seaman or seafarer ?

Seafaring is a tradition which encompasses a variety of professions and ranks. Each of these roles carries unique responsibilities which are integral to the successful operation of a seafaring vessel. A ship's crew can generally be divided into four main categories: the deck department, the engineering department, the steward's department, and others.

In the older days, a seafarer is also known as a seaman. Nevertheless, the nomenclature hasn’t really been pushed into oblivion: almost everyone still refers to the seafarer’s identification  document as ‘seaman’s book’.

So which is correct: Seaman or seafarer? 

Answer posted in  SEAMAN ONLINE.Ph states  the following, as defined by online dictionaries :

 "The term “Seaman” refers to the elite and professional individual who’s area of knowledge are on sea vessels.

To become a Seaman, it requires formal training, learning and certification.

1. a person skilled in seamanship.
2. a person whose trade or occupation is assisting in thehandling, sailing, and navigating of a ship during a voyage,especially one below the rank of officer; sailor.
3. U.S. Navy and Coast Guard . an enlisted person ranking belowpetty officer.

While a Seafarer is a general term of anyone who’s been tackling the seas.

Anybody can become a seafarer by experience.

1. a sailor.
2. a traveler on the sea.

It is interesting to note that Marine Cafe Blog  pointed out that the term ‘seafarer’ is actually less accurate in describing somebody who works on board a ship. What it means is a person who regularly travels by sea – the term being a combination of two words, sea + farer (from the Old English faran, meaning ‘to journey or travel’ ). Thus, certain ethnic groups are called ‘seafarers’ such as the Orang Laut (sea people) of Malaysia and the Badjaos (men of the seas or sea gypsies) of the southern Sulu archipelago in the Philippines.

MARLAW 2017 Induction Night

 My Speech as president of   MARLAW Induction and Fellowship Night January 10, 2017

The start of my  term   as president of the Maritime Law Association of the Philippines (MARLAW) with Hon. Raul Pangalangan , former UPLaw Dean and now Judge of the International Criminal Court, as inducting officer  during the First Fellowship Night and Induction Ceremony last January 10, 2017 at the DelRosarioLaw Centre 21st Drive cor. 20th Drive Bonifacio Global City, Taguig City. I am  the third partner from SVBB law to be elected as MARLAW President along with Atty. Eugene Tan and Atty. Augusto R. Bundang. 

“The heart of a person  is very much like the sea, it has its storms, it has its tides and in its depths it has its pearls too” ― Vincent Van Gogh, The Letters of Vincent van Gogh

Filipinos has been historically a people of the sea.

The Balangay  is a plank boat adjoined by a carved-out plank edged through pins and dowels. It was first mentioned in the 16th Century in the Chronicles of Pigafetta, and is known as the oldest watercraft found in the Philippines. The balangay was the first wooden watercraft excavated in Southeast Asia and is evidence of early Filipino craftsmanship and their seamanship skills during pre-colonial times. The balangay was navigated through  the old method used by the ancient mariners – steering by the sun, the stars, the wind, cloud formations, wave patterns and bird migrations.

Centuries later, there was a move to declare the Balangay as the  National Boat of the Philippines so that the "future generations of Filipinos will recognize the invaluable contribution of their forefathers in shaping the country’s maritime tradition and in passing on the values of solidarity, harmony, determination, courage and bravery

Along with the development of the maritime industry in the Philippines, Maritime Law Association of the Philippines (MARLAW ) was established in 1982 which aimed, among others, to maintain the highest ethical standards in the practice of maritime law.  MARLAW was formed to address the need for an organization, which will help spur progress in the legal practice of maritime sector and advance the interest of the maritime profession and the maritime industry as a whole in the Philippines.

Its formal organization in 1982 was timely because at the time new maritime concerns were surfacing. Bareboat chartering was an alternative to increase local ships and the shipowners had found the Philippines a crewing haven. Freight forwarding business started to grow. Ships were venturing into containerization. MARLAW membership later   grew to cover other areas of practice like crew claims, salvage, territorial  jurisdiction disputes,  academe, and the public sector.  

Through the years, various activities are organized to foster closer fellowship among MARLAW members and friends, by way of advocacy, education, dissemination of information and sponsorship of relevant seminars. MARLAW organized fund-raising projects to augment MARLAW funds needed to carry out its objective of promoting and advancing the interests of various players in the Philippine Maritime Industry,

Now on its 35^th year, MARLAW grew with maritime lawyers taking pride that they have formed and become part of an organization that serves not only their interest, but the greater interest of the common good.

As we celebrate our 35^th year, let us follow what our ancient mariners did in the balangay – let us steer our beloved organization by the sun, the stars, the wind, cloud formations, wave patterns and bird migrations as we pass  on to the younger generations  the values of solidarity, harmony, determination, courage and bravery

Good evening. 

