3

CLAIM DETERMINATION 

Claim Number: J17008-0001 

Claimant: Samson Tug & Barge with its Subrogated Insurers 

Type of Claimant: RP

Type of Claim: Limit of Liability

Claim Manager: 

Amount Requested: $2,889,804.08 

Action Taken: Approved

EXECUTIVE SUMMARY:

On April 19, 2017, the tug POWHATAN sank at its berth at the Samson Tug & Barge dock, 

Sitka, AK, and released oil into the Starrigavan Bay, a navigable waterway of the United States.1

The discharge of oil was reported to the U.S. Coast Guard (CG) National Response Center.2 

Samson Tug and Barge Company, Inc. (Samson), the owner and operator of the POWHATAN, 

arrived on-scene and assumed responsibility for the incident. Samson hired Southeast Alaska 

Petroleum Research Organization (SEAPRO) to conduct the pollution removal activities and 

Alaska Commercial Divers (ACD) to conduct diving and salvage operations.3

 On June 14, 2017, 

the POWHATAN was removed from Starrigavan Bay and placed onto a deck barge where it was 

secured and drained of all liquids. Once the oil was removed, the CG Federal On-Scene 

Coordinator (FOSC) determined that the POWHATAN no longer posed a substantial threat to 

discharge oil into a navigable waterway of the United States.

4

 Great American Insurance 

Company provided oil pollution insurance5 while other underwriters provided protection & 

indemnity insurance for the vessel.6 Samson and their subrogated insurers (Claimants) 

submitted a claim for entitlement to limited liability7

 to the CG National Pollution Funds Center 

(NPFC). Claimants seek reimbursement of removal costs incurred in excess of the limit of 

liability under 33 U.S.C. § 2704. Under the OPA, the limit of liability applicable to the 

POWHATAN was $939,800.00. Claimants contend that they incurred $3,829,604.08 in removal 

and natural resource damage costs. As a result, Claimants seek a total of $2,889,804.08 as 

compensation for their removal and natural resource damage costs incurred in excess of the 

limit.8 The NPFC has thoroughly reviewed all documentation submitted with the claim, 

 

1 Coast Guard Pollution Report Message (CG POLREP/CG-SITREP-POL) 1 DTG P 250114Z Apr 2017. 2 CG National Response Center Report # 1176144 dated on April 19, 2017.

3 CG-SITREP-POL 1 DTG P 250114Z Apr 2017. 4 CG SITREP-POL 7 (F) DTG 162000Z Jun 2017. 5 Great American Insurance Company policy #OHM 3492755 14 issued to Samson Tug and Barge via Venneberg 

Insurance, Inc. effective June 1, 2016, page 15. The per occurrence limit as set forth in the policy for an oil spill 

incident was $5,000,000.00. 

6 Policy of Insurance #VI 1611 issued by Navigators Insurance Company (35%), Liberty International Underwriters 

(10%), Zurich North America (20%), New York Marine & General Insurance Company (15%) and Travelers 

Insurance (20%) to Samson Tug and Barge via Venneberg Insurance, Inc. effective June 1, 2016, pages 1-2. The per 

occurrence limit as set forth in the policy for protection and indemnity was $1,000,000.00.

7 See, 33 U.S.C. § 2704. 8 Claim submission cover page dated April 29, 2019 with a sum certain identified as $2,799,357.79. See also, email 

from Claimant to NPFC dated September 5, 2019, citing their payment of a CG issued invoice in the amount of 

$85,848.79 and amending their sum certain to include payment of that invoice to $2,885,206.58. See also, email 

from Claimant to NPFC dated October 29, 2019, citing to their payment of two additional contractor invoices 

totaling $4,597.50 and amending their sum certain to include the payment of those invoices to $2,889,804.08. 

(b) (6)
4

analyzed the applicable law and regulations, and concluded that Claimants have demonstrated an 

entitlement to limited liability. Additionally, the NPFC has determined that removal costs 

totaling $2,727,526.71 in removal costs in excess of the limit of liability are compensable and 

offers this amount as full and final compensation of this claim9 under the Oil Pollution Act 

(OPA).10 Other removal costs and natural resource damage costs claimed by the Claimants are 

denied as explained below. 

I. BACKGROUND, INCIDENT AND RECOVERY OPERATION, AND THE 

RESPONSIBLE PARTY: 

Background 

The POWHATAN was acquired by Samson in the early 1980s and operated in coastwise tug 

and barge operations, primarily in Alaska, but also between Washington and Alaska.11

In 2004, the POWHATAN was placed in layup at Samson’s freight dock on the 

Starrigavan Bay in Old Sitka but was used on occasion to perform local assist tows in and around 

Sitka Harbor. The tug was maintained in a serviceable condition such that it would be easy to 

take her out of layup for temporary service. This service included keeping the engines, 

propulsion machinery, bilge pumps, tow winch, and other equipment in good working order. The 

tug was last used to perform a local assist tow in Sitka in 2013.12 On December 27, 2013, Coast 

Guard Sector Juneau issued a letter to Samson acknowledging their request to place the 

POWHATAN in a layup status as the vessel had been taken out of service and was no longer 

being operated as a towing vessel. Pursuant to Samson’s request, Sector Juneau exempted the 

POWHATAN from future Coast Guard uninspected towing vessel inspections until such time 

that the vessel was brought back into active service.13 Between December 27, 2013, and the date 

of the vessel’s sinking, Samson employees inspected the POWHATAN on a weekly basis. 

These inspections included a visual inspection of both the interior and exterior of the tug as well 

as checking the vessel’s bilge for water ingress.14

Incident and Recovery Operations

On April 19, 2017, the tug POWHATAN sank at its berth at the Samson Tug & Barge dock 

in Sitka, AK, with approximately 2,200 gallons of diesel fuel in its fuel tanks. After sinking, the 

tug slid down a submarine slope until it came to rest in 160 feet of water approximately 250 

yards from the dock.15 Samson responded and activated SEAPRO to deploy boom and clean up 

the oil being discharge from the vessel; Meredith Management to manage to the spill response; 

Hanson Maritime to provide initial response and dive services; SEAADS Drone Services to 

 

9 33 CFR 136.115.

10 33 U.S.C. § 2703(a) and 33 U.S.C. § 2704(a). 11 Declaration of Mr. , principle marine surveyor for Alaska Marine Surveyors, undated and 

provided by Claimants as part of their claim submission, page 8.

12 Declaration of Mr. , principle marine surveyor for Alaska Marine Surveyors, undated and 

provided by the Claimants as part of their claim submission, page 9.

13 CG Sector Juneau layup letter issued to Mr. , Samson Tug & Barge Company, Inc. dated December 

27, 2013.

14 Declaration of Mr. , principle marine surveyor for Alaska Marine Surveyors, undated and 

provided by the Claimants as part of their claim submission, page 9.

15 CG-SITREP-POL 1 DTG P 250114Z Apr 2017.

(b) (6) (b) (6) (b) (6) (b) (6)
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provide drone services in support of the response; O’Brien’s Group for invoice auditing; Polaris 

Applied Services for shoreline assessments and interactions with the natural resource damages 

trustees and ACD for pollution mitigation work and wreck removal.16

Removal operations over the next several weeks involved source control from the vessel and 

included plugging and patching all possible points of discharge from the vessel and mechanically 

tapping the fuel vents in an effort to vacuum the fuel tanks.17 However, due to a continuing 

source of discharge and the inability to successfully remove all of the fuel from the vessel’s fuel 

tanks, CG Sector Juneau issued Amin Order 03-2017 to Samson that required:18 

a. By 1200 on May 22, 2017, provide the FOSC a comprehensive salvage plan and proof of 

a contract for the removal of the POWHATAN. 

b. This plan must include details on how the mitigation, removal, continued monitoring and 

disposal of all fuel, oil, hazmat, and miscellaneous contaminants from the vessel will 

occur.

