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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE SKANSKA USA CIVIL §

SOUTHEAST INC. AND § ADMIRALTY RULE 9(H)

SKANSKA USA, INC. AS §

OWNERS OF THE BARGE KS § CIVIL ACTION NO.

5331, PRAYING FOR § 3:20-CV-05980 – RV/MJF

EXONERATION §

FROM OR LIMITATION § SENIOR DISTRICT JUDGE

OF LIABILITY § LACEY A. COLLIER

§

§ MAGISTRATE JUDGE

§ HOPE THAI CANNON

SKANSKA USA CIVIL SOUTHEAST INC. AND

SKANSKA USA, INC.’S MOTION FOR NEW TRIAL

Skanska USA Civil Southeast Inc. and Skanska USA, Inc. (collectively, 

“Skanska”) files this Motion for a New Trial pursuant to Fed. R. Civ. P. 59(a)(1)(B)

and (a)(2), and respectfully states as follows:

1. Under the rule of The Louisiana, 70 U.S. (3 Wall.) 164 (1865), when a 

vessel breaks her moorings and strikes a fixed object or stationary vessel, the moving 

vessel is presumed to be at fault. The moving vessel can overcome this presumption 

by proving either that “[1] that the allision was the fault of the stationary object[;] 

[2] that the moving vessel acted with reasonable care[;] or [3] that the allision was 

an unavoidable accident.” Bunge Corp. v. Freeport Marine Repair, Inc., 240 F.3d 

919, 923 (11th Cir. 2001).

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2. The test for whether the moving vessel acted with reasonable care is 

accurately set forth in the 1970 case of Petition of the United States of America, 425 

F.2d. 991 (5th Cir. 1970):

The test for determining whether [Skanska] is free from fault is whether 

[it] took reasonable precautions under the circumstances as known or 

reasonably anticipated. If those responsible for [Skanska’s] barges 

were reasonable in their anticipation of the severity of the impending 

storm and undertook reasonable preparations in light of such 

anticipation, then they are relieved of liability. The standard of 

reasonableness is that of a prudent man familiar with the ways and 

vagaries of the sea. 

Id. at 995. (Emphasis added). Accordingly, this defense has two components: (1) 

Was Skanska “reasonable in [its] anticipation of the severity of the impending 

storm”? and (2) did Skanska undertake reasonable precautions in light of the 

reasonably anticipated conditions? 

3. In analyzing whether a vessel owner has acted reasonably, the courts 

have consistently considered evidence of how similarly situated entities have acted. 

In The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), defendant’s tugs lost two barges en

route from Norfolk to New York City when caught in a gale. Another tow 

proceeding on the same route put into a port of refuge before the storm struck, and 

three other tows followed suit. In determining whether the defendant had acted 

negligently in continuing with the voyage, the court, speaking through Judge 

Learned Hand, stated “Courts have not often such evidence of the opinion of 

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impartial experts, formed in the very circumstances and confirmed by their own 

conduct at the time.” Id. at 739. 

4. Similarly, in Buntin v. Fletchas, 257 F.2d 512 (5th Cir. 1958), the court 

looked to actions of third parties to determine whether the defendant had acted 

reasonably, stating that “The houseboat was secured in the same manner as other 

boats that survived the hurricane at the shipyard.” Id. at 514. See also Hatt 65, LLC 

v. Kreitzberg, 2009 U.S. Dist. LEXIS 95332 at *7, Case No. 3:06cv332-MCR/EMT

(N.D. Fla., Sept. 30, 2009), affirmed, 658 F.3d 1243 (11th Cir. 2011) (“[M]ost, if 

not all, persons in the area were still expecting the storm to make landfall near 

Mobile Bay to the west in accordance with the NHC’s 4:00 forecast.”).

5. Skanska had indications from newspaper reports that the United States 

Navy and Escambia County, both sophisticated entities with a duty to the public to 

monitor Sally, had similarly concluded that Sally was unlikely to have a significant 

impact on Pensacola. See Exhibits A and B. 

6. Accordingly, Skanska propounded the following interrogatories to the 

government:

INTERROGATORY NO. 15: DIRECTED TO THE UNITED STATES OF 

AMERICA

Please identify each and every log, record, report, planning 

document, after-action reporting document, or data compilation of 

any kind, including text messages, Naval messages, or emails, kept 

or maintained by NASP, other Independent Commands, SubCase 3:20-cv-05980-LC-HTC Document 1356 Filed 01/18/22 Page 3 of 8
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Regional Command Centers, and Regional Commanders for 

September 10-30, 2020, whether handwritten or recorded by 

electronic or mechanical equipment, and which relates to the 

preparations for and responses to Hurricane Sally.

INTERROGATORY NO. 16: DIRECTED TO THE UNITED 

STATES OF AMERICA

Describe in detail and particularity the meteorological data and 

interpretation of the same that NASP, other Independent Commands, 

Sub-Regional Command Centers, and Regional Commanders 

utilized and relied on in order to make decisions to protect property 

and personnel from the impacts of Hurricane Sally.

Interrogatory No. 16 inquired directly into the U.S. government’s interpretation of 

meteorological data, and thus is likely to elicit information relevant to whether 

Skanska’s interpretation of that data was reasonable. Interrogatory No. 15 inquired

into communications about hurricane preparations, which would likely include 

communications relating to the expected weather conditions. 

7. In Discovery Order No. 2, ECF No. 1192, Magistrate Judge Cannon 

held that what the Navy had done to prepare for Sally was irrelevant, in that the Navy 

did not have any barges.

8. Skanska filed an objection to Magistrate Judge Cannon’s ruling, 

pointing out that while what the Navy did to physically prepare for Sally might not 

be relevant with regard to the manner in which Skanska had secured its barges, 

evidence of what sources the Navy relied upon to evaluate the potential impact of 

Sally and how it had evaluated that information was relevant to whether Skanska 

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was reasonable in relying on the sources it relied upon, and whether Skanska’s 

evaluation of the information obtained from those sources was reasonable. ECF No. 

1201. This Court denied the objection. ECF No. 1205. Magistrate Judge Cannon 

then also granted the United States a protective order prohibiting Skanska from 

taking depositions of Navy personnel. ECF No. 1226.

9. A denial of discovery is based on an abuse of discretion standard, but 

“[a] district court by definition abuses its discretion when it makes an error of law.” 

Arthur v. Allen, 452 F.3d 1234, 1243, modified on rehearing on other grounds, 459 

F.3d 1310 (11th Cir. 2006), cert. den. 127 S. Ct. 2003 (2007) (quoting Koon v. 

United States, 518 U.S. 81, 100 (1996). The Court’s ruling that evidence of how 

sophisticated entities evaluated the potential impact of Sally was irrelevant is in 

conflict with the cases cited above, including Buntin v. Fletchas, 257 F.2d 512 (5th

Cir. 1958), an “old Fifth Circuit” case binding in the Eleventh Circuit. Accordingly, 

denial of discovery was an error of law.

10. “Erroneous denial of discovery is ordinarily prejudicial in the absence 

of circumstances showing that it is harmless.” Weahkee v. Norton, 621 F.2d 1080, 

1083 (10th Cir. 1980); Shaklee Corp. v. Gunnell, 748 F.2d 548, 550 (10th Cir. 1984). 

11. Accordingly, Skanska is entitled to a new trial after being allowed to 

conduct the discovery previously disallowed.

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WHEREFORE, PREMISES CONSIDERRED, Skanska hereby moves the 

Court to order a new trial, allow the discovery prohibited by the Court’s orders, take 

additional testimony and issue amended findings of fact and conclusions of law 

based upon that additional evidence.

{signature on following page}

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Respectfully submitted, 

/s/ Harold K. Watson

DEREK A. WALKER SCOTT A. REMINGTON

Admitted Pro Hac Vice Florida Bar No. 122483

KENNETH H. TRIBUCH JEREMY C. BRANNING

Florida Bar No. 986887 Florida Bar No. 507016

Harold K. Watson, Esq. ANDREW M. SPENCER

Derek A. Walker, Esq. Florida Bar No. 0119966

Charles P. Blanchard, Esq. CLARK PARTINGTON

Jon W. Wise, Esq. P.O. Box 13010

CHAFFE MCCALL, LLP Pensacola, FL 32591-3010 

801 Travis, Suite 1910 Telephone: (850) 434-92000

Houston, Texas 77002 Facsimile: 9850) 432-7340

Telephone: (713) 546-9800

Facsimile: (713) 546-9806

ANTHONY J. RUSSO, ESQ.

Florida Bar No.: 508608

arusso@butler.legal

MIHAELA CABULEA, ESQ.

Florida Bar No.: 71586

mcabulea@butler.legal

rburnison@butler.legal

BUTLER WEIHMULLER 

KATZ CRAIG LLP

400 N. Ashley Drive, Suite 2300

Tampa, Florida 33602

Telephone: (713) 546-9800

Facsimile: (713) 546-9806

Attorneys for Skanska USA Civil Southeast, Inc. 

and Skanska USA, Inc. 

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CERTIFICATE OF COMPLIANCE AS TO WORD COUNT

I hereby certify that, as required by Local Rule 7.1(F), this Motion contains 

1,128 words, counted as provided in Local Rule 7.1(F).

/s/ Andrew M. Spencer

ANDREW M. SPENCER

CERTIFICATE OF COUNSEL CONFERENCE

Although N.D. Fla. Loc. R. 7.1 does not appear to require conferral on this 

Motion due to the relief requested, I hereby certify that, in an abundance of caution, 

undersigned counsel for Skanska conferred with counsel for Claimants by telephone 

and email. Counsel for Claimants represented to undersigned counsel that Claimants 

object to the relief requested in this Motion. 

/s/ Jeremy C. Branning

JEREMY C. BRANNING 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been filed with the 

Clerk of Court and furnished to all counsel of record through the Court’s CM/ECF 

electronic filing system on this 18th day of January, 2022.

/s/ Andrew M. Spencer

ANDREW M. SPENCER

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