Del Rosario & Del Rosario Lawfirm - Philippine Shipping Updates

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., February 23, 2017 (Issue 2017/03)

Supreme Court affirms disability assessment issued by the company-designated physician; upholds POEA contract provision which specifies that disability not based on number of days of treatment but by disability grading

The seafarer was engaged as Cook. During his employment, he felt severe pain in his right wrist and forearm while lifting a heavy load of meat. He was then repatriated for medical treatment. Upon repatriation, the company referred the seafarer to their designated physician where he was diagnosed with Flexor Carpi Radialis Tendinitis, Right; Sprain, Right thumb; Extensor Carpi Ulnaris Tendinitis, Right. After 102 days of treatment, the company-designated physician issued a final medical report assessing the seafarer with a permanent and partial disability of grade “11” based on the POEA Contract. Not satisfied with the assessment of the company-designated doctor, the seafarer obtained a second medical opinion from his chosen doctor who assessed him with a grade “10” disability. On this basis, the seafarer demanded payment of full disability benefits when he initiated arbitration proceedings with the National Conciliation and Mediation Board (NCMB) on the ground that he was not able to return to work for more than 120 days.

The appointed voluntary arbitrators (VA) of the parties ruled that seaman is entitled to full disability benefits of US$60,000 as he was unable to work for more than 120 days. Such ruling was sustained by the Court of Appeals (CA). The company petitioned the Supreme Court which overruled the NCMB voluntary arbitrators and the Court of Appeals by dismissing the claim.

Seafarer assessed with a final disability assessment within 120 days; POEA Contract specifies that disability not based on number of days of treatment but by disability grading

The Court noted that the VA and the CA's award of permanent and total disability benefits in seafarer's favor was heavily anchored on his failure to obtain any gainful employment for more than 120 days after his medical repatriation.

Moreover, it bears noting that as per respondent's contract with the company, his employment is covered by the 2010 POEA-SEC. It is well settled that the POEA-SEC is the law between the parties and, as such, its provisions bind both of them. Under Section 20 (A) (6) of the 2010 POEA SEC, the determination of the proper disability benefits to be given to a seafarer shall depend on the grading system provided by Section 32 of the said contract, regardless of the actual number of days that the seafarer underwent treatment.

The Court noted that the company-designated physician examined, diagnosed, and treated seafarer from his repatriation on until he was assessed with a Grade 11 disability rating 102 days after. On the other hand, seafarer’s chosen physician only examined him sparingly on a single consultation. As such, the assessment of the company-designated physician is more credible for having been arrived at after months of medical attendance and diagnosis, compared with the assessment of a private physician done in one day on the basis of an examination or existing medical records. As such, seafarer should only be entitled to the equivalent of grade “11” which is US$7,465.

Jebsens Maritime, Inc., Sea Chefs Ltd. and Enrique Aboitiz vs. Florvin Rapiz, G.R. No. 218871, January 11, 2017; First Division, Associate Justice Estela Perlas-Bernabe, ponente (Attys. Charles Dela Cruz and Ralph Villamor of DelRosario & Del Rosario handled for vessels interests)

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Twitter ID: delrosariopandi Facebook Page: DelRosarioLaw

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends. To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., March 14, 2017 (Issue 2017/04)

In this issue:

Supreme Court holds that mere number of years under contract does not automatically mean that medical condition was brought about by employment
Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee

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Supreme Court holds that mere number of years under contract does not automatically mean that medical condition was brought about by employment

The seafarer was engaged by the company for 22 years under different employment contracts. His last employment was as Third Mate which he completed and eventually repatriated. For 22 years, there was no account of any ailment he had contracted.

Prior to his next deployment, the seafarer underwent pre-employment examination (PEME). Noticing that seafarer dragged his right leg, the PEME doctor referred him to a neurologist for consultation and clearance. However, seafarer did not attend such consultation.

Two years after, the seafarer demanded payment for disability benefits and filed a complaint with the NLRC. He alleged that during his last employment, he felt something wrong with his body and that he experienced abdominal pain and saw blood in his stool. He also claimed that after repatriation, he underwent a series of medical check-ups with his private doctors, which revealed that he was suffering from L5-S 1 radiculopathy.

The Labor Arbiter awarded the seafarer with full disability benefits of US$60,000 which was affirmed by the NLRC and the Court of Appeals. The appellate court even pronounced that the causative circumstances leading to seafarer's permanent disability must have transpired during the 22 years of his employment.

The company petitioned the Supreme Court which was granted and the claim was dismissed.

Seafarer reneged on his obligation to submit himself to a post-employment medical examination within 3 days

The Court noted that there was no dispute on the fact that seafarer failed to submit to a post- employment medical examination by a company-designated physician within 3 working days from disembarkation. The Labor Arbiter, the NLRC, and the appellate court excused the seafarer from complying with this requirement, reasoning that he had not been medically repatriated.

This excuse does not hold water. In the past, we have consistently held that the three-day rule must be observed by all those claiming disability benefits, including seafarers who disembarked upon the completion of contract. The rationale for the rule is that reporting the illness or injury within 3 days from repatriation fairly makes it easier for a physician to determine the cause of the illness or injury. Ascertaining the real cause of the illness or injury beyond the period may prove difficult. To ignore the rule might set a precedent with negative repercussions, like opening floodgates to a limitless number of seafarers claiming disability benefits, or causing unfairness to the employer who would have difficulty determining the cause of a claimant's illness because of the passage of time. The employer would then have no protection against unrelated disability claims

No proof that seafarer suffered his condition during the term of his employment and is work-related

Claimants for disability benefits must first discharge the burden of proving, with substantial evidence, that their ailment was acquired during the term of their contract. They must show that they experienced health problems while at sea, the circumstances under which they developed the illness, as well as the symptoms associate with it.

In this case, seafarer did not produce sufficient proof that he experienced his injury or its symptoms during the term of his contract. What the seafarer submitted were medical reports which were all dated well past his disembarkation from the vessel. None of the medical reports prove the symptoms of radiculopathy he alleged to have experienced during the term of his contract. In contrast, the company submitted a Checklist/Interview Sheet for Disembarked Crew indicating that seafarer had no medical check-up in foreign ports; did not report any illness or injury to the master of the vessel or the ship doctor; and did not request a post-medical examination after disembarkation. Also, based on the records, there is no documentation that seafarer had bouts of sickness, injury, or illness associated with radiculopathy in his 22 years of employment. Hence, based on the evidence, it cannot be reasonably concluded that seafarer contracted radiculopathy during the term of his contract.

Seafarer assessed with a final disability assessment within 120 days; POEA Contract specifies that disability not based on number of days of treatment but by disability grading

The Court noted that the NLRC and the CA's award of permanent and total disability benefits in seafarer's favor was heavily anchored on his failure to obtain any gainful employment for more than 120 days after his medical repatriation.

Here, records reveal that 102 days from repatriation, the company-designated physician had already given his final assessment on seafarer when he diagnosed the latter with "Flexor Carpi Radialis Tendinitis, Right; Sprain, Right thumb; Extensor Carpi Ulnaris Tendinitis, Right" and gave a final disability rating of "Grade 11" pursuant to the disability grading provided in the 2010 POEA-SEC. In view of the final disability rating made by the company-designated physician classifying seafarer's disability as merely permanent and partial - which was not refuted by seafarer’s physician except that seafarer's condition was classified as a Grade 10 disability - it is plain error to award permanent and total disability benefits to seafarer.

Moreover, it bears noting that as per respondent's contract with the company, his employment is covered by the 2010 POEA-SEC. It is well settled that the POEA-SEC is the law between the parties and, as such, its provisions bind both of them. Under Section 20 (A) (6) of the 2010 POEASEC, the determination of the proper disability benefits to be given to a seafarer shall depend on the grading system provided by Section 32 of the said contract, regardless of the actual number of days that the seafarer underwent treatment.

In this case, seafarer's disability was already determined as only permanent and partial, in view of its classification as Grade 11 by the company-designated physician and Grade 10 by his chosen physician. As such, the award of full disability benefits in favor of respondent clearly has no basis and, consequently, must be struck down.

Also, the seafarer failed to show work-relation of his medical condition. He merely alleged that in his last stint as a Third Mate, he was a watchstander. His job entailed that he was responsible to the captain for keeping the ship, its crew, and its cargo safe for eight hours a day. Still, he did not particularize the laborious conditions of his work that would cause his condition.

The appellate court mentioned that seafarer was consistently engaged in stressful physical labor throughout his 22 years of employment. But it did not define these purported stressful physical activities, nor did it point to any piece of evidence detailing his work.

Number of years of employment does not automatically mean that condition was brought about by employment

For the Labor Arbiter, the NLRC and the Court of Appeals, they ruled that whatever causative circumstances led to his permanent disability must have transpired during his 22 years of employment.

This reasoning was debunked by the Supreme Court as such blanket speculation alone will not rise to the level of substantial evidence. While the degree of determining whether the illness is work-related requires only probability, the conclusions of the courts must be still be based on real, and not just apparent, evidence. The tribunals should have gone beyond their inferences. They should have determined the duties of the seafarer and the nature of his injury, so that they could validly draw a conclusion that he labored under conditions that would cause his purported permanent and total disability.

Scanmar Maritime Services, Inc., Crown Shipmanagement Inc. and Victorio Esta vs. Wilfredo De Leon, G.R. No. 199977,January 25, 2017; First Division, Chief Justice Lourdes Sereno, ponente (Attys. Herbert Tria and Maricris Ferrer of DelRosario & DelRosario handled for vessels interests)

Update: Zambales / Provincial Coast Watch Environmental Monitoring Use Fee

Update to Philippine Shipping Update Issue 2015/24, December 19, 2015
As an update, the Province of Zambales has issued Ordinance No. 2016-68 dated 14 November 2016 revising Ordinance No. 28 Series of 2015 which mandated the collection of a “Provincial Coastwatch Environmental Monitoring System User Fee” for vessels passing through the territorial waters of or docking at any port in the Province of Zambales, Philippines. In the revised ordinance, the Province of Zambales imposed an environmental fee on vessels that “pollute the Provincial waters of Zambales.” The Province of Zambales invoked the IALA’s User Pay Services Scheme and the Polluter Pays Principal as justification for the imposition of this environmental fee. Beginning February 2017, vessels that passed through the “Provincial Territorial Waters” (defined in the ordinance as belt of coastal waters extending from 15 km. to 100 km. from the baseline) have received billings for this environmental fee.
Several legal issues were raised against the original ordinance. On 6 October 2015, the Department of Interior and Local Government (DILG) issued a letter to the Governor of the Province of Zambales regarding the collection of Coastal Watch Charges. The DILG's position is that the Province of Zambales, through the enactment of this ordinance, usurped the functions of the Philippine Coast Guard (PCG) to implement a vessel traffic services (VTS) system. The DILG also opined that the ordinance violates Art. 26 of the United Nations Convention on the Law of the Seas (UNCLOS) that allows charges only if there are specific services rendered to foreign vessels passing through the territorial waters of the coastal state. The Maritime Industry Authority (MARINA) issued a similar 16 February 2016 letter/opinion sharing our Law Firm’s view that the ordinance violates the UNCLOS and its letter, the MARINA stated a strong objection to the ordinance’s implementation. The Department of Justice (DOJ) also issued a 7 March 2016 letter/opinion which basically adopted the industry’s position that the ordinance’s imposition of charges violates the freedom of navigation provided under the UNCLOS.
The revised ordinance has not fully addressed the legal issues/objections raised by the industry as adopted/mentioned in the opinions of the DILG, MARINA and DOJ. Basically, it may still be argued that the imposition of the environmental fee under the revised ordinance still violates the freedom of navigation under the UNCLOS as fees are collected even if the Province of Zambales has not rendered “specific services” to the concerned vessels. The revised ordinance may also be challenged on the ground that fees are collected even if there is no proof that the concerned vessels has caused any pollution to the territorial waters of the Province of Zambales.
Once again, we are taking up the issue of the revised ordinance’s validity to the concerned government agencies. It is our position that concerned parties may invoke the DILG, MARINA and DOJ opinions to challenge the revised ordinance. In the meantime, we have again advised ship owners/operators who receive a billing statement to reply that the legality of the ordinance is being reviewed and in the meantime, it is strongly urged that any payment be deferred.

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2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

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Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., March 20, 2017 (Issue 2017/05)

In this issue:

Supreme Court rules claim premature as filed prior to final assessment by the company designated physician
Change in OWWA Membership Fees

Firm News
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Supreme Court rules claim premature as filed prior to final assessment by the company designated physician

The seafarer was engaged as Chief Officer. During his employment, he experienced abdominal pains and was initially diagnosed with “Esophago-Gastritis-Duodenitis” by the shore doctor. He was then recommended for repatriation. While waiting for his return flight schedule, seafarer again experienced abdominal pains and had to seek medical consultation on his own. Eventually, seafarer was repatriated and referred to the company-designated physician for examination and treatment. Initial tests showed normal upper gastro-intestinal endoscopy and negative H. pylori test. Seafarer was recommended to undergo further examinations which however were not administered. About two months after his repatriation and while undergoing examination and treatment, seafarer filed with the Labor Arbiter a complaint seeking for payment of disability benefits, reimbursement of medical expenses, damages and attorney’s fees.

The Labor Arbiter dismissed the complaint on the ground that the illness was not shown to be work-related. On appeal, the NLRC sustained the dismissal of the claim for disability benefits but granted the claim for reimbursement of medical expenses when the seafarer sought medical consultation abroad.

