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 M8030 

PRAYING FOR EXONERATION 

FROM OR FOR LIMITATION OF 

LIABILITY

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ADMIRALTY RULE 9(H) 

CIVIL ACTION NO. 

3:20-CV-05980 – RV/MJF 

SENIOR DISTRICT JUDGE 

LACEY A. COLLIER 

MAGISTRATE JUDGE 

HOPE THAI CANNON 

ORDER 

 This action came before the Court for a bench trial on October 18, 2021, 

through October 22, 2021. The Court heard testimony from a variety of witnesses, 

and a number of exhibits were introduced into evidence by the parties. Upon 

consideration of the parties’ stipulations of fact and law and the evidence adduced 

at trial, the Court makes the following findings of fact and conclusions of law: 

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FINDINGS OF FACT

I. The Pensacola Bay Bridge Replacement Project (the “Project”) 

 Skanska entered into a contract with the Florida Department of Transportation 

in 2016 to replace the Pensacola Bay Bridge (also known as the “Three Mile 

Bridge”).1

Under the contract between Skanska and FDOT, Skanska had a variety of 

obligations related to safety and the Project site. These included the preparation and 

submittal of an Incident Management Plan (“IMP”), which included “emergency 

preparedness and recovery plans” for events such as hurricanes and tropical storms.2

 

Skanska’s IMP stated, in relevant part, as follows3

: 

Incident Management Plan (IMP) 

The Design-Build Firm shall prepare, submit with its 

proposal, implement during design and construction, and 

provide monthly reports on its IMP. It is the goal of the 

Department that travel mobility, reliability and safety will 

be maintained at current levels or improve during all 

phases of the project. 

The Design-Build Firm IMP shall include emergency 

preparedness and recovery plans as well as traffic 

management and evacuation due to hurricanes, tropical 

storms, fires, winter/ice system and other events. Suspend 

RRSP activities as directed by Emergency Services or 

Law Enforcement. Resume RRSP activities after 

 

1

 3909; SKANSKA000003909. 

2

 3909; SKANSKA000003909 at p. 5. 

3

 8896; CTRLSKA000008896 at p. 20. 

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clearance is given by Emergency Services or Law 

Enforcement. 

Emergency Preparedness and Recovery Plan

Emergency situations can have a cataclysmic impact on 

the region. These events are not planned. However, 

preparedness plans are necessary. Examples of emergency 

events are hurricanes; a regional power blackout; terrorist 

attacks; or wide-spread fires, any of which, by the 

destructive nature and/or duration of the event, severely 

hamper or even prevent the movement of traffic, troop 

movement/deployment, or disable/destroy traffic 

management systems. 

FHWA guidelines include the following recommended 

actions: 

• Must-do advance planning 

• Train and empower staff 

• Establish relationships among all stakeholders 

• Don’t take technology for granted (particularly 

telecommunications) 

• Invest in backup and redundancy 

• Practice, practice, practice! 

 The evidence also demonstrated that it was “company policy” under 

Skanska’s Environmental, Health and Safety Plan to have a hurricane preparedness 

plan for the Project.4

 In compliance with its contract and with company policy, 

 

4

 June 18, 2021 30(b)(6) Deposition of Thomas DeMarco (“Tom DeMarco 30(b)(6) 

Depo.”) at 37:8-15; 56:2-57-9. 

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Skanska submitted one or more hurricane preparedness plans to FDOT during the 

life of the Project.5

II. Development of Skanska’s Hurricane Preparedness Work Plans 

 During the course of the Project, Skanska developed various iterations of its 

Hurricane Preparedness Work Plans. 

a. 2016 Hurricane Plan 

On October 6, 2016, Skanska submitted its hurricane plan for the project to 

FDOT. In doing so, Skanska recognized its obligations to secure the project site,6

and that its obligations also included the duty to manage its maritime assets by 

mooring all marine equipment on site or taken to safe harbor.7

 

b. 2017 Hurricane Plan 

On May 17, 2017, Brett H. Pielstick of Eisman & Russo, Inc, the construction 

engineering and inspection (“CEI”) Program Director for the project, issued Skanska 

a “verbal warning” for the failure to provide a hurricane plan to the Coast Guard as 

requested 30 days prior to the start of the hurricane season as well as to FDOT for 

review.8

 The Incident Management Plan meeting minutes from May 24, 2017, 

 

5

 Tom DeMarco 30(b)(6) Depo., Exh. 4. 

6

 6692; CTRLSKA000006692 at p.2. 

7

 6692; CTRLSKA000006692 at p.5. 

8

 6717; CTRLSKA000006717. 

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indicate that emergency preparedness for hurricanes or other events required that 

Skanska “pull barges and put them on anchor.”9

 The minutes also reflect the 

USCG’s understanding that the barges were to be moored “at least 1 mile away from 

bridge.”10 Thereafter, on June 6, 2017, Skanska prepared and submitted another 

hurricane plan to FDOT.11 This plan defined a Tropical Storm Watch as winds of 

55 to 73 mph expected within 24 to 36 hours. It established “Condition THREE,” 

described as “Sustained winds of 50 knots or 58 mph or greater expected within 72 

hours/3 days,” and set forth specific requirements for moving barges and other 

marine assets, including barge mounted cranes and all material barges to an 

anchorage in East Bay.12 Under this plan, the movement of barges and cranes away 

from the bridge, i.e, demobilization, was not planned for commencement until 

“Condition THREE” was met. In other words, under that version of Skanska’s 

hurricane plan, movement of barges and cranes to safe harbor was not to be 

commenced until the Project was at Condition THREE. This plan further stated, “30 

hours at a minimum needs to be dedicated to moving the material barges a (sic) crane 

barges to the hurricane location in the East Bay.”13 It calculated a 30-hours 

 

9

 38910; SKANSKA_00055113. 

10 38910; SKANSKA_00055113. 

11 5902; CTRLSKA000005902. 

12 5902, CTRLSKA000005902 at p. 8. 

13 5902, CTRLSKA000005902 at p. 6. 

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minimum time to move a total of 40 barges to East Bay (10.6NM from the mouth of 

Bayou Chico) utilizing three larger tug boats and two smaller tug boats.14

The same plan detailed specific mooring locations, anchoring instructions, 

and other details, such as the requirement that “only experienced marine supervisors 

will approve the mooring before leaving” and that “it is preferable to test every 

anchor before leaving it just in case it was set incorrectly or is defective.”15 

In addition to establishing Condition THREE and defining when its marine 

equipment must be moved away from the Project and into safe harbor, this version 

of Skanska’s hurricane plan required that all employees be released within 24 hours 

in order to secure residences and attend to families. Thus, demobilization would 

begin in time to allow for completion of preparations before employees were 

released. This hurricane plan also required that all field office personnel should 

become familiar with the plan and assigned duties within the plan before hurricane 

season arrives. 

Skanska’s June 2017 hurricane plan followed an exchange between Skanska 

and FDOT’s CEI firm, Eisman & Russo. By letter dated June 5, 2017, Eisman & 

Russo asked for clarity on “the condition at which time the removal of the A-Frames 

will occur as well as in what Condition will the barges be moved to the morning (sic) 

 

14 5902, CTRLSKA000005902 at p. 6. 

15 5902, CTRLSKA000005902 at p. 8. 

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locations in East Bay.”16 In response, Skanska directed Eisman & Russo to 

Skanska’s revised hurricane plan under “Condition THREE.” Eisman & Russo 

further requested that Skanska explain how its limitation on operating cranes in 

winds over 30 mph would impact the “ability to remove the A-frames and anchoring 

of barges in east bay[.]”17 In response, Skanska explained that “disassembly will 

take place under Condition THREE, before high winds reach site.” 

During the 2017 hurricane season, Skanska distributed its “General Hurricane 

Preparedness Guidelines” to several of its employees who were (or would later be) 

leaders of the Project, including Project Manager Daniel Francis, Project Director 

Tom Fulton, and General Superintendent Pat McGlynn.18 This document included 

the following19: 

According to experts, forecasters only have a 10% chance of accurately 

predicting where a storm will hit 72 hours in advance. They have a 74% 

chance within 24 hours. Just because your project is not in the storm’s 

projected path does not mean that it could change course, therefore 

projects near but outside of the storm’s predicted path need to take 

precautions regardless. 

 

16 38974; SKANSKA_00057685. 

17 38974; SKANSKA_00057685. 

18 37984; SKANSKA_00044882. 

19 37985; SKANSKA_00044886. 

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c. 2018 Hurricane Plan 

Skanska’s 2018 hurricane plan provided greater detail for the 2018 hurricane 

season.20 The hurricane plan prepared by Michelle Brown and dated June 13, 2018, 

maintained all of the requirements from the 2017 hurricane plan pertaining to 

“Condition THREE.” The hurricane location for barges continued to be East Bay 

and the minimum time to demobilize to East Bay continued to be a minimum of 30 

hours (for 40 barges). 

In addition to the hurricane location of East Bay, the 2018 hurricane plan 

added an Option B “for short term moves for short notice storms.”21 The 2018 plan 

further contained detailed descriptions, along with visual depictions under Option A 

and Option B, for the placement of marine equipment.22

d. 2019 Hurricane Plan 

The detail and thoroughness contained in Skanska’s 2016, 2017 and 2018 

hurricane plans drastically changed in 2019. In the lead-up to Hurricane Dorian in 

August 2019, it came to the attention of Skanska’s management that it had not 

updated its hurricane plan for the 2019 hurricane season. Given that hurricane 

 

20 August 6, 2021 Deposition of Sarah Stephens (“Sarah Stephens Depo.”), Exh. 7 

21 Sarah Stephens Depo. at 99:5-15; Exh 7, p. 41. 

22 Sarah Stephens Depo., Exh. 7, Appendix A. 

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season begins each year on June 1, Skanska had been working on the Project for 

nearly three months without a hurricane plan for the 2019 hurricane season.23

Skanska began demobilizing for Hurricane Dorian on August 28, 2019, 

without a hurricane plan.24 The task of preparing the 2019 hurricane plan fell to a 

newly-hired field engineer, Sarah Stephens.25 Ms. Stephens, by her own admission, 

had no qualifications for drafting a hurricane preparedness plan.26 Rather than rely 

on the 2018 hurricane plan (which contained detailed descriptions of multiple 

options for safe harbor/hurricane locations), Ms. Stephens copied large portions of 

another hurricane plan for a land-based Skanska project in Orlando and deleted most 

of the detail provided in the 2017 and 2018 plans – including Option A and Option 

B.27 According to Ms. Stephens’ emails and her own testimony, she prepared and 

finalized (“whipped up”) the 2019 Hurricane Plan in the span of one day.28

As to the locations for placement of equipment in the event of a hurricane, 

Ms. Stephens changed the 2019 plan to include, at least visually, Butcherpen Cove, 

Bayou Chico, and an anchorage just east of Deadman’s Island on the north side of 

Gulf Breeze (referred to herein as the “Gulf Breeze Anchorage”). The text of the 

 

23 Sarah Stephens Depo at 44:6-45:20. 

24 Sarah Stephens Depo. at 44:6-16. 

25 Sarah Stephens Depo. at 18:7-22; 24:2-25:2; 40:9-41:15; 45:16-20; 115:12-19. 

26 Sarah Stephens Depo., at 24:2-27:24. 

27 Sarah Stephens Depo. at 53:3-56:15 and 70:1-73:15. 

28 Sarah Stephens Depo. at 133:25-136:14; Exh. 14. 

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2019 plan, however, was not changed and continued to be described as East Bay.29 

Not only did the 2019 plan continue to describe the safe harbor as East Bay, it also 

failed to change the distance to the hurricane location or update the time it would 

take to accomplish demobilization to these much closer locations.30 The 2019 

hurricane plan was approved by Skanska’s project management.31

e. 2020 Hurricane Plan 

For the 2020 hurricane season, Ms. Stephens continued to have responsibility 

for preparing Skanska’s hurricane plan; she had a final, approved plan in place and 

submitted to FDOT by June 8, 2020 – seven days after hurricane season began.32 

Skanska’s 2020 hurricane plan was virtually the same as the 2019 hurricane plan in 

all relevant respects except that the visual depictions in the 2020 plan no longer 

provided an image of a hurricane location at the Gulf Breeze Anchorage. Like all 

of the plans for the prior hurricane seasons, Skanska’s 2020 hurricane plan listed 

reviewers of the plan.33 Notably, one of the reviewers of the 2020 hurricane plan, 

Catherine Burgess, testified that she had not reviewed the plan prior to Hurricane 

 

29 Sarah Stephens Depo at 96:16-25; 185:6-14. 

30 Sarah Stephens Depo at 97:1-13; 185:10-23. 

31 Sarah Stephens Depo at 77:23–80:5; Exh. 6. 

32 Sarah Stephens Depo. at 165:11-22; 179:2-182:4; Exh. 26; Exh. 27; Exh. 27A. 

33 Sarah Stephens Depo. at 32:14-23; Exh. 2A. 

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Sally and was not qualified to review a hurricane plan.34 The 2020 hurricane plan 

continued to describe East Bay as the hurricane location while offering visual 

depictions of Bayou Chico and Butcherpen Cove – but not East Bay.35 The 2020 

hurricane plan included a chart that identified 11 cranes and 40 barges as well as the 

time it took to move each with five tug boats.36 However, at the time of Hurricane 

Sally, there were at least 55 barges in use at the project site – not 40.37 Still, pursuant 

to the text of Skanska’s 2020 hurricane plan, it would take 30 hours at a minimum 

to demobilize 40 barges. The 2020 hurricane plan was reviewed and approved by 

Skanska’s project management.38

On August 21, 2020, Skanska caught an error in the 2020 hurricane plan and 

amended it.39 The amended plan changed the text of the hurricane location for cranes 

and barges from East Bay to Butcherpen Cove to match the visual depictions of the 

barge locations. The text of the 2020 hurricane plan failed, however, to describe any 

safe harbor location in Bayou Chico.40 While the 2020 hurricane plan updated the 

hurricane location to Butcherpen Cove, the plan failed to change the distance from 

 

34 August 2, 2021 Deposition of Catherine Burgess (“Catherine Burgess Depo.”) at 

45:14-49:10. 

35 Sarah Stephens Depo. at 185:6-14. 

36 Sarah Stephens Depo., p. 194:8-10 and 198. 

37 Sarah Stephens Depo. at 197:8-15. 

38 Sarah Stephens Depo. at 176:9-177:4; Exh. 25. 

39 Sarah Stephens Depo. at 199:6-21; Exh. 2. 

40 Sarah Stephens Depo. at 198:21-199:1. 

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the project site to Butcherpen Cove; the plan described the project site as being 

10.6NM from the mouth of Bayou Chico. During their depositions, Pensacola Bay 

Bridge Project Director, Tom Fulton, Project Executive and Construction Manager, 

Tom DeMarco, and General Superintendent, Rob Rodgers, all agreed this distance 

was an error and that it would take less time to demobilize equipment from the 

Bridge to East Bay than Butcherpen Cove.41 In reality, Butcherpen Cove is less than 

half of the distance to East Bay and is only 4.8NM from the mouth of Bayou Chico 

and approximately 2NM from the center of the bridge. Mr. Fulton estimated that 

moving equipment from the bridge to Butcherpen Cove was “approximately a mile 

and a half” and agreed a move to Butcherpen Cove would take place “a lot faster” 

than to East Bay.42 In addition to not updating the distance in the 2020 hurricane 

plan, the plan failed to take into account the shorter amount of time to demobilize 

barges to safe harbor in Butcherpen Cove than to East Bay. Likewise, the 2020 

hurricane plan failed to adjust the 30-hour minimum (for 40 barges) from the 2017, 

2018 and 2019 plans, despite the fact that Skanska was using 55 barges on the 

project. 

 

41 August 20, 2021 Deposition of Tom Fulton (“Tom Fulton Depo.”) at 91:9-91:11; 

August 27, 2021 Deposition of Tom DeMarco (“Tom DeMarco Depo.”) at 100:24-

112:5; August 25, 2021 Deposition of Rob Rodgers (“Rob Rodgers Depo.”) at 

133:21-24 and 138:13-21. 

42 Tom Fulton Depo. at 90:14-17; 90:20-91:4. 

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Skanska’s 2020 hurricane plan clearly identified its purpose: 

The purpose of this plan is to summarize Skanska’s operations and 

responsibilities regarding their response to, and recovery from a 

hurricane. In general, Skanska personnel will be assigned to secure the 

project site, secure all marine based equipment to safe harbor, and 

provide clean-up/recovery support at the project site. Also included are 

the duties required at the field and office building. This document is 

not intended to include all activities that could take place in the event 

of a hurricane. Depending on the severity of the hurricane, individuals 

may be assigned to provide additional support. 

Additionally, the 2020 hurricane plan set forth Skanska’s overall 

responsibilities in advance of a hurricane: 

1. Secure loose materials and equipment prior to hurricane 

2. Secure all marine based equipment to safe harbor 

3. Engage in clean-up/recovery efforts on the job site 

4. Document all activity and damage related to the storm event in 

order to submit to FDOT as required 

The 2020 hurricane plan set forth “jobsite preparation” under four separate 

conditions, which included “Condition THREE,” described as “[s]ustained winds of 

50 knots or 58 mph or greater expected within 72 hours / 3 days.”43 Condition 

THREE required Skanska to perform a number of pre-storm activities, including: 

 Cease all routine activities which might interfere with securing 

operations. 

 Commence securing and stow all gear and portable equipment. 

 Make preparations for securing buildings. 

 Begin packing office equipment and tools needed to stay dry or 

containing critical information. 

 

43 11906, SKANSKA_0000001. 

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 Conduct a thorough cleaning and remove any debris from job 

site. 

 Reinforce/remove any scaffolding. 

Condition THREE also identified Skanska’s obligations to manage its cranes and 

barges: 

 The hurricane location for barges is Butcherpen Cove. It is 

approximately 10.6 nautical miles from the mouth of Bayou Chico. 

 30 hours at a minimum needs to be dedicated to moving the material 

barges and crane barges to the hurricane location in Butcherpen 

Cove. See chart below for example of breakdown. 

Condition THREE also provided the following instructions: 

For barge mounted cranes and material barges 

 Barge mounted cranes and all material barges will be 

moved to Butcherpen Cove. 

 See the attached drawing that shows how the crane 

barges and material barges will be anchored and tied 

off. This drawing is for reference and is not the actual 

distance layout the barges should be positioned. 

 The material barges shall be secured by soft line to a 

spud barge. In the event that there are additional spud 

barges, they should be placed on the outside of the 

material barges. 

See attached sheet showing the marine heavy weather mooring 

anchorage details. All cranes onsite will use similar mooring details. 

 A 30K anchor (shall have hinging fluke and long 

stabilizers) is attached to 50’ of heavy anchor chain 

which is connected to a sea buoy. The buoy is then 

rigged to a 2 5/8” poly soft line 75’ long. This 2 5/8” 

line shall be doubled to have an overall capacity of 50T 

against pulling. Verify all connecting shackles. 

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 Anchors will be set with flukes toward the equipment 

it is holding. The fluke angle must be set between 50 

and 35 degrees to the properly set. If these conditions 

are not met, the anchor will simply drag when the wind 

speed picks up. 

 Once the buoy and line is paid out ensure that the points 

where the soft lines are connect to the barge are not 

prone to cut. 

 Two (2) experience marine supervisors will approve 

the mooring before leaving for the storm event. This 

shall be done for each of the mooring locations. 

 

 In addition to identifying a 30-hour minimum for moving material and crane 

barges to Butcherpen Cove, the 2020 hurricane plan also set forth individual times 

required to relocate the barges and cranes. The 2020 hurricane plan also included 

graphics identifying the positioning of the barges to be moored in Butcherpen Cove 

and Bayou Chico. 

Captain Rob Hill testified that from past experience, Skanska has demobilized 

the site in in two and a half days.44 Other testimony suggests that, with the tugs and 

captains available to Skanska prior to Hurricane Sally’s landfall, Skanska could have 

moved 40 barges to Butcherpen Cove in 30 hours.45 

 

44 July 29, 2021 Deposition of Rob Hill (“Rob Hill Depo.”) at p. 281:9-12. 

45 Rob Hill Depo. at 213:18-214:9. 

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III. Skanska’s Preparation for Tropical Storms Prior to Hurricane Sally 

The evidence before the Court establishes that Skanska took a variety of 

efforts in advance of a number of tropical storms and hurricanes in 2017, 2018, 2019, 

and 2020. Many of these storms were not, however, predicted to impact the project 

site. In conditions far less threatening than in the days prior to Hurricane Sally, 

Skanska demobilized and secured its equipment in prior storm events. As stated by 

Mr. McGlynn, Skanska secured its barges for other storms that “weren’t predicted 

either to come this way.”46

a. 2017 Hurricane Season 

Skanska engaged its 2017 hurricane plan and demobilized its barges and 

cranes for three storms during the 2017 Hurricane Season: Hurricane Harvey, 

Hurricane Irma and Hurricane Nate.47

For Hurricane Harvey, Skanska engaged its hurricane plan and demobilized 

on August 25, 2017. According to the testimony of Will Bender48, a lead pile driver 

for Skanska, Skanska moved all of its barges to one of two locations away from the 

 

46 August 10, 2021 Deposition of Patrick McGlynn (“Aug. 10 Pat McGlynn Depo.”) 

at 118:23-25. 

47 38857; SKANSKA_00052095. 

48 August 2, 2021 Deposition of Will Bender (“Will Bender Depo.”) at 45:18-50:16. 

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Bridge in preparation for Hurricane Harvey.49 Specifically, Skanska moved between 

five and 10 barges to a mooring site in East Bay, on the east side of the Garcon Point 

Bridge. The East Bay mooring site included multiple 20,000-pound anchors on 

chains attached to a mooring buoy. Skanska also moved its three crane barges, 

including pile driving equipment, into Bayou Chico. 

Skanska did not leave any barges near the bridge during its preparations for 

Hurricane Harvey. At the time Skanska engaged its 2017 hurricane plan and began 

to demobilize its fleet under Condition THREE, the project site was not under a 

watch or warning nor was it within the probable path of the storm.50

Hurricane Irma struck the Florida Keys as a Category 4 hurricane on Sunday, 

September 10, 2017, before making landfall in Marco Island, Florida, later that 

afternoon as a Category 3 hurricane. Thereafter, the hurricane moved into central 

Florida before passing across northern Florida on Monday, September 11, 2017, as 

it weakened.51

Skanska engaged its 2017 hurricane plan and began demobilizing under 

Condition THREE for Hurricane Irma on September 7, 2017.52 At the time Skanska 

 

49 Other evidence indicates Skanska did not demobilize the barges used on the 

Project in preparation for Hurricane Harvey. See 38725; SKANSKA_00049935 and 

38726; SKANSKA_00049936. 

50 https://www.nhc.noaa.gov/data/tcr/AL092017_Harvey.pdf. 51 https://www.nhc.noaa.gov/data/tcr/AL112017_Irma.pdf. 52 12509; SKANSKA_00015660. 

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began to demobilize for Hurricane Irma, the project site was not under a watch or 

warning, and it was not within the path of a probable storm. 

On October 4, 2017, Skanska initiated its 2017 hurricane plan in anticipation 

of Hurricane Nate. Skanska demobilized its marine fleet on October 4 and 5, 2017, 

and then demobilized its land operations on October 6, 2017. Skanska’s decision to 

begin demobilizing was made when the storm system was off the coast of Nicaragua 

as a Tropical Depression. At the time of Skanska’s decision to demobilize under 

Condition THREE, the project site was not within a watch or a warning but was 

within the probable path of a hurricane. The storm strengthened into a hurricane on 

October 7, 2017, before making landfall as Hurricane Nate near the mouth of the 

Mississippi River on October 8, 2017.53

On October 6, 2017, Skanska sent an email to the USCG (and other parties) 

in which Skanska described its efforts that began two days before to prepare for 

Hurricane Nate:54 

Skanska has relocated nine (9) crane barges, with the exception of the 

larger ringer cranes, into Bayou Chico alongside the bulkhead of 

Skanska Office Compound (Runyan Shipyard (and across the navigable 

channel form (sic) the office Compounds. The larger cranes, Mani 888 

Ringer #1 and Mani 4100 Ringer, located in Pensacola Bay, will remain 

near the Gulf Breeze shoreline and anchored. All material barges have 

been relocated and anchored in East Bay. Currently, all marine 

equipment has been relocated and the remaining efforts consist of the 

 

53 https://www.nhc.noaa.gov/data/tcr/AL162017_Nate.pdf. 54 6216; CTRLSKA000006216. 

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securing material equipment on barges, the Project, and Skanska Office 

Compounds. All preparations will be complete as of close of business 

today. 

On October 6, 2017, Bill Klepac, an engineer with Eisman & Russo, emailed 

Skanska’s project manager, Daniel Francis, to confirm that, while Skanska’s 

hurricane plan provided that all material and crane barges were to be moved to East 

Bay, Skanska intended to move its crane barges, with two exceptions, to Bayou 

Chico. Mr. Klepac continued:55 

We understand that Tropical Storm Nate, which is expected to become 

Hurricane Nate, developed rapidly with little advance notice, resulting 

in a shortened duration for Skanska to fully implement its hurricane 

plan, and thus necessitating a deviation in plan location for the crane 

barges. As such, Skanska’s plan should be modified to include one or 

more contingent plans to allow for scenarios in which there is 

insufficient time to fully implement mass evacuation of material and 

crane barges to East Bay. 

(emphasis added). 

b. 2018 Hurricane Season 

For the 2018 hurricane season, Skanska engaged its 2018 hurricane plan and 

demobilized its barges and cranes under Condition THREE for three storms: (1) 

Subtropical Storm Alberto; (2) Tropical Storm Gordon; and (3) Hurricane Michael.56

 

55 6216; CTRLSKA000006216 at p. 2. 

56 38857; SKANSKA_00052095. 

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On May 25, 2018, Skanska activated its HPP plan in anticipation of a 

subtropical depression that would become Tropical Storm Alberto.57 On that day, 

the subtropical depression was off the Yucatan peninsula.58 At the time the hurricane 

plan was engaged and demobilization began, the site was within the probable path 

of a tropical storm and was under a tropical storm watch. 

On Monday, September 3, 2018, Skanska began to demobilize marine 

equipment to protected waters ahead of the storm system that would form into 

Tropical Storm Gordon.59 Over the course of that day, Tropical Storm Gordon 

crossed the Florida Keys and entered the Gulf of Mexico.60 According to Skanska’s 

Storm Summary, Skanska completed its preparations on Tuesday, September 4, 

2018.61 At the time Skanska engaged its hurricane plan and demobilized under 

Condition THREE for Tropical Storm Gordon, the project site was under a tropical 

storm warning and was on the edge of the probable path of a tropical storm. 

 On October 6, 2018, the National Hurricane Center began issuing advisories 

on what would become Hurricane Michael. By 7:00 am CST on October 8, 2018, 

Skanska management met and decided to implement its hurricane plan and to start 

demobilization efforts at 7:00 AM CST on Monday, October, 9, 2018. 

 

57 38726; SKANSKA00049936. 

58 https://www.nhc.noaa.gov/data/tcr/AL012018_Alberto.pdf 

59 12521; SKANSKA_00015796. 

60 https://www.nhc.noaa.gov/data/tcr/AL072018_Gordon.pdf. 

61 38725; SKANSKA_00049935 and 38726; SKANSKA_00049936. 

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At the time the decision was made to engage the hurricane plan, the project 

site was not under a watch or a warning but was within the 4-5 day probable path of 

a tropical storm. After the decision was made to engage the hurricane plan, Skanska 

received a directive to cease operations and secure the Project site.62

The testimony of Will Bender indicates that, during the 2018 hurricane 

season, Skanska regularly moved its barges to the East Bay and Bayou Chico 

anchorages in advance of tropical storm activity.63 These were the same protected 

waters used by Skanska during storm preparation in 2017. 

c. 2019 Hurricane Season 

On August 28, 2019, the storm that would become Hurricane Dorian was a 

tropical storm crossing south of Barbados.64 On Thursday, August 29, 2019, as the 

storm had strengthened into a hurricane upon entering the Atlantic Ocean,65 Skanska 

began moving its equipment to safe harbor. Skanska commenced these efforts in the 

absence of a directive from the CEI or FDOT. In fact, Skanska did not receive notice 

from the CEI that FDOT ordered the project site to shut down until several days 

later.66 Per the NOAA storm track projections, Hurricane Dorian never entered the 

 

62 12516, p. 22; SKANSKA_00015727. 

63 Will Bender Depo. at 51:19-52:12; 38452; SKANSKA_00048995. 

64 https://www.nhc.noaa.gov/data/tcr/AL052019_Dorian.pdf. 

65 https://www.nhc.noaa.gov/data/tcr/AL052019_Dorian.pdf. 

66 38452; SKANSKA_00048995. 

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Gulf of Mexico, and the project site was never in the cone of uncertainty or under a 

watch or warning.67 

 On August 28, 2019, the Governor of the State of Florida declared a State of 

Emergency for 26 counties within the State due to Hurricane Dorian. Skanska 

commenced storm preparations at that time and, on August 29, the Governor 

expanded the State of Emergency to include all 67 counties within the State. On 

August 30, 2019, the FDOT District Construction Engineer (“DCE”) issued a memo 

directing that all projects in District 3 (which included the project site) were to be 

shut down. On August 31, 2019, Skanska completed the movement of all equipment 

away from the project site. Additionally, Skanska’s preparations for Hurricane 

Dorian included the engagement of a third-party towing service to assist with the 

movement of the barges. 

On August 31, 2019, Skanska Project Manager Rob Rodgers circulated a 

hurricane plan “revised to show rig placement for Dorian.”68 This version of 

Skanska’s plan indicated that Skanska’s barges were demobilized away from the 

bridge to mooring locations in Butcherpen Cove (located east of the southern 

terminus of the Project), the Gulf Breeze Anchorage, and Bayou Chico.69 

 

67 38444; SKANSKA_00048967. 

68 38444; SKANSKA_00048967. 

69 See Will Bender Depo. at p. 52-55; 38445; SKANSKA_00048968. 

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 On October 18, 2019, Skanska began storm preparation activities that 

included demobilizing its barges ahead of the storm that would become Tropical 

Storm Nestor.70

 On October 17, 2019, the NWS issued a Tropical Storm Warning for the area 

of the project site for potential Tropical Storm Nestor. Skanska began storm 

preparation activities on October 18, 2019.71 Skanska’s demobilization efforts 

began when the Project site was under a tropical storm warning and in the cone of 

uncertainty. 

Over the course of October 18, 2019, the system became a tropical storm in 

the middle of the Gulf of Mexico before being downgraded the next day.72 On 

October 25, 2019, the NWS issued a Tropical Storm Warning for the area of the 

project site for potential Tropical Storm Olga73. Skanska began storm preparation 

activities on October 25, 2019. The project site was not under a watch or warning or 

within the cone of uncertainty for Tropical Storm Olga at the time Skanska 

commenced demobilization efforts. 

 

70 37779; SKANSKA_00043623, 38726; SKANSKA_00049936; 

SKANSKA_00056782. 

71 37779; SKANSKA_00043623, 38726; SKANSKA_00049936; 

SKANSKA_00056782. 

72 https://web.archive.org/web/20210204185139/https://www.nhc.noaa.gov/data/ 

tcr/AL162019_Nestor.pdf. 

73 37800; SKANSKA_00043690; SKANSKA_00043692. 

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d. 2020 Hurricane Season 

On August 22, 2020, Skanska began to demobilize for the storm system that 

would become Hurricane Marco.74 On August 22, 2020, the NHC indicated a 60% 

probability of tropical storm force winds for the Project area due to potential 

Hurricane Marco.75 Skanska began storm preparation activities on August 22, 2020. 

According to the NOAA projected storm track, however, the project site was not 

under a warning or in the cone at the time of demobilization. Skanska’s 

demobilization efforts took place over two days.76

e. Status of Project and Skanska’s Demobilization Claims.

Tom DeMarco, Project Executive and Construction Manager, testified that 

Skanska had available insurance coverage as well as a process through FDOT to 

receive payment out on claims related to lost expenses and production related to 

demobilizing marine assets and other activities in preparation for tropical weather 

systems, such as tropical storms and hurricanes.77 

Nevertheless, Mr. DeMarco testified that Skanska began its preparations for 

Hurricane Sally later in the development of that storm than it had for previous 

 

74 Skanska’s Second Amended Answers and Objections to First Master Set of 

Interrogatories, Resp. to Interrogatory 12; SKANSKA_00015929. 

75 Skanska’s Second Amended Answers and Objections to First Master Set of 

Interrogatories, Resp. to Interrogatory 12; SKANSKA_00015929. 

76 SKANSKA_00043890. 

77 Tom DeMarco Depo. at 40:21-40:25; 41:3; 64:16-64:20. 

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storms.78 General Superintendent Patrick McGlynn testified that prior to a change 

in project management that preceded Hurricane Sally, Skanska had been “very 

active, very proactive and making the right decisions” with regard to storm 

preparation.79 Yet, Skanska’s Project Leadership was facing increasing financial 

pressure. Leading into Hurricane Sally, “the insurers that were processing these 

demobilization / remobilization claims were less lenient” than in the past and 

Skanska’s Vice President of Insurance described herself as “fighting with the 

adjuster” over pending demobilization claims.”80 Additionally, Skanska had fallen 

behind schedule on the Pensacola Bay Bridge project and had engaged in an effort 

to catch back up.81 In the summer of 2020, Skanska claimed that demobilization 

and remobilization for tropical weather systems had cost Skanska roughly 15.3 

million dollars in costs and delays.82 In fact, days before Hurricane Sally’s landfall, 

on September 11, 2020, FDOT denied Skanska’s claim for reimbursement of 

expenses related to its preparations for Hurricane Marco due to Skanska having 

waived its right to additional compensation due to Skanska’s failure to provide 

 

78 Tom DeMarco Depo. at 162:12-15; 162:18-24. 

79 McGlynn Depo. at 25:9-26:5. 

80 Id. at 163:8-163:12; 163:15-163:24. 

81 Id. at 99:12-99:21; 164:8-164:15; 164:18-20. 

82 Tom Fulton Depo. at 333:19-333:22; 337:9-337:14; Exhs. 50 and 50a. 

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timely notice.83 Skanska was behind schedule and failing to recoup its 

demobilization expenses. 

IV. Preparation for Hurricane Sally

a. Thursday, September 10, 2020 

The NOAA five-day tropical weather outlook for the Atlantic Basin, including 

the Gulf of Mexico, issued, on the afternoon of September 10, 2020, its notice of a 

40-60% chance that a tropical cyclone would develop and track westward into the 

Gulf of Mexico and potentially threaten the Gulf Coast. 

b. Friday, September 11, 2020 

The National Hurricane Center issued Advisory 1 for Tropical Depression 19 

at 4:00 (central)/5:00 (eastern) on Friday, September 11, 2020. Advisory 1 put the 

project site within the cone of uncertainty for a tropical storm within the next 72 

hours. The Court finds that Advisory 1 clearly signaled that the onset of Condition 

THREE was likely imminent. The forecast and observed weather at the project site 

from Friday, September 11, 2020 up to Sunday morning was favorable for the 

movement of barges and other marine equipment. 

There is no evidence that Skanska performed any hurricane preparation work 

on Friday, September 11, 2020. In fact, construction continued as usual and Skanska 

 

83 Tom DeMarco Depo. at 164:3-164:15; Exh. 23. 

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took no preparations for a potential storm. The Court finds that, at the very least, 

Skanska management should have held some manner of pre-hurricane/tropical storm 

meeting that day.84 Instead, the evidence shows that Skanska had trouble controlling 

at least one barge, Ringer 2, as early as the morning of Friday, September 11, 2020 

before there were any noticeable effects on the project site by the storm system that 

would become Hurricane Sally. Project Superintendent, Grant Walker, texted the 

Project Executive and Construction Manager, Tom DeMarco: 

Came in this morning to ringer 2 beating up against the trophy they set 

last night. Guaranteed it moved but survey should check. We have to 

monitor our barges at the end of each shift and slack our spud cables. 

Depo. of DeMarco at 126:22-127:4 and Exhibit 32. Nevertheless, Mr. DeMarco 

testified that it did not raise an alarm that Skanska could not secure a ringer barge in 

regular weather. Id. at p. 131:6-131:10 and 131:13. 

c. Saturday, September 12, 2020 

At 7:45 am on Saturday, September 12, 2020, the senior inspector for FDOT’s 

CEI contacted Mr. Francis “to inform that the CEI is concerned that the footers, 

which are already in a 3’ to 5’ hole, could be inundated with stormwater and silt at 

 

84 The 2017 and 2018 Hurricane Preparedness Work Plans required such a meeting 

no less than 5 days before the storm is predicted to arrive. The 2019 and 2020 Plans 

prepared by Ms. Stephens and approved by Skanska management did not set a 

timeframe by which such a meeting should occur. 

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the footer / trophy connection points due to a possible tropical storm on Monday.”85 

Skanska noted the CEI’s concerns, but elected to continue with construction 

activities.86

At 11:26 am, Robert Rodgers, Skanska’s Project Manager, texted the project 

leadership team, stating, “Tropical Depression 19 warrants discussion. Could be 

impacted Monday morning. I’m setting up a Webex invite for 1:00pm CST.”87 This 

Saturday meeting was the first meeting to discuss preparations for what would 

become Hurricane Sally. Per the previously-referenced NOAA storm track 

projection, at the time of that meeting, the project site was within the probable path 

cone of a hurricane. 

According to notes from the 1:00 pm meeting, Skanska had one tug captain 

scheduled to be on site Sunday and Skanska Superintendent Nick Johnson intended 

to call other tug captains to let them know they may need to be called in Sunday 

“pending track of the storm.”88 Superintendent Grant Walker was assigned the task 

of calling a third-party tow service as a potential backup to assist moving barges.89 

Project Executive and Construction Manager, Tom DeMarco, testified that Mr. 

 

85 Daily Work Report, p. 149. 

86 Daily Work Report, p. 149. 

87 30606; SKANSKA_00035970. 

88 11971; SKANSKA_00000531. 

89 July 23, 2021 Deposition of Grant Walker (”Grant Walker Depo.”) at 122:16-23; 

Exh. 14. 

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Walker did not call the third-party tow service.90 When asked if there was any reason 

that Skanska could not have called in a third-party tow service to assist with 

demobilization, Project Manager, Rob Rodgers, testified that Skanska “could call 

anybody at any time.”91 

Later that day, at 3:09 pm, Superintendent Grant Walker texted Project 

Executive and Construction Manager Thomas DeMarco: “I came in to ruined spud 

cables, barges laid up against the footer, tools missing.”92 

According to the deposition testimony of tugboat captain Rob Hill, movement 

of barges to Butcherpen Cove could have commenced on Saturday, September 12, 

2020.93 There is no evidence Skanska made any substantive preparations for 

Hurricane Sally on Saturday, September 12, 2020.94 Mr. McGlynn, Skanska’s 

General Superintendent, confirmed that no barges or cranes had been demobilized 

prior to Sunday, September 13, 2020.95

d. Sunday, September 13, 2020

According to the deposition testimony of Mr. DeMarco, at 7:00 a.m. CST on 

Sunday, September 13, 2020, Skanska’s project leadership team, including 

 

90 Tom DeMarco Depo. at 141:14-142:2. 

91 Rob Rodgers Depo. at 188:18-20; 188:23. 

92 31137; SKANSKA_00036505. 

93 Rob Hill Depo. at p. 232:7-19. 

94 July 15, 2021 Deposition of Brad Thatch (”Brad Thatch Depo.”) at p. 79. 

95 McGlynn Depo. at 19:5-12. 

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Mr. DeMarco, Mr. Rogers, and Thomas Fulton, (Project Director and Vice-President 

of Operations), collectively decided that Skanska would implement a “verbal” plan 

instead of the written 2020 hurricane plan. Specifically, Skanska would forego 

moving the barges and cranes to the designated protected waters. Rather, Skanska 

planned to moor the barges in clusters in the immediate vicinity of the bridge.96 The 

Court notes, however, that such a mooring configuration was never contemplated or 

described in any hurricane plan prepared by Skanska. Project Manager, Rob 

Rodgers, testified that Skanska did not have a written hurricane preparedness plan 

that called for mooring barges at mooring piles on the east and west side of the 

bridge.97 Mr. Rodgers described these mooring piles locations as “not as safe as the 

other places that have been listed in the hurricane preparedness plans.”98 

After the Sunday morning meeting, Skanska began to move the barges “away 

from bridge.”99 Rig 20, however, was left “between the new bridge and the fishing 

pier.”100 Notwithstanding Skanska’s representations in its hurricane plan that it had 

five tugs available, Skanska conducted its operations to demobilize its barges to 

 

96 Tom DeMarco Depo. at 119:2-6; 132:12-18; 145:5-25; 167: 6-15. 

97 Rodgers Depo. at 143:19-143:25. 

98 Id. at 144:1-3 and 144:6-8. 

99 24676; SKANSKA_00019868. 

100 24676; SKANSKA_00019868. 

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mooring spots around the bridge with only two tugs and without the assistance of a 

third-party tow company.101 

When asked if Skanska had begun to demobilize its barges to Bayou Chico 

and Butcherpen Cove at 7:00 a.m. on Sunday whether it could have completed the 

task with two tugs, Project Manager, Rob Rodgers, testified: 

With two tugs, a large majority. And if we would have made the 

decision to demobilize, we would have certainly got help from 

Portside.102

Mr. Rodgers agreed that there would have been enough time to complete a full 

demobilization of Skanska’s barges to Bayou Chico and Butcherpen Cove, including 

Rig 20, if the decision had been made to stop working with it and to demobilize it.103 

Project Executive and Construction Manager Tom DeMarco testified to his 

agreement that Skanska had begun its preparations earlier in the development of past 

storms than it did with Hurricane Sally.104 

Despite the decision of Skanska’s leadership team to make some preparations 

for the storm, Skanska continued to conduct work on the Bridge, driving piles with 

Rig 20 as late as 2:05 pm that same day.105 Skanska’s pile-driving work involved 

 

101 See Rob Rodgers Depo. at 173:7-173:14; Tom DeMarco Depo. at 141:14-142:2. 

102 Rodgers Depo. at 189:25-190:5; 190:190:10. 

103 Id. at 190:13-20 and 191:16-20. 

104 Tom DeMarco Depo. at 162:12-15; 162:18-24 

105 Daily Work Report, p. 152-153. 

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2,223 blows to the piles being installed that day.106 When discussing the activities 

to be accomplished that day, Mr. Bender testified that the morning meeting with the 

Skanska team concerned (a) the weather forecast, (b) the continued driving of two 

piles, and (c) mooring a barge between the Bridge and the fishing pier and preparing 

it for 40 mph winds.107 

The conditions attendant to Condition THREE in Skanska’s 2020 hurricane 

plan make clear that the A-frames for a pile driving rig, such as Rig 20, take time to 

remove and should be “one of the first activities completed” when severe weather 

with greater than 58 miles per hour is expected within less than 96 hours.108 Project 

Executive and Construction Manager, Thomas DeMarco, testified that the complete 

removal of Rig 20’s A-frame ahead of Hurricane Sally would have taken 6 to 8 hours 

and required Skanska to forego using the Rig to drive piles.109 Removal of Rig 20’s 

A-frame, however, was not possible given that Skanska was still using it to drive 

piles.110 As Mr. McGlynn testified, Skanska ignored the hurricane plan’s 

requirement to remove Rig 20’s A-frame. The Project Manager, Rob Rodgers, 

testified that Rig 20 could have been moved after the 7:00 a.m. meeting if Skanska 

 

106 CTRLSKA000004122; CTRLSKA000004123; CTRLSKA000004124. 

107 Will Bender Depo. at p. 62-63 and 83-84. 

108 Patrick McGlynn Depo. at p. 82:20-83:16. 

109 DeMarco Depo. at 123:21-124:3. 

110 Patrick McGlynn Depo., p. 99: 9-100:14. Project Director, Tom Fulton, testified 

that he was aware of Skanska’s decision to continue driving piles with Rig 20 on 

Sunday, September 13, 2020. Fulton Depo., p. 197:5-197:14. 

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made the decision to stop working with Rig 20 and begin demobilizing it.111 Had 

Rig 20’s A-frame been removed, however, Mr. McGlynn testified that it would not 

have fallen across the Pensacola Bay Bridge.112 

Skanska’s substantive storm preparations that day included: 

 Mr. Thatch began moving barges around 7:00 am and Mr. Hill, called 

by Nick Johnson to come in because “we’ve decided to move some 

barges,” arrived about noon.113 

 Mr. Hill received instructions to clear barges from the bridge and to put 

two barges together, or abreast, on mooring pipe piles which had been 

in place for construction of the bridge for three years.114 The four 

mooring pipe piles were located on the east side of the bridge and one 

mooring pipe pile was leftover and located on the west side of the 

bridge.115 Barges were moved to these moorings or remained on 

location at the bridge.116 

 

111 Rodgers Depo. at 191:16-20. 

112 Patrick McGlynn Depo., p. 101: 9-16. 

113 Rob Hill Depo at 266:15-267:6. 

114 Rob Hill Depo., p. 178:12-179:24. 

115 Brad Thatch Depo, p. 98:15-99:20. 

116 Id. 

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 Mr. Thatch moved five barges away from the bridge and placed them 

toward the Gulf Breeze side mooring.117 Mr. Hill moved eight or 10 

barges away from the bridge.118 

Skanska’s night shift operations that evening included moving barges to 

moorings, securing cranes, and securing equipment “in preparation of impending 

severe weather.”119 Skanska also “removed work boats from water and secured them 

on shore in Gulf Breeze boat ramp/work area.”120

e. Monday, September 14, 2021 

At 6:46 am on Monday, September 14, 2020, Skanska Superintendent Cody 

Oehm advised Mr. DeMarco that “A number of barges couldn’t be moved off the 

bridge due to broken spud wires and wind too high to run the cranes.”121 

Additionally, Project Manager, Rob Rodgers, testified that Skanska’s mooring piles 

did not have “ears,” meaning if the water rose high enough, mooring lines could slip 

over the top.122 In fact, according to Field Engineer Tyler Beddow, “[i]f the tide 

rises six to eight more feet, the lines will slide over the top of the mooring pipes.”123 

 

117 Brad Thatch Depo. 109:23-110:6. 

118 July 30, 2021 Deposition of Nick Johnson (“Nick Johnson Depo.”) at p. 124:21-

25. 

119 Daily Work Report, p. 158. 

120 Daily Work Report, p. 158. 

121 SKANSKA_00036560. 

122 Rob Rodgers Depo. at 44:1-44:10. 

123 Id. at 44:21-45:8 and Ex. 8. 

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As of 8:00 am on Monday, September 14, 2021, Skanska had 55 barges within 

one mile of the Bridge.124 Some of the barges were moored on the east side of the 

bridge, while others were moored in close proximity to the bridge.125

Although no deckhands showed up to work that day126, Mr. Hill and Mr. 

Thatch worked a 12- hour day each operating a tug.127 Superintendents of the project 

had to step in and perform the work of deckhands aboard the tugs.128 Captain Hill 

said “the conditions were terrible”129 and one of his tug’s superintendent deck hands, 

Nick Johnson, remembers the weather being terrible and that he risked his life and 

the lives of others trying to save the bridge.130

f. Tuesday, September 15, 2020 

Before 3:00 a.m., on Tuesday, September 15, 2020, at least one of Skanska’s 

barges had broken loose from its moorings. Rodgers Depo. at 46:13-16. According 

to weather data provided by NOAA, at this time, the closest weather station to the 

Pensacola Bay Bridge had not registered sustained winds in excess of 11 knots and 

gusts in excess of 18 knots (id. at 56: 13-16, 57:7-13 and 57: 24-58:10 and Exhibit 

 

124 Skanska’s Answers and Objections to First Master Set of Interrogatories, Resp. 

to Interrogatory 19 and Ex. 1. 

125 17274, SKANSKA_00011315. 

126 Tom DeMarco 30(b)(6) Depo. at 187:16-21. 

127 Rob Hill Depo. at 245:10-14; Brad Thatch Depo. at 80:15-81. 

128 Tom DeMarco 30(b)(6) Depo. at 187:16-21. 

129 Rob Hill Depo. at p. 285:24-286:3. 

130 Nick Johnson Depo. at 122:24-123:12; 125:21-126:7. 

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12), while the weather station at NAS Pensacola—far closer to the storm’s eventual 

landfall—had not registered sustained winds in excess of 26 knots knots and gusts 

in excess of 37 knots. Id. at 59:1-9, 59:12-15, and Exhibit 13. 

At the time the first barge broke free and impacted the Pensacola Bay Bridge 

on Tuesday morning, the closest weather station to the Pensacola Bay Bridge had 

not registered sustained winds in excess of 12 knots. DeMarco Depo. at 193:3-

194:18 and 197:2-7 and Exhibit 47. At the same time, the weather station at the 

Pensacola Airport had not registered sustained winds in excess of 16 knots. Id. at 

197:17 to 198:2 and Exhibit 48. 

That day, Mr. Hill and Mr. Thatch reported to work to take out the tugs once 

again but no other crewmembers showed up; thus, superintendents from the project 

again had to step in and act as deckhands on the tugs.131 Mr. Hill, operating the tug 

Dawson, along with Mr. Johnson, were able to rescue barge 6012, a fully loaded 

slide barge, and hauled it to Butcherpen Cove.132 This was the only barge that was 

moved to Butcherpen Cove during Hurricane Sally.133 Once moved to Butcherpen 

Cove, 6012 remained in place and did not break free again.134

 

131 Rob Hill Depo. at 168:21-169:12. 

132 Rob Hill Depo. at 168:3-19; 173:11-22; 174:17-20. 

133 Rob Hill Depo. at 173:11-22. 

134 Rob Hill Depo. at 174:14-16; Tom Demarco Depo. at 169:13-22. 

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The tug Dawson lost a rudder during its efforts with barge 6012 but was able 

to return to port at 3:00 pm.135 Mr. Thatch, operating the tug Albert Pike with 

deckhands Ronnie Benton and Will Bender136, moved barges until it got too rough 

and terminated the effort to move barges at 5:00 pm that day.137 Project Executive 

and Construction Manager, Tom DeMarco, testified that he was aware that Pat 

McGlynn operated the Albert Pike ahead of Hurricane Sally’s landfall, despite his 

knowledge that Mr. McGlynn did not have a USCG Captains’ License. DeMarco 

Depo. at 203: 10-203:14 and 204:8-204:23. 

According to the “Hurricane Sally Timeline”138 prepared by FDOT’s CEI, the 

following events took place on Tuesday, September 15, 2021: 

6:30 a.m. - A material barge being used in the construction of the Bridge 

broke free from its moorings and struck the Escambia County fishing 

pier adjacent to the bridge. 

7:00 a.m. – Skanska retrieved the material barge from fishing pier and 

then captured/retrieved a second barge (demo barge) that broke free 

from its mooring. 

7:30 a.m. - As winds and seas associated with Hurricane Sally 

increased, a third barge equipped with a man-lift broke free. This barge 

struck the bridge and became lodged beneath the structure at pier 62. 

The impact of the barge caused visible damage to the concrete beams 

that support the bridge. It was at this time the crew members on-scene 

closed the bridge to all traffic so that a thorough damage assessment 

could be conducted once weather conditions improved. 

 

135 Rob Hill Depo. at 245:22-246:11. 

136 Brad Thatch Depo., p. 90: 13-17. 

137 Brad Thatch Depo. p. 90: 3-23. 

138 29303; CTRLSKA000009192. 

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8:03 a.m. - The NOAA tidal station conditions were 77 degrees, wind 

ESE 6 knots gusts to 14 knots, pressure 1009 mb, tide at elevation 4’. 

The Gulf Breeze station was reporting 20 mph winds from east. 

Pensacola airport was reporting 18 mph winds from east. 

4:00 p.m. - A fourth barge worked its way free of anchorage and floated 

beneath and through the bridge (around spans 95-99). It was reported 

by Skanska that this barge did not contact the bridge and was recovered 

without further incident. 

6:00 p.m. - One of the disposal barges broke free and lodged under span 

36. Skanska tried to retrieve the barge, but the high seas (8’-10’) 

prevented the tug from reaching the barge safely. 

10:30 p.m. - A barge carrying a crane came free and struck the bridge. 

The boom of the crane came to rest across the travel lanes of span 92 

of the bridge. 

12:00 a.m. - The two CEI Inspectors assigned to monitor the bridge and 

roadway since 5:00 pm left the project due to deteriorating conditions. 

It was observed/reported that 6 barges total broke loose from moorings 

on September 15, 2020. 

Ed Hudec with FDOT emailed the message below to several Skanska 

managers, including Mr. Fulton, on September 15, 2020 at 8:30 pm:139

As I’m sure you [sic] aware the bridge has been struck twice today and 

the fishing pier once due to Skanska barges that have broken loose of 

their moorings/spuds. 

US 98 has been closed since early this AM due to the first barge hit. 

The extent of the damage is as of yet undetermined. We need to provide 

answers to the State Secretary’s Office and the Governor’s Office as to 

when the bridge can be re-opened to traffic. 

 

139 25100; SKANSKA_00021174. 

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As of this minute FDOT has received no assistance from the Skanska 

Team-to help determine the structural adequacy of the bridge. The 

problem arose due to Skanska’s inability to properly secure barges or 

move them to a safe haven. The first barge that hit the bridge occurred 

when the local airport registered winds of 29 mph, not exactly tropical 

force winds. 

This is totally unacceptable! 

FDOT has now paid Skanska for a new bridge but due to poor 

management decisions on Skanska’s part, has a bridge with unknown 

structural deficiencies. 

I am asking Skanska to assist in providing answers to the extent of 

damage, repair procedures and most importantly the structural integrity 

of the damaged structure. 

An expedient answer is of the utmost importance. 140

Wednesday, September 16, 2020 

Hurricane Sally made landfall on Wednesday, September 16, 2020, at 4:45 

am near Gulf Shores, Alabama. According to the “Hurricane Sally Timeline”141

prepared by FDOT’s CEI, the following events took place on that day: 

4:45 a.m. - Hurricane Sally makes landfall at 4:45 am at Gulf Shores, 

Alabama, with maximum winds of 105 mph. 

7:17 a.m. – The CEI’s Senior Inspector and Senior Project Engineer 

arrived on the Project site to observe the conditions. He immediately 

observed rig 20 (a pile driving rig between the fishing pier and the 

newly-constructed bridge span) had impacted the new span during the 

night with the A-frame at span 15. 

7:40 a.m. - The tide gauge was elevation 6.5 ft, winds at 41 knots and 

gusts to 54 knots. 

 

140 The Daily Work Report for that day confirmed that two barges came loose or 

broke free from their moorings and struck the bridge. Daily Work Report, p. 168. 

141 29303; CTRLSKA000009192. 

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7:40 a.m. - Span 37 was observed to be missing, except for the 

pedestrian path. Damage was apparently caused by material barge with 

girders. 

8:10 a.m. - The A-frame bent over the new bridge and separated from 

the barge and the barge and rig floated through the Escambia County 

fishing pier impacting two spans before moving slightly north taking 

out 4 spans of the pier. The rig and barge appeared to be dragging an 

anchor and headed northeast at the time where it stopped for the 

remainder of the storm. 

8:28 a.m. - One of the Manitowoc 888 ringer cranes was observed to be 

floating freely in the Pensacola Bay headed northeast. 

8:44 a.m. - CEI observed the first social media post in Pensacola that a 

barge had washed up in someone’s back yard. 

