THE EMPLOYMENT relationship with the employer does not stop but continues to be in force even when the seafarer is on shore leave (Susana Sy vs PTC, G.R. No. 191740, Feb. 11, 2013).
Shore leave is defined as the period during which a seafarer is allowed to take a leave from the ship while the vessel he is working on is docked in the port.
The period of the leave can vary from a couple of hours to a few days depending on the time the ship is scheduled to be on the port.
International maritime regulations state that every seafarer is entitled to a shore leave, as granted by the master of the ship and in coordination with the port authority.
The Maritime Labor Convention 2006 (MLC2006) mandates that seafarers shall be granted shore leave to benefit their physical and mental well-being and with the operational requirements of their positions.
This is to address their welfare, social, medical or psychological needs, and to have a break from the work environment. Recreational activities not only give seafarers the much needed break but also increase their work efficiency.
Not setting foot on land, and not accessing the normal social respite and change of scenery, has a dramatic effect on mental health.
Shore leave has been heavily impacted by the pandemic and crews have been forced to remain on board their ships for extended periods without relief.
Under the Department of Migrant Workers (DMW) standard employment contract, the seafarer shall be allowed shore leave when practicable, upon the consent of the master or his deputy, taking into consideration the operations and safety of the ship.
Nevertheless, leaving the ship without permission from responsible officers during working hours can result to disciplinary measures.
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.
One of the grounds of dismissal of seafarer identified under the DMW contract is absence without leave (AWOL) which is further classified into the following acts:
a) abandoning post or duty without being properly relieved;
b) leaving the ship without permission from responsible officers during working hours;
c) entrusting to others assigned duties without authority of department head: and
d) leaving the ship without permission
“AWOL” in general is being absent from their post without a valid pass, liberty or leave.
In contrast, desertion is not measured by time away from the unit, but rather: by leaving or remaining absent from their unit, organization, or place of duty, where there has been a determined intent to not return; if that intent is determined to be to avoid hazardous duty or shirk contractual obligation.
When a seafarer commits such act of AWOL, 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 DMW, who, after due investigation, may impose penalties ranging from suspension to delisting, depending on the gravity of the offense and the frequency of the violations.
In the Sy vs PTC case, the Supreme Court noted that it is not enough that death occurred during the term of the employment contract (while on shore leave), but must be work-related to be compensable. There is a need to show the connection of the seafarer’s death with the performance of his duty.
In denying the claims for death benefits, the Court ruled that the seafarer was doing an act for his own personal benefit at the time of the accident. The cause of death at the time he was on shore leave which was drowning, was not brought about by a risk which was only peculiar to his employment as a seafarer.
In Transglobal Maritime Agency, Inc. vs Chua (G.R. No. 222430, Aug. 30, 2017), the Supreme Court ruled that dismissal is too harsh a penalty to be imposed due to the supposed disobedience.
The seafarers explained that they returned later than their shore leave because of a problem with their contracted vehicle. They immediately went to the ship’s office to return their passports and documents. However, the ship captain was furious and asked to explain their tardiness.
The Court ruled the company failed to establish that the disobedience was characterized by a wrongful and perverse mental attitude. They declined to sign the written reprimand given that they believed that the written reprimand and logbook contained falsities for they maintained that they had an explanation for the late arrival.
Denial of shore leave to seafarers who looks forward to stepping and walking on land after spending several weeks and months at sea is undeniably a violation of the basic human rights.
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Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, e-mail info@sapalovelez.com, or call 09175025808 or 09088665786./PN
