CLAIM SUMMARY / DETERMINATION FORM 

Date : 06/11/10 

Claim Number : N08057-027

Claimant : M/G Transport Services, LLC 

Type of Claimant : Corporate (US) 

Type of Claim : Loss of Profits and Earning Capacity 

Claim Manager : 

Amount Requested : $20,343.75 

I. Facts

M/V Captain Whitey 

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. 

II. Responsible Party

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. 

III. Claimant

M/G Transport Services, LLC (herein known as M/G Transport) is a United States based 

company that owns open and closed hopper barges capable of carrying dry bulk cargoes up and 

down the rivers of the United States. 

IV. Claim Description 

M/G Transport seeks $20,343.75 in alleged lost profits as a direct consequence of the barge 932 

oil spill on July 23, 2008. In their claim submission to the NPFC, the claimant states that the 

M/V Captain Whitey was operating under a fully found charter agreement solely dedicated to the 

transport of cargo exclusively under the direction of M/G Transport. Because of this incident 

and subsequent Coast Guard ordered closure of the Mississippi River, the claimant alleges the 

M/V Captain Whitey was delayed from July 23, 2008 at 11:30 am until July 27, 2008 at 8:00 

pm.

1

 Vessel logs submitted with the claim provide the same delayed dates and times.2 The 

claimant provided an invoice from Western Rivers Boat Mgt, Inc., the owner of the boat in this 

charter. This invoice required payment in the amount of $4,500.00 a day for seven days, totaling 

$31,500.00.3

 The $4,500.00 per day amount is found in the charter agreement provided by the 

claimant. M/G Transport made full payment on this invoice on August 18, 2008.4

The Claimant, M/G Transport, submitted the claim to the RP on September 29, 2008 as indicated 

on the Optional OSLTF Claim Form signed by the claimant on May 18, 2009. The RP 

responded by sending a letter to the Claimant on December 12, 2008 requesting a copy of the 

contract between Western River Boat Mgt., Inc. and M/G Transport Services, LLC.5

 

1

 See, claimant letter dated May 18, 2009. 

2

 See, WRBMI daily logs, M/V Captain Whitey. 

3

 See, Western Rivers Boat Mgt, Inc. invoice no. 0019554-IN dated July 21, 2008. 

4

 See, copy of claimant check number 51766. 

5

 See, Worley Catastrophe Response letter dated December 12, 2008. 
The Claimant submitted their claim to the NPFC on May 18, 2009. The NPFC acknowledged 

receipt of this claim and notified the RP via letter dated May 27, 2009.6

The NPFC requested additional information from the claimant on June 15, 2009.7

On June 26, 2009, the RP responded to the NPFC’s notification letter by providing a justification 

for not paying the claim. Their response noted that “...absent a showing that the UTV CAPTAIN 

WHITNEY was oiled, and thereby delayed for cleaning, recovery is not available.”8 

Additionally, “...the hire payments represent fixed costs and do not equate to either lost profits 

or reduced revenues. MG Transport has not offered any evidence that it incurred increased 

marginal costs or lost revenues as a result of the delay to the UTV CAPT. WHITNEY”.9

 The RP 

went on to state that ACL commenced a declaratory judgment action in the United States District 

Court for the Eastern District of Louisiana against M/G Transport. The court later dismissed the 

declaratory action stating “...that judicial economy is best served by letting the administrative 

process run its course prior to premature action by the Court.”10

On July 7, 2009, M/G Transport requested the NPFC place this claim in abeyance until further 

notice.11 The NPFC answered this request by granting a six month abeyance. We also requested 

that at the termination of the abeyance the claimant notify us as to whether this claim would be 

withdrawn or the additional information we requested would be provided.12 At the end of the six 

month abeyance, the claimant requested an additional ninety day abeyance, due to continued 

work with the RP, which would now extend the abeyance period to April 7, 2010.13 The NPFC 

granted this extension via phone, recording the comments into our Claims Processing System 

(CPS) database. On April 19, 2010, the claimant provided a letter to the NPFC stating they 

would provide the additional supporting documentation (requested by us on June 15, 2009) as 

soon as possible.14 The NPFC responded by email, granting the claimant thirty days to provide 

the information requested.15

 On May 25, 2010, the NPFC emailed the claimant, notifying them 

that the additional information needed to adjudicate this claim was due on May 19, 2010 and had 

not been received. We also stated that we would move forward with adjudicating this claim.16

V. APPLICABLE LAW

Claims may be presented first to the Fund if the President or his delegated representative has 

advertised or notified claimants that the Fund is accepting claims resulting from an oil discharge. 

33 U.S.C. §2713(b)(1)(A). 

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 –

 

6

 See, NPFC letter to American Commercial Lines dated May 27, 2009. 

7

 See, NPFC email to claimant dated June 15, 2009. 

8

 See, Nicoletti Hornig & Sweeney letter dated June 26, 2009, page 3, para. 1. 

9

 See, Nicoletti Hornig & Sweeney letter dated June 26, 2009, page 2, para. 4. 

