In re Skanska USA Civil Se. Inc.
| Decision Date | 29 December 2021 |
| Docket Number | Case No.: 3:20cv5980/LAC/HTC |
| Citation | 577 F.Supp.3d 1302 |
| Parties | IN RE SKANSKA USA CIVIL SOUTHEAST INC. and Skanska USA, Inc., as Owners of the Barge KS 5531 Praying for Exoneration From or Limitation of Liability |
| Court | U.S. District Court — Northern District of Florida |
Kenneth H. Tribuch, Chaffe McCall LLP, Houston, TX, Scott Alexander Remington, Jeremy Chase Branning, Clark Partington Hart, Pensacola, FL, for Skanska USA Civil Southeast Inc. and Skanska USA Inc.
Lacey A. Collier, Senior United States District Judge This cause is before the Court for determination of liability following a bench trial held from October 18 through 22, 2021. Petitioners Skanska USA Civil Southeast Inc., and Skanska USA, Inc. (collectively, "Skanska") commenced this admiralty action by filing a complaint under the Limitation of Vessel Owner's Liability Act, 46 U.S.C. § 30501 et seq. (the "Limitation Act").1 This court has original jurisdiction over admiralty and maritime cases. See U.S. Const. art. III, § 2; 28 U.S.C. § 1333(1).
Having heard and considered all of the testimony, evidence, and arguments presented, the Court now enters the following findings of fact and conclusions of law. Under the "Louisiana Rule," which will be explained infra , a presumption of negligence is established over the fact that numerous barges belonging to Skanska broke loose when Hurricane Sally struck the Pensacola area, causing widespread damage. Because Skanska fails to overcome that presumption, and because Skanska cannot show that it was without knowledge or privity as to its negligence, it is the finding of the Court that Skanska is not entitled to any relief under the Limitation Act. This case is therefore due to be dismissed.
This action concerns damage caused to the Pensacola Bay Bridge and other properties in and around Pensacola Bay when Hurricane Sally struck the greater Pensacola, Florida, area on September 16, 2020. The Pensacola Bay Bridge provides a major transportation link between the cities of Pensacola and Gulf Breeze, and between Escambia and Santa Rosa counties. Skanska was under contract with the Florida Department of Transportation ("FDOT") to build two new spans for the Bridge while demolishing the old one. Because Skanska's construction of the bridge was carried out from the waters of Pensacola Bay, it used a fleet of barges during the project to aid in the construction and to transport workers and materials to and from the work site. Skanska was using 55 barges on the project at the time of the storm. In advance of the hurricane, Skanska moored the large majority of its barges at mooring stations near the construction site, but 27 of these barges broke free during the storm, striking and damaging the bridge as well as waterfront properties situated along the bay.
During the afternoon of Thursday, September 10, 2020 , the National Hurricane Center ("NHC") issued a five-day weather notice indicating that a tropical disturbance in the Atlantic Ocean was traveling west toward the Bahamas and would then cross the southern tip of Florida and proceed into the Gulf of Mexico, with a 40–60% chance that it would then develop into a tropical cyclone and potentially threaten land areas around the Gulf Coast. There is no indication that Skanska was aware of this notice at the time it was issued.2
On Friday September 11, 2020, that disturbance became Tropical Depression 19,3 and at 4:00 PM,4 the NHC issued Advisory 1, indicating that the storm was heading towards the greater Miami area that evening. The advisory further indicated that by 1:00 PM Saturday the storm would pass over the west coast of the lower Florida peninsula, entering the Gulf of Mexico on a northwest track, and that by 1:00 AM Sunday it would strengthen into a tropical storm while over the Gulf waters.5
As is familiar to most anyone who has watched a televised hurricane weather report, the NHC advisory included a "cone" showing the probable track of the storm during the coming 3 days.6 A separate, larger cone extended beyond the 3 day cone, indicating the potential path of the storm 2 more days into the future. While the center line within the 1–3 day cone indicated a landing site for the storm at the Louisiana/Mississippi border, the cone itself extended from eastern Louisiana, which is approximately 200 miles to the west of Pensacola Bay, to Apalachicola, Florida, approximately 160 miles to the east. Depending of course on the storm's actual path, the storm was projected to be positioned in the Gulf as a tropical storm due south of the Pensacola area by early Monday afternoon, less than 72 hours from the time of the advisory. If the storm were to continue following the path indicated by the center line, landfall was predicted to occur at the Louisiana/Mississippi border at around 1:00 PM on Tuesday afternoon.
