Mayor (ship’s cook) and the seafarer’s healthy diet

“Taking responsibility for the health of all human souls on their ships also defines the shipowners’ sense of humanity and justice. No ship sails without a human crew.”

Thus  declared the Supreme Court in the case of Oscar Paringit vs. Global Gateway Crewing Services, Inc.  ( G.R. No. 217123, March 28, 2019) where it  pointed out that a crew properly nourished, adequately fit, and enjoying humane working conditions will redound to the benefit of the shipowners.

The proverbial saying 'you are what you eat' is the notion that the food one eats has a bearing on  one's state of mind and health.

Without safe, adequate, varied and nutritious meals prepared and served in hygienic conditions, seafarers would not be able to perform their duties effectively on board ship.

Seafarers are  on board vessels in  the high seas for a  substantial length of time and food supplies  are usually frozen, preserved, smoked, salted and canned meats as these items  are not easily perishable.

On the other hand,  fresh fruits and vegetables cannot last long in the high seas.

A seafarer  had no choice of what to eat on board except those provided on the vessels and these consisted mainly of high-fat, high-cholesterol, and low-fiber foods. (Leonis Navigation v. Villamater , G.R. No. 179169 March 3, 2010 ) 

The shipowners are mandated under  the Maritime Labour Convention 2006 (MLC2006)  to make sure that food and drinking water supplies shall be suitable in respect of quantity, nutritional value, quality and variety, having regard to the duration and nature of the voyage, the number of seafarers on board as well as their religious requirements and cultural practices as they pertain to food.

MLC2006  recognizes the  need  of ensuring that sufficient food and drinking water of appropriate quality are served on board by qualified and trained catering personnel.

The  ship’s cook, who is  more popularly called “Mayor” by his fellow crewmates, is the person  whose primary responsibility on board a ship is to prepare food for the crew of the ship.

His role extends beyond the preparation of food to include maintenance of the kitchen and ensuring the cleanliness and hygiene of food and drink preparation areas and the handling and storage of food and stores.

The  ships’ cook must be trained, qualified and found competent for the position  through the completion of the  duly approved  training course, which covers practical cookery, food and personal hygiene, food storage, stock control, and environmental protection and catering health and safety.

It is an anecdote among seafarers that  the cook is befriended by many so that they can ask extras for the day’s meal.

But the life of a cook, just like any other seafarer, is not always a walk in the park.

In Tamin vs. Magsaysay Maritime Corp.  (G.R. No. 220608, August 31, 2016), while on kitchen duty and chopping pork knuckles for lunch, the chopping knife accidentally slid down and cut the cook's left forefinger at about 1.5 inches, causing it to detach from the joint bone.

The Supreme Court ruled that the loss of his index finger does not preclude an award for total and permanent disability because, in labor laws, disability  need not render the seafarer absolutely helpless or feeble to be compensable.  It is enough that it incapacitates him to perform his customary work.

Since his entire left hand was permanently affected, he would not be able to resume his previous occupation and the probability that he would be hired by other maritime employers would be close to impossible.

In Teodoro vs. Teekay Shipping Phil.  (G.R. No. 244721 February 5, 2020),  the Supreme Court considered the  loss of vision of the cook’s  left eye  as attributable  to  the sudden extreme changes in temperature from the upper deck to the freezer during the hauling and storage process for the  food provisions.

The panel of  voluntary arbitrators  pointed out that the company's personnel were exposed to extreme temperatures without the proper protective clothing, thus, creating a more dangerous work environment that resulted to the seafarer’s  permanent blindness in the left eye and his incapacity to resume the same line of work.

The Supreme  Court noted that the Grade 7 disability rating assessment  by the company-designated physician  negates  any claim that the non-listed illness is not work-related.

In Torillos vs. Eastgate Maritime Corp. (G.R. No. 215904, January 10, 2019), the Supreme Court affirmed that the  illness, lumbar spondylosis,   was work connected though it may be degenerative.  

 The Court ruled that it  was aggravated by his work as chief cook whose duties involved heavy manual labor such as carrying the heavy provisions of the ship, preparation and serving of all meals for the entire crew of the vessel, cleaning of dining, kitchen and work areas and of utensils.

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

Illegal salary deductions due to dubious promissory notes

Overseas Filipino Workers (OFWs) must be vigilant against the execution of dubious promissory notes causing  excessive deductions  from their salaries.

