Seafarer’s repatriation on compassionate grounds

As a general rule, the employment of the seafarer shall cease when the he  completes his period of contractual service aboard the ship, signs-off from the ship and arrives at the point of hire. 

Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire for any other reasons, including the following grounds:

1. when the seafarer signs-off and is disembarked for medical reasons or death 

2. when the seafarer signs-off due to shipwreck, ship’s sale, lay-up of ship, discontinuance of voyage or change of ship principal .

3. when the seafarer, in writing, voluntarily resigns and signs off prior to expiration of contract 

4. when the seafarer is discharged for just cause 

A seafarer who requests for early termination of his contract shall be liable for his repatriation cost as well as the transportation cost of his replacement. This is oftentimes known as voluntary repatriation.

The employer may, in case of compassionate grounds, assume the transportation cost of the seafarer’s replacement.

Compassionate ground, under the POEA contract,  refers to incidence of death of an immediate member of the seafarer’s family which includes his parents, spouse and children if the seafarer is married or his parents if the seafarer is single.

This ground  covers only “death and not  cases when the family member has fallen  dangerously ill, been seriously injured.

 It does not also include emergency situations which would not be expediently resolved without the seafarer’s attendance.

In case of death in the family, it is extremely important for the seafarer  to decide whether he is   still mentally capable of continuing working. Being in charge of the navigational watch or working in the Engine Room when he  is  not yet fully focused can be very dangerous, which  can cause  accidents onboard.

 A minor loss of focus or a momentary lapse of reason could prove far more disruptive to others than your leave of absence.

It is advisable for the seafarer to  communicate with his  colleagues onboard openly. Nobody understands a seafarer better than a fellow sailor. Everyone onboard could empathize with similar occurrences in their lives when they were onboard.

The seafarer, if discharged at a port abroad for any reason shall be repatriated to the Philippines via sea or air or as may otherwise be directed by the principal/employer/company.

He shall be provided with accommodation and food, allowances and medical treatment, if necessary, until he arrives at the point of hire.

 The POEA contract likewise included the right for a compassionate visit as provided in RA 8042, as amended by RA 10022.

When a seafarer is hospitalized and has been confined for at least seven (7) consecutive days, he shall be entitled to a compassionate visit by one (1) family member or a  requested individual.

The employer shall pay for the transportation cost of the family member or requested individual to the major airport closest to the place of hospitalization of the seafarer.

It is, however, the responsibility of the family member or requested individual to meet all visa and travel document requirements.

 

(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)

Insanity and Suicide

Homesickness and/or family problems may result to depression, but the same does not necessarily equate to mental disorder  that will  enable the heirs to be entitled   to death benefits for a seafarer who allegedly committed suicide. 

This was the ruling of the Supreme Court in  the recent case of Seapower Shipping vs. Heirs of Warren Sabanal (G .R. No. 198544,  June 19,2017)   where it denied the claim for death benefits as the heirs failed to prove that  cause of death of  the deceased seafarer is not  suicide. 

Under the  Philippine Overseas Employment Agency (POEA) standard employment contract,  the employer is generally liable for death compensation benefits when a seafarer dies during the term of employment. This rule, however, is not absolute. Part II, Section C(6) of the  contract  exempts the employer 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.

       The question presented  is whether the exemption extends to the case when the seafarer had been acting strangely prior to jumping into the sea.

       Evidence of insanity or mental sickness may be presented to negate the requirement of willfulness as a matter of counter-defense. But the burden of evidence is then shifted to the claimant to prove that the seafarer was of unsound mind. 

 The seafarer's strange behavior alone is insufficient to prove his insanity. Without proof that his mental condition negated the voluntariness he showed in stepping overboard, the seafarer's case is still considered suicide. 

Since the willfulness may be inferred from the physical act itself of the seafarer (his jump into the open sea), the insanity or mental illness required to be proven must be one that deprived him of the full control of his senses; in other words, there must be sufficient proof to negate voluntariness. 

