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FOX v. UNITED STATES

February 12, 1996

DARLENE K. FOX, individually, as personal representative, and as Administratix of the Estate of RAYMOND S. FOX, deceased, Plaintiffs,
v.
UNITED STATES OF AMERICA and ROBERT ANDERSON, Defendants.



The opinion of the court was delivered by: ILLSTON

 On February 2, 1996, the Court heard argument on two motions in limine, filed in tandem by plaintiffs Fox et al. and defendant Robert Anderson (hereinafter "movants"). One motion seeks to exclude evidence of negligence by the owners or crew of the S/V GRIFFIN in operation of the vessel prior to the rescue ("pre-rescue negligence"), and the second seeks to allow a Coast Guard Investigative Report concerning the accident to be admitted into evidence, subject to a FRE 803(8) showing. Having considered the arguments of counsel and the papers submitted, the Court rules that evidence of alleged pre-rescue negligence will not be admitted for purposes of assessing comparative fault among the parties, unless the evidence is relevant to the rescue itself; and that the Coast Guard Investigative Report may be admitted into evidence if it meets the trustworthiness standard of Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 102 L. Ed. 2d 445, 109 S. Ct. 439 (1988) and the requirements of FRE 803(8).

 BACKGROUND

 On November 14, 1993, on the high seas approximately 50 miles off the coast of Monterey, California, two naval vessels owned and operated by the United States attempted the rescue of a distressed sailboat, the S/V GRIFFIN, owned and operated by Robert Anderson. Raymond Fox, husband of plaintiff Darlene Fox, Penny Walrath, Scott Jaroch, and Robert Wess were passengers/crew on the Griffin. During the attempted rescue, the GRIFFIN and one of the naval vessels, USS FLINT, collided, resulting in the death of Raymond Fox. The other occupants of the GRIFFIN sustained injuries and the GRIFFIN sank.

 The Coast Guard assumed responsibility for investigating the incident. The Coast Guard investigator conducted an extensive investigation and drafted a ten page report containing: 1) a summary of the incident; 2) Findings of Fact including vessel data, personnel data, weather information, and a chronological listing by hour and minute, of events occurring on the date of the casualty, November 14, 1993; 3) a listing of "Related Factors;" 4) Conclusions; and 5) Opinions and Recommendations. *fn1"

 Darlene K. Fox, Raymond Fox's widow and personal representative, filed a wrongful death action against the United States and Robert Anderson. The other passengers also brought actions for personal injury and loss of personal property against the United States and Anderson. Anderson filed a cross-complaint against the United States for indemnity, damages for personal injury and damages for the loss the GRIFFIN and its contents. The United States filed a cross-complaint for indemnity against Anderson. All actions have been consolidated and are set for trial to the Court.

 DISCUSSION

 A. Exclusion of Evidence Relating to Pre-Rescue Negligence

 Movants seek to exclude evidence of alleged pre-rescue negligence on the part of Anderson and the crew from the Court's determination of comparative fault between the United States and Anderson. Movants argue that the United States plans to introduce evidence that Anderson was negligent in not properly preparing and undertaking the voyage. The Ninth Circuit addressed the issue of the admissibility of pre-rescue negligence for the purpose of assessing comparative fault in Berg v. Chevron USA, Inc., 759 F.2d 1425 (9th Cir. 1985). In Berg the court made a careful distinction between pre-rescue negligence, which caused the problems which necessitated the rescue, and negligence which occurred after the accident. "The relevant negligence of the person rescued is not that which causes the initial accident but rather that which, whether occurring before or after the accident, relates to the rescue and either worsens the victim's condition or hinders the rescue." Id. at 1431. Evidence of alleged pre-rescue negligence will not be admitted for the purpose of assessing comparative fault between the United States and the other parties, unless the evidence is related to the rescue itself. *fn2"

 B. Admissibility of the Coast Guard Report

 Movants contend that the Supreme Court's decision in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 102 L. Ed. 2d 445, 109 S. Ct. 439 (1988), interpreting Federal Rule of Evidence (FRE) 803(8)(c), governs the admissibility of the Coast Guard Investigative Report. FRE 803(8) creates an exception to the hearsay rule for certain public documents, as follows:

 
Records, reports, statements, or data compilations, in any form, 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 1988, the Supreme Court of the United States addressed the issue of whether the conclusions and opinions of a Navy investigator's accident report could be admitted into evidence, in Beech Aircraft, 488 U.S. 153, 102 L. Ed. 2d 445, 109 S. Ct. 439. There, after an airplane crash killed two Navy pilots, the Navy investigator wrote a "JAG Report," pursuant to the authority of the Manual of the Judge Advocate General of the Navy. The Supreme Court resolved a conflict between the circuits on whether admissible "factual findings" for purposes of FRE 803(8) included the conclusions and opinions of the investigator. After an extensive review of the legislative history behind the enactment of the Rule, the Supreme Court held as follows:

 
Portions of investigatory reports otherwise admissible under 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on factual investigation and satisfies the Rule's trustworthiness requirement, ...

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