3

CLAIM DETERMINATION 

Claim Number: 919010-0001 

Claimant: Above and Below Marine Services

Type of Claimant: Private

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $8,400.00 

Action Taken: Denial

EXECUTIVE SUMMARY: 

On September 6, 2017, the vessel NAUTI NYMPH 51 while docked at the Compass Point 

Marina in St. Thomas, Virgin Islands is reported to have discharged oil into Benner Bay, a 

navigable waterway of the US. The incident was discovered in the aftermath of Hurricane Irma.

1

 

 d/b/a Above and Below Marine Services (“Above and Below” or “claimant”) 

raised the vessel and deployed boom in order to contain the spill.2 East End Watersports, Ltd. 

(“East End” or “RP”), is the listed owner of the vessel and responsible party (RP) as defined by 

the Oil Pollution Act of 1990.3 Above and Below presented its uncompensated removal costs to 

the RP. Having not received payment from the RP after ninety days,4 Above and Below 

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

for $8,400.00.5 The NPFC has thoroughly reviewed all documentation submitted with the claim, 

analyzed the applicable law and regulations, and after careful consideration has determined that

this claim must be denied in full because no proof of Federal On Scene Coordinator (FOSC) 

oversight and monitoring of the removal actions responsible for the costs provided by the 

claimant could be substantiated.6

 

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS: 

Incident 

On September 6, 2017, Hurricane Irma made official landfall in the U.S. Virgin Islands as a 

Category 5. Extreme winds and heavy rainfall ravaged parts of the U.S. Virgin Islands, 

particularly St. Thomas and St. John.7 On September 20, 2017, as the U.S. Virgin Islands 

continued to recover from Hurricane Irma, the core of Hurricane Maria passed just south of the 

U.S. Virgin Islands on its way to Puerto Rico. Maria's outer eyewall devastated St. Croix with 

 

1 Above and Below claim submission undated and received December 20, 2018. 

2 OSLTF Claim Form under Description of Actions taken to minimize or avoid damage.

3 33 U.S.C. § 2701(32). 

4 33 CFR 136.103(c). 5 Above and Below Marine Services claim submission received December 20, 2018.

6 33 CFR 136.203.

7 Written testimony of FEMA Federal Coordinating Officer for a House Committee on Oversight 

and Government Reform, Subcommittee on Interior, Energy and Environment hearing titled “The Historic 2017 

Hurricane Season: Impacts on the U.S. Virgin Islands” dated March 12, 2018.
4

powerful winds and heavy rainfall, damaging the communications and power grid, destroying 

homes, and downing trees.8

On September 6, 2017, Claimant states the vessel, NAUTI NYMPH 51, was at the docks of 

Compass Point Marina in St. Thomas, US Virgin Islands when Hurricane Irma struck. The 

claimant asserts that in the confusion after the storm, the vessel rolled to port and was mostly 

submerged and the vessel was leaking oil from the tanks and engine into Benner Bay, a 

navigable waterway of the United States.

9

Responsible Party 

The owner and operator of the vessel NAUTI NYMPH is East End Watersports, Ltd., which 

has Mr. listed as the company owner.10 As such, it is the responsible party for 

the incident. 

On December 21 2018, the NPFC issued a Responsible Party Notification Letter to East End 

Watersports, Ltd.11 On February 12, 2019, the RP had a phone conversation with the NPFC

affirming its status as the owner of the vessel and asserting that the claimant, Above and Below, 

removed the NAUTI NYMPH 51 without its permission or authorization and is guilty of stealing 

the vessel and relocating it without the RP’s consent.12

Recovery Operations

Claimant asserts that on September 14, 2017, it was advised by the United States Coast 

Guard (USCG) to remove the vessel from the water. It further states it raised and removed the 

NAUTI NYMPH 51 from the Compass Point Marina and towed the vessel to safe storage on 

land.13 

II. CLAIMANT AND RP: 

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

1990 (OPA)14 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.15 

On October 11, 2018, Above and Below submitted its request for compensation to the RP for 

$8,400.00.16 This submission included an invoice for labor and equipment, and salvage costs 

associated with the NAUTI NYMPH 51.

17

 

8 Preliminary Damage Assessment Report, FEMA-4340-DR-VI (Expedited) dated September 20, 2017. 9 OSLTF claim form, item #4 explanation of how the oil impacted the water. 10 Government of the United States Virgin Islands registration of vessel dated February 17, 2012. 11 NPFC RP Notification Letter to East End Watersports, Ltd. dated December 21, 2018. 12 Phone Conversation with dated February 12, 2019. 13 OSLTF Claim Form under Description of Actions taken to minimize or avoid damage. 14 33 U.S.C. § 2701 et seq. 15 33 CFR 136.103. 16 Above and Below Marine Services letter to Mr. and East End Water Sports dated October 11, 

2018.

17 Above and Below Marine Services Invoice 1030 dated September 15, 2017.
5

The RP stated to the NPFC that no request or approval of the raising, removal or relocation 

of NAUTI NYMPH 51 was made or given and has denied payment of the costs submitted by 

Above and Below.18

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.19 On December 20, 2018, the NPFC received an undated claim for 

uncompensated removal costs from Above and Below. The costs presented to the NPFC in the 

amount of $8,400.00 matched those submitted to the RP on October 11 2018, but did not meet

the mandatory 90 day presentment time period provided to the RP to settle the claim. As such, 

on December 20, 2018, the NPFC issued a letter to Above and Below notifying them that the 

submission was received and identified as a pre-claim # PRE-00015305 and would remain in 

pre-claim status until the RP’s 90 day presentment time period had lapsed or an official response 

from the RP was provided.20 On January 18, 2019, the NPFC transferred the pre-claim 

submission into a claim and assigned it to a Claims Manager for review.

IV. DETERMINATION PROCESS: 

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

Liability Trust Fund (OSLTF).21 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.22 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.

23 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.24 A 

 

18 Phone Conversation with dated February 12, 2019. 19 33 CFR 136.103. 20 Above and Below acknowledgement letter dated December 21, 2018. 21 33 CFR Part 136. 22 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). 23 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). 24 33 U.S.C. § 2702(a). 
6

responsible party’s liability is strict, joint, and several.25 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 

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

proof unfairly favoring those responsible for the spills.”26 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.”27 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.”28

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

with the National Contingency Plan.

29 The NPFC has promulgated a comprehensive set of 

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

claims.

30 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.

31 

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.32 

Upon adjudication of the claim, the NPFC contacted MST1 at the Marine 

Safety Detachment (MSD) St. Thomas in an attempt to obtain information regarding the 

Claimant’s assertion that he was advised by the USCG to remove the vessel in question.33 MST1

 reached out to LCDR who has since transferred to another Coast Guard 

unit and asked for her input regarding the response. LCDR replied on January 29, 2019 

 

25 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 26 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.). 27 33 U.S.C. § 2701(31). 28 33 U.S.C. § 2701(30). 29 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 30 33 CFR Part 136. 31 33 CFR 136.105. 32 33 CFR 136.203; 33 CFR 136.205. 33 January 29, 2019 email to MST1 from NPFC Claims Manager, .