In Re the Complaint of Nautilus Motor Tanker Co. , 85 F.3d 105 ( 1996 )


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  •                                                                                                                            Opinions of the United
    1996 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-20-1996
    In Matter Nautilus Motor Tanker
    Precedential or Non-Precedential:
    Docket 95-5126
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    Recommended Citation
    "In Matter Nautilus Motor Tanker" (1996). 1996 Decisions. Paper 180.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1996/180
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 95-5126
    IN THE MATTER OF THE COMPLAINT OF
    NAUTILUS MOTOR TANKER CO., LTD. AS OWNER OF THE
    M/T BT NAUTILUS FOR EXONERATION FROM
    OR LIMITATION OF LIABILITY,
    Nautilus Motor Tanker Co., Ltd, Appellant
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW JERSEY
    (D.C. Civil No. 90-cv-02419)
    Argued: October 10, 1995
    Before:   STAPLETON, McKEE and NORRIS, Circuit Judges
    (Filed May 20, l996)
    JOHN J. REILLY (ARGUED)
    Haight, Gardner, Poor & Havens
    195 Broadway
    New York, NY 10007
    Counsel for Limitation Plaintiff-
    Appellant Nautilus Motor Tanker Co.
    Ltd.
    RICHARD H. WEBBER (ARGUED)
    Hill Rivkins Loesberg
    O'Brien Mulroy & Hayden
    90 West St.
    New York, NY 10006
    Counsel for Limitation Defendant-
    Appellee Coastal Oil New York, Inc.
    OPINION OF THE COURT
    McKEE, Circuit Judge
    This dispute arises from the grounding of the tanker BT
    Nautilus, an 811 foot oil tanker owned by appellant Nautilus
    Motor Tanker Co., Ltd. ("Nautilus"). That grounding caused
    approximately 230,000 gallons of fuel oil to spill into the Kill
    van Kull waterway in Bayonne, New Jersey. Thereafter, Nautilus
    commenced a proceeding in the United States District Court for
    the District of New Jersey under the Limitation of Liability Act,
    46 U.S.C.    181-189, in an effort to escape liability from
    various potential claimants including Coastal Oil New York, Inc.
    ("Coastal"), the owner of the terminal. Coastal filed a
    counterclaim against Nautilus alleging that Nautilus was solely
    responsible for the grounding. Following a nonjury trial, the
    district court entered judgment for Coastal and against Nautilus
    on Coastal's counterclaim.
    In this appeal from that judgment, we are asked to determine
    whether the district court erred in admitting opinions and
    conclusions contained in a Coast Guard Report of the incident
    into evidence. We must also decide the relevance and possible
    application of a rather ancient rule of maritime law - the
    Pennsylvania Rule - to this controversy; and finally, we must
    decide whether the district court erred in concluding that
    Coastal's failure to provide navigational aids and information
    about the limits of its ship berth did not contribute to the
    accident. For the reasons that follow, we will affirm the ruling
    of the district court.
    I.
    We need only briefly set forth the underlying facts as they
    are detailed in the district court's opinion, In the Matter of
    the Complaint of Nautilus Motor Tanker Co., Ltd., 
    862 F.Supp. 1260
     (D.N.J. 1994), and largely uncontested. On the morning of
    June 7, 1990, Moran Towing & Transportation, Co., Inc. ("Moran")
    dispatched two tugs and a docking pilot, Captain James Naughton,
    to assist BT Nautilus Captain Albert Frank Ainscough in docking
    his vessel at Coastal's terminal in Bayonne, New Jersey. As the
    Nautilus neared the terminal, it ran aground.
    On June 18, 1990, Nautilus filed a petition in the district
    court seeking exoneration and/or limitation of its liability
    under the Limitation of Liability Act, 46 U.S.C.    181-189.
    Coastal responded by filing a claim against Nautilus, and
    Nautilus responded by seeking damages for Coastal's alleged
    negligence in causing the grounding.
    At the ensuing bench trial on Coastal's counterclaim,
    Nautilus argued that Coastal "had breached its duty as a
    wharfinger because the vessel either grounded in the ship berth
    or, if it grounded outside the ship berth, the approach to the
    berth was unsafe." Appellant's Brief at 5. Coastal countered by
    arguing that the grounding was a direct consequence of negligent
    navigation by the vessel's captain and the docking pilot.
    On September 27, 1994, the district court issued its
    findings of fact and conclusions of law. The court found that
    the BT Nautilus ran aground "at least 125 feet east of the
    Coastal New York ship berth," Nautilus, 
    862 F.Supp. at 1268
    , and
    that Nautilus had failed to prove by a preponderance of the
    evidence that any of Coastal's alleged negligent acts were a
    proximate cause of the grounding. Accordingly, the district
    court entered judgment in Coastal's favor, and this appeal
    followed.
    Nautilus challenges that judgment on three grounds. First,
    Nautilus contends that the district court erred in admitting
    opinions and conclusions contained in a Coast Guard Report of
    this incident. Second, Nautilus argues that the Pennsylvania
    Rule created a burden-shifting presumption that Coastal's
    statutory violations caused the grounding. Finally, Nautilus
    argues that the district court clearly erred in finding that
    Coastal's failure to provide navigational aids and information on
    the limits of its ship berth did not contribute to the grounding.
    We have jurisdiction pursuant to 28 U.S.C.   1292(a)(3),
    which authorizes an appeal from an interlocutory order
    determining the rights and liabilities of the parties to
    admiralty cases.
    II.
    A. The Admissibility of the Coast Guard Report.
    Coast Guard regulations require Coast Guard personnel to
    conduct an investigation, and prepare a report following marine
    casualties and accidents. See 46 C.F.R.   4.07 (1994).
    Accordingly, the United States Coast Guard investigated the June
    7, 1990, grounding of the Nautilus and issued a public report
    that stated in part:
    The apparent cause of this grounding was failure on
    the part of the Docking Pilot to maintain the BT
    NAUTILUS within the navigable limits of the channel
    . . .[t]he docking pilot was not familiar with the
    shape or dimensions of the dredged underwater basin
    leading from the channel to the Terminal.
    Except as noted above there is no evidence of. . .
    misconduct, inattention to duty, negligence, or
    willful violation of law or regulation. . .nor
    evidence that any personnel of the Coast Guard, or
    of any other federal agency, or any other person
    contributed to this casualty. . .
    Coast Guard Report ("Report")    2, 18. At trial, Coastal
    offered the entire Report into evidence under the exception to
    the hearsay rule for public records, FRE 803(8)(C). The court
    received the report over the objection of Nautilus. That
    objection was based upon a provision in the Coast Guard
    regulations that states:
    investigations of marine casualties. . .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.
    46 C.F.R.   4.07-1(b). Nautilus argued that the foregoing
    portions of the Report held "no evidentiary relevance other than
    to fix liability. . ." , Appellant's Brief at 14, and should
    therefore be excluded under   4.07-1(b).
    The district court concluded that the entire Report fit
    within the confines of FRE 803(8)(C) and deemed it admissible
    irrespective of 46 C.F.R.   4.07-1(b).
    On appeal, Nautilus relies principally upon Huber v. United
    States, 
    838 F.2d 398
     (9th Cir. 1988), and its progeny to argue
    that the district court erred in admitting the Report into
    evidence. In Huber, two crew members drowned when their yacht
    sank north of San Francisco Bay. The surviving crew member joined
    decedents' representatives in a suit against the Coast Guard for
    failure to assist the vessel. At trial, plaintiffs sought to
    admit two Coast Guard Reports prepared in the aftermath of the
    accident. The government objected and argued that the conclusions
    and recommendations in the Reports were barred by 46 C.F.R.
    4.07-1(b). The court overruled the government's objection, and
    allowed the Reports into evidence as admissions of a party
    opponent under FRE 801(d)(2).
    On appeal, the Court of Appeals for the Ninth Circuit
    reversed. The court held that, under section 4.07-1(b), "the
    Coast Guard investigating officers' conclusions and
    recommendations. . .[are] inadmissible as evidence in civil
    proceedings arising out of accidents covered by the investigation
    reports." Huber, 
    838 F.2d at 402
    . In reaching this result, the
    court first emphasized the necessity of such a rule under the
    circumstances of the suit before it:
    A Coast Guard investigator might feel less free
    to suggest appropriate measures 'for promoting
    safety of life and property at sea' if he thought
    that any suggestion of additional precautions
    might result in imposing pecuniary liability
    on the government.
    
