TIME LIMIT FOR FILING OF CLAIMS BY INJURED CREW MEMBERS OF WASHINGTON STATE FERRIES

TIME LIMIT FOR FILING OF CLAIMS BY INJURED CREW MEMBERS OF WASHINGTON STATE FERRIES.

Right of recovery by seaman for personal injury in the course of his employment upon a ferry operated by Washington Toll Bridge Authority is governed by the Federal Employers' Liability Act and not by statutes of the State of Washington.

                                                                  - - - - - - - - - - - - -

                                                               December 11, 1952 

Honorable William A. Bugge
Director
Department of Highways
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 436

 Dear Sir:

             This is to acknowledge receipt of your letter in which you direct attention to RCW 47.60.250, which requires as a condition precedent to recovery for personal injury resulting from the operation of ferries by the Washington Toll Bridge Authority, the filing of a verified claim by the injured person against the authority within thirty days after the time of the accrual of such claim.

             You request our opinion as follows:

            "We would appreciate an opinion from you as to whether any exception may be made under the above mentioned Section of the Revised Code, and also whether same is in any way in conflict with the Federal Statute pertaining to the rights of seamen."

            It is our conclusion that no exception may be made to the provision of RCW 47.60.250 requiring the filing of a verified claim within thirty days of the injury or damage, where such provisions are applicable.  As to claims of injured seamen, RCW 47.60.250 does not apply, such claims being governed by the Federal act.

                                                                      ANALYSIS

             RCW 47.60.250 provides that as a condition to a recovery for personal injury resulting from operation of ferries by the Washington Toll Bridge Authority, the person injured shall file a verified claim against the Authority growing out of such injury within thirty days after the time when such claim accrued; and that no action may be maintained against the Authority upon such claim until the same has been filed within the time stated and sixty days have elapsed after such presentation and filing.

             The language of the statute is plain and unambiguous, hence there is no room for construction or exception.  On November 17, 1931, in reply to a request from the Department of Labor & Industries for advice whether a state department may waive a specific statute of limitations governing its jurisdiction and operations, this office held that notwithstanding mitigating circumstances urged, the department was bound by the statute in accordance with its terms.  See also,Read v. Dept. of Labor & Industries, 163 Wash. 251, andFerguson v. Dept. of Labor & Industries, 168 Wash. 677.

             Your question whether the Washington Toll Bridge Authority may consider  [[Orig. Op. Page 2]] an application for compensation filed subsequent to the date of expiration of the time in which the statute requires the filing of such claim is answered in the negative.

             The second portion of your inquiry is whether RCW 47.60.250, cited above, is in conflict with the Federal statute (Title 46, § 688, U.S.C.A.) under which a seaman who sustains personal injury in the course of his employment may maintain an action for damages against his employer.

             The legislature created the Washington Toll Bridge Authority composed of the governor, state auditor, chairman of the public service commission, director of highways, and the director of public institutions, and authorized the Authority to acquire and operate toll bridges and ferries.  See RCW 47.56.020, et seq.

             The ferries operated by the Authority are vessels "operating upon navigable waters."  The employees of the Authority operating such ferries in the absence of a statute granting such right, could not maintain an action for their own personal injuries against the state.  A state may not be sued without its consent.  In re State of New York, 256 U.S. 490.  The State of Washington is not liable for acts of negligence committed by its offices and agents, even when acting within the scope of their authority, Cook v. State, 192 Wash. 602.  In the operation of the ferries, which are integral parts of the primary state highway, the state is acting in a governmental capacity; consequently, the state may not be sued without its consent for personal injury resulting from the operation of such ferries.  SeeSchlmyer v. Romeo, 117 P. (2d) 996.

             In creating the Washington Toll Bridge Authority, the state consented to suits against the Authority by seamen for injuries occurring upon vessels of the Authority in accordance with the provisions of section 688, Title 46, of the United States Code, but restricted its consent to liability of the Authority only "and did not create any general liability of the state."  See RCW 47.60.200 to 47.60.270.

             Under Title 46, § 688, U.S.C.A., which makes applicable the Federal Employers Liability Act, § 51-60, Title 45, a seaman injured in course of his employment may maintain an action to recover for injuries resulting from negligence of his employer.

             The statute (RCW 47.60.210) under which the state consents to suits against the Authority by seamen for injuries occurring upon vessels of the Authority in accordance with the provisions of § 688, Title 46, U.S.C.A., is declaratory of the right of recovery granted by the Federal statute cited and is controlled by limitation provision of the Federal Employers Act (§ 56 of Title 45, U.S.C.A.), not by the state statute (RCW 47.60.250).  Engle v. Davenport, 46 Sup. Ct. 410 [[46 S.Ct. 410]], 271 U.S. 33.

             It is the opinion of this office that the right of a seaman to recover for personal injury received in the course of his employment upon a ferry operated upon navigable waters by the Washington Toll Bridge Authority  [[Orig. Op. Page 3]] is governed by the Federal Employers Liability Act, cited above, and may not be limited by the statutory provision (RCW 47.60.250) requiring such injured seaman to file with the Authority a verified claim of injury sustained by him within thirty days after the time when such claim accrued.

 Very truly yours,
SMITH TROY
Attorney General

T. H. LITTLE
Chief AssistantAttorney General