On the other hand, the Court of Appeals awarded full disability compensation, sick wages, reimbursement of medical expenses, damages and attorney’s fees. The appellate court held that the illness was considered work-related as it was suffered during employment. Also, the seafarer was declared permanently and totally disabled as he was unable to perform his customary job for more than 120 days.

The company petitioned the Supreme Court which was granted and the NLRC decision was reinstated.

The Court held that the claim was premature and at the time it was filed, the seafarer had no cause of action against his employers.

While the fact that seafarer suffered the disability during the term of his contract was undisputed, it was evident that he had filed his complaint for disability benefits before the company-designated physician could determine the nature and extent of his disability, or even before the lapse of the initial 120-day period. With the seafarer still undergoing further tests, the company-designated physician had no occasion to determine the nature and extent of his disability upon which to base seafarer's "fit to work" certification or disability grading. Consequently, seafarer had no cause of action for disability benefits and sickness allowance at the time of the filing of his complaint.

Status Maritime Corporation and Admibros Shipmanagement Co., Ltd. vs. Rodrigo Doctolero, G.R. No. 198968,January 18, 2017; Third Division, Associate Justice Lucas Bersamin, ponente

Change in OWWA Membersip Fee

The Overseas Workers Welfare Administration (OWWA) will now be adopting a different scheme in the payment of OWWA membership fees for seafarers.

Previously, the US$25 membership fee of a seafarer is paid as follows: US$15 by the employer and US$10 by the seafarer. This fee is paid on a per contract basis. Now, the US$25 fee will be paid solely by the employer which is good for 2 years and no longer on a per contract basis. The OWWA is yet to finalize the implementing guidelines for this to take effect.

Firm News

DelRosario Law Partners Herbert Tria and Catherine Mangahas-Soliven together with DelRosario-Pandiphil’s Veronica Del Rosario-Aguinaldo visited Miami-based cruise companies last 13 – 15 February 2017. They visited Royal Caribbean Cruise Lines, Carnival Cruise Lines and Norwegian Cruise Lines and discussed the latest developments and trends in Filipino crew claims.

DelRosario Law Partners Charles Dela Cruz and Florencio Aquino visited the offices of all the P&I Clubs in Singapore and NYK Shipmanagement last 6 – 9 March 2016. They likewise kept the Clubs abreast of the latest developments regarding Filipino crew claims and had interactive discussions.

Our sincerest thanks to our friends from RCCL, CCL and NCL in Miami and the Singapore offices of Gard, Japan P&I, North of England, Shipowners, Skuld, Standard, Steamship, UKPI and NYKSM for the fruitful discussions and warm reception during our visit. See you all again soon!

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2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

Twitter ID: delrosariopandi Facebook Page: DelRosarioLaw

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends. To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., April 4, 2017 (Issue 2017/06)

In this issue:

Supreme Court invalidates opinion of third doctor as not definite and conclusive; seafarer was awarded full disability benefits as unable to work for more than 240 days

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee

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Supreme Court invalidates opinion of third doctor as not definite and conclusive; seafarer was awarded full disability benefits as unable to work for more than 240 days

During employment, the seafarer suffered a fracture to his right femur because of a hard fall. Upon his repatriation, he was referred to the company-designated doctor for examination and treatment. After 92 days of treatment, the company-designated doctor assessed the seafarer’s disability at grade “10”. On this basis, the company offered to him the amount corresponding to the grade “10” disability. Not satisfied, the seafarer sought the opinion of his personal doctor who assessed him with a grade “3” disability. On this basis, he claimed maximum disability benefits on the argument of inability to return to work.

The seafarer filed a claim with the Labor Arbiter and while the case was pending, the parties agreed to appoint a doctor who will issue a third medical opinion. The third doctor issued an opinion stating that seafarer is suffering from a grade “9” disability but in addition, stated that seafarer is “not yet fit to work and should undergo rehabilitation”.

On the basis of the opinion of the third doctor, the Labor Arbiter rendered a decision awarding to the seafarer disability benefits based on the grade “9” assessment. On appeal, the NLRC held that the seafarer is entitled to full disability benefits as the assessment of the third doctor was issued after 240 days. The Court of Appeals, on the other hand, maintained the decision of the Labor Arbiter and reasoned that the 240 day period to render an assessment is not applicable to the third doctor.

When the case reached the Supreme Court, the NLRC’s award of full disability benefits was reinstated.

The 240 days rule apply only to the assessment of the company-designated doctor and not the third doctor

The provision of the POEA Contract clearly states that it is the company-designated doctor who is given the responsibility to make a conclusive assessment on the degree of seafarer’s disability and his capacity to resume work within 120/240 days. The parties, however, are free to disregard the findings of the company-designated doctor, as well as the chosen doctor of the seafarer, in case they cannot agree on the assessments issued and jointly seek the opinion of a third doctor.

However, the provision of the POEA Contract does not state a specific period within which the third doctor must render his or her disability assessment. This is only reasonable since the parties may opt, at any time, to resort to a third opinion even during the conciliation stages to abbreviate the proceedings and these usually transpire way beyond the 120/240 day period for medical treatment. Thus, the Supreme Court held that the 120/240 day period is applicable only to the company-designated doctor and not the third doctor.

The third doctor’s opinion must be definite and conclusive in order to be binding between the parties

The Court noted that the company and the seafarer are indeed bound by the opinion of the third doctor if they choose to appoint one. However, similar to what is required of the company-designated doctor, the appointed third doctor must likewise arrive at a definite and conclusive assessment of the seafarer’s disability or fitness to work before his opinion can be valid and binding between the parties.

In this case, despite the grade “9” disability assessment issued by the third doctor, seafarer’s medical condition remains unresolved. The third doctor’s opinion would show that the assessment is not yet final considering that further rehabilitation is necessary. As such, it is inconclusive and indefinite and cannot be considered as binding between the parties.

Seafarer entitled to full disability benefits as unable to work for more than 240 days

The Court noted that there is evidence to show that seafarer has remained incapacitated to work for more than 240 days as he was even declared unfit to work by the third doctor. Moreover, the inconclusive assessment of the third doctor and the seafarer’s prolonged disability only served to underscore that the company-designated physician himself failed to render a definitive assessment of seafarer’s disability.

As seafarer was actually unable to work even after the expiration of the 240 day period and there was no final and conclusive disability assessment made by the third doctor on his medical condition, he should be entitled to full disability benefits. It should be remembered that in disability compensation, it is not the injury which is compensated, but rather the incapacity to work resulting in the impairment of one’s earning capacity.

Reynaldo Sunit vs. OSM Maritime Services, Inc. DOF OSM Maritime Services A/S and Capt. Adonis Donato, G.R. No. 223035,February 27, 2017; Third Division, Associate Justice Presbitero Velasco, Jr., ponente (Attys. Florencio Aquino and Richard Sanchez of Del Rosario & Del Rosario handled for vessel’s interests)

Update: Zambales / Provincial Coast Watch Environmental Monitioring System User Fee

The Maritime Industry Authority (MARINA) has issued Advisory No. 2017-09 dated 9 March 2017 reiterating the invalidity of the original Ordinance No. 2015-18 of the Provincial government of Zambales pursuant to the Department of Justice (DOJ) Opinion No. 8 dated 7 March 2016.

However, the original Ordinance No. 2015-18 has been amended by the Provincial Government of Zambales with the issuance of a new Ordinance No. 2016-68 adopted on 14 November 2016 and is the basis of the invoices received this year. We are currently obtaining fresh opinions from the Philippine Coast Guard, the Maritime Industry Authority and other concerned government agencies on the new Ordinance No. 2016-68 and will issue updates in due course.

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2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

Twitter ID: delrosariopandi Facebook Page: DelRosarioLaw

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends. To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., May 4, 2017 (Issue 2017/07)

In this issue:

Supreme Court upholds disability assessment issued by the company-designated physician; rules that disability schedule in POEA Contract should be seriously observed

OWWA membership fee of US$25 now valid for two years regardless of contract duration or change of employer, principal or manning agent

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee; inter-agency group to ask for opinion from the Office of the President
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Supreme Court upholds disability assessment issued by the company-designated physician; rules that disability schedule in POEA Contract should be seriously observed

The seafarer suffered a fracture to his right hand while securing a mooring rope. He was brought to a shore medical facility where his affected hand was placed in a cast and thereafter repatriated.

Upon his repatriation, he was referred to the company-designated doctor for examination and treatment. After 85 days of treatment, the company-designated doctor issued to the seafarer an interim disability assessment of grade “10”. The seafarer, on the 107th day of his treatment, filed a case for disability benefits with the NLRC against the company. Thereafter, the company-designated physician declared the seafarer to have reached maximum medical cure with a grade “10” disability.

More than 2 months after filing the complaint, the seafarer sought the medical opinion of his personal doctor who assessed him to be physically unfit to perform the job of the seaman. On this basis, he anchors his claim for maximum disability benefits. On the other hand, the company maintains that the seafarer should only be entitled to US$10,075 based on the grade “10” disability assessment of the company-designated physician.

The Labor Arbiter, the NLRC and the Court of Appeals all found for the seafarer and awarded him maximum disability benefits. They argued that since the seafarer was unable to work for more than 120 days, and that the medical opinion of seafarer’s personal doctor that he was unfit to work was credible.

When the case reached the Supreme Court, the award of disability benefits was modified to US$10,075 based on the grade “10” assessment of the company-designated physician.

The complaint has no cause of action and was prematurely filed

The Court again explained the manner by which the 120/240 day rule works. For the duration of the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course also be declared fit to work at any time such declaration is justified by his medical condition.

The Court noted that upon seafarer’s repatriation, he was given extensive medical attention by the company-designated physician. Thereafter, an interim assessment of Grade 10 was given by the company-designated physician as seafarer was still undergoing further treatment and physical therapy. However, 107 days after repatriation, seafarer filed a complaint for total and permanent disability benefits. During this time, he was considered under temporary total disability inasmuch as the 120/240-day period had not yet lapsed when the complaint was filed. Evidently, the complaint was prematurely filed.

Moreover, it is significant to note that when the seafarer filed his complaint, he was armed only with the interim medical assessment of the company-designated physician and his belief that his injury had already rendered him permanently disabled. It was only after the filing of such complaint that he sought the opinion of his own physician.

As such, the complaint should have been dismissed at the first instance or lack of cause of action.

The company-designated doctor’s opinion should prevail

The POEA-SEC clearly provides that when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work shall be determined by the company-designated physician. However, if the doctor appointed by the seafarer makes a finding contrary to that of the assessment of the company-designated physician, a third doctor may be agreed jointly between the employer and the seafarer and the latter's decision shall be final and binding on both of them. The Court has held that non-observance of the requirement to have the conflicting assessments determined by a third doctor would mean that the assessment of the company-designated physician prevails.

In the absence of a third and binding opinion, the Court was left with no option but to hold the assessment of the company-designated doctor of seafarer's disability final and binding.

The Court further added that at any rate, more weight should be given to this assessment as the company-designated physician was able to closely monitor seafarer’s condition from the time he was repatriated until the issuance of the final medical assessment. The extensive medical attention given by the company-designated doctor enabled him to acquire a detailed knowledge of seafarer’s medical condition. Under the supervision of the company-designated physician, seafarer underwent surgery and physical therapy. On the basis of the medical records and the results obtained from the medical treatment, said doctor arrived at a definite assessment of seafarer's condition. Having extensively monitored and treated seafarer's injury, the company-designated physician’s diagnosis deserves more weight than seafarer's own doctor.

Schedule of Disability under the POEA Contract should be respected

In closing the Court held that Section 32 of the POEA-SEC provides for a schedule of disability compensation which is often ignored or overlooked in maritime compensation cases. Section 32 laid down a Schedule of Disability or Impediment for Injuries Suffered and Diseases including Occupational Diseases or Illness Contracted which provides that in case of a permanent total or partial disability, the seafarer shall be compensated in accordance with Section 32. Section 32 further declares that any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability. Therefore, any other grading constitutes otherwise. It should be stressed that it is about time that the schedule of disability compensation under Section 32 be seriously observed.

TSM Shipping Phils., Inc. and/or Dampskibsselskabet Norde A/S and/or Capt. Castillo vs. Louie Patino, G.R. No. 210289,March 20, 2017; First Division, Associate Justice Mariano Del Castillo, ponente (Attys. Charles Dela Cruz and Jerome Pampolina of Del Rosario & Del Rosario handled for vessels interests)

OWWA membership fee of US$25 now valid for two years regardless of contract duration or change of employer, principal or manning agent

The Implementing Rules and Regulations (IRR) of the Overseas Workers Welfare Administration Act has now been issued.

As stated in our previous update, a salient provision of the IRR is that OWWA membership contribution of US$25 is now valid for two (2) years regardless of contract duration, change of employer or principal or recruitment/manning agency. Previously, the contribution of US$25 was valid for 2 years or upon expiration of contract, whichever comes first.

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee; inter-agency group to ask for opinion from the Office of the President

The Maritime and Ocean Affairs Office (MOAO) of the Department of Foreign Affairs called for an inter-agency meeting last 7 April 2017 to discuss the Zambales Ordinance which imposes “environmental charges” to all vessels that enter the “territorial waters’ of the province of Zambales. Present in the meeting were representatives from the Office of the President, Department of Interior and Local Government and the Philippines’ Permanent Representative to the International Maritime Organization. Del Rosario & Del Rosario was likewise invited to the inter-agency meeting.

