Respondent Brada Miller and petitioner Transamerican, two
licensed motor carriers, made an agreement whereby respondent
leased a vehicle to petitioner, to be operated by respondent's
driver over petitioner's authorized route. Under the lease,
petitioner was to
"have the control and responsibility for the operation of said
equipment in respect to the public, shippers and Interstate
Commerce Commission,"
but respondent agreed to indemnify petitioner for claims arising
out of respondent's negligence, though the indemnification clause
specifically did not limit petitioner's liability to the public in
connection with the use of the leased equipment. While the vehicle
was being operated under the lease, an accident occurred, and a
suit was brought against the carriers predicated on the negligence
of the vehicle's driver. Petitioner settled the claim, and then
sought recovery against respondent in District Court under the
indemnification clause. That court granted respondent's motion for
summary judgment on the ground that the clause contravened an ICC
regulation requiring that lease agreements between regulated
carriers must contain a written undertaking that "control and
responsibility for the operation of the equipment shall be that of
the lessee." The Court of Appeals affirmed, reasoning that, since
respondent, contrary to the intent of the regulation, had agreed to
bear the costs of its own negligence, it had assumed control and
responsibility, and that the indemnification clause was
ineffective.
Held: The indemnification agreement entered into by
petitioner and respondent does not contravene ICC's "control and
responsibility" requirement. Pp.
423 U. S.
35-43.
(a) An indemnification agreement violates the ICC requirement
only if the lessor was in control of the service provided, as well
as of the vehicle's physical operation. Here, control over the
vehicle, as agreed between the parties, remained in petitioner, and
the furnishing of respondent's driver involved only ministerial
Page 423 U. S. 29
control, and not delegation of responsibility for the shipment.
Pp.
423 U. S.
38-40.
(b) Nor did the indemnification provision conflict with ICC
safety regulations, because such a provision, which places ultimate
financial responsibility on the negligent lessor, may tend to
increase, rather than diminish, protection of the public. P.
423 U. S.
41.
497 F.2d 926, reversed and remanded.
BLACKMUN, J. . delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., concurred in the judgment.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this case, we are concerned with the "control and
responsibility" requirement of the Interstate Commerce Commission's
equipment leasing regulation, 49 CFR § 1057.3(a) (1975), [
Footnote 1] applicable to authorized
motor carriers.
Page 423 U. S. 30
The question before us is narrow: does the "control and
responsibility" requirement prohibit, as against public policy, an
agreement between carriers by which the lessor indemnifies the
lessee for loss caused by the negligence of the lessor?
I
On January 19, 1968, respondent Brada Miller Freight Systems,
Inc., entered into an agreement with petitioner Transamerican
Freight Lines, Inc., whereby Brada Miller, as lessor, leased to
Transamerican, as lessee, a tractor and trailer operated by driver
H.L. Hardrick for a trip from Detroit, Mich. to Kansas City, Mo.
[
Footnote 2] Transamerican held
authority from the ICC to serve those points, and the leased
equipment was to be operated over Transamerican's routes "without
deviation." Brada Miller represented that, as § 1057.3(a)
specifies, Kansas City was "in the direction of a point" which it
was "authorized to serve." The lease recited that the equipment
was
Page 423 U. S. 31
"to be operated only by a competent employee" of Brada Miller,
"in which event said employee . . . shall be the representative of"
Brada Miller. App. 90; Brief for Petitioner A-2. It further
provided
"4. It is mutually understood and agreed, that [Transamerican]
during the term of this lease shall have the control and
responsibility for the operation of said equipment in respect to
the public, shippers and Interstate Commerce Commission for such
period that said equipment is operated under the terms of this
lease as provided in Paragraph 1 hereof."
"
* * * *"
"9. . . . [Brada Miller] hereby agrees to indemnify and save
harmless [Transamerican] from any and all claims, suits, losses,
fines or other expenses arising out of, based upon or incurred
because of injury to any person or persons, or damage to property
sustained or which may be alleged to have been sustained by reason
of any negligence or alleged negligence on the part of [Brada
Miller], its agents, servants or employees. . . . Nothing in this
Paragraph 9 contained shall be construed to in anywise limit the
liability of [Transamerican] to the public in connection with the
use of said equipment under this Agreement."
Ibid.
