3

CLAIM SUMMARY / DETERMINATION FORM

Claim Number : B13013-0014 

Claimants : Boston Marine Transport/Great American Insurance Company of New 

York/The American Steamship Owners Mutual Protection and Indemnity 

Association

Type of Claimant : Corporate 

Type of Claim : Third Party Property damage claim 50016 

Claim Manager : 

INCIDENT DETAILS

On December 13, 2012, at 2055, the tank barge BOSTON No. 30 (BOSTON 30) arrived at the New York 

Terminal, Elizabeth, NJ, to load 20,164.93 barrels of No. 6 fuel oil. Loading from the facility began at 

2310 and was completed on December 14, 2012, at 1115. At 1330, the BOSTON 30 departed New York 

Terminal under tow of the Tug QUENAMES through the Arthur Kill and Kill Van Kull along the south 

side of Shooter’s Island to the Mayship Repair in Staten Island, NY. The BOSTON 30 arrived at the 

Mayship Repair at 1525.1

 

At 2000, the Kirby tank barge DBL 25 (DBL 25) arrived alongside the BOSTON 30 to lighter the barge. 

Lightering of the BOSTON 30 began at 2035.2

 At 2215, the tankerman onboard the DBL 25 noticed oil 

in the water between the BOSTON 30 and DBL 25. Transfer of oil was stopped and sorbent boom was 

placed around both barges. The National Response Center was notified and Miller’s Launch was 

contacted to respond to the oil spill. Tank soundings onboard the BOSTON 30 and DBL 25 didn’t 

immediately reveal the source of the spill so the transfer of oil from the BOSTON 30 to the DBL 25 

resumed on December 15, 2012, at 0001. This transfer continued until 0120 when it was stopped for a 

second time as more oil was discovered in the water between the two barges. Approximately 30,000 

gallons of oil were released from the BOSTON 30.3

CG Sector New York provided oversight of the pollution removal activities and conducted the 

investigation. 

THE CLAIMANTS AND THE CLAIM:

The Claimants are Boston Marine Transport as the owner, operator and responsible party (RP) of the 

BOSTON 30; Great American Insurance Company of New York (Great American) as the subrogated 

primary insurer of the BOSTON 30 and the American Steamship Owners Mutual Protection and 

Indemnity Association (The American Club) as the subrogated excess insurer of the BOSTON 30. On 

December 11, 2015, the RP/Claimants submitted to the Oil Spill Liability Trust Fund (OSLTF or the 

Fund) a claim based on an assertion of entitlement to an act of God and sole fault of a third party defense 

or, in the alternative, entitlement to their applicable limit of liability. On March 23, 2017, the NPFC 

determined that the RP/Claimants were entitled to their limit of liability, but not entitled to either of the 

asserted defenses. Therefore, RP/Claimants will be reimbursed compensable costs exceeding their 

 

1

See tug logs submitted with claim dated December 9, 2015. See also CG Sector NY VTS clip submitted with claim 

dated December 9, 2015. See page 3 of claim submission dated December 9, 2015. 2

See tug logs submitted with claim dated December 9, 2015. 3 See Clean Waters of New York Invoice 01419 dated December 31, 2012.
4

applicable liability limit and incurred as a result of the oil-pollution incident under the Oil Pollution Act 

of 1990 (OPA).

4

 

The RP/Claimants seek reimbursement for amounts paid to third party claimants for property damages 

sustained. This determination pertains to the property damage claim payment made by the RP/Claimants 

to the Claimant listed in the Determination section below.

The RP/Claimants and the third party claimant named below executed a release dated April 12, 2013, 

whereby the third party damage claimant acknowledged receipt of compensation and released the 

RP/Claimants from all further liability. Thus, in compensating the third party damage claimant for his 

losses due to the incident, the RP/Claimants are subrogated to the claim for damages and are eligible to 

present this claim for damages to the Fund for reimbursement, following the same standards as required

for any third party damage claimant.

APPLICABLE LAW:

Under OPA 90, at 33 USC § 2702(a), responsible parties are liable for removal costs and damages 

resulting from the discharge of oil into navigable waters and adjoining shorelines, as described in Section 

2702(b) of OPA 90. 

Under 33 CFR 136.105(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident.

33 USC 2713 allows a responsible party to submit a claim directly to the Oil Spill Liability Trust Fund.

Under 33 USC 2708, a responsible party who is entitled to a limitation of liability may assert a claim 

under section 2713 of this title only to the extent that the sum of the removal costs and damages incurred 

by the responsible party plus the amounts paid by the responsible party, or by the guarantor on behalf of 

the responsible party, for claims asserted under section 2713 of this title exceeds the amount to which the 

total of the liability under section 2702 of this title and removal costs and damages incurred by, or on 

behalf of, the responsible party is limited under section 2704 of this title.