On May 22, 2017, Samson complied with Admin Order 03-217 by providing a wreck 

removal plan and signed wreck removal contract to CG Sector Juneau.19 Assets to safely remove 

the POWHATAN were identified and mobilized from Seattle WA, to Sitka, AK. 

On June 12, 2017, the POWHATAN was successfully raised, placed onto a barge and 

drained of approximately 7,000 gallons of oily water into a sorbent lined containment berm 

located on the deck of the barge.20 

On June 13, 2017, the sorbent lined containment berm was pumped into a tank and 

transferred to shore for disposal. In addition, all of the oiled sorbents within the berm were 

recovered and all containment boom deployed around the barge was recovered and secured.21 

On June 14, 2017, with the POWHATAN safely secured to the barge and drained of all 

liquid, the CG FOSC determined that the POWHATAN no longer presented a substantial threat 

of oil pollution discharge in the navigable waterways and declared the vessel safe for transit to 

Seattle, WA.22 

 

Responsible Party 

 The POWHATAN was owned and operated by Samson Tug and Barge, Inc. Samson is the 

designated responsible party (RP) for the oil spill incident.23 

 

16 Limitation of Liability Claim of Samson Tug & Barge Company dated April 26, 2019, pages 34-44. 17 CG Incident Action Plan for operational period May 13, 2017 – May 22, 2017 dated May 13, 2017, page 3. 18 CG Sector Juneau Admin Order 03-2017 for an Imminent Oil Pollution Threat issued to Samson Tug and Barge 

dated May 19, 2017.

19 Wreck Removal and Pollution Mitigation Agreement between Samson Tug and Barge and American Commercial 

Divers, Inc. dated May 21, 2017.

20 CG SITREP- POL 7 (F) DTG 162000Z Jun 2017. 21 Id. 22 Id. 23 CG National Vessel Documentation Center Certificate of Documentation issued to Samson Tug and Barge 

Company, Inc. dated June 13, 2013 and expired on July 31, 2014.
6

Great American provided oil pollution insurance to Samson24 while Navigator’s Insurance 

Company, Liberty International Underwriters, Zurich North American, New York Marine & 

General Insurance Company and Travelers Insurance provided protection & indemnity insurance 

to Samson.25 Pursuant to the terms of the insurance policies, the respective insurers on the 

policy are subrogated to Samson’s rights of recovery for any amounts paid by the insurer under 

the policy.26 As such, Samson as the RP and Great American and the interested underwriters 

through subrogation have submitted a claim for entitlement to limited liability with the NPFC.

II. DISCUSSION 

A. Adjudication of Claims Against the OSLTF 

When adjudicating claims against the OSLTF, the NPFC utilizes an informal process 

controlled by 5 U.S.C. § 555.27 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining the basis for a denial. This determination is issued to satisfy that 

requirement. 

 The claims adjudication process is also subject to the regulations at 33 CFR Part 136. During 

the adjudication of claims against the OSLTF, the NPFC acts as the finder of fact. In this role, 

the NPFC considers all relevant evidence and weighs its probative value when determining the 

facts of the claim. If there is conflicting evidence in the record, the NPFC will make a 

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

based on the preponderance of the credible evidence. 

B. Claims Against the OSLTF by Responsible Parties

 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 

States.28 Further, a responsible party’s liability is strict, joint, and several.29 In the case of a 

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

 

24 Great American Insurance Company policy #OHM 3492755 14 issued to Samson Tug and Barge via Venneberg 

Insurance, Inc. effective June 1, 2016, page 15. The per occurrence limit as set forth in the policy for an oil spill 

incident was $5,000,000.00. 

25 See, Policy of Insurance #VI 1611 issued by Navigators Insurance Company (35%), Liberty International 

Underwriters (10%), Zurich North America (20%), New York Marine & General Insurance Company (15%) and 

Travelers Insurance (20%) to Samson Tug and Barge via Venneberg Insurance, Inc. effective June 1, 2016, pages 1-

2. The per occurrence limit as set forth in the policy for protection and indemnity was $1,000,000.00. 26 Great American Insurance Company policy #OHM 3492755 14 issued to Samson Tug and Barge via Venneberg 

Insurance, Inc. effective June 1, 2016, General Conditions Applicable to the Entire Policy #9, pages 21-22. See also

Policy of Insurance #VI 1611 issued by Navigators Insurance Company, Liberty International Underwriters, Zurich 

North America, New York Marine & General Insurance Company and Travelers Insurance to Samson Tug and 

Barge via Venneberg Insurance, Inc. effective June 1, 2016, General Conditions and/or Limitations of Policy page 6. 27 The court in Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 75 (D.D.C. 2011), characterized the 

informal adjudication process for OSLTF claims with the following: “[W]hile the OPA allows responsible parties to 

present a claim for reimbursement to the NPFC, they do not confer upon such parties a right to a formal hearing, a 

right to present rebuttal evidence or argument, or really any procedural rights at all, see 33 U.S.C. §§ 2704, 2708, 

2713, an entirely unremarkable fact given that Congress’ overarching intent in enacting the OPA was to ‘streamline’ 

the claims adjudication process . . . .” 

28 33 U.S.C. § 2702(a). 29 See, H.R. Conf. Rep. No. 101-653, 102, reprinted in 1990 U.S.C.C.A.N. 779 (August 1, 1990).
7

vessel.30 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.”31 OPA was intended to cure 

these deficiencies in the law. 

 Notwithstanding the above, under limited circumstances the OSLTF may reimburse a 

responsible party for its uncompensated removal costs and damages. In order to receive OSLTF 

reimbursement a responsible party must show an entitlement to either a defense or limited 

liability under the OPA. Specifically, 33 U.S.C. § 2708(a) (emphasis added) provides that: 

The responsible party for a vessel or facility from which oil is discharged, or which poses the 

substantial threat of a discharge of oil, may assert a claim for removal costs and damages 

under section 2713 of this title only if the responsible party demonstrates that--

(1) the responsible party is entitled to a defense to liability under section 2703 of this title; or 

(2) the responsible party is entitled to a limitation of liability under section 2704 of this title. 

 Under the plain meaning of 33 U.S.C. § 2708(a), a responsible party must demonstrate that 

either a defense or limited liability 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. 32 

Therefore, just like 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 establish 

an entitlement to compensation from the OSLTF, or fails to establish the elements by a 

preponderance of the credible evidence, the NPFC must deny the claim.33 

 

30 33 U.S.C. § 2701(32)(A). 31 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.). 32 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).

33 OPA’s legislative history supports NPFC’s conclusion 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 the owner of oil on a tank vessel, or a 

guarantor for that responsible party or owner of oil, to assert a claim for removal costs and 

damages only if the responsible party or owner can show that the responsible party or owner has 

a defense to liability, or is entitled to a limitation of liability. In the latter case, a claim may be 

submitted only to the extent amounts paid by the responsible party or owner, or by a guarantor on 

the responsible party's or owner's behalf, exceeds the applicable limit on liability. 

H.R. Conf. Rep. 101-653, 110, reprinted in 1990 U.S.C.C.A.N. 779 (August 1, 1990) (emphasis added). See also, 

Apex Oil Co., Inc. v. United States, 208 F.Supp.2d 642 (E.D. La., 2002)(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); Bean Dredging, 

LLC v. United States, 773 F.Supp.2d 63, 86 (D.D.C. 2011)(the responsible party “had the burden of proof of 

establishing its entitlement to reimbursement on the administrative level” ...); and Water Quality Ins. Syndicate v. 

United States, 632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(holding that it is the responsible party, not the NPFC, 
8

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

Specifically, the Starrigavan Bay was a navigable waterway of the United States and the oil spill 

at issue here was an incident under the OPA. In addition, Samson was the owner and operator of 

the tug POWHATAN, and therefore the responsible party for this incident. Because this claim 

was submitted to NPFC on April 29, 2019, it is a timely claim. The remaining issues are 

discussed below. 

C. Limitation of Liability

 Under 33 U.S.C. § 2704 (a), a responsible party may limit its liability for removal costs and 

damages. However, OPA’s limited liability will not apply if the incident was proximately 

caused by the responsible party’s willful misconduct, gross negligence, or violation of a federal 

regulation.34 Also, under 33 U.S.C. § 2704 (c)(2), limited liability will not apply when the 

responsible party fails: 

(A) to report the incident as required by law and the responsible party knows or 

has reason to know of the incident; 

(B) to provide all reasonable cooperation and assistance requested by a 

responsible official in connection with removal activities; or

(C) without sufficient cause, to comply with an order issued under subsection (c) 

or (e) of section 1321 of this title or the Intervention on the High Seas Act (33 U.S.C. § 

1471 et seq.). 

Claimants assert that they are entitled to limited liability under 33 U.S.C. § 2704 (a). If 

successful, Claimants would be permitted under 33 U.S.C. § 2708 to recover from the OSLTF 

their compensable removal costs and damages that exceed the applicable OPA limit of liability. 

Before the OSLTF can reimburse any costs or damages, Claimants must carry their burden of 

proving an entitlement to limited liability35

When submitting a limit of liability 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 

 

which has the burden to prove it [or in the case of an insurance company-claimant, its ensured] is entitled to a 

limitation of liability when making a claim against the OSLTF under 33 U.S.C. § 2708). 

Placing the burden of proof on a responsible party claimant seeking compensation under 33 U.S.C. § 2708 is 

consistent with the general rule that a party seeking relief bears the burden of proving an entitlement to that relief. 

Requiring a responsible party claimant to prove its entitlement to OSLTF compensation is also consistent with the 

general rule that a party with particular knowledge of the facts ought to bear the burden of proving those facts. As 

the owner and operator of the tug POWHATAN, Samson had unique access to the facts surrounding this incident 

because it was in control of the operations resulting in the discharge and had dominion and control over the 

discharging vessel. This unique access to the discharging vessel makes Claimants particularly well-positioned to 

actually know or discover the facts surrounding the incident. Placing the burden of proof on a responsible party and 

its insurers seeking compensation under 33 U.S.C. § 2708 incentivizes full disclosure of all relevant facts by 

Claimants who are well-positioned to know or learn what happened during an OPA incident. 34 33 U.S.C. § 2704 (c)(1). 35 See, 33 U.S.C. § 2708.
9

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.”36 This is not an impossible burden to carry. 37 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.38 When analyzing whether a responsible party has met its burden of 

 

36 United States v. Grogg, 9 F.2d 424, 426 (W.D. Va. 1925). 37 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). 38 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).
10

proof, it is important to note that the terms “gross negligence” and “willful misconduct” have 

distinct meanings under the OPA.39 The NPFC defines those terms as follows:40 

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.41

 

39 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 embody 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.”). 40 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). 

41 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 

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 
11

 

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. 

42

In this case, Claimants satisfied their burden of proving an entitlement to limited liability. For 

the purposes of this claim determination, the NPFC finds that the incident was not proximately 

caused by the gross negligence or willful misconduct of Samson. Further, there is no evidence in 

the administrative record that indicates the incident was proximately caused by a violation of an 

 

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.”). 

42 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 probable 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 (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.”). 
12

applicable federal safety, construction, or operating regulation by Samson. Additionally, 

Samson timely accepted responsibility for the incident and provided appropriate cooperation and 

assistance with respect to the removal action. Accordingly, NPFC finds that none of the 

exceptions to the limitation of liability found at 33 U.S.C. § 2704(c) apply based on the facts of 

this incident. 