The Taiwan Times recently  reported  that six (6) Filipino fishermen  accused Philippine and Taiwanese labor brokers of making excessive deductions from their salaries.

They pointed out that NT$8,000 (P13,500) had been deducted each month from their salaries for up to 14 months.

The fishermen said they were asked to sign promissory notes stating that they had acquired a loan, with the amount and person owed left blank.

They added  that they were also asked to sign an affidavit stating that the deduction was a placement fee and not a loan, and that they would have to pay the full amount if their contract were terminated.

The promissory notes can be voided since these were  executed without the consent of the fishermen as they alleged that they don’t have any knowledge as to the contents and/or existence of the documents purporting to be promissory notes.

The fishermen were made to sign the documents  post-haste, without fully understanding the contents  since these are  written in the Taiwanese language and not explained to them in Filipino. They were also not given a copy.

Although a loan can be taken out by a seafarer, such loan must be in accordance with law. 

Under the Amended Migrant Workers and Overseas Filipinos Act (AMWA) or R.A. No. 10022 and the POEA rules, it is illegal for any person to charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance.

The fishermen were made to sign Promissory Notes under the guise of  personal loans and  the amounts involved were not received by them making these  another form  of   placement fees.

Any placement fee deducted from the salary of a seafarer is illegal.  Under POEA rules, the manning agency shall charge from their principal/employer a manning fee to cover services rendered in the recruitment and deployment of seafarer.

Since the fishermen  did not actually receive the loan money from the alleged promissory notes and considering that they are paying the alleged loans as deductions from their salaries, it can be argued that they are paying amounts “greater than that actually received” by them as a loan or advance.

Fr. Joy Tajonera of Apostleship of the Seas (AoS) Taiwan said that this is  a manifestation of the systematic corruption of human traffickers  wherein  too many people are turning a blind eye to such  problem,  including the sending and receiving authorities (government), employers and the brokers in Taiwan.

He added that illegal deductions will not happen if  the brokers who make profit out of the hard earned money of the fishermen are eliminated.

Difficult times and immediate need for money  to finance certain expenses will lead OFWs  to people known as loan sharks.

Taking advantage of such situation, there are employers or agencies that impose a compulsory and exclusive arrangement whereby an OFW  is required to avail of a loan from a specifically designated institution, entity, or person.

Such act is considered as one of the prohibited acts under the AMWA  in relation to the recruitment and employment of OFWs wherein the company or person can be held criminally or administratively liable.

Other prohibited acts that involve loans include (a) 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; (b) withholding of seafarer’s salaries or remittances, SSS contributions and loan amortization or short-changing /reduction thereof without justifiable reasons; (c) granting a loan to a seafarer with interest exceeding eight percent (8%) per annum which will be used for payment of legal and allowable fees and making the seafarer issue, either personally or through a guarantor or accommodation party, post-dated checks in relation to the said loan; and (d) refusing to condone or renegotiate a loan incurred by the seafarer after the latter’s employment contract has been prematurely terminated through no fault of his/her own.

The AMWA and POEA’s revised rules were  passed in accordance with the government’s 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.

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

Extreme weather changes and the seafarer's health

Seafarers have to brave storms, typhoons and high waves during the vessel's journey  which could have dramatic impact on quality of their  life at sea.

The job  entails laborious manual tasks conducted in a moving ship  along with  the sudden change of climate and temperature  as the vessel  crossed territories.  

The Supreme Court recognized that prolonged and continued exposure to the changes in temperatures could probably expose the seafarers of the risk of suffering from illnesses or accidents.  

The seafarer is entitled to compensation for certain diseases  through the aggravation principle wherein his work conditions caused or, at least, increased the risk of contracting the disease.

The Court noted that 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 proceedings.

In Atienza v. OROPHIL Shipping  Intl. (G.R. No. 191049, August 07, 2017), the seafarer, an Able Seaman, was diagnosed to be suffering from right cavernous sinus inflammation or Tolosa Hunt Syndrome (THS).  The Court considered said illness as compensable since he was called to keep watch at sea during navigation, and to observe and record weather and sea conditions, among others.

In the performance of his duties, the seafarer was constantly exposed to cold, heat, and other elements of nature.

While  the exact cause of THS is unknown, the Supreme Court opined that seafarer's illness was most probably aggravated due to the peculiar nature of his work that required him to be on-call twenty-four (24) hours a day to observe and keep track of weather conditions and keep watch at sea during navigation.

These activities necessarily entail the use of eye muscles that can cause an eye strain as in fact, he experienced headache, nausea, and double vision that worsened when he looked at his right side.

Considering further his constant exposure to different temperature and unpredictable weather conditions that accompanied his work on board an ocean-going vessel, the likelihood to suffer a viral infection - a possible risk factor - is not far from impossible.

In Grace Marine Shipping Corp.  vs. Alarcon (G.R.  No. 201536, September 09, 2015), the Supreme Court attributed the seafarer’s psoriasis to the stress and climate changes that permeate his working environment.

 The Court also noted that the seafarer used strong detergent, fabric conditioner, special soap and chemicals in performing his duties as a steward.

Despite the declaration in the medical reports that psoriasis is not contagious, the Court emphasized that no profit-minded employer will hire the seafarer  considering the repulsive physical manifestation of the disease, its chronic nature, lack of long-term cure and the vulnerability of the patient to cardiovascular diseases and some cancers.

Its inevitable impact on the seafarer's chances of being hired and capacity to continue working as a seafarer cannot be ignored entitling him to permanent total disability benefits.

In  Fil-Pride Shipping Company, Inc., et al. v. Balasta, (728 Phil. 297), the  Supreme Court reiterated its ruling in several cases that cardiovascular disease, coronary artery disease, as well as other heart ailments were held to be compensable  since the work of a seafarer  is both physically and mentally stressful.

 The Court pointed out that the seafarer   was constantly exposed to harsh weather condition as well as to varying temperatures of extreme hot and cold as the ship crossed ocean boundaries.  

In the performance of his duties as Able Seaman, he inhaled, was exposed to, and came into direct contact with various injurious and harmful chemicals, dust, fumes/ emissions, and other irritant agents.

The Court said that  these tasks could very well cause the illness that the seafarer, then already 47 years old, suffered from six months into his employment contract with company.

In Teodoro vs. Teekay Shipping Phil.  (G.R. No. 244721 February 5, 2020),  the Supreme Court considered the  loss of vision of the cook’s  left eye  as attributable  to  the sudden extreme changes in temperature from the upper deck to the freezer during the hauling and storage process for the  food provisions.

The panel of  voluntary arbitrators  pointed out that the company's personnel were exposed to extreme temperatures without the proper protective clothing, thus, creating a more dangerous work environment that resulted to the seafarer’s  permanent blindness in the left eye and his incapacity to resume the same line of work.

Being exposed to adverse climate  conditions and other forces of nature at sea can be challenging but it is in these types of situations  that Filipino mariners continue to thrive.

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

Waivers and Quitclaims in the Covid19 pandemic

Waivers and quitclaims are  ineffective in barring recovery of the full measure of a seafarer’s rights, including the underpayment of monetary benefits during their extended work on board the vessel.

This was the pronouncement  by Atty. Bernard Olalia, administrator of Philippine Overseas Employment Administration (POEA) during the recent  webinar organized by the Philippine Overseas Labor Office (POLO) in Washington, D.C. in celebration of Migrant’s Day.

Olalia answered a query by a seafarer on the issue of waivers signed on board  stating that they will not be paid during the extension the whole  monetary package as indicated in their original POEA contract.

As a general rule, the period of employment shall be for a period mutually agreed upon by the parties 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.

But airline and port restrictions have made it difficult for seafarers to get home.

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

The POEA issued a memorandum  stating that consummated  contract of seafarers  who are prevented by circumstances of the COVID-19 pandemic to disembark or to be repatriated can be extended for a maximum of sixty (60) days.

Their  employment  is governed by the contracts they sign at the time of  engagement,  which  have the force of law between the parties as long as the stipulations therein are not contrary to law, morals, public order, or public policy,.

Deemed written in the seafarer’s contract is a set of standard provisions implemented by the POEA, called the Standard Terms and Conditions, which are considered to be the minimum requirements acceptable to the government for the employment of Filipino seafarers on board foreign ocean-going vessels

The POEA contract  is crafted for the sole purpose of ensuring that the seafarers are not put at a disadvantage in their desire of seeking greater economic benefit abroad.

Olalia underscored that the provisions of the POEA contract must be strictly enforced and not disregarded “without justifiable reason” even during the current pandemic.

There are reports that some employers are paying only basic wages, while some none at all,  during the extension period.

The seafarer must not be forced to accept monetary benefits that are lower than those stated in the original contract.

