“Personal comfort” doctrine and compensability of injuries during recreational activities

A seafarer’s injury during any recreational activity such as a videoke session is compensable under the “personal comfort” doctrine.

The Supreme Court utilized this legal paradigm in the recent case of John Oscares vs. Magsaysay Maritime Corp (G.R. No. 245858 December 2, 2020)  in awarding disability benefits to the injured seafarer.

While the vessel was anchored in Panama, the seafarer  was singing in front of a  videoke  machine together with another crew member when he slipped and fell out of balance.

As a result, he suffered major knee injuries.   

Upon his repatriation to the Philippines, the seafarer underwent surgery followed by physical rehabilitation wherein he shouldered the cost.

When he claimed for disability benefits, the company denied liability arguing that his knee injuries  are not compensable since the incident  is  not work related. He was not hired to sing on board so it cannot be said that his injury was incidental to his employment. His act of singing while jumping has no relation  to his duties as Second Assistant Engineer. It was  a purely personal  and  social  function.

In order for a seafarer's injury to be compensated, it must be shown that: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract.

A work-related injury is defined as  one arising out of and in the course of employment.

 

In the case of Luzon Stevedoring Corporation vs. WCC ( 193 Phil. 91),   the Supreme Court held that "acts reasonably necessary to health and comfort of an employee while at work, such as satisfaction of his thirst, hunger, or other physical demands, or protecting himself from excessive cold, are incidental to the employment and injuries sustained in the performance of such acts are compensable as arising out of and in the course of employment.”

The Supreme Court awarded disability benefits to the seafarer  using the “personal comfort” doctrine where  acts of personal ministration for the comfort or convenience of the employee  or  necessary to his physical well-being is an incident of employment.

The company argued that the personal comfort doctrine is not applicable  since it only covers acts which are related to one's personal comfort for a brief momentary period, such as using the restroom. The seafarer's act of singing while jumping is not included, is a purely personal and social function, and is not incidental to his work.

However, the Supreme Court pointed out that  the seafarer’s act of singing can be considered necessary to his health and comfort while on board the vessel. He incurred his injury while he was performing  this  act.

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.

The seafarer  neither willfully  injured himself nor acted with notorious negligence. Notorious negligence is defined as something more than  mere  or  simple  negligence  or  contributory  negligence;  it  signifies  a deliberate act of the employee to disregard his own personal safety.

Jumping while  singing  cannot  be  considered  as  a reckless  or  deliberate  act  that  is unmindful   of  one's  safety.

There  is  nothing   inherently  dangerous  about jumping  while  singing. The company did not  allege that the seafarer intentionally injured himself or was negligent. He simply lost his balance.

Accordingly,  the seafarer's injury is compensable.

While inside the vessel for several months, a seafarer is exposed to extreme weather conditions and rough seas  as well as physical and psychological stress due to his job, lack of sleep, heat stress, emergency works and homesickness for being away from his family.

These can have potentially disastrous consequences   in terms of reduced performance as well as poor physical and mental health.

Recreation is an important consideration for the Maritime Labour Convention 2006 (MLC2006).

Each member  state shall ensure that ships that fly its flag provide and maintain decent recreational facilities,  amenities and services, as adapted to meet the special needs of seafarers who must live and work on ships, consistent with promoting the seafarers’ health and well-being.

 Recreational facilities and services should be reviewed frequently to ensure that they are appropriate in the light of changes in the needs of seafarers resulting from technical, operational and other developments in the shipping industry.

 Some of the  facilities that  should be included  at no cost to the seafarer, where practicable are (a)  sports equipment including exercise equipment, table games and deck games;(b) electronic equipment such as a radio, television, personal computer and cassette recorder/player; and (c) bars on board for seafarers.

 

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)

500 years of christianity and the ships of faith

My early  grasp of  the history of Christianity in the Philippines at a young age perhaps  can be traced to the “Magellan” parody song of fellow Boholano Yoyoy Villame.

“On March 16, 1521. When Philippines was discovered by Magellan.
They were sailing day and night across the big ocean. Until they saw a small Limasawa island.”

“Magellan” was Villame’s  first recording  in 1972 that  became the top-selling record in the Visayas-Mindanao region which  narrated the arrival of Portuguese explorer Ferdinand Magellan in the country in 1521.

Villame was  a  native of Calape, Bohol, and  was the youngest of ten children of a fisherman father and fishseller mother.

