CLAIM SUMMARY / DETERMINATION FORM

Claim Number : N10036-1655

Claimant : David Moore

Type of Claimant : Private (US)

Type of Claim : Loss of Profits and Earning Capacity

Amount Requested : $43,500.00

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 certain 

individual and business claims on behalf of BP.

CLAIM AND CLAIMANT

On 25 January 2012, David Moore (‘the Claimant’) presented a claim to the Oil Spill Liability Trust 

Fund (OSLTF) for $43,500.00 in loss of profits and impairment of earning capacity damages

resulting from the Deepwater Horizon oil spill.1

 The Claimant was a boat owner, who asserts lost 

profits on the sale of his 46 ft boat because sales of large boats plunged during the oil spill incident.2

 

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 Section 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.

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 

1

 Optional OSLTF Claim Form received 25 January 2012. 2

 Optional OSLTF Claim Form received 25 January 2012 and Claimant’s letter to BP/GCCF dated 31 October 

2010.

 
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 undertaken, 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

The Claimant asserts having presented a claim to the BP on 9 August 2010 and that it has been 

denied.3

 The NPFC independently confirmed presentation to the GCCF of an Emergency Advance 

Payment (EAP) Claim on 23 August 2010 in the amount of $22,000.00 and a Full Review/Final 

(FRF) Payment Claim in the amount of $10,000.00 on 20 April 2011. Both GCCF claims were 

assigned under GCCF Claimant Identification Number 1146130. Separate claim numbers were 

assigned: Claim Number 2202 was assigned to the EAP Claim and Claim Number 9363351 was 

assigned to the FRF Claim and both claims have been denied by the GCCF. 4

On 24 January 2012, the Claimant presented this claim to the Oil Spill Liability Trust Fund (OSLTF) 

for $43,500.00 in loss of profits and impairment of earnings capacity damages resulting from the 

Deepwater Horizon oil spill. 5

 

A Claimant is required to present the same claim to the NPFC as was presented to the RP.6

 Amounts 

claimed to the NPFC in excess of the amount claimed to the RP are denied due to lack of 

presentment to the RP: $21,500 of this claim is denied for lack of proper presentment to the RP. 

Amounts that were properly presented to the RP/GCCF ($22,000.00) are addressed below. Further, 

because the subject matter of the Claimant’s FRF Claim appear to be based upon the same subject 

matter, i.e. that he lost profits on the sale of his boat as a result of the Deepwater Horizon oil spill, the 

NPFC deems this Claim Summary Determination as being outcome determinative for the Claimant’s 

GCCF claims.

To support this claim the Claimant presented a large amount of documentation, which is listed in 

Enclosure (2).

3

 Optional OSLTF Claim Form received 25 January 2012, GCCF Denial Letter [of Emergency Action Payment 

Claim] dated 8 December 2010 and GCCF Denial Letter [of Final Payment Claim] dated 30 April 2011.

4

 GCCF – U.S. Coast Guard Report as of 12 April 2012. 5

 Optional OSLTF Claim Form received 25 January 2012. 6

 33 C.F.R. § 136.103(a) requires that, except as provided in paragraph (b) of the section, “all claims for removal 

costs or damages must be presented first to the responsible party or guarantor ...” Subparagraph (b) does not apply 

to this claim. 

 
The Claimant’s documentation with the original claim included, among other things, letters of 

explanation, 7 photographs of his boat,8 listings of similar Marine Trader yachts sold,

9 a copy of his 

boat’s listing for sale,10 proof of ownership,11 industry articles on 2010 boat sales,12 and a denial 

letter from the GCCF.13 

NPFC Determination

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 Section 2702(b) of OPA. 

Pursuant to 33 U.S.C. § 2712(a)(4) and § 2713 and the OSLTF claims adjudication regulations at 33 

C.F.R. Part 136, the OSLTF, which is administered by the NPFC, is available to pay claims for 

uncompensated damages.

This claim is denied because the Claimant failed to prove that the cause of the alleged loss was due to 

the injury or destruction or loss of real or personal property or a natural resource as a result of a 

discharge or a substantial threat of a discharge of oil.

After an initial review, the NPFC discussed the claim with the Claimant and verbally requested 

additional information to further evaluate the claim. 14 Among other things, additional financial 

documentation and additional documentation supporting and explaining how the Deepwater Horizon 

oil spill caused the Claimant’s losses were requested. The Claimant responded the same day by 

providing yacht industry press releases on sales, sales agreement documents for his purchase of the 

boat in 2008 and for his sale of the boat in 2011, the boat’s listing for sale, and a full copy of the 

GCCF’s last denial letter.15 

On 14 March 2012, the Claimant provided a letter of authorization for the GCCF to release a copy of 

his claim file to the NPFC, 16 as well as additional documents on 29 March 2012. 17 Documents 

received from the GCCF pursuant to the Claimant’s request were added to this claim once received.

