3

CLAIM DETERMINATION 

Claim Number: A17013-0001 

Claimant: Safe Harbor Pollution Insurance and Interested Underwriters 

Type of Claimant: RP

Type of Claim: Sole Cause Act of God/Limit of Liability

Claim Manager: 

Amount Requested: $1,929,684.17 

Action Taken: Denied

EXECUTIVE SUMMARY:

On April 6, 2017, the deck barge VENGEANCE sank and discharged oil into the San 

Francisco Bay, a navigable waterway of the United States. U.S. Coast Guard Sector San 

Francisco (Sector San Francisco) notified the National Response Center (NRC) of the incident.1 

Unable to immediately contact the responsible party, Sector San Francisco personnel accessed 

the Oil Spill Liability Trust Fund (OSLTF) and hired NRC Environmental Services (NRCES) to 

conduct pollution response operations. Vortex Marine Construction, Inc. (Vortex) the owner and 

operator of the VENGEANCE, arrived on-scene shortly thereafter and assumed responsibility for 

the incident. Vortex hired Global Diving and Salvage, Inc. for dive operations and Patriot 

Environmental Services to conduct pollution response activities.

2

 Sector San Francisco deemed 

the salvage operations and pollution removal activities complete on July 19, 2017.3 After 

incurring all of the pollution removal costs associated with the response, Vortex assigned all 

rights to Safe Harbor Pollution Insurance (SHPI) and interested underwriters.4 SHPI submitted 

an act of God third party defense claim, and in the alternative, an entitlement to limited liability 

claim to the National Pollution Funds Center (NPFC) for $1,929,684.17.5 The NPFC has 

thoroughly reviewed all documentation submitted with the claim, analyzed the applicable law 

and regulations, and concluded that Claimants have not demonstrated an entitlement to an act of 

God defense or an entitlement to limited liability for their uncompensated removal costs and 

damages under the Oil Pollution Act (OPA) that exceed their limit of liability.6

 

I. BACKGROUND, WEATHER, INCIDENT, RESPONSIBLE PARTY AND RECOVERY 

OPERATIONS: 

Background 

On March 14, 2017, Sector San Francisco issued a waiver to Vortex to temporarily anchor 

over the Bay Area Rapid Transit Tube (BART) to conduct routine corrosion preventative 

 

1 National Response Center Report #1175062, reported on April 7, 2017.

2 Coast Guard Pollution Report Message (CG POLREP) 1 DTG R121957Z Apr 17.

3 CG POLREP 6 DTG R192010Z Jul 17.

4 Letter to the NPFC provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance executing assignment of Vortex claim for exoneration/limitation of liability under the OPA to Safe Harbor 

Pollution Insurance and interested underwriters Starr Indemnity and Liability Company, Argonaut Insurance 

Company and Berkshire Hathaway Specialty Insurance in the amount of $1,802,762.85 dated February 22, 2019. 

As such, the terms “claimant” or “claimants” herein refers to Vortex or SHPI, et al., as applicable. 5 Nicoletti Hornig & Sweeney - on behalf of SHPI - claim submission dated October 15, 2018, page 2. 6 33 U.S.C. § 2703(a) and 33 U.S.C. § 2704(a).
4

maintenance on the tube. The waiver authorized Vortex to anchor and operate over the BART 

from March 13, 2017, until April 30, 2017.7

The deck barge VENGEANCE, owned and operated by Vortex, arrived at its anchoring 

location over the BART on March 29, 2017. The VENGEANCE was equipped with a crane that 

was permanently affixed with a roller ring and was tended by the tug LAGUNA throughout the 

workday. The VENGEANCE was anchored from each corner of the barge with four (4) 10,000-

pound high-performance delta flipper type anchors to prevent drift.8

Weather

On April 6, 2017, the National Weather Service issued a Small Craft Advisory (SCA) to 

mariners in the San Francisco Bay for areas south of the Bay Bridge in six (6) hour intervals. 

The SCA warned mariners to expect winds that evening ranging from 20 to 30 knots with 

occasional gusts up to 45 knots; and subsequent gale force winds gusting from 35 to 40 knots.9,10

Incident 

At 0341 on April 7, 2017, Sector San Francisco notified the NRC of a sunken barge in the 

San Francisco Bay just east of Yerba Buena Island, CA, with a potential to discharge 

approximately 4,000 gallons of diesel fuel and 300 gallons of hydraulic oil.11 The sunken barge 

was later identified as the VENGEANCE, which contained approximately 3,000 gallons of diesel 

fuel and 300 gallons of hydraulic oil. The barge sank while anchored over the BART and began 

to discharge diesel fuel from an open fuel vent into the San Francisco Bay, a navigable waterway 

of the United States.12 The barge was unmanned at the time of the sinking.13

 

Responsible Party 

 The VENGEANCE was owned and operated by Vortex. Vortex is the designated responsible 

party (RP) for the oil spill incident.14 

Safe Harbor Pollution Insurance (SHPI) and interested underwriters Starr Indemnity and 

Liability Company, Argonaut Insurance Company and Berkshire Hathaway Specialty Insurance 

 

7 CG Sector San Francisco anchorage waiver letter issued to Vortex Marine Construction, Inc. dated March 14, 

2017.

8 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated January 15, 2019, pages 2-3. 9 PowerPoint of Mr , Senior Meteorologist, Weather Flow, Inc. provided to the NPFC via email on 

February 22, 2019.

10 Thresholds governing the issuance of Small Craft Advisories are specific to geographic areas. For areas on the 

west coast, including California, Small Craft Advisories are issued for sustained winds of 21 to 33 knots, and/or 

wave heights exceeding 10 feet (or wave steepness values exceeding local thresholds). Gale Force warnings are 

issued for sustained surface winds, or frequent gusts, in the range of 34 knots (39 mph) to 47 knots (54 mph). 

https://www nws.noaa.gov/os/marine/faq (last visited April 22, 2019). 11 National Response Center Report #1175062, reported on April 7, 2017. 12 CG POLREP 1 DTG R121957Z Apr 17. 13 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated January 15, 2019, page 8.

14 CG National Vessel Documentation Center Certificate of Documentation issued to Vortex Marine Construction,

Inc. dated December 30, 2016 and valid at the time of the incident. 
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(Claimants) provided oil pollution insurance to Vortex.15 Having incurred the pollution removal 

costs associated with the response and having been assigned the rights of Vortex, Claimants are 

pursuing an act of God third party defense and in the alternative, entitlement to a limited liability 

claim with the NPFC.

Recovery Operations

On April 7, 2017, Sector San Francisco accessed the OSLTF to hire NRCES while 

attempting to contact the owner of the VENGEANCE.16 NRCES responded and deployed 3,000 

feet of containment boom around the sunken barge. Shortly thereafter, Vortex personnel arrived 

on-scene and assumed responsibility for the incident. Vortex hired Global Diving and Salvage, 

Inc. (Global) for dive operations and Patriot Environmental Services (Patriot) to relieve NRCES 

of its pollution removal responsibilities.17 Global personnel dove on the sunken barge, 

successfully plugged the fuel vent that had been actively discharging diesel fuel into San 

Francisco Bay,18 and determined that the vessel was laying on its starboard beam.19 Coast Guard 

Vessel Traffic Service (VTS) San Francisco confirmed that the VENGEANCE had not sunk in 

the navigational channel. A safety zone with a 350-meter radius was established around the 

sunken barge to prevent vessel traffic from impeding the pollution removal activities and salvage 

operations. A Unified Command was established that included Sector San Francisco, California 

Department of Fish & Wildlife, San Francisco Department of Environmental Management, 

BART, and Vortex to oversee the pollution removal activities and salvage operations.20

