CERTIFIED MAIL – RETURN RECEIPT REQUESTED 5890/DWHZ 

Number: 7011 1150 0000 4636 2335 21 November 2011 

 

Delphfishing, Inc. 

Attn: 

183 Venetian Way

Sugarloaf Key, FL 33042 

Re: Claim Number: N10036-1474 

Dear 

The National Pollution Funds Center (NPFC), in accordance with the Oil Pollution Act of 1990, 33 

U.S.C. § 2701 et seq. (OPA) and the associated regulations at 33 C.F.R. Part 136, denies payment on the 

claim number N10036-1474 involving the Deepwater Horizon oil spill. Please see the attached Claim 

Summary/Determination Form for further explanation. 

You may make a written request for reconsideration of this claim. The reconsideration must be received 

by the NPFC within 60 days of the date of this letter and must include the factual or legal basis of the 

request for reconsideration, providing any additional support for the claim. However, if you find that you 

will be unable to gather particular information within the time period, you may include a request for an 

extension of time for a specified duration with your reconsideration request. 

Reconsideration of the denial will be based upon the information provided. A claim may be reconsidered 

only once. Disposition of that reconsideration in writing will constitute final agency action. Failure of 

the NPFC to issue a written decision within 90 days after receipt of a timely request for reconsideration 

shall, at the option of the claimant, be deemed final agency action. All correspondence should include 

claim number N10036-1474. 

Mail reconsideration requests to:

Director (ca)

NPFC CA MS 7100 

US COAST GUARD

4200 Wilson Blvd, Suite 1000 

Arlington, VA 20598-7100 

Sincerely,

Claims Adjudication Division

National Pollution Funds Center

U.S. Coast Guard 

Enclosure: Claim Summary/Determination Form 

U.S. Department of 

Homeland Security

United States

Coast Guard

Director

National Pollution Funds Center

United States Coast Guard

NPFC CA MS 7100

US COAST GUARD

4200 Wilson Blvd. Suite 1000

Arlington, VA 20598-7100

Staff Symbol: (CA)

Phone: 800-280-7118

E-mail: 

arl-pf-npfcclaimsinfo@uscg.mil

Fax: 202-493-6937
CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1445

Claimant Delphfishing, Inc.

Type of Claimant Corporate (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $361,138.00

FACTS 

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

was discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

claims for certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT

On 6 October 2011, Mr. William Delph, on behalf of Delphfishing, Inc. (collectively the 

Claimant) presented a claim to the Oil Spill Liability Trust Fund (OSLTF) seeking $361,138.00 

in loss of profits and impairment of earning capacity damages resulting from the Deepwater 

Horizon oil spill.1

The Claimant offers charter fishing services near Key West, Florida. The Claimant alleged that 

concerns regarding the Deepwater Horizon oil spill caused charter fishing trips to be cancelled 

and bookings to be low in the summer of 2010 and continuing through 2011. Specifically, the 

Claimant stated, “Delphfishing, Inc.’s bookings decreased as negative publicity from the oil spill 

increased. When there is an interruption of business, our clients’ vacation destinations and habits 

change. Rebuilding our client base with new clients has proved to be far more difficult in the 

current state of this economy than hoped for.”2

The Claimant alleged to have sustained losses due to low bookings and cancellations in the 

amount of $361,138.00 from 20 April 2010 to 27 September 2010.3

APPLICABLE LAW 

Under the Oil Pollution Act of 1990 (OPA), at 33 U.S.C. § 2702(a), responsible parties are liable 

for removal costs and damages resulting from the discharge of oil into or upon the navigable 

waters or adjoining shorelines or the exclusive economic zone, as described in § 2702(b) of 

OPA. 

The OSLTF which is administered by the NPFC, is available, pursuant to 33 U.S.C. § 2712(a)(4) 

and § 2713 and the OSLTF claims adjudication regulations at 33 C.F.R. Part 136, to pay claims 

for uncompensated damages. One type of damages available pursuant to 33 C.F.R. § 136.231 is 

a claim for loss of profits or impairment of earning capacity due to injury to or destruction of 

natural resources.