The Claimant purchased the boat on 4 December 2008 for $100,000.0018 and, after making 

restorations and repairs, agreed to sell the boat on 25 April 2011 for $85,000.00, which was 

completed on 13 May 2011. 19 Based on sale prices of similar boats sold in 2010, the Claimant 

asserts that the value of the boat in 2010 was $137,000.00.20 The NPFC notes that the fee paid to the 

selling yacht broker has not been specifically identified, nor has documentation been provided to 

show that it was paid. Even if documentation on broker’s fees were provided, the alleged loss would 

continue to be limited to the amount claimed to the GCCF which was $22,000.00. 

7

 Claimant letter to the NPFC dated 12 January 2012 and Claimant letter to BP dated 31 October 2010. 8

 Sea Skipper photographs, port bow on, and stern. 

9

 Yacht World historical listings of 46’ Marine Trader yachts sold, 2001-2009. 10 2010 listing of Claimant’s boat for sale through M.G. Mayer Yachts, New Orleans, LA. 11 Coast Guard Certificate of Documentation issued 4 February 2010, O.N. 1073550, 46.2 x 14.6 x 7.5, 33 GRT, 

FRP vessel owned by David Moore of Slidell, LA. 12 BoatWizard North America March 2010 notice of report “Another Strong Month for U.S. Brokerage Sales”, 

BoatWizard North America 9 July 2010 notice of report “Big-Boat Sales Valuations Dip in U.S. Brokerage Market 

in June”, and Trade Only Today article posted 7 April 2010, “Big-Boat Sales Spur Brokerage Gains”. 13 GCCF Denial Letter on Interim Payment/Final Payment Claim dated 30 April 2011. 14 Phone conversation between Claimant and NPFC Staff on 16 February 2012. 15 Claimant’s email to NPFC dated 16 February 2012 with additional documentation. 16 Claimant letter to NPFC dated 14 March 2012. 17 Claimant’s emails (3 total) to NPFC dated 29 March 2012. 18 Yacht Purchase and Sale Agreement dated 4 December 2008. 19 Yacht Purchase and Sale Agreement dated 25 April 2011 and Bill of Sale for O.N. 1073550 dated 13 May 2011. 20 Claimant’s Bullets on Loss Totals with attachments (calculation of average value not confirmed).

 
Failure to Prove Causation

The NPFC requested that the Claimant provide evidence or documentation that would indicate that 

the claimed damages were caused by the Deepwater Horizon oil spill. Causation is an element of 

every claim that must be proven by the Claimant. Here, the Claimant has provided a report that, 

although overall yacht sales through the brokerage market were down 9% compared to 2010, bigger 

boat sales in April 2011 had improved over April 2010. The same report indicates that the average 

time for a boat to sell was lower in April 2011 than in April 2010, falling 6 days to 285 days.21 This 

report does not mention effects of the oil spill or regional/coastal differences in this data. 

The Claimant asserts that selling a big boat in the Gulf of Mexico in 2010 was harder than smaller 

boats because, people could use smaller boats for VOO22 and make money and that, if you were not 

making money on the oil spill, you did not want to have your boat damaged by oil in the water. 23 

Other documentation provided by the Claimant indicates that the April 2010 sales for big-boats had 

increased over 2009, up from 144 in 2009 to 218 in 2010.24 No regional or coastal differences in 

sales were mentioned in this data either. Another report for June 2010 indicated that, for the third 

straight month, it took over 300 days to sell a boat.25 The Claimant indicated that he had listed his 

boat with M.G. Mayer in April 2010, so it should not be surprising that the sale of the Claimant’s 

boat (a big-boat) would take upwards to a year.

The only regional information provided was 2009 and 2010 data from SoldBoats.com.26 There were 

19 big-boats in the 2010 data sort, which included a size sort of 45-50 feet. The 2009 data was sorted 

the same criteria as 2010 data, except for the year and that it was not sorted by region. Counting the 

big-boats in AL, FL, LA, MS, and TX in the 2009 data, the total was 18 big boats sold in the Gulf 

Coast states in 2009. Compared to 2009 data, 2010 big boat sales were slightly greater.

The Claimant has not provided evidence sufficient to prove that his alleged loss of value in his boat 

was the result of the Deepwater Horizon oil spill. 

Accordingly, this claim is denied because Claimant has failed to demonstrate that the alleged loss is 

due to injury or destruction or loss of real or personal property or a natural resource as a result of a 

discharge or a substantial threat of a discharge of oil.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 4/30/12

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

21 YachtWorld.com, undated email attachment, “April Brokerage Sales Fall, But Larger Boats Sell”. 22 Vessels of Opportunity are often used for oil spill response work. 23 Phone conversation between Claimant and NPFC Staff on 29 March 2012. 24 Trade Only Today article posted 7 April 2010, “Big-Boat Sales Spur Brokerage Gains”. 25 BoatWizard Big-Boat Sales Valuations Dip in 26 SoldBoats.com 2009 sales data was sorted on Used, Powered, Sold Jan. through Oct. 2009, 45 – 50 ft length, 

built 1990 to 1995, and Diesel fuel. 2010 sales data was sorted in a similar way, with the addition a regional sort on 

Gulf Coast (AL, FL, LA, MS, TX). 

