Philippine Shipping Update – Manning Industry [ Download ]

By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., January 11, 2012 (Issue 2012/01)

In this issue:

Promotions

Supreme Court rules blurring of left eye not due to accident; compensation must be based on POEA contract and not the CBA

Hans Leo J. Cacdac, New POEA Administrator

Seafarers’ Identity Document Convention ratified by Philippine Government

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Promotions

New Partners

Effective January 1, 2012, Denise Cabanos and Florencio Aquino were made partners of the firm.

Denise has been with the firm for eleven years. He has previously worked in government prior to joining the firm. He has extensive experience in wet matters and is a member of the firm’s emergency response team tasked to conduct on-site investigation and act on major casualties including vessel arrest. In addition to wet and dry maritime work, he is also in charge of most of the immigration applications and criminal litigation matters of the firm. He is an alumni of the San Beda College of Law and graduated B.S. in Economics from the University of Santo Tomas. He attended the University of Southampton, School of Law’s Maritime Law Short Course in Singapore.

Florencio “Rency” has been with the firm for eleven years and specializes in the field of Filipino crew claims and, in this regard, has handled complex multi-jurisdictional issues. His expertise also extends to a variety of labor, maritime, mortgage foreclosure and commercial litigation matters. He is also a member of the firm's emergency response team. He is a regular speaker on Filipino crew claims in local and international forums. He received his LLB degree from the University of Santo Tomas College of Law and his A.B. in Legal Management from the University of Santo Tomas.

Other Promotions:

In addition, Pamela Coseip- Abarico and Catherine Mangahas were promoted to Managing Associates. Aldrich Del Rosario was promoted to Senior Associate.

Supreme Court rules blurring of left eye not due to accident; compensation must be based on POEA contract and not the CBA

The company hired the seafarer as Second Officer. After passing his PEME, the seafarer embarked on the vessel. Seafarer alleged that he was tasked to make an inventory of the vessel’s property for annual inspection. He further alleged that he worked diligently and oftentimes worked odd hours just to familiarize himself with his new job and his overtime work and the violent motions of the vessel due to weather inclemency caused undue strain to his eyes and his physical well-being.

Just a month into his new contract, the seafarer experienced abrupt blurring of his left eye. Immediate medical attention was not provided to the seafarer as the vessel was travelling and he was tasked to man the ship’s navigation equipment. In Japan, seafarer was diagnosed with central retinal vein occlusion and underwent three rounds of laser surgery. He was repatriated for further medical treatment. With the company-designated doctors, the seafarer underwent further treatment and was assessed to have a partial permanent disability as his left eye is now legally blind. The seafarer consulted his own doctor who assessed him with a grade “7” disability.

On this basis, the seafarer filed a claim for full disability benefits under the CBA in the amount of US$105,000 which was denied by the company as the illness is not listed as an occupational disease. The Labor Arbiter granted the claim of US$105,000 based on the CBA. On appeal by the company, the NLRC reduced the award to US$20,900 based on the grade “7” disability of the seafarer’s doctor. A Petition was filed by the seafarer with the Court of Appeals where the latter reinstated the award of the Labor Arbiter.

Upon reaching the Supreme Court, it was held:

Seafarer is entitled to US$60,000 under the POEA Contract.

There is a disability considering that the illness has now caused the loss of one bodily function.

Application of the disputable presumption clause

“Although central retinal vein occlusion is not listed as one of the occupational diseases under Section 32-A of the 2000 Amended Terms of POEA-SEC. Section 20 (B) paragraph 4 states that those illnesses not listed in Section 32 of this Contract are disputably presumed as work-related. The disputable presumption that a particular injury or illness that results in disability, or in some cases death, is work-related stands in the absence of contrary evidence. Thus, said presumption was not overturned by the petitioners. Although, the employer is not the insurer of the health of his employees, he takes them as he finds them and assumes the risk of liability.”

Application of previous 120 days rulings

The court ruled that respondent is suffering from a permanent total disability as he was unable to return to his job that he was trained to do for more than 120 days already even though the company-designated doctor assessed him with a partial permanent disability and seafarer’s doctor assessed a grade “7” disability. The Court, in applying the concept of permanent disability under the Labor Code held that “a total disability does not require that the employee be completely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue his or her usual work and earn from it. A total disability is considered permanent if it lasts continuously for more than 120 days. What is crucial is whether the employee suffers from disability could still perform his work, notwithstanding the disability he incurred. Evidently, respondent was not able to return to his job as a seafarer after his left eye was declared legally blind. Records show that petitioners did not give him a new overseas assignment after his disability. This shows that his disability effectively barred his chances to be deployed abroad as an officer of an ocean-going vessel. Therefore, it is fitting that respondent be entitled to permanent total disability benefits considering that he would be able to resume his position as a maritime officer and the probability that he would be hired by other maritime employers would be close to impossible. Indeed, a sight-impaired maritime applicant cannot stand in the same footing as his healthy co-applicant.

Provisions of the CBA not applicable

The Supreme Court ruled that the CBA provisions on disability are not applicable to seafarer’s case because Article 28 thereon specifically refers to disability sustained after an accident. Seafarer failed to show that the blurring of his left eye was caused by an accident on board the ship. Thus, it cannot be used to compute his disability benefits. What should govern the computation of his disability benefits is the POEA-SEC incorporating the 2000 POEA Amended Standard Terms and Condition. Based on the schedule of disability under Section 32, permanent total disability is classified as Grade 1. Thus, respondent’s disability benefit should be computed as Grade 1: US$50,000.00 x 120% = US$60,000.00.

NOTE: The reasoning of the Supreme Court in interpreting the disputable presumption clause of the POEA Contract appears to contradict their reasoning in the recent case of Quizora v. Denholm Crew Management Phils., Inc. (Philippine Shipping Update Issue 2011/08; 16 December 2011) where it was held that despite the disputable presumption clause in the POEA Contract, the seafarer must still present evidence even though illness is disputably presumed to be work-related.

Fil Star Maritime Corporation, Captain Victorio Migallos and Grandslam Enterprise Corporation vs. Hanziel Rosete ; G.R. No. 192686 ; November 23, 2011 ; Third Division ; Associate Justice Jose Catral Mendoza, Ponente

New POEA Administrator

Hans Leo J. Cacdac has been appointed the new POEA Administrator. Hans Cacdac was previously POEA Deputy Administrator and worked with Secretary of Labor Rosalinda Baldoz during his tenure at the POEA and thus has experience in the affairs of the POEA. He was Labor Undersecretary for Labor Relations prior to his appointment. Mr. Cacdac chaired the Tripartite Working Group that recently revised the POEA Standard Employment Contract.

Seafarers’ Identity Document Convention ratified by Philippine Government

ILO Convention 185 or the Seafarers’ Identity Document Convention has been duly approved and ratified by President Benigno Aquino III on 11 October 2011. Said ratification was duly concurred by the Philippine Senate and now being transmitted to ILO Geneva for submission.

Said convention provides that any seafarer who holds a valid seafarer’s identity document shall be admitted to the territory for which the Convention is in force when entry is requested for temporary shore leave, joining his ship or transferring to another ship, passing in transit to join his ship in another country, for repatriation, or any other purpose approved by the authorities of the member concerned.

According to the Joint Manning Group, the industry welcomes this new development as the convention facilitates the activities of the Filipino seafarers including the undertaking of shore leave without the required visa and without any unnecessary inspection and interrogation as to the identity of the seafarers.

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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 This email address is being protected from spambots. You need JavaScript enabled to view it. . This publication is sent from time to time to clients and friends. To unsubscribe, reply to this email and put "unsubscribe" in the subject.

Del Rosario Pandiphil Inc. / Del Rosario & Del Rosario Office Address: 15th Floor, Pacific Star Building, Makati Avenue, 1200 Makati City, Philippines Telephone: 63 2 810 1791 * Fax: 63 2 817 1740/ 63 2 810 3632 24/7 Emergency Mobile: (63) (917) 830-8384; This email address is being protected from spambots. You need JavaScript enabled to view it.; www.delrosario-pandiphil.com