At the same time I was writing an article on the admissibility of Coast Guard reports for the Fall 1996 issue of the EXPERT newsletter, Congress was hard at work making the information in the article obsolete. Just before they recessed, the Coast Guard authorization bill was passed and signed into law which had a number of riders attached to it, one of which restricted the use of Coast Guard investigation reports.
A number of our readers graciously brought to my attention this significant change and in an attempt to update those of you who were not aware of this change, the following edited excerpts of the Congressional Record are provided:
The House bill was amended with a provision to limit the use of certain portions of formal and informal marine casualty investigations in civil judicial, administrative and state criminal proceedings unless the Secretary of Transportation consented to releasing the report. Although there are certain statutory and discovery provisions that presently protect parts of an investigation from use in civil and state criminal proceedings, there is no statutory prohibition on the use of opinions, recommendations, deliberations, and conclusions contained in marine casualty reports.
The Senate bill contained no such provisions.
The Conference substitute alters the House provision to completely prohibit a report of a Coast Guard marine casualty investigation from being admissible as evidence or subject to discovery in any civil or administrative proceeding, other than an administrative proceeding initiated by the United States.
The substitute also prohibits any employee of the United (sic) [Department of Transportation] or member of the Coast Guard investigating a marine casualty from being subject to deposition or other discovery without the permission and consent of the Secretary of Transportation. The Secretary may not withhold permission for the employee or member to testify on solely factual matters where the information is not available elsewhere. Cong. Record House H11514.
Note that the prohibition against the use of the report in a criminal proceeding was dropped.
The new section 6308 of 46 USC reads as follows:
6308. Information barred in legal proceedings
(a) Notwithstanding any other provisions of the law, no part of a marine casualty investigation conducted under section 6301 of this title, including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence or subject to discovery in any civil or administrative proceeding other than an administrative proceeding initiated by the United States. Any employee of the Department of Transportation, and any member of the Coast Guard, investigating a marine casualty pursuant to section 6301 of this title, shall not be subject to deposition or other discovery, or otherwise testify in such proceeding relevant to a marine casualty investigation, without the permission of the Secretary of Transportation. The Secretary shall not withhold permission for such employee or member to testify, either orally or upon written questions, on solely factual matters at a time and place and in a manner acceptable to the Secretary if the information is not available elsewhere or is not obtainable by other means.
(b) Nothing in this section prohibits the United States from calling the employee or member as an expert witness to testify on its behalf. Further, nothing in this section prohibits the employee or member from being called as a fact witness in any case in which the United States is a party. If the employee or member is called as an expert or fact witness, the applicable Federal Rules of Civil Procedure govern discovery. If the employee or member is called as a witness, the report of a marine casualty investigation conducted under section 6301 of this title shall not be admissible, as provided in subsection (a), and shall not be considered a report of an expert under the Federal Rules of Civil Procedure.
(c) The information referred to in subsections (a) and (b) of this section shall not be considered an admission of liability by the United States or by any person referred to in those conclusions and statements.
Attorney Paul Edelman, in an article appearing in the New York Law Journal November 29, 1996, stated that section 6308 is added to 46 USC to prohibit the reports as indicated above. This prohibition was advocated by the Maritime Law Association, an association generally held to represent the defense side of the admiralty bar.
Contacts with members of the Coast Guard indicate it will probably be some time before regulations are issued to implement the new statutory requirements. Until then, many Coast Guard units will proceed under existing policy.
The reader should note that the investigative report which is barred is that normally prepared by the Marine Safety personnel. From time to time, there are other reports prepared in connection with the search and rescue function of the Coast Guard which are not investigative reports prepared under 46 USC 6301. This section does not bar those reports from introduction or as an admission against interest.
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