UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION - IN ADMIRALTY

IN RE SKANSKA USA CIVIL

SOUTHEAST INC. AND

SKANSKA USA, INC., AS OWNERS §

OF THE BARGE 470037 PRAYING §

FOR EXONERATION FROM

OR LIMITATION OF LIABILITY §

§

§ ADMIRALTY RULE 9(H)

CIVIL ACTION NO.

§

COMPLAINT FOR EXONERATION FROM OR LIMITATION OF

LIABILITY OF SKANSKA USA CIVIL SOUTHEAST INC.

AND SKANSKA USA, INC., AS OWNERS OF THE BARGE 470037

COME NOW, SKANSKA USA CIVIL SOUTHEAST INC. (“Skanska

Southeast”) and SKANSKA USA, INC. (“Skanska USA”) (collectively herein,

“Skanska”), as owners ofthe Barge 470037, (the “Vessel”) her gear, tackle, etc., in

a cause of exoneration from or limitation ofliability, under Rule 9(h) ofthe Federal

Rules of Civil Procedure and Supplemental Rule F, and in support thereof would

respectfully show the Court as follows:

Jurisdiction and Venue

1. This is a case of admiralty and maritime jurisdiction under 28 U.S.C.

§1333 filed pursuant to Rule 9(h) ofthe Supplemental Rules, all as hereinafter more

fully appears.

2. Skanska Southeast at all times material hereto was the owner of the

Vessel within the meaning of the Limitation of Liability Act. Through its wholly

owned subsidiary Skanska USA Civil, Inc., Skanska USA owns 100% ofthe stock

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of Skanska Southeast, and is therefore an owner ofthe Vessel within the meaning of

the Limitation of Liability Act. Flink v. Paladini, 279 U.S. 59 (1929); In re

Complaint ofShell Oil Company, 780 F.Supp. 1086, 1992 AMC 2062, 2070 (E.D.

La. 1991).

3. The Vessel has not been arrested or attached, and suit has been

commenced against the vessel owner within this district. Accordingly, Skanska

affirmatively shows that venue is proper in this district pursuant to Rule F(9) ofthe

Supplemental Rules.

4. This Complaint has been filed within six months from the date of the

incident giving rise to this Complaint, and accordingly within six months of any

written notice of claim that may have been given by any claimant for losses or

damages that any person, firm, corporation or other entity alleges to have been

sustained with respect to the matters described.

Facts Giving Rise to Skanska’s Right to Exoneration from or Limitation of

Liability

5. The Vessel is a barge of approximately 140 feet in length, 44 feet wide

and with a draft of twenty feet. Prior to and at all times hereinafter described,

Skanska exercised due diligence to make and maintain the Vessel in all respects

seaworthy, and at all times material hereto she was, in fact, tight, staunch, strong,

properly and efficiently manned, supplied, equipped and furnished, and well and

sufficiently fitted with suitable machinery, gear, tackle, apparel, appliances, and

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furniture, all in good order and condition and suitable for the service in which the

Vessel was engaged.

6. Skanska Southeast contracted with the Florida Department of

Transportation to design and construct two new spans for the Pensacola Bay Bridge

and demolish the old bridge (“the Project”). The Vessel was being used by Skanska

Southeast in connection with the Project.

7. Despite Skanska Southeast taking all reasonable steps under the

circumstances to secure the barges being used in connection with the Project, the

unforeseeable and extreme winds, waves and storm surge associated with Hurricane

Sally drove a number of barges owned or chartered to Skanska Southeast, including

the Vessel, from where they were located before the storm.

8. Skanska received notice of a claim on behalf of Melvin and Paula T.

Nelson, George and Claire L. Teixeira, Marcus H. and Carol G. Moye, Michael J.

and Tori J. Naccari, and Ryan Scott alleging that the Vessel had caused damage to

their waterfront property.

9. Any such damage occurred without the “privity or knowledge” of

Skanska within the meaning ofthe Limitation Act.

10. Skanska desires to contest any liability of it and the Vessel for the

damage allegedly sustained by those affected by the events in question, and for any

and all losses and damages, if any. Skanska claims exoneration from or limitation

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of liability for any damage, and damages sustained by those affected, and for the

claims that have been made and those claims which hereafter may be made by any

other person, firm, corporation or other entity. Skanska alleges that it has valid

defenses on the facts and on the law to the claims of any present and/or future

claimant. Skanska, without admitting but affirmatively denying all liability, further

claims the benefit of Limitation of Liability as provided in 46 U.S.C.A., §§ 30501

to 30512, inclusive, Supplemental Rule F, and any and all Acts of Congress of the

United States amendatory thereof or supplementary thereto, and the rules ofpractice

of this Honorable Court, and is entitled to have its liability, if any, limited to the

amount or value ofits interest in the Vessel following the events in question.

Potential Claims against Skanska

11. Except as stated in Paragraph 8 above, there are no known demands,

unsatisfied liens or claims oflien, in contract or in tort, arising from the incident set

forth above with respect to the Vessel, so far as known to Skanska.

12. To the best of Skanska’s knowledge, the Vessel has not been arrested

to answer for any claims arising with respect to the Vessel’s involvement in the

incident described above, or at any other time.

13. As per the Unsworn Declaration under Penalty of Perjury of Claudio

Crivici attached as Exhibit “A,” the value of the Vessel is Seventy-Five Thousand

and No One Hundredths Dollars ($75,000.00). As per the Unsworn Declaration

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under Penalty of Perjury of Thomas J. Fulton attached as Exhibit “B,” there is no

pending freight. Accordingly, the entire aggregate amount or value of Skanska’s

interest in the Vessel and her then pending freight does not exceed the sum of

Seventy-Five Thousand and No One Hundredths Dollars ($75,000.00). Attached

hereto as Exhibit “C” is a bond in the amount of Seventy-Five Thousand Five

Hundred and No One Hundredths Dollars ($75,500.00) bearing interest at the rate

ofsix percent per annum from the date ofissuance as security for Skanska’s potential

liability to claimants and for costs as required by Supplemental Rule F(l) and Local

Admiralty Rule E(4).

14. The amount of the aforesaid claims referred to in Paragraph 8 herein

potentially exceeds the amount and value of Skanska’s interest in the Vessel

immediately after the events in question.

15. If it later appears that Skanska is or may be liable and the amount or

value of Skanska’s interest in the said Vessel, as aforesaid, is not sufficient to pay

all losses in full, then claimants shall share pro rata in the aforesaid sum, saving to

claimants any rights to priority they may have as ordered by this Honorable Court.

WHEREFORE, PREMISES CONSIDERED, Skanska prays:

(A) That the Court issue an order approving the posted bond as security

required by Supplemental Rule F(l);

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(B) That the Court make an Order directing the issuance of a Notice to all

persons, firms, corporations or other entities who might have any claim arising out

ofthe involvement ofthe Vessel as set forth herein, citing them to file their claims

with the Clerk ofthis Court and to serve a copy ofsaid claims upon the attorneys for

Skanska on or before the time fixed by the Court in the Notice or be forever barred

and permanently enjoined from making and filing any such claims, to make due

proof oftheir respective claims before this Court as the Court may later direct, and

also to appear and answer the allegations ofthis Complaint and Petition at or before

a certain time to be fixed by the Notice;

(C) That upon the approval of the bond tendered as security or upon the

giving of such security as may be determined by the Court to be proper, all claims

and proceedings against Skanska or Skanska’s property with respect to this matter

shall cease;

(D) That the Court issue an injunction enjoining the further prosecution of

any action or proceeding against Skanska or Skanska’s property with respect to any

claim subject to limitation in this action;

(E) That the Court in this proceeding adjudge:

(i) That Skanska is not liable to any extent for any loss, injuries or

damages of any party in any way arising out of, during, or consequent upon the

aforesaid occurrence(s), and that therefore the Vessel and Skanska are exonerated

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from any and all liability which has been or may be claimed as a result ofthe events

in question; or,

(ii) Alternatively, if Skanska shall be adjudged liable, then that such

liability be limited to the amount or value of Skanska’s interest in the Vessel, her

engines, tackle, gear, and apparel, and that the money paid or secured to be paid as

aforesaid be divided pro rata among such claimants as they may duly prove their

claims before this Court, saving to all parties any priorities to which they may be

legally entitled, and that a decree may be entered discharging Owner from all further

liability.

(F) That Skanska has such other and further relief, both at admiralty and in

equity, to which it may show itselfto be justly entitled.

Respectfully submitted,

/s/Kenneth H. Tribuch

KENNETH H. TRIBUCH

Florida Bar No. 986887

Chaffe McCall, LLP

801 Travis, Suite 1910 

Houston, Texas 77002

Telephone: (713) 546-9800

Facsimile: (713) 546-9806

AND

JEREMY C. BRANNING

Florida Bar No. 507016

SCOTT A. REMINGTON

Florida Bar No. 122483 

DANIEL E. HARRELL

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Florida Bar No. 105222

Clark Partington

P.O.Box 13010

Pensacola, FL 32591-3010

Telephone: (850) 434-9200

Facsimile: (850) 432-7340

OF COUNSEL

Harold. K. Watson, Esq.

Derek A. Walker, Esq.

Charles P. Blanchard, Esq.

Jon W. Wise, Esq.

Chaffe McCall, LLP

{Pro Hac Vice Motions to befiled)

Attorneys for Defendant, Skanska USA

Civil Southeast, Inc.

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