He  blended Filipino folk melodies, popular tunes and nursery rhymes for his music and then added witty, comedic lyrics with a grammar of mixed Tagalog, Cebuano and English.

“When Magellan landed in Cebu City. Rajah Humabon met him, they were very happy. All people were baptized and built the church of Christ. And that's the beginning of our Catholic life.”

Christianity was brought to the Philippines in 1521 when  Magellan landed in on the small island of Limasawa in Cebu.

Magellan was heading a Spanish expedition in an effort to find a western sea route to the rich Spice Islands of Indonesia.

On March 31, 1521, the first Mass was celebrated where some 800 were baptized to form the first Catholic community, including Rajah Humabon.

The Sto.Nino de Cebu became  the oldest Christian artifact in the Philippines as  a gift from Magellan  to Rajah Humabon  on account of their baptism. Unfortunately, he was killed a month later during the Mactan battle led by LapuLapu.

The Philippine archipelago, which was named after King Philip II, became a colony of Spain until 1898.

 After Brazil and Mexico, the Philippines is the third largest Catholic population in the  world with some  76 million Catholics, or about 81 per cent of the total country  population.

 

Pope Francis called on Filipinos to renew their commitment to Christ as missionary disciple during the mass he celebrated last Sunday at the Vatican to mark Christianity’s  quincentenary  in the Philippines.

 

He urged  Filipinos to persevere in the work of evangelization as “the Gospel message of God’s closeness must be constantly proclaimed to others, so that none might perish.”

 

“Never be afraid to proclaim the Gospel, to serve and to love,” the Pope said. “With your joy, you will help people to say of the Church too: ‘she so loved the world!’”

 Part of the logo  released by the Catholic Bishops’ Conference of the Philippines (CBCP)  is a  ship that signifies the navigators of the expedition who brought the faith in  the country.

A traditional symbolic meaning of the ship is  that the church is  a means of conveyance between this world and the next.

In Christian tradition, in which earthly life is seen as a pilgrimage, the ship of the church transports the faithful through the seas of the world to the heavenly home.

 The boat is  often used to portray the church as  a vessel of salvation  like in   the story of Noah’s Ark and Christ’s voyage on the Sea of Galilee.

 The church ferries   its cherished  cargo of souls through the trouble seas of worldly temptation, unfaith and ill-treatment to finally reach it’s safe harbor on heaven’s shores.

 

In an era  of beliefs  in sea monsters and a flat earth that one could sail right off the edge, it took courage for  ancient mariners to set sail in boats as they had to trust in God and in each other.

Archbishop of Manila Luis Antonio Tagle  earlier said that Filipino seafarers  are  ‘saint potentials’ .

Referring to Saint Lorenzo Ruiz and San Pedro Calungsod, Tagle noted that they were seafarers and missionaries at the same time before they became saints who sailed to other countries and died for a mission: “to teach the Good News.”

Tagle underscored that the pain brought by separation is a sign of  the seafarer’s  love, strength, and faith for the good of his  family and the country.

 “Even if you feel pain when you leave your family and your country, that suffering is not a reason for you to be ‘paralyzed,’ but inspire you to strive for more,” said Tagle, adding  that their hardships will not weaken them but make them even stronger.

 

For the ordinary seafarers, religion offers strength, hope and peace in relation with their daily work and social relationships on board the vessel.

Despite its glorification due to economic returns, a job of a seafarer is not exactly a walk in the park.

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

Religion assists seafarers in coping with dangerous and emotionally challenging workplaces.

The estimated 519,031 deployed Filipino seafarers in 2019—per POEA data—remitted $6.539 billion or around P326.95 billion.

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)

Challenges of women seafarers in a male-dominated maritime industry

The word “seafarer” has replaced the word “seaman” in the male-dominated maritime industry, often considered as politically-correct word due to the increasing  presence of women in the profession in recent decades.

In older times, the term “seaman” was widely used to describe anyone working at sea while the term “seawoman” was alternatively used.

The word seafarer came from the combination of the words “sea” and “farer” ( from  the Old English “farere”  meaning to journey or travel). The Badjaos  ( men of the seas or sea gypsies ) are sometime identified as  seafarers since  members of this  tribal group are known to  move with the wind and the tide on their small houseboats called vintas.

However, the term "seaman" has not totally been pushed into oblivion as some still call the Seafarer's Identification and Record 

Book(SIRB) as ‘seaman’s book. 

The SIRB is a document provided by the flag state for travel to or from an assigned vessel that  also indicates the continuous record of the seafarers while he  is onboard a ship, and specifies  the particular category or rating which the holder is qualified to serve.

