In Re the Complaint of Nautilus Motor Tanker Co.

gravamen Margiotti s claim is Conclusion that, explicitly the district court consid had above, For reasons judg- stated ered what would constitute a “reasonable ment of the district is court affirmed. punishment” and incremental followed the methodology Application Note it would

have concluded that a concurrent sentence or commencing

a sentence from a future date appropriate

certain was in case. We

conclude that the defendant cannot meet the here,

plain error standard for several rea

sons. First, previously we have made clear In the Matter of the COMPLAINT OF Application that 3 to Note 5G1.3 adviso CO., NAUTILUS MOTOR TANKER ry binding and not on district courts. LTD. as owner of the BT NAUTI- M/T McCormick, sentencing F.3d 878. A LUS for from Exoneration or Limita- required explicitly court “is not demon Liability, tion of engaged that in strate the multi-count sentencing methodology established Co., Nautilus Motor Tanker commentary,” but must “consider the basic Ltd., Appellant. principle that a consecutive sentence should imposed be the extent it will result in No. 95-5126. (in penalty.” reasonable incremental Id. omitted). quotation

ternal marks Section Appeals, United States Court of 5G1.3(c) simply require does use of Third Circuit. any particular verbal formula or incantation. Argued Oct. 1995. Accordingly, the district court’s failure to 5G1.3(e) expressly accompa invoke or its May Decided nying commentary suggest cannot itself approach the court’s error.

Second, the district court’s statements at August hearing on the defen-

dant’s motion to correct his sentence show .

beyond any possible doubt district impose

court well understood its discretion

a concurrent sentence chose not to do so.

Indeed, judge specifically district af- that,

firmed because the nature offenses,

federal and state he viewed a con-

secutive sentence as reasonable incremen- punishment, regardless

tal of the date the ultimately paroled by

defendant was

state.

Finally, light fact that the date of

Margiotti’s parole rests within the sole dis- Board,

cretion the Vermont Parole Mar-

giotti simply imposition cannot show ultimately a consecutive will sentence re- punishment

sult in total signifi- that differs

cantly from what Applica- the calculation in prescribed.

tion Note would have sum, presented, the circumstances we error, plain

see no much less error. also, F.Supp. 1251.

See Gardner, Reilly (argued), Haight,

John J. Havens, City, Poor & New York for Limita- Plaintiff-Appellant tion Nautilus Motor Co., Tanker Ltd. (argued), Hill Rivkins

