NOTE: This conclusions of this article have been overcome by Congressional action. See later article.
In our Fall 1988 issue of the EXPERT, (old issues can be found on the Internet at www.mac-experts.com) we wrote an article about the decision of the 9th Circuit Court in Hubert v United States. In that case, the Circuit Court vacated the District Court decision and remanded, holding that two Coast Guard reports admitted into evidence by the lower court in which the Coast Guard admitted that they had erred in a Search and Rescue case were inadmissible. One report was the investigative report required under 46 CFR 4.07. The other was an internal investigative report of Coast Guard procedures called a SAR Case Study (in accordance with the National SAR Manual, Volume I, Chapter 11) which is prepared to highlight improvements which the agency could make in the future.
The Circuit Court based their decision on 46 CFR 4.07-1(b) which states in part "the investigation of marine casualties and accidents and the determinations made are for the purpose of taking appropriate measures for promoting safety of life and property at sea, and are not intended to fix civil or criminal responsibility." Quoting the regulations, the court concluded that "it would be difficult to conclude the reports, if admitted into evidence, could be construed other than to 'fix civil . . .responsibility'" Based on this rational, the court held "that under 46 CFR 4.07-1(b), the Coast Guard investigating officers' conclusions and recommendations in the reports are inadmissible as evidence in this private litigation arising out of the accident that was the subject of the reports."
Both of the investigative reports were treated alike although 46 CFR 4.07-1(b) only addresses the investigative reports required under 46 CFR 4.07 and not the internal report.
The decision is considered limited to actions against the Coast Guard although the rational might have been used in litigation between two private parties.
In the Spring 1989 issue of the EXPERT we reviewed Beech Aircraft v Rainey,109 S.Ct 439 (1988) in which the Supreme Court allowed conclusions and opinions to be admitted into a civil proceeding under Federal Rule of Evidence 803(8)C:
Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
While this case did not address Coast Guard reports specifically, the Third Circuit in In re Complaint of Nautilus Tanker Co. 85 F.3d 105 (1996) held that Coast Guard reports are admissible under the public records section exception to the hearsay rule. It stated that although a Coast Guard regulation states that investigations are not intended to fix civil liability, regulations cannot overrule acts of Congress, such as the Federal Rules of Evidence.
See also Fox v United States 1996 AMC 1045 (N.D. Ca. 1996) which held that Coast Guard investigation reports, including conclusions and recommendations, may be admitted under Federal Rule of Evidence 803C if they meet the standard of trustworthiness set forth in Rainey and In re Petition of Cleveland Tankers, 67 F.3d 1200 (6th Cir. 1995) where the court refused to allow a Coast Guard investigative report into evidence citing Huber v. United States, 838 F.2d 398 (9th Cir. 1988), a case in which Captain Greiner was an expert witness. The later case can be found through the Legal Link of MAC's home page.
Home ! Search Page ! Master index ! Table of Contents for this Issue