Over the next several days, sonar surveys revealed that the VENGEANCE had settled 

approximately five feet into the mud and had heeled approximately 130 degrees on her starboard 

side in a partially inverted position and was resting on the crane house. For the purposes of salvage, 

Global determined that the barge would have to be par buckled (rolled) onto its hull and drafted a 

plan to par buckle the barge which was submitted to the Unified Command on April 17, 2017.21 

On April 25, 2017, the par buckling plan was approved and the VENGEANCE was successfully 

par buckled.22 The par buckling left the VENGEANCE with a 28-degree heel to starboard and 

resulted in the crane and boom becoming detached from the barge.23

On June 12, 2017, Global submitted a salvage plan for the recovery of the barge and crane to 

the Unified Command. The plan identified structural weaknesses within the VENGEANCE, 

specifically that the barge had been constructed without any longitudinal frames and would 

therefore not have sufficient structural integrity to be refloated using air as the mechanism to 

 

15 Safe Harbor Pollution Insurance policy V-14530-16 issued to Vortex Marine Construction, Inc. dated October 1, 

2016. The per occurrence limit as set forth in the policy for an oil spill incident was $5,000,000.00. 16 Authorization to Proceed issued to NRC Environmental Services, Inc. from Sector San Francisco dated April 7, 

2017. U.S. Coast Guard Shore Infrastructure Logistics Center Order for Supplies or Services issued to NRC 

Environmental Services, Inc. dated April 7, 2017. 17 CG POLREP 1 DTG R121957Z Apr 17. 18 Email from , Global Diving to Sector San Francisco Incident Management Division dated April 7, 

2017, provided by Claimant on January 15, 2019, as Exhibit B, Part 1, page 6. 19 Email from representing Hull/P&I interests to Edward Travers & Associates dated April 10, 2017, 

provided by Claimant on January 15, 2019, as Exhibit B, Part 1, page 19.

20 CG POLREP 1 DTG R121957Z Apr 17. 21 Global Diving Salvage Plan – Par buckling Phase dated April 17, 2017, pages 3 and 5. 22 CG POLREP 3 DTG R121922Z May 17. 23 Global Diving Salvage Plan – Barge & Crane Recovery dated June 12, 2017, page 3.
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restore buoyancy. As such, Global recommended removing the diesel fuel from the barge by 

installing a pollution dome over the fill pipe and once lightered, severing the barge into two 

pieces.24 The salvage plan was approved and approximately 2,700 gallons of diesel fuel were 

successfully lightered from the diesel fuel tank on-board the VENGEANCE. Upon completion of 

the lightering, Global personnel successfully sectioned the barge in preparation of final salvage.25 

On July 11, 2017, the crane from the VENGEANCE was successfully salvaged and placed into 

a secondary containment upon a flat deck barge. However, during the lift, diesel fuel and hydraulic 

oil discharged from the crane house. Patriot personnel responded and were able to collect 

approximately 250 gallons of diesel fuel into over pack drums and recovered another 300-350 

gallons of diesel fuel and oil with the use of the sorbent material. Once the discharge was 

controlled and the crane was successfully lowered and secured to the deck barge, the aft section of 

the VENGEANCE was raised to the surface and Global personnel dewatered the spaces on the 

barge. Once the spaces on the aft section of the barge were dewatered, the aft section was placed 

upon the deck barge and secured.26

On July 12, 2017, attempts to salvage the forward section of the barge were unsuccessful as 

there was movement in the starboard rigging during the lift. 

On July 14, 2017, Global revised their salvage plan and proposed the installation of two 42’ 

steel I beams under the deck of the barge running fore and aft with additional lifting chains attached 

to provide better support to the deck. The plan also proposed Global personnel board the barge 

with its decks awash and dewater the spaces of the barge with the use of 3” trash pumps. Once 

dewatered, the barge would then be placed upon the deck barge and secured for transit.27 

On July 15, 2017, the unified command approved the revised salvage plan. Global personnel 

worked throughout the day to cut large holes into bulkheads and through the deck of the barge to 

accommodate the 42’ steel I beams being installed fore to aft. Over the next several days, 

strengthening modifications to the barge continued and the forward section of the VENGEANCE 

was successfully lifted, dewatered with the use of 3” trash pumps28 and secured to the deck barge 

on July 18, 2017.29 

On July 19, 2017, Sector San Francisco considered all equipment demobilized and operations 

associated with the salvage of the VENGEANCE complete.30

II. DISCUSSION:

Under the OPA, a responsible party is liable for all removal costs and damages resulting from 

either an oil discharge or a substantial threat of oil discharge into a navigable water of the United 

 

24 Global Diving Salvage Plan – Barge & Crane Recovery dated June 12, 2017, pages 4-6. 25 CG POLREP 6 and Final DTG R192010Z Jul 17. 26 CG POLREP 6 and Final DTG R192010Z Jul 17. 27 Global Diving Salvage Plan – Barge & Crane Recovery Rev 3 dated July 14, 2017, pages 3. 28 Summary of conversation between Mr. , Salvage Master Global Diving and Mr. , 

NPFC dated February 8, 2019.

29 CG POLREP 6 and Final DTG R192010Z Jul 17. 30 CG POLREP 6 and Final DTG R192010Z Jul 17.
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States.31 Further, a responsible party’s liability is strict, joint, and several.32 In the case of a 

vessel, the responsible party includes any person owning, operating or demise chartering the 

vessel.33 When enacting OPA, “Congress explicitly recognized that the existing federal and 

states laws provided inadequate cleanup and damage remedies, required large taxpayer subsidies 

for costly cleanup activities and presented substantial burdens to victim’s recoveries such as... 

burdens of proof unfairly favoring those responsible for the spills.”34 OPA was intended to cure 

these deficiencies in the law. 

 Notwithstanding, under limited circumstances the OSLTF may reimburse a responsible party 

for its uncompensated removal costs and damages. Under the plain meaning of 33 U.S.C. § 

2708(a), a responsible party must demonstrate that a defense applies before the OSLTF can 

reimburse removal costs or damages. Consistent with this statutory requirement, the OSLTF’s 

claims regulations also require all claimants to carry the burden of proving an entitlement to 

reimbursement. 35 Therefore, as with any other claimant, a responsible party must prove an 

entitlement under the OPA before receiving reimbursement from the OSLTF. If a responsible 

party fails to introduce evidence in support of any of the elements necessary to establish 

entitlement to compensation from the OSLTF, or fails to establish each of the elements, the 

NPFC must deny the claim.36 

 

The Claimants have demonstrated that they incurred the pollution removal costs associated 

with this response and were properly assigned the rights of the RP and have submitted a claim to 

the NPFC asserting an act of God third party defense to liability under section 2703 of this title 

and in the alternative, an entitlement to limitation of liability under section 2704 of this title. As 

such, the Claimant’s third party defense and limitation to liability are evaluated below. 

III. DETERMINATION PROCESS:

 

31 33 U.S.C. § 2702(a). 32 H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 33 33 U.S.C. § 2701(32)(A). 34 Apex Oil Co., Inc. v United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002)(citing S. Rep. No. 101-94 (1989), 

reprinted in 1990 U.S.C.C.A.N. 722). 35 See, 33 CFR 136.105(a)(“The claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim.”); and 33 CFR 

136.105(e)(6)(Requiring that each claim include evidence to support the claim).

36 OPA’s legislative history makes it clear that a responsible party has the burden of showing an entitlement to 

OSLTF compensation under 33 U.S.C. § 2708. As explained in the House Conference Report on OPA:

Section 1008 of the House bill allows a responsible party..., or a guarantor for that 

responsible party... to assert a claim for removal costs and damages only if the responsible 

party... can show that the responsible party...has a defense to liability, or is entitled to a 

limitation of liability. 

