Category Archives: Maritime

UNHOLY ALLIANCE Part I

by Geraldine “Reggie” Rullan-Borromeo
(Manila, Philippines)

Published in the Tinig ng Marino, September-October 2012

After the toiling many years at sea, Filipino seamen often contract work-related diseases that entitle them to disability benefits from the shipping company. Hard pressed with illness and expenses, these seamen often succumb to offers from predator entities that take advantage of their lack of knowledge of substantive and procedural law. Illustrated below is a real story masking the identities of the persons involved to protect them from potential harm in this parable like expose.

In an interview with Rogelio Santos, who was a Chief Cook for a reputable manning agency for several years, the following story was related.

A year after his wife passed away, Rogelio himself was diagnosed with a heart condition and had to have a major surgery abroad. It was in one of his check-ups in a hospital here in Manila when he was approached by a fellow who told him he could get much more than what his company could offer him and at a faster way…to file a case against his company.

He was then brought to an office owned by Capt. Hook and introduced to his lawyer Atty. Slim Shady. Looking back Santos says, “Hindi ko rin po alam kung ano yung iniisip ko noong panahong iyon. Siyempre maraming bagay ang naglaro sa utak ko. Kamamatay lamang ng asawa ko at nagbabayad pa ako sa nagastos namin. Tapos nandiyan pa ang tatlo kong mga anak. Pwede pa naman po sana akong sumakay uli pero natakot din po ako kasing pumirma ng waiver sa kompanya ko. May kaibigan po kasi ako dati na naputol yung daliri, naibalik naman po at pagkatapos noon ay pumirma siya ng waiver at sumakay uli. Habang nasa barko siya, namaga ang kaniyang daliri matapos ang tatlong buwan kaya nauwi rin sa wala.”

(“Many things were playing in my mind at that time since my wife just died leaving me with three children and we had so many expenses. I could have signed for another contract at sea but I was apprehensive. My seaman friend whose finger was cut at sea and when it healed he reapplied for another contract but he was asked to sign a waiver on any complications that may arise from his previous injury. When his finger became swollen at sea he was no longer entitled to any benefits.”)

Aside from his personal reasons, Capt. Hook and Atty. Slim Shady really knew the right things to say to Santos who admits to not being very well-versed in the law.“Magaling din po talaga silang magsalita. Kapag nagpakita ako ng pagdadalawang-isip ay kaya nila uli akong kumbinsihin.”(The lawyer and ship captain were smooth talkers. Whenever I showed that that I was having second thoughts, they could persuade me to go along with their scheme.)

The lawyer and ship captain ‘s plan was for him to file a total disability claim, with the lawyer getting 20% from the amount Santos would be paid from a settlement. During that time, the lawyer allowed Santos cash advances for his needs.

Santos who admitted to having a very good manning agency and shipping company said he regretted filing a case against his agency and at one point he talked to his lawyer about withdrawing it.

“Nagsisi talaga ako at sinabi ko sa kanila na iaatras ko na ang kaso. Nabigla lang naman din kasi talaga ako eh. Ayaw ko na talagang magdemanda. Yung may-ari ng agency na pinagtrabahuan ko mabait naman, yung may-ari ng barko, naging kaibigan ko rin naman kaya talagang hiyang-hiya ako.” (I regretted filing a case against the shipping company as I did that in haste. The shipping company was good to me as was the ship owner. They became my friends that is why I was so ashamed in filing a case against them.)

When Santos voiced out his decision to withdraw the case, Atty. Slim Shady said that it was already impossible to back out. According to the lawyer, once a case has been filed in court, the complainant can no longer withdraw it no matter what happens.

The shipping company Santos settled the case with him and paid him his disability benefits. Atty. Slim Shady took 10% from the $70,000 given to Santos. However to Santos’ surprise, he took another 20% after the money was converted into Philippine currency.

“Nagulat din talaga ako kasi hindi naman yun ang usapan pero hindi na lang din ako nagsalita,” Santos claimed. (I was surprised since the deductions they made were not in conformity to their original agreement, but I oculdn’t speak up.)