    Id.
     at 402-403 (citing Reliable Transfer Co. v. United States, 
    53 F.R.D. 24
    , 25 (E.D.N.Y. 1971) ). The court also noted a
    perceived similarity between 46 C.F.R.   4.07-1(b) and federal
    enactments such as 49 U.S.C.   1903(c) -- which bars the
    admission into evidence of accident reports prepared by the
    National Transportation Safety Board. The court noted that the
    only difference between the latter statute, and the former
    regulation is that
    in one the Coast Guard acted pursuant to authority
    from Congress. . .and in the other, Congress acted
    directly. . . Either way, the result is the same:
    all or portions of the reports are excluded from
    evidence on authority of Congress.
    Id. at 403. Other courts have relied on the reasoning of Huberto bar the
    admission of opinions and conclusions in Coast Guard
    Reports. See In the Matter of the Petition of Cleveland
    Tankers, Inc., 
    67 F.3d 1200
    , 1208 (6th Cir. 1995) (Barring
    opinions and conclusions in a Coast Guard Report); Yap v.
    Controlled Parasailing of Honolulu, Inc., 
    873 P.2d 1321
    , 1328
    (Haw. 1994) (Same).
    Nautilus argues that since the Coast Guard acted pursuant to
    congressional authority, 46 C.F.R.   4.07-1(b) must preclude the
    admissibility of paragraphs two and eighteen of the Coast Guard
    Report. Appellant's Reply Brief at 2. We do not agree.
    First, the government is not a party to this litigation.
    Thus, unlike in Huber, the Coast Guard has no interest in the
    outcome, and the policy justification for the regulation's
    evidentiary bar -- ensuring frank disclosure by Coast Guard
    investigators -- is completely removed. The investigators here
    have no bias that may interfere with a full, fair, or accurate
    report of their findings or affect the course of their
    investigation.
    Second, and more fundamentally, we affirm the ruling of the
    district court because it is axiomatic that federal regulations
    can not "trump" or repeal Acts of Congress. See e.g., McComb v.
    Wambaugh, 
    934 F.2d 474
    , 481 (3d Cir. 1991) ("No regulation can
    override legislative intent. . ."). 46 C.F.R.    4.01-1(b) is not
    an Act of Congress; it is a federal regulation.    In contrast,
    the Federal Rules of Evidence were enacted by Congress and must
    be regarded by this Court as any other federal statute. Daubert
    v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S.Ct. 2786
    , 2793, 
    125 L.Ed.2d 469
     (1993); see also, 21 C. Wright & K.
    Graham, Federal Practice and Procedure: Evidence     5013 at 120 (1977)
    ("Since the Rules of Evidence were enacted by Congress, no
    question of delegated power is involved.").
    Although initially proposed by the Supreme Court, the
    Federal Rules of Evidence were enacted into law by Congress, Act
    of Jan. 2, 1975, Pub.L. 93-595, 
    88 Stat. 1926
     (1975), and they
    "govern proceedings in the courts of United States." FRE 101;
    see also Salas by Salas v. Wang, 
    846 F.2d 897
    , 904 (3d Cir.
    1988). Although promulgated pursuant to congressional
    authority, 46 C.F.R.   4.07-1(b) remains a regulation. The
    delegation of congressional power that authorized its
    promulgation did not transform the regulation into an Act of
    Congress, nor allow it to prevail over contrary provisions of
    duly enacted statutes. Accordingly, the Coast Guard may not,
    through its regulations, limit the authority of Congress to
    prescribe and enforce rules for the admissibility of evidence in
    the federal courts. See e.g, Romero v. U.S., 
    153 F.R.D. 649
    , 652
    (D.Colo. 1994) (The Federal Rules of Evidence override an Army
    regulation, 32 C.F.R.   515.42, purporting to limit an Army
    doctor's expert testimony.).
    FRE 402 provides the baseline for determining the
    admissibility of evidence in the federal courts. See e.g.,
    Daubert, 509 U.S. at __, 
    113 S.Ct. at 2793
    . That rule provides
    that:
    All relevant evidence is admissible, except as
    otherwise provided by the Constitution of the
    United States, by Act of Congress, by these rules,
    or by other rules prescribed by the Supreme Court
    pursuant to statutory authority. . .
    FRE 402. FRE 401 defines "relevant" evidence as evidence "having
    any tendency to make the existence of any fact that is of
    consequence to the determination of the action more probable or
    less probable than it would be without the evidence." Thus, the
    contents of the Coast Guard Report were directly relevant to the
    issues before the district court, and therefore admissible under
    FRE 402 unless barred by the Constitution, an Act of Congress, a
    Federal Rule of Evidence or a rule prescribed by the Supreme
    Court pursuant to statutory authority. Clearly, no Coast Guard
    regulation can claim such a status. The position urged upon us
    by Nautilus would cause us to judicially amend this enactment by
    replacing the phrase "by Act of Congress" with language similar
    to: "by Act of, or pursuant to the authority of, Congress."
    Since the Report was prepared by a government agency, its
    admissibility was appropriately considered under Rule 803(8), the
    public record exception. See e.g., United States v. Versaint,
    
    849 F.2d 827
    , 831 (3d Cir. 1988). Accordingly, we decline the
    invitation to follow the lead of Huber, and its progeny.
    In Beech Aircraft Corp. v. Rainey, 
    488 U.S. 153
    , 
    109 S.Ct. 439
    , 
    102 L.Ed. 445
     (1988), the Supreme Court considered whether
    the public records exception to the hearsay rule, Rule 803(8)(C),
    extended to conclusions and opinions in public reports. There,
    the court considered the admission into evidence of a Judge
    Advocate General Report on a United States Navy plane crash
    during a jury trial. The Court concluded that Rule 803(8)(C) did
    not preclude the introduction of opinions and conclusions in such
    reports so long as two criteria were met. First, all statements
    in such a report must be based on factual investigation. 
    Id. at 167
    , 
    109 S.Ct. at 449
    . Second, any portion of the report that is
    admitted must be sufficiently trustworthy. 
    Id. at 167
    , 
    109 S.Ct. at 449
    . The Supreme Court cited with approval four non-
    exhaustive factors to be used in determining whether a report is
    sufficiently trustworthy:
    (1) the timeliness of the investigation; (2) the
    investigator's skill and experience; (3) whether
    a hearing was held; and (4) possible bias when
    reports are prepared with a view to possible
    litigation.
    
    Id.
     at 168 n.11; 
    109 S.Ct. at 449
    . Here, the district court
    properly applied these criteria, concluded that they were
    satisfied and admitted paragraphs two and eighteen of the Coast
    Guard Report under Rule 803(8)(C). We do not think that the
    court erred in that analysis. Moreover, we note that public
    reports are presumed admissible in the first instance and the
    party opposing their introduction bears the burden of coming
    forward with enough "negative factors" to persuade a court that a
    report should not be admitted. Beech Aircraft, 
    488 U.S. at
    167
    
