Escrow deposit in seafarers' cases

In terms of labor litigation,  “escrow deposit ” plays a significant role in  a seafarer's  favorable decision on his monetary claims.

Every labor dispute involves two opposing parties:  the worker on one side and the management on the other, involving monetary claims  like disability and death benefits, illegal dismissal awards as well as unpaid or underpayment of salaries and wages. 

A manning agency is required under   POEA Rules to  deposit in escrow with  a bank  the amount of ONE MILLION PESOS (Php1 ,000,000.00) to answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license, and/or accreditation and contracts of employment. These include recruitment violations, or claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino seafarers under the joint and solidary liability of the manning agency.

Labor litigation takes years before its finality. In most cases, the elevation of the records alone from the NLRC/NCMB to the Court of Appeals or Supreme Court will take several years. The proceedings in the appellate court will entail further delay.  In cases of seafarers with medical conditions, some incur huge debts to sustain their medication. Others die before the decision by the Supreme Court is released. 

The prevailing party might  be unable to enjoy  the judgment award  after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay. Due to the longer years that they have to wait, without any leverage in prosecuting his monetary claims, chances are, the  seafarer bows to the demand of his employer to either drop his claim or accept a small settlement amount. 

To protect the seafarers, the escrow deposit  must  remain intact during the validity of license for a period of four (4) years and an additional of four ( 4) years if not renewed upon its expiration or should the license be revoked or otherwise cancelled for whatever legal grounds. In case the deposit in escrow is reduced, the Manning agency  shall replenish the same within fifteen (15) calendar days from notice by the POEA. The Bank  shall at all times advise the POEA whenever the escrow deposit is reduced or same is no longer intact. Failure to replenish  shall result in the suspension of license of the Manning agency without further notice.

The escrow deposit shall not be  released except upon proper authorization by the POEA .  The bank   shall pay the claims on a "first come-first served" basis and the Order of Garnishment that is first served upon the bank  shall be satisfied, irrespective of the date of the issuance of the writ of execution. If several claims are simultaneously presented on the same day, and the escrow deposit is not sufficient to pay the claims, the bank shall pay the claims on a pro-rata basis.

The bank  shall not be liable beyond whatever balance of the deposit in escrow.

Visa cost payment as illegal recruitment

Seafarers are not required to pay for the expenses incurred in the visa processing as part of  deployment fees. Otherwise, the company may be liable for illegal recruitment per POEA rules. 

Under POEA rules, all processing fees required for deployment are chargeable to the principal/employer such as pre-employment medical examination (PEME) in their designated clinic, POEA and OWWA fees, visas, principal’s/employer’s flag State ship requirements, principal’s/employer’s required trainings and other requirements. 

The only incident where refund is allowed is  in case of the seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer. 

As a general rule, transit visa requirements for seafarers  are administrative entry restrictions imposed by countries during transit or turnaround. The validity of transit visas are usually limited to short terms such as several hours to  days depending on the size of the country and the circumstances.  The transit visa usually covers seafarer who   intend to: a) join a ship that is (or will be) in a foreign   port, b) land with the aim of join another ship that is (or will arrive) in a foreign  port. 

On the other hand, costs chargeable to the seafarer include  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.

In some cases of  non-deployment, there are   seafarers who  are  forced to refund the visa expenses  in exchange for the release of their travel documents  such as passports and SIRB. 

Legally speaking, the unauthorized withholding of  the  travel documents    is a form of coercion that  is penalized as Illegal Recruitment under Republic Act. No. 8042, as amended  by R.A. 10022, otherwise known as "Migrant Workers and Overseas Filipinos Act of 1995.. "

The law specifically states that is   unlawful “to withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations. ”

Agencies and foreign principals found violating POEA rules will be blacklisted or penalized in accordance with R.A.  10022. POEA rules likewise provide that disciplinary actions will be meted against foreign principals and employers of OFWs found violating Philippine laws, rules, and regulations on overseas employment.

The persons criminally liable for the said  offense are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business and the responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than P1,000,000.00 nor more than P2,000,000.00.

The penalty of life imprisonment and a fine of not less than P2,000,000.00 nor more than P5,000,000.00 shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. 

If the offender is an alien, he or she shall also be deported without further proceedings.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic. 

Noise and Seafarer's hearing loss

Noise  is a major health hazard to seafarers. It causes hearing loss over years of being exposed from various sources like  large diesel engines, turbines, cargo cranes,  and other equipments.

Hearing loss caused by noise exposure is called sensorineural, a type of hearing loss related to problems in the inner ear. Noise, over time, can cause damage to the nerve cells and small hairs in the inner ear that send sound signals to the brain.

