DIONY RAPIZ, NELSON GESTOPA & ANATALIO ONA, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION AND MODERN ASIA SHIPPING CORPORATION, RESPONDENTS.

Petitioners are seamen who are seeking the reinstatement of the
Philippine Overseas Employment Administration decision dated April 4, 1988,
which was reversed by the National Labor Relations Commission’s split
resolution* dated September 29, 1989.

The facts of the case are as follows:

Sometime in June of 1983, a giant corporation – Modern Asia
Corporation, hired some thirteen (13) Filipino seamen (among them, herein
petitioners), who boarded the vessel named M/V Mighty Sea which is of
Panamanian registry. However, on March
15, 1984, in an emergency letter they wrote the Minister of National Defense,
Philippines, for help as they were stranded for months without food and light
despite filing of a case in Greece courts, thus:

“That, we arrived here in the port of Thessaloniki, Greece
last October 12, 1983 loading for flour (sic). Our contract was (sic) expired last November 6, 1983 and we want to be
repatriated at the most convenient port upon the completion of our contract. That our salaries for six months since June
1983 up to November 1983 was (sic) not given to us, so we are claiming for it
(sic). Until the loading of cargo was
finished, still the company did not give our salaries (sic). So we filed a complaint to a seaman’s lawyer
so that he can help us to solve our problems (sic).

“That, we already appeal in the court for two times, but still
no action was granted to help us (sic). Now, we are already stranded herein the said port for almost six months,
without foods and lights (sic). Up to
the present, we are claiming our ten months salaries (sic).

“So in this siituation, we are begging for your help, just to
solve our problems (sic).” (p. 42, Records) (p. 39, Rollo)

A second letter to the Philippines, addressed to the Foreign
Exchange Department of the National Seamen Board on May 2, 1984 from, now, only
eleven (11) seamen, came desperately seeking assistance in their continuing
problems with their work like non-payment of salaries with request after
mentioning possible deductions from their salaries, that they will then be
unable to remit the full amount of foreign currency required of overseas worker
in their situation because of the dilemma they were presently in, thus: –

“We the undersigned 11 (eleven) Filipino crew, on board the
vessel, M/V MIGHTY SEA Panamanian registry, under the management of M.A.
Hambury Company Limited, with the office address in 41 Akti Miaouli Street,
Piracus, Greece (sic). Our local agency
is Modern Asia Shipping Corporation, with the address in Suite 32, Ground Floor
Midland Plaza-Arcade, M. Adriatico Street, Ermita, Metro Manila,
Philippines. (sic)

“We were stranded here in the Port of Thessaloniki, Greece,
claiming our salary 10 (ten) months (sic). We get our lawyer to depend us, get our salary (sic). We have an agreement to our lawyer and also
to the charterers, to give 15% each of them from our salary (sic). So, the total deduction from our salary is
30%. In this connection we are unable
to remit the full amount of foreign currency. Please consider our case and give at least 30% concession regarding to
our situation (sic).” (pp. 39-40, Rollo)

Due to the cases filed against the foreign owner of the vessel as
aforementioned in the seamen’s first letter dated March 15, 1984, said owner
was imprisoned for 3 years and 8 months (comment of Solicitor General on the
petition, p. 50, Rollo and memorandum for the petitioners, p. 109, Rollo). Hence, upon repatriation on July 19, 1984
the eleven seamen executed a joint affidavit complaint against the corporation
which hired them, herein private respondent (Modern Asia Shipping Corporation)
for breach of contract, to quote: –

“1. That we are
formally charging with breach of contract our employer the MODERN ASIA SHIPPING
CORPORATION, with offices at 2nd Floor, 491 Dona Tesoras Building, corner A.
Mabini and Pedro Gil Sts., Ermita, Manila, upon the following recital of facts
as hereunder set forth:

“4. That we
left the Philippines under this contract
of one-year with the respondent sometime
June, 1983 and arrived at Greece on
October, 1983;

“5. That, since
the period of our departure to the
time of our being repatriated to the
Philippines sometime May, 1984, we never
received any amount under our contract
of engagement or employment by the said
respondent;

“6. That we
never received any tangible amount as
would amount to our entitlements by way
of allowances, food and other provisions
from the company; and, that we survived
our being stranded at the port of
Thessaloniki, Greece as objects of charity,
until our charterer, through our pleadings,
decided to send us home at their
expense;

“7. That, we
have claim for 11 months of pay
against the respondent, at the respective
rates that is provided under the terms
and conditions of our contract of employment;

“10.   That we
voluntarily and freely execute this document
as the basis for our legal action
on the premises, without malice, but only
as due and entitled us under existing
and applicable law as meriting our cause
of action.” (Underscoring supplied) (pp. 40-41, Rollo)

The private respondent tried to pacify the eleven (11) seamen
(including the 3 petitioners) but after a little over two (2) years, the
seamen’s salaries, still unpaid, and their grievances still unacted upon, they
(only 9 seamen this time) finally filed a formal complaint against private
respondent, the local manning agency of N.A. Hambury Company Ltd. Citing as reason why the formal complaint
was filed with the POEA only after 2 years, petitioners stated in their position
paper/affidavit dated March 18, 1987:

“Complainants were not able to file this case immediately
because the shipping agency promised us that we would be re­hired, but it did
not comply with its promise. On the
contrary it was the herein respondent who acted in bad faith by giving us false
promises and false hopes. Nevertheless
as early as July 19, 1984, we have already executed the Affidavit of Complaint,
Annex A, hereof, for we were decided to file the case.” (p.
108, Rollo).

This complaint sought to recover unpaid
wages, unpaid 11 months’ salaries of petitioners Nelson Gestopa –
US$450.00/month; Diony Rapiz – US$160.00/month; and Anatalio Ona,
US$160.00/month, plus payment of food supplies and other expenses for daily
living like soaps, etc., for payment of a Greece lawyer and also for moral and
exemplary damages.

On October 20, 1986, summons was issued
to the private respondent and pre-trial conference as well as many hearings
were cancelled and postponed to give all available opportunities for the
private respondent to prepare its defense:

“x x x for the reason that the necessary documents and/or
papers needed in support of its defenses will come from abroad.” (p. 9-10,
Records of POEA Case No. (M) 86-10-933)

Complainants-petitioners, in their sincere quest for justice and knowing
all the while that they were defenseless against a giant corporation as their
opponent, never objected to the aforestated cancellations and postponements.

Finally, on April 4, 1988, the Philippines Overseas
Administration, handed its decision, disallowing payments of withheld food
supplies, daily crew maintenance expenses, ruling that the complainants –
petitioners should not also be given expenses for the Greek lawyer and
Philippines lawyers, and likewise no award for moral and exemplary damages. However, the salaries of the
complainants-petitioners for eleven (11) months were awarded.

From this POEA’s niggardly decision, private respondent
corporation still appealed to the National Labor Relations Commission, Second
Division, on April 20, 1988, questioning the seamen’s payment of their salaries
citing the letter dated May 2, 1984, as its alleged proof that the seamen were
already paid their 11-month-salaries. Private respondent was not able to secure any evidence or receipt of
alleged payment of salaries involved, and no proof whatsoever from the lawyer
allegedly hired by the seamen. The
seamen on their part contended that since the truth was that they were not yet
really paid their 11-month-salaries aboard the foreign vessel, no receipt or
proof to this effect can be produced by private respondent.

The NLRC, Second Division, reversed the POEA decision in its
resolution dated September 29, 1989 thus –

“We find the appeal impressed with merit.

“In the consideration of the merits of this case the Administrator
failed to consider the letter written by herein complainants to the Foreign
Exchange Department of the National Seaman Board asking for 30% percent
concession in the remittance of their salary. Pertinent portion of the letter is quoted hereunder:

‘We are stranded in the Port of Thessaloniki, Greece, claiming our
salary for ten (10) months, we got our lawyer to depend us (sic), got our
salary, we have agreement to our lawyer and also to the charterer, give 15%
each of them from our salary (sic). So,
the total deduction from our salary is 30%. In this connection we are unable to remit the full amount of foreign
currency. Please consider our case and
give at least 30% concession regarding to our situation (sic).

“Said letter is a clear indication that herein complainants
were able to get payment of their salaries after hiring the services of a
lawyer. The said letter was attested to
by the Master of the Vessel, the Greek lawyer and the charterer of the Vessel.”
(p. 17, Rollo)

There was a dissenting statement of its
Presiding Commissioner Daniel M. Lucas, Jr.:

“I am for the affirmance of the POEA Decision.”

A motion for reconsideration was filed by the petitioners which
motion was denied on November 10, 1989, again with the divided voting:

“I reiterate my dissenting opinion.”

“(Sgd) DANIEL
M. LUCAS, JR.

Presiding Commissioner”

From this NLRC divided denial of the motion for reconsideration,
the petitioners came to Us via a petition for certiorari,
charging the NLRC commissioners with grave abuse of discretion in ignoring the
rest of the evidence used by the POEA in weighing the case and coming up with
the conclusion that the petitioners had already been paid their salaries.

The instant petition is obviously meritorious. The real issue raised is whether or not
petitioners have already received their salaries.

We are tasked to scrutinize the whole record of the case
including the evidence presented since the findings of the POEA and the NLRC
are contrary to each other (Quality Tobacco Corporation v. Intermediate
Appellate Court, 187 SCRA 210).

A careful study of this case reveals that the POEA exerted much
diligence and came out with an impartial analysis in investigating, hearing and
deciding POEA Case No. (M) 86-10-933 (Diony Rapiz, et al., complainants, versus
Modern Asia Shipping Corporation, Respondent) resulting in the award of the
eleven (11) months’ salaries of petitioners Diony Rapiz, Nelson Gestopa and
Anatalio Ona, ordered to be paid by private respondent Modern Asia Shipping
Corporation within ten (10) calendar days at the exchange rate prevailing at
the time of actual payment.

The Presiding Commissioner of the NLRC, Second Division Daniel M.
Lucas, Jr. even voted in favor of this POEA decision, siding with the
petitioners.

Further, the Solicitor General’s Office, after a long and
objective scrutiny of the case, could not in its conscience, defend public
respondent NLRC, which reversed the POEA decisison. Thus, in the Solicitor General’s conclusion and recommendation,
it is stated:

“Private respondent corporation failed to substantiate clear
and convincing evidence its affirmative defense of payment. Hence, the NLRC erred and gravely abused its
discretion in reversing and setting aside the POEA Decision dated April 4,
1988.

“WHEREFORE, in view of the foregoing considerations, it is
respectfully recommended that the Resolution of the NLRC dated September 29,
1989 be set aside and the POEA Decision dated April 4, 1988 be reinstated and
affirmed en toto, with costs.

“This being an adverse Comment, it is respectfully prayed that
public respondent NLRC be directed to file its own Comment to the instant
Petition, granting it a period of thirty (30) days from notice.” (pp.
67-68 Rollo)

Public respondent NLRC however, replied only after almost ten
(10) months and after a resolution had been sent by this Court requiring it to
show cause why it should not be disciplinarily dealt with or held in contempt
for failure to comment on the petition for certiorari as required in its
resolution of April 2, 1990.

In its comment, public respondent insists that the petitioners
have already received their salaries citing their letter dated May 2, 1984 when
they wrote the Foreign Exchange Department of the National Seamen Board. It relies mainly on some past tenses like
“got” instead of “will get” used in said letter when the
same contains mixed tenses. It is
noteworthy that this was written when the seamen were without food and
supplies, stranded in the vessel for almost one year, not paid their
salaries for ten (10) months (at the time of writing), subjected to all kinds
of tensions, hungry, desperate, abandoned in a foreign land, away from their
loved ones, and merely barely living. In this miserable condition, what kind of letter can be expected of
them? Furthermore, using this May 2,
1984 letter as a defense was not initially resorted to by the private
respondent, as it knew that it had to really substantiate its alleged
payment. Said substantiation never came
– no receipts, no documents.

Public respondent nagged and cajoled the POEA and petitioners no
end in requesting for extensions of time to look for proofs that the
petitioners had already been paid. From
the records we quote:

“On December 29, 1986, respondent filed another urgent motion
requesting that ?

‘x x x an extension of thirty (30) days to file its answer position
papers considering that the necessary papers/documents, needed to prove that
Modern Asia Shipping Corp., is not concerned or liable in this case are still
in Athens, Greece; that this Honorable Office write
a letter of request that the said
documents/papers be send(sic) directly to this
office, as per telex received from the lawyers; x x x” (p. 20,
id.).

“On January 7, 1987, the POEA granted for the last
time respondent corporation’s motion for the 30-day extension without
objection on the part of complainant and reset the hearing to February 10,
1987.”

“In a letter dated January 10, 1987 and received on January
12, 1987, counsel for respondent corporation wrote the POEA in this wise –

‘Atty. Wong

Chief, Adjudication Dept.

POEA, Mandaluyong, Metro
Manila

Dear Atty. Wong:

‘This will refer to
the telex that we have received from our principal regardidng the case that was
filed against Modern Asia Shippine Corporation ad POEA Case No. (M)86-10933, we
have commu­nicated with them to send us the necessary documents and papers
needed in our defense, but the lawyer will only send the said documents and
papers, if a letter from your good office is sent to them(sic) directly.’

‘May we
respectfully request your good office to
send the letter to the Greek Lawyer,
Atty. Petros. You can
prepare the letter and then we will
handle the sending of the same in
Greece.’ (p. 22, id.) (Underscoring supplied)

“On January 22, 1987, the POEA as requested, wrote to the
Greek lawyer, thus –

‘Atty. Petros
Nikalausis

No. 19 Kontauryatau Street

Thesalaniki, Greece

‘Dear Atty. Petros,

‘This refers to the case
filed by seamen Diony Rapiz, Nelson Gestopa, Anatalio Oma (sic) against Modern
Asia Shipping Corporation docketed as POEA Case No. (M)86-10-933, pending
before this Honorable Office.’

‘In connection with the
above case and per your instruction respondent Modern Asia Shipping Corporation
requested us that we send you directly this letter to ask for the following
documents, to wit:

‘1. Copy of the
complaint filed by you before the court in Greece;

‘2. Decision of the
Court in Greece, duly authenticated;

‘3. Receipt for the
full payment of the salary and wages and other benefits received by crew
members; and,

‘4. Other documents
and papers necessary in the proper disposition of the said case.’

‘The seamen named above
were the former crews of M/V ‘Mighty Sea’, owned and operated by M.A. Hambury Company
Ltd. of 41 Akti Miaoali Street, Piraeus, Greece. The same seamen have filed a complaint against Modern Asia
Shipping Corporation asking for the payment of wages, attorney’s fees, refund
of food supplies and for moral and exemplary damages.’

‘Expecting that we would
receive the above documents/papers at the earliest time possible.’

‘Very truly yours,

‘(Sgd)
Atty. Potenciano R. Napenas

Hearing Officer.’

(p. 26, id.)

“On February 10, 1987, respondent corporation filed a third
urgent motion for another 15-day extension to file its answer. Said motion reads –

‘RESPONDENT, through counsel and unto this Honorable Office, most
respectfully request that another extension of at least fifteen (15) days from
today to file answer/position papers considerating (sic) that the letter
request of the respondent to this Honorable Office to send a letter request to
the Greek Lawyer to send directly to your office the documents/papers was not
acted upon by the said Greek Lawyer; that the said documents/papers
being (sic) requested from the Greek Lawyer
are vital to the defense of the
respondents; that with or without documents/paper coming from the Greek
lawyer respondent will file its answer with the reservation that as soon as the
documents/papers will be received by this Honorable Office it will form part as
documentary (sic) evidences of the respondent.’ (p. 27, id.) (underscoring
ours)

Without objection from complainants, the
same motion was granted and the hearing was reset to March 18, 1987.

“On February 27, 1987, respondent corporation filed its
position paper/motion to dismiss. It
admitted the 12-month employment of the three (3) complainants aboard the
vessel M/V Mighty Sea being operated by M.A. Hambury Co. Ltd.. It alleged that complainants had no cause of
action against it on grounds of extinguishment of obligation by payment, bar by
prior judgment of a foreign court and bad faith on the part of the
complainants. Thus, it argued –

‘Granting without admitting that the complaint of the complainant
sate (sic) cause of action against the respondent, the same was alrealdy barred
by prior judgment of a foreign court. The complainant in this case has filed an action in the Court of Athens,
Greece against the owner of the vessel M.A. Hambury Co., Ltd., in November 1983,
for the same cause of action as alleged in their present complaint. That is payment for unpaid wages and salary
on board the vessel M/V Mighty Sea, so their present action against the
respondent is already paid by the vessel owner. x x x.’

‘The respondent served (sic) it right
to present the documentary evidences with
respect to the above allegation for reason
that the documents being requested by
this Honorable Office to the complaints
Greek Lawyer, Atty. Petros Nikalausis, has
not been recieved(sic) by this Honorable
Office. The said documents
will form part as the respondent documentary
evidence.'” (pp. 43-47, Rollo)

WHEREFORE the petition is granted and the resolution of
the NLRC dated September 29, 1989 is hereby REVERSED and SET ASIDE and the
decision of the POEA dated April 4, 1988 is hereby AFFIRMED and
REINSTATED. Costs against private
respondent.

SO ORDERED.

Melencio-Herrera, (Chairman), Padilla, Regalado, and Nocon, JJ., concur.

* Penned by NLRC Com. Oscar N. Abella, concurred
in by Com. Domingo H. Zapanta but dissented upon by its Division
Presiding Commissioner Daniel M. Lucas, Jr. issued in POEA Case No. (M)
86-10-933, Diony Rapiz, et al., complainants versus Modern Asia Shipping
Corporation, Respondent.