MEMORANDUM RULING
This matter, coming before the court on cross-motions for reconsideration of this court’s second ruling on a motion by Norm-co Contractors, Inc. (“Normco”) and Travelers Insurance Company (“Travelers”) for summary judgment dismissing Marathon Oil Company’s (“Marathon”) third-party claim for indemnity against them, presents two issues for this court’s determination: (1) whether the exclusive liability provision of the Longshoremen and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 905(a), bars all third-party claims for indemnification from an LHWCA employer, and (2) the extent to which the Louisiana Oilfield Anti-Indemnity Act (“OAIA”), 9 La.Rev.Stat.Ann. 2780 (West Supp.1986), nullifies indemnity provisions in oilfield contracts.
BACKGROUND
Plaintiffs brought this action against Marathon to recover damages for the fatal injuries sustained by their decedent, P.J. Carney, during the course of his employment with Normco, while aboard a fixed platform that was owned by Marathon and located on the Outer Continental Shelf adjacent to Louisiana. Travelers, Normco’s LHWCA insurer, subsequently intervened to recover the amount it had paid plaintiffs in LHWCA benefits. Marathon then brought a counterclaim against Travelers, and a third-party action against Normco, seeking indemnification for any amounts for which it might be held liable to the plaintiffs. Marathon originally based its indemnification claims on (1) the indemnity provisions of the master-service contract that existed between Normco and Marathon at the time of the accident, and (2) Normco’s alleged breach of the implied warranty of workmanlike performance (“WWLP”) it allegedly owed Marathon.
In its former ruling this court found that a § 905 employer is subject to non-vessel third-party indemnity claims arising out of a contractual (express or implied) or delictual obligation that the employer owes the third party.
Carney v. Marathon Oil Co.,
Marathon now (1) moves for reconsideration of the July 26, 1985 ruling dismissing its claim for indemnity on the basis of an alleged delictual obligation between Norm-co and Marathon, and (2) seeks a clarification of that ruling to establish whether it is entitled to maintain an indemnification claim against Normco based on breach of contract. Normco and Travelers, in turn, ask this court to reconsider its ruling on the Louisiana OAIA and hold that the Act nullifies indemnity provisions in oilfield service contracts in their entirety.
For the reasons that follow, this court affirms its July 26, 1985 ruling and (1) dismisses Marathon’s claim for indemnity based on an alleged delictual obligation between Normco and Marathon, and (2) finds that though § 905(a) of the LHWCA does not bar Marathon’s claims for express or implied contractual indemnification from Normco and Travelers, (3) Fifth Circuit jurisprudence does not recognize the WWLP as an implicit contract between LHWCA employers and platform owners on which the latter can recover indemnity from the former, and (4) the OAIA bars Marathon’s express contractual claim for indemnity under the master-service contract only to the extent it seeks to recover for its own negligence or fault. In light of recent Fifth Circuit decisions to be discussed below, however, this court also amends its earlier ruling to add that because plaintiffs allege in their complaint that Marathon was negligent and/or at fault in causing the death of plaintiffs’ decedent, Marathon may not recover the costs of defending this lawsuit.
See Knapp v. Chevron, USA, Inc.,
DISCUSSION
A. Marathon’s Claim for Indemnity on the Basis of an Alleged Independent Delictual Duty Between Normco and Marathon
As stated above, Fifth Circuit jurisprudence recognizes that a non-vessel third party may recover indemnity over against an LHWCA employer on the basis of an independent delictual duty between the employer and the third party; § 905(a) does not bar such claims.
See Pippen v. Shell Oil Co.,
Marathon alleges two bases on which Normco owes it an obligation in tort. First, it alleges that there is an issue of fact whether Normco was the “manufacturer” or “designer” of the light pole that electrocuted plaintiffs’ decedent and is therefore liable to Marathon on a theory of products liability. Second, Marathon alleges that Normco was the lessor of a defective product that it knew was defective, and, consequently, perhaps had a duty to correct the defect or warn the lessee of the defect under La.C.C. Art. 2320.
Though Marathon’s first argument should be commended for its creativity, it is simply too farfetched to deserve any level of credence. Marathon alleges that because Normco simply assembled a light pole that was used on Marathon’s rig,
*1041
Normco is the “manufacturer” of the light pole. Under products liability law, a manufacturer is one who manufactures a product that it sells and hence puts into the stream of commerce.
See Weber v. Fidelity & Casualty Ins. Co. of N.Y.
