CLAIM SUMMARY / DETERMINATION FORM 

Date : 7/13/2010 

Claim Number : N08057-075

Claimant : Zegluga Polska Shipping, Ltd. 

Type of Claimant : Corporate 

Type of Claim : Loss of Profits and Earning Capacity 

Claim Manager : 

Amount Requested : $62,088.66 

I. Facts

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. 

Approximately 282,828 gallons oil1 were released into the Mississippi River and the resulting 

spill response, coordinated by the FOSC Unified Command, initially closed the river to vessel 

traffic and later, when reopened, managed traffic. 

II. Responsible Party

American Commercial Lines LLC (ACL), the Responsible Party (RP), owned the barge at the 

time of the incident and is a responsible party under the Oil Pollution Act. 

III. The Claimant and the Claim

Chaffe McCall, L.L.C., Inc. (Chaffe) has submitted a claim into the National Pollution Funds 

Center (NPFC) for their client, Zegluga Polska S.A. (Zegluga Polska) (which is managed by 

Polska Zegluga Morska). At the time of the collision, the M/V Kopalnia Borynia was under a 

North American Grain (Norgrain) form charter party to Archer Daniels Americas, Inc. (Archer 

Daniels).2

 The M/V Kopalnia Borynia arrived at the Mississippi River on July 19, 2008, and 

anchored at General Anchorage (Mississippi River Mile Marker (MM) 91) to await the 

availability of its loading berth. On July 22, 2008, the vessel moved to Kenner Bend Anchorage 

(Kenner Bend) (MM114.7) in order to be closer to its intended berth, ADM Grain Elevator 

(MM120.6) once it became available. 

At 1745 hours on July 24, 2008, the M/V Kopalnia Borynia proceeded to MM120.6 to begin 

loading operations, which were complete by 0620 hours on July 25, 2008. At this point in time, 

the Zegluga Polska claims the M/V Kopalnia Borynia was ready to get underway to the next leg 

of its voyage; however, due to vessel traffic restrictions put in place after the oil spill, the M/V 

Kopalnia Borynia was forced to return to Kenner Bend. The vessel sat idle at Kenner Bend from 

0900 hours on July 25, 2008 through 1810 hours on July 27, 2008, when it was directed by the 

USCG to the Bootheville Anchorage (MM12.5) to have its hull cleaned. The M/V Kopalnia 

Borynia was again delayed from 0115 hours until 0905 hours on July 28, 2008, when hullcleaning was complete and it began the rest of its voyage. In total, Zegluga Polska is claiming a 

total delay time of 2 days, 17 hours, or 2.70833 days. 

 

1

 See House Subcommittee Hearing on DM 932 Oil Spill, dated 9/15/2008 

2

 See Norgrain Charter Party between Zegluga Polska and Archer Daniels, dated 11/28/2008, submitted with the 

claim by Chaffe for Zegluga Polska on 3/17/2010 
Because the M/V Kopalnia Borynia’s movement was restricted during this delay period, and in 

order to determine the estimated loss of profits, Zegluga Polska has applied the demurrage rate of 

$18,000.00 as owed them under the Norgrain charter.3

 Applying this rate to the 2.70833 days, 

Zegluga Polska calculates a direct income loss of approximately $48,750.00 for this time period. 

Additionally, during these 2.70833 days, Zegluga Polska claims an additional 7.216 metric tons 

(mt) of IFO fuel and 2.0 mt of MDO fuel, increasing costs by $6,195.38, as well as $7,143.28 in 

additional pilot and tug expenses. When the projected income loss, increased bunkers and 

additional pilots and tugs are combined, Zegluga Polska’s claim totals $62,088.66. 

IV. APPLICABLE LAW

In general, claims for the removal costs or damages must first be presented to the RP per 33 USC 

2713(a). If the RP denies the claim or does not settle the claim within ninety days, the claimant 

may commence an action in court against the RP or present the claim to the Fund. 33 USC 

2713(c) 

The uses of the OSTLF are described at 33 USC 2712(a). It provides in relevant part that: 

“The Fund shall be available to the President for the payment of claims in accordance with 

section 2713 of this title for uncompensated removal costs determined by the President to 

consistent with the National Contingency Plan or uncompensated damages.”

Damages include damages for loss of profits or earnings capacity as a result of loss or 

destruction or real or personal property or natural resources. 33 USC 2702(b)(E) Damages are 

further defined to include the costs of assessing the damages. 33 USC 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 USC 2717 (h)(2) 

In any case in which the president has paid an amount from the Fund for any removal costs or 

damages specified under subsection (a), no other claim may be paid from the Fund for the same 

removal costs or damages. 33 USC 2712 (i) 

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

processing, settlement, and adjudication of claims...” 33 USC 2713 (e) Those regulations are 

found at 33 CFR part 136. 