While Santos is not someone who can be described as meek, he said that every time he would try to complain, the right-hand-guy/bodyguard of Atty. Slim Shady would indirectly threaten him. Even Capt. Hook once put his gun on a table while talking to Santos when the latter talked about withdrawing the case.

“Kapag nagreklamo po ako ipapakita sa akin yung baril. Hindi naman po tinututok, ipapakita lang gaya ng minsan eh ilalapag sa mesa sa harapan ko,” added Santos. (Whenever I would complain about the new terms that Atty. Slim Shady and the ship captain were imposing on me, they would casually put a gun on the table or bring it in view. They did not point the gun to me, but even so I got the message.)

As subtle as the threat was it was still a threat and Santos who after his wife’s demise is a single parent to three kids, one of them barely a year old resorted to keeping his mouth shut.

All in all what was supposed to be P3.4M disability pay for Santos became P1.8 and then Santos had another unpleasant surprise when he was asked to pay P600,000.00 for his cash advances to cover interests on the amount.

According to Santos, “Yun talaga nagtaka ako kasi nililista ko naman yung mga cash advances ko. Pati mga resibo tinago ko kaya alam ko na mga P130,000.00 lang ang na-advance ko.” (I was very surprised because I listed every cash advance I made. Every receipt I also kept and I know I only advanced P130,000.00)

“Wala naman din po kaming usapang may interes iyon.” (We had no agreement that interest will be imposed on my advances.) After all his “bills” were settled, Santos said the bodyguard and driver of Atty. Slim Shady would even contact him asking him for “balato” (a portion of the windfall).

After they got their money the group even tried to lure Santos into “convincing” other seafarers to file cases against their agencies. When he declined they just totally disappeared from Santos’ life.

“Siyempre hindi rin kaya ng konsensya ko na gawin sa mga tulad kong marino yung ginawa nila sa akin kaya talagang humindi ako sa kanila. Pagkatapos noon, nawala na sila. Ako nag-move on na lang din.” (I could not in good conscience help Atty. Slim Shady and the ship captain to victimize other seafarers. After I refused to help them, they left me alone and I moved on with my life.) Right now Santos can say he has fully moved on from what happened. With what’s left of the money granted to him, Santos bought a van which he would rent out to his clients.

Aside from that, his experience as a cook helped him in managing his own carinderia. He also has a small carinderia. His two older sons who are both seafarers also help out with their expenses.“Tanggap ko nang hindi ko na makukuha pang muli yung nakuha nila sa akin pero sana wala na rin po si-lang mabiktimang iba. Alam ko po kung gaano kahirap ang trabaho ng mga marino.” (“I have long accepted that I can no longer recover the amounts they swindled from me. I just hope other seafarers will not also be victimized.”)

Santos is not the first seafarer victimized by these “ambulance-chasers,” neither will he be the last. His own sister-in-law was victimized by another group.

“Marami po talaga sila. Siguro may mga dalawa pang grupong lumapit sa akin. Hindi ko na po makukuha kung ano yung dapat ay sa akin. Wala na yun. Ang akin lang ay sana wala na silang iba pang mabiktima.” (There are many groups approaching seafarers in the guise of helping them recover a supposedly higher disability claim than what the shipping company would give them under their contracts.”)

UNHOLY ALLIANCE Part II

by Geraldine “Reggie” Rullan-Borromeo
(Manila, Philippines)

Published in the Tinig ng Marino, September-October 2012

According to Atty. Geraldine Rullan-Borromeo “One should always remember that every lawyer is bound by the Code of Professional Responsibility and any action that violates the Canons of this Code makes that lawyer unfit for the practice of law and subject to sanction.”

In the case of overseas workers who are medically repatriated to the Philippines, the illness of the repatriated workers merits from lawyers an even more sensitive and stringent application of the Code. Complainant (Santos), versus his manning agency, and/or shipping company and/or owner of the manning agency, filed in the National labor Relations Commission (NLRC). In this case, after the case was settled, the Complainant and Respondents both raised the question if faithful compliance with the Code was practiced.

