ANOTHER VICTORY
FOR THE FILIPINO SEAFARERS AND THEIR FAMILIES |
In the recent
case of Crystal Shipping Inc. A/S Stein Line Bergen vs. Deo P.
Natividad G.R. No. 154798 October 20, 2005, involving a Chief
Mate who was still able to return to his former employment after almost
three (3) years, the Supreme Court still affirmed the award of permanent
total disability benefits and compensation, thus:
"Petitioners
tried to contest the above findings by showing that respondent was able
to work again as a chief mate in March 2001. Nonetheless, this information
does not alter the fact that as a result of his illness, respondent
was unable to work as a chief mate for almost three years. It is of
no consequence that respondent was cured after a couple of years. The
law does not require that the illness should be incurable. What is important
is that he was unable to perform his customary work for more than 120
days which constitutes permanent total disability. (GSIS v.
Cadiz, G.R. No. 154093, 8 July 2003, 405 SCRA 450, 454). An
award of a total and permanent disability benefit would be germane to
the purpose of the benefit, which is to help the employee in making
ends meet at the time when he is unable to work."
In
the Crystal Shipping case, the Supreme Court, in denying
the employers' motion for reconsideration, the Supreme Court could not
clearer in protecting the Filipino seafarers in general, thus:
"Concerning
the first ground, petitioners argues that the Court erred in defining
permanent disability as inability for work for more than 120 days based
on decisions applying the provisions of the Labor Code. Petitioners
add that such provisions apply only to disability benefit claims under
the Government Service Insurance System and the Social Security System.
Petitioners further contend that there was no provision in the POEA
Contract providing that disability lasting continuously for more than
120 days shall be deemed total and permanent.
Petitioners misread our decision, which we
quote in part:
In
resolving the merits of the case, we find pertinent Section 30 of
the POEA Memorandum Circular No. 55, Series of 1996, which provides
the schedule of disability or impediment for injuries suffered and
illness contracted. The particular illness of the respondent
is not within those enumerated. But the same provision supplies us
with the guideline that any item in the schedule classified under
grade 1 constitutes total and permanent disability.
Permanent
disability is the inability of a worker to perform his job for more
than 120 days, regardless of whether or not he loses the use of any
part of his body. As gleaned from the records, respondent was unable
to work from August 18, 1998 to February 22, 1999, at least, or more
than 120 days, due to his medical treatment. This clearly shows that
his disability was permanent.
Total
disability, on the other hand, means the disablement of an employee
to earn wages in the same kind of work of similar nature that he was
trained for, or accustomed to perform, or any kind of work which a
person of his mentality and attainment could do. It does not mean
absolute helplessness. In disability compensation, it is not the injury
which is compensated, but rather it is the incapacity to work resulting
in the impairment of one's earning incapacity.
Although
the company-designated doctors and respondent's physician differ in
their assessments of the degree of respondent's disability, both found
that respondent was unfit for sea-duty due to respondent's need for
regular medical check-ups and treatment which would not be available
if he were at sea. There is no question in our mind that respondent's
disability was total. (Emphasis supplied.)
It is clear
from the foregoing that any item in the schedule of disability or impediment
for injuries suffered and illness contracted classified under Grade
1 necessarily constitutes total and permanent disability.
Admittedly,
POEA Memorandum Circular No. 55, Series of 1996 does not measure disability
in terms of number of days but by grading only. Since respondent's physician
classified his disability as Grade 1, the same was necessarily total
and permanent regardless of the number of days he was disabled.
However,
if only to bolster respondent physician's grading and its concomitant
classification as total and permanent disability, this Court noted that
respondent's inability to work lasted from August 18, 1998 to February
22, 1999, or for more than 120 days. Even without this observation though,
we would have reached the same conclusion since respondent's physician
classified his disability as Grade 1 while the company-designated physicians
declared him "disabled permanently." More importantly, these
findings were fully supported by the Labor Arbiter and the NLRC which
both concluded that respondent's disability was total and permanent.
