Thursday, May 26, 2016

Sources of Seafarers’ Rights


Know Your Rights!

Seafarers’ rights is a complex area since your rights can exist at different levels and they can be overlapping and sometimes conflicting.

Therefore if you have a legal problem, you will need to seek advice from your union and from a lawyer who will discuss your specific situation.

This information is general advice only.

Sources of Seafarers’ Rights:
  • Flag State law
    A ship has the nationality of the flag that it flies.  Also, under international law, the laws of a flag State apply to a ship regardless of the location of the ship.  Therefore you - as a seafarer - are entitled to the protection of, and are governed by, the laws of the flag State wherever the ship is and regardless of your nationality.  For example, if you are a Filipino seafarer on a Panama flag ship, you have rights (and obligations) under the laws of Panama.  So, always be aware of what flag your ship is flying and where necessary, ask for assistance to find out what are the laws of that flag State.
  • Port State law
    When your ship enters a port, that port State can exercise certain powers over the ship whilst it is in port.  Generally a port State does not intervene in the internal affairs of a ship unless there is a dispute which concerns the peace and good order of the port (for example if a crime is committed on board a ship).  However in many jurisdictions around the world, if you have a legal claim, for example for unpaid wages, you will be able to start a legal action in the courts of the port State.   Again where necessary, ask for assistance to find out what are the laws of the port State.
  • Your home State
    You will be able to rely on rights contained in your home State law if that law governs your contract of employment.  Otherwise, if you are in trouble when abroad, your home country should provide support and assistance through its consular offices. Therefore ask for assistance through consular officers.
  • Your contract of employment
    Your individual contract of employment will set out what your rights are as between you and your employer.  Your contract may be (1) a private contract and/or (2) a collective bargaining agreement produced by a trade union or an employers’ association and/or (3) a form of contract in which the government has taken an active role (such as the POEA Contract:  Standard Terms and Conditions governing the employment of Filipino Seafarers onboard Ocean Going Ships).  Your contract may be directly with the shipowner, or it may be with a manning agent, or it may be with some other agent for the shipowner.  All these different arrangements can affect your rights.  However above all it is important that you have a copy of your contract of employment, that you read it and that you know what rights are contained in it.
  • International laws
    International laws are laws made at the highest level between States.  Since it was founded in 1919, the International Labour Organisation (ILO) has set international labour standards for all workers, and specifically has set standards for seafarers in more than 65 Conventions and Recommendations.  These instruments, taken together, constitute a comprehensive set of standards and concern practically all aspects of living and working conditions of seafarers.  In February 2006, these existing conventions and recommendations were updated and consolidated in the Maritime Labour Convention, 2006, a single, coherent international maritime labour standard for seafarers that entered into force on 20 August 2013.
Human rights instruments also exist at international and regional level which may be relevant to the rights of seafarers.

Also at the international level, Conventions of the International Maritime Organisation (IMO) impose obligations on States, a number of which have the effect of creating benefits for seafarers.

Friday, April 29, 2016

Blame-shifting in Seafarer’s labor cases

Pinoy Seafarers’ Rights
Atty. Dennis R. Gorecho



“Aanhin pa ang damo kung patay na ang kabayo.”  Never mind if the seafarer dies before he receives compensation. A popular Filipino saying that applies directly to the possible  legal effect of ANGKLA’s  bill (House Bill No.  5430) that seeks to delay the execution of  the favorable judgment from the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB).

 In most cases for disability compensation, some incur huge debts to sustain their medication while others die before the decision by the Supreme Court is released. And yet ANGKLA insists that the aim of the bill is “to balance the interest” of  the seafarer and the employer as  “there is little hope of recovering anything through restitution.” In reality,  employers  have the legal remedies to recover the amount, but one cannot reclaim the life of the deceased seafarer.

Worse, ANGKLA has employed the art of deception in sanitizing the real picture  that the seafarers are victims of the employers’ abuses  when it authored the  Republic Act 10706 , or the  Seafarers’ Protection Act. Call it the game of “blameshifting”, ANGKLA has diverted  attention on labor cases   by discrediting the lawyers who ANGKLA   accused of having considerable interest in the seafarer’s  monetary benefits.

