 THE
LAW AND SEAFARERS
ATTY. BASILIO H. ALO
"The Protector"
Overseas legal protection, still a pipedream?
RADYO ng Bayan DZRB recently aired the case of a Filipino
chief mate in an ocean-going vessel of Norwegian registry while anchored
off Panama. The officer had ordered his Panamanian boatswain to lift a
hatch, but the luckless sailor slipped, got pinned and eventually succumbed
to fatal injuries days after. Five years later, the Filipino officer was
shocked to learn that a Panamanian court had issued official summons to
try him for criminal negligence from the same incident.
While brushes with the law are not uncommon to seafarers
unwinding in international seaports, the receipt of a court notice coursed
through the Department of Foreign Affairs (DFA) regarding a long past,
essentially internal incident, was a most unpleasant surprise.
But our friend should not lose sleep over it. Under widely-accepted
international laws, a court’s criminal jurisdiction, unlike civil jurisdiction,
extends only to persons within the nation’s territory. The Panamanian court
cannot therefore conduct a trial against the Filipino shipmate as long
as the latter remains physically outside Panama’s boundaries.
Fact is, the summons from the South American judge should
have been politely refused by the DFA.
The exception is of course if there were an extradition
treaty between the Philippines and Panama covering the specific offense
of criminal negligence. Our Department of Justice would then have the responsibility
of taking custody and delivering the chief mate to Panamanian authorities.
Since no such extradition treaty exists, the only way
the seaman can be placed under the Panamanian court’s jurisdiction is if
he voluntarily presented himself to said court. Such would not necessarily
be a rash decision since crimes of negligence normally are not serious
offenses.
Besides, it strains common sense to say that because the
chief mate directed a normal order to the boatswain in the ordinary course
of operations — indirectly causing the deck officer’s death because of
a slippery surface —he can now be indicted and, heaven forbid! — convicted
for criminal negligence.
Since employers and shipowners normally insure the crew
against ship-related risks, it is possible the insurer may have required
the filing of a criminal case as a condition precedent to insurance recovery.
In any event, if the seafarer concerned has retired from
active ship employ, he can forget about the Panama problem. But if he is
still sailing and his vessel might drop anchor in Panama, then he better
not flirt with the pretty señoritas there unless he wants a warrant
of arrest to welcome him instead.
What he should do is touch base with the DFA’s Legal Assistant
for Migrant Workers Affairs who under RA 8042 has the responsibility to
assist overseas Filipino workers (OFW) in trouble with the law in other
countries. With rank of undersecretary, this DFA official has a legal assistance
fund to hire foreign lawyers to represent OFWs and to pay litigation expenses.
(But could DFA please make the Undersecretary’s telephone lines more caller-friendly.
Phone access has proven so difficult for this writer.)
RA 8042, or the Migrant Workers and Overseas Filipinos
Act of 1995, was precisely enacted on June 7, 1995 in the heels of Flor
Contemplacion’s controversial execution in Singapore that year. Our legislature
finally realized that our toiling kababayans abroad were (and still are)
completely at the mercy of alien judges, not only because of unfamiliarity
with legal systems elsewhere, but more because they don’t have the funds
to engage competent barristers.
That many Pinoy jobseekers have to trek abroad in the
wake of a sluggish Philippine economy is bad enough. But if our government
doesn’t provide effective legal help when needed despite the millions of
US dollars our modern-day “heroes” remit annually, then we the people must
seriously question government’s commitment to advance the seafarers’ interest.
It’s nice to be told the country is today the foremost
manning provider in about 85,000 ocean-going ships. But, wouldn’t we prefer
a reverse situation where we became the biggest global employer of crewmen
for vessels built entirely in Philippine shipyards?
Wishful thinking, you might say; but history has proven
that the astounding successes this earth has witnessed all started as wild,
seemingly impossible dreams.
For now, if the Erap administration can come up with a
truly effective legal protection mechanism focused mainly on OFWs hauled
to scary courtrooms, that would be a wonderful dream come true for the
nearly 250,000 Filipinos in the world’s seafaring industry.
(P.S. Congratulations to the new Board of Trustees of
the Maritime Law Association of the Philippines, or MARLAW, led
by President Atty. Valeriano R. Del Rosario and Chairman Atty. Benjamin
A. Somera Jr., on the occasion of their induction last February 4,
2000 at the posh Manila Floating Hotel & Restaurant.) |