1 Optional OSLTF Claim Form, dated 27 September 2011. 

2 Delphfishing, Inc. Hardship Letter, undated.

3 In a letter titled, “Delphishing, Inc. Hardship Letter,” the Claimant states “the calculated loss of profits from April 

20, 2010 to current date is $361,138.00.” The Claimant signed the OSLTF claim form included in this submission 

on 27 September 2011.

 
Under 33 C.F.R. § 136.233 a claimant must establish the following:

(a) That real or personal property or natural resources have been injured, destroyed, or lost.

(b) That the claimant’s income was reduced as a consequence of injury to, destruction of, or 

loss of property or natural resources, and the amount of that reduction.

(c) The amount of the claimant’s profits or earnings in comparable periods and during the 

period when the claimed loss or impairment was suffered, as established by income tax 

returns, financial statements, and similar documents. In addition, comparative figures for 

profits or earnings for the same or similar activities outside of the area affected by the 

incident also must be established.

(d) Whether alternative employment or business was available and undertaken and, if so, the 

amount of income received. All income that a claimant received as a result of the 

incident must be clearly indicated and any saved overhead and other normal expenses not 

incurred as a result of the incident must be established. 

Under 33 C.F.R. § 136.105(a) and § 136.105(e)(6), the claimant bears the burden of providing to 

the NPFC, all evidence, information, and documentation deemed necessary by the Director, 

NPFC, to support the claim. 

Under 33 C.F.R. § 136.235, the amount of compensation allowable for a claim involving loss of 

profits or impairment of earning capacity is limited to the actual net reduction or loss of earnings 

or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments 

for—

(a) All income resulting from the incident;

(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertake, but reasonably 

available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and

(e) State, local, and Federal taxes.

DETERMINATION OF LOSS 

Claimant’s Submission to the OSLTF

To support this claim, the Claimant submitted the following documentation:

• Optional OSLTF Claim Form, dated 27 September 2011;

• Delphfishing, Inc. Hardship Letter, undated;

• Email from Darryl Pyles to the Claimant, 19 May 2010;

• Email from Hal Arve to the Claimant, 18 October 2010;

• Email from Brian Buetel to the Claimant, 19 October 2010;

• Email from Kevin Smith to the Claimant, 20 October 2010;

• Email from Joe Beale to the Claimant, 20 October 2010;

• Email from John L. Alger to the Claimant, 15 October 2010;

• Email from prinzrenglll@yahoo.com to the Claimant, 15 October 2010;

• Email from Blas Maidagan to the Claimant, 15 October 2010;

• Email from Steve Bolles to the Claimant, 15 October 2010;

• Email from Steve Kaiser to the Claimant, 15 October 2010;

• Email from Earl Gordon to the Claimant, 15 October 2010;

• Email from Gary Chotiner to the Claimant, 16 October 2010;
• Email from mfitzcat@comcast.net to the Claimant, 16 October 2010;

• Invoice, Key West Harbour Monthly Rental Payment, 1 April 2010;

• 2009/2010 Monroe County Business Tax Receipt;

• 2011/2010 Monroe County Business Tax Receipt;

• Copy of State of Florida, Recreational License, 2009 – 2010;

• Copy of State of Florida, Recreational License, 2010 – 2011;

• Federal Fisheries Permit, expires 30 June 2009;

• United States Coast Guard, U.S. Merchant Marine Officer Certification, 18 August 2006;

• Delphfishing, Inc, “2 Year Comparison Statement of Loss,” 2008, 2011;

• Delphfishing, Inc. 2009 Monthly Income with explanation;

• Delphfishing, Inc., “2 Year Comparison Statement of Loss,” 2008, 2010;

• 2010 Form 1120S, showing gross sales of $112,543.00 and income of $-81,236.00;