 
Enclosure (2) Documentation Provided by the Claimant

N10036-1655

1. Optional OSLTF Claim Form received 25 January 2012.

2. Claimant’s letter dated 12 January 2012.

3. Sea Skipper photograph, port bow on.

4. Claimant’s bullet list for GCCF Claim 1146130.

5. Claimant’s BP Request: undated summary.

6. Claimant’s BP Denial: Denial Letter on Interim Payment/Final Payment Claim dated 30 April 

2011.

7. Claimant’s Bullets on Loss Totals with attachments.

a. Attachment 1, Purchase Agreement (page 1 only).

b. Attachment 2, Yacht World historical listings of 46’ Marine Trader yachts sold.

c. Attachment 3, 2010 listing of Claimant’s boat for sale through M.G. Mayer Yachts, New 

Orleans, LA.

d. Attachment 4, Unsigned Sales Agreement (2 pages).

8. Sea Skipper photograph, stern.

9. Coast Guard Certificate of Documentation, issued 4 February 2010, O.N. 1073550, 46.2 x 14.6 x 

7.5, 33 GRT, FRP vessel owned by David Moore of Slidell, LA.

10. BoatWizard North America notice of report, “Another Strong Month for U.S. Brokerage Sales, 8 

April 2010.

11. BoatWizard North America article by John Burnham, “Big-Boat Sales Valuations Dip in U.S. 

Brokerage Market in June, posted 9 June 2010 with 7 listings.

12. Trade Only Today article posted 7 April 2010, “Big-Boat Sales Spur Brokerage Gains”.

13. Claimant’s response to phone request of 31 October 2010.

14. Claimant’s email to NPFC Staff, dated 16 February 2012

15. BoatWizard North America notice of report, “Another Strong Month for U.S. Brokerage Sales, 8 

April 2010.

16. BoatWizard North America article by John Burnham, “Big-Boat Sales Valuations Dip in U.S. 

Brokerage Market in June”, posted 9 June 2010 with 7 listings.

17. Trade Only Today article posted 7 April 2010, “Big-Boat Sales Spur Brokerage Gains”.

18. Blank copy of Optional OSLTF Claim Form.

19. Yacht Purchase and Sale Agreement dated 25 April 2011. (page 1)

20. Yacht Purchase and Sale Agreement dated 4 December 2008. (pages 1 & 4)

21. Copy of Claimant’s letter dated 12 January 2012.

22. Listing of Claimant’s boat on M.G. Mayer website dated 11 August 2011.

23. GCCF Denial Letter on Interim Payment/Final Payment Claim dated 30 April 2011.

24. Claimant’s email to NPFC dated 14 March 2012 with attachments.

25. Claimant’s letter to NPFC dated 14 March 201[2] requesting GCCF claim file.

26. Claimant emails (3 total) dated 29 March 2012. 

27. Bill of Sale for O.N. 1073550 dated 13 May 2011.

28. Coast Guard Certificate of Documentation, O.N. 1073550, 46.2 x 14.6 x 7.5, 33 GRT, FRP 

vessel owned by David Moore of Slidell, LA.

29. Yacht Purchase and Sale Agreement, 1991 Marine Trader Aft Cabin, signed 29 April 2011.

30. YachtWorld.com, undated email attachment, “April Brokerage Sales Fall, But Larger Boats 

Sell”.

31. SoldBoats.com listings, date not legible, 7 boats listed.

32. Trade Only Today article posted 7 April 2010, “Big-Boat Sales Spur Brokerage Gains”.

33. Claimant’s letter to NPFC dated 14 March 201[2].

34. GCCF Claim Form Generated Online (undated) for Emergency Action Payment Claim in the 

amount of $22,000.00.

35. GCCF Claim, undated excerpt, pages 6 & 7.

36. SoldBoats.com 2009 and 2010 excerpt of YachtWorld.com data for Fiberglass, Diesel Power 

Boats, 45-50 ft in length, located in Gulf Coast (AL, FL, LA, MS & TX), showing manufacturer, 
length, list price & date, sold price & date, and location. (110 sales for 2009 and 19 sales for 

2010.)

37. Proof of ownership email and USCG Certificate of Documentation for O.N. 1073550, issued 4 

February 2010.

38. GCCF Claimant Status cover page, undated.

39. GCCF Full Review Final Payment Claim Form, electronic, printed 25 April 2011.

40. GCCF Denial Letter dated 8 December 2010 (Emergency Action Payment Claim).

41. GCCF letter dated 12 October 2011.

42. GCCF letter dated 30 September 2010.

43. GCCF Denial Letter on Interim Payment/Final Payment Claim dated 30 April 2011.