The “David and Goliath” legal battle for seafarers’ death benefits

The maritime profession   has always been identified as a   high risk workplace  that   remains replete with health and safety hazards  in relation to the  risks of accidents, illnesses and mortality.

 The seafarer is often mentally, physically  and emotionally stressed,    aside from being constantly exposed to a variable environment,  while working on board vessels  that cross ocean boundaries.

The European Maritime Safety Agency declared in a report  that there were 745 work-related fatalities among maritime workers and nearly 9,000 persons injured between 2011 and 2020,  among other tragic statistics of this sector.

A job of a seafarer is indeed not exactly a walk in the park.

 However, the right over death benefits  has also become a long legal battle for some families of deceased  Filipino seafarers.  

 Under the Philippine Overseas Employment Administration standard employment contract (POEA SEC), in the case of a seafarer’s  work-related death during the term of his contract, the employer shall pay his beneficiaries the Philippine currency equivalent to the amount of US$50,000 and an additional amount of US$7,000 to each child under the age of 21 but not exceeding four children.

 The amount usually is higher if the death is covered by a Collective Bargaining Agreement(CBA).

 Every labor dispute for  monetary claims is  a David and Goliath battle as  it  involves two opposing parties:  the seafarer  (or his heirs)  on one side and the employer  on the other

As the employer does not hesitate to harness its immense resources to limit its liability,  the claims process has become more litigious, allowing employers to question how the seafarers' fate and misfortunes are work-related

 For disability or death to be compensable before and under the 1996 POEA  contract, it was sufficient that the seafarer suffered injury or illness during the term of his employment.  The cause of illness or death is immaterial.

Deaths or injuries need only to occur during the seafarer's employment, which begins at the time of his  departure at the point of hire and ends on his return to the said point upon the end of the contract.

However, through the lobbying of the principals and their manning agencies, the restrictive clause “work-related” was added under Section 20 (B) of the 2000 POEA SEC to limit their liabilities.  

 The 2000 POEA SEC defined "work-related injury" as "injury resulting in disability or death arising out of and in the course of employment" and "work-related illness" as "any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of the contract”. 

 Being included in the list is not enough, since  the following conditions must still  be satisfied: (a) the  work must involve the risks described; (b) the disease was contracted as a result of his  exposure to the described risks; (c). the disease was contracted within a period of exposure and under such other factors necessary to contract it; and (d) there was no notorious negligence on the part of the seafarer.  These same conditions were reiterated in the 2010 POEA SEC.

 Two elements must concur for the death to be compensable. First, that the injury or illness (that caused the death) must be work-related; and second, that  the cause must have existed during the term of the  employment contract. The first requirement appeared in the 2000 and 2010 POEA SEC but is absent in the 1996 version.

The heirs are given the burden of proving that a death  is work related which turned to be very disadvantageous on their part in terms of presentation of proofs.

The perilous nature of their work, however,  must be considered in determining the proper benefits to be awarded which, at the very least, should approximate the risks they brave on board the vessel every single day (Seagull Maritime Corp. vs. Dee, 520 SCRA 109.) .

The Supreme Court stressed in Wallem Maritime Services, Inc. vs. NLRC, (318 SCRA 623)  that   the POEA  contract is designed primarily for the protection and benefit of Filipino seafarers in the pursuit of their employment on board ocean-going vessels.

Its beneficent provisions must  be construed and applied fairly, reasonably and liberally in favor or for the benefit of the seafarers for these to be fully carried into effect.

If  construed otherwise,  it  would not only transgress prevailing constitutional policy and deride the bearings of relevant case law but also result in a travesty of fairness and an indifference to social justice. (Canuel vs, Magsaysay Maritime, G.R. No. 190161 October 13, 2014)

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments,  send an e-mail to  info@sapalovelez.com or call 09175025808 or 09088665786

 

The plight of maritime cadets as utility boys.

The proliferation of cadets serving   as utility boys is an issue  that is widely known in the maritime industry but seldom addressed.

Although some maritime students   are accepted   as trainees, there are those  that  first  function as utility boys  or errand runners   for a company before they would be given their vessel assignment.

Aside from doing office errands, there are  cadets   that also do janitorial or messengerial services  while others  are even instructed to  do house chores as if they are “household helpers”. Some are given meager allowances while  others do the tasks  without decent compensation.

