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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 PENSACOLA DIVISION

IN IN RE SKANSKA USA

CIVIL SOUTHEAST INC. AND

SKANSKA USA, INC., AS

OWNERS OF THE BARGE KS ADMIRALTY RULE 9(H)

5531 PRAYING FOR

EXONERATION FROM OR Case No.: 3:20cv5980/LAC/HTC

LIMITATION OF LIABILITY 

___________________________________/

ORDER

This cause is before the court on a Motion to Dismiss (Doc. 38) filed by

several Claimants in this action and an AmendedMotion to Dismiss (Doc. 1144)

filed bySkanskaUSA Civil SoutheastInc., and SkanskaUSA, Inc. (collectively,

“Skanska”). Skanska commenced this admiralty action by filing a complaint

under the Limitation of Vessel Owner's Liability Act, 46 U.S.C. § 30501 et seq.

(the “Limitation Act”).1

1 Twenty-seven related cases have been filed in this court and have been consolidated into

the instant case. See doc. 9. 

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I. Factual Background

This maritime action stems from damage caused to the Pensacola Bay

Bridge as well as to properties along PensacolaBaywhen Hurricane Sally struck

the greater Pensacola area on or about September 16, 2020. The Pensacola Bay

Bridge provides a major transportation link between the cities of Pensacola and

Gulf Breeze, Florida, and between Escambia and Santa Rosa counties. Skanska

was under contract with the Florida Department of Transportation (“FDOT”) to

build two new spans for the Bridge while demolishing the old one. 

Because Skanska’s construction of the bridge was carried out from the

waters of Pensacola Bay, its use of a fleet of barges was essential to the

operation. Barges were used to transport workers and materials to and from the

work site, and cranes and man-lifts were stationed on the barges to aid in the

construction. Skanska used as many as 55 barges during the project.

The contract between Skanska and FDOT contained a Hurricane

Preparedness Plan detailing how Skanska should respond in the event of an

approaching tropical storm or hurricane. Doc. 38-3. The Plan outlined five

categories of weather intensity and four conditions regarding the imminence of

a storm threat, which required different courses of action depending on the

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severity and proximity of the threat. Claimants allege that, as Sally approached

the Pensacola area and strengthened from a tropical storm into a hurricane,

Skanska did not abide by the Plan, which among other things required Skanska

to remove its barges from the bridge area and relocate them in East Bay, a

separate area several miles away.

While Skanska states that it moored the barges at the construction site, 23

barges apparently broke free during the storm. Of these, five struck the bridge,

while the others were taken by the wind and/or current into other parts of the

bay area, where they either struck other structures or ran aground. At the time

the storm was approaching the area, one of the new spans of the bridge was open

to two-way traffic, while the other span and the old bridge were closed to traffic. 

The damage caused to the bridge was significant, forcing its total closure to

traffic for months thereafter. 

In response to civil lawsuits being filed against it, Skanska filed the instant

action, under the court’s admiralty or maritime jurisdiction, seeking to limit its

liability as it pertains to any damages caused by its barges. The Limitation Act

limits a vessel owner’s liability for damages arising from a maritime tort to the

value of the vessel and its freight, so long as the accident occurred without the

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owner’s privity or knowledge. See 46 U.S.C. § 30505. In answer to the

complaint, damage claims were filed by two different groups of Claimants: 1)

property owners whose properties were physically damaged by Skanska’s

vessels and 2) business owners and other entities who suffered economic

damages as a result of the bridge’s closure. 

II. Claimants’ Motion to Dismiss

A. Subject Matter Jurisdiction

In their motion, Claimants first seek dismissal of Skanska’s complaint for

lack of maritime or admiralty jurisdiction. A federal court's authority to hear

cases in admiralty flows initially from Article III, Section 2 of the Constitution,

which confers federal judicial authority over all cases under admiralty and

maritime jurisdiction. See Alderman v. Pac. N. Victor, Inc., 95 F.3d 1061, 1063

(11th Cir. 1996). Federal courts hold exclusive jurisdiction over matters

concerning limitation of liability for vessel owners under maritime law. See

Beiswenger Enterprises Corp. v. Carletta, 86 F.3d 1032, 1036–37 (11th Cir.

1996) (citing Ex Parte Green, 286 U.S. 437, 439–40, 52 S.Ct. 602, 603, 76

L.Ed. 1212 (1932) and Langnes v. Green, 282 U.S. 531, 539–40, 51 S.Ct. 243,

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246, 75 L.Ed. 520 (1931)). Such cases are adjudicated in the admiralty court,

which sits without a jury. 

Historically, admiralty tort jurisdiction was held to exist simply if the tort

occurred on navigable waters, and, with the passage of the Extension of

Admiralty Jurisdiction Act, jurisdiction was extended to cases where the injury

was caused on land by a vessel on navigable water. See Jerome B. Grubart, Inc.

v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531–32, 115 S. Ct. 1043,

1047, 130 L. Ed. 2d 1024 (1995). “The purpose of the Act was to end concern

over the sometimes confusing line between land and water, by investing

admiralty with jurisdiction over ‘all cases’ where the injury was caused by a

ship or other vessel on navigable water, even if such injury occurred on land.”

Id. at 532, 115 S. Ct. at 1047–48. 

This jurisdictional rule was progressively modified by four subsequent

decisions of the Supreme Court, the first one being Executive Jet Aviation, Inc.

v. Cleveland, 409 U.S. 249, 260, 93 S.Ct. 493, 500–501, 34 L.Ed.2d 454 (1972),

which involved the crash of an airplane into navigable waters. Admiralty

jurisdiction was denied in that case because, even though the accident disrupted

maritime activity in the affected waterway for a time, the general nature of the

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activity involved, air travel, bore no “significant relationship to traditional

maritime activity.” Id., at 268, 93 S.Ct., at 504. The Supreme Court then

decided Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73

L.Ed.2d 300 (1982), in which two noncommercial boats collided in a navigable

river. The Court found maritime jurisdiction to exist in that case because, even

though pleasure boats were involved, an accident on navigable waters carries

with it the potential for a disruptive impact on commercial navigation, with

which admiralty law is always concerned. Id. at 675, 102 S.Ct., at 2658. Third,

in Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), the

Court affirmed maritime jurisdiction where a fire was caused by an appliance

aboard a boat that was docked at a marina, and the fire spread to other docked

boats. Reasoning that themarina was located on navigable waters and a fire was

the type of accident that could potentially disrupt maritime commercial activity,

the Court also found “a ‘substantial relationship’ with ‘traditional maritime

activity’ in the kind of activity from which the incident arose, ‘the storage and

maintenance of a vessel ... on navigable waters.’” Id. at 365–367, 110 S.Ct. at

2897–2898 (as quoted in Grubart, 513 U.S. at 533–34, 115 S. Ct. at 1048).

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Finally, the Court decided Grubart, in which it summed up the

requirements for maritime jurisdiction:

[A] party seeking to invoke federal admiralty jurisdiction pursuant

to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions

both of location and of connection with maritime activity. A court

applying the location test must determine whether the tort occurred

on navigable water or whether injury suffered on land was caused

by a vessel on navigable water. The connection test raises two

issues. A court, first, must assess the general features of the type of

incident involved to determine whether the incident has a

potentially disruptive impact on maritime commerce. Second, a

court must determine whether the general character of the activity

giving rise to the incident shows a substantial relationship to

traditional maritime activity.

513 U.S. at 534, 115 S. Ct. at 1048. 

Grubart involved a project undertaken along theChicago River to replace

wooden pilings that served to keep ships from bumping into bridges that were

built over the river. To accomplish this task, the repair company used a crane

which was housed on a barge. Months after the project was finished, flooding

occurred in a freight tunnel underneath the river as well as in basements of

surrounding buildings, which was evidently caused by the company’s use of

spuds, or long metal legs, that anchored the barge to the river bottom. Grubart,

513 U.S. at 530, 115 S. Ct. at 1046–47. 

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In finding the connection test to be met, the Grubart Court defined the

general character of the activity at hand as “repair or maintenance work on a

navigable waterway performed from a vessel.” Id. at 540, 115 S. Ct. at 1051. 

The Court then found there to be “no question” that the repair activity was

substantially related to traditional maritime activity, “for barges and similar

vessels have traditionally been engaged in repair work similar to what [the

company] contracted to perform here.” Id.

In the challenge to jurisdiction that is before this court, Claimants concede

that the first prong of the jurisdictional test, the “location test” which asks

whether the tort occurred on navigable water, is met because Skanska’s barges

were put to use on the navigable waterways of Pensacola Bay as part of their

construction efforts. Claimants also do not appear to take issue with the first

part of the “connection test” for jurisdiction, which asks whether the incident in

question, here the storm and its effect on the barges, carried the potential to

disrupt maritime commerce. As stated in Grubart, the incident should be

identified “at an intermediate level of possible generality,” with reference to

“whether the incident could be seen within a class of incidents that posed more

than a fanciful risk to commercial shipping.” Id. at 538–39, 115 S. Ct. at 1051. 

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In the case before it, the Court described the incident as “damage by a vessel in

navigable water to an underwater structure,” and it readily found that the

incident was one that could potentially interfere with maritime commerce. Id.

at 539, 115 S. Ct. at 1051. Likewise, in the case at bar this court describes the

main incident as damage to the bridge and to waterfront properties caused by

Skanska’s vessels while in navigable waters. Accordingly, this part of the

“connection test” is met.

Claimants do take issue with the second part of the “connection test,”

which focuses on whether the general activity giving rise to the incident was

substantially related to traditional maritime activity. Here, “the relevant

‘activity’ is defined not by the particular circumstances of the incident, but by

the general conduct from which the incident arose.” Sisson, 497 U.S. at 365,

110 S. Ct. at 2897. The question then becomes whether that activity “on

navigable waters is so closely related to activity traditionally subject to

admiralty law that the reasons for applying special admiralty rules would apply

in the suit at hand.” Grubart, 513 U.S. at 539–40, 115 S. Ct. at 1051.

In resolving this issue, this court again turns to the particular findings in

Grubart, as it is particularly noteworthy that, as described above, the Supreme

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Court found no difficulty in concluding that the repair work done by the barges

in that case was substantially related to traditional maritime activity. In so

holding, the Court drew similarities between the facts of its case and those of

numerous other cases involving barges or other vessels performing repair work

– be it to a bridge, a pier, a wave suppressing barrier, or other such structure. 

Id. at 540, 115 S. Ct. at 1051.

2 The Court identified these repair jobs as

“traditional” maritime tasks; the instant case before this court is no different. 

Claimants argue a few points to assert that the connection test is not

satisfied, none of which are persuasive. First, they contend that Skanska’s job

activity should be identified simply as “constructing a bridge” because that is

2

 The Supreme Court cited these other cases using the following parenthetical notations:

See, e.g., Shea v. Rev–Lyn Contracting Co., 868 F.2d 515, 518 (CA1

1989) (bridge repair by crane-carrying barge); Nelson v. United

States, 639 F.2d 469, 472 (CA9 1980) (Kennedy, J.) (repair of wave

suppressor from a barge); In re New York Dock Co., 61 F.2d 777

(CA2 1932) (pile driving from crane-carrying barge in connection

with the building of a dock); In re P. Sanford Ross, Inc., 196 F. 921,

923–924 (EDNY 1912) (pile driving from crane-carrying barge close

to water's edge), rev'd on other grounds, 204 F. 248 (CA2 1913); cf.