 

H.R. Conf. Rep. 101-653 at 110 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 788 (emphasis added). See also, Apex, 

208 F.Supp.2d 642 (claimant failed to carry its burden of proof with respect to the “act of God” defense); 

International Marine Carriers v. OSLTF, 903 F.Supp. 1097 (S.D. Tex. 1994) (claimant must show elements of a 

third party defense by a preponderance of the evidence); Water Quality Insurance Syndicate v. United States, 632 

F.Supp.2d 108, 113-114 (D. Mass. 2009) (holding that a responsible party has the burden of showing an entitlement 

to OSLTF compensation under 33 U.S.C. § 2708).
8

The NPFC utilizes an informal process when adjudicating claims against the OSLTF.37 As a 

result, 5 U.S.C. § 555 (e) requires the NPFC to provide a brief statement explaining its 

determinations. This determination is issued to satisfy that requirement for the Claimant’s claim 

against the OSLTF.

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim. The NPFC is not bound by the findings of fact, opinions, or conclusions 

reached by other entities.38 If there is conflicting evidence in the record, the NPFC makes a 

determination as to what evidence is more credible or deserves greater weight, and finds facts 

and makes its determination based on the preponderance of the credible evidence.

The administrative record in this case unequivocally resolves several important issues. 

Specifically, the San Francisco Bay was a navigable waterway of the United States and the oil 

spill at issue here was an incident under the OPA. In addition, Vortex was the owner and 

operator of the deck barge VENGEANCE, and therefore the responsible party for this incident 

and the claim submitted by Safe Harbor Pollution Insurance, with interested underwriters was 

submitted to the NPFC on November 1, 2018, and is therefore timely.39 The remaining issues 

are discussed below. 

A. Act of God defense to liability

 OPA provides a responsible party limited defenses to liability. The statute, in pertinent part, 

provides:40

A responsible party is not liable for removal costs or damages under OPA section 

2702 of this title if the responsible party establishes, by a preponderance of the 

evidence, that the discharge or substantial threat of a discharge of oil and the 

resulting damages or removal costs were caused solely by (1) an act of God.41

In order to successfully defend against liability, the Claimants must demonstrate that the 

VENGEANCE discharge was caused solely by an “act of God”. The claimant has failed to do so. 

This oil spill was not “caused solely by” an “act of God” as that term is defined in OPA. The 

seminal case, Apex Oil Company, Inc. v. United States, 208 F.Supp.2d 642 (E.D. La. 2002), 

analyzed what a claimant must show in order to be entitled to an act of God defense under the 

 

37 33 CFR Part 136. 38 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them). 

The NPFC notes that it did not rely on the Marine Casualty Investigation Report for this determination. (While the 

NPFC respectfully disagrees with the dicta in Natures Way, LLC v. U.S., 904 F.3d. 416, 421 n.7 (5th Cir. 2018), it 

has opted to follow it in this determination). 

39 SHPI claim submission dated October 15, 2018, page 1. 40 33 U.S.C. § 2703(a) (emphasis added). 41 “Act of God” means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, 

inevitable, and irresistible character the effects of which could not have been prevented or avoided by the exercise of 

due care or foresight. 33 U.S.C. 2701(1).
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OPA. In that case, the court construed the defense in the context of similar defenses in the 

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 

U.S.C. § 9607, and the Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. §1321. The 

court reasoned that an act of God defense under OPA, CERCLA, or the FWPCA is much harder 

to prove than a common law act of God defense. The court concluded that spring floods and 

their associated strong currents did not amount to an OPA act of God defense. Under the facts of 

that case, the conditions were anticipated and could have been avoided if the crew had exercised 

due care. Also, the floods and currents were not the sole cause of the oil spill. The court 

explained: 

The case at bar indisputably involves Apex’s undertaking the task of towing seven 

barges, three of which were laden with slurry oil, up the Mississippi River toward 

their final destination in Chicago, knowing the flood stage condition of the river, 

knowing that strong fast currents were precipitating damage to navigational aids, 

knowing that effects were migrating down river, after being duly advised that 

caution should be exercised in light of the considerably perilous conditions, to ship 

three barges laden with slurry oil together with four empties northbound, but it did 

so with a tug which did not have an engine powerful enough to press onward into 

the increasing swift and powerful current on the river rife with tortuous bends. 

.... 

The conditions of the river which occasioned the discharge of slurry oil at issue in 

this case were both anticipated and predicted. The most apparent cause was the 

underpowered Apex tug, which was stalled by even the less powerful current 

encountered transiting an auxiliary span of Highway 80, Vicksburg Bridge on the 

LMR. The second most apparent cause is that, in the face of the intensifying current 

in close proximity to the bridge and just below a sharp bend in the river, the tug 

captain chose to negotiate the bridge with his tug and tow, albeit through an 

auxiliary span where he believed the current to be of a lesser force or magnitude. 

Id. at 656-57.

Claimants assert an entitlement to an act of God defense under the theory that the 

VENGEANCE sank because of an intense storm, which caused severe downpours of rain and 

highly damaging wind gusts in excess of 60 mph, which resulted in 114,000 residents in the Bay 

Area to lose power. The Claimants acknowledge that a storm was forecast for the area, but claim 

there were no mariner warnings issued which would have advised Vortex that it needed to take 

additional precautions to secure its vessel in the San Francisco Bay. Moreover, they claim that 

the forecasted intensity of the storms were not adequate to advise Vortex of any danger to the 

VENGEANCE. The Claimants refer to numerous vessels that were damaged in the San 

Francisco Bay, including damage to these vessels caused by high winds, which caused damage to 

some local docks. The Claimants conclude by stating that this type of storm was highly unusual 

in the San Francisco Bay Area for April and it was the type of unforeseeable, unanticipated 

weather event as contemplated in the OPA act of God defense.42

 

42 SHPI claim submission dated October 15, 2018, page 3-4.
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 On April 6, 2017, the National Weather Service (NWS) issued a small craft advisory (SCA) 

to the mariners in the San Francisco Bay for areas south of the Bay Bridge. The SCA was issued 

for projected high winds and was broadcast throughout the day in 6-hour intervals. The first 

SCA was issued at 2:32 a.m. and warned mariners of winds later that evening originating from 

the south and ranging from 20 to 30 knots (23 to 35 mph)43 with occasional gusts up to 45 knots 

(52 mph). The second SCA was issued at 8:59 a.m. and warned mariners of winds later that 

evening originating from the south and ranging from 20 to 30 knots (23-35 mph) with occasional 

gusts up to 45 knots (52 mph). The third SCA was issued at 2:26 p.m. and warned mariners of 

winds later that evening originating from the south and ranging from 15 to 25 knots. The last 

SCA was issued at 5:52 p.m. and warned mariners of winds later that evening originating from 

the south ranging from 15 to 25 knots with gale force winds gusting from 35 to 40 knots (40 to 

46 mph).44

Additionally, there are five weather-monitoring devices located within a 4-mile radius of 

where the VENGEANCE sank. The closest device is maintained by NOAA and located in 

Oakland’s Outer Harbor approximately 0.85 miles from the site of the sinking. On April 6, 

2017, the highest average wind speed from that site was recorded at 8:15 p.m. and 9:00 p.m. 

measuring 35 mph with a maximum wind gust measurement of 49 mph recorded at 8:50 p.m. 

