P

a
g
e

1

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City


JOS B. SANTUYO
Complainant, NLRC CASE NO. NCR 07-11510-11
Hon. Labor Arbiter Lilia S. Savari
- versus

CARGO SAFEWAY, INC.,
TOE JAPAN LTD., & CAPT.
REYNALDO CASAREO,
Respondents.
x----------------------------x



COMPLAINANTS POSITION PAPER



COMPLAINANT JOS B. SANTUYO by undersigned counsel,
respectfully submits this Position Paper, constitutive of his
causes of action against the respondents, to wit


STATEMENT OF THE CASE


This is an action asking for payment by respondents of the
permanent total disability benefits, damages and attorneys fees
in favor of herein complainant. These claims are based on the
Collective Bargaining Agreement (CBA) between complainants
Union (A-JSU) and respondents; POEA Standard Contract For
Seafarers; and other pertinent labor laws and jurisprudence.


P
a
g
e

2

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

It is worthy to indicate at the outset that these claims of
complainant Jos B. Santuyo, although based on his penultimate
and last employment contract with respondents, were
considerably precipitated by the almost fifthteen (15) years of
sea service rendered by said complainant in the various vessels
of herein named respondents. Copy of complainant Jos B.
Santuyos Certificate of Sea Service issued by respondent Cargo
Safeway, Inc. is hereto attached as Annex A.

THE PARTIES

Complainant Jos B. Santuyo (hereinafter referred to as
complainant Santuyo) is of legal age, Filipino, married and a
resident of J.C. Zulueta Street, Oton, Iloilo 5020. He can be
served with notices, orders, resolutions and other processes of
this Honorable Labor Arbitration Branch at the address of his
undersigned counsel.

Respondent CARGO SAFEWAY, INC. (hereinafter referred to
as respondent Cargo Safeway) is a Philippine corporation
operating as manning agency engaged in the recruitment and
placement of seafarers for deployment abroad to their foreign
principals. It may be served with summons, orders, resolutions
and other processes of this Honorable Office at 4203 R.
Magsaysay Avenue, Santa Mesa, Manila NCR 1016.

Respondent TOEI JAPAN LTD. (hereinafter referred to as
respondent Toei) is one of the foreign principals of respondent

P
a
g
e

3

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

Cargo Safeway, where complainant Santuyo was deployed. It is
based in Japan, but for purposes of being sued and notified in the
Philippines, service of notices, orders and resolutions of this
Honorable Office can be done at the office of respondent Cargo
Safeway, its resident agent in the Philippines.

Respondent CAPT. REYNALDO CASAREO (hereinafter
referred to as respondent Casareo) is the President/CEO/Gen.
Manager/POEA Registered Contact Person of respondent Cargo
Safeway. He is of legal age, Filipino and with office address at
4203 R. Magsaysay Avenue, Santa Mesa, Manila NCR 1016 where
he may be served with notices, orders and resolutions of this
Honorable Labor Arbitration Office.

STATEMENT OF THE FACTS


1. On 29 June 2009, the parties entered into a Contract of
Employment for complainant Santuyo to serve as an Oiler on
board the vessel MV IS TRINITY under these terms, to wit:

Duration of Contract : Nine [9] months
Position : Oiler
Basic Monthly Salary : US$ 564.00 per month
Hours of Work : 40 hours per week
Overtime : FOT US$ 420.00 per mo.
Plus US$ 4.08/hr. after 103 hrs.
Plus subsistence allow. US$54.00
per mo.
Leave Pay : US$ 169.00 per mo.
Point of Hire : Manila, Philippines

Copy of contract of employment is attached as Annex B.

P
a
g
e

4

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R



2. Prior to the signing of the above-mentioned contract,
respondent Cargo Safeway sent complainant Santuyo to its
accredited medical clinic for pre-employment medical
examination. Complainant Santuyo was found fit for duty
prior to his employment. Hence, he was hired by
respondents. Copy of pre-employment medical examination
certificate issued by MEDTEST Medical & Dental Tests
Center, Inc., located at 3
rd
Floor Dallicon II Bldg., 164
Aurora Blvd., San Juan City, Metro Manila is hereto attached
as Annex C.

3. On 07 July 2009, upon instruction of respondent Cargo
Safeway, complainant left Manila by on a flight to join the
vessel MV IS TRINITY in Imabari, Japan. He arrived in Japan
on 08 July 2009 and boarded the vessel on the same day.

4. Complainant Santuyo served on-board the MV IS TRINITY
from 08 July 2009 until 01 February 2010 as an Oiler. Copy
of the pertinent page of complainant Santuyos Seamans
Book is hereto attached as Annex D.

5. Complainants stringent nature of his duties and
responsibilities at MV IS TRINITY included a round-the-
clock oiling of the bearings of the main engine and
auxiliaries. He also stands watch in the engine room. As an

P
a
g
e

5

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

oiler, complainant Santuyo also consistently made regular
rounds usually every half hour feeling all of the various
bearings on the main engine and oiling them. He also
swabbed the piston rods and valve stems. He also felt of the
thrust bearing and travels down the shaft alley feeling and
oiling the spring bearings and feeling the stern gland and
looking to see if sea water was running through.

6. These were the very difficult, stringent and very important
round the clock duties religiously performed by complainant
Santuyo for respondents, not only during his last
employment contract with herein respondents, but also for
the last fifthteen (15) years of his maritime service.
Complainant Santuyo had been consistently exposed to
extreme heat while in the engine room - then suddenly
everytime thereafter, in extreme cold temperatures during
the winter; and intervals of extreme sunlights during the
summer. Repeatedly during his service at sea, he was
bounded by duty in the engine room for long hours, only to
be springed-up to blinding lights and temperatures after
abrupt intervals. Such was the situation for fifthteen (15)
long years in the life of complainant Santuyo.

7. Due to the very rigorous work routine and stringent exertion
of Complainant Santuyos duties as explained in the two
immediately preceding paragraphs, he underwent daily
extreme exhaustion and severe eye-sight fatigue. But he

P
a
g
e

6

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

never complained, being the loyal employee that he is, he
went to do his job and honor his contractual commitments
with the respondents.

8. On or about 30 January 2010, while on duty at the vessel
which was then anchored in the Port of Kimitsu, Japan,
complainant Santuyo was treated and examined in the
Morimura Eye Clinic of the HIGASHIOGISHIMA MEDICAL
SERVICES, CO., LTD., after several weeks of blurring and
fading eye vision which negatively affected his work and
well-being as an Oiler in the vessel MV IS TRINITY.

9. The diagnosis in Japan indicated MACULAR DEGENERATION,
a disease of the eyes. He was examined and initially treated
by Dr. Yoshihiro Morimura, an ophtalmologist in Japan.
Because of his condition, Unfit for Sea Duty and
recommended for repatriation to the Philippines to undergo
further medical treatment. Copy of the Medical Certificate
signed by Dr. Yoshihiro Morimura, is hereto attached as
Annex E.

10. Upon complainant Santuyos arrival in the Philippines, he
immediately underwent post-medical examination. He was
examined and treated at the Saint Lukes Medical Center
under the examination and treatment of Drs. Natalio Alegre
and Marie Joan V. Loy, respondents duly designated

P
a
g
e

7

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

physicians. The examination and treatment were done on
various periods from February 2010 up to November 2010.

11. During the said examinations and treatments, it was found
that complainant Santuyo had blurring vision in the right
eye with a BCVA of 20/200. He was also noted to have
Subfoveal Choroidal Neovascular membrane on fundus
photo and OCT of the macula. He also had positive skin test
for fluorescein. Copy of Medical Abstract and Medical
Certificate issued and signed by Dr. Marie Joan V. Loy, MD,
DPBO, a Vitreo-Retinal Diseases Specialist at the Saint Lukes
Medical Center is hereto attached as Annex F; and other
documents supporting the medical abstract are further
attached as sub-annexes.

12. Complainant Santuyos earnest efforts to find treatment and
his desires of getting well, further constrained him to seek
the services of other medical practitioners. In his home-
province of Iloilo, he sought the medical examination and
opinions of doctors at the Western Visayas Medical Center
Department of Opthalmology. He sought treatments in the
said hospital in Iloilo City from February to June 2011. The
finding was also Choroidal Neovascularization, right S/P
Anti-VEGF Injection Right. Recommendation/Plans: For
Repeat Intravitreal Anti-VEGF Injection OD; Limit lifting of
heavy objects. Copy of the pertinent Medical Abstract is

P
a
g
e

8

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

hereto attached as Annex G and the other supporting
documents thereto as sub-annexes.

13. Based on these circumstances attendant to the physical
condition of complainant Santuyo, it is very clear that his
illness will require lifetime periodic treatments and
maintenance. It is very obvious that he can no longer
perform his usual duties as a seafarer on-board the vessels
of respondents and other manning agencies or foreign
principals. Thus, on 14 September 2010, Dr. Natalio G.
Alegre II, the attending physician designated by
respondents, issued a certification dated 14 September
2010, declaring complainant Santuyo UNFIT FOR WORK AS A
SEAFARER. Copy of this certification is hereto attached as
Annex H.

14. Previous efforts to arrive at an early settlement of the
claims of complainant Santuyo were refused and denied by
respondents. Hence, the submission of this Position Paper
became necessary in order to ventilate and resolve the said
claims in accordance with appropriate provisions law,
contract, regulations and jurisprudence.

ISSUES TO BE RESOLVED

[a]. Whether or not complainant Santuyo is entitled to payment
of Permanent Total Disability Benefits; and

P
a
g
e

9

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

[b]. Whether or not complainant Santuyo is entitled to payment
of moral and exemplary damages, and attorneys fees.


ARGUMENTS AND DISCUSSIONS

Complainant Santuyo thru undersigned counsel respectfully
submits in the affirmative for all the issues.

Complainant Santuyo submits that he is entitled to be paid,
among others, his total permanent disability benefits Eighty-Nine
Thousand and One Hundred US Dollars [US$89,100.00] under the
All-Japan Seamens Union Collective Bargaining Agreement
(AJSU-CBA), hereto attached as Annex I, in relation to the
basic provisions of the POEA Standard Contract of Employment
for Seafarers On-board Ocean-going Vessels.

This claim is in accord with the doctrinal rulings in Crystal
Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No. 154798, 20
October 2005] and Bernardo Remigio v. NLRC, Et Al., [G.R. No.
159887, 12 April 2006], as well as subsequent jurisprudence
maintaining the said rulings, notwithstanding the revisions made
in the POEA Standard Contract.

It is very clear that the illness was sustained in the course
of employment and undeniably in the performance of duty.
Section 20 [B] of the POEA Standard Contract provides

P
a
g
e

1
0

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R


B. COMPENSATION AND BENEFITS FOR INJURY
OR ILLNESS

The liabilities of the employer when the
seafarer suffers work-related injury or illness
during the term of his contract are as follows:

1. The employer shall continue to pay the
seafarer his wages during the time he is on
board the vessel;

2. If the injury or illness requires medical and/or
dental treatment in a foreign port, the employer
shall be liable for the full cost of such medical,
serious dental, surgical and hospital treatment
as well as board and lodging until the seafarer is
declared fit to work or to be repatriated.

However, if after repatriation, the seafarer still
requires medical attention arising from said
injury or illness, he shall be so provided at cost
to the employer until such time he is declared fit
or the degree of his disability has been
established by the company-designated
physician.

3. Upon sign-off from the vessel for medical
treatment, the seafarer is entitled to sickness
allowance equivalent to his basic wage until he
is declared fit to work or the degree of
permanent disability has been assessed by the
company designated physician xxx xxx

4. Those illnesses not listed in Section 32 of this
Contract are disputably presumed as work-
related.

5. Once signed off from the vessel for medical
treatment, the employer shall bear the full cost
of repatriation in the event the seafarer is
declared (1) fit for repatriation; or (2) fit to
work but the employer is unable to find
employment for the seafarer on board his former
vessel or another vessel of the employer despite
earnest efforts.

In case of permanent total or partial disability of
the seafarer caused by either injury or illness
the seafarer shall be compensated in accordance
with the schedule of benefits enumerated in

P
a
g
e

1
1

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

Section 32 of his Contract. Computation of his
benefits arising from an illness or disease shall
be governed by the rates and the rules of
compensation applicable at the time the illness
or disease was contracted.

In this case, the illness was work-related since the same
was sustained in the course of duty. Said illness was not pre-
existing since complainant underwent the mandatory pre-
employment medical examination before he was employed by
respondent, and was found to be fit and given a clean bill of
health prior to his employment.

In Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No.
154798, 20 October 2005], the Supreme Court ruled that:

Permanent disability is the inability of a worker
to perform his job for more than 120 days,
regardless of whether or not he loses the use of
any part of his body. As gleaned from the
records, respondent was unable to work from
August 18, 1998 to February 22, 1999, at the
least, or more than 120 days, due to his medical
treatment. This clearly shows that his disability
was permanent.

Total disability, on the other hand, means the
disablement of an employee to earn wages in
the same kind of work of similar nature that he
was trained for, or accustomed to perform, or
any kind of work which a person of his mentality
and attainments could do. It does not mean
absolute helplessness. In disability
compensation, it is not the injury which is
compensated, but rather it is the incapacity to
work resulting in the impairment of ones
earning capacity.


P
a
g
e

1
2

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

The ruling in the Crystal Shipping Case is a refinement of
earlier decisions, viz

In the case of the Philippine Transmarine
Carriers, Inc. vs. NLRC. 358 SCRA 47, the
Supreme Court held that disability should not be
understood more on its medical significance but
on the loss of earning capacity. Permanent total
disability means disablement of an employee to
earn wages in the same kind of work, or work of
similar nature that he was trained for or
accustomed to perform, or any kind of work
which person of his mentality and attainment
could do. It does not mean absolute helplessness
(ECC vs. Edmund Sanico, 321 SCRA 268: GSIS vs.
CA 285 SCRA 430; GSIS vs. CA 260 SCRA 133:
Bejerano vs. ECC, 205 SCRA 598).

In disability compensation, it is not the injury
which is compensated, but rather it is the
incapacity to work resulting in the impairment of
ones earning capacity (Bejerano vs. ECC 205
SCRA 598: Ulibas vs. Republic, 83 SCRA 819;
Roma vs. WCC, 80 SCRA 170).

One should always remember that the POEA
Standard Employment Contract for Seamen is
designed primarily for the protection and benefit
of Filipino seamen in the pursuit of their
employment on board ocean-going vessels. Its
provisions must, therefore, be construed and
applied fairly, reasonably and liberally in their
favor. Only then can its beneficent provisions be
fully carried into effect (Wallem Maritime
Services, Inc. vs. NLRC 318 SCRA 632).


The ruling in the Crystal Shipping case was maintained,
reinforced and more clearly expounded in the case of Bernardo
Remigio v. NLRC, Et Al., [G.R. No. 159887, 12 April 2006] when
this Honorable Court, acting through then Associate Justice [later
on Chief Justice] Renato Puno, included the application of the

P
a
g
e

1
3

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

concept of Permanent Total Disability under the Labor Code in
favor of the sick or injured seafarer in addition to the provisions
of the POEA Standard Employment Contract for seafarers. The
ruling in the said case reads as follows:

Second. Is the Labor Code's concept of
permanent total disability applicable to the case
at bar? Petitioner claims to have suffered from
permanent total disability as defined under
Article 192(c)(1) of the Labor Code, viz:

Art. 192 (c) The following disabilities shall be
deemed total and permanent:
(1) Temporary total disability lasting
continuously for more than one hundred twenty
days, except as otherwise provided in the Rules;
x x x

Petitioner likewise cites Vicente v. ECC1[35]
and Abaya, Jr. v. ECC,2[36] both of which were
decided applying the Labor Code provisions on
disability benefits. Private respondents, on the
other hand, contend that petitioner erred in
applying the definition of permanent total
disability under the Labor Code and cases
decided under the ECC as the instant case
involves a contractual claim under the 1996
POEA SEC.

Again, we rule for petitioner.

The standard employment contract for
seafarers was formulated by the POEA pursuant
to its mandate under E.O. No. 247 to secure the
best terms and conditions of employment of
Filipino contract workers and ensure compliance
therewith and to promote and protect the well-
being of Filipino workers overseas.3[37]
Section 29 of the 1996 POEA SEC itself provides
that [a]all rights and obligations of the parties
to [the] Contract, including the annexes
thereof, shall be governed by the laws of the
Republic of the Philippines, international
conventions, treaties and covenants where the
Philippines is a signatory. Even without this
provision, a contract of labor is so impressed
with public interest that the New Civil Code

P
a
g
e

1
4

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

expressly subjects it to the special laws on
labor unions, collective bargaining, strikes and
lockouts, closed shop, wages, working
conditions, hours of labor and similar
subjects."4[38]

Thus, the Court has applied the Labor Code
concept of permanent total disability to the case
of seafarers. In Philippine Transmarine Carriers
v. NLRC,5[39] seaman Carlos Nietes was found
to be suffering from congestive heart failure
and cardiomyopathy and was declared as unfit
to work by the company-accredited physician.
The Court affirmed the award of disability
benefits to the seaman, citing ECC v.
Sanico,6[40] GSIS v. CA,7[41] and Bejerano v.
ECC8[42] that disability should not be
understood more on its medical significance but
on the loss of earning capacity. Permanent total
disability means disablement of an employee to
earn wages in the same kind of work, or work of
similar nature that [he] was trained for or
accustomed to perform, or any kind of work
which a person of [his] mentality and
attainment could do. It does not mean absolute
helplessness. It likewise cited Bejerano v.
ECC,9[43] that in disability compensation, it is
not the injury which is compensated, but rather
it is the incapacity to work resulting in the
impairment of one's earning capacity.


Complainant Santuyo is entitled to moral and exemplary
damages, and attorneys fees.

On account of respondents wanton refusal to pay
complainant what is clearly due to him, which act manifests
evident bad faith on their part, respondents must likewise be
ordered to pay moral damages in favor of complainant Santuyo
who, in addition to his sickness, also suffered serious anxiety,
sleepless nights, wounded feelings and loss of appetite. Such

P
a
g
e

1
5

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R

moral damages must amount to at Five Hundred Thousand Pesos
[Php500,000.00] Philippine currency.

In order to serve as a lesson to the general public and
prevent further commission of the same or similar acts injurious
to complainant, respondents must likewise be ordered to pay
exemplary damages of at least Five Hundred Thousand Pesos
[Php500,000.00] Philippine currency.

Since it was respondents act of refusing to pay
complainants disability benefits which forced the latter to
litigate, respondents must likewise be ordered to pay attorneys
fees equivalent to ten percent [10%] of the total award in favor
of complainant Santuyo.

R E L I E F
WHEREFORE, premises considered, it is respectfully asked of
this Honorable Labor Arbitration Office that the following be
awarded in favor of complainant by ordering respondents to pay -

1. Disability Benefits = US$ 89,100.00 Dollars
2. Moral damages = PhP 500,000.00 Pesos
3. Exemplary damages = PhP 500,000.00 Pesos
4. Attorneys Fees equivalent to 10% of total award
= US$ 8,910.00 Dollars; and
= PhP 100,000 Pesos

P
a
g
e

1
6

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R


Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, 21 December 2011.



At t y. EMMANUEL E. SANDI CHO
Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 848920, 01.02.2011, ManilaIV
PTR No. 8163771, 02.02.2011, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0005132


Republic of the Philippines ]
Quezon City, Metro Manila ] s.s.

VERIFICATION & CERTIFICATION

I, JOS B. SANTUYO, of legal age, Filipino, married and
resident of J.C. Zulueta Street, Oton, Iloilo 5020, after having
been sworn in accordance with law, depose and state that

I am the complainant in the above captioned case; I have
caused the preparation and filing of the foregoing Position
Paper; I have read and understood the same; I certify that
the declarations therein are true and correct of my own
personal knowledge and on the basis of authentic records.

I have not commenced any action or proceeding involving
the same issues before any other court, agency or
tribunal. To my personal knowledge, no such action or
proceeding is pending before any other court, agency or
tribunal. In the event I come to know of any other pending
action to that effect, I undertake to inform this office
within five [5] days thereafter.

IN WITNESS WHEREFORE, I hereto affixed my signature this 21
st

of December 2011 in Quezon City.



JOS B. SANTUYO
Affiant

P
a
g
e

1
7

C
O
M
P
L
A
I
N
A
N
T
S

P
O
S
I
T
I
O
N

P
A
P
E
R


SUBSCRIBED AND SWORN to before me this 21 December
2011 in Quezon City by affiant with Seamans Book No.
B0340592421 issued at Manila on 31 July 2008 and valid until 30
July 2013.





Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2011.




Copy furnished by registered mail due to distance
and unavailability of messenger to


At t y. GENARO S. J ACOSALEM
Seaborne Building, Magsaysay Blvd. Registry Receipt No. ____
corner Sociego Street, Santa Mesa Posted at NLRC Post Offc.
Manila Posted on 21 Dec. 2011