“We are on the same boat” – Pope Francis

The current global coronavirus epidemic is a reminder that we are  sailing on the same boat  - a spiritual voyage  regardless of one’s nationality , race , age or social status.

The sea of life can be quite calm, but it also can change so suddenly, with the waves that represent life’s sudden obstacles and hardships.

Pope Francis   said during the  special solitary prayer service “Urbi et Orbi” ( to the city and the world) last Friday from the steps of St. Peter’s Basilica that the health crisis put everyone "in the same boat".

“We were caught off-guard by an unexpected, turbulent storm.  We have realised that we are in the same boat, all of us fragile and disoriented, but at the same time important and needed, all of us called to row together, each of us in need of comforting the other," he said.

The Vatican called the service "An Extraordinary Prayer in the Time of Pandemic" as the death toll of the global epidemic continues to rise  while more than half of the world’s population is confined to their homes to prevent the spread of Covid-19.

Popes usually give their extraordinary  blessing "urbi et orbi" only immediately after their election and on Christmas and Easter Sunday.

The pope prayed for an end of the epidemic  while urging the world to see the coronavirus pandemic as a test of solidarity and a reminder of basic values.

"Let us invite Jesus into the boats of our lives," the pope said. "Let us hand over our fears to him so that he can conquer them."

Like the disciples on the stormy Sea of Galilee, he said, "we will experience that, with him on board, there will be no shipwreck, because this is God's strength: turning to the good everything that happens to us, even the bad things."

Boats as the symbolic  vehicle of faith  had been part of the teachings of the church.

Christ first gathered his fishermen-disciples around him who later  disseminated his teachings.

Andrew, Peter, James and John, the sons of Zebedee, were fishermen.  The bible relates that Andrew and Peter were fishing, plying their trade when called, and James and John were mending nets with their father. The bible also  states that James and John  weren’t just fishermen, but business owners, along with their father, for they employed others in the business.

Thomas and Philip may have also worked as fishermen, for they were all together and fishing when Jesus appeared to them following his resurrection.

“We are not self-sufficient; by ourselves we founder: we need the Lord, like ancient navigators needed the stars. Let us invite Jesus into the boats of our lives,” he said.  “We have an anchor: by his cross we have been saved. We have a rudder: by his cross we have been redeemed.”

Pope Francis also prayed  for safety  of  the frontliners  that  “are exercising patience and offering hope, taking care to sow not panic but a shared responsibility” and “ in small everyday gestures, face up to and navigate a crisis by adjusting their routines, lifting their gaze and fostering prayer."

Seafarers can be considered as frontliners themselves since they belong to a profession known to be one of the most hazardous occupations, in regards to personal health and safety concerns, while making sure that there is food on the table.

Ninety percent (90%)  of the world’s food, fuel, raw material and manufactured goods are delivered by sea. Nearly all things sold world wide are transported through ships, which need skilled seafarers to operate, maintain and repair.

Transporting  cargo from one port to other often involves facing frightful  storms and horrific waves. 

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, and personal habits.

Cardinal  Luis Antonio Tagle  once said  that Filipino seafarers  are  ‘saint potentials.’  The archbishop was referring to Saint Lorenzo Ruiz and San Pedro Calungsod as he noted that these two martyrs of the Philippine Catholic Church were seafarers and missionaries at the same time before they became saints. He added that Ruiz and Calungsod sailed to other countries and died for a mission: “to teach the Good News.”

Due to the COVID19 fiasco, there are  reports   of  thousands of  seafarers  with expired employment contracts have been forced into continued labor aboard  ships  to meet the demands of governments that have closed their borders and yet still want fuel, food and supplies.

Under international maritime labor law, seafarers have a right to return home at the end of their contract at no cost to themselves.

Unfortunately, airline and port restrictions have made it  difficult for  seafarers to get home if the governments do not make special arrangements. In some instances, repatriation is almost impossible because most international air traffic is grounded.

Atty. Dennis R. 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 non-deployment due to replacement is a breach of contract

Failure to deploy  a seafarer due to  replacement  by another seafarer is considered a breach of contract entitling him to damages.

The Supreme Court awarded the seafarer  his  nine months' worth of salary  in the case of Abosta Ship Management, vs. Wilhilm Hilario {G.R. No. 195792 , November 24, 2014} when the  employer unjustifiably failed to  deploy the  seafarer in accordance with the POEA-approved contract of employment .

Records showed that the foreign principal had already chosen the seafarer  from among the other candidates as bosun. The manning agency then   entered into an employment contract and hired the seafarer. Subsequent communications, though, show that the foreign principal approved a different candidate for the position of bosun,

The case revolved  on the issue of whether such breach would entitle the seafarer  to the payment of actual damages for the failure of the employer to comply with the latter’s obligations in accordance with the employment contract.

It is the contention of the manning agency  that the seafarer’s non-deployment was due to the foreign principal’s management prerogative to promote an able seaman. This exercise of management prerogative supposedly  is a valid and justifiable reason that would negate any liability for damages.

The Supreme Court, however,  noted that there was a  violation of the contract at the time that the foreign principal decided to promote another person.

The vacancy for the position of bosun ceased to exist upon the execution of the contract between the  employer  and seafarer that was subsequently approved by the POEA. There was no longer a vacancy when the foreign principal changed its mind, since the position of bosun had already been filled up by the seafarer.

The contract was already perfected on the date of its execution, which occurred when the employer  and seafarer agreed on the object and the cause, as well as on the rest of the terms and conditions therein.

 Contemporaneous with the perfection of the employment contract was the birth of certain rights and obligations, a breach of which may give rise to a cause of action against the erring party.

The POEA contract must also be recognized and respected since   neither the manning agent nor the employer can simply prevent a seafarer from being deployed without a valid reason.

 The promotion and choice of personnel is indeed  an exercise of management prerogative so long as they are exercised in good faith for the advancement of the employer’s interest, and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements.

 However, there are limitations on the exercise of management prerogatives, such as existing laws and the principle of equity and substantial justice.

Under the principle of equity and substantial justice, the Supreme Court underscored that change of mind is  not a valid reason for the non-deployment of the seafarer .

 He lost the opportunity to apply for other positions in other agencies when he signed the contract of employment with the employer. Simply put, that contract was binding on the parties and may not later be disowned simply because of a change of mind of either one of them.

The unilateral and unreasonable failure to deploy the seafarer  constitutes breach of contract, which gives rise to a liability to pay actual damages.

The sanctions provided for non-deployment do not end with the suspension or cancellation of license or the imposition of a fine and the return of all documents at no cost to the worker. They do not forfend a seafarer from instituting an action for damages against the employer or agency that has failed to deploy him.

The failure to deploy a seafarer  was an exercise of a management prerogative that went beyond its limits and resulted in a breach of contract.

In tum, the employer's breach gave rise to the seafarer's cause of action to claim actual damages for the pecuniary loss suffered by the latter in the form of the loss of nine months' worth of salary as provided in the POEA-approved contract of employment.

The same principle was applied by the Supreme  Court in the cases of Santiago v. CF Sharp Crew Management, Inc (527 SCRA 165)  and C.F. Sharp & Co. Inc vs Agustin and Minimo (G.R. No. 179469               February 15, 2012).

Despite the fact that the employer-employee relationship has not commenced due to the failure to deploy the seafarers  in both cases, the Court declared that they are  entitled to rights arising from the perfected Contract of Employment, such as the right to demand performance by the employers  of their obligation under the contract.

Atty. Dennis R. 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 psychological disorder as compensable work-related illness

A seafarer’s psychological disorder or  schizophrenia is considered as  a compensable  work-related illness triggered by  the work environment on board the vessel.

In compensation and disability claims, probability and not the ultimate degree of certainty is the test of proof. The precise medical causation of the illness is not significant, as long as the illness supervened in the course of employment and is reasonably shown to have been either precipitated or aggravated by work condition.

Using this principle, the Supreme Court awarded  total permanent disability benefits to seafarer Eduardo Obrero in Leonis Navigation Co., Inc. and World Marine Panama S.A. v.  Obrero,( G.R. No. 192754, September 07, 2016).

The Court stressed that  mariner’s  previous unremarkable stints as a seafarer reasonably support the conclusion that his work environment increased his risk of developing or triggering schizophrenia.

The seafarer's demotion to messman—which is inherently work-related and was conveniently ignored by the employer in its pleadings—appears to be the event that precipitated his mental disorder.

He was able to accomplish his tasks without any issue as an ordinary seaman (OS)  and later as an able seaman (AB) from his previous contracts.

It was only after he was deployed as with a demoted position as a  messman onboard M/V Brilliant Arc that he began experiencing sleep interruptions and started having persecutory delusions, ultimately leading to the erratic behaviour detailed in the Master Report.

 Applying the standard of substantial evidence, the Court found as  reasonable and highly probable the explanation by  the seafarer’s personal doctor—that his prolonged stint at sea eventually taxed his coping abilities which rendered him incapable of handling the stress of being demoted.

Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion

The Supreme Court disregarded the company doctor’s categorical declaration that schizophreniform disorder is not work-related since his expertise is general and cancer surgery.

The Court  noted that the seafarer’s personal doctor, a psychiatrist,   is in a better position to make a more accurate medical assessment with respect to his illness, which is psychiatric in nature and, therefore, her findings deserve greater weight.

Schizophrenia is the most common form of psychotic disorder which involves a complex set of disturbances of thinking, perception, affect and social behaviour and whose causes are still largely unknown.

 It is generally acknowledged that schizophrenia has a multifactorial etiology, with multiple susceptibility genes interacting with environmental insults to yield a range of phenotypes in the schizophrenia spectrum.

Stressful life events are identified as one of the risk factors in most etiological models of schizophrenia, with many studies reporting an excess of stressful life events in the few weeks prior to the onset of psychotic and affective disorders.

For disability to be compensable the POEA contract, two elements must concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract.

 The POEA contract  defines  a work-related illness as "any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A with the conditions set therein satisfied."

 For illnesses not mentioned under Section 32, the POEA contract  creates a disputable presumption in favor of the seafarer that these illnesses are work-related.

 In order to establish 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 proof in compensation proceeding.

The Supreme Court have already held that schizophrenia may be compensable which negates any blanket exception against it as a compensable illness.

In Cabuyoc v. Inter-Orient (508 SCRA 87),  permanent disability compensation for schizophrenia was awarded after finding that the seafarer's illness and disability were the direct results of the demands of his shipboard employment contract and the harsh and inhumane treatment of the officers onboard the vessel.

In NFD International. v. NLRC (700 SCRA 53),   schizophrenia was declared to be work-related after the employer failed to negate the causal confluence between the epilepsy suffered by the seafarer after a mauling incident while onboard the vessel and his subsequent affliction of schizophrenia.

Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786).

“Clear and existing danger” rule in seafarer’s dismissal cases

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 in cases of a seafarer’s dismissal.

The untimely  termination of a seafarer’s employment can be declared a case of illegal dismissal if  the employer fails to prove that the seafarer was afforded   procedural due process.

The POEA Standard Employment Contract (SEC) enumerates in Section 17  the  disciplinary procedures, or the “two notice and one hearing rule”,  that must be followed in dismissing a seafarer.

The Master shall furnish the seafarer with a written notice containing (a) the grounds for the charges and (b) date, time and place for a formal investigation of the charges against the seafarer concerned.

 The Master or his authorized representative then  shall conduct the investigation or hearing, giving the seafarer the opportunity to explain or defend himself against the charges.

An entry on the investigation shall be entered into the ship's logbook.

If, after the investigation or hearing, the Master is convinced that imposition of a penalty is justified, the Master shall issue a written notice of penalty and the reasons for it to the seafarer, with copies furnished to the Philippine agent.

The rules also state that  dismissal for just cause may be effected by the Master without furnishing the seafarer with a notice of dismissal if doing so will prejudice the safety of the crew or the vessel. This information shall be entered in the ship's logbook.

The Master shall send a complete report to the manning agency substantiated by witnesses, testimonies and any other documents in support thereof.

 The Supreme Court underscored   the “ clear and existing danger” rule in dismissal cases in the case of EVIC Human Resource Management Inc., v. Rogelio Panahon, (G.R. No. 206890, July 31, 2017)

The seafarer in said case  admitted  that he  took a sip from the small flask of whisky given to him by one of the stevedores he dealt with and went to bed.

 The captain  had him awakened and ordered him to make a report on some damages in the railings of the ship caused by the stevedores.