Lest we   forget, seafarers are forced to go to court because the employers  violated their legal rights first. Every  labor dispute is a David and Goliath battle as  it  involves two opposing parties:  the worker on one side and the management on the other, for  monetary claims for  disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages

In illegal dismissal cases,  the POEA contract requires compliance with  two basic requirements for a lawful dismissal: a just or authorized case as prescribed by law (substantive requirement), and observance of due process. Many are sent home due to unfounded accusations and without the proper notices given.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is 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, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high.

As if working under these difficult conditions are not enough, when he sustains injury, illness or lose his life, seldom does he receive full compensation provided under the law due to company’s  legal maneuverings by  using  the POEA  contract  that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.

In many instances, he signs Receipt and Quitclaim documents thereby  releasing his employers from all claims, demands and causes of action without even understanding their contents. Oftentimes, he is misled into accepting an ex-gratia, miniscule amount, in the guise that his condition is either not work-connected, or for any other reason for which he does not comprehend. Compensation claims are either denied or downgraded   due to the biased medical opinion of the company designated  physician.

More often than not, he knows that he is being cheated of his rights, but how can he question his employer in these instances, without the assistance of competent lawyer of his own choosing?

Instead of addressing the above issues by giving seafarers more access in compensation benefits, R.A. No. 10706 will   restricts  his option of an avenue to avail of legal services of competent lawyers, which he can voluntarily enter into, are therefore,  antagonistic to his interests, rendering him defenseless against the abuses of his employers.  They will, in effect, obstruct the effective and efficient administration of justice.

Seafarers should not be deceived by the misleading projection of the  law which employed the “scare tactic” to discourage seafarers from engaging the legal services of lawyers by depicting the latter as vultures. By charging even eleven percent (11%) of the amount recoverable, or one percent higher than the ten percent (10%) limit,  is not “abusive” per legal practice standard. Yet, ANGKLA used as “papogi” points its deceptive concern towards the seafarers. In the end, the legislative act intends to protect business interest from the cases filed by seafarers deprived of their rights under contract and the law rather than give more access to the seafarers for rightful compensation.

When a seafarer is forced to go to engage the services of a lawyer, employers   do not hesitate to harness its immense resources to  escape from  or limit its liability. However, when he wins, the employer, in order give a semblance of sympathy, will use the Seafarer’s Protection Act to say “I care for you. Your lawyer should get only ten percent.”  Ironically,  ANGKLA’s escrow bill  is anti-seafarer since it is a  dilatory tactic wherein he  will not immediately get what is rightfully due to him. Never mind if the seafarer dies before the decision, as long as the employer’s interest is also protected by ANGKLA’s  escrow bill.

Without any leverage in prosecuting his monetary claims, chances are, he bows to the demand of his employer to either drop his claim or accept a small settlement.  If he has enough pride and heart, and there are only a few who fall in this category, his only recourse is the exercise of his right, guaranteed by the due process clause of our Constitution, to engage the legal services of attorneys of his choice.  With good, experienced, professional lawyers, he will be able to prosecute his monetary claim in a level playing field.

It is election time again. Be critical of the real colors. 

             

Atty. Dennis R. Gorecho  is a graduate of UP College of Law (1998)  and  is currently a junior partner of Sapalo Velez Bundang Bulilan (SVBB) law offices  who heads the seafarers’ division. He is a  speaker on  nationwide paralegal seminars on  seafarers rights.  He is presently the executive vice president of the Maritime Law Association of the Philippines (MARLAW),  and an active  member of the Maritime Forum Inc. , the National Seafarers Day (NSD) committee and International Pro Bono Network. The SVBB law works hand in hand with various seafarers welfare  organizations such as the Apostleship of the Seas (AOS) Philippines, Luneta Seafarers Welfare Foundation (LUSWELF) and United Filipino Seafarers (UFS) . He is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program Bantay OCW Usapang Marino aired over Radio Inquirer/ DZIQ every Wednesday 10:30am to 12noon. For comments, please send  email  at info@sapalovelez.com or call  09175025808/ 09088665786. 

Tuesday, April 19, 2016

The imbalanced legal battle on seafarers claims



“Aanhin pa ang damo kung patay na ang kabayo.”  Never mind if the seafarer dies before he receives compensation. Through legislative fiat, ANGKLA partylist is  throwing off-balance  the already imbalanced legal battle on seafarers claims. 

