(dissenting):
Although I agree with the majority’s conclusion that DeKalb County is immune from suit for negligence and nuisance, I disagree with their conclusion that the county can be held liable by plaintiffs as third-party beneficiaries of the Federal Grant Agreement between the United States and the county. At most, plaintiffs are incidental beneficiaries of that agreement, not entitled to recover for breach of contract.
At the outset, the majority errs by looking to Georgia law in determining whether plaintiffs are third-party beneficiaries.1 Although jurisdiction here is based upon diversity, the contract we are interpreting is one in which the United States is a party, and one which is entered into pursuant to authority conferred by federal statute. The necessity of uniformity of decision demands that federal common law, rather than state law, control the contract’s interpretation. United States v. Seckinger, 1970, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224; Smith v. United States, 5 Cir. 1974, 497 F.2d 500; First National Bank v. Small Business Administration, 5 Cir. 1970, 429 F.2d 280.2
Federal cases considering the question of when members of the public at large are third-party beneficiaries of a contract to which the United States is a party are few in number. However, those cases support the position of the Restatement of Contracts, § 145, that *687such members of the public can recover damages under a contract with the Unit-. ed States to which they are not a party only when the contract manifests an intention that they be so compensated.3 West v. Morrison-Knudsen Company, 9 Cir. 1971, 451 F.2d 493 (Injured employee of subcontractor is not third-party beneficiary of safety provisions of prime contract between United States and general contractor); Hensley v. United States, D.Mont.1968, 279 F.Supp. 548 (same); Brotherton v. Merritt-Chapman & Scott Corp., 2 Cir. 1954, 213 F.2d 477 (provision in contracts requiring contractors to cooperate with one another was for benefit of government, and contractor could not recover from another as third-party beneficiary of that provision). See also Johnson v. Redevelopment Agency, 9 Cir. 1963, 317 F.2d 872; Mahler v. United States, 3 Cir. 1962, 306 F.2d 713; Housing Corp. of America v. United States, Ct. of Claims 1972, 468 F.2d 922, 199 Ct.Cl. 705; Sayre v. United States, N.D. Ohio 1967, 282 F.Supp. 175. It is not enough that the contract confer a benefit on the public at large.
Plaintiffs claim they are third-party beneficiaries of certain broad assurances made by the county and contained in the grant agreement, to the effect that the county will operate the airport safely and will control surrounding airport hazards.4 However, these contract assurances appear to be nothing more than the assurances required by 49 U.S.C.A. § 1110.5 I can find nothing in the language of the contract or the legislative history of 49 U.S.C.A. § 1110 to indicate that the purpose of these assurances was to create a cause of action on behalf of injured third-parties. In fact, the only remedy provided in the grant agreement for breach of these assurances is termination of the grant by the United States. As in United States v. Mahler, supra, it appears that the only purpose of these assurances was to make sure that federal funds were effectively employed and not wasted.
Other courts, in considering third-party claims under the Federal Airport Act, 49 U.S.C.A. § 1101 et seq., and the various agreements and assurances entered into pursuant to that act, have concluded that, although the act might incidentally benefit users of airports, both airlines and passengers, the primary purpose of the act was to establish a nationwide *688system of public airports adequate to meet' the present and future needs of civil aviation. Port of New York Authority v. Eastern Air Lines, Inc., E.D.N.Y.1966, 259 F.Supp. 745; San Francisco v. Western Air Lines, Inc., 1962, 204 Cal. App.2d 105, 22 Cal.Rptr. 216; Eastern Air Lines v. Town of Islip, 1962, Sup., 229 N.Y.S.2d 117. There is nothing to indicate an intent to compensate members of the public injured through the use of the airport.
The majority finds that “not only must the parties have intended to benefit the public, but they also must have intended to compensate members of the public who are injured as a result of a breach.” I find no support for the second conclusion. It is based not on the language of the contract or the legislative history, but merely on a relatively few state cases which, as outlined above, are not controlling. I am unwilling to create a cause of action based on such a thin thread. I would therefore affirm the judgment of the district court.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, WISDOM, GEWIN, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE and TJOFLAT, Circuit Judges.BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
IT IS ORDERED that these causes shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Court will specify a briefing schedule for the filing of supplemental briefs.
. Even if Georgia law should apply, the result would not be different. The majority recognizes that under Georgia law, only intended, and not incidental beneficiaries, may recover for breach of contract. As will be shown in this dissent, nothing in the grant agreements or the underlying statutes raises the status of the plaintiffs from incidental to intended beneficiaries.
. As stated in Clearfield Trust Co. v. United States, 1943, 318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838:
The application of state law, even without the conflict of laws rules of the forum, would subject the rights and duties of the United States to exceptional uncertainty. It would lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states.
The desirability of a uniform rule is plain. Even though we are here considering the liability of parties other than the United States, this same consideration controls, for if plaintiffs are third party beneficiaries with respect to the obligations of the county under the contract, then they would also be third-party beneficiaries with respect to the obligations of the United States.
. Restatement of Contracts, § 145, provides in pertinent part:
A promisor bound to the United States or to a state or municipality by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members to give compensation for the injurious consequences of performing or attempting to perform it, or of failing to do so, unless,
(a) an intention is manifested in the contract, as interpreted in light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences. .
. These assurances provide in pertinent part:
The Sponsor will operate and maintain in a safe and serviceable condition the Airport and all facilities thereon and connected therewith which are necessary to serve the aeronautical users of the Airport other than facilities owned or controlled by the United States, and will not permit any activity thereon which would interfere with its use for airport purposes.
In addition, the Sponsor will not erect or permit the erection of any permanent structure or facility which would interfere materially with the use, operation, or future development of the Airport, .
Insofar as is within its power to the extent reasonable, the Sponsor will take action to restrict the use of land adjacent to or in the vicinity of the Airport to activities and purposes compatible with normal airport operations including landing and takeoff of aircraft.
. 49 U.S.C.A. § 1110 provides in pertinent part:
As a condition precedent to his approval of a project under this chapter, the Administrator shall receive assurances in writing, satisfactory to him, that
(2) such airport and all facilities thereon or connected therewith will be suitably operated and maintained, with due regard to climatic and flood conditions;
(3) the aerial approaches to such airport will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards;