Filipinos seafarers and the “Good Samaritan at sea” doctrine

The recent story of   American sailor who was  rescued by Filipino seafarers may aptly be an application of the “Good Samaritan at Sea” doctrine  or the obligation to render assistance at sea.

 

The 63-year-old sailor Stuart Bee was missing at sea for nearly two days after his boat capsized on the Atlantic Ocean.

 

He was found by Filipino seafarers   on board the vessel “Angeles” last November 29   adrift in the middle of the Atlantic Ocean while clinging to his boat 86 miles from the shore of Port Canaveral, Florida.  

 

“The story of Stuart is no different from others who are pleading for help today; in this time of pandemic. You don’t need to sail out in the ocean to rescue and serve your purpose. There maybe too many Stuarts who happen to be your neighbor, a friend, or just like the Stuart we came to know, a stranger that needs help. Help in any way you can, whenever the opportunity to help is present,”  Filipino seafarer  Lacruiser  Relativo said  in  his facebook post.  

 

 

For centuries, the “Good Samaritan”   maritime rescue doctrine encourages seafarers to go to the aid of life and property in distress.

 

Life as a seafarer involves obligations that are unlike almost any other occupation as they  have long understood that a moral, if not legal, obligation is upon them to render assistance to persons in peril at sea. 

 

The biblical anecdote of the Good Samaritan pertains to the  traveler who, for no other reason than a desire to help a fellow human being, stopped on the road to Jericho to help a man who had been beaten and bloodied by robbers. 

 

The Samaritan bandaged the victim’s wounds, and took him to an inn to recover, which was a gratuitous act for which no reward was sought  and by his  actions the man was saved.

 

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

 

While seafarers will have the same compassion and instinct as other professionals, they have a legislated obligation to render assistance.

 

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

 

Whether vessels sailing under their flag operate in either a private or public capacity, the requirements incumbent upon the masters of the vessels are the same.

 

This obligation comes from various legal sources, most  from notably international conventions of  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.”

 

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.

 

States, both signatories and non-signatories to the conventions, are duty bound to ensure those in distress at sea are rendered assistance on a non-discriminatory basis.

 

However, there are some jurisdictions where the law has developed that those who undertake to render assistance must exercise reasonable care and acceptable seamanship in doing so, or else suffer liability for the aggravation or excess harm that they cause to the individuals or property.

 

They  are expected to exercise reasonable care to avoid negligent conduct that worsens the position of the victims and to avoid reckless and wanton conduct in performing the rescue.

 

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

Seafarer's Arthritis as a compensable work-related illness

Arthritis is considered as compensable work-related illness for seafarers  who performed tasks onboard  the vessel  that involved unduly heavy physical labor and joint strain .

 

The most common types  are osteoarthritis and rheumatoid arthritis.

A 1996 study by doctors from  St Thomas' Hospital in  London  published in  Occupational Medicine Journal  pointed out that seafarers, particularly engineers, are required regularly to lift weights in confined spaces, which may involve kneeling or twisting in a crouched position.

This is aggravated by  their vertical environment which involves  daily climbing a number of  stairs.

In doing so, they are vulnerable to repeated acute minor trauma to their knees.  

The typical symptoms of arthritis include painful and swollen joints, especially in the hands, feet, and knees;   fever, fatigue, red and  puffy hands, hard bumps (called rheumatoid nodules) just under the skin near the joints, loss of appetite and  functional disability.

In most cases, employers refuse to pay disability benefits on the premise that  the illness is not work related, or it is  a pre-existing condition as it  may have occurred overtime and  could not have developed during  the seafarer’s  stay on board the vessel.

In Teekay Shipping Phils. vs  Jarin ( G.R. No. 195598 June 25, 2014) , the Supreme Court granted total permanent disability benefits to the Chief Cook. who  suffered  rheumatoid arthritis.

Rheumatoid arthritis  as an autoimmune disorder occurs when the  immune system mistakenly attacks  the body's tissues. It affects the lining of  joints, causing a painful swelling that can eventually result in bone erosion and joint deformity.

The  Court took note that the risk of contracting rheumatoid arthritis was increased by the seafarer’s exposure to the working conditions in the vessel while performing his daily duties as Chief Cook.

He was often required to work for long periods of time, was constantly exposed to extreme temperatures and was made to carry heavy loads which caused so much stress to his joints and muscles.

In Oscar D. Gamboa vs. Maunlad Trans. Inc.  ( G.R. No. 232905, August 20, 2016), the Court considered osteoarthritis , or the degenerative changes of the spine, as a work-related illness due to the Bosun’s task  (on board   the cargo vessel that transported logs)    which  clearly involved unduly heavy physical labor and joint strain.

