Philippine Shipping update
14/09/2011 00:00
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., September 14, 2011 (Issue 2011/05)
This issue contains the following:
Supreme Court upholds three day mandatory reporting requirement in the POEA-SEC
Dismissal of seafarer requires notice and reasonable time to explain
POEA Memorandum Circular 08/2011 on Submission of Deployment Reports
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Supreme Court upholds three day mandatory reporting requirement in
POEA-SEC
Seafarer was repatriated allegedly due to chest pains. He reported to his own physicians
within two days from arrival. He did not report to the company-designated physician
within three days as required by the POEA-SEC alleging that his manning agent failed to
refer him to its company physician.
The Supreme Court ruled that the seafarer’s claim cannot prosper. It is mandatory
under his contract that he should be examined by a company-designated physician within
three days from repatriation. Failure to comply without justifiable cause forfeits his right to
claim for compensation and disability benefits under the POEA-SEC.
The Court explained it’s ruling thus:
“The foregoing provision (provision on three day mandatory reporting requirement) has
been interpreted to mean it is the company-designated physician who is entrusted with
the task of assessing the seaman’s disability, whether total or partial, due to either injury
or illness, during the term of the latter’s employment. Concededly, this does not mean
that the assessment of said physician is final, binding or conclusive on the claimant, the
labor tribunal or the courts. Should he be so minded, the seafarer has the prerogative
to request a second opinion and to consult a physician of his choice regarding his
ailment or injury, in which case, the medical report issued by the latter shall be evaluated
by the labor tribunal and the court, based on its inherent merit. For the seaman’s claim
to prosper, however, it is mandatory that he should be examined by the company-
designated physician within three days from his repatriation. Failure to comply with
this mandatory reporting requirement without justifiable cause shall result in forfeiture of
the right to claim the compensation and disability benefits under the POEA-SEC.”
As to seafarer’s allegation that his manning agent failed to refer him to the company-
designated physician, the Court ruled that seafarer failed to present any evidence to prove
justification for his inability to submit himself to post-employment medical examination
by the company-designated physician. If a written notice is required of a seafarer
who is physically incapacitated for purposes of compliance with said requirement,
we fail to see why a more tangible proof should not likewise be expected of ‘seafarer’
who, after his arrival on 7 July 2003 appears to have been well enough to consult with
(his own physicians) on 9 July 2003.
The Court explained that “indeed, self-serving and unsubstantiated declarations are
insufficient to establish a case before quasi-judicial bodies where the quantum of
evidence required to establish a fact is substantial evidence. Often described as
more than a mere scintilla substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion even if other
equally reasonable minds might conceivably opine otherwise.”
The Court also ruled:
“We are well aware of the principle that, consistent with the purposes underlying
the formulation of the POEA-SEC, its provisions must be applied fairly, reasonably
and liberally in favor of the seafarers, for it is only then that its beneficent provisions
can be fully carried into effect. This exhortation cannot, however, be taken to
sanction the award of disability benefits and sickness allowance based on flimsy
evidence and/or even in the face of an unjustified non-compliance with the mandatory
reporting requirement under the POEA-SEC. When the language of the contract
is explicit and leaves no doubt as to the intention of its drafters, the rule is settled
that courts may not read into it any other intention that would contradict its plain
import While we sympathize with (seafarer’s) plight, we are, therefore, constrained
to deny his claims for disability benefits and sickness allowance absent proof of
compliance with the requirements set forth in Section 20 (B), paragraph (3) of the
POEA-SEC.”
Coastal Safeway Marine Services Inc. vs. Elmer T. Esguerra; G.R. No. 18352
; Second Division; August 10, 2011 ; Associate Justice Jose Portugal Perez,
Ponente.
Dismissal of seafarer requires notice and reasonable time to explain
A radio officer filed a complaint for illegal dismissal. The 1998 case eventually reached
the Supreme Court which ruled that the dismissal was proper as enough evidence
was presented by the Master and other officers of the ship which showed “sowing
intrigue and dissension on board the vessel”; “inefficiency and neglect of duty” and
“insubordination or disobedience of the lawful orders of the shipmaster”. Presented
as evidence were letters of the Master, the Filipino Chief Officer and the Filipino 1st
Assistant Engineer. The Court ruled that this evidence was not refuted and should
therefore be admitted as sufficient support for the charges.
However, the Court awarded nominal damages of P30,000 (US$700) as the Radio
Officer was immediately dismissed without giving him reasonable time to explain
his side and if necessary, to explain his side in writing. The Court ruled that “while
this lapse in procedure cannot negate the existence of a valid cause for Flores’
dismissal, the violation of his right to procedural due process warrants the payment
of indemnity in the form of nominal damages.”
Abosta Shipmanagement Corporation vs. NLRC and Arnulfo Flores, G.R. No.
163252, Second Division, July 27, 2011, Associate Justice Arturo Brion, Ponente.
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POEA Memorandum Circular 08/2011 dated July 20, 2011
A reminder that all licensed manning agencies are required to submit a weekly
deployment report before the close of office hours every Friday. Failure to
comply shall cause the immediate suspension of the agency/ies documentary
processing without prejudice to the filing of an administrative case for violation
of POEA Rules and Regulations.
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