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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Cancer and Filipino seafarers

Seafarers are exposed to occupational risk factors, as well as environmental risk factors, as part of their normal everyday activities since they spend a large part of their lives at sea. Most seafarers live and work under extremely hazardous conditions that can cause serious short-term and long-term damage to their health. In some cases, they are exposed to conditions that can even be fatal.

Under the Philippine Overseas Employment Administration (POEA) standard employment contract, a work-related illness is defined as any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of this contract with the conditions set therein satisfied. 

The only types of cancer on the list are (a)  cancer of the epithelial lining of the bladder (papilloma of the bladder), (b) cancer, epithellomatous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product. (c) Acute myeloid leukemia and (d) chronic lymphocytic leukemia.  In reality, many seafarers suffer from other type of cancers like that affects the lungs, kidney, liver, pancreas, nasopharyngeal and many more that  are  not one of the occupational diseases listed in the Standard Contract.

An illness not otherwise listed in Section 32-A is disputably presumed work-related.This presumption works in favor of a seafarer, because it then becomes incumbent upon the employer  to dispute or overturn this presumption.

 At most, there is only a disputable presumption that these types of cancer are  work-related. In determining whether an illness is indeed work-related, the Court usually uses the requisites laid down by Section 32-A of the Standard Contract, to wit:

1.      The seafarers work must involve the risks described herein;

2.     The disease was contracted as a result of the seafarers exposure to the described risks;

3.     The disease was contracted within a period of exposure and under such other factors necessary to contract it;

4.      There was no notorious negligence on the part of the seafarer.

 A maritime health    study  noted that  there has been a gradual rise in the number of cases of various types of cancers among seafarers. Cases of lung, renal, pancreatic cancers, as well as leukemia, mesothelioma and lymphoma are being identified on personnel employed on various types of vessels, as well as on the docks. These vessels include dry cargo ships, oil tankers, gas tankers, passenger vessels, and icebreakers. Increasing in number is the incidence of lung cancers among both engine crew, as well as deck officers. Maritime activities are found to be major contributors to toxic pollutants in the air, with focus on diesel exhaust, formaldehyde, benzene, as well as smoke, soot, dirt and dust, which, due to their microscopic particles, find easy access to the respiratory tract and lungs, leading to respiratory disease, asthma attacks, heart attacks, various types of cancers, birth defects, lung damage, immune system damage and nerve damage. Occupational hazards such as asbestos, benzene, and benzidines, have  been removed and/or substituted; however, new potential carcinogens are continuously being introduced into the work place. Moreover, there is the risk of cancer originating from sources other than exposures to chemicals, e.g. stress, radiation, virus, bacteria, night work and late-night shifts, physical inactivity 

In various cases, the Supreme Court acknowledged the fact that the working condition on board the vessel can aggravate the seafarer’s medical condition, regardless if the illness is listed or not as occupational diseases. The seafarer’s constant exposure to hazards such as chemicals and the varying temperature, coupled by stressful tasks in his employment may cause the aggravation of a seafarer’s medical condition. (Magsaysay vs. Laurel,  March 20, 2013 GR 195518)

However, the Supreme Court  ruled that claimants in compensation proceedings must show credible information that there is probably a relation between the illness and the work. Probability, and not mere possibility, is required; otherwise, the resulting conclusion would proceed from deficient proofs. (Sea Power Shipping Enterprises, Inc vs. Heirs of the late Armando L. Salazar G.R. No. 188595 August 28, 2013) The Court ruled that claimants must be able    to adduce evidence that the deceased’s work exposed him to the chemicals or other factors  suspected to increase the risks of acquiring cancer. They must  prove that his cancer was acquired during his employment. It said that one’s predisposition to develop cancer is affected not only by one’s work, but also by many factors outside of one’s working environment. In the absence of substantial evidence, the deceased’s working conditions cannot be assumed to have increased the risk of contracting cancer. (Balba vs. Tiwala Human Resources April 13, 2016 G.R. No. 184933, Klaveness Maritime Agency, Inc.  vs. Heirs of the late Anthony S. Allas, G.R. No. 168560             January 28, 2008)

Under the POEA contract, a seafarer afflicted with cancer during the term of his contract  can be entitled to total permanent disability benefits amounting to Sixty Thousand U.S. Dollars (US$60,000.00).  In the case of work-related death of the seafarer,  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 illness or death is covered by a Collective Bargaining Agreement (CBA). 

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

Drunkenness as ground for dismissal

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.. 

It is the duty of all seafarers to conduct themselves in the most professional, responsible and ethical manner in the performance of their duties and fulfill their  obligations under the contract.The basic rule on land applies to ships as well. Although  alcohol has long been part of the life and lore of seafarers, whether you work in the engine room or keep watch at the bridge, never carry out your duties under the influence of alcohol. Working in drunken condition can even lead to accidents and emergencies.

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, which include drunkenness under the following situations:. 

 a. Drunk while on duty.

b. Creating trouble on board due to intoxication.

 c. Failure to perform assigned jobs due to intoxication.

