Mabini Hall - Access to Justice

Dead bodies are still floating but the blame game is already in full swing. Fingers are put to good use—pointing to everyone else for the ferry tragedy that caused the deaths of 800 innocent lives and a multiple of that for the shattered families. As with all investigations, talk shows and media reports, the issues get murkier.

Let’s sort this mess out, shall we? The basic document between the common carrier and the passengers is a contract of carriage. It is an agreement to safely transport passengers from point A to B as far as human care and foresight can provide, using the utmost diligence of very cautious persons with a due regard for all the circumstances. In legal jargon, the standard of care required is extraordinary diligence because of the public nature of the carrier.

Was the public carrier negligent or at fault for sailing into the typhoon? A ship can only leave port if the Coast Guard gives the go-signal for its compliance with rules and regulations as to seaworthiness of the vessel among others. The argument is that if the Coast Guard allowed it to sail, then it must be safe and the diligence required met. Much reliance is also placed on the weather report agency Pagasa. Its alleged failure to promptly and accurately report the trajectory of the typhoon is blamed for the sinking.

Two questions follow: Is the public carrier discharged from the diligence required once the Coast Guard clears it based on the latest weather report such that the public carrier need not constantly check the changing weather patterns? When the ship was hit by the waves and capsized, was there no human action that could have effectively intervened?

There is a distinction between “perils of the ship” and “perils of the seas.” Perils of the ship refers to such factors that make the ship less seaworthy such as a defective or poorly maintained engine conking out in the middle of the sea. Perils of the seas are understood as an act of God that is beyond any human intervention.

Did the ship’s crew continuously monitor the progress of the typhoon to consider safe harbor to await the passing of the storm? It is ironic that we are a nation of seafarers starting from our forefathers with a history of tragic maritime deaths. Blame the OFW policy and local economic conditions.

Even if the ship did run aground, there should not have been such catastrophic death versus survivor rates. We are an archipelagic people at home with water and natural and man-made disasters. There were several islands in the proximity of the not-so-deep waters. Was it a question of evacuation procedures, sufficiency of lifeboats, flotation devices, emergency exits and adequate manpower and facilities? Thank God there is no question of overloading this time.

To think that there must be at least 1,000 cell phones on that vessel that could have received and sent text messages or calls on the status of the typhoon in real-time unless there was no signal on board. And the radars and communication facilities were down. We are innovative and adaptive to technology except when it comes to saving lives.

Blame the monopoly on domestic shipping, Congress for bad laws and the lack of budget and lack of enforcement. Nobody wants an incident like this and yet. We have not discussed endosulfan and the accusation of transporting hazardous goods together with passengers. Blame the fertilizer authority and the multinationals. Pretty soon, the shipper, the agents, the common carrier, the government, the salvage workers, the fisherfolk, the fish traders, the restaurant-going public will be blaming each other. Then the investigations will end and cases will go through the court system. Settlements and compromises will be made. Blaming continues; life goes on. It is back to normal until the next normal tragedy.

We might as well blame the dolphins for the incident. If dolphins could speak, they would have filed a class action against everybody else. But they can’t so we can put all the blame on the dolphins.