Opinion
Civil Action No: 98-3116 Section: "R" (1)
October 2, 2001
ORDER AND REASONS
Before the Court are defendants', Lake Marion and Bay Ocean Management, Inc., motions in limine to exclude certain surveyors' reports. For the following reasons, the Court denies the motions.
I. Discharge Survey, Camden, McLarens Toplis (Ex. 87)
Defendants move to exclude the McLarens Toplis Camden Survey Report on the grounds that it is irrelevant and is not a business record under FRE 803(6). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence. See Fed. Rule of Evid. 401. All relevant evidence is admissible, except as provided by the United States Constitution, an act of Congress, other rules of evidence, or other Supreme Court rules pursuant to statutory authority. See Fed. Rule Evid. 402. To qualify under the business records exception to the hearsay doctrine, which excludes all out of court statements offered for the truth of the matter asserted, a report must have been made at or near the time of the opinions expressed, by someone with knowledge or from other information transmitted by a person with knowledge. See Fed. Rule Evid. 803(6). The rule also requires that the record be kept in the ordinary course of business activity and that it was the regular practice of that business activity to make the record. See id. All of the aforementioned requirements can be shown by the testimony of a custodian or other qualified witness. See Id.
Defendants argue that the report is not relevant because it was taken at a port, Camden, where none of the subject cargo was discharged. The Court rejects this argument and finds the report relevant as to the seaworthiness of the vessel, a factual issue in controversy. Turning to the business records exception, defendants argue that the proper foundation has not been laid that would satisfy the requirements of the rule. The Court finds otherwise. First, Mr. Pinkert, the current president of Steel Coils and a steel coils purchasing manager during the times relevant to this case, undoubtedly a qualified witness under the rule, testified in a deposition that the report was prepared as a matter of course on all of plaintiff's cargo, indicating that it was conducted in the regular course of business. ( See Pinkert Depo. at 64, 70.) Second, the first hand knowledge requirement is met by the fact that the photographs included in the report can only be taken by someone who was present at the vessel, observing first hand the condition of the vessel. Therefore, the Court denies the motion to exclude the McLarens Toplis report.
II. Sia Elmers Report (Ex. 99) and Seaspan Marine Consultants Reports (Part A and Part B) (Ex.'s 100 and 101)
Defendants move to exclude the Sia Elmers, Survey Report, No. AD/97-110/UJL-F and the Seaspan Marine Consultants, Report No. 4875/97 (Part A and Part B) (Ex.'s 87, 99, 100, 101), on the grounds that the reports were not properly authenticated under FRE 901 and they constitute inadmissable hearsay under FRE 802. Defendants also object to the Sia Elmers report on the grounds that it is not relevant. Authentication is satisfied as precondition for admissibility by evidence sufficient to support a finding that the matter in question is what its proponent claims. Hearsay is inadmissible unless it fits under one of the exceptions listed in rules 803 or 804. See Fed. Rule Evid. 802.
Specifically with regard to the Seaspan report Part A, defendants agreed to the admission of the report if the surveyor could not be located and deposed. ( See Pl's Ex. 1.) Plaintiff tried to contact the surveyor but he refused to testify unless he was paid an expert fee, despite the fact that he was not wanted as an expert. Ultimately, because the surveyor was beyond the Court's subpoena power, no deposition could be taken. Therefore, the Court finds that defendants agreed to the admission of the report and their objection is improper. The objection to Part B of the report, on the grounds of unfair surprise and undue prejudice are also rejected.
Regarding the hearsay claim, the Court finds that the reports are admissions of authorized agents under FRE 801(d)(2)(C). The rules define admissions made by a party opponent as non-hearsay and therefore admissible. See Id. An admission by a party opponent can come in the form of a statement by a person authorized by the party opponent to make a statement concerning the subject of the case. See Id. Both reports were prepared at the request of the defendants through Thomas Miller, Inc., the representative of the vessel owner. See Collins v. Wayne Corporation, 621 F.2d 777, 782 (th Cir. 1980) (finding report by investigator to be admissible under FRE 801(d)(2)(C) where expert was hired by defendant to investigate accident and report on it). Defendant also argues that agency cannot be found because the surveyors were not directly hired by the defendants, but they fail to cite one case in this circuit requiring such a direct link. The Court also finds the Sia Elmers report to be relevant because it goes to the issue of the seaworthiness of the vessel as well as the issue of the condition of the cargo at Ventspils.
IV. Trans-Port Marine Surveyor's Report (Pl's Ex. 113)
Defendants move to exclude the Trans-Port Marine surveyor's report as unduly prejudicial under FRE 403 and as hearsay under FRE 801. Under FRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Fed. Rule Evid. 403. Hearsay is defined as any statement other than one made by the declarant while testifying at the trial that is offered into evidence to prove the truth of the matter asserted. See Fed. Rule Evid. 801.
The Court finds that the defendants' claimed prejudice does not substantially outweigh the probative value of the report because the matter contained in the report is highly probative of the vessel's condition, an issue for which defendants have had more than ample time to prepare. The Court also finds the report qualifies as an admission of a party opponent under 801(d)(2)(c) for the reasons stated above, but it will only be considered as against defendant Western Bulk, the party who authorized the particular survey.