Another offense is the  failure to observe the drug and alcohol policy of the company. 

         The 2010 Manila Amendments to the International Convention on Standards of Training, Certification and Watchkeeping, 1978 (STCW) included new requirements aimed at curbing alcohol and drug abuse. Section A-VIII/1 of the STCW Code set down a limit of 0.05% blood alcohol content for masters, officers and other seafarers while performing designated safety, security and marine environmental duties. 

      There are good reasons for restricting alcohol on board. Research shows that even small quantities can impair judgement, leading to increased risk-taking, concentration problems, lower performance of navigational tasks such as tracking and difficulty responding to unexpected or emergency situations. It also greatly reduces the chances of survival in the water.

          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  the penalty of suspension or permanent disqualification from participation in the overseas employment program  based on the frequency of the commission of the  offense: 

         1st Offense — Suspension of  one year to two years

         2nd Offense — Suspension of two years and one day to Three years

         3rd Offense — Permanent Disqualification 

With regards to failure to observe the drug and alcohol policy of the company, the POEA may impose a   penalty of suspension from one year to Three years)  for the first offense or permanent Disqualification for the second offense.

The Seafarer's Identification and Registration Book (SIRB)  under MARINA rules may likewise  be suspended after due process due to Intemperate habits such as drunkenness tending to cause immediate loss or destruction or serious damage to the vessel or tending to endanger the life of any person organic to or passenger of such vessel.

Under normal circumstances, a glass (or some glasses)   of beer is not so intoxicating as to diminish a man's rational capacity. It must be  proven at all that such amount of alcohol blurred his reason [1] A company's misleading argument should be disregarded in the absence of proof that the intake of alcoholic drinks was of such quantity as to blur the person's reason and deprive him of a certain degree of control[2]

Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man for his own protection than by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober.[3].

The issue  of drunkenness must be supported by clear and convincing proof to the effect that such intoxication or drunkenness rendered the employee incapable of doing his work so that he could not be said to be engaged in his employment. The incident must be shown to have arisen out of his drunken condition and not out of the work. The burden of establishing intoxication and that it caused the incident is on the employer.[4]

It is incumbent on the company  to prove their claim of intoxication as ruled by the Supreme Court:

x x x it has been held that even if it could be shown that a person drank intoxicating liquor it is incumbent upon the person invoking drunkenness as a defense  to show that said person was extremely drunk.  This is so because a person may take as much as several bottles of beer or several glasses of hard liquor and still remain sober and unaffected by the alcoholic drink. Thus, intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation, although intoxication may be a contributory cause to his injury. It must be shown that the intoxication was the proximate cause of death or injury and the burden of proof lies on him who raises drunkenness as a defense[5] . While it may be admitted that the deceased drank intoxicating liquor at the dance party, respondents ECC and GSIS have not established that the state of drunkenness of the deceased is the proximate cause of his death. [6]

        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.

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[1] Wright v. Manila Railroad Co., 28 Phil. 116

[2] Compania Maritima vs. Vda de Hio, 107 Phil 873

[3] Pp. vs. Pinca Gr. 129256 November 17, 1999

[4] People v. Boduso, 60 SCRA 60

[5] Vda. de Yohanan vs. Balena and WCC, 78 SCRA 348

[6] Juanita Nitura vs. ECC and GSIS, G.R. No. 89217, September 4, 1991  

POEA rules on seafarer's fees

The  Revised POEA Rules and Regulations  2016 states how chargeable fees and costs  are considered in relation to the  recruitment and employment of Filipino seafarers. The revised rules was passed in accordance with the policy of the Philippine Overseas Employment Administration (POEA)  policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all;

A. Fees Chargeable to Principal/Employer: 

       1. Manning Fees - Licensed manning agencies shall charge from their principal/employer a            manning fee to cover services rendered in the recruitment and deployment of seafarers. 

               2. Processing Fees - All processing fees required for deployment. However, in case of seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer, the said fees shall be refunded by the seafarer within thirty (30) days from demand.  These include:
       a. pre-employment  medical examination in the principal’s/employer’s designated clinic,         b. POEA and OWWA fees, 
        c.visas, 
        d.principal’s/employer’s flag State ship requirements, 
        e. principal’s/employer’s required trainings and other requirements

B. Costs Chargeable to the Seafarer. 

Documentation costs of all statutory requirements such as, but not limited to, passport, seafarer’s identification and record book (SIRB), NBI/police/barangay clearance, Seafarer’s Registration Certificate (SRC) and birth certificate.

No other charges in whatever form, manner or purpose, shall be imposed on and be paid by the seafarer, unless otherwise provided by law. 

Administrative offenses involving collection of fees   are classified into serious, less serious and light, depending on their gravity.  The POEA  shall impose the appropriate administrative penalties for every recruitment violation. in view of the  

A. SERIOUS OFFENSES are those    that by their nature and effect are punishable by immediate  cancellation of license, plus refund of fee or bond collected or excess processing or documentation costs (if applicable).  Permanent Disqualification and delisting from the roster of accredited principals/employers may also be imposed. 

1. Charging or accepting directly or indirectly any amount of money, goods or services, or any fee or bond for any purpose from an applicant seafarer.  

 2. Charging, imposing or accepting, directly or indirectly, under any guise whatsoever, any amount of money as payment for the insurance premium for compulsory insurance coverage. 

3. Collecting any amount as payment for processing, or documentation costs not prescribed by the rules, or an amount greater than the actual documentation costs, as covered by official receipts issued by entities where payments were made. 

 B. LESS SERIOUS OFFENSES are those that by their nature and effect are punishable by the penalty of suspension to cancellation of license. 

1. Withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing Rules and Regulations

2.  Failure to reimburse expenses incurred by the seafarer in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the seafarer's fault.The penalty shall include the carry the accessory penalty of immediate refund of expenses incurred by the seafarer.

Unlike serious offenses  which are punishable by immediate  cancellation of license, plus refund of fee or bond collected or excess processing or documentation costs (if applicable).  as well as Permanent Disqualification and delisting, penalties for less serious offenses may vary based on the frequency of violations:

              1st Offense — Suspension of License (2 to 6 Months) 

              2nd Offense — Suspension of License (6 Months and 1 day to 1 year) 

              3rd Offense — Suspension of License (1 year and 1 day to 2  years) 

              4th Offense — Cancellation of License 

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

The penalty of cancellation of license shall be imposed upon a respondent found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case. This provision shall not apply to consolidated cases unless there are five (5) or more complainants in any of the consolidated cases. 

Prescription: All cases  shall be barred if not commenced or filed with the POEA within three (3) years after such cause of action accrued

Termination of the POEA contract

The  employment of Filipino seafarers  is governed by the Standard Employment Contract (SEC) they sign  and  duly approved by the Philippine Overseas Employment Administration (POEA) every time they are rehired and their employment is terminated upon its completion. 

As a general rule, the employment of the seafarer shall cease when the seafarer 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 of the following reasons:

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 

The POEA contract further explains the rules on the termination of the contract due to reasons Nos. 2 to 4. :

DUE TO VOLUNTARY REPATRIATION: 

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

 DUE TO JUST CAUSE: 

When the seafarer is discharged for any just cause, the employer shall have the right to recover the costs of his replacement and repatriation from the seafarer’s wages and other earnings. Section 33 of the contract enumerates  twenty one (21) offenses which are considered valid grounds for dismissal. .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).

DUE TO SHIPWRECK AND SHIP’S FOUNDERING 

Where the ship is wrecked necessitating the termination of employment before the date indicated in the contract, the seafarer shall be entitled to earned wages, medical examination at employer’s expense to determine his fitness to work, repatriation at employer’s cost and one month basic wage as termination pay. In case of termination of employment of the seafarer before the expiration of the term of his contract due to shipwreck, actual or constructive total loss or foundering of the ship, the seafarer shall be entitled to earned wages, medical examination at employer’s expense to determine his fitness to work, repatriation at employer’s cost and one month basic wage as termination pay. 

DUE TO SALE OF SHIP, LAY-UP OR DISCONTINUANCE OF VOYAGE 

Where the ship is sold, laid up, or the voyage is discontinued necessitating the termination of employment before the date indicated in the Contract, the seafarer shall be entitled to earned wages, repatriation at employer’s cost and one (1) month basic wage as termination pay, unless arrangements have been made for the seafarer to join another ship belonging to the same principal to complete his contract in which case the seafarer shall be entitled to basic wages until the date of joining the other ship. 

DUE  TO  CHANGE OF PRINCIPAL 

A. Where there is a change of Principal of the ship necessitating the pre-termination of employment of the seafarer; the seafarer should be entitled to earned wages and repatriation at employer’s expense. He shall also be entitled to one (1) month basic pay as termination pay. 

B. In case arrangements have been made for the seafarer to directly join another ship of the same Principal to complete his contract, he shall only be entitled to basic wage from the date of his disembarkation from his former ship until the date of his joining the new ship. 

DUE TO UNSEAWORTHINESS 

A. If the ship is declared unseaworthy by a classification society, port state or flag state, the seafarer shall not be forced to sail with the ship. 

B. If the ship’s unseaworthiness necessitates the termination of employment before the date indicated in the Contract, the seafarer shall be entitled to earned wages, repatriation at cost to the employer and termination pay equivalent to one (1) month basic wage. 

 DUE TO REGULATION ¼, CONTROL PROCEDURES OF THE 1978 STCW CONVENTION, AS AMENDED If the seafarer is terminated and/or repatriated as a result of port state control procedures/actions in compliance with Regulation ¼ of the 1978 STCW Convention, as amended, his termination shall be considered valid. However, he shall be entitled to repatriation and earned wages and benefits only.