The next closest device is maintained by NOAA and located in the Port of Oakland 

approximately 1.2 miles from the site of the sinking. On April 6, 2017, the highest average wind 

speed from that site was recorded at 8:50 p.m. and 9:00 p.m. measuring 42 mph with a maximum 

wind gust measurement of 56 mph recorded at 9:05 p.m. The next closest device is maintained 

by Weather Flow and is located at the Bay Bridge toll plaza approximately 1.9 miles from the 

site of the sinking. On April 6, 2017, the highest average wind speed from that site was recorded 

at 8:50 p.m. measuring 25 mph with a maximum wind gust measurement of 40 mph recorded at 

8:30 p.m. The next closest device is maintained by Weather Flow and is located on Treasure 

Island approximately 2.4 miles from the sight of the sinking. On April 6, 2017, the highest 

average wind speed from that site was recorded at 8:25 p.m. measuring 47 mph with a maximum 

wind gust measurement of 50 mph recorded at 8:30 p.m. The last device is maintained by 

Weather Flow and is located in Alameda approximately 4 miles from the sight of the sinking. 

On April 6, 2017, the highest average wind speed from that site was recorded at 8:15 p.m. and 

9:00 p.m. measuring 35 mph with a maximum wind gust measurement of 49 mph recorded at 

8:50 p.m.45 

Based upon the weather data and broadcasts of the NWS, it is clear that the circumstances 

surrounding this claim were not “unanticipated” in character as required by OPA’s act of God 

defense. The NWS issued SCAs to mariners in the San Francisco Bay for areas south of the Bay 

Bridge throughout the day on April 6, 2017, warning mariners of winds from the south ranging 

from 23 to 35 mph with gusts up to 52 mph. With the exception of a 56 mph gust of wind 

measured at the Port of Oakland weather monitoring device at 9:05 p.m. which was a 3 second 

burst of wind and only 4 mph over the NWS warnings, all of the winds associated with the 

weather event of April 6, 2017, in and around a 4 miles radius surrounding the site of the 

VENGEANCE sinking were accurately predicted and broadcast by the NWS throughout the day. 

 

43 A knot of speed is converted to miles per hour (mph) by multiplying the measurement by 1.15078. 44 PowerPoint of Mr. , Senior Meteorologist, Weather Flow, Inc. provided to the NPFC via email on 

February 22, 2019, slide 10.

45 PowerPoint of Mr. , Senior Meteorologist, Weather Flow, Inc. provided to the NPFC via email on 

February 22, 2019, slide 4.
11

As such, the Claimants assertion that there were no mariner warnings issued that would have 

advised Vortex to take additional precautions is without merit.

In an effort to better understand Vortex’s safety management procedures regarding weather, 

the NPFC requested documentation of Vortex’s safety management system.46 In response, the 

Claimants provided a copy of the Vortex Marine Construction Health, Safety and Environment 

Program (HSE).47 The HSE contains procedures that requires copies of all weather reports and 

forecasts to be passed to the Barge Superintendent and Barge Captain immediately upon receipt 

and to post those weather reports and forecasts in the control tower, bridge or equivalent on the 

barge. Additionally, the HSE states that upon receipt of deteriorating weather conditions, the 

Barge Superintendent and Barge Captain will follow their procedures for down weather criteria. 

Those procedures states that in accordance with international marine custom and for the purpose 

of indemnity, the decision to take measures for the safety of the barge or vessel must normally be 

issued by the Barge Superintendent and after arriving at the decision, the Barge Superintendent 

will consult with the Barge Captain, taking into account all of the factors presented by the Barge 

Captain in relation to the operations of the barge.48

When questioned about Vortex’s compliance with their HSE in regards to weather and down 

weather criteria and procedure for this incident, the Claimant responded that the section of HSE 

regarding weather procedures “was written at a time when technology and human interaction 

with technology was not as advanced as it was in April 2017”.49 Vortex stated that [given the 

advances since the HSE was written] it became the practice of Vortex and its employees to 

monitor weather reports through cell phone based applications....”50 NPFC expresses doubt 

about the accuracy of this response. The procedures that formed the basis of the NPFC questions 

to Vortex came directly out of Vortex’s HSE Manual in which each page contains a revision date 

of August 6, 2018, which is over a year after the sinking of VENGEANCE.51 On Page 2 of the 

HSE, Vortex’s owner, signed a statement as to the importance of following the 

guidance in the manual. In it he states, “[t]he management of Vortex embraces its health and 

safety responsibilities, and agrees to be held accountable for incorporating the program 

contained herein into their operations.”52 While as Vortex admits, it may have become the 

practice of Vortex and its employees to monitor the storm through cell-phone based applications, 

doing so violated the very terms of the company’s Manual to which the owner himself agrees to 

be held accountable for incorporating. 

 When questioned about who served as Barge Superintendent and Barge Captain on April 6, 

2017, the Claimants stated that the VENGEANCE did not have a Barge Superintendent as its 

operations over the BART did not involve dredging and that Mr. , the crane 

 

46 Email from Mr. to Claimant dated November 15, 2018. 47 Provided as an attachment to an email from Nicoletti Hornig and Sweeney to Mr. dated February 

7, 2019.

48 Vortex Marine Construction Health, Safety and Environment Program Manual Section 3.0 and 3.1 revised August 

6, 2018, page 8.

49 Enclosure to letter from Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution Insurance 

dated February 26, 2019, response to question 1.

50 Id. 51 Id. 52 Vortex Marine Construction Health, Safety and Environment Program Manual revised August 6, 2018, page 2.
12

operator aboard the VENGEANCE served as Barge Captain.53 When questioned about who 

monitored the weather on April 6, 2017, the Claimants stated that the Barge Captain 

, Dive Supervisor Mr. and Vortex owner, Mr. regularly 

monitored the weather forecasts.54 When questioned about alternate berths available to the 

VENGEANCE in the event of heavy weather, the Claimants provided a copy of a rental 

agreement between Bay Ship & Yacht and Vortex, which documented the rental of 150 feet of 

pier space at the Treasure Island facility.55 Lastly, when questioned about who made the 

decision to leave the VENGEANCE anchored over the BART on April 6, 2017, the Claimants 

stated that it was the decision of Mr. , owner of the Vortex/VENGEANCE to leave the 

VENGEANCE anchored in place over the BART,56 after consultations with skilled mariners and 

Vortex employees.57

The NPFC contacted Mr. , Captain of the tug LAGUNA for his recollection of 

the weather related events of April 6, 2017. Captain is a Coast Guard-licensed tugboat 

captain who was hired by Vortex Marine to operate the Vortex tug LAGUNA for a 6-week 

period while the VENGEANCE was anchored over the BART in San Francisco Bay. Captain 

 stated that his responsibilities as Captain of the LAGUNA included transporting the 

crew to the VENGEANCE in the morning, tending the VENGEANCE by tying up near the bow 

of the barge throughout the workday and then transporting the crew back to shore at the end of 

the workday. Regarding the weather of April 6, 2017, Captain recalled being very 

concerned over the incoming weather. Specifically, he thought that Vortex was going to remove 

the crew from the VENGEANCE at 12:00 p.m. because of impending weather, but later found 

out that someone “from management” made the decision to leave the crew onboard until at least 

3:30 p.m. Captain also stated that he voiced his concerns about the incoming weather 

and his recommendations to several different people to move the VENGEANCE from its 

anchored position over the BART to its rented berth at Treasure Island. Specifically, he recalled 

expressing his concerns over the weather and recommendations to move the barge to the Dive 

Supervisor and Barge Captain/Supervisor . However, he stated that his concerns 

over the weather and recommendations to move the barge were ignored and a decision was made 

to leave the VENGEANCE anchored and unattended over the BART.58

The NPFC also contacted Warden , CA Fish & Wildlife. Warden 

responded to the sinking and subsequent oil spill and discussed the events of the casualty with 

Captain . According to Warden , Captain told him that he had real 

concerns over the pending weather on April 6, 2017, and that he had relayed those concerns and 

 

53 Enclosure to letter from Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution Insurance 

dated February 26, 2019, response to questions 1 and 2. 54 Enclosure to letter from Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution Insurance 

dated February 26, 2019, response to question 1.

55 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor pollution 

Insurance dated February 26, 2019, response to question 4 – Copy of 2017 Wharfage at Treasure Island between 

Bay Ship & Yacht and Vortex Marine Construction dated March 16, 2017 for pier availability from March 29, 2017 

through April 28, 2017. 56 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated February 26, 2019, response to question 3.

57 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated January 15, 2019, response to question 21. 

58 Summary of conversation between Captain and Mr. , NPFC dated February 8, 

2019.

(b) (4) (b) (4) (b) (4)


15

Vortex as outlined in 33 U.S.C. 2704(c)(1). The NPFC disagrees. Having reviewed the 

applicable law and the information provided by the claimants in support of their claim 

submission as well as information obtained independently by the NPFC, the incident appears to 

have been proximately caused by the gross negligence of the responsible party or an employee of 

the responsible party, the requirements of 33 U.S.C. §§ 2704(c)(1) and 2712(b) have not been 

met and the claim for limited liability must be denied. 

 When submitting a claim against the OSLTF, a responsible party must show that the 

exceptions to limited liability in 33 U.S.C. § 2704 (c) do not apply even though this burden of 

proof may require proof of a negative contention, (i.e., the incident was not proximately caused 

by the responsible party’s willful misconduct, gross negligence, or regulatory violation). “It is a 

familiar common-law rule that, where a right to relief is grounded on a negative assertion of a 

right, the burden of proving the negative rests on the party asserting the right.”66 This is not an 

impossible burden to carry. 67 A responsible party will meet its burden by showing that its more 

likely than not that the incident was not proximately caused by willful misconduct, gross 

negligence, or a regulatory violation. 

 The quantum of proof required from a responsible party seeking OSLTF reimbursement will 

vary depending upon the facts of the case. Nevertheless, a responsible party should not be 

required to conclusively disprove every possible contention supporting unlimited liability. 

Rather, a responsible party will generally satisfy its burden by showing that OPA’s exceptions to 

limited liability probably do not apply. For example, the NPFC does not require detailed proof 

of compliance with federal regulations that have no apparent connection to the oil spill. 

Therefore, in some cases a responsible party’s regulatory compliance could be shown by 

generalized evidence establishing a probability that no regulatory violation occurred. However, 

if the facts of an OPA incident raise the issue of whether the incident was proximately caused by 

a regulatory violation, then a responsible party must carry its burden of proving compliance with 

the specific regulation at issue. If a responsible party fails to carry its burden of proof, then the 

claim should be denied.68

 

 

66 United States v. Grogg, 9 F.2d 424, 426 (W.D. Va. 1925). 67 The treatise, Corpus Juris Secondum, explains how a party can prove a negative contention with the following: 

The party whose contention requires proof of a negative fact generally has the burden of evidence 

to prove that fact, except as the rule may be modified by the fact that the evidence as to such issue 

is peculiarly within the adverse party’s knowledge or control. In deciding, however, what 

quantum of evidence shall be deemed sufficient, the practical limitations on proof imposed by the 

nature of the subject matter or the relative situation of the parties will be considered.

The court will more promptly discharge a litigant from the burden of evidence where the 

proposition is a negative one, and the burden of evidence is sustained by proof which renders 

probable the existence of the negative fact, nothing in the nature of a demonstration being 

required.

31A C.J.S. Evidence § 200 (2015)(internal footnotes omitted)(emphasis added).

68 Bean Dredging, LLC v. United States, 773 F.Supp.2d 63, (D. D.C. 2011)(affirming NPFC’s determination 

denying limited liability based upon the responsible party’s failure to show compliance with a specific regulation).

 
16

The terms “gross negligence” and “willful misconduct” have distinct meanings under the 

OPA.69 The NPFC defines those terms as follows:70 

Gross Negligence: Negligence is a failure to exercise the degree of care which a person of 

ordinary caution and prudence would exercise under the circumstances. A greater degree of 

care is required when the circumstances present a greater apparent risk. Negligence is “gross” 

when there is an extreme departure from the care required under the circumstances or a 

failure to exercise even slight care.71

 

69 Because OPA does not define the terms “gross negligence” or “willful misconduct”, these terms should be given 

their plain and ordinary meaning. “Gross negligence” is ordinarily distinguished from “willful misconduct” in that 

“gross negligence” is a lesser standard that does not require recklessness and “willful misconduct” generally refers 

to intentional misconduct that can sometimes be established with proof of recklessness. See, Restatement (Third) of 

Torts: Phys. & Emotional Harm § 2 Recklessness, cmt. a (2010). See also, W. Page Keeton, et al., Prosser and 

Keeton on the Law of Torts § 34, at 212 (5th ed. 1984)(“’gross negligence’ falls short of a reckless disregard”); 57a 

Am. Jur. 2d Negligence § 231 (2016)(“A distinction is frequently made between gross negligence and willful, 

wanton, or reckless conduct. While the jurisdictions adopting this distinction consider gross negligence substantially 

and appreciably higher in magnitude than ordinary negligence, it is still not equivalent to wanton or willful conduct, 

and it does not encompass reckless behavior.”)(footnotes omitted).

The structure of OPA’s liability and compensation regime supports giving different meanings to the terms 

“gross negligence” and “willful misconduct”. As discussed above, under 33 U.S.C. § 2712(b) a claimant may not 

receive OSLTF reimbursement for removal costs or damages caused by the claimant’s “gross negligence or willful 

misconduct”. Also, 33 U.S.C. § 2704 (c)(1) precludes limited liability for oil spills caused by the “gross negligence 

or willful misconduct of” the responsible party. If Congress had intended for “gross negligence” to have the same 

meaning as “willful misconduct” under the OPA, there would have been no reason to deny OSLTF reimbursement 

and limited liability for both types of conduct. Moreover, the use of the disjunctive term “or” in both 33 U.S.C. § § 

2704 (c)(1) and 2712(b) further suggests that “gross negligence” is a separate and distinct type of wrongdoing from 

“willful misconduct”. See, 1A N. Singer, Statutes and Statutory Construction § 21:14, p. 189-190 (7th 

ed.2007)(“The disjunctive ‘or’ usually, but not always, separates words or phrases in the alternate relationship, 

indicating that either of the separated words or phrases may be employed without the other. The use of the 

disjunctive usually indicates alternatives and requires that those alternatives be treated separately.”).

The statutory language used by Congress to impose liability on an OPA guarantor also supports giving “gross 

negligence” a different meaning from “willful misconduct” Under 33 U.S.C. § 2716 (f)(1)(C), a guarantor can only 

avoid liability when “the incident was caused by the willful misconduct of the responsible party.” In contrast, a 

claimant will be denied OSLTF reimbursement and unlimited OPA liability will be imposed on a responsible party 

for either “gross negligence” or “willful misconduct”. The fact that OPA only provides guarantors with a defense 

for “willful misconduct”, but not “gross negligence” shows that Congress intended for the two phrases to have 

separate meanings. If it were otherwise, an OPA guarantor would be exonerated from liability for either “gross 

negligence” or “willful misconduct” just like 33 U.S.C. § § 2704 (c)(1) and 2712(b). See, In re Oil Spill by Oil Rig 

Deepwater Horizon, 21 F.Supp.3d 657, 734 (E.D. La. 2014)(“Because only ‘willful misconduct’ creates this 

[guarantor’s] defense, OPA treats ‘willful misconduct’ as distinct from, and more egregious than, ‘gross 

negligence.’”). See also, 2A N. Singer, Statutes and Statutory Construction § 46:6, p. 249-252 (7th ed.2007)(“The 

same words used twice in the same act are presumed to have the same meaning. Likewise, courts do not construe 

different terms within a statute to emody the same meaning. ... In like manner, where the legislature has employed a 

term in one place and excluded it in another, it should not be implied where excluded.”). 