9:27 a.m. - The Manitowoc 888 ringer was observed moving north in 

Escambia Bay along the bluff behind the Bay Winds Condominiums at 

600 Scenic Highway. CEI notified FDOT and FDOT closed the 

Interstate 10 bridge over Escambia Bay. 

9:33 a.m. - CEI Senior Project Engineer informed Skanska’s Project 

Manager that the Manitowoc 888 ringer was observed moving north in 

Escambia Bay towards Interstate 10. 

10:45 a.m. - CEI observed that a demo barge was damaging spans 22 

and 23 and ultimately the west half of both spans had collapsed and the 

outside trophy at pier 23 was missing. 

11:30 a.m. - CEI Senior Project Engineer observed the Manitowoc 888 

ringer to be near the center of Escambia Bay approximately 1000 to 

1500 yards south of the Interstate 10 bridge. The wind shifted from out 

of the south-south west to more out of the west, moving the Manitowoc 

888 ringer on an easterly course. 

12:10 p.m. - The Manitowoc 888 ringer was observed to have beached 

itself along the east side of Escambia Bay between the Interstate 10 

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bridge and Garcon Point. Late afternoon/early evening of September 

16, 2020, Skanska was coordinating a tugboat to secure the rig. 

5:44 p.m. - CEI informed that Barge M-8002 was found to have 

impacted/damaged the Garcon Point Bridge at the southwest corner of 

Garcon Point (near north abutment, west side). 

g. Thursday, September 17, 2020 

As of Thursday, September 17, 2020, 27 barges had escaped or broken loose 

from their moorings as a result of Hurricane Sally.142 A number of the barges allided 

with the bridge, the Pensacola Bay Fishing Pier, and other publicly and privately 

owned structures. 

V. Skanska’s Post-Sally Tropical Weather Preparations 

Skanska’s activities following Hurricane Sally call into question its claims 

that it was both impossible and infeasible to demobilize in accordance with 

Condition 3 of the written Hurricane Preparedness Work Plan in place at the time of 

Hurricane Sally’s Landfall, which required moving its barges and cranes to the 

designated safe harbors of Bayou Chico and Butcherpen Cove. 

 More recently, Skanska fully demobilized its barges to both designated safe 

harbors in anticipation of the system that would become Tropical Storm Fred. 

Rodgers Depo. at 216:19-21. Skanska began this effort around 10:00 am on the 

morning of August 13, 2021 when the system was a Tropical Depression. Id. at 

 

142 16527; SKANSKA_00009062. 

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218:18-219:1 and Exh. 41. While the National Hurricane Center advisory at this 

time placed the project site within the Day 1-3 potential track area, it did not place 

the project site in any form of watch or warning. Id. at 220:2-220:9 and Exh. 41. 

Project Manager, Rob Rodgers, testified that Skanska employed four tugs and 

completed the move of its barges to either Butcherpen Cove and Bayou Chico by 

Sunday morning, which he described as taking between “24 and 30 hours” of “work 

time.” Id. at 222: 4-7, 223: 9-17. This evidence shows that it was more than feasible 

and possible for Skanska to complete a demobilization of its barges and cranes into 

both Bayou Chico and Butcherpen Cove. 

VI. Skanska’s Leadership Team on the Project 

Three Skanska employees were vested with responsibility for storm 

preparation at the Pensacola Bay Bridge construction site from September 11-15, 

2020: 

Thomas DeMarco – Project Executive and Construction Manager 

Thomas Fulton – Project Director and Vice-President of Operations 

Robert Rodgers – Project Manager 

The evidence reflects that Mr. DeMarco, Mr. Fulton, and Mr. Rodgers shared 

responsibility for making the decision to transition from construction work to 

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securing equipment ahead of a storm, as well as for keeping track of the monitoring 

or forecasting of weather conditions in advance of Hurricane Sally. 143

 Likewise, the evidence indicates that Mr. DeMarco, Mr. Rodgers and Mr. 

Fulton were the only Skanska employees who had the responsibility for deciding 

whether and when to move construction barges to safe harbor.144 In addition to 

having responsibility with respect to the decision-making process of whether to 

implement the hurricane preparedness plan, Mr. Fulton also had responsibility for 

protecting the bridge and Skanska’s assets.145

 While Mr. Rodgers testified that Skanska project management, including 

himself, devised the plan implemented for Hurricane Sally where barges were sent 

to mooring piles on the east and west side of the bridge, he further testified that he 

was not aware of any errors or mistakes made by deckhands, crew, or anyone in 

implementing that plan. Rodgers Depo. at 225: 6-9 and 226:11-16. Similarly, Mr. 

DeMarco testified that “[p]roject leadership is responsible for the project’s actions,” 

when asked if there was responsibility for the barges breaking free, whether that 

responsibility would rest with project leadership.” DeMarco Depo. at 233: 1-7. Mr. 

DeMarco also testified that he was not blaming any of the barges having broken free 

on any members of his crew. Id. at 232:17-22. 

 

143 Tom DeMarco 30((b)(6) Depo. at 140:23-141:6; 143:2-19; 144: 19-22. 

144 Tom DeMarco 30(b)(6) Depo. at 147:20-8. 

145 Tom DeMarco 30(b)(6) Depo. at 190:15-191:1. 

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VII. The Adequacy of Skanska’s Preparation for Hurricane Sally 

The Court finds that Skanska did not reasonably prepare for TD 19/Hurricane 

Sally. All of the graphical NHC forecasts from Hurricane Sally were available to 

the public, including Skanska. Moreover, Tom Fulton, Skanska’s Project Director 

and VP of Operations (who was the highest-ranking on-site executive for Skanska 

for the Project) texted that this was “the most accurate forecast source.”146 Mr. 

Fulton added: 

And I find in my 30 years’ experience in marine work in the southeast 

US that this is the most reliable forecast source. I – the reason I hesitate 

– hesitated to say that it was the most accurate is because I’m probably 

not qualified to make that judgment. I did make that statement here, 

but I certainly have found this to be the most reliable, and it is the – it 

is one of the sources that I rely heavily on for forecast data.147

The evidence demonstrates that Skanska had sufficient advance warning of 

significant, and likely damaging, effects on the project site and the barges from the 

storm, but failed to timely implement reasonable storm preparation efforts. 

The Court’s assessment is supported by the testimony of a number of 

Skanska’s supervisors. For example, when Skanska General Superintendent Patrick 

McGlynn was asked under oath if Skanska complied with its own HPP in preparing 

for Hurricane Sally, Mr. McGlynn testified “Absolutely not.”148 Similarly, Project 

 

146 Sarah Stephens Depo., Exh. 39 and 39A. 

147 Tom Fulton Depo. at p. 130:10 – 133:14 and Exh. 15. 

148 Patrick McGlynn Depo. at p. 15: 12-20. 

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Manager Tom Fulton stated via a text messages on September 16 that Skanska was 

unprepared for the impact of Hurricane Sally.149 For example, Mr. Fulton texted 

“Prepared for 25 and got 85. Got a Mess,” (Fulton Depo. at pp. 369:10-369:16) and 

testified that he told others that Skanska only prepared for 25 mile-per-hour winds. 

Id. at 366:2-12. 

Furthermore, Skanska’s actual efforts to secure barges were unreasonable and 

insufficient. Skanska had a total of fifty-five barges on location for use during 

construction of the Pensacola Bay Bridge. At the time Skanska decided to move its 

barges, some of the barges were in Bayou Chico, but most of its barges were close 

to the Pensacola Bay Bridge. 

At least forty-one of Skanska’s fleet of fifty-five barges were moved to these 

pipe pilings, sea anchors or spudded barges located in the vicinity.150 These pipe 

pilings and sea anchors were not part of the Hurricane Preparedness Plan but were 

used by Skanska in preparation for Hurricane Sally because Skanska waited too long 

to move the barges to a safer location.151 Moreover, the Coast Guard did not approve 

Skanska’s placement of barges at the mooring pilings and sea anchor locations 

during tropical storms or hurricanes. Thirty-three barges were put in place on the 

 

149 40060; SKANSKA_00065795; see also 36375; SKANSKA_00041827; and 

39991; SKANSKA_00065447. 

150 17274; SKANSKA_00011315. 

151 37865; SKANSKA_00043934. 

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east side of the bridge and eight barges were put in place at locations on the 

northwest side of the bridge.152 Twenty-three of Skanska’s fifty-five barges were 

spud barges.153 A total of seven spud barges were located in the vicinity of existing 

mooring pilings or sea anchors, and other barges were attached to the spud barges 

with rope. At least twenty-seven of the forty-one barges that Skanska attempted to 

secure broke free from their moorings and struck the Pensacola Bay Bridge, the 

Escambia County Fishing Pier, Garcon Point Bridge and public and private 

properties.154 

Barge numbers KS1451 and KS1453 had problems with their spuds and 

remained at the bridge, and Barge 460007 was being taken to a mooring but did not 

make it because a spud dropped prematurely and so it too was left at the bridge.155 

Spud barges with working spuds were either already in place and remained (Rig 20, 

Barge 450020) or were taken to other locations where the spuds could be dropped 

into place and to which any one of the other barges without spuds could be attached 

with rope.156 

 

152 17274; SKANSKA_00011315. 

153 26140; SKANSKA_00025030. 

154 17274; SKANSKA_00011315 and 16527; SKANSKA_00009062. 

155 Skanska’s Second Amended Answers to Claimants’ First Master Set of 

Interrogatories, Response to Interrogatory 11. 

156 Id. 

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Securing the barges to the mooring pilings with rope was unreasonably risky 

and dangerous because a rise of tide of only several feet could and likely did cause 

the rope to slide off of the top of the mooring pilings allowing the barges to become 

unsecured and left to roam the bay crashing into stationary objects. Yet, not all of 

the barges that broke free were secured with rope. As noted above, barges that had 

their spuds down also broke free. In fact, two of the four barges that struck the 

Pensacola Bay, KS5531 and 460007, are spud barges whose movement had nothing 

to do with rope or breakage of it.157 The barges that Skanska attempted to secure 

with rope ahead of Hurricane Sally were not done so with reasonable care158 or 

adequate supplies of lines.159 

Mr. McGlynn, the Project General Superintendent, testified that the damaged 

caused by Skanska’s barges was “definitely avoidable,”160 and he hoped Skanska 

would have learned from Hurricane Sally “to follow work plans, to follow policy, to 

follow – doing it right.”161 When further asked if Skanska complied with its own 

Hurricane Preparedness Work Plan in preparing for Hurricane Sally, Mr. McGlynn 

testified, “[a]bsolutely not.”162 When asked why he was surprised to find that 

 

157 26140; SKANSKA_00025030. 

158 McGlynn Depo. at p. 153:2-153:10. 

159 McGlynn Depo. at p. 166:23-167:1, 167:4, and 167:6-167:9. 

160 McGlynn Depo. at p. 177:20-178:5. 

161 McGlynn Depo. at p. 177:2-177:12. 

162 McGlynn Depo. at p. 19:12-19:15 and 19:20. 

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Skanska had not demobilized its barges prior to Sunday, September 13, Mr. 

McGlynn testified: 

Just for the natures of we’ve done it before prior to this hurricane, and 

it’s just what we do. It’s what we – we’ve always done any time a 

hurricane, tropical storm threat; find safe harbor.163

Skanska had long established safe harbor locations in anticipation of tropical 

weather systems. Foregoing safe harbor for mooring piles a few hundred feet from 

the Bridge was a failure of reasonable care that resulted in widespread destruction 

to the Pensacola Bay Bridge and the region. 

VIII. Application of the Spoliation Presumptions to Findings of Fact 

Of the thirteen custodians Skanska self-identified in this litigation, five164

custodians’ cell phone data was destroyed, including text messages sent and received 

in the days and hours immediately before Hurricane Sally’s landfall. These five 

custodians served crucial roles in the activities most relevant to this litigation, 

including (a) Skanska’s decision to abandon its written hurricane preparedness work 

plan for an orally conveyed alternative plan165, and (b) Skanska’s implementation of 

 

163 McGlynn Depo. at p. 23:5-23:7 and 23:11-23:23. 

164 Sarah Stephens, William Bender, Nicholas Johnson, Patrick McGlynn, and 

Eduardo Rubio (referred to collectively as the “spoliation custodians”). 

165 Ex. 1, June 18, 2021 Demarco 30(b)(6) Deposition Transcript at 132:6-25; 

150:18-23. 

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the alternative plan. Skanska’s alternative plan resulted in Skanska’s barges 

breaking free and damaging public and private property. 

Skanska waited until 7:00 a.m. on Sunday, September 13, 2020 to formulate 

and initiate the alternative plan. The alternative plan was thus implemented in a 

narrow window of time with a minimal number of Skanska’s employees, which 

included the five spoliation custodians. Skanska’s counsel, and its witnesses, have 

testified that text messages were used more frequently than email on the jobsite and 

that text messages were a more “common method of communication” than emails.166 

Skanska’s destruction of these communications resulted in the loss of incomparable, 

contemporaneous and candid evidence of Skanska’s activities throughout the 

minutes, hours and days prior to Hurricane Sally’s landfall. 

 On August 23, 2021, Judge Cannon found that “Skanska acted in bad faith” 

in destroying cell phone data for five of its thirteen self-selected custodians and that 

“this is a text book case of spoliation.”167 As such, Judge Cannon imposed monetary 

sanctions and the application of two adverse inferences: (1) that the information that 

was contained in the spoliated cell phone data was relevant and favorable to 

claimants, and that (2) it was not these five custodians’ conduct that caused the 

barges to go adrift. Judge Cannon noted that because this is not a jury trial, these 

 

166 Deposition of Grant Walker at 37:5-15. 

167 ECF No. 1265 at 7, 19. 

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inferences are subject to the trial court’s discretion and determination of whether any 

rebuttal evidence will be allowed from Skanska.168 Based on the evidentiary record 

to date, both adverse inferences are appropriate and not subject to rebuttal by 

Skanska. See Doc. 1265 (citing Optowave Co., Ltd. V. Nikitin, 2006 WL 3231422 

at, *12 (M.D. Fla. Nov. 7, 2006). 

a. Presumption 1: Information that was contained in the spoliated cell 

phone data was relevant and favorable to Claimants.

As to the first presumption, Judge Cannon’s order requires a finding of fact 

that for each of the five custodians whose cell phone data was destroyed, their text 

messages would have been relevant and favorable to Claimants’ case, had they been 

produced. Should any of these five witnesses provided testimony that is 

contradictory to the evidence or to testimony provided to other witnesses, any factual 

inconsistencies should be found in favor of Claimants. In effect, it should be 

presumed that these communications would have provided additional evidence that 

Skanska failed to exhibit reasonable care in preparing for Hurricane Sally. 

i. Factual Disputes Predicated on Conflicting Testimony of 

Spoliation Custodians Should Be Resolved in Favor of 

Claimants. 

In some instances, in which witnesses offered deposition testimony that was 

inconsistent with the evidence or with other witnesses’ testimony, Claimants were 

 

168 Id. at 25. 

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unable to refresh these witnesses’ recollection or impeach them with text messages 

because their cell phone data had been spoliated. In those instances, any factual 

disputes or credibility assessments should be determined in favor of Claimants. 

 Skanska’s destruction of these cell phones denied Claimants the text 

messages of Nick Johnson and Will Bender—the only two Superintendents on the 

water Sunday, September 13, 2020 during Skanska’s movement of barges to 

mooring pilings a few hundred feet from the bridge. This left Claimants unable to 

challenge Mr. Johnson’s otherwise unsupported account of securing the barges that 

was overwhelmingly favorable to Mr. Johnson and Skanska: 

Q. Okay. So for the barges, did you – all double or quadruple? 

What did you do for the barges, before Sally? 

A. I mean, a lot of the stuff that I was tying up had almost eight 

parts in it. 

 [ . . . ] 

Q. Okay. So when the storm – when the storm hit, it was either 

brand new or almost brand new [lines]? 

A. Yep.169

This testimony is contradicted by others, including Skanska General 

Superintendent Patrick McGlynn, who testified as follows: 

Q. Let’s break that down a little bit. Can you explain what you 

meant by your concern that some of the barges were not 

secured? 

 

169 Nick Johnson Depo. at 225:8-12; 226:21-24. 

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A. Uh, yeah. So what I mean by that when I say secured is 

secured correctly with the proper barge lines, the amount of 

barge lines, you know, if they’re tied together, two barges are 

tied together, the condition of the barge line, um, if that – 

that’s what you mean.170 

Given the conflicting testimony between Nick Johnson and Pat McGlynn, 

both of whom had spoliated text messages, application of the first adverse inference 

requires a finding that the evidence found on either witness’s cell phone would have 

been favorable to Claimants and unfavorable to Skanska. As such, Mr. Johnson’s 

conclusory account—which is inconsistent with the evidence and testimony 

provided by other witnesses—should be disregarded. 

 Mr. McGlynn was the highest ranking spoliation custodian, serving as the 

General Superintendent on the Pensacola Bay Bridge project. Several text messages 

contained on the phones that were produced indicate that Mr. McGlynn was a frank, 

candid communicator over text messages with colleagues. 

Q. Okay. Let’s look at the first text, the September 16th, 10:57 

a.m. You text, “Are you out there trying to do anything? I have 

seen the massive fuck ups we are going to have to deal with.” 

So. Mr. McGlynn, can you describe what you’re referring to 

when you’re texting with Mr. Benton? 

A. Just – just the situation that we were dealing with a hurricane 

and – and our barges no being secured – 

Q. Okay. 

 

170 McGlynn Depo. at 153:2-153:10. 

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A. -- correctly. Secured correctly.171

The loss of Mr. McGlynn’s text messages is among the most consequential 

evidence spoliated by Skanska. The Court should that Mr. McGlynn’s spoliated text 

messages would have been helpful to Claimants by providing further support to his 

critical account of Skanska’s failures within his deposition testimony. 

Eduardo Rubio was the General Superintendent for the Superstructure of the 

Pensacola Bay Bridge with approximately twenty years of experience as a 

superstructure superintendent on marine construction projects.172 According to 

Tom DeMarco, who was designated as Skanska’s corporate representative on the 

issues of roles and responsibilities, Mr. Rubio was among the three Skanska General 

Superintendents whose roles and responsibility involved the application of nautical 

skill.173 Mr. Rubio testified that he communicated with his co-workers using his 

Skanska-provided cell phone and that he would have been more likely to text 

colleagues than sending an email.174 

Mr. Rubio provided contradictory testimony as to his role in preparation for 

Hurricane Sally, but the unavailability of his text messages limited Claimants’ ability 

to fully discover his precise role in Skanska’s pre-landfall and post-landfall efforts. 

 

171 Aug. 10 Pat McGlynn Depo. at 173:10-173:14; 173:22-174:4. 

172 Aug. 4, 2021 Deposition of Eduardo Rubio (“Eduardo Rubio Depo.”), p. 38: 5-8 

and Ex. 2. 

173 DeMarco Deposition Transcript at 51:14-52:14. 

174 Aug. 4, 2021 Deposition of Eduardo Rubio at p. 51:18-52:18. 

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Specifically, he testified that he was not “involved in storm preparation ahead of 

Hurricane Sally,”175 which is in stark contrast to the fact that Mr. Rubio was a 

“required attendee” for three pre-storm meetings on Saturday, September 12, 2020 

(afternoon) and Sunday, September 13, 2020 (morning and afternoon) relating to 

Tropical Depression 19.176 Mr. Rubio testified that he could not recall the 

“specifics” of the meeting he recalled attending, nor the process of moving the 

barges on the same day.177 

Similarly, Mr. Rubio testified to his involvement in the “post-Hurricane Sally 

damage assessment process”178 and to his collaboration with Field Engineer Stacie 

Hardy in preparing a damage summary of the eastbound span,179 but nonetheless 

minimized his participation as “just riding with” others completing the 

assessment.180 In addition to his contradictory testimony, Mr. Rubio refused to 

provide substantive responses when asked across three pages of testimony whether 

Skanska upheld its responsibility to secure its marine-based equipment to safe 

 

175 Rubio Depo. at 50:9-10; 50:13. 

176 Rubio Depo. at 68: 12-69:21. 

177 Rubio Depo. at 71:20-72:25. 

178 Rubio Depo. at 86: 19-22. 

179 Rubio Depo. at 80:19-22 and 82: 6-14 

180 Rubio Depo. at 101: 1-15. 

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harbor,181 and similarly demurred when asked if Skanska learned any lessons from 

Hurricane Sally or whether he would have done anything differently.182 

Without Mr. Rubio’s text messages, Claimants were unable to refresh his 

recollection or impeach him with candid, contemporaneous exchanges with coworkers as to the sequence of events, the decision to abandon Skanska’s written 

Hurricane Plan, his involvement in storm preparation, and chis observations of the 

post-landfall damage. Had Skanska not spoliated this evidence, Mr. Rubio’s 

incoming and outgoing text messages would have provided additional evidence that 

Skanska failed to exhibit reasonable care in preparing for Hurricane Sally. 

Additionally, these communications likely would have shown that Mr. Rubio was 

far more involved and knowledgeable as a superstructure superintendent with two 

decades of experience than his deposition testimony suggests. In applying the first 

presumption, all such factual disputes or inconsistencies within Mr. Rubio’s 

testimony—or credibility assessments—should be decided in favor of Claimants. 

b. Presumption 2: It was not the actions of the five non-managerial 

custodians with spoliated cell phone data that caused the barges to 

go adrift. 

The second presumption, that it was not the actions of these five custodians 

that caused the barges to go adrift, goes directly toward the issue of privity and 

 

181 Rubio Depo. at 131:15-133:15. 

182 Rubio Depo. at 133: 17-134: 1 and 138: 12-21. 

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knowledge. Skanska argues that some preparations for Hurricane Sally might have 

been carried out by non-managerial employees without the privity or knowledge of 

Skanska’s managers, Fulton, DeMarco, and Rodgers. The cell phone data for those 

with decision-making authority (again, DeMarco, Fulton, and Rodgers) was 

produced. The custodians with spoliated cell phones were lower-level employees 

without managerial authority, including the drafter of the Hurricane Preparedness 

Plan in effect during Hurricane Sally and the individuals responsible for manning 

tugboats and securing barges in preparation for Hurricane Sally. Applying the 

inference that these lower-level custodians’ conduct did not cause the barges to go 

adrift necessarily undercuts Skanska’s argument against privity and knowledge. 

Judge Cannon acknowledged that Skanska “downplayed the importance of 

DeMarco, Fulton, and Rodgers’ roles” in its summary judgment briefing and that “it 

appears Skanska intends to rely on the conduct of lower-level employees, such as 

the custodians at issue here” to dispute Skanska’s privity and knowledge. Doc. No. 

1265 at p. 16. In one such example, Tom DeMarco attempted to shift blame to 

lower-level superintendent Pat McGlynn for the barges going adrift. When asked 

about a situation where Grant Walker reported on the morning of September 11, 

2020, “ringer 2 beating up against the trophy” because “it moved” DeMarco replied, 

“[t]hat was the result of Pat McGlynn’s supervision.”183 Applying the second 

 

183 McGlynn Dep. at 126:9-127:11. 

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presumption to this testimony, this Court must find that it was not Mr. McGlynn’s 

conduct—nor the conduct of any of the other five custodians with spoliated cell 

phone data—that caused the barges to go adrift. 

 

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CONCLUSIONS OF LAW

Jurisdiction 

This Court has jurisdiction over this action pursuant to its admiralty 

jurisdiction as provided at 28 U.S.C. § 1333. 

The Limitation of Liability Act 

Under 46 U.S.C. § 30505 (“Limitation of Liability Act” or “LLA”), a vessel 

owner’s liability for damage caused by the vessel is limited to the value of the vessel 

and cargoes, so long as the owner proves that the acts and losses were “done, 

occasioned, or incurred, without the privity or knowledge of the owner.”184 

A court must generally engage in a two-step analysis to determine if a vessel 

owner is entitled to limit his or her liability under the Act.185 “First, the court must 

determine what acts of negligence or conditions of unseaworthiness caused the 

accident. Second, the court must determine whether the shipowner had knowledge 

or privity of those same acts of negligence or conditions of unseaworthiness.”186 

Once the negligence or unseaworthy condition is proven, the burden shifts to 

the vessel owner to prove the lack of privity or knowledge. 

 

184 Am. River Transp. Co. v. Ryan, 579 F. 3d 820, 822 (7th Cir. 2009) (citing 46 

U.S.C. § 30505(b)). 

185 Hercules Carriers, Inc. v. State of Fla., 768 F.2d 1558, 1563-64 (11th Cir. 1985) 

(citations omitted); Empresa Lineas Maritimas Argentinas, S.A. v. United States, 

730 F.2d 153, 155 (4th Cir. 1984). 

186 Amer. Dredging Co., 81 F.3d at 129, quoting Hercules Carriers, Inc. 768 F.2d at 

1563-64; See also, Doc. No. 1223 at 18. 

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I. Exoneration 

A vessel owner is entitled to exoneration from all liability for a maritime 

allision only if the owner, vessel, and crew are free from any contributory fault.

187

Here, the acts of negligence asserted by Claimants include: 1) the place and manner 

in which Skanska secured 55 barges prior to and during Hurricane Sally (specifically 

the decision to moor the majority of their 55 barges at locations within hundreds of 

feet of the bridge and between the bridge and the fishing pier); 2) Skanska’s failure 

to implement its written hurricane plan despite triggering weather information; 3) 

Skanska’s failure to maintain sufficient and working equipment such that nonmotorized vessels could be moved or effectively moored during the hurricane; 4) 

Skanska’s failure to have sufficient tug boats, captains, and deckhands available to 

move the barges out of the vicinity of the bridge; 5) Skanska’s failure to maintain a 

sufficient supply of mooring lines to adequately secure 55 barges; 6) Skanska’s 

failure to have sufficient personnel to adequately secure its barges; 7) Skanska’s 

failure to begin securing barges far enough in advance of severe winds that it could 

be accomplished safely, with the delay causing some efforts to be abandoned or 

shortchanged. 

As shown herein, there is substantial evidence supporting these claims of 

negligence. 

 

187 Am. Dredging Co., 81 F.3d at 129. 

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II. Application of the Louisiana Rule to this Case. 

While claimants generally have the burden of proving negligence or 

contributory fault,188 this is subject to burden shifting under certain common law 

presumptions. Here, the Louisiana Rule applies. The Louisiana Rule applies when 

a drifting vessel allides with a stationary object or property, there is a rebuttable 

presumption that the moving vessel is at fault for any damages.189 

The Louisiana presumption operates not just against the vessel, but against all 

parties who participated in the management of the vessel.190 In the context of 

storms, “[t]he Eleventh Circuit has held that under the Louisiana Rule, a vessel 

owner will be held liable for an allision (1) if they had timely and accurate warnings 

about [an] approaching storm; and (2) they failed to use reasonable means to take 

proper action to guard against, prevent or mitigate the dangers posed by 

the hurricane.”191 

 

188 Hercules Carriers, 768 F.2d at 1564. 

189 Bunge Corp. v. Freeport Marine Repair, 240 F.3d 919, 923, 926 (11th Cir. 2001), 

upholding Bunge Corp. v. Freeport Marine Repair Inc., 97-CV-240, Doc. No. 85 

(N.D. Fla. Sept. 14, 1999), citing The Louisiana, 70 U.S. 164, 173 (1865); Stuart 

Cay Marina v. M/V Special Delivery, 510 F.Supp.2d 1063, 1069, 1071, 1074 (S.D. 

Fl. 2007).

190 Bunge Corp., 240 F.3d at 923. 

191 Stuart Cay Marina, 510 F.Supp.2d at 1072, citing Boudoin v. J. Ray McDermott 

& Co., 281 F.2d 81, 82 (5th Cir. 1960). Note: Pursuant to Bonner v. City of Pritchard, 

661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding 

precedent the decisions of the former Fifth Circuit issued prior to October 1, 1981. 

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Here, it is undisputed that Skanska’s construction barges were drifting 

unmoored during the storm and allided with and damaged various stationary objects, 

including the Pensacola Bay Bridge, the Garcon Point Bridge, the Pensacola Bay 

Fishing Pier, and various private and public properties. The uncontroverted facts 

establish that the (rebuttable) presumption of fault applies in this case. 

It is also uncontroverted that 27 of the barges being used on the Project broke 

loose from their moorings before, during, or after Hurricane Sally. It is likewise 

uncontroverted that all 27 of the barges were unmanned at the time they broke loose 

from their moorings. There is no dispute that, before, during or after Hurricane 

Sally, some of the 27 escaped barges allided with the Bridge and other publicly- and 

privately-owned property. Thus, under the Louisiana Rule, Skanska is presumed to 

be at fault for the damage caused by those barges. 

a. Rebuttal of the Presumption of Fault under the Louisiana

Rule. 

The Louisiana Rule’s presumption of fault is subject to rebuttal by the vessel 

owner. In some circumstances, not applicable here, the presumption can be rebutted 

by showing that the allision was the fault of the stationary object.192 Applicable here, 

a vessel owner can rebut the presumption of liability under the Louisiana Rule by 

proving by a preponderance of evidence that it was not negligent (i.e., that it satisfied 

 

192 Bunge Corp. 240 F.3d at 923. 

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the standard of prudent seamanship and ordinary care and reasonableness, as 

measured by the circumstances that are known prior to the event193), or by proving 

that the drifting and allisions were inevitable accidents or the result of a vis major, 

“which human skill and precaution and a proper display of nautical skill could not 

have prevented.”194

b. Skanska Cannot Prove by a Preponderance of Evidence That It 

Was Not Negligent.

Skanska may overcome the presumption of liability by demonstrating by a 

preponderance of evidence that it was not negligent. Skanska bears the burden of 

persuasion to establish that its storm preparations were reasonable under the 

circumstances. 

To begin with, Skanska has presented no evidence of any contributory 

negligence by claimants or third parties in this case. The evidence Skanska has put 

forward, however, fails to prove by a preponderance of evidence that it was not 

negligent and satisfied the standard of prudent seamanship and ordinary care and 

reasonableness, as measured by the circumstances that are known prior to the event. 

 

193 See Fischer v. S/Y Neraida, 508 F. 3d 586 (11th Cir. 2007). 

194 The Louisiana, 70 U.S. at 173; Bunge Corp., 240 at 923, 925-26; Stuart Cay 

Marina, 501 F. Supp.2d at 1069, 1071-72, 1074; Boudoin, 281 F.2d at 85, 88. 

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Skanska agreed with the State of Florida to implement a Hurricane 

Preparedness Work Plan that would apply to its preparations for tropical weather 

systems that threatened the project site. Accordingly, Skanska prepared and 

submitted a plan at the outset of the bridge’s construction wherein Skanska 

acknowledged its obligation to secure its marine assets in safe harbor in anticipation 

for tropical weather systems, like the one that developed into Hurricane Sally. 

The evidence has shown that Skanska began its preparations for the tropical 

system that became Hurricane Sally later in the development of that storm than it 

had for storms that preceded it. For numerous storms prior to and after Hurricane 

Sally, Skanska full demobilized its barge fleet into designated safe harbors (East 

Bay, Butcherpen Cove, and Bayou Chico) well before the project site fell within the 

National Hurricane Center’s potential track area or was subject to tropical storm or 

hurricane warnings or watches. Often, Skanska would demobilize before the storm 

even entered the Gulf of Mexico. 

The evidence further shows that Skanska had available avenues to recover lost 

costs and productivity due to storm demobilization, including from its insurers and 

FDOT. Given this, Skanska’s decision to forego demobilizing into the designated 

safe harbors ahead of Hurricane Sally would seem to make little sense. However, 

Skanska’s project leadership faced increasing financial pressure in the form of 

project delays, insurers proving less lenient on demobilization claims, as well as 

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FDOT denying a claim relating to Hurricane Marco. The evidence shows that 

Skanska decided it would take a wait and see approach rather than the more proactive 

approach it took for past storm systems. 

Red flags also appeared prior to Hurricane Sally’s landfall, such as 

Superintendent Grant Walker’s observation of a large, barge mounted crane (Ringer 

2) “beating up” against an eastbound span trophy on Friday, September 11, 2020—

well before adverse weather reached the project site. Mr. Walker complained to 

project leadership of “ruined spud cables, barges laid up against the footer, tools 

missing.” Later, a superintendent reported that several barges could not be moved 

away from the bridge due to broken spud wires. Skanska’s hurricane plan itself 

contained inaccuracies, such as describing the safe harbor as East Bay instead of 

Butcherpen Cove as shown in maps describing barge placement. While this was 

addressed prior to Hurricane Sally, Skanska left the distance unchanged to safe 

harbor, reflecting the distance to Butcherpen Cove to have been the same as to East 

Bay, when it was actually far closer. Sarah Stephens, the author of the plan, was, 

according to herself, not qualified to prepare the hurricane plan. 

Skanska’s Project Director and Vice President of Operations characterized 

National Hurricane Center’s forecasts as “the most accurate forecast source.” The 

same source should have put Skanska on notice that the project site was within the 

potential track area for an intensifying storm that was projected to reach the wind 

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thresholds set forth in its own Hurricane Preparedness Work Plan that called for full 

demobilization of its barges into designated safe harbors. Skanska’s inaction cost it 

the benefit of ideal weather all day on Friday and Saturday. At the very least, on 

Friday, September 11, 2020, Skanska had enough information to put its crew on 

standby together with third party tow services in order to begin demobilization on 

short notice. This did not happen. 

Skanska’s project leadership convened a conference call the afternoon of 

Saturday, September 12, 2020 to discuss the tropical system that would become 

Hurricane Sally. The discussions included consideration of seeking additional 

resources, including third party towage services and additional Skanska labor. Yet, 

the evidence is uncontroverted that Skanska did not begin to demobilize its barges 

until Sunday, September 13, 2020. That morning, Skanska’s project leadership 

convened a meeting wherein they decided to initiate an unwritten, verbal plan in 

which Skanska’s barges would be moved a few hundred feet from the bridge 

alongside various mooring piles on the east and west sides of the bridge. Skanska’s 

own leadership acknowledged this location was “not as safe” as the safe harbor 

locations designated in the written plan. 

Skanska’s written Hurricane Preparedness Work Plan emphasized in multiple 

places of the importance of beginning demobilization with the disassembly of an “aframe” on various crane-mounted barges, that included “Rig 20,” which was situated 

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between the Pensacola Bay Bridge and the Escambia County Fishing Pier. Rather 

than start with the disassembly of the A-frame, Skanska’s project leadership instead 

elected to continue with production work, driving two piles that Sunday, the last of 

which was completed after 2:00 p.m. As Mr. DeMarco testified, Rig 20’s A-frame 

could have been disassembled in 6 to 8 hours, but only if the rig was not used to 

drive piles as Skanska had opted to continue doing. 

Once Skanska began to demobilize its barges to the mooring piles on the East 

and West of the Bridge on Sunday morning, Skanska only had on hand a single 

captain to begin the process, Brad Thach. The second captain, Rob Hill, finally 

showed midday. Skanska also had only two superintendents on the water to help 

demobilize the barges and only one crane to lift spuds. Skanska never did call a 

third party tow service to enlist its help. This significantly reduced Skanska’s 

capability to demobilize sooner. 

 The first of Skanska’s barges to break free did so just before 3:00 a.m. on 

Tuesday, September 15, 2020—more than 24 hours before landfall. At this point, 

the closest weather station to the bridge had not recorded sustained winds in excess 

of 11 knots, while a weather station at NAS Pensacola had not recorded sustained 

winds in excess of 25 knots. The first of Skanska’s barges to break free and impact 

the Pensacola Bay Bridge did so later on Tuesday morning when the nearest weather 

station had not registered winds in excess of 12 knots. This was the first of 27 of 

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Skanska’s barges to impact and damage public or private property. The highest 

ranking member of Skanska’s project leadership stated that Skanska “[p]repared for 

25 and got 85.” The evidence indicates that Skanska’s preparations were insufficient 

even for its expectation of 25 knot winds. 

 KS-6012 was among the Skanska barges that broke free well before landfall. 

Skanska was able to secure that barge in Butcherpen Cove where it rode out the 

worst of Hurricane Sally without breaking free from its mooring. This is the only 

Skanska barge that was moored in Butcherpen Cove—Skanska’s designated safe 

harbor. This calls into serious question Skanska’s claims that moving its barges to 

its own designated safe harbor would not have made a difference. 

 The Court finds Skanska’s negligence was the sole and proximate cause of 

the damage to the bridges, the Pensacola Bay Fishing Pier, and other private and 

public properties. Because Skanska is not free from contributory fault, it is not 

entitled to exoneration from liability in this case.195 

a. Vis Major/Act of God Defense 

 

195 Amer. Dredging Co., 81 F.3d at 129-130. 

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The Act of God defense is limited to those events caused by natural forces of 

“such inevitability and irresistibleness that man cannot cope with it, either to predict, 

forestall it or control it when it arrives.”196 

“[T]he burden of proving inevitable accident or Act of God rests heavily upon 

the vessel asserting such defense.”197 The vessel must not only show that the damage 

was caused by the natural event, but also that no reasonable precautions or exercise 

of reasonable care could have prevented such harm. See Fischer v. S/Y Neraida, 508 

F.3d 586, 596 (11th Cir. 2007). Accordingly, the defense cannot be sustained where 

human negligence was a contributing cause to the accident. See City of Chicago v. 

M/V Morgan, 375 F.3d 563, 576 (7th Cir. 2004). 

Where an owner has timely and accurate warnings about an approaching 

storm, “the issue to be determined . . . is whether they used all reasonable means and 

took proper action to guard against, prevent or mitigate the dangers posed by 

the hurricane.”198

When a ship owner argues a vis major or “act of God” defense199 (e.g., arguing 

that the hurricane would have produced the same damage irrespective of the party’s 

 

196 In re Matteson Marine Serv., Inc., No. 08-cv- 4023, 2011 WL 2731340, at *9 

(C.D. Ill. July 13, 2011). 

197 Bunge Corp. v. Freeport Marine Repair, Inc., 240 F. 3d 919, 926 (11th Cir. 2001). 

198 Stuart Cay Marina, 510 F. Supp. 2d at 1072. 

199 The 11th Circuit explains that this is a distinct argument that rebuts causation, 

even where there is negligence, by establishing a superseding cause of the accident. 

Fischer, 508 F.3d at 593, 595-96. 

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negligence), the owner must prove that it took not just one reasonable course of 

action among many, but all reasonable measures—e.g. that it took every reasonable 

and prudent precaution in preparation for the storm.200 That is, the Court must look 

to whether the hurricane would have caused the allisions even if all reasonable 

preparations had been made. 

What the ordinarily prudent barge owner should do in advance of an 

impending storm “is not to be measured by what hundreds or even thousands of 

ordinary persons—housewives, children, laborers, salesmen, and the like—either 

did or ought to have done. . . he has under his command a thing which may be the 

instrument of further damage—here a large, cumbersome, unmanned, unwieldy craft 

which, once loosed before these forces, would smash all in her path. He has, 

therefore, a special duty to take all reasonable steps consistent with safety to this 

ship and her crew, to avoid or minimize the chance of harm to others.”201

Skanska has failed to meet its burden to demonstrate that, due to the 

hurricane’s forces, the allisions would have occurred even with the exercise of all 

reasonable precautionary efforts. While Hurricane Sally was a force of nature, it 

was not an unanticipated one and this was a situation in which reasonable 

precautions could have avoided the allisions that occurred in the Pensacola Bay. The 

 

200 Bunge Corp., 240 at 925-26; Stuart Cay Marina, 501 F. Supp.2d at 1072, 1074;

Boudoin, 281 F.2d at 85, 88; Fischer v. S/Y Neraida, 508 F.3d 586, 595-96. 

201 Boudoin, 281 F.2d at 84-85. 

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measures taken to secure the construction barges in advance of the storm were not 

reasonable. In fact, had Skanska followed the reasonable precautions set forth in 

its own hurricane plan, as it had during prior storms, the accidents would have been 

avoided. Skanska’s hurricane plan required the reasonable precaution of moving all 

construction barges away from the project site. Instead, in advance of Hurricane 

Sally, Skanska attempted to moor approximately 55 barges in close proximity to the 

bridge and other private and public property. In no version of any of Skanska’s 

hurricane plans was this contemplated as a reasonable method to protect the bridge 

or the barges in the event of a tropical storm or hurricane. 

The Court concludes that the Act of God defense is not available to Skanska 

under the facts at hand. Skanska had ample notice of a major storm and the 

opportunity to prepare for it. A reasonable precaution would have been to moor the 

barges at the anchorages set forth in one or more of the various versions of Skanska’s 

hurricane plans—Bayou Chico, Butcherpen Cove, the Gulf Breeze Anchorage, or 

East Bay. Another reasonable precaution would have been to reduce the number of 

barges being used at any given time on the project site so as to account for the limited 

number and capacity of the tugboats available to move the barges in the event of a 

tropical storm. Accordingly, the Act of God defense is not applicable.202

 

202 The Court further concludes that Skanska was not acting in extremis. See M/V 

Morgan, 375 F. 3d at 577 (finding vessel was not operating in extremis). 

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The Court also finds that Skanska failed to abide by the applicable standard 

of care, i.e., prudent seamanship and ordinary care and reasonableness. Skanska 

thus had the burden of proof to demonstrate that the escape of the barges was an 

inevitable accident or attributable to vis major. As discussed below, Skanska failed 

to meet its burden in this regard, failing to demonstrate that, irrespective of its 

negligence, there was a superseding cause of the allisions (e.g. vis major or act of 

God) such that the allisions could not have been avoided even if Skanska had taken 

all reasonable precautions. 

