source: Caselaw Access Project

author: WOLF, District Judge.

license: Public Domain

text:
    NEW YORK AIRLINES, INC., Plaintiff, v. DUKES COUNTY, Martha’s Vineyard Airport Commission, et al., Defendants.
    Civ. A. No. 85-2342-W.
    United States District Court, D. Massachusetts.
    Dec. 4, 1985.

      Thayer Fremont-Smith, Choate, Hall & Stewart, Boston, Mass., Ronald Stern, Hughes, Hubbard & Reed, Washington, D.C., for plaintiff.
    Robert Tolins, Holtz & Gilman, P.C., Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

WOLF, District Judge.

Plaintiff in this action is New York Airlines, Inc. (“New York Air”). Defendants are Dukes County, the Martha’s Vineyard Airport Commission (the “Commission”) and the individual members of the Commission. New York Air seeks damages and injunctive relief for the refusal by the Commission to grant it access to the Martha’s Vineyard Airport (the “Airport”). The matter is before the court on defendants’ motion to dismiss the complaint under Fed. R.Civ.P. 12(b)(1) and 12(b)(6).

For the reasons set forth below, the motion is in part granted and in part denied. More specifically, defendants’ motion is granted as to New York Air’s claims under 49 U.S.C. §§ 1305(a) and 1349(a) and under 42 U.S.C. § 1983 to the extent they are based on those provisions of the federal aviation statutes. The motion is denied as to New York Air’s claims under the supremacy clause of the Constitution, art. VI, cl. 2; the commerce clause, U.S. Const., art. I, sec. 8, cl. 3; 42 U.S.C. § 1983 to the extent they are based upon 49 U.S.C. § 2210(a); and the Sherman Act, 15 U.S.C. § 1 et seq.

The alleged facts, as stated in the amended complaint, are as follows. On April 9, 1985, New York Air filed a formal request for permission to operate at the Airport beginning on June 1, 1985. The request was considered at a meeting of the Commission held on April 24,1985, at which the Commission refused New York Air permission to use the terminal and ramp facilities at the Airport. This, in effect, denied New York Air access to Martha’s Vineyard. According to statements made at the April 24 meeting by members of the Commission, the refusal was based in part on factors that relate to New York Air’s proposed routes and services, including concern over the competition that would result with Provincetown-Boston Airways (“PBA”), a carrier which now services the Airport, and the opinion of some members that the proposed service was unnecessary since other carriers, including PBA and Brockway Air, already provided adequate service. Commission members also stated that the Airport’s facilities were inadequate to accommodate New York Air’s DC 9-30 aircraft. The decision to deny New York Air access to the Airport was confirmed on May 8, 1985. The amended complaint further alleges that defendants’ actions constitute an attempt to regulate the routes and services of an air carrier seeking to use the Airport and that, even if the denial of access was based on purported facilities limitations at the Airport, the denial was improper because the facilities are adequate to accommodate the proposed operations.

New York Air’s claims for relief are based on the supremacy clause of the United States Constitution, art. VI, cl. 2; the commerce clause of the Constitution, art. I, sec. 8, cl. 3; the civil rights statute, 42 U.S.C. § 1983; and various provisions of the federal aviation laws, 49 U.S.C. §§ 1305(a), 1349(a) and 2210(a). New York Air also alleges that defendants conspired with PBA to protect PBA from competition in violation of the antitrust laws, 15 U.S.C. § 1.

For purposes of a motion to dismiss for failure to state a claim, the material allegations of the complaint are to be taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404, rehearing denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969); O’Brien v. DiGrazia, 544 F.2d 543, 545 (1st Cir.1976), cert. denied sub nom. O’Brien v. Jordan, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); see Robinson v. Stanley Home Products Inc., 272 F.2d 601, 602 (1st Cir.1959). The complaint is to be liberally construed in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. at 421, 89 S.Ct. at 1848; Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). Dismissal is inappropriate “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. at 102.

I. The Constitutional Claims

A. The Supremacy Clause

The supremacy clause, U.S. Const., art. VI, cl. 2, invalidates state laws that “interfere with or are contrary to” federal law. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). Congress may prempt state law by an express provision. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604, reh’g denied, 431 U.S. 925, 97 S.Ct. 2201, 53 L.Ed.2d 240 (1977). In addition, an intent to preempt state law may be inferred where Congress has enacted a sufficiently comprehensive scheme of federal regulation or where the federal interest is dominant so as to preclude state legislation in the same area. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); see Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Where Congress has not acted to supersede completely regulation by the states, state law is nullified to the extent that it conflicts with federal law. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-43, 83 S.Ct. 1210, 1216-18, 10 L.Ed.2d 248, reh’g denied, 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d 1082 (1963). See generally Hillsborough County v. Automated Medical Laboratories, Inc.,—U.S.-, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). New York Air claims that the Commission’s action is prohibited under the supremacy clause by the express preemption provision contained in 49 U.S.C. § 1305(a) and by inference from the extensive federal regulatory scheme governing interstate air transportation and the federal policies underlying that scheme.

Section 105(a) of the Federal Aviation Act, 49 U.S.C. § 1305(a), provides that:

[N]o State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority under title IV of this Act to provide air transportation.

The provision was enacted as part of the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705, 1708 (1978) (amended 1984), by which Congress sought to place “maximum reliance on competitive market forces and on actual and potential competition,” consistent with the public safety and other objectives of the Act, for the provision of a national air transportation system. 49 U.S.C. § 1302(a)(4). Section 105(a) addressed the absence under existing law of any specific provision governing federal and state jurisdiction and was intended to “prevent conflicts and inconsistent regulations” affecting airlines providing both intrastate and interstate service. H.R.Rep. No. 95-1211, 95th Cong., 2d. Sess., reprinted in 1978 U.S. Code Cong. & Ad.News 3737, 3752. Section 105(a) expressly preempts state regulation of interstate carriers operating pursuant to 49 U.S.C. § 1371 et seq. See, e.g., San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1310 n. 8, (9th Cir. 1981), cert. denied sub nom. Department of Transportation v. San Diego Unified Port District, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); see also Midway Airlines, Inc. v. County of Westchester, N.Y., 584 F.Supp. 436, 440 n. 18 (S.D.N.Y.1984). New York Air’s amended complaint therefore states a claim under the supremacy clause to the extent that the Commission’s action is alleged to constitute a “law, rule, regulation, standard, or other provision” affecting its “rates, routes, or services.” See 49 U.S.C. § 1305(a).

In addition, courts have recognized the predominance of federal interests in the regulation of aviation. See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 625, 633-34, 93 S.Ct. 1854, 1855, 1859-60, 36 L.Ed.2d 547 (1973) (federal regulation of aircraft noise); United States v. Helsley, 615 F.2d 784, 786 (9th Cir.1979); British Airways Board v. Port Authority of New York & New Jersey, 564 F.2d 1002, 1010 (2d Cir.1977) (“Concorde II”). The amended complaint thus states a claim under the supremacy clause insofar as the Commission’s action would interfere with the federal scheme of regulation or stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. at 67, 61 S.Ct. at 404.

Challenges to the actions of airport operators based on the supremacy clause, including private actions against refusals by local airport proprietors to grant access to interstate carriers, have been recognized by the courts. Concorde II; United States v. State of New York, 552 F.Supp. 255 (N.D.N.Y.1982), aff'd, 708 F.2d 92 (2d Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80 L.Ed.2d 456 (1984); see Midway Airlines, 584 F.Supp. at 438; see also Pirolo v. City of Clearwater, 711 F.2d 1006, reh’g denied, 720 F.2d 688 (11th Cir.1983) (suit brought by airport operator under supremacy clause); San Diego Unified Port District, 651 F.2d 1306 (suit by local port district).

Defendants’ contention that the refusal of access to New York Air was temporary and that it was based on legitimate proprietary interests excluded from preemption under section 105(b) of the Federal Aviation Act, 49 U.S.C. § 1305(b), cannot properly be considered on the motion to dismiss. These issues will necessarily involve factual determinations and no evidence has been presented by the parties as to matters outside the pleadings. See Fed.R.Civ. 12(b). The amended complaint states facts in support of the allegations that the Commission’s action was based on factors related to the rates, routes and services of New York Air and was beyond the scope of legitimate local concerns. Specifically, New York Air alleges that the Commission’s denial of access was based on consideration of the adequacy of existing service at the airport and the potential effect of New York Air’s proposed service on competition with other carriers. These factors relate to the routes and services of interstate air carriers. In light of the applicable standards, these allegations are sufficient to state a claim under the supremacy clause.