ANGKLA  has consistently  used  the phrase “ balancing  the interest of the seafarer and the company”  when it filed the   proposed  bill (House Bill No.  5430)  that aimed to delay the execution of the monetary judgment award  issued by the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB)   in favor of a  seafarer. It  is the twin bill of the new law, the so-called “Seafarers’ Protection Act”.

Every labor dispute is a David and Goliath battle as  it  involves two opposing parties:  the worker on one side and the management on the other, for  monetary claims for  disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 


 By placing   the proceeds  in escrow until such time the finality of the decision issued by the appropriate appellate court (Supreme Court or Court of Appeals), in the end, the “balance of scale” will tilt more to capital as this  will protect the business interest of the manning agencies and their principal rather than the seafarers themselves.
  

In order to discourage seafarers in pursuing legal actions against the companies when it authored the new law , the Seafarers’ Protection Act,  , ANGKLA deliberately and  sweepingly   depicted   seafarers’ lawyers as “unscrupulous” in an attempt to deflect the real issues why cases are being filed.  They blamed the lawyers , most of them  they described as “ambulance chasers” , who  go to lengths to push seafarers to file labor cases against their foreign employers, claiming for benefits even beyond the claims they are actually entitled to.

In essence, ANGKLA echoed  the employer’s phrase “ benefits even beyond the claims they are actually entitled ”  to sanitize the problematic  legal battle for seafarer’s compensation.


Valid claims,  employers  argue, necessarily must  follow what the POEA contract dictates: a contract  that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is 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, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high.

Under  the 1996 POEA Standard Employment Contract (SEC),  for disability or death to be compensable,  it was sufficient that the seafarer suffered injury or illness during the term of his employment.  The cause of illness or death is immaterial.

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(ies) 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  all of the following conditions must be satisfied: (a) the seafarer’s   work must involve the risks described; (b) the disease was contracted as a result of the seafarer's 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 definitions were reiterated in the 2010 POEA SEC.


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


Through such restrictive provisions of the POEA SEC, claims for disability compensation  became a legal battleground, especially in instances   when seafarers do not  receive full compensation that are legally entitled to have. Such emergence of cases is attributable to the fact that  the seafarer’s  employer does not hesitate to harness its immense resources to limit its liability.


In denying, if not limiting,  the seafarer’s claims, the employer usually raise the misleading argument that the POEA mandated that disability can only be assessed by the company-designated physician based on the disability grading system considering that the latter had the time and the opportunity to constantly monitor the health and physical condition of the seafarer. However, the Supreme Court stressed that their  medical assessment “is not the alpha and the omega of the seafarer's claim for permanent and total disability.” (Elburg Shipmanagement Phils. vs. Quiogue, Jr,  G.R.No.211882 July 29, 2015). The problem can be partly attributed to the Supreme Court's observation on the  proliferation of obviously biased company doctor whose “findings cannot be taken as gospel truth” and  “are palpably self-serving  and certainly could not be considered independent” as their  "loyalty rests completely upon the company they serve" (UPL/HAL  vs  . Beseril, 487 SCRA 249).  Thus, the POEA contract does not preclude the seafarer from getting a second opinion as to his condition for purposes of claiming disability benefits.

In reality, the grading system assessment under the POEA Contract is not  reflective of the benefits that should be given to the seafarer. There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1).  Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), loss of speech due to injury to the vocal cord (Grade 9),   total loss of a leg or amputation at or above the knee (Grade 3),    paralysis of one upper extremity (Grade3) , or  loss of one foot at ankle joint or above (Grade 6),   loss of   ten  fingers of both hands (Grade 3)  or amputation between wrist and elbow joint (Grade 5), or total blindness of one  eye and fifty percent (50%) loss of vision of the other eye will never be employed due to visual impairments. (Grade 5).  Fit-To Work certifications are given even to seafarers who are still not cured or in essence can no longer be employed such as those who suffered from heart attacks, aneurism or stroke.
From the business point of view, it will be risky for the employers  to let the seafarer be re-employed since the harsh working environment might only aggravate his fragile condition and in the end expose the company to more serious insurance liabilities.
Thus, Supreme Court's consistently  ruled  that  "it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do.  (Valenzona vs. Fair Shipping Corporation, 659 SCRA 642)  

The word “unscrupulous” should likewise be applied to the employers and their people who  harness  their  immense resources to limit  their  liability. In many instances, the seafarer signs Receipt and Quitclaim documents thereby releasing his employers from all claims, demands and causes of action without even understanding their contents. Oftentimes, he is misled into accepting an ex-gratia, miniscule amount, in the guise that his condition is either not work-connected, or for any other reason for which he does not comprehend.