Hardrick was a Brada Miller driver and employee. Pursuant to the
Commission's regulation, 49 CFR § 1057.4(c) (1975), Transamerican,
before the trip, made the required inspection of the equipment and
filed a report that it was safe. App. 66-67, 89, 90. It checked the
medical report on Hardrick.
Id. at 75. It affixed to the
door of the tractor an identification placard stating that it was
operated by Transamerican and reciting its number assigned by the
ICC; the placard remained so affixed throughout the trip.
Id. at 55-58, 665.
Page 423 U. S. 32
On the way to Kansas City, and near Smithboro, Ill., the vehicle
driven by Hardrick and an automobile operated by Sandra Wear
collided. Wear was injured. Transamerican reported the accident on
the ICC's prescribed form. Wear later filed suit in the United
States District Court for the Southern District of Illinois against
both Brada Miller and Transamerican. She alleged that the accident
was caused by Hardrick's negligence. Brada Miller and Transamerican
filed cross-claims against each other in that litigation. During
the trial, Wear settled her claim against Transamerican for $80,000
and dismissed her cause of action with prejudice. [
Footnote 3] Transamerican then amended its
cross-claim by pleading the settlement and seeking recovery from
Brada Miller for the settlement amount plus the expenses incurred
in defending the Wear action.
Brada Miller, in due course, moved for summary judgment against
Transamerican. It did so on the ground that
"the pleadings, depositions, answers to interrogatories and
exhibits on file show that the indemnity provision of the trip
lease . . . is contrary to public policy, and is
unenforceable."
Id. at 91.
The District Court granted Brada Miller's motion. In an
unreported opinion, the court cited § 204(e) of the Interstate
Commerce Act, 24 Stat. 379, as added, 49 Stat. 543, as amended, 49
U.S.C. § 304(e), [
Footnote
4]
Page 423 U. S. 33
which authorizes the Commission to prescribe regulations with
respect to motor carriers' use, under leases, of motor vehicles not
owned by them, and § 1057.4(a)(4) of the regulations, [
Footnote 5] issued pursuant to that
authority, as governing the lease between Brada Miller and
Transamerican. It then followed what it regarded as precedent that
had been established by its controlling court in
Alford v.
Major, 470 F.2d 132 (CA7 1972). In
Alford, the
Seventh Circuit had concluded:
"Therefore, since the indemnification clause would permit Major
to circumvent the regulations' requirement that leased carriers
exert actual control over the leased equipment and the borrowed
drivers, we
Page 423 U. S. 34
find that the indemnification clause is unenforceable."
Id. at 135.
The Court of Appeals affirmed with an unpublished opinion.
Wear v. Transamerican Freight Lines, 497 F.2d 926 (CA7
1974). It, too, relied on 49 U.S.C. § 304(e), on 49 CFR § 1057.4,
and on its earlier
Alford case. It emphasized its
observation in
Alford, 470 F.2d at 135, quoting the trial
court in that case, that the intent of the regulations
"'was to make sure that licensed carriers would be responsible
in fact, as well as in law, for the maintenance of leased equipment
and the supervision of borrowed drivers.'"
Pet. for Cert. A-10. It felt that "control and cost bearing"
were related, and that the regulations required the party with the
duty of responsibility and control under the statute "to
internalize the cost of any breach of this duty."
Id. at
A-12. It reasoned that, inasmuch as Brada Miller had agreed to bear
the costs of its own negligence, it had assumed control and
responsibility, and that the indemnification clause therefore was
ineffective.
Because the Court of Appeals asserted,
ibid., that
Alford could not be distinguished from
Allstate Ins.
Co. v. Alterman Transport Lines, Inc., 465 F.2d 710 (CA5
1972), we granted certiorari. [
Footnote 6] 420 U.S. 971 (1975).
Page 423 U. S. 35
II
The issue before us, therefore, is whether the indemnification
provision in the lease agreement between Brada Miller and
Transamerican violates the Commission's applicable regulation and,
as a consequence, is contrary to public policy and unenforceable.
In order to place the issue in proper perspective, we note,
initially, certain general aspects of motor carrier operations.
Demand for a motor carrier's services may fluctuate seasonally
or day by day. Keeping expensive equipment operating at capacity,
and avoiding the waste of resources attendant upon empty backruns
and idleness, are necessary and continuing objectives. It is
natural, therefore, that a carrier that finds itself short of
equipment necessary to meet an immediate demand will seek the use
of a vehicle not then required by another carrier for its
operations, and the latter will be pleased to accommodate. Each is
thereby advantaged.
