Republic of the Philippines

COURT OF APPEALS
Manila

BRIGHT MARITIME CORPORATION

and/or W.E.M. LINES S.A.,
Petitioner,

- versus C.A. G.R. NO.

___________

HEIRS OF THE LATE DANILO F.

DUMOGHO represented by NORALYN
A. DUMOGHO,
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 Bright Maritime Corporation is a domestic corporation

duly organized and registered under Philippine Laws engaged in the
recruitment of seafarers for its foreign principals with the principal business
address at 24 Emerald Avenue, Ortigas Center, Pasig City, where notices,
orders, resolutions and other legal processes may be served upon them or thru
their counsel of record. While PETITIONER W.E.M. Lines S.A., is the
foreign principal to whom seafarer Danilo F. Dumogho was employed. Its
principal business address is in 1600 Amphitheatre Parkway Mountain View,
CA, 94043. Notices, orders, resolutions and other legal processes may be
served thru their counsel of record.

RESPONDENTS, Noralyn Dumogho representing the heirs of Danilo

F. Dumogho, is of legal age, married and residents of Block 4 Lot 18 Red
Berry Street, Meadowood Executive Village, Bacoor, Cavite where she may

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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. Montao (VA Montao
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 Montao 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) Courts 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)
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).

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 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 Masters
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. Dumoghos
falling overboard; and (2) Up to the time of this preliminary report, Mr.
Dumogho was still missing.

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. Montao as Voluntary Arbitrator.

Position of the Complainant

Complainant praying for the dismissal of the complaint argued that:

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 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;

5) The non-payment of Danilo Dumoghos 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 attorneys 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

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 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 attorneys fees because it may not be

awarded where there is no sufficient showing of bad faith could be
reflected in a partys 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 attorneys fees.

Decision of the Voluntary Arbitrator

After scrutiny of the merits of the case, Voluntary Arbitrator Atty. Allan
S. Montao 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 attorneys 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

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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.

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

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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 Vedastos 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 Ships 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 ships 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 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,

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

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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 ships 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. Dumoghos 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. Dumoghos death is for causes other than
his 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

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The Honorable Voluntary Arbitrator gravely erred in ruling that
Complainant-Appellee is entitled to Attorneys Fees

The Voluntary Arbitrator awarded ten percent (10%) attorneys 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 attorneys 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 attorneys

fees and expenses of litigation cannot be recovered except when the defendant
acted in gross and evident bad faith in refusing to satisfy the plaintiffs 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 attorneys fees to the respondents on one hand, and refuse
the grant of moral and exemplary damages on the other.

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 attorneys fees should therefore be
deleted.

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

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