Under 33 CFR 136.105(a) & 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: 

“the 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 the 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 

 

3

 See Demurrage, Line 181-185 of the Norgrain Charter between Archer Daniels and Zegluga Polska, submitted 

with the claim by Chaffe for Zegluga Polska on 3/17/2010 
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 the loss of profits or impairment of 

earning capacity due to injury to, destruction or, or loss or 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 & B or 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 or 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, comparable 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 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 the 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, and 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)

V. DETERMINATION OF LOSS: 

A. Overview: 

1. The incident involved the discharge and continuing substantial threat of discharge 

of “oil” as defined in OPA 90, 33 U.S.C. § 2701(23), to navigable waters.

2. Real or personal property or natural resources have been injured, destroyed, or 

lost; specifically oil was released into and injured the Mississippi River, a natural 

resource of the United States. 

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit 

has been filed in court for the claimed uncompensated removal costs. 

4. The claim was submitted on time. 

5. The claimant seeks $62,088.66in loss of profits, as a consequence of the M/V 

Kopalnia Borynia’s additional time, fuel, and costs.

6. The claimant asserts that if not for the oil spill the voyage would not have resulted 

in additional time and fuel. 

7. Presentment of costs to the RP was made by Chaffe, representatives for Zegluga 

Polska, prior to the submission of the claim. The NPFC also made presentment of costs 

to the RP for which the RP responded denying these costs. 
8. In the process of adjudicating this claim, the NPFC Claims Manager collected 

additional information from the claimant to document what took place at the time of the 

incident. 

B. Causation:

The Barge DM 932 oil spill did in fact release significant amounts of oil into and causing 

damage and injury to the Mississippi River, a natural resource of the United States. The 

resulting damage, injury and removal response disrupted shipping in and out of the Mississippi 

River.4 At the time of the spill, there were many large vessels in the area that were oiled due to 

the DM 932 oil spill. The M/V Kopalnia Borynia had to stay in port upriver from the dirty zone, 

and then, later at a decontamination area, awaiting USCG clearance to depart, which was granted 

on July 28, 2008. 

The Claimant provided a record of the incident by submitting Port Logs/Statement of Facts, 

which clearly demonstrate that the Mississippi River had closed and vessel traffic was redirected 

during the oil removal efforts.5 Additionally, the USCG provided POLREPS to substantiate that 

the Mississippi River was either closed to vessel traffic or open to limited traffic during the 

response period.

C. Vessel Delay Time: 

Zegluga Polska is claiming that the oil spill directly caused them loss of profits because the M/V 

Kopalnia Borynia was sitting idle during the river closure and while it waited to be 

decontaminated, increasing its voyage by 2.70833 days. The M/V Kopalnia Borynia was 

delayed as follows: 

From 7/25/2008 @ 0900 hours until 7/27/2008 @ 1810 hours 

From 7/28/2008 @ 0115 hours until 7/28/2008 @ 0905 hours 

The total stoppage time was 2 days, 17 hours, or approximately 2.70833 days.6 

Per the terms of the Norgrain charter party agreement between Archer Daniels and Zegluga 

Polska,7demurrage was set at a rate of $18,000.00 a day for the 2.70833 days they were detained 

due to the oil spill. Multiplying the $18,000.00 daily rate by 2.70833 days of delay equals 

approximately $48,750.00 in loss of revenue due to the demurrage. 

D. Increased Bunkers 

Zegluga Polska claims that the delay resulted in an increase in the consumption of bunkers and 

show the approximate breakdown of the amount of bunkers consumed during the idle periods:8 

Date Time IFO MDO

 7/25/2008 0000 Hours 370.9 66.5

 2400 Hours - 369.7 - 65.0

 

4

 Polreps 1-18; documenting river closures and traffic management through 8 August 2008. 

5

 See Claim submission forms, submitted by Chaffe McCall, L.L.C. to the NPFC on 3/17/2010 

6

 See Port Logs, submitted with the claim by Chaffe McCall, L.L.C. to the NPFC on 3/17/2010 

7

 See Lines 181-185 of the Norgrain Charter between Archer Daniels and Zegluga Polska, submitted with the claim 

by Chaffe for Zegluga Polska on 3/17/2010 

8

 See Voyage Logs, submitted with the claim by TBS Adjusting to the NPFC on 7/01/2009 
 --------- --------- 

 1.2 mt 1.5 mt 

 7/26/2008 0000 Hours 369.70 65.0

 2400 Hours - 368.25 - 64.2

 --------- --------- 

 1.45 mt 1.8 mt 

 7/27/2008 0000 Hours 368.25 64.20 

 2400 Hours - 363.80 - 63.85 

 --------- ---------- 

 4.45 mt 0.35 mt 

 

 7/28/2008 0000 Hours 363.8 63.85

 2400 Hours - 354.4 - 63.10

 --------- ----------- 

 9.4 mt 0.75 mt 

 Total: 16.5 mt 4.4 mt 

The top number represents the amount of oil (in tons) that were read at 0000 hours each day, 

subtracting the amount of oil read at 2400 hours that same day to find the difference. 