The Supreme Court ruled that the obligations and liabilities of the local agency and its foreign principal 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 (Interorient Maritime v. NLRC, 330 Phil. 493).

“A subsequently executed side agreement which reduced one’s salary below the amount approved by the POEA is void because it is against existing laws, morals and public policy. It cannot supersede the contract approved by the POEA. This  is a scheme all too frequently resorted to by unscrupulous employers against helpless OFWs who are compelled to agree to satisfy their basic economic needs. Such practice is known as contract substitution for which the recruitment agency may be held accountable”. (Chavez v. Bonto-Perez, 312 Phil. 88)

The Migrant Workers and Overseas Filipinos Act (R.A. 10022) explicitly prohibits the substitution or alteration to the prejudice of the worker, of employment contracts from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE.

Olalia  echoed the several rulings of the Supreme Court that a deed of release or quitclaim can not bar an employee from demanding what is legally due him.

As a rule, quitclaims, waivers or releases intended  to limit the employer’s  liability for full compensation provided under the law and contract are looked upon with disfavor by the courts.

“The reason for this is that the employee does not really stand on an equal footing with his employer. In some cases he may be so penurious that he is willing to bargain even rights secured to him by law. He had no means of questioning his employer’s acts. He had no choice but to accept what was being offered to him.” (JGB and associates vs Arrojado,  G.R. No. 109390 March 7, 1996)

The Supreme Court aptly used in the Arrojado case the phrase “necessitous men are not free men”  with respect to actions of employers in  capitalizing on the vulnerable position of seafarers in entering into such  agreement and take advantage of the situation to their  prejudice.

The International Transport Workers Federation (ITF) earlier said that the pandemic cannot be used by the employers  as an excuse to renege on their obligation to the seafarers as keyworkers.

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

Repatriation rights of seafarers

Let the seafarers go home!

Seafarers may  exercise the right to stop working and leave ships in order to  return home  is the recent strong message of the International Transport Workers’ Federation (ITF) in relation to the seafarers’ repatriation issues  affected by the COVID19 pandemic.

“You have done your job, performed your duties, and accepted that you were unable to return home in the beginning in order to contain the spread of Covid-19 – but no more. Enough is enough.  No more contract extensions.””, the ITF said in a statement.  “You have selflessly extended and extended your contracts to do your part to keep critical supplies flowing around the world during this pandemic.”

The ITF  will now assist hundreds of thousands of seafarers in enforcing their repatriation rights as a move caused by the  insufficient action by governments to designate seafarers as ‘key workers’, exempt them from Covid-19 travel restrictions and facilitate repatriation of seafarers who have been caught up in the crew change crisis.

The ITF fully expect port state authorities in all countries where ships dock to honour their legal obligations under the Maritime Labour Convention 2006 (MLC2006)  to get the seafarers safely home.

According to the MLC 2006, seafarers have the right to be repatriated at no cost to themselves in the following circumstances (a) if the seafarer’s employment agreement expires while he is abroad; (b) when the employment agreement is terminated by the shipowner; or by the seafarer for justified reasons; and (c) when he is no longer able to carry out his  duties under his  employment agreement, or cannot be expected to carry them out in the circumstances.

Unfortunately, thousands of  seafarers  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 are grounded.

As a general rule, the period of employment shall be for a period mutually agreed upon by the parties 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.

The ITF  called the  ships  ‘floating prisons’ during the unwanted extensions where many remain stuck on board, unable to go ashore, seek medical attention or return home.

The ITF  have repeatedly  reminded the government  on the consequences of tired, fatigued, depressed crew – to trade and  to the environment.

The ITF noted that there are even seafarers killing themselves “at the prospect of this misery continuing without end.”

 A 28 year old Filipina seafarer of the  cruise ship M/V Harmony of the Seas docked in Barbados took her own life last June 9, 2020  while awaiting repatriation to the Philippines.

Pandemic anxiety can be overwhelming which if not handled properly may become emotional, physical and economic catastrophes.

Fear of the unknown and uncertainty of their future is compounded by  the repeated COVID-19 outbreaks on ships, the anxiety of contracting the virus and the company’s inability to provide  them  adequate protection and reliable information .

They also had to deal with financial issues, like the alteration or non-payment of their contractual monetary benefits, especially those with expired employment contracts who have been forced into continued labor aboard ships.

The ITF stressed that COVID-19 cannot be used as an excuse to lower the wage and working conditions of seafarers.