Richard H. Webber Mulroy Hayden, Loesberg New O’Brien & Defendant-Appel- Limitation City, York York, lee Coastal Oil New Inc. STAPLETON, Before: McKEE and *, Judges. NORRIS Circuit OF THE OPINION COURT McKEE, Judge. Circuit dispute grounding This arises from the Nautilus, tank- BT an 811 foot oil tanker Tank- by appellant er Nautilus Motor owned Co., (“Nautilus”). grounding er Ltd. That 230,000 approximately gallons caused of fuel waterway Kill spill oil to into the van Kull * Norris, by designation. United The Honorable William A. Senior Circuit, sitting Judge Ninth States Circuit for the Thereafter, Jersey. Nautilus Bayonne, New On June Nautilus filed petition in the proceeding seeking in the United district court exonera commenced liability tion limitation of its under the District Court for the District of New States and/or Act, Liability Act, §§ Limitation of Liability U.S.C. 181- Jersey under the Limitation of responded by filing 189.2 181-189, Coastal a claim escape §§ an effort U.S.C. Nautilus, against responded by and Nautilus potential in- liability from various claimants seeking damages (“Coast- alleged negli for Coastal’s York, Inc. cluding Coastal Oil New gence causing grounding. al”), the owner of the terminal. Coastal filed alleging against a counterclaim Nautilus ensuing At the bench trial on Coastal’s solely responsible for Nautilus was counterclaim, argued that Coastal trial, grounding. Following nonjury duty wharfinger “had breached its as a be- judgment for district court entered Coastal grounded ship cause the vessel either in the against Nautilus on Coastal’s counter- or, if grounded ship berth outside claim. berth, approach to the berth was unsafe.” Appellant’s Brief 5. Coastal countered appeal judgment, from we are arguing grounding that the was a direct con- asked to determine whether the district court sequence negligent navigation by the ves- opinions admitting erred in and conclusions captain docking pilot. sel’s and the Report in contained a Coast Guard of the September On the district court incident into evidence. We must also decide findings issued its of fact and conclusions of possible application of a the relevance and law. The court found that BT Nautilus of maritime rather ancient rule law—the aground ran “at least 125 feet east of the controversy; Pennsylvania Rule —to this and berth,” Nautilus, ship Coastal New York finally, we must decide whether the district 1268, F.Supp. at and that Nautilus had failed concluding in court erred that Coastal’s fail- prove by preponderance a of the evidence provide navigational ure to aids and informa- alleged that negligent Coastal’s acts ship tion about the limits of its berth did not proximate were a grounding. cause of the contribute to the accident. For the reasons Accordingly, judg- the district court entered follow, ruling that we will affirm the of the favor, ment in Coastal’s appeal and this fol- district court. lowed. challenges judgment Nautilus on I. First, grounds. three Nautilus contends that admitting opinions the district court erred in only briefly underly- We need set forth the and conclusions contained in a Coast Guard ing they facts as are detailed in the district Second, Report of this incident. Nautilus opinion, In the court’s Matter the Com- Pennsylvania argues that the Rule created a Co., Ltd., plaint Motor Tanker Nautilus burden-shifting presumption that Coastal’s (D.N.J.1994), F.Supp. largely and statutory grounding. violations caused the morning uneontested. On the of June Finally, argues Nautilus the district Co., Towing Transportation, Moran & clearly finding court erred that Coastal’s (“Moran”) dispatched tugs Inc. two and a provide navigational failure to aids infor- docking pilot, Captain Naughton, James ship mation on the limits of berth did not Captain assist BT Nautilus Albert Frank grounding. contribute to the Ainseough docking his vessel at Coastal’s Bayonne, Jersey. jurisdiction terminal in New As the pursuant have to 28 We terminal, 1292(a)(3), ap § Nautilus neared it ran U.S.C. which authorizes an aground.1 peal interlocutory determining from an order injury parties dispute freight (except personal 1. The the exact location of the as to claims of aground. death), Nautilus when it ran provided damage was incurred knowledge privity without the of the owner. Liability ship- 2. The Limitation of Act enables Schoenbaum, Admiralty See T. Law, and Maritime liability damage owner to limit his arising claims ed„ (1994). 2d. 21-7 vessel, voyage out of the of his to the pending of his in the value investment vessel and agency, person parties of the other contributed rights liabilities casualty this ... admiralty eases.3 ¶¶ 2, (“Report”) At Report Guard Coast trial, Report Coastal offered the entire into II. exception hearsay under the evidence Admissibility A. of the 803(8)(C).5 The records, FRE public rule for Report. Guard Coast objection report court received the over the objection upon of Nautilus. That was based regulations require Coast Guard provision regulations the Coast Guard to conduct an investi personnel Coast Guard that states: following ma report gation, prepare investigations ... of marine casualties are 46 C.F.R. rine and accidents. See casualties purpose taking appropriate mea- for the (1994).4 Accordingly, United 4.07 promoting safety prop- sures for of life and investigated the June Coast States sea, erty at fix civil and are intended to grounding the Nautilus and issued responsibility. or criminal part: public report stated 4.07-l(b). argued 46 C.F.R. apparent grounding cause of was foregoing portions Report held “no Docking Pilot to on failure evidentiary other to fix liabili- relevance than BT within the maintain the NAUTILUS ...”, Appellant’s ty Brief and should ... navigable [t]he of the channel limits 4.07-l(b). under therefore be excluded docking pilot not familiar with the dredged under- The district court concluded that shape or dimensions of Report fit the confines of FRE leading from the channel entire within water basin 803(8)(C) irrespec deemed admissible the Terminal. 4.07-l(b).6 § 46 tive of C.F.R. Except as above there is no evidence noted misconduct, duty, neg- upon appeal, principally On Nautilus relies of ... inattention to States, (9th regula- Huber 838 ligence, or violation of law or v. United F.2d 398 willful Cir.1988), any personnel progeny argue of to that the tion ... evidence nor Guard, Report any admitting or of other federal district court erred in the the Coast 1292(a)(3) appeals may the recurrence of similar casualties made; be 3. Section vests courts of "[i]nterlocutoiy jurisdiction appeals de- of from determining (3)Whether of ... courts ... the crees district there is evidence that act of misconduct, parties admiralty rights duty, the negligence and liabilities of inattention to or 1292(a)(3). pur- § ...". U.S.C. The cases 28 law on of willful violation of the the parly pose provision found of this allow a or man the licensed certificated contributed to admiralty proceeding an liable in to take an casualty, proceedings against appropriate so that submitting pro- appeal to a immediate without may the license or certificate of be recom- such damage See T. tracted trial of the issues. ... mended taken Schoenbaum, appealable un- 21-13. To be at 1292(a)(3), admiralty an der section order in 803(8)(C) the as 5. FRE allows court to admit rights of all need not determine all and liabilities evidence of the truth of statements contained Star, e.g., Kingstate parties. See Oil v. Green M/V therein: (3d Cir.1987) ("the order F.2d statements, "Records, compi- reports, or data conclusively appealed determine from must setting public agencies, ... or lations of offices defense[]”); a Trust merits of claim or Bankers (C) proceedings actions forth ... in civil Corp., 945 n. Steel 761 F.2d Co. Bethlehem resulting findings ... factual from an investi- (3d Cir.1985). Accordingly, jurisdic- we have by gation pursuant authority granted made only though appealed even from tion the order law, unless of or other the sources information decided counterclaim. Coastal's lack circumstances indicate of trustworthi- provides: 4. 46 C.F.R. 4.07 ness." closely investigation as The will determine as court, evidentiary chal- In the district Nautilus’ possible: lenge paragraphs eigh- accident; was limited to two and (1) The of the cause report. Accordingly, we (2) teen of the Coast Guard any failure there is evidence that Whether admissibility challenged (either decide of physical design) those was in- of material findings making any casually, as to so that without determination volved or contributed proper prevention admissibility Report. entire for of recommendations

