4

collision with the Nashville Avenue Wharf at the Port of New Orleans, LA.9 Sector New 

Orleans IMD conducted an overflight with Air Station New Orleans and deployed a team of 

Pollution Responders who determined the vessel’s fuel tank had been punctured, discharging

approximately 47.61 BBLs into the waterway. The US Coast Guard closed the Mississippi River 

to vessel traffic from MM100.6 to MM91 on April 12, 2018 at 1058 hours and reopened on April 

13, 2018 at 1400 hours.10 On April 15, 2018 an overflight spotted no visible sheen in the 

affected area due to a storm and river surge, washing away most of the lighter ends. 

Responsible Party 

The owner of the M/V PAC ANTARES is PACC Ship Managers Pte. Ltd., a privately owned 

company. PACC Ship Managers Pte. Ltd took responsibility for the spill on April 12, 2018, and 

was issued a Notice of Designation (NOD) on April 26, 2018. 11 PACC activated their Vessel 

Response Plan and directed their Qualified Individual (QI) Gallagher Marine Services (GMS) to 

activate their Incident Management Team. The RP’s Oil Spill Response Organization deployed 

14,500 feet of hard boom to the spill site, a Marco Skimmer and 28 personnel to begin cleanup

operations and developed an incident action plan for extended operations.12

MR & Associates, LLC (MR) is a limited liability company that provided claims and cost 

management responsibility on behalf of PACC Ship Managers Pte. Ltd., as confirmed by the RP’s 

attorney, Fowler Rodriguez Counselors at Law.13

Loss Of Profits

In response to the M/V PAC ANTARES oil spill, the US Coast Guard closed the Mississippi 

River to vessel traffic from MM100.6 to MM91 on April 12, 2018 at 1058 hours and reopened it 

on April 13, 2018 at 1400 hours.14 This closure period restricted the M/V CREOLE QUEEN 

from continuing its voyage upriver to its homeport at the Poydras Street Wharf, after its second 

of three trips that day and required them to return south and tie up at the Chalmette Battlefield 

until the river was re-opened. During this period of time, the vessel was unable to conduct its 

normal three cruise trips a day. Additionally the CREOLE QUEEN was oiled and required 

decontamination prior to assuming normal operations, which did not allow the vessel to continue 

with its planned trips until April 15, 2018.15 As such, New Orleans Paddlewheels, Inc. (NOP), 

the owners of the M/V CREOLE QUEEN, is claiming a loss of profits during the river closure 

for lost food and beverage profits, wages paid for employees, passenger transport costs and lost 

ticket sales.

 

9 National Response Center report #1209141 dated April 12, 2018.

10 SITREP-POL 2 dated April 27, 2018. 11 NOD to PACC Ship Managers dated April 26, 2018. 12 SITREP-POL 1 dated April 12, 2018. 13 Phone Conversation with NPFC and dated October 30, 2108. 14 SITREP-POL 2 dated April 27, 2018. 15 USCG Verification of Final Decontamination Doc #661140 dated April 15, 2018.
5

II. CLAIMANT AND RP: 

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

1990 (OPA)16 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.17

NOP’s attorney, Blackburn & Associates, APLC18 (Blackburn or Claimant) submitted its 

request for compensation to the RP of $118,612.47 on May 22, 2018.

19 This submission combined 

costs for lost ticket sales, passenger transportation, additional crewing and fuel costs. 

Claimant resubmitted the costs to RP on June 5, 2018 along with copies of the M/V CREOLE 

QUEEN’s ticket sales receipts for the four day period preceding the incident, and the same four 

day period in the subsequent week.20 Claimant submitted all costs for a third time on July 23, 

2018 along with copies of the occupational license, state tax returns and vessel log entries for April 

12, 2018 through April 15, 2018.21

In response to the July 23, 2018 resubmission of costs, the RP requested NOP submit federal 

tax returns and operation costs. NOP refused to submit federal tax returns as part of their claim 

submission,22 and did not provide records that the RP deemed responsive to the request. The RP 

has not settled the claim.

23

III. CLAIMANT AND NPFC:

When a RP has not settled a claim after 90 days of receipt, a claimant may elect to present its 

claim to the NPFC.24 On October 9, 2018, the NPFC received a claim for loss of profits from NOP

dated October 1, 2018. The costs presented to the NPFC in the amount of $118,612.47 matched 

those submitted to the RP and could be substantiated using the information submitted with the 

claim. 

 On November 15, 2018, Blackburn submitted a withdrawal of the additional crewing and fuel 

costs in the amount of $1,760.00 from their client’s claim, and presented new costs for lost food 

& beverages in the amount of $7,559.07 and wage expenditures in the amount of $4,945.84; 

altering their claim total from $118,612.47, to $129,357.38.25 Claimant has not confirmed these 

new costs were previously submitted to the RP. 

