Joint and solidary liability in seafarers’ abandonment cases

Joint and solidary liability in seafarers’ abandonment cases
Dennis Gorecho November 10, 2020 https://businessmirror.com.ph/2020/11/10/joint-and-solidary-liability-in...

Athough international law prescribes that the seafarer has the right to be repatriated back to his point of origin, there are those who suffer abandonment by their employers.

Repatriation comes from the Latin word repatriare, “return to one’s own country,” from the prefix re, “back,” and patria, “native land.”

Seafarers are considered contractual employees since their employment is fixed for a period of time, which shall not exceed 12 months.

The commencement of Philippine Overseas Employment Administration (POEA) contract is from the time when the seafarer actually departs from the Philippines, either at an airport or seaport, for employment.

It shall cease when he completes his period of contractual service aboard the ship, signs-off from the ship and arrives at the point of hire.

The POEA contract requires the seafarer to arrive at the point of hire as it signifies the completion of the employment contract, and not merely its expiration.

Similarly, a seafarer’s employment contract is terminated even before the contract expires as soon as he arrives at the point of hire and signs off for medical reasons, due to shipwreck, voluntary resignation or for other just causes like vessel sale and change of principal.

However, in most cases of abandonment, a shipowner has become incapable of generating required funds to continue with daily marine operations.

It then withdraws all responsibility by failing to meet its obligations regarding seafarers’ financial and social security (contractual wages), the provision of basic necessities of life (adequate food, accommodation, and medical care) and repatriation costs.

Combined with the dangers of the elements of the sea, the abandoned crewmembers have to face the stressful and inhumane consequences of being stranded in a country where they do not speak the language, not to mention the difficulties of financial constraints due to unpaid wages.

According to the International Maritime Organization, there are 438 cases of abandonment (5,767 seafarers) that have been recorded since 2004 until August 2020. In 2020 alone, 31 cases (concerning 470 seafarers) have been recorded to date.

Filipino seafarers stranded onboard the Oceanstar 86 for almost six months in the waters off the coast of Fujian, China were reported after a video showed their dire living conditions and pleaded for their immediate rescue. They were recently repatriated to the country.

As long as the seafarers have not arrived at the point of hire, they are entitled to payment of monetary benefits under the contract.

The seafarer is entitled to be paid his wages and other benefits after the expiration of his contract and during the extended period until the vessel’s arrival at a convenient port. The obligations and liabilities of the local agency and its foreign principal do not end upon the expiration of the contracted period as they were duty bound to repatriate the seaman to the point of hire to effectively terminate the contract of employment. (Interorient Maritime Enterprises, Inc. v. NLRC,330 Phil. 493).

The POEA rules state that the manning agency shall assume “joint and solidary liability” with the employer, which is meant to assure aggrieved workers of immediate and sufficient payment of what is due them.

The Amended Migrant Workers Act ( RA 10022) also states that the agency that deployed the employees shall be jointly and solidarily liable with the principal for the money claims awarded to the employees.

The Supreme Court explained in the case of Catan v. NLRC ( 160 SCRA 691, 695) the rationale: “This must be so, because the obligations covenanted in the manning agreement entered into by and between the local agent and its foreign principal are not coterminus with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties toward the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted.”

The 2014 amendments to the Maritime Labor Convention 2006 (MLC2006) require shipowners to have compulsory insurance to cover abandonment of seafarers for up to four months’ outstanding wages and entitlements. It must also cover reasonable expenses from the moment of abandonment to the time of arrival back home such as repatriation, food, clothing, accommodation, drinking water, medical care and essential fuel for survival on board.