4:12 am Tuesday, May 23, 2017
By: Atty. Dennis R. Gorecho
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.
It is the duty of all seafarers to conduct themselves in the most professional, responsible and ethical manner in the performance of their duties and fulfill their obligations under the contract. The basic rule on land applies to ships as well. Although alcohol has long been part of the life and lore of seafarers, whether you work in the engine room or keep watch at the bridge, never carry out your duties under the influence of alcohol. Working in drunken condition can even lead to accidents and emergencies.
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, which include drunkenness under the following situations:
- Drunk while on duty;
- Creating trouble on board due to intoxication;
- Failure to perform assigned jobs due to intoxication.
Another offense is the failure to observe the drug and alcohol policy of the company.
The 2010 Manila Amendments to the International Convention on Standards of Training, Certification and Watchkeeping, 1978 (STCW) included new requirements aimed at curbing alcohol and drug abuse. Section A-VIII/1 of the STCW Code set down a limit of 0.05% blood alcohol content for masters, officers and other seafarers while performing designated safety, security and marine environmental duties.
There are good reasons for restricting alcohol on board. Research shows that even small quantities can impair judgment, leading to increased risk-taking, concentration problems, lower performance of navigational tasks such as tracking and difficulty responding to unexpected or emergency situations. It also greatly reduces the chances of survival in the water.
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 the penalty of suspension or permanent disqualification from participation in the overseas employment program based on the frequency of the commission of the offense:
| 1st offense – | Suspension of one year to two years |
| 2nd offense – | Suspension of two years and one day to three years |
| 3rd offense – | Permanent disqualification |
With regards to failure to observe the drug and alcohol policy of the company, the POEA may impose a penalty of suspension from one year to Three years) for the first offense or permanent Disqualification for the second offense.
The Seafarer’s Identification and Registration Book (SIRB) under MARINA rules may likewise be suspended after due process due to Intemperate habits such as drunkenness tending to cause immediate loss or destruction or serious damage to the vessel or tending to endanger the life of any person organic to or passenger of such vessel.
Under normal circumstances, a glass (or some glasses) of beer is not so intoxicating as to diminish a man’s rational capacity. It must be proven at all that such amount of alcohol blurred his reason [1] A company’s misleading argument should be disregarded in the absence of proof that the intake of alcoholic drinks was of such quantity as to blur the person’s reason and deprive him of a certain degree of control[2]
Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man for his own protection than by a sober one. If one’s conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober.[3].
The issue of drunkenness must be supported by clear and convincing proof to the effect that such intoxication or drunkenness rendered the employee incapable of doing his work so that he could not be said to be engaged in his employment. The incident must be shown to have arisen out of his drunken condition and not out of the work. The burden of establishing intoxication and that it caused the incident is on the employer.[4]
It is incumbent on the company to prove their claim of intoxication as ruled by the Supreme Court:
x x x it has been held that even if it could be shown that a person drank intoxicating liquor it is incumbent upon the person invoking drunkenness as a defense to show that said person was extremely drunk. This is so because a person may take as much as several bottles of beer or several glasses of hard liquor and still remain sober and unaffected by the alcoholic drink. Thus, intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation, although intoxication may be a contributory cause to his injury. It must be shown that the intoxication was the proximate cause of death or injury and the burden of proof lies on him who raises drunkenness as a defense [5] . While it may be admitted that the deceased drank intoxicating liquor at the dance party, respondents ECC and GSIS have not established that the state of drunkenness of the deceased is the proximate cause of his death. [6]
In case of an illegal dismissal, 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.
[1] Wright v. Manila Railroad Co., 28 Phil. 116
[2] Compania Maritima vs. Vda de Hio, 107 Phil 873
[3] Pp. vs. Pinca Gr. 129256 November 17, 1999
[4] People v. Boduso, 60 SCRA 60
[5] Vda. de Yohanan vs. Balena and WCC, 78 SCRA 348
[6] Juanita Nitura vs. ECC and GSIS, G.R. No. 89217, September 4, 1991