The Magna Carta for Filipino Seafarers

Stakeholders has been campaigning for the passage of the Magna Carta for Filipino seafarers given the fact thatthe  Philippines  is considered as one of  the major supplier of maritime labor globally. 

The first version of the Magna Carta for Filipino Seafarers was the by-product of the National Seafarers Conference in 2002 held at the Manila Hotel organized by the Apostleship of the Seas (AoS) in coordination with the Office of Senator Ramon Magsaysay, Jr.

Years later, several versions were filed by  legislators that considered  legal developments both locally and internationally. This include   the  Maritime Labour Convention of 2006  (MLC2006) that  sets out seafarers’ rights to decent conditions of work.  and embodies all up-to-date standards  of existing international maritime labour Conventions and Recommendations. MLC 2006 is also called Seafarers’ Bill of Rights and   the fourth pillar of international maritime law.

 In the Senate, there are pending   bills  on Magna Carta of Filipino Seafarers proposed by Senator Sonny Angara (S.B.No.314) , Senator Loren Legarda (S.B.N0.244) and Senator J,V, Ejercito (S.B.No,904)  which aim to institute mechanisms to protect our country's seafarers' rights, provide them compulsory benefits, and enforce standards set by international laws.

On the other hand,  Senate Bill No. 429 by Senator Legarda   and Senate Bill No. 881 by Senator Grace Poe  seek the creation of a   centralized agency   directly involved in promoting assistance to all seafarers.

On July 2017, the Lower House has passed on third and final reading with  236-0 votes House Bill No. 5685 or the Magna Carta for Filipino seafarers, which essentially  consolidated  the different bills filed by  Representatives  Emmeline Aglipay-Villar, Jesulito Manalo,  Bellaflor Angara-Castillo, Karlo Alexei Nograles,  Jericho Jonas Nograles, Tomasito Villarin; and  Democrito Mendoza.

The proponents acknowledge that seafarers deal with circumstances very different from mainstream or land-based Overseas Filipino Workers (OFWs) and other sectors within the labor force. However, existing labor laws and social legislation, particularly the Overseas Filipinos and Migrant Workers’ Act of 1996 (RA 8042) do not adequately address the needs of seafarers.

This maritime Magna Carta, which in essence simply enshrines MLC2006  into Philippine law, states that seafarers have the right to safe and secure workplace that complies with safety standards; decent working and living conditions on board a ship; medical care, welfare measures and other forms of health and social protection; and fair terms and conditions of employment including salary commensurate to their rank, minimum number of working hours, and rest periods consistent with Philippine or international maritime conventions.

The bill also provides for seafarers’ rights to engage in collective bargaining; access to educational advancement and training at reasonable and affordable costs; relevant information, including the terms and conditions of employment and company policies affecting seafarers. It protects them against discrimination based on race, sex, religion and political opinion and provides for free legal representation for victims of violations who cannot afford legal representation

The original Magna Carta  is one of the most famous documents in the world.  It is short for   Magna Carta Libertatum, the Medieval Latin for “the Great Charter of the Liberties.”

Originally issued by King John of England  as a practical solution to the political crisis he faced in 1215, Magna Carta established for the first time the principle that everybody, including the king, was subject to the law. It dealt with specific grievances relating to his rule.

Some of Magna Carta’s core principles are echoed in the United States Bill of Rights (1791) and in many other constitutional documents around the world, as well as in the Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950).

Lord Alfred Thompson Denning, a famous English lawyer and judge, described  it as "the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot."

If passed into law, the Magna Carta for Filipino seafarers  will be applied to those engaged, employed or working on board Philippines-registered ships operating domestically or internationally, as well as those on board foreign-registered ships.

 (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)

Osteoarthritis as a compensable seafarer’s illness

Degenerative changes of the spine, also known as osteoarthritis, is considered as a work-related.   due to the seafarer’s performance of  tasks that clearly involved unduly heavy physical labor  and  joint   strain.  

A job of a seafarer is not exactly a walk in the park.  He performs duties and responsibilities as instructed or as necessary. The job obviously entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress aside from exposure to fluctuating temperatures caused by variant weather changes. 