At the top of the NHC advisory, and indeed at the top of every subsequent NHC advisory, the following explanatory note was displayed: Thus, the note indicates that, depending on the size, strength and ultimate direction of the storm, areas outside the cone may also face significant storm conditions.
As it happened, Project Manager Robert Rodgers was apparently the first member of the Skanska management team to become aware of Tropical Depression 19, which he did on Saturday, September 12th at around 8:00 AM when he arrived at his office and learned of the advisory. Daniel Francis, another project manager, evidently informed Rodgers about the tropical depression upon Rodgers’ arrival, but it is uncertain as to when Francis himself knew. Vice President Thomas Fulton, the director for the bridge project, stated he would have "received the normal weather alerts" on Friday the 11th, but he also said there was no weather advisory that would have prompted him to implement Skanska's Hurricane Preparedness Plan (which will be described infra ). However, because Fulton had traveled to his home in Virginia on that Friday afternoon as he regularly did, there is uncertainty as to whether he had learned about Advisory 1 prior to Saturday.
To discuss the advisory, Rodgers set up a video conference call with Fulton and several other management personnel. The conference took place at 1:00 PM on Saturday. By that time, Advisories 2, 3 and 4 had been issued, which upgraded the tropical depression to Tropical Storm Sally and updated the storm's position to the western coast of the southern tip of Florida. The storm was now projected to strengthen into a hurricane by 7:00 PM on Monday the 14th. The center line within the 1–3 day cone remained on a path to make landfall at the Louisiana-Mississippi border, but the easternmost edge of the 3 day cone was now just inside the westernmost border of the Florida panhandle, essentially putting Pensacola Bay on the outskirts of the cone. As far as the 4-5 day cone, the Pensacola area and parts further east were clearly within it. Along the eastern coastline of the Florida panhandle a tropical storm watch had been issued, indicating that storm conditions were possible within the next 48 hours, presumably because that area, being farther east, was that much closer to the westward traveling storm.7
At the meeting, which had several managerial attendees, it was decided that Skanska would begin preparations for demobilizing8 its 55 barges and other equipment. However, concerns were expressed that there might be difficulty contacting and bringing in the needed personnel because it was the weekend – as even some of the managers lived away from the Pensacola area and had returned home. The Skanska managers determined that the two tugboat captains that Skanska evidently had on hand should be notified that they would probably need to come to work on Sunday to move the barges. A local tugboat service would also be solicited for help, although there seemed to be no certainty that the service would be available – and in fact no evidence was provided to show that attempts to solicit the tugboat service were even made.
There was a particular barge, identified as "Rig 20" that was actively engaged in pile driving activity at the bridge. It was determined that Rig 20 would continue to operate, apparently due to the difficulty with halting its current operation and the fact that its present positioning at the bridge was deemed relatively safe against the expected weather conditions.
The meeting generally resulted in Skanska taking a "wait and see" approach with regard to the tropical storm, which they anticipated would produce only relatively mild conditions in Pensacola Bay. Instead of immediately demobilizing the barges, Skanska elected to track the storm while arranging to have personnel and equipment in place should it decide to demobilize on Sunday. To that end, the Skanska managers set another meeting for Sunday morning at 7:00 AM.
Ahead of that meeting, the NHC had issued Advisories 5 through 7A, the last of which was issued at 7:00 AM on Sunday. Advisory 7A located Tropical Storm Sally's position in the middle of the Gulf of Mexico, and, roughly speaking, on a line due south of Tallahassee and due west of Tampa. The storm was heading in a west-northwest direction was now projected to strengthen into a hurricane by 2:00 PM on Monday. The center line within the 1–3 day cone was on a path to make landfall slightly west of the Louisiana-Mississippi border, but was now projected to remain in the Gulf longer, only to turn sharply to the right and make landfall in a northern direction. The center line continued its right turn until the storm was traveling in a northeastern direction as it crossed over inland Louisiana and Mississippi and headed into Alabama. In effect, the center line and its surrounding cone showed the storm making a...
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