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
 




 



    



    








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