Moreover, Marathon has cited no authority for the proposition that as a lessor of an allegedly defective product, Normco has a duty to indemnify Marathon from any damages it might have sustained as a result of that “product’s” defect. Hence, as Marathon has failed to allege any cognizable legal basis for an independent obligation in tort between it and Normco, this court concludes that Marathon has not raised a genuine issue as to any material fact and that, as a matter of law, Normco’s summary judgment should be upheld.
Though Pippen found that a delictual duty between a third party and an LHWCA employer could support an indemnity claim by the former against the latter, it did not give any examples of specific relationships that could support such a duty. Because there has been demonstrated a strong need to understand the nature of the relationship giving rise to the sort of delictual obligation upon which indemnity might be had under Pippen, this court will offer the little guidance available.
In
Holden v. Placid Oil Co.,
Beyond
Holden,
there exists law only on the basic requirements of the delictual relationship, and examples of what does
not
satisfy those requirements. The fundamental requirement is that the court must find the third-party’s indemnity claim is based on a tort duty the employer owes directly to the third-party and not to the employee.
See White v. Texas Eastern Transmission Corp,
In White, the survivors of an LHWCA employee who had been fatally injured by the explosion of a natural gas pipeline “launch package” on which he was working, brought action against, among others, the manufacturer of the package’s “actuator valve.” The manufacturer filed a third-party complaint against the LHWCA employer seeking tort indemnity or contribution.
Relying on
Ocean Drilling & Exploration Service (ODECO) v. Berry Brothers Oilfield Service, Inc.,
the only breach of duty — and the only resulting theoretical liability — of [the employer] that could be asserted was a duty owed to its employee to assemble the launch package in a non-neglect manner so as to prevent injury to the employee. It is clear beyond doubt that under ODE-CO that § 905 of L & H has extinguished this liability in favor of a compensation statute. Thus, there remains no underlying tort liability to support [the manufacturer’s] claim.
Similarly in
Hamilton v. Mesa Petroleum Co.,
The court rejected the third-party claim on three basis: First, the court found that a duty to enforce safety rules was a duty the employer owed not to the platform owner but rather to “the class of persons” who were protected by such rules, that is, its employees. Id. at 723.
Secondly, the Hamilton court found that even if the employer’s duty to enforce specific safety instructions were a duty owed to the platform owner, though such a duty may be labeled delictual it is indistinguishable from the implied contractual warranty of workmanlike performance rejected in ODECO as a basis for a platform owner’s recovery over against an LHWCA employer. Id. at 721, 722, 723-24.
Finally, the Hamilton court found that even if an independent tort duty existed between the employer and platform owner, under ODECO (suggesting that only contractual obligations could support third-party indemnity actions against an LHWCA employer) a delictual duty simply could not support such claims. Id. at 724.
Pippen,
decided one year after
Hamilton,
effectively overruled the portion of
Hamilton
rejecting
Holden
by recognizing that a delictual duty between an LHWCA employer and a platform owner could, in fact, support an indemnity claim by the latter against the former.
B. Marathon’s Claim for Contractual Indemnity
1. Express and Implied
Though § 905(a) does not bar third-party indemnity claims against LHWCA employers when there is a contractual (express or implied) relationship between the employer and the third-party upon which the indemnity claim is based,
Pippen v. Shell Oil Co.,
A breach of the WWLP as a basis for a
shipowner’s
indemnity against stevedore employers was first recognized in
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,
By contrast, since the
ODECO
ruling (refusing to recognize the WWLP in platform cases), platform owners have become subject to Louisiana law.
See Rodrigue v. Aetna Casualty Insurance Co.,
2. The Effect of Lockheed
Marathon urges further that its indemnity claim under the WWLP should be allowed pursuant to the United States Supreme Court decision of
Lockheed Aircraft Corp. v. United States,
Relying heavily on
Weyerhaeuser S.S. Co. v. United States,
“[t]here is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of [tort] law affecting the mutual rights and liabilities of private [parties] in [indemnity] cases.” [Weyerhaeuser, 372 *1044 U.S. at 601,83 S.Ct. at 929 ]. Section 8116(c) was intended to govern only the rights of employees, their relatives, and people claiming through or on behalf of them (footnote omitted). These are the only categories of parties who benefit from the “quid pro quo” compromise that FECA adopts, ... [that is] the right to receive immediate, fixed benefits, regardless of fault and without need for litigation [in exchange for the right to sue the government].
Id. at 1037.
The Lockheed Court observed that FECA’s exclusive liability provision was modeled on § 905(a) of the LHWCA. Id. at n. 4. The question is thus raised whether Lockheed compels the conclusion that the LHWCA’s exclusive liability provision, like FECA’s, allows all third-party claims against LHWCA employers that are brought by parties who are not within the category of persons who benefit from LHWCA’s quid pro quo compensation scheme, regardless of whether the third party is owed some independent duty by the employer upon which the third-party claim is based.