A lease of equipment, which is permissible under defined
circumstances, must be distinguished, however, from a sharing or
lending of operating authority, which is not permitted. Under the
Motor Carrier Act, 1935,
Page 423 U. S. 36
49 Stat. 543, as amended, 49 U.S.C. §§ 301-327, only a properly
certificated carrier may haul freight in interstate or foreign
commerce. Each certificate is limited as to routes, destinations,
and classes of freight. 49 U.S.C. 308(a).
See Nelson, Inc. v.
United States, 355 U. S. 554
(1958);
Kreider Truck Service, Inc., Extension -- Lard
Oils, 82 M.C.C. 565 (1960). As a consequence, the Commission
has developed and designed its responsibility and control
regulations in order to prevent a sharing of operating authority
under the guise of a lease of equipment. With only special
exceptions, the regulations require the lessee to ship under its
own bill of lading, to compensate the lessor on an established
basis, to inspect the equipment, and to assume full control and
responsibility for the operation. 49 CFR §§ 1057.3(a) and 1057.4.
The regulations, however, do not require the lessee itself to
operate the equipment; the lessor may perform that task by
furnishing the driver with the equipment. But the lessee must
assume the responsibility for the shipment and have full authority
to control it.
III
The regulations were formulated in the 1950's in the rulemaking
procedure known as
Ex parte No. MC-43. See Lease and
Interchange of Vehicles by Motor Carriers, 51 M.C.C. 461
(1950); 52 M.C.C. 675 (1951); 64 M.C.C. 361 (1955); and 68 M.C.C.
553 (1956). The initial formulation was sustained, against a
variety of attacks, in
American Trucking Assns. v. United
States, 344 U. S. 298
(1953). There, the Court outlined as background "the existing
conditions of the motor truck industry and its regulation."
Id. at
344 U. S. 302.
It referred to the development of the practice by authorized
carriers of using nonowned equipment by interchange and by leasing.
Id. at
344 U. S. 303.
"The use of nonowned equipment
Page 423 U. S. 37
by authorized carriers is not illegal, either under the Act or
the rules under consideration."
Id. at
344 U. S.
303-304 (footnote omitted). But it noted that the record
in that case contained proof of abuses and evasions of certificated
authority and of safety requirements, difficulties in the fixing of
the lessee's responsibility, and other problems.
Id. at
344 U. S.
304-306.
After a detailed examination of the proceedings of the
Commission that resulted in the promulgation of the protective
provisions at issue in this case, the Court observed:
"The purpose of the rules is to protect the industry from
practices detrimental to the maintenance of sound transportation
services consistent with the regulatory system,"
and to assure safety of operation.
Id. at
344 U. S. 310.
"So the rules in question are aimed at conditions which may
directly frustrate the success of the regulation undertaken by
Congress."
Id. at
344 U. S. 311. It is apparent, therefore, that sound
transportation services and the elimination of the problem of a
transfer of operating authority, with its attendant difficulties of
enforcing safety requirements and of fixing financial
responsibility for damage and injuries to shippers and members of
the public, were the significant aims and guideposts in the
development of the comprehensive rules.
It is likewise apparent that an important feature of the remedy
the Commission devised to eliminate the undesirable practices was
the rule that any lease in which the lessor furnished the driver
was to be one for 30 days or more.
See 49 CFR §§ 1057.3(a)
and 1057.4(a)(3). This served to eliminate the "hard core of the
problem," that is, "the owner-operator trip lease and its attendant
evils." 68 M.C.C. at 555. It was effectuated by the provisions,
some mentioned above, that the lease be in writing and negotiated
in advance; that the equipment be identified as that of the lessee;
that the lease provide
Page 423 U. S. 38
for payment to the lessor at a specified rate; that the lessee
conduct a safety inspection before taking possession; and that the
lessee have control and responsibility for the operation of the
equipment.
Obviously, the inspection requirement of § 1057.4(c), applicable
to carriers to which § 1057.3(a) relates, is of distinct
importance. It is addressed in part to any apprehension that a
lessor might furnish equipment less reliable than that of the
certificated lessee. And the requirement that the lessee assume
control and responsibility tends to assure that a party directly
responsible to the Commission is in actual charge of the
operation.
IV
In light of this background -- the early conditions in the
industry, the problems that existed, the rules that were evolved to
resolve those problems, and the purpose of the rules -- we turn
specifically to the indemnification clause in the Brada
Miller-Transamerican lease.
A. Whether the presence of an indemnification clause conflicts
with the lease's further provision, required by § 1057.3(a), that
the lessee shall have full operational control and responsibility,
was a question not directly addressed in
Ex parte No.
MC-43. We readily conclude, however, that the two provisions
are not in conflict, and that the indemnification clause does not
impinge upon the requirements of the lease and of § 1057.3(a) that
operational control and responsibility be in the lessee. Paragraph
4 of the lease is, of course, express and clear. The parties agreed
in writing that "the control and responsibility for the operation
of said equipment" were in Transamerican, as lessee. This is what §
1057.3(a) requires, and it is all that it formally requires.
Moreover, added to the bare words of assumption of control and
responsibility was the specification that
Page 423 U. S. 39
this was directed "to the public, shippers and Interstate
Commerce Commission." The separate indemnification clause in the
subsequent paragraph 9 of the lease did not affect this basic
responsibility of the lessee to the public; it affected only the
relationship between the lessee and the lessor. The final sentence
of paragraph 9 made this clear:
Nothing in this paragraph 9 contained shall be construed to in
anywise limit the liability of [Transamerican] to the public in
connection with the use of said equipment under this Agreement.
And, in this very case, it was Transamerican which defended the
Wear suit and settled it.
It is to be acknowledged, to be sure, that the lessor's
furnishing of a driver allows an aspect of control, in a sense, to
remain in the lessor. But this is ministerial control, not control
of the kind with which the Commission was concerned in
Ex parte
No. MC-43. Its concern, as we have noted, was with operating
authority, with routes and destinations and classes of freight,
with the integrity of certifications, and with that ultimate
control in the lessee that makes and keeps it responsible to the
public, the shipper, and the Commission. The Commission
observed:
"It now seems to be accepted that, when an authorized carrier
furnishes service in vehicles owned and operated by others, he must
control the service to the same extent as if he owned the vehicles,
but need control the vehicles only to the extent necessary to be
responsible to the shipper, the public, and this Commission for the
transportation."
52 M.C.C. at 681.
The regulations do not expressly prohibit an indemnification
provision in the agreement between the lessor
Page 423 U. S. 40
and the lessee. In fact, they neither sanction nor forbid it. It
would seem to follow, then, that the mere presence of a clause such
as the one here -- that the lessor is to bear the burden of its own
negligence -- does not, in and of itself, offend the regulations so
long as the lessee does not absolve itself from the duties to the
public and to shippers imposed upon it by the Commission's
regulations. This is not to say, of course, that the presence of an
indemnification clause, or its character, may not be a factor to be
considered in determining whether a particular arrangement between
carriers is an illegal sharing of operating authority or is a legal
lease of equipment.
The Commission, on occasion, has considered an indemnification
clause as one element, among others, that may demonstrate lack of
control and responsibility in the lessee.
See Tanksley Transfer
Co. Extension -- Points in Four States, 110 M.C.C.- 674,
678-679 (1969);
Diamond Transportation System, Inc., Extension
-- Wisconsin and Oklahoma Origins, 117 M.C.C. 706, 712-713
(1973). But the Commission has never condemned the indemnification
clause in isolation.
Although one party is required by law to have control and
responsibility for conditions of the vehicle, and to bear the
consequences of any negligence, the party responsible in law to the
injured or damaged person may seek indemnity from the party
responsible in fact. The indemnification agreement violates the
Commission rules only if accompanied by other indicia demonstrating
that the lessor was in control of the service provided, as well as
of the physical operation of the vehicle. But the clause in
isolation -- as framed by the issue before the District Court on
the motion for summary judgment, and before the Court of Appeals,
and now before us -- does not do so.
Page 423 U. S. 41
B. We similarly conclude that the indemnification clause by
itself does not conflict with the regulations' safety provisions.
Safety in motor vehicle operation, of course, was an important
concern of the Commission in its development of the equipment
leasing regulations.
American Trucking Assns. v. United
States, 344 U.S. at
344 U. S. 305;
52 M.C.C. at 686-696. This concern is reflected in the provisions
of §§ 1057.4(c) and 1057.4(e) relating, respectively, to vehicle
inspections and driver familiarity with safety regulations. These
provisions apply regardless of the existence of an indemnification
agreement, and the lessee may fully comply with the requirements of
the regulations despite its having contracted for
indemnification.