A 10-year pre-employment medical (PEME) study released in March 2016   by the UK P&I Club has found a dramatic increase in the incidence of hearing defects as the main reason for crew failing their pre-employment medical checks. Hearing defects have increased by 40% and are now the third main cause of PEME failure.  Typically, crew with poor audiometry results can also display signs of mild to moderate high frequency hearing loss.Those seafarers working in engine rooms had a higher tendency to experience hearing disabilities. 

Hearing loss  is a very real possibility but is  one of those types of occupational illness  that are not usually immediately obvious. The effects of exposure to engine noise over the years more often than not appear  as the seafarer approach retirement age. 

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In the event that such hearing loss was detected during the PEME, the seafarer will not automatically receive medical benefits even if he is connected with the company for long period of time. The seafarer  must complain of the illness  during the effectivity of the contract which leads to his   medical repatriation. Otherwise,  it will be a case of finished contract disqualifying him for  medical benefits.. 

Under the POEA Contract, total deafness of both ears is assessed as   a Grade “3” disability Despite said unfortunate condition,   the seafarer will not be given  total permanent disability benefits. The contract fails  to recognize  the Supreme Court's ruling "it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work.” A seafarer suffering from  total deafness  will  be considered  more of a liability than an asset if he  is allowed to go on board the vessel. 

   

In cases of medical repatriation due to hearing problems, failure to comply with the  3 day reportorial  rule found under the POEA Contract will lead to denial of claims. He must  also  show that he was physically incapacitated to be medically examined by a company-¬designated physician that would have justified his non-compliance with the mandatory three-day period. (Ricasata vs.Cargo Safeway, G.R. No. 208896, April 6, 2016)

If  the seafarer  suspects that he has  hearing loss because of noise exposure on the job, he  should  see a doctor before disembarkation and get medical records that prove it was most likely caused by years of exposure at work.Losing hearing is a serious medical condition and it impacts one's  well-being.

Pneumonia as an occupational illness

 To be entitled to compensation and benefits, it is not sufficient to simply establish that the seafarer's pneumonia   has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted .

It is   a well-known fact that seafaring is one of the most hazardous occupations, in regards to personal health and safety concerns of seafarers. 

Apart from accidents, seafarers are prone to certain serious diseases and health hazards due to the nature of onboard work, change in climatic conditions, type of cargo carried, working hours, materials being handled, epidemic and endemic diseases, personal habits etc. Because of their nature of work, seafarers are bound to visit many ports in different parts of the world and are thus exposed to various pandemic and epidemic diseases. 

      Pneumonia is an infection in one or both lungs. It can be caused by bacteria, viruses, or fungi. Pneumonia causes inflammation in the air sacs in your lungs, which are called alveoli. The alveoli fill with fluid or pus, making it difficult to breathe. 

Pneumonia can be classified according to the organism that caused the infection (Bacterial, Viral, Mycoplasma and Fungal);  where it was acquired (hospital, community) or  how it is acquired (aspiration or ventilator-associated).

The seafarer  is required to prove that: (1) he suffered an illness; (2) he suffered this illness during the term of his employment contract; (3) he complied with the procedures prescribed under Section 20-B; (4) his illness is one of the enumerated occupational disease or that his illness or injury is otherwise work-related.  

A seafarer suffering from any of the  infections   would still have to satisfy four (4) conditions before his or her disease may be compensable: (a) the seafarer's work must involve the risks describe therein; (b)  the disease was contracted as a result of the seafarer's exposure to the described risks;  (c). the disease was contracted within a period of exposure and under such factors necessary to contract it; and (c) there was no notorious negligence on the part of the seafarer.

Since one of the requirement for an illness to be compensable is that the seafarer suffered said illness during the effectivity of the POEA contract, it is imperative that his condition or symptoms  must be documented while he is on board the vessel, such as Pneumonia symptoms can be mild to life-threatening. The most common symptoms of pneumonia can include: coughing that may produce phlegm (mucus); fever, sweating, and chills; shortness of breath and chest pain.    Otherwise, his claim for disability benefits might be denied due to failure to prove that said illness occurred while his contract is still in force.

 The Supreme Court ruled in a case the claimants   failed to adduce substantial evidence showing that the pneumonia, which the seafarer contracted, was caused by tetanus as a result of the burn injury.  There was no medical report which would even show that tetanus was the cause as to why the seafarer suffered pneumonia that eventually caused the death. Crew and Ship Management vs. Soria  G.R. No. 175491; December 10, 2012

The Supreme Court likewise ruled that the causes of  the seafarer's  death, as shown by his death certificate, indicate that pneumonia was simply the final illness that immediately brought about his  death. The long road to pneumonia started from an underlying cause AIDS that rendered him susceptible to the antecedent cause of tuberculosis, and to pneumonia as the immediate cause of death.  No evidence on record shows that seafarer's  working conditions on board as a First Engineer caused the pneumonia that brought on his death two years after he had disembarked from his vessel. (Escarcha vs. Leonis, July 5, 2010,  Gr. No. 182740)