In
Horton v. Sun Exploration & Production Co.,
The Horton court cited Lockheed’s quid pro quo language “to support” the Pippen rule. Therefore, the court accepted the proposition that in enacting the LHWCA, as in enacting FECA, Congress was unconcerned with the mutual rights and liabilities of unrelated third parties, with the implicit limitation in that proposition that the mutual rights and liabilities to which it referred were only those that are independent of the rights and liabilities between an LHWCA employer and his employee. The court’s holding indicates that it does not believe Congress was unconcerned with a third party’s alleged right to claim tort indemnity or contribution on the basis of the employer’s breach of duty to its employee.
Contrary to the Lockheed majority, this court believes such an implicit limitation on the quid pro quo language also existed in Weyerhaeuser, the case upon which the Lockheed court rested its decision. In Weyerhaeuser, a United States ship and a Weyerhaeuser vessel collided at sea; both vessels were found to have been at fault. A federal employee injured in the collision recovered FECA benefits and payments from a settled negligence action against Weyerhaeuser. Weyerhaeuser, in turn, sued the government under admiralty’s moiety rule, including a claim for one-half of the settlement it had paid to the federal employee.
The United States argued that Weyerhaeuser’s claim for one-half of the settlement amount violated FECA’s exclusive liability provision by making the government indirectly liable for its employee’s tort recovery. The Supreme Court rejected the United States argument, however, and after the above-quoted discussion of FECA’s quid pro quo compensation scheme, held as follows:
In Ryan v. Pan-Atlantic Corporation,350 U.S. 124 , [76 S.Ct. 232 ,100 L.Ed. 133 (1956)], it was held that despite this exclusive-liability provision, a shipowner was entitled to reimbursement from a longshoreman’s employer for damages recovered against the shipowner by the longshoreman injured by the employer’s negligence. The court’s decision in Ryan was based upon the existence of a contractual relationship between the shipowner and the employer. In a series of subsequent cases, the same result was reached, although the *1045 contractual relationship was considerably more attenuated. Weyerhaeuser Steamship Company v. Nacirema Company,355 U.S. 563 [78 S.Ct. 438 ,2 L.Ed.2d 491 (1958)]; Crumady v. The J.H. Fisser,358 U.S. 423 [79 S.Ct. 445 ,3 L.Ed.2d 413 (1959)]; Waterman Company v. Dugan & McNamara,364 U.S. 421 [81 S.Ct. 200 ,5 L.Ed.2d 169 (1960)].
In the present case there was no contractual relationship between the United States and the petitioner, governing their correlative rights and duties. There is involved here, instead, a rule of admiralty law which, for more than 100 years, has governed with at least equal clarity the correlative rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault. The Schooner Catharine v. Dickinson,17 How. 170 , 177 [15 L.Ed. 233 (1854)]; The North Star, [16 Otto 17 ]106 U.S. 17 , 21 [1 S.Ct. 41 , 44,27 L.Ed. 91 (1882)]. See Halcyon Lines v. Haenn Ship Corporation,342 U.S. 282 , 284 [72 S.Ct. 277 , 279,96 L.Ed. 318 (1952)]. Long ago this court held that the full scope of the divided damages rule must prevail over a statutory provision which, like the one involved in the present case, limited the liability of one of the shipowners with respect to an element of damages incurred by the other in a mutual fault collision. The Chattahoochee,173 U.S. 540 [19 S.Ct. 491 ,43 L.Ed. 801 (1899)]. The statute at issue was the Harter Act, which categorically provides that cargo cannot collect directly from the carrying vessel for damages as a result of faults in navigation. The Court held that despite this statutory provision, the carrying vessel must share, according to the divided damage rule, damages sustained by the non-carrying vessel resulting from liability to the carrying vessel’s cargo
In this case, as in The Chattahoochee, we hold that the scope of the divided damages rule in mutual fault collisions is unaffected by a statute enacted to limit the liability of one of the shipowners to unrelated third parties.
Therefore, though the Weyerhaeuser Court included the quid pro quo language in its opinion, the Court’s holding did not rest on the quid pro quo proposition. If the Court had concluded that Congress was unconcerned with the rights of all third parties who did not benefit from FECA’s quid pro quo compromise, regardless of the basis on which they sought indemnity (or contribution), then it could have ended its discussion there and allowed Weyerhaeuser’s contribution claim against the government. Yet, it did not. The Court stressed that though there was no contractual relationship between the United States and Weyerhaeuser on which the latter could base its claim for contribution, there was the ancient moiety or divided damages rule of admiralty law that took precedence over FECA’s exclusive liability provision.
