19

BRENNAN, J., dissenting

judicial sentencing? I agree that the Constitution allows Tennessee to empower the Governor to reduce a death penalty to a term of years without resort to judicial proceedings. But the Court's disposition assumes, without any in-depth analysis, that the instant case involves such "commutations" despite the fact that respondents' death sentences were voided and were therefore nonexistent when the Governor acted.

I would deny the petition for certiorari on my view that there is no holding of the Court of Appeals regarding the commutations to be reviewed. In any event, rather than disposing of the case summarily, the Court should grant the petition and set the case for oral argument.

TRANSAMERICAN FREIGHT LINES, INC. v. BRADA MILLER FREIGHT SYSTEMS, INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 74-54. Argued October 8, 1975-Decided November 12, 1975

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. 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

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Opinion of the Court

control and not delegation of responsibility for the shipment. Pp. 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. 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.

Alphonso H. Voorhees argued the cause and filed briefs for petitioner.

Joseph L. Leritz argued the cause and filed a brief for respondent Brada Miller Freight Lines, Inc.*

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),' applicable to authorized motor car

*Solicitor General Bork, Assistant Attorney General Kauper, Carl D. Lawson, Fritz R. Kahn, and Betty Jo Christian filed a brief for the United States et al. as amici curiae urging reversal.

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

riers. 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. 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

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."

2 At the time, Brada Miller itself held the equipment under a lease dated November 1967.

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Opinion of the Court

"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.

...

[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. 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, 63-65.

It affixed to