concurring in part and dissenting in part:
Although I am in great sympathy with the majority’s holding and am impressed with its reasoning, I must dissent from that portion of the majority’s decision which finds that ERISA provides fiduciaries with causes of action for indemnification and contribution. While the majority’s decision makes good sense, such good sense does not always find its way into legislation enacted by Congress, as the statute at issue demonstrates. Therefore, I write separately.
I do not believe that in this instance we can, in effect, legislate that Congress intended to leave open to courts the right to fashion common law remedies of indemnification and contribution under ERISA. Though Congress has endowed courts with the power to formulate federal common law in ERISA cases, it has not given the federal judiciary the power to “engraft a remedy on a statute, no matter how salutary, that Congress did not intend to pro*19vide.” Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 145, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96 (1985) (quoting California v. Sierra Club, 451 U.S. 287, 297, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981)).
It seems clear that Congress was aware that the issue of fiduciary indemnification and contribution was bound to arise under ERISA. Indeed, a section of the statute delineates the circumstances in which a co-fiduciary may be liable for another fiduciary’s breach of fiduciary responsibility. See 29 U.S.C. § 1105 (1988). Moreover, it is equally apparent that Congress was conscious that the general principles of trust law, upon which ERISA is based, see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 953-54, 103 L.Ed.2d 80 (1989), would allow a breaching fiduciary to obtain indemnification and contribution from other wrongdoers. See Restatement (second) of Trusts § 258 (1959). Despite its obvious awareness of both the problem at hand and its potential solution, Congress, in crafting ERISA’s “interlocking, interrelated and interdependent remedial scheme,” see Russell, 473 U.S. at 146, 105 S.Ct. at 3092, failed to provide remedies in favor of breaching fiduciaries. Essentially, Congress’ omission of all references to the allocation of costs among fiduciaries for joint liabilities demonstrates its rejection of the scheme of contribution and indemnification adopted by the majority. Simply stated, if Congress had intended to include a right of action for contribution and indemnification it would have done so.
For the reasons set forth above, I would affirm the judgment of the district court in all respects.