LOCKHEED AIRCRAFT CORPORATION, PETITIONER V. UNITED STATES OF AMERICA No. 81-1181 In the Supreme Court of the United States October Term, 1982 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement 1. Background and proceedings below 2. Current posture of the case Summary of argument Argument I. The language of 5 U.S.C. 8116(c) and the legislative intent underlying it support the conclusion that the FECA bars third-party claims for damages paid to federal employees in connection with work-related injuries or deaths: A. The language of Section 8116(c) of the FECA precludes third-party claims for damages paid to federal employees in connection with work-related injuries or deaths 1. Petitioner comes within the phrase "any other person," as that phrase is used in Section 8116(c) 2. Petitioner's claim arises "because of" the injury or death of a federal employee B. The legislative intent underlying Section 8116(c) of the FECA confirms that that section operates to bar third-party claims for damages paid to federal employees in connection with work-related injuries or deaths II. Even if the Court recognizes a broadly defined exception to the exclusive liability principle of 5 U.S.C. 8116(c) for cases involving an "independent duty" owed by the government to a third party, petitioner has not demonstrated that such an independent duty exists in the present case Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-8a) is reported at 665 F.2d 1330. The order of the district court granting summary judgment (Pet. App. 9a-10a) is not reported. The district court's order refers to two earlier district court decisions (Pet. App. 11a-19a, 20a-32a), the latter of which is reported at 476 F. Supp. 521. JURISDICTION The judgment of the court of appeals (Pet. App. 33a-34a) was entered on September 30, 1981. The petition for a writ of certiorari was filed on December 23, 1981, and was granted on April 5, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The Federal Employees' Compensation Act, 5 U.S.C. 8116(c), provides: The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel. QUESTION PRESENTED Whether a joint tortfeasor in the wrongful death of a federal employee is barred by the exclusive liability provision of the Federal Employees' Compensation Act, 5 U.S.C. 8116(c), from suing the United States for indemnity. STATEMENT 1. Background and Proceedings Below This case arose out of a 1975 plane crash near Saigon, South Vietnam. The aircraft involved was a C-5A cargo plane manufactured by petitioner, Lockheed Aircraft Corporation, pursuant to a contract with the United States Air Force. On April 4, 1975, Air Force personnel landed the aircraft in Saigon with a cargo of military equipment. Following discharge of the cargo the aircraft took on approximately 300 passengers as part of an emergency evacuation of individuals out of Vietnam. Some time after takeoff the aft cargo door and the aft ramp separated from the aircraft. Hydraulic lines and control cables running to the tail of the aircraft were severed (J.A. 69-70, 99). The pilot attempted to return to Saigon, but the plane crashed several miles short of the Saigon airport, killing 144 of the passengers (J.A. 100). One of the passengers killed in the crash was Ann Nash Bottorff, a civilian employee of the Department of the Navy (J.A. 4-5). Bottorff's survivors received death benefits from the United States under the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101 et seq. (J.A. 103). On November 4, 1975, the administrator of Bottorff's estate filed suit against petitioner seeking damages for her wrongful death and for injuries suffered prior to her death (J.A. 4-17). /1/ On January 9, 1976, petitioner impleaded the United States as a third-party defendant, seeking indemnity or contribution on a variety of theories (J.A. 25-34). Counts I and II of petitioner's third-party complaint asserted a right to indemnity or contribution under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq.; Counts III and IV sought indemnity or contribution under the Suits in Admiralty Act, 46 U.S.C. 740 et seq., and the Public Vessels Act, 46 U.S.C. 781 et seq.; and Count V was a claim for contractual indemnity pursuant to a 1971 contract between petitioner and the government relating to manufacture, sale and delivery of C-5A aircraft. Only petitioner's claim for indemnity under the FTCA is at issue before this Court (Pet. 6 n.6, 7 n.9). Neither the district court nor the court of appeals reached petitioner's admiralty law claims (Pet. App. 8a n.5, 10a). Petitioner abandoned its claim for contractual indemnity at the district court stage (id. at 3a n.2). /2/ In the fall of 1979 petitioner settled the claims asserted against it by Bottorff's estate. Petitioner then moved for summary judgment against the government in the third-party action (J.A. 88-89). The government simultaneously filed a motion to dismiss on the ground that recovery under the FTCA is precluded by the exclusive liability provision of the FECA, 5 U.S.C. 8116(c) (J.A. 90-91). The parties also filed a joint statement of material facts not in dispute (J.A. 92-104). On December 7, 1979, the district court entered an order granting petitioner's motion for summary judgment and implicitly denying the government's motion to dismiss (Pet. App. 9a-10a). /3/ The district court held that petitioner was entitled to indemnity from the government and that petitioner's claim over was not barred by the FECA (ibid.). On January 23, 1980, the district court entered a final judgment in which it confirmed its order of December 7, 1979, and ordered that "defendant recover by way of indemnity and/or contribution from third party defendant United States a proportion, to be agreed upon between defendant Lockheed and third party defendant United States, of the total amount of the settlement between (Bottorff's estate) and defendant Lockheed * * *" (J.A. 105-106). /4/ The government appealed, and the court of appeals reversed (Pet. App. 1a-8a). The court of appeals found in 5 U.S.C. 8116(c) a clear intention to prohibit claims under the FTCA for contribution or indemnity that merely derived from duties owed by the government to its employees. The court held that two of the duties alleged by petitioner -- the duty to use the aircraft in the manner contemplated by the parties and the duty to maintain the aircraft adequately to prevent accidents -- did not run to petitioner, but were "clearly derivative and based upon the duties owed by the Government to its employees and passengers" (Pet. App. 7a). The court concluded that the third duty alleged by petitioner -- the duty to provide petitioner with information about safety incidents -- sounded in contract rather than tort and thus had been abandoned by petitioner in the district court. The court of appeals declined to find any independent duty running from a purchaser to a manufacturer to use a product in such a way as not to bring liability upon the latter (id. at 6a-7a). With respect to petitioner's claim for contribution, the court held that "no right of contribution exists 'unless there is a joint liability of both parties to the injured person' " (id. at 5a). Thus, because the FECA had displaced the government's tort liability for injuries to its own employees, petitioner had no right to contribution. /5/ The court of appeals remanded the case to the district court for a determination of jurisdiction over petitioner's maritime law claims and a decision about the effect of the FECA on such claims (id. at 8a n.5). 2. Current Posture of the Case This section is included because we believe the Court should be aware of the somewhat unusual posture of this case. As described above, petitioner's third-party complaint included two counts based on the Federal Tort Claims Act and two counts based on the Suits in Admiralty Act. /6/ The two sets of counts must be regarded as mutually exclusive alternatives, since, by its terms, the Federal Tort Claims Act does not waive sovereign immunity with respect to any claim for which a remedy is provided by the Suits in Admiralty Act. See 28 U.S.C. 2680(d). In the district court petitioner contended that jurisdiction of its third-party action was properly based on the Suits of Admiralty Act, while the government contended that petitioner's claims were not of a maritime nature and thus were cognizable, if at all, under the Federal Tort Claims Act. See C.A. App. 155-160, 216-218. /7/ In its order granting petitioner's motion for summary judgment, entered on December 7, 1979 (Pet. App. 9a-10a), the district court concluded that indemnity was available to petitioner (presumably under the Federal Tort Claims Act) and that petitioner's claim over against the government was not barred by the FECA. The order also stated that the court had reached no conclusion with respect to whether jurisdiction existed independently under the Suits in Admiralty Act (id. at 10a). It is unclear whether the district court was aware of the fact that if petitioner had a remedy under the Suits in Admiralty Act it would be precluded from recovering on a claim under the FTCA. On January 23, 1980, the district court filed a final judgment confirming the December 7, 1979, order and adjudging that petitioner recover by way of indemnity and/or contribution an amount to be agreed upon between petitioner and the government (J.A. 105-106). The government appealed from that final judgment. The parties proceeded in the court of appeals on the premise that the district court had found jurisdiction under the FTCA, and their arguments focused on whether the FECA constitutes a bar to third-party actions under the FTCA. However, both parties noted in their briefs in the court of appeals that the district court had not reached petitioner's maritime claims, and the parties presented their positions on the existence of admiralty jurisdiction in footnotes to their briefs (see Pet. App. 8a n.5). The court of appeals held that the FECA constituted a bar to petitioner's claims for contribution or indemnity, apparently referring to such claims under the FTCA. The court of appeals therefore reversed the district court judgment and remanded the case. In a footnote, the court of appeals declined to decide whether petitioner could obtain relief under maritime principles. The court of appeals apparently expected that the district court would consider the issue of admiralty jurisdiction on remand, since it stated that "(e)ven if admiralty jurisdiction is appropriate, of course, the district court should examine with care the intersection of such jurisdiction with the exclusivity provision found in FECA" (Pet. App. 8a n.5). The petition for certiorari raises only the issue of whether Section 8116(c) of the FECA bars an indemnity claim under the Federal Tort Claims Act. However, if this Court should hold that the FECA does create such a bar, petitioner presumably would request that the case be remanded to the district court for a decision on whether there is jurisdiction of its claims under the Suits in Admiralty Act. If such a remand should occur, and if the district court should conclude that admiralty jurisdiction does exist, then, by the terms of the FTCA, petitioner would never have had a claim under the FTCA, and this Court's resolution of the question currently presented would have been unnecessary. While we believe that such an outcome is highly unlikely, it is at least a possibility. In light of our position, while we have held consistently and which we believe to be well-founded, that petitioner lacks a remedy under the Suits in Admiralty Act, we believe it appropriate for this Court to proceed with consideration of the question on which it granted certiorari. However, given the posture of the case, the Court may wish to consider dismissal of the petition as improvidently granted. The effect of such a dismissal would be to leave standing the court of appeals' judgment, which included a remand of the case to the district court for further proceedings (Pet. App. 33a-34a). Thus, a dismissal would result in a decision by the district court on whether petitioner has a remedy under the Suits in Admiralty Act. /8/ SUMMARY OF ARGUMENT 1. The language of 5 U.S.C. 8116(c) and the legislative intent underlying that section support the conclusion of the court of appeals that the FECA bars petitioner's third-party claims against the United States. a. Section 8116(c) provides that the liability of the United States for employment-connected injuries or death is limited to its obligation to provide statutory compensation. Nothing in that section explicitly excepts third parties from this broad limitation on the government's liability. Because waivers of sovereign immunity must be strictly construed and may not be implied, it must be presumed that Congress did not intend to except third party claims from the limited liability principle expressed in Section 8116(c). Exclusion of the government's liability under Section 8116(c) extends not only to employees and their beneficiaries, but also to "any other person otherwise entitled to recover damages" from the government. The phrase "any other person" is broad and unqualified, clearly encompassing third parties such as petitioner. Moreover, the entire tone of Section 8116(c), with its references to "all other liability" and "any other person," indicates that the section was intended to be comprehensive in its exclusion of liability. It would be inappropriate to apply the principle of ejusdem generis to restrict the statutory language, because it would produce a result that is out of harmony with the limited liability feature of the compensation scheme. The liability excluded under Section 8116(c) is that which arises "because of" a federal employee's injury or death. The court of appeals correctly found that petitioner's claims, which are based on the theory that the government's alleged "active" negligence was the primary cause of Bottorff's death, arose "because of" her death. If Bottorff had not been fatally injured, petitioner would not have had a claim for damages against the United States. This conclusion is not inconsistent with Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597 (1963). The Court held in Weyerhaeuser only that Congress did not intend the exclusive liability provision of the FECA to qualify the long-standing admiralty rule of divided damages in mutual fault collisions. Weyerhaeuser is not authority for the broad proposition that the FECA does not bar a third party's indemnity claim. The courts of appeals have recognized this distinction and have repeatedly rejected third-party claims such as the one advanced by petitioner. Petitioner asserts that there is a broadly defined exception to the general bar on third-party claims for cases in which the government owes the third party an "independent duty." This Court has not identified such an exception to the exclusive liability principle of the FECA, and the lower courts have not clearly defined either the existence or the scope of such an exception. In any event, a broad "independent duty" exception should be rejected because it would undermine the congressional intent in enacting Section 8116(c) to limit the government's liability as a result of employment-related accidents. b. The legislative history of Section 8116(c) and the overall statutory scheme confirm the conclusion that third-party claims are barred by the FECA. Although Congress did not expressly refer to third-party claims in amending the FECA in 1949, that silence does not suggest approval of such claims. Rather, it shows only that Congress's attention was focused on the then-prevailing problem of suits initiated by federal employees and their representatives. The legislative history stresses the importance of limiting the overall monetary liability of the United States. This important congressional objective would be frustrated if third-party claims were permitted, since such claims subject the government to the same potential damages liability and litigation expenses as claims by federal employees. On more than one occasion this Court has rejected third-party claims on the ground that permitting such claims would effectively nullify the limited liability feature of a statutory compensation scheme. See Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 112-115 (1974) (explaining the Court's rejection of third-party contribution claims against employers covered by the Longshoremen's and Harbor Workers' Compensation Act); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977) (explaining that allowing third-party claims would circumvent the limited liability feature of the Veterans' Benefits Act). This concern applies with equal or greater force in the case of the FECA. 2. Even if this Court accepts petitioner's argument that there is a broadly defined exception to the exclusive liability principle of Section 8116(c) for cases involving an "independent duty" owed by the government to a third party, petitioner has not demonstrated that such an independent duty exists in the present case. The court of appeals correctly concluded that the duties alleged by petitioner were not "independent," but were based on the government's duty to its employees and passengers. Petitioner did not present this conclusion as a question for review by this Court in the petition for certiorari and thus has waived its opportunity to raise the issue. In any event, it is clear that the court of appeals was correct in concluding that petitioner's third-party complaint does not allege the breach of any independent duty. At the trial level petitioner framed its third-party claim solely in terms of duties owed by the government to Bottorff. Petitioner's attempt on appeal to reframe its claim in terms of an independent duty cannot erase the essentially derivative nature of the claim. ARGUMENT The Federal Employees' Compensation Act, 5 U.S.C. 8101 et seq., originally passed in 1916, establishes a comprehensive workers' compensation scheme under which federal employees or their survivors receive benefits, regardless of considerations of fault, for employment-connected injuries or death. In 1949 Congress increased significantly the level of benefits available under the FECA and also amended the FECA to provide expressly that the government's liability for employment-connected injuries or death would be limited to its obligation to provide statutory compensation. The exclusive liability provision, now codified at 5 U.S.C. 8116(c), provides assurance to the government that it will not be faced with ordinary tort liability for any employee injuries or deaths covered by the compensation scheme. Section 8116(c) reads as follows: The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel. This provision excludes liability not only to federal employees and their beneficiaries, but also to "any other person otherwise entitled to recover from the United States * * * because of the injury or death * * *." The court of appeals correctly held that the unqualified language of the provision bars petitioner's third-party action under the Federal Tort Claims Act seeking indemnity from the government for damages paid to the estate of Ann Nash Bottorff, a federal employee who died in the crash of an Air Force airplane. With the exception of the Fourth Circuit, every other court of appeals that has considered the question also has concluded that the effect of Section 8116(c) is to bar third-party FTCA actions against the government. /9/ Despite this statutory and judicial authority, petitioner urges this Court to hold that it and other third parties alleged to be jointly responsible with the government for the injuries or death of a federal employee may sue the government for all or part of any damages paid to the employee. Petitioner's argument conflicts with the well-established rule that waivers of sovereign immunity must be unequivocally expressed and strictly construed, and that such waivers may not be implied. See, e.g., United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 590 (1941). The language of Section 8116(c) does not permit third-party claims, but rather precludes them. Moreover, the new rule sought by petitioner would frustrate the congressionally mandated limitation of liability established by Section 8116(c) and would be out of harmony with prior decisions in which this Court has addressed the relationship between third-party claims and statutory compensation schemes. Therefore, petitioner's proposal should be rejected. I. THE LANGUAGE OF 5 U.S.C. 8116(c) AND THE LEGISLATIVE INTENT UNDERLYING IT SUPPORT THE CONCLUSION THAT THE FECA BARS THIRD-PARTY CLAIMS FOR DAMAGES PAID TO FEDERAL EMPLOYEES IN CONNECTION WITH WORK-RELATED INJURIES OR DEATHS A. The Language of Section 8116(c) of the FECA Precludes Third-Party Claims for Damages Paid to Federal Employees in Connection with Work-Related Injuries or Deaths The court of appeals correctly concluded that the language of Section 8116(c) bars petitioner's third-party claim. That section establishes in broad terms a limitation on the liability of the United States for work-related injuries and deaths of federal employees. Nothing in Section 8116(c) explicitly excepts third parties from this broad limitation on liability. Nor does the Federal Tort Claims Act expressly indicate that Congress intended to permit third-party claims for damages paid to federal employees in connection with employment-connected injuries or deaths. The FTCA, like other waivers of sovereign immunity, must be strictly construed. See United States v. Kubrick, 444 U.S. 111, 117-118 (1979). A waiver of sovereign immunity may not be implied, but must be unequivocally expressed. See, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980). Thus, in the absence of an explicit exception from the limited liability principle contained in Section 8116(c), it must be presumed that Congress did not intend to waive sovereign immunity with respect to third-party claims for damages paid to federal employees in connection with employment-related injuries or deaths. Contrary to petitioner's contentions, the language of Section 8116(c) itself bars claims such as petitioner's. Petitioner comes within the phrase "any other person," as used in Section 8116(c); in addition, petitioner's claim arises "because of" the fatal injury to Bottorff. 