Untitled Texas Attorney General Opinion ( 1960 )

Mr. Franklin L. Smith Opinion No. WW-813
County Attorney
Corpus Chrlsti, Texas Re: May a county as an adjunct
to the oporatlon of's ver- :,
tical lift bridge over a *~
navigable deep water Chad-"
nel, purchase public ll-
ability insurance to cover
damages or injuries result-
ing from its tortious acts
committed in the operation
thereof, such bridge being
Dear Mr. Smith: a part of a county road.
'Your question for an opinion of the Attorney General
has been received in this office as to whether a county,
as an adjunct to the operation of a vertical lift bridge
over a navigable deep water channel, may purchase liabil-
lty insurance to coverdamages or injuries resulting from
its tortious acts committed in the operation of such bridge,
* said bridge being a part of a county road.
The pertinent facts stated in your letter concerning
this question are as follows:
"In connection with a port improve-
ment and railroad re-location project cur-
rently under way in Nueces County, there
hasbeen constructed a vertical lift brldge,
known as the UpparHarbor Bridge, over a
portion of the Port of Corpus Christi. Such
bridge was built jointly by Nuecas County,
the City of Corpus Christi, Nueces County
Navigation District, and the U.S. Corps of
Englnaard. The purpose of the bridge is to
provlde a means of crossing'CorRus'Chrlstlts
deep water port by both vehicular and rail-
road traffic. Such roadway is a county road.
In order to permit ocean-going vessels to
pass under such bridge, It 16 raised to a
height of 129 feet; It Is then lowered again
and paaaage ~of,vehicular and.railroad traffic
resumes. "
Mr. Franklin L. Smith, page 2 (W-813)
9,
. . .
"A question has arisen concerning
the legality of the'purchase of such lip
ability insurance by Nueces County, be-
cause, of course, the county ordinarily
Is immune from liability for damages re-'
suiting from,its tortlous'acts. However,
in view of the fact that the operation of
this bridge would subject Nueces County,
to the jurisdiction of the admiralty court,
it appears to me that the principle of
governmental immunity does not apply."
~Regardless of the fact that Texas Courts have con-
sistently held that the State, a county, or any political
subdivision of the State, other than cities, are not li-
able for the tortious acts of its officers, agencies and
employees committed in the exercise of governmental func-
tions, and that there is a total and absolute absence of
liability on the part of the State or any of its ‘subdivi-
sions for an action in tort, unless specifically provided
by statute, ller v. El Paso Count 156 S.W.2d 1000;
Orndorff v. tate, ex rel McNeal, 10 'S.W. 2e.206 (Civ.
APP. 1937, error ref.)_/ it is the opinion of this Depart-
ment that a county may Abe liable for its torts 'in a Court
of Admiralty where an Admiralty Court has jurisdiction.
"Admiralty" as defined in 2 Corpus Juris Secundum 64,
Admiralty Law, Section I, Subsection ~1, is that branch,or
department of ju,risprudencewhich relates to and regulates
maritime property, affairs,and,tran~sactions,whether civil
or criminal. In a more limited sense, it is the tribunal
exercising jurisdiction over maritime causes and adminlster-
ing the maritime law by a procedure peculiar to itself and
distinct from that followed by courtseither of equity or of
common law. Another definition ma be found.in Lee v.Lickln
Valley Coal Digger,Co., ,273 S.W.'51 2, 543,(Ky. 19+ 5
which we quote:
"Admiralty is a tribunal exercising
,jurisdictionover all maritime contracts,
torts, injuries or offenses,,,and.extends
to navigable rivers; ,whether tidal or not,
in the United States. . . ."
',,.
In 2 Corpus JurisSecundum,,74, Admiralty Law; Section
III, SubsetitionB (ll), it states as fo'llows:
Mr. Franklin L. Smith, page 3 (WW-813)
A body of water constitutes nav-'
igable iate; of the United States within ad-
miralty jurisdiction when it forms, by itself,
or by its connection with other waters, a con-
tinued highway over which commerce Is, OT may
be, carried on with other states or countries;
and, where meeting such test, the following have
been held within admiralty jurisdiction: Canals
Great Lakes, rivers, and slips. . . ."
It Is further stated In Section III, Subsection E
(7), page 114 of Corpus Jurls Secundum, as follows:
"A court of admiralty, generally, has
jurlsdictlon of a suit to recover damages for
a maritime tort or Injury, but Injuries that
are not maritime arc outside of Its jurisdiction.
The general rule Is that the ,place of Injury,
namely, whether or not on the high seas or other
navigable waters, determines whether or not the
injury is maritime; and it has been frequently
stated that it sole& determines the auestlon. The
general rule that thz place of injury-determines
its character applies irrespective of the nature
and origin of the wrong or injury, . . ." (Emphsrsis
added).