The
second and third grounds are interrelated and we shall discuss them
jointly. Petitioners aver that since the company-designated physicians
had assessed respondent's disability as Grade 9, respondent was only
entitled to disability benefits equivalent to Grade 9 pursuant to the
POEA Contract. Petitioners also contend that by relying on the classification
made by respondent's physician, this Court providing that assessments
made by company-designated physicians are determinative of the disability
and the various disability gradings thereunder.
These
arguments had already been passed upon and found to be without merit
by the NLRC. In its Resolution dated April 9, 2002, the NLRC declared
that medical certificates issued by the company-designated physicians
are palpably self-serving and therefore should not be given evidentiary
weight and value.
This
pronouncement finds significance when viewed in the light of the company-designated
physician's conclusion that respondent could no longer go back to sea-duty
and hence, was disabled permanently. Yet, such company-designated physician
and the two others who subsequently examined respondent gave the latter
a partial impediment Grade 9 classification. In effect, they declared
respondent's disability as partial and permanent.
As
borne out by the records, respondent became unfit for sea-duty due to
his need for regular check-up and treatment which would otherwise be
unavailable if he were at sea. More specifically, respondent was unable
to work as chief mate for almost three years. As we have said, permanent
total disability is the disablement of an employee to earn wages in
the same kind of work, or work of similar nature that he was trained
for or accustomed to perform or any kind of work which a person of his
mentality and attainments could do.
Having
said that, the findings of respondent's physician was more attuned to
respondent's actual physical state which led not only this Court but
also the Labor Arbiter and the NLRC to conclude that the findings of
the company-designated physicians could not be given evidentiary weight
and value.
As
a final note, we reiterate that the POEA Standard Employment Contract
for Seamen is designed primarily for the protection and benefit of Filipino
seaman in the pursuit of their employment on board ocean-going vessels.
Its provisions must, therefore, be construed and applied fairly, reasonably
and liberally in their favor. Only then can its beneficent provisions
be fully carried into effect."
In case of
doubt in the interpretation or application of the POEA SEC, it is presumed
that the lawmaking body intended right and justice to prevail. (Art. 10,
Civil Code) It should never be forgotten that the POEA SEC is designed
primarily for the protection and benefit of Filipino seaman in the pursuit
of their employment on board ocean-going vessels. Its provisions must,
therefore, be construed and applied fairly, reasonably and liberally in
their favor. Only then can its beneficent provisions be fully carried
into effect. (Philippine Transmarine Carriers, Inc. v. NLRC, G.R.
No. 123891, 28 February 2001, 353 SCRA 47, 54)
// posted August 2008 HONG
KONG COURT OF FINAL APPEAL DECLARES AS NULL AND VOID SECTIONS 20(G) AND
29 OF THE POEA STANDARD EMPLOYMENT CONTRACT
The Philippine Government
labels the Filipino OFWs, including Filipino Seafarers, as "The
Modern Day Heroes".
Ironically, on
31 May 2000, then DOLE Secretary Bienvenido E. Laguesma signed Department
Order No. 4, Series of 2000 ("POEA Standard Employment Contract")
amending the 1996 POEA Standard Employment Contract governing the employment
of Filipino Seafarers on-board ocean-going vessels, wherein new provisions
were added that apparently give undue advantage to employers.
Section
29 thereof, states that, "In cases of claims and disputes arising
from this employment, the parties covered by a collective bargaining agreement
shall submit the claim or dispute to the original and exclusive jurisdiction
of the voluntary arbitrator or panel of arbitrators. If the parties are
not covered by a collective bargaining agreement, the parties may at their
option submit the claim or dispute to either the original and exclusive
jurisdiction of the National Labor Relations Commission (NLRC), pursuant
to Republic Act (RA) 8042 otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995 or to the original and exclusive jurisdiction of
the voluntary arbitrator or panel or arbitrators. If there is no provision
as to the voluntary arbitrators to be appointed by the parties, the same
shall be appointed from the accredited voluntary arbitrators of the National
Conciliation and Mediation Board of the Department of Labor and Employment.
The Philippine Overseas Employment Administration (POEA) shall exercise
original and exclusive jurisdiction to hear and decide disciplinary action
on cases, which are administrative in character, involving or arising
out of violations of recruitment laws, rules and regulations involving
employers, principals, contracting partners and Filipino seafarers."