1. Petitioner Comes Within the Phrase "Any Other Person," as That Phrase Is Used in Section 8116(c) Section 8116(c) extends not only to a federal employee and other specified individuals who could claim compensation as a result of injury or death to the employee, but also to "any other person otherwise entitled to recover damages from the United States." As the Second Circuit has noted, the reference to "any other person," read literally, plainly covers those who are not related to the employee. See Galimi v. Jetco, Inc., 514 F.2d 949, 953 (1975). Moreover, the tone of the section as a whole suggests that Congress meant the exclusion of the government's liability to be comprehensive. Section 8116(c) states that the liability of the United States under the FECA shall be "exclusive" and instead of "all other liability," not only to the employee and those related to him, but also to "any other person otherwise entitled to recover damages" from the government in a wide range of actions, including a proceeding "under a Federal tort liability statute." Congress could not have chosen more expansive or all-inclusive language. In particular, the references to "all other liability" and "any other person" suggest that no exceptions were intended. Section 8116(c) mentioned only one specific exception, which is addressed not to third parties, but rather to seamen. See Fedorenko v. United States, 449 U.S. 490, 512 (1981). Hence, the unequivocal language of the section suggests that Congress intended it to be a complete limitation on the government's liability as a result of a work-related accident suffered by a federal employee. Petitioner cites the canon of statutory construction known as ejusdem generis to support its argument that third parties are not included within the meaning of the term "any other person" (Pet. Br. 17-18). This principle, like other "generalized axioms of experience in construing legislation" (United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222 (1952)), may have relevance in some contexts, but, as petitioner acknowledges, its application is not appropriate in all instances. In this case, use of the phrase "any other person," rather than simply "other persons" or "any other similar situated person," indicates that Congress intended the exclusion of liability to be comprehensive. In Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980), for example, the Court concluded that it was inappropriate to apply the rule of ejusdem generis to limit the meaning of the phrase "any other final action" in Section 307(b)(1) of the Clean Air Act Amendments in 1977, 42 U.S.C. (Supp. IV) 7607(b)(1). The Court characterized Congress's language as "expansive," observing that Congress had expanded the ambit of the statute "to include not simply 'other final action,' but rather 'any other final action.' " 446 U.S. at 589. The Court held that "the phrase "any other final action,' in the absence of legislative history to the contrary, must be construed to mean exactly what it says, namely, any other final action." Ibid. Similar reasoning applies to Congress's use of the term "any other person" in Section 8116(c). Moreover, application of the ejusdem generis principle here would frustrate the limited liability feature of the statutory scheme. As this Court indicated in Gooch v. United States, 297 U.S. 124, 128 (1936), cited by petitioner (Pet. Br. 17), the principle of ejusdem generis should not be applied to prevent the choice of "that sense of the words which best harmonizes with the context and the end in view." /10/ In this case, as we discuss below (see pages 33-42, infra), it is the exclusion of third-party claims that best harmonizes with the context and the purpose of Section 8116(c) to limit the overall liability of the United States. See also United States v. Powell, 423 U.S. 87, 90-91 (1975) (rejecting application of the rule of ejusdem generis because "(t)o narrow the meaning of the language Congress used * * * would not comport with (the statutory) purpose"). Petitioner contends (Pet. Br. 17) that this Court in Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 600-601 (1963), recognized that the phrase "any other person" in the exclusive liability provision of the FECA "must be construed in light of the statute's prior enumeration of specified persons." This Court did not so state in Weyerhaeuser. Instead, the Court indicated that, in light of the traditional rule of statutory construction (i.e., ejusdem generis), the meaning of the statutory language could not be described as "plain." Id. at 601. This observation is not conclusive of the meaning of the language. Even if the words themselves do not indicate a plain meaning, the overall statutory scheme may give meaning to the words. In view of the fact that permitting third-party claims against the United States would frustrate the overall purpose of Section 8116(c), it would be inappropriate to apply the principle of ejusdem generis in a manner that would result in allowing such claims. /11/ 2. Petitioner's Claim Arises "Because of" the Injury or Death of a Federal Employee Section 8116(c) bars liability of the United States with respect to persons otherwise entitled to recover damages "because of the injury or death" of a federal employee. The court of appeals correctly found that petitioner's claim arose "because of" the fatal injury to Bottorff. The court noted that petitioner had alleged two basic duties sounding in tort -- a duty to use the aircraft in the manner contemplated by petitioner and the government and a duty to provide adequate maintenance of the aircraft. The court concluded that these two alleged duties were "clearly derivative," since they were based on the duties owed by the United States to its employees and passengers (Pet. App. 6a-7a). /12/ The court found that cases cited by petitioner in support of its contention that the alleged duties were "independent," running from the government to petitioner, did not in fact support this proposition (id. at 7a). The court declined to find any independent duty running from a purchaser to a manufacturer to use a product in such a way as not to bring liability upon the manufacturer (id. at 7a-8a). Hence, the court held that petitioner's claim was clearly "on account of," or "because of," Bottorff's death (id. at 8a). /13/ Judicial interpretation of the language of statutory compensation schemes other than the FECA supports the court of appeals' reading of the "because of" language. As this Court has observed (Weyerhaeuser Steamship Co. v. United States, supra, 372 U.S. at 602), the exclusive liability provision of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 905(a), is "nearly identical" to that of the FECA. /14/ In a case involving a third-party claim against an employer covered by the LHWCA, the Second Circuit remarked that a claim based on non-contractual tort indemnity "clearly would be 'on account of' the employee's injury." Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 720 (2d Cir. 1978) (Friendly, J.) /15/ As the court noted, the majority of state courts have construed workers' compensation laws in this manner. 579 F.2d at 720, citing 2A A. Larson, Workmen's Compensation Law Section 76.44, at 14-394 (1976). The court pointed out that in an indemnity action by a "passive" tortfeasor against an "active" tortfeasor, based on a theory of quasi-contract, "the origin of the action is in the injury itself and the circumstances surrounding it, and the liabilities that it creates and the indemnity obligation itself spring exclusively from the comparison of the relationship of the two parties to that injury." 579 F.2d at 720 n.1, quoting 2A A. Larson, Workmen's Compensation Law, supra, Section 76.10, at 14-293. The court of appeals was clearly correct in concluding that petitioner's claim arose "because of" Bottorff's death. Petitioner reached a settlement with Bottorff's representative in order to satisfy a claim for damages for Bottorff's injuries and death. Petitioner's third-party claim against the United States is for indemnity covering those very damages. But for Bottorff's representative's suit against petitioner, petitioner would not have had any claim against the United States. Petitioner's theory underlying its third-party claim is that the government was actively negligent in causing Bottorff's death, while petitioner was only secondarily liable for the death (see Pet. i). It seems inescapable that petitioner's claim is logically described as arising "because of" Bottorff's death. /16/ Petitioner nonetheless contends that Weyerhaeuser Steamship Co. v. United States, supra, compels the conclusion that Section 8116(c) does not bar its third-party claim. We question whether Weyerhaeuser was correctly decided in view of Congress's concern with limiting the overall liability of the government for employment-related injuries and deaths. See pages 33-42, infra, and page 24 note 18, infra. In any event, petitioner's expansive reading of Weyerhaeuser cannot be reconciled with the limited holding of that case. The Weyerhaeuser case arose out of a collision between a ship owned by Weyerhaeuser and a dredge owned by the United States Army. A federal civilian employee who had been on board the dredge sued Weyerhaeuser and obtained a settlement payment for injuries he had sustained in the collision. Weyerhaeuser brought an admiralty action against the government under the Public Vessels Act, claiming various items of property damage and also the amount of the settlement payment made to the federal employee. The district court found mutual fault and applied the traditional admiralty rule of divided damages for mutual fault collision cases to all items of damages, including the settlement payment. The question before this Court was whether the settlement payment should have been included in the total damages figure that was divided between the two parties. The Court held that inclusion of the settlement payment was proper, finding that the exclusive liability provision of the FECA did not qualify the long-standing admiralty rule of divided damages in mutual fault collisions. 372 U.S. at 600. In the course of reaching its decision the Court examined the exclusive liability provision of the FECA and found that neither the words of the provision nor the legislative history underlying it provided an answer to the question at hand. The Court found no evidence in the legislative history that Congress had been concerned with the rights of unrelated third parties, much less evidence of "any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases." 372 U.S. at 601. However, the Court did not stop there, but proceeded to analyze the divided damages rule. The Court examined its holding in an earlier admiralty case, Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124 (1956), which involved the exclusive liability provision of the LHWCA. In Ryan, the Court had held that the LHWCA exclusive liability provision did not bar a shipowner from obtaining reimbursement from a longshoreman's employer for damages recovered by the longshoreman, who was injured by the employer's negligence. The Court in Weyerhaeuser observed that its decision in Ryan had been "based upon the existence of a contractual relationship between the shipowner and the employer" and that the same result had been reached in subsequent cases, although the contractual relationship had been considerably more attenuated. 372 U.S. at 602-603. /17/ The Court acknowledged in Weyerhaeuser that there was no contractual relationship between the United States and Weyerhaeuser "governing their correlative rights and duties." However, the Court found it significant that for more than a century the admiralty rule of divided damages had "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." 372 U.S. at 603. The Court noted also that on an earlier occasion (The Chattahoochee, 173 U.S. 540 (1899)) it had held that the divided damages rule would prevail over the Harter Act, a statutory limitation on the liability of one shipowner with respect to an element of damages incurred by the other in a mutual fault collision. The Court characterized its holding in Weyerhaeuser as consistent with its earlier decision in The Chattahoochee. 