Philippine Shipping Updates – Manning Industry

By: Ruben Del Rosario, Managing Director, Del Rosario Pandiphil Inc., January 23, 2007

This issue contains the following:

POEA issues temporary ban on deployment of seafarers in Nigeria

Luneta Park to be made site for recruitment/advertisement of manning agencies

Supreme Court rules on desertion of seafarer

Court of Appeals upholds POEA contract disability grading

NLRC disallows benefits for non-disclosure of past medical condition

.POEA issues temporary ban on deployment of seafarers in Nigeria

POEA has issued Advisory No. 01, Series of 2007, January 23, 2007 which issues a temporary ban on

deployment of Filipino workers (including seafarers) in Nigeria. The order was in response to repeated

incidents of kidnappings of Filipino workers due to the political situation in Nigeria and in order to ensure the

continued safety and security of Filipino workers. The ban is “until further orders” and violation carries a penalty of cancellation of license.

Rosalina Baldoz, POEA Administrator, was quoted as saying that the suspension did not cover Filipino

seamen on foreign ships entering Nigerian waters. She said, however, that foreign ship owners should

make sure that their Filipino crew is safe when entering Nigerian waters. The ban is expected to be lifted

when the 24 seafarers who were abducted from the Baco Liner II are released. For a scanned copy of the advisory, please email mail@delrosario-pandiphil.com.

Luneta (Rizal Park) to be made site of recruitment/advertisement of manning agencies

The City Government of Manila in coordination with the Associated Marine Officers and Seamen’s Union of

the Philippines (AMOSUP) is developing a dedicated Seafarers’ Center in Luneta (along T.M. Kalaw Avenue,

Ermita Manila). 30 booths which will serve as extension for recruitment/advertisement for manning

agencies will be available for rent. At the moment, a study is being conducted on rules to implement the

project.

Supreme Court rules on desertion of seafarer

Seafarer suffered an ankle injury but his request for medical attention was denied by the Master. He

therefore jumped from the ship and swam to shore to get medical attention. He was repatriated and he

eventually filed a claim for illegal dismissal. The vessel claimed that there was no illegal dismissal as

seafarer deserted the ship. The Supreme Court ruled that there was illegal dismissal and no desertion. For

a seafarer to be guilty of desertion there should be evidence to prove that if he leaves the ship, he has the

clear intention of abandoning his duty and of not returning to the ship. Vessel failed to present convincing

proof to show that he no longer had the intention of returning. In termination cases, “the burden of proof

rests with the employer to show that the dismissal is for a just and valid cause.” The case of the

employer must stand or fall on its own merits and not on the weakness of the employee’s defense.” The

seafarer was awarded three months salary.

(PCL Shipping Philippines Inc. and U-Ming Marine Transport Corporation vs. NLRC and Steve Rusel, G.R. No.

153031, December 14, 2006, First Division, Justice Ma. Alicia Austria-Martinez, Ponente)

Court of Appeals upholds POEA contract disability grading

Petitioner was hired as bosun under the old POEA Standard Employment Contract. He met an accident and

had a foot injury when his left foot was dragged and caught in between the brake drum and mooring lines.

His left big toe was amputated. The company-designated physician assessed his disability at Grade 10 in the

amount of US$10,075.00. Petitioner sought the opinion of a private doctor who made a finding that it would

be hard for the patient (petitioner) to assume the level of activity needed to be once again employed as a

seaman. Petitioner then filed for a permanent and total disability benefits in the amount of US$60,000.

The Labor Arbiter denied the petitioner’s claim and awarded US$10,075.00 (disability benefits under the

POEA Contract). The Labor Arbiter also held that “it is not dependent on whether the seafarer loses

his earning capacity but on the gravity of the injury that the seafarer suffered. Just because a

seafarer is totally and permanently disabled does not automatically entitle him to maximum

disability benefits.”

The NLRC affirmed the Labor Arbiter’s decision. The Court of Appeals denied the petition. The appeals court

noted that under Section 30 of the Standard Terms and Conditions, “disability benefits is not dependent

on whether the seafarer can go back to work after the injury was incurred but on the gravity of

the injury that the seafarer suffered or sustained.” Moreover, the court said that both the Labor

Arbiter and the NLRC are in the same agreement and found that petitioner is only entitled to disability

benefits under Grade 10 of the POEA Schedule of Disability. Thus, the court held that “administrative

agencies including labor official are deemed to have acquired expertise in matters within their respective

jurisdiction and their findings are generally accorded not only respect, but even finality, and bind Courts

supported by substantial evidence. By reason of their special knowledge and expertise on matters falling

under their jurisdiction, administrative agencies are in a better position to pass judgment thereon.” The

petition was denied and the seafarer was awarded Grade 10 disability of US$10,075.00.

(Elmer Fernandez vs. NLRC, et. al., CA-GR-SP No. 84514, November 16, 2006)

NLRC disallows benefits for non-disclosure of past medical condition

Complainant was hired as third engineer under the old POEA Standard Employment contract. He

experienced shortness of breath and was repatriated for further medical evaluation. Upon repatriation,

complainant admitted the falsification he has committed in his seaman’s book and passport with respect to

his age. In his written confession, he admitted to his fault and waived any and all benefits that may be due

him. However, complainant filed a complaint for disability benefits, illness allowance, reimbursement of

medical expenses, damages and attorney’s fees. During the course of the proceedings, complainant

submitted a medical report by his own doctor wherein it was divulged that he underwent “open mitral

conissurotomy” at the Philippine Heart Center sometime in 1987.

The Labor Arbiter rendered decision in favor of the complainant and directed respondents to pay

complainant’s disability benefit in the amount of US$13,060.00.

The NLRC reversed the Labor Arbiter’s decision and agreed with the respondents that complainant should be

disqualified in receiving any benefit under the POEA Contract due to the fact that complainant

misrepresented his true state of health during the PEME as well as his age. Furthermore, complainant

answered negative when he was asked during the medical history part of the PEME if he had any heart

problems, thus, it is very clear from the facts that the illness of the complainant was pre-existing and was

willfully, knowingly and fraudulently concealed during the PEME. Such blatant misrepresentation would only

show the intent of the complainant to fraudulently conceal his true state of health from the respondents in

order to obtain unwarranted employment. Thus, the complainant’s failure to divulge a known pre-

existing medical condition during the PEME will now bar him from receiving any benefits under

the POEA Contract. Complaint is dismissed with prejudice for lack of factual and legal basis.

(Domingo Lopez vs. Skippers United Pacific, et. al., NLRC-CA-No.-047653-06, November 17, 2006)

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 .

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