Unless their definition of “valid claims” is changed, through the deletion of the “work-related” clause, and  through the reversion to the  old  1996 POEA Contract , the denials of seafarers’ claims will continue. The compensation scheme should be less restrictive and more realistic, Otherwise, their only recourse is to seek legal assistance from lawyers of their own choosing. Conversely speaking, give the seafarers what they should  receive, and employers will not be hounded by legal cases.  

In essence, such reversion to the 1996 POEA Contract was partially done in the implementation of the Compulsory Insurance Coverage under the Migrant Workers and Overseas Filipinos Act of 1995” or Republic Act 8042 as amended by Republic Acts 9422 and 10022. The seafarer or his beneficiaries  will automatically be given, among others,  the benefits (US$15,000.00 if accidental death, US$10,000.00 if natural death, US$7,500.00 if total permanent disability) with or without fault on the part of the seafarer, as long as the basis of such  claim occurred during the effectivity of the POEA Contract.

And expectedly, ANGKLA will not  pursue the total deletion of the “work related clause” since this will run counter to the business interest of the employers.

In fact, ANGKLA filed  House Bill  No. 5430 aimed to amend the labor code that will have significant impact on labor claims governing the immediately “final and executory” nature of decisions issued by NLRC/NCMB.   The seafarer   will wait for longer years before they receive the award by the NLRC/NCMB,  ANGKLA proposes that the proceeds of execution shall be deposited in an escrow account to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment.



Labor litigation takes years before it reaches the supreme court. In most cases, the elevation of the records alone from the NLRC/NCMB to the Court of Appeals or Supreme Court will take several years. The proceedings in the appellate court will entail further delay. ANGKLA justifies the Escrow bill to ensure that the seafarer will still receive the award in the future in the event that the manning agency close down. However, ANGKLA disregarded the fact that  in cases of seafarers with medical conditions, some incur huge debts to sustain their medication while others die before the decision by the Supreme Court is released forcing the seafarers into accepting an ex-gratia, miniscule amount  Companies have the legal remedies to recover the amount, but one cannot reclaim the life of the deceased claimant.


It is election time again. Be critical of the real colors. 

Tuesday, April 5, 2016

Labor/ Seafarers' claims to be delayed by ANGKLA bill placing NLRC/NCMB awards in Escrow



An anti-labor/seafarer bill might be refiled by ANGKLA Partylist during the next Congress if it will be reelected in office, a bill that  is clearly a mere dilatory tactic to stop the labor/  seafarers   from getting what is rightfully due them.

With  House Bill  No. 5430, the worker, or seafarer in this case,  will wait for longer years before they receive the award by the National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB), mostly  for cases involving monetary claims involving disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 

Through HB 5430, ANGKLA  aimed to amend the labor code that will have significant impact on labor claims governing the immediately “final and executory” nature of decisions issued by NLRC/NCMB.  

ANGKLA proposes that to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment, the proceeds of execution shall be deposited in an escrow account with an escrow agent designated by the NLRC  or the NCMB. The proceeds shall remain in escrow until such time the finality of the decision issued by the appropriate appellate court is obtained.. The proceeds shall only be released after issuance of an entry of judgment by the appropriate appellate court and upon issuance by the NLRC or the NCMB, after motion of the proper party, of an order authorizing the release of proceeds of execution. The order authorizing the release of the amount deposited in escrow shall be deemed final.

ANGKLA pointed out that the amendment is proper as the problem of the immediately “final and executory” nature of decisions gains greater relevance considering the following factors: (a) the complainant will insist on the execution of the NLRC or NCMB decision despite the appeal; (b) even if the appellate courts overturn or modify the NLRC or NCMB decision, there is little hope of recovering anything through restitution; (c) more legal costs and expenses will be incurred in pursuing the case through the appellate courts and in applying for restitution of the judgment award. 

