A ruling from a federal court in Pensacola, Florida serves as a reminder to vessel owners (and their insurers) of the importance of having and implementing a detailed hurricane plan, prepared by a qualified individual, and implemented properly with proper attention to meteorological forecasts. The case, In re Skanska USA Civil Southeast, Inc., arose out of a barge breakaway during Hurricane Sally that resulted in multiple barges alliding with the Pensacola Bay Bridge. The District Court found in its decision that the barge owner was at fault and unable to limit its liability.
The Court found that there were multiple deficiencies with the barge owner’s hurricane plan, its actual implementation and use of meteorological forecasts, and that it was executive decision-making that resulted in the failure to take reasonable preparation measures.
Blowin’ in the Wind
Skanska was the owner of 55 barges that it was using to transport workers and materials on a repair project it was undertaking on the Pensacola Bay Bridge. In September 2020, a tropical disturbance that would become Hurricane Sally formed in the Gulf of Mexico and approached the Gulf coast but with a wide cone of uncertainty as to where it would make landfall.
Skanska became aware of the potential approaching hurricane and began making some preparations. Its hurricane plan called for the barges to be demobilized and moved to designated nearby locations. Most of the barges were moved but not to the designated locations. During the hurricane, 27 of the barges broke free and “either struck other structures or went aground, causing various property damage.”
(No) Shelter from the Storm
Skanska filed a Limitation Action in federal court, seeking exoneration from or limitation of liability to the post-casualty value of the barges. In such an action where vessels hit stationary objects, the vessel owner has the burden of proving it was not negligent and (if it cannot meet that burden) that the owner did not have “privity or knowledge” of the acts of negligence such that it can limit its liability.
The District Court rejected Skanska’s claims that it had acted reasonably to secure the barges for Hurricane Sally. Specifically, the District Court was critical of the barge owner’s failure to follow the requirements of its own hurricane plan and move the barges to the designated locations, specifically rejecting the claim that the barges would have fared no better at these locations. The District Court noted (with a hint of cynicism): “one would have to wonder why, as a matter of company policy, Skanska would designate a ‘hurricane location for barges’ in its Hurricane Plan when that location is largely ineffective for its stated purpose.”
The District Court provided a detailed timeline of the preparations undertaken and compared how these tracked with meteorological predictions and the requirements of the hurricane plan while noting that Skanska management personnel were involved in the decision-making process. The District Court essentially concluded that too little had been done too late and that Skanska should have taken earlier and greater heed of the forecasts, stating that Skanska’s “only surprise was that its unreasonable choice to discount – or even ignore – the clear warnings of the approaching tropical storm turned out to have harsh consequences… its executives tried to get by with doing less, and that gambit backfired.”
The District Court found that Skanska was negligent (and therefore not entitled to exoneration) and that “that negligence sprung wholly from executive decision-making that resulted in failure to take reasonable measures to protect its barges from the impending storm.” The Limitation Action was dismissed and the claimants who suffered damages will now be free to litigate those claims with liability already established and a determination that it cannot be limited.
(Don’t Get) Tangled Up in Blue
The ruling is expected to be appealed by the barge owner, but regardless of how it turns out, the District Court’s ruling provides some clear lessons for vessel owners working in hurricane zones:
- Have a detailed hurricane plan, prepared by a properly qualified individual, that is not just form but substantive and squares with the reality of approaching storms, detailing what actions can be taken, by whom, and when.
- Follow that plan or have compelling reasons not to do so. The District Court was clear that making decisions too late or gambling that the storm’s impact would make landfall elsewhere are not compelling reasons.
- Pay attention to the forecasts as to potential areas where the storm may hit. The District Court expressly rejected the vessel owner’s claim that certain actions in the hurricane plan need only be taken if it was “more likely than not” that the hurricane would strike the area.
- Hurricane breakaway cases are usually litigated in the area where the vessels caused property damage to some and likely significant inconvenience to all. Right off the bat, that is probably unlikely to be a friendly venue for the vessel owner.