the provisions of common law; that is, the Civil and Commercial Code.
Responsibility of the depositary
If the merchandise that arrived in the customs territory was not cleared and remained in a provisional import warehouse, its owner immediately presents, through its Dispatcher and Transport Agent, the documentation for its immediate departure to the place of origin, and it becomes a Provisional Export Warehouse.
To this end, the Code clearly establishes that such merchandise remains under the custody of the depositary, who will proceed to register the merchandise with a complete description of it. In other respects, some of the provisions of the same Code on provisional import deposit will apply by analogy; and consequently, the provisions on the depositary's liability governed by the provisions of common law.
Conclusion
In conclusion, if the goods have remained in temporary storage for the entire time because they have not been dispatched to the market and immediately subjected to the temporary storage regime for export, it is logical to infer that the custody of the goods is the exclusive responsibility of the depositary; therefore, if the goods had been lost having been in the warehouse, it is obvious that the depositary is the one who bears the legal responsibility for the fact, not the importer/exporter, nor the Dispatcher or the Transport Agent, beyond the presumption that the Customs Code raises for tax purposes; which could well be repeated later by whoever was the owner of said goods against the depositary of the same.
By: Dr. Guillermo J. Sueldo
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
