Smuggling as ground for dismissal

3:51 am Friday, February 10, 2017
By: Atty. Dennis R. Gorecho

Smuggling is the illegal transportation of objects, substances, information or people, into a ship,  or across an international border, in violation of applicable laws or other regulations. The verb smuggle, from Low German schmuggeln or Dutch smokkelen (=”to transport (goods) illegally”), apparently a frequentative formation of a word meaning “to sneak”, most likely entered the English language during the 1600s–1700s.

There are various motivations to smuggle. These include the participation in illegal trade, such as in the drug tradeillegal weapons tradeexotic wildlife tradeillegal immigration or illegal emigrationtax evasion, or the theft of the items being smuggled.

Before a seafarer can be dismissed and discharged from the vessel, it is required that he be given a written notice regarding the charges against him and that he be afforded a formal investigation where he could defend himself personally. Section 33 of the Philippine Overseas Employment Administration- Standard Employment Contract (POEA-SEC) enumerates twenty one (21) offenses which are considered valid grounds for dismissal.  One of the grounds of dismissal of Seafarer identified is smuggling.

In summary, the POEA-SEC identifies the following acts as Smuggling or violation of any custom rules and regulations of the Philippines and of foreign ports:

  1. smuggling any taxable item
  2. possession or use of prohibited drugs, narcotics and other contraband
  3. gun-running or possession of explosives and the like
  4. abetting or conniving with others to commit smuggling
  5. misdeclaration of or failing to declare articles leading to their seizure and fine to ship
  6. misdeclaration of or failing to declare articles leading to their seizure but ship not implicated
  7. possession of pornographic materials leading to its seizure and fine to ship
  8. possession of child pornography materials leading to its seizure and fine to ship
  9. Any other violation which will not implicate ship
  10. Any other violation which will implicate the ship

Under the POEA-SEC, when a seafarer commits such act(s), he may be penalized by the master of the vessel with dismissal and be made to pay the cost of repatriation and his replacement. Additionally, an administrative complaint or disciplinary action against the seafarer may be filed before the POEA, who, after due investigation, may impose penalties ranging from suspension to delisting, depending on the gravity of the offense and the frequency of the violation(s).

Of the acts listed above, two offenses will be meted outright delisting from the POEA registry: (a) possession or use of prohibited drugs, narcotics and other contraband and (b) gun-running or possession of explosives and the like. A strict prohibition on possession of prohibited drugs is in line with the duty of the shipowner, operator or employer to provide a safe place for the seafarer to work. This includes providing fellow crew members who are fit and capable of carrying out their duties safely. Seafarers who are under the influence of drugs clearly present a safety hazard for which an employer may find himself both civilly and criminally liable. A drug-free ship not only provides a safer working environment but also enhances each individual seafarer’s long term health prospects.

Do note that the commission of smuggling is not the only act penalized but includes “abetting or conniving” with others to commit smuggling. This refers to actuations that tends to encourage, support, or countenance by aid or approval on the wrongdoing of the principal offender. It is based on the criminal law that penalizes another person who may have carried out the illegal act(s) as an agent of the charged, working together with or under the direction of the charged, who is an accessory to the crime.

Most of the countries where international merchant ships ply for exports and imports, do not allow pornographic material of any kind and a person found in possession of such material is subjected to prosecution and imprisonment. Some countries have even stricter rules if the pornographic content found contains explicit sexual content featuring children, animals or harm and forceful nature.

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