APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (District Court Civil No. 75-737).
Seitz, Chief Judge, Aldisert, Circuit Judge, and Stern, District Judge.*fn* Stern, District Judge, concurring.
The major questions presented in the appeal by American Export Lines, Inc., from an adverse Jones Act verdict relate to rulings on evidence. Roland Alvarez, a former third assistant engineer employed by Export in whose favor a verdict was returned below, has cross-appealed from the trial court's refusal to enter judgment n.o.v. on the jury's verdict in favor of Export on an unseaworthiness claim; he also contends the trial court erred in not entering a favorable judgment for maintenance and cure. Because we determine that competent evidence was erroneously excluded, we reverse and remand for a new trial.
This lawsuit emanates from a violent altercation between Alvarez and a fellow crew member, electrician Frank Lloyd, that occurred on September 7, 1974, when their ship, the SS EXPORT COMMERCE, was in the port of Yokohama, Japan. Lloyd filed an action against Export in the district court, alleging negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness under general maritime law, seeking redress for the injuries sustained in the fight. Export joined Alvarez as a third-party defendant and Alvarez, in turn, counterclaimed against Export, alleging, as did Lloyd, negligence and unseaworthiness. Lloyd did not proceed in his case as plaintiff, failing to appear on seven occasions for a pretrial deposition, and failing to appear when the case was called for trial on November 18, 1976. Accordingly, his complaint was dismissed by the district court for failure to prosecute, and thereafter trial was had on Alvarez' counterclaim. The jury found that although Export had not breached its warranty of seaworthiness, it was nevertheless negligent, and its negligence contributed to Alvarez' injuries. The jury returned a verdict in favor of Alvarez against Export in the amount of $95,000.
It was Alvarez' theory that Export negligently failed to use reasonable precautions to safeguard him from Lloyd after Export had knowledge of Lloyd's dangerous propensities. Alvarez testified that he suffered from a preexisting heart condition, and that the officers and crew had knowledge of his condition. He further testified to an incident occurring in July 1974 in the port of New York, when he ordered Lloyd to assist in loading electrical stores, and the latter refused. Alvarez maintained that thereafter, until the Yokohama incident, Lloyd "continuously harassed, provoked, and frightened Alvarez as they passed each other amidships," Appellee's Brief at 5, and that he reported these episodes to the captain and other officers who consequently arranged for Alvarez not to work with Lloyd. There was testimony as well that Lloyd had been involved in fights with other individuals prior to the incident at issue.
Alvarez testified that on the day in question he had been ordered to perform electrical work in a resistor house aboard ship after an officer was unable to rouse Lloyd to do it. The court received into evidence a statement by Chief Officer Goslin that, prior to the fight, he went to Lloyd's quarters to inform him of a winch failure and discovered him lying fully clothed in his bunk, apparently intoxicated and unable to perform his duties. The only description of the fight that occurred when Lloyd subsequently entered the resistor house was offered by Alvarez, and is summarized in his brief as follows:
Lloyd sneaked through the open door unnoticed by Alvarez and without any warning or provocation, Lloyd viciously attacked Alvarez, striking him in the head with an unidentified object while screaming he would "kill him." During this life-threatening struggle, Alvarez was able to pick up a turnbuckle*fn1 and end the fight by striking Lloyd once.
The jury was not permitted to hear any version of the fight other than that of Alvarez; it was denied the opportunity of hearing the account rendered by Lloyd, who was the other participant in the affray and its only other eyewitness. It is the refusal of the district court to admit a public record of a prior proceeding and excerpts of Lloyd's testimony therein that constitutes the major thrust of Export's appeal. Export contends that this evidence was admissible in the form of transcripts and a final report from a Coast Guard hearing conducted intermittently from January 20, 1975 through January 6, 1976, the purpose of which was to determine whether Lloyd's merchant mariner's document should have been suspended or revoked on the basis of charges of misconduct brought against him for the fight with Alvarez. At that hearing, both Lloyd and Alvarez were represented by counsel and testified under oath.