When he submitted the report to the captain, the latter allegedly smelled a faint odor of whisky and asked the seafarer if he had been drinking, to which the seafarer  truthfully replied that he drank a little whisky and was willing to take an alcohol test.

The seafarer claimed that the captain  shrugged off his offer to take an alcohol test but as soon as he left, the captain  made a logbook entry  recommending his  immediate replacement.

The company argued that the dismissal was justified because the seafarer  was caught intoxicated, in violation of the company policies, instructions, and stipulations of the  POEA contract.

Thus, fearing that the safety of the vessel and/or crew may be at risk with the continued presence of the seafarer , the employers  were constrained to ask that the seafarer be relieved.

The Supreme Court ruled that this was a case of illegal dismissal as the records are bereft of any evidence showing that  was given a written notice of the charges against him, or that he was given an opportunity to explain or defend himself.

Neither is there proof that the seafarer  was furnished with a written notice of the penalty imposed against him and the reasons for its imposition.

The employers  admit that these required notices were dispensed with because, according to them, there was a clear and existing danger to the safety of the crew or vessel.

Merchant shipping is known to be an occupation with a high rate of fatal accidents caused by maritime disasters and occupational accidents. Most accidents happen because of simple mistakes in use of navigational equipment and interpretation of the available information.

Unfortunately for the employers , however, there is no evidence that was presented to prove such was the situation when the seafarer  was terminated.

It is a settled rule in labor cases that the employer has the burden of proving that the dismissal of a seafarer  was for a just or authorized cause, and failure to show this would necessarily mean that the dismissal was unjustified and, therefore, illegal.

 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.

 ***

 Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786).

Toxic chemicals and seafarer’s heart diseases

Seafarer’s medical conditions,  including cardiovascular diseases, can be attributed to their  constant exposure to hazards such as toxic chemicals and the varying temperature, coupled by stressful tasks in his employment.

The Supreme Court recognized the  relation of toxic chemicals with   coronary artery diseases in granting the  seafarer’s entitlement for  the amount of  Sixty Thousand US Dollars (US$60,000.00) as     total permanent  benefits in  the case of Magat  vs Interorient Maritime Enterprises (G.R. No. 232892, April 04, 2018)

The seafarer has been with the company  as able bodied seaman for almost five years.

During the seafarer’s  last employment, part of his  job assignment was to paint the ship's pump room.

Due to the poor ventilation in the said room, the seafarer claimed that he was able to inhale residues and vapors coming from the paint and thinner that he used.

The seafarer  suffered shortness of breath and chest pains which he claimed to have reported to the Chief Mate but was told by the latter to just rest. When his condition improved, the seafarer  continued to perform his duties until he was able to complete his contract.

Upon his repatriation, the seafarer  reported immediately to  the  company and asked for a referral to the company doctor for a medical examination of his heart condition but the latter ignored his request.

He  was then asked to execute a document indicating  that he did not experience any illness or injury during his employment on board the vessel, and manifested his willingness to join the vessel again after three (3) months.

However, due to episodes of chest pains, he was seen by an  Internal Medicine specialist    on the same date for consultation  who advised  him to rest and prescribed certain medications.

 The seafarer later   re­-applied with  company. The result of the seafarer’s  Pre-Employment Medical Examination (PEME)   revealed that he had  "Hypertension controlled with maintenance medication; Dilated Cardiomyopathy; Renal parenchymal calcification bilateral." The seafarer was not deployed due to the said findings.

The Labor Arbiter held that the seafarer's job  had contributed even in a small degree to the development of his cardiovascular disease.

The fact that he signed­ off from  the vessel due to "completion of contract" does not bar recovery of his disability claims considering that he aptly established reasonable causation of his cardiovascular disease and his work. 

The  labor arbiter  also ruled that the seafarer's heart disease could not have developed during that short period between his repatriation and medical examination, hence, he  acquired or developed his illness during the term of his contract. This was upheld by the Commission but was  reversed by the Court of Appeals.

In ruling in favor of the seafarer, the Supreme Court acknowledged that he  was exposed to constant inhalation of hydrocarbons including residues and vapors of paints and paint thinners during their painting jobs especially when he painted. the confined areas of the vessel.

Paints contain toxic chemicals like lead and benzene which if inhaled would cause health problems including cardiovascular diseases.

Benzene is a widely used chemical and is mainly used as a starting material in making other chemicals, including plastics, lubricants, rubbers, dyes, detergents, drugs, and pesticides.

Benzene is a colorless, sweet-smelling chemical used in cargo ships, particularly crude oil vessels.

The seafarers most affected by benzene are those who perform vessel maintenance and tank cleaning. Benzene can cause a host of medical issues, including immune system damage, cancer, internal bleeding, and leukemia.

The most common way in which seafarers are exposed to toxic chemicals while on the job is through inhalation. Since benzene tends to evaporate quickly, inhalation can happen without detection.

Another common way of exposure is through the skin and eyes, particularly if the chemicals are liquid, gas, or solid.

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.

Since the seafarer  was accepted and deployed by the employers, the Court noted that it is safe to say that he passed the PEME without any finding that he had a pre-existing heart ailment, or that they  accepted him despite being aware of his condition.

In any case, the employers, in hiring the seafarer despite his advanced age and pre-existing medical condition, assumed the risk of liability for his health. They cannot be allowed to subsequently evade such liability by claiming that his illness was discovered only after his employment was terminated.

Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786).

Seafarers, Corona Virus and other infections.

Seafarers  were cautioned  to  follow health guidelines to prevent the spread of illnesses in view of the recent outbreak of Novel CoronaVirus (NCoV)  

The International Transport Workers’ Federation (ITF) released an advisory for seafarers to   take precautionary measures to avoid getting infected with  NCoV. 

The ITF advised seafarers to have  minimal interpersonal exchanges with people from ashore, avoiding contact with people who show symptoms of flu or high temperature and taking care of personal hygiene including more frequent handwashing.

When entering Chinese ports, seafarers are expected to remain on board their ships and disembark their vessels only where absolutely  necessary and must wear masks.

They should also   avoid unprotected contact with live animals and  ensure all animal products are thoroughly cooked.

An outbreak of respiratory illness caused by NCoV  first identified in Wuhan, Hubei Province, China, has resulted in thousands of confirmed cases within  and outside  China.

Coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as Severe Acute Respiratory Syndrome.  NCoV is a new strain that has not been previously identified in humans.

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, and personal habits.

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.

 Infectious diseases are recognized as an occupational hazard in seafaring and are closely connected to the conditions of working and living onboard. These may either result from person-to-person transmission of infectious agents or through food, water or insects onboard ships or in ports, as well as from pre-existing conditions.

For a sick  seafarer to be entitled to medical benefits under the  POEA-Standard Employment Contract (SEC),   he must have suffered work-related illness which is defined as any sickness resulting to disability or death as a result of one of the  twenty-four (24) occupational diseases listed under Section 32-A of the said contract with the conditions set therein satisfied.

 The list include  infectious diseases that a seafarer may suffer during the effectivity of his contract which is defined as a disease resulting from the presence and activity of pathogenic microbial agents in the body.

These agents include pathogenic viruses, pathogenic bacteria, fungi, protozoa, multicellular parasites, and aberrant proteins known as prions.

Most infections relentlessly find entry points to human populations through diverse mechanisms.

Respiratory diseases are commonly acquired by contact with aerosolized droplets, spread by sneezing, coughing, talking, kissing or even singing like  bronchitis, Pulmonary Tuberculosis (PTB), pneumonia, and sinusitis.   

Gastrointestinal diseases are often acquired by ingesting contaminated food and water like  Norwalk Virus, Salmonella, and Leptospirosis.  

Others may be due to contact with animals/ insects/ bacteria like Malaria, Conjunctivitis (Bacterial and Viral), Tetanus, and anthrax.

There are  other infections resulting in complications necessitating repatriation that are not in the list, including the recent outbreak of  NCoV.

One of the requirements for an illness to be compensable is that the seafarer suffered said illness during the effectivity of the POEA contract.

Thus, it is imperative that his condition or symptoms  must be documented while he is on board the vessel, such as headaches, fever, coughs,  sore throat, chills, nausea, shivering and  skin rashes, among others.   

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.

***

Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices.  For comments, send  message through email info@sapalovelez.com, or call 09175025808 or 09088665786).