    109 S.Ct. at 448
    . Courts have routinely admitted conclusions and
    recommendations in Coast Guard Reports under Beech Aircraft,
    irrespective of 46 C.F.R.   4.07-1(b). See Puerto Rico Ports
    Authority v. M/V Manhattan Prince, 
    897 F.2d 1
    , 8 (1st Cir. 1990)
    (Affirming the district court's admission of three conclusions in
    a Coast Guard Report); Fox v. United States and Robert Anderson,
    Civil No. C-94-0491, slip op. at 4-8 (N.D.Cal. February 14, 1996)
    (Coast Guard report admissible under Rule 803(8) so long as
    report meets trustworthiness standard of Beech Aircraft); Wright
    v. Daviesyndicate, Inc., 
    1993 WL 246020
    , *8,*9 n.10 (E.D.Pa.
    1993) (Conclusions contained in Coast Guard Report admitted
    without comment); Complaint of Kenneth I. Munyan, 
    143 F.R.D. 560
    ,
    565-66 (D.N.J. 1992) (Conclusions and opinions in Coast Guard
    Report deemed admissible under Rule 803(8)(C)); Taylor v.
    Bouchard, 
    1991 WL 107279
    , *4 (S.D.N.Y. 1991) (Opinions and
    conclusions in Coast Guard Report admitted).
    Accordingly, we affirm the district court's evidentiary
    ruling that the challenged portions of the Report were admissible
    under Rule 803(8)(C).
    B. The Pennsylvania Rule.
    The Pennsylvania Rule is named for the famous admiralty case
    in which it was first announced. The Rule provides that when:
    a ship at the time of a collision is in actual
    violation of a statutory rule intended to prevent
    collisions, it is no more than a reasonable
    presumption that the fault, if not the sole cause,
    was at least a contributory cause of the disaster.
    In such a case, the burden rests upon the ship of
    showing not merely that her fault might not have
    been one of the causes, or that it probably was
    not, but that it could not have been.
    The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 
    22 L.Ed. 148
    (1874). While the presumption that arises under the Rule is
    rebuttable, Id. at 130, it is by its very language, a weighty
    one. Although the Rule originally applied only to collisions
    between ships, it has been reformulated to apply to any statutory
    violator who is a party to a maritime accident. See e.g.,
    Pennzoil Producing Co. v. Offshore Express, Inc., 
    943 F.2d 1465
    ,
    1471 (5th Cir. 1991).
    In United States v. Nassau Marine, 
    778 F.2d 1111
     (5th Cir.
    1985), the court articulated a test for determining when to apply
    the presumption of the Pennsylvania Rule. That Court held that
    three elements must exist: (1) proof by a preponderance of the
    evidence of violation of a statute or regulation that imposes a
    mandatory duty; (2) the statute or regulation must involve marine
    safety or navigation; and (3) the injury suffered must be of a
    nature that the statute or regulation was intended to prevent.
    
    Id. at 1116-1117
    ; Folkstone Maritime v. CSX Corporation, 
    64 F.3d 1037
    , 1047 (7th Cir. 1995). If each of these criteria are
    satisfied, a party is entitled to a presumption that a statutory
    violation of a defendant caused, or at least contributed to, the
    injury or damage complained of. However, a statutory violator
    may rebut the presumption of the Rule by making a clear and
    convincing showing that the violation could not have been a
    proximate cause of the collision, Cliffs-Neddrill v. M/T Rich
    Duke, 
    947 F.2d 83
    , 86 (3d Cir. 1991), or by demonstrating that
    the accident would have occurred despite the statutory violation.
    See e.g., Folkstone Maritime, 64 F.3d at 1047.
    The Rule casts its shadow on this case because it is
    undisputed that in 1990, Coastal engaged in over-dredging in its
    barge berth beyond the scope of its U.S. Army Corps of Engineers
    permit in violation of Section 10 of the Rivers and Harbors Act
    of 1899, 33 U.S.C.   403. The dredged material was displaced
    into Coastal's ship berth causing "high spots" or navigational
    obstructions in that area.
    Nautilus theorizes that the forward part of the BT Nautilus
    entered Coastal's ship berth on the morning of June 7, 1990 and
    struck one of these high spots, Transcript of Oral Argument at
    23, thereby causing the vessel to rotate so that its midpoint
    struck bottom at a point outside of the ship berth. Id. at 23.
    However, Nautilus argues that, even assuming the BT Nautilus ran
    aground outside Coastal's ship berth, a grounding within the
    limits of the Coastal Terminal should implicate the Pennsylvania
    Rule and require reversal of the burden of proof. Appellant's
    Brief at 29.
    The district court rejected Nautilus' theory of the
    grounding and refused to apply the Pennsylvania Rule. The court
    concluded that the Rule did not apply since Nautilus had
    presented no evidence that any impact had occurred in or near
    Coastal's ship berth -- the location of the dredging violations.
    If the BT Nautilus had hit "high spots" or some
    obstruction in the ship berth, then Coastal would have
    the burden of proving its statutory violation could not
    have caused the "high spots" or the obstruction. But
    the BT Nautilus did not ground in the ship berth. It
    grounded in an area well to the east, outside the
    federal channel and outside the ship berth. Nautilus
    has never contended this area was impacted by the
    dredging in the Coastal barge berth.
    Nautilus, 
    862 F.Supp. at 1273
    . The district court thus required
    some "nexus between the statutory violation and the accident",
    
    Id. at 1274
    , as a condition precedent to applying the Rule. In
    doing so, the court relied upon the holding in Gosnell v. United
    States, 
    262 F.2d 559
     (4th Cir. 1958).
    In Gosnell, the United States Navy violated the Wreck
    Statute, 33 U.S.C.   409, by towing a barge at too great a speed
    -- causing it to sink in Delaware Bay. Eight days later and
    nearly four miles from the site of the casualty, a fishing vessel
    sunk after striking an unseen object in the same bay. The owner
    of the fishing vessel brought a claim against the United States,
    and the court of appeals affirmed the district court's refusal to
    apply the Pennsylvania Rule in the absence of any evidence of a
    nexus between the statutory violation and the accident. Id. at
    564. The court stated:
    Any plaintiff. . .who seeks to hold a defendant
    liable. . .must show: (1) the physical cause of
    the harm; (2) fault on the part of the person
    sought to be held responsible; and (3) a causal
    connection between such fault and the physical
    cause. . .
    Gosnell, 262 F.2d at 563 (quoting The YFNX-6, 
    156 F.Supp. 325
    ,
    331 (D.Md. 1957) ). Thus, in cases where there is no clear link
    between the statutory violation and the casualty, the party
    seeking to take advantage of the Rule has been required to make
    some showing that the statutory violation may have had some
    relation to the accident.
    Indeed, a contrary rule, such as is urged upon us by
    appellants, would result in a presumption of liability following
    any statutory violation no matter how remote or inconsequential
    such a violation may have been to the subsequent accident.
    Neither precedent nor logic compels such a drastic result. The
    Rule was clearly intended to aid those who had been injured as a
    result of the statutory violation of a defendant in admiralty.
    We do not believe it was intended to increase the likelihood of
    liability no matter how remote and unrelated an injury to a
    statutory violation.
    The Pennsylvania Rule was not meant to be a hard
    and fast rule that requires a finding of fault
    for statutory violations no matter how speculative,
    improbable, or remote.
    Cliffs-Neddrill, 
    947 F.2d at 88
    .
    In another context we have stated "'[w]here stops the
    reason, there stops the rule.'" Aetna v. Barthelemy, 
    33 F.3d 189
    ,
    193 (3rd Cir., 1994) (quoting Karl N. Llewellyn, Jurisprudence:
    Realism in Theory and Practice 217 (1962)).
    Here, the district court found that the point of impact of
    the BT Nautilus was at least 125 feet east of Coastal's ship
    berth where the illegal dredging operations had occurred. That
    finding was not clearly erroneous. See e.g., Haines v. Liggett
    Group, Inc., 
    975 F.2d 81
    , 92 (3d Cir. 1992) (Under the clearly
    erroneous standard, findings of fact made in actions tried by the
    court without a jury may be reversed only if such findings are
    "completely devoid of minimum evidentiary support displaying some
    hue of credibility, or. . .bear no rational relationship to the
    supportive evidentiary data."). Here, expert commercial divers
    hired by both parties concluded that the vessel ran aground to
    the east of the Coastal ship berth and outside the federal
    channel. The eyewitness testimony of a Coastal dockworker,
    Theodore Rovatsos, supported that conclusion. No diver ever
    found any evidence of any kind to support Nautilus' theory of
    impact in the Coastal ship berth. Moreover, Nautilus could not
    demonstrate that the forward 400 feet of the vessel were damaged
    in any way on the morning of June 7, 1990. Common sense suggests
    that, had the BT Nautilus first struck ground in the ship berth
    as Nautilus suggests, the forward part of the vessel would
    sustain some damage, or reflect some trace of the grounding. Yet,
    there was no evidence of even minor scratching of the paint on
    the forward part of the BT Nautilus.
    Since the effects of Coastal's statutory violation were
    limited to an area (i.e., the ship berth) nearly 125 feet from
    the only point of grounding impact, we refuse to require the
    mechanical application of the Pennsylvania Rule. Moreover, even
    assuming the Rule applied here, we believe Coastal rebutted the
    presumption of causation with overwhelming evidence that its
    illegal dredging could not have been a proximate cause of the
    June 1990 grounding because the grounding occurred outside that
    berth. See e.g., U.S. Fire Insurance Co. v. Allied Towing, 
    966 F.2d 820
    , 825 (4th Cir. 1992) (Whether Pennsylvania Rule was
    applied is irrelevant since party proved at trial that his ship's
    failure to have its lights on could not have been cause of
    collision); Alter Barge Line v. TPC Transportation, 
    801 F.2d 1026
    , 1029 (8th Cir. 1986) (Even assuming that the overtaken tug
    committed a statutory fault, failure to apply the Pennsylvania
    Rule is irrelevant since evidence clearly indicated that
    overtaking tug was sole cause of collision).
    C. Coastal's Duty to Provide a Safe Approach.
    Finally, Nautilus contends that Coastal breached its duty of
    reasonable diligence as a wharfinger. In particular, appellant
    argues that Coastal "breached its duty to provide a safe approach
    by failing to install navigational aids and provide information
    about the limits of its Ship Berth." Appellant's Brief at 33.
    However, the district court concluded that Coastal's alleged
    omissions were not a proximate cause of the June 7, 1990
    grounding. Nautilus, 
    862 F.Supp. at 1276
    . We review that
    finding under a "clearly erroneous" standard. Fed.R.Civ.P.
    52(a).
    Under admiralty law, it is well-settled that a wharfinger
    who invites a party to use its dock facilities is not the
    guarantor of the vessel's safety. However, the wharfinger is
    "bound to exercise reasonable diligence in ascertaining the
    condition of the berths and if there is any dangerous
    obstruction, to remove it, or to give due notice of its existence
    to vessels about to use the berths." Smith v. Burnett, 
    173 U.S. 430
    , 433, 
    19 S.Ct. 442
    , 443, 
    43 L.Ed. 756
     (1899). A wharfinger
    also has a duty to maintain a safe approach. 
    Id. at 436
    , 
    19 S.Ct. at 444
    ; Trade Banner Line, Inc. v. Caribbean Steamship Co.,
    