MOAO’s position is that the Ordinance is not consistent with Article 26 of the UNCLOS which prohibits the imposition of the “environmental fees”. In collecting said fees, the ordinance may be seen as a “disguised toll” on passage since it in effect places a restraint on the exercise of innocent passage in the territorial sea (including the freedom of navigation in the exclusive economic zone), a situation which Article 26 precisely aims to pre-empt. We have seconded this observation of the MOAO.

However, MOAO notes that the Province of Zambales may implement the Ordinance unless and until a court orders the suspension of such action pending the determination of its legality.

We advised all concerned that we have formally informed MARINA, the Department of Justice and the Philippine Coast Guard regarding the revised Ordinance of Zambales and have sought their position on the same.

It was agreed in the meeting that a formal opinion must be sought from the Office of the President as well as through the Office of the Deputy Executive Secretary for Legal Affairs regarding the legality of the said Ordinance.

We shall report updates in future issues.

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2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Twitter ID: delrosariopandi Facebook Page: DelRosarioLaw

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends. To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., May 11, 2017 (Issue 2017/08)

In this issue:

Supreme Court upholds disability benefits based on Parkinson’s Disease

Firm News: Saben Loyola named partner of DelRosarioLaw

Other Firm News

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Supreme Court upholds disability benefits based on Parkinson’s disease

Seafarer was hired by the company as Team Headwaiter. Seafarer alleged that he assumed his duties for two years during which he averaged ten to twelve hours of work daily. On certain occasions, seafarer was also assigned as a "fire watch" while the vessel was repaired or dry-docked, exposing himself to extreme heat from welding works and unusual amount of toxic fumes from alcohol and thinner mixed with paint to be used after welding.

While on board the vessel, seafarer experienced uncontrollable blinking, shaking and difficulty in speaking and breathing for three weeks. Seafarer was referred to a shore medical facility and eventually, was repatriated due to the severity of his condition. Upon arrival in the Philippines, he was referred to the company-designated physician for treatment and when his condition did not improve, he sought treatment from his own doctor who diagnosed his illness as Parkinson's Disease; hypertensive atherosclerotic cardiovascular disease and declared him unfit for duty in whatever capacity as a seaman.

The employer acknowledged that seafarer was diagnosed with Parkinson's Disease and that he underwent several medical treatments and examinations. However, his claim for disability benefits was denied as his condition was determined to be unrelated to his work.

The seafarer then filed a complaint for disability benefits with the Labor Arbiter. The Labor Arbiter ruled in favor of the seafarer and held that with the uncertainty of the origin of the disease, it cannot be discounted that the work of the seafarer contributed even to a small degree to its progression. Thus, an award of dull disability benefits was issued. Such decision was upheld by the NLRC on appeal.

Upon petition with the Court of Appeals, the decisions of the Labor Arbiter and the NLRC were reversed. The Court of Appeals held that Parkinson’s Disease is not a listed occupational disease and it was imperative for the seafarer to establish causal connection between his work and the illness.

Upon further review, the Supreme Court upheld the claim for disability benefits.

The Court held that the POEA-SEC defines a work-related injury as "injury(ies) resulting in disability or death arising out of and in the course of employment," and a work-related illness as "any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied." For illnesses not mentioned under Section 32, the POEA-SEC creates a disputable presumption in favor of the seafarer that these illnesses are work-related. Notwithstanding the presumption, the Court have held that on due process grounds, the claimant-seafarer must still prove by substantial evidence that his work conditions caused or, at least, increased the risk of contracting the disease. This is because awards of compensation cannot rest entirely on bare assertions and presumptions. In order to establish compensability of a non-occupational disease, reasonable proof of work-connection is sufficient-direct causal relation is not required. Thus, probability, not the ultimate degree of certainty, is the test of proof in compensation proceedings.

The Supreme Court held that the seafarer was able to meet the required degree of proof that his illness is compensable as it is work-connected. Citing the NLRC, the Court noted that as Team Waiter and as a seaman, complainant was prone to smoking and to a bit of drinking to beat the cold weather they encounter in the high seas. Further, as seaman, he, by the very nature of his work, cannot just leave his post and duty just to discharge his urine. In multiple system atrophy, the most common first sign of MSA is the appearance of an akenetic rigid syndrome. Other common signs at onset include problems with balance (cerebellar ataxia), followed by genito-urinary problems. Both men and women often experience problems with their bladders including urgency, frequency, incomplete bladder emptying or an inability to pass urine (reduction).

By the very nature of seafarer’s work, therefore, where there is incomplete bladder emptying or inability to pass urine, has likewise contributed to his present medical ailment.

The Court further added that working on any vessel, whether it be a cruise ship or not, can still expose any employee to harsh conditions. In this case, aside from the usual conditions experienced by seafarers, such as the harsh conditions of the sea, long hours of work, stress brought about by being away from their families, petitioner, a team head waiter, also performed the duties of a "fire watch" and assigned to welding works, all of which contributed to seafarer's stress, fatigue and extreme exhaustion. To presume, therefore, that employees of a cruise ship do not experience the usual perils encountered by those working on a different vessel is utterly wrong.

Lamberto De Leon vs. Maunlad Trans, Inc., Seachest Associates, et.al., G.R. No. 215293, February 8, 2017; Second Division, Associate Justice Diosdado Peralta, ponente (Our Attys. Catherine Mangahas and Cresta Macalalad of DelRosarioLaw handled for vessel interests)

Firm News – Saben Loyola named Partner of DelRosarioLaw

The firm proudly announces the promotion of Saben Loyola as a Partner of Del Rosario & Del Rosario Law Offices.

Saben is a graduate of Bachelor of Arts in Development Studies and Bachelor of Science in Marketing Management from De La Salle University, Manila. He took his Bachelor of Laws from San Beda College of Law, Mendiola, Manila (valedictorian and cum laude) and placed third in the 2003 bar exams. Saben joined the Firm in July 2005 and his areas of expertise include general corporate law, mergers and acquisition, labor law and transportation litigation.

Our congratulations to Saben!

Other Firm News

DelRosarioLaw Partner Charles Dela Cruz was the Conference Chairman at the “Employment Law for HR Professionals, Masterclass 2017” held in Makati City on 3 May 2017.

The conference was organized by Key Media and attended by close to 100 top-level Human Resource and Legal practitioners across various industries. It covered legal/ operational challenges and opportunities in the context of the workplace.

DelRosarioLaw Partner Denise Luis B. Cabanos, was a speaker at Bocimar Fleet Officers’ Seminar in coordination with Anglo-Eastern Crew Management Phil., Inc. last 27 – 28 April 2017. Denise discussed claims against Common Carriers due to cargo damage.

Many thanks for the invitation and look forward to meeting you all again.

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2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

Twitter ID: delrosariopandi Facebook Page: DelRosarioLaw

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends. To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., May 24, 2017 (Issue 2017/09)

Supreme Court denies claim for benefits as seafarer failed to prove work-relation of laryngeal cancer

Seafarer was engaged as an engineer on-board the vessel. Less than three months into his employment, he felt pain in his throat and took medications. He requested for medical referral but this was denied. He then continued to experience difficulty in swallowing and breathing with worsening pain. Seafarer allegedly forced the Master to provide him medical referral due to his worsening condition. Thereafter, he was brought to a local clinic where he was just provided medications. As the symptoms continued, the seafarer was disembarked at the next port for repatriation.

The seafarer was then seen by the company-designated doctor who advised procedures to be conducted due to suspected laryngeal cancer. Seafarer alleged that the company-designated physician refused to accord him the proper medical attention if he would not pay for the procedures.   The seafarer then consulted his own doctor who diagnosed him with “laryngeal mass probably malignant”. Seafarer underwent surgery and other procedures with his doctor who ultimately declared him unfit to work.

Armed with said medical certificate, the seafarer filed a claim for disability benefits with the Labor Arbiter arguing that his working conditions brought about his illness. The company denied the claim as cancer of the larynx is not an occupational disease/work-related.   They further argued that the seafarer had a history of being a heavy smoker and drinker. In the interim, the seafarer died due to his illness.

The Labor Arbiter denied the claim and ruled that the illness is not work-related as seafarer was only on-board the vessel for three months.   Likewise, the Labor Arbiter did not believe that the working conditions of the seafarer caused the illness. The NLRC also upheld such ruling.

With the Court of Appeals, the claim was likewise denied.

Upon further appeal by both parties, the Supreme Court, among other issues, sustained the denial of benefits.

The Court held that a worker brings with him possible infirmities in the course of his employment, and while the employer does not insure the health of the employees, he takes the employee as found and assumes the risk of liability. However, claimants in compensation proceedings must show credible information that there is probably a relation between the illness and the work. They cannot rely on the fact that the employer's designated physician had declared the employee fit pursuant to the pre-employment medical examination (PEME), since the PEME cannot be conclusive proof that the seafarer was free from any ailment – and specifically for cancer - prior to his deployment.

Cancer is an especially difficult illness to predict. Despite increased knowledge on risk factors, its causality is not determinable with any degree of certainty.

In some cases, there is strong evidence linking specific circumstances with specific cancers. In this case, however, there seems to be no clarity. To recall, the cancer from which the seafarer succumbed to was throat or laryngeal cancer and not lung cancer, which is the cancer more commonly associated with heavy cigarette use. In the same vein, there was no definitive proof presented that the engine room of the vessel had unreasonable amounts of carcinogenic chemicals, nor the presence of asbestos dust without proper safety equipment apart from the allegations made by the seafarer. In other words, the evidence lack the substance required to establish the claim.

Jessie Doroteo (Deceased) represented by his sister, Lucida Hermis vs. Philimare Incorporated, Bonifacio Gomez, and/or Fil Cargo Shipping Corp., G.R. No 184917; Philimare Incorporated, Bonifacio Gomez, and/or Fil Cargo Shipping Corp. vs. Jessie Doroteo (Deceased) represented by his sister, Lucida Hermis, G.R. No. 184932, March 13, 2017; First Division, Chief Justice Maria Lourdes Sereno, ponente

POEA issues circular on increased capitalization/paid-up capital of manning agencies

The Philippine Overseas Employment Administration has issued POEA Memorandum Circular No. 03 series of 2017 as guideline for the increase in capitalization / paid-up capital of manning agents. Please note that under the 2016 POEA Revised Rules and Regulations Governing the Recruitment and Employment of Seafarers it was mandated that those manning agents with existing licenses shall within four (4) years from effectivity of the Rules, increase their capitalization or paid-up capital as the case may be to Five Million Pesos (PHP5,000,000.00) at the rate of Seven Hundred Fifty Thousand Pesos every year.

In view of this, the circular directed manning agents to submit the following as proof of compliance for the yearly increase of capitalization/paid-up capital:

For Corporations and Partnerships:

1. Treasurer’s Affidavit on the additional authorized subscribed and paid-up capital stock requirements/ Joint Affidavit of partners on the additional partner’s contribution;
2. Bank certification showing an additional deposit of at least PHP750,000.00 with authority to examine bank account;
3.   Amended Articles of Partnership/incorporation providing for the increase of the authorized/paid up capital to a minimum of PHP5,000,000.00; and
4. Certification issued by the Securities and Exchange Commission on the current paid-up capital of the corporation/partnership showing the increase of at least PHP750,000.00.

For Single Proprietorship

Bank certificate showing a deposit of at least PHP750,000.00 with authority to examine bank account.

Deadline of submission for the first yearly increase for the seabased agencies is on or before September 4, 2017. Agencies are directed to subsequently comply with the yearly increase of Php750,000.00 until the minimum capitalization of P5million is fully completed.

On the other hand, agencies that have fully complied with the required capitalization/paid up capital are directed to submit a Certification issued by the SEC on the present paid-up capital of the corporation/partnership, or the bank certificate, in the case of single proprietorship.

Agencies that fail to comply with the requirement shall be meted with suspension of license in accordance with the POEA Rules.

Firm News

DelRosarioLaw Partner Florencio Aquino and Senior Associate Aldrich Del Rosario conducted a seminar for V.Ships Crew/Pacific Ocean Manning, Inc. last 12 May 2017. They discussed legal issues on crew claims.

DelRosarioLaw Managing Associate Pedrito Faytaren, Jr. was a speaker at the seminar conducted by Virjen Shipping last 11 May 2017. Pedrito discussed the POEA Contract, Seafarer’s Protection Act and other crew claims issues.

Many thanks to all for the kind invitation and looking forward to our next seminars/conferences.

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

Supreme Court denies claim as illness congenital disorder (Cavernoma) and thus, not work-related

Issuance and Renewal of Licenses of Recruitment Agencies for Overseas Employment Now Needs Approval by the Department of Labor and Employment (DOLE)

Department of Labor and Employment (DOLE) Lifts Ban on Deployment of Filipino workers to Qatar

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee; Petition Filed Against Ordinance

Security at sea ports now being handled by the Philippine Coast Guard

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., June 21, 2017 (Issue 2017/10)

Supreme Court denies claim as illness congenital disorder (Cavernoma) and thus, not work-related

The crew was engaged by the company as Security Guard. Prior to his deployment, the crew underwent a Pre-employment Medical Examination (PEME) and was pronounced fit to work. While on board the vessel, the crew suffered from difficulty of breathing and had a brief seizure attack causing him to fall from his bed. He was immediately treated by the ship doctor.

When the ship docked at her next port the crew was brought to a hospital where he was immediately admitted. He was confined at the hospital for almost two weeks. It was found that the crew was suffering from "right parietal hemorrhage" of the brain and was given medications to prevent seizures.

Eventually, the crew was repatriated and was referred to the company-designated doctors for further treatment, evaluation and management. After a series of examinations, the crew was initially diagnosed as suffering from "arterio-venous malformation, right parietal" and was found to have "intracerebral hemorrhage over the superior parietal at right due to small arterio venous malformation or angioma."