Philippine Passport Application

A Philippine passport is both a travel document and a primary national identity document issued to citizens of the Philippines since there is no national identity card system in the Philippines. It is issued by the Department of Foreign Affairs and Philippine diplomatic missions abroad, with certain exceptions.

The new biometric Philippine passport costs 950 pesos (approximately $21) in the Philippines or $60 abroad. Overtime processing for new passports costs an additional 250 pesos. Persons who take advantage of overtime processing get their passports within ten working days, but is only available in the Philippines. Passports previously could be amended for 100 pesos (approx. $2.50) in the Philippines or $20 abroad, although machine-readable passports are no longer amendable.

Lost or stolen passports may be replaced for 700 pesos (approx. $15) in the Philippines, $90 abroad.

The DFA also offers other channels for the public to apply for their passports. Aside from the traditional on site application process, there is also a DFA Express Passport Delivery hotline (02)737–1000 where an individual can call, inquire, and have his passport picked-up, processed and delivered to his doorstep. The third option is an online application process at www.passport.com.ph which has a similar door-to-door delivery feature.

Heartache

A job of a seafarer is not exactly a walk in the park. One  with a  heart condition is “a walking time bomb ready to explode towards the end of his employment days.”

Cardiovascular disease (CVD) is a term to describe conditions of the heart and blood vessels and is the leading cause of death in the country today according to the Department of Health.

Common CVDs include, among others, coronary heart diseases/ischemic heart disease, cerebrovascular accident or stroke, and hypertension or elevated blood pressure.

Under Section 32-A(11) of the 2010 POEA Amended Standard Terms and Conditions.  CVD is considered an occupational disease for which a seafarer may claim compensation if it was contracted under working conditions identified therein as follows:  when the heart disease was aggravated by reasons of the nature of the seafarer’s work, the severity of the strain of the work may be sufficient and followed within 24 hours by clinical signs of cardiac insult, and signs and symptoms of cardiac injury appeared during his work and the same persisted.

In several cases, cardiovascular disease, coronary artery disease, as well as other heart ailments were held to be compensable as total permanent disability by the Supreme Court.

Seafarers working for companies  for long period of time is normally saddled with heavy responsibilities relative to navigation of the vessel, ship safety and management of emergencies. (Magsaysay Mitsui OSK Marine, Inc.. vs. Juanito Bengson; G.R. No. 198528, October 13, 2014)

It is beyond doubt that seafarer can be subjected to physical and mental stress and strain; these responsibilities cause heavy burdens on one’s shoulders all these years, and certainly contributed to the development of his illness. Besides, it is already recognized that any kind of work or labor produces stress and strain normally resulting in wear and tear of the human body. 

Notably, it is a matter of judicial notice that an overseas worker, having to ward off homesickness by reason of being physically separated from his family for the entire duration of his contract, bears a great degree of emotional strain while making an effort to perform his work well. The strain is even greater in the case of a seafarer  who is constantly subjected to the perils of the sea while at work abroad and away from his family.

Having worked for the company under several employment contracts that were continuously renewed, it can be said that a seafarer spent much of his productive years with the company; his years of service certainly took a toll on his body, and he could not have contracted his illness elsewhere except while working for the company.

The case of Carlos N. Nisda vs. Sea Serve Maritime Agency, et. al. (G.R. No. 179177, July 23, 2009) made it clear that by showing the reasonable connection between the seafarer’s  work and the development and exacerbation of his CVD, a seafarer may claim for payment of disability benefits under the POEA SEC. The physical discomforts for which he sought medical attention when he was abroad  bear the hallmarks of coronary artery disease that did not develop overnight hence, making it highly possible that he had the disease while he was still onboard during the life of his POEA-SEC, although it went undiagnosed because he had yet to experience the symptoms.

The fact that he was deployed by his employers numerous times, which job was found to be arduous and grueling, showed the reasonable connection between the nature of his job and his heart disease.  Accordingly, he was able to prove that disease was work-related given the difficult nature of his job  that caused his disease or at least, aggravated any pre-existing conditions that he might have had.

Considering the repulsive physical manifestation of the disease, it's chronic nature, lack of long-term cure and the vulnerability of the patient to cardiovascular diseases, a seafarer would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.

Companies definitely will no longer hire a seafarer  due to his medical condition, especially the high risk of having heart failure or stoke in the future. From the business point of view, it will be risky for them to let him be re-employed since the harsh working environment might only aggravate the  seafarer’s fragile condition and in the end expose the company to more serious insurance liabilities.

