COLORIFICIO ITALIANO MAX MEYER, S.P.A., аnd NYMCO, S.P.A., Plaintiffs-Appellants,
v.
S/S HELLENIC WAVE, her engines, tackle, apparel, furniture, etc., and Hellenic Lines Limited and Hansen & Tidemann, Inc., Defendants-Appellees,
v.
SUPERINTENDENCE COMPANY, INC., Third-Party Defendant-Appellee.
No. 27693 Summary Calendar.
United States Court of Appeals Fifth Circuit.
November 19, 1969.
Rene S. Paysse, Leach, Grossel-Rossi & Paysse, New Orleans, La., for appellant.
Harry S. Redmon, Jr., Charles Kohlmeyer, Jr., Dando B. Cellini, Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for appellee Superintendence Co., Inc.
Before GEWIN, DYER and CARSWELL, Circuit Judges.
CARSWELL, Circuit Judge:
This case prеsents a very narrow issue of admissibility of evidence in an admiralty case.1 We conclude that the district court did not err in excluding appellants' proffer of certain survey reports and a chemical analysis. All of these documents were prepared in Genoa, Italy, and the authors were not before the сourt. Appellant concedes that the proffer was entirely hearsay, but urges that it was an abuse of the trial court's discretion to deny their admission into evidence. Appellant correctly calls our attention to the settled proposition that the elaborate rules of evidence are given liberаl construction in a suit in admiralty which is tried by a judge without a jury.2 Appellant then takes a long and final step and says there was abuse of discretion by the trial court in exсluding its proffered exhibits though they were admittedly hearsay. Without going quite so far appellant comes close to urging the proposition that it is abuse of discrеtion to exclude any hearsay evidence in a suit in admiralty since the trier of facts is a judge presumably equipped to shake the wheat from the chaff and make proper measurements on the scales of probative force.
This overemphasizes the distinction between judge and jury trials. Not all the rules оf evidence are designed to insulate jurors from improper evidence. There are those specifically designed to protect the rights of litigants. Directly in point is the rule against hearsay which has as its primary purpose the protection of the right of litigants to confront the witnesses against them and to test thеir credibility through cross-examination. The right of cross-examination has been described as "the greatest legal engine ever invented for the discovery of truth." 5 Wigmоre on Evidence, § 1367, p. 29. These crucial rights cannot be denied upon the mere ground that the rules of evidence are very liberal in admiralty matters.
Tested by thеse familiar standards we find no abuse of discretion here in the denial of the proffered documents. The record here gives us a brief but illuminating background which led tо the trial judge's decision. The admiralty action was filed by appellant, Colorificio, in 1964, to recover for alleged damage to a bulk consignment of liquid Acintоl which left New Orleans aboard the appellee's vessel, S/S HELLENIC WAVE, in December of 1961 and arrived in Genoa, Italy in January of 1962. A third-party complaint in 1968 brought in Superintendence Company, Inc., as a third-party defendant. Trial was held in 1969, at which time appellants attempted to introduce into evidence the disputed survey reports and chemical analysis.
From the early stages of this unhurried, even lethargic, litigation, appellee had consistently objected to the receipt in evidence of the subject documents as hearsay. The record makes it plain that appellant should not have been surprised on the ultimate day оf trial that this objection would be renewed. While admitting the authenticity of the documents appellee insisted their admission in evidence would violate the heаrsay rule and deny it its right of cross-examination. It noted, for example, that the documents were prepared some time after the critical date of thе events to which they referred, and that this in itself was sufficient cause to require further explanation by examination.
It has never been, nor is it now, the practice of the admiralty courts to deny a litigant the right of cross-examination and confrontation through the admission of hearsay evidence. The rule is well established thаt survey reports and similar documents, offered without supporting testimony, are not admissible in evidence. The Vivid, Fed.Cas.No.16,978,
Despite the applicability of the hearsay rule, Colorificio also urges that these documents should have been admitted under the Official Records Act, 28 U.S.C. § 1732, as records made in the regular course of business. The documents under consideration here, however, are not within the purview of thе statute. In the leading case of Palmer v. Hoffman,
"* * * it is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like these reports are calculated for use essentially in thе court, not in the business. Their primary utility is in litigating, not in railroading."
Survey reports are subject to the same criticism. Their objectivity is suspect because of their intended usе in litigation. In Hagans v. Ellerman and Bucknall Steamship Company,
The District Court in the instant case utilized the samе simple precepts relied upon in The Stella Lykes. It found Colorificio's documents to be hearsay. They are not "admissible hearsay," however, because they are not "business records" within the meaning of the Official Records Act. Hence, they are inadmissible.
Finally, Colorificio assigns as error the Court's failure to keep the case open to allow it to obtain the testimony of the surveyors and analysts whose reports were held inadmissible. An identical motion to keep the case open was made by plaintiffs in The Stella Lykes, supra, after the rejection of the survey report they sought to introduce. The Court denied the motion, noting that "plaintiffs had had adequate time to prepare their case."
Affirmed.
Notes:
Notes
Pursuant to Rule 18 of the Rules of this Court, wе have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969,
See 3 Benedict § 381b, p. 5 and 8