Republic of the Philippines
COURT OF APPEALS
Manila
BRIGHT MARITIME CORPORATION
and/or W.E.M. LINES S.A.,
Petitioner,
- versus –
C.A. G.R. NO.
___________
HEIRS OF THE LATE DANILO F.
DUMOGHO represented by NORALYN
A. DUMOGHO,
Respondent,
x-------------------------------------------------------x
PETITION FOR REVIEW
PETITIONERS, by counsel to this Honorable Court most
respectfully submit the foregoing:
NATURE OF PETITION
This is a PETITION FOR REVIEW under Rule 43 of the 1997 Rules
on Civil Procedure on the Decision of the Voluntary Arbitrator (VA for
brevity) dated 20 February 2015 and Resolution of the VA resolving the
Motion for Reconsideration filed by herein petitioners.
THE PARTIES
PETITIONER Bright Maritime Corporation is a domestic corporation
duly organized and registered under Philippine Laws engaged in the
recruitment of seafarers for its foreign principals with the principal business
address at 24 Emerald Avenue, Ortigas Center, Pasig City, where notices,
orders, resolutions and other legal processes may be served upon them or
thru their counsel of record. While PETITIONER W.E.M. Lines S.A., is the
foreign principal to whom seafarer Danilo F. Dumogho was employed. Its
principal business address is in 1600 Amphitheatre Parkway Mountain
View, CA, 94043. Notices, orders, resolutions and other legal processes may
be served thru their counsel of record.
RESPONDENTS, Noralyn Dumogho representing the heirs of Danilo
F. Dumogho, is of legal age, married and residents of Block 4 Lot 18 Red
Berry Street, Meadowood Executive Village, Bacoor, Cavite where she may
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be served with notices, orders, resolution and other legal processes of this
Honorable Court or thru the undersigned counsel.
TIMELINESS OF THE PETITION
AND STATEMENT OF MATERIAL DATES
PETITIONERS, on 12 March 2015 received the questioned Decision
promulgated by Voluntary Arbitrator Atty. Allan S. Montaňo (VA Montaňo
for brevity) on 20 February 2015. And within the period allowed by the
Rules, or on 19 March 2015, petitioners filed a Motion for Reconsideration
dated 17 March 2015. This was denied by VA Montaňo thru its resolution
promulgated on 22 August 2015 which the petitioners received on 12
September 2015.
That on this day, or on due time, and within the period allowed by the
Rules to file a Petition for Review under Rule 43 of the 1997 Rules of Civil
Procedure, petitioners filed this instant Petition for Review and
corresponding (a) Court’s Docket, legal and research fees, and the necessary
(b) Deposit for costs has been paid by the petitioners, under Official Receipt
No. (s) 5305249 B, 5312567 C, & 7781146 T.
STATEMENT OF FACTS AND THE CASE
Noralyn Dumogho (respondent) is the wife of seafarer Danilo F.
Dumogho who was employed by W.E.M. Lines S.A., as the principal,
through Bright Maritime Corporation (petitioners).
On June 26, 2013, the parties executed a Philippine Overseas
Employment Association (POEA) employment contract with Danilo as
“Bosun” on board the vessel “M/V RM POWER” for an eight (8) + two (2)
months employment contract with the following terms and conditions:
Duration of Contract
Position
Basic Monthly Salary
Hours of Work
Overtime
Vacation Leave with Pay
Point of Hire
Eight (8) months + Two (2) months
extendable upon mutual consent of
both parties
Bosun
$746.00 (USD)
40 Hours/Week
$554.00 (USD) – Fixed Overtime
$174.00 (USD) per month + 126
(USD) per month
Manila, Philippines
This employment contract is covered by the 2012-2014 Collective
Bargaining Agreement (CBA).
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On July 01, 2013, Danilo Dumogho boarded the vessel M/V RM
POWER in Matadi, Congo Republic, and performed his duties as Bosun.
On 01 August 2013, as borne by the records from the Ship Master’s
Private Statement, the crewmembers heard a person shouting on the aft of
the vessel. They immediately run to the stern and A/B Delos Santos Rey
saw bosun Mr. Danilo Dumogho in the river waters trying to swim. After
that he run to the cargo office and raised the alarm on public address phone,
shouting very loudly at least four times “Man over board”, alarm regarding
that a crew member of the vessel RM POWER fell into the river waters.
Chief Mate Recovita Alexandra saw a man on the river waters at
approximately 200 meters away from the vessel and that he threw a life buoy
ring as close as possible to the man. Captain Radu Nicolae immediately
called through VHF the MV Vessel Fiskardo (anchored astern of us) in order
to try to make a look out in the waters. After that, he informed the local
authorities and requested for immediate help. After five or ten minutes, two
coast guard fast boats came and started the search of the missing crew
member.
From August 01 to August 03, 2013, a thorough search operation was
conducted but the body of Danilo Dumogho was not found. Arroyo Seco
Coast Guards and Marine Surveyor, Capt. Guillermo Bottari, declared that
Danilo Dumogho was missing.
I Captain Florin from M/V RM POWER submitted the following
factual report: (1) The surveyor, the master or the witnesses found no
evidence or cannot give any information to ascertain the cause of Mr.
Dumogho’s falling overboard; and (2) Up to the time of this preliminary
report, Mr. Dumogho was still missing.
Respondents sought payment of death compensation from the
petitioners. But notwithstanding the AMOSUP intervention, the parties
failed to reach an amicable settlement.
On September 10, 2013, complainant-appellee filed a case before the
National Conciliation and Mediation Board (NCMB) via a Notice to
Arbitrate but still the parties failed to reach a settlement during the final
conference on November 21, 2013.
Respondents through counsel objected to submit the issue to the panel
of voluntary arbitrators, hence, NCMB-NCR Director Edgar G. Aquino
appointed Atty. Allan S. Montaňo as Voluntary Arbitrator.
Position of the Complainant
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Complainant praying for the dismissal of the complaint argued that:
1) The disappearance and presumptive loss of life of Danilo
Dumogho occurred at worksite and during the effectivity of his
employment contract entitles her to the death benefits in the
amount of $93,154.00 (USD) under Appendix 5 of the PNO IBF
Collective Bargaining Agreement for 2013;
2) She has a valid cause of action as the death of Danilo Dumogho is
based on the preponderance of evidence present;
3) As a general rule, the employer is liable to pay the heirs of the
deceased seafarer for death benefits once it is established that he
died during the effectivity of his employment contract and the
employer can only escape liability if it is shown that his death is
directly attributable to his deliberate or wilful at, or that the same
suffices to prove that the deceased committed suicide; the burden
of proof rests on his employer;
4) The rule on presumption of death under Article 391 of the Civil
Code must yield to the rule of preponderance of evidence, as in the
instant case;
5) The non-payment of Danilo Dumogho’s monthly allotment is
proof that he is already dead. If respondents insist that Danilo
Dumogho cannot be presumed dead and therefore presumed alive,
complainant is entitled to payment of the said monthly allotment
until the seafarer returns to Manila of after 4 years when the
presumptive death is established according to law; and
6) She is entitled to attorney’s fees invoking the ruling of the
Honorable Court in Dante Rasonable vs. NLRC, et al.
Position of the Respondent
Respondent argued that:
1) Complainant has no valid cause of action because under the Article
26.1 of the CBA between the parties, death, which is the operative
condition that gives rise to death benefits, has not been
substantially proven in this case. Since the whereabouts of the
complainant are unknown, there is no evidence to show that he is
already dead;
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2) In the absence of evidence to prove the actual death of Danilo
Dumogho, the claim is premature. Article 391 is a specific rule that
governs when a person can be presumed dead. Thus, complainant
may only rely on the principle of presumptive death upon the lapse
of four (4) years from the time Danilo Dumogho was declared
missing. In this case, complainant filed the position paper only
after nine (9) months had passed from the absence of Danilo.
Pantollano vs. Korphil Shipmanagement and Manning
Corporation supports this conclusion; and
3) Complainant is not entitled to attorney’s fees because it may not be
awarded where there is no sufficient showing of bad faith could be
reflected in a party’s persistence in a case other than an erroneous
conviction of the righteousness of his cause. The fact alone that
complainant was forced to litigate is not sufficient ground for the
award of attorney’s fees.
Decision of the Voluntary Arbitrator
After scrutiny of the merits of the case, Voluntary Arbitrator Atty.
Allan S. Montaňo rendered a decision dated 20 February 2015, the decretal
portion of which reads:
“WHEREFORE, PREMISES CONSIDERED, judgment is
hereby rendered ORDERING the respondents, jointly and severally,
to pay complainants the amount of Ninety Three Thousand One
Hundred Fifty Four US Dollars (US$93,154.00) as death benefits,
plus then percent (10%) thereof as and by way of attorney’s fees. All
other claims are DISMISSED for lack of merit.
SO ORDERED.”
A Motion for Reconsideration was filed by herein petitioners on the
aforecited decision of the Voluntary Arbitrator, the resolution of which was
rendered on 22 August 2015, the dispositive portion of which reads:
“WHEREFORE, premises considered, the instant Motion for
Reconsideration is DENIED for lack of merit.
SO ORDERED.”
Hence, the instant petition
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ASSIGNMENT OF ERRORS
PETITIONERS, conformably to the nature of the instant Petition and out of
the issues taken, hereby present the following ground in support of and
relied upon for the allowance of the instant Petition:
I.
THE HONORABLE VOLUNTARY ARBITRATOR GRAVELY
ERRED IN RULING THAT THE RESPONDENTS HAVE A VALID
CAUSE OF ACTION AGAINST PETITIONER
II.
THE HONORABLE VOLUNTARY ARBITRATOR GRAVELY
ERRED IN RULING THAT THE RESPONDENTS ARE ENTITLED
TO ATTORNEY’S FEES.
DISCUSSION
I.
From the evidence presented by both parties, it is clear that the
respondents have no valid cause of action against the petitioners; hence, the
claim is premature. To be entitled to death benefits under the Collective
Bargaining Agreement (CBA), the death of the seafarer must first be
established at least by substantial evidence. It is his death which serves as
the operative condition that gives rise to the entitlement to death benefits and
burial expenses provided in the CBA.
A cause of action is defined as an act or omission of one party in
violation of the legal right of another. Its elements are:
a. A right in favor of the plaintiff by whatever means and under
whatever law it is created;
b. An obligation on the part of the defendant to respect or not to violate
such right; and
c. An act or omission on the part of the defendant in violation of the
right of the plaintiff or constituting a breach of obligation of the
defendant to the plaintiff for which the latter may maintain an action
for recovery of damages.1
1
Imelda Relucio vs. Angelina Mejia Lopez, G.R. No. 138497, January 16, 2002.
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The records show that the respondents failed to establish the first
element. To be entitled to the rights and benefits provided by the CBA, it is
incumbent upon the respondents to show by substantial evidence the death
of Bosun Dumogho under the circumstances. Imelda Pantollano vs. Korphil
Ship Management and Manning Corporation2 is squarely applicable in the
case at bar. Here, Vedasto, a Ship Engineer, was reported missing when he
did not show up for duty. The Master of the Vessel and some crew members
also conducted a search and rescue operation but failed to locate him.
Vedasto was never seen again, so Imelda filed a claim for death benefits
with the company. Korphil refused to grant the benefits, alleging that the
money claim has already prescribed. In ruling in favor of Imelda, the
Supreme Court said that prescription has not yet set in because the cause of
action accrued only four years after the disappearance of Vedasto. It was
only after four years when the presumption of death arose. In other words,
there is no cause of action yet within the four year-period after Vedasto’s
disappearance.
In the present case, the Voluntary Arbitrator ruled that the death of Mr.
Dumogho was shown by preponderant evidence. The Voluntary Arbitrator
relied on the narration by the Ship’s Master, Capt. Filip Florin, and on the
Preliminary Advice Report of the Marine Surveyor, Capt. Guillermo Bottari
in arriving at such conclusion. However, two essential circumstances
included in these reports were overlooked. First, the life buoy thrown to save
Mr. Dumogho was never retrieved, giving rise to the possibility that he was
in fact saved. Second, the Preliminary Advice Report explicitly stated that
Mr. Dumogho was just “missing.” When these two circumstances concur, a
reasonable mind cannot not discredit the possibility that Mr. Dumogho may
in fact be alive. The moral certainty that Mr. Dumogho died at the time he
fell overboard ceased to exist. At most, the narration by Capt. Florin only
established the identity of Mr. Domogho as the one who fell overboard the
vessel, as well as the actions of the ship’s crew when they found out that
someone was in the open waters.
Failing to establish the death of Bosun Dumogho, the respondents cannot
claim any right under the CBA, and therefore, the first element is not
present. The respondents have no valid cause of action. Before the
petitioners can show that its act or omission did not violate any right of the
respondents, it is first necessary for Complainant-Appellee to show that the
right exists. Absence the death of Mr. Dumogho, the right of ComplainantAppellee under the CBA as an alleged heir did not arise.
Article 390-391 of the Civil Code then should apply. In other words, the
law requires an absence of four years from the time of disappearance to give
rise to the presumption of death, except for purpose of succession. It is after
2
G.R. No. 169575, March 30, 2011
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the lapse of four years that the cause of action of the respondents shall
accrue.
Furthermore, admitting without conceding that the respondents were able
to show by preponderance of evidence the death of Buson Dumogho, there is
still no valid cause of action against the petitioners because under the CBA,
the death of the employee must be due to causes other than his or her willful
act. In invoking Article 26.1 of the CBA as the source of her right,
Complainant-Appellant argues that the death of Mr. Dumogho is sufficient
to be entitled to death and burial benefits. But Article 26.1 is clear:
26.1 If a Seafarer dies through any cause, whilst in the
employment of the Company including death from natural causes and
death occurring whilst traveling to or from the vessel, or a result of
marine or other similar peril, but excluding death due to willful acts,
the Company shall pay the sums specified in the attached APPENDIX
5 to a nominated beneficiary and to each dependent child up to a
maximum of 4 (four) under the age of 18.
In containing the provision that the death of the employee must not be
due to his willful acts, the CBA recognizes that the death of an employee
while in the employment of the company may be due to a willful cause or
other causes. If the cause is willful, the employee is not entitled to any
benefit. If it is due to other causes, including natural causes or marine or
similar peril, the employee is entitled thereto. It is necessary to prove
therefore, a least by substantial evidence, that circumstances leading to the
death of Mr. Dumogho sufficiently excludes the possibility that he attempted
to cause death to himself willfully. The narration by Captain Florin and the
Preliminary Advice Report by Capt. Bottari does not exclude this possibility.
Mr. Dumogho was seen by the ship’s crew when he was already in the open
waters. What is peculiar in this case is that there was no showing that Mr.
Dumogho, at the time he was found, was asking for help to be saved. This
bolsters the theory that he may have wilfully cause death to himself.
Furthermore, the Preliminary Advice Report explicitly states that the
surveyor found no evidence to ascertain the cause of Mr. Dumogho’s falling
overboard, and that neither the Master nor the witnesses gave any
information which could reveal the cause of falling of Mr. Dumogho
overboard. Without any evidence that the cause of Mr. Dumogho’s death is
for causes other than his willful act, the respondents again failed to establish
that they are entitled to the benefits under the CBA.
The provisions of the CBA are clear. The distinction therein as to the
cause of death by the seafarer is explicit and unambiguous. It is incumbent
upon the respondents to prove by substantial evidence that the cause of death
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of Mr. Dumogho is not due to his willful act. Any ruling to the contrary will
render useless the provisions of the CBA which has the force of law between
the parties.
II
The Honorable Voluntary Arbitrator gravely erred in ruling that
Complainant-Appellee is entitled to Attorney’s Fees
The Voluntary Arbitrator awarded ten percent (10%) attorney’s fees
to the respondents, ratiocinating that the respondents constrained to litigate
and incur expenses to protect their rights and interests. However, as shown
in the preceding argument, the respondents failed to establish the first
element of a valid cause of action - that they have a right under the CBA that
needs to be protected or vindicated. The grant of attorney’s fees is therefore
misplaced because of the non-existence of a right which petitioners are
obliged to respect.
Furthermore, Article 2208 of the Civil Code provides that attorney’s
fees and expenses of litigation cannot be recovered except when the
defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiff’s plainly valid, just and demandable claim. Petitioners did not act in
gross and evident bad faith in the present case. No evidence was adduced by
the respondents to show bad faith or malice on the part of the petitioners. In
fact, the Voluntary Arbitrator himself ruled that the respondents are not
entitled to moral and exemplary damages because there is no showing that
the petitioners maliciously withheld the payment of death compensation. In
the words of the Voluntary Arbitrator, “the refusal to pay was due to the
interpretation of Article 391 of the Civil Code” and “as such, their actions
cannot be considered as oppressive to labor, tainted with bad faith or fraud,
or contrary to morals, good customs or public policy but rather due to a
difficult question of law.” Given the absence of bad faith, it is therefore
ironic for the Voluntary Arbitrator to award attorney’s fees to the
respondents on one hand, and refuse the grant of moral and exemplary
damages on the other.
The case of Heirs of the Late Delfin Dela Cruz vs. Philippine Transmarine
Carriers, Inc.3 is analogous to the present case. The Supreme Court said, “the
Court has consistently held that attorney's fees cannot be recovered as part of
damages based on the policy that no premium should be placed on the right
to litigate. Suffice it to say that the authority of the court to award attorney's
fees under Article 2208 of the Civil Code requires factual, legal, and
equitable grounds. They cannot be awarded absent a showing of bad faith in
a party's tenacity in pursuing his case even if his belief in his stance is
3
G.R. No. 196357, April 20, 2015
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specious. Verily, being compelled to litigate with third persons or to incur
expenses to protect one's rights is not a sufficient reason for granting
attorney's fees.”
For lack of sufficient basis and lack of gross and evident bad faith on the
part of the petitioners, the award for attorney’s fees should therefore be
deleted.
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