3

CLAIM DETERMINATION 

Claim Number: B18003-0001 

Claimant: Cape Waterman Inc. D/B/A Sea Tow Cape & Islands

Type of Claimant: OSRO

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $1,088,560.25 

Action Taken: Offer in the amount of $1,004,001.35

EXECUTIVE SUMMARY: 

The vessel OCEAN KING discharged oil into Great Harbor, near Woods Hole, 

Massachusetts. Patriot Marine, LLC (“Patriot Marine” or “RP”) owned and operated the OCEAN 

KING is the responsible party (RP) as defined by the Oil Pollution Act of 1990.1 Cape Waterman 

Inc. D/B/A Sea Tow Cape & Islands (“Sea Tow” or “claimant”), commenced cleanup operations 

on the water and surrounding shoreline. Sea Tow presented its uncompensated removal costs to 

the RP. Having not received payment from the RP after ninety days,2 Sea Tow, through counsel,3

presented its uncompensated removal cost claim to the National Pollution Funds Center (NPFC) 

for $1,088,560.25.4 The NPFC has thoroughly reviewed all documentation submitted with the 

claim, analyzed the applicable law and regulations, and after careful consideration has 

determined that $1,004,001.35 of the requested $1,088,560.25 is compensable and offers this 

amount as full and final compensation of this claim.5 

 

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS: 

Incident 

At 1:14pm on January 21, 2018, the National Response Center received a report of an 

unknown sheen in the water and on the rocks in Great Harbor, a navigable waterway of the 

United States near Woods Hole, Massachusetts.6 Multiple sources reported various sheening and 

patches of black oil throughout the harbor, on the rocks and the adjacent shoreline throughout the 

day.7 

Responsible Party 

The USCG identified Patriot Marine as the responsible party for the incident.8 Patriot Marine 

owned the OCEAN KING at the time of the incident.9 The master of the OCEAN KING 

 

1 33 U.S.C. § 2701(32). 

2 33 CFR 136.103(c). 3 The Law Office of Arnold J. Cestari, Jr. 

4 Sea Tow claim submission dated July 20, 2018.

5 33 CFR 136.115.

6 NRC report #1202475

7 See, e.g., USCG Pollution Report (CG POLREP) 1; MassDEP Release Number 4-27039 dated January 21, 2018. 8 Id. 9 Abstract of Title (CG Form 1332) and Certificate of Documentation (CG Form 1270) for OCEAN KING, Official 

Number 259410.
4

admitted to the vessel breaking free from its moorings and running aground in Vineyard Sound 

at or around 8:30am on January 21, 2018.10 The master reported a “dime size hole in bottom of 

hole (sic)” as a result of the grounding.11 

During a town hall meeting on the incident, a local resident told the officials in attendance 

that he noticed black oil around the OCEAN KING at or around 9:30am on January 21.12 The 

resident reported that he questioned the crew and the crew responded that the oil was “vegetable 

oil” from the ship’s hydraulic system.13 The resident stated he reported the incident to the city of 

Falmouth.14

City of Falmouth Natural Resources Officer reported that he had been called to the 

scene earlier that day in response to a report of a sheen from the vessel OCEAN KING and that 

OCEAN KING departed at or around 11:15am.15 Officer along with several members 

from other agencies responded to the 1:14pm NRC report later that afternoon. MassDEP reported 

sheening and black oil floating on the water in the harbor and on the shoreline and rocks near 

where OCEAN KING was moored.16 At 3:05 pm, MassDEP stated that rocks on the shoreline 

were stained with a black oily substance from the high tide mark down to about 1-1.5 feet below 

the high tide mark.17

The USCG took several oil samples from the water’s surface and several deceased oiled birds 

in the harbor. The USCG also took samples from several boats that were in the area at the time of 

the spill including the OCEAN KING. From the OCEAN KING, samples were taken from the 

bilge, bathroom sink and steering gear. The Coast Guard Marine Safety Laboratory compared the 

samples taken from each of the boats to the samples taken from the spill site. The Marine Safety 

Laboratory found that the samples taken from the OCEAN KING’s bilge and the sink were 

either “derived from, or related to through” a common source of petroleum oil as the samples 

taken from the water’s surface and the oiled birds18 and came to the scientific conclusion that 

they were a “match”. The Marine Safety Laboratory also concluded that none of the other 

samples taken from the other boats matched the oil taken from the water nor the birds.19

Recovery Operations

 

10 CG Form 2692, “Report of Marine Casualty, Commercial Diving Casualty, or OCS-related casualty” dated 

January 22, 2018. 

11 Id. One must assume the master meant “bottom of ‘hull’” not “bottom of hole” based on the totality of the 

circumstances. 

