The opinion of the court was delivered by: WILLIAM G. BASSLER
This matter comes before the Court on three evidentiary motions arising during the course of trial. Limitation Plaintiff, Nautilus Motor Tanker Co., Ltd. ("Nautilus"), moves to: (1) suppress opinions and conclusions from the United States Coast Guard report; and (2) introduce into evidence prior inconsistent statements from the deposition of Thomas Junay dated February 3, 1992. Limitation Defendant, Coastal Oil New York, Inc. ("Coastal"), moves to exclude a sketch drawn at trial by one of Coastal's witnesses, James Doran, on cross-examination. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1333 (1). For the foregoing reasons, the Court denies plaintiff's motion to suppress portions of the Coast Guard report, grants in part and denies in part plaintiff's motion to admit the prior inconsistent statements, and denies defendant's motion to exclude the sketch drawn by James Doran.
This action arises from the grounding of the B.T. Nautilus Motor Tanker in the Kill van Kull waterway on June 7, 1990. As a result of the grounding, approximately 230,000 gallons of fuel oil were spilled into the water (Exh. 435 at 1). Nautilus brings this action in admiralty against Coastal, the marine terminal owner and operator, seeking exoneration from or limitation of liability to several claimants.
A. Admissibility of conclusions and opinions in United States Coast Guard Report
Nautilus contends that portions of the United States Coast Guard report which contain conclusions and opinions should not be admissible into evidence. The specific portions of the report which Nautilus seeks to suppress are: (1) the investigating officer's conclusions regarding the apparent cause of the grounding (Coast Guard Report ("Report") at 1, paragraph #2); (2) the assessment of fault on behalf of any other government agency or party (Report at 4-5, paragraph #18); and (3) recommendations for future procedures made by the commanding officer based on his reading of the report (Report, first two unnumbered pgs.). (Tr. 2488:12-2489:5 (1/12/94)).
Nautilus makes the following arguments: (1) the Coast Guard report is not trustworthy and therefore should not be admitted pursuant to Federal Rule of Evidence 803(8)(C); (2) a regulation providing that such reports of marine casualties "are not intended to fix civil or criminal responsibility" precludes the admissibility of the report (46 C.F.R. § 4.07-1(b)); and (3) even if admitted into evidence, the Court should give the report little weight because it is speculative and unreliable.
1. Admissibility pursuant to Federal Rule of Evidence 803(8)(C)
a. General Application of Beech Aircraft decision
Federal Rule of Evidence 803(8)(C) provides, in relevant part, that the following items are exceptions to the hearsay rule:
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.
(emphasis added). The United States Coast Guard report prepared on the grounding of the BT Nautilus at Coastal Oil Terminal on June 7, 1990, is a public record which fits within the context of this particular rule.
The United States Supreme Court has extended the application of this hearsay exception to include portions of investigatory reports which contain factually based conclusions, and are otherwise admissible under Rule 803(8)(C), as long as the conclusions satisfy the Rule's trustworthiness requirement. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 102 L. Ed. 2d 445, 109 S. Ct. 439 (1988). Similarly, evaluative opinions contained in investigatory reports are within the scope of Rule 803(8)(C). See Moss v. Ole South Real Estate Inc., 933 F.2d 1300 (5th Cir. 1991).
In Beech Aircraft, the Supreme Court enumerated the following four factors to be considered when evaluating the trustworthiness of such reports: (1) the timeliness of the investigation; (2) the investigator's skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation. Beech Aircraft, 488 U.S. at 167, n. 11. This District suggested the finality of the findings made in the report as a fifth criterion of trustworthiness. Complaint of Munyan, 143 F.R.D. 560, 564 (D.N.J. 1992). See also Gentile v. County of Suffolk, 926 F.2d 142, 151 (2d Cir. 1991). The factors are nonexclusive (see, e.g., Taylor v. Bouchard Transp. Co., Inc., 1991 U.S. Dist. LEXIS 7993, 1991 AMC 2423, 2426 (S.D.N.Y. 1991); Munyan, 143 F.R.D. at 564), and the admission of such conclusions are ultimately subject to the safeguard of contradicting evidence presented by the opponent which may diminish their weight. Beech Aircraft, 488 U.S. at 168.
District Courts in the Third and Second Circuits have interpreted the Beech Aircraft decision broadly in admitting Coast Guard investigatory reports into evidence. For example, in Munyan, the Court applied the four factors from Beech Aircraft and found a Coast Guard report on a boating accident to be trustworthy and therefore admissible into evidence. Munyan, 143 F.R.D. at 564. Similarly, in Taylor, the Court admitted a Coast Guard report in plaintiff's personal injury claim resulting from a boating accident, relying on "the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports." Taylor, 1991 AMC at 2426 (citing Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner, and Smith, Inc., 805 F.2d 49, 54 (2d Cir. 1986)).