There has been no opinion of an Attorney General of Texas
on the question of llablllty of a county for Its torts In a
Court of Admiralty where an Admiralty Court has jurisdiction,
nor have there been any Texas cases that we have been able to
find passing on that specific question.
In Workman v. New'York, 179 U.S. 552, 21 S. Ct. 212,
45 L. Ed. 314, It is stated as follows:
"The proposition then which we must first
donaider may be thus stated,; Although by the
maritime law the duty rests upon courts of ad-
miralty to afford redress'for every Injury to
person or property where the subject-matter Is
within the cognizande of such courts and'when
the wrongdoer is amenable to process, neverthe-
less the admiralty courts must deny all relief ::
whenever redress for a wrong would not be afford-
ed by the local law of a particular state or the
. .
Mr. Franklin L. Smith, page 4 (Ww-813)
course of decisions therein. And this, not be-
cause, by the rule prevailing in the state, the
wrongdoer'is not generally responsible and usually
subject to process of courts of justice, but be-
cause in the commission of a particular act caus-
ing direct Injury to a person or property It Is
,considered, by the local decisions, that the wrong-
doer.is endowed wlth.all the attributes of sover-
eliivty,and therefore as to injuries by it done to
others in the assumed sovereign character, courts
are unable to administer justice by affording re-
dress for the wrong inflicted. The practical de-
struction of a uniform maritime law which must
arise from this premise, Is made manifest when it
is considered that if it be true that the prfnciples
of the general maritime law giving relief for every
character of maritime tort where the wrongdoer Is
subject to the jurisdiction of admiralty courts,
can be overthrown by conflicting decisions of state-.
courts, it would follow that there would be no
general maritime law for the redress of wrongs, as
such law would be necessarily one thing in one state
and one in another; one thing in one port of the
United States and a different thing in some other
port. As the power to change state laws or state
decisions rests with the state authorities by which
such'laws are enacted or decisions rendered, St would
come to pass that the maritime law affording relief
for wrongs done, instead of being general and ever
abiding; would be purely local- would be one thing
.: to-day and another thing to-morrow, That the con-
fusion to result would amount to the abrogation of
a uniform'marltime law is 'at once patent. * * *"The
disappearance of all symmetry in the maritlme'law
'and the law'on'the other subjects referred to, which
wouId thus'arise,'would, however, not be the only
evil'sprlnglng from the appllcatioi+af the,prlnciple ji
relied'on, sit-d the,maritime law which wou;ld~'survive
would have lmbedded~ln it a denial of justiaei This
must be the inevi,tableconsequentieof admitting the
proposition which assumes that the maritime law dls-
regards the rights of Individuals to be protectecJIn
their persons and property from wrongful injury, by
rmcognlzing that those who are amenable to the juris-
diction of courts of admiralty are nevertheless en-
dowed with a supposed governmental attribute by which
. ..’
. -
Mr. Franklin L. Smith, page 5 (WW-813)
they can inflict Injury upon the person or
property of another, and yet escape all respon-
sibility therefor. * * * . . . As a result of
the general principle by which a municipal
corporation has the capacity to sue and be sued, '
It follows that there is no llmitatlon taking .._
such corporations out of the reach of the proc-
ess of a court of admiralty, as such courts,
within the limit of their jurisdiction, may reach'
persons having a general capacity to stand in
judgment. * * * The contention, Is, although the
corporation had general capacity to stand in
judgment, and was therefore subject to the proc-
ess of a ,court of admiralty, nevertheless the
admiralty court would afford no redress against ;:,
the city for the tort complained of, because
under the local law the corporation as to some
of Its adminlstrativc acts was entitled to be
considered as having a dual capacity, one pri-
vate, the other public or governmental, and as ':)
-to all maritime wrongs committed In the per- I
formancc of the latter functions It should be
treated by the maritime law as a sovereign. But
the maritime law affords no justification for
this contention, and no example Is found in such
law, where one who Is subject to suit and amenable
to process is allowed to escape liability for the
commission of a maritime tort, upon the theory
relied up0n.I'
It Is obvious from the opinion In the Workman v. New
York case that a county or a city whether acting In'a
governmental or proprietary capacity is liable for its
torts under Admiralty Law butthat It is essential for re-
covery that the bounty or political subdivision be "subject
to suit and amenable to process," and that it have "the
capacity to sue and be sued," and that it have "a general
capacity to stand In Judgment."
In the case of OlKccfe v. Staples Coal Co., 201 Fed.
131, it was held that a county In the operation of a draw-
bridge, under the local statutes; was a body amenable to.
the process of the Federal court, had a general capacity tb
stand In judgment, and was liable for a maritime tort In
an action brought In the Fed&r&l court, even though It was
exempt from llablllty by a local statute for negligence of '
its agents or servants engaged in the actual performance of
a public duty Imposed by statute. In the case of The Alex Y..
