DEADWEIGHT: accident , suicide, and seafarer's death compensation claims

 The   Finnish-German film  “Deadweight” dealt with  the legal question on the cause  of  a Filipino seafarer’s death that has a significant impact in  compensation claims. : whether he died  by accident or suicide.  

The movie by German filmmaker  Axel Koenzen Axel  explores the tough working conditions in the globalised shipping business.

Ahti Ikonen is the captain of a large 35,000-ton container vessel Brugge, which enters the port of Savannah behind schedule. As they are  under deadline pressure,  he violated regulations by ordering his crew to help the local dockworkers unload the cargo. Unfortunately, it  costs the  life of a Filipino seafarer James that threatens his career.  In the port of Rotterdam, Netherlands unionized dockworkers exploit the incident and refuse to unload the ship and called for a boycott.

In the film, the Filipino seafarer James was somewhat suffering from a depression as his request  for repatriation  was not granted even if his tenure was already beyond  that stipulated in the contract.  In a scene he was  shown with a head injury after the illegal lashing  and later     as a dead person.

The  film showed the discussion among the Filipino crew on what will be the tenor of their testimony surrounding James’ death.

If he died due to accident,   the heirs will be paid US$50,000.00 and an additional amount of US$7,000.00 to each child under the age of twenty-one (21) but not exceeding four (4) children under the POEA contract.  The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA).

On the other hand, declaring the incident as suicide will save the owners large amount of payment for death benefits from the insurance companies.

The employer is liable to pay the heirs of the deceased seafarer for death benefits once it is established that he died during the effectivity of his employment contract. However, the employer may be exempt from liability if it can successfully prove that the seafarer’s death was caused by an injury directly attributable to his deliberate or willful act, including killing himself by committing suicide.

The investigators  concluded that James died by suicide due to illegal lashing  based on the testimony of the crew.

Studies identify  as most frequently cited factors  for seafarers’ suicide the  various work-related problems which  included conflicts among the crew, disciplinary problems, work pressure,  cancellation of shore leave, various mental health conditions, depression,  marital or girlfriend problems and  alcohol consumption.

I was elated to see my name in the credits of the film. In 2014, I was interviewed by  German filmmaker  Axel Koenzen on the different issues confronting the Filipino seafarers, including the perils of the profession like disability or death due to illness, injury or accidents.

Two years later, the film  had its world premiere at the 2016  Berlin International Film Festival.  

Deadweight is a measure of how much weight a ship can carry, or the sum of the weights of cargo, fuel, fresh water, ballast water, provisions, passengers, and crew.

The film was aptly described in the 9th Subversive Film Festival in  Zagreb, Croatia as “Axel’s  nautical piece which  deals with the exploitation of the nautical working class that makes the functioning of capitalistic efficiency possible. With an accentuated documentary approach,  through various observational methods the film speaks about responsibility, limitations, restrictions, which are symbolic of a time in which instructions are mediated through e-mail and  radio,  and reflect the essence of the global syndrome of mediated management - the shifting of responsibility that often falls on the lowest level executioner. The film has adapted, in its making, to the rhythm of the boat, while the author refuses to romanticize the hard and brutal working conditions of its crew.”

Deadweight had its Philippine premier last month  at the UP Film Center in Diliman. I suggested to Axel  that it be shown in schools and other venues in time for the National Seafarers Day celebration during the last week of September.

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786

The doctrine of Good Samaritan at Sea

The saga of our Filipino fishermen again resurfaced after  a Philippine fishing boat,  F/B GEM-VER,  partially sank  near Recto Bank midnight of June 9,  which involved a Chinese vessel.

Several versions later were aired, from the initial statement of the Filipino fishermen ( along with that of Defense Secretary Delfin Lorenzana)  that the  Chinese vessel rammed and partially sank the Philippine fishing boat, to the government’s attempt to downplay and sanitize the issue by calling it  “a simple maritime incident”.

 Agriculture Secretary Manny  Piñol  even met with the fishermen in Mindoro as the house was swarmed with policemen in full anti-riot battle gear. They were given new fishing boats, food items as well as P25,000.00  loan assistance. A press conference ensued with Pinol announcing an alleged “miscommunication” with  fist-bump photo-ops of  sad-faced  fishermen.

The Chinese Embassy in Manila previously said that it was not a hit-and-run but  seven to eight Filipino ships allegedly started to besiege the Chinese vessel, prompting it to hit one and sped away.

The fact remains that the Chinese vessel  left the Filipino crew stranded in open sea. Hours later, thankfully, Vietnamese fishermen came to help.

Their story is aptly an application of the “Good Samaritan vessel” doctrine  -  the obligation to render assistance at sea.

For centuries, this maritime rescue doctrine encourages seafarers to go to the aid of life and property in distress.

Good Samaritan vessels are usually the first to arrive on scene,  and are often critical in saving lives.

In most cases, a person reacts to save another person as result of compassion or instinct, or both.

While seafarers  will have the same compassion and instinct as other professionals, seafarers  have a legislated obligation to render assistance.

This obligation comes from various legal sources, most notably international conventions from the United Nations ("UN") and the International Maritime Organization ("IMO").

The United Nations Convention on Law of the Sea ("UNCLOS") says that every signatory to the convention must require the master of a ship flying its flag to render assistance to any person found at sea in danger of being lost and to proceed to the rescue of persons in distress.

The  exemption is when the assisting vessel, the crew or the passengers on board would be seriously endangered as a result of rendering assistance to those in distress.

The Safety of Life at Sea Convention ("SOLAS")  says "the master of a ship at sea which is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so."

The International Convention on Maritime Search and Rescue 1979 (SAR) also mandates  this principle “regardless of the nationality or status of such a person or the circumstances in which that person is found”.

The Salvage Convention of 1989, although primarily directed at addressing the salvage of property and the prevention of marine pollution, nonetheless repeats the SOLAS obligation on the master to render assistance to any person in danger of being lost at sea.

The duty to render assistance is a general reflection of customary international maritime law.

States, both signatories and non-signatories to the conventions, are duty bound to ensure those in distress at sea are rendered assistance on a non-discriminatory basis. Whether vessels sailing under their flag operate in either a private or public capacity, the requirements incumbent upon the masters of the vessels are the same.

In other jurisdiction, failure to do so has legal sanctions of fines and imprisonment.

Our very own  Revised Penal Code (Article  275)     imposes  the penalty of arresto mayor (1 month and 1 day to 6 months)  upon (a) any one who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense and (b)  anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured.

The fishermen claimed that foreign vessels have been fishing in Recto Bank since 2014. Recto Bank is 85 nautical miles from Palawan and is within the country’s 200-mile exclusive economic zone (EEZ).

 In 2016, the UN-backed Permanent Court of Arbitration based in The Hague had awarded the Philippines sovereign rights over Recto (Reed) Bank as well as Panganiban (Mischief) Reef off Palawan and Ayungin (Second Thomas) Shoal.

 Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)