Panama: Filipino Crew Claims – Forum Non Conveniens

March 2001

There has recently been an encouraging new development in the Maritime Court of Panama in connection with claims brought by Filipino seamen.

Previously, the Maritime Court had constantly rejected arguments to send to the Philippines cases brought by Filipino crewmembers and their families, claming damages as a result of personal injury suffered on board vessels.

However, there has recently been a successful application to the Maritime Court to revert a case to the Philippine National Labor Relations Commission (NLRC) in accordance with the contract of employment approved by the Philippine Overseas Employment Administration (POEA). In that case, a crewmember was suing the vessel in rem for personal injuries suffered on board. The Court was persuaded that the NLRC had been created for the purpose of providing a speedy resolution to ALL claims by the crewmembers against their employer.

Moreover, it was successfully argued that the Philippine Government had created a "solidarity" between the manning agent and the employer, thus making the agent liable for the employer’s actions, in order to protect the Filipino crewmembers. The latter may therefore bring their claims against the local agent before the NLRC without the necessity of serving process on a foreign employer.

Additionally, the manning agents are required to post a performance bond, which responds to crewmembers’ claims, and the NLRC could execute any award against this performance bond. If the bond is not sufficient, the award could be executed against the property of the agency and/or the property of their directors and partners, who are jointly liable with the agency.

This case is the first in which the Maritime Court has agreed to send a case to the Philippines on this ground. The Court imposed some conditions before agreeing to transfer the case:

1. That a time bar defense is not pursued;

2. That defendants appear voluntarily;

3. That the matter be resolved on the merits, not technicalities.

The Court will retain the bond posted in Panama, and if the conditions are not met, it will "re-take" jurisdiction of the matter and hear the case.

The Court stated that the motions regarding Forum Non Conveniens will be heard and decided on a "case by case" basis. Nevertheless, this new jurisprudence provides a new path to follow and renewed optimism that the Maritime Court may begin sending such cases to the Philippines.

 

With thanks to De Castro & Robles, Panama, for supplying this information.