B. The Commerce Clause

Under the commerce clause, state or local regulation affecting interstate commerce which serves to promote a legitimate local interest is permissible “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits”. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Where state regulation does impose excessively on “aspects of trade [which] must remain free from interference by the States,” the clause of its own force may serve to invalidate the state regulatory activity. Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 669, 101 S.Ct. 1309, 1315, 67 L.Ed.2d 580 (1981) (plurality opinion); see also British Airways Board v. Port Authority of New York, 558 F.2d 75, 85 n. 3 (2d Cir.1977) (“Concorde /”).

The amended complaint alleges that the Commission’s refusal to grant New York Air access to the Airport was an impermissible regulation of the routes and services of an interstate air carrier and, as such, unrelated to any legitimate local interest. The complaint also alleges that concerns as to the adequacy of the Airport facilities to accommodate New York Air’s proposed service were pretextual, since jet service had previously been available at the Airport, and that there was therefore no legitimate basis for the Commission’s action. Finally, New York Air states that it proposed to resolve possible problems arising from facilities constraints at the Airport and to assist in securing compliance with federal regulations, thereby minimizing any valid concern with potential difficulties. These allegations are sufficient to state a claim under the commerce , clause.

The questions whether the Commission’s refusal to grant access served to promote legitimate local interests and, if so, whether the burden that it placed on interstate commerce was excessive involve issues of fact that cannot be resolved by a motion to dismiss. For the same reason, defendant’s argument that the Commission’s action was a valid exercise of the proprietary rights reserved to the states under 49 U.S.C. § 1305(b) is not capable of resolution at this stage of litigation.

II. The Claims Under the Federal Aviation Laws

The more significant issue raised by defendants’ motion to dismiss is the propriety of New York Air’s claims under the federal aviation laws, 49 U.S.C. §§ 1305(a), 1349(a), 2210(a). New York Air argues principally that it is entitled to bring its statutory claims under 42 U.S.C. § 1983.

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that 42 U.S.C. § 1983 “broadly encompasses violations of federal statutory as well as constitutional law.” 448 U.S. at 4, 100 S.Ct. at 2504. The Court subsequently limited the potential expansion of Thiboutot by defining two types of circumstances in which a § 1983 remedy would not be available. The decisive issues are: “(i) whether Congress [intended to foreclose] private enforcement of [a] statute in the enactment itself, and (ii) whether the statute at issue [is] the kind that create^] enforceable ‘rights’ under § 1983.” Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981), rev’d on other grounds, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Under Sea Clammers and Pennhurst, a plaintiff can enforce all federal laws against state officials under § 1983 “unless it can be shown that Congress affirmatively intended to foreclose such enforcement by failing to impose mandatory obligations or by creating a comprehensive remedial scheme in the statute itself.” Samuels v. District of Columbia, 770 F.2d 184, 195 (D.C.Cir.1985).

The effect of Thiboutot is to make available a remedy for violations of federal law against state action in a manner analogous to implied private rights of action. The inquiry under § 1983, however, is distinct from the analysis used to determine whether a private right of action should be judicially implied. In order to establish an implied private right of action under a federal statute, a plaintiff must demonstrate a congressional intention to provide for private enforcement of the statute. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377-78, 102 S.Ct. 1825, 1838-39, 72 L.Ed.2d 182 (1982); Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). Section 1983 provides an express remedy against violations of federal law by state officials, and Congress is “presumed to legislate against the background of section 1983 and thus to contemplate private enforcement of the relevant statute...” Samuels, 770 F.2d at 194; see also Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 739 F.2d 1467, 1470 (9th Cir.1984); Ryans v. New Jersey Commission for the Blind and Visually Impaired, 542 F.Supp. 841, 846-47 (D.N.J.1982).

Nevertheless, the inquiry under § 1983 is similar to the analysis of implied private rights of action, since in each instance a party must demonstrate the existence of a federal right which may be judicially enforced. See Curran, 456 U.S. at 376-78, 102 S.Ct. at 1838-39; Sea Clammers, 453 U.S. at 19, 101 S.Ct. at 2625; Cort, 442 U.S. at 78, 95 S.Ct. at 2087; see also Polchowski v. Gorris, 714 F.2d 749, 751 (7th Cir.1983). In Cort v. Ash, the Court considered four factors in determining whether a private right of action is to be implied under a federal statute:

First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” ... that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

422 U.S. at 78, 95 S.Ct. at 2088 (citations omitted). The Court has emphasized in subsequent cases that these factors are primarily indications of legislative intent. See, e.g., Curran, 456 U.S. at 377-78, 102 S.Ct. at 1838-39; Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979). The first of the Cort factors, the especial benefit test, specifically concerns the question whether a federal right has been created.

Section 1983 by its terms provides a remedy for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory____” 42 U.S.C. § 1983. It is clear that § 1983 is an exclusively remedial statute and does not itself give rise to any substantive rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). In order for the remedy provided by § 1983 to be available, a party must establish the violation of a federal right independent of § 1983. The violation of a federal statute, by itself, is insufficient to give rise to a cause of action under § 1983. Rather, “the statute violated must be one that confers a federal right.” Half Co., Inc. v. Gaitor, 534 F.Supp. 600, 604 (D.Conn.1982) (quoting Myerson v. State of Arizona, 507 F.Supp. 859, 864 (D.Ariz.1981), aff'd, 709 F.2d 1235 (9th Cir.1983), vacated on other grounds, 465 U.S. 1095, 104 S.Ct. 1584, 80 L.Ed.2d 118 (1984)).

Courts have taken divergent views as to how broadly “rights” for purpose of § 1983 are to be construed. At one extreme, it has been held that the effect of Thiboutot is “to create a remedy where ... injury flows from a state’s violation of governing federal law in a joint federal-state cooperative program.” Yapalater v. Bates, 494 F.Supp. 1349, 1358 (S.D.N.Y.1980), aff'd, 644 F.2d 131 (2d Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982). Courts since Yapalater have required a plaintiff to demonstrate, in addition, that “it ... was an intended beneficiary of that program.” Balf Co., 534 F.Supp. at 605 (emphasis in original). Other courts have required a showing of benefit similar to that necessary to establish an implied private right of action. Boatowners and Tenants Association v. Port of Seattle, 716 F.2d 669, 673 (9th Cir.1983); Polchowski, 714 F.2d at 751; Lynch v. King, 550 F.Supp. 325, 343, 349 (D.Mass.1982), aff'd sub nom. Lynch v. Dukakis, 719 F.2d 504 (1st Cir.1983).

The Court in Pennhurst indicated that § 1983 is not available to enforce precatory statements of policy in federal statutes. Pennhurst, 451 U.S. at 22, 101 S.Ct. at 1542. In order to give rise to enforceable rights, a statute must mandate a particular course of action, that is, it must impose binding obligations on the states. Id. at 28, 101 S.Ct. at 1545. This does not imply, however, that all obligations imposed on the states are enforceable under § 1983. Where courts have relied on the mandatory language of a particular statute in determining whether, in light of the exception to Thiboutot, enforceable rights were violated, it could be demonstrated that Congress intended to confer benefits on the parties under the relevant statute. See Samuels, 770 F.2d at 198; Keaukaha-Panaewa Community Association, 739 F.2d at 1470; Ryans, 542 F.Supp. at 847.

Whether a statute confers a federal right is the specific inquiry raised by the first factor in Cork The analysis of this factor is at least instructive for the analogous determination whether a statute creates rights enforceable under § 1983. The threshold consideration raises the question of congressionally intended benefits, specifically, whether the plaintiff is a member of the class for whose particular benefit the statute was enacted. Cort, 422 U.S. at 77-78, 95 S.Ct. at 2087-88. The primary indication derives from the language of the statute itself. University Research Association, Inc. v. Coutu, 450 U.S. 754, 771-72, 101 S.Ct. 1451, 1461-62, 67 L.Ed.2d 662 (1981); Cannon v. University of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 1954 n. 13, 60 L.Ed.2d 560 (1979). As the Supreme Court has indicated, the analysis involves consideration of legislative intent. “The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries.” California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); see Boatowners, 716 F.2d at 672-73. In order to maintain an action under § 1983, it must be demonstrated in terms of this analysis that a federal right is created by a particular statute.