The compensability of osteoarthritis was favorably ruled upon by The Supreme Court in the case of   Oscar  D.  Gamboa vs. Maunlad Trans. Inc ( G.R. No. 232905, August 20, 2016)

Seafarer  Gamboa  entered into a nine (9)-month contract of employment as Bosun on board the vessel, MV OrienteShine, a cargo vessel transporting logs from Westminster, Canada to several Asian countries

During the voyage, the seafarer slipped and lost his footing while going down the ship's galley, which caused awrithing pain on the upper left side of his back. The ship master initially  gave him Salonpas for his back. Due to  experienced back pain and difficulty in breathing,   the captain  was prompted to disembark him for medical consultation in Canada.  While the foreign port doctor  took note of the seafarer's back pain, it was his diagnosed asthma thatprompted the said doctor to declare him unfit for duty.  The seafarer  was medically repatriated

Subsequent check-ups in the Philippines noted   that the seafarer was suffering from "Degenerative  Changes, Thoracolumbar  Spine" and was found to have a "metallic foreign body on the anterior cervical area noted on x-ray”. The company-designated physician opined this illness  as  not related to the cause of the seafarer's repatriation.

The company denied liability for payment of the seafarer’s disability benefits. They alleged  his osteoarthritis  was declared to be not work-related by the specialist since it may have occurred overtime and could not have developed during his 22-day stay on board the vessel, hence, was a pre-existing condition.

The entitlement of a seafarer on overseas employment to disability benefits is governed by law, by the parties'contracts, and by the medical findings.

The POEA contract  governs the procedure for compensation and benefits for a work-related injury or illness suffered by a seafarer on board sea-going vessels during the term of his employment contract. A "work-related" illness is defined as "any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied.

Osteoarthritis is associated with a breakdown of cartilage in joints and can occur in almost any joint in the body. It commonly occurs in the weight-bearing joints of the hips, knees, and spine. Osteoarthritis occurs when the cartilage that cushions the ends of bones in the  joints gradually deteriorates. Cartilage is a firm, slippery tissue that permits nearly frictionless joint motion. The slick surface of the cartilage becomes rough. Eventually, if the cartilage wears down completely, one  may be left with bone rubbing on bone.

At any rate, in medical parlance, spinal disc degeneration/desiccation and osteoarthritis can be taken as the same. Degenerative disc disease is a spinal condition caused by the breakdown of the intervertebral discs which results in the loss of flexibility and ability to cushion the spine.33 When discs degenerate, the vertebral bodies become closer together and this increased bone on bone friction causes the wearing away of protective cartilage and results in the condition known as osteoarthritis.34 The degenerating discs place excessive stress on the joints of the spine and the supporting ligaments, which, overtime, can lead to the formation of osteoarthritis.35 Osteoarthritis is a stage of degenerative disc disease. (CENTENNIAL TRANSMARINE, INC vs PASTOR M. QUIAMBAO, G.R. No. 198096               July 8, 2015) 

There are conditions that should be met before an illness, such as osteoarthritis, can be considered as pre-existing, namely: (a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such illness or condition but failed to disclose the same during PEME, and such cannot be diagnosed during the PEME. The Supreme Court ruled that  none of these conditions had been established in this case.

The Court explained that  osteoarthritis is a listed occupational disease if the occupation involves any of the following:

a.       Joint strain from carrying heavy loads, or unduly heavy physical labor, as among laborers andmechanics;

b.      Minor or major injuries to the joint;

c.       Excessive use or constant strenuous usage of a particular joint, as among sportsmen,particularly  those  who  have  engaged  in  the  more  active sports  activities;

d.      Extreme temperature changes (humidity, heat and cold exposures) and;

e.       Faulty work posture or use of vibratory tools

The seafarer, as Bosun of the principal’s  cargo vessel that transported logs, undeniably performed tasks that clearly involved unduly heavy physical labor  and  joint   strain.  

The  Court declared that the seafarer's sustained back injury was not the result of an accident but nonetheless ordered the payment of his disability in accordance with the provisions of the Collective Bargaining Agreement (CBA.)