In re The V–14813, 65 F.2d 789, 790 (CA5 1933) (“There are many

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

on navigable waters, is subject to maritime jurisdiction ... § 7.54”);

Lawrence v. Flatboat, 84 F. 200 (SD Ala.1897) (pile driving from

crane-carrying barge in connection with the erection of bulkheads),

aff'd sub nom. Southern Log Cart & Supply Co. v. Lawrence, 86 F.

907 (CA5 1898).

Id. at 540, 115 S. Ct. at 1051. 

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essentially the nature of their work. This descriptive phrase of course has the

effect of removing any reference to the fact that Skanska’s work involved the

use of barges or that the construction was performed while those barges were

situated on the navigable waterway. Claimants thus generalize Skanska’s

activity in such a manner as to remove any reference to its maritime character 

– which is unfair when the goal of the evaluation is to actually determine the

maritime nature of the endeavor.

Once again, the Grubart Court spoke directly to this type of issue in the

case before it:

Petitioners also argue that we might get a different result simply by

characterizing the “activity” in question at a different level of

generality, perhaps as “repair and maintenance,” or as “pile driving

near a bridge.” The city is, of course, correct that a tortfeasor's

activity can be described at a sufficiently high level of generality to

eliminate any hint of maritime connection, and if that were properly

done Sisson would bar assertion of admiralty jurisdiction. But to

suggest that such hypergeneralization ought to be the rule would

convert Sisson into a vehicle for eliminating admiralty jurisdiction.

Although there is inevitably some play in the joints in selecting the

right level of generality when applying the Sisson test, the

inevitable imprecision is not an excuse for whimsy. The test turns

on the comparison of traditional maritime activity to the arguably

maritime character of the tortfeasor's activity in a given case; the

comparison would merely be frustrated by eliminating the maritime

aspect of the tortfeasor's activity from consideration.

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Grubart, 513 U.S. at 541–42, 115 S. Ct. at 1052 (footnote omitted).

Accordingly, this court declines Claimants’ suggestion that Skanska’s

endeavor be characterized simply as building a bridge. Rather, the court follows

the lead established in Grubart and describes Skanska’s activity as “bridge

construction and repair performed from vessels on a navigable waterway.” This

description suffices to align it with the many cases identified by Grubart as

being substantially connected to traditional maritime activity.

3

 

Next, Claimants contend that Grubart imposes a further requirement for

admiralty jurisdiction, that repair work performed froma bargemust be done for

3 As for Skanska, it provides a description much like the court’s, but it also offers a more

particularized description of its activity: “the mooring of vessels in navigable waters.” This

description seems patterned after the holding in Sisson, where storage of a vessel at a marina on

navigable waters was the activity in question. 497 U.S. at 365, 110 S. Ct. at 2897. Though this

description seems closer to the mark than the one Claimants provide (and would undoubtedly result

in satisfaction of the connection test), the court nonetheless refrains from using it. As Sisson points

out, if courts focus too specifically on the activity that brought about the harm, “they would have to

decide to some extent the merits of the causation issue to answer the legally and analytically

antecedent jurisdictional question.” Id. In Sisson the storage of the vessel was itself not pivotal to

the causation issue; instead, activity on the boat while in storage (the operation of an onboard

washer/dryer unit) was what set off the chain reaction of damage inside the marina. By contrast, in

this case it was the very act of storing the barges, that is, the manner in which Skanska did so, that

is the fulcrum issue. Thus, using Skanska’s suggested description of activity might cause the court

to delve into the causation issue in order to resolve the jurisdictional one – which Sisson warned

against. And, to bring that abstract point into reality, it now occurs to the court, as it reflects on its

just-made statement that Skanska’s manner of storing its barges is the fulcrum issue here, that either

of the parties may not entirely agree with that statement.

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the benefit of maritime activity.

4

In support, Claimants quote from the facts of

Grubart, which indeed described repair efforts to replace pilings in order to

“keep ships from bumping into the piers [of bridges] and so protect both.” Id.

at 530; 115 S. Ct. at 1036.5 Claimants thus suggest that the test for jurisdiction

includes a requirement that the project be for the betterment of marine

transportation or some other improvement in maritime activity. However,

improvement of the waterway might have been a goal of the project under the

facts before Grubart, but that does not mean that the GrubartCourt transformed

that goal into a jurisdictional requirement. Grubart does not expressly announce

any such requirement.

Claimants also interpret the text of the descriptive phrase that fulfilled the

connection test in Grubart, “repair or maintenance work on a navigable

4 This requirement apparently would be reserved exclusively for questions of maritime

jurisdiction involving construction work performed by vessels on waterways, for Claimants draw

no particular support for their proposition from Sisson, Foremost, or anyother precedential case, and

indeed those cases involved no discernable maritime improvements. Of course, those cases and

legions of others involved navigation, or use of the waterways, where conferring a benefit onto those

waterways would ordinarily not be a conceivable objective. That said, it should be noted that

Skanska asserts that its barges were used to transport workers and materials back and forth from the

construction site, as well as to manoeuver around the site as tasks required. In this light, the crux

of the operation could well be described as use of the waterways to perform construction on a bridge. 

5 The meaning of the term “pier” as used in Grubart is not the commonly known one but

rather a more technical term having to do with structures that provide support to bridges.

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waterway,” as further indication that the work must have been designed to

improve that waterway in order to pass the test. Claimants again stretch the

point too far with this suggestion, for that descriptive statement alone is hardly

a basis for finding that Grubart made improving the waterway a requirement,

especially when there is nothing else expressed in the opinion to support it. 

Moreover, in this regard the description suffers from ambiguous meaning, for

it is entirely plausible that the Court’s use of the word “on” does not denote

work performed upon the waterway but rather work that was performed from a

location on the waterway. Absent a more express statement from the Supreme

Court on the matter, this court would be hard-pressed to graft onto the Grubart

decision a requirement that repair or construction work of this naturemust result

in some improvement to maritime activity. This court’s position is further

reinforced by the fact that, as discussed above, Grubart cited to other exemplar

cases finding maritime jurisdiction when barges and other vessels performed

repair work, and many of these cases do not even suggest that betterment of

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maritime traffic or other such improvements were involved. See supra, p. 10

and fn 2.

6

Claimants also cite to Texaco Expl. &Prod., Inc. v. AmClyde Engineered

Prod. Co., 448 F.3d 760 (5th Cir. 2006), a case where a mishap during

construction of an oil platform/tower was deemed not to be connected to

traditional maritime activity. The platformwas permanently affixed to theOuter

Continental Shelf in the Gulf of Mexico, and the mishap involved a section of

the onboard deck which, due to the failure of a crane that was operating from a

barge, fell into the Gulf while being affixed to the deck. Id. at 765–66. In

finding against jurisdiction, the court distinguished its facts from those in

Grubart as it pertained to the connection test:

The distinction between Grubart and the instant suit hinges upon

the core factors relevant to the determination of maritime law’s

application. In Grubart, the damage was inextricably tied to the

navigable waterway: the transportation and use of materials on

water were directly connected to the repair and maintenance of a

6

It bears noting that, in response to Claimants’ arguments, Skanska points out that the design

of the project was intended not only to improve vehicular traffic on the bridge but also to improve

maritime traffic underneath the bridge bywidening the aperture of the center span both verticallyand

horizontally. Claimants acknowledge this but counter that the maritime improvement is merely

secondary to the main objective of improving vehicular transportation, thus suggesting that a

maritime interest that is secondaryis insufficient. Having alreadyfound that the connection test does

not require that the activity benefit maritime interests, this court is even less inclined to find that the

benefit must be a primary objective. 

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navigable waterway. Id. Texaco's complaint, on the other hand,

arises not from traditionally maritime activities but from the

development of the resources of the Outer Continental Shelf, and

Texaco's complaint would not exist but for the construction of the

Petronius compliant tower, an activity undeniably covered by [the

Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331]. 

To the extent that maritime activities surround the construction

work underlying the complaint, any connection to maritime law is

eclipsed by the construction’s connection to the development of the

Outer Continental Shelf.

Id. at 771. 

As a Fifth Circuit opinion, Texaco is not binding upon this court, and its

otherwise persuasive value is diminished by the fact that there is little beneficial

comparison to be made with the case at bar. First, Texaco found that an

alternate source of jurisdiction under OCSLA “eclipsed” the consideration of

maritime jurisdiction, suggesting that maritime jurisdiction may not have been

absent in the case so much as subservient to OCSLA jurisdiction. Id. And, as

the court noted, Texaco’s complaint had primarily pled OCSLA jurisdiction and

only asserted maritime jurisdiction in the alternative. Id. at 770.

Second, the Texaco court seemed to interpret Grubart as requiring that the

damage be “inextricably tied to the navigable waterway,” id. at 771, which

seems a stricter measure than the “substantially related” language used in

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Grubart and the other cases. Third, Texaco emphasized the fact that its accident

occurred on a permanently fixed platformafter all the constructionmaterials had

been transported to the site in the Gulf, as opposed to Grubart (and the instant

case) where materials and workers were regularly being transported to and from

the site. See id. at 769, 771. In sum, this court finds little import from the

Texaco decision to influence its own analysis.

Finally, while Claimants assert in their motion that the barges used by

Skanska do not constitute vessels, they expressly do so only as that term is used

in relation to whether the complaint states a viable claim under the Limitation

of Liability Act, not as it might apply to the matter of jurisdiction. See doc. 38,

p8 & n.16. Nonetheless, the court notes that Skanska details the specifications

and usages of their barges in order to show that they were used as vessels during

the work project. See docs. 46 at 2–6; 46-1; 46-2. 

B. Limitation of Liability Claim

Claimants also seek dismissal of Skanska’s complaint on grounds that

Skanska cannot meet the legal standards necessary for demonstrating that it is

entitled to exoneration or limitation of liability under the Limitation Act. Here,

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Claimants essentially seek dismissal in the nature of a motion under Rule

12(b)(6) of the Federal Rules of Civil Procedure on grounds that the complaint

fails to state a claim upon which relief may be granted.

On review of a motion to dismissals for failure to state a claim, the

allegations of the complaint are taken as true and are construed in the light most

favorable to the nonmoving party. Davis v. Monroe County Bd. of Educ., 120

F.3d 1390, 1393 (11th Cir. 1997). To survive such a motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 1949 (2009) (quotation and citation omitted). A claim is

plausible on its face where sufficient factual content is presented to allow the

court to reasonably infer that the complaint states a valid claim for relief. Id.

In a proceeding under the Limitation Act, maritime torts are reviewed

under a two-step analysis. First, as is relevant here, the court determines what

acts of negligence might have caused the accident. Beiswenger Enterprises, 86

F.3d at 1036 (citing Hercules Carriers, Inc. v. Claimant State of Florida, 768

F.2d 1558, 1563–64 (11th Cir.1985)). Liability is established only where the

vessel owner’s negligent acts were “a contributory and proximate cause of the

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accident.” Hercules Carriers, 768 F.2d at 1566 (citing Board of Commissioners

of the Port of New Orleans v. M/V Farmsum, 574 F.2d 289, 297 (5th Cir.1978)). 

If the shipowner is free from any contributory fault, he is exonerated from all

liability. See American Dredging Co. v. Lambert, 81 F.3d 127, 129 (11th Cir.

1996). If negligence was at least partly what produced the accident, the court

proceeds to the second step and determines whether the vessel owner had

knowledge of or was in privity with the acts of negligence. Beiswenger

Enterprises, 86 F.3d at 1036. In this analysis, the initial burden of proof is on

the damaged claimants to establish that the vessel owner is liable, and if

successful, the burden then shifts to the vessel owner to establish a lack of

privity or knowledge. 