An indemnification provision with respect to the lessor's
negligence does not necessarily tend to lessen operational safety.
On the contrary, it may increase it. The lessor, as a general rule,
is the party more familiar with the equipment it leases and with
the experience, ability, and record of the driver it furnishes. An
agreement placing the ultimate financial responsibility upon the
negligent lessor thus may have a tendency to provide greater
protection to the public and to shippers. At the same time, the
lessee's control and responsibility may then become more
meaningful. It may also be said that the indemnification provision
produces an additional source of funds for the one who is damaged
or injured. These, of course, are factors that are pertinent in the
evaluation of administrative policy; they are not now for this
Court to evaluate. We hold only that the presence in an equipment
lease of an indemnification clause directed to the lessor's
negligence is not in conflict with the safety concerns of the
Commission or with the regulations it has promulgated.
Page 423 U. S. 42
We utter a word of caution: our decision is not to be regarded
as an indication that the Commission, if it so chooses upon study
of the problem, may not one day regulate or even proscribe
indemnification as between lessee and lessor. [
Footnote 7] We merely hold that the present
regulations may not be so interpreted.
See Chicago, R.I. &
P. R. Co. v.Chicago, B. & Q. R. Co., 437 F.2d 6, 9-10
(CA7),
cert. denied, 402 U.S. 996 (1971).
We therefore find ourselves in disagreement with the Court of
Appeals. We emphasize that our disagreement must be viewed in the
light of the narrow character of the Court of Appeals' holding to
the effect that the indemnification clause in this particular
agreement, in isolation, served to circumvent the regulations, and
was against public policy, and was unenforceable. It is with that
holding that we disagree and we reverse. Other issues raised by
Transamerican's cross-claim and Brada Miller's answer thereto, as
the parties recognize, remain undetermined. Among these, seemingly,
are the questions whether the negligence that caused Wear's injury
was that of Brada Miller, and whether the agreement, as a whole,
was a legal lease of equipment or was an illegal
Page 423 U. S. 43
sharing of operating authority. We express no view as to those
issues; they are to be resolved upon remand.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings.
It is so ordered.
MR. JUSTICE DOUGLAS concurs in the judgment.
[
Footnote 1]
The pertinent phrase in 49 CFR § 1057.3(a) (1975) is "control
and responsibility for the operation of the equipment." Section
1057.3(a) reads in full as follows:
"The provisions of § 1057.4, except paragraphs (c) and (d),
relative to inspection and identification of equipment, shall not
apply:"
"(a)
Equipment used in the direction of a point which lessor
is authorized to serve. To equipment owned or held under a
lease of 30 days or more by an authorized carrier and regularly
used by it in the service authorized, and leased by it to another
authorized carrier for transportation in the direction of a point
which lessor is authorized to serve:
Provided, That the
two carriers have first agreed in writing that control and
responsibility for the operation of the equipment shall be that of
the lessee from the time the equipment passes the inspection
required to be made by lessee or its representative under §
1057.4(c) until such time as the lessor or its representative shall
give to the lessee or its representative a receipt specifically
identifying the equipment and stating the date and the time of day
possession thereof is retaken or until such time as the required
inspection is completed by another authorized carrier taking
possession of the equipment in an interchange of equipment where
such use is contemplated, such writing to be signed by the parties
or their duly authorized regular employees or agents, and a copy
thereof carried in the equipment while the equipment is in the
possession of the lessee."
In § 1057.4(a)(4), relating to equipment other than that
exchanged in interstate service and other than that leased by one
authorized carrier to another, the parallel provision is "exclusive
possession, control, and use of the equipment, and . . . the
complete assumption of responsibility in respect thereto."
[
Footnote 2]
At the time, Brada Miller itself held the equipment under a
lease dated November, 1967.
[
Footnote 3]
The order of dismissal preserved the rights of Transamerican in
its cross-claim against Brada Miller. Diversity of citizenship
remained after the settlement.
