Monday, December 17, 2018, 9:28 p.m.
By Atty. Dennis R. Gorecho
A seafarer may be dismissed in the event that he is found to be committing unauthorized acts in connivance with or cuddling of stowaways.
The International Transportation Workers Federation (ITF) defines a stowaway as a person who secretly enters a ship without the consent of the shipowner or the person in charge, and who is on board once the ship has left port.
Stowaways have existed ever since international shipping began, but they have become a growing problem. In recent years, more and more people are leaving their home countries in pursuit of a better life with greater economic chances, or to flee war, discrimination or other conflicts. In desperation, and lacking funds to travel, an increasing number have resorted to stowing aboard ship, often in the poorer countries of Africa and Asia, to seek a better life abroad.
For those seeking escape, few routes are as perilous as the sea. Hundreds of thousands are sea migrants, whose journey involves some level of complicity from the ship’s crew. The experience of stowing away at sea is compared to hiding in the trunk of a car for an undetermined length of time, going to an unknown place across the most brutal of terrains, under extreme temperatures and without enough food or water.
To get on board, some stowaways pose as stevedores or deck cleaners. Others swim under the stern and squeeze through space where the rudder meets the ship. Many scales the side, helped by “stowaway poles”: long bamboo sticks with toeholds and a hook.
The ITF noted that even if stowaways create problems for a crew, they are not criminals and should have their basic human rights respected and receive fair treatment while on board.
A stowaway should not be arrested or detained (although the master has the right to maintain discipline on board), and should not be forced to work. The ship’s owner or agent must immediately be informed while the master must prepare a signed statement containing all information relating to the stowaway, to be given to the authority where the stowaway is delivered.
The amendment on dealings with stowaways in the Convention on Facilitation of International Maritime Traffic (FAL Convention) entered into force globally on January 1, 2018. A new standard requires governments, where appropriate, to incorporate legal grounds to allow prosecution of stowaways, attempted stowaways and any individual or company aiding a stowaway with the intention to facilitate access to port areas, ships, cargo or freight containers into their national legislation.
Nevertheless, a seafarer may be dismissed if he is found to be in connivance with or cuddling of stowaway.
When a seafarer commits such act, 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 frequency of the violation(s).
It is well-settled that the burden of proving that the termination of an employee was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal.
In order to discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures
Under the “two-notice rule”, an erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Should sanctions be imposed, then written notice of penalty and the reasons for it shall be furnished the erring seafarer. It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings
In case of an illegal dismissal, either there is no valid ground or he was not afforded due process under the “two-notice” rule, a seafarer is entitled to receive from his employers His salaries for the unexpired portion of his employment contract not merely his salaries for three (3) months for every year of the unexpired term.
(Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan Law offices. For comments, email firstname.lastname@example.org, or call 09175025808 or 09088665786)