Damages include damages for injury to natural resources, injury to or economic losses from the 

destruction of real or personal property, loss of subsistence use of natural resources, Government loss of 

revenues, loss of profits or earning capacity as a result of loss or destruction of real or personal property 

or natural resources, and costs of increased public services. 33 U.S.C. §2702(b). Damages are further 

defined in OPA to include the costs of assessing the damages. 33 U.S.C. §2701(5).

Damage claims must be presented within 3 years after the date on which the injury and its connection 

with the discharge in question were reasonably discoverable with the exercise of due care. 33 U.S.C. 

§2712(h)(2).

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing all evidence, 

information, and documentation deemed necessary by the Director, NPFC, to support the claim. Further, 

a claim presented to the Fund should include, as applicable:

 4 See OSLTF Claim Form dated December 9, 2015. Total removal/damage costs paid by claimant was 

$18,626,072.35 (CG costs of $305,618.01 are not included in this figure as they were never billed to the Claimant). 

The vessel’s gross tonnage is 1634. At the time of the incident the statutory limit on liability for this vessel was 

$3,200.00 per gross ton ($5,228,800.00) or $6,408,000.00 whichever is greater. 33 C.F.R. 138.230(a)(3).
5

“[T]he reasonable costs incurred by the claimant in assessing the damages claimed. This includes 

the reasonable costs of estimating the damages claimed, but not attorney’s fees or other 

administrative costs associated with preparation of the claim.” 33 CFR 136.105(e)(8). 

The pertinent provisions of the regulations relating to property damage claims follow: 

33 CFR §136.213 Authorized claimants.

(a) A claim for injury to, or economic losses resulting from the destruction of, real or personal 

property may be presented only by a claimant either owning or leasing the property. 

(b) Any claim for loss of profits or impairment of earning capacity due to injury to, destruction of, 

or loss of real or personal property must be included as subpart of the claim under this section and must 

include the proof required under §136.233. 

33 CFR §136.215 Proof.

(a) In addition to the requirements of subparts A and B of this part, a claimant must establish— 

(1) An ownership or leasehold interest in the property; 

(2) That the property was injured or destroyed; 

(3) The cost of repair or replacement; and

(4) The value of the property both before and after injury occurred. 

33 CFR §136.217 Compensation allowable. 

(a) The amount of compensation allowable for damaged property is the lesser of— 

(1) Actual or estimated net cost of repairs necessary to restore the property to substantially the same 

condition which existed immediately before the damage;

(2) The difference between value of the property before and after the damage; or 

(3) The replacement value.

DETERMINATION:

The RP/Claimants argue that they are entitled to reimbursement of amounts paid for damages to boats and 

other personal property of third party claimants. They provided individual files records for each of the 

claims paid. The files contain information reported by the damage adjuster, photographs of the damaged 

property, the marine surveyor’s estimate, statement of loss by each third party claimant, proof of identity 

and ownership, details of the amount paid and proof of payment. 

The RP/Claimants hired Global Risk Solutions (GRS) to assess the damages and settle the damage 

claims. The GRS adjusters personally visited local marinas to inspect each claimant’s property. After 

visually inspecting the claimed damaged property, the GRS representatives valued each claimant’s 

damages using a standardized methodology for boats and separate standardized methodology for dockside 

personal property. 

For vessels, an accredited marine surveyor appraised the condition of the vessel and provided an estimate 

for restoring the boat to its condition prior to the spill.5

 GRS states that the repair estimates from seven 

local repair facilities were used to corroborate the repair estimates. They supplied the repair cost 

estimate, replacement value, and pre- and post-spill values for the vessels. They utilized National 

Automobile Dealers Association (NADA) guidelines for valuing the vessels. They state that the repair 

costs equaled the difference between the vessel before and after the injury; meaning that the vessel lost 

value in the amount equal to the repair cost. If the vessel was worth less than the repair estimate, the 

value of the boat was the compensation paid.

 

5

See survey conducted by Capt. , A.M.S. dated March 30, 2013, supplied with Claimant’s file.
6

For dockside personal property, they calculated a value using a comparative average of prices from four 

different marine suppliers. They assumed the dockside property could not be cleaned or repaired. They 

specifically stated that they didn’t feel it was necessary to make the valuation because they state that the 

difference between the pre and post-incident values in most cases was “necessarily equal to the repair 

costs”6 and was not practical or cost-effective to evaluate. They state that they factored in the age and 

condition of the property when settling the claims. 

