CERTIFIED MAIL – RETURN RECEIPT REQUESTED 5890/DWHZ 

Number: 7012 2210 0001 7214 9807 19 July 2013 

 

Tuong Van Tran

Re: Claim Number: N10036-1960 

Dear Mr. Tran, 

The National Pollution Funds Center (NPFC), in accordance with the Oil Pollution Act of 1990, 33 

U.S.C. § 2701 et seq. (OPA) and the associated regulations at 33 C.F.R. Part 136, denies payment on the 

claim number N10036-1960 involving the Deepwater Horizon oil spill. Please see the attached Claim 

Summary/Determination Form for further explanation. 

You may make a written request for reconsideration of this claim. The reconsideration must be received 

by the NPFC within 60 days of the date of this letter and must include the factual or legal basis of the 

request for reconsideration, providing any additional support for the claim. However, if you find that you 

will be unable to gather particular information within the time period, you may include a request for an 

extension of time for a specified duration with your reconsideration request. 

Reconsideration of the denial will be based upon the information provided. A claim may be reconsidered 

only once. Disposition of that reconsideration in writing will constitute final agency action. Failure of 

the NPFC to issue a written decision within 90 days after receipt of a timely request for reconsideration 

shall, at the option of the claimant, be deemed final agency action. All correspondence should include 

claim number N10036-1960. 

Mail reconsideration requests to:

Director (ca)

NPFC CA MS 7100

US COAST GUARD

4200 Wilson Blvd, Suite 1000 

Arlington, VA 20598-7100 

Sincerely,

Claims Adjudication Division

National Pollution Funds Center 

U.S. Coast Guard 

Enclosure: Claim Summary/Determination

U.S. Department of 

Homeland Security

United States

Coast Guard

Director

National Pollution Funds Center

United States Coast Guard

NPFC CA MS 7100

US COAST GUARD

4200 Wilson Blvd. Suite 1000

Arlington, VA 20598-7100

Staff Symbol: (CA)

Phone: 800-280-7118

E-mail: arl-pf-npfcclaimsinfo@uscg.mil

Fax: 703-872-6113
CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1960

Claimant Tuong Van Tran

Type of Claimant Private (US)

Type of Claim Loss of Profits or Impairment of Earning Capacity

Amount Requested $220,000.00

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 

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.

On 08 March 2012, the United States District Court, Eastern District of Louisiana issued a 

"Transition Order" (TO) limiting the GCCF's ability to accept, process, or pay claims except as 

provided in that order. The TO created a Transition Process (TP) to facilitate the transition of the 

claims process from the GCCF to a proposed Court Supervised Settlement Program (CSSP). The 

Court granted Preliminary Approval of the proposed settlement agreement on 02 May 2012, and 

the CSSP began processing claims on 04 June 2012.

CLAIM AND CLAIMANT

On 19 June 2013, Mr. Tuong Van Tran (“the Claimant”) submitted a claim to the Oil Spill 

Liability Trust Fund (OSLTF) for $220,000.00 in loss of profits or impairment of earning 

capacity damages allegedly resulting from the Deepwater Horizon oil spill.

1

 

The Claimant is based in Marrero, Louisiana, and appears to have been the owner and operator 

of a fishing vessel from at least 2007 – 2009.2 The Claimant has not provided evidence to 

indicate the nature of his work in 2010.3 The Claimant stated that he “sign[ed] a Settlement 

agreement, [but the] GCCF didn’t tell [him] about the captain claim.”4

 It seems then, that the 

Claimant likely signed a Settlement agreement on behalf of the fishing vessel he owned and 

operated prior to the oil spill, and is also attempting to recover individual losses sustained in his 

capacity as a captain aboard the fishing vessel.

The Claimant has not provided evidence to indicate how he arrived at his sum certain of 

$220,000.00.