Complainant filed a Complaint for Permanent Total Disability Benefits, Reimbursement of Medical Expenses, Sickness Allowance, Moral and Exemplary Damages and Attorney’s Fees against the manning agency and its principal.

The labor arbiter found in favor of the Complainant and held that the Respondents were liable for permanent total disability benefits.

The basis of the award of the Labor Arbiter is the Collective Bargaining Agreement (CBA), which provided for benefits in the event a seafarer suffers permanent disability. The Degree of Disability in said CBA provided for over a USD100,000.00 in benefits.

The Labor Arbiter decided that Complainant’s total loss of earning capacity, since he can no longer work or earn wages in the same kind of work because of his illness, entitled him to said benefits under the CBA. The Labor Arbiter also gave credence to the Disability Report of a medical specialist who opined that the recurrent episodes of chest heaviness associated with exertion in his line of work greatly affected his ability to perform the same kind of work. The Complainant was then medically declared be UNFIT FOR SEA DUTY in whatever capacity as a seaman.

The Complainant’s alleged that Respondents were only willing to grant disability benefits corresponding to a lower Grade level than was actually due him, upon the recommendation of the company physician. Complainant also alleged that Respondents even delayed the full payment of his sickness benefits.

The Labor Arbiter gave weight to Complainant’s claims. Complainant was also found by the Labor Arbiter to have forcibly made to borrow money from the company owned by Respondents themselves and was allegedly charged usurious interest for the same, resulting in unwarranted deductions from his benefits.

The allegation of the Respondents that Complainant was accorded due medical attention at the onset of his heart attack overseas and after medical repatriation was not given credence by the Labor Arbiter. The refusal of the Complainant to abide by the recommendation for a coronary heart bypass graft surgery by the Respondents’ company designated physician, was not given weight even amidst the allegation of Respondent that such refusal actually worsened the Complainant’s heart condition.

Santos’ claims that Atty. Slim Shady took more than what they have agreed upon is already against “CANON 15 – A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS.”

“CANON 16 – A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME INTO HIS PROFESSION.”

“CANON 17 – A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM.”

“CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.”

“Rule 20.01 – A lawyer shall be guided by the following factors in determining his fees:

(a) the time spent and the extent of the service rendered or required;

(b) the novelty and difficulty of the questions involved;

(c) The importance of the subject matter;

(d) The skill demanded;

(e) The probability of losing other employment as a result of acceptance of the proffered case;

(f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;

(g) The amount involved in the controversy and the benefits resulting to the client from the service;

(h) The contingency or certainty of compensation;

(i) The character of the employment, whether occasional or established; and

(j) The professional standing of the lawyer.

Rule 20.02 – A lawyer shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to tout the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone other than the client.

Rule 20.04 – A lawyer shall avoid controversies with clients concerning his compensation and shall resort to judicial action only to prevent imposition, injustice or fraud.”

The agency owner also alleges that the principal was persuaded to appeal its case even if the chance of reversing the Labor Arbiter’s Decision is practically nil due to the evidence presented in the case. This resulted in misleading the principal in ascertaining the amount payable to Complainant in the process of negotiating the amount under the Release which is again, against –

“CANON 9 – A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW.”

“CANON 13 – A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVE THE APPEARANCE OF INFLUENCING THE COURT.”

Complainant was overpaid in the Release as his sickness did not merit a certain category of payment. Under the Philippine Overseas Employment Agency’s Standard Contract for Filipino Seamen, only certain amounts of benefits are payable for a class of illness or accidents. In negotiating for an amount more than what is stated in the Contract, the negotiating parties must have been envisioning a higher amount to allow for higher compensation as negotiators.

Thus the agency owner alleges an “UNHOLY ALLIANCE” that brings to fore the mandate of this Canon.

The case of Rogelio Santos, the alleged facts that took place during the handling of the case, it calls for the vigilance of those involved in the case to ensure that the seafarers’ rights, the manning agency and the principal are all accorded equal protection under the law.

The plight of seafaring overseas workers require the enforcement of the law to ensure that their hard earned benefits are not put to naught and that they receive the benefits due them under the law.

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