372 U.S. at 604. This summary of the Court's rationale explains why Weyerhaeuser, even if a correct interpretation of the FECA, does not govern the present case. Weyerhaeuser arose in the unique setting of admiralty law and involved what appeared to the Court at that time to be a venerable and well-established rule for apportionment of liability in mutual fault collision cases. /18/ In the Court's view, the case involved breach of a duty owed by the government directly to Weyerhaeuser -- the duty to navigate safely so as not to collide with Weyerhaeuser's vessel. Although the Court mentioned the absence of any specific reference to third parties in the FECA or its legislative history, its principal inquiry appears to have been whether Congress meant to do away with the long-established admiralty rule of divided damages in mutual fund collision cases. At least in the absence of any compelling suggestion to the contrary, the Court concluded that Congress had not meant to alter settled law by doing so. The cases cited by the Court in support of its holding in Weyerhaeuser also involved well-established admiralty concepts that had predated the exclusive liability provision of the FECA. In Ryan the Court had considered the contractual obligation of a stevedoring contractor to a shipowner to stow cargo in a reasonably safe manner. The Court had emphasized that the action of the shipowner against the stevedore/employer was "not founded upon a tort or upon any duty which the stevedoring contractor owed to its employee(,)" but instead was grounded on a "purely consensual obligation owing to the shipowner" (350 U.S. at 131-132). The Court explained that the "obligation is not a quasi-contractual obligation implied in law or arising out of a noncontractual relationship. It is of the essence of petitioner's stevedoring contract." Id. at 133. The holdings of the three maritime cases described by the Court as involving more attenuated contractual relationships than that in Ryan did in fact rest on findings that a contractual relationship existed and was intended to benefit the third-party plaintiff. See Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 567 (1958); Crumady v. The J.H. Fisser, 358 U.S. 423, 428-429 (1959); Waterman Steamship Corp. v. Dugan & McNamara Inc., 364 U.S. 421, 424-425 (1960). The last case cited by the Court, The Chattahoochee, involved the same rule of divided damages in a mutual fault collision that was at issue in Weyerhaeuser. Petitioner urges the Court to read Weyerhaeuser as authority for the broad proposition that the FECA does not bar any third-party indemnity claim against the United States. But that simply is not what the Court held. Rather, Weyerhaeuser addressed only the divided damages rule in mutual fault collision cases. The Court believed that both Weyerhaeuser and Ryan (unlike most cases involving joint tortfeasors) involved duties owed by the third-party defendant directly to the third-party plaintiff -- in the first case, the duty to navigate safely, and, in the second case, the duty of due care arising from the contract to perform stevedoring services. The Court did not even suggest that its reasoning would extend to a case that did not involve the well-established body of "correlative rights and duties" running between two parties inherent in the divided damages rule or in a contractual relationship. 372 U.S. at 603. /19/ The narrowness of the Weyerhaeuser holding is confirmed by this Court's decisions in Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282 (1952), and Atlantic Coast Line R.R. v. Erie Lackawanna R.R., 406 U.S. 340 (1972). Both cases involved the exclusive liability provision of the LHWCA, which had been at issue in Ryan. In Halcyon Lines and Atlantic Coast Line the Court held that the exclusive liability feature barred third-party contribution claims against employers covered by the LHWCA. /20/ In Halcyon Lines the Court expressly declined to extend the holding of the Ryan case to non-collision maritime cases. 342 U.S. at 284-285. More than a decade after Weyerhaeuser was decided, the Court in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 112-114 (1974), reaffirmed the correctness of the holdings in Halcyon Lines and Atlantic Coast Line. That reaffirmation directly contradicts petitioner's reading of Weyerhaeuser. Finally, and perhaps most significant, if petitioner's view of Weyerhaeuser were correct, it is difficult to explain why the courts of appeals (with but one exception) have repeatedly construed the FECA to prohibit third-party claims such as the one advanced here. These courts have declined to extend Weyerhaeuser beyond maritime collision cases involving the divided damages rule. See, e.g., Kudelka v. American Hoist & Derrick Co., 541 F.2d 651, 659 (7th Cir. 1976); Galimi v. Jetco, Inc., 514 F.2d 949, 954-956 (2d Cir. 1975); Travelers Insurance Co. v. United States, 493 F.2d 881, 886-887 (3d Cir. 1974); Newport Air Park, Inc. v. United States, 419 F.2d 342, 344-345 (1st Cir. 1969); Murray v. United States, 405 F.2d 1361, 1364-1365 (D.C. Cir. 1968); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 402-404 (9th Cir.), cert. dismissed, 379 U.S. 951 (1954). /21/ Only the Fourth Circuit, in a case involving a third-party claim by a shipowner against the United States, has characterized Weyerhaeuser and Ryan as generally permitting third-party claims. In Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), cert. denied, 398 U.S. 958 (1970), the court concluded that a shipowner's third-party indemnity claim for damages paid to a Department of Agriculture inspector who had been injured on board the ship could proceed under any of several different tort and contractual theories. /22/ Petitioner suggests (Pet. Br. 19-23, 42) that there should be an exception to the limited liability principle of Section 8116(c) in a broad category of cases in which the United States owes some "independent duty" to a third party. Petitioner does not describe the precise scope of this proposed exception, and it is unclear whether it is to be defined according to federal or state law. Petitioner appears to argue that the holdings in Weyerhaeuser and Ryan should be extended to a broad category of non-maritime tort claims in which it is alleged that an "active" tortfeasor owed a duty of care to avoid imposing liability on a "passive" tortfeasor. No court has imposed liability on the United States on the basis of any broad "independent duty" exception of the type described by petitioner. /23/ The Court's holding in Weyerhaeuser was limited to the divided damages rule that governed the respective duties of two shipowners, and the Court's holding in Ryan concerned a contractual relationship involving services provided by an employer to a third party. In each of these cases the Court concluded that Congress had not meant to eliminate liability arising from these relationships when it enacted an exclusive liability provision. Thus, to the extent the Court has recognized that cases involving independent duties will not be barred by an exclusive liability provision, it has confined that principle to cases concerning a longstanding rule involving what the Court perceived as duties between two shipowners or duties arising out of a contractual obligation to provide services to a third party. The Court has never suggested that the result reached in Weyerhaeuser and Ryan would apply to any case involving a noncontractual indemnity claim that could be framed in terms of some obligation running from an actively negligent employer to a passively negligent third party. /24/ The sort of broad independent duty exception urged by petitioner would be contrary to both the language and purpose of the FECA. As Judge Friendly recognized in Zapico v. Bucyrus-Erie, supra, a claim such as petitioner's, based on an implied obligation running between an alleged "active" tortfeasor and an alleged "passive" tortfeasor, differs from the claim in Ryan, since it "clearly would be 'on account of' the employee's injury" under the terms of the exclusive liability provision of the LHWCA. 579 F.2d at 720. Likewise, creation of the broad independent duty exception urged by petitioner would contravene the terms of the FECA, which prohibits claims "because of" the employee's injury. /25/ Moreover, under petitioner's broad formulation a great many tort indemnity claims could be framed in terms of a duty running from the indemnitor to the indemnitee. Thus, in practice, a broadly defined independent duty exception would seriously undermine the congressionally mandated limited liability principle of the FECA. /26/ B. The Legislative Intent Underlying Section 8116(c) of the FECA Confirms That That Section Operates To Bar Third-Party Claims for Damages Paid To Federal Employees In Connection With Work-Related Injuries or Deaths The conclusion that the language of Section 8116(c) operates to bar third-party claims such as petitioner's is confirmed by the evidence of congressional intent underlying that section. The FECA has a dual purpose -- first, to provide a speedy and efficient remedy for federal employees, regardless of fault, and second, to limit the overall monetary liability of the government for employment-related injuries and deaths. Both the legislative history and the overall scheme of the FECA strongly suggest that Congress did not intend to create the sort of exception to the exclusive liability principle that is urged by petitioner in this case. Petitioner points to nothing in the legislative history that affirmatively authorizes third-party claims against the United States for damages arising out of injuries to federal employees. Rather, petitioner argues (Pet. Br. 23-31) that the repeated references in the 1949 legislative history to suits by employees or their beneficiaries and the absence of any discussion of suits by third parties must mean that Congress did not intend to bar third-party claims. But waivers of sovereign immunity must be grounded on stronger evidence than the fact that the dog did not bark in the night. See A.C. Doyle, "Silver Blaze", in The Complete Sherlock Holmes 347, 349 (Doubleday). /27/ In any event, there is a simple explanation why Congress in 1949 naturally focused on suits by employees and their beneficiaries, rather than on third parties, is considering amendments to the FECA. The legislative history indicates that it was the large number of suits filed by employees and their beneficiaries that had alerted Congress to the need for new legislation. See, e.g., H.R. Rep. No. 729, 81st Cong., 1st Sess. 14 (1949). Because federal employees themselves were suing the government, despite the FECA remedy, third-party claims presumably appeared to be of secondary significance. It is not even clear from the legislative history whether federal employees had included third parties as defendants in their suits against the government or whether any employee had such a third party without also suing the government. /28/ Therefore, Congress's failure expressly to mention third-party claims as a problem to which the exclusive liability provision was addressed says very little about how Congress would have regarded third-party claims in a world in which employees themselves were not permitted to sue the government. /29/ Moreover, the legislative history unequivocally reflects that one of Congress's primary concerns in enacting the exclusive liability provision was to limit the overall costs to the government as a result of employee injuries. The Senate report stressed that the exclusive liability provision would result in "savings to the United States, both in damages recovered and in the expense of handling the lawsuits." S. Rep. No. 836, 81st Cong., 1st Sess. 23 (1949). The threat of heavy potential tort liability had caused "considerable concern" among government agencies and instrumentalities. Ibid. Passage of the exclusive liability provision was perceived as removing this financial pressure: The saving to the Government by the elimination of costly and needless claims and litigation under the Federal Tort Claims Act, Suits in Admiralty Act, Public Vessels Act, and the like, which