“How will the proposed Magna Carta on Filipino Seafarers help cadets not to be taken advantage of?”,   a question raised by Christian Esteban of Maritime Academy  of Asia and the Pacific (MAAP) Bataan during the recent  online public consultation  on the pending law  organized by the office of Senator Risa Hontiveros. He  is also one of the winners of the Ten Outstanding Maritime Students of the Philippines (TOMSP).

Esteban noted that some people romanticize the  issue as if it is a test of character and attitude to overcome such trials.

 “However, I think they forget to ask themselves, is it really justifiable for someone hired as a cadet, to be used in the office for such tasks? What is stopping the company in giving them their respective vessel assignment? Is the office really that short on manpower that they need their cadets to aid them in their daily lives?”, Esteban said.

The education of Filipino cadets  is a  combination  of  theoretical years  and shipboard training.

Cadets will initially study in their school  all the required theoretical knowledge for seamanship, navigation and engineering which will be followed by their shipboard training in a seagoing ship to study practical knowledge and skills for a minimum of 12 months.

They will then  return to their school for the conferment of their BS degree on Marine Engineering or Marine Transportation (BSME/BSMT).

 During the 2019 Maritime Education and Training conference organized by the  Maritime Industry Authority (MARINA) ,  the agency presented the results of the 2018 MARINA study that shows  the effectiveness of the 91 maritime schools nationwide

The report noted that that only about 18 percent  of  enrollees ( from freshman year) manages to complete the full academic three years. Out of this  18 percent,  however,  an average of  15 percent only  manages to obtain a BSMT/BSME degree.

Out of the yearly over 20,000 cadets from the maritime schools  eligible for shipboard training, it is estimated that only around 5,000 could be absorbed on board foreign and domestic ships.

This   shortage of opportunities resulted to the proliferation of  cadets  working as “utility boys” wherein many are under a great deal of pressure to finish their apprenticeship within the prescribed period. The adage “kapit sa patalim”   prompts them to agree to  such arrangement.

With  the  hope that they would one day be able to board a vessel, there are  utility boys  whose service to their  agency surpass the 12-month required apprenticeship period, some    without decent compensation.

 Dr. Roderick Galam of Oxford Brookes University discussed in an article  how manning agencies and utility boys/ men   differentially rationalize this exploitative work.   

Galam pointed out that manning agencies use it “as a technology of servitude that, through physical and verbal abuse and other techniques, enforces docility to prepare utility men for the harsher conditions on-board a ship”

 On the other hand, Galam noted that  utility  men   use it as “a technology of imagination, gleaning from it a capacity to shape their future.”

“Faced with few social possibilities in the Philippines, they deploy servitude as a strategy for attaining economic mobility and male adulthood,” Galam said.

Maritime blogger Barista Uno of Marine-Café.Com  described the proliferation  of “utility boys” as an   “ignominy” where the use of maritime cadets as unpaid labour by Philippine manning agencies must be seen as  a clear case of exploitation.

He calls it  “a form of modern-day slavery”.

Barista Uno pointed out that some try to dismiss the whole issue by saying it is the cadets’ choice to serve as utility boys.

He noted that there are industry players that try to rationalize the “serve-for-sail practice” by invoking the need to instill discipline in future ship officers  which he described as  “a cavalier attitude (that)  shows a lack of concern and empathy.”

 “This is yet another example of how seafarers have been commodified in the 21st century. Those who work at sea and cadets who aspire to become ship officers are like cans of Campbell’s Soup on a supermarket shelf,” Barista Uno said. “ The people who have power over them feel that they can use them however they like.”

 Let's stop turning a blind eye to the plight of the utility boys as what Barista Uno described as   “a form of modern-day slavery”.

 

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments, e-mail info@sapalovelez.com or call 09175025808 or 09088665786

Damages for unjustified withholding of the seafarers’ travel documents

Manning companies are liable for damages  due to  unjustified withholding of   seafarers’  travel documents preventing them  from seeking lucrative employment elsewhere.

 

The Supreme Court considered as  an act tantamount to bad faith the company’s   arbitrary imposition of  a condition that the  travel  documents would only be released upon signing of a quitclaim in the case of C.F. SHARP & CO. INC.  vs Agustin and Minimo (G.R No.179469, February 15, 2012).

The seafarers applied with the  company as sandblasters and painters in Libya.

After passing the interview, they were required  to submit their passports, seaman’s book, National Bureau of Investigation clearance, employment certificates, certificates of seminars attended, and results of medical examination.

Upon submission of the requirements, a Contract of Employment was executed between the seafarers  and C.F. Sharp.

Thereafter, seafarers were required to attend various seminars, open a bank account with the corresponding allotment slips, and attend a pre-departure orientation.

They were then advised to prepare for immediate deployment and to report to the company  to ascertain the schedule of their deployment.

However, the seafarers  were  not deployed after a month prompting them to request for the release of the documents they had submitted to the company which  allegedly refused to surrender the documents.

The seafarers filed a complaint for breach of contract and damages against the company where they claimed that the company  falsely assured them of deployment.

They added  that its refusal to release the travel documents on the ground that they were already bound by reason of the Contract of Employment denied them  of employment opportunities abroad and a guaranteed income.

The company was found guilty of violation of Article 34(k) of the Labor Code, which makes it unlawful for any entity "to withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations."

The Supreme Court  awarded moral damages  based on  Article 2219 of the Civil Code in relation to Article 21 which state  that “any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”

The Supreme Court  stressed that the company committed an actionable wrong when it unreasonably withheld the documents, thus preventing the seafarers  from seeking lucrative employment elsewhere.

The condition that the documents would only be released upon signing of a quitclaim is  tantamount to bad faith because it effectively deprived the seafarers  of resort to legal remedies.

The Supreme Court likewise affirmed the award of exemplary damages  for “a wrongful act that is accompanied by bad faith or when the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner”

Legally speaking, the unauthorized withholding of these travel documents is also a form of coercion that is penalized as one of the prohibited acts under Republic Act. No. 8042, as amended by R.A. 10022, otherwise known as “Migrant Workers and Overseas Filipinos Act of 1995.”

The State is mandated to protect seafarers from all threats and coercion done through the confiscation, retention, or withholding of their travel documents such passports and  Seafarers Identification and Record Book (SIRB), which are considered the property of the State.

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

 

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

 

Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos nor more than Two Million Pesos.

 

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

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments, e-mail info@sapalovelez.com or call 09175025808 or 09088665786

Declare seafarers as regular employees, not merely contractual

The  Makabayan Bloc in Congress, through  House Bill 6588,  is pushing for  job security for seafarers  through  regularization of their employment status.

The HB 6588 filed   on March 11, 2020  is one of the many other bills called the Magna Carta of Filipino Seafarers  proposed in the House and in the Senate  which aim to institute mechanisms to protect our country’s seafarers’ rights, provide them compulsory benefits, and enforce standards set by international laws.

The Magna Carta, which in essence simply enshrines MLC 2006 into Philippine law, states that seafarers have the right to safe and secure workplace that complies with safety standards; decent working and living conditions on board a ship; medical care, welfare measures and other forms of health and social protection,  among others.

But only HB 6588   raised  the issue of job security through the regularization  of seafarers  who have worked for at least one year (cumulative) with one company.

This is similar to the Labor Code provision ( Art. 279) on regularization of employees after working for one year.

The provision under HB 6588 that is absent in all other versions of the Magna Carta provides in Section 47. (c) that “ The termination of employment of a seafarer on board a foreign vessel or foreign registered ships shall be governed by the POEA-SEC or applicable CBA, provided that a seafarer who has worked for the same manning agent or for the same shipowner or both, for a cumulative period of one year shall enjoy the security of tenure of a regular employee as per Art 279 of the Labor Code of the Philippines as amended,  and the employer is obligated to rehire and give the right of first refusal to a regular employee who qualifies, and is willing to work, for the next available vacant position of similar or higher rank.  Once a seafarer has acquired the regular status, he can no longer be refused successive employment unless he resigns in writing, has abandoned his employment, or is dismissed for just cause as provided in Art 282 of the Labor Code of the Philippines as amended.”

The bill seeks to address the issue  of  seafarers   not  being entitled to the benefits given to a regular or permanent employee, such as 13th-month pay, reinstatement, separation or termination pay or in some instances, even retirement benefits, since they are considered merely as contractual employees.

This has been the consistent ruling of the Supreme Court since it issued its decision in the 2002 case of Millares v. NLRC (GR 110524 July 29, 2002) that became the landmark jurisprudence defining the nature of employment of Filipino seafarers and the applicable law as they  are considered contractual employees.

Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

The provisions of the POEA contract require the seafarer to arrive at the point of hire as it signifies the completion of the employment contract, and not merely its expiration. Similarly, a seafarer’s employment contract 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.

Constrained by the nature of their employment, which is quite peculiar and unique in itself, the Supreme Court noted in Ceriola v. NAESS Shipping (GR 193101 April 20, 2015) that it is for the mutual interest of both the seafarer and the employer why the employment status must be contractual only or for a certain period of time. The exigencies of their work necessitates that they be employed on a contractual basis.

The Philippines is considered as the major supplier of maritime labor globally as it is estimated that there is one Filipino seafarer for every four to five complements on board a vessel at any time.

 The estimated 519,031 deployed Filipino seafarers in 2019 per POEA data  remitted  $6.539 billion or around P326.95 billion. The sea-based sector’s remittance comprise at least 22 percent of the total dollar remittances of Overseas Filipino Workers (OFWs).

 

The country  recently celebrated the  25th National Seafarers Day (NSD) last   Sunday, September 27, 2020,  led by the  Apostleship of the Sea (AOS)  with the theme “Seafarers are keyworkers. You are not alone. You are not forgotten”.

 

Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan  law offices. For comments, e-mail info@sapalovelez.com or call 09175025808 or 09088665786.

The 25th National Seafarers Day in the time of pandemic

“Seafarers are keyworkers. You are not alone. You are not forgotten”.

Despite the COVID19 pandemic, most of the holy masses held  nationwide carried this theme in their homilies  as  part of the  25th National Seafarers Day (NSD) celebrated last  September 27, 2020 led by the  Apostleship of the Sea (AOS).

Wreathe and flower-throwing activities were also done for the deceased seafarers and fishers, as well as for those who have perished or missing at sea.  

The flowers carry the message of love and gratitude as there is no distance of time or oceans but a mutual waiting for a reunion in peace.

A work  of a seafarer is  not exactly a walk in the park.

The job  entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress aside from exposure to variant weather changes that may result in illnesses or  injury to  seafarers.

The shipping industry and seafaring profession are  not without incident or peril where some may go missing or die in   maritime disasters.

 

The European Maritime Safety Agency declared in a report  that, between 2011 and 2020, there were 745 work-related fatalities among maritime workers and nearly 9,000 persons injured, among other tragic statistics of this sector.

 

Former president Fidel V. Ramos earlier issued on July 9, 1996 Proclamation No. 828 declaring August 18 as  NSD wherein the AoS was tasked to coordinate with the public and private sector in activities related to the celebration of the said event. 

The purpose of the proclamation is to give due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later,  Proclamation No.1094 was issued in 1997 by President Ramos which moved NSD to every last Sunday of September every year.  

The Philippines is considered as the major supplier of maritime labor globally as it is estimated that there is one Filipino seafarer for every four to five complements on board a vessel at any time.

 

The estimated 519,031 deployed Filipino seafarers in 2019 per POEA data  remitted  $6.539 billion or around P326.95 billion. The sea-based sector’s remittance comprise at least 22 percent of the total dollar remittances of Overseas Filipino Workers (OFWs).

 

The recent activities  were  attended by some family  members  of the 36 missing Filipino seafarers of   the  Panama-flagged livestock carrier GULF LIVESTOCK 1 that   capsized in southwest Japan on September  2, 2020  during the typhoon Maysak.

The 2002-built 133.6-meter-long (438 foot) ship had  thirty nine (39) Filipinos, two New Zealanders and two Australians  and 5,800 cattle on board.

The vessel left  Napier, New Zealand on August 14, 2020  and was sailing to   Tangshan, China when it  experienced an engine issue in inclement weather and sent a distress signal before it went missing.

The Japanese Coast Guard has found three crew members, two are alive while one was declared dead-on-arrival at a hospital.