. .
Mr. Franklin L. Smith, page 6 (w-813)
Hanna, 246 Federal 157, In which the court, holding that
-aware county with no corporate organization or status
could not be sued in admiralty for the maritime tort of Its
agents, said:
"A municipal corporation or other organlz-
ed political district of a state having a general
capacity to sue and be sued may be held liable
in a court of admiralty 1.nan action in personam for
damages resultlngfrom ~negligence,or other tort ‘-on. :thc
partof it's officers or'agents while acting.:id.
their
representative character, where the principles of
maritime law as recognized by the Constitution and
laws of the United States, justify the granting of
such relief. The circumstances that, at the time
of the commission of the tort, such corporation or
district was engaged in the discharge of a govern-
mental or sovereign rather than a subordinate'or
local function is immaterial. And where such corpo-
ration or organized district possesses such general
capacity to sue and be sued, it is not competent
for the state to provide that such corporation or
district shall enjoy immunity from accountability In
a proceeding in personam in a court of admiralty fo$
the recovery of damages for a maritime tort commit-
ted by it through Its officers or agents. In such
case it is beyond the power of the state to defeat
or render nugakory rights and liabilities created
and recognized by the paramount authority of the
Constitution and laws of the United States. . . .ll
In the very recent case, Nueces Co
trict No. 4.~. The Nellie B,A.Bm
District Court, S.D. Texas, Corpus Christi Division, it is
stated as follows:
"The short answer to this contention, at
least so far as the claims for tort not resulting
in death are concerned, is the deeply rooted prin-
ciple that a state cannot deprive a party of re-
dress in Admiralty against a municipality for ,the
negligence of its servants, . O . There i,sa dis-
tinction between immunity from process, which goes
to the'question of jurisiiction, and immunity from
liability, which deals with the substantive law of
admiraltv. Where the Court has jurisdiction, as
here, fiecause the county may sue and be sued, 11-B,
Tex. Jur. 120-123, sees. 87 and 8g the state may not
Mr. Franklin L. Smith, page 7 (WW-813)
deprive an admiralty court of the right to re-
dress a wrong;. . . or deprive a person of any
substantial admiralty rights. . . .”
Under Texas law a county may sue and be sued, 11-B,
Tex Jur. EO-123, sets. 87 and 88, and has a “general
capacity to stand in Judgment.”
The law as enunciated under Article III, Section
52 of the Constitution of Texas, that a county Is denied
the right to lend its credit or grant public money in aid
Of, or to any individual or corporation and that there-
fore a county has no authority to purchase liability in-.,
surance Is based on the premise that a county as a sub-
division of the,State cannot be held liable for its tor-
tious acts under any circumstances and that therefore there
could be no necessity or reason to purchase liability ln-
surance. However, when It is determined, as under Admiralty
Law, that a county can stand in judgment and be,.held‘liable
in..tort,a different rule will result as to the legality of
the purchase of liability Insurance by a county.
When a claim for injuries or damages for the tortious
acts’of a county’s officers, agents and employees has been
reduced to a.valid judgment, It cannot be said that such
judgment Is not legally chargeable against a county. The
following is quoted from Article 1575, Vernon’s Civil
Statutes:
11
. . . When a judgment Is rendered against
a county the commissioners court of such county
shall settle and pay such judgment in like manner : ~1::
and pro rata as other similar claims are settled
and paid by said court. . . .”
In viei of our opinion that a county may be liable under
Admiralty Law for injuries and.damages sustained by reason of
the negligent or tortlous acts of Its agents or employees when
the Admiralty Courts have jurisdiction, it is dur further
opinion that the Commissioners Court has the implied power.;,to
emPloy reasonable methods to protect the~county against such
liability, It being within the ‘sound dlscretlon’of the Corn-.:
missioners Court. You are therefore advlaed that a county,
as an adjunct to the operation of a vertical lift bridge over
a ‘navigabledeep water channel, such bridge being a part of
. .
Mr. Franklin L:Smith, page 8 (w-813)
a county road, may purchase public liability Insurance to
cover damages or injuries resulting from the tortloua acts
committed in the,operationthereof.
SUMMARY
A County in the opcratlon of a drawbridge
over a navigable deep water channel may be
liable for its torts under Admiralty Law,
where an Admiralty Court has jurisdiction
and, therefore,a County, as an adjunct to
the operation of a vertical lift bridge over
a navigable deep water channel, such bridge
balng a part of a county road, may purchaee~
public liability insurance to cover damages
or injuries resulting from tortlous acts
committed in the operation thereo,f.
Yours very truly,
Iola B. Wilcox
Assistant Attorney General
1BW:ma '
APPROVED:
OPINION COMMITTEE
W. V. Gcppert, Chairman
Jack N. Pride
Gordon C. Cass
Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore