Blurred lines: A Shipowner's liability for work-related illnesses
The International Chamber of Shipping reports that there are currently around 1.2 million seafarers actively serving on vessels in the world merchant fleet. Given the financial exposure that crew claims pose for Members; Amanda Hastings, Claims Executive for the People Claims team looks at one element of crew illness claims - work-related disease. Looking at the key contractual provisions for work-related illness under the Philippines Overseas Employment Agency Standard Employment Contract (POEA SEC), the challenges posed by contracts which fall silent on definitions of work-related illness and advice to Members on mitigating liability in these types of claim.
What is work-related illness?
There is no uniform definition for work-related illness worldwide. The International Labour Organisation (ILO) uses definitions for work-related illness set out in the 2002 Protocol to the Occupational Safety and Health Convention 1981 and the ILO Employment Injury Benefits Recommendation, 1964 (neither which apply to the maritime sector). These require a causal relationship between exposure in a specific working environment/activity and the illness/disease in question.
According to the Philippines Overseas Employment Agency (POEA), 401,826 Filipino sea based workers were deployed in 2014. All of these workers were deployed under POEA standard employment agreements (POEA-SEC). As one of the most widely used contracts, it is instructive to examine its provisions relating to work-related illness.
Unlike most other employment contracts or Collective Bargaining Agreements (CBAs), the POEA SEC provides detailed guidance on what constitutes a work-related illness. Section 32 A offers a comprehensive list, ranging from infections such as tuberculosis to peptic ulcers and hypertension. At first glance, this list is very generous, however, in order for an illness to be deemed work-related under the POEA-SEC, certain conditions must be met:
- The seafarer’s work must involve the risks described in the POEA-SEC for that disease. Cardio-vascular events, such as heart attacks (that are not linked to pre-existing heart diseases) are considered work related provided that the seafarer was exposed to severe strain 24 hours prior to the attack.
- The disease was contracted as a result of the seafarer’s exposure to the described risks. For example, if a seafarer is known to be hypertensive or diabetic and has failed to take his medication or comply with doctor recommended lifestyle changes, and suffers a heart attack as a result, this will not be deemed to be work-related.
- The disease was contracted within a period of exposure and under such other factors necessary to contract it. This would usually be determined by a medical expert in reference to data on the subject and the seafarer’s service history.
- There was no notorious negligence on the part of the seafarer. In accordance with Section 20 (D) of the POEA SEC, illness or injury resulting from the seafarer’s own wilful act is not compensable. For example, a seafarer is tasked with hold cleaning and fails to wear the appropriate facemask, despite this being available onboard and procedure dictating that it must be worn. The seafarer subsequently develops a respiratory condition which could have been avoided if he had complied with the safety requirement, meaning that his negligence has contributed to his illness. The burden of proof for this would lie with the owner.
If any of these conditions are not met, then the Member should have an adequate defence against a work-related illness claim. Additionally, the POEA also provides for defences if a crewmember knowingly conceals any pre-existing illnesses.
Although the Philippines as a jurisdiction can prove challenging, the POEA-SEC is more detailed than many other employment contracts and CBAs.
Particular challenges are faced when contracts make reference to work-related illness yet provide no definition. Where contracts are silent on definitions of work-related illness, it is often left to national law to clarify the situation. This can result in liberal interpretations of what can be considered work-related. In certain jurisdictions, such as Turkey and Korea, the Club has seen the view taken that any illness that manifests itself onboard is considered work-related, thereby entitling the crewmember to contractual benefits. By way of example, the Club has seen a case of Guillain-Barre Syndrome, a condition of the peripheral nervous system with an unknown cause, result in full disability benefits under the employment contract.
A similar problem is encountered under Greek law, where many illnesses, especially those that are stress- related, are considered to be "accidents" and therefore compensable under Law 551/1915. This is especially likely to be the case where there has been a failure to provide prompt treatment, often through no fault of the Member, but due to the location of the ship at the time of the incident.
How can Members mitigate their claims exposure?
There are practical steps a Member can take in order to mitigate their exposure for these types of claims.
The Pre-Employment Medical Examination (PEME): All seafarers must undergo a PEME screening in advance of joining a vessel; however, the quality of these PEMEs varies greatly. Depending on the flag state, minimal information may be required and the likelihood of detection of problems is limited. Requiring more detailed PEMEs will likely highlight risk factors and pre-existing conditions, such as hypertension and diabetes. Whilst these pre-existing conditions do not necessarily exclude someone from sea service, knowledge of them does give the Member the opportunity to remind the seafarer to comply with the recommended medication regime and lifestyle changes. It should, however, be made clear that the onus to comply with medical recommendations is on the seafarer, not on the Member.
The Club has run a successful enhanced PEME programme since 1996 and has accredited clinics worldwide. To date the Club's PEME programme has screened more than 340,000 seafarers. Further information on the PEME programme can be found on the Club's website (http://www.ukpandi.com/loss-prevention/peme/).
Get the Club involved early on: Do not wait until a claim has turned legal or the crewmember is approaching the end of his/her contractual entitlements. The People Claim's team is on hand to provide advice at any stage of a claim. Even if a claim looks likely to be below the applicable deductible, the Club is able to offer assistance. It is important to remember that the decisions taken at the outset of a case are likely to impact on how the claim is ultimately resolved.
Investigate the claim fully: Especially in the event of work-related illness ensure that you have investigated the claim as fully as possible. Provide the Club with any past PEMEs and any history of past medical repatriation. There may be contractual defences available, for example on grounds of concealment.