Lead Opinion
OPINION OF THE COURT
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
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.,
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.
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,
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
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).
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).
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-l(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-l(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-l(b).
On appeal, Nautilus relies principally upon Huber v. United States,
On appeal, the Court of Appeals for the Ninth Circuit reversed. The court held that, under section 4.07-l(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,
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,
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 Huber to bar the admission of opinions and conclusions in Coast Guard Reports. See Petition of Cleveland Tankers, Inc.,
Nautilus argues that since the Coast Guard acted pursuant to congressional authority, 46 C.F.R. § 4.07-l(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,
FRE 402 provides the baseline for determining the admissibility of evidence in the federal courts. See e.g., Daubert,
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,
In Beech Aircraft Corp. v. Rainey,
(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,
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 ease 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 ease, 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,
In United States v. Nassau Marine,
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.
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,
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,
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,
In another context we have stated “ ‘[w]here stops the reason, there stops the rule.’” Aetna v. Barthelemy,
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.,
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,
C. Coastal’s Duty to Provide a Safe Approach.
Finally, Nautilus contends that Coastal breached its duty of reasonable dili
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,
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.
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.,
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 be
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.
Notes
. The parties dispute the exact location of the Nautilus when it ran aground.
. The Limitation of Liability Act enables a shipowner to limit his liability for damage claims arising out of the voyage of his vessel, to the value of his investment in the vessel and pending freight (except as to claims of personal injury and death), provided the damage was incurred without the privity or knowledge of the owner. See T. Schoenbaum, Admiralty and Maritime Law, 2d. ed„ § 21-7 (1994).
. Section 1292(a)(3) vests courts of appeals with jurisdiction of appeals from "[i]nterlocutoiy decrees of ... district courts ... determining the rights and liabilities of the parties to admiralty cases ...". 28 U.S.C. § 1292(a)(3). The purpose of this provision is to allow a parly found liable in an admiralty proceeding to take an immediate appeal without submitting to a protracted trial of the damage issues. See T. Schoenbaum, at § 21-13. To be appealable under section 1292(a)(3), an order in admiralty need not determine all rights and liabilities of all parties. See e.g., Kingstate Oil v. M/V Green Star,
. 46 C.F.R. § 4.07 provides:
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 casually, 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 may be recommended and taken ...
. FRE 803(8)(C) allows the court to admit as evidence of the truth of statements contained therein:
"Records, reports, statements, or data compilations ... of public offices or agencies, setting forth ... (C) in civil actions and proceedings ... 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."
. In the district court, Nautilus’ evidentiary challenge was limited to paragraphs two and eighteen of the Coast Guard report. Accordingly, we only decide the admissibility of those challenged findings without making any determination as to the admissibility of the entire Report.
. 49 U.S.C. § 1903(c) states that ‘‘[n]o part of any report of the [National Transportátion Safety] Board, relating to any accident or 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.”
. In 1949, Congress expressly provided that "[t]he Coast Guard shall ... promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas ...” 14 U.S.C. § 2 (1949). Pursuant to that statutory grant, the Coast Guard promulgated 46 C.F.R. § 4.07.
. Nor does Nautilus attack the trustworthiness, under Beech Aircraft, of the challenged portions of the Coast Guard report on this appeal.
. Our dissenting colleague mistakenly suggests that our holding that 46 C.F.R. § 4.07-l(b) does not bar the admission of opinions and conclusions in Coast Guard Reports rests on the authority of Manhattan Prince, Fox, Wright, Munyan and Taylor. Although opinions and conclusions in Coast Guard reports were admitted in these cases, our holding rests squarely on the Federal Rules of Evidence in light of Beech Aircraft. In Beech Aircraft, the Supreme Court extended the public records exception, Rule 803(8)(C), to conclusions and opinions set forth in trustworthy investigation reports.
Nor is our analysis altered by our colleague’s suggestion that our holding may soon be “overruled” by a pending Act of Congress. To the contrary, today we hold that congressional action is necessary to achieve the result our colleague suggests is appropriate here. However, our role is not to anticipate legislative developments. Cf. United States v. Boling,
. 33 U.S.C. § 403 states that: "The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited ... and it shall not be lawful to excavate or fill, or in any manner to alter or modify ... any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army ..." This maritime statute is intended to prohibit obstructions and hazards in navigable waters. See e.g., U.S. v. Logan,
. Nautilus’ own experts, Ernst Frankel and Herman Booze, testified that the effects of Coastal's illegal dredging were probably limited to high spots or obstructions in its ship berth. (Tr. 1296:3-1297:9; Tr. 1303:18-1304:10; Tr. 1307:1-13).
. For purposes of this issue, Nautilus does not dispute the district court's finding as to the location of the grounding. Appellant's Brief at 33.
. The Steam Tanker Cove Liberty docked on May 19, 1990 and July 9, 1990. The BT Nestor, the sister ship of the BT Nautilus, docked on July 19, 1990. Especially in the aftermath of the June 1990 grounding, we find it difficult to believe that experienced mariners would fail to object to a perceived danger (i.e., inadequacy of navigational aids) at the Coastal terminal.
Concurrence Opinion
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-l(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-l(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-l(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.”).
Concurrence Opinion
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 eases. In so holding, the majority creates a square conflict with the Sixth and Ninth Circuits, the
In In re Cleveland Tankers, Inc.,
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,
In creating a conflict with the Sixth and Ninth Circuits, the majority relies on Puerto Rico Ports Auth. v. M/V Manhattan Prince,
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,
The only district court decision cited by the majority that addresses the question whether 46 C.F.R. § 4.07-l(b) bars the admission of conclusions in a Coast Guard re
[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,
I respectfully dissent.
. The regulation provides:
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.
46 C.F.R. § 4.07-1 (b).
. It appears that the majority’s holding that 46 C.F.R. § 4.07-1 (b) does not bar the admission of Coast Guard conclusions may soon be overruled by Congress. The Coast Guard budget authorization bill for the 1996 fiscal year, which is awaiting final vote in the Senate, expressly codifies 46 C.F.R. § 4.07-l(b), els interpreted and applied in Cleveland Tankers and Huber:
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.
H.R. 1361, 104th Cong., 1st Sess. § 414 (1995).
. Two of the three unpublished district court decisions are also not on point. In Wright v. Daviesyndicate, Inc., No. CIV-A-91-3423,
. Congress has expressly provided that "[t]he Coast Guard shall ... promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas....” 14 U.S.C. § 2; see 46 U.S.C. § 239(a) ("The Commandant of the Coast Guard shall prescribe rules and regulations for the investigation of marine casualties ..."). By this authority, the Coast Guard established a set of procedures to be followed by its personnel whenever a marine casualty or accident takes place, including a formal investigation of the incident. See 46 C.F.R. § 4.07-1 (1986). The Coast Guard has also directed, consistent with its statutory mandate to promote marine safety, that reports of such investigations shall not be used as evidence to assign civil or criminal responsibility for accidents. The reason for this is obvious: were post-accident investigation reports admissible evidence in a later civil proceeding for damages, the investigators might well be reluctant to be completely open and candid in the report, a result which could have adverse consequences for public safety.
Huber,