The admissibility of the Decision and Order of the Coast Guard hearing examiner, and excerpts from the transcript of that proceeding are governed, respectively, by Federal Rules of Evidence 803(8)(C)*fn2 and 804(b)(1).*fn3 Our examination of the record below compels the conclusion that both Rules were misinterpreted by the district court. We further hold that the excluded evidence is of such potential importance that a new trial is essential.
The Coast Guard proceeding was a rather elaborate hearing conducted before a professional hearing examiner. In addition to documentary evidence, testimony was received under oath, subject to direct and cross examination, on two charges levelled against Lloyd: that he "did wrongfully assault and batter ROLANDO ALVAREZ, a fellow crew member, with his fists," and that he "did wrongfully fail to perform his duties due to intoxication." Defendant's Exhibit 19 at 1. The hearing examiner found that the first specification, or charge, was "not proved by substantial evidence" and that the second "was dismissed at the end of the investigating officer's case for the failure to make out a prima facie case." Defendant's Exhibit 19 at 4. On the subject of Lloyd's intoxication, the hearing examiner observed: "As conceded by the Investigating Officer at the time this motion was argued, there was absolutely no evidence that at this time the Respondent [Lloyd] was intoxicated or that he was under the influence of liquor." Defendant's Exhibit 19 at 17. The accompanying questions whether Lloyd was the aggressor and the extent of his assault upon Alvarez were obviously of crucial importance to Alvarez' theory of negligence. The Coast Guard's findings on this issue, adverse to the position of Alvarez, are highly relevant and clearly admissible.
As required by Rule 803(8)(C), the Coast Guard Decision and Order is a report of a public office or agency - a hearing examiner of the Coast Guard's parent agency, the United States Department of Transportation - which sets forth "factual findings resulting from an investigation made pursuant to authority granted by law" and which is offered in a civil action.
We reject appellee's contention that the Coast Guard Decision and Order consists in large part of the opinions of the hearing examiner and thus fails to meet the "factual findings" requirement of the Rule. Our reading of the portion of the document to which Alvarez objects indicates that the hearing examiner did no more than summarize the evidence and point out inconsistencies therein. There is no support for appellee's position on this matter. Finally, whatever uncertainties may have existed at common law regarding the admissibility of reports such as the one before us,*fn4 we are persuaded that, with the adoption of the Federal Rules of Evidence, the matter is resolved and the Decision and Order is admissible.
Our examination of the transcript of Frank Lloyd's testimony at the Coast Guard hearing convinces us that it is highly relevant to the negligence issue raised by Alvarez. Because Lloyd testified not only to the incident of September 1974, but to the history of his relationship with Alvarez as well, his testimony would have been most helpful to the jury in determining the ultimate issue of whether the officers and crew of the SS EXPORT COMMERCE failed to take reasonable precautions to safeguard Alvarez against an attack by Lloyd. Indeed, Lloyd's testimony directly refuted the Alvarez theory. Describing the New York port incident claimed by Alvarez as that which triggered Lloyd's animosity, he testified:
Q. What if anything occurred between you and Mr. Alvarez on the 19th or so when you were loading the ship's stores?
A. Well, the stores were coming aboard. I was out taking care of the winches and when I saw the stores coming aboard, I went back aft to the side of the ship to the electrician's stores and as they were coming up the conveyor, I was standing there and I see a box coming on, saying "electrical" and I would take that one off and set it aside. Mr. Alvarez told me to just grab all the cargo. I told him I'm not supposed to grab all the cargo; only the electrical cargo and he says, "I'm in charge here. You do as I say or I'll go to see the chief." And I told him, "You go see the chief and I'm still getting the electrical stores." And that's about the end of that.
Q. Now, from that day until September 7, 1974, did you have any other run-ins or disputes with Mr. Alvarez?
Defendant's Exhibit 20 at 109-10.
Lloyd's description of the September 7, 1974, altercation is similarly at variance with that of Alvarez:
Q. Now, was the ship in Yokohama on the 7th of September?
Q. Would you tell us what you recall happened from the time you arrived there?
A. When I walked inside the resistor house, one of the MG sets - they have two sets in the MG house - one set was running and the other set was shut down. I saw Mr. Alvarez in there with the controller doors open looking in there, so I asked him what was he doing in there. You know, anytime - as I'm the electrician if they need somebody to repair they ...