The company-designated doctor issued their opinions that the crew was suffering from Cavernoma and the illness is a congenital disorder and not work-related. Another company-designated doctor issued an opinion that the illness is idiopathic in character and is not work-related.

The crew than filed a Complaint for permanent and total disability benefits, damages and attorney's fees. He alleged that he is entitled to maximum disability compensation and further alleged that even after all the examinations, he is still suffering from the illnesses and is disabled up to the present. He likewise presented the medical certificate issued by his personal doctor stating that his illness is work-related.

The Labor Arbiter dismissed the complaint which was affirmed by the NLRC. They held that the illness was proven to be not work-related based on the opinions of the two company designated doctors that it was congenital and idiopathic in etiology.

However, the Court of Appeals sustained the claim of the crew and awarded disability benefits. It held that the certifications of the two company-designated doctors were conflicting. The appellate court noted that one doctor opined that the etiology of the illness is idiopathic which means that the cause is unknown. Since the cause is unknown, then it would be difficult to prove with certainty that it is not work-related. As such, the company was not able to overcome the presumption of work-relation under the POEA Contract.

Upon further petition to the Supreme Court, the claim was again dismissed.

Disputable presumption of work-relation must still be coupled with substantial evidence that illness is work-related

The illness of the crew, cavernoma, is not included in the list of occupational diseases under the POEA Contract. However, the POEA Contract provides that those illnesses not listed are disputably presumed as work-related. While the law recognizes that an illness may be disputably presumed to be work-related, the seafarer or the claimant must still show a reasonable connection between the nature of work on board the vessel and the illness contracted or aggravated. Such disputable presumption does not allow him to just sit down and wait for the company to present evidence to overcome the disputable presumption of work-relatedness of the illness. He still has to substantiate his claim in order to be entitled to disability compensation. He has to prove that the illness he suffered was work-related and that it must have existed during the term of his employment contract. He cannot simply argue that the burden of proving otherwise belongs to company.

Here, assuming that cavernoma is not idiopathic, the crew did not adduce proof to show a reasonable connection between his work as Security Guard and his caverrnoma. There was no showing how the demands and nature of his job vis-a-vis the ship's working conditions increased the risk of contracting cavernoma.

Company-designated doctors vs. Claimants’ personal doctor

The conflicting findings of the company's doctor and the seafarer's physician often stir suits for disability compensation. As an extrajudicial measure of settling their differences, the POEA-SEC gives the parties the option of agreeing jointly on a third doctor whose assessment shall break the impasse and shall be the final and binding diagnosis. In the instant case, the crew did not seek the opinion of a third doctor. Based on jurisprudence, the findings of the company-designated physician prevail in cases where the seafarer did not observe the third-doctor referral provision in the POEA-SEC.

The Court further sustained the findings of the company-designated physicians as they were substantiated by medical tests. The Court noted that the company-designated physicians monitored the crew’s case from the beginning. They were the ones who referred the crew to the proper medical specialists whose medical results are not essentially disputed. The company-designated physicians monitored the crew's case and issued the certifications on the basis of the medical records available and the results obtained. From the time of his repatriation, the crew had been under the care of the company-designated physicians, and the said physicians should be considered to be fully familiar with the illness of the crew.

Moreover, the Court noted that the medical certificate issued by the crew’s personal doctor was not based on results from medical tests and procedures. On the other hand, the company-designated physicians were familiar with the crew's medical history and condition, thus, their medical opinion on whether the illness is work-aggravated/-related deserve more credence as opposed to the unsupported conclusions of the crew’s personal doctor.

PEME meant only to determine fitness to work and not actual medical condition

The crew argued that since he was given a clean bill of health during the PEME, any illness he has now was suffered because of his employment. This argument was shot down by the Court. A PEME is not exploratory in nature and cannot be relied upon to arrive at a seafarer's true state of health. While a PEME may reveal enough for the company to decide whether a seafarer is fit for overseas employment, it may not be relied upon to inform the company of a seafarer's true state of health. The PEME could not have divulged respondent's illness considering that the examinations were not exploratory. For the crew to claim that the issuance of a clean bill of health to a seafarer after a PEME means that his illness was acquired during the seafarers employment is a non sequitur .

C.F. Sharp Crew Management, Inc., Norwegian cruise Line, Ltd. and/or Mr. Juan Jose Rocha v. Rhudel Castillo, G.R. No. 208215, April 19, 2017, Second Division, Associate Justice Diosdado Peralta, Ponente. (Attys. Florencio Aquino and Lovereal Ocampo-Carullo of Del Rosario & Del Rosario handled for vessels interests)

Author’s Note: In Leonis Navigation Co., Inc. vs. Obrero (G.R. No. 192754, September 7, 2016), the Supreme Court clarified that the third doctor procedure does not apply where the issue is the determination of work-relation of an illness. The above case of C.F. Sharp Crew Management, Inc. vs. Castillo appears to be a deviation from said clarification as the Court still used the third doctor procedure as a ground for upholding the findings of the company-designated doctor despite the fact that what was in question was the work-relation of the crew’s illness.

Issuance and Renewal of Licenses of Recruitment Agencies for Overseas Employment Would Now Need Approval by the DOLE

Secretary of Labor, Silvestre Bello III, has recalled a 1998 directive by the Department of Labor and Employment that authorized the POEA Administrator to act on matters governing overseas employment.

In Administrative Order No. 241 Series of 2017, the confirmation of the issuance and renewal of licenses of recruitment agencies and other matters governing overseas employment will now have to pass to the labor secretary for approval.

The said administrative order states that all processed applications on the issuance and renewal of licenses; authorities to engage in the recruitment and placement of workers for overseas employment; the grant of exemption from the ban on direct hiring; and the grant exemptions from the age requirements for overseas workers shall be forwarded to the Office of the Secretary for approval or denial of the applications. Nevertheless, all applications relative to the foregoing shall still be filed with and processed by the POEA in accordance with existing rules and regulations.

The said administrative order was issued to ensure that only the operation of legitimate and responsible recruitment agencies are allowed to safeguard the welfare and security of overseas Filipino workers and their families and to develop and effectively implement programs on the deployment of migrant workers.

DOLE Lifts Ban on Deployment of Filipino Workers to Qatar

Due to the severance of the diplomatic ties by several Middle Eastern nations with Qatar, the Department of Labor and Employment (DOLE) suspended the deployment of all Filipino workers to Doha last 7 June 2017. This move was to assess the situation and the impact that the diplomatic row would have on the nearly 240,000 Filipino workers in Qatar.

The POEA clarified that said ban had no effect on Filipino seafarers as their employment is sea-based. Nevertheless, the deployment ban has been lifted by the DOLE effective 15 June 2017 after re-assessing the situation in the gulf state.

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee; Petition Filed Against Ordinance

A Petition for Declaratory Reief was filed by the Filipino Shipowners Association (FSA) and the Association of International Shipping Lines (AISL) to question the validity of Provincial Ordinance No. 2016-68 issued by the Province of Zambales. The Petition is currently filed with the Regional Trial Court of Manila where summons have now been served on the province and is required to file an answer.

Security at sea ports now being handled by the Philippine Coast Guard

Department of Transportation Secretary Arthur Tugade has transferred security operations in all public and private sea ports in the country to the Philippine Coast Guard. This is in response to possible threats that sea ports may be targets of terror attacks by terrorists/militants, both local and foreign. The Philippine Coast Guard may now cause the arrest and detention of people, cargo and vessels violating Philippine laws and can file the appropriate charges in court.

Port security was previously under the control of the Maritime Industry Authority (MARINA) and Philippine Ports Authority (PPA).

The order took effect 5 June 2017 and will initially remain in effect until 22 July 2017 unless further extended.

The inspections that will be conducted by the Philippine Coast Guard may be cause for some delays in the estimated arrival time of ships.

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., July 21, 2017 (Issue 2017/11)

Supreme Court affirms adherence to the 240 day ruling; cites third doctor rule as ground for denial of benefits

Seafarer, during employment, experienced pricking pains in his left scrotal area. He was referred to a shore medical facility who diagnosed him "to be afflicted with 'Varicocele' and was recommended to undergo surgery upon repatriation.

Upon return to Manila, the seafarer was referred to the company-designated physician who diagnosed him to be suffering from "suspicious varicocele, left." Seafarer underwent operation and was then referred to a urologist for further examination and treatment. Seafarer was assessed with an interim disability of grade “12” by the company-designated physician but was advised to undergo further re-evaluation. However, instead of the seaman seeking re-evaluation, he filed a claim for disability benefits. After filing the complaint, the seafarer sought an opinion from his personal doctor stating that he is already permanently disabled. Less than two weeks from the filing of the complaint, the seafarer returned for re-evaluation to the company-designated doctor and was declared fit to work. The seafarer argues that since no final assessment was issued within 120 days of treatment, he is now considered permanently and totally disabled. The employer suggested for the parties to refer the matter to an agreed third doctor which the seafarer refused.

Both the Labor Arbiter and the NLRC denied the claim. However, the Court of Appeals awarded disability benefits to the seaman and considered him to be permanently and totally disabled as the final assessment issued by the company-designated doctor was issued after the lapse of 120 days or on the 136th day. The appellate court held that the 240 day ruling was not consistently applied by the Supreme Court.

Upon petition before the Supreme Court, the claim was dismissed.

The Supreme Court has consistently adhered to the 240 day ruling

The Supreme Court has reminded that they have consistently adhered to the 240 day ruling. It again reiterated that the Court had already harmonized its various rulings with respect to the periods within which a seafarer may be declared fit or unfit for sea duties for the purposes of his claim for permanent and total disability compensation. To emphasize, the general rule remains to be that — the company-designated physician must declare the seafarer fit for sea duties within a period of 120 days; otherwise, the latter must be declared totally and permanently disabled entitling him to full disability benefits. It is only when there is sufficient justification may the company-designated physician be allowed to avail of the exceptional 240-day extended period.

Applying the same in this case, the Court was convinced that there existed a sufficient justification to extend the period of medical treatment and assessment of the seafarer by the company-designated physician.

The seafarer was still undergoing medical treatment and evaluation after the lapse of the 120-day period. In fact, the seafarer agreed to a further medical evaluation even after the 120 days period, when he himself complained of the on-and-off pains in his scrotal area. Verily, these circumstances justified the allowance of the extension of the temporary disability period, and consequently of the period to treat and assess his medical condition, to the exceptional 240 days. Thus, the certification of his fitness to work issued well within the extended 240-day period was timely made.

No valid challenge to the company-designated physician's medical assessment

The Court has again cited the third doctor procedure laid down in the POEA Contract. Said procedure has been interpreted to mean that it is the company-designated physician who is entrusted with the task of assessing the seafarer's disability during the term of his employment. This does not necessarily mean, however, that the said assessment is final, binding or conclusive on the seafarer, the labor tribunal or the courts. The seafarer may dispute such assessment by exercising his right to a second opinion and to consult a physician of his choice, in which case the medical report issued by the latter shall be evaluated by the labor tribunal and the court, based on its inherent merit. In case of disagreement between the findings of the company-designated physician and the seafarer's physician, the parties may agree to jointly refer the matter to a third doctor whose decision shall be final and binding on them.

Guided by the above ruling, the Court found that seafarer failed to comply with the required procedure which now justifies the dismissal of his complaint. In the first place, an irregularity is readily apparent in this case. Aside from the premature filing of his complaint (as he filed the same prior to the issuance of a final assessment), it is beyond dispute that he consulted with his physician of choice before the company-designated physician could issue a certification of fitness to work. This is in clear breach of the third doctor procedure which essentially provides that resort to a second opinion must be done after the assessment by the company-designated physician precisely to dispute the said assessment.

Further, for reasons known only to him, the seafarer refused to refer the matter to a third doctor whose assessment would have been binding to all the parties concerned. The Court has held that non-referral to a third physician, whose findings shall be considered as final and binding, constitutes a breach of the POEA-SEC. For failure of the seafarer to comply with the mandatory procedure of referral to a third doctor, the Court has no other option but to declare that the company-designated doctor's certification must prevail.

Tradephil Shipping Agencies, Inc. et. al. vs. Dante Dela Cruz, G.R. No. 210307, February 22, 2017, Second Division, Associate Justice Jose Catral Mendoza

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., August 2, 2017 (Issue 2017/12)

Supreme Court rules that strange behavior alone is insufficient to prove insanity

During employment, the seafarer started exhibiting unusual behavior. When the ship captain checked on him, he responded incoherently, though it appeared that he had problems with his brother in the Philippines. This prompted the captain to set double guards on the seafarer. The crew watching over the seafarer reported that he wanted to board a life boat, citing danger in the ship's prow. Because of the seafarer’s condition, the captain relieved him of his shift and allowed him to sleep in the cabin guarded. The following day, the captain wanted to supervise the seafarer better, so he took him on deck and assigned to him simple tasks, such as correcting maps and collecting and typing the crew's declarations. The captain observed that the seafarer’s condition was "rather better" and he "did not appear to have any problems." Later that day, seafarer requested the crew-on-guard that he be allowed to return to the deck for some fresh air. Once on deck, the seafarer suddenly ran to the stem and jumped to the sea. The ship's rescue attempts proved futile, and seafarer’s body was never recovered. Eventually, a claim for death benefits was filed by the heirs of the seafarer. The same was denied by the company as the cause of death was suicide.

The Labor Arbiter and the NLRC both dismissed the claim as they found that the seafarer committed suicide. They held that when the death of the seaman resulted from his own willful act, the death is not compensable. The Court of Appeals granted the claim and held that seafarer’s strange conduct prior to jumping off ship would show that he was not in a proper mental state and as such, his jumping off the ship cannot be considered as a willful act. As such, the heirs of the seafarer should be entitled to death benefits.

Upon further petition, the Supreme Court eventually held that the claim should be dismissed.

The Court explained that the burden rests on the employer to prove by substantial evidence that seafarer’s death was directly attributable to his deliberate or willful act. On the part of the employer, they were able to submit the ship log entries and master's report to prove that seafarer suddenly jumped overboard the ship. However, the Court of Appeals ruled that seafarer’s act was not a willful one because he was not in his right mental state when he committed the act.

The Court further clarified that evidence of insanity or mental sickness may be presented to negate the requirement of willfulness as a matter of counter-defense. But the burden of evidence is then shifted to the claimant to prove that the seafarer was of unsound mind. In this case, the claimant merely relied on the unusual behavior of the seafarer prior to the incident to prove that the latter was of unsound mind or insane.

The Court held that the reliance on the strange behavior of the seafarer, as detailed by the ship captain in the ship log and master's report, cannot be considered as substantial evidence to prove insanity. While such behavior may be indicative of a possible mental disorder, it is insufficient to prove that seafarer had lost full control of his mental faculties. In order for insanity to prosper as a counter-defense, the claimant must substantially prove that the seafarer suffered from complete deprivation of intelligence in committing the act or complete absence of the power to discern the consequences of his action. Mere abnormality of the mental faculties does not foreclose willfulness. In fact, the ship log shows the seafarer was still able to correct maps and type the declarations of the crew hours before he jumped overboard. The captain observed that seafarer did not appear to have any problems while performing these simple tasks, while the crew-on-guard reported that seafarer did not show any signs of unrest immediately before the incident. These circumstances, coupled with the legal presumption of sanity, tend to belie the claim that seafarer no longer exercised any control over his own senses and mental faculties.

Seapower Shipping Ent., Inc. vs. Heirs of Warren Sabanal, represented by Elvira Ong-Sabanal, G.R. No. 198544, June 19, 2017, Third Division, Associate Justice Francis Jardaleza (Attys. Charles Dela Cruz and Pamela Coseip-Abarico of Del Rosario & Del Rosario handled for vessels interests)

Firm News

Del Rosario Partner Saben Loyola was a speaker at the Propeller Club of Manila last 26 July 2017. He delivered a talk on "Government Regulations on Expats in the Philippine Manning Industry" at the Elks Club Makati. Propeller Club of Manila is a non-profit organization with projects such as offering scholarships to the youth so they can eventually be employed in the maritime industry. Thank you to the Propeller Club of Manila for your kind invitation and looking forward to more discussions.

Del Rosario Pandiphil medical consultant, Dr. Edgardo Del Rosario, through the Japan P&I Club, is a contributor to the Mariner’s Digest of the Japan Shipping Exchange, Inc. Dr. Del Rosario, in a series of articles, has discussed common illnesses in seafaring such as: appendicitis, stones and mental illnesses.

_____________________________________________________________________________________________

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., August 16, 2017 (Issue 2017/13)

Official Holiday Notice:

August 21, 2017 and August 28, 2017 (both Mondays) are official holidays in the Philippines in celebration of Ninoy Aquino Day and National Heroes Day. Emails will be monitored but for urgent matters, please call our 24/7 mobile 63 917 830 8384 or our mobile numbers stated under our name in our emails and in our website.

State of intoxication does not preclude deliberateness of act; death benefits denied

Seafarer was engaged as oiler. One evening, while on-board the ship, a party was organized for the seafarers while the ship was anchored at Bangladesh. After finishing his shift at midnight, the seafarer joined the party. Around 3 o'clock in the morning, the ship captain noticed that the seafarer was already drunk so he directed him to return to his cabin and take a rest. The seafarer ignored the ship captain's order. Thus, a ship officer, a security watchman and a member of the crew were summoned to escort the seafarer to his cabin. The crew members attempted to accompany him back to his cabin but the seafarer refused. They then tried to restrain him but he resisted and, when he found the chance to escape, he ran towards the ship's railings and, without hesitation, jumped overboard and straight into the sea. The crew members immediately threw life rings into the water towards the direction where he jumped and the ship officer sounded a general alarm and several alarms thereafter. Contact was also made with the coast guard and the crew members searched for the seafarer, to no avail. The seafarer was later found dead and floating in the water. The subsequent medico-legal report issued by the Philippine National Police showed that the cause of his death was asphyxia by drowning

Subsequently, the wife of the seafarer filed a claim for death benefits with the Labor Arbiter. Both the Labor Arbiter, and on appeal, the NLRC denied the claim as the death was due to the deliberate and willful act of the seafarer.

On the other hand, the Court of Appeals granted death benefits holding that the seafarer jumped into the sea while he was overcome by alcohol and completely intoxicated. He was deprived of his consciousness and mental faculties to comprehend the consequence of his own actions and keep in mind his own personal safety.

When the case reached the Supreme Court, the claim was dismissed.

Work-related death explained

As defined under the employment contract, work-related injury, or in this case, death, is any injury arising out of and in the course of employment. The words "arising out of” refer to the origin or cause of the accident and are descriptive of its character, while the words "in the course of” refer to the time, place, and circumstances under which the accident takes place. By the use of these words, it was not the intention of the legislature to make the employer an insurer against all accidental injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of work in the scope of the workmen's employment or incidental to such employment, and accidents in which it is possible to trace the injury to some risk or hazard to which the employee is exposed in a special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded.

In the present case, it may be conceded that the death of the seafarer took place in the course of his employment, in that it happened at the time and at the place where he was working. However, the accident which produced the death did not arise out of such employment. The occasion where seafarer took alcoholic beverages was a grill party organized by the ship officers. It was a social event and the seafarer attended not because he was performing his official duty, but was doing an act for his own personal benefit.

Even if a liberal view would be adopted and consider the grill party as incidental to seafarer's work, his death during such occasion may not be considered as having arisen out of his employment as it was the direct consequence of his decision to jump into the water without coercion nor compulsion from any of the ship officers or crew members. The hazardous nature of this act was not due especially to the nature of his employment. It was a risk to which any person on board the ship, such as a passenger thereof or an ordinary visitor, would have been exposed had he, likewise, jumped into the sea, as seafarer had.

Seafarer’s act deliberate and willful

The Court held that the pieces of evidence presented by the company, consisting of the testimony of the crew members present at the time of the unfortunate incident, as well as the accident report issued by the master of the vessel, prove the willfulness of seafarer’s acts which led to his death.

The term "willful" means "voluntary and intentional", but not necessarily malicious.

In this case, the seafarer’s act of intentionally jumping overboard, while in a state of intoxication, could be considered as a deliberate and willful act on his own life which is directly attributable to him. There was no substantial evidence presented by the claimant to prove otherwise. There was no competent proof to show that seafarer's state of intoxication during the said incident actually deprived him of his consciousness and mental faculties which would have enabled him to comprehend the consequences of his actions and keep in mind his personal safety. Claimants failed to present evidence to show that seafarer was deprived of the use of his reason or that his will has been so impaired, by reason of his intoxication, as to characterize his actions as unintentional or involuntary. The seafarer may have become unruly by reason of his inebriation but such recalcitrant behavior does not necessarily prove that his subsequent act of jumping overboard was not willful on his part. Stated differently, the fact alone that he refused to be escorted to his cabin, that he resisted efforts by other crew members to restrain him and that he jumped overboard without hesitation or warning does not prove that he was not in full possession of his faculties as to characterize his acts as involuntary or unintentional. This Court has held that even if it could be shown that a person drank intoxicating liquor, it is incumbent upon the person invoking drunkenness as a defense to show that said person was extremely drunk, as a person may take as much as several bottles of beer or several glasses of hard liquor and still remain sober and unaffected by the alcoholic drink.

The company needs only to prove the deliberate act and not the intention of the seafarer to commit suicide

The Court of Appeals, in granting death benefits held that while the company was able to prove that seafarer jumped into the open sea while in a state of intoxication, it failed to meet the burden of proving that seafarer intended to terminate his own life. The Supreme Court disagreed with this as the company did not carry the burden of establishing that seafarer had the intention of committing suicide. The company’s only burden is to prove that seafarer’s acts are voluntary and willful and, if so, it is exempt from liability as the seafarer becomes responsible for all the consequences of his actions. Indeed, the seafarer may have had no intention to end his own life as he may just being playful. Nonetheless, seafarer acted with notorious negligence. Notorious negligence has been 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. In any case, regardless of seafarer’s motives, the company was able to prove that his act of jumping was willful on his part.

Marlow Navigation Philippines, Inc. / Marlow Navigation Co., Ltd. etal. vs. Heirs of Ricardo Ganal, Gemma Boragay, for her behalf and in behalf of her minor children named: Rigem Ganal & Ivan Charles Ganal; and Charles Ganal, represented by Spouses Procopio & Victoria Ganal, G.R. Nos. 221068, June 7, 2017, Second Division, Associate Justice Diosdado Peralta

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., August 23, 2017 (Issue 2017/14)

Supreme Court applies Department of Health Administrative Order 2007-0025 which recommends against certifying as fit-to-work seafarers with more than two maintenance medications for chronic heart problems; seafarer awarded total disability benefits

While working on-board the vessel, the seafarer experienced chest pains with palpitations and shortness of breath. He was taken to a shore hospital and was diagnosed to have an elevated blood pressure, prescribed anti-hypertensive medicines, and discharged thereafter. He was also recommended to be repatriated for further medical evaluation. Upon repatriation, the seafarer was referred by the company to their designated clinic. Seafarer was found to be suffering from "Uncontrolled Hypertension; Unstable Angina; To Consider Coronary Artery Disease [CAD]; Dyslipidemia". He was then prescribed with maintenance medicines totaling to five. After further treatment, the company-designated physician initially declared the seafarer fit to work. Unconvinced of the company-designated doctor’s findings, seafarer consulted his own doctor who declared that he cannot return to his employment due to the latter's on and off chest pains, "easy fatigability" and continuous intake of five maintenance medicines. The seafarer then demanded payment of full benefits but was advised by the company that he was only assessed with a grade “7” disability by the company-designated doctor.

On the basis of the certification from his chosen doctor, the seafarer filed a claim before the NLRC for permanent total disability compensation. The Labor Arbiter and the NLRC both awarded the seafarer full disability compensation on the ground that the medical condition of the seafarer has rendered him unable to work.

On the other hand, the Court of Appeals upheld the assessment of the company-designated doctor as the third doctor procedure was not followed. As such, the award was limited to US$20,900 which was the equivalent of the grade “7” disability issued.

Upon reaching the Supreme Court, the decisions of the Labor Arbiter and the NLRC were reinstated. Seafarer was awarded full disability compensation.

Partial disability assessment of company doctor was given beyond 120 days; thus said assessment must be considered total and permanent disability as no justification given as to why the period should be extended to 240 days

The Court noted that the seafarer was initially declared fit to work by the company-designated doctor. This was questioned by the seafarer when he sought consultation with his chosen doctor who declared him unfit to resume sea duties. When the seafarer obtained said medical report, more than 120 days already lapsed. Upon presentation by the seafarer of the findings of his chosen doctor, this was the only time that the company presented to the seafarer the fact that he was assessed with a grade “7” disability. The Court assumed that, in the absence of a specific date mentioned in the medical report, the grade “7” assessment was issued after the lapse of 120 days.

In legal contemplation, such partial disability was by then already deemed permanent as the assessment was issued after 120 days considering that there was no justification as to why the period should be extended to 240 days. As a result thereof, the issue of non-referral to a third doctor is rendered inconsequential.

Department of Health Administrative Order No. 2007-0025

The Court noted too that Department of Health (DOH) Administrative Order (A.O.) No. 2007-0025 recommends non-issuance of fit-to-work certifications to seafarers "with acute or chronic cardiovascular condition limiting physical activity, requiring more than two (2) maintenance oral medicines and close monitoring, or causing significant disability," specifically those (1) suffering from CAD, (2) has undergone Coronary Angioplasty within six months, with history of Uncontrolled Diabetes Mellitus, Hypertension and Dyslipidemia, and (3) Hypertension requiring three or more drugs, among others. The medical condition of the seafarer falls under the above guidelines of the DOH, as he was prescribed with five maintenance medications.

Constancio Balatero vs. Senator Crewing (Manila) Inc., Aquanaut Shipmanagement Ltd., etal., MV MSC Flaminia; Senator Crewing (Manila) Inc., Aquanaut Shipmanagement Ltd., etal., vs. Constancio Balatero, G.R. Nos. 224532 and 224565, June 21, 2017, Third Division, Associate Justice Bienvenido Reyes (Attys. Joseph Rebano and David Valencia of Del Rosario & Del Rosario handled for vessels interests)

Deadline for mandatory increase in paid up capital (first tranche) of Philippine manning company is 4 September 2017

Pursuant to POEA Memo-Circular No. 03 Series of 2017, all manning agencies are required to increase their paid up capital to Php 5,000,000 at the rate of at least Php 750,000 every year. The first tranche is due next month, 4 September 2017. Aside from additional capital infusion, compliance can also be done through the issuance of a stock dividend if there is sufficient unrestricted retained earnings. If the capital stock is already fully subscribed, an amendment of the Articles of Incorporation would be necessary. All manning agencies already compliant with the required capitalization are required to submit a Certificate of Paid Up Capital from the POEA within the deadline. Failure to timely comply would expose the manning agency to administrative penalties imposed by the POEA.

Firm News

Del Rosario & Del Rosario Law offices welcome the addition of Meighan E. Sembrano as one of its Junior Associates. Meg is a 2011 Bachelor of Arts, Mass Communication graduate of Ateneo de Davao University and a 2016 Bachelor of Laws graduate of San Beda College - Alabang.

All the best and welcome again to the firm!

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., September 11, 2017 (Issue 2017/15)

Seafarer who was repatriated because of the termination of his employment denied disability benefits; sebaceous cyst not proven to be work-related

The seafarer was engaged to work as Demi Chef on-board a passenger cruise vessel. Just two (2) weeks into his employment, the seafarer claimed that he suddenly slipped on a metal stairway and fell down, hitting his abdomen and chest on a metal pipe. He was brought to the ship doctor and was diagnosed to have a "sebaceous cyst to the right of the umbilicus." The next day, the seafarer was treated at a shore medical facility and under a local anesthesia, his cyst was removed, and the lesion was closed with three (3) stitches. After two (2) months, the engagement of the seafarer was terminated in accordance with the probationary employment clause in the employment agreement and he was immediately repatriated.

The seafarer further argued that he requested for medical referral upon returning to the company’s office but was denied because his condition was not work-related. Due to persistent symptoms, the seafarer sought medical examination with his personal doctor and was certified to be permanently unfit for sea service.

The seafarer argued that he did not finish his employment with the company because of his unwanted medical condition and demanded payment of disability benefits. Subsequently, a complaint was filed with the NLRC.

The Labor Arbiter awarded the seafarer with partial disability as the medical condition occurred during the term of employment. On appeal, the NLRC dismissed the claim as there was no showing that the condition was work-related and that the same was just a minor one which was already resolved when he underwent removal of the cyst. The decision of the NLRC was affirmed by the Court of Appeals.

Upon further proceedings before the Supreme Court, the denial of the claim was affirmed.

Seafarer was not medically repatriated

The Court noted that the employment of the seafarer was terminated in accordance with the probationary employment clause under the employment agreement. The allegation of the seafarer that his employment was terminated because of his medical condition is undermined by the fact that after he underwent excision of the cyst, he was able to work for 2 more months without any complaints whatsoever. Moreover, the medical report furnished by the shore doctor who conducted the excision of the cyst would show that only a minor operation was done and after the excision, only three stitches were required to be done and seafarer was immediately discharged back to the ship to return to work.

Sebaceous cyst is not work-related

The seafarer insists that his sebaceous cyst was work-related and compensable since the risk of acquiring it increased due to his working conditions on board.

The Court held that a sebaceous cyst is not included in the list of occupational disease under the POEA Contract. However, the contract expressly provides that those illnesses not listed are disputably presumed as work-related. The disputable presumption implies that the non-inclusion in the list of compensable diseases/illnesses does not translate to an absolute exclusion from disability benefits. Similarly, the disputable presumption does not signify an automatic grant of compensation and/or benefits claim. There is still a need for the claimant to establish, through substantial evidence, that his illness is work-related which in this case, the seafarer failed to establish. The seafarer cannot solely rely on the disputable presumption clause in the contract as he still needs to establish with substantial evidence wok-relation of his condition.

The seafarer has not enumerated either the scope of his job or his regular tasks as a Demi Chef that would supposedly show the correlation of his employment to the development of his cyst. Similarly, he failed to provide an overview of significant working conditions that might have possibly contributed to the acquisition or aggravation of his illness. Instead, he merely made sweeping assertions about it for which the claim should be denied.

Mario Madridejos vs. NYK-Fil Shipmanagement, Inc., G.R. No. 204262, June 7, 2017, Second Division, Associate Justice Marvic Loenen, ponente

POEA recognizes appointment of Principal’s Representatives at office of manning agency

The POEA issued Memorandum Circular No. 08 series of 2017 (MC 08-17) last 29 August 2017 implementing Section 99 of the 2016 Revised Rules and Regulation Governing the Recruitment and Employment of Seafarers. MC 08-17 will take effect on 16 September 2017 after its publication in a newspaper of general circulation.

The principal’s representative could either be Filipino or foreigner and is subject to prior approval by the POEA’s Pre-Employment Services Office (PSO). Current principal’s representatives may continue to function in accordance with the limitations set forth in the said MC but they have 30 days from its effectivity to secure a PSO Letter of Acknowledgment (LOA)

A principal/employer may appoint representatives to up to three (3) manning agencies. The principal/employer will continue to be the representative’s employer and the representative cannot receive any compensation or benefit from the manning agency.

Generally, the duties and responsibilities of the representative involve protection of the principal/employer and the seafarers’ interests in the Philippines but he/she can only perform his functions within the premises of the manning agency. The representative cannot be involved in the management or day to day operations of the manning agency which is considered a prohibited act under RA 10022 or the Amended Migrant Workers Act.

The assignment of the representative may be revoked at any time by the principal/employer or by the POEA for violation of the law. The manning agency shall report to the PSO the withdrawal or revocation of the representative by the principal/employer within 72 hours from such action.

This is the most comprehensive circular to date addressing the presence of a Principal’s representative in a Philippine manning agency.

POEA issues Memorandum Circular No. 07 Series of 2017 on Financial Security for Foreign Flag Ships

The POEA has issued Memorandum Circular No. 07 Series of 2017 (MC) regarding compliance with amendments to the Code implementing Regulations 2.5 and 4.2 and appendices of the Maritime Labor Convention, 2006 on Financial Security for Foreign Flag Ships. Said MC would take effect on 16 September 2017.

The amendments mandate the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment and to assure compensation for contractual claims in the event of the death or long-term disability of seafarers due to occupational injury, illness or hazard.

In connection with the above, licensed manning agencies requesting for enrollment of foreign flag ship shall be required to submit copy/copies of the certificate of financial security or other documentary evidence of financial security covering abandonment and compensation for contractual claims, respectively, issued to the shipowners of the ship.

For the existing enrolled vessels, the licensed manning agencies shall submit within 60 days from 16 September 2017, a copy/copies of the mentioned certificates of financial security or other documentary evidence. Otherwise, the processing of request for crewing for the subject vessel/s without the said valid certificates shall not be allowed.

For new building vessels, the licensed manning agency shall either issue:

a. An Affidavit of Undertaking to submit to the POEA a copy/copies of the valid certificates of financial security or other document provided by the shipowners or principals, or P&I of the vessel within 60 days after vessel’s delivery and a corresponding Affidavit of Assumption of Responsibility for the deployed seafarers in relation to the items required to be covered by the financial security, shall likewise be issued by the manning agency, or

b. A copy of the valid certificates of financial security or other documents.

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., September 15, 2017 (Issue 2017/16)

The 120/240 days rule in relation to the necessity for the company designated physician to determine the need for further treatment

In 2005, the Supreme Court promulgated a decision* which basically reduced the determination of permanent and total disability by mere counting of number of days that the seafarer is under treatment and unable to work. The Court held that if a seafarer is under treatment and unable to work for more than 120 days, then he is considered to be permanently and totally disabled entitled to maximum disability benefits under the employment contract. This came to be known as the 120 days rule.

In 2008, the Court in another decision** modified the 120 days rule by ruling that the same may be extended to 240 days.

Decisions thereafter harmonized the 120 days and 240 days ruling. The Court held that if the company-designated physician is unable to provide a final medical assessment within 120 days, then the seafarer will be considered to have suffered a permanent and total disability. However, if the doctor requires further treatment of the seafarer which would breach the 120 days, then the treatment may be rightfully extended to 240 days and within that period, the doctor may issue a final assessment.

As such, the guidelines that should be followed in the application of the 120/240 days rule are as follows:

1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him.

2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total.

3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period.

4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.

Just this 2017, the Supreme Court has applied the 120 days rule in 2 cases*** because the doctor was not able to show any justification as to why the 120 days period should be extended to 240 days. As such, it is imperative that the company-designated physician is able to justify the need for further treatment in the event that he believes that the 120 days period will be breached so that treatment may be validly extended to 240 days.

However, the Court has emphasized that the disability assessment that should be issued by the company-designated doctor within the required periods must be a final assessment and not only an interim assessment. If the assessment issued by the company-designated doctor is merely interim, then the seafarer will still be considered as permanently and totally disabled after the breach of the 120/240 days period.****
___________________________
* Crystal Shipping, Inc., and/or A/S Stein Line Bergen vs. Deo Natividad, G.R. No. 154798, October 20, 2005
** Jesus Vergara vs. Hammonia Maritime Services, Inc and Atlantic Marine Ltd., G.R. No. 172933, October 6, 2008
*** Career Philippines Ship Management, Inc. / Verlou Carmelino vs. Nathaniel Acub, G.R. No.214965, April 26, 2017; Paulino Aldaba vs. Career Philippines Ship Management, Inc., Columbia Shipmanagement Ltd., and/or Verlou Carmelino, June 21, 2017
**** Hoegh Fleet Services Phils., Inc. and/or Hoegh Fleet Services AS vs. Bernardo Turallo, Bernardo Turallo vs. Hoegh Fleet Services Phils., Inc. and/or Hoegh Fleet Services AS, G.R. Nos. 230481 and 230500, July 26, 2017

Supreme Court denies claim as seafarer failed to prove his hypertension is work-related

Seafarer was hired as Bosun by the company. Prior to employment, he was declared fit in his pre-employment medical examination (PEME). Five months into his employment, seafarer complained of dizziness, body malaise and chills. He was sent to a shore doctor who diagnosed him with uncontrolled hypertension. For this reason, he was medically repatriated to Manila. Upon repatriation, the seafarer was referred to the company-designated physicians for examination and treatment and the diagnosis of hypertension was confirmed. The company-designated physicians likewise determined that seafarer’s condition was not work-related as its cause is multifactorial in origin. The seafarer’s treatment continued and the company-designated physicians issued an opinion that the “hypertension was not a contraindication to resume work as long as the patient will be compliant with taking of his anti-hypertensive medications and able to achieve adequate blood pressure control”.

Unsatisfied with the findings of the company-designated physicians, the seafarer consulted with his chosen doctor who declared that his illness is work-related/work-aggravated and his condition has not improved. Also, said doctor opined that the seafarer will not be able to resume his profession with his condition.

Thereafter, the seafarer filed a complaint for payment of disability benefits and damages with the NLRC. The Labor Arbiter denied the claim as the seafarer failed to prove that his hypertension was work-related and there was no showing that his chosen doctor conducted a thorough medical evaluation.

However, on appeal, the NLRC granted the claim and awarded full disability benefits to the seafarer as it was reasoned out that the stressful work of the seafarer aggravated the condition and that he was not able to go back to work after 120 days.

On the other hand, the Court of Appeals affirmed the ruling of the Labor Arbiter and denied the claim of the seafarer.

The Supreme Court affirmed the denial of the claim.

The findings of the company-designated physicians deserves more credence

The Court noted that, unlike the evaluation made by the company-designated physicians, there is no evidence to prove that seafarer’s doctor’s findings were reached based on an extensive or comprehensive examination. In the medical certificate he issued, seafarer’s doctor diagnosed the seafarer as suffering from "Uncontrolled Essential Hypertension, Hypertensive Cardiomyopathy and Malaise," that his condition did not improve "despite management and medications" and, by reason of which, he is "physically unfit to go back to work." However, aside from the said medical certificate, seafarer failed to present competent evidence to prove that he was thoroughly examined by his doctor. No proof was shown that laboratory or diagnostic tests or procedures were taken. In fact, seafarer’s doctor did not specify the medications he prescribed and the type of medical management he made to treat the condition. It was not even explained nor justified that seafarer’s hypertension started at work, is essential and work-related and that, by reason of such illness, seafarer is no longer fit to work, Moreover, there was no indication as to the number of instances seafarer consulted his doctor.

In contrast, the various medical certificates and reports by the company-designated physicians were issued in a span of five (5) months of closely monitoring seafarer’s medical condition and progress, and after careful analysis of the results of the diagnostic tests and procedures administered. Hence, the extensive medical attention that the company doctors gave to seafarer enabled them to acquire a more accurate diagnosis of the medical condition and fitness for work resumption compared to seafarer's chosen physician who was not privy to his case from the beginning and appears to have examined him only once.

Need to present substantial evidence

The seafarer argued that under the employment contract, his illness is disputably presumed to be work-related.

In debunking this argument, the Court held that for disability to be compensable under the POEA-SEC, two elements must concur: (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. To be entitled to compensation and benefits under the governing POEA-SEC, it is not sufficient to establish that the seafarer's illness or injury has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted.

ln other words, while the law recognizes that an illness may be disputably presumed to be work-related, the seafarer must still show a reasonable connection between the nature of work on board the vessel and the illness contracted or aggravated. Thus, the burden is placed upon the seafarer to present substantial evidence that his work conditions caused or at least increased the risk of contracting the disease

In this case, however, seafarer relied on the presumption that his illness is work-related but he was unable to present substantial evidence to show that his work conditions caused or, at the least, increased the risk of contracting his illness. Neither was he able to prove that his illness was pre-existing and that it was aggravated by the nature of his employment. Thus, he is not entitled to any disability compensation.

Julio Espere vs. NFD international Manning Agents, Inc. / Target Ship management PTE Ltd. / etal., G.R. No. 212098, July 26, 2017, Second Dvision, Associate Justice Diosdado Peralta, ponente (Attys. Charles De la Cruz and Pedrito Faytaren, Jr. of Del Rosario & Del Rosario handled for vessels interests)

Update: Zambales/Provincial Coast Watch Environmental Monitoring System User Fee; Petition filed against Ordinance

This is an update on the Zambales Ordinance which we last posted on 21 June 2017.