The RP/Claimants argue that their methodology is sufficient to satisfy the requirements set forth in 33 

CFR §136.215 of the regulations. 

This determination applies to the property damage claim of Mr. . Mr. sought 

compensation for damages to his fiberglass vessel and six boat fenders; two boat lines and ten dock floats. 

Based upon the assessment of vessel and dockside personal property damage by Mr. , GRS 

field agent on February 28, 2013, the RP/Claimants paid Mr. a total of $3,141.89, which 

included $2,663.00 as vessel settlement and $478.89 as dockside property settlement. 

 

For this vessel, the valuation methodology produced a composite estimate of $2,663.00 for hauling and 

blocking; decal/painting; boot stripe painting; sanding and bottom painting; and cleaning, waxing and 

buffing; which was more than the marine surveyor’s estimate for repairs. Specifically, the marine 

surveyor assessed the vessel and estimated the repair cost to be $925.00, which included 

recommendations for sanding and painting the bottom of the vessel; repair to the boot stripe and removal 

of oil stains from all sides of the vessel.7

 GRS used his repair recommendation but valued the repair 

based on their composite estimate methodology. The NPFC accepts the use of the marine surveyor for 

obtaining an opinion as to the condition of the boat and recommendation for repair. Further, the fact that 

GRS used their own methodology for calculating repair costs with a contemporaneous objective 

composite estimate rather than using the marine surveyor’s estimate is more reliable because it is backed 

up by documentation of actual prices for the work in that area. The RP/Claimants state that the value of 

the boat before the incident was $8,730.008

 and the value after the incident was $6,067.00,9 leaving a 

$2,663.00.00 difference in value. Therefore, they paid him the difference between the value of the 

property before and after the injury, which they determined was $2,663.00. The RP/Claimants have thus 

provided the appropriate valuations for the boat as required by the applicable regulation.

Mr. was also paid $478.89 for the dockside property which included the replacement of six boat 

fenders and two boat lines with applicable sales tax but excluded the ten claimed dock floats as there was 

no verifiable evidence to support any damage to the dock floats. RP/Claimants state that their settlement 

was based upon a comparable average and condition of the dockside property at the time of the 

assessment but replaced the property “as new” even though Mr. assessed the general 

condition of the approximately two year old boat lines as “good”, and the general condition of the 

approximately three year old boat fenders as “average” during his assessment. When reviewing this 

claim, the NPFC questioned the RP/Claimants rationale for paying full value for dockside property that 

was not new, as the applicable regulations are very clear about allowable compensable costs.10 Specific 

to this claim, the RP/Claimant never attempted to clean or repair the six boat fenders or two boat lines but 

argued that repair costs were not cost effective and instead provided full replacement value for used 

 

6 See the 05/17/2016 email from . 7 See survey conducted by Capt. , A.M.S. dated March 30, 2013, supplied with Claimant’s file.

8 Based on the NADA values provided via email November 17, 2016.

9 The residual value was based on deducting the repair cost from the pre-incident value of the boat. Objectively, the 

boat loses value in an amount equal to what it costs to bring it back to its condition prior to the incident. See Vessel 

and Dockside Property Valuation spreadsheet 2.0 obtained from Mr. on November 9, 2016. 10 See May 17, 2016 email from .
7

equipment.11 They also did not calculate a value to the dockside property before and after the incident 

citing that in most cases, those costs were equal to the repair costs and were not practical nor cost 

effective to evaluate. Lastly, they argue that their dockside property valuations accounted for age and 

condition12, but did not provide the calculations showing any adjustments for age and condition when 

determining the payment amounts. The RP/Claimants did not provide the proper valuations of the 

dockside personal property as required by the regulation and as such, their dockside property costs are not 

a valid for compensation under OPA. 

The OSLTF may only reimburse the lesser of the cost of repair, replacement value, or the difference 

between the value of the property before and after the damage.13 As calculated and paid by the 

RP/Claimants, the NPFC approves $2,663.00 of costs paid for vessel repairs, which was the difference in 

value before and after the damage but still less than the replacement value of the vessel. As such, the 

OSLTF may compensate the RP/Claimants for the amount paid in accordance with the OPA claims 

regulations.

The NPFC determines that the RP/Claimants should be paid $2,663.00 for the payment made to Mr. 

 for damage to his vessel. 

Claim Supervisor: 

Date of Supervisor’s Review: 4/7/2017

Supervisor Action: Approved

Supervisor’s Comments:

 

11 See RP/Claimants submission claim tab 50016. 12 See May 17, 2016 email from . 13 33 C.F.R. §136.217