A WEB page enabling workers to gain rapid access to essential information about their health and safety rights and responsibilities has been set up by the Health and Safety Executive.

The "workers’ webpage" http://www.hse.gov.uk/ workers
- covers the roles and responsibilities of employers and employees, as well as issues such as ‘whistle-blowing’ and reporting accidents.

Atty. LeonardoVinz O. Ignacio
Board Member, Maritime Law Association of the Philippines
 

Atty. Eugene L. Tan III
Associate, Sapalo & Velez Law Offices
 
 

‘When Good Men Go Missing’

A missing seaman may mean one of two things: Either he went AWOL (absent without leave) and jumped ship, in which case he is branded a DESERTER, or he met an accident by falling off the boat, his body lost to the sea

Pedro, an able seaman married to Maria with whom he has a six-month old boy, spent several weeks at sea. When the boat docked at a first-class port in Great Britain, the crew looked forward to a merry evening of rest and relaxation.

In a mood to celebrate, Pedro and his fellow crewmembers shared several rounds of drinks at a nearby bar. He proudly showed pictures of his wife and baby and said he looked forward to seeing them when his contract was finished. 

Before nine in the evening, Pedro bade goodbye to his drinking mates and walked back alone to his ship. This was the last time he was seen alive. The next day and during the weeks that followed, the local police asked the help of hundreds of fishing and recreational boats to search for clues.

John, the local police officer in charge of investigating Pedro’s disappearance, interviewed the crew and after retracing the events prior to the disappearance, concluded:  Pedro had no enemies, Filipino or foreigner. He was happy with his work and loved his family very much. When he left the bar, he was a little tipsy. 

There was a possibility that as he crossed the steel railings towards his docked boat, he may have lost his balance and fell into the water. Since the disappearance occurred late at night, no witnesses could confirm the officer’s “man overboard” theory.

That morning however, a fisherman found Pedro’s wallet washed ashore. The logical conclusion was that Pedro presumably fell and drowned. While Pedro could have faked his disappearance, such possibility was remote. His personal belongings, including his wallet and passport, were recovered intact. 

When the Philippine Embassy informed Maria, she was inconsolable. For its part, the local manning agency contested the findings by asserting that Pedro was not dead but merely deserted his post to live in Great Britain.

Moreover, the agency argued that under the New Civil Code, Pedro must have been absent for seven years (or four years, in case the disappearance was under circumstances where danger of death was present) before he could, from the point of view of law, be presumed dead.

Consequently, his heirs were not entitled to death and funeral benefits under the POEA Standard Employment Contract. Is the manning agency correct?

Article 390 of the New Civil Code provides: “After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.”

This is qualified by Article 391, which gives the exceptions to the seven-year rule: “The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage or an airplane which is missing, who has not been heard of for four years since the loss of the vessel or airplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances, and his existence has not been known for four years.”

Since Pedro’s disappearance did not fall under these exceptional cases, does it now mean that Maria must wait seven years before claiming the death benefits?

Under Section 30 of the POEA Standard Employment Contract signed by Pedro, the death claims must be filed within three years from his disappearance/death.

In Caltex (Philippines) Inc. vs. Villanueva (2 SCRA 995), the Supreme Court held that the rules on presumption of death (Articles 390 and 391 of the New Civil Code) do not apply to claims under labor laws, to wit: 

“The last question is whether or not the respondent claimant is entitled to death compensation before the lapse of four years from the time of her husband’s disappearance x x x x. The foregoing presumption of death may be availed of only for the purpose of settling the estate of the missing person. They do not apply to claims under the Workmen’s Compensation Act where no settlement is involved.” 

“In the earlier case of Madrigal Shipping Co. vs. Baens del Rosario (October 31, 1959), the Supreme Court ruled that the fact of death is established by preponderance of evidence and the rule of presumptions provided in Article 391 of the New Civil Code is not applicable, considering that the laws affecting labor law, should, in light of the provisions of our Constitution enjoining the State to afford protection to labor, be liberally interpreted in order to advance the beneficient purposes of the Act to protect all workmen and their families, resolving all doubts in their favor.”

In light of Pedro’s situation therefore, Maria need not wait seven years for Pedro to be presumed dead. She can immediately file her claims for her husband’s death and funeral benefits.

Pedro’s death can be sufficiently proven by clear and convincing evidence (such as Officer John’s police report, the wallet which was washed ashore, and certifications from the Foreign Affairs) to support the finding of death.
As a special concession by the ever ebullient Atty. Ignacio, to whom I owe this distinction to share his column space, I am grateful. 

To my Labor Law professor, Undersecretary of Labor Josephus B. Jimenez, whose expertise in the subject is matched only by his infectious passion to defend those whose rights, though protected by law, are abused and trampled by the callous employer, may my fledgling practice mirror the principles and ideals which you have so effectively instilled.  

[Atty. Ignacio is formerly the Chief of Legal and Enforcement Division of the National Labor Relations Commission (NLRC) and Professor of Law at the College of Law, Manuel L. Quezon University. He is Board Member of the Maritime Law Association of the Philippines. He is presently Head of the Seafarer’s Department at the Sapalo & Velez Law Offices, 11th Floor, Security Bank Centre, 6776 Ayala Avenue, Makati City, Tel. No. 891-13-16.

Atty. Tan received his Bachelor of Laws Degree from the Faculty of Civil Law of the University of Sto. Tomas in 2004 and is now an associate attorney at Sapalo & Velez Law Offices, a law firm specializing in Maritime and Admiralty Law.]

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