Request By:
Mr. James H. Nutter, Jr.
Executive Director
Kentucky Port and River
Development Commission
Capital Plaza Tower - 24th Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning the Paducah-McCracken County Riverport Authority and the applicability to such an entity of the Longshoremen's and Harbor Workers' Compensation Act, the provisions of which were enacted by the Congress of the United States.
In December of 1978 an employe of the Paducah-McCracken County Riverport Authority fell from a barge and drowned. A question to be resolved concerns whether the claim for benefits should be brought under the Long-shoremen's and Harbor Workers' Compensation Act or whether the Kentucky Workmen's Compensation Act is applicable. In your opinion, the riverport authority as a public port is, in effect, a public utility and constitutes a public or quasi-public corporation covered by KRS 342.630 of the Kentucky Workmen's Compensation Act.
In 33 U.S.C.A. § 903(a)(2), pertaining to coverage under the Longshoremen's and Harbor Workers' Compensation Act, the following appears:
"(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). No compensation shall be payable in respect of the disability or death of. . . .
* * *
(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof."
In
Evans v. Louisiana Department of Highways, 420 F.2d 1280 (5th Cir. 1970), the Court said in part:
"Appellant's argument that he can maintain an action under the provisions of the Longshoremen's and Harbor Workers' Act is untenable. The Act specifically provides that 'no compensation shall be payable in respect of the disability or death of * * * (2) an officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof (emphasis added).' 33 U.S.C.A. § 903. This clear mandate cannot be overcome, as appellant argues, by a 'sue or be sued' clause in the enabling legislation of the Louisiana Department of Highways. Appellant was an employee of a state and thus, under the express language of the Act, cannot gain relief under the Longshoremen's and Harbor Workers Act."
We assume that the riverport authority with which you are concerned was organized and exists pursuant to the provisions of KRS 65.510 to 65.650. KRS 65.520(2), dealing with the general powers of a riverport authority, states:
"The authority shall be a body politic and corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with and do all things reasonable or necessary to effectively carry out the powers and duties prescribed by KRS 65.510 to 65.650. The authority may exercise all powers granted to governmental agencies by KRS 58.010 to 58.140. The authority may exercise all powers consistent with its powers and duties stated in this chapter, granted by KRS 273.171 to corporations governed by KRS 273.161 to 273.390."
In OAG 79-133, copy enclosed, we concluded that when considering the specific powers of contract, borrowing, financing and other powers of a riverport authority, such an authority is not a department, instrumentality or agency of the county and city although they may contribute to its financing. A riverport authority is an autonomous and separate entity acting for its own purposes and possessing defined though limited powers of government. It is a public or governmental corporation with specifically assigned duties and powers relating to clearly defined public purposes.
In OAG 77-16, copy enclosed, we said that a riverport authority is a body politic and corporate with the usual corporate attributes. It is a public or governmental agency of corporation with specifically assigned duties and powers relating to clearly defined public purposes. It is a public corporation, rather than a private corporation, existing solely for public purposes.
The Court, in City of Plantation v. Roberts, Fla., 342 So.2d 69 (1977), said that the Longshoremen's and Harbor Workers' Compensation Act did not preclude the filing of a workmen's compensation claim under the state act by a policeman who sustained personal injuries while operating a police launch in a canal within the city limits in view of the section of the federal act excluding from its coverage any officer or employe of any state government or any political subdivision thereof.
KRS 342.630 of the Kentucky Workmen's Compensation Act, concerning coverage of employers, provides that the following shall constitute employers mandatorily subject to, and required to comply with, the provisions of this chapter:
"(2) The state, any agency thereof, and each county, city of any class, school district, sewer district, drainage district, tax district, public or quasi-public corporation, or any other political subdivision or political entity of the state that has one or more employes subject to this chapter."
Thus, in conclusion, it is our opinion that a riverport authority organized and existing pursuant to KRS 65.510 to 65.650 is a covered employer under KRS 342.630 and mandatorily subject to the requirements of the Kentucky Workmen's Compensation Act. A riverport authority would appear to be a political subdivision of the state under 33 U.S.C.A. § 903(a)(2) and, therefore, not subject to the provisions of the Longshoremen's and Harbor Workers' Compensation Act when its specific though limited powers of government as a body politic and an autonomous public corporation acting pursuant to clearly defined public purposes are considered.