1. IMPORTATION; CHECKING CHARGES, REFUND OF; CASE AT BAR. — Plaintiff imported into the Philippines bulk palm oil, tallow and coconut fatty alcohol products. Before the same were discharged into lighters, plaintiff was required by the arrastre operator to pay checking charges, in addition to sales tax, duties, wharfage and other fees collected by the Commissioner of Customs on the importations. The products were checked before they were discharged from the carrying vessel to determine whether or not there had been any loss during the voyage from the loading ports. Held: The issue herein is substantially identical to that involved in Caltex (Philippines) Inc. v. Delgado Brothers, L-5439, December 29, 1954, wherein it was held that defendants had no right to collect checking charges. In both cases, there is a difference between the quantity discharged from the carrying vessel into the lighters and that discharged from the lighters into plaintiff’s shoretanks; checkers of the arrastre contractor took the ullage, specific gravity and temperature of the cargo on board the vessel; and plaintiff was required to pay checking charges before the discharge of the products from the carrying vessels. The lower court did not, therefore, err in sentencing defendants, jointly and severally, to refund to plaintiff the sum paid by the latter for checking charges.

2. ID.; ID.; PROTEST NOT NECESSARY. — There is no law requiring that a protest be made before payment of what has been exacted, but not due, may be recovered.

3. ID.; ID.; ID.; NATURE OF FUNCTIONS PERFORMED BY MANILA PORT SERVICE. — Although the Manila Port Service is an instrumentality of the government, it operates as a private corporation or entity performing proprietary, not political, governmental or sovereign functions. Hence, the principle applicable to the collection of charges made by a private corporation also applies to collections made by the said arrastre contractor.

Appeal by the Manila Port Service and/or Manila Railroad Company and the Commissioner of Customs from a decision of the Court of First Instance of Manila sentencing them, jointly and severally, to refund to plaintiff, Philippine Manufacturing Company, the sum of P15,318.56. The appeal is before us only questions of law being raised therein.

In the years 1956, 1957, 1958 and 1959, plaintiff imported into the Philippines bulk palm oil, tallow and coconut fatty alcohol products which were discharged shipside from the carrying vessels into lighters hired by plaintiff as the sole consignee of said products. Before the same were so discharged into the aforementioned lighters, plaintiff was required by defendant Manila Port Service (hereinafter referred to as the MPS) — a subsidiary of the Manila Railroad Company and the contractor and/or operator of the arrastre service for the Port of Manila, pursuant to a management contract between the Bureau of Customs and the MPS — to pay, by way of "checking charges several sums of money aggregating P15,318.56 — in addition to sales tax, duties, wharfage and other fees collected by defendant Eleuterio Caparas, as Commissioner of Customs (hereinafter referred to as the Commissioner) — on the bulk or whole oil importations in question. The record further shows that before being so unloaded from said carrying vessels, the ullage, temperature and specific gravity of said products were checked by a marine surveyor, hired by plaintiff, to determine whether or not there had been any loss during the voyage from the loading ports; that the lighters into which said product had been discharged carried this cargo to plaintiff’s shore-tanks at Velasquez St., Tondo, Manila, where a registered marine surveyor, hired by plaintiff, again measured the quantity of the oil it had actually received; and that this measurement was done in the presence of an appraiser or representative of the Bureau of Customs and then reported thereto in writing.

Predicated upon the foregoing facts, plaintiff brought this action for the recovery of said sum of P15,318.56 (with interest thereon, plus attorney’s fees), upon the ground that defendants have no right to collect said sum, pursuant to Caltex (Philippines) Inc. v. Delgado Brothers, L-5439 (December 29, 1954), which was eventually applied by the lower court in the decision appealed from. Defendants-appellants seek a reversal thereof upon the ground that the Caltex case is distinguishable from the one at bar, because:chanrob1es virtual 1aw library

1. The Caltex case referred to bulk petroleum products which evaporate, whereas the shipments involved in the case at bar include farm products and tallow which were mixed with general cargoes and had been discharged from various vessels, not necessarily from tankers;

2. In the Caltex case, there was a variance between the quantity discharged from tankers into lighters and that discharged from lighters into shore-tanks, whereas no such variance exists in the present case;

3. In the Caltex case, no services were rendered by the checkers of the former arrastre contractor, whereas the MPS, it is alleged, has actually rendered services in the case at bar;

4. In the Caltex case, the collection of checking charges was based solely upon the management contract between the arrastre contractor and the Bureau of Customs, whereas, in the present case, the collection was, also, based upon Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines;

5. Unlike the plaintiff herein, the importer in the Caltex case had immediately filed a protest against the collection of "checking charges" ;

6. The charges involved in the Caltex case, were collected by a private corporation, whereas, in the case at bar the collection was made by an instrumentality of the government.

We find no merit in this appeal.

The first alleged difference between the Caltex case and the present one is immaterial to the right to collect checking charges. Moreover, in the case at bar, as in the Caltex case, there is a difference (of over 1,000 kilograms) between the quantity discharged from the carrying vessels into the lighters and that discharged from the lighters into plaintiffs shoretanks. Again, as in the present case, some checkers of the arrastre contractor in the Caltex case took the ullage, specific gravity and temperature of the cargo on board the vessels that brought the same to the Philippines.

Upon the other hand, the provision of the Tariff Law alluded to by the defendants-appellants (Section 3102[f], Republic Act No. 1937) is a mere reproduction of the corresponding provision in the management contract between the MPS and the Bureau of Customs. Then too, plaintiff herein, like the importer in the Caltex case, was required to pay the disputed checking charges before the discharge of the imported products from the carrying vessels. Furthermore, there is no law requiring that a protest be made before payment of what has been exacted, but not due, may be recovered. Lastly although the MPS is an instrumentality of the government, it operates as a private corporation or entity performing proprietary functions, not political, governmental or sovereign functions.

The issue herein being substantially identical to that involved in the Caltex case, the lower court committed no error in applying the doctrine herein laid down and, accordingly, the decision appealed from is hereby affirmed, without special pronouncement as to costs. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.