m Huber, In two crew members into evidence. are excluded from evidence yacht authority sank Congress. when their north of San on drowned Bay. surviving crew member Francisco Id. at 403. Other courts have relied on the joined representatives in suit decedents’ reasoning of to bar Huber the admission of against Coast to assist Guard failure opinions and conclusions in Coast Guard Re trial, plaintiffs sought At to ad- the vessel. ports. Tankers, See Petition Cleveland Reports prepared mit two Coast Guard (6th Cir.1995) Inc., (Bar 67 F.3d govern- the accident. The aftermath ring opinions and conclusions in Coast objected argued ment the conclu- Report); Yap Guard v. Controlled Parasail Reports sions and recommendations Honolulu, Inc., ing 76 Hawai'i 4.07-l(b). by were barred 46 C.F.R. 1321, 1328(1994)(Same). P.2d government’s objection, court overruled the argues since the Coast Reports into as and allowed evidence pursuant acted congressional Guard au- party FRE opponent admissions of under 4.07-l(b) thority, preclude C.F.R. must 801(d)(2). admissibility paragraphs eigh- two and Appeals appeal, On the Court for the Report. teen of the Coast Appellant’s Guard that, Ninth reversed. The court Circuit held Reply agree. Brief at 2. do not We 4.07-l(b), under section “the Coast Guard First, government party is not a to this investigating recom- officers’ conclusions and Thus, litigation. Huber, unlike the Coast ... mendations inadmissible as evi- [are] outcome, has no interest arising proceedings dence in civil out of acci- justification policy regulation’s for the investigation reports.” dents covered evidentiary ensuring frank disclosure Huber, reaching F.2d at 402. bar — investigators completely Coast Guard result, emphasized the court first —is the necessi- investigators removed. The here have no ty of such rule under the circumstances of full, fair, bias that interfere with a it: the suit before report of findings accurate their or affect the investigator might A Coast Guard feel less investigation. of their course suggest appropriate free to measures ‘for safety promoting property of life and Second, fundamentally, and more thought any suggestion sea’ if he ruling we affirm the of the district court might precautions in im- additional result regula because is axiomatic that federal liability posing pecuniary govern- on the “trump” repeal or tions can of Con Acts ment. gress. e.g., Wambaugh, See v. McComb 934 (citing Id. at 402-403 Reliable Co. Cir.1991) (“No (3d Transfer regulation F.2d 481 States, (E.D.N.Y. v. United 53 F.R.D. 25 ...”). legislative can override intent 46 1971)). perceived The court a also noted 4.01-l(b) § Congress; not an C.F.R. is Act of 4.07-1(b) § similarity between 46 C.F.R. contrast, regulation. it is federal a the federal enactments such as 49 U.S.C. by Federal Rules of Evidence were enacted 1903(c) § bars the admission into evi —which Congress by regarded and must be prepared reports by dence of accident the any as Court other federal statute. Daubert Transportation Safety National Board.7 The Pharmaceuticals, Inc., v. Merrell Dow 509 court noted difference between 579, 585-87, 2786, 2793, U.S. 113 S.Ct. 125 statute, regulation the latter and the former Wright also, (1993); 21 L.Ed.2d see C. & is that: Graham, K. Federal Practice and Proce (1977) (“Since pursuant one the Coast acted to Guard 5013 at 120 dure: Evidence authority Congress by from ... in the the Rules Evidence were enacted Con other, Congress directly gress, question delegated power acted ... Either no in is volved.”). way, portions result all is the same: or 1903(c) any damages growing ‘‘[n]o 49 U.S.C. states that used in suit or action for any report Transportátion [National Safe- any report out of matter mentioned in such or Board, ty] relating investiga- to accident or reports.” thereof, tion shall be admitted as or evidence upon position urged a The us initially proposed by the such status. Although Su Court, judicially Rules by Federal of Evidence cause us to preme would by Congress, Act of by law replacing enacted into were amend this enactment 93-595, 88 Stat.1926 Pub.L. Congress” language Jan. phrase “by Act of (1975), proceedings in the they “govern of, “by pursuant similar to: Act 101; FRE see also courts of United States.” authority of, Congress.” Report Since the 897, 904 by Wang, 846 F.2d Salas v. Salas by government agency, its prepared was Cir.1988). (3d Although promulgated pursu admissibility appropriately considered authority,8 congressional 46 C.F.R. to ant 803(8), public excep- under record Rule 4.07-l(b) regulation. dele The remains Versaint, e.g., tion. States v. See United power that authorized congressional gation (3d Cir.1988). Accordingly, F.2d we regu transform the promulgation did not the lead of decline the invitation follow Congress, nor it to into an allow lation Act Huber, progeny. and its duly contrary provisions of en prevail over Accordingly, Coast Corp. acted statutes. In Beech v. Rai Aircraft not, regulations, through its limit 439, 102 153, 109 ney, L.Ed.2d 488 U.S. S.Ct. prescribe authority Congress to (1988), Supreme Court considered admissibility of evidence enforce rules for the public exception whether records e.g., See Romero in the federal courts. rule, 803(8)(C), hearsay Rule extended (The (D.Colo.1994) U.S., 649, 652 153 F.R.D. opinions reports. in public conclusions Army an of Evidence override Federal Rules There, considered admission the court 516.42, purporting regulation, 32 C.F.R. Judge into of a Advocate General evidence expert testimony.). Army limit an doctor’s Report Navy plane crash on a United States during jury trial. Court concluded provides the baseline for FRE 402 803(8)(C) preclude in did not Rule admissibility determining evidence opinions and in such troduction of conclusions Daubert, e.g., the federal courts. See long as two met. so criteria were 585-87, at 2793. That rule U.S. at 113 S.Ct. First, in such a must be report all statements provides that: investigation. based on factual Id. admissible, except is All relevant evidence Second, any portion 109 S.Ct. at 449. by the provided Constitution as otherwise sufficiently report must that is admitted be States, Congress, by Act of of the United trustworthy. Id. at at 449. S.Ct. rules, by pre- other rules these Supreme approval four Court cited with pursuant Supreme scribed Court to be in deter non-exhaustive factors used statutory authority ... sufficiently mining report trust whether evi- FRE 402. FRE 401 defines “relevant” worthy: “having tendency to as dence evidence any fact is of make the that existence (1) (2) investigation; of the the timeliness the ac- consequence to the determination of (3) investigator’s experience; skill and probable it probable or less than tion more (4) held; hearing possi- a was whether Thus, the be without the evidence.” would reports prepared are with a ble bias when Report were contents of the Coast Guard litigation. possible view to directly issues relevant before Here, 11, 109 Id. at n. S.Ct. at 449 n. 11. court, under district and therefore admissible cri properly applied these district court Constitution, by the FRE 402 unless barred teria, they that concluded were satisfied of Evi- Congress, an Act of a Federal Rule paragraphs eighteen two and admitted by Supreme prescribed a dence or rule 803(8)(C). Report under statutory authority. Coast Rule Guard pursuant Court in that regulation do think that the court erred Clearly, no can claim We not Coast Guard 1949, (1949). statutory provided Congress expressly that Pursuant to that U.S.C. 8. In promulgate shall ... grant, promulgated "[t]he Coast Guard 46 C.F.R. the Coast Guard regulations safety promotion enforce for the § 4.07. high property and under the seas ...” life and on