A. Section 511(a) of the Airport and Airway Improvement Act

Section 511(a) of the Airport and Airway Improvement Act of 1982 (“AIP”) provides that:

[I]n a project grant application submitted under this Title, the Secretary shall receive assurances, in writing, satisfactory to the Secretary, that—
(1) the airport to which the project relates will be available for public use on fair and reasonable terms and without unjust discrimination, including the requirement that (A) each air carrier using such airport ... shall be subject to such nondiscriminatory and substantially comparable rates, fees, rentals, and other charges and such nondiscriminatory and substantially comparable rules, regulations, and conditions, as are applicable to all such air carriers which make similar use of such airport and which utilize similar facilities____
(2) there will be no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public____

49 U.S.C. § 2210(a). Section 18 of the Airport and Airway Development Act of 1970, the predecesor of the present statute, provided that airports subject to the project approval requirements of that section “be available to the public on fair and reasonable terms and without unjust discrimination.” See 49 U.S.C. § 1718. This section was amended in 1976 to include specifically air carriers and fixed-base operators. The statute expressly identifies air carriers as the class Congress intended to benefit. Cf. Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 926 (1st Cir.1983).

It is clear from the legislative history of 49 U.S.C. § 1718 that Congress in enacting the 1976 amendments intended to recognize “the legitimate interest of air carriers and fixed-base operators in development at airports.” H.R.Rep. No. 94-594, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 1600, 1614. Section 18, as amended, was intended to require airport sponsors to “accord ... rights of consultation” to air carriers and fixed-base operators in making decisions to undertake airport development “in order that the views of both shall receive full consideration in determining the nature and scope of airport development projects for such airports.” Id. In addition, “Sponsors would be prohibited from charging discriminatory rates, fees, rentals, and other charges to airport businesses which make the same or similar uses of such airport utilizing the same or similar facilities.” Id. The intent of the amendment, as explained by Senator Cannon in introducing the legislation, was “that air carriers authorized under the Federal Aviation Act of 1958 to engage directly in air transportation shall not be subjected to discriminatory treatment at airports by reason of class of carrier.” 122 Cong. Rec. 8145 (1976). Although the specific concern of Congress was with discrimination against supplemental carriers, the language adopted in the amendment comprehensively includes all air carriers using the airport. The legislative history therefore indicates that Congress in enacting the statute intended to benefit air carriers by imposing the requirement on airport operators that carriers be subject to nondiscriminatory and substantially comparable treatment.

The statute, moreover, uses mandatory language. Airport operators are required to insure that the airport “will be available for public use on fair and reasonable terms and without unjust discrimination____” 49 U.S.C. § 2210(a)(1). Each air carrier “shall be subject to ... nondiscriminatory and substantially comparable” terms and conditions. Id. The statute further provides “there will be no exclusive right” for the use of airport facilities. 49 U.S.C. § 2210(a)(2). The mandatory character of the obligation created by the statute indicates that the section was not intended as a precatory expression of congressional preference. See Samuels, 770 F.2d at 198; Keaukaha-Panaewa Community Association, 739 F.2d at 1471. Section 511(a) of the AIP therefore creates rights enforceable under § 1983. But see Hill Aircraft and Leasing Corp. v. Fulton County, Ga., 561 F.Supp. 667 (N.D.Ga.1982), aff'd without op., 729 F.2d 1467 (11th Cir.1984) (involving related issue of implied private right of action under 49 U.S.C. § 1718 (as amended, 1976)).

The second exception to Thiboutot, that is, where Congress specifically intended to foreclose enforcement under § 1983 by creating a comprehensive remedial scheme in the statute itself, does not bar an action under § 1983 for an alleged violation of section 511(a) of the AIP. The AIP itself contains no independent enforcement mechanism. Moreover, § 1106 of the Federal Aviation Act, 49 U.S.C. § 1506, further provides that the statutory remedies are not intended to be exclusive. See also Midway Airlines, 589 F.Supp. at 437-38 (intervention by federal government in suit brought by private plaintiff); United States v. State of New York, 552 F.Supp. 255, 260-61.

Thus, considering the federal aviation statutes as a whole, private enforcement under § 1983 would not conflict with the congressionally established remedial scheme. See 49 U.S.C. § 1487.

New York Air alleges facts sufficient to state a claim under Section 511(a) of the AIP. The allegation that New York Air was excluded from the Airport because of pretextual concern with the adequacy of facilities at the Airport supports the inference, as alleged, that there was no reasonable basis for the Commission’s action. New York Air also claims that the Commission’s refusal was unfair and discriminatory in that it was allegedly based on the opinion that existing service at the Airport was adequate and on concern with the potential effect on competition of New York Air’s proposed service. The effect of the Commission’s refusal is, arguably, to grant exclusive rights to carriers already providing service to the Airport. The complaint therefore sufficiently states a claim under § 1983 for a violation of Section 511(a) of the AIP.

B. Section 308(a) of the Federal Aviation Act

Section 308(a) of the Federal Aviation Act provides that:

No Federal funds, other than those expended under this Act, shall be expended, other than for military purposes ... for the acquisition, establishment, construction, alteration, repair, maintenance, or operation of any landing area, or for the acquisition, establishment, construction, maintenance, or operation of air navigation facilities thereon, except upon written recommendation and certification by the Administrator [Secretary of Transportation] that such landing area or facility is reasonably necessary for use in air commerce or in the interest of national defense. Any interested person may apply to the Administrator [Secretary of Transportation], under regulations prescribed by him, for such recommendation and certification____ There shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended.

49 U.S.C. § 1349(a). Again, the requirement that there be “no exclusive right” for the use of air facilities is made in the context of the establishment of approval and certification procedures for the expenditure of federal funds. The section is directed primarily to the Secretary of Transportation.

Unlike 49 U.S.C. § 2210(a), § 1349(a) does not appear to be evidence of a congressional intent to create a federal right under section 308(a). The statute imposes a general prohibition on the exclusive use of air facilities on which federal funds have been expended and therefor confers benefits on the general public, rather than on any specific class. The general language of the statute precludes recognition of a federal right in favor of air carriers under this section. See Boatowners, 716 F.2d at 673-74; cf. Cannon v. University of Chicago, 441 U.S. at 690-93, 99 S.Ct. at 1954-56 (1979).

C. Section 105(a) of the Federal Aviation Act

The analysis of New York Air’s claim that § 105(a) of the Federal Aviation Act, 49 U.S.C. § 1305(a), creates a federal right involves rather different considerations. Section 105(a) expressly prohibits any “State or political subdivision thereof” from regulating the “rates, routes or services” of interstate air carriers. 49 U.S.C. § 1305(a). The provision was enacted as part of the Airline Deregulation Act of 1978, by which Congress sought, among other purposes, to increase reliance on market forces and competition in the development of a national air transportation system. See 49 U.S.C. § 1302(a)(4). The statute identifies interstate air carriers operating by “authority under title IV of [the] Act [49 U.S.C. §§ 1371 et seq.]” as a defined class of beneficiaries. The prohibitory language is mandatory. See Pennhurst, 451 U.S. at 20, 101 S.Ct. at 1541.

It is clear from the legislative history, however, that the intent of Congress in enacting section 105(a) was to regulate the jurisdiction of federal and state governments over interstate air carriers. The House Report accompanying the legislation noted that:

Existing law contains no specific provision on the jurisdiction of the States and the Federal Government over airlines which provide intrastate and interstate service. The lack of specific provisions has created uncertainties and conflicts, including situations in which carriers have been required to charge different fares for passengers traveling between two cities, depending on whether these passengers were interstate passengers whose fares are regulated by the CAB, or intrastate passengers, whose fare is regulated by a State.
H.R. 12611 will prevent conflicts and inconsistent regulations by providing that when a carrier operates under authority granted pursuant to title IV of the Federal Aviation Act no State may regulate that carrier’s routes, rates, or services.

H.R.Rep. No. 95-1211, 95th Cong., 2d Sess. reprinted in 1978 U.S.Code Cong, and Ad. News 3751-52. The principal concern of this section is the allocation of authority between the federal and state governments, not the establishment of individual rights. There is no indication in the legislative history of this provision that Congress intended section 105(a) to give rise to a federal right.

New York Air’s claim under section 105(a) is, in essence, that state regulation of the rates, routes, and services of interstate carriers is preempted by that provision. This is a claim under the supremacy clause of the Constitution, art. VI, cl. 2. In Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 615, 99 S.Ct. 1905, 1914, 60 L.Ed.2d 508 (1979) the Supreme Court, interpreting the scope of the jurisdictional provision 28 U.S.C. § 1343(a), concluded that the supremacy clause does not secure and is not itself a “right, privilege, or immunity secured by the Constitution.” 28 U.S.C. § 1343(a)(3). The Court stated:

Thus, while we recognize that there is force to claimants’ argument that the remedial purpose of the civil rights legislation supports an expansive interpretation of the phrase “secured by the Constitution,” ____we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim “secured by the Constitution” within the meaning of § 1343(3).

441 U.S. at 615, 99 S.Ct. at 1915. Generally, the assertion of a supremacy clause claim is not cognizable under 42 U.S.C. § 1983. United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 586 (D.R.I.1983); cf. Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139, 1144-45 (8th Cir.), cert. denied,—U.S.-, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984) (commerce clause). This principle has been specifically recognized in the context of the federal aviation laws. Pirolo v. City of Clearwater, 711 F.2d 1006, 1010, 1013 reh’g denied, 720 F.2d 688 (11th Cir.1983).

Congress is presumed to legislate against the background of the supremacy clause, U.S. Const., art. VI, cl. 2, and § 1983. The preemptive effect of federal legislation does not ordinarily create rights for purposes of § 1983. The issue raised by section 105(a) of the Federal Aviation Act, therefore, is whether the express language adopted by Congress indicates a clear intention to create enforceable rights. The specific statutory focus on interstate air carriers is not conclusive in this respect, and there is no indication of any such purpose in the legislative history of section 105(a). Construed in light of the primary purpose of the provision, and absent a clear indication of further congressional intent, the language of section 105(a) does not create a federal right. Section 105(a) effects, by means of a prohibition upon the states, a reservation of authority to the federal government over interstate air carriers.

For the reasons previously stated, the court finds that the plaintiff may maintain its 42 U.S.C. § 1983 claim to the extent that it is based upon 49 U.S.C. § 2210(a), but not to the extent to which it relies upon 49 U.S.C. § 1349 or 49 U.S.C. § 1305(a).

III. The Claim Under the Antitrust Laws

Section 1 of the Sherman Act makes unlawful any “contract, combination ... or conspiracy, in restraint of trade or commerce among the several states____” 15 U.S.C. § 1. In order to state a claim under this section, a plaintiff must allege the existence of a contract, combination or conspiracy that is in restraint of interstate trade or commerce and that has resulted in injury to the plaintiff. Oreck Corp. v. Whirlpool Corp., 639 F.2d 75, 78 (2d Cir.1980), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 618 (1981); Wilder Enterprises, Inc. v. Allied Artists Pictures Corp., 632 F.2d 1135 (4th Cir.1980); International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255 (8th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 787, 66 L.Ed.2d 605 (1980).

In its amended complaint, New York Air alleges that the Commission’s refusal to grant it access to the Airport was based in part on the concern of some Commission members that PBA, which already provides service at the Airport, would be faced with competition from the proposed service. These concerns were purportedly expressed at the April 24, 1985 meeting, at which New York Air’s request for permission to operate at the Airport was denied. New York Air also alleges that at the same meeting a representative of PBA stated that PBA would cease providing winter service to Martha’s Vineyard if New York Air’s proposed service was approved by the Commission. It is alleged that the Commission’s action resulted in injury to New York Air, in the form of the loss of business opportunity by means of its exclusion from Martha’s Vineyard, loss of goodwill, and loss of revenues and profits. The amended complaint thus asserts that the Commission acted in concert with PBA to deprive New York Air of the access to Airport facilities necessary for it to compete with carriers already operating at the Airport in the provision of air services to Martha’s Vineyard. This was purportedly done by means of the Commission’s consideration of “impermissible factors” at the April 24, 1985 meeting and with the purpose, in part, of eliminating New York Air as a competitor. The alleged conduct is analogous to a “concerted refusal to deal.” Cf. Corey v. Look, 641 F.2d 32, 36 (1st Cir.1981); Barry v. St. Paul Fire & Marine Insurance Co., 555 F.2d 3, 7 (1st Cir.1977), aff'd, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978). The amended complaint, therefore, sufficiently alleges the elements necessary to state a claim under section 1 of the Sherman Act.

Defendants argue principally that the Commission’s refusal to grant New York Air access to the Airport is exempt from the antitrust laws as action sanctioned by state authority. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The Parker doctrine, however, exempts conduct engaged in by a state or its subdivisions provided it is undertaken “pursuant to state policy to displace competition with regulation or monopoly public service.” City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978). For the exemption under Parker to apply to specific conduct two standards must be met: “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the state itself. California Retail Liquor Dealers Association v. Midcal Aluminium, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980); see Town of Hallie v. City of Eau Claire,—U.S.-, 105 S.Ct. 1713, 1720 n. 10, 85 L.Ed.2d 24 (1985). Sufficient state authority to engage in anticompetitive conduct may be found where it is determined “ ‘from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of,’ ” City of Lafayette, 435 U.S. at 389, 415, 98 S.Ct. at 1138 (quoting opinion below, 532 F.2d 431, 434 [5th Cir.1976]), or where the “anticompetitive effects logically would result from [the] authority to regulate.” Town of Hallie, 105 S.Ct. at 1718. In order to meet these requirements, “the political subdivision claiming exemption must illustrate the requisite legislative intent by demonstrating by convincing reasoning that the challenged restraint is necessary to the successful operation of the legislative scheme that the state as sovereign has established.” Corey, 641 F.2d at 37.

The authority of the Commission derives from Mass.Gen.Laws eh. 90, §§ 51E-52. See id., § 39G. Airport commissions are specifically empowered to lease airport facilities, to determine charges and rentals for the use of airport property, to enter into contracts and to expend funds for the maintenance, operation and construction of the airport, and to adopt rules and regulations for the use of the airport to insure the public safety. Id., §§ 51F, 51H, 511, 51J. These statutes confer authority on the Commission to perform functions necessary to the establishment and operation of the Airport. They do not on their face demonstrate a clear intent on the part of the state to displace competition by the provision of monopolistic public services or to authorize anticompetitive conduct in the management of the Airport. There is no indication that anti-competitive conduct is necessary to the operation of the statutory scheme. The fact that the Commission may adopt rules and regulations to insure the safety of the public is not sufficient evidence of authority to engage in anticompetitive conduct such as that alleged by New York Air. There is no “necessary anticompetitive implication” from the legislative grant of authority. Corey, 641 F.2d at 37; see Town of Hallie, 105 S.Ct. at 1718.

In addition, airport commissions are accorded a measure of discretion by these statutes. There are no provisions for state review, nor are there other indications that the state is actively supervising the activities of the Commission pursuant to state policy.

Under these circumstances, the Commission’s action is not clearly exempt from challenge under the antitrust laws. See Guthrie, 494 F.Supp. at 954-58; Pinehurst Airlines, Inc. v. Resort Air Services, Inc., 476 F.Supp. 543 (M.D.N.C.1979). At least at this stage of the litigation, defendants have not demonstrated that the amended complaint fails to state a claim under 15 U.S.C. § 1.

Accordingly, defendants’ motion to dismiss is DENIED as to New York Air’s claims under the. supremacy clause, U.S. Const., art. VI, cl. 2; under the commerce clause of the Constitution, art. I, sec. 8, cl. 3; under 42 U.S.C. § 1983 to the extent they are based upon 49 U.S.C. § 2210(a); and under the Sherman Act, 15 U.S.C. § 1.

Defendants’ motion to dismiss is ALLOWED as to New York Air’s claims under 49 U.S.C. §§ 1305(a) and 1349(a), and 42 U.S.C. § 1983 to the extent they are based upon those provisions of the federal aviation statutes.

SO ORDERED.

      . New York Air also brings claims under 49 U.S.C. § 1718(a), the predecessor to 49 U.S.C. § 2210(a). The earlier provision, 49 U.S.C. § 1718(a), was repealed by the Airport and Airway Improvement Act of 1982, Pub.L. 97-248, § 523(a) 96 Stat. 671, 695 (1982).

      . The supremacy clause has been broadly construed to apply to various forms of. state action. It applies to the acts of "any subordinate instrumentality of the State exercising delegated legislative authority,” including “an order of a commission.” Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 577, 39 S.Ct. 380, 382, 63 L.Ed. 780 (1919). See also United States v. State of California, State Water Resources Board, 694 F.2d 1171 (9th Cir.1982) (conditions imposed by state board on federal project not prempted by supremacy clause). Handsome v. Rutgers University, State University of New Jersey, 445 F.Supp. 1362 (D.N.J.1978) (policy of state university held to implicate supremacy clause).

      . The conduct of airport operators, as proprietors, is not immune to challenge under the supremacy clause, as defendants contend. Whether specific acts are within the authority reserved by 49 U.S.C. § 1305(b) requires consideration of facts. Courts have scrutinized the actions of airport proprietors to determine whether they are prempted by federal law. Global Int'l Airways Corp. v. Port Authority of New York & New Jersey, 727 F.2d 246, reh’g denied, 731 F.2d 127 (2d Cir.1984); Santa Monica Airport Ass’n v. City of Santa Monica, 659 F.2d 100 (9th Cir.1981); Concorde II, 564 F.2d at 1010-12.

      . Courts have recognized the propriety of the commerce clause as a ground for challenging a denial of airport access. See, e.g., Concorde I, 558 F.2d at 85 n. 3.

      . New York Air has alleged a sufficient "personal stake in the outcome of the controversy” to satisfy the constitutional requirements of standing. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The amended complaint alleges "actual injury" caused by defendants’ conduct that is "redressable by the court.” Director, Office of Workers’ Comp. Programs v. Perini North River Assocs., 459 U.S. 297, 305, 103 S.Ct. 634, 641, 74 L.Ed.2d 465 (1983). No objection has been raised as to New York Air’s standing to assert claims based on the supremacy clause and the commerce clause of the Constitution. The issue whether New York Air has a cause of action based on the federal aviation statutes involves the general question “whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court....’’ Davis v. Passman, 442 U.S. 228, 239-40 n. 18, 99 S.Ct. 2264, 2274 n. 18, 60 L.Ed.2d 846 (1978); see Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). ”[T]he question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution.” Davis, 442 U.S. at 241, 99 S.Ct. at 2275 (emphasis in original). With respect to a statutory cause of action, the focus of inquiry is "the nature of the legislative intent informing a specific statute.” Id.; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377-78, 102 S.Ct. 1825, 1838-39, 72 L.Ed.2d 186 (1982).

      . This position derives from Justice Powell’s dissent in Thiboutot. Justice Powell thus characterized the legal implications of the majority opinion:
      In practical effect, today’s decision means that state and local governments, officers and employees now may face liability whenever a person believes he has been injured by the administration of any federal-state cooperative program, whether or not that program is related to equal or civil rights.

        Thiboutot, 448 U.S. at 22, 100 S.Ct. at 2513 (Powell, J., dissenting) (emphasis in original).

        Yapalater, however, was decided before the Supreme Court decisions in Pennhurst and Sea Clammers limiting the application of Thiboutot.

      . See also First National Bank of Omaha v. Marquette National Bank, 636 F.2d 195, 198 (8th Cir.1980), cert. denied, 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240 (1981) (holding § 1983 action limited to claims "in the nature of the rights protected by the Civil Rights Act,” including "fundamental human, highly personalized rights____”).

      . Even the direct application of elements of the Cort analysis in this context does not have the effect of eradicating the distinction between private rights of action and rights under § 1983. See Boatowners, 716 F.2d at 674; Keaukaha-Panaewa Community Association, 739 F.2d at 1470.

      . While the especial benefit requirement is appropriate to implied private right of action analysis, it is arguably unnecessarily restrictive in determining whether rights exist for purposes of § 1983. See, Note, Making the Old Federalism Work: Section 1983 and the Rights of Grant-in-Aid Beneficiaries, 92 Yale L.J. 1001, 1010-11 (1983). Plaintiffs in this case do not claim any "legitimate claim of entitlement” under the federal aviation laws. A showing of congressional intent to confer some benefit is consistent with the analysis of entitlements. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The question is ultimately one of legislative intent, whether Congress intended to create enforceable rights.

      . The fact that the statute is a directive to a federal agency does not alter this conclusion. The Secretary is required under the statute to receive assurances from airport sponsors that the airport will be available on fair, reasonable and nondiscriminatory terms. Such language has been held to create enforceable rights. See Cohen v. Massachusetts Bay Transp. Authority, 647 F.2d 209, 210 (1st Cir.1981); Boles v. Earl, 601 F.Supp. 737, 743 (W.D.Wisc.1985); see also Wartelle and Louden, Private Enforcement of Federal Statutes: The Role of the Section 1983 Remedy, 9 Hastings Const.L.Q. 487, 529 n. 289 (1982).

      . Courts applying the Cort v. Ash analysis have held with respect to the first factor in Cort that § 1349(a) does not create a federal right. Hill Aircraft and Leasing Corp., 561 F.Supp. at 673; Guthrie v. Genesee County, New York, 494 F.Supp. 950, 959 (W.D.N.Y.1980).

      . Controversies as to the relative authority of state and federal governments are distinct, in terms of the appropriate analytic framework, from issues involving the rights of individuals:
      When a litigant contends that ... an attempted state regulation intrudes into an area of exclusively national concern, the constitutional issue is wholly different from that posed by an assertion that certain government action abridges a personal liberty secured by the Constitution. The essence of a claim of the latter type ... is that no organ of government, national or state, may undertake the challenged activity. In contrast, when a person alleges that one of the federalism provisions of the Constitution has been violated, he implicitly concedes that one of the two units of government—national or state—has power to engage in the questioned conduct. The core of the argument is simply that the particular government that has acted is the constitutionally improper one.
      J. Choper, Judicial Review in the National Political Process 174-75 (1980) (quoted in United Nuclear Corp., 564 F.Supp. at 586-87.)

      . In view of the determination that the plaintiff has, under 42 U.S.C. § 1983, a cause of action based upon 49 U.S.C. § 2210(a), it is not necessary to decide whether there is also a private right of action implied by § 2210(a). As the court has decided that neither 49 U.S.C. § 1349 nor § 1305(a) create rights enforceable by plaintiff under 42 U.S.C. § 1983, it follows that there is also no private right of action created by those provisions alone.

      . There are no special pleading requirements for antitrust claims. Corey, 641 F.2d at 38; see also McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980); Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924 (9th Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). Defendants’ contention that the amended complaint lacks a sufficient factual basis to state a claim under the antitrust laws must be rejected, in light of the liberal pleading requirements of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 8(a). Defendants’ assertion that the amended complaint makes only a "bare allegation ... that the Commission’s alleged conduct was pursuant to a ‘contract, combination or conspiracy’ with PBA” ignores the factual allegations in the complaint. Defendants’ Memorandum in Support of Motion to Dismiss at 26. There is no inconsistency, as defendants claim, in New York Air’s allegation that the Commission’s action was based on several factors, one of which constituted a violation of the antitrust laws.

      . State action authorizing regulation of the rates, routes and services of interstate carriers would be preempted by federal law. 49 U.S.C. § 1305(a). Defendants’ argument that the state action exemption from the antitrust laws applies in this instance rests on the assumption that the Commission’s action is within the proprietary authority reserved to the states. 49 U.S.C. § 1305(b). As with defendants’ argument in relation to New York Air’s constitutional claims, this contention is premature. There is no evidence before the court by which this issue can be resolved.


author: MENTZ, District Judge.

text:
    Tyrone JACKSON and Eva Saunders Jackson v. TENNECO OIL COMPANY, et al.
    Civ. A. No. 84-4677.
    United States District Court, E.D. Louisiana.
    Dec. 5, 1985.

      Michael H. Bagot, Jr., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for third-party defendant.
    Guy E. Wall, Gordon, Arata, McCollam, Stuart & Duplantis, New Orleans, La., for defendant.
   ' ORDER AND REASONS

MENTZ, District Judge.

This matter is before the Court upon motion of defendant, Halliburton Services, Inc. (Halliburton) and third party defendant, Highlands Insurance Company (Highlands) for summary judgment as to Tenneco Oil Company’s (Tenneco) claims for contractual indemnity, tort indemnity, and coverage under insurance policies issued to Halliburton by Highlands. Halliburton contends that Tenneco’s claim for contractual indemnity is barred by the Louisiana Oilfield Indemnity Act, La.Rev.Stat.Ann. 9:2780 (West Supp.1985) (“Indemnity Act:). Halliburton further claims that Tenneco’s claim for tort indemnity is barred by § 905(a) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. Highlands avers that Tenneeo’s third party claim against it for coverage under insurance policies issued to Halliburton is without merit, because the policies issued by Highlands do not cover Tenneco or, in the alternative, are void under the Indemnity Act. For the reasons set forth below, the motion for summary judgment is GRANTED dismissing Tenneco’s claim against Halliburton for tort indemnity, and Tenneco’s third party claim for insurance coverage against Highlands. As to Tenneco’s claim against Halliburton, the motion for summary judgment is GRANTED insofar as Tenneco seeks indemnity for its own negligence. Halliburton, should Tenneco be exonerated at trial, will be required to reimburse Tenneco its costs of defense.

Plaintiff herein was allegedly injured on or about November 25, 1983 while performing acidation and gravel packing work on a Tenneco platform on the outer continental shelf. At the time of his alleged injury, plaintiff was employed by Halliburton and the parties have stipulated that Halliburton was working for Tenneco pursuant to an August 4, 1980 Master Service or Work Agreement. Paragraph VII of the Agreement contains indemnity provisions which read as follows:

VII. INDEMNITY

A. Company agrees to defend, indemnify and hold Contractor, its subsidiary and affiliate companies, their agents, employees, directors, officers, servants, and insurers, harmless from and against any and all losses, claims, demands, liabilities or causes of action of every kind and character, in favor of any person or party, for injury to or illness or death of any employee of Company or its joint interest owners, which injury, illness or death arises out of or is incident to the work performed under this Contract, and regardless of the cause of such injury, illness or death, even though caused in whole or in part by a pre-existing defect, indemnitees’ negligence or strict liability, or other legal fault of indemnitees. Company shall fully defend any such claim, demand or suit as its sole expense, even if the same is groundless. This indemnity shall be limited to the extent necessary for compliance with applicable State and Federal laws.
B. Contractor agrees to defend, indemnify and hold Company, its joint interest owners, its subsidiary and affiliate companies, their agents, employees, directors, officers, servants, and insurers, harmless from and against any and all losses, claims, demands, liabilities or causes of action of every kind and character in favor of any person or party, for injury to or illness or death of any employee of Contractor or any employee of subcontractors of Contractor, which injury, illness or death arises out of or is incident to the work performed under this Contract, and regardless of the cause of such injury, illness or death, even though caused in whole or in party by a pre-existing defect, indemnitees’ negligence or strict liability, or other legal fault of indemnitees. Contractor shall fully defend any such claim, demand or suit at its sole expense, even if the same is groundless.

These reciprocal provisions require Halliburton and Tenneco to be responsible for personal injuries sustained by their own employees, regardless of fault. Other contractual provisions require Halliburton to provide certain insurance coverages and name Tenneco as an additional assured on its marine insurance policies.

The 1980 Agreement does not specify a “terminable performance of a specific job or activity”. See R.S. 9:2780(1). It is, in fact, an open-ended Master Service Agreement which governs work performed by Halliburton for Tenneco. This Court finds that the execution of the Agreement prior to effective date of the Indemnity Act does not preclude the Act’s application to the Agreement. See § 9:2780(1); Rigby v. Tenneco Oil Co., 607 F.Supp. 1247, 1248 (E.D.La.1985); Home Ins. Co. v. Garber Industries, Inc., 588 F.Supp. 1218, 1222 (W.D.La.1984); Tobin v. Gulf Oil Corp., 535 F.Supp. 116, 117 (E.D.La.1982).

TENNECO’S CONTRACTUAL CLAIMS

Tenneco correctly notes that the application of the Indemnity Act voids only the obligation to indemnify Tenneco for Tenneco’s negligence or strict liability and does not bar Tenneco’s contractual claim against Halliburton for Halliburton’s fault or negligence. See Rigby v. Tenneco Oil Co., 607 F.Supp. 1247, 1248 (E.D.La.1985); Home Ins. Co. v. Garber Indus., Inc., 588 F.Supp. 1218, 1222-23 (W.D.La.1984). However, Tenneco also argues that the Indemnity Act is inconsistent with the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(a)(2)(A) and § 905(a) of the LHWCA, 33 U.S.C. § 901, et seq. This argument was addressed by Judge Schwartz in Rigby supra, 607 F.Supp. at 1247-50 and by this Court in Wilson v. J. Ray McDermott & Company, Inc., 616 F.Supp. 1301 (E.D.La.1985). For the reasons set forth in these opinions, the Court finds that R.S. 9:2780 is not inconsistent with federal law.

Consequently, Louisiana law governs a platform owner’s right to seek contractual indemnity for injuries sustained by non-employees on fixed platforms on the outer continental shelf. See Rodrigue v. Aetna Cas. & Serv. Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).

TENNECO’S TORT INDEMNITY CLAIMS

Tenneco contends that tort indemnity is not barred by § 905(a) of the LHWCA. This section provides that:

The liability of an employer prescribed in Sec. 4 shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death____ (emphasis added)

Notwithstanding jurisprudence to the contrary, Tenneco argues that tort indemnity is not barred in light of Lockheed Aircraft Corporation v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983).

In Lockheed the administrator of the estate of a civilian employee of the United States Navy brought a wrongful death action against the aircraft manufacturer. The manufacturer, in turn, sought indemnity from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2671 et seq. The Court examined the exclusive liability provision of the Federal Employees’ Compensation Act, 5 U.S.C. 8116(e) as well as the earlier case of Weyerhaeuser Steamship Company v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963). Without ruling on the substantive basis of Lockheed’s claim, the court held that the exclusive liability provision of the § 8116(c) did not bar a tort indemnity claim.

Neither Lockheed nor Weyerhaeuser interpreted the substantive provisions of the LHWCA. A thorough review of the legislative histories shows that Congress has had ample opportunity to and has, in fact, addressed the substantive rights of third parties without even suggesting any intention of making the employer liable in tort to third parties.

Although it cited the existence of “nearly identical language” in the exclusive remedy provisions of the FECA and the LHWCA, the Supreme Court did not rule on the question of whether a third party tortfeasor is entitled to seek tort indemnity from a longshoremen’s employer, as Tenneco does here. In fact, the Supreme Court has declined the invitation to hold employers of injured longshoremen liable in either tort indemnity or contribution to third party tortfeasors. See Halcyon Line v. Haenn Ship Ceiling Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952); Atlantic Coast Line R. Co. v. Erie Lackawana Railroad Company, 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972).

The Supreme Court’s refusal to hold employers liable for tort indemnity to third parties in addition to requiring them to pay compensation benefits to the injured employee is consistent with the compromise between employers and employees that the LHWCA represents.

The LHWCA provides that a covered employee is entitled to receive compensation benefits from his employer regardless of fault and, in turn, relinquishes his right to a tort recovery from his employer. See Peters v. No. River Ins. Co. of Morristown, N.J., 764 F.2d 306, 310 (5th Cir.1985); Louviere v. Shell Oil Co., 509 F.2d 278, 283 (5th Cir.1975), cert. denied, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90 (1976); 33 U.S.C. 905(a). In a third party tort situation such as the instant litigation, the Fifth Circuit, in Peters, supra, stated:

We have recognized that the compensation scheme of the Act furthers at least two other objectives, both of which are particularly relevant to the issue in this case; (1) “placing the burden ultimately on the company whose default caused the injury,” Louviere, 509 F.2d at 283 (quoting Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732 (1964)), and (2) “protect[ing] employers who are subject to absolute liability by the Act,” id. (quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412, 74 S.Ct. 202, 206, 98 L.Ed. 143 (1953). The Act, as interpreted by the Supreme Court, furthers these objectives by (1) preserving a compensated worker’s remedies against third parties; (2) allowing the employer in certain circumstances to assert the worker's rights against third parties when the worker has failed to do so; (3) denying third parties a right of contribution or indemnity from the employer even when the employer is at fault; (4) allowing the employer to recoup from third-party recoveries the benefits paid to the worker even if the employer is at fault; and (5) preserving the employer’s right to assert its own independent cause of action against third parties for recovery of the compensation benefits paid to the worker.

764 F.2d at 310

To allow Tenneco to assert a tort indemnity claim against Halliburton would not only frustrate the purposes of the LHWCA as set out in Peters, supra, but would contravene the controlling jurisprudence in this Circuit.

The controlling jurisprudence in the Fifth Circuit is Ocean Drilling and Exploration Co. v. Berry Brothers Oilfield Service, 377 F.2d 511 (5th Cir.1967), cert. denied, 389 U.S. 849, 88 S.Ct. 102, 19 L.Ed. 118 (1967), in which Odeco claimed a right to tort indemnification from Berry Brothers, the employer of a longshoreman injured on a fixed Odeco platform on the outer continental shelf. The Fifth Circuit noted that the plaintiff was receiving benefits from Berry Brothers pursuant to § 905(a) of the LHWCA. The Court examined § 905(a) of the LHWCA and Ryan Stevedoring Co. v. Pan Atlantic Steamship Corporation, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) and stated that the obvious purpose of this section,

is to make the statutory liability of an employer to contribute to its employees compensation the exclusive liability of such employer to its employees, or to anyone claiming under or through such employee, on account of his injury or death arising out of that employment. In return, the employee, and those claiming under or through him, are given a substantial quid pro quo in the form of an assured compensation, regardless of fault, as a substitute for their excluded claims. 377 F.2d at 514, citing, 350 U.S. at 129 [76 S.Ct. at 235] (emphasis in original).