12 http://www.fctv.org/v3/vod/oil-spill-community-forum (last visited December 13, 2018). 13 Id. 14 Id. 15 MassDEP Release Number 4-27039 dated January 21, 2018. 16 Id. 17 Id. This data demonstrates that oil had to be present in the water before high tide for it to be able to reach the 

rocks at the high tide mark. High tide was observed to be at 11:06am. The OCEAN KING arrived in the harbor 

sometime that morning after having run aground and suffering a puncture to its hull; and departed the area at or 

around 11:15am.

18 USCG Marine Safety Laboratory Samples Analyses 18-048 and 18-049 dated January 26, 2018; and Sample 

Analysis 18-050 dated February 2, 2018. 19 Id. 
5

U.S. Coast Guard Sector Southeastern New England was the Federal On-Scene Coordinator 

(FOSC) and oversaw the response and removal operations. The Coast Guard authorized Sea Tow 

to supervise cleanup and containment of the spill.20 The Massachusetts Contingency Plan (MCP)

requires the use of a Licensed Site Professional (LSP) to evaluate and oversee remedial 

activities.21 On January 21, 2018, Sea Tow retained the services of CHES to act as the LSP and 

to assist with containment and cleanup and act as the Licensed Site Professional as set forth in 

the MCP.22 Both absorbent and hard boom were deployed to contain the spill and absorbent 

boom and pads were used to remove the oil and other contaminants from the water and 

shoreline.23

The Federal On-Scene Coordinator issued a Notice of Federal Interest to Patriot Marine on 

January 22, 2018.24 MassDEP issued a Notice of Responsibility to Patriot Marine on February 8, 

2018.25 While Patriot Marine stated in a February 14, 2018 letter to the claimant that it accepted 

responsibility for the oil spill incident, 26 on February 9, 2018 the Coast Guard was forced to 

issue an Administrative Order to Patriot Marine to dispose of the waste materials associated with 

the spill.27 Additionally, since Patriot Marine did not comply with that Administrative Order, the 

Coast Guard assumed partial control of response activities as outlined in a Notice of Federal 

Assumption dated February 12, 2018. The Coast Guard deemed the response complete on 

February 15, 2018.28

II. CLAIMANT AND RP: 

Absent limited circumstances, the federal regulations implementing the Oil Pollution Act of 

1990 (OPA)29 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.30 

Sea Tow stated it submitted its request for compensation to the RP for $1,093,603.0031 on 

March 30, 2018.32 This submission combined all costs for Sea Tow and CHES's labor, equipment 

and the LSP charge and included time and material invoices, a 2018 Rate Sheet, all Daily Job 

Calculation Worksheets and the CHES daily time and material invoices. 

 

20 CG POLREP 1; MassDEP Release Number 4-27039 dated January 21, 2018. 21 Massachusetts Contingency Plan, 310 CMR 40. 22 Immediate Response Action Plan prepared by Clean Harbors Environmental Services, Inc. for Sea Tow dated 

March 22, 2018.

23 Id. 24 USCG Notice of Federal Interest. 25 Massachusetts Department of Environmental Protection Notice of Responsibility. 26 Letter from Mr , counsel for Patriot Marine, to the Law Office of Mr. , counsel for 

Sea Tow, which reads in part: “[I]n accordance with the Oil Pollution Act of 1990 (33 USC 2714(c)), Patriot Marine 

LLC, owner and operator of the Tug OCEAN KING, has voluntarily accepted responsibility for an accidental 

discharge of bilge water and oil into Great Harbor on January 21, 2018”.

27 USCG Administrative Order. 28 CG POLREP 1. 29 33 U.S.C. § 2701 et seq. 30 33 CFR 136.103. 31 Sea Tow Invoice dated March 30, 2018. 32 Sea Tow claim submission.
6

A supplemental invoice from CHES in the amount of $2,623.50 was received by Sea Tow 

and submitted to the RP on April 2, 2018.

33 On July 3, 2018, Sea Tow provided the RP an 

adjustment of -$7,666.25 to its labor costs. The total amount claimed after applying the credit is

$1,088,560.25.34 The RP has not settled the claim.

III. CLAIMANT AND NPFC:

When an RP has not settled a claim after 90 days of receipt, a claimant may elect to present 

its claim to the NPFC.35 On July 30, 2018, the NPFC received a claim for uncompensated 

removal costs from Sea Tow dated July 20, 2018. The claim included an invoice for Sea Tow 

and CHES labor, equipment and LSP costs totaling $1,093,603.00, a supplemental invoice from 

CHES in the amount of $2,623.50 and an adjustment of -$7,666.25 to Sea Tow’s labor costs. 

The total amount claimed is $1,088,560.25.36

IV. DETERMINATION PROCESS:

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (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.38 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.