The AOS Philippines, through an open letter, made  an urgent appeal to the Philippine Government to extend any assistance and/or to act on behalf of the heartbroken families to request the neighboring countries in conducting search and rescue within their scope of waters and islands.

“We have not lost hope and we hold on to God, relying on His mighty power for miracles. Jesus said in the Bible, “Courage! Don’t be afraid. It’s me!” (Matthew 14:27). We continue to pray that others may have somehow survived this tragic incident. Our thoughts and heartfelt empathy go out to all the family members and friends who are anticipating good news at home”, the AoS said.

Pope Francis earlier aired his  concern on the challenges that are faced by maritime workers and their families in the midst of the pandemic adding  that “without the people of the sea, many parts of the world would starve.”

People depend on marine and coastal biodiversity for their sustenance as  the fishing industry employs, directly or indirectly, more than 200 million people.

The International Labor Organization (ILO) has urged governments to recognize seafarers as ‘key workers’ who ensure the flow of trade and the movement of vital medical supplies, safety equipment, food and other critical goods during the pandemic.

 

While delivering a key service to society, they face safety and health risks, and, increasingly physical and mental exhaustion.

 

“Hana ni ta magawid ayu nga mapmaphod tapnu muntitiggawan tuu”  is the Ifugao translation of “We hope you come home safe so we could see each other again”, a message  that Maya Addug-Sanchez wants her brother, Captain Dante Addug, along with the flowers,  to receive and respond to.

 

 

(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.)

Seafarers’ music in the time of pandemic

 Despite the pandemic, music  plays a special role on Filipino seafarers’ life, whether at sea or on land.

It is an understatement to say that karaoke is a central part of  pop culture of Filipinos, including seafarers whether on board or in between contracts.

Karaoke is the clipped compound of Japanese kara (empty) and okesutora (orchestra) that is an  interactive entertainment in which an amateur singer sings along with recorded music  (or a music video) using a microphone.

 

Karaoke is indeed a favorite past time of Filipino seafarers as one of the  coping mechanisms aboard international and domestic shipping vessels to address stress and boredom.

The sea can’t stop the seafarers in mastering the art of vocal mimicry from contagiously  belting out songs like the infamous “My Way.”

In between contracts, Pinoy seafarers as well as  maritime students  converging at  the Luneta Seafarers’ Welfare Foundation (LUSWELF)  along  Kalaw St.  show their singing prowess through a weekly show organized by volunteers.

The annual  Boses ng Marino Karaoke Challenge pays   homage to the oceans and seas to keep our Filipino seafarers safe in their voyage 

Due to the COVID 19 pandemic, the Boses ng Marino will be an online jamming session  this year instead of the traditional contest in LUSWELF.under  two categories, students and professional seafarers.

 There will be three sessions  for the online jamming, on September  21 ( Monday)  over  The  Baywatch Live of Asian Institute of Maritime Studies (AIMS) and on September 23 (Wednesday)  and September 25 (Friday) over   Bill Visaya News Channel.

The Philippines is considered as the major supplier of maritime labor globally as it is estimated that there is one Filipino seafarer for every four to five complements on board a vessel at any time.

The estimated 519,031  deployed Filipino seafarers in 2019 per POEA data  remitted  $6.539 billion or around P326.95 billion. The sea-based sector’s remittance comprise at least 22 percent of the total dollar remittances of Overseas Filipino Workers (OFWs). These remittances help spur domestic consumption in the Philippines and a key ingredient in the country’s drive to achieve higher but sustainable growth.

However, away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filipino seafarer is physically, mentally and emotionally stressed.

Constantly exposed to fluctuating temperatures caused by variant weather changes of extreme hot and cold as the ships cross ocean boundaries, the risks of his getting killed, injured or ill are high.

Former president Fidel V. Ramos issued on July 9, 1996 Proclamation No. 828 declaring Aug. 18 as National Seafarers’ Day aimed at giving due recognition to the vital role of Filipino seafarers towards the development of the Philippines as a maritime country. Later, Proclamation No. 1094 was issued in 1997 by President Ramos which moved NSD to every last Sunday of September every year.

The Apostleship of the Sea (AOS) Philippines was tasked to coordinate with the public and private sectors in activities related to the celebration of said event.