The usage of seafarer as a politically correct word can partly be attributed to the actions of the United Nations (UN) in promoting gender equality.   Women have been taking part in industries that once solely belonged to men, the maritime industry included.

The International Maritime Organization (IMO) noted that women represent only less than two percent of the world’s estimated 1.2 million seafarers as  94 percent of them are  working in the cruise industry  and 6 percent  are employed on cargo vessels, container ships or oil tankers.

Within the historically male-dominated industry, IMO stressed it has been making a concerted effort to help the industry move forward and support women to achieve representation in keeping with current expectations.

IMO secretary-general Kitack Lim earlier said the maritime industry needs more women because of the quality work they provide as  they are  very important human resources.

During the recent episode of  the online show Amigos Marino, Merle San Pedro,  Women in Maritime Philippines (WiMaPhil)  president, pushed for better protection for women seafarers.

On the occasion of International Women’s Day, she made the call  as part of their campaign not only to promote women as seafarers but also as part of the whole maritime industry — shipping, ports, maritime administration, maritime education and training, and logistics.

Women  seafarers face not only the general challenges of weather, hard work and rough seas, but also inordinate amounts of discrimination, exploitation,  sexual harassment, violence and   limited opportunities for promotion. These can affect their  dignity, security, health, and well-being.

San Pedro stressed that  employers must have effective mechanisms and guidelines to promptly address sexual harassment and violence incidents committed against female seafarers and cadettes.

The International Transport Workers Federation (ITF) called on industry stakeholders to prioritize a range of women seafarers’  issues, including (a) reducing gender stereotypes within the industry; (b) provision of sanitary items on board ships; (c) access to confidential medical advice and contraceptives; (d) consistent and improved approach to maternity benefits and rights;  and ( e) development of sexual harassment policies and appropriate training, including within cadet training and education.

In the Philippines, the Maritime Industry Authority (MARINA) has recorded 73,027 women seafarers – almost 10 percent of approximately one million Filipino seafarers issued with Seafarer’s Identification and Record Book (SIRB) as of December 2018. For the school year 2015 to 2016, there are 4,791 female students out of the 219,722 enrollees in maritime schools.

The growing number of female seafarers encourages   a competitive environment  for  the ability of women to work at an equal footing with men in a purely male-dominated profession.

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

The sea-based sector’s remittances comprise at least 22 percent of the total dollar remittances of overseas Filipino workers (OFWs).

 The estimated 519,031 deployed Filipino seafarers in 2019 (per Philippine Overseas Employment Administration data) remitted $6.539 billion or around P326.95 billion.

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 compensation cases and company doctor’s declarations

Courts are not bound by the medical findings  of the company doctors  in the determination of  compensation cases filed by Filipino seafarers.

In most seafarer cases for disability or death benefits claims, one of the arguments often raised by the companies 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.

Such assessment is arrived at after the seafarer submits himself to the company doctor for a post employment medical examination within three days from his repatriation.

While the company doctor  must declare the nature of a seafarer’s disability, the Supreme Court stressed in several rulings that  said declaration is not conclusive and final upon the  court since the  inherent merit of the case will still be weighed and duly considered.

The Supreme Court noted Magsaysay vs.  Buenaventura (G.R. No. 195878. January 10, 2018) that the judicial bodies should not  adopt the declaration hook, line and sinker as it may be set aside if it is shown that the diagnosis of the company  doctor  is attended with clear bias, has no scientific basis or are not supported by the medical records of the seafarer.

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).

In Dohle-Philman Manning Agency, Inc vs Heirs of Andres Gazzingan (G.R. No. 199568   June 17, 2015),  the Court said that the company doctor’s opinion is not an accurate appraisal of the extent of the seafarer’s disability since it was not based on the post-employment medical examination conducted on the seafarer after his medical repatriation.

In the absence of reasonable findings, diagnostic tests and procedures to support the assessment, the same cannot be simply taken at face value. Moreover, the company doctor hastily concluded that aortic dissection is hereditary without necessarily considering other varied factors that can contribute to the development of the disease.

In Racelis v. United Philippine Lines, Inc. (G.R. No. 198408, November 12, 2014),  the Court discarded the medical certificate because the  opinion came from a physician who did not personally attend to the seafarer in the course of the latter’s medical treatment and for being unsubstantiated by any medical findings.