Every labor dispute involves two opposing parties:  the worker on one side and the management on the other.  And this bill, definitely, is not in favor of labor, proposed by a partylist that projects itself as a protector of seafarers' interest, and labor as a whole. It is obviously a bill that seeks to protect more the respondent companies rather than the seafarers' themselves. 

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is 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, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high. As if working under these difficult conditions are not enough, when he sustains injury, illness or lose his life, seldom does he receive full compensation provided under the law because his employer does not hesitate to harness its immense resources to limit its liability. 

 In most instances, workers run after benefits that are denied to them. Labor litigation takes years before it reaches the supreme court. In most cases, the elevation of the records alone from the NLRC/NCMB to the Court of Appeals or Supreme Court will take several years. The proceedings in the appellate court will entail further delay.  In cases of seafarers with medical conditions, some incur huge debts to sustain their medication. Others die before the decision by the Supreme Court is released. 

The scenario envisioned by ANGKLA will be analogous to situations described by the the Supreme Court where "the judgment becomes illusory.."Corona International, Inc. v. Court of Appeals,343 SCRA 512)  In one instance, the Supreme Court lamented that   the claimant "has grown old with the case. He fears he may no longer be in this world when the case is finally decided." (Borja vs.  Court of Appeals, 196 SCRA 847)  The prevailing party might  be unable to enjoy  the judgment award  after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay. (Intramuros Tennis Club, Inc. v. Philippine Tourism Authority,341 SCRA 90; Yasuda v. Court of Appeals, 330 SCRA 385)

The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance or postponement of a scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC could easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by  the labor code (Pioneer Texturizing Corp. v.  NLRC, 280 SCRA 806, 816.)

In cases of execution pending appeal, the Supreme Court underscored that " the law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man. . . . These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability" ( Aris (Phil.) Inc. vs. NLRC, 200 SCRA 246) 

In essence, ANGKLA has consistently echoed the arguments posed by the manning agencies that "labor cases pose a threat to international employment of  Filipino seafarers". Such issue was already touched upon by the Supreme Court in the case of Vir-Jen Shipping vs. NLRC  (210 Phil  482), in the following manner:  

"This is not the first time and it will not be the last where the threat of unemployment and loss of jobs would be used to argue against the interests of labor; where efforts by workingmen to better their terms of employment would be characterized as prejudicing the interests of labor as a whole. xxxx The same arguments have greeted every major advance in the rights of the workingman. And they have invariably been proved unfounded and false. Xxx Unionism, employers' liability acts, minimum wages, workmen's compensation, social security and collective bargaining to name a few were all initially opposed by employers and even well meaning leaders of government and society as "killing the hen or goose which lays the golden eggs." The claims of workingmen were described as outrageously injurious not only to the employer but more so to the employees themselves before these claims or demands were established by law and jurisprudence as "rights" and before these were proved beneficial to management, labor, and the nation as a whole beyond reasonable doubt. xxx  If any minor advantages given to Filipino seamen may somehow cut into the profits of local manning agencies and foreign shipowners, that is not sufficient reason why the NSB or the NLRC should not stand by the former instead of listening to unsubstantiated fears that they would be killing the hen which lays the golden eggs."

In the proposed bill that aims to delay in execution, it  becomes a tool of oppression and inequity to the prejudice of labor, and the seafarer to be specific. Due to the longer years that they have to wait, without any leverage in prosecuting his monetary claims, chances are, the employee/ seafarer bows to the demand of his employer to either drop his claim or accept a small settlement. 

In the end, such legislative act runs in contradiction to the constitutional provision  that says "The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare." (Art. II, Sec. 18, Constitution, 1987.). 


Saturday, March 19, 2016

Seafarer’s death after medical repatriation


 



Will the heirs of a deceased seafarer be denied of death benefits if he  dies  after his medical repatriation? The Supreme Court ruled that benefits should be given to the heirs  in the case of Racelis vs. United Philippine  Lines (GR No. 198408 November 12, 2014)

 
In the course of his last employment contract on board the vessel MS Prinsendam,  Rodolfo Racelis  experienced severe pain in his ears and high blood pressure causing him to collapse while in the performance of his duties. He was  medically  repatriated on February 20, 2008 and was later  diagnosed to be suffering from  Brainstem (pontine) Cavernous Malformation. He underwent surgery twice for the said ailment but developed complications 12 and died on March 2, 2008.
 
Respondents assert that Rodolfo's death on March 2, 2008 had occurred beyond the term of his employment, considering his prior medical repatriation on February 20, 2008 which had the effect of contract termination. , which had supposedly supervened during the term of his employment
 
The Supreme Court ruled that while it is true that a medical repatriation has the effect of terminating the seafarer's contract of employment, it is, however, enough that the work-related illness, which eventually becomes the proximate cause of death, occurred while the contract was effective for recovery to be had.
 
Consistent with the State's avowed policy to afford full protection to labor as enshrined in Article XIII of the 1987 Philippine Constitution,  the POEA-Standard Employment Contract (SEC)  was designed primarily for the protection and benefit of Filipino seafarers in the pursuit of their employment on board ocean-going vessels. As such, it is a standing principle that its provisions are to be construed and applied fairly, reasonably, and liberally in their favor.
 
Guided by this principle, the Court  recognized that a medical repatriation case constitutes an exception to the second requirement under Section 20 (A) (1) of the 2000 POEA-SEC, i.e., that the seafarer's death had occurred during the term of his employment, in view of the terminative consequences of a medical repatriation under Section 18 (B) of the same. In essence, the Court held that under such circumstance, the work-related death need not precisely occur during the term of his employment as it is enough that the seafarer's work-related injury or illness which eventually causes his death had occurred during the term of his employment

The same principle was used by the Supreme Court in the case of LEGAL HEIRS OF THE LATE EDWIN B. DEAUNA vs. FIL-STAR MARITIME CORPORATION ( G.R. No. 191563 June 20, 2012 ) when it ruled that that at the time of the seafarer' s death on April 13, 2006 due to Glioblastoma  , he was still in the employment of the company. While it is true that  the contract considers a seafarer as terminated when he signs off from the vessel due to sickness, a seafarer remains under the company's employ as long as the former is still entitled to medical assistance and sick pay, and provided that the death which eventually occurs is directly attributable to the sickness which caused the seafarer's employment to be terminated.
 
Employing the spirit of liberality, the Court finds that it would be highly inequitable and even repugnant to the State's policy on labor to deny heir's claim for death benefits for the mere technicality triggered by seafarer's prior medical repatriation. Taking all things into account, the Court reckons that it is by this method of construction that undue prejudice to the laborer and his heirs may be obviated and the State policy on labor protection be championed. For if the laborer's death was brought about (whether fully or partially) by the work he had harbored for his master's profit, then it is but proper that his demise be compensated.

Under an POEA approved employment contract, the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment.The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA)
  
 For comments, please send  email  at info@sapalovelez.com or call  09175025808.

Liberal interpretation of the POEA Standard Employment Contract

Part and parcel of every employment contract entered into by a seafarer is the Standard Employment  Contract (SEC) duly approved by the Philippine Overseas Employment Administration (POEA). It 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. (Philippine Transmarine Carriers, Inc. Vs. Cristino, G.R. No. 188638. December 9, 2015)
At the outset, it bears stressing that the employment of seafarers  is governed by the contracts they sign at the time of their engagement. As long as the stipulations therein are not contrary to law, morals, public order, or public policy, they have the force of law between the parties.
Nonetheless, employment contracts of seafarers on board foreign ocean-going vessels are not ordinary contracts. They are regulated and an imprimatur by the State is necessary. While the seafarer and his employer are governed by their mutual agreement, the POEA Rules and Regulations require that the POEA-SEC be integrated in every seafarer’s contract. (Inter-Orient Maritime, Inc. vs. Candava,  700 SCRA 174) 
The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and to "promote and protect the well-being of Filipino workers overseas."  The POEA SEC itself provides that "all rights and obligations of the parties to the Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory."
The latest  Amended Contract Governing the Overseas Employment of Filipino Seafarers On-board Ocean-Going Vessels was implemented by virtue of POEA Governing Board Resolution No. 9, Series of 2010 and is divided in two parts: the standard One-Page Contract and the standard Terms and Conditions. 
In every labor dispute, courts are called upon to be vigilant in their time-honored duty to protect labor, especially in cases of disability, ailment or death. When applied to a Filipino seafarer, the perilous nature of their work is considered in determining the proper benefits to be awarded. These benefits, 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 that “in carrying out and interpreting the Labor Code's provisions and its implementing regulations, the employee's welfare should be the primordial and paramount consideration (Reyes vs. Court of Appeals, 267 SCRA 409), This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided in Article 4 of the Labor Code which states that "all doubts in the implementation and interpretation of the provisions of [the Labor Code including its implementing rules and regulations, shall be resolved in favor of labor," and Article 1702 of the Civil Code which provides that "in case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer ". (Asia World Recruitment, Inc. vs. NLRC,  313 SCRA 1)
The Supreme Court likewise expounded this principle by saying that " we are dealing here not with an ordinary transaction but with a labor contract which deserves special treatment and a liberal interpretation in favor of the worker xxx the Constitution mandates the protection of labor and the sympathetic concern of the State for the working class conformably to the social justice policy xxx Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privileges in life should have more privileges in law xxx". (PNCC vs. NLRC, 217 SCRA 455),
            The Supreme Court underscored in Wallem Maritime Services, Inc. vs. NLRC,( 318 SCRA 623) the liberal interpretation of the provisions of a labor contract  when it said “It is relevant to state that the POEA standard employment contract is designed primarily for the protection and benefit of Filipino seafarers in the pursuit of their employment on board ocean-going vessels. Its provisions must, therefore, be construed and applied fairly, reasonably and liberally in favor or for the benefit of the seafarers and their dependents. Only then can its beneficent provisions be fully carried into effect”
 
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Findings of Personal doctor versus company-designated physician


In most seafarer cases for disability or death benefits claims, one of the arguments often raised by the companies  or the insurance correspondents    is that they are not liable to pay  benefits by pointing to the medical reports of the company-designated physician that the seafarer’s illness is not work-connected, that he is fit to work or that the compensation is limited to a lower amount based on a low disability grading.  They point out that   the POEA mandated that  the seafarer’s disability can only be assessed by the company-designated physician considering that the latter had the time and the opportunity to constantly monitor the health and physical condition of the seafarer.
 
This issue was discussed by the Supreme Court in the recent 2015  case of Philippine Transmarine Carriers, Inc. and Northern Marine Management Vs. Joselito A. Cristino (G.R. No. 188638. December 9, 2015) wherein the Court said that the medical opinion of the seafarer’s personal specialist doctor deserves greater evidentiary weight as the company offered no other convincing proof to substantiate their arguments. The company doctor and the seafarer’s personal doctor differed on their opinion on the work-relatedness of the seafarer’s illness, melanocytes or malignant  melanoma. The Court said that the seafarer’s own oncologist was actively involved in his treatment and even performed surgical procedure on him as opposed to the more basic medical management provided by the company’s designated physician which were initially limited to the giving of oral medication and wound dressing.
 
             
In various decisions, the  Supreme Court clearly pointed out that the findings and the disability grading of a company-designated physician could be set aside by the Court in its determination of disability compensation (Philippine Transmarine Carriers, Inc. vs. NLRC, 353 SCRA 47).   The Court noted that “their findings cannot be taken as gospel truth” due to the proliferation of obviously biased company doctors whose loyalty rests completely upon the company they serve and these “are palpably self-serving and biased in favor of petitioners and certainly could not be considered independent” (Wallem vs.NLRC 318 SCRA 623,  United Philippine Lines, Inc. and/or Holland America Line, Inc., vs. Francisco D. Beseril, 487 SCRA 249). The Court also considered the glaring apparent inconsistency in the company doctor's medical report between the classification of claimant's disability and the fact stated that said claimant had been unable to work for long period of time, which condition makes his disability permanent and total (Crystal Shipping, Inc. vs. Natividad, 473 SCRA 559.)
 
