2017: Twenty Second National Seafarers Day

The   Twenty Second  National Seafarers' Day was celebrated on  September 24, 2017    with the theme "MARINONG FILIPINO: NAG-UUGNAY SA MUNDO" . The Manila celebration was held at the Cuneta Astrodome. 

Former president Fidel V. Ramos earlier issued on July 9, 1996 Proclamation No. 828 declaring August 18 as National Seafarers Day wherein  the Apostleship of the Sea (AOS) was tasked to coordinate with the public and private sector in   activities related to the celebration of said event. The purpose of the Proclamation is to give due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later,  Proclamation No.1094 was issued in 1997 by President Ramos which moved NSD    to every  last Sunday of September every year. 

The #NSD22 #NSD2017 activities nationwide led by the #ApostleshipoftheSea ( #AOS ) include the Memorial at Sea, High Mass, Oratorical/ Art/ Photo Contest, Harana by the Bay, Boodlefight, Karaoke challenge, and the Search for Top Ten Outstanding Maritime Students. One of the highlights is the Grand Parade participated in by more than 4000 stakeholders from maritime schools, government agencies, manning agencies, training centers, maritime organizations, unions, families and private institutions

    The high mass was celebrated by  Cubao Bishop Honesto Ongtioco while MARINA administrator Marcial Amaro III  was the guest  speaker.  

The  seventh    batch of   recipients for the Ten Outstanding Maritime Students of the Philippines (TOMSP) search (in line with the National Seafarers Day) were awarded on that day.  It  gave recognition to students for being academically excellent, highly competent in practice, in good moral standing and active in their respective communities. 

Dionel Alfaro of Asian Institute of Maritime Studies (AIMS) Pasay 

Ronald Christ Capindo of John B Lacson Colleges Foundation  Bacolod

Nelyvette Claire Dela Cruz of Maritime Academy of Asia and the Pacific (MAAP) Bataan

Janine Elican of John B Lacson Colleges Foundation  Bacolod

Eugene Mark Genilsa of John B Lacson Colleges Foundation  Molo

John Michael Ibanez University of Cebu  Lapulapu and Mandaue

Loren Negapatan of MAAP Bataan

Patrick Allan Peralta of MAAP Bataan

Karl Japeth Rosal of MAAP Bataan

Honey Grace Ysulan of Philippine Merchant Marine Academy (PMMA)

Negligence causing damage loss, spoilage or deterioration of ship’s stocks and property

It is settled that the employer has the burden to prove that the dismissal of a seafarer  is based on a valid cause. To discharge this burden, the employer must present substantial evidence - or such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion - that the cause of the seafarer's dismissal was valid.Specifically, the employer must comply with the following requisites: (1) the dismissal must be for a just or authorized cause, and (2) the employee to be dismissed must have been afforded due process of law

One  of  the twenty one (21) offenses which are considered valid grounds for dismissal under the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC),  include those causing through neglect, damage loss, spoilage or deterioration of ship’s stocks and property. 

Seafarers at sea work in tough environmental conditions which often require good amount of physical strength. The food for seafarer thus needs to be of the best quality with all the necessary ingredients required to support a healthy body and mind. Food spoilage is when there is a loss of quality or nutritional value of the food that is often linked to the food deteriorating in taste, smell, flavour or appearance.  Most  of spoilage losses are the result of undetected loss of refrigeration or storage temperatures for the ship's provision, especially when personnel are not present.  

Even when an employee is found to have transgressed the employer’s rules, in the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employ. Where a penalty less punitive would suffice,  whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal from employment (PLDT vs. NLRC , 303 SCRA 9). 

When a seafarer commits such violations,  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 frequency of the violation(s).

Under the "two-notice rule", an erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer. It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings (Skippers Pacific, Inc. v. Mira 440 Phil. 906 (2002)

In case of an  illegal dismissal,  a seafarer is  entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely  his salaries for three (3) months for every year of the unexpired term.

It is well-settled that the burden of proving that the termination of an employee was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal. In order to discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures (MAERSK-FILIPINAS CREWING, INC., vs. TORIBIO C. A VESTRUZ,, G.R. No. 207010   February 18, 2015) 

Definitive assessment of a seafarer's disability

A seafarer is considered as  suffering permanent total disability if the medical statement of the company doctor  is  devoid of any definitive declaration as to the seafarer's  capacity  to return to work or at least a categorical and final degree of disability.

For the courts and labor tribunals, determining whether a seafarer's fitness to work despite suffering an alleged partial injury generally requires resort to the assessment and certification issued within the 120/240-day period by the company-designated physician. Through such certification, a seafarer's fitness to resume work or the degree of disability can be known, unless challenged by the seafarer through a second opinion secured by virtue of his right under the POEA-Standard Employment Contract. Such certification must be a definite assessment of the seafarer's fitness to work or permanent disability.  

A final and definite disability assessment is necessary in order to truly reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such. Otherwise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered. (REYNALDO SUNIT,  vs. OSM MARITIME SERVICES, INC.  February 27, 2017G.R. No. 223035

Jurisprudence is replete with cases bearing similar pronouncements.

In Fil-Star Maritime Corporation v. Rosete (G.R. No. 192686, November 23, 2011), the Court concluded that the company-designated doctor's certification issued within the prescribed periods must be a definite assessment of the seafarer's fitness to work or disability:

As stated in Oriental Shipmanagement Co., Inc. v. Bastol, (G.R. No. 186289 June 29, 2010)

the company-designated doctor must declare the seafarer  fit to work or assess the degree of his permanent disability. Without which, the characterization of a seafarer's condition as permanent and total will ensue because the ability to return to one's accustomed work before the applicable periods elapse cannot be shown.

In Kestrel Shipping Co., Inc. v. Munar,  (G.R. No. 198501, January 30, 2013, 689 SCRA 795), the Supreme Court  underscored  that the assessment of the company-designated physician of the seafarer's fitness to work or permanent disability within the period of 120 or 240 days must be definite, viz: "Moreover, the company-designated physician is expected to arrive at a definite assessment of the seafarer's fitness to work or permanent disability within the period of 120 or 240 days. That should he fail to do so and the seafarer's medical condition remains unresolved, the seafarer shall be deemed totally and permanently disabled. (emphasis supplied)"

There is no "definitive assessment" where the company-designated physician noted that seafarer's wound was still open and that he was to continue his medications  (Carcedo v. Maine Marine Philippines, Inc G.R. No. 203804, April 15, 2015) If he fails to do so and the seafarer’s medical condition remains unresolved, the latter shall be deemed totally and permanently disabled.(Fil-Pride Shipping Company, Inc. v. Balasta,  G.R. No. 193047, March 3, 2014, 717 SCRA 624, 626) 

Such principle is more apparent in  event that  the seafarer  has remained unemployed as a seafarer for more than 240 days from the time of his repatriation  or he was unable to perform the same physical activities he used to perform prior to his injury.  ( Belchem Phils./UPL  vs. Eduardo  Zafra G.R. No. 204845               June 15, 2015) 

Incompetence and Inefficiency as grounds for dismissal

It is settled that the employer has the burden to prove that the dismissal of a seafarer  is based on a valid cause. To discharge this burden, the employer must present substantial evidence - or such amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion - that the cause of the seafarer's dismissal was valid.Specifically, the employer must comply with the following requisites: (1) the dismissal must be for a just or authorized cause, and (2) the employee to be dismissed must have been afforded due process of law.

As a general concept, poor performance is tantamount to inefficiency and incompetence in the performance of official duties. An unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. Poor or unsatisfactory performance of an employee does not necessarily mean that he is guilty of gross and habitual neglect of duties 

To ascribe gross neglect, there must be lack of or failure to exercise slight care or diligence, or the total absence of care in the performance of duties. In other words, there is gross neglect when the employee exhibits thoughtless disregard of consequences without exerting effort to avoid them. On the other hand, habitual neglect involves repeated failure to perform duties for a certain period of time, depending upon the circumstances, and not mere failure to perform duties in a single or isolated instance.  

 

The dismissal report against the seafarer did not describe the specific acts that would establish his alleged poor performance, or his want of even slight care in the performance of his official tasks as chief cook for a certain period of time; hence, even assuming that seafarer’s performance was unsatisfactory, the company failed to show that his poor performance amounted to gross and habitual neglect of duties.  (INC SHIPMANAGEMENT, INC., v. RANULFO CAMPOREDONDO, G.R. No. 199931, September 07, 2015)

 Accordingly, the following factors should be considered in relation to  incompetence:

(1) the workload of the seafarer  should be consistent with the position agreed upon in the labor contract or with the workload of similar other seafarers; 

(2) the reasons an seafarer  is identified as incompetent should be based on his personal performance, rather than objective factors beyond his control;

 (3) methods for assessing competence must be lawful; 

(4) whether the seafarer  is deemed competent or not should be measured against specific standards, and cannot be judged by qualifications or rank; 

(5) when declaring a seafarer to be incompetent, corresponding evidence should be obtained in addition to legal and applicable standards.