The heirs  did not present any evidence to support   their  claim that  the seafarer  was already insane when he jumped overboard.  The heirs  only relied on the strange behavior of the deceased seafarer  as detailed by the ship captain in the ship log and master's report. However,  while such behavior may be indicative of a possible mental disorder, it is insufficient to prove that the deceased seafarer  had lost full control of his faculties. 

   In order for insanity to prosper as a counter-defense, the claimant must substantially prove that the seafarer suffered from complete deprivation of intelligence in committing the act or complete absence of the power to discern the consequences of his action. Mere abnormality of the mental faculties does not foreclose willfulness. In fact, the ship log shows the deceased seafarer was still able to correct maps and type the declarations of the crew hours before he jumped overboard. The captain observed that the deceased seafarer did not appear to have any problems while performing these simple tasks, while the seafarer -on-guard reported that the deceased seafarer  did not show any signs of unrest immediately before the incident. These circumstances, coupled with the legal presumption of sanity tend to belie  the heir's  claim that the deceased seafarer  no longer exercised any control over his own senses and mental faculties

 The Court  cited a related case, Crewlink, Inc. v. Teringtering (G.R. No. 166803, October 11, 2012), where it ruled that  the claimant presented no evidence, witness, or any medical report to support the claim of insanity other than  bare allegations that the seafarer was suffering from a mental disorder . The  explained  that:

"Homesickness and/or family problems may result to depression, but the same does not necessarily equate to mental disorder. The issue of insanity is a question of fact; for insanity is a condition of the mind not susceptible of the usual means of proof. As no man would know what goes on in the mind of another, the state or condition of a person's mind can only be measured and judged by his behavior. Establishing the insanity of [a deceased seafarer] requires opinion testimony which may be given by a witness who is intimately acquainted with the person claimed to be insane, or who has rational basis to conclude that a person was insane based on the witness' own perception of the person, or who is qualified as an expert, such as a psychiatrist. No such evidence was presented to support respondent's claim"

Suicide and seafarer's death compensation cases

A UK P&I study noted that Suicide is the highest cause of fatalities at sea as a result of mental health issues among seafarers, accounting for 15% of deaths. Factors for suicides in the case of seafarers include young age, isolation and the impact of social media. Causes of depression among seafarers also include work stress, and hours of work and rest. In the terms of social media, whereas in the past seafarers had very little contact with home, young seafarers such as cadets are more aware of all the problems happening at home making them particularly at risk.

             Under an employment contract duly approved by the Philippine Overseas Employment Administration (POEA), in the case of work-related death of the seafarer, during the term of his contract,  the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment.The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA)

            Any claim for death compensation for suicide cases is considered in relation to   Section 20 of the POEA contract  which states "No compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer"

               Clearly, 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 seaman’s death was caused by an injury directly attributable to his deliberate or willful act. 
         Nevertheless, the heirs must be paid either USD10,000.00 (natural death) or USD15,000.00 (accidental death) under the  Compulsory Insurance Coverage of  Republic Act No. 10022 or the Amended Migrant Workers Act (AMWA) whether or not there is a suicide issue as cause of death.
                In certain cases, the Supreme Court denied  death compensation claims in ruling that  the company  was able to substantially prove that seafarer’s death was attributable to his deliberate act of killing himself by committing suicide.the court took into account  the medico-legal report and the death certificate, together with the investigation report, log book extracts, and master’s report.  The Court points out that the company  was  able to substantially prove that seafarer’s death is directly attributable to his deliberate act of hanging himself, his death, therefore, is not compensable and his heirs not entitled to any compensation or benefits. (Unicol Management Services, Inc., et. al. v. Delia Malipot, In Behalf of Glicerio Malipot, G.R. No. 206562, January 21, 2015)        

       Suicide notes and autopsy report proved seafarer committed suicide The court likewise took cognizance that the report of the Medical Examiner was not merely limited to the autopsy of the remains of the seafarer. It were made after he personally and carefully examined the place immediately after the incident. The medical examiner had the luxury of investigating the crime scene, the rope used for hanging, type of knot, temperature and position of the body when found (Wallem Maritime Services, Inc. versus Donnabelle Pedrajas and Sean Jade Pedrajas; GR. No. 192993; August 11, 2014)