presently weigh heavily under the Government and involve considerable expense to defend will be eliminated, offsetting in substantial part the increased cost in compensation benefits. S. Rep. No. 836, supra, at 30. Congress's desire to limit the financial exposure of the government is similar to the concern underlying other statutory compensation schemes. As Justice Brandeis wrote for the Court in Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 159 (1932), the purpose of workers' compensation laws is to provide "not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate." Congress's efforts to limit the government's liability would be effectively nullified if third parties could recover from the government for damages paid in connection with injuries or death of a federal employee. /30/ Such third-party actions would subject the government to the same potential damages liability and litigation expense that the exclusive liability provision was designed to avoid. As one court has pointed out: A third-party action cannot be used as a vehicle to circumvent the statutory intent of limiting the Government's liability to the amount scheduled under FECA. If the rule were otherwise, the Government's immunity would be illusory, evaporating the instant that another wrongdoer could be found and brought in as a defendant. Thus, the United States would be forced to pay an amount in excess of its statutory obligation to the injured employee, albeit indirectly through a third-party plaintiff. Sheridan v. DiGiorgio, 372 F. Supp. 1373, 1376 (E.D. N.Y.), aff'd without opinion, 505 F.2d 727 (2d Cir. 1974), cert. denied, 420 U.S. 990 (1975). As the court recognized in Sheridan, it would be far-fetched to assume that Congress intended the extent of the government's liability to depend on whether an additional tortfeasor could be identified. But under petitioner's view, that would be the result: if the government were solely liable, it would pay only compensation benefits, but if it were only partially liable, with another tortfeasor, it would pay not only compensation benefits (subject to a limited right of recoupment under 5 U.S.C. 8132), but also all or part of a tort judgment entered against the other tortfeasor. /31/ Congress could not have contemplated such a peculiar result. This Court has recognized that third-party claims operate to undermine the limited liability feature of statutory compensation schemes and that they must therefore be barred. In Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra, the Court explained its reasons for rejecting third-party contribution claims filed against employers covered by the LHWCA. Describing its holding in Halcyon Lines v. Haenn Ship Corp., supra, the Court noted that it had taken "cognizance of the apparent trade-off in the Act between the employer's limitation of liability and the abrogation, in favor of the employee, of common-law doctrines of contributory negligence and assumption of risk." 417 U.S. at 112. The Court went on to observe that it had denied contribution in the circumstances of that case when "(c)onfronted with the possibility that any workable rule of contribution might be inconsistent with the balance struck by Congress in the Harbor Workers' Act between the interests of carriers, employers, employees, and their respective insurers." Ibid. The Court described its more recent opinion in Atlantic Coast Line R.R. v. Erie Lackawanna R.R., supra, in which it had followed Halcyon Lines in finding that a claim for contribution from an employer was barred by the exclusive liability provision of the LHWCA, by explaining that since the injured employee in Atlantic Coast Line had been entitled to claim compensation under the LHWCA, the employer "was accordingly entitled to the protective mantle of the Act's limitation-of-liability provisions." 417 U.S. at 115. The considerations articulated by the Court with respect to the LHWCA apply with at least equal force to the FECA. /32/ Congress struck the same sort of balance in the FECA as in the LHWCA. The government, like an employer covered by the LHWCA, is faced with no-fault liability for employment-related injuries and deaths. Because substantial tort judgments resulting from injury or death of federal employees constitute a threat to the public fisc, cf. Schweiker v. Hansen, 450 U.S. 785, 788-789 & n.4 (1981), the limited liability feature of the FECA is of even greater significance than the comparable provisions of the LHWCA. Thus, the government surely is entitled to at least the same "protective mantle" of limited liability as employers covered by the LHWCA. Indeed, this Court has found that, to achieve Congress's purpose, third-party actions against the United States must be barred even in the case of a statutory compensation scheme without an exclusive liability provision. In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), the Court considered whether the United States was liable under the FTCA to indemnify a manufacturer for damages it paid to a National Guardsman injured in the course of his duties. Following the accident the National Guardsman received a pension pursuant to the Veterans' Benefits Act, 38 U.S.C. 321 et seq. He also sued the manufacturer of the ejection system that had malfunctioned at the time of his injury. The manufacturer cross-claimed against the government, contending that any malfunction in the ejection system was due to faulty specifications, requirements and components provided by the United States or its contractors. The Veterans' Benefits Act contains no provision comparable to 5 U.S.C. 8116(c). However, in Feres v. United States, 340 U.S. 135 (1950), the Court held that an on-duty serviceman who is injured as a result of the negligent or wrongful acts of government officials may not recover damages from the United States under the FTCA. The Court justified its conclusion in Feres on the basis of the distinctively federal nature of the relationship between the government and members of the Armed Forces, the existence of a statutory no-fault compensation scheme (the Veterans' Benefits Act) that served as a substitute for tort liability, and the special nature of the relationship between a soldier and his superior. Id. at 141-144. See also United States v. Brown, 348 U.S. 110, 112 (1954). The Court in Stencel Aero considered the significance of the three factors cited in Feres in connection with a third-party indemnity claim against the government for damages paid to the serviceman. The Court's comments concerning the features of a statutory compensation scheme (431 U.S. at 673) are of particular significance to this case: A compensation scheme such as the Veterans' Benefits Act serves a dual purpose: it not only provides a swift, efficient remedy for the injured serviceman, but it also clothes the Government in the 'protective mantle of the Act's limitation-of-liability provisions.' See Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 115 (1974). Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, see Feres, 340 U.S. at 142-143, the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit petitioner's claim would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefits Act. As we stated in a somewhat different context concerning the Tort Claims Act: 'To permit (petitioner) to proceed . . . here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe that the (Federal Tort Claims) Act permits such a result.' Laird v. Nelms, 406 U.S. 797, 802 (1972). The Court's statements about the limited liability feature of the Veterans' Benefits Act are fully applicable to the FECA scheme. The exclusive liability provision of the FECA provides an "upper limit of liability" for the government with respect to employment-connected injuries or deaths. As in the case of the Veterans' Benefits Act, allowing third-party claims against the government for damages paid to a federal employee covered by the FECA would permit circumvention of the limitation: it would "judicially admit at the back door that which has been legislatively turned away at the front door." These considerations apply a fortiori to the FECA, since the exclusive liability feature of the FECA was expressly included by Congress. Because the exclusive liability provision of the FECA would be effectively nullified if third-party claims against the government were permitted, the Court should reject petitioner's contention that the FECA does not bar such claims. /33/ II. EVEN IF THE COURT RECOGNIZES A BROADLY DEFINED EXCEPTION TO THE EXCLUSIVE LIABILITY PRINCIPLE OF 5 U.S.C. 8116(c) FOR CASES INVOLVING AN "INDEPENDENT DUTY" OWED BY THE GOVERNMENT TO A THIRD PARTY, PETITIONER HAS NOT DEMONSTRATED THAT SUCH AN INDEPENDENT DUTY EXISTS IN THE PRESENT CASE As we have shown in Section I, both the language of Section 8116(c) and the underlying congressional intent point to the conclusion that third-party claims against the United States must be barred. Moreover, no broad exception to this principle exists for tort indemnity claims involving breach of a variety of "independent duties" owed by an "active" tortfeasor to a "passive" tortfeasor, because permitting these claims would be inconsistent with the exclusive liability feature of the FECA. But even if this Court were to recognize such a broadly defined exception to the exclusive liability feature, petitioner has not demonstrated that it falls within that exception. /34/ The court of appeals concluded that it was unnecessary to determine whether an "independent duty" exception to the FECA exists for noncontractual indemnity claims because none of the duties alleged by petitioner could be characterized as "independent" (Pet. App. 6a-8a). The court correctly described the alleged duties to use and maintain the aircraft properly as "clearly derivative," since they were based on duties owed by the government to its employees and passengers (id. at 6a-7a). The court observed that the cases cited by petitioner to support its contention that the alleged duties were "independent," running from the government to petitioner, did not in fact support that proposition (id. at 7a). The court expressed agreement with those courts that had declined to find any independent duty running from a purchaser to a manufacturer to use a product in such a way as not to bring liability upon the manufacturer (ibid.). The petitioner for certiorari presented no question concerning the court of appeals' conclusion that the duties alleged by petitioner were not "independent" in nature. In fact, the sole question presented to the Court referred to "secondary" liability of the petitioner and "active" negligence of the government -- terms that seem to suggest reliance on a joint duty owed to employees and passengers. /35/ The petition does not even make reference to any "independent" nature of the alleged duties, except in the last sentence of a footnote near the very end of the petition (Pet. 16 n.18). Given its silence on this subject and its failure to present the court of appeals' finding that the alleged duties were not independent in nature as a question for review by this Court, petitioner must be held to have waived the opportunity to raise the matter. See J.I. Case Co. v. Borak, 377 U.S. 426, 428-429 (1964); Sup. Ct. R. 21.1(a). In any event, it is clear that the court of appeals was correct in its characterization of the alleged duties. During the first five years of this litigation petitioner failed even to allege any independent duty owed by the government to it. In its third-party complaint petitioner framed its indemnity claim in terms of the government's alleged breach of its primary legal duty "to the plaintiff and his decedent" (Paragraph 10) and