The M/V Kopalnia Borynia was delayed for the entirety of July 26, 2008. Thus, 1.45 mt of IFO 

is attributable to fuel burned on days in which the vessel was delayed a full 24-hour period. 

However, the M/V Kopalnia Borynia was not delayed for the entirety of July 25, July 27, and 

July 28, 2008. As the crew of this vessel recorded fuel measurements at midnight each night, 

some estimation is required for these three days. Zegluga Polska was delayed approximately 15 

of the 24 hours on July 25, 2008. With an average fuel consumption of 0.05 mt/hour (1.2 mt/ 24 

hours = 0.05 mt/hr), the approximate amount of IFO bunkers consumed would be 0.75 mt (0.05 

mt/hr X 15 hours = 0.75 mt). The M/V Kopalnia Borynia was delayed approximately 18 of the 

24 hours on July 27, 2008. With an average fuel consumption of 0.185 mt/hour (4.45 mt/24 

hours = 0.185 mt/hr), the approximate amount of IFO bunkers consumed would be 3.33 mt 

(0.185 mt/hr X 18 hours = 3.33 mt). Additionally, the M/V Kopalnia Borynia was delayed 

approximately 8 of the 24 hours on July 28, 2008. With an average fuel consumption of 0.392 

mt/hour (9.4 mt/24 hours = 0.392 mt/hr), the approximate amount of IFO bunkers consumed 

would be 3.136 mt (0.392 mt/hr X 8 hours = 3.136 mt). When combining the three totals (0.75 

mt + 3.33 mt + 3.136 mt), the amount of additional IFO consumed approximates to 7.216 mt. 

At a cost of $625.00/mt, the additional IFO consumed amounts to $4,510.00 ($625.00/mt X 

7.216 mt = $4,510.00).9 

The 1.8 mt MDO is attributable to fuel burned on this day in which the vessel was delayed a full 

24-hour period, as the M/V Kopalnia Borynia was delayed for the entirety of July 26, 2008. As 

it was not delayed for the entirety of July 25, July 27 and July 28, 2008, the same approximation 

calculation as used above to find IFO is applied here in finding the MDO consumed. The M/V 

Kopalnia Borynia was delayed approximately 15 of the 24 hours on July 25, 2008. With an 

average fuel consumption of 0.063 mt/hour (1.5 mt/24 hours = 0.063 mt/hr), the approximate 

amount of MDO bunkers consumed would be 0.945 mt (0.063 mt/hr X 15 hours = 0.945 mt). 

 

9

 See Hess Corporation Fuel Invoice, submitted to the NPFC by Mr. , Chaffe-McCall, via email on 

6/25/2010 
The M/V Kopalnia Borynia was delayed approximately 18 of the 24 hours on July 27, 2008. 

With an average fuel consumption of 0.015 mt/hour (0.35 mt/24 hours = 0.015 mt/hr), the 

approximate amount of MDO bunkers consumed would be 0.27 mt (0.015 mt/hr X 18 hours = 

0.27 mt). Lastly, the M/V Kopalnia Borynia was delayed approximately 8 of the 24 hours on 

July 27, 2008. With an average fuel consumption of 0.031 mt/hour (0.75 mt/24 hours = 0.031 

mt/hr), the approximate amount of MDO bunkers consumed would be 0.248 mt (0.031 mt/hr X 8 

hours = 0.248 mt). When combining the totals (0.945 mt + 0.27 mt + 0.248 mt), the amount of 

additional MDO consumed approximates to 1.463 mt. While Zegluga Polska estimates a total of 

2.0 mt of MDO, the NPFC will only consider 1.463 mt as compensable costs. 

At a cost of $1152.00/mt, the additional MDO consumed amounts to $1685.38 ($1152.00/mt X 

1.463mt = $1685.38). 

The total amount of additional bunkers (IFO and MDO) consumed as a direct result of the oil 

spill equals approximately $6,195.38.

E. Additional Costs 

Zegluga Polska is claiming additional costs due to increased pilot and tug fees. 

