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CLAIM SUMMARY / DETERMINATION 

Claim Number: M19022-0001 

Claimant: International Ship Repair & Marine Services, Inc. 

Type of Claimant: Corporation 

Type of Claim: Loss of Profits and Earnings 

Claim Manager: 

Amount Requested: $282,301.50 

Action Taken: Denial

EXECUTIVE SUMMARY:: 

The barge B NO 285 arrived at berth in the Port of Tampa, August 18, 2018.1 On May 30, 

2019, USCG Sector St. Petersburg, Florida personnel visited the barge B NO 285 at International 

Ship Repair & Marine Services, Inc.’s (ISR or Claimant) berth 206, to ascertain the type and 

quantity of petroleum products on board. Considering outstanding prior-to-carriage-of-cargo 

deficiencies, questioned structural integrity, and potential for severe weather impacts during the 

Atlantic hurricane season, the USCG Federal On-Scene Coordinator (FOSC) deemed the vessel a 

substantial threat of discharge.2

 On May 31, 2019, the USCG Captain of the Port issued 

Adminstrative Order 003-19 instructing B No. 285 Corp. to remove all oil from the vessel by 

June 14, 2019.3

 The responsible party failed to meet the objectives within the prescribed 

timeline as directed in Administrative order, so the USCG issued a Notice of Federal 

Assumption on June 16, 2019.4 Removal operations commenced June 20, 2019. On June 30, the 

USCG instructed Port of Tampa security to leave the gates to the berth 206 unlocked for access 

due to the environmental response. Removal operations were complete on September 20, 2019.5 

As of November 18, 2019, the vessel still remained at the berth.6 For the reasons discussed 

below, the NPFC denies the claim. 

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS:

Incident

On May 30, 2019, after USCG Sector St. Petersburg visited the barge B NO 285, and 

considering outstanding prior-to-carriage-of-cargo deficiencies, questioned structural integrity, 

and the potential for severe weather impacts during the Atlantic hurricane season, the USCG 

FOSC deemed the vessel a substantial threat of discharge while it sat at berth.

Responsible Party

The owner and operator of the vessel are B No 285 Corp and Bouchard Transportation Co. 

Inc.7 (Bouchard).

 

1 Tampa Bay Pilots Arrival Card dated August 18, 2018.

2 CG POLREP 1.

3 Adminstrative Order 003-19 dated May 31, 2019. 4 CG POLREP 46 and Final.

5 CG POLREP 46 and Final.

6 Email from LTJG to NPFC dated November 18, 2019.

(b) (6), (b) (b) 

(6) 
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Recovery Operations

When the RP failed to meet the objectives and timeline as directed in the Coast Guard 

Administrative Order 003-19, the Sector issued a Notice of Federal Assumption to the RP June 

16, 2019. The Sector hired Clean Harbors Environmental Services and Moran Environmental 

Recovery, LLC under BOA contract on June 18, 2019. Removal operations commenced June 

20, 2019 and were completed September 20, 2019. All of the petroleum products removed from 

the barge were sent for disposal October 15, 2019.

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II. CLAIMANT AND RP:

Via letter dated November 11, 2019, ISR presented its claimed costs to Bouchard with 

invoices attached. Via letter dated November 6, 2019, ISR presented its claimed costs to 

Bouchard’s COFR Guarantor, Water Quality Insurance Syndicate (WQIS). WQIS denied ISR’s 

claim via letter dated November 15, 2019. Claimant was in negotiations with Bouchard to settle 

the claim,9 but has not notified the NPFC of any such settlement.

III. CLAIMANT AND NPFC:

On October 22, 2019, ISR submitted an email to the NPFC attaching its claim form and an 

invoice for $282,301.50 that had been sent to the USCG in Tampa. ISR was seeking payment 

for berthing income of the B NO 285 at its terminal berth 206 from June 30, 2019 to September 

30, 2019 (93 days). They charged the CG for the time the barge was at the berth while the CG 

performed its environmental response (removal operations). CG Sector Tampa referred ISR to 

the NPFC for the costs. The NPFC determined that the claim had not been presented to either 

the RP or its guarantor since the documentation provided only showed that it had been sent to the 

CG in Tampa. By letter attached to an email the NPFC notified the claimant that it had to 

properly present its claim to the RP and its guarantor first.10 The claim was denied by WQIS on 

November 15, 2019, and more than 90 days have passed without payment by the RP to the 

claimant. Therefore, the claim has been properly presented as required under OPA. 

IV. DETERMINATION PROCESS:

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).11 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining its decision. This determination is issued to satisfy that requirement.

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

 7 CG POLREP 1. 

8 CG Administrative Order 003-19 dated May 31, 2019. 9 Letter from Claimant to NPFC dated December 18, 2019; and Email from Claimant to NPFC dated January 13, 

2020.

10 Email from NPFC to Claimant dated October 24, 2019, with letter attached. 11 33 CFR Part 136.
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the facts of the claim.12 The NPFC may rely upon, but is not bound by the findings of fact, 

opinions, or conclusions reached by other entities.13 If there is conflicting evidence in the 

record, the NPFC makes a determination as to what evidence is more credible or deserves greater 

weight, and makes its determination based on the preponderance of the credible evidence.

V. DISCUSSION: 

An RP is liable for all removal costs and damages resulting from either an oil discharge or a 

substantial threat of oil discharge into a navigable water of the United States.14 An RP’s liability 

is strict, joint, and several.15 When enacting OPA, Congress “explicitly recognized that the 

existing federal and states laws provided inadequate cleanup and damage remedies, required 

large taxpayer subsidies for costly cleanup activities and presented substantial burdens to 

victims’ recoveries such as legal defenses, corporate forms, and burdens of proof unfairly 

favoring those responsible for the spills.”16 OPA was intended to cure these deficiencies in the 

law. 

OPA provides a mechanism for compensating parties who have incurred a loss of profits or 

earning capacity where the responsible party has failed to do so. Loss of profits and earning 

capacity are defined as,”[d]amages equal to 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.”17

The NPFC is authorized to pay claims for uncompensated damages that result from the 

discharge or substantial threat of the discharge of oil into navigable waters of the United States.18

The NPFC has promulgated a comprehensive set of regulations governing the presentment, 

filing, processing, settling, and adjudicating such claims.19 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.20 

In April and May of 2018, CG Sector Houston/Galveston inspectors cited the barge with at 

least six deficiencies, including severe wastage, scaling and questionable structural integrity, 

among others.21 On August 9, 2018, CG Sector Houston/Galveston issued the B NO 285 a 

Notice to Proceed to the Port of Tampa, so that the barge could undergo repairs of the 

 12 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” (Citing, Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 

2010)). 13 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them). 14 33 U.S.C. § 2702(a). 15 See, H.R. Rep. No 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780. 16 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). 17 33 U.S.C. § 2702(b)(2)(E). 18 See generally, 33 U.S.C. § 2712(a) (4); 33 U.S.C. § 2713; and 33 CFR Part 136. 19 33 CFR Part 136. 20 33 CFR 136.105. 21 Three CG 835Vs dated April 27, 2018, May 3, 2018 and May 4, 2018. 
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deficiencies identified by the CG.22 The barge arrived at the ISR berth in the Port of Tampa, 

August 18, 2018.23. In March 2019, the vessel remained at the berth without a valid Certificate 

of Inspection or International Load Line Certificate. The Coast Guard Captain of the Port 

(COTP) issued an order to the vessel because of these deficiencies.24 

On May 30, 2019, USCG Sector St. Petersburg Incident Management Division personnel 

visited the barge B NO 285. Seeing the vessel and considering outstanding prior-to-carriage-ofcargo deficiencies, questioned structural integrity, and the potential for severe weather impacts 

during the Atlantic hurricane season, the USCG FOSC deemed the vessel a substantial threat of 

discharge while it sat at berth.25 On May 31, 2019, the USCG Captain of the Port issued 

Adminstrative Order 003-19 instructing B No. 285 Corp. to remove all oil from the vessel by 

June 14, 2019.26 The RP failed to comply with the Administrative Order by the deadline.27 The 

Coast Guard took over the response and hired OSROs to removal all petroleum from the barge. 

The removal operation began June 20, 2019 and ended on September 20, 2019. The barge 

remained at the dock through at least March 25, 2020.28

For a claim for damages, including loss of profits or earning capacity, the claimant must 

demonstrate that its damages were caused by the discharge or substantial discharge of oil into 

navigable waters of the United States.29 ISR seeks lost berthing income that it alleges are owed 

to it because the Coast Guard performed an environmental response to the B NO 285 at its berth 

from June through September 2019. ISR alleges that the losses are due to the oil pollution 

incident. The NPFC disagrees. 

The vessel arrived at the berth in August of 2018, with many deficiencies that required 

repairs before the vessel would be allowed to move within the port and/or leave the port.30 

Bouchard brought the vessel to ISR’s berth for repairs. In May 2019, when the CG determined 

that the vessel posed a substantial threat of discharging oil as it remained at berth with 

outstanding deficiencies and repairs. 

The B NO 285 was held at ISR and remains there in accordance with a Captain of the Port 

Order that prohibits moving the barge within the port or from leaving the port until Bouchard 

complies with the Order.31 

The vessel remains at the berth in March 2020.32 Within the period from August 2018 to the 

present, the CG did perform a several-month removal response to mitigate a substantial threat of 

an oil discharge to a navigable water of the United States. The vessel was not taken to the berth 

for this removal response. The vessel was already at the berth before the pollution incident and it 

 

22 CG Permit to Proceed to Another Port for Repairs, Form CG-948 dated August 9, 2018. 23 Tampa Bay Pilots Arrival Card dated August 18, 2018. 24 COTP Order 19-009 dated March 20, 2019. 25 CG POLREP 1. 26 Administrative Order 003-19 dated May 31, 2019. 27 CG POLREP 46 and Final. 28 Email from LTJG to NPFC dated March 25, 2020. 29 33 CFR Part 136. 30 CG Permit to Proceed to Another Port for Repairs, Form CG-948 dated August 9, 2018. 31 COTP Order 19-009 dated March 20, 2019. The deficiencies referenced in the Order were identified in CG 

835Vs issued by CG inspectors in the Port of Houston in April and May 2018. 

32 Email from LTJG to NPFC dated March 25, 2020.

(b) 

(6) 

(b) 

(6)