H3 Moreover, public Report re tions of the analysis.9 we note were admissible under 803(8)(C). in Rule presumed admissible the first ports are opposing party and the their intro instance coming forward Pennsylvania

duction bears the burden B. The Rule. enough “negative persuade a factors” Pennsylvania Rule is named report that a should not be admitted. court admiralty for the famous in ease which it was 167, Aircraft, Beech 488 U.S. at S.Ct. provides first announced. The Rule routinely have admitted conclu Courts when: and recommendations in Coast Guard sions ship at the a time of collision is in actual Reports Aircraft, irrespective of under Beech statutory violation of a rule intended to 1(b). 46 C.F.R. See Puerto Rico 4.07— collisions, prevent it is no more than a Prince, Authority v. Manhattan Ports M/V presumption fault, reasonable if (1st Cir.1990) 1, (Affirming 897 F.2d cause, not the sole was at least a contribu- district court’s admission of three conclusions tory ease, cause of the disaster. In such a Report); in a Fox v. Coast Guard United upon ship showing the burden rests Anderson, No. States and Robert Civil C-94- merely might that her fault not have (N.D.Cal. 0941, 14, op. February slip at 4—8 causes, probably been one of the or that it 1996) (Coast report admissible under not, but that it could not have been. 803(8) long report Rule so as meets trustwor (19 Wall.) Pennsylvania, 86 U.S. Aircraft); Wright of Beech thiness standard (1873). 136, 22 pre L.Ed. 148 While the Inc., Daviesyndicate, v. 1993 WL sumption that arises under the Rule is rebut (E.D.Pa.1993) (Conclusions *8,*9 n. 10 con table, very language, Id. at it is Report in tained Coast Guard admitted with weighty Although originally one. the Rule comment); Complaint out Kenneth I. Mu applied ships, collisions between (D.N.J.1992) nyan, F.R.D. 565-66 apply has been reformulated to statu (Conclusions opinions in Coast Guard tory party violator who is to a maritime Report deemed admissible under Rule e.g., Producing accident. See Pennzoil Co. 803(8)(C)); Bouchard, Taylor v. 1991 WL Inc., 1465, 1471 Express, 943 F.2d Offshore (S.D.N.Y.1991) (Opinions *4 and con (5th Cir.1991). admitted).10 Report clusions Coast Guard Marine, In United States v. Nassau Accordingly, (5th Cir.1985), we affirm the district court’s 778 F.2d the court artic evidentiary ruling challenged por- determining apply ulated test when to trustworthiness, thority." power, any, 9. Nor does attack Whatever if the Coast Aircraft, challenged portions under Beech admissibility Guard had over the of evidence a report appeal. of the Coast Guard on this 1949, Congress away federal court in took promulgation 1975 with the of Rule 402. Ac- dissenting colleague mistakenly suggests 10. Our cordingly, agree colleague we cannot with our 4.07-l(b) holding that 46 that our C.F.R. does (b) precludes that 46 C.F.R. 4.07-1 the admis- opinions not bar the admission and conclu- opinions Reports sion of and conclusions in Coast Guard sions in Coast Guard ity rests on author- Prince, Fox, Wright, Munyan of Manhattan reports otherwise admissible under Rule Taylor. Although opinions and conclusions 803(8)(C). in Coast Guard were admitted in these analysis colleague’s cases, Nor is our altered our holding squarely our rests on the Federal light suggestion holding may of Evidence that our soon be “over- Rules of Beech Aircraft. Aircraft, Supreme Beech the Court extended the by pending Congress. ruled” a Act of To the 803(8)(C), public exception, records to Rule con- contrary, today congressional we hold that action opinions trustworthy clusions and set forth in necessary colleague is to achieve the result our 170, investigation reports. 488 U.S. at S.Ct. 109 However, suggests appropriate here. role our Congress at 450. enacted 14 U.S.C. 2 in 1949. anticipate legislative developments. is not to Cf. Congress subsequently enacted the Federal Rules Boling, United States v. (10th 947 F.2d n. 5 of Evidence in 1975. Federal Rule of Evidence J., Cir.1991) (“[t]he (Holloway, dissenting) provides “[a]ll 402 missible evidence is ad- relevant proper judiciary role of the should not be a race except provided by as otherwise the statute.”). Congress to amend a federal Ac- States, by Constitution of the United gress, by Act of Con- cordingly, congressional rules, we are to content await by prescribed these or other rules by Supreme pursuant statutory the Court au- action. 114 Appellant’s Pennsylvania proof. Rule. of the burden of reversal presumption the

the must at 29. held that three elements Brief That Court (1) by a of the proof preponderance exist: rejected theory court Nautilus’ The district regula or of violation of a statute evidence grounding apply of the and refused the (2) duty; the mandatory a imposes tion that Pennsylvania Rule. concluded The court marine regulation must involve or statute Nautilus apply the Rule did since had (3) injury suf safety navigation; and the or any impact presented no evidence that had the statute or of a nature that fered must be ship in or near occurred Coastal’s berth —the Id. at prevent. regulation was intended dredging location of the violations. v. CSX Cor 1116-1117; Folkstone Maritime “high spots” If the BT Nautilus had hit or Cir.1995). (7th 1037, poration, F.3d berth, ship in then some obstruction the satisfied, party a criteria are If each of these proving Coastal would have the burden statutory a presumption that to a is entitled statutory could not its violation have caused, or at least violation of a defendant “high spots” caused the or the obstruction. to, damage com injury the contributed ground BT in But the Nautilus did not the However, statutory a violator plained of. grounded It in ship berth. an area well to by Rule presumption the of the rebut east, the outside federal channel and the showing convincing making a clear and ship outside the berth. Nautilus has never proximate could not have been a the violation by impacted contended area was the collision, M/T cause of the Cliffs-Neddrill in dredging barge the berth. Coastal (3d Cir.1991), Duke, 83, Rich F.2d Nautilus, F.Supp. at 1273. The district demonstrating would by the accident required statutory court thus some “nexus between the despite violation. the have occurred Maritime, accident”, Id. at statutory violation e.g., Folkstone 64 F.3d at and the See 1274, applying precedent as a condition 1047. doing so, upon Rule. In court relied on this The Rule casts its shadow States, Gosnell v. United holding in undisputed that it is case because (4th Cir.1959). F.2d 559 over-dredging in its engaged Coastal Gosnell, Navy the United States beyond scope of its U.S. barge berth Statute, violated the Wreck 33 U.S.C. Engineers permit in violation Army Corps of barge by towing great speed— a at too Act 10 of the and Harbors of Section Rivers causing Bay. Eight it to sink in Delaware dredged 33 U.S.C. 403.11 nearly days from the ship later four miles site displaced material was into Coastal’s casualty, a navigational fishing of the vessel sunk after causing “high spots” or berth object bay. striking an unseen the same in that area. obstructions fishing brought of the The owner vessel part of Nautilus theorizes that the forward States, against claim United ship berth the BT Nautilus Coastal’s entered appeals court of affirmed the district court’s morning and struck on the of June apply Pennsylvania Rule refusal high spots, Transcript of Oral of these one any absence of evidence of a nexus between causing Argument thereby at the vessel Id. statutory violation and the accident. bottom midpoint to rotate so that struck The court at 564. stated: Id. ship point at a outside of the berth. that, ... However, Any plaintiff to hold a even who seeks de- argues (1) fendant liable ... show: assuming aground BT out- must Nautilus ran (2) harm; berth, ship grounding physical within cause of fault on the side Coastal’s person sought of the Terminal should of the to be held re- the limits Coastal (3) implicate Pennsylvania require sponsible; causal connection Rule be- States, creation of of the United unless the work has 11. 33 U.S.C. 403 states that: "The water by Engineers affirmatively obstruction not authorized been recommended the Chief Secretary Army Congress, navigable capacity and authorized ..." prohibit prohibited to of the United ... and This maritime statute is intended ob- waters States fill, any navigable waters. See not be lawful to excavate or or in structions hazards in it shall (8th Cir.1982). any navigable Logan, modify e.g., v. manner to alter or ... U.S. 676 F.2d 1216

H5 data.”). Here, physical supportive evidentiary fault and the cause expert tween such parties commercial divers hired both con- aground cluded vessel ran Gosnell, (quoting F.2d at 262 563 ship east Coastal of the berth and outside the (D.Md.1957)). YFNX-6, 325, F.Supp. eyewitness testimony federal channel. The Thus, in cases where there is no clear link doekworker, Rovatsos, of a Coastal Theodore statutory the casu- between the violation and supported that conclusion. No diver ever advantage alty, party seeking to of take any found evidence of kind to support required the Rule has to make some been theory impact of ship Nautilus’ in the Coastal statutory may showing that violation Moreover, berth. Nautilus could not demon- relation to have had some the accident. strate that the forward 400 feet of the vessel Indeed, rule, contrary urged such as is damaged any way were the morning on upon by appellants, us would result suggests that, June Common sense liability presumption following statuto- ground had BT Nautilus first struck ry violation no matter how remote incon- ship suggests, berth as Nautilus the for- sequential a violation been such have part ward of the vessel would sustain some subsequent precedent accident. Neither damage, ground- or reflect some trace logic compels nor such a drastic result. The Yet, ing. there was no evidence even clearly Rule was intended to aid those who scratching paint minor of the on the forward injured statutory had been as a result of the BT Nautilus. admiralty. violation of a defendant We do it was intended increase the believe Since the effects of Coastal’s statuto liability likelihood of no matter how remote ry (i.e., violation were an area limited to injury statutory and unrelated an to a viola- berth) ship nearly only 125 feet from the tion. point grounding impact,12 we refuse to Pennsylvania Rule was not meant to require application the mechanical requires fast be hard and rule that Moreover, Pennsylvania Rule. assuming even finding statutory of fault violations no applied here, the Rule believe we Coastal speculative, improbable, matter how or re- presumption rebutted of causation with mote. overwhelming illegal dredg evidence that its Cliffs-Neddrill, 947 F.2d at 88. ing not have proximate could been a cause of 1990 grounding the June because the In another context we have stated “ reason, grounding occurred outside berth. stops stops ‘[w]here See there e.g., Fire Barthelemy, rule.’” Aetna v. U.S. Insurance Co. Allied Tow 33 F.3d (3rd 1994) Cir.1992) (Wheth (4th Cir., (quoting ing, 966 F.2d Karl N. Llew- Pennsylvania applied er Rule ellyn, was is irrele JURISPRUDENCE: REALISM IN THEORY (1962)). party proved ship’s vant since at trial that his Practice lights failure to have its on could not have Here, the district court found that collision); Barge been cause Alter Line v. point impact of the BT was Nautilus Transportation, 801 F.2d TPC ship least 125 east of feet Coastal’s berth (8th Cir.1986) (Even assuming that the over illegal dredging operations where the had tug statutory fault, committed a taken failure finding clearly occurred. That was not erro- Pennsylvania apply Rule is irrelevant e.g., Liggett Group, neous. See Haines v. clearly that overtak since evidence indicated (3d Inc., Cir.1992) (Under 975 F.2d collision). ing tug sole cause of clearly standard, findings of fact erroneous made in tried actions the court without a Duty Coastal’s Provide C. jury may findings be reversed if such Approach. a Safe “completely are devoid of minimum eviden- tiary support displaying Finally, some hue of credibil- contends ity, relationship duty or ... no bear rational the Coastal breached its of reasonable dili- (Tr. ship experts, high spots 12. Nautilus’ own Ernst berth. Frankel obstructions in its Booze, 1296:3-1297:9; 1303:18-1304:10; testified Herman that the effects of Coast- Tr. Tr. 1307:1-13). illegal dredging probably al's were limited to 116 charted,