    521 F.2d 229
    , 230 (5th Cir. 1975); Sonat Marine Inc. v. Belcher
    Oil Co., 
    629 F.Supp. 1319
    , 1327 (D.N.J. 1985), aff'd 
    787 F.2d 583
    (3d Cir. 1986). However, there is no duty to ensure safe
    surroundings or warn of hazards merely in the vicinity. Trade
    Banner Line, 
    521 F.2d at 230
    . In short, a vessel should be able
    to enter, use and exit a wharfinger's dock facilities without
    being exposed to dangers that cannot be avoided by reasonably
    prudent navigation and seamanship.
    We do not find the district court's determination as to
    causation to be clearly erroneous. First, marine navigational
    charts on board the BT Nautilus (British Admiralty Chart No.
    2753), and known to its docking pilot clearly and accurately
    depicted the area in which the BT Nautilus ran aground as a
    shallow area. Moreover, a moving vessel and her owner are
    subject to a presumption of negligence when the vessel strikes a
    well-charted, stationary object or obstruction. The Oregon, 
    158 U.S. 186
    , 197, 
    15 S.Ct. 804
    , 
    39 L.Ed. 943
     (1895); City of Boston
    v. S.S. Texaco, 
    773 F.2d 1396
    , 1398 (1st Cir. 1985).
    In addition, substantial evidence indicated that unofficial
    aids were sufficient for navigating a safe approach to the
    Coastal ship berth. Although Nautilus' experts maintained that
    the absence of aids marking the boundary of the ship berth made
    the approach difficult, the district court explicitly credited
    the testimony of Coastal's expert, Captain Jay D. Bolton, and
    eyewitness, Theodore Rovatsos, as to the existence and adequacy
    of unofficial aids. The district court's conclusions regarding
    such testimony, based on assessments of witness credibility, are
    deserving of the highest degree of appellate deference. Anderson
    v. City of Bessemer City, N.C., 
    470 U.S. 564
    , 575, 
    105 S.Ct. 1504
    , 1513, 
    84 L.Ed.2d 518
     (1985). Moreover, Coast Guard
    investigators, who would be expected to target such dangers,
    never mentioned any inadequacy of navigational aids here.
    Docking pilot Naughton even testified that a parallel dock (the
    IMTT Facility), similar in all relevant respects, was safe
    despite the absence of any aids to navigation beyond those
    existing at the Coastal Terminal. Furthermore, we cannot fail to
    note that throughout the period of the grounding, similar tankers
    docked without incident or objection to the absence of official
    navigational aids or information on the limits on Coastal's ship
    berth.
    Finally, it is undisputed that Captain Ainscough maintained
    a copy of The Guide to Tanker Ports on board the BT Nautilus at
    the time of the grounding. Although that Guide and its
    procedures for docking at the Coastal Terminal were well-known to
    both Ainscough and Naughton, neither chose to follow its
    instructions on the morning of the grounding. The BT Nautilus
    departed for the Coastal Terminal nearly three hours before the
    time recommended by the Guide. The evidence before the district
    court suggests that, had Ainscough simply left at the suggested
    time, his vessel would have encountered minimal tidal currents
    and superior docking conditions. Moreover, having arrived at a
    time of strong tidal currents, Naughton compounded the error when
    he failed to utilize the "breasting in" approach recommended by
    the Guide.
    The district court's conclusion that this grounding was not
    caused by a breach of duty on the part of Coastal is, therefore,
    firmly supported by this record.
    IV.
    For the foregoing reasons, we will affirm the judgment of
    the district court.
    IN THE MATTER OF THE COMPLAINT OF
    NAUTILUS MOTOR TANKER, No. 95-5126
    STAPLETON, Circuit Judge, Concurring:
    I join the opinion of the court. I write separately
    only because I believe there is an additional, and equally
    persuasive, reason why   4.07-1 of the Coast Guard Regulations
    did not bar the admission of the investigation report in this
    case. It seems apparent to me that the Secretary, in adopting
    this regulation, did not intend to prescribe a rule governing the
    admission of evidence in a court of law.
    Section 6301 of Title 46 of the United States Code
    provides:
    6301. Investigation of marine casualties
    The Secretary shall prescribe
    regulations for the immediate investigation
    of marine casualties under this part to
    decide, as closely as possible --
    (1) the cause of the casualty, including
    the cause of any death;
    (2) whether an act of misconduct,
    incompetence, negligence, unskillfulness, or
    willful violation of law committed by any
    individual licensed, certificated, or
    documented under part E of this subtitle has
    contributed to the cause of the casualty, or
    to a death involved in the casualty, so that
    appropriate remedial action under chapter 77
    of this title [relating to license suspension
    and revocation proceedings] may be taken;
    (3) whether an act of misconduct,
    incompetence, negligence, unskillfulness, or
    willful violation of law committed by any
    person, including an officer, employee, or
    member of the Coast Guard, contributed to the
    cause of the casualty, or to a death involved
    in the casualty;
    (4) whether there is evidence that an
    act subjecting the offender to a civil
    penalty under the laws of the United States
    has been committed, so that appropriate
    action may be undertaken to collect the
    penalty;
    (5) whether there is evidence that a
    criminal act under the laws of the United
    States has been committed, so that the matter
    may be referred to appropriate authorities
    for prosecution; and
    (6) whether there is need for new laws
    or regulations, or amendment or repeal of
    existing laws or regulations, to prevent the
    recurrence of the casualty.
    Section 6305 further provides that the Secretary shall prescribe
    regulations concerning the reports of such investigations and
    requires that those reports be "made available to the public,