Professor Larson has explained the significance of the Weyerhaeuser Court’s reliance on the divided damages rule in justifying its decision under FECA and LHWCA jurisprudence:
The moiety rule is in effect taken out of the company of the contribution cases and assimilated to the Ryan type of independent-indemnity-duty cases. The key factor here is that the moiety obligation, unlike contribution between tortfeasors, generally, is indeed a separate duty based, not on the two wrongdoer’s mutual relation to the plaintiff, but on their relationship to each other.
Larson,
Workmen’s Compensation Law
§ 76.31 (1974) (emphasis added). Professor Larson cites
United Air Lines, Inc. v. Wiener,
The admiralty rule of divided damages is to be distinguished from the rule of [tort] indemnity, ... since under admiralty law there arises from a collision involving mutual fault the right to appor *1046 tionment of all damages resulting therefrom, including personal injuries, cargo damage, and damage to ships. The divided damages rule is based upon the duty which each shipowner owes the other to navigate safely irrespective of any duty to the person injured. On the other hand neither contribution nor indemnity may be awarded without the support of liability on the part of the indemnitor to the person injured.
This court therefore believes that in
Horton
it did essentially what the Supreme Court had done in
Weyerhaeuser.
It asserted a broad proposition that was implicitly limited by its actual holding. Nonetheless, it is not clear that
Lockheed
can be read to include such a limitation on the
quid pro quo
proposition. The
Lockheed
majority found that the situation in
Weyerhaeuser
was “nearly identical” to that in
Lockheed. Id.
Here Lockheed relies on substantive indemnity law [noting that “[t]he validity of Lockheed’s underlying substantive claim is not before us”], while the private shipowner in Weyerhaeuser relied on the admiralty divided damages rule.... To the extent that the basis for the underlying cause of action could make any difference, the indemnity theories on which Lockheed relies [traditional tort theories of “active-passive” or “primary-secondary” negligence] are as well-established as the divided damages rule was in Weyerhaeuser.
Id. at 1039.
Though this court is more persuaded by Professor Larson’s view that the moiety or divided damages rule is distinguishable from theories of tort contribution and indemnity, the Supreme Court’s view obviously is now controlling in the determination of any third-party claims brought against FECA employers. The Court’s view is not necessarily controlling, however, in the LHWCA case at hand.
The
Lockheed
court rested its opinion almost exclusively on
Weyerhaeuser.
It did not discuss the LHWCA precedent holding that § 905(a) bars third-party contribution,
see, e.g., Cooper Stevedoring Co. v. Fritz Kopke, Inc.,
Though the Drake court’s conclusion is the same as that reached by this court, its rationale is somewhat different. Drake emphasized the following “careful[] and precise[]” wording of Lockheed’s holding:
The District Court held that Lockheed had a right to indemnity under the governing substantive law, but the Court of Appeals did not rule on that question. Accordingly, we do not consider it. We adhere to the decision in Weyerhaeuser and hold only that FECA’s exclusive liability provision, 5 U.S.C. § 8116(c), does not directly bar a third-party indemnity action against the United States.
The Drake court noted that the Lockheed majority
stressed twice in the course of its opinion that the underlying substantive law granting Lockheed a right to indemnification was uncontroverted,460 U.S. at 192 , 199 n. 8, [103 S.Ct. at 1038 n. 8] and the only question for decision was whether § 8116(c) of FECA interposed a bar to a third-party action against the United States.
*1047
Lockheed requires that we determine whether there is a basis in substantive law for defendants’ third-party action against [the LHWCA employer]; it does not overrule three decades of consistent Supreme Court jurisprudence regarding the interpretation of § 905(a).
Id.
After reviewing the “three decades of” § 905(a) jurisprudence consistently rejecting third-party contribution and tort indemnity claims against LHWCA employers,
5
the court found that such third parties, unlike the third party in
Lockheed,
do not have a substantive right of tort indemnity or contribution against the LHWCA employer.