requested that the government be held liable either in whole or in proportion to the parties' "respective degrees of responsibility" (Paragraph 11) (J.A. 27-28). In both its pre-trial brief and its brief in support of the motion for summary judgment, petitioner endorsed the Fourth Circuit's view of the "true nature of a claim for non-contractual tort indemnity, i.e., the existence of a duty to the injured person," citing Wallenius Bremen G.m.b.H. v. United States, supra, 409 F.2d at 997 (C.A. App. 132, 167-168). In those same briefs, which were submitted almost four years after the third-party complaint had been filed, petitioner stated that the duty of the United States was "to provide a safe aircraft for the persons it offered to carry" (ibid.). Only in its brief on appeal, filed in December 1980, did petitioner begin to contend that the duties it alleged were "independent" of any duty the government owed to Bottorff. But, as the court of appeals recognized, petitioner's attempt to recharacterize these duties cannot disguise the fact that the duties are derivative in nature and that its claim therefore does indeed arise "because of" Bottorff's death. The scope of the independent duty concept invoked by petitioner is unclear. As noted in Section I, no court has been able to identify a set of facts that actually satisfies some general concept of an independent duty in the context of a claim for damages paid to a federal employee in connection with work-related injuries. Much of the case law involving independent duties has arisen under state law, and the law on this subject appears to vary from state to state. See, e.g., General Electric Co. v. Cuban American Nickel Co., 396 F.2d 89, 98 (5th Cir. 1968) (under Louisiana law noncontractual tort indemnity has been allowed only in the absence of any "active" negligence on the part of one party); Roberts v. American Chain & Cable Co., 259 A.2d 43, 50-51 (Me. 1969) (rejecting principle that an obligation to indemnify running from an "active" tortfeasor to a "passive" tortfeasor will be implied as a matter of law). See also 2A A. Larson, Workmen's Compensation Law, supra, Section 76.44. Thus the scope, and even the existence, of an independent duty exception varies according to the jurisdiction. /36/ The primary case on which petitioner relies in support of its independent duty theory (Pet. Br. 22-23) is Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969). In Burnside this Court held that a stevedore/employer that had paid LHWCA benefits to its employee was not limited to a subrogation remedy against the shipowner/tortfeasor, but could maintain a direct tort action against the shipowner based on the well-established duty of due care owed by the shipowner under maritime law. Id. at 415-417. The principle of exclusive liability under the LHWCA was not at issue, since it was the employer that sought to recover. Moreover, the duty identified in Burnside existed in the special context of maritime law and arose as part of an ongoing service relationship between the shipowner and the stevedore. /37/ Thus, the situation in Burnside was very different from petitioner's non-maritime case, in which there is nothing comparable to an ongoing service relationship that might give rise to a duty such as the one identified in Burnside. /38/ Petitioner attempts to analogize the alleged duties in the present case to the duty of one shipowner to another at issue in Weyerhaeuser (Pet. Br. 42). However, the divided damages rule discussed in Weyerhaeuser had existed for over a century and, at least at that time, appeared to the Court to delineate clearly the "correlative rights and duties" of the parties involved in a maritime collision involving mutual fault. In the Court's view, the duty at issue -- presumably the duty of safe navigation, i.e., the duty to avoid colliding with, and causing harm to, another shipowner's vessel -- clearly ran from one shipowner to another. Unlike petitioner, Weyerhaeuser would have had a direct claim against the government whether or not any federal employee had been injured. Because of the vulnerable status and clarity of the divided damages rule the Court concluded that Congress had not intended that its application should be barred by the exclusive liability provision of FECA. In contrast, the duty urged by petitioner in this case is broad and ill-defined. The alleged duty is not an obligation to avoid damaging the property of a third party; rather, it consists primarily of an obligation to take steps to avoid an accident that might result in imposition of liability on a third party that is not directly involved in the accident. At bottom, petitioner's claim rests not on any ongoing relationship between the government and a third party, but on existence of an obligation to avoid injury to a federal employee. Such a claim cannot be characterized as independent of a duty owed directly to the employee. Thus, assuming that some broadly defined independent duty exception to the general rule barring third-party claims is consistent with the FECA compensation scheme, petitioner has not established the breach of an independent duty in this case. As the court of appeals correctly observed, the duties alleged by petitioner cannot be separated from the duties owed by the government to its employees. However petitioner chooses to characterize those duties, they do not fall within any recognized exception to the limited liability principle of the FECA. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. REX E. LEE Solicitor General J. PAUL McGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General CAROLYN F. CORWIN Assistant to the Solicitor General WILLIAM KANTER KATHERINE S. GRUENHECK Attorneys AUGUST 1982 /1/ By agreement of the parties, the ruling in this case will govern petitioner's indemnity claims respecting other civilian government employees who were killed or injured in the plane crash. /2/ The Tucker Act, 28 U.S.C. 1346(a)(2), requires a contract claim against the United States in excess of $10,000 to be presented in the Court of Claims. /3/ The court's order referred to its earlier opinion, dated May 19, 1978 (Pet. App. 11a-19a), in which the court had considered the effect of Section 8116 on petitioner's third-party action. /4/ Petitioner and the government previously had entered into two agreements, which were filed in the district court under seal pursuant to a protective order. Those agreements dealt with petitioner's right to recover from the government for judgments entered against petitioner or settlement payments made by petitioner in cases arising out of the plane crash in the event that petitioner's third-party claim were found to be valid. The "proportion to be agreed upon," mentioned in the district court's final judgment, referred to the proportion established by these agreements. /5/ At this stage petitioner does not contest the disposition of its claim for contribution (Pet. 7 n.9). /6/ Petitioner's third-party complaint included a fifth count based on a contractual indemnity theory, but petitioner abandoned this claim at the district court stage. See page 3 & note 2, supra. /7/ "C.A. App." refers to the joint appendix filed in the court of appeals. /8/ If the district court were to hold that petitioner lacks a remedy under the Suits in Admiralty Act, petitioner could appeal that holding. If the court of appeals then affirmed the district court's conclusion that no remedy is available under the Suits in Admiralty Act, petitioner would be free again to petition for certiorari on the question that is currently before this Court. /9/ See Kudelka v. American Hoist & Derrick Co., 541 F.2d 651 (7th Cir. 1976) (indemnity); Galimi v. Jetco, Inc., 514 F.2d 949 (2d Cir. 1975) (contribution); Travelers Insurance Co. v. United States, 493 F.2d 881 (3d Cir. 1974) (indemnity and contribution); Newport Air Park, Inc. v. United States 419 F.2d 343 (1st Cir. 1969) (contribution); Murray v. United States, 405 F.2d 1361 (D.C. Cir. 1968) (contribution); Wien Alaska Airlines, Inc. v. United States, 375 F.2d 736 (9th Cir.), cert. denied, 389 U.S. 940 (1967) (indemnity); United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert. dismissed, 379 U.S. 951 (1964) (indemnity); Sheridan v. DiGiorgio, 372 F. Supp. 1373 (E.D.N.Y.), aff'd, 505 F.2d 727 (2d Cir. 1974), cert. denied, 420 U.S. 990 (1975) (indemnity and contribution); Panico v. Whiting Milk Co., 335 F. Supp. 315 (D. Mass. 1971) (indemnity and contribution); Busey v. Washington, 225 F. Supp. 416 (D.D.C. 1964)) (contribution); cf. Maddux v. Cox, 382 F.2d 119 (8th Cir. 1967) (approving Wiener in context of third-party contribution claim relating to injury of a serviceman). Contra, Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), cert. denied. 398 U.S. 958 (1970) (indemnity). /10/ In Gooch the Court determined that inclusion of the broad term "otherwise" in a statute that prohibited the holding of a person "for ransom or reward or otherwise" required the conclusion that holding an officer to prevent the captor's arrest was covered by the statute. 297 U.S. at 126, 128. Third National Bank v. Impac Ltd., Inc., 432 U.S. 312 (1977), also cited by petitioner (Pet. Br. 17), did not involve a comprehensive term placed at the end of a list. Instead, the Court was concerned with the meaning of the term "injunction," which had been "sandwiched in" between statutory references to "attachment" and "execution." The Court found it appropriate to look not only to the nearby words, but also to the general context and purpose of the statute, in order to determine the proper meaning of the term. Id. at 322-323. Neither case cited by petitioner requires application of the principle of ejusdem generis in this case. Rather, Gooch suggests that apparently comprehensive terms normally will be read as inclusive, while Impac stresses the importance of looking to the overall statutory scheme as a guide to the meaning of a term. Thus, both cases support the government's reading of Section 8116(c) rather than that of petitioner. /11/ In its petition for certiorari petitioner argued that its claim was not excluded by the terms of Section 8116(c) because the claim is "indirect" rather than "direct" (Pet. 11-12 & n.15). Petitioner does not repeat this argument in its brief. It is not even clear that the adjective "direct" is meant to apply to each of the actions enumerated in Section 8116(c), including proceedings under a federal tort liability statute. Indeed, petitioner could have brought its claim against the United States in a separate "direct" action, rather than through an "indirect" third-party action. Congress could not have meant to create a distinction that would allow third parties to escape the limitation of the government's liability by the technicality suggested by petitioner. /12/ The court concluded that a third duty alleged by petitioner -- the duty to provide petitioner with information about incidents involving safety of the aircraft -- sounded in contract rather than tort, but noted that petitioner had dropped its contractual indemnity claim at the district court stage (Pet. App. 6a-7a). /13/ The court of appeals referred to Professor Larson's discussion of state workers' compensation laws, many of which bar claims "on account of" an employee's injury. See 2A A. Larson, Workmen's Compensation Law Section 76.44, at 14-405 (1976). The original exclusive liability provision of the FECA used the term "on account of," but the phrase "because of" was substituted at the time the provision was codified in 5 U.S.C. The court of appeals' statement clearly was intended to refer to either formulation. /14/ What is now Section 8116(c) of the FECA