III. Knowledge and Privity 

A vessel owner may limit his or her liability for a damages claim by proving 

that the losses were occasioned without the privity or knowledge of the owner.203 

The personal participation of a company manager in the fault or negligence that 

caused or contributed to the injury or damage constitutes “privity or knowledge” 

under the Limitation Act.204 When the vessel owner is a corporation, privity or 

knowledge means the privity or knowledge of a managing agent, officer, or 

supervisory employee.”205 Thus, when the vessel owner is a corporation, liability 

will not be limited under the Act “where the negligence is that of an executive 

 

203 46 U.S.C. § 30505; Am. River Transp. Co. v. Ryan, 579 F. 3d 820, 822 (7th Cir. 

2009) (citing 46 U.S.C. § 30505(b)). 

204 Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225, 231 (7th Cir. 

1993). 

205 Am. Dredging Co. 81 F.3d at 130. 

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officer, manager, or superintendent, whose scope of authority included supervision 

over the phase of the business out of which the injury occurred.”206 

Thus, under the Limitation Act, there are three possible outcomes: 

1) An owner may be exonerated of all liability if the owner, vessel and 

 crew had no fault in the accident;207 

2) An owner may have liability limited to the value of the vessel and its 

 freight if the owner, vessel or crew had some fault in the accident, but 

 the owner did not have privity and knowledge of the acts of 

 negligence or unseaworthiness that caused the accident;208 or 

3) An owner may be denied both exoneration and limitation of liability, 

 and therefore be liable beyond the value of the ship, if the owner, 

 vessel or crew had some fault, and the owner had privity and 

 knowledge of the acts of negligence that caused the accident.209

In the context of a corporate vessel owner, like Skanska, the Eleventh Circuit 

attributes to the corporation “the privity and knowledge of ‘corporate managers 

 

206 Empresa, 730 F.2d at 155. 

207 Amer. Dredging Co. v. Lambert, 81 F.3d 127, 129 (11th Cir.1996); Tittle v. 

Aldacosta, 544 F.2d 752, 755 (5th Cir.1977). 

208 46 U.S.C. § 30505; Amer. Dredging Co., 81 F.3d at 129. 

209 Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558, 1563 (11th 

Cir.1985). 

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vested with discretionary authority.’”210 A corporate vessel owner, then, cannot limit 

its liability where “the negligence is that of an executive officer, manager, or 

superintendent whose scope of authority includes supervision over the phase of the 

business out of which the loss or injury occurred.”211 “The privity and knowledge 

of a managing agent, officer or supervising employee, including supervisory 

shoreside personnel, is attributable to the corporation.”212 Stated otherwise, 

“knowledge is adjudged by what the corporation's managing agents knew or should 

have known with respect to the conditions or actions likely to cause the loss.”213 

The 11th Circuit has defined privity as the personal participation of the owner 

in some fault, or act of negligence, causing or contributing to the loss, and knowledge 

as some personal knowledge, or the means of obtaining knowledge by reasonable 

inquiry or inspection, of conditions likely to contribute to the accident.214

 

210 Amer. Dredging Co., 81 F.3d at 130; see also, Suzuki of Orange Park, Inc., 86 

F.3d 1065 (collecting cases). 

211 Suzuki, 86 F.3d at 1065 (quoting Coryell v. Phipps, 317 U.S. 406, 410-11 (1943). 

212 Suzuki, 86 F.3d at 1065 (quoting Continental Oil Co. v. Bonanza Corp., 706 F.2d 

1365 (5th Cir. 1983) (en banc); see also, Amer. Dredging Co., 81 F.3d at 130. 

213 Hellenic Inc. v. Bridgeline, 252 F.3d 391, 394 (5th Cir. 2001); Carr v. PMS 

Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999) ("When a corporation owns the vessel, 

the test is whether culpable participation or neglect of duty can be attributed to an 

officer, managing agent, 

supervisor, or other high-level employee of the corporation."). 

214 Petition of M/V Sunshine II, 808 F.2d 762, 763-64 (11th Cir. 1987); Amer. 

Dredging Co., 81 F.3d at 130; Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 

1064 (11th Cir. 1996). 

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The burden is on the vessel owner “trying to limit liability to prove lack of 

privity or knowledge. This burden is not met by simply proving a lack of actual 

knowledge, for privity and knowledge is established where the means of obtaining 

knowledge exist, or where reasonable inspection would have led to the requisite 

knowledge. Thus, while knowledge may stem from an owner's personal participation 

in the negligence, it also may exist where the owner could have and should have 

obtained the information by reasonable inquiry or inspection.” 215 

As Skanska’s negligence contributed to causing the damage at issue, the Court 

must proceed to the second step and determine whether the vessel owner had 

knowledge of or was in privity with the acts of negligence.216 

The burden is on Skanska to establish a lack of privity or knowledge.217 A 

vessel owner who fails to meet the burden of showing a lack of privity and 

knowledge is not entitled to limit liability under the Limitation of Liability Act. 

The individuals Skanska vested with discretionary authority for preparing for 

storms, including Hurricane Sally, were: 1) Thomas Fulton, Skanska’s Vice 

President of Operations and Project Director; 2) Thomas DeMarco, Skanska’s 

Project Executive and Construction Manager; and 3) Robert Rodgers, Skanska’s 

 

215 Am. Dredging Co. 81 F.3d at 130 (internal citations and quotations omitted); See 

also, Hercules, 769 F.2d at 1564. 

216 Amer. Dredging Co., 81 F.3d at 130. 

217 Amer. Dredging Co., 81 F.3d at 130; see also, Doc. No. 1223 at 19. 

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Project Manager. The knowledge and privity of these managers is attributable to 

Skanska. 

Skanska failed to prove that Messrs. Fulton, DeMarco, and Rogers lacked 

privity or knowledge. The evidence demonstrated that these individuals exerted 

broad supervisory control over the project, and had authority as to control when, and 

how, Skanska was to prepare for extreme weather events. The evidence 

demonstrated that these individuals were negligent in failing to appropriately prepare 

the project site and the barges for Hurricane Sally. Messrs. DeMarco, Fulton, and 

Rodgers shared responsibility for making the decision to transition from construction 

work to securing equipment ahead of a storm, as well as for keeping track of the 

monitoring or forecasting of weather conditions in advance of Hurricane Sally.

 Likewise, the evidence indicates that Messrs. DeMarco, Rodgers and Fulton 

were the only Skanska employees who had the responsibility for deciding whether 

and when to move construction barges to safe harbor. In addition to having 

responsibility with respect to the decision-making process of whether to implement 

the hurricane preparedness plan, Mr. Fulton also had responsibility for protecting 

the bridge and Skanska’s assets. 

 While Mr. Rodgers testified that Skanska project management, including 

himself, devised the plan implemented for Hurricane Sally where barges were sent 

to mooring piles on the east and west side of the bridge, he further testified that he 

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was not aware of any errors or mistakes made by deckhands, crew, or anyone in 

implementing that plan. Similarly, Mr. DeMarco testified that “[p]roject leadership 

is responsible for the project’s actions,” when asked if there was responsibility for 

the barges breaking free, whether that responsibility would rest with project 

leadership” and that he was not blaming any of the barges having broken free on any 

members of his crew. 

Because Skanska has failed to meet its burden to demonstrate a lack of privity 

and knowledge, its liability will not be limited to the value of the barges. 

IV. Spoliation Presumption 

On August 23, 2021, Judge Cannon found that “Skanska acted in bad faith” 

in destroying cell phone data for five of its thirteen self-selected custodians and that 

“this is a text book case of spoliation.”218 As such, Judge Cannon imposed monetary 

sanctions and the application of two adverse inferences: (1) that the information that 

was contained in the spoliated cell phone data was relevant and favorable to 

claimants, and that (2) it was not these five custodians’ conduct that caused the 

barges to go adrift. Judge Cannon noted that because this is not a jury trial, these 

inferences are subject to the trial court’s discretion and determination of whether any 

rebuttal evidence will be allowed from Skanska.219 

 

218 ECF No. 1265 at 7, 19. 

219 Id. at 25. 

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Based on the evidentiary record to date, both adverse inferences are 

appropriate and should not be subject to rebuttal by Skanska. Judge Cannon found 

that Skanska spoliated the evidence in bad faith.220 As such, an irrebutable 

presumption or appropriate. Compass Chem. Int’l, LLC v. True North Prods., LLC, 

2011 WL 13213914, at * 28 (N.D. Ga. Feb. 15, 2011) (emphasis added) (quoting 

Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. 

Supp. 2d 456, 469 (S.D.N.Y. 2010), abrogated by Chin v. Port Auth. of New York & 

New Jersey, 685 F.3d 135 (2d Cir. 2012) (“[W]hen a spoliating party has acted 

willfully or in bad faith, a jury can be instructed that certain facts are deemed 

admitted and must be accepted as true.”) 

* * * 

 Accordingly, it is ORDERED AND ADJUDGED as follows: 

 A. The relief sought in Skanska’s complaints for exoneration from or 

limitation of liability is DENIED. 

B. Because there is no cap on liability, and the value of the barges does 

not need to be equitably distributed among the damage claimants,221 the 

Court will dismiss this action and lift the injunction on litigation against 

Skanska in other forums imposed pursuant to 46 U.S.C. 30511. The 

 

220 Id. at 16, 17, 19, 21, 23. 

221 See Doc. No. 1223 at 19; Supplemental Rule F of the Supplemental Rules for 

Admiralty and Maritime Claims. 

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78 

Savings to Suitors clause preserves a “presumption in favor of jury 

trials and common law remedies in the forum of the damage claimant’s 

choice.”222 

C. The Court will schedule such hearings and trials as may be necessary 

via separate order. 

 ORDERED on this ____ day of __________ 2021. 

 _________________________________ 

 Lacey A. Collier 

 Senior United States District Judge 

 

 

222 Suzuki, 86 F.3d at 1063. 

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CERTIFICATE OF SERVICE 

 I CERTIFY that this document has been filed via CM/ECF for electronic 

distribution to all counsel of record on September 21, 2021. 

/s/ E. Samuel Geisler 

E. SAMUEL GEISLER, FBN 83817 

D. NICOLE GUNTNER, FBN 1028925 

STEPHEN H. ECHSNER, FBN 304719 

BRYAN F. AYLSTOCK, FBN 78263 

Aylstock, Witkin, Kreis & Overholtz, PLLC 

17 East Main Street, Second floor 

Pensacola, Florida 32502 

Office: (850) 202-1010 

Fax: (850) 916-7449 

sgeisler@awkolaw.com 

nguntner@awkolaw.com 

sechsner@awkolaw.com 

baylstock@awkolaw.com 

sallyteam@awkolaw.com 

/s/ Thomas F. Gonzalez 

THOMAS F. GONZALEZ, FL Bar #173878 

CHARLES T. WIGGINS, FL Bar # 48021 

Beggs & Lane, RLLP 

501 Commendencia Street 

Pensacola, Florida 32502 

Office: (850) 432-2451 

tfg@beggslane.com 

jnd@beggslane.com 

 

Case 3:20-cv-05980-LC-HTC Document 1296 Filed 09/21/21 Page 79 of 82
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/s/ Brian H. Barr 

BRIAN H. BARR, FL Bar 493041 

EMMANUELLA J. PAULOS, FL Bar 99010 

Levin Papantonio Rafferty Proctor 

Buchanan O’Brien Barr & Mougey, P.A. 

316 S. Baylen Street, Suite 600 

Pensacola, FL 32502 

Office: (850) 435-7000 

bbarr@levinlaw.com 

epaulos@levinlaw.com

Attorneys for Claimants 

/s/ Robert Kelly 

ROBERT KELLY 

SAM ESCHER 

THOMAS BRIGHT 

ROBB HYDE 

Trial Attorneys 

Torts Branch, Civil Division 

U.S. Department of Justice 

P.O. Box 14271 

Washington, DC 20044-4271 

(202) 616-4031 

Sam.W.Escher@usdoj.gov 

Thomas.J.Bright@usdoj.gov 

Robb.Hyde@usdoj.gov 

Robert.Kelly@usdoj.gov 

Attorneys for Claimant 

UNITED STATES OF AMERICA 

Case 3:20-cv-05980-LC-HTC Document 1296 Filed 09/21/21 Page 80 of 82
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The following Counsel for Claimants hereby join in the filing of these papers: 

/s/ Jeffrey Paul Gill 

JEFFREY PAUL GILL 

VERNIS & BOWLING OF NW FL PA - PENSACOLA FL 

315 S PALAFOX ST 

PENSACOLA, FL 32502 

850-433-5461 

Fax: 850-432-0166 

Email: jgill@florida-law.com 

/s/ Eric D. Stevenson 

ERIC D. STEVENSON

FL Bar #144495 

STEVENSON KLOTZ, LLP 

510 E. Zaragoza St. 

Pensacola, FL 32502 

(850) 444-0000 

(866) 251-7888 – Facsimile 

eric@stevensonklotz.com 

serviceeds@stevensonklotz.com 

/s/ T. Shane Rowe 

T. SHANE ROWE 

Florida Bar Number 279160 

EMMANUEL, SHEPPARD & CONDON 

30 South Spring Street 

Pensacola, Florida 32502 

Telephone: (850) 433-6581 

Facsimile: (850) 434-5856 

tsr@esclaw.com 

ndc@esclaw.com 

 

Case 3:20-cv-05980-LC-HTC Document 1296 Filed 09/21/21 Page 81 of 82
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/s/ Joseph A. Zarzaur, Jr. 

JOSEPH A ZARZAUR, JR. 

Florida Bar No. 96806 

joe@zarzaurlaw.com 

service@zarzaurlaw.com 

ZARZAURLAW, P.A. 

P.O. Box 12305 

Pensacola, FL 32591 

(850) 444-9299 

(850) 696-1060- Facsimile 

/s/ Daniel M. Ewert 

DANIEL M. EWERT 

Florida Bar Number 0658146 

Moore, Hill & Westmoreland, P.A. 

Maritime Place | Suite 100 

350 West Cedar Street (32502) 

Post Office Box 13290 

Pensacola, Florida 32591-3290 

Telephone: (850) 434-3541 

dewert@mhw-law.com 

kgraham@mhw-law.com 

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