        Death compensation claims are likewise denied in a case  where the  medical report, as well as  post mortem examination  did not mention of any showing of signs that there was struggle on the part of the seafarer  to defend himself from an intruder. Both reports did not report any marks of violence in the other parts of the seafarer's  body. Thus, the  medical report, corroborated by the written report of seafarer's fellow crew members that the door was locked from the inside when they found the seafarer  hanging in his wardrobe, only shows that he committed suicide. (Maritime Factors Inc.vs.Hindang G.R. No. 151993,  October 19, 2011) 

However, the Supreme Court disregarded these type of documents, which presumably embodied the results of interviews with crews and officers, as insufficient to prove the fact that the death was caused by self-inflicted injuries.  The testimonies were given by people who merely observed and narrated the circumstances surrounding the death of a Filipino seafarer.  The testimonies of the officers and crew are, the Supreme Court said, at best, hearsay. (NFD International Manning Agents vs. NLRC. (G.R. No. 116629, January 16, 1998)

In the same manner, the Supreme Court noted that the shipowners’ attempt to show that the Filipino seafarer committed suicide by presenting his co-employees to assert that the deceased had problems, cannot successfully evade their liability for death benefits under the POEA’s Contract.  The Filipino seafarer’s lifeless body was found hanging by the neck from the ceiling of an abandoned warehouse.  The Autopsy Report and Investigation Report provided that the probable cause of death was asphyxiation by hanging, and circumstances of death were following self-destruction.  The Supreme Court ruled in this case that the Autopsy Report and Investigation Report were evidence only of the cause of death but NOT the circumstances of death, and that neither was the presence of US$2,000.00 indicative that there was no foul play because the motive for the killing might not have been robbery.  The evidence presented to prove that suicide was committed is lean, frail and far from convincing, thus the granting of death benefits to the heirs  of the deceased seafarer was deemed appropriate by the Supreme Court.. (Lapid vs. NLRC(306 SCRA 349) 

In the same manner, the Supreme Court earlier held that  “there is the lack of conclusive or credible proof that the worker took his own life as events surrounding the death of the worker have not been established with any degree of certainty”(NAESS Shipping Phils. vs. NLRC (153 SCRA 657)

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Suicide the top cause of seafarer deaths

The UK P&I Club is putting the spotlight on seafarer mental health with suicide the cause of 15% of deaths at sea.

As a career seafarers are second most at risk from suicide Anuj Velankar, senior loss prevention advisor, UK P&I Club, told a seminar in Singapore on Tuesday. The career with the highest risk was being a veterinary physician, which was explained due to a tendency towards self-medication and a ready access to drugs.

In the case of seafarers young age, isolation and the impact of social media were all cited as factors. Velankar noted that there were constantly reports of younger crew onboard, who were not experienced – “these are the people most at risk of mental health issues”.

The result of mental health issues among seafarers is that suicide is the highest cause of fatalities at sea, accounting for 15% of deaths according to the UK P&I Club. “This what kills the most number of seafarers,” Velankar stated

Young seafarers such as cadets were seen as particularly at risk. “When you look at cadets the figures are even more horrifying,” he said. Some 40% of 11 deaths of cadets over the last 10 years came as the result of suicide.

He highlighted the case of an 18 year South Korean cadet who disappeared off the coast of India one month into a 10 month contract, in an apparent suicide. Other crew members noted he had seemed depressed and a diary found in his possessions gave a picture of very depressed mental state.

In terms of the causes of depression among seafarers Velankar said they were looking at social media, work stress, and hours of work and rest.

In the terms of social media, whereas in the past seafarers had very little contact with home, now were aware of all the problems happening at home.

“Maybe ignorance was bliss,” commented Lee Wai Pong, regional advisor, UK P&I Club, who previously served as a captain.

With smaller crews social media also combines with an issue of isolation for seafarers.

“This is an issue we need to focus on,” said Velankar.

 From : http://www.seatrade-maritime.com/news/asia/suicide-the-top-cause-of-seafarer-deaths.html