Odeco’s tort indemnity claim was dismissed on the basis that “the Act’s [LHWCA] exclusive liability provision effectively abrogates any independent tort liability of the employer to its employees, thereby eliminating any basis which may have existed for indemnification on a tort theory. Id. See also, Olsen v. Shell Oil Company, 595 F.2d 1099, 1103 (5th Cir.1979).

The Halcyon and Atlantic Coastline opinions were dismissed as irrelevant in a footnote by the Supreme Court in Lock heed. In Lockheed, the Supreme Court did not overrule these decisions nor did it address the Berry Brothers decision and its progeny. In the footnote, the Lockheed majority dismissed the LHWCA eases noted in the dissenting opinion and suggested that Halcyon left open the question of whether a right to contribution would be subject to the LHWCA’s exclusive liability provisions. 460 U.S. at 197, n. 8, 103 S.Ct. at 1037, n. 8, 74 L.Ed.2d at 914, n. 8, citing 342 U.S. at 286, n. 12, 72 S.Ct. at 277, n. 12, 96 L.Ed. 318.

The Halcyon court did not address this issue. Rather, it referred to circuit court rulings which held that § 905(a) precluded any action for tort indemnity or contribution against a longshoreman’s employer. See American Mutual and Liability Insurance Co. v. Matthews, 182 F.2d 322, 1950 A.M.C. 1272 (2nd Cir.1950); Slattery v. Marra Brothers, 186 F.2d 134, 1951 A.M.C. 183 (2nd Cir.1951). The Matthews court noted that “to impose a noncontractual duty of contribution on the employer is pro tanto to deprive him of the immunity which the statute grants him in exchange for his absolute, though limited, liability to secure compensation to his employees”. 182 F.2d at 324, 1950 A.M.C. at 1275.

It is clear, therefore, that Lockheed does not overrule the Berry Brothers decision and subsequent eases which have limited an employer’s liability under § 905(a) of the LHWCA to the provision of compensation benefits to the injured employee or his survivors. Lockheed did not decide the question of tort indemnity under the LHWCA, which is a different act, with a different purpose from that of the FECA. A recent decision involving a tort indemnity claim under § 905(a) found Lockheed distinguishable on this ground. See Causey v. K & B Equipment Company, Inc., 467 So.2d 1266 (La.App. 4th Cir.1985).

Even if this Court found Lockheed to be either binding or persuasive authority, the decision does not open the floodgates for tort indemnity or contribution claims. In the instant case, the applicable substantive law is that of Louisiana, since jurisdiction arises under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. and diversity of citizenship.

In Louisiana, a party obligated to pay compensation is not solidarily liable with another party answerable in damages under La.Civ.Code Art. 2315. The Workmen’s Compensation Act provides a substantive exception to the rule of Article 2315. An employer whose fault causes damage to an employee is not required to repair the damage. The employee has no cause of action under Article 2315 against the employer for damages for injury sustained in the course and scope of his employment due to the employer’s fault. Cripe v. Haynes, 350 So.2d 956, 960 (La. App.2d Cir.1977); LSA-R.S. 23:1032; Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App.2d Cir.1939); Shumake v. Home Indemnity Co., 68 So.2d 789 (La.App.2d Cir.1953).

Under Louisiana law, joint tortfeasors who are each answerable for damage caused by their acts or omissions are answerable in solido. La.Civ.Code Ann. Art. 2324; Moss v. Guarisco, 409 So.2d 323 (La.App. 1st Cir.1981), writ denied, 412 So.2d 540 (La.1982). For the employer and third party tortfeasor to be solidary obligors, the payment of compensation benefits by the employer must have the effect of extinguishing the plaintiff’s right to assert these amounts as elements of damage owed by the third party tortfeasor. See La.Civ.Code Ann. 1794 (West Supp.1985) (formerly Civil Code Art. 2091). Since payment of compensation benefits under either the Louisiana Workmen’s Compensation Act, La.Rev.Stat.Ann.R.S. 23:1021 et seq., or the LHWCA, 33 U.S.C. § 901 et seq., does not extinguish an employee’s right to pursue third parties for all damages sustained as a result of the third party’s negligence, the compensation employer is not solidarily liable with a negligent third party, regardless of the extent to which the employer may have been concurrently negligent. See Cripe v. Haynes, supra, 350 So.2d at 960; Sanderson v. Binnings Construction Company, 172 So.2d 721 (La. App. 4th Cir.1965); Hebert v. Blankenship, 187 So.2d 798 (La.App. 3d Cir.1966); Phillips v. Houston Fire and Casualty Insurance Company, 219 F.Supp. 420 (W.D.La.1963); Brenham v. Southern Pacific Company, 328 F.Supp. 119 (W.D.La.1971), aff'd, 469 F.2d 1095 (5th Cir.1972), cert. denied, Southern Pacific Transportation Company v. Sutton’s Steel & Supply, Inc., 409 U.S. 1061, 93 S.Ct. 560, 34 L.Ed.2d 513 (1972).

The exclusive liability language of the Louisiana Workmen’s Compensation Act, which is narrower than that found in the LHWCA, has been held to bar actions against the employer for indemnity or contribution. See, Moak v. Link Belt Company, 229 So.2d 395 (La.App. 4th Cir.1969), dismissed in part, reversed in part on other grounds, 257 La. 281, 242 So.2d 515 (1970) ; Badeaux v. Patterson Truckline, Inc., 247 So.2d 875 (La.App.3d Cir.1971), writ denied, 259 La. 77, 249 So.2d 209 (1971) ; Bagwell v. South Louisiana Electric Co-Op Association, 228 So.2d 555 (La. App.3d Cir.1969).

The substantive law of Louisiana, which is the applicable law in this case, is that the party who is compelled to pay damages to an injured claimant may not demand contribution or indemnity from the claimant’s compensation employer, even where the third party is only technically at fault. Both the LHWCA and the Louisiana Workmen’s Compensation Act relieve the employer .of any liability it may have to its employees under La.Civ.Code Ann.Art. 2315. The employer’s duty to pay compensation benefits to his injured employee arises out of the contract of employment, not out of a theory that the employer is a tortfeasor. Consequently, the compensation employer cannot be a joint tortfeasor with the third party as to its employees; third parties thus have no basis under any theory of tort law to demand indemnity. See Bagwell, supra, and Sanderson, supra.

As in the Louisiana compensation scheme, the LHWCA imposes an obligation upon employers to pay compensation benefits to employees injured in the course and scope of their employment, which obligation “shall be exclusive and in place of all other liability____” 33 U.S.C. § 905(a). Under 33 U.S.C. 933(a), the employee may prosecute an action against a third party without losing his right to receive compensation. The result achieved is identical to that reached under Louisiana substantive law. See La.Rev.Stat.Ann.R.S. 23:1101 (West Supp.1985).

The Supreme Court has long recognized that workers’ compensation schemes exist, in part, to provide “for employers a liability which is fixed and determinate.” Bradford Electric Light Co. v. Clabber, 286 U.S. 145, 159, 52 S.Ct. 571, 576, 76 L.Ed. 1026 (1932). Such a result is not achieved by imposing tort liability on employers through the back door. To allow such a result would upset the quid pro quo which the compensation schemes created limiting an employee’s liability to the payment of compensation benefits to injured employees and place employers in the position of being potentially liable for both full compensation benefit and for all damages available in tort. The practical effect of such a situation would be to make the employer twice liable for the same event, magnify its potential liability beyond that of an ordinary tortfeasor, penalize it for making voluntary compensation payments, and such a result would frustrate the avowed purposes of the Act. See, Peters v. No. River Ins. Co. of Morristown, N.J., supra, 764 F.2d at 310. Further, to allow third party tortfeasors to assert third party tort indemnity claims against employers would vest them with rights not held by or flowing through the claimant, but arising out of the claimant’s injuries. This is not the result intended by Congress.

