The Supreme Court has
already ruled in a number of cases that before a seafarer can be dismissed and discharged
from the vessel, it is required that he be given a written notice regarding the
charges against him and that he be afforded a formal investigation where he could
defend himself personally.
Section 33 of the Philippine Overseas Employment
Administration- Standard Employment Contract (POEA-SEC) enumerates twenty one (21) offenses which are considered
valid grounds for dismissal. One of the grounds
of dismissal of Seafarer identified is Desertion
which includes the (a) commission of
desertion, (b) attempting to desert, or (c) advising, assisting persuading
another to desert.
Under the POEA-SEC, when a seafarer commits such act(s), he may
be penalized by the master of the vessel with dismissal and be made to pay the cost
of repatriation and his replacement. Additionally, an administrative complaint
or disciplinary action against the seafarer may be filed before the POEA, who, after due investigation, may impose penalties ranging from suspension to delisting, depending on the gravity of the
offense and the frequency of the violation(s).
In PCL Shipping Philippines, Inc. vs.
NLRC[1],
the Supreme Court emphasized that Desertion,
in maritime law, is the act by which a seafarer deserts and abandons a ship or
vessel, in which he had engaged to perform a voyage, before the expiration of
his time, and without leave. It is not a mere unauthorized absence from the
ship, without leave, but an unauthorized absence from the ship with an intention not to return
to her service; or as it is often expressed, animo non revertendi, that is,
with an intention to desert.
Hence, for the seafarer to be considered as
guilty of desertion, the employer has the
burden to prove, with substantial evidence, that the seafarer left the
ship or vessel in which he had engaged to perform a voyage, with clear
intention of abandoning his duty and of not returning to the ship or vessel.
The fact alone that he left the ship without permission, does not constitute
desertion.
The Supreme Court ruled that the company failed to present
clear and convincing proof to show that when the seafarer jumped ship, he no longer had the
intention of returning. The fact alone that he jumped off the ship where he was
stationed, swam to shore and sought medical assistance for the injury he
sustained is not a sufficient basis for petitioners to conclude that he had the
intention of deserting his post.
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