This year’s 25^th  NSD is set on Sept. 27, 2020 with the  theme “Seafarers are Keyworkers. You are not alone. You are not forgotten”.

The International Labor Organization ( ILO)  has urged governments to recognize seafarers as ‘key workers’ who ensure the flow of trade and the movement of vital medical supplies, safety equipment, food and other critical goods during the pandemic.

While delivering a key service to society, they face safety and health risks, and, increasingly  physical and mental exhaustion.

Travel restrictions have left hundreds of thousands of seafarers stranded at sea, unsure when they will be able to return home. Many are fatigued and weary because their time at sea has been extended for months beyond the maximum stipulated in international conventions.

The Sunday masses during the NSD all over the country are offered to the Filipino seafarers.

Due to  the pandemic, the other traditional  NSD activities nationwide led by AOS will not be held such as oratorical/art contest, search for  the Ten Outstanding Maritime Students of the Philippines (TOMSP) and  the grand parade participated in by stakeholders.

The memorials at sea, novenas, and masses will push through.

The NSD coincides with the National Maritime Week celebrated every last week of September spearheaded alternatively by the government agencies Maritime Industry Authority (Marina), Philippine Coast Guard (PCG), and Philippine Ports Authority (PPA).

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

The search for the missing seafarers of GULF LIVESTOCK 1

“Hana ni ta magawid ayu nga mapmaphod tapnu muntitiggawan tuu.”

It is the Ifugao translation of  “We hope you come home safe so we could see each other again”, a message  that my friend  Maya Addug-Sanchez  wants her brother, Captain Dante Addug, to receive and respond to.

I personally know the Addug siblings since I am a frequent visitor of Batad, Banaue in Ifugao where their family   manages a travellers’ inn.

Dante  is the captain of the  Panama-flagged livestock carrier GULF LIVESTOCK 1 that   capsized in southwest Japan on September  2, 2020  during the typhoon Maysak,  equivalent to a Category 4 hurricane with winds of at least 130 mph.

The 2002-built 133.6-meter-long (438 foot) ship had on board thirty nine (39) Filipinos, two New Zealanders and two Australians   as crew as well as  5,800 cattle.

The vessel left  Napier, New Zealand on August 14, 2020  and was sailing to  to Tangshan, China when it  experienced an engine issue and sent a distress signal before it went missing.

After eight days of  Search and Rescue (SAR) operations,   the Japanese coast guard  lowered down its massive operations to normal patrol schedules  on  September  10 after it found no trace of the ship since September  5.  Both aerial searches and four coastguard vessels could not locate the vessel, and all communication has been lost. It is believed that the vessel has sunk.

Two crew have been found alive so far, and another was found unconscious and pronounced dead on arrival at a Japanese hospital.

 One of the survivors narrated that the ship’s main engine failed before the vessel was struck by a big wave and capsized. He said the crew had put on their life jackets and they all jumped into the water.

Capt. Addug was scheduled  to be repatriated this  month as his contract was  due to expire, and he was excited  to meet his four-month old son for the first time once he is reunited with his family.

He is the youngest of a family of eight, two of them became seafarers, and he has five children.  He is also  youngest to become a captain from Ifugao.  

 It was 8:30 p.m of September 1 that Dante spoke for  the last time  to his partner, Marielle June Chunanon,  saying that Typhoon Maysak was battering the ship,  water was already flowing in, and that he will go to the bridge to check the situation.

The families of the missing   seafarers want the search and rescue operations to still continue.

They are calling upon the Japanese government to invite Australia and New Zealand  to share search and rescue resources.

Situations like the sinking of  GULF LIVESTOCK 1 normally  calls for the application of the “Good Samaritan vessel” doctrine.

For centuries, this maritime rescue doctrine encourages seafarers to go to the aid of life and property in distress.

Good Samaritan vessels are usually the first to arrive on scene, and are often critical in saving lives.

In most cases, a person reacts to save another person as result of compassion or instinct, or both.

Seafarers, on the other hand , also have a legislated obligation to render assistance.

This obligation comes from various legal sources, most notably international conventions from the United Nations (UN) and the International Maritime Organization (IMO).

The United Nations Convention on Law of the Sea (UNCLOS) says that every signatory to the convention must require the master of a ship flying its flag to render assistance to any person found at sea in danger of being lost and to proceed to the rescue of persons in distress.

The exemption is when the assisting vessel, the crew or the passengers on board would be seriously endangered as a result of rendering assistance to those in distress.

The Safety of Life at Sea Convention (SOLAS) says “the master of a ship at sea which is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so.”

The International Convention on Maritime Search and Rescue 1979 (SAR) also mandates this principle “regardless of the nationality or status of such a person or the circumstances in which that person is found.”

It also adds an obligation for all vessels' masters to offer assistance to those in distress and controls the use of lifesaving signals with specific requirements regarding danger and distress messages

The Salvage Convention of 1989, although primarily directed at addressing the salvage of property and the prevention of marine pollution, nonetheless repeats the SOLAS obligation on the master to render assistance to any person in danger of being lost at sea.

The duty to render assistance is a general reflection of customary international maritime law.

“Aji yu ahan isarding an anapon jija. Sibibyag ja pay” says Maya in Ifugao which means “Please don’t stop searching. They are still alive.”

 The hashtag #SavetheForty is keeping the hopes of the relatives that they will soon receive news that the 40 men are still  alive at sea and will be reunited with them. 

(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.)

Entitlement to disability benefits despite recovery

The seafarer’s recovery from his illness or injury will not negate his entitlement to total permanent disability benefits.

Total disability does not mean absolute helplessness since it is the not the injury which is compensated but rather it is the incapacity to work resulting in the impairment of one's earning capacity.

The Supreme Court reiterated  this principle in the case of Sealanes Marine Services, Inc  vs   Arnel dela Torre (G.R. No. 214132, February 18, 2015) as it stressed that  it is of no consequence that the seafarer  was cured after a couple of years  in connection with his disability compensation.

The seafarer was medically repatriated after he  suffered a lower back injury due to an accident during the crew’s rescue boat drill on August 1, 2010.

After undergoing  several physical therapy sessions, the company-designated physician finally  assessed the seafarer  on March 10, 2011 with a Grade 11 disability for slight rigidity or one-third loss of motion or lifting power of trunk.  He was informed of the assessment, however,  only in May 2011, or more than 240 days since the accident.

The Supreme Court affirmed earlier rulings by the NLRC and Court of Appeals that the seafarer is entitled  to total disability benefits   as he continued with his rehabilitation even after the company’s Grade 11 disability rating issued on March 10, 2011.

The  disability rating was intended merely to comply with the 240-day limit for the company-designated physician to either declare him fit to work or to assess the degree of his permanent disability.

The medical assessment of the company-designated physician is not the alpha and the omega of the seafarer's claim for permanent and total disability. 

The Supreme Court explained that the POEA Standard Employment Contract (POEA SEC) provides merely for the basic or minimal acceptable terms of  the contract.

 In the assessment of whether his injury is partial and permanent, the same must be so characterized not only under the Schedule of Disabilities in Section 32 of the POEA SEC, but also under the relevant provisions of the Labor Code and the AREC implementing Title II, Book IV of the Labor Code. 

In Kestrel Shipping Co., Inc. v. Munar (G.R. No. 198501, January 30, 2013), the Supreme Court  explained that: (a) the 120 days provided under Section 20(B)(3) of the POEA SEC is the period given to the employer to determine fitness to work and when the seafarer is deemed to be in a state of total and temporary disability; (b) the 120 days of total and temporary disability may be extended up to a maximum of 240 days should the seafarer require further medical treatment; and (c) a total and temporary disability becomes permanent when so declared by the company-designated physician within 120 or 240 days, as the case may be, or upon the expiration of the said periods without a declaration of either fitness to work or permanent disability and the seafarer is still unable to resume his regular seafaring duties.

The company tried to contest the award  by showing that seafarer  was able to work again as a chief mate in March 2001.

The Supreme Court disregarded the company’s argument as it reiterated its ruling In Crystal Shipping, Inc. v. Natividad ( G.R. No. 154798, October 20, 2005) that it is of no consequence that the seafarer recovered from his illness or injury.

The  information  does not alter the fact that as a result of his illness, the seafarer  was unable to work as a chief mate for almost three years.

The Court stressed  that  the law does not require that the illness should be incurable. 

