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SOCIEDAD ARMADORA ARISTOMENIS PANAMA, S.A. v. 5

July 29, 1954

SOCIEDAD ARMADORA ARISTOMENIS PANAMA, S.A.
v.
SUGAR et al. SUGAR et al.



The opinion of the court was delivered by: GRIM

On February 1, 1950, libellant, Sociedad Armadora Aristomenis Panama, S.A., entered into a written contract with the respondent, Isbrandtsen Company, Inc., *fn1" whereby the libellant agreed to transport on its ship, The Aristopais, for respondent certain bags of raw sugar, shipped by respondent, from the Philippine Islands to the United States. Pursuant to the terms of the contract The Aristopais arrived at the port of Iliolo in the Philippines to load the sugar. Since there was no available wharf at Iliolo, the vessel anchored off shore and the bags of sugar were brought out and loaded on it by lighters.

Libellant has sued for $ 24,480.59, the balance allegedly due it from respondent on account of unpaid, freight and other charges. Respondent's answer admits owing $ 13,035.35. *fn2" Therefore, the balance in dispute, which has been withheld by respondent, amounts to $ 11,445.24 and consists of the following claims by libellant and set-offs alleged by respondent:

 (1) Libellant's claim for additional freight based upon the gross outturn weight of the cargo instead of the net outturn weight, amounting to $ 388.84.

 (2) Libellant's claim for demurrage at Iliolo, the loading port, in the amount of $ 190.97.

 (3) Libellant's claim for excess wharfage at Philadelphia, in the amount of $ 900.

 (5) Respondent's set-off for dispatch at Iliolo, in the amount of $ 3,241.63.

 (6) Respondent's set-off on account of alleged short delivery of 95 bags, in the sum of $ 756.14.

 (7) Respondent's set-off on account of damaged cargo and extra stevedoring charges in connection therewith, in the sum of $ 854.31.

 The principal question in the case is whether a charge on the sugar of $ 5,113.35 levied and collected by the Philippine Government was a charge for wharfage, in which event libellant-shipowner would be responsible for its payment, *fn3" or an export tax, in which event respondent-shipper would be responsible for its payment.

 An Act of the United States Congress known as the Philippine Tariff Act of 1909, *fn4" was reenacted by the Congress of the Philippine Islands on July 4, 1946, and has been continuously in force up to the present time. Among other things it provides:

 'Sec. 14. That there shall be levied and collected upon all articles, goods, wares or merchandise * * * the products of the Philippines, exported through ports of entry of the Philippines or shipped therefrom to the United States or any of its possessions, a duty of one dollar per gross ton of one thousand kilos as a charge for wharfage, irrespective of the port of destination or nationality of the exporting vessel.'

 In accordance with the requirements of the statute and in order to get permission to export the sugar from the Philippines, respondent paid $ 5,113.35 to the Government of the Philippines. Respondent deducted this sum from the amount of money it owed libellant for freight on the theory that the charge levied under the statute was a charge for wharfage, which, according to the contract, *fn5" libellant-shipowner was obligated to pay. Libellant is suing for this sum, contending that this charge was not a wharfage charge but rather an export tax on the sugar which respondent, the shipper of the sugar, is responsible to pay, since there is nothing in the contract to impose an obligation on the libellantshipowner to pay a tax on the sugar.

 The statute under which the charge was levied is somewhat ambiguous in that it refers to both a duty and a wharfage charge, saying 'there shall be levied * * * a duty * * * as a charge for wharfage * * *.' However, the meaning and purpose of the statute become clear when its legislative history is considered. The report of the House Ways and Means Committee ...


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