 

70 See, In re Kuroshima Shipping S.A., 2003 AMC 1681, 1693. See also, Water Quality Insurance Syndicate v. 

United States, 632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(relying on NPFC’s definition of “gross negligence”); 

and Water Quality Insurance Syndicate v. United States, 522 F.Supp.2d 220, 228-29 (D.D.C. 2007)(holding that 

“willful” misconduct under the OPA could also be established by a series of negligent acts that amount to 

recklessness). 

71 Under the OPA, a finding of “gross negligence” requires proof of a departure from the standard of care beyond 

what would constitute ordinary negligence because simple negligence is established by showing a failure to exercise 
17

Willful Misconduct: An act, intentionally done, with knowledge that the performance will 

probably result in injury, or done in such a way as to allow an inference of a reckless 

disregard of the probable consequences.72

 

 

the degree of care that someone of ordinary prudence would exercise in the same circumstance. See generally, 

United States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005). “Taken at face value, [gross negligence] simply means 

negligence that is especially bad.” Restatement (Third) of Torts (Physical and Emotional Harm) § 2 Recklessness, 

cmt. a (2010). “[M]ost courts consider that ‘gross negligence’ ... differs from ordinary negligence only in degree, 

and not in kind.” W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984). See 

also, Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489, 495 (1875)(“’Gross negligence’ is a relative term. It is 

doubtless to be understood as meaning a greater want of care than is implied by the term ‘ordinary negligence;’ but, 

after all, it means the absence of the care that was necessary under the circumstances...”). 

Gross negligence should be determined based upon the same objective reasonable-person standard as ordinary 

negligence, and therefore requires no showing of any mental state or scienter. The facts of each case must control 

the degree of care required to prevent an oil spill. As a result, a greater degree of care will be required when the 

facts of a case establish an increased risk. See e.g., Water Quality Ins. Syndicate v. United States, 632 F.Supp.2d 

108, 112 (D. Mass. 2009). See also, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 208-09 

(“As the danger becomes greater, the actor is required to exercise caution commensurate with it.”). 

72 When deciding whether “willful misconduct” has been established under the OPA, courts have relied upon 

FWPCA cases analyzing the same issue. See generally, Water Quality Ins. Syndicate v. United States, 522 

F.Supp.2d 220, 229-30 (D.D.C. 2007). Relying on FWPCA authorities when interpreting the OPA is consistent 

with Congress’ legislative intent that OPA’s definitions should have the same meaning as those same terms have 

been given under the FWPCA. See, H.R. Conf. Rep. 101-653, reprinted in 1990 U.S.C.C.A.N. 779. Under both 

OPA and the FWPCA, proof of recklessness will establish “willful misconduct”. For example, in Tug Ocean 

Prince, Inc. v. United States, 584 F.2d 1151, 1162-63 (2nd Cir. 1978), the court considered whether the vessel 

owner’s willful misconduct precluded limited liability for an oil spill under the FWPCA. In its analysis, the court 

defined “willful misconduct” as follows:

[A]n act intentionally done, with knowledge that the performance will probably result in injury, or 

done in such a way as to allow an inference of reckless disregard of the probably consequences. 

[citation omitted]. If the harm results from an omission, the omission must be intentional, and the 

actor must either know the omission will result in damage or the circumstances surrounding the 

failure to act must allow an implication of a reckless disregard of the probable consequences. 

[citation omitted]. The knowledge required for a finding of willful misconduct is that there must be 

either actual knowledge that the act, or the failure to act, is necessary in order to avoid danger, or if 

there is no actual knowledge, the probability of harm must be so great that failure to take the 

require action constitutes recklessness. Id. (emphasis added).

The test for determining “willful misconduct” under the OPA is an objective test, not a subjective test. Thus, a 

determination of “willful misconduct” under the OPA does not always require proof of specific intent to harm. 

Rather, “willful misconduct” can be established with facts showing recklessness. These concepts are illustrated in 

Safeco v. Burr, 551 U.S. 47, 57 (2007) where the Court analyzed how a statute should be construed when its 

standard for liability turns on a finding of willfulness. In that case, the Court concluded that “where willfulness is a 

statutory condition to civil liability, we have generally taken it to cover not only knowing violations of a standard, 

but reckless ones as well, [citations omitted]. This construction reflects common law usage, which treated actions in 

‘reckless disregard’ of the law as ‘willful’ violations.” Id. See also, Fryer v. A.S.A.P., 658 F.3d 85, 91 (1st Cir. 

2011), quoting Safeco, 551 U.S. 47, 57 (2007)(“In a series of decisions beginning in 1985, the Supreme Court has 

repeatedly held that, ‘where willfulness is a statutory condition of civil liability, ... [the term] cover[s] not only 

knowing violations of a standard, but reckless ones as well.”).

 

19

from his F&W Report of the VENGEANCE immediately after capsizing but before sinking that 

showed a watertight deck hatch missing from a void on the port aft section of the barge.76,77,78

The NPFC also contacted Mr. , Vortex deck engineer, regarding the condition 

of the voids on the VENGEANCE prior to sinking. Mr. stated that he had worked on the 

VENGEANCE for four to five days leading up to, and including, April 6, 2017. He stated that 

he was aware of a void on the starboard side of the barge that was equipped with a submersible 

pump, as he had seen the extension cord from the pump leading up from the open void and 

leading to a portable generator on the deck of the VENGEANCE. He stated that there was an 

anchor scow tied to the starboard side of the VENGEANCE and he would have to travel to and 

from the anchor scow for equipment and he passed this open void on numerous occasions. He 

also stated that on at least one occasion, he was asked to fuel the portable generator that powered 

the submersible pump to keep the generator running.79 

The NPFC also discussed the condition of the voids with Captain , Captain of 

the Tug LAGUNA. Captain is a licensed tugboat captain who was hired by Vortex 

Marine to operate their tug LAGUNA for a 6-week period while the VENGEANCE worked on 

the BART in San Francisco harbor. Captain stated that the LAGUNA would tend the 

VENGEANCE by tying up near the bow of the barge throughout the workday and that he would 

frequently leave the LAGUNA and walk the VENGEANCE’s deck throughout the workday. It 

was during those walkarounds that he became aware of an open hatch on the starboard side of 

the barge. He stated that he had looked into the open void on several occasions and noted that 

there was submersible pump being used in the void.80 

The NPFC also contacted Mr. , a Vortex diver regarding the condition of the 

voids on the VENGEANCE prior to sinking. Mr. stated that he had worked on the 

VENGEANCE from March 29 - April 6, 2017. He stated that he was aware of a void on the 

starboard side of the barge forward of the crane and winch that was equipped with a submersible 

pump as he had plugged the extension cord from the submersible pump into the portable 

generator on the deck of the VENGEANCE on numerous occasions between March 29 - April 6, 

2017.81

The NPFC also contacted Mr. , Global Diving, who served as the Salvage 

Master and oversaw the salvage of the VENGEANCE. Mr. was questioned whether the 

blue submersible pump found shackled to the bulkhead of starboard void 10-38 could have been 

 

76 Summary of conversation between Warden , CA F&W and Mr. , NPFC dated 

February 19, 2019.

77 Photograph Image 1435 provided by Warden of starboard void 10-38 with its hatch missing dated 

July 19, 2017.

78 Photograph of the VENGEANCE partially submerged with a watertight hatch missing from a void on the port aft 

portion of the barge dated April 17, 2017, included as part of CA F&W Report Citation #AD2074947 page 28 as 

provided by Claimant as part of the Consent Decree between Vortex Marine and the State of California filed June 

29, 2018.

79 Summary of conversation between Mr. , Vortex deck engineer and Mr , NPFC 

dated February 8, 2019.

80 Summary of conversation between Captain and Mr , NPFC dated February 8, 

2019.

81 Summary of conversation between Mr. , Vortex diver and Mr. , NPFC dated March 4, 

2019.

(b) (4) (b) (4)
20

a Global pump that was used during the salvage and dewatering of the void. Mr. denied 

that possibility. He stated that Global personnel had only used 3” trash pumps to dewater the 

spaces within the VENGEANCE and that all Global equipment to include all pumps and 

extension cords were properly recovered and accounted for at the conclusion of the salvage.82

Vortex was questioned about the condition of all voids including starboard void 10-38 

onboard the VENGEANCE prior to the sinking on April 6, 2017. Vortex was also questioned 

about the post casualty discovery of a submersible pump shackled to a bulkhead in starboard 

void 10-38 and the heavy gauge extension cord leading from the pump and onto the deck of the 

VENGEANCE. Vortex responded by stating that there was no leak in any compartments or 

voids, including starboard void 10-38 and that while Vortex was aware of communications 

surrounding a submersible pump found shackled in starboard void 10-38, they were unaware of 

why the pump was found in that space.83 However, in an email between Mr. , the 

owner of Vortex and Mr. , Sector San Francisco, Mr. stated that during the 

investigation into the sinking of the VENGEANCE, he was made aware of an electric pump that 

had been placed into a void of the VENGEANCE due to a “trickle” and that it was his 

understanding from his crew that this was a temporary remedy until an interior patch was 

installed. Mr. went on to state in the email that he assumed the pump was placed in the 

void when the leak had been identified and that his crew had intended to repair the hull at their 

soonest opportunity.84

It is likely that the submersible pump permanently installed in starboard void 10-38 was 

installed as a remedy for continual water leaking into the void. The failure of the VENGEANCE 

crew to inform their management of a leak into starboard void 10-38 violates the Vortex Marine 

Construction Health, Safety and Environment Program Manual, which requires all Vortex 

employees to report any material damage affecting the seaworthiness or efficiency of the 

vessel.85 As such, the actions of Vortex management, operator and/or person in charge of the 

VENGEANCE were negligent for failing to report the ingress of water into starboard void 10-38 

which could have contributed to the sinking of the barge. 

Regarding the probability that the watertight deck hatch covering starboard void 10-38 was 

not properly secured or was missing on April 6, 2017, the NPFC relies on their interview with 

Warden in which he stated that he had observed several voids missing their watertight 

deck hatches and provided a picture of starboard void 10-38 missing its watertight deck hatch 

cover.86 He also stated that he had observed and photographed a large, heavy gauge extension 

 

82 Summary of conversation between Mr. , Global Diving and Mr. , NPFC dated 

February 8, 2019.

83 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated January 15, 2019, page 5.

84 Email between Mr , Vortex Marine and CWO3 , CG Sector San Francisco dated January 

30, 2018.

85 Vortex Marine Construction Health, Safety and Environment Program Section 2.1 (a)(1) revised August 6, 2018, 

page 7. In addition, based on its severity, the failure to report the starboard void leak might have also been 

considered a violation of the Federal Regulations which requires the operator or person in charge of any vessel to 

notify the nearest CG Sector or Officer in Charge, Marine Inspections of a an occurrence materially and adversely 

affecting the vessel’s seaworthiness or fitness for service or route, including but not limited to flooding and a 

hazardous condition. 46 CFR 4.05-1 (a)(4)) and 46 CFR 4.05-1(b). 86 Photograph Image 1435 provided by Warden of starboard void 10-38 with its hatch missing dated 

July 19, 2017.

(b) (4) (b) (4)
21

cord connected to the submersible pump, which extended outside of the void and onto the main 

deck of the VENGEANCE.87 Lastly, he referenced a picture from his report of the 

VENGEANCE immediately after capsizing but before sinking, that showed a watertight deck 

hatch missing from a void on the port aft section of the barge.88,89

The NPFC contacted Mr. , Global Diving to inquire if any of the watertight 

deck hatches were removed during the salvage of the VENGEANCE. Mr. stated that to 

his knowledge, none of the watertight deck hatches from the VENGEANCE were removed 

during salvage as it was not necessary for the salvage nor would it be safe for a diver to enter a 

20" hatch opening while wearing an air tank. He stated that Global personnel did cut holes into 

the bow rake and on the top of other compartments to add an I-beam used to support the salvage 

operations but that did not involve the removal of any watertight deck hatches. He further stated 

that many of the spaces on the starboard side of the VENGEANCE had been filled with mud 

after the casualty. After par buckling the barge, but before its salvage, Global Diving employed 

an "Air Lifting" technique to remove the majority of the mud from these spaces. Air lifting was 

described as dropping a 12" steel pipe with air fittings into a space and pumping air into the pipe, 

which created a powerful vacuum that removed the mud from the contaminated space. Mr. 

 stated that they had cut "large windows" into the deck of the barge to perform air lifting 

but that none of the 20" watertight deck hatches would have been removed, as they would have 

been too tight for the 12’ steel pipe and air fittings. When asked why some of the spaces on the 

starboard side of the barge had filled with mud, Mr. stated that as the VENGEANCE 

was lying with its starboard side in the mud, there would have been an accumulation of mud in 

any void if the watertight deck hatches were missing.90,91,92 When Mr. was asked if he 

remembered any of the watertight deck hatches as being missing from the VENGEANCE as the 

barge was lifted out of the water, he stated that he had observed several watertight deck hatches 

missing from the voids as the barge was being salvaged. Lastly, when asked if Global personnel 

would have removed any of the watertight deck hatches post salvage, he stated that Global 

employees would have removed all watertight deck hatches upon raising the VENGEANCE for 

dewatering purposes but was certain that all of the watertight deck hatches would have been 

replaced immediately upon completion of dewatering as they wouldn't have wanted any hatches 

free on the deck of the salvage barge during transport.93

 

87 Photograph Image 1433 and 1438 provided by Warden of a heavy gauge extension cord leading 

from starboard void 10-38 onto the main deck of the VENGEANCE dated July 19, 2017. 88 Summary of conversation between Warden , CA F&W and Mr. , NPFC dated 

February 19, 2019.

89 Photograph of the VENGEANCE partially submerged with a watertight hatch missing from a void on the port aft 

portion of the barge dated April 17, 2017, included as part of CA F&W Report Citation #AD2074947 page 28 as 

provided by Claimant as part of the Consent Decree between Vortex Marine and the State of California filed June 

29, 2018.

90 Photograph Image 1431 provided by Warden showing the heavy accumulation of mud surrounding 

the blue submersible pump located in the VENGEANCE starboard void 10-38 dated July 19, 2017. 91 Photograph Image 1433 provided by Warden showing the heavy accumulation of mud along the 

longitudinal supports located in the VENGEANCE starboard void 10-38 dated July 19, 2017. 92 Photograph Image 1434 provided by Warden showing the heavy accumulation of mud surrounding 

the orange discharge hose leading from the blue submersible pump located in the VENGEANCE starboard void 10-

38 dated July 19, 2017.

93 Summary of conversations between Mr , Global Diving and Mr. , NPFC dated 

February 8, 2019.

(b) (4) (b) (4) (b) (4) (b) (4) (b) (4)
22

The NPFC also contacted Mr. , Vortex diver regarding the starboard void forward 

of the crane and winch onboard the VENGEANCE prior to its sinking. Specifically, the NPFC 

asked Mr. if that void had been covered with a watertight deck hatch on April 6, 2017, 

before the crew left the VENGEANCE for the day. Mr. stated that the void had probably 

been left open as the hatch for that void was normally missing.94

It is likely that the watertight deck hatch on starboard void 10-38 was not properly secured or 

missing on April 6, 2017. The facts reveal that the hatch cover was not properly installed or 

attached in order to accommodate the extension cord that ran from the deck down into the void 

to supply power to the blue submersible pump permanently installed in the void. This 

conclusion is supported by the post casualty photographs of starboard void 10-38 missing its 

watertight deck hatch and the interviews of salvors who attest to not removing any watertight 

deck hatches during salvage but only to removing watertight deck hatches for dewatering but 

then replacing the hatches upon completion to avoid hazards on the salvage barge. It is further 

supported by the statement of a VENGEANCE crewmember who attests to seeing the starboard 

void forward of the crane and winch normally open or missing its hatch cover and the heavy 

presence of mud inside starboard void 10-38 post casualty suggesting the absence of a watertight 

deck hatch cover while the VENGEANCE was sunk in 5’2” of mud on her starboard side. 

Lastly, the photos of the VENGEANCE taken at low tide 95 and during par buckling operations96

document several watertight deck hatches missing from other voids on the aft side of the 

VENGEANCE, suggesting that watertight deck hatches other than the watertight deck hatch 

covering starboard void 10-38 were missing or not properly secured on April 6, 2017. The 

failure of the VENGEANCE crew to properly secure watertight deck hatches prior to leaving the 

barge violates the Vortex Marine Construction Health, Safety and Environment Program Manual 

that requires all Vortex employees to ensure that all watertight compartments and tanks are 

secure in the event of heavy weather.97 As such, the actions of Vortex management, operator 

and/or person in charge of the VENGEANCE were negligent in failing to secure the watertight 

deck hatch over starboard void 10-38 and other voids on April 6, 2017, and could have 

contributed to the sinking of the barge. 

Regarding the probability that there was corrosion (wastage) to watertight bulkheads within 

starboard void 10-38 and other water tight spaces, the NPFC relied upon post casualty 

photographs of the VENGEANCE. Specifically, the NPFC relied upon a photograph that 

documented wastage on a watertight bulkhead that separated starboard void 10-38 and the 

forepeak98 and a photograph documenting wastage on a watertight bulkhead located within the 

 

94 Summary of conversation between Mr. , Vortex diver and Mr. , NPFC dated March 4, 

2019.

95 Photograph of the VENGEANCE partially submerged with a watertight hatch missing from a void on the port aft 

portion of the barge dated April 17, 2017, included as part of CA F&W Report Citation #AD2074947 page 28 as 

provided by Claimant as part of the Consent Decree between Vortex Marine and the State of California filed June 

29, 2018.

96 Photograph dated May 7, 2017, of the VENGEANCE during par buckling operations that show three watertight 

deck hatches missing from voids on the port side of barge provided by CWO3 , CG Sector San Francisco, 

on March 4, 2019.

97 Vortex Marine Construction Health, Safety and Environment Program Section 17.1 (a)(1) revised August 6, 2018, 

page 23.

98 Photograph dated July 20, 2017, of corrosion (wastage) to the watertight bulkhead separating starboard void 10-38 

and the forepeak of the VENGEANCE provided by CWO3 , CG Sector San Francisco, on March 4, 2019.
23

forepeak that separated watertight voids within the forepeak.99 According to the claimants, the 

last dry dock survey of the VENGEANCE was conducted in 2005 but that Vortex was not in 

possession of that survey.100 Additionally, Vortex stated that before any voyage and again upon 

arrival to their destination, Vortex personnel would inspect all compartments and voids for leaks 

and to check watertight integrity. The records of those inspections were not provided to the 

NPFC.101 It is evident from the photographs obtained post-casualty that the wastage to the 

watertight bulkhead between starboard void 10-38 and the forepeak and the wastage to the 

watertight bulkheads within the forepeak was significant and should have been observed, 

documented and repaired by Vortex personnel in order to maintain watertight integrity of the 

barge. It is likely that down flooding into open starboard void 10-38 also flooded the forepeak 

through wastage between a watertight bulkhead separating starboard void 10-38 and the forepeak 

and further wastage between watertight bulkheads within the forepeak. 

A prudent mariner understands the importance of maintaining watertight integrity on a vessel 

and the fact that the claimants assert to having the inspected the voids on the VENGEANCE for 

watertight integrity before departure and upon arrival to San Francisco Bay questions the 

thoroughness of their inspection procedures and likely resulted in undetected degradation to 

watertight integrity of the vessel that significantly contributed to the sinking of the barge. 

A series of negligent actions can constitute gross negligence.102 Because of the actions (or 

inactions) of Vortex and/or its employees to take the necessary precautions against the forecasted 

weather of April 6, 2017; and based on the significant information regarding starboard void 10-

38, the missing or inoperable watertight hatch, and the watertight integrity of the vessel coupled 

with the actions (or inactions) by Vortex and/or its employees as detailed above, the incident 

appears to be proximately caused by the gross negligence of the responsible party or an 

employee of the responsible party. As such, the requirements of 33 U.S.C. §§ 2704(c)(1) and 

2712(b) have not been met. The claimants are not entitled to limited liability, and their claim 

therefor, must be denied. 

 

99 Photograph dated July 20, 2017, of corrosion (wastage) on a watertight bulkhead located within the forepeak that 

separated another watertight void within the forepeak of the VENGEANCE provided by CWO3 , CG 

Sector San Francisco, on March 4, 2019.

100 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated January 15, 2019, page 1.

101 Enclosure to letter provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance dated January 15, 2019, pages 4-5. 102 See e.g., In re Oil Spill by Oil Rig Deepwater Horizon, 21 F.Supp.3d 657, 742 (E.D. La. 2014)(citing 

57A Am.Jur.2d Negligence § 229 (“[S]everal connected or successive acts of simple negligence may support a 

finding of gross negligence, due to their compounding effect.”); see also, McPhearson v. Sullivan, 463 S.W.2d 174 

(Tex.1971). (Several connected acts of simple negligence may support a ... finding of gross negligence ); accord,

Burk Royalty v. Wells, 616 S.W. 2d 911, 922 (Tex. 1981)(“The existence of gross negligence need not rest upon a 

single act or omission but may result from a combination of negligent acts or omissions, and many circumstances 

and elements may be considered in determining whether an act constitutes gross negligence.”); Maddelena v. 

Southern Bell Tel. 382 So. 2d 1246 (Fla. 4th DCA 1980)(“The compounding effect of the successive acts may, in 

fact, amount to gross negligence.”. For completeness, the NPFC also reviewed this claim under the analysis 

provided in a recent Administrative Procedure Act case. Even under the interpretation of gross negligence suggested 

by the court in that case, this claim still fails. Water Quality Insurance Syndicate v. United States, 225 F. Supp. 3d 

41, 75 (D.D.C. 2016).
24

IV. CONCLUSION: 

The claimants have not demonstrated that they are entitled to a complete defense under an act 

of God theory, nor have they demonstrated they are entitled to a limitation of liability 

 Because the weather event of April 6, 2017, was not unanticipated, inevitable or unusual, 

and because this incident was not solely caused by an act of God, that claim fails. Additionally, 

the NPFC has determined that the claimants are not entitled to limited liability as the evidence in 

this case indicates that the incident was proximately caused by the gross negligence of the 

responsible party and/or its employees.

Based on a comprehensive review of the record, the applicable law and regulations, and for 

the reasons outlined above, the claim is denied. 

 

Claim Supervisor:

Date of Supervisor’s review: April 29, 2019

Supervisor Action: Denied