• 2010 Schedule K-1 (Form 1120S);

• 2010 Form 4562;

• 2009 Form 1120S, showing gross sales of $130,125.00 and income of $-17,447.00;

• 2009 Schedule K-1 (Form 1120S);

• 2009 Form 4562;

• 2009 Form 4797;

• 2008 Form 1120S, showing gross sales of $225,851.00 and income of $23,374.00;

• 2008 Schedule K-1 (Form 1120S);

• 2008 Form 4562;

• 2008 Form 4797;

• 2008 Form 8824;

• Email response to request for additional information, 10 November 2011.

• Email from the Claimant to the NPFC, 15 November 2011, including client booking 

history;

• 2008, 2009, 2010 booking calendar.

Prior to presentment to the NPFC, the Claimant presented an Emergency Advance Payment 

claim (EAP) to RP/GCCF, seeking $45,800.00 in loss of profits and wages damages.4

 The 

Claimant was assigned ID # 3174437 and the EAP claim was assigned Claim # 229793.5

 This 

claim was paid in full on 15 November 2010.

On 1 April 2011, the Claimant submitted a Second Quarter Interim Payment Claim (ICQ22011) 

to the RP/GCCF, seeking loss of profits and wages damages.6

 ICQ22011 was assigned Claim # 

9346257.7

 As of the date of this determination, the claim has been deemed deficient, and no 

action has been taken by the RP/GCCF.8

On 6 October 2011, the Claimant presented this claim to the NPFC, seeking loss of profits and 

impairment of earnings capacity damages in the amount of $361,138.00.9

 Because no 

determination has been issued on the ICQ22011 within 90 days of presentment, the NPFC may 

properly adjudicate the entirety of this claim as now before the NPFC, to the extent that this 

4 GCCF Notice of Determination, Emergency Advance Payment, 15 November 2010.

5 GCCF Claimant Status, accessed on 11 October 2011.

6 Delphfishing, Inc. Hardship Letter, undated; See also, Optional OSLTF Claim Form, dated 27 September 2011. 7 GCCF Claimant Status, accessed on 11 October 2011.

8 GCCF Claimant Status, accessed on 11 October 2011.

9 Optional OSLTF Claim Form, dated 27 September 2011.

 
damage amount was first presented to the RP/GCCF.10 And damage amount now before the 

NPFC, which was not first presented to the RP/GCCF is denied.11

NPFC Determination

Under 33 U.S.C. § 2702(b)(2)(E) and 33 C.F.R. Part 136, a claimant must prove that any loss of 

income was due to injury, destruction or loss of real or personal property or of a natural resource 

as a result of a discharge or substantial threat of a discharge of oil. Under 33 C.F.R. § 136.105(a) 

and § 136.105(e)(6), the claimant bears the burden of providing to the NPFC all evidence, 

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

This claim is denied because the Claimant (1) has not presented documentation sufficient to 

verify the claimed damage amount, (2) has not demonstrated that he sustained an actual loss of 

profits due to the Deepwater Horizon oil spill and because (3) payments previously made to the 

Claimant by the Responsible Party have fully compensated the Claimant for any losses allegedly 

incurred.

1. The Claimant has not presented documentation to verify his claimed damage amount.

The Claimant alleged that low and cancelled bookings for fishing charters resulted in a loss of 

profits in the amount of $361,138.00, from May 2010 to 27 September 2011.12 The Claimant 

also stated that he had sustained a loss of revenue in that same period in the amount of 

$206,673.00.13 The Claimant calculated his losses by comparing his monthly profit and revenue 

in 2008 to monthly profit and revenue in 2010 and then in 2011. The Claimant requested that 

2009 not be used as a comparison year, due to health factors which “hindered [the Claimant’s] 

ability to work.”14 As compared to his 2008 profits, the Claimant alleged to have lost 

