Flow of Seafarers' Labor cases

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

A 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 one's  condition on board the vessel. 

While on board the vessel, a seafarer may be confronted with situations that will involve untimely repatriation, either he was dismissed or that he suffered from an injury or illness, or worse, if he dies.  In the event that  his concerns  fell in deaf ears, a seafarer might  resort to legal action  before  the National Labor Relations Commission (NLRC) or National Conciliation and Mediation Board (NCMB) to assert his monetary claims    for (a) termination disputes (or illegal dismissal cases) (b)  Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas employment, including nonpayment or underpayment of wages,  claims for disability or death benefits,  actual, moral, exemplary and other forms of damages and other cases as may be provided by law.

There are  two Arbitration routes   – the NLRC for mandatory Arbitration and the NCMB for voluntary Arbitration. The process is based solely on documents – there is no facility for oral witness testimony or for arguments to be presented verbally to the Labor Arbiter in the NLRC or Voluntary Abitrators in the NCMB.

The filing of a Single Entry Approach (SEnA) initiates the Proceedings in both the NLRC and NCMB which entails the attendance of the parties, without lawyers, at mandatory conferences aimed at settling the claims without the need for matters to progress further.This is followed by at least two further mandatory conferences, which the parties’ lawyers also attend, and which are again aimed at reaching settlement.

If settlement is not reached, the claims then proceed to filing of the first pleading – the Position Paper  setting out their respective arguments. The Complainant (seafarer) will explain why he believes he is entitled to what he is claiming, and the Respondent (Shipowner/employer) will raise contrary opinions. .

After Position Papers, parties will file a Reply in which they  rebut the arguments in the other party’s Position Paper. The final pleading – the Rejoinder– is then filed, in which the parties respond to the arguments in the other’s Reply.

Once these pleadings are all filed, the claim is deemed “submitted for resolution” by the Labor Arbiter (NLRC) or Panel of Voluntary Arbitrators (NCMB). The time in which a decision is delivered is variable. It is generally expected within 3 - 6 months but can commonly take longer.

When the decision is delivered, the next step differs between the NLRC and NCMB.

In the NLRC, the unsuccessful party can file an Appeal to the Commission (NLRC). They have 10 days to do so. The Appeal, if pursued by the shipowner, must be secured by a bond.

When the decision on the Appeal is delivered, the unsuccessful party can file a Motion for Reconsideration within  10 days from receipt of the decision.

In the NCMB, there is no appeal stage. Instead, the unsuccessful party who wishes to contest the decision must file a Motion for Reconsideration.

When the decision on the Motion for Reconsideration is delivered, the unsuccessful party can elevate the claim to the Court of Appeals. This is done via a Petition for Certiorari from the NLRC or a Petition for Review from the NCMB.

The denial of a Motion for Reconsideration also means that any award of damages to a seafarer becomes “final and executory” within 10 days from receipt of the decision unless the Court of Appeals issues a Temporary Restraining Order (TRO).

Final and executory means that the seafarer can file a Motion seeking the issuance of a Writ of Execution, which, if granted, will entitle him to payment of the award of damages. 

When the decision on the Petition is issued, the unsuccessful party has a final chance of redress by applying to the Supreme Court. The decision rendered here is final, and no further appeal is possible.

If the decision in relation to the Petition for Certiorari/Review, or from the Supreme Court favours the shipowner, they are entitled to restitution of the award previously paid out, once the case reaches finality and the corresponding Entry of Judgment has been issued.

Res

Standard Cadet Training Agreement

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Newspapers reported that  a major fire broke out  on board Maersk Honam last  6 March 2018 at 15:20 GMT,  while the vessel was in the Arabian Sea which resulted to the death of two Filipino cadets from Iloilo.  . Earlier,   , MV Starlite Atlantic sank the morning of December 26, 2016 off Tingloy, Batangas due to the onslaught of Typhoon Nina. Fourteen of the 33 crewmen onboard the vessel were rescued by the Philippine Coast Guard while 18 others are still missing. On board are eleven  (11)  students   who are undergoing training  since October. 

Incidents like the sinking of MV Starlite Atlantic and the death of the two engine  cadets brings forth the issue of protection of cadets while undergoing training. 

