                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-1996

In Matter Nautilus Motor Tanker
Precedential or Non-Precedential:

Docket 95-5126




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Recommended Citation
"In Matter Nautilus Motor Tanker" (1996). 1996 Decisions. Paper 180.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/180


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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT



                       No. 95-5126


          IN THE MATTER OF THE COMPLAINT OF
   NAUTILUS MOTOR TANKER CO., LTD. AS OWNER OF THE
        M/T BT NAUTILUS FOR EXONERATION FROM
             OR LIMITATION OF LIABILITY,

Nautilus Motor Tanker Co., Ltd, Appellant



     APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE DISTRICT OF NEW JERSEY
              (D.C. Civil No. 90-cv-02419)


                Argued: October 10, 1995
Before:   STAPLETON, McKEE and NORRIS, Circuit Judges

                   (Filed May 20, l996)




                         JOHN J. REILLY (ARGUED)
                         Haight, Gardner, Poor & Havens
                         195 Broadway
                         New York, NY 10007

                         Counsel for Limitation Plaintiff-
                         Appellant Nautilus Motor Tanker Co.
                         Ltd.


                         RICHARD H. WEBBER (ARGUED)
                         Hill Rivkins Loesberg
                           O'Brien Mulroy & Hayden
                         90 West St.
                         New York, NY 10006

                         Counsel for Limitation Defendant-
                         Appellee Coastal Oil New York, Inc.




                   OPINION OF THE COURT
McKEE, Circuit Judge
     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 Bayonne, New Jersey. Thereafter, Nautilus
commenced a proceeding in the United States District Court for
the District of New Jersey under the Limitation of Liability Act,
46 U.S.C.    181-189, in an effort to escape liability from
various potential claimants including Coastal Oil New York, Inc.
("Coastal"), the owner of the terminal. Coastal filed a
counterclaim against Nautilus alleging that Nautilus was solely
responsible for the grounding. Following a nonjury trial, the
district court entered judgment for Coastal and against Nautilus
on Coastal's counterclaim.
     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., 862 F.Supp.
1260 (D.N.J. 1994), and largely uncontested. On the morning of
June 7, 1990, Moran Towing & Transportation, Co., Inc. ("Moran")
dispatched two tugs and a docking pilot, Captain James Naughton,
to assist BT Nautilus Captain Albert Frank Ainscough in docking
his vessel at Coastal's terminal in Bayonne, New Jersey. As the
Nautilus neared the terminal, it ran aground.
     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.
Coastal responded by filing a claim against Nautilus, and
Nautilus responded by seeking damages for Coastal's alleged
negligence in causing the grounding.
     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, 862 F.Supp. at 1268, and
that Nautilus had failed to prove by a preponderance of the
evidence that any of Coastal's alleged negligent acts were a
proximate cause of the grounding. Accordingly, the district
court entered judgment in Coastal's favor, and this appeal
followed.
     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 the rights and liabilities of the parties to
admiralty cases.

                               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).
Accordingly, the United States Coast Guard investigated the June
7, 1990, grounding of the Nautilus and issued a public report
that stated in part:
     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). The court
received the report over the objection of Nautilus. That
objection was based upon a provision in the Coast Guard
regulations that states:
     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.   4.07-1(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   4.07-1(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.   4.07-1(b).
     On appeal, Nautilus relies principally upon Huber v. United
States, 838 F.2d 398 (9th Cir. 1988), and its progeny to argue
that the district court erred in admitting the Report into
evidence. In Huber, two crew members drowned when their yacht
sank north of San Francisco Bay. The surviving crew member joined
decedents' representatives in a suit against the Coast Guard for
failure to assist the vessel. At trial, plaintiffs sought to
admit two Coast Guard Reports prepared in the aftermath of the
accident. The government objected and argued that the conclusions
and recommendations in the Reports were barred by 46 C.F.R.
4.07-1(b). The court overruled the government's objection, and
allowed the Reports into evidence as admissions of a party
opponent under FRE 801(d)(2).
     On appeal, the Court of Appeals for the Ninth Circuit
reversed. The court held that, under section 4.07-1(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, 838 F.2d at 402. In reaching this result, the
court first emphasized the necessity of such a rule under the
circumstances of the suit before it:
     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, 53
F.R.D. 24, 25 (E.D.N.Y. 1971) ). The court also noted a
perceived similarity between 46 C.F.R.   4.07-1(b) and federal
enactments such as 49 U.S.C.   1903(c) -- which bars the
admission into evidence of accident reports prepared by the
National Transportation Safety Board. The court noted that the
only difference between the latter statute, and the former
regulation is that
     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 Huberto bar the
admission of opinions and conclusions in Coast Guard
Reports. See In the Matter of the Petition of Cleveland
Tankers, Inc., 67 F.3d 1200, 1208 (6th Cir. 1995) (Barring
opinions and conclusions in a Coast Guard Report); Yap v.
Controlled Parasailing of Honolulu, Inc., 873 P.2d 1321, 1328
(Haw. 1994) (Same).
     Nautilus argues that since the Coast Guard acted pursuant to
congressional authority, 46 C.F.R.   4.07-1(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, 934 F.2d 474, 481 (3d Cir. 1991) ("No regulation can
override legislative intent. . ."). 46 C.F.R.    4.01-1(b) is not
an Act of Congress; it is a federal regulation.    In contrast,
the Federal Rules of Evidence were enacted by Congress and must
be regarded by this Court as any other federal statute. Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 2793, 125 L.Ed.2d 469 (1993); see also, 21 C. Wright & K.
Graham, Federal Practice and Procedure: Evidence     5013 at 120 (1977)
("Since the Rules of Evidence were enacted by Congress, no
question of delegated power is involved.").
     Although initially proposed by the Supreme Court, the
Federal Rules of Evidence were enacted into law by Congress, Act
of Jan. 2, 1975, Pub.L. 93-595, 88 Stat. 1926 (1975), and they
"govern proceedings in the courts of United States." FRE 101;
see also Salas by Salas v. Wang, 846 F.2d 897, 904 (3d Cir.
1988). Although promulgated pursuant to congressional
authority, 46 C.F.R.   4.07-1(b) remains a regulation. The
delegation of congressional power that authorized its
promulgation did not transform the regulation into an Act of
Congress, nor allow it to prevail over contrary provisions of
duly enacted statutes. Accordingly, the Coast Guard may not,
through its regulations, limit the authority of Congress to
prescribe and enforce rules for the admissibility of evidence in
the federal courts. See e.g, Romero v. U.S., 153 F.R.D. 649, 652
(D.Colo. 1994) (The Federal Rules of Evidence override an Army
regulation, 32 C.F.R.   515.42, purporting to limit an Army
doctor's expert testimony.).
     FRE 402 provides the baseline for determining the
admissibility of evidence in the federal courts. See e.g.,
Daubert, 509 U.S. at __, 113 S.Ct. at 2793. That rule provides
that:
     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,
849 F.2d 827, 831 (3d Cir. 1988). Accordingly, we decline the
invitation to follow the lead of Huber, and its progeny.
     In Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct.
439, 102 L.Ed. 445 (1988), the Supreme Court considered whether
the public records exception to the hearsay rule, Rule 803(8)(C),
extended to conclusions and opinions in public reports. There,
the court considered the admission into evidence of a Judge
Advocate General Report on a United States Navy plane crash
during a jury trial. The Court concluded that Rule 803(8)(C) did
not preclude the introduction of opinions and conclusions in such
reports so long as two criteria were met. First, all statements
in such a report must be based on factual investigation. Id. at
167, 109 S.Ct. at 449. Second, any portion of the report that is
admitted must be sufficiently trustworthy. Id. at 167, 109 S.Ct.
at 449. The Supreme Court cited with approval four non-
exhaustive factors to be used in determining whether a report is
sufficiently trustworthy:

     (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; 109 S.Ct. at 449. Here, the district court
properly applied these criteria, concluded that they were
satisfied and admitted paragraphs two and eighteen of the Coast
Guard Report under Rule 803(8)(C). We do not think that the
court erred in that analysis. Moreover, we note that public
reports are presumed admissible in the first instance and the
party opposing their introduction bears the burden of coming
forward with enough "negative factors" to persuade a court that a
report should not be admitted. Beech Aircraft, 488 U.S. at 167
109 S.Ct. at 448. Courts have routinely admitted conclusions and
recommendations in Coast Guard Reports under Beech Aircraft,
irrespective of 46 C.F.R.   4.07-1(b). See Puerto Rico Ports
Authority v. M/V Manhattan Prince, 897 F.2d 1, 8 (1st Cir. 1990)
(Affirming the district court's admission of three conclusions in
a Coast Guard Report); Fox v. United States and Robert Anderson,
Civil No. C-94-0491, slip op. at 4-8 (N.D.Cal. February 14, 1996)
(Coast Guard report admissible under Rule 803(8) so long as
report meets trustworthiness standard of Beech Aircraft); Wright
v. Daviesyndicate, Inc., 1993 WL 246020, *8,*9 n.10 (E.D.Pa.
1993) (Conclusions contained in Coast Guard Report admitted
without comment); Complaint of Kenneth I. Munyan, 143 F.R.D. 560,
565-66 (D.N.J. 1992) (Conclusions and opinions in Coast Guard
Report deemed admissible under Rule 803(8)(C)); Taylor v.
Bouchard, 1991 WL 107279, *4 (S.D.N.Y. 1991) (Opinions and
conclusions in Coast Guard Report admitted).
     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 case
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 case, 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, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148
(1874). While the presumption that arises under the Rule is
rebuttable, Id. at 130, it is by its very language, a weighty
one. Although the Rule originally applied only to collisions
between ships, it has been reformulated to apply to any statutory
violator who is a party to a maritime accident. See e.g.,
Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465,
1471 (5th Cir. 1991).
     In United States v. Nassau Marine, 778 F.2d 1111 (5th Cir.
1985), the court articulated a test for determining when to apply
the presumption of the Pennsylvania Rule. That Court held that
three elements must exist: (1) proof by a preponderance of the
evidence of violation of a statute or regulation that imposes a
mandatory duty; (2) the statute or regulation must involve marine
safety or navigation; and (3) the injury suffered must be of a
nature that the statute or regulation was intended to prevent.
Id. at 1116-1117; Folkstone Maritime v. CSX Corporation, 64 F.3d
1037, 1047 (7th Cir. 1995). If each of these criteria are
satisfied, a party is entitled to a presumption that a statutory
violation of a defendant caused, or at least contributed to, the
injury or damage complained of. However, a statutory violator
may rebut the presumption of the Rule by making a clear and
convincing showing that the violation could not have been a
proximate cause of the collision, Cliffs-Neddrill v. M/T Rich
Duke, 947 F.2d 83, 86 (3d Cir. 1991), or by demonstrating that
the accident would have occurred despite the statutory violation.
See e.g., Folkstone Maritime, 64 F.3d at 1047.
     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. The dredged material was displaced
into Coastal's ship berth causing "high spots" or navigational
obstructions in that area.
     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, 862 F.Supp. at 1273. The district court thus required
some "nexus between the statutory violation and the accident",
Id. at 1274, as a condition precedent to applying the Rule. In
doing so, the court relied upon the holding in Gosnell v. United
States, 262 F.2d 559 (4th Cir. 1958).
     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, 262 F.2d at 563 (quoting The YFNX-6, 156 F.Supp. 325,
331 (D.Md. 1957) ). Thus, in cases where there is no clear link
between the statutory violation and the casualty, the party
seeking to take advantage of the Rule has been required to make
some showing that the statutory violation may have had some
relation to the accident.
     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, 947 F.2d at 88.
     In another context we have stated "'[w]here stops the
reason, there stops the rule.'" Aetna v. Barthelemy, 33 F.3d 189,
193 (3rd Cir., 1994) (quoting Karl N. Llewellyn, Jurisprudence:
Realism in Theory and Practice 217 (1962)).
     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., 975 F.2d 81, 92 (3d Cir. 1992) (Under the clearly
erroneous standard, findings of fact made in actions tried by the
court without a jury may be reversed only if such findings are
"completely devoid of minimum evidentiary support displaying some
hue of credibility, or. . .bear no rational relationship to the
supportive evidentiary data."). Here, expert commercial divers
hired by both parties concluded that the vessel ran aground to
the east of the Coastal ship berth and outside the federal
channel. The eyewitness testimony of a Coastal dockworker,
Theodore Rovatsos, supported that conclusion. No diver ever
found any evidence of any kind to support Nautilus' theory of
impact in the Coastal ship berth. Moreover, Nautilus could not
demonstrate that the forward 400 feet of the vessel were damaged
in any way on the morning of June 7, 1990. Common sense suggests
that, had the BT Nautilus first struck ground in the ship berth
as Nautilus suggests, the forward part of the vessel would
sustain some damage, or reflect some trace of the grounding. Yet,
there was no evidence of even minor scratching of the paint on
the forward part of the BT Nautilus.
     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, we refuse to require the
mechanical application of the Pennsylvania Rule. Moreover, even
assuming the Rule applied here, we believe Coastal rebutted the
presumption of causation with overwhelming evidence that its
illegal dredging could not have been a proximate cause of the
June 1990 grounding because the grounding occurred outside that
berth. See e.g., U.S. Fire Insurance Co. v. Allied Towing, 966
F.2d 820, 825 (4th Cir. 1992) (Whether Pennsylvania Rule was
applied is irrelevant since party proved at trial that his ship's
failure to have its lights on could not have been cause of
collision); Alter Barge Line v. TPC Transportation, 801 F.2d
1026, 1029 (8th Cir. 1986) (Even assuming that the overtaken tug
committed a statutory fault, failure to apply the Pennsylvania
Rule is irrelevant since evidence clearly indicated that
overtaking tug was sole cause of collision).
          C. Coastal's Duty to Provide a Safe Approach.
     Finally, Nautilus contends that Coastal breached its duty of
reasonable diligence as a wharfinger. In particular, appellant
argues that Coastal "breached its duty to provide a safe approach
by failing to install navigational aids and provide information
about the limits of its Ship Berth." Appellant's Brief at 33.
However, the district court concluded that Coastal's alleged
omissions were not a proximate cause of the June 7, 1990
grounding. Nautilus, 862 F.Supp. at 1276. We review that
finding under a "clearly erroneous" standard. Fed.R.Civ.P.
52(a).
     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, 173 U.S.
430, 433, 19 S.Ct. 442, 443, 43 L.Ed. 756 (1899). A wharfinger
also has a duty to maintain a safe approach. Id. at 436, 19
S.Ct. at 444; Trade Banner Line, Inc. v. Caribbean Steamship Co.,
521 F.2d 229, 230 (5th Cir. 1975); Sonat Marine Inc. v. Belcher
Oil Co., 629 F.Supp. 1319, 1327 (D.N.J. 1985), aff'd 787 F.2d 583
(3d Cir. 1986). However, there is no duty to ensure safe
surroundings or warn of hazards merely in the vicinity. Trade
Banner Line, 521 F.2d at 230. In short, a vessel should be able
to enter, use and exit a wharfinger's dock facilities without
being exposed to dangers that cannot be avoided by reasonably
prudent navigation and seamanship.
     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. Moreover, a moving vessel and her owner are
subject to a presumption of negligence when the vessel strikes a
well-charted, stationary object or obstruction. The Oregon, 158
U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1895); City of Boston
v. S.S. Texaco, 773 F.2d 1396, 1398 (1st Cir. 1985).
     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., 470 U.S. 564, 575, 105 S.Ct.
1504, 1513, 84 L.Ed.2d 518 (1985). Moreover, Coast Guard
investigators, who would be expected to target such dangers,
never mentioned any inadequacy of navigational aids here.
Docking pilot Naughton even testified that a parallel dock (the
IMTT Facility), similar in all relevant respects, was safe
despite the absence of any aids to navigation beyond those
existing at the Coastal Terminal. Furthermore, we cannot fail to
note that throughout the period of the grounding, similar tankers
docked without incident or objection to the absence of official
navigational aids or information on the limits on Coastal's ship
berth.
     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 before the
time recommended by the Guide. The evidence before the district
court suggests that, had Ainscough simply left at the suggested
time, his vessel would have encountered minimal tidal currents
and superior docking conditions. Moreover, having arrived at a
time of strong tidal currents, Naughton compounded the error when
he failed to utilize the "breasting in" approach recommended by
the Guide.
     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.




IN THE MATTER OF THE COMPLAINT OF
NAUTILUS MOTOR TANKER, No. 95-5126


STAPLETON, Circuit Judge, 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     4.07-1(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   4.07-1(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
  4.07-1(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.").




In The Matter of the Complaint of Nautilus Motor Tanker Co.
No. 95-5126


NORRIS, Circuit Judge, 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 cases. In so
holding, the majority creates a square conflict with the Sixth
and Ninth Circuits, the only other circuits that have addressed
and decided this question.

              In In re Cleveland Tankers, Inc., 67 F.3d 1200,
1208 (6th Cir. 1995), the Sixth Circuit held that under the Coast
Guard regulation at issue, 46 C.F.R.   4.07-1(b), conclusions
in Coast Guard reports are not admissible. The Sixth Circuit
reasoned that
         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, 838 F.2d 398,
403 (9th Cir. 1988). The majority attempts to distinguish Huberon the
ground that the Coast Guard was a party to that action.
However, the Sixth Circuit expressly rejected that distinction
and held that "Huber's reasoning is sound" even in cases in which
the Coast Guard has no interest. Cleveland Tankers, 67 F.3d at
1208.

         In creating a conflict with the Sixth and Ninth
Circuits, the majority relies on Puerto Rico Ports Auth. v. M/V
Manhattan Prince, 897 F.2d 1, 8 (1st Cir. 1990). That reliance
is misplaced. In Manhattan Prince, the First Circuit neither
addressed nor decided the question whether 46 C.F.R.   4.07-1(b)
bars the admission of conclusions in Coast Guard reports as
evidence. The First Circuit made no reference to 46 C.F.R.
4.07-1(b), apparently because it was not cited by either party.
See id. ("Both sides agree that Beech Aircraft Corp. v. Rainey,
488 U.S. 153 (1988) controls the admissibility of the report.").
Rather, the First Circuit analyzed the admissibility of
conclusions in a Coast Guard report solely under Federal Rule of
Evidence 803.

         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, 143 F.R.D. 560, 565-66 (D.N.J. 1992), the only published
decision cited by the majority, the court made no reference to 46
C.F.R.   4.07-1(b), and analyzed the admissibility of a Coast
Guard report solely under Federal Rule of Evidence 803.

               The only district court decision cited by the
majority that addresses the question whether 46 C.F.R.
4.07-1(b) bars the admission of conclusions in a Coast Guard
report is an unpublished order on a motion in limine in Fox v.
United States, No. C-94-0941, slip op. at 4-8 (N.D. Cal. Feb. 12,
1996). There, the district court declined to apply Huber and
decided that 46 C.F.R.    4.07-1(b) did not bar the admission of
Coast Guard conclusions under Beech Aircraft v. Rainey, 488 U.S.
153 (1988). Like the majority here, the district court decided
that an agency regulation "cannot trump congressionally enacted
rules of evidence." Fox, slip op. at 7. With all due respect, I
believe that a specific agency regulation can create an exception
to a general rule of evidence, as long as the agency acts within
the scope of the rulemaking authority granted to it by Congress.
In promulgating 46 C.F.R.    4.07-1(b), the Coast Guard was
clearly acting within the scope of its authority.            As the Ninth
                  Circuit put it,
                                [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, 838 F.2d at 403.

            I respectfully dissent.
