CLAIM SUMMARY / DETERMINATION FORM 

Date : 7/01/2010 

Claim Number : N08057-023

Claimant : Express Marine Inc 

Type of Claimant : Corporate (US) 

Type of Claim : Loss of Profits and Earning Capacity (Reconsideration) 

Claim Manager :

Amount Requested : $201,369.83 

BACKGROUND: 

On the morning of July 23, 2008, the tank barge DM 932 sank as a result of a collision and 

discharged oil into the Mississippi River, a navigable waterway of the United States. 

American Commercial Lines LLC (ACL) owned the barge at the time of the incident and is a 

responsible party (RP) under the Oil Pollution Act. 

CLAIMANT, CLAIM and PRIOR DETERMINATION: 

Claimant: 

Express Marine Inc. has a fleet of tugs and barges which transport dry bulk and liquid cargoes 

along the Atlantic and Gulf Coasts, Caribbean and associated bays, harbors and rivers. They are 

the registered owners and operators of the U.S. Flagged vessels Baltimore and EMI 1850. 

Claim: 

The Claimant submitted the original claimed amount of $142,679.88 to the RP through Worley 

Catastrophe Response, LLC on March 4, 2009 as indicated on Claimant’s original submission 

letter received by the NPFC on May 12, 2009.1

 The RP issued a letter to the Claimant on April 

29, 2009, stating their claim had been denied for the reasons set forth in the declaratory judgment 

complaint filed in the Eastern District of Louisiana on April 28, 2009 (Claimant’s Exhibit D). 

The declaratory judgment was stayed and administratively closed until further orders of the court 

on September 2, 2009 by Judge Ivan L. R. Lemelle, United States District Judge of the United 

States District Court, Eastern District of Louisiana.2

 The RP’s appeal was dismissed by the court 

on November 24, 2009.3

By letter dated May 19, 2009, the NPFC notified the RP that the Claimant presented the original 

claim totaling $142,679.88 to the Fund.4 The Claimant provided evidence to the NPFC that 

presentment of their amended claim was made to the RP in the amount of $201,369.83 on May 

20, 2010. 

 

1

See, Palmer Biezup & Henderson LLP letter to the NPFC dated May 6, 2009, number 4, claim status. 

2

See, United States District Court, Eastern District of Louisiana, Case 2:09-cv-03392-ILRL-KWR, document 70, 

 dated September 2, 2009. 

3

See, United States District Court, Eastern District of Louisiana, Case 2:09-cv-03392-ILRL-KWR, document 78, 

 filed November 30, 2009. 

4

See, NPFC letter to the RP dated May 19, 2009. 
A. Original Claim Submission 

1. The law firm of Palmer Biezup & Henderson LLP, representing Express Marine Inc., 

submitted a Loss of Profits and Earning Capacity claim for damages resulting from the July 

23, 2008 oil discharge in the Mississippi River from barge 932. The claim was received at 

the National Pollution Funds Center (NPFC) on May 12, 2009 in the amount of $142,679.88. 

The Claimant valued their loss by stating they were delayed on two separate occasions 

totaling 167.76 hours x $675.00 per hour allowed in the contract of affreightment (COA), 

which equals $113,238.00. They also requested 20 percent in administrative expenses 

($22,647.60) and 5 percent ($6,794.28) in interest.5

 

2. Supporting documents provided included the following: 

 a. Claimant’s letter to the RP dated March 4, 2009 demanding payment of its damages 

 (Exhibit A). 

 b. Contract of affreightment (COA) (Exhibit A, attachment 1). 

 c. Email from Progress Energy Regulated Fuels (PEF) claiming Force Majeure (Exhibit 

 A, attachment 2). 

 d. Email from PEF stating force majeure time periods (Exhibit A, attachment 3). 

 e. Trip load/unload records (Exhibit A, attachment 6). 

 f. Notice of Readiness (NOR)/Notice of Completion records (Exhibit A, attachment 7). 

 g. Worley Catastrophe Response request for additional information letter dated March 18, 

 2009 (Exhibit B). 

h. Claimant’s response letter to the RP dated April 13, 2009 (Exhibit C).

i. RP legal representative’s letter to the Claimant dated April 29 2009 stating their claim 

 is denied (Exhibit D). 