Pilots:

Increased pilotage fees can be broken down in the following way:10

7/25/2008: 

Shifting: $729.41 

Transportation: $144.28 

Communications: $5.57

 _______ 

 

Total: $1286.99 

7/27/2008: 

Transportation: $144.28 

 _______ 

 

Total: $144.28 

 

7/28/2008: 

Transportation: $183.00 

Boat Service: $373.64 

 _______ 

 

Total: $556.64 

7/28/2008: 

 

10 See Crescent Towing and Salvage Co. Inc. invoices, submitted with the claim by Chaffe for Zegluga Polska on 

3/17/2010 
Transportation: $183.00 

Boat Service: $373.64 

Standing By: $515.52 

 _______ 

 

Total: $1072.16 

Total Claimed Loss in Additional Pilots: $3060.07 

Tugs:

Increased tug fees can be broken down into the following categories:11

Service Quantity/Hours Unit Price Total 

Assist vessel out of anchorage 1 hour $3600.00 $3600.00

Gross Registered Tons 8893 $234.00

Fuel Surcharge $1648.62

 

Total: $5482.62

Discount: ($1399.41) 

Total Additional Tugs Expenses: $4083.21 

F. Analysis: 

Chaffe submitted a claim for their client, Zegluga Polska, in which they were able to demonstrate 

that the M/V Kopalnia Borynia was indeed negatively impacted and delayed by the DM 932 oil 

spill. However, simply because a vessel is delayed does not always translate into a loss of profit 

claim under OPA, as is the case here. 

While it is clear the M/V Kopalnia Borynia was off-hire, Zegluga Polska has not met their 

burden of proof that these 2.70833 days affected their revenue or income for 2008 as Zegluga 

Polska owns the M/V Kopalnia Borynia—regardless if it is chartered or not. Zegluga Polska 

claims that, because of the delay, they incurred a reduction in charter hire in the amount of 

$18,000.00 per day (pro rata). They reason that, if the charterer had caused the delay, Zegluga 

Polska would have been able to collect demurrage to offset the additional costs and expenses.12 

Zegluga Polska also states that, if the delay was caused by a third-party vessel’s negligence, then 

they would have had adequate remedy at law to recover costs. 

Zegluga Polska’s claim is flawed in that they are trying to apply these same arguments to the 

delay caused by the DM 932 oil spill. Polsteam Shipping Co. Ltd. (Polsteam (Owners of the 

M/V Kopalnia Borynia)) entered into a Norgrain form charter by which Polsteam was to receive 

a lump sum freight of $635,000.00 from Archer Daniels Midland Shipping Company for the 

voyage.

13

 Zegluga Polska received the original agreed-upon payment for this charter—the delay 

did not affect it. Any demurrage or compensation for additional time that would have been 

earned would be considered extra income but for the oil spill. No demurrage, then, is not lost 

revenue. 

 

11 See New Orleans-Baton Rouge Steamship Pilots Association and Crescent Towing and Salvage Co. Inc. invoice, 

submitted with the claim by Chaffe for Zegluga Polska on 3/17/2010 

12 See letter to Ms. , NPFC, sent via email and dated 6/25/2010 

13 See Clause 49 “Grain” of the Norgrain Charter between Cargill and Zegluga Polska, submitted with the claim by 

Chaffe for Zegluga Polska on 3/17/2010 

(b) (6)
The claimant quotes the views of Mr. Robert L. Dunn in Recovery of Damages for Lost Profits 

(6th ed. 2005).14 While both Mr. Dunn and the claimant are correct in stating that a “reasonable 

certainty” that profits were lost is necessary. What is not understood here is that the claimant 

still has the obligation under OPA to show that profits were, in fact, lost. While Zegluga Polska 

has shown (in providing its Time Sheets for the M/V Kopalnia Borynia15) that they were 

extremely busy during FY 2008, they have not shown where profit was lost. No voyages were 

canceled as a direct result of this oil spill and, as Zegluga Polska was under a Norgrain charter 

for these voyages, the preponderance of the evidence has not shown that income was lost, either. 

In fact, by providing the Time Sheets, Zegluga Polska shows that the required sequence of seven 

to ten consecutive charters for the M/V Kopalnia Borynia16 was fulfilled in spite of this delay. 

Zegluga Polska does prove, through documentation provided the NPFC, that they did incur 

damages in the amount of $13,338.66 for increased bunkers, pilots and tugs as a direct result of 

the oil spill. These added costs (as explained in sub-points D and E above) are valid and 

compensable. 

G. Determination: 

The NPFC hereby determines that the OSLTF will pay $13,338.66 as full compensation for the 

damage costs incurred by the Claimant and submitted to the NPFC under claim # N08057-075. 

All costs claimed are for charges paid for by the Claimant for damages as that term is defined in 

OPA and, are compensable damages, payable by the OSLTF as presented by the Claimant. 

VI. DETERMINED AMOUNT: $13,338.66

Claim Supervisor: Thomas S. Morrison 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor Comments:

 

14 See letter to Ms. , NPFC, sent via email and dated 6/25/2010 

15 See Time Sheets, sent via email by Chaffe for Zegluga Polska on 6/25/2010 

16 See Lines 17-18 of the Norgrain Charter between Cargill and Zegluga Polska, submitted with the claim by Chaffe 

for Zegluga Polska on 3/17/2010 

(b) (6)