The Association of International Shipping Lines and Filipino Shipowners Association filed a Petition for Declaratory Relief last 5 May 2017 before the Regional Trial Court of Manila against respondents, the Province of Zambales (as represented by Governor Amor D. Deloso), Sangguniang Panlalawigan (as represented by Vice Governor Angelia M. Cheng) and Xanatos Philippines Corporation.

Aside from the main petition, the petitioners are also asking the Court to enjoin or restrain the Province from implementing the Ordinance until their main Petition is resolved. The petitioners are arguing that the Ordinance is contrary to international and local laws.

As it would also appear that the Province has not responded to the Petition, the petitioners have prayed that it be declared in default.

We will continuously report on this as the case develops.
We continue to recommend to our clients not to pay any invoices for Coast Watch Environmental Monitoring System User Fee issued by the Province. This Petition further supports our position.

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 6 October 2017 (Issue 2017/17)

Supreme Court denies seafarer’s claim due to signed Certificate of Fitness to Work

Seafarer was engaged as Assistant Plumber. During employment, seafarer experienced back pain. The ship doctor diagnosed him to be suffering from mechanical back pains and prescribed him with medicines. However, due to the worsening of his back pains, he was medically repatriated. Upon repatriation, seafarer was immediately referred to the company-designated physicians. Tests revealed that he was suffering from Cervical Spondylosis with Thickening of the Posterior Longitudinal Ligament from C2-3 to C5-6; Mild Disc Bulging from C3-4 to T2-E; and Superimposed Left Paracentral Disc Protrusion at C5-6. Seafarer underwent Anterior Disectomy, Spinal fusion C5-C6 Ciliac Bone Graft, and Anterior Plating. After his discharge from the hospital, seafarer continuously reported to the company-designated physician for medical treatment and evaluation. Thereafter, he underwent physical therapy.

After treatment, seafarer was declared fit to resume sea duties by the company-designated physician and the specialists. Seafarer thereafter signed a Certificate of Fitness to Work, releasing the company from all liabilities.

Two months after, the seafarer consulted another orthopedic surgeon who certified his unfitness to work as a seaman and assessing him with a grade “3” disability. This served as basis for the seaman in claiming disability benefits against the company based on an alleged collective bargaining agreement (CBA).

The Labor Arbiter denied the claim and upheld the findings of the company-designated physician. It was also held that there was no proof shown that the alleged CBA presented covers the parties. Moreover, and assuming that there is a CBA in place, the seafarer is not entitled to disability benefits therein as the same is only provided if the disability was a result of an injury arising from an accident.

On appeal, the NLRC awarded the seafarer full disability benefits under the CBA relying on the medical opinion of seafarer’s personal doctor. The NLRC held that the CBA is applicable as the seafarer’s spinal column “cracked” while lifting heavy pipes. The Court of Appeals affirmed the award of disability benefits to the seafarer.

Upon petition with the Supreme Court, the claim of the seafarer was dismissed for lack of merit.

No proof was presented to show that the employment is covered by a CBA

The Court held that the seafarer failed to adequately prove that he was entitled to the benefits of an alleged CBA he had presented. The CBA presented bore no specific details as regards the parties covered, effectivity or duration thereof or even the signature of the contracting parties. There was also no showing that seafarer’s employment was covered by the supposed CBA or that the company entered into a CBA with any union in which the seafarer was a member. Moreover, there was likewise no evidence that an accident occurred that caused seafarer’s injury. There was no report in the logbook that an accident happened which resulted in seafarer’s back pain.

It is basic that seafarer has the duty to prove his own assertions. And his failure to discharge the burden of proving that he was covered by the CBA militates against his entitlement to any of its benefits. As such, the NLRC and the Court of Appeals had no basis in awarding the seafarer disability benefits under the supposed CBA.

The findings of the company-designated physicians prevails`

It is clearly provided in the POEA-SEC that in order to claim disability benefits, it is the company-designated physician who must proclaim that the seafarer suffered a permanent disability, whether total or partial, due to either injury or illness, during the term of his employment. If the doctor appointed by the seafarer makes a finding contrary to that of the assessment of the company-designated physician, a third doctor may be agreed jointly between the employer and seafarer whose assessment shall be binding on both of them. While a seafarer has the right to seek a second and even a third opinion, the final determination of whose assessment must prevail must be done in accordance with this agreed procedure. Failure to observe this will make the company-designated physician's assessment final and binding.

Here, the seafarer did not refer the conflicting assessments of the company-designated physicians and his chosen doctor to a third doctor in accordance with the mandated procedure. In fine, the company-designated physicians’ assessment was not effectively disputed; hence, the Court has no option but to declare the fit to work declaration as final and binding.

In any event, the Court found the company-designated physicians’ assessment to be credible considering their close monitoring and extensive treatment of seafarer's condition. The fit to work assessment was supported by the findings of the orthopedic surgeon and physiatrist who both opined, after making a thorough evaluation of seafarer's condition, that seafarer was already physically fit to resume work without any restrictions. The extensive medical attention and treatment given to the seafarer for more than two months were clearly supported by medical reports.

On the other hand, the chosen doctor of the seafarer rendered a medical opinion after a singular examination of the seafarer. His pronouncement of seafarer's unfitness to resume sea duties and partial disability impediment of Grade 3 was unsupported by adequate explanation as to how his recommendations were arrived at.

Besides, the company-designated physicians’ fit to work assessment was supported by the Certificate of Fitness to Work signed by the seafarer. It was emphasized that seafarer immediately caused the execution of this waiver or release in favor of the company instead of disputing the fit to work declaration. Not all waivers and quitclaims are invalid as against public policy. Absent any evidence that any of the vices of consent is present, this document executed by the seafarer constitutes a binding agreement and a valid waiver in favor of the company.

North Sea Marine Services Corporation etal, and/or Carnival Cruise Lines vs. Santiago S. Enriquez, G.R. No. 201806, August 14, 2017, First Division, Associate Justice Mariano Del Castillo, ponente (Attys. Herbert Tria and Maricris Ferrer of Del Rosario & Del Rosario handled for vessels interests)

Firm News

On 19 September 2017, Del Rosario & Del Rosario sponsored a seminar on the Data Privacy Act which was held at the DelRosarioLaw Centre. The guest speaker was the National Privacy Commission’s Chairman and Commissioner, Mr. Raymund Liboro. Commissioner Liboro provided a background and orientation on the relatively new law. Aside from providing practical insights, he likewise urged the manning industry to be among the first to formulate a sectoral code of conduct on data privacy together with the pertinent government regulators.

On a related note, DelRosarioLaw Partner Charles Dela Cruz was a speaker at the Klaveness Compliance Seminar last 19 September 2017 which was held at Five ECom, Mall of Asia Complex, Pasay City. He lectured on the Data Privacy Act and its Implementing Rules and Regulations

DelRosarioLaw Partners Charles Dela Cruz and Herbert Tria were joint speakers at the Magsaysay Shipping and Logistics-Fairmont Marine Insurance Seminar held on 8 September 2017 at the Robert Hall, Times Plaza Building, Manila. Their topic was “MLC Certificate on Financial Security: Improving the plight of Filipino Seafarers On-Board the Vessel”.

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 27 October 2017 (Issue 2017/18)

Holiday Notice: Our offices will be closed on Tuesday, 31 October 2017 and Wednesday, 1 November 2017 due to All Saints' Holidays. We shall also be closed from Monday, 13 November to Wednesday, 15 November 2017 due to the 31st ASEAN Summit being held in Manila. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.

Complaint filed before 240 days does not give rise to legal presumption of permanent total disability

Seafarer was engaged as an Ordinary Seaman. While removing ice from the deck of the ship, seafarer accidentally slipped and hit his lower back on the steel deck. He was eventually examined and treated in a shore clinic and was initially diagnosed with Lumbago with suggestion for his repatriation for further treatment. Upon repatriation, the seafarer was referred to the company's accredited doctors for treatment and medical evaluation. He underwent several sessions of physical therapy, but the pain in his lumbar area still persisted. The seafarer then underwent magnetic resonance imaging (MRI) which showed that he was suffering from Multilevel discogenic and osteophytic central canal and bilateral foraminal stenosis as described, L4-L5 and L5-Sl. Disc dessication, L4-L5 and L5-Sl 11. Seafarer then underwent two surgical procedures (lumbar laminectomy and foraminotomy) to address his herniated disc, as advised by the company-designated doctor. He then underwent further physical therapy. Eventually, 195 days from the time the seafarer was injured, the company-designated doctor issued a medical report stating that the functional capacity testing was done which seafarer did not pass due to back pain on certain motions. Seafarer’s prognosis is fair to good and if he will pass the functional capacity testing after adequate flexibility is attained (which is seen to be accomplished within 2 to 3 more months of further therapy), he can resume sea duties. The interim disability assessment given was Grade 8 based on the POEA Contract with recommendation to continue his therapy sessions.

Meantime, seafarer went to see his chosen physician for a second medical opinion. His physician echoed the findings of the company-designated doctor but opined that seafarer is already permanently unfit for further sea duty in any capacity.

On the basis of the medical report from his doctor, the seafarer filed a complaint for disability benefits with the Labor Arbiter 197 days from the time he was injured. The company denied the claim on the basis that the company-designated doctor was of the opinion that seafarer will eventually be able to resume his sea duties.

The Labor Arbiter awarded full disability benefits on the basis that the seafarer was unable to work for more than 120 days and that resumption of work cannot be expected as he was still made to undergo further therapy sessions. The NLRC agreed with the Labor Arbiter and also believed that the seafarer is already permanently disabled considering the findings of the latter’s chosen doctor and that of the company-designated physician.

However, the Court of Appeals, while noting that a permanent disability exists, reduced the award of disability benefits to the equivalent of grade “8” as there was no factual basis for the award of full benefits.

The Supreme Court agreed with the Court of Appeals that seafarer is not entitled to permanent disability benefits but only to Grade 8 disability benefits.

The Court again stressed that a temporary total disability only becomes permanent when so declared by the company-designated physician within the periods he/she is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.

Here, the Court noted that the seafarer filed his complaint just 197 days after he sustained his injury and while he was still undergoing treatment. Since the company-designated doctor has not declared that seafarer is unfit to work within the 240-day period, and said period has not lapsed when seafarer filed his complaint, the seafarer cannot yet be legally presumed as permanently and totally disabled to be entitled to permanent and total disability benefits.

Also, the Court debunked the argument of the seafarer that the uncertain effect of further treatment intimates that his injury would bar him from performing his usual work as a seafarer which would make him permanently and totally disabled. The Court held that the company-designated physician was of the opinion that the prognosis of the seafarer’s condition was fair to good which does not indicate permanent and total disability.

Lastly, the Court also concurred with the appellate court that there is no factual basis to award maximum disability benefits to the seafarer considering that the legal presumption of permanent and total disability was unavailing. As such, the grade “8” disability was sustained by the Court as it was in accordance with the POEA-SEC Schedule of Disability as well as the provision that disability shall be based solely on the disability gradings provided in the contract and shall not be measured by number of days a seafarer is under treatment or days in which sickness allowance is paid.

Eugenio Gomez vs. Crossworld Marine Services, Inc, Golden Shipping Company S.A. et al., G.R. No. 22002, August 2, 2017, Second Division, Associate Justice Diosdado Peralta, ponente

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 8 November 2017 (Issue 2017/19)

Holiday Notice: Our offices will be closed from Monday, 13 November to Wednesday, 15 November 2017 due to the 31st ASEAN Summit being held in Manila. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.

Supreme Court denies claim based on a medical condition which was not the cause of repatriation

The crewmember was engaged as bartender on-board the ship. During employment, the crewmember sustained a knee injury. He initially consulted the ship's physician for medical examination and later on with other shore medical facilities. After his treatment, the crewmember went back to work.

Later in the employment, the crewmember began experiencing skin rashes on his lower and upper extremities. These skin eruptions were diagnosed by the ship's physician as ''psoriasis". The crewmember was given medications and was advised to get dermatologic consultation upon completion of his contract. Consequently, the crewmember was repatriated to the Philippines and was referred by the company to their designated clinic for examination.

Upon his initial examination with the company-designated physicians, the crewmember’s knee injury was not mentioned in his past medical history.   The crewmember was then referred to a dermatologist who opined that he had ''psoriaris vulgaris". All throughout the various consultations, there was no mention that the crewmember complained of a knee injury.

While the crewmember was still undergoing medical treatment with the company-designated physician, he sought the opinion of his chosen doctor. He was assessed to be suffering from psoriasis and grade II injury medial collateral ligament right knee, sprain, medial head of gastrocnemius with hemarthrosus. Said doctor also found the crewmember unfit to go back to work.

Based on the medical certificate of his chosen doctor, the crewmember filed a complaint for disability benefits before the Labor Arbiter for full disability benefits based on his psoriasis and knee injury.

Upon knowing of the claim, the company offered to conduct a laboratory examination on the crewmember to verify his knee injury but the latter did not accede. Despite the filing of his complaint, the crewmember continued his medical treatment with the company-designated doctor. On the 226th day of treatment, the company-designated doctor issued a Grade 12 disability for the crewmember’s psoriasis condition.

The Labor Arbiter issued a Decision finding the crewmember to be entitled only to Grade 12 disability benefits in accordance with the assessment of the company-designated physician. On the other hand, the NLRC awarded the crewmember maximum disability benefits. Such award was affirmed by the Court of Appeals.

Upon petition, the Supreme Court reinstated the award of disability benefits of the Labor Arbiter limiting the disability benefits to the equivalent of grade 12.