The Standard Cadet Training Agreement on Ships Engaged in International Voyage  took  effect on  August 25, 2013  to  ensure compliance with the requirements of MLC 2006 in safeguarding the rights of and affording social protection for marine cadets while undergoing the mandatory shipboard training. Cadets are required to undergo the  apprenticeship period aboard an actual ship in order to expose students to the real-life applications of the concepts and techniques that they learned in the classroom.

A  Cadet refers to a student of maritime education leading to a Bachelor's degree (BSMT or BSMarE) who is required to undergo on board training to complete the academic requirement for a maritime degreeor technical course.  Under Article II (f) of the Maritime Labour Convention (MLC) 2006, marine cadets are included in the definition of a "seafarer" as "any person who is employed or engaged or works in any capacity on board a ship to which· this Convention applies;"

 It is almost a mirror image of the Standard Employment Contract for Seafarers (SEC) that contains provisions on conditions of employment,   accommodation, recreational facilities, food and catering , welfare and social security protection.  It likewise mandated  that the Sponsoring Company shall provide the Cadet health protection and medical care  in case of  training-related illness, injury or hazard or any illness, injury, or hazard occurring during the term of the agreement as well as financial security to cover compensation for a resulting permanent disability or death.

The aim of the he  Agreement basically includes (a)   to  recognize that the Cadet is a maritime education student and to declare that the Cadet is not part   of the ship’s labor complement; (b)  to provide the Cadet with opportunity to be trained on-board ship in accordance with the rules of  Commission on Higher Education (CHED)  and (c)     to ensure the safety and well-being of the Cadet during the period of training until the repatriation of the Cadet

On the other hand, the cadet’s responsibilities, among others, to (a) complete and pass the OnboardTraining Program within the period stipulated (b) perform all duties, assignments, designated tasks, and comply with the requirements, regulatons, policies, and procedures of the ship; (c) Conduct himself/herself in an orderly and respectful manner towards shipmates, passengers, shippers, stevedores, port authorities, and other persons on official business with the ship.

A copy of the Standard Cadet Training Agreement can be viewed at   http://www.poea.gov.ph/gbr/2013/8.pdf

Seafarers as contractual employees

Seafarers are not entitled to the benefits given to a regular or permanent  employee such as 13^th month pay, reinstatement, separation or termination pay or some instances, even retirement benefits,  since they are considered merely as contractual employees.

This has been the consistent ruling of the Supreme Court since it issued its decision in the 2002 case of Millares v. NLRC ( G.R. No. 110524 July 29, 2002)  that  became the landmark jurisprudence  defining the nature of employment of Filipino seafarers and the applicable law.

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

A Filipino seafarer is governed by the Rules and Regulations of the POEA. The Standard employment Contract governing the employment of All Filipino Seamen on Board Ocean-Going Vessels of the POEA, particularly in Part I, Sec. C specifically provides that the contract of seamen shall be for a fixed period.

The provisions of the POEA contract  require the seafarer to arrive at the point of hire as it signifies the completion of the employment contract, and not merely its expiration. Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire and signs off for medical reasons, due to shipwreck, voluntary resignation or for other just causes. In a nutshell, there are three (3) requirements necessary for the complete termination of the employment contract: 1. termination due to expiration or other reasons/causes; 2.signing off from the vessel; and 3. arrival at the point of hire.

The Millares  doctrine was reiterated in the latest case of  NICANOR CERIOLA vs. NAESS SHIPPING PHILIPPINES, INC (G.R. No. 193101               April 20, 2015) where the Supreme Court noted that it is an accepted maritime industry practice that employment of seafarers are for a fixed period only. Constrained by the nature of their employment which is quite peculiar and unique in itself, it is for the mutual interest of both the seafarer and the employer why the employment status must be contractual only or for a certain period of time.  The exigencies of their work necessitates that they be employed on a contractual basis.

Seafarers spend most of their time at sea and understandably, they can not stay for a long and an indefinite period of time at sea. Limited access to shore society during the employment will have an adverse impact on the seafarer. The national, cultural and lingual diversity among the crew during the contract  is a reality that necessitates the limitation of its period.

The circumstance of continuous re-hiring is normally  dictated by practical considerations that experienced crew members are more preferred. Current crew  are  only given priority or preference because of their experience and qualifications but this does not detract the fact that  seafarers are contractual employees.

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.)