Francisco Moya Milan, a stevedore for decades in the Port of Barcelona, unloaded thousands and thousands of bags of asbestos throughout his career. He did it on his shoulders and without protection, like all his colleagues, who years later would develop lung diseases due to exposure to that dust. Francisco, who died in 2019, has not lived to see it, but a few months ago he won a court battle, that of compensation, which many considered lost.
The Supreme Court has recently ruled that this Barcelona stevedore, as well as three others affected in the ports of Barcelona and Cádiz, must receive their corresponding compensation for work incapacity from the stevedoring companies of their respective cities. Between the three cases they exceed 800,000 euros. Furthermore, in Catalonia alone there are at least nine other victims pending a similar sentence.
Of the four cases on which the Supreme Court has already ruled, only one, the other from the Port of Barcelona, is still alive. The others have already died.
“My father always said that he wouldn’t see it, but that we had to go to the end,” remembers Mari Carmen Moya, Francisco’s daughter. When in 2011 the National Social Security Institute (INSS) recognized his permanent disability due to work-related illness, due to asbestosis and pulmonary emphysema with severe respiratory alteration, he had already been retired for a long time. But that recognition was only the beginning of a long judicial journey that continues until the 2024 ruling.
The day she received the call from the lawyer to inform her of the ruling, Mari Carmen explains that they both started crying. On the other end of the phone was Miguel Arenas, from Col·lectiu Ronda, the reference in Catalonia for labor demands linked to asbestos. “These cases are just the tip of the iceberg,” says the latter, who regrets that between the passage of time and serious illnesses, the majority of his clients have died during the judicial process.
The dockers are just one more sector, perhaps until now little known, in which exposure to asbestos was the seed of a true epidemic of lung diseases and deaths that continues to this day. Currently, around 4,500 deaths are registered in Spain each year due to cancer and other pathologies linked to asbestos cement, the majority among workers in asbestos factories, but also in industries such as the automobile, railway, naval and construction industries.
Spain began to curb the use of asbestos in the mid-1980s and banned it definitively in 2001, but regulation came late. “The most affected were the cheap labor force, many immigrants from Andalusia and Extemadura,” says Arenas. Also the families – since they washed clothes at home – and even the neighbors, as confirmed by the ruling that forced Uralita to pay 2.3 million to forty affected people who were not employees of the plant.
Tons and sacks burst
Born in the province of Granada, Francisco came to Barcelona as a teenager to work as a docker. He settled in the Raval, near the port, where he started a family and had three children, all of them dockworkers as well (although Mari Carmen was only temporarily so). From 1956 to 1988 he was an employee of the Port Workers Organization (OTP), the legal predecessor of the current Estibarna, which is the one that must now assume the compensation of 246,280 euros.
It is impossible to know today how many shipments of asbestos Francisco handled with his own hands until container transportation was consolidated. Until then, fiber cement arrived at docks like Barcelona in bags stacked in the holds of ships. The stevedores accessed the warehouses, carried them on their backs and placed them on pallets and then on forklifts, destined for factories such as Uralita or Rocalla.
“Just like flour or medicine, everything came in bags or sometimes directly in bulk,” says Mari Carmen. “They were not given clothing or protective equipment,” he adds. Francisco’s sentence confirms this. “The asbestos normally arrived in the form of bags, breaking on numerous occasions, with the stevedores being in contact with the dust it generated, especially in the warehouses, which were closed places,” describes the Supreme Court ruling.
Only in the Port of the Bay of Cádiz, which received shipments for the Uralita plant in Seville, 270,000 tons of asbestos were unloaded between 1970 and 1987, according to the first ruling of the Supreme Court that agrees with one of the stevedores of Cádiz . Employed since 1970 by the OTP (its legal successor is currently the stevedoring company SAGEP-Cádiz), he was diagnosed with asbestosis in 1991, when he was declared disabled. His compensation amounts to 14,000 euros, which his heirs will collect because he died. The relatives of the other victim from Cádiz, for their part, will receive 147,000 euros.
The long judicial road in Catalonia
Those in Barcelona and Cádiz are not the first lawsuits by dockworkers who are victims of exposure to asbestos. Although there is no count, there is at least one precedent, that of an employee of Bilboestiba, in the Port of Bilbao, who died of cancer in 2008 and whose family received 129,000 euros in compensation.
However, the sentences known in recent months represent a before and after for those affected, since what the Social Chamber of the Supreme Court does is unify doctrine – that is, it establishes a single interpretation to avoid contradictions between rulings. judicial proceedings – and opted to force the stevedoring companies to assume the compensation to which they were opposed.
Until today, and in summary, the Superior Court of Justice of Andalusia (TSJA) had been ruling in favor of the dockers, while the Superior Court of Justice of Catalonia (TSJC) did the opposite.
The legal dispute focused on two aspects: on the one hand, whether the stevedoring companies were really responsible for the safety measures of their employees, and on the other, whether Estibarna and SAGEP-Cádiz should assume the consequences of the damages caused. by its legal predecessor, the OTP. Regarding the latter, the Supreme Court makes it clear that the civil liability of the current companies “derives from the integration of the OTP dockworkers into their workforce and from their subrogation, with their rights and obligations.”
As to whether the OTP had the obligation to guarantee protection to its employees, the problem was that its operation was like that of an agency or ETT. Although it hired and paid salaries to stevedores, among other of its obligations, what this organization actually did was make its employees available to the multiple stevedoring companies that operated in each Spanish port.
In this sense, the TSJ of Catalonia estimated Estibarna’s resources and ruled that her predecessor “was not responsible for the obligations of security surveillance and health protection.” In this way, he was knocking down all the demands of the Barcelona dockworkers, so that the lawyer Miguel Arenas was on the verge of throwing in the towel. Until he learned that the TSJ of Andalusia had interpreted that the OTP was responsible, so he filed an appeal for the Supreme Court to decide which of the two courts was right.
The result is that the High Court has ruled that the missing OTP, despite their peculiarities, had “plurality of obligations in terms of safety and hygiene at work”, among them “providing their workers with the elements and means of personal protection.” that are considered indispensable.” In the first case of Cádiz, the text of the sentence is blunt: “If the OTP had provided him with adequate personal protection elements, he would not have suffered from this disease.”
After closing a journey of more than ten years of judicial proceedings, and waiting to collect what they owe, Francisco’s family celebrates that their fight can pave the way for the victims of the Port who come after them. “I was stubborn, but I knew it would come out and I told my father that, even though he knew he wouldn’t see it,” he concludes.
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