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AGO 1960 No. 159 - November 21, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

INDUSTRIAL INSURANCE - UNIVERSITY OF WASHINGTON - COVERAGE OF MASTERS AND CREWMEN OF VESSELS.

The Washington legislature could extend the coverage of workmen's compensation to state employees who are masters or crewmen of state vessels operated by the University of Washington, but such employees are presently expressly excluded by statute.

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                                                               November 21, 1960

Honorable Jerry Hagan
Director,Department of Labor and Industries
General Administration Building
Olympia, Washington                                                                                                       Cite as:  AGO 59-60 No. 159

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            May the masters and crewmen of the vessels operated by the University of Washington be covered by workmen's compensation?

            We answer your question in the analysis below.

                                                                     ANALYSIS

            In our research we have discovered that it becomes necessary to answer two questions which are necessarily implied in the question set forth above.

            First:  Could Washington cover these state employees with workmen's compensation?

             [[Orig. Op. Page 2]]

            The Jones Act, 46 U.S.C. § 688 (1940) provides:

            "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.  Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.  (Mar. 4, 1915, ch. 153, § 20, 38 Stat. 1185; June 5, 1920, ch. 250, § 33, 41 Stat. 1007.)"

            Federal statutes modify the rights of railroad employees by abolishing the defense that the injury was caused by negligence of a fellow servant, by modifying the defense that the claimant assumed the risk, and by limiting the defense of contributary negligence to merely reducing the amount of a claimant's recovery.  Vol. I,  Benedict on Admiralty, 6th ed. pp. 50-51.

            It has been consistently held that because Federal jurisdiction over maritime and admiralty matters is exclusive, a state has no jurisdiction to cover maritime employment by workmen's compensation.  Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1916); Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S.Ct. 88, 73 L.Ed. 232 (1928).  The basis of the exclusiveness of Federal jurisdiction was well set forth in Southern Pacific Co. v. Jensen, supra, at pp. 214-216.

            "Article III, § 2, of the Constitution, extends the judicial power of the United States 'To all cases of  [[Orig. Op. Page 3]] admiralty and maritime jurisdiction;' and Article I, § 8, confers upon the Congress power 'To make all laws which may be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.'  Considering our former opinions, it must now be accepted as settled doctrine that in consequence of these provisions Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.  Butler v. Boston & Savannah Steamship Co., 130 U.S. 527; In re Garnett, 141 U.S. 1, 14.  And further, that in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction.  The Lottawanna, 21 Wall. 558; Butler v. Boston & Savannah Steamship Co., 130 U.S. 527, 557; Workman v. New York City, 179 U.S. 552.

            "In The Lottawanna, Mr. Justice Bradley speaking for the court said: 'That we have a maritime law of our own, operative throughout the United States, cannot be doubted.  The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." . . .  One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country.  It certainly could not have been intended to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.'

             [[Orig. Op. Page 4]]

            "By § 9, Judiciary Act of 1789, 1 Stat. 76, 77, the District Courts of the United States were given 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction; . . . saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.'  And this grant has been continued.  Judicial Code, §§ 24 and 256.

            "In view of these constitutional provisions and the federal act it would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation.  That this may be done to some extent cannot be denied.  A lien upon a vessel for repairs in her own port may be given by state statute,The Lottawanna, 21 Wall. 558, 579, 580; The J. E. Rumbell, 148 U.S. 1; pilotage fees fixed, Cooley v. Board of Wardens, 12 How. 299; Ex parte McNeil, 13 Wall. 236, 242; and the right given to recover in death cases, The Hamilton, 207 U.S. 398; La Bourgogne, 210 U.S. 95, 138.  See The City of Norwalk, 55 Fed. Rep. 98, 106.  Equally well established is the rule that state statutes may not contravene an applicable act of Congress or affect the general maritime law beyond certain limits.  They cannot authorize proceedingsin rem according to the course in admiralty, The Moses Taylor, 4 Wall. 411; Steamboat Co. v. Chase, 16 Wall. 522, 534; The Glide, 167 U.S. 606; nor create liens for materials used in repairing a foreign ship, The Roanoke, 189 U.S. 185.  See Workman v. New York City, 179 U.S. 552.  And plainly, we think, no such legislation is valid if it contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.  This limitation, at the least, is essential to the effective operation of the fundamental purposes  [[Orig. Op. Page 5]] for which such law was incorporated into our national laws by the Constitution itself.  These purposes are forcefully indicated in the foregoing quotations from The Lottawanna."

            In State ex rel. Jarvis v. Daggett, 87 Wash. 253, 151 Pac. 648 (1915), the court, in holding that maritime occupations were not covered by workmen's compensation, noted that because a state cannot abolish federally created rights, to require an employer to cover maritime employment, would possibly constitute an unequal protection of the laws.  The court stated at pp. 257-258:

            "The maritime law being a part of the law of the United States, the legislature of a state has no power to modify or abrogate it.  Workman v. New York City, 179 U.S. 552.  It follows, therefore, that the legislature in passing the compensation act could not take from a workman any right which he had under the maritime law of the United States.  The petitioner here still has the right to pursue his remedy in admiralty.  Gathering the purposes of the act from all its provisions, we think it could not have been the legislative intent to attempt to encroach upon the admiralty jurisdiction of the Federal court.  The excerpt from the first section of the act, above quoted, substitutes the provisions of the act for every other remedy, proceeding, or compensation, except as therein provided, which proviso is not here material, as it does not bear upon the question.  This declaration is followed by the clause which abolishes all civil actions and civil causes of action for personal injuries, and all jurisdiction of the state courts over such causes.  It seems to be the purpose of the act to give the relief therein granted where the legislature had the power to abolish every other remedy.  If companies operating boats upon Puget Sound are within the act, then they may be compelled to pay the percentage of their pay rolls specified, and yet be subject to a right of action in admiralty; while other persons or corporations  [[Orig. Op. Page 6]] engaged in hazardous business not covered by admiralty law would be completely protected against the pursuit of any other remedy or proceeding.  The owner of a steamboat, if he should pay the percentage of his pay roll specified, and his injured seamen should pursue their remedy in admiralty, would receive no protection from the act, and yet would be subject to its burdens.  If the act were given this construction, it might well be doubted whether it would not offend against that provision of the fourteenth amendment to the constitution of the United States which provides that no state shall make or enforce any law which shall 'deny to any person within its jurisdiction the equal protection of the laws.'"

            The first matter for consideration, therefore, is whether or not the coverage by a state of its own employees engaged in maritime occupations is of such a different nature that it would not constitute interference with the exclusive jurisdiction of the Federal government over maritime and admiralty matters.

            An important difference to be noted is that because of governmental immunity, the rights granted by the Jones Act may be empty rights if the seaman claimant is an employee of the state.  As stated in 81 C.J.S. States, § 130, page 1137:

            "As a general rule, in the absence of constitutional or statutory provision therefor, a state exercising governmental functions cannot be made to respond in damages for tort.  Accordingly, a state is not liable for the torts of its officers or agents in the discharge of their official duties unless it has voluntarily assumed such liability and consented to be so liable, or unless there is in effect the taking of property for public use without compensation; the only relief the aggrieved person has in such case is an appeal to the legislature. . . ."

             [[Orig. Op. Page 7]]

            In addition, a state has immunity from suit by a citizen in a Federal court.  This immunity was created by the 11th Amendment of the United States Constitution which provides that Federal judicial power does not extend to suits by a citizen against a state.  (If it so desires, a state may likewise waive this immunity. Missouri v. Fiske, 290 U.S. 18, 54 S.Ct. 18, 78 L.Ed. 145 (1933).)

            The masters and crews of the vessels of the University of Washington suffer from both of the above disabilities.

            When it is considered that if a state has not waived its immunity, seamen who are state employees have no Federal rights which can be enforced, it is hard to see how the jurisdiction of the Federal government would be affected by covering them with workmen's compensation.  Whether Federal rights can or cannot be abolished by state action, seems to be of no consequence.  In Maloney v. State of New York, 3 N.Y. (2d) 356, 144 N.E. (2d) 364 (1957), the court, in holding that a state employee who was injured while engaged in a maritime occupation was covered by workmen's compensation, stated:

            "The Federal law could not give a seaman employed by the State a right of action against it in the Court of Claims, nor does it preclude the State from making its Workmen's Compensation Law the only remedy available to its maritime employees. . . ."

            Second:  Has the legislature covered these employees?

            RCW 51.12.100 reads in part as follows:

            "The provisions of this title shall apply to all employers and workmen except a master or member of a crew of any vessel, engaged in maritime occupations for whom no right or obligation exists under the maritime laws for personal injuries or death of such workmen."  (Emphasis supplied.)

            In the session laws of 1931, chapter 79, a comma appears between the words "workmen" and "except."  This statute, when read with  [[Orig. Op. Page 8]] the comma supplied, is clear and unambiguous and means exactly what it says.  It expressly excludes the master or member of a crew of any vessel.

            We are therefore of the opinion that (1) the Washington legislature could, if it wished, cover state employees who are masters or crewmen of state vessels under workmen's compensation, but (2) the legislature, under existing statutes, has expressly excluded such employees.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General

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