Osteoarthritis is associated with a breakdown of cartilage in joints and occurs when the cartilage (that cushions the ends of bones in the joints)  gradually deteriorates.

In  the recent case of Wilfredo Salas vs. Transmed Manila Corp.  (GR 247221 June 17, 2020), the Supreme Court  granted  the claim for total and permanent disability benefits to a seafarer who was diagnosed to have suffered gouty arthritis.

The Court took note of the medical opinion of the seafarer’s personal doctor that the   knee pain could be brought about by repeated stresses and strains to his knees while performing his tasks as a Second Officer. 

The personal doctor  explained  that joint stresses from  the seafarers’ prolonged and, at times, faulty work posture cannot be avoided and may have taken a toll on his  knees. 

He was found to be unfit to work as a seafarer considering that his  bilateral knee pain significantly decreased his activity tolerance and can no longer be returned to his pre-injury capacity.

The Court likewise noted that his  dietary intake while aboard the vessel could have contributed to the aggravation of his  illness.

 Such factors in aforesaid cases  proved the causal connection between the seafarers’  work and the increased risk of developing arthritis.

The Court emphasized that what the law requires is not direct proof but  only reasonable proof of the causal connection between the work and ailment.

The  disputable presumption principle under  Section 20(B)(4) of the POEA contract signify that the non-inclusion in the list of compensable diseases/illnesses in Section 32-A  does not translate to an absolute exclusion from disability benefits.

It operates in favor of the seafarer as the burden rests upon his employer to overcome the statutory presumption.

Hence, unless contrary evidence is presented by the seafarer’s employer, this disputable presumption stands.

Substantial evidence is considered by the courts in their decision, which consists of such relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. that the seafarer’s working conditions caused or at least increased the risk of contracting the disease.

 

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

Joint and solidary liability in seafarers’ abandonment cases

Although international law prescribes that the seafarer has the right to be repatriated back to their point of origin, there are those who suffer  abandonment by their employers.

 

Repatriation  comes from the Latin word repatriare, "return to one's own country," from the prefix re, "back," and patria, "native land."

 

Seafarers are considered contractual employees since their employment is fixed for a period of time  which shall not exceed 12 months. 

The commencement of POEA contract is from the time when the  seafarer actually departs from the Philippines, either airport or seaport, for employment.

 

 It shall cease when he  completes his period of contractual service aboard the ship, signs-off from the ship and arrives at the point of hire.

 

The POEA contract requires 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 like vessel sale  and change of principal.

 

However, in most cases of abandonment, a shipowner has become incapable of generating required funds to continue with daily marine operations.

It then  withdraws all responsibility by failing to meet its obligations regarding seafarers’ financial and social security (contractual wages), the provision of basic necessities of life (adequate food, accommodation, and medical care)  and  repatriation costs.

Combined with the dangers of the elements of the sea, the abandoned crew have to face the stressful and inhumane consequences of being stranded in a country where they do not speak the language, and the difficulties of financial constraints due to unpaid wages.

According to the International Maritime Organization (IMO),  there are  438 cases  of abandonment (5,767 seafarers)  that have been recorded since 2004 until   August 2020.  In 2020 alone, 31 cases (concerning 470 seafarers) have been recorded to date.

Filipino seafarers stranded onboard the Oceanstar 86 for almost six months in the waters off the coast of Fujian, China were reported after a video showed their dire living conditions and pleaded for their immediate rescue.    They were recently repatriated back to the country.

As long as the seafarers have not arrived at the point of hire, they are entitled to payment of monetary benefits under the contract.

The seafarer is entitled to be paid his wages and other benefits after the expiration of his contract and during the extended period until the vessel’s arrival at a convenient port.  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 seaman to the point of hire to effectively terminate the contract of employment. (Interorient Maritime Enterprises, Inc. v. NLRC,330 Phil. 493).

The  POEA rules  states  that the manning agency shall assume “joint and solidary liability”  with the employer, which is meant to assure aggrieved workers of immediate and sufficient payment of what is due them.

 

The Amended  Migrant Workers Act ( R.A. 10022) also states that the agency which deployed the employees shall be jointly and solidarily liable with the principal for the money claims awarded to the  employees.

 

The Supreme Court  explained in the case of Catan v. NLRC ( 160 SCRA 691, 695) the rationale  : “This must be so, because the obligations covenanted in the manning agreement entered into by and between the local agent and its foreign principal are not coterminus with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted.”

 

The 2014 amendments to the Maritime Labor Convention 2006 (MLC2006) require shipowners to have compulsory insurance to cover abandonment of seafarers for up to four months’ outstanding wages and entitlements.  It must also cover reasonable expenses from the moment of abandonment to the time of arrival back home such as repatriation, food, clothing, accommodation, drinking water, medical care  and essential fuel for survival on board.

 

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