While Beech Aircraft dealt with the admission of a JAG report, the distinction between such report and a United States Coast Guard report is irrelevant for purposes of admissibility under Federal Rule of Evidence 803(8)(C). For example, various Circuit Courts have analyzed the admissibility of different types of investigatory reports under this rule in deciding whether to include or exclude information in the reports. See, e.g., Clark v. Clabaugh, 20 F.3d 1290 (3rd Cir. 1994) (district court did not abuse discretion in admitting PA State Police Report which contained opinions and conclusions); Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991) (state commission report was admissible); U.S. v. Costanzo, 581 F.2d 28 (2d Cir. 1978) (IRS audit reports were inadmissible because they were irrelevant); Puerto Rico Ports Auth. v. M/V Manhattan Prince, 897 F.2d 1 (1st Cir. 1990) (nautical accident report was admissible); Lubanski v. Coleco, 929 F.2d 42 (1st Cir. 1991) (conclusions in state trooper's accident report were presumed admissible but were not admitted on appeal due to harmless error); U.S. v. MacDonald, 688 F.2d 224 (4th Cir. 1982) (findings and conclusions of Army officer's pretrial investigatory report were unhelpful to trier of fact and therefore inadmissible).
The aforementioned cases illustrate that the Supreme Court's analysis in Beech Aircraft of the Coast Guard report's admissibility pursuant to Rule 803(8)(C) is generally applicable to investigatory reports prepared by public entities, regardless of the specific category of report. Under the Beech Aircraft analysis, this Court finds that the Coast Guard report, inclusive of its opinions and conclusions, is admissible pursuant to Rule 803(8)(C).
b. Trustworthiness of the United States Coast Guard Report
Nautilus contends that the Coast Guard report is not trustworthy and therefore should not be admitted into evidence. Applying the four factors to be used in considering trustworthiness as stated in Beech Aircraft, Nautilus claims that the Coast Guard report is untrustworthy because it was prepared in an untimely manner, was not based on a contemporaneous investigation of the casualty, and fails to state important evidence concerning an obstruction within the ship berth. (Nautilus's Evid. Mem. at 7-8). For the reasons set forth below, the Court finds that the conclusions and opinions contained in the United States Coast Guard report meet the criteria for trustworthiness as set forth in Beech Aircraft, and should be admitted into evidence pursuant to Federal Rule of Evidence 803(8)(C).
First, to exclude evidence which falls under this rule, Nautilus must make "an affirmative showing of untrustworthiness, beyond the obvious fact that the declarant is not in court to testify." Bradford Trust Co. v. Merrill Lynch Pierce, Fenner, and Smith, Inc., 805 F.2d 49, 54 (2d Cir. 1986) (quoting Kehm v. Procter & Gamble Manufacturing Co., 724 F.2d 613, 618 (8th Cir. 1983). Federal Rule of Evidence 803(8)(C) explicitly excepts from the hearsay rule such public records and reports, which result from investigations made pursuant to authority granted by law, because they contain inherent indicia of trustworthiness. Clark v. Claubaugh, 20 F.3d at 1294. Since Federal Rule of Evidence 803(8)(C) "is premised on the assumption that public officers perform their duties properly without motive or interest other than to submit accurate and fair reports," (Bradford Trust at 54), Nautilus faces a heavy burden in proving the Coast Guard report's untrustworthiness.
Second, in utilizing the factors set forth in Beech Aircraft, it is important to note that no one factor is dispositive, and that "there is no requirement that an investigator make use of all available materials in order to compile a trustworthy report for the purpose of Rule 803(8)(C)." Taylor, 1991 AMC at 2428. Instead, it is the overall completeness and finality of the report which matter. See e.g., Id.; Gentile at 458; United Air Lines, Inc. v. Austin Travel Corp., 867 F.2d 737, 742-3 (2d Cir. 1989) (where district court excluded portions of government reports because of interim and inconclusive nature).
Applying the factors suggested in Beech Aircraft, Nautilus' arguments that the report is untrustworthy are unpersuasive. For example, with respect to the first factor of timeliness, it appears at first glance that the Coast Guard report was completed in an untimely manner. While the grounding took place on June 7, 1990, the investigating officer did not submit the report to the commanding officer until September 14, 1993. (Report at 1). However, a logical explanation for this delay is that criminal investigations were under way for Captain Ainscough and the docking pilot, which prevented the taking of their depositions. (Tr. 13:5-25 (12/6/93)). Their depositions were finally taken in early 1993, while all other reports and findings contained in the Coast Guard report (e.g., accident reports, dive reports, and other shipping logs) were completed by no later that January 1991. Therefore the delay in the final report preparation was reasonable, and not all material contained within the report was necessarily untimely.
Nautilus also disputes the skill of the Coast Guard investigator, which is the second factor in Beech Aircraft. Nautilus argues that since a Marine Board of investigators was not selected to conduct an investigation, the resulting trustworthiness of the Coast Guard report is diminished. (Nautilus' Evid. Mem. at 2-3). In addition, Nautilus alleges that since the investigating officer did not conduct any hearings (third factor in Beech Aircraft) and ...