B. Amended Sum Certain With New Delay Valuation 

1. While responding to a National Pollution Funds Center (NPFC) request for additional 

information, the Claimant amended their claim to $201,369.83.

6

 The Claimant re-valued 

their loss by stating that according to the cash flow spreadsheet provided, on average the tug 

Baltimore and barge EMI 1850 loaded at IMT on the Mississippi River every seven days and 

the invoiced amount for each trip averaged $162,133.52. The Claimant then stated that 

considering the 167.76 hours (6.9 days) delayed as alleged in the first presentment of the 

claim, the loss was now amended to $159,817.33 in damages ($162,133.52 / 7 = $23,161.93 

and 6.9 x $23,161.93 = $159,817.33). The Claimant also sought 20% ($31,963.46) in 

administrative expenses related to the delay and 5% ($9,589.04 total) as interest on both the 

delay ($7990.87) and administrative expenses ($1,598.17). 

2. Supporting documents provided included the Claimant’s letter to the NPFC dated 

September 4, 2009 with attached Cash Flow Spreadsheet. 

Under the legal analysis section of the Claimant’s original submission letter to the NPFC dated 

May 6, 2009, the Claimant stated they were not submitting any corporate financial statements as 

 

5

See, Palmer Biezup & Henderson LLP letter to the NPFC dated May 6, 2009. 

6

See, Palmer Biezup & Henderson LLP letter to the NPFC dated September 4, 2009, page 6 & 7. 
they were irrelevant to the evaluation or the payment of the claim. The NPFC did not agree with 

this statement. Under the claims regulations associated with OPA (the Claims Regulations), the 

law requires comparative figures of financial documents that can support claimed damages 

which result in an actual loss be presented to the NPFC. 

NPFC’s Original Determination:

The NPFC determined that the Claimant did not submit sufficient evidence, information and 

documentation to demonstrate a loss of profits or earning capacity, which could be directly 

attributed to the DM 932 oil spill. Additionally, there was no documentation to support the 

alleged administrative costs. Finally, we denied the request for interest, because that amount was 

not a loss of profit cost or damage compensable under OPA. 

APPLICABLE LAW: 

All claims for removal costs or damages shall be presented first to the responsible party or 

guarantor of the source designated under section 2714 (a) of this title. 33 U.S.C. §2713(a).

If a claim is presented in accordance with subsection (a) of this section and

(1) each person to whom the claim is presented denies all liability for the claim, or 

(2) the claim is not settled by any person by payment within 90 days after the date upon which

(A) the claim was presented, or 

(B) advertising was begun pursuant to section 2714 (b) of this title, whichever is later, 

the claimant may elect to commence an action in court against the responsible party or guarantor 

or to present the claim to the Fund. 33 U.S.C. §2713(c).

The uses of the OSLTF are described at 33 U.S.C. §2712. It provides in relevant part that: 

“(a) Uses generally

The Fund shall be available to the President for –

(4) [T]he payment of claims in accordance with section 2713 of this title for uncompensated 

removal costs determined by the President to be consistent with the National Contingency Plan 

or uncompensated damages; . . . 

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). 

In any case in which the President has paid an amount from the OSLTF for any removal costs or 

damages specified under 33 U.S.C. §2712(a), no other claim may be paid from the Fund for the 

same removal costs or damages. 33 U.S.C. §2712(i). 

Congress directed the President to promulgate regulations “for the presentation, filing, 

processing, settlement, and adjudication of claims...” 33 U.S.C. §2713(e). Those regulations are 

found at 33 CFR Part 136. (the Claims Regulations) 
Under 33 CFR Part 136, Subpart B, 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: 

“[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).

In addition to providing information and documentation outlined in Subparts A and B, claimants 

must provide additional information for specific claims, including lost profits and impairment of 

earning capacity claims, as described in Subpart C. The specific requirements for loss of profits 

and earning capacity claims are found at Subpart C, 33 CFR 136.231, et seq. 

“In addition to the requirements of Subparts A and B of this part, 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 the 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 receives 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.” 33 CFR 136.233 (a) – (d) 

If a third party claimant or an RP is able to establish an entitlement to lost profits, then 

compensation may be provided from the OSLTF. But the compensable amount is limited to the 

actual net reduction or loss of earnings and profits suffered (emphasis added). Calculations for 

net reductions or losses must clearly reflect adjustments for the following: all income resulting 

from the incident; all income from alternative employment or business undertaken; potential 

income from alternative employment or business not undertaken, but reasonably available; any 

saved overhead or normal business expenses not incurred as a result of the incident; and state, 

local, and Federal tax savings. 33 CFR 136.235 (a) – (e). 

REQUEST FOR RECONSIDERATION:

On April 26, 2010, the Claimant provided an official written request for reconsideration of the 

NPFC’s initial determination that the claimant failed to provide evidence demonstrating that its 

alleged losses were caused by the oil pollution incident. The Claimant requested and the NPFC 

granted a thirty day extension for filing the documents on reconsideration. The NPFC received 

and accepted all supporting documentation for the claimant’s request for reconsideration that 

were attached to its cover letter, dated May 25, 2010. 
DETERMINATION ON RECONSIDERATION:

The Claimant submitted a request for reconsideration by letter dated April 26, 2010. No 

supporting documentation was provided at this time. The letter states that they will provide this 

documentation by May 26, 2010, which constituted an extension granted by the NPFC. 

On May 4, 2010, the NPFC issued a request for additional information to the Claimant to ensure 

that we could fairly and reasonably adjudicate their claim.7

 Again, as required by the Claims 

Regulations, we asked, among other things, that the Claimant prove that an actual net reduction 

or loss of earnings was suffered due to the oil spill event. 

The NPFC received the Claimant’s letter dated May 25, 2010, acknowledging our May 4, 2010 

request for additional information and providing some of that information as part of the 

supporting documentation provided in this reconsideration request. 

The newly submitted documentation includes: 

 1. An affidavit from the Vice President of Express Marine (Exhibit A). 

 2. Invoices supporting the invoiced amounts on the new cash flow summary spreadsheet 

 (Exhibit 1). 

 3. Demurrage invoices dated September 15, 2009 and September 30, 2009. (Exhibit 2). 

 4. Updated Cash Flow spreadsheet (Exhibit 3). 

Claimant’s Claimed Damages Based on the Contract of Affreightment

1. In the Claimant’s letter dated April 26, 2010, they state, “It has always been our position that 

we have provided clear evidence of lost income due to the spill and that our method of 

calculating lost income based on the delay penalty found in the contract of affreightment is 

sound, reasonable and uncomplicated.”8

 Also, the Claimant states, “The “Demurrage” 

compensates a vessel owner “for freight it has lost because the vessel was not free when the 

parties agreed it would be.” Shipping Corp. of India v. Sun Oil Co., 569 F.Supp. 1248, 1255 

(E.D. Pa. 1983).9

2. In the Claimant’s letter dated May 25, 2010, they maintain that it has always been their 

position that Express Marine is entitled to delay damages in the amount of $113,238.00 based on 

the contract of affreightment.10

 

The NPFC agrees that demurrage is intended to compensate the owner for freight it has lost 

because the vessel was not free when the parties agreed it would be. However, the mere 

stipulation of a liquidated sum for demurrage does not obviate the need to show actual damages. 

Trans-Asiatic Oil Ltd., S.A. v. Apex Oil. Co., 804 F.2d 773, 782 (1st Cir. 1986). To enforce the 

contract without proof of actual damages would be inequitable, permitting enrichment. Once 

actual damages have been proven, the demurrage rate is applicable unless that rate is so 

excessive that it constitutes a penalty. Id.

 

7

 See, NPFC letter dated May 4, 2010. 

8

See, Palmer Biezup & Henderson LLP letter to the NPFC dated April 26, 2010, page 7, last paragraph. 

9

See, Palmer Biezup & Henderson LLP letter to the NPFC dated April 26, 2010, page 6, para. 2. 

