United States District Court, S.D. New York
July 9, 2004.
EDWARD P. HILLERT, Plaintiff,
PRONAV SHIP MANAGEMENT, INC., Defendant.
The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
By letter dated June 10, 2004, plaintiff seeks an in limine
ruling concerning the admissibility of certain documents and the
resolution of a minor discovery dispute.
This is a Jones Act case in which plaintiff alleges that he
slipped and fell on an interior deck of the SS LNG GEMINI on or
about May 30, 2000. According to plaintiff, the location of the
accident was covered with a wax-removing solution and was
The evidentiary dispute before me concerns the defendant's
policy of investigating accidents. Plaintiff has submitted an
affirmation pursuant to 28 U.S.C. § 1746 in which he states:
As a deck officer, I was aware of the ship's practice
and procedure for investigating shipboard accidents.
Whenever there was an accident that resulted in an
injury aboard the ship an accident report was filled
out, and a statement was obtained from every one
aboard the ship. Anyone that witnessed or heard the
accident was required to write a statement indicating
what he or she observed or heard and then sign the
statement. Those individuals aboard the vessel that did not witness
the accident would sign a form that was called a
Non-Witness Statement. The Non-Witness Statement
listed every crewmember that did not witness the
accident and his/her rating. The crewmember would
then fill in where he/she was at the time of the
accident and would then sign the Non-Witness
Statement. These statements were prepared in the
normal course of [the] ship's business.
At issue presently is the admissibility of the statements
prepared by four GEMINI crew members pursuant to the foregoing
policy. Plaintiff contends that they are admissible as either
admissions, Fed.R.Evid. 801(d)(2)(C) & (D), or as records of
regularly conducted activity, Fed.R.Evid. 803(6). If the
statements are not admissible on any of the foregoing theories,
plaintiff also claims that they should be admitted under the
residual hearsay exception, Fed.R.Evid. 807. Defendant contends
that they are inadmissible hearsay. For the reasons set forth
below, I find that the statements are admissible pursuant to
Fed.R.Evid. 801(d)(2)(D) defines admissions as including a
"statement [that] is offered against a party and is . . . (D) a
statement by the party's agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship. . . ." Evidence that constitutes
an admission is not hearsay. Fed.R.Evid. 801(d). Three conditions
must be met to satisfy Rule 801(d)(2)(D):(1) there must be an
employment relationship between the party and the declarant; (2)
the statement must have been made during the course of the
relationship, and (3) the statement must relate to a matter within the scope of the employment, Pappas v. Middle
Earth Condo. Ass'n, 963 F.2d 534, 538 (2d Cir. 1992), or be made
within the scope of the declarant's employment. United States v.
S.B. Penick & Co., 136 F.2d 413, 416 (2d Cir. 1943). Defendant
does not challenge the existence of the first two elements, but
does challenge the existence of the third.
For an employee's statement to be within the scope of the
declarant's employment, "[t]he authority granted in the
[employment] relationship need not include authority to make
damaging statements, but simply the authority to take action
about which the statement relates." Pappas v. Middle Earth
Condo. Ass'n, supra, 963 F.2d at 538. See United States v.
Lauersen, 348 F.3d 329, 340 (2d Cir. 2003) (In prosecution
against physician for false billing, hearsay declaration of
employee concerning destruction of files admissible where
declarant's duties including maintaining files, notwithstanding
claim that declarant's duties did not include destruction of
The declaration of Steward Assistant Henry Hayes clearly
satisfies the third element. Hayes was the crew member who was
stripping the wax at the time of plaintiff's claimed accident.
His declaration, with the exception of the material described in
the footnote, relates directly to the scope of his duties and the
alleged accident that resulted from the performance of his
duties.*fn1 The statements of the other three declarants Chief Engineer
John Case, Deck Cadet Darin L. Huggins and Chief Mate Larry
Dickens are also admissible. Although plaintiff has not shown
that any of these individuals had any responsibilities or duties
concerning accident prevention or the maintenance of the deck in
the areas of plaintiff's alleged fall, their statements were made
in the scope of their employment because the statements were made
pursuant to the employer's mandate that required all employees to
provide statements concerning shipboard accidents. The statements
were made in the scope of the declarants' employment because the
statements were made as part of and as a condition of the
To the extent that defendant claims the statements are
inadmissible because the declarants lack personal knowledge,
defendants' arguments are without merit. United States v.
Lauersen, supra, 348 F.3d at 340 ("[W]e have not required
personal knowledge for statements by a party's agent.").
Similarly, the other issues defendant raises concerning the
credibility of the declarants and the motive of some of the
declarants to testify falsely based on their unions's
unsuccessful effort to renew its contract with defendant goes to
the weight of their statements, not their admissibility. Finally,
defendant's argument ad horrendum that a finding that the statements
constitute admissions will result in the corporation's being
"bound by and unable to controvert" statements by low level
employees is unfounded. Although I conclude the four statements
in issue here are admissible, defendant is not bound by them in
any sense. Defendant is free to offer evidence to impeach the
credibility of the declarants and is free to offer what ever
admissible evidence it wants that would tend to contradict the
Since the statements are admissible pursuant to Fed.R.Evid.
802(d)(2)(D), I need not address the other arguments for
admissibility made by plaintiff. I note in passing, however, that
the admissibility of the statements, pursuant to Fed.R.Evid.
803(6), as records of regularly recorded activity, appears highly
doubtful. See generally Palmer v. Hoffman, 318 U.S. 109 (1943).
Plaintiff also seeks to compel production of that portion of
ETC's policy manual that deals with slippery floors and the
precautions that need to be taken when a slippery substance is on
the floor. Defendant offers no opposition to this aspect of
plaintiff's application and plaintiff's application is,
Accordingly, for all the foregoing reasons, I conclude that,
subject to the exception noted in footnote one, the statements of
Steward Assistant Henry Hayes, Chief Engineer John Case, Deck
Cadet Darin L. Huggins and Chief Mate Larry Dickens are
admissible. In addition, within ten (10) business days of the
date of this Order, defendant is directed to produce to plaintiff that portion of ETC's policy manual that deals with slippery
floors and the precautions that need to be taken when a slippery
substance is on the floor.