    except to the extent that they contain information related to the
    national security."
    Pursuant to these directives, the Secretary has
    promulgated 46 C.F.R.   4.07-1, the prefatory section to a
    Subpart relating to "Investigations." It provides:
    4.07-1 Commandant or District Commander to
    order investigation.
    (a) The Commandant or District
    Commander upon receipt of information of a
    marine casualty or accident, will immediately
    cause such investigation as may be necessary
    in accordance with the regulations in this
    part.
    (b) The investigations 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.
    (c) The investigation will determine as
    closely as possible:
    (1)   The cause of the accident;
    (2) Whether there is evidence that
    any failure of material (either
    physical or design) was involved or
    contributed to the casualty, so
    that proper recommendations for the
    prevention of the recurrence of
    similar casualties may be made;
    (3) Whether there is evidence that
    any act of misconduct, inattention
    to duty, negligence or willful
    violation of the law on the part of
    any licensed or certificated man
    contributed to the casualty, so
    that appropriate proceedings
    against the license or certificate
    of such person may be recommended
    and taken under title 46, U.S.
    Code, section 239;
    (4) Whether there is evidence that
    any Coast Guard personnel or any
    representative or employee of any
    other government agency or any
    other person caused or contributed
    to the cause of the casualty; or,
    (5) Whether the accident shall be
    further investigated by a Marine
    Board of Investigation in
    accordance with regulations in
    subpart 4.09.
    The purpose of     4.07-1(b) and (c) is to explain, for
    the benefit of those conducting investigations and those reading
    and using investigation reports, the limited purposes for which
    Coast Guard investigations of casualties are conducted. The last
    clause of   4.07-1(b) explains that they are "not intended to fix
    civil or criminal responsibility." This means, among other
    things, that the ultimate determination of licensing issues is
    left to suspension or revocation proceedings, civil penalty
    issues to civil penalty proceedings, and criminal culpability
    issues to criminal proceedings. If there was any intent with
    respect to other civil liability issues, I am confident that the
    intent was to advise that the ultimate determination of issues of
    civil liability is reserved for civil judicial proceedings and
    that the information contained in a Coast Guard investigation
    report should be evaluated and utilized with the understanding
    that the focus of the investigation was not on assigning the
    responsibilities of the participants inter se.
    I am also confident that, if the Secretary had meant
    4.07-1(b) to govern the admission of evidence in court, he
    would have chosen a far less tortuous way of saying so. The
    models available to him, as he is likely to have been aware, are
    numerous. See 42 U.S.C.     2240 ("No report by any licensee [of
    the NRC] of any incident arising out of or in connection with a
    licensed activity made pursuant to any requirement of the
    Commission shall be admitted as evidence in any suit or action
    for damages growing out of any matter mentioned in such
    report."); 49 U.S.C.    1441(e) (repealed Pub. L. No. 103-272,
    7(b), July 5, 1994, 
    108 Stat. 1379
    ) ("No part of any report or
    reports of the National Transportation Safety Board relating to
    any accident or the investigation thereof, shall be admitted as
    evidence or used in any suit or action for damages growing out of
    any matter mentioned in such report or reports."); 45 U.S.C.     33
    (repealed Pub. L. No. 103-272,    7(b), July 5, 1994, 
    108 Stat. 1379
    ) ("[Neither reports of Railroad accidents by the director of
    locomotive inspection nor reports of his investigation] shall be
    admitted as evidence or used for any purpose in any suit or
    action for damages growing out of any matter mentioned in said
    report or investigation."); see also H.R. 1361, 104th Cong., 1st
    Sess.   414 (1995) ("Notwithstanding any other provision of law,
    any opinion, recommendation, deliberation, or conclusion
    contained in a report of a marine casualty investigation
    conducted under section 6301 of this title with respect to the
    cause of, or factors contributing to, the casualty set forth in
    the report of the investigation is not admissible as evidence or
    subject to discovery in any civil, administrative, or State
    criminal proceeding arising from a marine casualty, other than
    with the permission and consent of the Secretary of
    Transportation, in his or her sole discretion.").
    In The Matter of the Complaint of Nautilus Motor Tanker Co.
    No. 95-5126
    NORRIS, Circuit Judge, concurring in part, dissenting in part,
    and dissenting from the judgment:
    I join the majority opinion except in its holding that
    conclusions in a Coast Guard report of a marine casualty
    investigation are admissible as evidence in civil cases. In so
    holding, the majority creates a square conflict with the Sixth
    and Ninth Circuits, the only other circuits that have addressed
    and decided this question.
    In In re Cleveland Tankers, Inc., 
    67 F.3d 1200
    ,
    1208 (6th Cir. 1995), the Sixth Circuit held that under the Coast
    Guard regulation at issue, 46 C.F.R.   4.07-1(b), conclusions
    in Coast Guard reports are not admissible. The Sixth Circuit
    reasoned that
    the function of the Coast Guard
    reports is altogether different
    from that of fixing liability. The
    Coast Guard report is, to a great
    extent, forward-looking, since it
    is meant in part to aid in
    developing rules to make shipping
    safer. In a lawsuit, a court must
    look backward to facts and rules as
    known to the actors at the time of
    the accident. Introducing the
    Coast Guard's conclusions may
    confuse the two sorts of inquiries.
    
    Id.
     (citation omitted).
    In Cleveland Tankers, the Sixth Circuit followed the
    Ninth Circuit's decision in Huber v. United States, 
    838 F.2d 398
    ,
    403 (9th Cir. 1988). The majority attempts to distinguish Huberon the
    ground that the Coast Guard was a party to that action.
    However, the Sixth Circuit expressly rejected that distinction
    and held that "Huber's reasoning is sound" even in cases in which
    the Coast Guard has no interest. Cleveland Tankers, 
    67 F.3d at 1208
    .
    In creating a conflict with the Sixth and Ninth
    Circuits, the majority relies on Puerto Rico Ports Auth. v. M/V
    Manhattan Prince, 
    897 F.2d 1
    , 8 (1st Cir. 1990). That reliance
    is misplaced. In Manhattan Prince, the First Circuit neither
    addressed nor decided the question whether 46 C.F.R.   4.07-1(b)
    bars the admission of conclusions in Coast Guard reports as
    evidence. The First Circuit made no reference to 46 C.F.R.
    4.07-1(b), apparently because it was not cited by either party.
    See 
    id.
     ("Both sides agree that Beech Aircraft Corp. v. Rainey,
    
    488 U.S. 153
     (1988) controls the admissibility of the report.").
    Rather, the First Circuit analyzed the admissibility of
    conclusions in a Coast Guard report solely under Federal Rule of
    Evidence 803.
    Other than Manhattan Prince, the only cases cited
    by the majority are four district court decisions, three of which
    are unpublished and only one of which addresses the question
    whether 46 C.F.R.   4.07-1(b) bars the admission of conclusions
    in Coast Guard reports as evidence. In Complaint of Kenneth I.
    Munyan, 
    143 F.R.D. 560
    , 565-66 (D.N.J. 1992), the only published
    decision cited by the majority, the court made no reference to 46
    C.F.R.   4.07-1(b), and analyzed the admissibility of a Coast
    Guard report solely under Federal Rule of Evidence 803.
    The only district court decision cited by the
    majority that addresses the question whether 46 C.F.R.
    4.07-1(b) bars the admission of conclusions in a Coast Guard
    report is an unpublished order on a motion in limine in Fox v.
    United States, No. C-94-0941, slip op. at 4-8 (N.D. Cal. Feb. 12,
    1996). There, the district court declined to apply Huber and
    decided that 46 C.F.R.    4.07-1(b) did not bar the admission of
    Coast Guard conclusions under Beech Aircraft v. Rainey, 
    488 U.S. 153
     (1988). Like the majority here, the district court decided
    that an agency regulation "cannot trump congressionally enacted
    rules of evidence." Fox, slip op. at 7. With all due respect, I
    believe that a specific agency regulation can create an exception
    to a general rule of evidence, as long as the agency acts within
    the scope of the rulemaking authority granted to it by Congress.
    In promulgating 46 C.F.R.    4.07-1(b), the Coast Guard was
    clearly acting within the scope of its authority.            As the Ninth
    Circuit put it,
    [t]he only difference between the
    Coast Guard regulation banning the
    use of accident reports as evidence
    and a statute such as 49 U.S.C.
    1441(e) banning the use of aviation
    accident reports as evidence is
    that in one the Coast Guard acted
    pursuant to authority from Congress
    to pursue safety on the high seas,
    and in the other, Congress acted
    directly in promoting air safety.
    Either way, the result is the same:
    all or portions of the reports are
    excluded from evidence on authority
    of Congress.
    Huber, 
    838 F.2d at 403
    .
    I respectfully dissent.
    

Document Info

Docket Number: 95-5126

Citation Numbers: 85 F.3d 105, 1996 WL 264833

Judges: Stapleton, McKee, Norris

Filed Date: 5/20/1996

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (22)

Daubert v. Merrell Dow Pharmaceuticals, Inc. , 113 S. Ct. 2786 ( 1993 )

in-re-cleveland-tankers-inc-as-owner-and-operator-of-the-mv-jupiter , 67 F.3d 1200 ( 1995 )

United States v. Versaint, Cherubin , 849 F.2d 827 ( 1988 )

cliffs-neddrill-turnkey-international-oranjestad-neddrill-2-b-v-and , 947 F.2d 83 ( 1991 )

The Oregon , 15 S. Ct. 804 ( 1895 )

United States v. Nassau Marine Corp., Central Marine ... , 778 F.2d 1111 ( 1985 )

City of Boston v. S.S. Texaco Texas, Her Engines, Boilers, ... , 773 F.2d 1396 ( 1985 )

Aetna Life and Casualty Company v. Carolyn Barthelemy Peter ... , 33 F.3d 189 ( 1994 )

Alter Barge Line, Inc. v. Tpc Transportation Co., and ... , 801 F.2d 1026 ( 1986 )

pennzoil-producing-company-cross-appellants-v-offshore-express-inc , 943 F.2d 1465 ( 1991 )

Trade Banner Line, Inc. v. Caribbean Steamship Co., S. A., ... , 521 F.2d 229 ( 1975 )

Smith v. Burnett , 19 S. Ct. 442 ( 1899 )

The Pennsylvania , 22 L. Ed. 148 ( 1874 )

Sonat Marine Inc. v. Belcher Oil Co. , 629 F. Supp. 1319 ( 1985 )

Puerto Rico Ports Authority v. M/v Manhattan Prince, Sujeen ... , 897 F.2d 1 ( 1990 )

Merle W. Huber v. United States of America, United States ... , 838 F.2d 398 ( 1988 )

Yap v. Controlled Parasailing of Honolulu, Inc. , 76 Haw. 248 ( 1994 )

susan-haines-as-administratrix-ad-prosequendum-and-of-the-estate-of-peter , 975 F.2d 81 ( 1992 )

david-f-mccomb-as-guardian-ad-litem-for-khemsu-walton-a-minor-child-v , 934 F.2d 474 ( 1991 )

Complaint of Nautilus Motor Tanker Co., Ltd. , 862 F. Supp. 1260 ( 1994 )

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