Finally, it should be noted that the result sought by Tenneco would result in the anomalous situation in which platform workers walk into and out of situations where the employer would be liable for tort indemnity. For example, a platform worker injured on a fixed platform on the outer continental shelf would expose his employer to a claim for indemnification or contribution by the platform owner. If the worker was injured on a fixed platform in territorial waters, no claim for indemnification or contribution could be asserted against his employer. Cf. Herb’s Welding, Inc. v. Gray, 470 U.S.-, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985), on remand, 766 F.2d 898 (5th Cir.1985). This Court’s review of the legislative history behind the LHWCA and the existing jurisprudence demands that Tenneco’s claim for tort indemnity be rejected.

TENNECO’S THIRD PARTY BENEFICIARY CLAIM

Tenneco claims to be a third party beneficiary under the Highlands’ policy by virtue of its 1980 Master Work or Service Contract with Halliburton. The 1980 Agreement only required Halliburton to name Tenneco as an additional assured on its marine insurance policies. Halliburton was not otherwise required to name Tenneco in its other policies and did not do so.

A contract is a stipulation pour autrui if it clearly reveals that the intent of the contracting parties was to provide a benefit to a third party. Wallace v. Texaco, Inc., 681 F.2d 1088, 1090 (5th Cir.1982). However, for one to be the beneficiary of a stipulation pour autrui, he must not be a party to the contract which stipulates on his behalf. Carl Heck Engineers v. Haselden & Assoc., Inc., 316 So.2d 890 (La.App. 1st Cir.1975), writ refused, 320 So.2d 912 (La.1975).

Tenneco’s third party beneficiary claims must be rejected. First, Tenneco as a party to the contract, may not claim the status of a third party beneficiary. Second, the contract does not require that Tenneco be named as an additional assured on the policy before this Court. Accordingly, Tenneco has no valid claim to protection on indemnity under the Highlands policies. Furthermore, even if it could be said that Tenneco was entitled to be named under these policies or claim the protection of these policies for its own negligence, such a claim would be invalid and unenforceable under La.Rev.Stat.Ann.R.S. 9:2780(G). In fact, this Court notes that identical claims by Tenneco for protection under insurances policies issued to a subcontractor were presented to Judge Schwartz in Rigby, supra, 607 F.Supp. at 1250.

In sum, this Court finds that Tenneco’s third party beneficiary claim is without merit.

CONCLUSION

For the foregoing reasons, Tenneco’s claim for tort indemnity against Halliburton is DISMISSED. Tenneco’s claim against Highlands for insurance coverage is DISMISSED. Tenneco’s claim for contractual indemnity against Halliburton is DISMISSED insofar as Tenneco seeks indemnity for its own negligence or fault. Tenneco’s claim for attorney’s fees and costs of defense is still before this Court. If, and only if Tenneco completely exonerates itself at trial, may Tenneco assert this claim against Halliburton. If, at trial, Tenneco is found to be one percent at fault, its claim for attorneys fees and costs of defense will be DISMISSED.

ON RECONSIDERATION

The Court, after a careful study of the recent Fifth Circuit opinions in Sullen v. Missouri Pacific Railroad Company, 750 F.2d 428 (5th Cir.1985) and Laird v. Shell Oil Co., 770 F.2d 508 (5th Cir.1985), has reconsidered sua sponte that portion of its original opinion which dealt with Tenneco’s contractual claims for attorney’s fees and costs of defense. Plaintiff's complaint alleges various acts of negligence against Halliburton, Bootstrap and Tenneco. However, plaintiff’s claims against Halliburton, his employer, were dismissed by summary judgment. Thus, the record now contains only plaintiff’s allegations against Tenneco and Bootstrap.

Paragraph VII.B. of the 1980 Master Service or Work Agreement (duplicated at beginning of opinion) requires that Halliburton defend and indemnify Tenneco for any claims made by any of its employees, or its subcontractor’s employees, even where Tenneco is either strictly liable, concurrently negligent or solely at fault. In Sullen the Fifth Circuit in pertinent part held that

Louisiana law is definite and certain. Whether a party is obliged to tender a defense to another party depends entirely upon the allegations in the precipitating pleadings, [citations omitted] ... In determining whether an indemnitor or an insurer is obligated to defend an indemnitee or insured under the terms of an indemnity or insurance contract, the Louisiana courts look exclusively to the pleadings in light of the contract provisions; the ultimate outcome of the case has no effect upon the duty to defend, [citations omitted] ...
... we conclude that unless the contract of indemnity specifically provides for costs of defense as a separate item of indemnification, the indemnitor has no obligation to defend if the petition alleges facts which, if proven, would establish liability of the indemnitee but preclude coverage under the indemnity agreement.

750 F.2d at 433-34. This case essentially provides a two-step test. The Court must first review the indemnity agreement in question and determine whether the contract for indemnity specifically provides a separate item for costs of defense. If the indemnity contract does not contain a separate item for cost of defense, then the trier of fact must review the petition and determine if it alleges facts which, if proven, would establish liability on part on the indemnitee but precludes coverage under the indemnity agreement.

Sullen teaches that where an indemnity agreement contains a specific provision requiring the indemnitor to provide and pay for the defense of the indemnitee, the indemnitor has an obligation to defend the indemnitee. 750 F.2d at 433-34. In this case, the Agreement does not contain a specific costs of defense provision. Thus, under Sullen, if an agreement between the indemnitor and the indemnitee does not contain a specific provision obligating the indemnitor to pay for the defense of the indemnitee, the indemnitor has no obligation to defend the indemnitee where the pleadings allege facts which, if proven at trial, would establish the indemnitee’s liability but eliminate coverage under the indemnity agreement. 750 F.2d at 433-34. Focusing exclusively on the pleadings and the broad language contained in Paragraph VII.B. of the Agreement, this court concludes that plaintiff’s complaint, which alleges fault against Tenneco, Halliburton and Bootstrap does not, on its face, preclude coverage under the Agreement.

The required analysis does not stop with this Court’s consideration of Sullen. If coverage is not precluded by the indemnity agreement, then the Court must look at the applicability of the Louisiana Oilfield Indemnity Act of 1981, Louisiana Revised Statutes Annotated § 9:2780. (West Supp. 1985). After reviewing the Act, this Court concludes that the duty to defend as expressed in the Agreement is void and unenforceable as a matter of law because it violates the clear language contained in the Indemnity Act. The statute reads in pertinent part as follows:

§ 2780. Certain indemnification agreements invalid

A. The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee.
B. Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indemnitee. (emphasis added).

Agreements between parties to contracts affecting the energy industry are absolutely void when they provide for indemnity against the indemnitee’s sole or concurrent fault. Durant v. Chevron U.S.A., Inc., 594 F.Supp. 527, 529 (E.D.La.1984), aff'd on rehearing, 613 F.Supp. 1189 (E.D.La. 1985). The Louisiana legislature in order to protect certain contractors and their employees from an inequity being “foisted” upon them declared null and void any provision in any agreement pertaining to the energy industry when such provision requires either defense or indemnification for negligence or strict liability on the part of the indemnitee. 594 F.Supp. at 529.

The Agreement between Halliburton and Tenneco requires Halliburton to defend and/or indemnify Tenneco even when Tenneco is strictly liable or solely or concurrently at fault. Thus, the indemnity provision violates Louisiana’s clear public policy expressed in La.Rev.Stat.Ann. § 9:2780(A) and (B). This Court holds that the indemnity provision requiring. Halliburton to defend and/or indemnify Tenneco for Tenneco’s liability as the owner or custodian of a defective thing (i.e. strict liability) or for its sole or concurrent fault is void and unenforceable as a matter of Louisiana statutory law. This does not preclude Tenneco from claiming contractual indemnity from Halliburton for Halliburton’s fault. See Home Insurance Co. v. Garber Industries, Inc., 588 F.Supp. 1218, 1222-23 (W.D. La.1984); Rigby v. Tenneco Oil Co., 607 F.Supp. 1247, 1248 (E.D.La.1985); Wilson v. J. Ray McDermott, Inc., 616 F.Supp. 1301, 1305 (E.D.La.1985). Furthermore, Halliburton has not established any legal basis to annul its obligation to indemnify Tenneco for Halliburton’s fault.

In sum, Tenneco cannot enforce the Agreement and require Halliburton to defend and indemnify Tenneco against its own negligence or fault. However, if and only if Tenneco completely exonerates itself at trial, may Tenneco assert its claim for costs of defense and attorney’s fees against Halliburton.

Accordingly,

The Court’s earlier ruling on Highlands’ and Halliburton’s motion for summary judgment is PROPER and CORRECT.