Most significant maritime accidents are investigated by port state or flag state authorities who usually issue reports of their findings. These reports often contain findings that would be useful in the litigation that frequently results from a maritime accident. Getting these reports admitted into evidence or otherwise using them in litigation, however, can be challenging.

In the United States, investigations are conducted by the U.S. Coast Guard ("USCG") or the National Transportation Safety Board ("NTSB") under their respective statutory authority to investigate marine accidents. These investigations are generally not intended to fix blame, but instead seek to identify causes and "lessons learned" to prevent future occurrences. Consequently, the statutory authorities establishing the USCG's and NTSB's investigatory powers provide that the reports of these agency's investigations cannot be used in litigation. For example, no part of a USCG report of a marine casualty investigation, including "findings of fact, opinions, recommendations, deliberations, or conclusions," is admissible as evidence or subject to discovery in any civil or administrative proceedings. Similarly, NTSB reports relating to accidents or investigations are not admissible as evidenced and may not be used "in any suit for damages arising out of any matter mentioned in such reports."

There are, however, several important exceptions to the statutory prohibitions:

  • First, some courts have concluded that the statutory prohibition applies only to the report itself and not to materials attached to the report. Thus, documents, photographs, and other evidence included as attachments to USCG or NTSB reports may be admissible if they are not the type of conclusory items that the statute seeks to exclude.
  • Second, it is an open question as to whether a USCG or NTSB report may be used for the purpose of impeaching fact or expert witnesses. The courts that have been presented with the issue have deferred a decision on the matter. Thus, it may be possible to use USCG or NTSB findings of fact to challenge the credibility of a witness's testimony.
  • Third, even if findings of fact from USCG and NTSB accident reports are themselves inadmissible, under some circumstances the findings may be relied upon by experts in rendering their opinions on the casualty or accident that is the subject of the litigation. Evidence rules generally permit an expert to rely on inadmissible facts and data if they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." There is generally little debate that the types of facts stated in USCG or NTSB marine accident reports are the type of evidence that a maritime expert would rely on in forming his opinions.

Maritime accidents that occur outside of the jurisdiction of the United States are often investigated by foreign flag state or port state authorities. Like USCG and NTSB accident reports, foreign flag state and port state accident reports are usually not intended to fix blame for the accident. Unlike the USCG or NTSB reports, however, foreign reports are not subject to statutory limitations on their admissibility. Instead, foreign flag state and port state reports may be admissible under the evidence rules governing the admissibility of government reports.

To be admissible, the government report must have been prepared pursuant to the authority of law. Most flag state and port state agencies meet this requirement because they are usually tasked with investigating maritime accidents pursuant to local regulations implementing the provisions of the International Maritime Organization's Casualty Investigation Code.

The government report must also have been prepared under circumstances that indicate its trustworthiness. Several factors determine if a government report is trustworthy. First, the report's author must be an experienced investigator with firsthand knowledge of the matter gained through direct investigation and interviews with participants. In addition, the report must have been prepared sufficiently close in time to the events in question to ensure it is based on reliable information. Most flag state and port state investigations meet these requirements as well, especially those conducted by agencies fully staffed by trained and qualified investigators.

The wealth of data available in accident reports prepared by flag state and port state authorities can be invaluable in casualty litigation. Even where these reports are not themselves directly admissible, several alternative paths are available to put this data before the judge or jury for a successful resolution of the case

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