 D. OSLTF Compensable Removal Costs 

The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan (NCP).43 The NPFC has promulgated a comprehensive set 

of regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.44 The claimant bears the burden of providing all evidence, information, and 

documentation deemed relevant and necessary by the Director of the NPFC, to support and 

properly process the claim.45

 Before reimbursement can be authorized for uncompensated removal costs, the claimant must 

demonstrate by a preponderance of the evidence: 

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects of the 

incident; 

(b) That the removal costs were incurred as a result of these actions;

(c) That the actions taken were directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan. 

(d) That the removal costs were uncompensated and reasonable.46

In this case, Claimants seek reimbursement of removal costs incurred in excess of the limit of 

liability under 33 U.S.C. § 2704. Under the OPA, the limit of liability applicable to the 

POWHATAN was $939,800.00. Claimants contend that they incurred $3,810,523.83 in removal 

costs. As a result, Claimants seek a total of $2,870,723.83 as compensation for their removal 

costs incurred in excess of the limit. The NPFC reviewed the documentation submitted by 

Claimants to adjudicate whether the claimants had incurred all costs claimed. NPFC’s 

adjudication focused on: (1) whether the actions taken were compensable “removal actions” 

under OPA and the claims regulations at 33 CFR 136 (e.g., actions to prevent, minimize, 

mitigate the effects of the incident); (2) whether the costs were incurred as a result of these 

actions; (3) whether the actions taken were determined to be consistent with the NCP, and (4) 

whether the costs were adequately documented and reasonable. 

 

The NPFC analyzed each of these factors and determined the majority of the removal costs 

incurred by the claimants and submitted herein are compensable removal costs based on the 

supporting documentation provided. The NPFC determined all approved costs invoiced at the 

appropriate rate sheet pricing were billed in accordance with the rate schedule provided. All 

approved costs were supported by adequate documentation which included invoices, proofs of 

payment, and/or FOSC statements. 

 

43 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 44 33 CFR Part 136. 45 33 CFR 136.105. 46 33 CFR 136.203; 33 CFR 136.205.
13

The amount of compensable removal costs totals $2,727,526.71, while $143,197.12 of the 

claimed removal costs were deemed not compensable for the following reasons: 

1. Charges in the amount of $48,062.13 for State of Alaska Department of 

Environmental Conservation (ADEC) personnel as the rates charged were not 

supported. In addition, since all ADEC labor charges were denied, all ADEC charges 

in support of ADEC personnel were also denied. 

2. Charges in the amount of $1,607.09 for duplicate billings. Tools and supplies in the 

amount of $563.46 and lodging costs for Mr. in the amount of 

$1,043.63 were submitted twice;

3. Charges in the amount of $42,518.43 for personnel costs that were not supported by 

daily worksheets, logs or rate schedules;

4. Charges in the amount of $9,667.88 for expenditures with redacted explanations and 

not otherwise supported in the record; 

5. Charges in the amount of $41,341.59 for miscellaneous expenditures that either 

lacked any type of supporting documentation (including an unsupported finance 

charge from American Commercial Divers in the amount of $27,128.99), or were the 

result of unidentified differences on invoiced amounts, billing rate errors and 

rounding errors as documented in Enclosure 3. 

E. OSLTF Compensable Natural Resource Damages 

The RP claimed $19,080.2547 in damages that the RP describes in its claim as being related 

to natural resource damages (NRD) for the incident. To clarify the type of damages claimed, the 

NPFC asked the Claimants on August 29, 2019, to specify “the type of damage as defined under 

33 U.S.C. §2702 for which you seek reimbursement”. 48 In the response to the NPFC, the RP did 

not specifically state that the costs were for NRD, but reiterated that these costs were “damages 

for services related to the NRDA claim”.49,50 As more fully discussed below, the $19,080.25 

claimed for NRD is denied. To the extent that the RP is claiming for reimbursement of NRD51

for past assessment costs, the NPFC has determined that the RP failed to prove that they have the 

authority to independently incur and/or recover its own assessment costs related to a natural 

resource damage assessment (NRDA). Further, the RP failed to prove that its claimed costs were 

eligible to be treated as trustee assessment costs. Lastly, even if the RP had established its 