            In Seagull Maritime Corp. vs. Jaycee Dee et al (520 SCRA 109)  the  highest tribunal explained that “courts are called upon to be vigilant in their time-honored duty to protect labor, especially in cases of disability or ailment. When applied to Filipino seamen, the perilous nature of their work is considered in determining the proper benefits to be awarded. These benefits, at the very least, should approximate the risks they brave on board the vessel every single day.     Accordingly, if serious doubt exists on the company-designated physician's declaration of the nature of a seafarer's injury and its corresponding impediment grade, resort to prognosis of other competent medical professionals should be made. In doing so, a seaman should be given the opportunity to assert his claim after proving the nature of his injury. These evidences will in turn be used to determine the benefits rightfully accruing to him.  Nowhere in that case (German Marine Agencies, Inc. did we hold that the company-designated physician's assessment of the nature and extent of a seaman's disability is final and conclusive on the employer company and the seafarer-claimant. While it is the company-designated physician who must declare that the seaman suffered a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion.”
 
In  HFS Philippines vs. Pilar (585 SCRA 315),  the findings of the independent physicians were given more credence than those of the company-designated physicians, the Supreme Court held that “the bottomline is this: the certification of the company-designated physician would defeat respondent's claim while the opinion of the independent physicians would uphold such claim. In such a situation, we adopt the findings favorable to respondent. The law looks tenderly on the laborer. Where the evidence may be reasonably interpreted in two divergent ways, one prejudicial and the other favorable to him, the balance must be tilted in his favor consistent with the principle of social justice.”
 
The POEA contract does not preclude the seafarer from getting a second opinion as to his condition for purposes of claiming disability benefits. The Supreme Court reiterated   in the case of  Maersk Filipinas Crewing Inc. vs. Mesina (697 SCRA 601)  that "[w]hile it is the company-designated physician who must declare that the seaman suffers a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion," hence, the Contract "recognizes the prerogative of the seafarer to request a second opinion and, for this purpose, to consult a physician of his choice” (NYK-Fil Ship Management vs. Talavera, 571 SCRA 183; Abante vs. KJGS Fleet Management Manila, et al, 607 SCRA 734). The Court stressed that the company physician's assessment does not evince irrefutable and conclusive weight in assessing the compensability of an illness as the seafarer has the right to seek a second opinion from his preferred physician. (Maunlad Transport, Inc. vs. Manigo Jr., G.R. No. 161416, June 13, 2008, citing Crystal Shipping, Inc. vs. Natividad, Philippine Transmarine Carriers, Inc. vs.NLRC, 525 SCRA 42, Cadornigara vs. NLRC, 538 SCRA 363.)
 
            In the case of Magsaysay vs. Laurel (694 SCRA 225) the disability provisions of the POEA-SEC recognize the right of a seafarer to seek a second medical opinion and the prerogative to consult a physician of his choice. Therefore, the provision should not be construed that it is only the company-designated physician who could assess the condition and declare the disability of seafarers. The provision does not serve as a limitation but rather a guarantee of protection to overseas workers.
            This principle is in line with the Supreme Court rulings that strict rules of evidence are not applicable in claims for compensation considering the probability and not the ultimate degree of certainty is the ultimate test of proof in compensation proceedings (Barcenas vs. WCC 158 SCRA 314; NFD International Manning Agents, Inc. vs. NLRC, 269 SCRA 486; Heirs of the late R/O Reynaldo Aniban vs. NLRC, 282 SCRA 377).  


 Atty. Dennis R. Gorecho (UPLaw 1998)  is a junior partner of Sapalo Velez Bundang Bulilan (SVBB) law offices  who heads the seafarers’ division. He is a  speaker on  nationwide paralegal seminars on  seafarers rights.  He is presently the executive vice president of the Maritime Law Association of the Philippines (MARLAW),  and an active  member of the Maritime Forum Inc. , the National Seafarers Day (NSD) committee and International Pro Bono Network. The SVBB law works hand in hand with various seafarers welfare  organizations such as the Apostleship of the Seas (AOS) Philippines  and the Luneta Seafarers' Welfare Foundation (LUSWELF) and United Filipino Seafarers (UFS). . He is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program Bantay OCW Usapang Marino aired over Radio Inquirer every Wednesday 10:30am to 12noon. For comments, please send  email  at info@sapalovelez.com or call  09175025808