On December 4, 2018, the NPFC requested Claimant present all new costs to the responsible 

party and allow 90 days for the RP to respond and/or deny the costs. The NPFC also requested 

additional information relative to the claim be provided along with verification of the date by 

 

16 33 U.S.C. § 2701 et seq. 17 33 CFR 136.103. 18 See, New Orleans Paddlewheels, Inc. claim submission dated October 9, 2018. 19 Blackburn & Associates, APLC payment Demand Letter dated May 22, 2018. 20 Blackburn & Associates, APLC payment Demand Letter dated June 5, 2018. 21 Blackburn & Associates, APLC payment Demand Letter dated July 23, 2018. 22 Email from to dated September 14, 2018. 23 MR & Associates, LLC letter to the NPFC dated November 5, 2018. 24 33 CFR 136.103. 25 Letter from Blackburn & Associates, APLC to NPFC dated November 6, 2018 and Email from

to Claims Manager dated November 15, 2018.

7

proof unfairly favoring those responsible for the spills.”35 OPA was intended to cure these 

deficiencies in the law.

OPA provides that each responsible party for a vessel or facility from which oil is 

discharged, or which poses a threat of a discharge of oil, into or upon the navigable waters or 

adjoining shorelines or the exclusive zone is liable for removal costs and damages.36 Damage 

include damages equal to the loss of profits or impairment of earning capacity, due to the injury, 

destruction of, or loss of real property, personal property or natural resources, which shall be 

recoverable by any claimant.37 

The NPFC is authorized to pay claims for loss of profits costs that are consistent with 

uncompensated damages.38 The NPFC has promulgated a comprehensive set of regulations 

governing the presentment, filing, processing, settling, and adjudicating such claims.39 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.40 

Damage claims to the Fund 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.41 With regard to claims for loss of 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.

Before reimbursement can be authorized for loss of profits costs consistent with 

uncompensated damages, the claimant must demonstrate by a preponderance of the evidence:

(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.42

 35 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.). 36 33 U.S.C. § 2702(a). 37 33 U.S.C. § 2702(b)(2)(E). 38 33 U.S.C. § 2712(a)(4). 39 33 CFR Part 136. 40 33 CFR 136.105. 41 33 U.S.C. §2712(h)(2). 42 33 CFR 136.233 (a) – (d).
8

The NPFC analyzed each of these factors while reviewing all of the information submitted by 

NOP in support of their claim. Information submitted by the United States Coast Guard, who 

served as Federal On-Scene Coordinator (FOSC) in response to the incident supported the exact 

timeline and full impact of the oil spill incident. FOSC records verify oil exited the M/V PAC 

ANTARES and entered the Mississippi River.43 Documents cite to oil being released into the 

Lower Mississippi River, and the waterway being closed prior to and during the oil cleanup 

activites. Vessels transiting the Safety Zone were delayed between the dates of April 12, 2018 

and April 13, 2018.44 The FOSC explains closing the decontamination process on April 14, 

2018 due to inclement weather and verifies informing all vessels, including the M/V CREOLE 

QUEEN, that if they had been contaminated due to the spill, they must notify the FOSC and 

await decontamination while ceasing operation until after the process is complete.45 The FOSC

also kept a vessel decontamination list citing both contaminated and detained vessels. The M/V 

CREOLE QUEEN is listed on the document.46 Furthermore, Claimant provided proof that the 

vessel was not decontaminated until April 15, 2018,47 and the FOSC verifies the M/V CREOLE 

QUEEN arrived on April 13, 2018 for vessel decontamination that was completed on April 15, 

2018.48

In response to NPFC’s requests for additional information on October 18, 2018, October 24, 

2018 and November 6, 2018, Claimant provided wage information records, food and beverage 

records, a proof of payment invoice to New Orleans Tours, NOP’s 2017 Federal Tax Return and 

NOP’s 2018 Corporate Financial Staements to September 1, 2018.49 

After repeated requests,50 the claimant has not provided proof that the new costs submitted to 

the NPFC have been presented to the RP.

51 Therefore, these costs are denied. Furthermore, all 

other claimed costs are denied because the claimant failed to prove a loss of profits versus a loss 

of revenue. NOP expenses were either not provided, or not in enough detail, to understand the 

actual loss of profits. This is outlined further below: 

A. Lost Ticket Sales:

Claimant claimed $115,352.47 in lost ticket sale revenue by averaging the ticket sale totals 

for the four day period preceding the incident with the ticket sale totals for the same four day 

period in the subsequent week. However, this loss of ticket sale revenue did not include any 

expenses that would offset the revenue, providing the true loss of profits. Two of the many 

expenses in operating a vessel are the cost of fuel, and the salary of employees. The NPFC made 

several requests for documentation for all fuel used (main engine(s) and generator(s)) for these 

 

43 SITREP-POL 2 dated April 27, 2018. 44 Marine Safety Information Bulletin dated April 13, 2018, IAP dated April 14, 2018 and 3rd Party Vessel Decon 

Plan dated April 14, 2018.

45 Conference Call relative to Claim N18035-0001 dated November 2, 2108. 46 USCG-FOSC Vessel Decon spreadsheet dated April 15, 2018. 47 USCG Verification of Final Decontamination Doc #661140 dated April 15, 2018. 48 USCG-FOSC Vessel Decon spreadsheet dated April 15, 2018. 49 Letter from Blackburn & Associates, APLC to the NPFC dated November 6, 2018. 50 Email from Claims Manager to dated December 4, 2018, December 6, 

2018 and December 20, 2018 and Letter from the NPFC to Blackburn & Associates, APLC dated January 31, 2019.

5133 U.S.C. § 2713(a)-(c).