On
the other hand, Section 20(G) of the POEA Standard Employment Contract,
provides that, "The seafarer or his successor in interest acknowledges
that payment for injury, illness, incapacity, disability or death of the
seafarer under this contract shall cover all claims arising from or in
the course of the seafarer's employment, including but not limited to
damages arising from the contract, tort, fault or negligence under the
laws of the Philippines or any other country."
Thereafter,
employers have been moving for the dismissal of cases filed by Filipino
Seafarers both locally and overseas on ground of lack of jurisdiction
due to the above-quoted provision which they maintain to be an Arbitration
Clause, that is, all these cases should only be filed in the Philippines
either before the voluntary arbitrator or panel of arbitrators or before
the NLRC.
A
classic example of this undue advantage granted to employers by the 2000
POEA Standard Employment Contract involves the luxury liner SS Norway.
The SS Norway had just arrived from a cruise and had docked at the Port
of Miami when a boiler exploded on 25 May 2003, killing 8 crewmen (6 Filipinos;
1 Jamaican; 1 Pakistani) and seriously injuring 10. Many of the victims
were from the Philippines. The National Transportation Safety Board concluded
that a weld on a seam of a high-pressure drum ruptured, releasing nearly
20 tonnes of scalding water that turned into steam and swept through the
engine room and adjacent crew quarters. The heirs of the dead crewmen
instituted complaints to claim damages. The complaints of the heirs of
the Filipino crewmen were all dismissed by virtue of the above-quoted
Section 29, 2000 POEA Standard Employment Contract; while those filed
by the heirs of the Jamaican and Pakistani crewmen proceeded and were
eventually awarded nearly US$2 million each. The heirs of the Filipino
crewmen were forced to accept the measly offer of settlement by the shipowner.
On
21 May 2008, US District Judge Federico Moreno ordered the shipowner to
pay a US$1 million fine after the company pleaded guilty to have operated
its vessel in a "Grossly negligent manner that endangered the lives,
limbs and property of the persons on board" 5 years after the horrific
boiler explosion on the SS Norway. In addition, the said Judge ordered
the shipowner to pay US$13.75 million preliminary restitution to the 18
victims.
Linsangan Linsangan &
Linsangan Law Offices have continuously fought for the right of Filipino
Seafarers and their heirs to file cases overseas despite Section 29 of
the 2000 POEA Standard Employment Contract.
In
one case involving Paquito L. Buton, who was ordered by the master to
straighten a bent portion of the ladder using a sledge hammer, a fragment
thereof flew out like a metal shrapnel and struck his right eye cause
him to lose eyesight. Buton filed a complaint before the Hong Kong District
Court to claim disability compensation under the Hong Kong Employees'
Compensation Ordinance (ECO). But the District Court did not assume jurisdiction
on ground that Buton is a party to an arbitration agreement under Section
29 of the 2000 POEA Standard Employment Contract. Buton appealed therefrom.
On
28 April 2008, the Court of Final Appeal of Hong Kong Special Administrative
Region rendered a judgment granting Buton's appeal and declaring as null
and void the POEA Standard Employment Contract in so far as it is a contractual
attempt of Buton's employers to reduce liability under the ECO, and it
prevents Filipino Seafarers from filing a claim for common law damages
in addition to contractual compensation.
The
Court added that the POEA Standard Employment Contract could not be accepted
by the Hong Kong court applying Hong Kong law as a valid basis to stop
a claim under the ECO. The Court emphasized that for a loss of one eye,
the POEA Standard Employment Contract only provides a compensation of
US$20,900.00; while ECO provides for a disability compensation of US$67,284.00.
Further more, ECO preserves the seafarer's right to claim common law damages
in addition to the above compensation; while under Section 20(G) of the
POEA Standard Employment Contract, receipt of the compensation covers
all claims arising from or related to the employment under Philippine
law and the laws of any other country.
It
is quite embarrassing for a foreign court to declare as null and void
the POEA Standard Employment Contract; while Philippine courts continue
to apply its provisions prejudicial to the rights of Filipino Seafarers
whom we hail as "The Modern Day Heroes". |