Drake,
Though accepting its conclusion, this court finds the Drake court’s reasoning circuitous. The Drake court apparently adopted Lockheed’s finding that FECA’s, and hence LHWCA’s, exclusive liability provision does not directly bar a third-party indemnity action. Yet, it found that Lockheed rests the question of whether a third party can actually recover indemnity on the validity of the claim’s underlying substantive basis. The court then found that traditional theories of tort indemnity and contribution are not valid substantive bases for indemnity. Nonetheless, it depended on jurisprudence consistently finding that § 905(a) does bar such claims to support its conclusion that theories of “active-passive” and “primary-secondary" negligence are themselves invalid. The court therefore reasons that (1) § 905(a) does not directly bar unrelated third-party claims against LHWCA employers, but (2) there must be a valid underlying substantive basis for the third-party claim, yet (3) because jurisprudence interpreting § 905(a) has consistently held that § 905(a) does in fact bar traditional tort indemnity and contribution claims based on the employer’s concurrent fault in bringing about the employee’s injury, these traditional tort principles are not valid bases for third-party recovery. Nonetheless, though this court questions the Drake court’s reasoning, it accepts the court’s conclusion that Lockheed did not overrule § 905(a) jurisprudence consistently rejecting traditional tort indemnity and contribution claims against LHWCA employers.
Moreover, even if
Lockheed
had overruled the traditional requirement of an independent duty between an LHWCA employer and a platform owner in order for the latter to receive indemnity from the former, Marathon still would not be provided an indemnity claim under the WWLP. Marathon’s WWLP claim fails not because an implied contractual relationship cannot support an indemnity claim under the LHWCA, but rather because a stevedore employer does not owe an implied duty of workmanlike performance to third-party platform owners on which an indemnity claim can be based.
See ODECO,
C. The Louisiana Anti-Indemnity Act
In its former ruling, this court held that the Louisiana Oilfield Anti-Indemnity Act, 9 La.Rev.Stat.Ann. 2780 (West Supp. 1986), nullifies indemnity provisions in oilfield contracts “only to the extent that they purport to require indemnification or defense for the indemnitee’s negligence [or fault].”
Carney v. Marathon Oil Co.,
Normco and Travelers move this court to reconsider its former ruling *1048 and hold that the OAIA makes the provisions of Marathon-Normco’s master-service contract, on which Marathon bases its indemnity claim, null and unenforceable in their entirety. This court rejects such an interpretation of the statute. The statute’s language “to the extent” indicates the limit to which the OAIA’s contract nullification applies. That limit is the indemnitee’s negligence or fault. The Act does not nullify indemnity provisions in oilfield contracts beyond those purportedly providing indemnity for the indemnitee’s negligence or fault. This point, however, has been made moot by recent developments in Fifth Circuit jurisprudence.
In
Sullen v. Missouri Pacific Railroad Co.,
Whether a party is!obliged to tender a defense to another party depends entirely upon the allegations in the precipitating pleadings ... Ip determining whether an indemnitor .. L is obligated to defend an indemnitee I... under the terms of the indemnitor’s ... contract, [t]he 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.
Accord Laird v. Shell Oil Co.,
According to
Sullen
and
Knapp,
whether an indemnitor under an oilfield service contract owes an indemnitee the latter’s costs of defense must be determined by examining the allegations contained in the pleadings.
Knapp,
slip op. at 1128;
Sullen,
Though this court is convinced that in enacting the OAIA, the legislature intended to prohibit an indemnitee under an oil or gas contract to recover from the indemnitor only where the indemnitee has been solely or concurrently negligent or at fault, and clearly chose to leave available to the indemnitee the ability to recover the costs of defending an action to which it is found not negligent or at fault, it is indisputable that the Sullen/Knapp rule bars the latter action by the indemnitee as well.
*1049 In the instant case, the plaintiffs’ complaint alleges that Marathon was negligent or otherwise at fault in causing their decedent’s death. Therefore, under Knapp, Marathon is prohibited from recovering its costs of defense from Normco. This court must therefore modify its July 26, 1985 ruling in which it rejected Norm-co’s motion for summary judgment on the basis that Marathon’s negligence or fault was an issue of fact that must be determined before Marathon’s right to recover its costs of defense from Normco and Travelers could be decided.
Accordingly, as Marathon has provided no other basis on which it is entitled to recover over against Normco and Travelers, the latter’s motion for summary judgment dismissing Marathon’s indemnity action should be granted.
ORDER
For the reasons assigned in the Memorandum Ruling of this date,
IT IS ORDERED that upon reconsideration of its July 26, 1985 ruling, this court modifies its earlier ruling and GRANTS Normco and Travelers’ motion for summary judgment dismissing Marathon’s indemnity action against them.
Notes
. In fact, in the earlier hearing Marathon did not even allege a delictual obligation between *1040 the parties.
. In
ODECO,
the Fifth Circuit rejected the traditional tort theories of "active-passive” and "primary-second” negligence as bases for third-party recovery over against an LHWCA employer.
. Whether indemnity provisions in oilfield contracts are nullified by the OAIA is a separate question — to be addressed below.
. Pursuant to
Seas Shipping Co. v. Sieracki,
. See cases cited supra p. 1046.
. In
Jackson v. Tenneco Oil Co.,