In Jebsens Maritime, Inc. v. Babol (G.R. No. 204076, December 4, 2013),   the Court did not give probative weight on the company doctor’s opinion that the seafarer’s condition is not work-related as the wordings used in the doctor’s report did not make a categorical statement confirming the total absence of work relation but only a mere probability.

In Magsaysay Mitsui Osk Marine, Inc. v. Bengson (G.R. No. 198528, October 13, 2014),  the Court disregarded the company doctor’s categorical declaration that the seafarer’s illness is not work-related for being self-serving. The Court sustained the illness’ work-connection as the facts of the case clearly showed the contributory factor of the seafarer’s daily working conditions to the illness suffered, even in the absence of a contrary opinion of other doctors.

In Teekay Shipping Philippines, Inc. v. Jarin (G.R. No. 195598, June 25, 2014),  the Court ruled that it was unnecessary for the seafarer  to consult and provide a contrary opinion from his own doctors since the causal connection between the illness and the work for which he had been contracted was clearly detailed and convincingly established by him.

The company doctor’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 (Cadornigara vs. NLRC, 538 SCRA 363).

Said rulings were based on the prevailing doctrine that  “disability is intimately related to the worker's capacity to earn, and what is compensated is not his injury or illness but his inability to work resulting in the impairment of his earning capacity. Thus, disability has been construed less on its medical significance but more on the loss of earning capacity.” (Ilustricimo v, NYK-Fil Ship Management, Inc., G.R. No. 237487, June 27, 2018.)

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)

The tale of a shotgun wedding, psychological incapacity and annulment

Mere refusal to cohabit with one’s spouse will not be automatically considered as a psychological disorder in annulment cases.

Like in telenovelas, a seafarer’s story of shotgun wedding or pikot that led to   an annulment case   became the backdrop of the Supreme Court’s ruling in Rolando Cortez  v. Luz Cortez (G.R. No. 224638, April 10, 2019).  

The parties were married in 1990 but the seafarer filed thirteen years later a petition for the declaration of nullity of marriage on the ground of their psychological incapacity.

The travails started when the seafarer was invited to a birthday party and after consuming three bottles of beer, he became dizzy and passed out.

When he woke up, he was already in a room with the girl and was clad only in his underwear and they were covered with a blanket.

The girl’s brother, a policeman, suddenly entered the room and said "May nangyari na pala sa inyo, dapat panagutan mo iyan." He was, however, allowed to go home.

The seafarer was already scheduled to work abroad.

While at the airport, he was stopped by a hold-departure order issued by the POEA because of the girl's complaint as she was then pregnant.

He was able to depart days later after he was forced by the girl's brothers to marry her and designating her as his allottee.

He never cohabited with his wife who gave birth to two children.

Years later, the seafarer disputed his paternity of the two (2) children as he  subjected himself to a semenal examination which showed that he had low sperm count and did not have the capacity to impregnate a woman.   He, however, continued giving financial support to avoid being harassed.

He described their marriage as one attended by force and reluctance.  

He claimed that they got married not out of love but because of wife's desire to ensure material support for herself and the children.

The seafarer also argued that that he married his wife to be able to work abroad as a seafarer, hence, he is psychologically incapacitated to comply with the essential marital obligations of marriage.

He used the psychiatric evaluation report on his alleged  psychological incapacity at the time of the celebration of the marriage since he was forced to marry the wife without love, and that he had no intention to do his full obligations as a husband.

But the Court ruled that such claim does not rise to the level of psychologically incapacity that would nullify his marriage.

The petition for declaration of nullity of marriage would fail because the juridical antecedence, gravity and incurability of the parties' alleged psychological incapacity have not been proven.

Psychological incapacity must be characterized by: (a) gravity (i.e., it must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage); (b) juridical antecedence (i.e., it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage); and (c) incurability i.e., it must be incurable, or even if it were otherwise, the cure would be beyond the means of the party involved.) (Cruz vs. Cruz (October 11, 2017 G.R. No. 201988)

Mere "difficulty," "refusal," or "neglect" in the performance of marital obligations or "ill will" on the part of the spouse is different from "incapacity" rooted on some debilitating psychological condition or illness.

The seafarer's claim of lack of realization that he has marital obligation to perform as husband to his wife is not a consideration under Article 36 of the Family Code.

What the law requires is a mental illness that leads to an inability to comply with or comprehend essential marital obligations.

Mere stubbornness or refusal to cohabit with the other spouse or the act of cohabiting with another person will not be automatically considered as a psychological disorder.

The complained acts depicting the alleged psychological disorder also happened after the marriage.

Demanding financial support for one's own children cannot even be considered morally or fundamentally wrong, much less a disorder.

It is essential that the parties to a marriage must be shown to be insensitive to or incapable of meeting their duties and responsibilities due to some psychological (not physical) illness, which insensitivity or incapacity should have been existing at the time of the celebration of the marriage even if it becomes manifest only after its solemnization.

 

It is downright incapacity, not refusal or neglect or difficulty, much less ill will, which renders a marriage void on the ground of psychological incapacity. The root cause thereof must be medically or clinically identified.  There must thus be evidence to adequately establish the same.

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)

Male seafarers as victims of sexual harassment

Male seafarers can be the subject of sexual harassment while working on board the vessel entitling them to moral damages.

Sexual harassment can happen to anyone and everyone.

 

The Supreme Court stressed in the case of Richard Toliongco vs. Anglo-Eastern Crew Mgt. (G.R. No. 231748, July 8, 2020) that  sexual harassment must be recognized as a risk faced by our seafarers and   which should not be merely seen as a gender issue, rather it is a power issue.

 

The seafarer was employed as messman.

The seafarer  claimed that when he served dinner to the Chief Officer, the latter   demanded that he masturbate and perform oral sex on him.  He resisted and left the room.

That same night, the chief officer  called for him again, and, repeated the sexual advances. On the second attempt, he also resisted and managed to escape.

He filed a complaint the following day for physical abuse and sexual abuse under alcohol intake against the Chief Officer before the Captain.

The chief officer  threatened to kill him upon learning of the complaint.

The seafarer was  later repatriated to the Philippines.

Several months later, he filed a complaint for constructive dismissal, sexual harassment and maltreatment with prayer for the payment of disability benefits, damages and attorney's fees claiming that he is rendered permanently and totally disabled due to his post-traumatic stress disorder caused by his unfortunate experience onboard the vessel.

The court, however,  denied the claim for disability benefits  because  the pieces of evidence  submitted are not sufficient to convince the Court  that he has been rendered permanently and totally disabled. 

Nevertheless, the Court ruled that since  a wrongful act was committed against the seafarer due to the sexual harassment he suffered  at the hands of  the chief officer

, he  is entitled to the income for the  unexpired portion of the contract,  moral damages of P100,000,00, exemplary damages, and attorney's fees

 The Supreme Court underscored that victims of sexual abuse usually take time before reporting to the proper authorities, more so if they are male as society has made it hard for male victims of sexual harassment to come out and report. 

“Our society has often depicted women as being the weaker sex, and the only victims of sexual harassment. It is high-time that this notion is corrected. To consider women as the weaker sex is discriminatory. To think that only women can be victims of sexual harassment is discriminatory against men who have suffered the same plight; men who have been victimized by sexual predators,” the Court said.

 Seafarers are exposed to various forms of discrimination, exploitation, sexual harassment, and violence, which may partly be attributed to the confined space on board vessels.

The isolated nature of the ship can increase opportunities for sexual harassment and violence, and can also amplify their negative consequences.

Sexual harassment may take the form of sexist remarks, sexual advances or sex-related behavior.  

It is a reflection of the power relations between individuals involved where, in most instances, the harasser is an officer occupying a higher rank than the seafarer.

 The Court cited  a separate opinion in Garcia v. Drilon, (712 Phil 44, 2013) which recognized  the existence of violence against men and the underreporting of such incidents.

 The Court  said that “social and cultural expectations on masculinity and male dominance urge men to keep quiet about being a victim, adding to the unique experience of male victims of domestic abuse. This leads to latent depression among boys and men. In a sense, patriarchy while privileging men, also victimizes them”

“There is now more space to believe that portraying only women as victims will not always promote gender equality before the law. It sometimes aggravates the gap by conceding that women have always been dominated by men. In doing so, it renders empowered women invisible; or, in some cases, that men as human beings can also become victims”, the Court added.

The Court further stressed that “it may be said that violence in the context of intimate relationships should not be seen and encrusted as a gender issue, rather it is a power issue. Thus, when laws are not gender-neutral, male victims of domestic violence may also suffer from double victimization first by their abusers and second by the judicial system. Incidentally, focusing on women was the victims entrenches some level of heteronormativity. It is blind to the possibility that, whatever moral positions are taken by those who are dominant, in reality intimate relationships can also happen between men.”

At its core, sexual harassment is not an issue of gender but an issue of power.

 

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)