gence wharfinger. particular, stationary object In appel- as a or obstruction. 186, 197, 804, argues duty Oregon, lant that Coastal “breached its 158 15 U.S. S.Ct. approach by failing 809, (1895); provide to a safe to in- City 39 L.Ed. 943 Boston v. (1st navigational provide Texaco, 1396, informa- stall aids S.S. 773 F.2d 1398 Cir. 1985). Ship Ap- tion limits of its Berth.” about the However, pellant’s Brief at 33. the district addition, in substantial evidence alleged court concluded that Coastal’s omis- dicated that unofficial aids were for sufficient proximate sions were not a cause of the June navigating approach a safe to the Coastal Nautilus, 7,1990 grounding. F.Supp. at ship Although experts berth. Nautilus’ finding 1276. that under a “clear- We review marking maintained that the absence of aids 52(a). ly erroneous” standard. Fed.R.Civ.P. boundary ship of the berth made the law, admiralty Under is well- difficult, approach explicitly the district court wharfinger party settled that a who invites a testimony expert, credited the of Coastal’s guarantor to use its dock facilities is Jay Bolton, Captain eyewitness, D. However, safety. of the vessel’s the wharfin Rovatsos, Theodore as to the existence and ger is “bound to exercise reasonable dili adequacy of unofficial aids. The district gence ascertaining the condition of the regarding testimony, court’s conclusions such any dangerous berths and if there is obstruc credibility, based on assessments witness tion, it, give remove due notice of its deserving highest degree appel are of the existence to vessels about to use the berths.” City late deference. Anderson v. Bessem Burnett, 430, 433, 19 Smith U.S. S.Ct. N.C., 564, 575, City, er 470 U.S. 105 S.Ct. (1899). 442, 443, wharfinger 43 L.Ed. 756 A (1985). 84 L.Ed.2d 518 More duty approach. also has a to maintain a safe over, investigators, Coast Guard who would 436, 444; Id. at 19 S.Ct. Trade Banner expected target dangers, be such never Line, Co., Steamship Inc. v. Caribbean any inadequacy mentioned navigational (5th Cir.1975); F.2d Sonat Marine Docking pilot Naughton aids here. even tes Co., F.Supp. Inc. v. Belcher Oil (the parallel tified that a dock IMTT Facili (3d (D.N.J.1985), 787 F.2d 583 ty), respects, aff'd similar in all relevant was safe Cir.1986). However, duty there is no to en despite navigation the absence of aids to surroundings sure safe or warn of hazards beyond existing those at the Termi Coastal merely Line, vicinity. in the Trade Banner Furthermore, nal. we cannot fail to note short, 521 F.2d at 230. In a vessel should be throughout period grounding, enter, wharfinger’s able to use and exit a similar tankers docked without incident or dock being exposed facilities without to dan objection navigation to the absence of official gers by reasonably that cannot be avoided al aids or information on the limits on Coast

prudent navigation seamanship. ship al’s berth.14 Finally, We do not find undisputed Captain the district court’s it is Ains- clearly cough determination as to causation to copy be maintained a of The Guide to First, navigational erroneous. marine charts Tanker Ports on board the BT Nautilus at (British Admiralty on board the BT Nautilus grounding. Although the time of the 2753), docking Chart No'. and known to procedures docking its Guide and its for at the pilot clearly accurately depicted the area Coastal Terminal were well-known both in which BT aground Ainscough Naughton, Nautilus ran as a neither chose to Moreover, moving shallow area.13 morning vessel follow instructions on the subject and her presumption grounding. owner are to a departed The BT Nautilus negligence nearly when the vessel strikes a well- the Coastal Terminal three hours be- issue, purposes Especially 13. For of this Nautilus does not in the aftermath of the June dispute finding the district court's as to the loca- grounding, we find it difficult to believe grounding. Appellant's tion of the Brief at 33. experienced object mariners would fail to (i.e., perceived danger inadequacy naviga- Liberty 14. The Steam Tanker Cove docked on aids) tional at the terminal. Coastal Nestor, May July 1990 and 1990. The BT Nautilus, ship July the sister of the BT docked on

H7 (3) by misconduct, the time the Guide. whether an act of fore recommended incom- petence, unskillfulness, sug- negligence, district court The evidence before the or will- that, Ainscough simply left at ful gests by any per- had violation of law committed time, son, officer, suggested including employee, his vessel would have en- an or Guard, superi- currents and countered minimal tidal member of the Coast contributed to Moreover, having docking casualty, conditions. ar- the cause of or or to a death currents, strong casualty; at rived a time of tidal involved in the Naughton compounded the error when he (4) is whether there evidence that an act “breasting approach in” failed to utilize the subjecting penalty the offender to a civil recommended the Guide. under the laws of United has States committed, appropriate been so action The district court’s conclusion that this may be to penalty; undertaken collect the grounding was not caused a breach of is, duty therefore, part on the of Coastal (5) whether is there evidence that firmly supported by this record. criminal act the laws of under the United committed,

States has been so that may appropriate matter be to referred au- IV. prosecution; thorities for reasons, foregoing For the we affirm will (6) is whether there need for new laws judgment of the district court. regulations, or repeal or amendment or of existing regulations, prevent laws or to STAPLETON, Judge, concurring: Circuit casualty. recurrence of the join opinion I I court. write provides Section 6305 further that the Secre- separately only I because believe there is an tary regulations prescribe concerning shall additional, persuasive, equally reason reports investigations of such and re- why § Regulations 4.07-1 of the Coast quires that those be “made available investigation not bar the did admission public, they to except the extent that report in apparent this case. It to seems me contain information related to the national Secretary, adopting regula- that the this security.” tion, prescribe gov- did not intend to rule directives, Secretary Pursuant to these erning the evidence in a admission of court of 4.07-1, promulgated has C.F.R. law. prefatory Subpart relating section to 46 of Section 6301 of Title the United “Investigations.” provides: It provides: Code States § 4.07-1 Commandant or District Com- Investigation marine casual- investigation. mander to order ties (a) The or Commandant District Com- Secretary prescribe regula- The shall upon receipt mander information of investigation tions for the immediate accident, casualty marine or will immedi- decide, part marine casualties this under ately investigation cause such as be closely possible— as as necessary regula- accordance (1) casualty, including the cause of the part. tions death; any the cause of (b) investigations of The marine casual- (2) misconduct, whether an act of incom- ties and accidents and the determinations petence, unskillfulness, negligence, or will- purpose taking appro- made are for the ful by any violation of law committed indi- priate promoting safety measures for licensed, certificated, vidual or documented sea, property life and and are not in- under E of this subtitle has contribut- responsibili- tended to fix civil criminal casualty, ed to the cause of the or to a ty- casualty, ap- death involved in so that (c) investigation will determine as propriate chapter remedial under action closely possible: as [relating suspension of this title to license (1) taken; accident; proceedings] may and revocation be cause way saying so. a far less tortuous chosen (2) evidence that there is Whether him, likely (either as he physical The models available of material failure aware, or contributed are numerous. See involved have been design) was (“No recommen- casualty, proper report by [of licensee so U.S.C. of the recur- prevention in any arising for the out of or dations incident NRC] the of made; may be casualties activity pur rence of similar made a licensed connection with any (3) that any requirement there is evidence of the Commission Whether suant duty, misconduct, any inattention of in suit or act admitted as evidence shall be the law violation of negligence or willful any mat damages growing out of action any licensed or certificat- part the of on report.”); in 49 U.S.C. mentioned such ter casualty, so to the man contributed ed 103-272, 1441(e) Pub.L. No. (repealed § against proceedings the appropriate that 1379) (“No 1994, 108 7(b), July § Stat. person of such license or certificate the National any report reports or of of title taken under be recommended relating any Safety Board Transportation U.S.Code, 239; section thereof, investigation shall be or the accident any (4) is evidence there Whether any or used in suit as evidence or admitted any represen- personnel or Coast Guard any damages growing out of mat action for govern- any other employee of tative or report reports.”); or in such ter mentioned person caused any other agency or ment 103-272, (repealed § Pub.L. No. U.S.C. cause of the casual- or contributed 1379) (“[Nei 7(b), July 108 Stat. § or, ty; by the of Railroad accidents reports ther (5) fur- accident shall be Whether inspection reports nor director of locomotive of by a Marine Board investigated ther admitted as investigation] shall be of his regula- in accordance with Investigation any any purpose in suit used for evidence or subpart in 4.09. tions any of damages growing out action for or investiga 4.07-l(b) (c) report in mentioned said §§ is to matter of purpose The tion.”); Cong., conducting H.R. 104th 1st those see also the benefit of explain, for (1995) (“Notwithstanding any using reading § investigations and those Sess. law, purposes any opinion, limited recom investigation reports, provision other investigations mendation, deliberation, of casu- or conclusion con for which Coast Guard casualty The last clause conducted. report alties are in of a marine inves tained 4.07-l(b) they “not in- are explains § section 6301 of this tigation conducted under responsibility.” of, fix civil or criminal tended to respect or factors to the cause title with means, things, among other to, This in casualty set forth contributing licensing issues is ultimate determination not admissible investigation is report of proceedings, suspension revocation left discovery subject to as evidence or proceed- penalty to civil penalty issues civil administrative, pro civil, criminal or State to crimi- culpability issues ings, and criminal casualty, other ceeding arising from a marine If was intent proceedings. there nal consent of the permission and than with the issues, liability I civil respect to other with in his or her Secretary Transportation, was to advise that the intent am confident discretion.”). sole of issues that the ultimate determination judicial pro- for civil liability is reserved civil NORRIS, concurring in Judge, Circuit contained the information ceedings and that dissenting from dissenting part, part, investigation report should in a Coast Guard judgment: under- with the and utilized be evaluated investigation standing that the focus except in majority opinion join I responsibilities of assigning the was not on Guard holding conclusions a Coast participants inter se. investigation casualty are report a marine eases. In so in civil admissible as evidence that, Secretary if the I confident am also majority square con- 4.07-l(b) holding, creates govern the admis- had meant Circuits, and Ninth court, flict the Sixth have he would of evidence sion

H9 Prince, other circuits that have addressed Rico Ports Auth. v. Manhattan M/V (1st Cir.1990). question. decided this F.2d That reliance is Prince, misplaced. In Manhattan the First Tankers, Inc., In re Cleveland F.3d Circuit neither addressed nor decided the (6th Cir.1995), 1200, 1208 Circuit Sixth 4.07-1(b) question whether 46 C.F.R. bars regulation held that under the Coast Guard admission conclusions in Coast Guard issue, 4.07-1(b),1 46 C.F.R. conclusions reports as evidence. First Circuit made reports in Coast Guard are not admissible. 4.07-1(b), no to 46 appar reference C.F.R. The Sixth Circuit reasoned that ently because not cited par either the function of Coast Guard (“Both ty. agree id. See sides that Beech altogether fixing from different that of lia- Corp. Rainey, 488 U.S. Aircraft is, bility. report to a Coast 439, 102 (1988) S.Ct. L.Ed.2d 445 controls the extent, great forward-looking, it since is admissibility Rather, report.”). the developing meant in to aid rules to analyzed First admissibility Circuit the of lawsuit, shipping make safer. In a a court report in a solely conclusions Coast Guard must look backward to facts and rules as under Federal Rule of Evidence 803. actors at of known to the the time the Introducing accident. the Guard’s Coast Prince, than Other only Manhattan the may conclusions confuse the two sorts of by majority cases cited the are four district inquiries. decisions, unpub court of three which are omitted). (citation Id. only lished and one of which addresses the 4.07-1(b) question § whether 46 C.F.R. bars Tankers, In Cleveland the Circuit Sixth the admission of conclusions Coast Guard followed the Ninth Circuit’s decision Hu- Complaint as evidence. In Ken States, (9th 398, ber v. United 838 F.2d of 560, Munyan, neth I. 143 F.R.D. Cir.1988). 565-66 majority attempts The distin- (D.N.J.1992), only published decision cit guish ground Huber on the that the Coast by majority, ed the court made no refer However, party Guard was a to that action. 4.07-1(b), § analyzed ence to 46 C.F.R. expressly rejected the Sixth Circuit that dis- admissibility of report a Coast Guard reasoning tinction and held “Huber’s solely under Federal of Rule Evidence 803.3 sound” even in eases in which Coast Tankers, Guard has no interest.2 Cleveland The district court decision cited 67 F.3d at 1208. majority question addresses 4.07-l(b) In creating § a conflict with the Sixth 46 C.F.R. whether bars the ad- Circuits, majority Ninth Puerto of relies on mission conclusions in a Coast Guard re- regulation 1. provides: report The investigation in the is not admissi- subject discovery ble as evidence or investigations of marine casualties civil, administrative, pro- or State criminal accidents and the determinations are for made ceeding arising casualty, from a marine other purpose taking appropriate of measures for permission than and consent of the sea, safety promoting property of life and Secretary Transportation, in his her sole and are not intended to fix civil or criminal discretion. responsibility. 1361, (1995). § Cong., (b). H.R. 104th 1st Sess. § 46 C.F.R. 4.07-1 appears majority’s 2. holding It that the that 46 unpublished 3. Two the three district court (b) § C.F.R. does not 4.07-1 bar the admission of point. Wright decisions are also not on In v. Coast Guard conclusions soon be overruled Inc., CIV-A-91-3423, Daviesyndicate, No. by Congress. budget Coast Guard authori- (E.D.Pa. 1993), 30, WL 246020 June the district year, zation bill for the 1996 fiscal which is weighed probative court value conclusions Senate, awaiting expressly in the final vote codi- trial, report in a Coast after bench 4.07-l(b), interpreted fies 46 C.F.R. discussing admissibility. els Taylor without their In applied in Tankers Cleveland and Huber: Bouchard, 89-CIV-5965, v. No. 1991 WL 107279 (S.D.N.Y. 1991), law, June court did Notwithstanding provision not con other 4.07-1(b) recommendation, deliberation, any opinion, sider whether C.F.R. bars the Rather, report of Coast Guard conclusion contained in a of a marine admission conclusions. casualty investigation report that a conducted under section decided Coast Guard trust of, respect worthy 6301 of this title with cause and therefore under admissible Federal to, contributing casualty or factors set forth Rule Evidence 803. port unpublished order on a motion in is an States, COMPANY,

limine in Fox v. United No. C-94- PENNEY J.C. (N.D.Cal. 12, 1996). 0941, slip op. at 4-8 Feb. INC., Appellee, There, apply the district court declined to v. Huber and that 46 C.F.R. 4.07- decided EAGLE, INC.; Eagle 1(b) GIANT Giant Mar- did not bar the admission Coast kets, Inc., Stanley Gumberg, R. Indi- Beech Guard conclusions under Aircraft vidually and as Trustee under those cer- Rainey, 488 U.S. S.Ct. (1988). here, tain Irrevocable majority Deeds of Trust dated L.Ed.2d 445 Like the May 9, 1969, Eagle, Inc., Appel- agency Giant the district court decided that an lant. regulation trump congressionally “cannot en Fox, slip op. acted rules of at 7. evidence.” No. 95-3054. specific I respect,

With all due believe that a agency regulation exception can create an Appeals, United States Court evidence, general long rule of as as the Third Circuit. agency scope acts within the of the rulemak Argued Oct. 1995. ing authority granted Congress. to it 4.07-1(b), promulgating 46 C.F.R. May Decided clearly acting Coast Guard was within the scope authority.4 of its As the Ninth Circuit it,

put

[t]he difference between the Coast regulation banning the use of acci- reports

dent as evidence and a statute 1441(e) banning

such as 49 U.S.C. reports

use of aviation accident as evidence pursu-

is that in one the Coast Guard acted authority Congress pursue

ant to from seas,

safety high other, on the and in the

Congress directly promoting acted air

safety. way, Either the result is the same: portions reports

all or are excluded authority

from Congress. evidence on

Huber, 838 F.2d at 403. respectfully

I dissent. directed, Congress expressly provided "[t]he has Coast Guard has also consistent with promulgate Coast Guard shall ... and enforce statutory promote its mandate to marine safe regulations promotion safety for the of life ty, reports investigations of such shall not property high on and under the seas....” assign be used as evidence to civil or criminal 2; 239(a) ("The U.S.C. see 46 U.S.C. responsibility for accidents. The reason for pre Commandant of the Coast Guard shall post-accident investiga this is obvious: were regulations investiga scribe rules and for the tion admissible evidence in a later civil ..."). By tion of marine casualties this au proceeding damages, investigators for thority, the Coast Guard established a set of might completely open well be reluctant to be procedures personnel to be followed report, and candid in the a result which could casualty whenever a marine takes accident consequences public safety. have adverse place, including investigation a formal Huber, (footnote omitted). 838 F.2d at 402 (1986). incident. See 46 C.F.R. 4.07-1

Case Details

Case Name: In Re the Complaint of Nautilus Motor Tanker Co.

Court Name: Court of Appeals for the Third Circuit

Date Published: May 20, 1996

Citation: 85 F.3d 105

Docket Number: 95-5126

Court Abbreviation: 3rd Cir.