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 29 September 2011, Mark Schelter, (the Claimant), presented an Optional Oil Spill Liability 

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

$10,000.00 in loss of profits and impairment of earnings capacity that allegedly resulted from the 

Deepwater Horizon oil spill.

At the time of the Deepwater Horizon oil spill, the Claimant was employed by Semco in Lafitte, 

Louisiana.1

 Specifically, the Claimant is a first class fitter working on liftboats that are utilized 

in the oil and gas industry.2

 The Claimant asserts that due to the Deepwater Horizon oil spill, the 

demand for his services decreased and his working hours were reduced from forty hours to 

thirty-two hours a week. 3 As a result of the reduction in working hours, the Claimant asserts he 

suffered reduced income in 2010. 4

The Claimant did not provide an explanation for the calculation of his sum certain of $10,000.00.

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). 

1 Optional OSLTF Claim Form received 29 September 2011 and Letter from Semco dated 11 July 2011.

2 Letter from Semco dated 11 Jul y2011.

3 Optional OSLTF Claim Form received 29 September 2011.

4 Optional OSLTF Claim Form received 29 September 2011.

Claim Number N10036-1453

Claimant Mark Schelter

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $10,000.00

 
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 

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 his claim, the Claimant presented the following documentation to the NPFC:

- Optional OSLTF Claim Form received 29 September 2011;

- GCCF Denial Letter dated 02 August 2011;

- Letter from Semco dated 11 July 2011;

- Semco notice to employees dated 25 October 2010;

- 2009 Form W-2 Wage and Tax Statement from Semco, LLC;

- 2010 Form W-2 Wage and Tax Statement from Semco, LLC;

- Semco Payroll Check Register for period 08 January 2010-08 October 2010, 02 

December 2010-30 December 2010, 06 January 2011-05 August 2011.

Prior to presenting this Claim to the NPFC, the Claimant filed an Emergency Advance Payment 

(EAP) Six Months Claim with the GCCF for loss of profits and impairment of earnings capacity 

on 21 October 2010 in the amount of $20,000.00.5 The Claimant was assigned Claimant ID # 

3255842 and Claim ID # 311750. The EAP Claim was denied on 15 November 2010.6

 

Additionally the Claimant filed an Interim Payment Claim Quarter I 2011 (ICQ12011) with the 

GCCF for loss of profits and impairment of earnings capacity on 04 January 2011 in the amount 

of $15,000.00.7

 The Claimant was assigned Claim ID # 9140309. The ICQ12011 was denied on 

02 August 2011.8

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

Claimant’s GCCF claims regarding loss of profits and impairment of earnings capacity are the 

same as the subject matter of his claim before the NPFC, i.e., that due to the Deepwater Horizon 

oil spill the Claimant’s working hours were reduced and as a result he suffered reduced income. 

The NPFC deems that Claimant’s GCCF claims were properly presented to the RP and properly 

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

N10036-1453 considers and addresses the earnings claimed in the claims presented to the 

responsible party up to $10,000.00, specifically; GCCF Claim #’s 311750 (EAP) and 9140309 

(ICQ12011).

NPFC Determination

The claim is denied. 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.

5 Report from the GCCF dated 02 November 2011.

6 GCCF Denial Letter dated 15 November 2010.

7 Report from the GCCF dated 02 November 2011.

8 GCCF Denial Letter dated 02 August 2011.

 
The Claim is denied because the Claimant has failed to prove that his alleged loss is due to the 

Deepwater Horizon oil spill. The Claimant included in his submission to the NPFC a letter from 

Semco discussing the possible effect of the Deepwater Horizon oil spill and drilling moratorium 

on the demand for Semco’s services.9

 This letter also discussed the possible effects of the oil 

spill and moratorium on the Claimant’s employment with Semco.10 

In an effort to verify the Claimant’s submission, the NPFC contacted Semco to verify the 

authenticity of the submitted letter as well as to determine the effect of the Deepwater Horizon 

oil spill on the Claimant’s employment. The NPFC was informed that it is not possible to 

determine that the reduction in available work at Semco occurred as a result of the Deepwater 

Horizon oil spill as opposed to other factors affecting the oil and gas industry.

11 Further, the 

NPFC was informed that the poor economic outlook was the main cause of any work 

slowdown. 12 

Accordingly, this claim is denied because the Claimant failed to meet his burden to demonstrate 

(1) that he suffered a loss in the amount claimed, and (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 a discharge of oil.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 11/18/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

9 Letter from Semco dated 11 July 2011. 10 Letter from Semco dated 11 July 2011. 11 PHONECON between the NPFC and Semco dated 16 November 2011. 12 PHONECON between the NPFC and Semco dated 16 November 2011.