Lumbard, Chief Judge and Waterman and Hays, Circuit Judges. Lumbard, Chief Judge (dissenting).
In this action plaintiff, alleging that the shipowner was negligent and that its vessel was unseaworthy, seeks to recover damages for an elbow injury the plaintiff sustained while working aboard the Alcoa Puritan owned by the defendant. Plaintiff is a marine carpenter foreman employed by American Stevedores, Inc. which had a contract to load cargo and to do carpentry work aboard the Alcoa Puritan while berthed at the Brooklyn Army Terminal.
The plaintiff slipped and fell when he tried to descend from a stow of oil drums onto a deck approximately three feet below him by stepping onto an elevated bench which was situated midway between the stow and the deck and which the plaintiff believed was securely fastened. The bench gave way. No catwalk, ladder, stairs or other device for egress from the stow was available.
Judge Cooper of the United States District Court for the Southern District of New York, sitting without a jury, accepted plaintiff's version of how the accident occurred, rejected defendant's contention that plaintiff had been contributorily negligent, and found that the shipowner's failure to provide a safe means of egress from the stow made the ship unseaworthy. Plaintiff was awarded a judgment of $15,000 for pain and suffering and $132 for medical expenses. Third-party claims by Alcoa against American Stevedores, alleging that American was responsible for placing the bench in position near the stow and should have known that, when so placed, the bench created an unsafe condition, and against Anderson Linton Co., a carpentry contractor on the Alcoa Puritan, alleging breach of warranty of contract to construct a catwalk and that it was responsible for placing the bench in position near the stow, were dismissed. Defendant appeals from these determinations, alleging that prejudicial trial errors occurred in the admission and exclusion of evidence, that the factual findings made by the judge were "clearly erroneous," and that the judgment award was so excessive as to be a denial of justice.
At the trial appellant offered in evidence a Marine Casualty Investigation Report, identified by Colonel George H. Richardson, Staff Judge Advocate at the United States Army Terminal, as a record made in the regular course of the Army's business. The United States Army, as operator of the Brooklyn Army Terminal, by regulation requires that all accidents at the terminal be reported to Army Personnel. Pursuant to that regulation plaintiff had immediately reported his injury to the Army timekeeper, Carl Puccio, who thereafter submitted to his superiors a report of his conversation with the plaintiff. A formal written accident report by a Marine Casualty Investigating Officer was subsequently made. Judge Cooper, relying on the rule pronounced by the Supreme Court in Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645, 144 A.L.R. 719 (1943), refused to allow appellant to enter into evidence an affidavit of the Army timekeeper and the accident report.
In Palmer v. Hoffman an important exception to the broad language of the Federal Business Records Act, 28 U.S.C. § 1732 (1964), was formulated. The Supreme Court upheld a district court's refusal to receive into evidence an accident report prepared by one of defendant-railroad's engineers and offered as evidence by the railroad. The Court reasoned that the regularity with which such reports are made does not by itself mandate admissibility. Rather it must first appear that the reports are required "for the systematic conduct of the business as a business." 318 U.S. at 113, 63 S. Ct. at 480. In Palmer, the Court found that the practice of making accident reports was designed to serve a different purpose; it held that the reports were specifically calculated to assist the railroad in litigation before the courts, and therefore lacked the necessary trustworthiness to be admissible.
The Second Circuit has never interpreted Palmer v. Hoffman as barring the admissibility of any and all accident reports. Instead, we have been guided by the purpose for which the record-maker has required the reports and by the relationship between the record-maker and the party who desires to introduce the evidence.
Accordingly, in Puggioni v. Luckenbach Steamship Company, 286 F.2d 340, 344 (2 Cir. 1961), we said:
Although accident reports should not be admitted when the party making the report offers it for the purpose of its own exoneration from liability (cited cases omitted) this circuit has construed Palmer v. Hoffman to give trial judges discretion to determine whether the circumstances surrounding accident reports made by others justify their acceptance in evidence (cited cases omitted). The Federal Business Records Act should not be interpreted in a "dryly technical" way which would "reduce sharply its * * * usefulness."
See also Bowman v. Kaufman, 387 F.2d 582, 586, n. 3 (2 Cir. 1967); Hawkins v. Gorea Motor Express, Inc., 360 F.2d 933 (2 Cir. 1966); Bridger v. Union Ry. Co., 355 F.2d 382, 391 (6 Cir. 1966); McKee v. Jamestown Baking Co., 198 F.2d 551, 536 (3 Cir. 1952).
Subsequently, in United States v. New York Foreign Trade Zone Operators, Inc., 304 F.2d 792 (2 Cir. 1962), we expanded what was said in Puggioni. We held that the United States Government, as assignee of a claim of a federal employee whom the Government compensated under the Federal Employees Liability Act, could introduce into evidence an accident report filed with the Government by the compensated employee's superior -- even though the entrant was in the employ of the party offering the report in evidence. Underlying our holding was the fact that the report was a condition precedent to the obtaining of compensation by the injured federal worker from the Government pursuant to the Federal Employees Liability Act. Its primary function, therefore, was not for use in litigation. The court stated:
We do not understand Palmer v. Hoffman to require the exclusion from evidence of all records which were made with some contemplation that they might be valuable in the event of litigation. 304 F.2d at 797.
Also in Taylor v. Baltimore & Ohio Railroad, 344 F.2d 281 (2 Cir. 1965) we permitted a defendant-railroad to submit in evidence an accident report which was prepared by a railroad employee and which favored the railroad because the railroad was required by law to file such reports with the Department of Labor. The court reasoned that there, unlike the situation in Palmer v. Hoffman, in-as much as the entrant "had no personal involvement in the accident and, in all likelihood, no awareness of the manner in which his entry might work to the employer's advantage," the degree of trustworthiness of the report was not diminished. 344 ...