claimed that the contractor's negligence had contributed to the
employee's injuries and brought a third party complaint for
contribution against the contractor/employer.
The Supreme Court noted both the general tort rule tending
away from contribution among joint tortfeasors and the
admiralty rule of division of damages. The Court went on to
discuss the general judicial reluctance to create a right of
contribution in the absence of legislation. In particular, the
Supreme Court found that, in a field such a admiralty law where
Congress has already legislated extensively, the Court should
decline to create such a right of contribution; since there is
no underlying statutory or common law authority for a ship
owner's contribution action against an employer, the Court
would not create one. The Court further noted that it was
unnecessary to decide whether § 5 of the Harbor Workers Act
(now § 905 of the LHWCA) prevented a third party from bringing
a cause of action for contribution against the employer, since
there was no substantive right to contribution in the first
place. Id. at 286-87, 72 S.Ct. at 280.
A different set of facts was presented in Cooper Stevedoring
Co. v. Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694
(1974), where the third party complaint was not filed against
the employer but against a different third party. The Court in
Cooper extensively discussed its previous holding in Halcyon,
noting that the decision must be read with the background
discussed above kept in mind. The Court in Cooper held that
"despite the occasional breadth of its dictum," Id., 417 U.S.
at 111, 94 S.Ct. at 2177, Halcyon did not hold that there
is an absolute bar against contribution in a non-collision
case. Instead, the Cooper Court held that Halcyon merely found
there was no federal common law substantive right of
contribution against an employer.
The importance of finding a substantive right to contribution
before determining whether § 905 acts as a bar in certain cases
was underlined in the case of Lockheed Aircraft Corp. v. United
States, 460 U.S. 190, 197 n. 8, 103 S.Ct. 1033, 1038 n. 8, 74
L.Ed.2d 911 (1982). The Court in Lockheed discussed an
exclusive liability provision in the Federal Employee
Compensation Act (FECA), which is nearly identical to § 905,
and discussed extensively developments in interpretations of
that provision of the LHWCA. In a footnote, however, the Court
noted that the procedural history of the Lockheed case had
eliminated the need for the Court to determine whether there is
a substantive right to contribution. (The district court had
found there was such a substantive right. The matter had not
been raised on appeal). Thus, the Court's ultimate decision in
Lockheed that FECA's equivalent to § 905 may not act as a bar
to a suit for contribution does not eliminate the necessity for
first determining whether there is indeed a substantive
The case before the Court raises the precise issue so far not
directly confronted by the Supreme Court. The employee who is
the Plaintiff in this case did not seek damages for his
injuries under the LHWCA. Instead, he proceeded under the
Illinois Workers' Compensation Act, Ill.Rev.Stat. ch. 48, §
138.1 et seq. Under Illinois law, a third party action for
contribution against an employer who has made payments into the
Workers' Compensation program is permitted. Doyle v. Rhodes,
101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382 (1984). Thus,
there is a substantive right
to contribution, and this Court must determine whether § 905(a)
acts as a procedural bar.
Erlanger argues first that an action for contribution under
the Illinois law is not inconsistent with the federal common
law and should therefore be allowed to proceed. CIDC, however,
argues that the Illinois law is contrary to explicit federal
statute, namely § 905(a). Thus, according to CIDC, the Illinois
law should be seen as inconsistent with § 905(a) and therefore
preempted by it. CIDC's preemption argument can only prevail if
§ 905(a) does bar all actions, direct and indirect, against an
employer. Then and only then would a state law allowing
contribution actions against an employer be in direct conflict
with and thus preempted by federal law.
In Lockheed, 460 U.S. 190, 103 S.Ct. 1033, the Supreme Court
relied extensively upon § 905(a) in interpreting the similar
exclusive liability provision of FECA. In analyzing and
comparing the two provisions, the Court paid particular
attention to Congress' "quid pro quo" approach; in workers
compensation legislation generally, employees gain the right to
receive immediate fixed benefits without need for litigation
and regardless of fault. In return, they lose the right to sue
their employer. Id. at 194, 103 S.Ct. at 1036.
The Lockheed Court based its decision in large part on
Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 83 S.Ct.
926, 10 L.Ed.2d 1 (1963), in which the Court considered FECA's
exclusive liability provision and the legislative history of
that section. In Weyerhaeuser, a federal employee was injured
when an army dredge collided with a vessel owned by
Weyerhaeuser. The employee recovered compensation under FELA
from the government and tort damages from Weyerhaeuser.
Weyerhaeuser then sued the United States for contribution,
seeking the damages it could have recovered from a private ship
owner under the Public Vessels Act, 46 U.S.C. § 781 et seq. The
government challenged the action arguing that third parties
were clearly included within the phrase "anyone otherwise
entitled to recover damages" in the exclusive liability
provision of FELA.
