Stroke and seafarer's stress

A seafarer who suffered stroke on board the vessel must be compensated due to work-related stress.

 In the case of  Magsaysay Mitsui OSK Marine, Inc, v. Bengson (G.R. No. 198528, October 13, 2014⁾  disregarded the employer’s   claim that the seafarer’s hypertensive cardio-vascular disease is not compensable on the sole basis of its company-designated physician’s declaration that such illness is not work-related.

The Supreme Court ruled that the seafarer’s  illness, which has likewise been diagnosed as intracerebral hemorrhage or hemorrhagic stroke, is a serious condition, and could be deadly.

The Supreme Court noted  that the  seafarer has been working for the company since 1988 and has been serving as Third Mate for twelve (12) years.  

Having worked for the principal  since 1988 under employment contracts that were continuously renewed, it can be said that the seafarer  spent much of his productive years with the principal; his years of service certainly took a toll on his body, and he could not have contracted his illness elsewhere except while working for the principal. 

As Third Mate, he was saddled with heavy responsibilities relative to navigation of the vessel, ship safety and management of emergencies. 

The seafarer  was subjected to physical and mental stress and strain: as Third Mate, he is the ship’s fourth in command, and he is the ship’s safety officer; these responsibilities have been heavy burdens on his shoulders all these years, and certainly contributed to the development of his illness. 

Besides, it is already recognized that any kind of work or labor produces stress and strain normally resulting in wear and tear of the human body.

An overseas worker, having to ward off homesickness by reason of being physically separated from his family for the entire duration of his contract, bears a great degree of emotional strain while making an effort to perform his work well.

The strain is even greater in the case of a seafarer who is constantly subjected to the perils of the sea while at work abroad and away from his family.c

The Court has ruled that the list of illnesses/diseases in Section 32-A of the  POEA Standard Employment Contract (SEC) does not preclude other illnesses/diseases not so listed from being compensable. The POEA contract  cannot be presumed to contain all the possible injuries that render a seafarer unfit for further sea duties.   And equally significant, 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.

An employee’s disability becomes permanent and total when so declared by the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120 or 240-day treatment period while the employee’s disability continues and he is unable to engage in gainful employment during such period, and the company-designated physician fails to arrive at a definite assessment of the employee’s fitness or disability.

In many cases decided in the past, the Supreme  Court has held that cardiovascular disease, coronary artery disease, and other heart-related  ailments (including stroke)  are compensable. 

Thus, in Fil-Pride Shipping Co., Inc. v. Balasta, (G.R. No. 193047, March 3, 2014) severe 3-vessel coronary artery disease which the seaman contracted while serving as Able Seaman was considered an occupational disease.  In Villanueva, Sr. v. Baliwag Navigation, Inc., (702 SCRA 311).  it was held that the 2000 POEA-SEC considers heart disease as an occupational disease. 

 In Jebsens Maritime, Inc. v. Undag (662 SCRA 670) the Court held that hypertensive cardiovascular disease may be a compensable illness, upon proof.  In Oriental Shipmgt. Co., Inc. v. Bastol ( 622 SCRA 352) and Heirs of the late Aniban v. NLRC (347 Phil. 46)  it was held that myocardial infarction as a disease or cause of death is compensable, such being occupational.  Iloreta v. Philippine Transmarine Carriers, Inc (607 SCRA 796)  held that hypertensive cardiovascular disease/coronary artery disease and chronic stable angina are compensable.  

Micronesia Resources v. Cantomayor (552 Phil. 130)  stated that a finding of coronary artery disease entitles the claimant – a seaman Third Officer – to disability compensation.  In Remigio v .NLRC (521 Phil. 330) the Court held that the claimant – a musician on board an ocean-going vessel – was entitled to recover for suffering from coronary artery disease.  In Sepulveda v. ECC, (174 Phil. 242) it was declared that the employee’s illness, myocardial infarction, was directly brought about by his employment as schoolteacher or was a result of the nature of such employment.

 (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)

Jurisdiction for crimes committed at sea

Here is an interesting piece which I lifted from the website of Australian parliament  (https://www.aph.gov.au)   with respect to crimes committed at sea. I just replaced Australia with the word State.

Enforcement jurisdiction is the ability of a country to legally arrest, try, or convict  an individual for a breach of its laws.

Crimes committed at sea present a ‘dynamic legal scenario’ where international law recognizes a multitude of domestic jurisdictions existing concurrently. At all times, a ship is subject to the domestic laws of the country in which it is registered, but it can also be within the territorial jurisdiction of another country whilst transiting its waters and in its ports, and thereby subject to that second country’s laws. Further, where a citizen is involved in a criminal offence, either as an alleged perpetrator or as a victim, their country of citizenship is recognized under international law as also having jurisdiction to investigate and prosecute the crime. A criminal act committed on board will therefore often lead to potentially competing jurisdictional claims

Enforcement jurisdiction under international law

A country will only be entitled to prosecute a crime (exercising enforcement jurisdiction) if it has recognized  grounds to claim jurisdiction over the event in international law, and its domestic law expressly asserts that jurisdiction.

As a matter of general international law, a country may invoke jurisdiction – and apply its domestic laws and enforce sanctions for criminal conduct – in a variety of circumstances, including:

a.           - where criminal conduct occurs within their territory (territorial principle);

b.       -     where one of their citizens is involved (for example, as either a victim or perpetrator) in the crime (nationality principle and the passive personality principle);

c.              where the conduct is so heinous and so widely condemned that all nations proscribe and punish its occurrence (for example, piracy, genocide and hostage taking) (universal principle);

d.            where the criminal conduct has a significantly adverse impact on its national security or governmental process (protective principle).

United Nations Convention on the Law of the Sea 1982 (UNCLOS)

The international rules and principles governing the regulation of ocean space are captured by UNCLOS. UNCLOS accords countries with specific jurisdictional zones and corresponding rights in ocean space adjacent to their territory. Territorial jurisdiction operates like concentric circles, ranging from full territorial sovereignty within internal waters, to almost no sovereign rights on the high seas. These maritime zones are measured from the Territorial Sea Baseline (TSB), the low-water line along the coast.

Under UNCLOS, the zones in which a state  can exercise its territorial jurisdiction can be classified in the following order (with diminishing capacity to enforce domestic law the further out from the TSB):

a.        Internal waters (all waters landward of the TSB);

b.       Territorial sea (12 nautical miles (nm) from the TSB)

c.       Contiguous zone (from 12nm to 24nm from the TSB);

d.       Exclusive economic zone (no further than 200nm from the TSB);

e.       Continental shelf; and

f.        High seas.

High seas, or ‘international waters’, are ‘open to all States, whether coastal or land-locked’. International waters are considered to be outside the territorial jurisdiction of any country. However, in limited circumstances, the state  may exercise extra-territorial jurisdiction.

Territorial jurisdiction

 There are two categories of territorial jurisdiction that would allow a country to enforce its criminal laws against an alleged criminal act committed whilst at sea: Port State jurisdiction and Coastal State jurisdiction. Jurisdiction beyond these two categories – in the ‘contiguous zone’ and the ‘exclusive economic zone’ – is severely limited.

Port state jurisdiction

 If a criminal act occurred when the ship is in internal waters (all waters landward of the TSB) having visited a port or about to visit a port, or when the ship has departed the port and is now in the territorial sea of the state(12nm from the TSB), then the state can claim jurisdiction over the alleged criminal offence, provided that the relevant criminal legislation expresses its extra-territorial application.

Coastal state jurisdiction

Under limited circumstances, a coastal State may exercise its territorial jurisdiction if the ship is not visiting a port of that State but is travelling through its territorial sea (out to 12 nm from the TSB).

 UNCLOS provides that a State may only exercise this type of jurisdiction where:

1.       - The ‘consequences’ of the crime extends to the coastal State;

2.       - Is of a kind to disturb the peace of the State or the good order of the State’s territorial sea; 

 I     - if the assistance of the State is requested by the Master of the Ship; or

3.       - The matter involves the specific case of the illicit traffic of narcotic drugs.

Jurisdiction based on the nationality of the accused or victim

A  state    may claim jurisdiction under general international law where its  citizen is either an accused or a victim of the alleged crime. These are understood as the nationality principle and the passive personality principle respectively. International law provides that when a criminal act is committed by its citizen, the latter’s  state has the power to prosecute that citizen according to its domestic laws no matter where the crime took place The passive personality principle provides for the state  to prosecute crimes committed against its own citizens outside its territory under certain circumstances.

Flag state jurisdiction

Under UNCLOS,  the flag state (the country in which the ship is registered) has primary responsibility over its ship, including criminal jurisdiction, even when the ship is outside the flag state’s territorial waters. A general principle is that the internal operation of a ship which is regulated by the laws of a foreign state on an ongoing basis, as ships move around the world and the general law that the flag state has primacy of jurisdiction on the high seas.

However, given that vessels are generally flagged in distant states, flag states’ ability to play an active role in investigations and/or prosecutions can be extremely limited.

Blacklisting as an industry retaliatory practice

Many Filipino seafarers are reluctant to file complaints against their manning agents due to the so called “blacklisting”, a practice used by manning agents to prevent certain seafarers being employed.

There is both “legal” and “illegal” blacklisting of seafarers.  

The Philippine Overseas Employment Administration (POEA) comes up with a blacklist (also called watchlist)  of seafarers as a form of legal sanction if a complaint of breach of discipline is filed against the  seafarer with the Adjudication Office or Regional Office.

 Seafarers who face penalties after final judgment are blacklisted. Included in the list are those disqualified from overseas employment until cleared by the POEA or until their suspension is served or lifted.

However, illegal blacklisting became a hidden industry practice where manning agencies make  statements or communications  that tend to influence or prejudice the mind of any employer against the person  seeking employment.

Blacklisting is the nefarious practice of blocking future employment of seafarers who complain about unjust treatment, safety standards, poor working conditions or unpaid wages, among others.  

Manning agencies in the Philippines will blacklist seafarers for speaking out against their employers preventing them from being hired in the industry again. Manning agents secretly circulate among themselves derogatory remarks and pictures as a retaliatory act against critical seafarers who  they consider as “troublemakers”.