39 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.

V. DISCUSSION: 

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.40 A 

responsible party’s liability is strict, joint, and several.41 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 

 33 Id. 34 Id. 35 33 CFR 136.103. 36 Sea Tow claim submission. 37 33 CFR Part 136. 38 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” citing Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010). 39 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). 40 33 U.S.C. § 2702(a). 41 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780.
7

substantial burdens to victim’s recoveries such as legal defenses, corporate forms, and burdens of 

proof unfairly favoring those responsible for the spills.”42 OPA was intended to cure these 

deficiencies in the law.

OPA provides a mechanism for compensating parties who have incurred removal cost where 

the responsible party has failed to do so. Removal costs are defined as “the costs of removal 

that are incurred after a discharge of oil has occurred or, in any case in which there is a 

substantial threat of a discharge of oil, the costs to prevent, minimize, or mitigate oil pollution 

from an incident.”43 The term “remove” or “removal” means “containment and removal of oil 

[...] from water and shorelines or the taking of other actions as may be necessary to minimize or 

mitigate damage to the public health or welfare, including, but not limited to fish, shellfish, 

wildlife, and public and private property, shorelines, and beaches.”44

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

with the National Contingency Plan.

45 The NPFC has promulgated a comprehensive set of 

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

claims.

46 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.

47 

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.48

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

by Sea Tow and submitted herein are compensable removal costs based on the supporting

documentation provided. The NPFC has determined that the costs invoiced were billed in 

accordance with the contracted rates between the parties, including all subcontractors and third 

party services. All costs approved for payment were verified as being invoiced at the appropriate 

rate sheet pricing, including but not limited to, all third party or out of pocket expenses. All 

approved costs were supported by adequate documentation which included invoices and proofs 

of payment.

 42 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.). 43 33 U.S.C. § 2701(31). 44 33 U.S.C. § 2701(30). 45 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 46 33 CFR Part 136. 47 33 CFR 136.105. 48 33 CFR 136.203; 33 CFR 136.205. 
8

The amount of compensable costs is $1,004,001.35 while $84,558.90 was deemed noncompensable for the following reasons: 49

1. The costs related to Sea Tow’s personnel and marine equipment, were denied 

because (1) the daily records did not support the hours specified and/or the rate 

schedule did not support the rates utilized, (2) the documentation provided by Sea 

Tow did not support payment for equipment that was on standby because there 

was no evidence that the FOSC directed this standby equipment to be on-scene 

nor was this decision coordinated with the FOSC. Since some of the amounts 

claimed have been denied it is necessary to reduce Sea Tow’s 20% administrative 

markup on the denied Sea Tow costs accordingly. As a result, the total Sea Tow 

denied costs are $73,879.25.

2. The costs related to Clean Harbor Environmental Services, Inc. (CHES) Invoices

were denied because the daily records either failed to identify or did not provide 

adequate support for the hours and costs specified. Total Clean Harbors denied 

costs are $7,529.50.

3. Since some of the amounts related to CHES have been denied it is necessary to 

reduce Sea Tow’s 20% administrative markup on the denied CHES costs 

accordingly. As a result, the total Sea Tow denied administrative costs as they 

relate to CHES are $3,150.15.

VI. CONCLUSION:

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

the reasons outlined above, Sea Tow’s request for uncompensated removal costs in the amount 

of $1,088,560.25 is approved in the amount of $1,004,001.35. 

Because this determination is a settlement offer50, the claimant has 60 days in which to 

accept; the failure to do so automatically voids the offer.

51 The NPFC reserves the right to revoke 

a settlement offer at any time prior to acceptance.52 Moreover, this settlement offer is based upon 

the unique facts giving rise to this claim and is not precedential. 

 49 Enclosure 3 to this determination provides a detailed analysis of these costs. 50 Payment in full, or acceptance by the claimant of an offer of settlement by the Fund, is final and conclusive for all 

purposes and, upon payment, constitutes a release of the Fund for the claim. In addition, acceptance of any 

compensation from the Fund precludes the claimant from filing any subsequent action against any person to recover 

costs or damages which are the subject of the compensated claim. Acceptance of any compensation also constitutes 

an agreement by the claimant to assign to the Fund any rights, claims, and causes of action the claimant has against 

any person for the costs and damages which are the subject of the compensated claims and to cooperate reasonably 

with the Fund in any claim or action by the Fund against any person to recover the amounts paid by the Fund. The 

cooperation shall include, but is not limited to, immediately reimbursing the Fund for any compensation received 

from any other source for the same costs and damages and providing any documentation, evidence, testimony, and 

other support, as may be necessary for the Fund to recover from any person. 33 CFR §136.115(a). 51 33 CFR §136.115(b). 52 Id.