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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 §

§ ROGER VINSON

This Pleading Relates to Civil Action Nos.:

3:20-CV-05980-RV/MJF

3:20-CV-05981-RV/MJF

3:20-CV-05982-RV/MJF

3:20-CV-05983-RV/MJF

SUR-REPLY MEMORANDUM OF 

SKANSKA USA CIVIL SOUTHEAST INC. AND 

SKANSKA USA, INC. IN OPPOSITION TO MOTION TO DISMISS

I. This is a “quintessential” admiralty case.

Before discussing the test established in Sisson v. Ruby, 497 U.S. 358 (1990) 

and Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Company, 513 U.S. 

527 (1995), it is important to note that Executive Jet Aviation, Inc. v. Cleveland, 

409 U.S. 249 (1972) and its progeny were intended to keep a “class of odd cases 

out,” Grubart, 513 U.S. at 532, and that admiralty jurisdiction is the “norm when 

the tort originates with a vessel in navigable waters.” Id. at 547. Accordingly,

“ordinarily” “every tort involving a vessel on navigable waters falls within the 

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scope of admiralty jurisdiction.” Germain v. Ficarra (In re Germain), 824 F.3d 

258, 261 (2d Cir. 2016). The adverb “ordinarily” is an understatement, for since 

enactment of the Admiralty Extension Act, the Supreme Court has never held that 

jurisdiction did not exist where damage was caused by a vessel. 

Here, breakaway barges allided with a bridge, and “[a]n allision is the 

quintessential maritime tort.” Apache Corp. v. Global Santa Fe Drilling Co., 832 

F.Supp. 2d 678, 693 (W.D. La.2010), aff’d 435 Fed.Appx. 322 (5th Cir. 2011), cert. 

den. 565 U.S. 1157 (2012). The federal courts routinely take jurisdiction in such 

cases. See, e.g., In re Luhr Bros., Inc., 2007 U.S. Dist. LEXIS 50540 (E.D. La. 

July 12, 2007); Am. River Transp. Co. v. Paragon Marine Servs., 213 F.Supp.2d 

1035 (E.D. Mo. 2002), aff’d 329 F.3d 946 (8th Cir. 2003). The suggestion that this 

case is not within the admiralty jurisdiction is simply absurd.

II. This case meets the Sisson/Grubart test.

Sisson established the following test for admiralty jurisdiction: (1) the tort 

must occur on navigable waters or be caused by a vessel on navigable waters, (2) 

the “general feature” of the incident must have a “potentially disruptive impact on 

maritime commerce”, and (3) the “general character” of the “activity giving rise to 

the incident” must have a “substantial relationship to traditional maritime activity.” 

Grubart, 513 U.S. at 534. Claimants’ Reply focuses on the third component, but 

their arguments are foreclosed by Grubart and lower court authorities.

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A. Claimants misquote and misapply Grubart.

Claimants argue that Skanska’s activity should be characterized as 

“constructing a bridge,” and state that the Court in Grubart similarly characterized 

the activity there as “repair or maintenance work on a navigable waterway.” Doc. 

51 at 3. Claimants misquote Grubart; the Court actually said “the ‘activity giving 

rise to the incident’ in this suit . . . should be characterized as repair or maintenance 

work on a navigable waterway performed from a vessel.” 513 U.S. at 540 

(emphasis added). The Supreme Court has never concluded jurisdiction was 

absent in a case involving damage caused by a vessel.

Moreover, in Grubart, the Supreme Court rejected claimants’ 

characterization of the activity as “repair or maintenance” or “pile driving near a 

bridge” as defeating the very purpose of the test:

The city is, of course, correct that a tortfeasor's activity can be 

described at a sufficiently high level of generality to eliminate any 

hint of maritime connection, and if that were properly 

done Sisson would bar assertion of admiralty jurisdiction. But to 

suggest that such hypergeneralization ought to be the rule would 

convert Sisson into a vehicle for eliminating admiralty jurisdiction.

. . . The test turns on the comparison of traditional maritime activity 

to the arguably maritime character of the tortfeasor's activity in a 

given case; the comparison would merely be frustrated by 

eliminating the maritime aspect of the tortfeasor's activity from 

consideration.

Id. Claimants’ characterization of the activity here as “constructing a bridge” 

violates this mandate, since the characterization of Skanska’s activity must include 

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its maritime aspects. Accordingly, at the very least Skanska’s activity must be 

described as “construction of a bridge over navigable waters by a fleet of vessels.”1

In Grubart, the Court characterized the activity as “repair or maintenance 

work on a navigable waterway performed from a vessel.” (Emphasis added). 

Substituting “construction” for “repair or maintenance,” the Court’s 

characterization mirrors the facts here. Significantly, the Court did not characterize 

the work as repair “of” or “to” a navigable waterway or place any importance on 

whether the work done by the vessel would aid navigation. Instead, the mere fact

that work was done on navigable waters by a vessel was sufficient to establish 

jurisdiction.

The Court stated that

[d]escribed in this way, there is no question that the activity is 

substantially related to traditional maritime activity, for barges and 

similar vessels have traditionally been engaged in repair work 

similar to what Great Lakes contracted to perform here.

513 U.S. at 540. The Court then cited cases that involved “traditional maritime 

activity” without mentioning any further relationship to maritime activity beyond 

the use of a vessel. 

For instance, the Supreme Court characterized the activity in Shea v. RevLyn Contracting Co., 868 F. 2d 518 (1st Cir. 1989) as “bridge repair by crane-

 

1 As will be discussed in section I.B, a better characterization would be “securing

of a fleet of vessels in navigation for an anticipated storm.”

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carrying barge.” While Claimants argue that the bridge was a drawbridge, the 

Supreme Court apparently thought this irrelevant, as it did not mention it.

In In re P. Sanford Ross, 196 F. 921 (1912), a barge was driving piles on the 

shore and not in navigable water, id. at 923, and there is no indication the work 

was otherwise related to maritime commerce. The Supreme Court characterized

the activity as “pile driving from crane-carrying barge close to water’s edge,” 513 

U.S. at 540, and considered that “traditional maritime activity.”

In The V-14813, 65 F.2d 789 (5th Cir. 1933), a barge was used in building a 

bridge. The Supreme Court quoted the Fifth Circuit, saying “[t]here are many 

cases holding that a dredge, or a barge with a pile driver, employed on navigable 

waters, is subject to maritime jurisdiction,” making no suggestion that some further 

maritime connection was required.

In none of these cases did the Supreme Court think it important to mention 

any maritime activity other than the involvement of a vessel. Accordingly,

Claimants’ argument that Skanska’s activity did not bear a “substantial relationship 

to traditional maritime activity” because the principal objective of building the 

bridge was unrelated to maritime commerce is untenable given the Supreme 

Court’s characterization of the activity in Grubart and of “traditional maritime 

activity” in earlier cases. And In re Complaint of Orion Marine Construction, Inc.,

2016 U.S. Dist. LEXIS 202718 (M.D. Fla. February 9, 2016), the court concluded

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that Grubart and the cases it cited compelled the conclusion that the use of a vessel 

to build a bridge is traditional maritime activity.

Moreover, all these cases involved far less maritime involvement than is 

present here. All but Orion involved a single vessel, and none indicated vessel 

movement during the project. Here, a fleet of 55 vessels provided the only access 

to the work site. Doc. 46-1, ¶ 1. The material, equipment and workers were

transported to the site by barge, and every barge involved in the project moved 

from one location to another, frequently multiple times a day. Doc. 46-2. As made 

clear in Keith Sabol’s declaration attached as Exhibit “A,” this project was 

maritime.

Furthermore, the incident itself here had a much “saltier” flavor than the 

cases cited by the Supreme Court as representing “traditional maritime activity.” 

In at least two of the cases cited in Grubart, the accident was unrelated to any 

maritime aspects of the work. In Shea, “Shea's injury, caused by the improper use 

of the crane, could have happened in many different contexts, on land as well as at 

sea.” Id. at 518. Similarly, In re New York Dock Co., 61 F.2d 777 (2d Cir. 1932), 

the incident arose out of the construction activities when a wedge fell because of 

vibration from the hammer blows on the piles. Id. at 778. Here, on the other hand, 

the incident involved vessels breaking their moorings in a hurricane, an incident 

that could only occur in a maritime context. The cases cited by the Supreme Court

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confirm that the “activity giving rise to the incident” here, “construction of a 

bridge over navigable waters by a fleet of vessels,” has a substantial connection to 

traditional maritime activity.

B. A better characterization would be “securing of a fleet of vessels in

navigation for an anticipated storm.”

While characterization of the relevant activity as “construction of a bridge 

over navigable waters by a fleet of vessels” satisfies the Sisson test for admiralty 

jurisdiction, this characterization is too general, since the relevant description is of 

“the activity giving rise to the incident.” 513 U.S. at 539 

In Apache Corp. v. Global Santa Fe Drilling Co., 832 F. Supp. 2d 678 

(W.D. La.2010), aff’d 435 Fed. Appx. 322 (5th Cir. 2011), cert. den. 565 U.S. 1157

(2012), the court rejected characterizing the activity as “oil and gas work” and

characterized it as “securing of a vessel in navigation for an anticipated storm.” 

832 F. Supp. at 688. In In re Louisiana Crawfish Producers, 772 F.3d 1026 (5th

Cir. 2014), the Fifth Circuit explained why this was the correct characterization:

That characterization was appropriate because the oil and gas

activity did not “giv[e] rise to the incident.” Grubart, 513 U.S. at

534 (quoting Sisson, 497 U.S. at 364) (internal quotation marks

omitted). The outcome would have been the same had the rig been, 

say, a fishing vessel. 

Id. at 1030 n. 4. Similarly, the breakaway of the barges was not caused by any 

construction activities, but by the inherently maritime activity of deciding where, 

how, and when to secure vessels in the face of an impending hurricane, and the

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outcome would have been the same if Skanska had been a barge fleeting company

operating in Pensacola Bay. Accordingly, the proper characterization of the

activity giving rise to this incident is “securing of a fleet of vessels in navigation

for an anticipated storm.”

Claimants erroneously argue that the reasoning in Apache “runs afoul of

Sisson’s mandate that the description cannot be a description of the cause of the

harm.” Doc. 51 at 5. Had the court characterized the activity as “negligent

mooring of the rig in preparation for a storm,” that criticism might have some

merit. But under Grubart, the characterization must include the maritime aspects

of the activity so that can be compared with traditional maritime activity, and

characterization of the activity in Apache as “oil and gas work,” like Claimants’

proposed characterization of Skanska’s activity as “constructing a bridge,” would

have run afoul of this mandate.

Moreover, it is Claimants, not Skanska, that attempt to direct the Court’s 

attention to the “cause of the harm” rather than the “general conduct from which 

the incident arose.” Claimants argue that “Skanska’s [alleged] negligence is based 

on decisions made in the boardroom, not the wheelhouse.” However, delving into

why the barges broke loose would require this Court to “decide to some extent the 

merits of the causation issue to answer the legally and analytically antecedent 

jurisdictional question,” an inquiry expressly forbidden by Sisson. 497 U.S. at 365. 

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The “general conduct” was the securing of the fleet of vessels, an activity that 

could scarcely be more traditionally maritime in nature. 

C. Claimants misread Louisiana Crawfish Producers.

Claimants argue that the Fifth Circuit in Louisiana Crawfish Producers

“reject[ed] an Apache-type analysis.” This argument is wrong in view of the Fifth 

Circuit’s express approval in Louisiana Crawfish Producers of the district court’s 

reasoning in Apache. The court reached a different conclusion regarding admiralty 

jurisdiction because the defendants were not engaged in any maritime activity.

In Louisiana Crawfish Producers, the only defendants still in the case when 

it reached the Fifth Circuit were DIGC and Willbros. The plaintiffs alleged that 

DIGC had placed cement mats on exposed sections of an existing pipeline, 

impeding water flows and navigation. They alleged that Willbros built a pipeline 

on an existing spoil bank that it had leveled using bulldozers, obstructing gaps in 

the spoil bank and thereby impeding water flows and navigation. Importantly, 

neither DIGC nor Willbros used any vessels in these operations. 772 F.3d at 1028.

The plaintiffs argued that the proper characterization of the “general 

character of the activity giving rise to the incident” was “negligent/intentional 

construction activity resulting in the obstruction of navigable waters with spoil,”

while the defendants argued it was “pipeline construction and repair.” Id. at 1030. 

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Neither of these characterizations suggested any use of vessels or any other 

maritime activity by the defendants. 

The court rejected the plaintiffs’ characterization focusing on “the causes of 

the harm” as precluded by Sisson. Accordingly, the plaintiffs’ proposed 

characterization was obviously improper, and the court accepted the defendants’ 

characterization. 

As discussed above, Grubart requires the inclusion of any maritime activity 

on the part of the alleged tortfeasor for comparison with “traditional maritime 

activity.” However, Grubart assumes that there is some maritime activity to 

include in the characterization, and in Louisiana Crawfish Producers, the alleged 

tortfeasors had not been engaged in anything that even hinted at a maritime

connection -- no vessels were involved and all of the defendants’ activities took 

place on land. Accordingly, the only characterization possible once one eliminated 

the immediate cause of the harm was “pipeline construction and repair.” Had the 

defendants made use of vessels, Grubart would have required characterization of 

the relevant activity as “pipeline construction and repair by vessels,” and a 

different result would have been required. Nothing in the decision suggests that 

the court “reject[ed] an Apache-type analysis.”

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D. Texaco v. Amclyde and its progeny do not support Claimants’ 

position.

Claimants continue to attempt to rely on Texaco Exploration & Prod. v. 

Amclyde Engineered Prods. , 448 F.3d 760 (5th Cir. 2006). This reliance is 

misplaced.

Sisson and Grubart make it clear that the “general character of the activity 

giving rise to the incident” is that of the defendant. In Sisson, the activity was 

described as “storage and maintenance of a vessel at a marina on navigable waters”

by the vessel owner. 497 U.S. at 365. In Grubart, the Court characterized the 

activity as “repair or maintenance work on a navigable waterway performed from a 

vessel” by Great Lakes. 513 U.S. at 540. In neither case did the Court focus on 

the damage or the claimant’s activities.

In Texaco, the Fifth Circuit focused on “Texaco’s causes of action,” which 

were related to oil and gas development. However, the defendants were the 

designers and manufacturers of a crane. A proper analysis applying Sisson and 

Grubart would have focused on whether the “activity giving rise to the incident” 

on the part of these entities showed a “substantial relationship to traditional 

maritime activity.” This court’s analysis is thus of little help with respect to how 

to properly apply the Sisson/Grubart test in this case.

Claimants also rely on Petrobras Am., Inc. v. Vicinay Cadenas, S.A., 815 

F.3d 211 (5th Cir. 2016), but as in Texaco, the Fifth Circuit focused on the 

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plaintiff’s involvement with oil and gas development. There, the defendant was 

the manufacturer of a chain that was a component of an offshore production 

facility. Id. at 213. While the court almost certainly decided the case correctly, 

since manufacturing a chain that was intended to form a part of a fixed production 

facility is scarcely “traditional maritime activity,” the analysis (or lack thereof) 

sheds no light on whether a claim arising out the breakaway of a fleet of barges has 

a substantial relationship to tradition maritime activity.

Claimants also rely on In re Katrina Canal Breaches Litigation, 324 Fed. 

Appx. 370 (5th Cir. 2009). This case is not authority for anything, since “the court . 

. . determined that this opinion should not be published and is not precedent except 

under the limited circumstances set forth in 5TH CIR. R. 47.5.4,” whereby such

opinions are only precedential under the doctrines of res judicata, collateral

estoppel or law of the case, none of which apply here.

Apache presented facts virtually identical to those presented here, and the 

court faithfully followed the approach mandated by Sisson and Grubart. The 

district court was affirmed by the Fifth Circuit, and its reasoning was then 

expressly approved by the Fifth Circuit in Louisiana Crawfish Producers. None of 

the cases cited by Claimants present any reason for this Court not to follow the 

reasoning of Apache.

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III. Claimants’ appeal to considerations of federalism was directly rejected 

by the Supreme Court in Grubart.

In Grubart, the claimants argued that in cases “involving land based parties 

and injuries” admiralty jurisdiction should be limited to cases where 

the totality of the circumstances reflects a federal interest in 

protecting maritime commerce sufficiently weighty to justify 

shifting what would otherwise be state-court litigation into federal 

court under the federal law of admiralty. 