(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)

Seafarers' claims to be delayed by placing awards in Escrow

 Manning agencies are pushing for the inclusion of  an escrow provision in the proposed Magna Carta which  is a mere dilatory tactic in the execution of the seafarers’  monetary awards.

 The provision  in essence 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 National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB).  

The manning agencies resurrected what ANGKLA Partylist  earlier  filed  as House Bill  No. 5430 on February 2015 during the 16^th Congress   wherein the proceeds of execution shall be deposited in an escrow account with an escrow agent designated by the NLRC  or the NCMB.    

The seafarer  will wait for longer years before they receive the NLRC/NCMB  award , mostly  for cases involving monetary claims for  disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 

The manning agencies echoed ANGKLA’s rationale for the earlier Bill to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment award.

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.

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 is a David and Goliath situation  as it  involves two opposing parties:  the worker on one side and the management on the other.  

Constantly exposed to fluctuating temperatures caused by variant harsh weather conditions, the risks of his getting killed, injured or ill are high. 

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. 

Labor litigation takes years before it reaches the Supreme Court.

 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. 

Due to the longer years that they have to wait, without any leverage in prosecuting his monetary claims, chances are, the seafarer bows to the demand of his employer to either drop his claim or accept a small settlement. 

The scenario under said provision  will be analogous to situations described by the  Supreme Court where "the judgment becomes illusory. (Corona v. CA, ,343 SCRA 512) 

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.  CA, 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. PTA,341 SCRA 90)

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 Inc. vs. NLRC, 200 SCRA 246) 

If the provision  that aims to delay in execution will be included, the proposed  Magna Carta   becomes a tool of oppression and inequity to the prejudice of  the seafarer.

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.). 

 (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)

Unconstitutionality of escrow provision in the Magna Carta

The escrow provision in the proposed Magna Carta for Filipino seafarers violates the constitutional guarantee on equal protection.

The Joint  Manning Group  is pushing for the inclusion of an escrow provision  which is a mere dilatory tactic in the execution of the seafarers’ monetary awards.

The provision in essence 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 National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB).  

The manning agencies echoed ANGKLA’s rationale for an earlier Bill to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment award.

 There is an invalid classification that runs counter to  the Constitutional provision  which  provides that “no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” ( Article II, Section 1)

 The guarantee of this constitutional right of equal protection shall mean that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed

Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending. (Executive Secretary v. Court of Appeals, G.R. No. 131719, May 25, 2004)

The Supreme Court elucidated upon the concept of equal protection of the laws in the caseof Nuñez v. Sandiganbayan, (197 Phil. 407 [1982]):

"xxx that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.”

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary.

To be valid, it must conform to the following requirements :  (1) It must be based on substantial distinctions; (2) It must be germane to the purposes of the law; (3) It must not be limited to existing conditions only and (4) It must apply equally to all members of the class.(People v. Cayat, G.R. No. L-45987, May 5, 1939),

If passed into law with said provision, the Magna Carta will partake of the nature of class legislation because it  singles out seafarer claims from other labor claims, both local and overseas.

The requirement that classification must be based on substantial distinctions has not been complied with.  There lies no substantial distinction between the claims a seafarer and any other laborers.

The provision makes a rash generalization that cases filed by lawyers in the seafaring practice are merely after financial gain, and not to protect the seafarer’s rights, all based on an unsubstantiated and likewise unfair generalization to the effect that all lawyers in the seafaring practice are ambulance chasers.

In the same vein, the provision should highlight the fact that the act of ambulance chasing transcends other fields of practice, and is not solely found in the seafaring practice.

          The provision is unduly oppressive, unreasonable, and is repugnant to the Constitution. It undermines the mandate of the Constitution to protect the rights of overseas workers and to promote their welfare when it deprive such seafarers an avenue to receive the fruits of his legal battle. 

The proposed legislation is the reverse of the constitutional mandate and the declared policies of RA No. 8042, as amended by R.A. 100022 as  it unreasonably downplays the seafarers' rights guaranteed by the constitution instead of protecting the rights and promoting their  welfare. 

