Seafarer's Cancer and the “disputable presumption” principle

The month of May has three significant dates for us: Mothers’ day, Mama's birthday and her death anniversary .

My mother, fondly called Mama Linda,  died  on May 17, 2002 due to pericarditis and lymphoma three days after she celebrated her 61st birthday on May 14. One year and a half later, Papa joined Mama.

Lymphoma is a cancer of the lymphatic system, which is part of the body's germ-fighting network.

The lymphatic system includes the lymph nodes (lymph glands), spleen, thymus gland and bone marrow. Lymphoma can affect all those areas as well as other organs throughout the body.

No ailment  has sustained as strong of a negative stigma as cancer.

The tension  and uncertainty of a cancer diagnosis  can create extreme disruption   to one’s   general sense of security and orderliness in life.

The effects on the  emotional, social, physical, and spiritual well-being of patients and their family members may include anger, resentment, guilt, adjustment pain, and may or may not lead to the acceptance of the disease.

Cancer may also  lead to an alteration in the  economic situation  of the sick person and his family.

Although seafarers go through a strict medical test before joining a vessel,  their  life  is constantly at risk while out at sea.

Seafarers are exposed to occupational and  environmental risk factors  as part of their normal everyday activities since they spend a large part of their lives at sea.

Seafarers who are afflicted with cancer, in some instances, end up pursuing   legal battle  due to the  issue of compensability.  

Companies usually deny liability for payment of disability or death benefits  on questions whether or not the illness is  work-connected under the Philippine Overseas Employment Administration Standard Employment Contract.

They argue that there are only three types of cancers under the contract listed as occupational diseases:

(1) cancer of the epithelial lining of the bladder (papilloma of the bladder)

(2) cancer, epithellematous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound products or residues of these substances

(3) acute myeloid leukemia and chronic lymphocytic leukemia

However, compensability is not limited to Section 32-A's listed occupational diseases. For as long as seafarers are able to show by substantial evidence that they suffered disabilities occasioned by a disease contracted on account of or aggravated by working conditions, compensation is availing.

This disputable presumption is made in the law to signify that the non inclusion in the list of compensable illnesses does not translate to an absolute exclusion from disability benefits, in view of  the provision in the POEA contract which states that “(t)hose illnesses not listed in Section 32 of this Contract are disputably presumed as work-related.” (Manansala vs.  Marlow Navigation Phils.  G.R. No. 208314, August 23, 2017).

For illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer. It is sufficient that there is reasonable linkage between the disease suffered and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had. (Sea Power Shipping  vs. Salazar G.R. No. 188595 August 28, 2013)

Marineinsight.com noted that that there has  been a gradual increase in various cases of cancers, the most common among them being lung cancer, renal cancer, leukaemia and lymphoma.

It noted that even though occupational hazardous such as asbestos, benzene, benzidines are being removed or substituted on ships, new potential carcinogens such as beryllium (used on product tankers), cadmium, and  lead  have been introduced in to the work place.

Personnel working on oil, chemical and product tankers fall prey to this deadly disease due to continuous exposure to such toxic substances. Other factors such as smoking, exposure to UV radiation, and lack of sleep also aggravate conditions leading to cancer.

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.

Exposure to transported substances such as benzene, petrol, styrene, paints, pigments, cutting oils and vinyl chloride during loading, unloading, and tank cleaning operations on tankers can be a possible cause of leukaemia, renal cancer, liver cancer, and bladder cancer.

The interplay  of dietary factors, age and working environment while at sea contribute to the development of colon cancer among seafarers. (Skippers vs Lagne G.R. No. 217036 Aug. 20, 2018)

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

Blacklisting and the truth on COVID19

Fear of blacklisting might be  causing the  unexplained under-reporting of the consequences of the COVID-19 pandemic on seafarers.

 “There is an unnecessary fear of telling the truth thereby potentially causing panic in what could be a long-haul”, says  David Hammond, CEO of the    UK-based charity organization Human Rights at Sea.

Seafarers have been at the front lines of maintaining the trade flowing during the pandemic.

Hammond noted that people are mostly  hearing the positive and often stoic narratives of those seafarers who are staying onboard, keeping calm and carrying on, maintaining global supply lines and remaining at sea for the global common good.

However, he lamented that  there is a problem  as to  “the real details of the alternative reality and of the uncomfortable stories reflecting the consequences of those not fortunate enough to have support of the big commercial companies who are pushing this stoic messaging. Without this, we have an incomplete and less-than-transparent picture of what is occurring.”

“It is now time to tell the whole truth, including the good, the bad and the ugly of the ramifications of COVID-19 on the silent heroes who will keep us supplied and alive in this unprecedented global crisis,” says Hammond.

Seafarers  are facing numerous challenges in performing their activities including longer duration of their employments on vessels amid bans on crew-changes and restriction of travel

Anxiety is growing among  seafarers caused by  non-payment or underpayment of wages, contracts being extended without consent while  other seafarers  are stranded in foreign ports without wages or flights home.

They  are also calling  for greater levels of Personal Protective Equipment (PPE) like facemasks and gloves  to be made more widely available, not just for themselves, but for those maritime workers who come onboard their vessels .

Hammond’s query is whether  or not there’s  a deliberate suppression of the facts and ground-truth, careless under-reporting, or just a convenient avoidance of the inconvenient truth  on seafarers and COVID-19 crisis.

Unfortunately, Hammond noted that  many seafarers are usually  reluctant to  air  formal complaints due to the so-called “blacklisting”, a practice used to prevent certain seafarers from being employed.

Blacklisting of seafarers can either be  “legal” and “illegal”.

The Philippine Overseas Employment Administration (POEA) comes up with a blacklist (also called watchlist) of seafarers as a form of legal sanction if  administrative complaints  are filed against  them.

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 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 assert their rights and complain about unjust treatment, safety standards, poor working conditions or unpaid wages, among others.

Manning agencies  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  documents as a retaliatory act against critical seafarers they consider as “troublemakers.”

Their names are put on the “blacklists” held by manning agencies, a  practice that  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.

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

The Maritime Labour Convention 2006 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.

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

Seafarers and the COVID-19 stigma

The outbreak of COVID-19  is causing a more problematic  side of society – social stigma and  discrimination against  certain sectors, including seafarers.

Public health emergencies such COVID19  are stressful times for people and communities.

Seafarers  are also on the frontline of the response to the pandemic and their protection is vital to ensure that significant services continue.

Shipping is the life blood of the global economy as ships transport almost 90 percent of the world’s trade  that  includes food, medicine, energy and raw materials, as well as manufactured goods and components.

Seafarers are not only responsible for the operations of such ships but are also in charge  for the safe and smooth delivery of the cargo.

With one Filipino  out of every four or five seafarers on board a ship (whether cargo or cruise ),  the largest population of crew members comes from the Philippines.

There are over 375 000 deployed  Filipino seafarers that contribute an estimated  $6.14 Billion as remittances in 2018.

However, port restrictions and cancelled flights are straining the ability for shipping firms to replace seafarers, further weakening global supply chains.  

Ports in some parts of the world have  refused to allow some ships to enter because they had previously docked in areas affected by COVID-19, preventing vessels from obtaining essential supplies.

“Seafarers are just as worthy as everyone else and should be treated with dignity and respect to ensure that they can continue to provide their vital services to the world,” the Special Tripartite Committee of the Maritime Labour Convention (MLC, 2006) said in a statement.

There are reports that some suppliers have been prevented from boarding ships to give masks, overalls and other personal protective equipment to crews.

ILO Director-General Guy Ryder, has asked governments “to ensure that, in these challenging times, seafarers are adequately protected from the COVID-19 pandemic, have access to medical care, and can travel to and from their ships, as necessary, in order to continue to play their crucial role”.

He added that seafarers should be treated as ‘key workers’ and be exempted from travel restrictions during the COVID-19 pandemic.  Restrictions will cripple not only seafarers but countries who rely on overseas supplies.

In case of cruise ships, thousands of passengers and crew members remained on board worldwide, with workers representing dozens of countries and nationalities, due to port and border  closures as well as flight restrictions.

There were 537 Filipino seafarers on board Diamond Princess that  was placed under two-weeks quarantine after it docked in Yokohama Bay  last February. At least 25 other cruise ships have been later  confirmed with COVID-19 cases.

Cruise ships are often settings for outbreaks of infectious diseases because of their closed environment, contact between travellers from many countries, and crew transfers between ships. Cruise ships bring diverse populations into proximity for many days, facilitating transmission of respiratory illness.  

Due to halted operations of cruise ships, thousands of seafarers were   displaced from work and begun arriving  via charter flights back to the Philippines.

They  boarded onto buses and were placed in a 14-day preventative quarantine in hotels by the Philippine Government. Thereafter, some have gone back to their families while some are staying in Manila due to the lockdown.

Sadly, some residents have recently rejected the idea of  converting  hotels into  quarantine facilities/ temporary shelters  for  repatriated Filipino seafarers who they  feared are  carriers of the deadly virus.

Fear and anxiety about a disease can lead to social stigma toward  these seafarers.  

Stigma and discrimination  occur because  people associate a disease, such as COVID-19, with the  specific sector  like the seafarers , even though not everyone in the group  is specifically at risk for the disease.

Due to  inadequate knowledge about  the nature of  COVID-19,  people felt  a need to blame or struggle to cope with fears about the disease and death.

Stigma stings  everyone by creating fear or anger towards other people.

Some of the manifestations of stigma are social avoidance or rejection, physical violence and  denials of healthcare, education, housing or employment.

Discrimination  causes further damage  by spawning  more apprehension  or anger — feelings confounded  towards people instead  of  toward the problem.

Filipinos should not give in  to fear or panic that lessen our humanity and respect to seafarers – they are also one of our frontliners in this COVID19 pandemic.

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).

COVID-19, extension and early termination of seafarer’s contract

Seafarers have a right to return home at the end of their contract at no cost to themselves.

Unfortunately, thousands of  seafarers, mostly from cruise liners,  with   expired employment contracts have been forced into continued labor aboard  ships due to the COVID-19 pandemic.  

Airline and port restrictions have made it  difficult for  seafarers to get home.  In some instances, repatriation is almost impossible because most international air traffic is grounded.

As a general rule, the period of employment shall be for a period mutually agreed upon by the  partied but not to exceed 12 months.

The  contract shall cease when the seafarer completes his period of contractual service aboard the ship, signs-off  and arrives at either airport or seaport of  the point of hire.

If a seafarer keeps working   longer than the agreed period,  any subsequent period is to be considered an extension of the contract.

An extension is not usually  encouraged due to factors such as fatigue, complacency, and other health reasons and the same may not be accepted if relief is already lined up.  

Any extension of the contract can be voluntary or compulsory.

Extension   is voluntary if it is with the mutual consent of both parties.  It is compulsory if he stays  until the ship’s arrival at a convenient port and/or after the arrival of the replacement crew provided that, in any case, the continuance of such service shall not exceed three months.

At present, there are many compulsory extensions because of   port and airport restrictions.

Extending the contract due to COVID19 should only be used with appropriate safeguards to protect seafarers.

In the absence of a new document or POEA contract, as long as the seafarer has not yet arrived at the point of hire, it is legally presumed that the original contract is still subsisting. 

The seafarer is entitled to be paid his wages and other benefits after the expiration of his contract and during the extended period.  The obligations and liabilities of  the employers do not end upon the expiration of the contracted period as they were duty bound to repatriate the seafarer to the point of hire to effectively terminate the contract of employment. (Inter-orient Maritime v. NLRC,330 Phil. 493).

The seafarer must not be forced to accept monetary benefits that are lower that those stated in the original contract. There are reports that some employers  are paying only basic wages during the extension period.

On the other hand, the seafarer’s employment  is terminated even before the contract expires as soon as he arrives at the point of hire and signs off for medical reasons, due to shipwreck, voluntary resignation or for other just causes.

Where the ship’s  voyage is discontinued necessitating  early  termination of 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 him to join another ship belonging to the same principal to complete his contract in which case he shall be entitled to basic wages until the date of joining the other ship. (SECTION 23, POEA contract)

If the ship arrives at a convenient port before the expiration of the contract, the employer may repatriate the seafarer from such port, provided the unserved portion of his contract is not more than one (1) month. He shall be entitled only to his earned wages and earned leave pay and to his basic wages corresponding to the unserved portion of the contract.

The seafarer, when discharged and repatriated shall be entitled to basic wages from date of signing off until arrival at the point of hire. He shall also be provided with accommodation and food, allowances and medical treatment, if necessary,  during the same period.

Seafarers must be cautious in signing documents of repatriation if it is part  employer’s plan   to cut operational losses  due to COVID 19 pandemic.  

If the employer instructs seafarers to sign letters of resignation or request for early repatriation, it might  be an attempt to evade its obligation under the contract. The seafarer shall be liable for his repatriation cost as well as the transportation cost of his replacement.

Referring to the issue of crew changes, the International Maritime Organizations (IMO) noted that  professional seafarers should be granted any necessary and appropriate exemptions from national travel or movement restrictions to allow them to join or leave ships, and that governments should permit them to disembark ships in port and transit through their territory (i.e. to an airport) to allow crews to be changed and seafarers to be repatriated.

 IMO Secretary-General Kitack Lim  said it was "crucially important that the flow of commerce by sea should not be unnecessarily disrupted."

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).