 

47 The RP originally claimed $14,482.75, but then claimed an additional $4,597.50 on October 23, 2019. 48 Email from NPFC to , dated August 29, 2019. 49 Email from to NPFC, dated September 4, 2019. 50 33 CFR 136.109(b) requires that a claimant specifically identify a category for all damages claimed. 51 33 U.S.C. § 2704(a) provides that an RP’s OPA liability cannot exceed “the total of the liability of a responsible 

party under section 2702 of this title and any removal costs incurred by, or on behalf of, the responsible party.” 

Accordingly, even if a RP had incurred compensable NRD costs, those costs could still not be counted towards its 

liability limit. Only those NRD costs incurred pursuant to § 2702(a), (i.e., NRD costs incurred by a trustee and 

reimbursed by the RP) would count towards the satisfaction of a RP’s liability limit. 

(b) (6) (b) (6) (b) (6)
14

claimed costs were eligible to be treated as OPA-compensable trustee assessment costs, the RP 

failed to provide the evidence required by 33 CFR 136.209. 

 

Legal Authorities Controlling OSLTF Reimbursement of NRD

33 U.S.C. § 2706(a) establishes the general principle that liability for NRD under OPA shall 

only be to the United States government, a State, any Indian tribe, or a foreign government. This 

exclusive liability follows directly from OPA’s definition of natural resources themselves, which 

provides that natural resources are those resources “belonging to, managed by, appertaining to, 

or otherwise controlled by” the United States, any State or local government or Indian tribe, or 

any foreign government.52 OPA further directed NOAA, with consultation from other agencies, 

to promulgate regulations that provide guidance on how trustees conduct NRDAs. These 

regulations state that “reasonable assessment costs” means “for assessments conducted under this 

part, assessment costs that are incurred by trustees in accordance with this part.”53 Collectively, 

these legal principles demonstrate the singular authority and role that designated trustees are 

endowed with pursuant to OPA. As intended by OPA, trustees have the sole responsibility to 

“act on behalf of the public” and the exclusive authority to conduct NRDAs for those natural 

resources “under their trusteeship”.54 

This restrictive authority to incur OPA-compensable NRD assessment costs is further 

evidenced by the manner in which claimant eligibility was structured in OPA. 33 U.S.C. § 

2702(b)(2)(A) specifies that NRD “shall be recoverable by a United States trustee, a State 

trustee, an Indian tribe trustee, or a foreign trustee.” Correspondingly, 33 CFR 136.207 provides 

that claims for uncompensated NRD may be presented to the Fund by an appropriate natural 

resource trustee. Trustees are the only authorized claimants in OPA who may submit a claim for 

NRD because, quite clearly, they are the only entities authorized to incur OPA-compensable

NRD. 

Further, proving an entitlement to limited liability under 33 U.S.C. §§ 2704 and 2708 does 

not authorize OSLTF reimbursement of a RP’s NRD costs. While § 2708(b) states that a RP may 

recover for “removal costs and damages incurred by the responsible party,” that language does 

not establish a right of OSLTF reimbursement of a RP’s own costs associated with NRDA. As 

described above, the RP has no authority to independently “incur” OPA-compensable NRD 

costs. Thus, a RP’s limit is irrelevant to their ability to submit claims for its own assessment 

costs associated with NRD. Stated another way, if a RP has no authority to independently incur 

or recover such costs prior to the granting of a limit, there is no basis in § 2708 that transforms 

RP assessment costs into reimbursable trustee NRD costs after a limit has been granted. 

Notwithstanding the trustee-focused context of NRD established by OPA and associated 

regulations, the NPFC acknowledges that, if a trustee seeks to conduct a NRDA pursuant to 

 

52 33 U.S.C. §2701(20). 53 15 CFR 990.30. Congress’s intent to give trustees sole NRDA authority is supported by the contemporaneous 

record of OPA’s enactment, where it was stated “Assessments, of course, must be conducted by trustees, not by 

responsible parties.” S. Rep. No. 101-94 (1989), reprinted in 1990 U.S.C.C.A.N. 722). 54 33 U.S.C. §§ 2706(b)(1) & (c). These exclusive natural resource trustee authorities and responsibilities are also 

discussed in detail in the National Contingency Plan. 40 CFR 300, Subpart G. 
15

NOAA’s NRDA regulations55, it is required to invite the RP to participate in the NRDA.56

However, this invitation to participate does not transfer any inherent trustee authority or 

responsibility over to the RP to conduct a NRDA. There is nothing in OPA, or elsewhere, that 

suggests that participation in a NRDA is compulsory for a RP. If a RP elects to participate in a 

NRDA, generally, the RP carries the financial burden of this voluntary participation without 

expectation of relief via the OPA claims process. Even during a “cooperative” trustee/RP 

NRDA, the trustee still retains full authority and responsibility to assess and determine the 

magnitude of injury and plan appropriate restoration. Given that a RP does not obtain any 

independent trustee authority during a cooperative NRDA, costs incurred by the RP during a 

cooperative assessment do not automatically become OPA-compensable. 

NRD Claims Process for OSLTF Reimbursement

 

Based on the legal authorities discussed above, the NPFC describes a path forward for 

adjudicating NRD claims presented to the Fund from RP claimants. While the RP does not have 

authority to incur NRD independently, under some circumstances, if an RP evidences that it 

incurred costs at the explicit direction of a trustee and on behalf of the trustee for activities 

determined by the trustee to be necessary to support the trustee-led NRDA, then those RP costs 

may be reimbursed by the NFPC as OPA-compensable NRD damages with respect to a limit of 

liability claim. Stated another way, these are costs that would have been incurred by the Trustee 

for NRDA activities and the trustee authorized that the RP could fund those activities directly. 

In this instance, pursuant to 33 CFR 136.105(a), the RP bears the burden of establishing that the 

trustee, at its direction and on its behalf, authorized the costs and that the costs were necessary to 

support the trustee-led NRDA. 

This standard for RP reimbursement of NRD assessment costs, which relies on the explicit 

direction of the Trustees, is identical for restoration costs as well. An RP has no authority to plan 

and implement restoration on its own, independent of the trustees. Thus, in order for an RP to be 

reimbursed for restoration costs, the RP must evidence that it funded the restoration project at the 

explicit direction of the trustee and the project was identified and described in the trustee’s 

restoration plan for making the public whole for injuries resulting from an OPA incident. 

 

The NPFC recognizes that this standard for RP reimbursement may differ from previous 

NPFC NRD adjudicative actions, which relied primarily on the general existence of a 

cooperative NRDA between the trustees and RP. An agency’s view of what is in the public 

interest may change, either with or without a change in circumstances. But an agency changing 

course must supply a reasoned analysis.57 

 

 

55 The NPFC notes that RP participation in NRDA is not mentioned anywhere in OPA or the NPFC claims 

regulations and that that the use of NOAA’s NRDA regulations are not required by the NPFC. 56 15 CFR 990.14(c). At the trustees’ sole discretion, this participation may be limited to notice of trustee 

determinations under 15 CFR 990 and opportunity to comment on significant trustee documents. 15 CFR 

990.14(c)(4). 

57 Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) (quoting Greater Bos. 

Television Corp. v. FCC, 444 F. 2d 841, 852 (D.C. Cir. 1971). See also, Federal Communications Commission v. 

Fox Television Stations, Inc., 556 U.S. 502 (2009) (An agency is free to change its existing policies and standards as 

long as it displays an awareness of the change and provides a reasoned explanation for the change. The reason 

justifying the need not be more substantial than that required to adopt a policy in the first instance. It suffices that 

the new policy is permissible under the statute and the agency believes it to be better.).