The Supreme Court described an employee with a  heart condition as “a walking time bomb ready to explode towards the end of his employment days.” ⁽GSIS vs. Alcaraz, GR. 187474, February 6, 2013)  To be sure, the risks present in his work environment for the entire duration of his employment might precipitate a graver heart condition.

A job of a seafarer is not exactly a walk in the park.  He performs duties and responsibilities as instructed or as necessary. (Heirs of the Late R/O Reynaldo Aniban vs. NLRC, 282 SCRA 377)

 What makes the job more difficult, aside from exposure to fluctuating temperatures caused by variant weather changes, the job obviously entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress. All these factors may exacerbate private respondent’s heart condition. Prolonged and continued exposure to the same could probably risk him to another attack (Oriental Shipmgt. Co., Inc. vs. Bastol (G.R. 168269 January 29, 2010.)  

Disability due to accident

Is the injury suffered by the seafarer the result of an “accident” thereby entitling him to higher disability benefits under the collective Bargaining Agreement (CBA)?

This is the question posed in the April 23, 2014 case of “Carlo F. Sunga v. Virjen Shipping Corporation, Nissho Odyssey Ship Management Pte. Ltd., and Capt. Angel Zambrano” which was decided by the Supreme Court under G.R. No. 198640.

The seafarer in this case, a member of the Associated Marine Officers’ and Seamen’s Union of the Philippines (AMOSUP), entered into a contract of employment as Fitter on board an ocean-going vessel for nine (9) months.  His employment was covered by a collective bargaining agreement (CBA) executed between AMOSUP and his employers.

One time, while on board, the seafarer had to lift a 200-kilogram globe valve from the lower floor of the engine room to its installing position.  As it was being positioned, one of the oilers lost his grip of the valve, thus, causing its whole weight to crash on the seafarer.  At that point, he felt his back snap.  Since then, he started to experience pain which led him to request for repatriation which was accordingly granted.

Reporting to the company-designated doctor, the seafarer underwent medical examination and was issued medical certificates: the first, recommending a Grade 8 disability based on the POEA-Standard Employment Employment Contract (SEC), and the second, a disability grading of 25% in accordance with the CBA.  His employers offered the amount of US$16,795.00 as full settlement for his disability benefits based on the POEA-SEC but he rejected it and demanded that his benefits be based on the disability grading of 25% based on the CBA.  His employers claimed that he failed to present any proof that his disability was the result of an accident and it was simply an illness r an anatomical defect.

The arbiter and the NLRC ruled in favor of the seafarer, basing his disability benefits on the CBA.  The Court of Appeals ruled otherwise and applied only the POEA-SEC, noting that the back injury which the seafarer suffered was reasonably anticipated since carrying heavy objects can cause injury and that lifting and carrying heavy objects are part of his duties as Fitter.  There was no mishap, occurrence or fortuitous event when the injury was incurred.

The Supreme Court affirmed the rulings of the arbiter and the NLRC and found that the seafarer’s injury was the result of the accidental slippage in the handling of the 200-kilogram valve based on circumstantial evidence.  the High Court observed that the seafarer did not incur the injury while solely performing his regular duties but an “intervening event transpired,” i.e., when the oiler lost his grip of the valve, which brought upon the injury on the seafarer.  Such an incident cannot be considered foreseeable nor can it be reasonably anticipated.

The duty of the seafarer here was not to routinely carry a 200-kilogram valve singlehandedly, but only to change the valve.  An “accident” therefore, pertains to an unforeseen event in which no fault of negligence attaches to the defendant.  As defined in Black’s Law Dictionary, “accident” is “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.”  As such, the seafarer’s disability benefits fall within the Collective Bargaining Agreement (CBA) coverage, which provides that “A seafarer who suffers permanent disability as a result of an accident whilst in the employment of the Company shall be entitled to compensation according to the provisions of this Agreement.”   

#Article of Atty. Augusto R. Bundang of SVBB Law orignally published in the Tinig ng Marino July August 2014 issue. 

The Case of the Missing Doctor’s Declaration

The company-designated physician is duty-bound to timely issue to a repatriated sick or injured seafarer a declaration/ certification on his fitness for sea-service or a final disability assessment. Failure to do so would give rise to the conclusion that the seafarer’s disability is total and permanent.

In the case of Dario A. Carcedo (substituted by his wife Priscilla Carcedo) vs. Maine Marine Philippines, Inc. and/or Ma. Corazon Geuse-Songcuya (G.R> No. 203804, April 15, 2015), Carcedo, the seafarer, was medically repatriated due to a wounded foot. After his right big toe was amputated, the company-designated doctor recommended an impediment disability grading of 8 percent loss of the toe. Unfortunately, the suffering of Carcedo did not end as he again underwent medical procedure on his foot. He then sued for total and permanent disability benefits, sickness allowance and other damages. In the meanwhile, a doctor of his choice again operated of him and removed a secont toe. 

The arbiter supported the company-designated doctor’s findings while the NLRC, on appeal, awarded the Carcedo full disability benefits. The Court of Appeals however, upheld the 8% disability grading made by the company-designated physician in accordance with the CBA. Before the Supreme Court, Carcedo’s position was sustained and he was awarded the full disability compensation.

The Supreme Court made it clear that the seafarer’s right to disability benefits is governed not only by the Collective Bargaining Agreement and the POEA-Standard Employment contract enterd into by the parties, but also the provisions on disability of the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title II, Book Code concept of permanent total disability applies to seafarers whereby it is not the injury which is compensated in a disability compensation matter, but rather the incapacity to work resulting in the impairment of one’s earning capacity.

The High Court pointed out that the declaration/ certification of the company-designated physician as to (a) the fitness of the seafarer to engage in sea duty or (b) his final disability assessment, during the 120-day or 240-day treatment period allows the employer to determine whether the seafarer is fit for sea duty or permanently disabled and the degree of such disability. The absence of such declaration/ certification transforms the temporary total disability status of the seafarer to permanent total disability, regardless of the disability grade. Thus, citing the case C.F.Sharp Management vs. Joel D. Taok (G.R. No. 193679, July 18, 2012), a seafarer may sue for total and permanent disability benefits if, among others, (1) the company-designated physician failed to issue said declaration even after lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability hence, justify an extension of the period to 240 days, and (2) 240 days had lapsed without any certification being issued by the company-designated physician.

The Supreme Court found the 8% disability grading assessment of the company-designated physician to be merely an interim one and not final since Carcedo continued with his medical treatments beyond the 120-day period and the extended temporary disability period of after 120-day period but less than 240 days. No definitive impediment rating of Carcedo’s disability was ever given. In the same token, the said 8% disability grading assessment did not include a certification of the seafarer’s fitness for sea duty, which ought to be the job of the company-designated physician.

#Article of Atty. Augusto R. Bundang of SVBB Law orignally published in the Tinig ng Marino July August 2015 issue.  

The Employers’ Joint & Solidary Liability

What is the liability of the foreign principal and the manning agent for any and all claims arising out of an employer-employee relationship or by virtue of any law or contract involving a seafarer?  It is “joint and several”, according to the case of Sealanes Marine Services, et al. v. Arnel G. dela torre” which was decided by the Supreme Court last February 18, 2015.  “Joint and several liability”, in simple terms, is a form of liability where a creditor may hold answerable any of his debtors for his entire claim.

In said Sealanes case, the seafarer was hired as able seaman by a local manning agent in behalf of its foreign principal.  Unfortunately, the seafarer figured in an accident on board and injured his lower back thus, necessitating his medical repatriation.  The company-designated doctor assessed him with a Grade 11 disability and was informed of the same only after 240 days since his accident.  As such, the seafarer filed a disability claim, among others.  His claim was granted by the Arbiter and sustained by the NLRC, the Court of Appeals and the Supreme Court.

The High Court noted that under Section 10 of Republic Act No. 8042, otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995”, as amended by Section 7 of Republic Act No. 10022, the liability of the principal and the recruitment agency for all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage, shall be joint and several.  Such liability which shall be incorporated in the overseas employment contract, shall be a condition precedent to the contract’s approval, and shall continue during the contract’s entire duration.

The performance bond filed by the recruitment agency shall answer for all money claims or damages that may be awarded to the worker.  This being the case, the Supreme Court pointed out in the earlier case of Varorient Shipping Co., Inc. v. NLRC (G.R. No. 164940, November 28, 2007) that even the certificate of non-forum shipping filed by a manning agent in a court case is sufficient to cover and benefit its foreign principal.  The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers (POEA Rules) ordain that the local manning agent is solidarily liable for every obligation that the foreign principal may incur against the local worker.  The foreign principal does not have any capacity to act in the Philippines unless through its accredited local manning agent.

Significantly, if the recruitment agency is a juridical being, the corporate officers and directors shall also be jointly and solidarily liable with the corporation.  The High Court added that every applicant for a license to operate a seafarers’ manning agency shall, in the case of a corporation, submit a written application together with, among others, a verified undertaking by officers, directors, and partners that they will be jointly and severally liable with the company over claims arising from employer-employee relationship.  The POEA Rules so provide for this as pointed out in the Varorient case.  Each of the solidary debtors, insofar as the creditor is concerned, is the debtor of the entire amount; it is only with respect to his co-debtors that he is liable to the extent of his share in the obligation. 

*article written by SVBB Senior Partner Atty. Augusto Bundang originally published at Tinig ng Marino