What is important is that he was unable to perform his customary work for more than 120/240 days, and this constitutes total permanent disability.

Back pains or spine injuries or illnesses are inherent in a seafarer’s  job characterized by excessive and strenuous physical activities, such as lifting, carrying, pushing, pulling and moving heavy equipment and materials.

The common back injuries or illness include lumbar spondylosis, lumbar radiculopathy, multi-level disc dessication, posterior disc herniation, or canal stenosis.

Companies cannot deny the fact that a seafarer suffering from any of these medical conditions will be considered more of a liability than an asset if he is allowed to go on board the vessel.

He would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.

An award of a total and permanent disability benefit would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.

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).

Redeployment and fraudulent misrepresentation of a pre-existing illness

The redeployment of a seafarer cannot negate his entitlement to disability benefits on account of fraudulent misrepresentation of a pre-existing illness.

The   POEA employment contract  states that “a seafarer who knowingly conceals and does not disclose past medical condition, disability and history in the pre-employment medical examination {PEME) constitutes fraudulent misrepresentation and shall disqualify him from any compensation and benefits.”

The Supreme Court disregarded in the case of  Leoncio  v. MST Marine Services ( G.R. No. 230357, December 06, 2017)   the company’s  argument  that  the seafarer's employment is contractual in nature so that he is required to divulge, during each  PEME any pre-existing medical condition that he has ,including past medical history,  that can assist the company  in arriving at an accurate decision as to whether or not he is fit for employment. 

The seafarer  was first medically repatriated in 2001 due to Hypertension and Angina Pectoris.  He  was  later  declared "Fit for Sea Duty" after undergoing treatment by the company-designated physician. He was re-employed by the company.

He was again  repatriated  on 2014 due to an entirely different illness, i.e., Percutaneous Coronary Intervention (PCI) to severe distal Right Coronary Artery (RCA) with one drug-eluting stent.

The company discontinued the medication process and later denied liability   on the ground of his failure to declare during the PEME that he underwent a stenting procedure on  his LAD and LCX arteries in 2009.

The Supreme Court disregarded the employer’s argument  that  the seafarer’s employment is contractual as it stressed that  the knowledge acquired by  the manning agency regarding the medical condition of a seafarer is not automatically wiped out and obliterated upon the expiration of a contract and the execution of another.

Seafarers are considered contractual employees. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time.

Instead, the knowledge and information previously acquired by  the manning agency is imputed to its principals. The employer  cannot  deny knowledge of seafarers medical condition and so refuse to pay his benefits.

The company  was already aware of the existence of the seafarer's coronary artery disease (CAD/HCVD) since 2001 but nonetheless reemployed and redeployed him to work for several more years.

The Supreme Court likewise ruled that the non-disclosures of medical procedures will not  disqualify a seafarer from entitlement to disability benefits.

The word "illness" refers  to a disease or injury afflicting a person's body while "condition" refers to the state of one's health.

The Court added that neither of these words refers to a medical procedure undergone by a seafarer in connection with an "illness or condition" (his CAD/HCVD)  which was already known by his employers as far back as 2001.

The stenting procedure  is  the "placement of a small wire mesh tube called a stent to help prop the artery open and decrease its chance of narrowing again."

The Supreme Court said that  the procedure was intended to improve his health condition and  was nothing more than an attempt to discontinue the steady progression of his illness or condition.

The seafarer's failure to reveal the said procedure does not amount to a concealment of a pre-existing "illness or condition" that can bar his claim for disability benefit and compensation.

The Court also stressed  the seafarer  was a "walking time bomb ready to explode towards the end of his employment days” due to the compensable heart condition  caused by the unusual strain of the seafarer's work. 

In Manansala,  v. Marlow Navigation Phils., Inc.  (G.R. No. 208314, August 23, 2017), the Supreme Court noted that the contract does  not merely speak of incorrectness,  falsity,  of incompleteness or inexactness, or failure to disclose the truth.  Rather, to negate compensability, it requires fraudulent misrepresentation,  that he  deliberately concealed it for a malicious purpose.

To amount to fraudulent misrepresentation, falsity must be coupled with intent to deceive and to profit from that deception. Honest mistakes on  a pre-existing illness during the PEME will not deprive seafarers of their right over disability or death benefits.

(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.)