Professional Documents
Culture Documents
8 - Petition For Review - (Appeal From The Quasi-Judicial Agency)
8 - Petition For Review - (Appeal From The Quasi-Judicial Agency)
COURT OF APPEALS
Manila
NATURE OF PETITION
THE PARTIES
1|Page
be served with notices, orders, resolution and other legal processes of this
Honorable Court or thru the undersigned counsel.
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.
3|Page
Complainant praying for the dismissal of the complaint argued that:
1) The disappearance and presumptive loss of life of Danny
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;
4|Page
2) In the absence of evidence to prove the actual death of Danny
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 Danny Dumogho was declared
missing. In this case, complainant filed the position paper only
after nine (9) months had passed from the absence of Danny.
Pantollano vs. Korphil Shipmanagement and Manning
Corporation supports this conclusion; and
SO ORDERED.”
SO ORDERED.”
5|Page
ASSIGNMENT OF ERRORS
I.
II.
DISCUSSION
I.
1
Imelda Relucio vs. Angelina Mejia Lopez, G.R. No. 138497, January 16, 2002.
6|Page
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.
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
7|Page
the lapse of four years that the cause of action of the respondents shall
accrue.
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.
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
8|Page
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 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
specious. Verily, being compelled to litigate with third persons or to incur
3
G.R. No. 196357, April 20, 2015
9|Page
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.
By:
ATTY. HALILA Y.
SUDAGAR
Collaborating Counsel for
Petitioner
PTR NO. 6002211/ 01-
04-17, Manila
IBP NO1047766/01-06-
17, Manila
MCLE No. v-
0021976/qc/June 7,
2016
ROLL NO. 12614
10 | P a g e