$244,955.00 in 2010 and $116,143.00 in profits from January – September 2011.15 

Profit and Loss statements provided by the Claimant indicate that the Claimant earned profits of 

$22,744.00 in 2008, $(-17,447.00) in 2009 and ($-191,773.00) in 2010.16 According to the 

Claimant’s tax documentation, the Claimant reported revenue in 2008, 2009 and 2010 of 

$225,852.00, $130,125.00, and $112,543.00.17 Although the Claimant’s revenue only decreased 

by $17,582.00 from 2009 to 2010, the Claimant alleged that his profits decreased by $174,326.00 

during this time, indicating a substantial increase in expenses in 2010.

Based on the Claimant’s profit and loss statements, the Claimant incurred average monthly 

expenses of $12,976.67 in 2009 and average monthly expenses of $25,359.67 in 2010.18 This 

indicates that the Claimant’s loss of profits in 2010 was due in large part to the documented 

increase in expenses in 2010, rather than due to cancelled or decreased bookings. This 

substantial increase in 2010 expenses is in spite of the fact that the Claimant’s calendars indicate 

that the Claimant operated far fewer charters in 2010 as compared to 2009. The Claimant has 

10 33 C.F.R. § 136.103(c)(2). 11 33 C.F.R. § 136.103(a). 12 The Claimant stated, “the calculated total loss in profit from April 20, 2010 to current date is $361,138.00” 

Delphfishing, Inc. Hardship Letter; See also, OSLTF Claim Form, dated 27 September 2011. 13 Delphfishing, Inc. Hardship Letter. 14 2009 Monthly Income Statement. 15 Email from the Claimant to the NPFC, dated 22 October 2011. 16 2008, 2009 and 2010 monthly profit and loss statements. 17 2008, 2009, 2010 Forms 1120s. 18 Including monthly expenses of $81,857.00 in October 2010. Calculations based on the Claimant’s profit and loss 

statements.

 
not provided any indication as to how increased expenses may have been due to effects of the 

Deepwater Horizon oil spill. 

2. The Claimant has not demonstrated that he lost profits as a result of the Deepwater 

Horizon oil spill.

The Claimant stated that his 2009 income should not be used as a basis for calculating his actual 

losses, due to personal circumstances that affected the Claimant’s ability to continue normal 

business operations.19 Elsewhere in the Claimant’s submission he states that “when there is an 

interruption of business, our clients’ vacation destination and habits change.”20 The Claimant 

makes this statement to support his claim that due to the interruption caused by the oil spill in 

2010, he had difficulty rebuilding a client base in 2011 and continued to sustain substantial 

losses. However, the Claimant also alleged that personal issues caused an interruption to his 

business in 2009. Therefore, it is unclear whether the Claimant’s alleged business losses in 2010 

were due to the oil spill or due to the interruption in business in 2009, particularly considering

that the Claimant’s bookings from January-March 2010, prior to the oil spill, appear substantially 

lower than bookings during those months of the prior year.21

Furthermore, the Claimant’s 2009 booking calendar does not reflect the Claimant’s assertion that 

he was hindered in his ability to work in that year. Rather, the Claimant’s calendar indicates that 

he maintained steady bookings throughout 2009, including during months when the Claimant 

reports little or no revenue on his profit and loss statements. For example, the Claimant’s profit 

and loss statements show zero revenue in November 2009, even though his calendar shows that 

he was engaged in various charter trips and other ventures for all but two days of that month. 

Additionally, the Claimant’s booking calendar indicates that his business was decreasing in 2010 

during the period leading up to the oil spill. The calendar indicates that the Claimant’s bookings 

were significantly lower in January-March 2010, as compared to the January and March of 2008 

and 2009. This is contrary to the Claimant’s profit and loss statements, which show that the 

Claimant reported revenue significantly higher in January – March 2010 as compared to 2009. 

For example, the Claimant’s 2009 calendar shows that in January and February 2009, the 

Claimant was engaged in either fishing trips, boat maintenance, or “selling bait” for all but four 

days of those two months. However, in 2010, 17 days in January and February were left free. 