10 See, Unites States District Court Eastern District of Louisiana; American Commercial Lines, LLC vs. Shell 

 Trading U.S. Company, Et Al. Civil Action Nos. 09-3392, 09-3457, 09-3657, 09-4161; Section “B” (4).

11 See, M/G Transport Services, LLC letter dated July 7, 2009. 

12 See, NPFC letter dated July 21, 2009. 

13 See, claimant letter dated January 7, 2010. 

14 See, claimant letter dated April 19, 2010. 

15 See, NPFC email dated April 19, 2010. 

16 See, NPFC email dated May 25, 2010. 
(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; . . . 

(b) Defense to liability for Fund 

The Fund shall not be available to pay any claim for removal costs or damages to a particular 

claimant, to the extent that the incident, removal costs, or damages are caused by the gross 

negligence or willful misconduct of the claimant.”

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. 

Under 33 CFR 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).

With regard to claims for loss profits and impairment of earning capacity, the NPFC must 

independently determine that the proof criteria in OPA and the implementing regulations, at 33 

CFR Part 136, are met, including the general provisions of 33 CFR 136.105, and the specific 

requirements for loss of profits and earning capacity claims in Subpart C, 33 CFR 136.231, et 

seq. 

Pursuant to the provisions of 33 CFR 136.231, claims for loss of profits or impairment of earning 

capacity due to injury to, destruction of, or loss of real or personal property or natural resources 

may be presented to the Fund by the claimant sustaining the loss or impairment. 

“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. 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). 

Under 33 CFR 136.115(d), the Director, NPFC, will, upon written request of the claimant or the 

claimant's representative, reconsider any claim denied. The request for reconsideration must be 

in writing and include the factual or legal grounds for the relief requested, providing any 

additional support for the claim. The request for reconsideration must be received by the NPFC 

within 60 days after the date the denial was mailed to the claimant or within 30 days after receipt 

of the denial by the claimant, whichever date is earlier. 

VI. DETERMINATION

The barge 932 oil spill disrupted shipping in and out of the Mississippi River. The NPFC 

reviewed the Coast Guard SITREP-POL’s which clearly state that vessels were delayed from 

7/23/2008 until well after 7/28/2008. POLREP eight, issued on 7/28/2008, stated the safety zone 

from mile marker 97 through mile marker 60 would be maintained for the indefinite future to 

ensure integrity of boom systems and safety of pollution response workers. 

As mentioned above, the claimant seeks $20,343.75 for alleged loss of profits incurred when the 

tug they hired under charter was delayed from July 23, 2008 at 11:30 am to July 27, 2008 at 

2000 which equals four days, 8.5 hours (104.5 hours) due to the DM 932 oil spill. 

Documentation submitted with the claim included the following: 

 1. Coast Guard Sitrep-Pol Nine. 

 2. Worley Catastrophe letters dated December 12, 2009. 

3. Copy of invoice 0019554-IN from Western Rivers Boat MGT, Inc. for charges related to 

 the charter agreement from 7/21/08 – 7/27/08. 

 4. Fully found charter between M/G Transport Services, Inc (Charterer) and Western Rivers 

 Boat Mgmt. Inc. (Owner). 

5. Copy of the WRBMI Daily Logs from July 21, 2008 through July 27, 2008. 

6. Claimant’s proof of payment totaling $31,500.00 to Western Rivers Boat Mgt., Inc.
The NPFC does not find this claim compensable for the following reasons: 

1. No additional information provided 

After initial review of this claim, the NPFC requested additional information on June 15, 

2009. The claimant has failed to provide any of the information requested, which includes an 

unidentifiable error in the sum certain submitted with the claim and a clarification as to the 

chartered tugs name (Whitey vs. Whitney). 

2. No loss of profits proven 

The claimant failed to prove how they lost profits (revenue minus expenses). The fully found 

charter entered into on April 1, 2008, provides that M/G Transport had to pay $4,500.00 every 

day after delivery of the vessel and continuing thereafter for one year. The charter states that 

the owner, Western Rivers Boat Mgmt., Inc., would not be responsible for any loss or delay. 

Since the fully found charter hire costs represent fixed costs, they do not equate to either lost 

profits or increased costs. MG Transport has not offered any evidence that it incurred 

increased costs or lost profits as a result of the delay to the M/V Captain Whitey. 

Additionally, no monthly profit/loss statements were provided as requested so a comparison 

over several months and years could be investigated to determine if a loss could be shown. 

Nor were daily revenue records for July and August 2007 and 2008 provided as requested. 

VII. SUMMARY 

The Claimant failed to demonstrate a loss of profits. The NPFC cooperated fully with the 

claimant, by granting nine months of abeyance plus over sixty days to provide the additional 

information requested by us to properly adjudicate this claim. 

Based on the above, I recommend that M/G Transport Services, LLC be offered 0.00 as full 

compensation for the alleged damages it suffered when its barges were allegedly delayed as a 

result of the barge 932 oil spill. 

VIII. DETERMINED AMOUNT: $0.00

Claim Supervisor: Thomas S. Morrison 

Date of Supervisor’s Review: 

Supervisor Action: 

Supervisor’s Comments: