In Skanska USA there is a cautionary tale for vessels owners who may believe that “force majeure” is a defense to breakaways that occur during hurricanes.
There, a Florida federal court denied a vessel owner’s petition for limitation of liability for claims arising out of damage caused when 27 of its barges broke free from their moorings during Hurricane Sally in September 2020 and struck the Pensacola Bay Bridge, causing extensive damage.
The court found the vessel owner was negligent for failing to properly secure its vessels in preparation for the storm. The court also found that management had knowledge of these negligent acts, which knowledge prevented the vessel owner from limiting its liability.
A vessel owner is entitled to exoneration from, or limitation of, its liability for claims caused by its vessels if the vessel owner’s negligence was not a direct cause of the accident, or, if the vessel owner or a managing agent had no knowledge of the negligent acts that caused the accident.
Because this case involved an allision, the court applied the “Louisiana Rule,” under which the moving vessel must prove either that the vessel acted with reasonable care, or, that the allision was an unavoidable accident.
A vessel owner acts with reasonable care when it uses all reasonable means and takes proper action to guard against, prevent, or mitigate the dangers posed by the hurricane. The court rejected the argument of “vis major” which applies when damages would have occurred no matter what preventative measures were taken.
To determine if the vessel owner acted with reasonable care, the court first considered different weather information available to the vessel owner. The court also considered whether the executive management knew or should have known of the possibility of severe weather while executing the vessel owner’s Hurricane Preparedness Work Plan, which had designated areas for demobilization of the barges. Finally, the court analyzed the availability of space and resources to demobilize and moor the barges in protected waters, as specified under the plan.
The pilings near the construction site where the vessel owner decided to moor the barges were not included in the Plan as a possible place of refuge during a storm. The court held that the designated areas of refuge in the Plan were far superior locations for the barges, and the failure to utilize them, absent any other excuse, constituted negligence.
Cindy Muller is a maritime partner in Jones Walker’s Houston office. She can be reached at 713-437-1859 or [email protected].