The Supreme Court rejected this argument by first finding
that the statutory language was ambiguous and thus subject to
interpretation by resort to the legislative history of the
provision. The Supreme Court concluded that, based on the
quid pro quo nature of the legislation, the exclusive liability
provision as a whole had been intended to govern only the
relationship between the government on one hand and its
employees and their representatives or dependents on the other.
The Weyerhaeuser court summarized its review of the legislative
history of the exclusive liability provision as follows:
There is no evidence whatever that Congress was
concerned with the rights of unrelated third
parties, much less of any purpose to disturb
subtle doctrines of admiralty law affecting the
mutual rights and liabilities of private ship
owners in collision cases.
Lockheed, 460 U.S. at 195, 103 S.Ct. at 1037, quoting
Weyerhaeuser, 372 U.S. at 601, 83 S.Ct. at 928. See also, Ryan
Co. v. Pan-Atlantic Corp., 350 U.S. 124, 129, 76 S.Ct. 232,
235, 100 L.Ed. 133 (1956).
The language in Lockheed and Weyerhaeuser clearly indicates
that § 905(a) should not stand as a bar to a cause of action in
contribution should there otherwise be a substantive basis for
it. Here, Illinois statutory law provides just such a basis.
Thus, this Court adopts the interpretation given to § 905(a) by
Supreme Court dicta in Weyerhaeuser and Lockheed. The language
"anyone otherwise entitled" bars only actions by those seeking
to recover through the employee; in other words, the examples
listed in the statute all fall within a definable category and
the catch-all language may not be read to broaden that
As a result, the Illinois law allowing suits for contribution
from a joint tortfeasor/employer is not in conflict with any
federal law. State law may supplement maritime law if the
injury arose out of maritime conduct which has local
characteristics. Sun Ship, Inc. v. Commonwealth
of Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458
(1980) (holding that LHWCA did not supplant state worker
compensation laws). In this case, those local characteristics
Thus the contribution claim against CIDC may proceed and the
Motion to Dismiss Count I of the Third Party Complaint is
Count II: Indemnification
In Count II, Erlanger's Third Party Complaint seeks
indemnification from CIDC, based claim upon the distinction
between active negligence and passive negligence.
Indemnification in tort seeks to shift the entire amount of
liability from a defendant to a third party. Generally under
tort law, "a person who, without personal fault, has become
subject to tort liability for the unauthorized and wrongful
death of another, is entitled to indemnity from the other for
expenditures properly made in the discharge of such liability."
Restatement of Restitution, § 96, quoted in Marine Terminals v.
Shipping Co., 394 U.S. 404, 411, 89 S.Ct. 1144, 1148, 22
L.Ed.2d 371 (1968).
The question raised by the Motion to Dismiss Count II is
whether that general tort cause of action is abrogated by the
LHWCA. In other words, if § 905(a) does not bar a cause of
action for indemnity, then traditional tort analysis regarding
duty, breach of duty and subrogation become relevant. The only
issue raised by the pending motions is whether § 905(a) is
indeed a bar to an indemnity action brought by the owner of the
cargo against the employer of the insured longshoreman. Thus,
the analysis should be similar to the analysis employed for
Count I: if there is a substantive right, then § 905(a) does
not act as a bar.
Illinois law apparently allows third party actions against an
employer for indemnification under the Workers' Compensation
Act if the third party plaintiff was passively negligent and
the employer was actively negligent. See, O'Bannon v. Northern
Petro Chemical Co., 113 Ill. App.3d 734, 69 Ill.Dec. 550,
447 N.E.2d 985 (1983); National Oats Co. v. Volkman, 29 Ill. App.3d 298,
330 N.E.2d 514 (1975); Krambeer v. Canning, 36 Ill. App.2d 428,
184 N.E.2d 747 (1962).
In Hillier v. Southern Towing Co., 714 F.2d 714 (7th Cir.
1983), the court emphasized the importance of distinguishing
between indemnification actions based on tort theories and
those based on contract theories. There is a dearth of cases
discussing admiralty tort claims for indemnification; the great
majority are based in contract.
In Hillier, the Seventh Circuit discussed the paucity of
cases seeking indemnification in the absence of a contractual
relationship, concluding that the paucity "may just reflect the
fact that most joint tortfeasors have a pre-existing
contractual relationship, direct or indirect, with each other .
. ." Id. at 720. The court went on to state that availability
of indemnification, even where contribution is available, is
justifiable in policy.
When the cheapest way of avoiding a careless
accident is for one party to take all the
precautions, the law needs a mechanism for
bringing liability to bear ultimately on that
party, and indemnity supplies it. Admiralty law,
like common law, is concerned with safety and
efficiency. The tendency to use tort liability to
spread rather than to prevent losses may be
stronger in admiralty than in the common law, but
it is not so overpowering as to have prevented the
courts from devising imaginative theories of
indemnity in a variety of often tenuously
contractual maritime settings.
Id. at 720-21.