How Seafarers Can Get Their Due Compensation After An Accident?

A Seafarer’s life is always full of hurdles. As they work long months away from home and family much life is at stake specially when there’s an accident but you do get your moments of triumph as showcased by this story published in La Progressive, Sea Duty section.

What about my family…my daughter…their future…

These are the very first thoughts that pierced through my slowly fading consciousness as I tried to keep my eyes open, worrying that closing them would mean closing them forever. It was that fateful night of October 10, 2014, when Jomar Thomas, an ex-maritime professional witnessed an unforgettable experience.

The accident

It was just an ordinary day.

• My job, as a member of the deck team, was to prepare the ropes and all the other accessories and tools needed for fasting the ship alongside the port.
• But that night, a co-worker friend (the pumpman) requested my help.
• He needed someone to check the tanks, 12 in total, before the cargo master would board the ship.
• The truth is (and I knew it from the start) he was not able to do the sounding/measuring of the tanks because he needed to get some rest and regain much of his strength before beginning a full 18-24 hour straight shift.
• This is one of the biggest problems in the shipping sector: the working hours. More on this to follow.

The cargo master is the one who calculates and double-checks for the cargo owner, a large oil company, the amount of cargo, whether diesel or gas or some other form, and  find out if there is any discrepancy, intentional or not, between the declared amount as per contract in contrast to the actual measured amount.

A mere shortage of 5 millimeters of liquid in the sounding tape would mean that a few million dollars’ worth of cargo diesel is missing.

In short, we have to make sure we know accurately how much less or more we have, before the cargo master comes in to check and declare his own version of the measurement.

Discrepancies in values are classifiable as either intentional – with intent to steal or misdeclare – or unintentional, such as human error, temperature change or faulty instruments. In short, this part of the job is very, very sensitive – money and litigation sensitive.

I managed to get the reading for the first 2 tanks.  But on my way to the 3rd tank, I slipped badly in such a way that I flew through the air, on the top of a ramp, and landed on solid steel ground with my forearms smacking against the curb of ramp.

As my consciousness slowly escaped me, thoughts about my kids and wife were racing through my head.  I neither cared about my forearm nor the pain emanating from it.

Getting to the hospital

The ship’s captain ordered my immediate evacuation and hospitalization.

• The ship’s crew, together with the agents, lifted me from the ship to the shore through the ship’s crane using a cargo net.
• They then began to rush me to the nearest hospital. The captain called for an ambulance, but none came.
• The nearest one would be about 30 minutes away. In the midst of all that commotion, the rain started pouring.

It was a race against time. They loaded me unto the back of a pickup truck, the length of which was too short to accommodate the stretcher on which I was strapped.  As you can imagine, my legs were dangling and jiggling with every road bump we came across. The road sounded muddy and slippery but we had to get to the hospital.

Capitalist negligence and legal manipulation

Accidents don’t “just happen”, they happen for at least the following reasons:

1. Working-area hazards. Notice the handrails in the picture? Yes, the handrails are only present on one side. The other side is wide open. This had already been reported as necessary but fell on deaf corporate ears.
2. Safety gears. I already informed our safety officer that our safety shoes (cheaply made) were slippery on oil. Oil was our main cargo and this multiplies the risks of accidents like slipping, sliding or falling.  But for some mysterious reason, even though our safety officer had ordered high quality, oil-resistant, non-slip shoes, the supplies that came were all the cheap ones.
3. Physical and mental fatigue due to long working hours. Seafarers are one of the most physically, mentally abused and overlooked workers among the working class. On corporate paper records, the prescribed work hours onboard is 8 hours a day plus an obligatory 1hr/day overtime.  We usually worked 120-130 hours of overtime per month at a minimum. In desperate situations, like engine overhaul and general cleaning, this figure can skyrocket to 180-200 overtime hours per month.  But the International Maritime Organization (IMO), International Transport Workers Federation (ITF) and International Labor Organization (ILO) penalize corporations from such practices.

The corporate solution? Limit the overtime to 120 hours, fixed. They filed several notices, rules and regulations to cap the figure to 120 hours.

It sounds good at corporate meetings but for the workers, this is an ominous “solution”.

The 120 hours compliance only happens on paper record sheets but in actuality, we still worked beyond the prescribed hours, especially during overhauls and emergencies.

• Management would just not allow it to be “written” in the overtime record sheets.
• In essence, this rule by the ILO and the IMO is double talk and anti-working class in the same way that “right-to-work law” does not mean what you think it means.
•   It rips off of the sea-based workers by secretly capping their OT pay to 120 hours fixed while making the company look good publically by being IMO and ILO compliant.

“Cost-effective” revolving door of hospitalization

In Honduras (where my accident happened), the government-subsidized hospitals are packed.  The company agent from Honduras even explained to me that as many as 4 to 6 patients may share a single room with very limited privacy and almost non-existent peace and quiet time for me to recuperate before flying back to Manilla in the Philippines.

I was a bit lucky that the agent, a Latin American, decided to admit me to a private hospital. However, I since realized he did not do this out of kindness.

It was more about the expense and amount of time that they were willing to invest in order to make sure that I was fit to fly back home.

Every day that I remained hospitalized was another day that the corporation had to pay for my salary, my hospitalization, my agent and his food, hotel and travel.

• My arm was operated on and planted with orthopedic braces and 12 screws. 
• The pain was excruciating afterwards.
• The nurses, who only spoke Spanish, were hard to communicate with.
• When a magnitude 7.3 earthquake struck the area, our communication was reduced to hand signals and facial expressions.
• All the nurses and the staff could do was scream and cry.
• I managed to get to the topmost floor, holding my own intravenous pole while half-naked (because they removed my clothes and replaced them with a shawl as they do for all for surgery patients).
• I could only laugh looking back at it all as the head doctor interviewed me the very next day and asked why I was spotted naked last night.
• I explained to him that I needed to go to the topmost floor (the safest) during an earthquake, naked or dressed, to which he replied with two nods and a hand clap.  After 5 days, they flew me back to Manila.

Corporate insurance

Inside the corporate office in Manila the insurance officer handed me a piece of paper. He told me it was just some standard operating procedure paper, nothing to worry about.

Still jittery from the surgery and pain, I was not able to fully comprehend the context of the phrases.

My marine engineer father, who was with me at that time, managed to read what I was about to sign. He crumpled the piece of paper. A mild argument between my father and the insurance officer ensued.

In the end, they failed to make me sign what appeared to be a ‘quitclaim’ paper – a document stating that I have received my complete salary and benefits.

Salary – yes, but medical benefits – no.

From that day on, we knew that the company was already working against my interest.

They then sent me to their ‘accredited’ doctor.  By accredited, they mean, their own doctor, someone who works for them and is on their payroll, directly or indirectly.

Under Philippine labor laws, seafarers are:

1. Entitled to be hospitalized for medical treatment for 120 days;
2. The cost of the hospitalization will be paid by the company;
3. If after 120 days, the seafarer still is not fit for sea duty, the company has 2 options:
   • under exceptional cases, treatment can be extended to 240 days or…
   • submit the case to the insurance company for deliberation regarding how much the employee should receive

When Are You Really Fit for Sea Duty?

Here is the problem. According to our labor laws, which are recognized by other international labor law organizations, a worker will be given free hospitalization and medical treatment for 120 days and within that period the company must exhaust all means available to see to it that the worker gets back to 100% capability. This may sound good but it actually works against the best interests of the worker.

• There are times when a worker may recover from surgery but with less strength or less mobility than before.
• As in my case, the stitches on the skin of my forearm may look completely healed, with x-ray results showing bones have reconnected.
• The strength, however, will be totally different if I’m pulling weight diagonally, as opposed to vertically.
• The newly connected bones will crack again and a 2^nd operation will become imperative. Company policy of maximum 120 days is not enough recuperation time to go back to work at physically demanding tasks.
• But by some magic, the “accredited” doctor sees that the worker looks “fit for sea duty” for a contract duration of 9 months.

My experience is living testimony, as well as other stories from co-workers and labor lawyers, that the company-accredited doctors are not working for our best welfare.

The accredited doctors, when a patient is close to the 120 day limit, will most certainly find a way to issue a “fit for sea duty” diagnosis since it frees the company from paying for  further medical treatment.

• This also signals that the role of the company doctor has been successfully fulfilled.
• A commission is usually awarded to the company doctor for every patient certified “fit for sea duty”.
• Supposedly, I am fully healed and fully recovered according to their parameters.

Signing the waiver: no long-term compensation

Since you are declared “fit-to-work”, the company will ask you to sign a release paper, stating:

• the company has been good to you and has given you the amount of medical treatment needed as per legal mandate, that you are fully healed, and;
• that you are waiving all rights to seek reparations from any adverse incident arising from the surgical procedure, such as screws losing their grip on the bones after a week.

This puts the worker at a disadvantage as medical procedures sometimes go badly after only a few days after hospital discharge.

The silver lining, however, is that the company will offer you a new contract for rehire.

Being rehired

By signing a new contract, you are “releasing” the company from any new obligation that may arise as a result of your previous accident and hospitalization. 

• Bundled with the new contract is a waiver that states you know your medical history (broken forearm), that the company is not forcing you to be employed and it was just the “goodwill’ of the company that they hired you again.
• By essence, this waives my rights should any adverse incident arise from my condition, like a bone infection from the screws or some internal bleeding. T
• he company cannot be held liable for these problems since it is presumed that it is with my full knowledge that I have this condition – but I still wanted to work.

Being a marked man

• There are reported instances, wherein a worker was recommended “fit for sea duty” and then given a new sign-up contract.
• However, under secret instructions from the company, managers and key company officers will find ways to kick that particular worker out of the workforce either by lying that there is no vacancy for him for the next assignment or that captain does not like his previous performance.
• He will be forced to remove his current application and try his luck with the  company next door.
• When he does, his previous employer has already spilled his medical history (thru a phone call called background checking) and how this may affect his performance onboard along with the risk to the capitalist should his medical condition deteriorate.
• This is basically a pump-and-dump strategy, a soft version of illegal dismissal which is punishable under labor laws. A marked man who has nowhere to go but unemployment.

No deposit, no return

In a capitalist environment, a worker with a serious medical history like mine is a liability at the least and a risk at best.

• The new company will not gamble their profits by taking in a medically disadvantaged worker.
• The cost of flying a worker back home plus the cost of the hotel accommodation, the hospital treatment, the agents, and the cost of flying in a replacement worker with his hotel accommodation, too – all of this will be taken into account and financial consideration by the capitalist.
• Sadly, with thousands of young and healthy new applicants to choose from, an applicant with a past medical history, with no capital seed to start a small business, with no company to return to, now virtually belongs to the ‘unemployed’ sector.

Up against the judicial wall

Legal battles here in the Philippines are costly and lengthy.

There is a new law being proposed by corporate lobbyist posing as pro-labor entities, that gives more leverage to the corporations and in essence, it goes like this:

• Lower court decisions with regard to rewards of benefits are final and executory but with the new proposal, can now be “challenged” in the court of appeals or even up to the final resolving body – the Supreme Court.
• If a legal battle ensues between the corporation and me and the lower court decided that I be given three times what the corporation initially offered, the proposed law, if ratified, allows the corporations to either follow the court decision or challenge the decision up to the highest court – the Supreme Court. This legal battle can take about 3-5 years.  The expense arising from this is beyond the financial capacity of a regular working-class seafarer, let alone an ex-working seafarer.

This gives the corporation a clear ‘edge’ over the seafarer.  For one, they have the money, the legal team and the connections.  Next, they can lure the seafarer into submission for a lower offer, lest that seafarer wants to prolong their own agony of legal skirmishes for several years.

In the end, the seafarer would likely drop the case and agree to settle for a lesser amount or face uncertainty of either winning it big or losing it badly.

How To Make It Work in Your Favour?

According to our labor law, my case only qualifies me for between grade 9 and grade 11 (grade 12 is lowest) with a very low benefit payout.

The ‘accredited doctor’ even reiterated this legal context several times to me.

But, I reasoned to the corporation – under the secret guidance of my friend who is a labor lawyer – that even though my left forearm is intact, connected and functioning, the previous strength and lifting capacity that I have is no longer the same as before the accident. 

• As such, my career is in peril. My work requires extreme physical exertion and with 12 screws holding my bones together the risk of suffering another fracture is very high.
• In short, my career, including the 4 years of studying marine sciences, will all become meaningless because no company will hire a high-risk employee.

The corporation agreed, but only because they know very well that I was prepared and armed with information on the legality of my case.

The corporation, without going through the court battle phase, offered me the maximum possible coverage.

The benefit payment is on par with death or total disability payments.

They offered; I did not ask.  Amicable negotiations with the capitalist are only effective if they are backed by a clear and present threat of victory for the working class. The same goes for peaceful demonstrations – it only works when it is backed by an imminent threat of mass uprising, riots and/or revolutions.

After-effects

I was forced to retire at the young age of 34.

Rumor has it, that my name is included in a ‘watchlist’ among maritime hiring agencies.

• The watchlist includes who not to hire for a multitude of reasons, but as in my my case, since the corporation gave an amount equal to a “total disability package”, like death or loss of both limbs, I’m considered too risky.
• By doing that the corporation somehow wants to make sure that I really live the rest of my life as a totally disabled person.
• In simpler terms, unemployed and unemployable.
• The silver lining, however, is that I have all the time in the world to work from home on projects of great meaning to me and to take care of my kids.

About Jomar Tomas

Jomar Tomas, a father of two, is an ex-maritime professional who worked onboard tanker vessels as part of the deck and navigation crew. His time and passion is currently devoted to several groups and projects seeking ways and means to achieve an eco-socialist, scientific and egalitarian society.