[
Footnote 4]
"Subject to the provisions of subsection (f) [setting forth
exceptions not material here] of this section, the Commission is
authorized to prescribe, with respect to the use by motor carriers
(under leases, contracts, or other arrangements) of motor vehicles
not owned by them, in the furnishing of transportation of property
-- "
"(1) regulations requiring that any such lease, contract, or
other arrangement shall be in writing and be signed by the parties
thereto, shall specify the period during which it is to be in
effect, and shall specify the compensation to be paid by the motor
carrier, and requiring that, during the entire period of any such
lease, contract, or other arrangement a copy thereof shall be
carried in each motor vehicle covered thereby; and"
"(2) such other regulations as may be reasonably necessary in
order to assure that, while motor vehicles are being so used the
motor carriers will have full direction and control of such
vehicles and will be fully responsible for the operation thereof in
accordance with applicable law and regulations, as if they were the
owners of such vehicles, including the requirements prescribed by
or under the provisions of this chapter with respect to safety of
operation and equipment and inspection thereof."
[
Footnote 5]
Under the facts, this appears to be an inadvertent reference.
Section 1057.3 of the regulations states that the cited § 1057.4,
"except paragraphs (c) and (d)" thereof, "shall not apply" to
certain equipment, such as the tractor and trailer in question,
leased by one authorized carrier to another authorized carrier,
provided that the carriers "have first agreed in writing that
control and responsibility for the operation of the equipment shall
be that of the lessee."
See n 1,
supra. Brada Miller and Transamerican were
authorized carriers, and they had made the specified agreement. The
section's proviso, however, in substance is the same as the
parallel provision in § 1057.4(a)(4), cited by the District Court.
The miscitation, therefore, is of no significance here.
[
Footnote 6]
Despite the presence of some distinguishing features, and
despite some attempts to distinguish, cases seemingly consistent
with the decision below are
Denver Midwest Motor Freight, Inc.
v. Busboom Trucking, Inc., 190 Neb. 231,
207 N.W.2d
368 (1973), and
Gordon Leasing Co. v. Navajo Freight
Lines, 130 N.J.Super. 290,
326 A.2d 114 (1974). Seemingly opposed, in addition to
Alterman, are
Carolina Freight Carriers Corp. v. Pitt
County Transportation Co., 492 F.2d 243 (CA4 1974),
cert.
pending, No. 73-1750;
Indiana Refrigerator Lines, Inc. v.
Dalton, 516 F.2d 795 (CA6 1975),
cert. pending, No.
75-211;
Indiana Ins. Co. v. Parr Trucking Service, Inc.,
510 F.2d 490, 494 (CA6 1975);
Jones Truck Lines, Inc. v. Ryder
Truck Lines, Inc., 507 F.2d 100 (CA6 1974),
pet. for cert.
pending, No. 74-973;
Cooper-Jarrett, Inc. v. J. Miller
Corp., 70 Misc.2d 88, 332 N.Y.S.2d 177 (1972);
Newsome v.
Surratt, 237 N.C. 297,
74 S.E.2d
732 (1953);
Continental Ins. Co. v. Daily Express,
Inc., 68 Wis.2d 581,
229 N.W.2d 617
(1975).
See General Expressways, Inc. v. Schreiber Freight
Lines, Inc., 377 F.
Supp. 1159 (ND Ill.1974), where a District Court in the Seventh
Circuit reached the conclusion that the indemnification agreement
was not unenforceable as against public policy.
See also
Watkins Motor Lines, Inc. v. Zero Refrigerated
Lines, 381 F.
Supp. 363 (ND Ill.1974),
aff'd, 525 F.2d 538 (CA7
1975), involving an indemnification contract that accompanied an
interchange agreement. The Seventh Circuit itself concluded that
the indemnification agreement "serves a useful purpose, and must be
upheld."
Id. at 540. The Circuit's earlier contrary
decision in
Alford, it was felt, was "inapposite."
[
Footnote 7]
The Commission and the United States, in their joint brief as
amici curiae, submit that the indemnification clause, by
itself, is not in violation of the regulations. They acknowledge
that the current regulations do not specifically determine the
issue before us; that, on some occasion in the future, the
Commission may consider the promulgation of rules that bear upon
indemnification agreements; and that, if so, it is possible that
the Commission may come to one conclusion with respect to a
provision protecting the lessee against the consequences of its own
negligence and to an opposite conclusion with respect to a
provision relating to the negligence of the lessor. We note the
Commission's submission here in view of the longstanding and
recognized rule of deference.
Bowles v. Seminole Rock Co.,
325 U. S. 410,
325 U. S. 414
(1945);
Udall v. Tallman, 380 U. S.
1,
380 U. S. 16-17
(1965).