In the new world of shared regulatory oversight between the United States Coast Guard (USCG) and BSEE on the Outer Continental Shelf (OCS), a mundane devil-in-the-details – but nonetheless vitally important question – had gone unanswered: would BSEE incident investigation reports be admissible in civil proceedings, unlike USCG incident reports, which are indisputably inadmissible pursuant to express statutory terms (46 U.S.C. § 6308)? While there is no similar statutory prohibition barring admission of any reports, incidents of non-compliance (INCs), or other regulatory documents generated by a BSEE investigation, courts had yet to address the issue.
However, in Thibodeaux v. Wellmate, No. 12-1375, Rec. Doc. 67 (E.D. La. Mar. 31, 2014), the Eastern District of Louisiana held that a BSEE investigation report (prepared pursuant to 30 C.F.R. 250.193) regarding property damage/personal injuries resulting from a burst potable water tank on an OCS platform was admissible under the “public record” exception (Federal Rule of Evidence 803(8)) to the hearsay rule. However, the court limited the admissibility of the report solely to its factual findings, and precluded admission of any legal conclusions in the report (joining with the Fourth, Ninth, and Eleventh Circuits in barring admission of legal conclusions in otherwise admissible reports under Rule 803(8)).
While this result is not necessarily surprising, it is the first instance in which a court has recognized a BSEE report as competent evidence in a judicial proceeding. Notably, however, the court’s decision to bar admission of legal conclusions means that as a practical matter, any BSEE INCs will likely be inadmissible (insofar as they by definition state legal conclusions regarding a cited party’s violation of a statute, which is a legal conclusion).
With this ruling setting the stage, offshore operators should be aware that the procedural mechanisms of USCG and BSEE investigations differ dramatically in one particular regard: while the USCG allows investigated parties to retain counsel, participate in certain investigative discovery, and cross-examine witnesses called by the USCG in a casualty investigation, BSEE regulations and procedures do not expressly provide the same access to counsel. That said there are no BSEE regulations precluding investigated parties from retaining counsel and requesting information from BSEE personnel during an investigation, and contractors can and should engage early and often with BSEE during any investigations. The importance of engaging counsel early in the process should be even more pronounced in the wake of Thibodeaux.
It remains to be seen whether Congress (by statute) or BSEE itself (by regulation) may create a rule of non-admissibility for BSEE reports similar to the statutory bar against USCG reports (which, prior to enactment of the statute in October of 1996, had likewise been admissible vis-a-vis factual findings, see e.g., Avondale Indus., Inc. v. Bd. of Comm’rs of Port of New Orleans, 1996 WL 280787 (E.D. La. May 24, 1996)). Until then, however, OCS operators need to be aware that BSEE reports may be competent evidence in any civil proceedings.