513 U.S. at 543. The claimants argued that the courts should therefore consider 

such factors as “the impact of the event on maritime shipping and commerce,” “the 

desirability of a uniform national rule to apply to such matters,” and “the need for 

admiralty ‘expertise’ in the trial and decision of the case.” Id. at 544. Claimants 

make essentially the identical argument here. 

The Supreme Court rejected this argument:

It is worth recalling that the Sisson tests are aimed at the 

same objectives invoked to support a new multifactor test, the 

elimination of admiralty jurisdiction where the rationale for the 

jurisdiction does not support it. If the tort produces no potential 

threat to maritime commerce or occurs during activity lacking a 

substantial relationship to traditional maritime 

activity, Sisson assumes that the objectives of admiralty jurisdiction 

probably do not require its exercise, even if the location test is 

satisfied. If, however, the Sisson tests are also satisfied, it is not 

apparent why the need for admiralty jurisdiction in aid of maritime 

commerce somehow becomes less acute merely because land-based 

parties happen to be involved. Certainly Congress did not think a 

land-based party necessarily diluted the need for admiralty 

jurisdiction or it would have kept its hands off the primitive 

location test [in enacting the Admiralty Extension Act].

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Id. at 545. Claimants’ argument that this Court should go beyond the

straightforward application of the Sisson/Grubart test is thus foreclosed.

IV. Skanska’s positions in other cases are irrelevant to the issue of subject

matter jurisdiction in this case.

Claimants argue that Skanska has taken inconsistent positions regarding

admiralty jurisdiction in other cases. Claimants cite no authority for the 

proposition that a legal argument in one case has any effect in a separate case, and 

none of the cases cited involve the issue presented here of whether the breakaway 

of barges resulting in an allision is a tort within the admiralty jurisdiction. 

V. Conclusion

This is a plain vanilla maritime allision case arising out of the breakaway of

a fleet of barges in a hurricane, a “quintessential maritime tort.” The barges were

engaged on navigable waters in building a bridge, an activity that the lower federal

courts have consistently held is traditional maritime activity, a conclusion the

Supreme Court confirmed in Grubart. The motion should be denied. 

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/s/ Derek A. Walker 

DEREK A. WALKER

Admitted Pro Hac Vice

KENNETH H. TRIBUCH

Florida Bar No. 986887

Harold. K. Watson, Esq.

Derek A. Walker, Esq.

Charles P. Blanchard, Esq. 

Jon W. Wise, Esq.

CHAFFE MCCALL, LLP

801 Travis, Suite 1910

Houston, Texas 77002

Telephone: (713) 546-9800

Facsimile: (713) 546-9806

and

SCOTT A. REMINGTON

Florida Bar No. 122483

JEREMY C. BRANNING

Florida Bar No. 507016

CLARK PARTINGTON

P.O. Box 13010

Pensacola, FL 32591-3010 

Telephone: (850) 434-9200

Facsimile: (850) 432-7340

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 Sur-reply 

Memorandum contains 3,188 words, counted as provided in Local Rule 7.1(F).

/s/Jeremy C. Branning

JEREMY C. BRANNING

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to the 

following through the Court’s CM/ECF electronic filing system on this 23rd day of 

April, 2021:

Brian Barr, Esq.

Christopher Paulos, Esq.

Levin, Papantonio, Thomas, Mitchell, 

Rafferty & Proctor, P.A. 

316 South Baylen Street

Pensacola, FL 32502

Bryan F. Aylstock, Esq.

Justin G. Witkin, Esq.

Douglass A. Kreis, Esq.

Neil D. Overholtz, Esq.

Nathan C. Bess, Esq.

Bobby J. Bradford, Esq.

Stephen H. Echsner, Esq.

E. Samuel Geisler, Esq.

Aylstock, Witkin, Kreis & Overholtz, PLLC

17 East Main Street, Second Floor

Pensacola, FL 32502

Service E-Mail: Sgeisler@awkolaw.com

 nbess@awkolaw.com

 sallyteam@awkolaw.com

Thomas F. Gonzalez, Esq.

J. Nixon Daniel, III, Esq. Beggs & Lane, RLLP

501 Commendencia Street

Pensacola, Florida 32502

Service Email: jnd@beggslane.com

 tfg@beggslane.com

Attorneys for Claimants 

/s/Jeremy C. Branning

JEREMY C. BRANNING

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