APPLICABLE LAW 

Under the Oil Pollution Act of 1990 (OPA), at 33 U.S.C. § 2702(a), responsible parties are liable 

for removal costs and damages resulting from the discharge of oil into or upon the navigable 

1 Optional OSLTF Claim Form, unsigned. 2 The Claimant provides income tax returns for those years, but fails to indicate how he was earning income in 2010 

or thereafter. 

3 Optional OSLTF Claim Form, signed on 12 June 2010. 4 Optional OSLTF Claim Form, signed on 12 June 2010.

 
water, adjoining shorelines, or the exclusive economic zone of the United States, as described in 

§ 2702(b) of OPA. 

The OSLTF 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. 

One type of damages available pursuant to 33 C.F.R. § 136.231 is a claim for loss of profits or 

impairment of earning capacity due to injury to or destruction of natural resources.

Under 33 C.F.R. § 136.233 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 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; and

(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 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.

Under 33 U.S.C. § 2712(f), payment of any claim or obligation by the Fund under OPA shall be 

subject to the United States Government acquiring, by subrogation, all rights of the claimant or 

State to recover from the responsible party.

DETERMINATION OF LOSS 

Claimant’s Submission to the NPFC

The Claimant submitted the following documentation in support of this claim:

− Optional OSLTF Claim Form, signed on 12 June 2013;

− Handwritten contact information for “PSC”;
− Certificate of vessel documentation, issued 23 April 2013;

− Copy of the Claimant’s driver’s license;

− Resident fishing permit documentation, 2013;

− 2007 Form 1040, showing business income of $40,435.00;

− 2007 Schedule C (Form 1040), showing gross sales of $314,150.00 and net profit of 

$40,435.00;

− 2007 Schedule SE (Form 1040);

− 2007 Form 4562;

− 2007 Form 2210;

− 2007 Schedule EIC (Form 1040A or 1040);

− 2007 Form 8812;

− State income tax returns, Louisiana, filed 13 April 2008;

− 2008 Form 1040, showing business income of $44,995.00;

− 2008 Form 4562;

− 2008 Schedule C (Form 1040), showing gross sales of $350,403.00 and net profit of 

$44,995.00;

− 2008 Schedule A (Form 1040);

− 2008 Schedule SE (Form 1040);

− 2008 Form 8812;

− 2008 Form 1040, showing adjusted gross income of $3,634;

− 2009 Form 4562;

− 2009 Form 8812;

− 2009 Schedule C (Form 1040), showing gross sales of $208,713.00 and net profit of 

-$7239.00;

− 2009 Form 1040, showing business income of -$7,239.00.

Prior to presenting this claim the NPFC, the Claimant submitted various claims to the GCCF and 

CSSP. A claim status report routinely provided by the RP to the Coast Guard, indicates that the 

Claimant was compensated an Emergency Advance Payment of $42,000.00, and a Final 

Payment of at least $298,824.71. The Claimant also received a VoO charter payment of at least 

$88,400.00. These losses appear to have compensated to the Claimant as the owner of his 

business. The Claimant also presented a claim for individual losses, which was denied by the 

RP.5

 In total, claim records indicate that the Claimant was compensated at least $429,224.71 by 

the RP or its agents.

On 19 June 2013, the Claimant submitted this claim to the NPFC, seeking $220,000.00 in loss of 

profits or impairment of earning capacity damages. The Claimant indicates that these losses are 

for his “captain claim,” which was denied by the RP.6

 

Furthermore, evidence in this claim submission indicates that the Claimant is a member of the

Deepwater Horizon Economic and Property Damage Class Action Settlement (E&PD

Settlement).7

NPFC Determination

5 RP/Coast Guard Claim Status Report, 20 June 2013. 

6 Optional OSLTF Claim Form, signed on 12 June 2013.

7 The Claimant indicates that he was working in the fishing industry in Marrero, La at the time of the spill, and 

would therefore be a member of the Class unless he had opted out.

 
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 all evidence, information, and 

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

As an initial matter, it appears that the Claimant is a member of the E&PD Settlement Class. 

