CLAIM SUMMARY/DETERMINATION FORM

FACTS

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

was discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT

On 06 January 2012, Adam Rubenstein (the Claimant), presented an optional Oil Spill Liability 

Trust Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking 

$28,899.53 in loss of profits and impairment of earnings capacity that allegedly resulted from the 

Deepwater Horizon oil spill.

The Claimant is employed as a shrimp broker for Rubenstein Seafood Sales in Austin, Texas.1

 

The Claimant asserted that his company represents all the major gulf shrimp processors and that 

there was a reduction in shrimp availability due to the Deepwater Horizon oil spill.2 The 

Claimant stated that he experienced an average loss of 68% in sales for the period of May 

through August of 2010 and had over 10 truckloads cancelled from five accounts.3

 Additionally, 

the Claimant indicated that his reduced sales have continued through 2011.4

 

APPLICABLE LAW

The Oil Pollution Act of 1990 (OPA) provides that each responsible party for a vessel or facility 

from which oil is discharged into or upon the navigable waters or adjoining shorelines or

exclusive economic zone is liable for removal costs and damages. 33 U.S.C. § 2702(a). 

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

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

recoverable by any claimant. 33 U.S.C. § 2702(b)(2)(E).

The OSLTF, which is administered by the NPFC, is available to pay claims for uncompensated 

damages pursuant to 33 U.S.C. § 2712(a)(4) and § 2713 and the OSLTF claims adjudication 

regulations at 33 C.F.R. Part 136. With certain exceptions a claim must first be presented to the 

1 GCCF Interim Payment Claim Form dated 12/27/2010. 

2 Letter of claim explanation from the Claimant, faxed on 27 October 2010.

3 Letter of claim explanation from the Claimant, faxed on 27 October 2010.

4 GCCF Interim Payment Claim Form dated 6/30/2011.

Claim Number N10036-1631

Claimant Adam Rubenstein

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $28,899.53

 
responsible party. 33 U.S.C. § 2713(a). If the claim is either denied or not settled by any person 

by payment within 90 days after the date on which it was presented, the claimant may elect to 

commence an action in court or present the claim to the OSLTF. 33 U.S.C. § 2713(c).

Pursuant to the claims regulations, 33 C.F.R. § 136.233, a claimant must establish the following 

to prove loss of profits or impairment of earning capacity:

(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 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 received 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.

Under 33 U.S.C. § 2702(b)(2)(E) and 33 C.F.R. Part 136, a claimant must prove that any loss of 

income was due to injury, destruction or loss of real or personal property or of a natural resource 

as a result of a discharge or substantial threat of a discharge of oil. Under 33 C.F.R. § 136.105(a) 

and § 136.105(e)(6), the claimant bears the burden of providing to the NPFC all evidence, 

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

Under 33 C.F.R. § 136.235, the amount of compensation allowable for a claim involving loss of 

profits or impairment of earning capacity is limited to the actual net reduction or loss of earnings 

or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments for:

(a) All income resulting from the incident;

(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertaken, but reasonably 

available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and

(e) State, local, and Federal taxes.

DETERMINATION OF LOSS

The Claimant’s Submission to the OSLTF

In support of the claim, the Claimant presented all of the documentation listed in Enclosure 2. 

Prior to presenting this claim to the NPFC, the Claimant filed six claims with the GCCF for loss of 

earnings, all under Claimant ID # 3440301. The table below provides relevant information for the 

Claimant’s GCCF claims.5

 

5 Report from the GCCF, dated 17 April 2012. 

 
Date 

Presented to 

GCCF Claim No. Claim Type

Amount 

Claimed GCCF Status 

11/23/2010 523504 Emergency Advance (EAP) $42,500.00 Denied 

12/27/2010 9124604 Interim 1 (ICQ12011) $42,500.00 Paid $3,395.13

04/27/2011 9371594 Interim 2 (ICQ22011) Denied

06/30/2011 9411013 Interim 3 (ICQ32011) $17,000.00 Denied

10/05/2011 9520020 Interim 4 (ICQ42011) $28,899.53 Denied 

03/18/2012 9581132 Interim 5 (ICQ52012) $12,131.35 Under Review 

Based upon the evidence provided by the Claimant, it appears that the subject matter for the 

Claimant’s GCCF claims is the same as the subject matter of the claim before the NPFC, i.e., 

that due to the Deepwater Horizon oil spill, the Claimant lost earnings as a shrimp broker. The 

NPFC deems that the Claimant’s GCCF claims were properly presented to the responsible party 

and properly presented to the NPFC. Accordingly, this Claim Summary Determination for 

NPFC Claim N10036-1631 considers and addresses the earnings claimed in the claims presented 

to the responsible, specifically; GCCF Claim #’s 523504 (EAP), 9124604 (ICQ21011), 9371594 

(ICQ22011), 9411013 (ICQ32011), and 9520020 (ICQ42011).6 

NPFC Determination

Under 33 C.F.R. § 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing to 

the NPFC all evidence, information and documentation deemed necessary by the Director, 

NPFC, to support the claim. The NPFC considered all documentation presented by the Claimant.

This claim is denied because the Claimant failed to prove that he experienced a financial loss as 

result of the Deepwater Horizon oil spill. The Claimant asserted he experienced a reduction in 

sales, as well as cancelled sales, because of decreased inventory and higher prices caused by the 

Deepwater Horizon oil spill. In his submission to the NPFC, the Claimant provided assorted 

pay stubs, tax information, and charts of shrimp sales. On 06 March 2012, the NPFC requested 

that the Claimant provide additional information to verify the losses asserted and to establish a 

connection between the alleged loss and the Deepwater Horizon oil spill. 

The NPFC requested that the Claimant provide, among other things, documentation of cancelled 

sales, sales records for all his seafood commission-sales from 2008-2011, tax returns from 

Rubenstein Seafood Sales, Inc. for 2008-2010, and information regarding the amount of nonGulf Coast seafood sold by the Claimant.7

 To date, the NPFC has not received any additional 

information from the Claimant. Accordingly, the Claimant failed to meet his burden to prove 

that he experienced a loss of earnings from decreased shrimp sales caused by the Deepwater 

Horizon oil spill. 

6 The NPFC does not have presentment for the Claimant’s Interim 5 claim. In order for the NPFC to have proper 

presentment, a claim must have either been denied in full, or in part, or have gone 90 days without action from the 

responsible party. Regarding this claim, none of the aforementioned exists. 

7 Letter from the NPFC to the Claimant, dated 06 March 2012. 

 
Based on the foregoing, this claim is denied because (1) the Claimant failed to meet his burden to 

demonstrate that there was a loss in the amount claimed, and (2) the Claimant failed to meet his 

burden to demonstrate that the alleged loss is due to the injury, destruction or loss of property or 

natural resources as a result of a discharge or substantial threat of a discharge of oil.

Claims Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 5/2/12

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

Enclosure (2)

Evidence Presented by the Claimant in Support of 

Claim N10036-1631

- Optional OSLTF Claim Form, dated 28 December 2011;

- Gulf Coast Claims Facility (“GCCF”) Determination Letter on Final Payment Claim, 

dated 22 December 2011 (pages 1 & 4-6 of 10 pages); 
- Letter of claim explanation from the Claimant, faxed on 27 October 2010; 

- Claimant’s “authorization and release” for documents previously provided by you to 

GCCF. 

- GCCF letter dated 31 January 2011

- GCCF “Supporting Documentation for a Claim” form;

- 2008 Form W-2 from Rubenstein Seafood Sales, Inc. 

- 2009 Form W-2 from Rubenstein Seafood Sales, Inc. 

- Pay stubs (and assorted corresponding checks and deposit slips) for Claimant from 

Rubenstein Seafood Sales, Inc. with the following pay dates: 12/29/2008, 12/30/2009, 

5/12/2010, 6/14/2010, 6/22/2010, 6/30/2010, 7/15/2010, 7/30/2010, 8/16/2010, 

9/17/2010, 10/1/2010, 10/13/2010, 10/28/2010, 11/15/2010, 11/29/2010, 12/13/2010, 

12/29/2010, 1/13/2011, 1/31/2011, 2/14/2011, 2/28/2011, 3/16/2011, 3/30/2011, 

4/15/2011, 4/29/2011, 5/13/2011, 5/27/2011, 6/15/2011, 6/30/2011, 7/14/2011, 

7/26/2011, 8/15/2011, 8/29/2011, 9/14/2011, 10/1/2011;

- Monthly “Sales in LBS” spreadsheet for 2007-2010;

- “2010 Actual vs. Expected pay” document noting projected versus expected income from 

May 2010 through December 2010;

- Revised 2010 “Actual, Projected, Expected” pay document noting projected versus 

expected income from May 2010 through December 2010 (fax-dated 4/15/2011);

- “Actual, Projected, Expected” pay document noting projected versus expected income 

from May 2010 through March 2011 (fax-dated 4/18/2011- 2 copies);

- GCCF Interim Payment Claim Form dated 12/27/2010;

- GCCF Interim Payment Claim Form dated 4/27/2011; 

- GCCF Interim Payment Claim Form dated 6/30/2011; 

- GCCF Interim Payment Claim Form dated 9/30/2011; 

- Claimant’s “GCCF Claim Form Generated Online” dated 11/23/2010; 

- Claimant’s 2010 federal tax return; 

- Claimant’s 2010 W-2 from Rubenstein Seafood Sales, Inc.;

- GCCF letter dated 12/10/2010;

- GCCF deficiency letter dated 12/12/2010;

- GCCF Determination Letter on Interim Payment/Final Payment Claim letter dated 

3/6/2011;

- GCCF Re-Review Determination Letter on Interim Payment/Final Payment Claim dated 

4/14/2011;

- GCCF Re-Review Determination Letter on Final Payment Claim dated 6/16/2011;

- GCCF Determination Letter on Interim Payment/Final Payment Claim letter dated 

6/29/2011;

- GCCF Re-Review Determination Letter on Final Payment Claim dated 7/7/2011;

- GCCF Determination Letter on Interim Payment/Final Payment Claim dated 9/22/2011;

- GCCF Re-Review Election Form dated 9/26/2011;

- GCCF Determination Letter on Interim Payment/Final Payment Claim dated 10/3/2011;

- GCCF Determination Letter on Interim Payment/Final Payment Claim dated 12/22/2011; 

- GCCF Final Payment Election Form dated 12/22/201.