10 See, Palmer Biezup & Henderson LLP letter dated May 25, 2010, para.3. 
In addition, the NPFC finds that the Claimant is not entitled to this demurrage payment because 

the contract of affreightment is clear that when a force majeure event is declared by either party, 

both parties are excused from their obligations related to the force majeure. During the DM 932 

spill incident, the Shipper declared a force majeure event, which the Vice President of Express 

Marine has recognized does not entitle them to a demurrage payment.11

 Thus, in this case a 

demurrage payment is not required.12 Additionally, under the Claims Regulations and as noted 

above, the amount of compensation allowable is limited to the actual net reduction or loss of 

earnings or profits suffered, which need to be proven by the Claimant. 

3. In the affidavit provided by Mr. , Vice President of Express Marine, he confirms that 

during the oil spill incident, the Shipper supplied the required minimum 15,000 ST’s of Dry Bulk 

Fuel (DBF) to the Claimant during the two delayed voyages as required in the COA. He also 

confirms that the Shipper met its obligation to provide a minimum 850,000 ST of DBF for the 

year of the incident, which is also a requirement of the COA. The NPFC requested this 

information, because we wanted to ensure that the Shipper met all of its obligations regarding 

tonnage of DBF provided to the Claimant under the contract of affreightment, even though 

several delays took place both during and outside the oil spill incident. The affidavit reflects that 

all requirements in the contract of affreightment were met during the oil spill incident. 

Claimant’s Claimed Damages Based on the Cash Flow Spreadsheet

1. The NPFC requested source documents for the cash flow statement provided in the original 

claim. The Claimant submitted invoices with cargo quantity and amount per ton redacted along 

with an amended cash flow statement with their reconsideration letter dated May 25, 2010 

(Claimant’s Exhibit 3). Mr. affidavit notes that errors were submitted with the original 

cash flow statement. The amended statement provides additional revenue of $41,630.76 in the 

third (oil spill) quarter and $27,195.90 in the fourth quarter. The second quarter remained the 

same. 

Based on the cash flow spreadsheet, the NPFC finds the two voyages conducted during the oil 

spill event and subsequent delays produced an average of $175,544.82 per trip, which is $234.71 

less than the overall third quarter average of $175,779.53, but much higher than the next highest 

(fourth) quarter average of $168,857.44. We find the amended cash flow spreadsheet does not 

prove loss of profits or earning capacity. First, the spreadsheet and accompanying invoices 

provide only revenues, not the costs involved in each voyage. Therefore, profits are not properly 

identified or analyzed. Second, there were two less trips in the third quarter than in the fourth 

quarter, but they cannot be directly attributed to the oil spill incident. This is due to the fact that 

trip # 8936 and 8972, which occurred well after the oil spill incident, took a combined 36 days to 

complete, which is well over the 21 days that trips 8886 and 8912 took during the oil spill delays. 

Third, the second quarter shows one more trip than the fourth quarter, yet provides $39,780.11 

less in revenue. Therefore, there is no proof of loss of profit and earning capacity utilizing this 

method. 

2. The NPFC requested proof that the Claimant moved less tonnage during the oil spill incident 

than the previous year (2007) and the year after (2009). Source documents were also requested. 

The affidavit provided in the reconsideration letter states that in the comparable quarter in 2009, 

the Crystal River Plant was closed for maintenance and was paid demurrage, so this would not 

be a reasonable comparison. The Claimant failed to provide the previous year’s tonnage 

 

11 See, affidavit from , Vice President of Express Marine, Inc., para. 5. 

12 See, Affreightment Contract between Progress Fuels Corporation and EMI-PA, Inc., page 10-11, para. 24. 
comparison (2007), or any other year that could be used for comparison. Without providing 

these comparisons, the Claimant failed to show an alleged loss. 

Claimant’s Claimed Damages Based on Financial Documents

During review of the Claimant’s original and reconsideration claim submissions, we requested 

the Claimant provide the amount of 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. The only document provided has been the cash flow 

spreadsheet with matching invoices, which only shows revenue earned. In the original claim 

submission, the Claimant stated, “We are not submitting any corporate financial statements.”13

 

With the claim under reconsideration, Mr. affidavit states that “tax returns covering the 

entire operating profile of Express Marine over a period of years would not show any trends with 

regard to a six to seven day delay of the subject unit. The most accurate and reliable records that 

show comparable periods of revenue are the cash flow statement and supporting invoices that 

have been submitted...”14

 Also required under the Claims Regulations, the NPFC requested 

comparative figures for profits or earnings for the same or similar activities outside of the area 

affected by the incident. Mr ’ affidavit states that “...Express Marine does not have what 

would be considered earnings from the same or similar activities outside of the area affected by 

the incident. The unit is considered a stand-alone business unit and none of our other operations 

are the same or similar.”15

The NPFC has tried to provide the Claimant every avenue to prove their damages under OPA. 

Both during the original and reconsideration claim submissions, we have requested what OPA 

law requires to prove damages. No financial documents have been submitted that show loss of 

profits. 

The NPFC finds the Claimant has not provided clear evidence of lost profits from these delays. 

The cash flow spreadsheet provided has four above average delay periods in the third quarter. 

During these four delays, two of which occurred during the spill incident, income level was not 

reduced. The Claimant has not provided the NPFC with a clear understanding as to the loss 

amount. As required by the Claims Regulations, the amount of compensation allowable is 

limited to the actual net reduction or loss of earnings or profits suffered, which need to be 

proven by the Claimant. 

Final Method of Valuing Claimed Damages By Averaging Over the Three Quarters Presented 

The Claimant’s May 25, 2010 letter provides one final way to value its revenue loss, by taking 

the average revenue per day ($21,904.58) averaged out over the three quarters presented x 6.139 

delay days = $134,472.22 alleged revenue loss.16 

The NPFC finds this valuation of the alleged revenue loss does not include expenses or 

financials to show the actual loss. Therefore, proof of damages under the Claims Regulations 

has not been shown. 

 

13 See, Palmer Biezup & Henderson LLP letter dated May 6, 2009, page 4, under Legal Analysis. 

14 See, affidavit from , Vice President of Express Marine, Inc., para. 9. 

15 See, affidavit from , Vice President of Express Marine, Inc., para. 10. 

16 See, Palmer Biezup & Henderson LLP letter dated May 25, 2010, para 4. 
Administrative Costs and Interest Claim 

The Claimant requests that the administrative costs and interest portion of this claim also be 

reconsidered if any of the claim is granted.17 If the NPFC did find any of the damages payable, 

the Claimant has failed to provide any evidence to support the administrative costs allegedly 

incurred. Actual administrative costs would have to be presented. A percentage based valuation 

is not an acceptable methodology for determining uncompensated costs under the Claims 

Regulations, and therefore they would be denied. In addition, interest payments would be denied 

because it is not a loss of profit cost or damage compensable under OPA. 

Mitigation of Damages and Saved Expenses: 

In the Claimant’s response letter to the NPFC dated September 4, 2009, they provide that there 

was no other location to load coal except in New Orleans during the spill period and that under 

the contract extension agreement, Express Marine was required to provide transportation services 

on an exclusive multi-year basis and did not have the right to seek alternative employment for 

the vessels, nor did it have the right to redirect the vessels to alternative ports. 

The Claimant failed to provide any evidence of saved overhead or normal business expenses not 

incurred as a result of the two delays, which is a requirement of OPA under 33 CFR 136.235 (d). 

Summary:

The Claimant failed to prove its damages and has not met its burden of providing all evidence, 

information and documentation deemed necessary by the Director, NPFC, to support its claim of 

lost profits directly attributed to the barge 932 oil spill, as required in 33 CFR 136.205(a). 

Based on the above, I recommend that Express Marine, Inc. be offered $0.00 as full 

compensation for the alleged damages it suffered when its vessels, the tug Baltimore and barge 

EMI 1850, were delayed as a result of the barge 932 oil spill. 

DETERMINED AMOUNT: 0.00 

 

Claim Supervisor: Thomas Morrison 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: 

 

17 See, Palmer Biezup & Henderson LLP letter dated April 26, 2010, page 9.