was patterned in part on the exclusive liability provision of the LHWCA. See Federal Employees' Compensation Act Amendments of 1949: Hearings on H.R. 3191 Before a Special Subcomm. of the House Comm. on Education and Labor, 81st Cong., 1st Sess. 25 (1949) (Testimony of J. Donald Kingsley, Acting Administrator, Federal Security Agency). /15/ But cf. Pippen v. Shell Oil Co., 661 F.2d 378, 387 n.14 (5th Cir. 1981), citing Holden v. Placid Oil Co., 473 F. Supp. 1097, 1100-1101 (E.D. La. 1979). In Holden the court stated that tort indemnity that rests of the theory of passive-active or secondary-primary negligence would clearly be "on account of" an employee's injury, but that indemnity based on a duty sounding in tort that exists directly between the indemnitor and the indemnitee would not be "on account of" the injury. Ibid. The court in Holden was considering a third-party claim by a user against a manufacturer, rather than the reverse situation under consideration in this case. /16/ Moreover, Section 8116(c) provides that it is the government's liability "with respect to" the injury or death of a federal employee that is exclusive. Because petitioner's claim could not have arisen in the absence of Bottorff's death, and because the indemnity sought is measured in terms of damages paid to Bottorff's estate for her injuries and death, petitioner's claim against the government plainly is "with respect to" Bottorff's death. Thus, even if petitioner were correct in contending that its claim did not arise "because of" Bottorff's death, it could not show that the claim is not "with respect to" Bottorff's death. /17/ The result in Ryan has been specifically overruled by Congress. The 1972 amendments to the LHWCA abolished the vessel's right of indemnity against the stevedore. 33 U.S.C. 905(b). See Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 113 n.6 (1974). /18/ But see United States v. Reliable Transfer Co., 421 U.S. 397 (1975), in which the Court abandoned the rule of equally divided damages that was applied in Weyerhaeuser and replaced it with a rule of proportionate division according to fault. In light of the Court's decision in Reliable Transfer, it is unclear whether the result in Weyerhaeuser would be the same if it were decided today. /19/ Likewise, the Court in Ryan concluded only that a claim based on a contractual undertaking between an employee and a third party could not be considered to arise "on account of" an employee's injury. The Court did not reach the issue of the exclusionary effect of the LHWCA on a non-contractual right of indemnity. 350 U.S. at 132-133 & n.6. /20/ Petitioner's claim here is for indemnity, not contribution. However, as the Second Circuit has noted, "indemnity is only an extreme form of contribution," at least when it is based on the difference between "active" and "passive" negligence of the tortfeasors. See Slattery v. Marra Brothers, 186 F.2d 134, 138 (2d Cir.) (L. Hand, J.), cert. denied, 341 U.S. 915 (1951). /21/ A number of the courts of appeals have found that because Section 8116(c) removes the tort liability of the government to the injured employee, it also operates to eliminate the common liability that is the requisite for a contribution or indemnity claim. These courts have correctly concluded that the resulting absence of common liability to the federal employee prevents any third-party claim against the government for damages paid to the employee. See, e.g., Travelers Insurance Co. v. United States, supra; Newport Air Park, Inc. v. United States, supra; Murray v. United States, supra; Wien Alaska Airlines, Inc. v. United States, 375 F.2d 736 (9th Cir.), cert. denied, 389 U.S. 940 (1967); United Air Lines, Inc. v. Wiener, supra. But see Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994 (4th Cir. 1969), cert. denied, 398 U.S. 958 (1970) (concluding that common liability is unnecessary to support an indemnity claim). Petitioner argues (Pet. Br. 39-40) that these decisions are inapposite because they rest on a finding of an absence of common liability, rather than on direct interpretation of Section 8116(c). Contrary to petitioner's contention, the decisions rest on a basic consideration similar to that underlying the court of appeals' decision in the present case. That consideration is that all liability of the government "because of" a federal employee's death or injury is extinguished except for its obligation to pay compensation under the FECA. Therefore, the government cannot be subjected to additional liability under any theory, including that of joint liability. /22/ Bremen involved claims under both the Federal Tort Claims Act and the Suits in Admiralty Act. 409 F.2d at 995. The Fourth Circuit has not applied its Bremen holding in recent years. However, one judge on the Fourth Circuit has strongly criticized Bremen and has advocated en banc reconsideration of the rule established in that case. In Glover v. Johns-Manville Corp., 662 F.2d 225 (4th Cir. 1981), the court simply assumed that the FECA would not bar a noncontractual indemnity claim, which it found to be insufficient on other grounds. Id. at 228. Judge Hall, in a concurring opinion, stated that he was troubled by the fact that a tortfeasor was permitted to seek indemnity from the government despite the exclusive liability clause of the FECA. In Judge Hall's view, Bremen had "misinterpreted the authorities upon which it relied, and * * * failed to recognize the importance of exclusivity provisions" such as that contained in the FECA. Id. at 233. Petitioner, by citing (Pet. Br. 41) Sandoval v. Mitsui Sempaku K.K. Tokyo, 460 F.2d 1163 (5th Cir. 1972), a maritime case, seems to suggest that the Fifth Circuit has joined the Fourth Circuit in its minority view. However, Sandoval simply follows this Court's holding in Ryan that a shipowner's indemnity claim in an admiralty suit could be sustained on an implied warranty theory. The court in Sandoval also stated in dictum that the shipowner could recover from the federally chartered third-party defendant on a tort indemnity basis. The court did not cite the Fourth Circuit's Bremen decision in support of its conclusion that the FECA did not bar the claim before it. 460 F.2d at 1169. /23/ As petitioner acknowledges (Pet. Br. 20-21 n.15), its independent duty theory rests on the principle of an "implied-in-law" contract or "quasi-contract" that may be implied between an "active" tortfeasor and a "passive", or secondary, tortfeasor. It is not at all clear that the United States has waived sovereign immunity with respect to such claims. Under the Federal Tort Claims Act the United States has waived sovereign immunity only with respect to certain tort claims. 28 U.S.C. 2674. Jurisdiction under the Tucker Act (28 U.S.C. 1346(a), 1491) extends only to express contracts and implied-in-fact contracts, not to implied-in-law contracts. Army and Air Force Exchange Service v. Sheehan, No. 80-1437 (June 1, 1982), slip op. 10 n.10; Hatzlachh Supply Co. v. United States, 444 U.S. 460, 465 n.5 (1980). A few courts of appeals have used the terms "independent duty" or "independent relationship" to describe a possible exception to the general principle that third-party claims are barred by the FECA. In each case the courts stressed that some sort of independent relationship between the government and the third party would be necessary for such an exception to apply. See, e.g., Travelers Insurance Co. v. United States, supra, 493 F.2d at 886 (most courts have found that the FECA precludes a third-party action unless there exists a relationship between the third party and the government independent of the tortious event); Murray v. United States, supra, 405 F.2d at 1367 (need for legal relationship arising out of facts and circumstances other than linkage with same victim). Cf. Slattery v. Marra Brothers, supra, 186 F.2d at 138 (right to indemnity in context of New Jersey Workmen's Compensation Act requires some legal transactions between third party and employer other than that of joint tortfeasors, such as contract). However, no court has actually found that the facts before it justified application of an independent duty exception to the limited liability feature of the FECA. See, e.g., Murray v. United States, supra, 405 F.2d at 1367-1368 (concluding that the third-party plaintiff had not actually tendered any claim for non-contractual indemnity). In at least some cases it appears that the courts referred to nothing more than the narrow situations covered by Weyerhaeuser and Ryan. See, e.g., Travelers Insurance Co. v. United States, supra, 493 F.2d at 886 (specifically referring to Weyerhaeuser and Ryan as examples of the existence of a relationship independent of the tortious event); Slattery v. Marra Brothers, supra, 186 F.2d at 138-139 (finding no independent relationship between "active" and "passive" tortfeasors). /24/ Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404 (1969), cited by petitioner in support of its broad independent duty theory (Pet. Br. 22), does not establish any exception to the exclusive liability feature of the FECA. Burnside involved not a third-party claim against an employer, but the reverse situation -- an employer's claim against a third party. The Court held that the employer was not limited to the subrogation remedy under the LHWCA, but could pursue a separate tort action against a shipowner, based on the shipowner's duty of due care to the stevedore/employer, to recover the amount of compensation payments caused by the shipowner's negligence. 394 U.S. at 414-418. As the Court itself recognized, the holding in Burnside is unrelated to the exclusive liability feature of the LHWCA (id. at 421-422 n.26). /25/ Most states have rejected any exception to the exclusive liability feature of workers' compensation statutes for noncontractual indemnity claims of the sort advanced by petitioner. See 2A A. Larson, Workmen's Compensation Law, supra, Section 76.44, at 14-394 to 14-399 n.81, 81.1. At a minimum, it is clear that the federal government should not be held subject to third-party claims in those states in which an exclusive liability provision of a state workers' compensation statute would bar a similar claim against a private employer. /26/ In any event, as discussed below in Section II, the court of appeals correctly concluded that petitioner failed to show any independent duty running between the government and petitioner. Thus, even if this Court were to recognize an exception to the exclusive liability principle of Section 8116 (c) in the case of breach of any independent duty, petitioner would not prevail in this case. /27/ Contrary to petitioner's suggestion, not all statements in the 1949 legislative history refer only to suits by employees or their beneficiaries. See, e.g., S. Rep. No. 836, 81st Cong., 1st Sess. 23 (1949); H.R. Rep. No. 729, 81st Cong., 1st Sess. 14 (1949). Petitioner quotes (Pet. Br. 24) the initial version of H.R. 3191, the bill eventually enacted as the exclusive liability provision in the 1949 amendments. The language of the bill does not indicate that Congress intended to permit third-party actions that would frustrate the limited liability principle established by the provision. See H.R. 3191, 81st Cong., 1st Sess. Section 201, reprinted in Federal Employees' Compensation Act Amendments of 1949: Hearings on H.R. 3191 Before a Special Subcomm. of the House Comm. on Education and Labor, supra, at 7. Moreover, it is significant that the original reference to "exclusive remedy" eventually was removed and replaced by the reference to the exclusive "liability of the United States." The change shifted the focus from the rights of claimants to