In what appears to be a virtuous objective of protecting Filipino seafarers, the inclusion of said escrow provision will go beyond such benevolent objective at the expense of curtailing their rights. 

(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)

Aurora and the maritime tragedies in the Philippines

The film Aurora  won as 2nd best picture, best cinematography, best in visual effects,  best sound, best child performer for Phoebe Villamor in the   2018 Metro Manila Film Festival.

Anne Curtis is cast as Leana, a young woman who owns a small inn beside a gloomy beach. Visible from the shoreline is a passenger ship, named Aurora, that crashed onto sharp rocks weeks ago. Many aboard the ship were killed in this accident, and most of their bodies have not yet been recovered. Leana hopes to recover these bodies, not only for her peace of mind but also because a cash reward is waiting for her for every corpse that she finds ashore. Before long, Leana starts seeing apparitions of the dead around her inn

The film is lifted from the stories of ferry accidents in the Philippines, an archipelago of 7,100 islands with a notoriously poor record for maritime safety.

            Two years ago, a Christmas maritime tragedy occurred  involving the sinking of  the M/V Starlite Atlantic last  December 26, 2016  off Tingloy, Batangas at the height of typhoon Nina. 

The M/V Starlite Atlantic had been pushed by strong winds into the shallow waters and ran upon the rocks. Sustaining multiple hull breaches the ro-ro suffered uncontrolled water ingress. Unable to maintain stability, the  M/V  Starlite Atlatnic capsized a short time later.

The M/V starlite Atlantic is a roll-on, roll-off ship (Ro-Ro) built in 1975. The ship, which sank at around 11 in the morning at the height of typhoon Nina had 33 people on board but only 14 were rescued while a lone fatali­ty identified as 21-year-old Lyka Banayal was recorded.

Out of the 18 crewmen remained missing,  11 were student-cadets taking their on-the-job training on-board the ill-fated ship.

18 persons remain missing, namely Susan Lacastales, Mark Manalo, Kenneth Jones Banguiso, Elberto Dela Cruz, Gerald Dennis Sab, Adolfo Manalo, Ronmark Hidal­go, Mark Anthony Gomez, Jaspher Andozo, Ronnyl Gargar, Joeven Cabrera, No­canor Calvez, Mochael Von­cent Vargas, Lester Vincent Quillan, Oscar Torregoza, Gaudencio Forcado and Jas­per Aguilar.

The Christ­mas tragedy is not an isolated incident. It was just a repeat of previous terrible sinkings in the country’s storm tossed seas.

The dead­liest maritime disaster in Philippine history, the sink­ing of the MV Doña Paz on Dec. 20, 1987 near Oriental Mindoro, where more than 4,300 passengers died.

On December 20, 1987, at 6:30 a.m.,  MV Doña Paz left from Tacloban City, Leyte, for the City of Manila, with a stopover at Catbalogan City, Samar. On December 20, 1987, at 10:30 p.m., the passenger vessel collided with a motor tanker, MT Vector, near Dumali Point between the provinces of Marinduque and Oriental Mindoro.

            The vessel's manifest only listed 1,493 passengers and a 53-member crew, but survivor accounts that the vessel was carrying more than 4,000 passengers.  The documented death reached  4,341The incident was the worst peacetime disaster and the worst in the 20th century, and the vessel was even named the Asia's Titanic.

 In 2008, MV Princess of the Stars capsized off Rom­blon amid the onslaught of Typhoon Frank, with only 48 survivors out of its 862 pas­sengers.

Often,  the government are called upon to ensure that all rules and regulations related to maritime safety should be implemented or enforced.

Unfortunately, the main problem really is that most shipping compa­nies disregard rules on mari­time and passenger safety be­cause they can easily get away with it .

Industry experts  say most of the vessels that serve the coun­try’s maritime routes are re­furbished ships from Japan with an average age of 30 to 40 years. These second hand refurbished vessels are $2-3 million cheaper than a brand new one.

As long as the government will not use its iron hands in policing the shipping companies, the maritime tragedies like M/V Dona Paz and M/V Starlite Atlantic will continue to happen.

The film Aurora will always  be a  reminder of the  agony of those left behind.

(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)