This claim is therefore considered to have been settled, and the Claimant is ineligible to recover 

funds from the OSLTF. According to OPA, the payment of any claim by the NPFC is subject to 

the NPFC’s ability to obtain, by subrogation, the rights to recover all costs and damages from the 

responsible party. If a claim has been settled, the claimant no longer has rights to the claim and 

therefore cannot subrogate the NPFC to those rights.

Furthermore, a routinely generated claim status report submitted to the NPFC by the RP, 

indicates that the Claimant has accepted a final payment from the GCCF, thereby settling this 

claim. The Claimant has not provided the NPFC with a copy of the signed Release form, but the 

standard GCCF Final Release and Covenant Not To Sue includes the following language: 

[r]eleased Parties means anyone who is or could be responsible or liable in any 

way for the Incident or any damages related thereto, whether a person, company 

or governmental entity, including . . . the federal Oil Spill Liability Trust Fund . . . 

As stated above, any payment from the OSLTF requires the acquisition of rights from the RP. 

Because these rights have been released by the Claimant to the RP/GCCF, the Claimant cannot 

also recover from the Fund. The subrogation of the Claimant’s rights to BP is made clear in the 

release by the following language:

[t]his Release is not intended to prevent any of the Released Parties from 

exercising their respective rights of contribution, subrogation, or indemnity under 

the Oil Pollution Act of 1990 (“OPA”) or any other law. As this Release is fully 

and completely resolving, together with all other Claims, Claimant’s claim under 

OPA, BP is hereby subrogated to any and all rights that Claimant has arising from 

the Incident.

Furthermore, even if the Claimant was not included in the Settlement Class and had not signed a 

Release in exchange for final payment, this claim would also be denied on its merits. In order to 

prove a claim for loss of profits damages, a Claimant must provide evidence sufficient to prove 

(1) that the Claimant sustained an uncompensated loss or reduction in income, and (2) that the 

financial loss was caused by damage to real property or natural resources caused by the 

discharge of oil resulting from the Deepwater Horizon oil spill.

The Claimant has received payments of at least $429,224.71 from BP or other entity acting on 

BP’s behalf. This far exceeds the amount of income after expenses that the Claimant earned in 

any year prior to the oil spill, according to tax documentation provided for the years 2007, 2008 

and 2009. The NPFC can only make payments on losses which are uncompensated. In this 

instance, it appears that any loss the Claimant may have sustained would have been fully 

compensated by payments previously made to the Claimant by the RP.

Furthermore, it appears as though the Claimant participated in the Vessel of Opportunity (VoO) 

program during the oil spill response.8

 According to federal regulations, calculations for 

8 RP/Coast Guard Claim status report, 20 June 2013.

 
compensation potentially available to a claimant “must clearly reflect adjustments for . . . [a]ll 

income resulting from an incident.”9 The Claimant has not provided any record of his earnings 

after 2009, including failing to provide record of his earnings as a VoO contractor. As such, the 

NPFC has no way to determine how much, if any income allegedly lost by the Claimant has been 

compensated by both BP/GCCF payments and by the Claimant’s VoO earnings.

Furthermore, the Claimant has not provided evidence sufficient to prove that his income was 

adversely affected by damage to real property or natural resources caused by the oil spill. The 

Claimant alleged that he was unable to fish as a result of the oil spill. However, the Claimant has 

not provided any evidence to indicate that he indeed had acquired requisite fishing licenses in the 

year 2010, nor has he provided trip tickets or other evidence to indicate that he usually fished in 

areas that were closed as a result of the spill and spill response. The Claimant has therefore 

failed to prove that the oil spill had any effect on his income or regular fishing practices in 2010. 

Based on the foregoing, this claim is denied because the Claimant has failed to provide evidence 

sufficient to prove (1) that he sustained an uncompensated financial loss in the amount of 

$220,000.00, or (2) 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 discharge of oil. Additionally, 

this claim is considered to have been settled by virtue of the Claimant having accepted final 

payment from the GCCF and also belonging to the E&PD Settlement.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 7/19/2013

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

9 33 C.F.R. § 136.235(a).