Admiralty
| Publication year | 2022 |
Admiralty
John P. Kavanagh Jr.
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The cases discussed herein represent decisions from the United States Court of Appeals for the Eleventh Circuit, as well as district courts within the Circuit, issued in 2021. While not an all-inclusive list of maritime decisions during that timeframe, the Author identifies and provides summaries of key rulings of interest to the maritime practitioner.1
Two related companies, Skanska USA Civil Southeast, Inc. and Skanska USA, Inc. (collectively Skanska), were under contract with the Florida Department of Transportation to build new spans for the Pensacola Bay Bridge, a "major transportation link between the cities of Pensacola and Gulf Breeze, and between Escambia and Santa Rosa counties."2 Skanska's work required the use of multiple barges "to transport workers and materials to and from the work site."3 In fact, there were fifty-five barges on site in September of 2020.4
Hurricane Sally made landfall on September 16, 2020, as a Category 2 storm near Gulf Shores, Alabama.5 This hurricane was approximately thirty-five miles west of Pensacola Bay Bridge. Twenty-seven of the fifty-five Skanska barges broke loose, causing significant damage to the
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bridge and other properties in and around the area.6 Skanska filed an admiralty complaint under the Limitation of Vessel Owners Liability Act in the United States District Court for the Northern District of Florida.7
In re Skanska8 is an interesting case because it contains a thorough discussion of a limitation claim in the context of anticipated heavy weather, with the interplay of presumed fault under the Lousiana Rule.9 Generally, the Lousiana Presumption arises when a moving vessel strikes a stationary object; the moving vessel is presumed at fault.10 This evidentiary device shifts the burden of persuasion to the offending vessel.11 To overcome its presumed fault, the vessel's interests must demonstrate that the allision was the fault of the stationary object, that the offending vessel acted with reasonable care under the circumstances, or that the allision was an unavoidable accident.12 Here, Skanska essentially argued that (1) it was caught unaware by the arrival of Hurricane Sally, given the forecast track leading up to the storm's arrival; (2) efforts to secure the barges ahead of the storm were reasonable; and (3) Hurricane Sally was a vis major, an unexpected and unforeseeable risk against which all reasonable precautions would not have prevented the loss.13
The court walked through the National Hurricane Center's (NHC) warnings for the five days before Hurricane Sally's landfall on September 16, 2020.14 While less than certain, it was clear that the Pensacola area was at risk on (at least) September 11, 2020:
In fact, as is shown by the entirety of the NHC advisories from Friday afternoon [September 11, 2020] to Wednesday morning [September 16, 2020] when Hurricane Sally made landfall, the Pensacola Bay area was at all times either in the cone of the storm's
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predicted path or was under a watch or warning for tropical storm winds or greater.15
With respect to the second argument, security of barges, the court pointed out that Skanska actually had a detailed "Hurricane Preparedness Work Plan" (Hurricane Plan).16 The plan called for Skanska to move its barges to a designated location (Butcherpen Cove or Bayou Chico) once an approaching storm posed a sufficient threat.17 Rather than implement the plan and move the barges to the designated area(s), Skanska elected to secure them to pilings near the bridge.18 This turned out to be a disastrous decision, but the court pointed out that, "while failure to abide by the Plan might violate the terms of that contract [the Florida DOT contract], it does not of its own force establish negligent conduct, which is the concern of this litigation."19
Going past the four corners of the contract, however, the court concluded that the safe harbor locations identified therein would have provided "substantially more storm protection than the pilings next to the bridge that Skanska used."20 After a thorough analysis, the court concluded that Skanska's decision to use piling stations near the worksite was negligent.21
Skanska's final argument to exculpate itself from liability was the force majeure or vis major nature of Hurricane Sally.22 Skanska claimed the presumption of fault under the Louisiana Rule was rebutted because, despite all appropriate and reasonable efforts, Hurricane Sally was "an inevitable force that caused the breakaway of its barges."23 The court again rejected this argument, noting that Skanska's negligence in failing to take reasonable precautions prevented it from successfully utilizing the vis major defense.24
Finally, having concluded that negligence was demonstrated, Skanska could not establish any lack of privity or knowledge with respect to the acts or omissions constituting negligence.25 This is the second step of a limitation action; that is, to determine whether or not
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Skanska was able to limit its liability to the value of the vessels involved.26 "Here, Skanska must be able to demonstrate that it had no knowledge of the acts of negligence or was not in privity with them."27 Skanska could not carry its burden of proof with respect to this charge as the negligence precipitating the loss "sprung wholly from executive decision-making that resulted in the failure to take reasonable measures to protect its barges from the impending storm."28 Skanska was unable to establish the necessary lack of privity or knowledge and was therefore unable to limit its liability to the value of the barges.29
At the conclusion of its order, the district court dismissed the limitation complaint and lifted the injunction against the various state court actions related to the barge breakaway.30 The limitation claimants were thus able to return to their original choice of forum and pursue claims arising out of the September 16, 2020 maritime casualty.31
The Eleventh Circuit reiterated that a cruise ship passenger need not show the vessel owner had actual or constructive knowledge of a risk-creating condition for claims premised on vicarious liability or employee negligence.32 A cruise ship passenger, Joann Yusko, was injured during a "Dancing with the Stars" activity aboard the Norwegian Cruise Line (NCL) vessel, Norwegian Gem. For the activity, Yusko was paired with a crewmember and professional dancer, Michael Kaskie. During their performance, Kaskie let go of Yusko, and the sixty-four-year-old lady fell and struck her head, suffering a traumatic brain injury resulting from the fall.33
A suit was filed against the vessel owner, NCL (Bahamas) Ltd.34 However, the district court granted summary judgment for the cruise line, holding that Yusko failed to demonstrate the ship owner had actual or constructive knowledge of the risk-creating condition that
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caused the passenger's injury, namely, "Kaskie's allegedly negligent dancing."35
The Eleventh Circuit reversed, holding that maritime negligence claims preceding on theories of vicarious liability—as opposed to claims involving direct liability against a ship owner—do not require a showing that the vessel owner was aware of the hazard.36 The court explained that NCL erroneously conflated "the very different concepts of direct and vicarious liability."37 Maritime law requires a vessel owner to exercise the duty of ordinary care to prevent injury to passengers.38 The direct breach of this duty by the vessel owner results in liability for injuries caused to passengers.39 Pursuant to the doctrine of vicarious liability, however, the "innocent" ship owner can still be held liable for the negligence of its employees: "When the tortfeasor is an employee, the principle of vicarious liability allows 'an otherwise non-faulty employer' to be held liable 'for the negligent acts of that employee acting within the scope of employment.'"40
The Yusko decision would likely open up a host of issues, allowing claims to advance via allegations of vicarious liability or employee negligence absent the requirements of actual or constructive notice of a shipboard hazard. After all, is every hazardous condition not ultimately traced back to an act or omission of an employee? The court in Yusko acknowledged this conundrum but was unpersuaded by the argument.41
Interestingly, in a decision issued at the end of 2021, the Southern District of Florida squarely addressed this issue.42 The plaintiff, Sherri Britt, was a passenger aboard the Carnival Glory when she slipped and fell on an exterior staircase.43 She filed a lawsuit against Carnival that contained five counts, including an allegation of "negligence against Defendant for the acts of its employees based on vicarious liability
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(Count V)."44 Carnival moved to dismiss Count V for failure to state a claim upon which relief could be granted.45
Citing Yusko, the district court agreed, reasoning that the plaintiff essentially sought to hold Carnival responsible for its employees' "negligent mopping."46 "At bottom, the employees' negligent mopping allegedly created a dangerous condition on the premises of the ship . . . . Therefore, the employees' negligent mopping is in fact a claim for negligent maintenance of Defendant's premises and negligent failure to warn."47 The district court rejected a broad reading of Yusko as permitting claims for negligent maintenance or failure to warn under the guise of a vicarious liability claim.48 "Thus, Yusko contemplates, and this Court agrees, that claims stemming from the negligent maintenance of a ship's premises or failure to warn will be made out under a direct liability theory, which requires notice."49
The Eleventh Circuit addressed the enforceability of a forum selection clause in a cruise ticket...
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