Philippine Shipping Update – Manning Industry

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

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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 This email address is being protected from spambots. You need JavaScript enabled to view it. .