A vessel owner who is unsuccessful in meeting this burden is not entitled

to limit liability under the Limitation Act. But, if the vessel owner is successful

in showing a lack of privity or knowledge, he remains liable but is able to limit

that liability to the value of the vessels involved in the accident. Id. In that

event, the available funds are then equitably distributed among the damage

claimants.

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As is amply apparent from the motion and responses themselves, in order

for the court to grant relief on the merits, it would have to make what appear to

be numerous evidentiary findings. More specifically, the court would have to

make factual findings that contravene the allegations of the complaint, which

would violate the requirement under a motion to dismiss that the court take the

allegations of the complaint as true. Consequently, Claimants motion must fail

on this basis. Of course, this does not mean that the proofs set out in the motion

are without merit; it simply means that the issues in this case are too fact

intensive to resolve at this stage of the litigation. See Suzuki of Orange Park,

Inc. v. Shubert, 86 F.3d 1060, 1065–66 (11th Cir. 1996) (citing In re M/V

SUNSHINE, II, 808 F.2d 762, 765 (11th Cir. 1987)); Hercules Carriers, 768

F.2d at 1565. Such resolution should be reserved for trial, where all parties will

have the opportunity to present evidence to prove their side of the case.

As previously mentioned, Claimants assert that they do not challenge

whether Skanska’s barges constitute vessels for purposes of determining

maritime jurisdiction. However, they do make this challenge as it relates to the

Limitation Act. Claimants assert that the barges were in reality used only as

platforms in the water from which they performed construction on the bridge. 

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In support, Claimants cite Hurst v. Pilings & Structures, Inc., 896 F.2d 504

(11th Cir. 1990), an Eleventh Circuit case that found a barge not to be a vessel

because its primary purpose was to remain in a fixed position as a platform

while performing repair work, and its transportation function was “merely

incidental” to that primary purpose. Id. at 506. The court also noted that the

barge was secured as a platform at the time of the accident. Id. 

Skanska, however, provides descriptions of its barges to show that in fact

they were commonly used for transportation purposes, some on a daily basis to

and from the worksite, and others to move around the bridge area as a necessary

part of the construction operation. Furthermore, Skanska points out that,

subsequent to the Hurst decision, the Supreme Court decided Stewart v. Dutra

Const. Co., which provided that, to qualify as a vessel, a barge need not be

primarily used for transportation and generally need only be capable of being

used as a means of transportation, whether it was being used in that capacity at

the time of the accident or not. 543 U.S. 481, 495–96, 125 S. Ct. 1118,

1127-28, 160 L. Ed. 2d 932 (2005). The Court indicated that a barge might lose

its status as a vessel only if rendered incapable of transportation, such as by

being withdrawn from the water, for an extended duration of time. Id. at 496,

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125 S. Ct. at 1128. Thus, Stewart effectively overrode much of the legal

standards articulated in the Hurst decision.

7 Accordingly, the court follows

Stewart and rejects Claimants’ contention that Skanska’s barges fail to qualify

as vessels under the Limitation Act.

III. Skanska’s Motion to Dismiss

Skanska seeks dismissal of all claims filed against it that are based on

economic losses suffered as a result of the closure of the bridge. This motion

would most directly affect those business owners, identified as “bridge

7

It should be noted that the Hurst case was brought under the Jones Act, 46 U.S.C. § 30104

(formerly 46 U.S.C. § 688), which provides a cause of action for seamen who are injured during the

course of maritime employment. At the time of the Hurst decision, the Jones Act required that the

injury occur while the seaman was on a “vessel in navigation.” Hurst, 896 F.2d at 505 (quoting 46

U.S.C. § 688 (West Supp. 1989). Although this statutory term would appear to require heightened

navigational qualities of a given craft, in Stewart, also a Jones Act case, the Supreme Court appeared

to dispel the notion that the “in navigation” language raised the bar on what qualifies as a vessel. 

See 543 U.S. at 496–97, 125 S. Ct. at 1128–29. Similarly, the additional language might indicate

a requirement that the craft be active on the waterway at the time of the injury, but that notion was

also defeated by Stewart. 

While Hurst itself did not emphasize the “in navigation” language in its opinion, it cited to

three precedential opinions from the former Fifth Circuit, all of which made particular note of the

term in rendering their decisions which formed the basis of the standards set out in Hurst. See

Watkins v. Pentzien, Inc., 660 F.2d 604 (5th Cir. 1981); Leonard v. Exxon Corp., 581 F.2d 522, 524

(5th Cir. 1978); Cook v. Belden Concrete Prod., Inc., 472 F.2d 999, 1002 (5th Cir. 1973). It

therefore appears to this court that Hurst relied on old statutory language that is no longer present

in the current version of the statute, see 46 U.S.C. § 30104, and in doing so appeared to have

imposed stricter criteria for what constitutes a vessel – criteria which the Supreme Court in Stewart

would subsequently disavow. Thus, as for the case at bar where no Jones Act claims are involved,

Claimants’ reliance on Hurst is all the more unavailing.

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claimants” in this litigation, whose prayers for damages derive exclusively from

loss of business experienced on account of the bridge’s closure to vehicular

traffic.

In brief, Skanska asserts that, pursuant to the Supreme Court decision in

Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed.

290 (1927), a claim for economic loss that is not associated with any physical

damage to property in which the claimant has a proprietary interest is barred

under maritime law. Though the rule in Robins Dry Dock specifically applies

to maritime cases, it is a species of what is commonly identified as the

“economic loss rule.” As Claimants assert, the economic loss rule under Florida

law provides for different legal standards than under federal maritime law.

In response to the motion, Claimants request that the court defer ruling on

the motion until after the matter of liability under the Limitation Act, the core

issue of this litigation, is resolved. The court agrees that this is the appropriate

course under the circumstances. The court views the economic loss rule as a

matter of damages, to be determined after its ruling on liability, and were

Skanska not to succeed in its claim for limitation of liability, there would be no

cause for the court to determine whether Skanska could avail itself of the

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economic loss rule. Seen this way, to rule on the motion before resolving the

limitation of liability matter would be to render a decision that is prospective in

nature. 

The court has the general discretion to determine the most efficient

manner in which it resolves the pending matters in this case. See Newton v.

Shipman, 718 F.2d 959, 963–64 (9th Cir. 1983); but Cf. Lewis v. Lewis &Clark

Marine, Inc., 531 U.S. 438, 448, 121 S. Ct. 993, 1001, 148 L. Ed. 2d 931 (2001)

(“The court determines whether the vessel owner is liable and whether the

owner may limit liability. The court then determines the validity of the claims,

and if liability is limited, distributes the limited fund among the claimants.”)

(emphasis added). And, by choosing to defer ruling on the motion, the court

better preserves the rights of Claimants under the “saving to suitors” clause, 28

U.S.C. § 1333, to choose whichever common law forum would be available to

them should Skanska be unable to limit its liability in this federal maritime

forum. See Beiswenger Enterprises, 86 F.3d at 1037; Lake Tankers Corp. v.

Henn, 354 U.S. 147, 152, 77 S.Ct. 1269, 1272, 1 L.Ed.2d 1246, 1251 (1957). 

Thus, while the court recognizes Skanska’s interest in obtaining a determination

as to whether the bridge claimants have a cognizable claim for any damage

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award that might be forthcoming, that interest is outweighed, as a matter of

sequencing, by the considerations discussed above. 

Accordingly, it is ORDERED:

1. Claimants’ Motion to Dismiss (Doc. 38, 43) is DENIED.

2. Ruling on Skanska’s Amended Motion to Dismiss (Doc. 1144) is

DEFERRED as provided in this Order.

ORDERED on this 28th day of July, 2021.

 s/L.A. Collier 

Lacey A. Collier

Senior United States District Judge

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