limitation of the overall financial exposure of the United States. /28/ Petitioner argues (Pet. Br. 28-29) that Congress's failure to refer to third-party claims must be significant because third-party actions for indemnity and contribution against the United States were well-established by 1949. None of the maritime cases cited by petitioner involved a third-party claim for damages paid in connection with injuries or death of a federal employee covered by a statutory compensation scheme. Even more significant, by 1949 five federal courts had held that the Federal Tort Claims Act did not authorize joinder of the United States in a suit with other defendants. See Prechtl v. United States, 84 F. Supp. 889 (W.D.N.Y. 1949); Sappington v. Prencipe, 87 F. Supp. 357 (D.D.C. 1948); aff'd and rev'd in part, 182 F.2d 102 (D.C. Cir. 1950); Donovan v. McKenna, 80 F. Supp. 690 (D. Mass. 1948); Uarte v. United States, 7 F.R.D. 705 (S.D. Cal. 1948); Drummond v. United States, 78 F. Supp. 730 (E.D. Va. 1948). Other courts had taken the contrary view. See Note, Joinder of the Government Under the Federal Tort Claims Act, 59 Yale L.J. 1515, 1516 (1950) ("whether the FTCA permits joinder of the Government * * * remains undetermined"). The Court granted certiorari in United States v. Yellow Cab Co., 340 U.S. 543 (1951), in order to resolve the conflict between the Third Circuit and the District of Columbia Circuit concerning whether the United States could be impleaded as a third-party defendant under the FTCA. Id. at 545-546. /29/ Petitioner asserts (Pet. Br. 30 n.24) that by 1949 most courts had concluded that the exclusive liability provision of the LHWCA did not bar contribution or indemnity claims against a longshoreman's employer by a third party liable in tort for the longshoreman's injuries. However, in the only court of appeals opinion cited by petitioner, the Second Circuit had initially held that a claim for contribution was barred by the exclusive liability provision. Porello v. United States, 153 F.2d 605, 607 (2d Cir. 1946), aff'd in part, rev'd in part, 330 U.S. 446 (1947). On rehearing, the court left the matter open since it appeared to be unnecessary to resolution of the case, but indicated that it was doubtful whether the authority presented to it would overcome its earlier conclusion. 153 F.2d at 609. At least one district court also had held by 1949 that a claim for contribution was barred by the exclusive liability provision of the LHWCA. See Johnson v. United States, 79 F. Supp. 448, 449 (D. Ore. 1948) (noting that allowing impleader of the employer would be "like opening a hole in a dike," since it would destroy the basic principle of compensation). Thus, the record in the federal courts would not have persuaded Congress that a uniform rule existed in 1949. Three years later, in Halcyon Lines v. Haenn Ship Corp., supra, this Court held that claims for contribution from an employer covered by the LHWCA were barred. /30/ Cf. Aparicio v. Swan Lake, 643 F.2d 1109, 1115 (5th Cir. 1981), in which the court observed that the judicially-created Ryan rule that had permitted third-party contractual indemnity claims against an employer covered by the LHWCA had "effectively nullified" the exclusive liability provision of that Act. Cf. also H. Friendly, Federal Jurisdiction: A General View 131-132 (1973) (noting that under the Ryan rule the ship had become merely a conduit for enabling the longshoreman to recover from his employer, thereby frustrating the intent of the LHWCA). /31/ As petitioner notes (Pet. Br. 20 n.15), tort indemnity, unlike contribution, involves shifting all of the damages to the "active" tortfeasor. Because of agreements entered into by petitioner and the government (see pages 4-5 note 4, supra), the result of a victory for petitioner in this Court would be that the government would pay only a percentage of the settlement amount paid by petitioner by Bottorff. However, in cases in which no such agreement exists, a third party that prevailed on a tort indemnity claim would succeed in shifting to the government all damages paid to the employee. /32/ This Court has noted the similarity of the exclusive liability provisions of the LHWCA and the FECA. See Weyerhaeuser Steamship Co. v. United States, supra, 372 U.S. at 602. The Second Circuit in Galimi v. Jetco, Inc., supra, concluded that the Court's analysis in Cooper Stevedoring embodied the "judgment that exclusive remedy provisions such as that in the original Longshoremen's and Harbor Workers' Act and the one (in the FECA) shield an employer from a third-party suit for contribution." 514 F.2d at 956. /33/ Petitioner contends that interpretation of Section 8116(c) to bar its indemnity claim would be inequitable. Such alleged inequity does not justify deviation from Congress's intent. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 270-271 (1979). Moreover, petitioner, a sophisticated government contractor, has long been aware that Section 8116(c) and its predecessors do not explicitly exempt third-party claims and that most courts of appeals have held that third-party claims such as petitioner's are barred. Despite its frequent references to itself as a "stranger" to the FECA compensation scheme, petitioner is no stranger to the areas of government procurement or of potential product liability and presumably could have negotiated (and in fact did negotiate, see page 3, supra) some form of contractual indemnity provision. Compare Stencel Aero Engineering Corp. v. United States, supra, 431 U.S. at 674 & n.8. Of course, any claim that the exclusive liability feature of the FECA is unfair to third parties is most appropriately addressed to Congress in the first instance. It is Congress that struck the original balance in the FECA scheme, and Congress is therefore in the best position to consider whether it is appropriate to alter that balance. See, e.g., Halcyon Lines v. Haenn Ship Co., supra, 342 U.S. at 286-287. Congress had not been inactive in this area. In recent years legislation that would provide for indemnification of government contractors in product liability suits filed by government employees has been introduced. See H.R. 1504, 97th Cong., 1st Sess., reprinted in Government Contractors Product Liability Act: Hearing on H.R. 1504 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 97th Cong., 1st Sess. (1981); H.R. 5351, 96th Cong., 1st Sess. (1979), reprinted in Government Contractors Product Liability Act: Hearing on H.R. 5351 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 96th Cong., 2d Sess. (1980). See also 42 U.S.C. 2210 (providing for indemnification for liability from nuclear incidents for licensees under the Atomic Energy Act of 1954); 10 U.S.C. 2354 (authorizing use of contractual indemnification provisions to cover unusually hazardous risks in connection with military research and development contracts); 42 U.S.C. (Supp. IV) 2458b (authorizing use of contractual indemnification provisions in connection with use of space vehicles); 50 U.S.C. 1431, as implemented by Exec. Order No. 10789 (1958) (authorizing use of contractual indemnification provisions to cover unusually hazardous or nuclear risks in connection with national defense). However, Congress has not acted to reverse legislatively the majority view that Section 8116(c) bars third-party claims for damages paid to federal employees, although the FECA has been amended on several occasions during the last decade. See, e.g., Act of Dec. 5, 1980, Pub. L. No. 96-449, Section 421, 94 Stat. 2608; Act of Sept. 7, 1974, Pub. L. No. 93-416, 88 Stat. 1143. /34/ Petitioner contends (Pet. Br. 21 n.17) that "the Government has conceded that, but for the FECA, Lockheed is entitled to tort indemnity based on breach of the asserted duties." This statement is incorrect. The government agreed only that if its legal defenses to petitioner's third-party claim were ultimately found to be insufficient it would not contest liability, but would consent to pay a percentage of the damages paid by petitioner to federal employees or their representatives. See Supplemental Statement of Facts to the Brief for the Appellant, filed under seal on October 16, 1980. The agreements were entered into during the district court proceedings, prior to petitioner's assertion of its "independent duty" theory. The government also joined petitioner in filing a joint statement of material facts as to which there is no genuine issue, dated November 19, 1979 (J.A. 92-104). That joint statement does not include any representatives concerning duties owed by the government to petitioner or vice versa. /35/ Indeed, petitioner's characterization of its claim as an "indirect third-party action" (Pet. 12 n.15) indicates that the claim is derivative in nature, not independent of Bottorff's death. /36/ Petitioner asserts that an independent duty can be implied between an "actively" negligent tortfeasor and a "passively" negligent tortfeasor (Pet. 16-17 n.18). Neither court below made a finding on the basis of the stipulated facts that petitioner was "passively" negligent and the government "actively" negligent. /37/ See also Sandoval v. Mitsui Sempaku K.K. Tokyo, supra, 460 F.2d at 1168, in which the Fifth Circuit identified an independent duty owed directly by an employer to a shipowner to exercise reasonable care to avoid the foreseeable harm of the shipowner's liability to the employee. As in Burnside, the duty arose in a maritime context and in connection with an ongoing service relationship between the employer and the shipowner at the time of the accident. /38/ Petitioner cites three other cases in support of its argument that its claim is based on an independent duty and thus does not arise "because of" Bottorff's death (Pet. Br. 23). Two of the cases, American District Telegraph Co. v. Kittleson, 179 F.2d 946 (8th Cir. 1950), and Rich v. United States, 177 F.2d 688 (2d Cir. 1949), are distinguishable on the ground that the duties at issue arose from a contractual relationship. See Slattery v. Marra Brothers, 186 F.2d 134, 138, 139 (2d Cir.) (L. Hand, J.), cert. denied, 341 U.S. 915 (1951). The third case, Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E. 2d 567, 568 (1938) is distinguishable on the ground that the employer actually had committed an independent tort against the third party, (i.e., negligent breaking of a pipeline maintained by the third party. See Slattery v. Marra Brothers, supra, 186 F.2d at 138. In any event, the Westchester case represents a minority position among the states. See 2A A. Larson, Workmen's Compensation Law, supra, Section 76.44. As the court of appeals correctly noted (Pet. App. 7a), there is little support for petitioner's claim that a buyer owes to a seller a duty under tort law to use the item purchased in a manner so as to protect its employees from harm. See, e.g., White v. Johns-Manville Corp., 662 F.2d 243, 247-248 (4th Cir. 1981); Zapico v. Bucyrus-Erie Co., supra, 574 F.2d at 723 (rejecting theory of liability of user to manufacturer for former's negligent use of latter's defective product); Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1219 (9th Cir.1974) (argument that purchaser had independent duty to avoid subjecting manufacturer to risk of tort liability "turns indemnity on its head"); 2A A. Larson, Workmen's Compensation Law, supra, Section 76.44, at 14-402 ("reverse warranty" theory distorts concept of implied warranty "out of all relation to reality"). But see Dole v. Dow Chemical Co., 30 N.Y. 2d 143, 282 N.E. 2d 288, 331 N.Y.S. 2d 382 (1972). In some cases, such a duty is considered to sound in contract rather than tort. See, e.g., White v. Johns-Manville Corp., supra, 662 F.2d at 247-248.