The Supreme Court ruled that the obligations and liabilities of the  employer do not end upon the expiration of the contracted period as they were duty bound to repatriate the seaman to the point of hire to effectively terminate the contract of employment (Interorient Maritime. v. NLRC, 330 Phil. 493).

International Maritime Organization Organization (IMO)  Secretary-General Kitack Lim earlier called on governments to  designate seafarers  regardless of their nationality, as 'key workers' providing an essential service. “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.”

Around 100,000  ships carry almost 95% of the world trade,  transporting cargoes of basic commodities and s are operated by close to 1.5 Million seafarers,  378,000 of which are Filipinos. 

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)

The story of a seafarer COVID19 survivor

Anxiety due to lack of proper information on the coronavirus disease 2019 (COVID19)  might be fatal for someone infected with the pandemic virus.

“I am a Covid-19 survivor and may God protect us all”.  

This was the pronouncement made by Filipino seafarer  Lourence Tan de Leon who was among the 149 recorded COVID19 cases of infected crew on board the cruise Costa Atlantica.

Costa Atlantica is one of the over 40 cruise ships that  had confirmed positive COVID19 cases.  

Costa Atlantica  was docked  in Nagasaki from February  20, 2020  where it was under repair.  A positive case was  first reported aboard  on April 20, 2020.  They have all been quarantined since then.

Costa Atlantica had 623 crew members of 36 different nationalities and no passengers at the time the first positive case was first reported. It has  a capacity for 2,114 passengers.

“During the first 3 days that I've been isolated, no words from the doctor or any medical person whom at least tried explaining to me what to do. The silence at my cabin made me feel that I am alone. When I watched any film it made me cry for no reason at all. Those were the days I felt frustrated and I don't even know how to tell this to my family,” De Leon said.

He noted that it is true that the virus can kill any weak person and will release symptoms in one’s body. The worse is once your lungs are infected, one  has to be intubated which is really not comfortable and easy.

Fortunately, his condition  is considered as a  mild case only.

“Mild symptoms”  have been compared to the flu or a cold ― fever, fatigue, dry cough, aches, chills, sore throat, runny nose and diarrhea.

De Leon  realized  that in cases   Covid19 per se  will not kill a person , it might still be fatal because of   the anxiety due to lack of proper knowledge  of the virus compounded by over-exaggerated reports.

He started to read every information from the internet  that could help, including videos from Dr. Willie Ong.   He added that  the most powerful medicine is prayer.

The ship left Nagasaki port on May 31, 2020  with the latest affected  cases count at 149.

De leon arrived in the Philippines last June 5 and is now under the mandatory 14 day quarantine.

Heightened risk and rapid spread of the disease is inevitable with the nature of cruise  ship, particularly due to its  crowded semi-enclosed areas.

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.

In an online signature campaign at Change.Org. led by the Migrante International,  they are calling for the full protection of the rights and welfare of all stranded and repatriated Filipino seafarers during the COVID19 pandemic.

One of their demands is that timely psycho-social counselling and intervention should be given to stressed and distressed seafarers onboard and upon arrival due to any trauma and anxiety caused by the lockdown and the pandemic.

Pandemic anxiety can be overwhelming which if not handled properly may become emotional, physical and economic catastrophes.

Fear of the unknown and uncertainty of their future is compounded by  the repeated COVID-19 outbreaks on ships, the anxiety of contracting the virus and the company’s inability to provide  them  adequate protection and reliable information.

They also had to deal with financial issues, like the alteration or non-payment of their contractual monetary benefits, especially those with expired employment contracts who have been forced into continued labor aboard ships.

The group  urged the Immediate and prompt payment by the manning agencies and shipowners of the earned wages, hazard pay, unpaid allotments, termination pay, leave pay and medical benefits of seafarers.

The group likewise called for the immediate release of the promised one-time US$200 or P10,000 cash assistance from the DOLE-AKAP program to all seafarers who are in need. The release should be fast, and without any red tape and unrealistic requirements that cannot be produced due to the lockdown.

Frustrations grew as seafarers tried exasperatedly to avail themselves of the cash assistance  due to the stringent requirements imposed  which, many of them found redundant, tedious and impractical.

They added that there should be effective government intervention and information campaign to prevent all acts of discrimination against OFWs, both landbased and seabased.

Fear and anxiety about the disease can lead to social stigma toward these seafarers. Some of the manifestations of stigma are social avoidance or rejection, physical violence and denials of health care, housing or employment. 

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)