The following are the provisions of the Tubbataha Reefs National Park Law that have been violated upon which the fines are based (computation of the fines under Sec. 20, damage to the reef, are found in the IRR’s); fines, being penal in nature, are separate from civil damages (actual damages, temperate damages, exemplary damages), costs of suit if any, administrative costs if any; the aggrieved party must expressly claim each of these or expressly make a reservation:
“Sec. 19. Unauthorized Entry, Enjoyment or Use. No person or entity shall enter, enjoy or utilize any portion of the TRNP and the resources therein for whatever purpose without prior permission from the TPAMB as herein provided.
“The TRNP shall be off-limits to navigation, except for activities that are sanctioned by the TPAMB such as, but not limited to, tourism and research. Except in emergency situations, it shall be unlawful to enter the TRNP without prior permission from the TPAMB or the PASu as herein provided. It shall also be unlawful to enter, enjoy or use for any purpose any prohibited management zone. This rule shall similarly apply to the use of vessels, gears and equipment in management zones where such are not allowed.
“Violation of this section shall be subject to imprisonment of not less than six (6) months but not more than one (1) year imprisonment and a fine of One hundred thousand pesos (P100,000.00) but not more than Three hundred thousand pesos (P300,000.00), as may be determined by the TPAMB. If the violator is a commercial fisher/fisherfolk, the penalty shall be imprisonment of not less than one (1) year but not more than three (3) years and a fine of Five hundred thousand pesos (P500,000.00)
“Sec. 20. Damages to the Reef. Damages to the reef shall subject the responsible person or entity to the payment of administrative fines set by the TPAMB based on current valuation standards and to the payment of the cost of restoration.
“Sec. 21. Non-payment of Conservation Fees. It shall be unlawful for any person or entity to enjoy or utilize the TRNP and the resources therein without payment of conservation fees as may be imposed by the TPAMB.
“Violators of this section shall, in addition to the payment of the conservation fee, pay the administrative fine of double the amount of the conservation fee set by the TPAMB for the activity undertaken
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“Sec. 30. Obstruction to Law Enforcement Officer. The boat owner, master, operator, officer or any person acting on his/her behalf, of any vessel who evades, obstructs or hinders any law enforcement officer in the TRNP to perform his/her duty, shall be administratively fined Fifty thousand pesos (P50,000.00). In addition, the registration, permit and/or license of the vessel including the license of the officers thereof shall be cancelled.”
( pertinent IRR provisions, for computations, in the next post)
On President PNoy’s pronouncement that “the United States Navy be held answerable under Philippine laws for the damage caused by the grounding of a US 7th Fleet warship in Tubbataha Reefs”: Wake up, buttercup! The U.S. government legal position on this as articulated by USS Guardian spokesman Lt. Cdr. James Stockman last week (reported by GMA News Online and other media organizations), and which has not been contradicted by any of the USS Guardian officers, is: “Should a claim for damages be filed, it will be handled in accordance with the Foreign Claims Act.” (USS Guardian Spokesperson Lt. Cdr. Stockman).
Open your eyes. The U.S. does not recognize Philippine law and jurisdiction for any claims for damages caused to the Tubbataha Reef by the USS Guardian. The Foreign Claims Act is U.S. federal law, in particular, U.S. military law: it applies to injury, death, or property damage sustained by inhabitants of a foreign country due to noncombat activities of members of the U.S. armed forces overseas; it says “foreign country includes any place under the jurisdiction of the United States in a foreign country.”; the U.S Judge Advocate General’s Corps will adjudicate it; there is a ceiling of $100,000 for recoverable damages (or P4 million pesos at $1 to P40) and any damages in excess of that amount would have to be filed with the U.S. Treasury to be decided by that office.
“10 USC § 2734 – Property loss; personal injury or death: incident to noncombat activities of the armed forces; foreign countries
“(a) To promote and to maintain friendly relations through the prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Secretary may prescribe, one or more claims commissions, each composed of one or more officers or employees or combination of officers or employees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States for—
“(1) damage to, or loss of, real property of any foreign country or of any political subdivision or inhabitant of a foreign country, including damage or loss incident to use and occupancy;
“(2) damage to, or loss of, personal property of any foreign country or of any political subdivision or inhabitant of a foreign country, including property bailed to the United States; or
“(3) personal injury to, or death of, any inhabitant of a foreign country;
“if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian employee of the military department concerned or the Coast Guard, as the case may be. The claim of an insured, but not that of a subrogee, may be considered under this subsection. In this section, “foreign country” includes any place under the jurisdiction of the United States in a foreign country. An officer or employee may serve on a claims commission under the jurisdiction of another armed force only with the consent of the Secretary of his department, or his designee, but shall perform his duties under regulations of the department appointing the commission.
“(b) A claim may be allowed under subsection (a) only if—
“(1) it is presented within two years after it accrues;
“(2) in the case of a national of a country at war with the United States, or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the United States; and
“(3) it did not arise from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission.
“(c) The Secretary concerned may appoint any officer or employee under the jurisdiction of the Secretary to act as an approval authority for claims determined to be allowable under subsection (a) in an amount in excess of $10,000.
“(d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
“(e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
“(f) Upon the request of the department concerned, a claim arising in that department and covered by subsection (a) may be settled and paid by a commission appointed under subsection (a) and composed of officers of an armed force under the jurisdiction of another department.
“(g) Payment of claims against the Coast Guard arising while it is operating as a service in the Department of Homeland Security shall be made out of the appropriation for the operating expenses of the Coast Guard.
“(h) The Secretary of Defense may designate any claims commission appointed under subsection (a) to settle and pay, as provided in this section, claims for damage caused by a civilian employee of the Department of Defense other than an employee of a military department. Payments of claims under this subsection shall be made from appropriations as provided in section 2732 of this title.”