The Claimant’s profit and loss statements, however, indicate that the Claimant earned revenue

approximately 7 times higher in January and February 2010, compared to those months in 2009. 

This is in spite of the Claimant’s 2010 calendar showing far fewer bookings in these months.22

Additionally, the Claimant’s calendars indicate that cancellations began on 24 April 2010, and 

continued through the summer of 2010.23 The dates on which the Claimant’s cancellations 

alleged to have begun were before the effects of the oil spill were either known or reported.24 In 

19 The Claimant stated that healthy problems “hindered my ability to work throughout the year of 2009” and notes 

that he “was finally admitted into the hospital in October 2009.” 2009 Monthly Income, Explanation of Profit and 

Loss. 

20 Delphfishing, Inc. Hardship Letter. 21 2008, 2009 and 2010 booking calendars provided by the Claimant. 22 . Profit and loss statements indicate that the claimant earned revenue of $2,748.00 in January of 2009, and 

$3,082.00 in revenue for February of 2009, compared to reported revenues of $22,721.00 and $21,804.00 in January 

and February of 2010, when Claimant’s bookings appear to be significantly lower.

23 The Claimant’s first cancellation is noted as Joe Holsinger, who cancelled a 4 day trip beginning on 24 April. 24 The Deepwater Horizon oil spill began on 20 April 2010.

 
fact, the first reports of the possibility that oil may reach the Florida Keys did not begin to 

surface until approximately mid-May 2010.25

In his original submission, the Claimant provided emails from various individuals noting that 

they had cancelled or not booked trips due to the Deepwater Horizon oil spill. Two of the 

individuals stated that they had cancelled scheduled trips due to the spill. The NPFC requested 

that the Claimant provide evidence of these bookings and cancellations.26 The Claimant stated 

that cancellations would be reflected in the booking calendars, provided by the Claimant via 

email.27 However information contained in the emails regarding cancelled or unbooked charters 

are not supported by the calendar, which fails to show that certain named individuals actually 

booked trips and later cancelled as a result of the oil spill. 28 Rather, most of the dates marked 

“cancelled” are not marked with a name, and contain no indication that there had been actual 

bookings on those dates.

3. Payments by the Responsible Party have fully compensated the Claimant for any losses 

allegedly sustained as a result of the Deepwater Horizon oil spill. 

The Claimant has been compensated by the Responsible Party in the amount of $45,800.00.29 

According to the Claimant’s profit and loss statements, in 2008, which was the Claimant’s 

highest grossing year, he reported profits of $22,744. Payment previously made to the Claimant 

is more than double the Claimant’s profits in his highest grossing year. Therefore, based on prior 

earnings, any losses the Claimant may have sustained as a result of the Deepwater Horizon oil 

spill have been fully compensated by the responsible party. 

This claim is denied because the Claimant (1) has not presented documentation sufficient to 

verify the claimed damage amount, (2) has not demonstrated that alleged losses were due to the 

damage to real or personal property caused by the discharge or substantial threat of discharge of 

oil, and because (3) payments made to the Claimant by the Responsible Party have fully 

compensated the Claimant for losses he alleged to have incurred.

Claim Supervisor: NPFC Claims Adjudication Division 

 

Date of Supervisor’s Review: 11/21/11

Supervisor’s Action: Denial approved

Supervisor’s Comments:

25 See, Timeline, Gulf of Mexico Oil Spill, Reuters, 3 June 2010. Available at 

www reuters.com/article/2010/06/03/oil-spill-events-idUSN0322326220100603. 26 NPFC request for additional information, 12 October 2011. 27 NPFC request for additional information, 12 October 2011. 28 An email from “Prince” states that he cancelled 10 days of fishing with the Claimant. The Claimant 29 GCCF Notice of Determination, Emergency Advance Payment, 15 November 2010.