Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
These appeals arise out of a maritime collision which occurred early on the morning of May 22, 1952, in the Tinicum range of the Delaware River. The tankship Atlantic Dealer, owned and operated by the Atlantic Refining Company (hereinafter called "defendant") was proceeding up the Tinicum range on its journey from Texas to Philadelphia. The tug Patco was proceeding downstream towing the barge Patoil on her port side, and the barge Patterson III on her starboard side, so that the flotilla formed the letter "V". The collision occurred between the Atlantic Dealer and the barge Patoil in such fashion that the barge was damaged and the tug Patco was sunk. Captain William C. Eggers, Russell Lynch, and John Hall, all personnel aboard the Patco, lost their lives; three civil actions were brought by their personal representatives against defendant. Four other suits were instituted against defendant to recover damages for personal injuries to other personnel of the flotilla. The seven cases were consolidated for trial to a jury on the issue of liability because of common questions of fact and law. In accordance with Rule 49(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the jury answered certain specified interrogatories, upon the basis of which the district court directed verdicts in favor of defendant.*fn1 The three death claimants filed motions in the district court for a new trial. The four personal injury cases here on appeal were consolidated for briefing and argument pursuant to this court's order of July 9, 1956.
Before the civil actions came up for trial, the Marine Board of Investigation of the United States Coast Guard conducted its accustomed inquiry into the maritime disaster, pursuant to Section 239 of Title 46 of the United States Code. The statutory purpose of the board is to investigate misconduct or negligence on the part of licensed of ficers and to take whatever action deemed appropriate, including revocation or suspension of licenses. The findings of such boards are, of course, not admissible in subsequent civil actions. The Charles Morgan, 1885, 115 U.S. 69, 77, 5 S. Ct. 1172, 29 L. Ed. 316. See also Griffin on Collision § 268 (1949).
The appellants' various allegations of trial error include (1) permitting over the objection of plaintiffs Captain Lewis H. Shackelford, who was chairman of the Coast Guard board which investigated this particular collision, to give expert testimony on behalf of defendant, and (2) the district court's refusal to permit plaintiff to introduce certain expert testimony to rebut expert testimony produced by defendant. Other points raised by appellants need not be discussed, since those enumerated will require reversal.
It is urged on behalf of plaintiffs that Captain Shackelford was called by the defense for the primary purpose of impressing the jury with the fact that the findings of the Coast Guard board of which he was chairman favored the position of the defense; therefore, his very appearance was prejudicial error. The explanation advanced by the defense, on the other hand, was that Captain Shackelford was called upon solely for the purpose of giving expert testimony concerning the functioning of course recorders and the elements necessary for an accurate plotting of a ship's course.
A reading of the record leaves us with no doubt that prior to Captain Shackelford's testimony the jury was well aware that the Coast Guard board had conducted an investigation into the facts and causes of the collision. It is not denied by appellee that throughout the trial Captain Shackelford gave technical advice to defense counsel within the view of the jury.
At the very beginning of the examination of Captain Shackelford there was created about him an atmosphere of official authority. On direct examination he was asked as follows:
"Q.Now, Captain, you were Chairman of the Marine Board of Investigation of the Coast Guard who investigated this accident? A. I was.
"Q. You were Chairman of that Board? A. That is correct.
"Q. Are you here under subpoena? A. I am.
"Q. Before agreeing to testify in this case as an expert did you get the permission from your former superior Coast Guard officers in Washington to testify? A. I did."
Thus his official position with regard to this collision was made unmistakably clear by the questions asked concerning it. The defense explains that these questions were asked to identify the witness to opposing counsel. This explanation loses force in view of the fact that the same counsel at the civil trial were present also at the board's investigation and would certainly recognize the chairman of that board. The testimony also conveys the thought to the jury that since the defense subpoenaed*fn2 Captain Shackelford it had nothing to fear from the findings he might have made as board chairman. Finally, the fact is brought to the attention of the jury that the testimony of a board chairman in a subsequent civil action is at least unusual enough that permission of his superiors in Washington would be needed. And with permission emanating from the nation's capital comes the final touch of official sanction for Captain Shackelford's appearance on behalf of the defense.
The expert testimony given by Captain Shackelford was of no great moment, considering the fact that any number of qualified mariners were no doubt available to testify about the functioning of course recorders. This fact, coupled with the questions asked making plain his official role in the investigation of this collision, compels us to conclude that the overall impression created by his testimony was that the government's view of the accident was in accord with that of the defense. And even though this was not the real purpose of the defense in summoning him as a witness, that impression was created nonetheless effectively, and with no less prejudice. It was, therefore, error to permit Captain Shackelford to so testify, and such error is not remedied by explanations and admonishments of the court that the jury disregard the official position of the witness.The case of The Charles Morgan, supra, ...