Even when an employee is found to have transgressed the employer’s rules, in the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employ. Where a penalty less punitive would suffice,  whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal from employment (PLDT vs. NLRC , 303 SCRA 9). 

When a seafarer commits such violations,  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 frequency of the violation(s).

Under the "two-notice rule", an erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer. It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings (Skippers Pacific, Inc. v. Mira 440 Phil. 906 (2002)
In case of an  illegal dismissal,  a seafarer is  entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely  his salaries for three (3) months for every year of the unexpired term.

Assumption of liability not a defense

The  original manning agency cannot  claim that it will  be exempted from liability because it is no longer the manning agency responsible to the dismissed seafarers since  the new manning agencies  had executed Affidavits of Assumption of Responsibility.

In Section 1 of Rule II of the POEA Rules and Regulations, it states that:

Section 1. Requirements for Issuance of License. Every applicant for license to operate a private employment agency or manning agency shall submit a written application together with the following requirements:

x x x

             f. A verified undertaking stating that the applicant:

x x x

(3) Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract; including but not limited to payment of wages, death and disability compensation and repatriation.

Accordingly, despite the execution of the Affidavits of Assumption of Responsibility by other manning agencies, the original manning agency  cannot exempt itself from all the claims and liabilities arising from the implementation of the contract executed between the said original manning agency  and the seafarers. It is very clear from the above-cited provisions of the Rules and Regulations of the POEA that the manning agency shall assume joint and solidary liability with the employer.Joint and solidary liability is meant to assure aggrieved workers of immediate and sufficient payment of what is due them. The reason for this ruling was given by this Court in the 1988 case of Catan v. National Labor Relations Commission ( 160 SCRA 691, 695)  which is reproduced in part below:

This must be so, because the obligations covenanted in the recruitment [manning] agreement entered into by and between the local agent and its foreign principal are not coterminus with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted.

Also, according to Section 10, paragraph 2 of Republic Act No. 8042, the agency which deployed the employees whose employment contract were adjudged illegally terminated, shall be jointly and solidarily liable with the principal for the money claims awarded to the aforesaid employees. 

The Affidavits of Assumption of Responsibility, though valid as between  the original manning agency and the other two manning agencies, are not enforceable as against the respondents because the latter were not parties to those agreements. The provisions of the POEA Rules and Regulations are clear enough that the manning agreement extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Hence, despite the execution of the aforementioned affidavits,  the original manning agency  cannot exempt itself from the liabilities and responsibilities towards the seafarers.

( SKIPPERS UNITED PACIFIC, INC., and J.P. SAMARTZSISMARITIME ENTERPRISES CO., S.A., vs. JERRY MAGUAD and PORFERIO CEUDADANO,  G.R. No. 166363,  August 15, 2006) 

Violations of company policies and regulations as grounds for dismissal

 Violations of   company policies and regulations  are considered valid grounds for dismissal under the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC), which cover  any  of the following acts:

 a. pilferage or theft of ship’s store or cargo

 b. pilferage or theft of ships property, of crews or passengers or other persons with business at the ship.

 c. embezzlement of company   funds

 d. unauthorized disposal of   company ship’s properties for personal gain

 e. any act of dishonesty with intention to defraud the company

 f. gross negligence and failure to observe proper storage and  cargo handling procedures

        resulting in delay of ships     and/or damage to cargoes

 g. failure to observe and comply         with regulation and non- baggage shipment and        acceptance of parcels on board

 h.  failure to observe        regulations on expiration of        shore liberty

 i.  being left behind by ship in        foreign port without justifiable        reason

 j. disorderly conduct and/or        disrespect towards        passengers or other persons

 k. for immorality so as to cast        aspersion on the good name of        the ship and company

 l. inflicting harm or injury to others

Even when an employee is found to have transgressed the employer’s rules, in the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employ. Where a penalty less punitive would suffice,  whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal from employment (PLDT vs. NLRC , 303 SCRA 9). 

When a seafarer commits such violations,  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 frequency of the violation(s).

Under the "two-notice rule", an erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer. It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings (Skippers Pacific, Inc. v. Mira 440 Phil. 906 (2002)

In case of an  illegal dismissal,  a seafarer is  entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely  his salaries for three (3) months for every year of the unexpired term.

It is well-settled that the burden of proving that the termination of an employee was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal. In order to discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures (MAERSK-FILIPINAS CREWING, INC., vs. TORIBIO C. A VESTRUZ,, G.R. No. 207010   February 18, 2015) 

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"