The crewmember failed to discharge his burden of proving entitlement to full and permanent disability benefits for his alleged knee injury

The Court held that in case of claims for disability benefits, the burden of proof falls on the claimant to establish his claim with the right quantum of evidence; and as such, it cannot rest on mere speculations, presumptions or conjectures.

Given this standard, the company, cannot be held liable for the alleged knee injury suffered by the crewmember. While it was found that the crewmember suffered a knee injury during the term of his employment contract, such knee injury was not the ailment complained of by the crewmember upon repatriation and is, likewise, not the illness for which he was given medical treatment. In fact, upon completion of his contract, the crewmember was advised to consult a dermatologist for his skin eruptions. That the crewmember did not complain of, and was not treated for, the alleged knee injury is evident from the medical reports submitted by the company-designated physician detailing the progress of the skin condition. Also, the certification issued by the company-designated physician does not at all pertain to the crewmember’s alleged knee injury but solely on his skin condition. The only instance when crewmember's alleged knee injury again surfaced after repatriation was when he consulted his doctor of choice. But even then, the Court did not give credence to the certification issued by the crewmember’s chosen doctor as the same is based on a single consultation four months after repatriation. Also, no medical tests were conducted that would support the conclusion that the crewmember is unfit for sea duty in whatever capacity as a seaman.

Crewmember is entitled to disability benefits equivalent to grade 12 as certified to by the company-designated physician for his psoriasis

In favoring the findings of the company-designated doctor the Court noted that a dermatologist periodically treated the crewmember for months and monitored his condition. This deserves greater evidentiary weight than the single medical report of crewmember's doctor of choice.

Moreover, the fact that the company-designated physician issued a disability assessment on 223rd day upon repatriation is of no moment. The rule provides the company-designated physician a maximum of 240 days within which to issue a final assessment. Clearly, before the maximum 240-day medical treatment period expired, the crewmember was issued a final disability Grade 12 which is merely permanent and partial disability, since under the POEA Contract, only those classified under Grade 1 are considered permanent and total disability.

Maunlad Trans Inc., Carnival Cruise Lines et al. vs. Gabriel C. Isidro, G.R. No. 222699, July 24, 2017, Third Division, Associate Justice Noel Tijam, ponente (Attys. Joseph Rebano and Gina Guinto of Del Rosario & Del Rosario handled for vessels interests)

Revisiting the Philippine Immigration Rules for Seafarers calling on Philippine Ports

All Non-Filipino seafarers onboard vessels calling ports of the Philippine must have a valid seaman’s visa. Visa-free or visa on arrival privileges are limited only to tourists and not applicable to seafarers onboard vessels.

Further, vessels who have on board crew without visa can be allowed to make a port of call subject to the approval of the Chief, Seaport Operations Division and the Immigration Regulation Division of the Bureau of Immigration:

(1)   Vessels proceeding from a port or place where no Philippine Consular Officer is stationed and it is not possible for such vessel or aircraft to comply with the crew list requirements;
(2)   Vessels owned entirely by the government;
(3)   A member of the crew of a vessel who is in possession of an appropriate individual visa or re-entry permit;
(4)   A member of the crew of the vessel in whose individual case an emergency waiver of the crew list visa requirement has been granted by the Secretary of Foreign Affairs; and
(5)   Vessels proceeding from one foreign place or another which is diverted from the course under emergency conditions and enters the port of the Philippines provided the crew list requirement is waived by the President of the Philippines.

Nationals of the following countries are considered restricted nationals: Algeria, Egypt, Iran, Iraq, Jordan, Lebanon, Libya, Pakistan, Palestine, Sudan, Syria and Yemen pursuant to Foreign Service Circular No. 22-10. These restricted nationals will be allowed entry in the Philippines as seafarers on board vessels provided they have the required seaman’s visa subject to the approval of the Chief, Seaport Operations Division and the Immigration Regulation Division.

However, pursuant to Immigration Administrative Order No. JHM 2017-006 (Strict Implementation of Visa Requirements for Passengers and Crew of Incoming Vessels), vessels with seafarers who are restricted nationals shall be prohibited from making calls in ports that are:

(a)   Areas of conflict;
(b)   Areas of International Assembly;
(c)   Places where the President and/or other officials of Government are present; and
(d)   Other areas that may be identified by the Commissioner or his authorized representations

The prior approval of the Chief of the Seaport Operations Division and the Immigration Regulation Division is required for any exceptions to the said prohibition.

Mindanao island, being under martial law, is understood to be considered as an area of conflict. In addition to the usual port entry formalities, the Armed Forces of the Philippines conducts independent security checks of incoming vessels to Mindanao and has the authority to exclude / detain vessels and/or crew members deemed as security risks such as crew members with derogatory records (regardless of nationality and presence of a valid visa).

To minimize risk of being accessed fines and incurring delay, Shipowners / managers should submit the required Notice of Arrival together with the visead crew list at least forty eight (48) hours before the actual arrival of the vessel for the approval of the Chief, Seaport Operations and the Immigration Regulation Division of the Bureau of Immigration.

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 21 November 2017 (Issue 2017/20)

Supreme Court rules that acute promyelocytic leukemia is a compensable illness

Seafarer was engaged as Ordinary Seaman on-board the vessel. During employment, the seaman fell ill and was confined in a hospital in Indonesia where he was initially diagnosed with "pancytopenia suspect aplastic anemia." The seafarer was then repatriated for further treatment. Upon repatriation, the seafarer was referred by the company to their designated doctors for examination and treatment. With the company-designated physicians, the seafarer was diagnosed with acute promyelocytic leukemia. The company-designated doctors opined that seafarer’s leukemia was not work-related.

The seafarer sought a second opinion from his chosen doctor who certified that his leukemia was work-related. After his disability claims were refused, the seafarer filed a complaint against the company before the Labor Arbiter.

The Labor Arbiter found that seafarer’s leukemia was work-related and that it had permanently incapacitated him to work as a seafarer. Thus, an award of disability benefits was issued to the seafarer. Such ruling was affirmed by the NLRC and the Court of Appeals.

Upon petition before the Supreme Court, it was sustained that the illness of the seafarer should be considered work-related and compensable.

The Court noted that in the applicable POEA Contract, “acute myeloid leukemia” is listed as an occupational disease if it is secondary to prolonged benzene exposure. The Court further expounded that benzene is a widely used chemical and is mainly used as a starting material in making other chemicals, including plastics, lubricants, rubbers, dyes, detergents, drugs, and pesticides.

The functions of the seafarer as an Ordinary Seaman, among others, included removing rust accumulations and refinishing affected areas of the ship with chemicals and paint to retard the oxidation process. This meant that he was frequently exposed to harmful chemicals and cleaning aids which may have contained benzene. Furthermore, the vessel transported chemicals, which could have also contributed to seafarer’s leukemia.

The seafarer likewise presented the results of his Molecular Cytogenetic Report, which showed that his leukemia was not genetic in nature which would debunk the opinion of the company-designated doctors that the illness was genetic in origin and not work-related.

The Court again stressed that when it comes to compensability of illnesses, it is not necessary that the nature of the employment is the sole reason for the seafarer's illness. It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had. As the seafarer was able to satisfy the conditions under the POEA Contract to establish a reasonable linkage between his job as an Ordinary Seaman and his leukemia, disability benefits was awarded to him.

Grieg Philippines, Inc., Grieg Shipping Group AS et al. vs. Michael John Gonzales, G.R. No. 228296, July 26, 2017, Second Division, Associate Justice Marvic Leonen, ponente (Attys. Herbert Tria and David Valencia of Del Rosario & Del Rosario handled for vessels interests)

Firm News

Managing partner Arturo del Rosario led the Philippine delegations in two recently concluded Intellectual Property (IP) Conventions. As President of the Intellectual Property Association of the Philippines (IPAP), Arturo with 12 Philippine delegates, participated in the AIPPI 2017 Sydney World Congress on 13 - 17 October 2017.

The International Association for the Protection of Intellectual Property, generally known under the abbreviated name AIPPI, is the world's leading international organization dedicated to the development and improvement of legal regimes for the protection of intellectual property (IP).

Likewise, Arturo led a total of 37 Philippine delegates to the 67th Annual Council Meeting held in Auckland, New Zealand, of the Asian Patent Attorneys Association (APAA) from 04 -07 November 2017. APAA is a non-governmental organisation dedicated to promoting and enhancing intellectual property protection in the Asian region (including Australia and New Zealand).

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .

Philippine Shipping Update – Manning Industry

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 5 December 2017 (Issue 2017/21)

Supreme Court rules on incompetence, negligence and insubordination as grounds for valid dismissal of seafarer

In two recent cases, the Supreme Court had the opportunity to define incompetence, negligence and insubordination as valid grounds for the dismissal of a seafarer.

In the case of a seafarer who was dismissed from employment based on a Crew Behavior Report prepared by the Master, the Supreme Court held that this alone is insufficient to show just cause of dismissal.

In the report, the Master charged the seafarer with inefficiency, incompetence and gross neglect when another crewmember was injured because he failed to observe proper safety precautions during mooring operations. Also in the report, the Master charged the seafarer with violation of the alcohol policy when a port agent informed him that the seafarer was hard to deal with because of intoxication.

However, the report was deemed insufficient by the Supreme Court to be basis for a valid dismissal. The Court noted that aside from the statement of the Master, no further evidence was presented such as the affidavit of the injured crew or the port agent. As such, the Court did not give credence to the report.

The Supreme Court further explained that incompetence or inefficiency, as a ground for dismissal, is understood to mean the failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. Neglect of duty, on the other hand, must be both gross and habitual. Gross negligence implies a lack of or failure to exercise slight care or diligence, or the total absence of care in the performance of duties, not inadvertently but willfully and intentionally, with conscious indifference insofar as other persons may be affected. Habitual neglect involves repeated failure to perform duties for a certain period of time, depending upon the circumstances, and not mere failure to perform duties in a single or isolated instance.

The Court held that there was no proof to show that the seafarer willfully or deliberately caused the alleged accident during the mooring operations or that respondent repeatedly committed mistakes or repeatedly failed to perform his duties. The single unverified incident on seafarer's supposed negligence is insufficient to warrant a finding of just cause for termination.

On the charge of intoxication, the POEA Contract provides that drunkenness must be committed while on duty to merit dismissal from employment. In this case, the seafarer was off duty when he was allegedly caught by the master drinking on board.

In another case, a seafarer was dismissed from employment because he refused to sign and acknowledge receipt of a reprimand and, subsequently, the vessel's logbook entry on the matter.

The seafarer went on a shore leave but was late from coming back to the ship. For this reason, he was reprimanded by the Master. However, the seafarer, when directed to, refused to sign the written reprimand as well as the logbook entry indicating the reprimand as he believes it contained falsehoods. For this reason, he was dismissed.

The Supreme Court expounded that insubordination or willful disobedience, as a just cause for the dismissal of an employee, necessitates the concurrence of at least two requisites: (1) the employee's assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. Moreover, a willful or intentional disobedience of such rule, order or instruction justifies dismissal only where such rule, order or instruction is (1) reasonable and lawful, (2) sufficiently known to the employee, and (3) connected with the duties which the employee has been engaged to discharge.

The Court ruled that the seafarer is indeed bound to obey the lawful commands of the captain of the ship, but only as long as these pertain to his duties. It noted that there was no relevance between the order of the Master to sign the documents to the seafarer’s performance of his duty as a seaman.

Also, even if the commands of the Master to sign the receipt of the written reprimand and to sign the ship's logbook were to be considered as lawful commands supposed to be obeyed by the complement of a ship, seafarer's refusal to do the same does not warrant the supreme penalty of dismissal. Dismissal is too harsh a penalty to be imposed due to seafarer's supposed disobedience as it was not established that it was characterized by a wrongful and perverse mental attitude given that he believed the written reprimand and logbook contained falsities for he maintained that he had an explanation for his late arrival.

Evic Human Resource Management, Inc., Free Bulkers S.A. et. al. vs. Rogelio Panahon, G.R. No. 206890 July 31, 2017, First Division, Associate Justice Alfredo Benjamin Caguioa, ponente

Transglobal Maritime Agency, Inc., Goodwood Shipmanagement PTE, Ltd. et. al. vs. Vicente Chua, Jr., G.R. No. 222430, August 30, 2017, Second Division, Associate Justice Diosdado Peralta, ponente

Firm News

Del Rosario Law Partners, Charles Jay Dela Cruz and Denise Luis Cabanos, were speakers at the in-house training seminar conducted by Thome Ship Management last 6 October 2017. They lectured on various issues on crew claims, collision and cargo matters. Likewise, Charles and Denise together with Del Rosario Pandiphil’s medical consultant, Dr. Edgardo Del Rosario, were also speakers at Thome Ship Management for their Bulk Workshop held last 8 to 10 November 2017.

Del Rosario Law Senior Associate Jerome Pampolina was a speaker at the separate seminars for the officers and crew of Jebsens Maritime Inc./Doun Kisen Co., Ltd. and Foscon Ship Management, Inc./Star Management Associates on 20 October 2017 and 20 November 2017, respectively. The topics discussed at the seminars include work-related illnesses and updates on Philippine Jurisprudence on the matter. The Seafarer’s Protection Act was likewise discussed to educate officers and crew on the relatively new law.

Many thanks to Thome Ship Management, Jebsens Maritime Inc./Doun Kisne Co., Ltd. and Foscon Shipmanagement, Inc./Star Management Associates for their kind invitation and hope to see you again in your future seminars.

2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation. It is meant to be brief and is not intended to be legal advice. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .