Republic of the Philippines

Department of Justice
NATIONAL PROSECUTION SERVICE
OFFICE OF THE PROVINCIAL PROSECUTOR – LEYTE
Abuyog, Leyte
-oOo-

EUFEMIA O. PIGA,
Petitioner,
NPS No. VIII –02a –INV –21D -045

- versus – For:

GRAVE THREATS
DOMINADOR DUBLAS,
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 Eufemia O. Piga, of legal age, Filipino, and with residence

address at Fatima Village, Tacloban City. Notices, orders, resolutions and other
legal processes may be served thru their counsel of record.

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 RESPONDENTS, Dominador P. Dublas, of legal age, married, Filipino
and a resident of Brgy. Palale I, MacArthur Leyte where he may 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:

Eight (8) months + Two (2) months

Duration of Contract extendable upon mutual consent of
both parties
Position Bosun
Basic Monthly Salary $746.00 (USD)

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 Hours of Work 40 Hours/Week
Overtime $554.00 (USD) – Fixed Overtime
$174.00 (USD) per month + 126
Vacation Leave with Pay
(USD) per month
Point of Hire Manila, Philippines

This employment contract is covered by the 2012-2014 Collective

Bargaining Agreement (CBA).

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.

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 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

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;

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 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;

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

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 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

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.

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 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

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
1
Imelda Relucio vs. Angelina Mejia Lopez, G.R. No. 138497, January 16, 2002.

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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 Complainant-Appellee 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

2
G.R. No. 169575, March 30, 2011

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the presumption of death, except for purpose of succession. It is after 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

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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 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.

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 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 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.

3
G.R. No. 196357, April 20, 2015

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