Those who assert their rights are more often than not  labeled as 'troublemakers.' Their names are put on the 'blacklists' held by manning agencies and 'watchlists' held by the POEA. The practice usually destroys the future not only of seafarers but of their dependents as well.

Blacklisting can throw seafarers and whole dependent families unjustly into a sea of uncertainty and unemployment, affecting them for a lifetime.

 ILO’s Convention 179 “prohibits recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment.”

Under the Maritime Labour Convention, 2006 (which came into force in 2013, and has been ratified by 81 countries covering more than 90% of the world’s merchant fleet) empowers seafarers to report violations directly to their flag state authorities while remaining under the protection of the convention. Those flag state authorities must then investigate complaints, and they also must protect seafarers from retaliation. Alternatively, seafarers can report violations to port state authorities, who similarly must conduct an initial investigation and protect the seafarers’ confidentiality 

However, many seafarers remain skeptical of whether their unions, organizations or flag states will protect them from retaliation for reporting offences. 

Under POEA rules, the seafarer  may face sanctions by  the commission of any of the following  offenses which shall be a ground for disciplinary action:

A. Pre-Employment Offenses

1. Using, providing, or submitting false information or documents for purposes of job application or employment.

2. Unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency/ies.

B. Offenses during Employment

1. Commission of a felony or crime punishable by Philippine Laws or by the laws of the host
country;

2. Unjustified breach of employment contract;

3. Embezzlement of company funds or monies and/or properties of a fellow worker entrusted 
for delivery to kin or relatives in the Philippines; and

4. Violation/s of the sacred practices of the host country.

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).

When seafarers rightfully complain, they should not be punished for life. Yet if a seafarer appears on a blacklist their maritime career, often the only job open to them, is over.

 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)

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)

Compensability of a seafarer's pre-existing illness

A  pre-existing illness, or an ailment that was contracted prior to his employment,   will not   deprive a seafarer  of compensation benefits as long as it is diagnosed during the effectivity of his recent contract.

The Supreme Court recently considered colorectal cancer as a compensable  illness   in the recent case of Skippers United Pacific, Inc., vs Estelito Lagne (G.R. No. 217036 August 20, 2018).

 

The company argued that the seafarer is not entitled to any disability compensation since rectosigmoidadenocarcinoma, or colorectal cancer,  is not listed as one of the occupational diseases under Section 32-A ofthe POEA Standard Employment Contract . They insisted that the same is not connected with his duties as anoiler and, therefore, is not compensable under the provisions of the POEA contract.

For disability to be .compensable under Section 20(B)(4) of the POEA contract, two elements mustconcur: (I) the injury or illness must be work-related; and (2) the work-related injury or illness must have existedduring the term of the seafarer's employment contract.

The POEA contract defines a work-related injury as "injury(ies) resulting in disability or death arising outof and in the course of employment," and a work-related illness as "any sickness resulting to disability ordeath as a result of an occupational disease listed under Section 32-A of this Contract with the conditions settherein satisfied."

For illnesses not mentioned under Section 32, the POEA contract  creates a disputable presumption infavor of the seafarer that these illnesses are work­ related. However, notwithstanding the presumption, the Supreme Court have held that on due process grounds, the claimant-seafarer must still prove by substantialevidence that his work conditions caused or, at least, increased the risk of contracting the disease. This isbecause awards of compensation cannot rest entirely on bare assertions and presumptions. In  order toestablish compensability of a non-occupational disease, reasonable proof of work­ connection is sufficient -direct causal relation is not required. Thus, probability, not the ultimate degree of certainty, is the test of proofin compensation proceedings.

Under the POEA contract, an illness shall be considered as pre-existing if prior to the processing of the POEA contract, any of the following conditions are present (a)  the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such an illness or condition but failed to disclose the same during pre-employment medical examination (PEME), and such cannot be diagnosed during the PEME

            Despite its non-inclusion in the list of occupational illnesses, the Supreme Court held that the seafarer is entitled to compensation for his colorectal cancer  when it  utilized the aggravation principle wherein his work conditions caused or, at least, increased the risk of contracting the disease.

Even if colorectal cancer is considered as a pre-existing illness, the Supreme Court granted  the compensation as it noted that   what matters is that his work had contributed, even in a small degree, to the development of the disease. Neither  is it necessary, in order to recover compensation, that the seafarer  must have been in perfect health at the time he contracted the disease. A worker brings with him possible infirmities in the course of his employment, and while the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.

The Court took judicial notice of the seafarer’s  food provisions on a ship which are produced at one timefor long journeys across the oceans and seas. The food provided to seafarers are mostly frozen meat,canned goods and seldom are there vegetables which easily rot and wilt and, therefore, impracticable for long trips. These provisions undoubtedly contributed to the aggravation of seafarer's rectal illness.

Moreover, considering the manual and laborious job that the seafarer  does, the seafarer  was able to reasonably prove that his working conditions exposed him to factors that could have aggravated his medical condition. He felt pain on his anus whenever he carries heavy weights, chest pains and difficulty in  breathing during his work, and the increasing size of the protruding rectal mass.

(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)