1 

CLAIM SUMMARY / DETERMINATION FORM 

Date : 10/29/2009 

Claim Number : N08057-045

Claimant : Energy Shipping S.p.A.

Type of Claimant : Corporate (US) 

Type of Claim : Loss of Profits and Earning Capacity 

Claim Manager : 

Amount Requested : $343,646.27 

I. Background: 

On the morning of July 23, 2008, the tank barge DM 932 sank as a result of a collision with M/T 

TINTOMARA and discharged oil into the Mississippi River, a navigable waterway of the United 

States. 

II. Responsible Party

American Commercial Lines LLC (ACL) owned the barge at the time of the incident and is a 

responsible party (RP) under the Oil Pollution Act (OPA). 

III. Claimant

Energy Shipping S.p.A. (Claimant) chartered the vessel CARGO ENDURANCE to load cargo at 

the IMT facility in Myrtle Grove, Louisiana near Mile Marker 57 on the Mississippi River. 

IV. Claim Description 

Energy Shipping S.p.A. seeks $343,646.27 in alleged lost profits as a direct consequence of the 

July 23, 2008, Tank Barge DM 932 oil-spill incident. On this date, the Claimant was operating 

the M/V CARGO ENDURANCE under a one-trip charter contract with Atlas Trading and 

Shipping, the vessel’s owner. At the time of the incident, the vessel was en route to load cargo in 

Myrtle Grove, Louisiana on the Mississippi River. The Claimant states that its chartered vessel 

was delayed when the U.S. Coast Guard closed 100 miles of the Mississippi River from New 

Orleans to the Gulf of Mexico for the period from July 23 through July 28, 2008. During this 

time frame, the Claimant alleged that the M/V CARGO ENDURANCE was delayed at the 

Southwest Pass Fairway Anchorage for 5.193 days beginning at 08:22 on July 23, 2008, when 

the vessel tendered its Notice of Readiness, through 13:00 on July 28, 2008, when the vessel 

weighed anchor to head upriver. The Claimant seeks to recoup its economic losses as a direct 

result of the delay as additional expenses in the form of demurrage expenses of $311,583.33, 

$19,777.48 in additional fuel expenses, $11,152.86 in additional pilotage, $1,062.60 in additional 

launch services and $70.00 in additional agency fees. Overall, the Claimant asserts that the delay 

caused by the oil-spill incident required the Claimant to pay extra expenses it would not have 

paid had it not been delayed in port. Thus, the additional expenses resulted in reduced profits for 

the charterer. 
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The Claimant submitted the claim to the RP on January 19, 2009, as indicated on the Oil Spill 

Liability Trust Fund Claim Letter and copy of letter sent to the RP, both received by the National 

Pollution Funds Center (NPFC) on July 17, 2009. The RP had not settled with the Claimant as 

of the date of submission of the claim to the NPFC, which was more than the required 90-day 

statutory time period for the RP to settle the claim. On July 21, 2009, the NPFC notified the RP 

that Claimant submitted a claim The RP notified the NPFC that a declaratory judgment action 

had been filed in the United States District Court for the Eastern District of Louisiana against 

Energy Shipping.1 The Claimant did not file a counter claim to this action. On September 2, 

2009, the court stayed the declaration action and administratively closed the case under further 

order of the court as to any remaining defendants. 2

V. APPLICABLE LAW: 

Under OPA 90, at 33 USC § 2702(a), responsible parties are liable for removal costs and 

damages resulting from the discharge of oil into navigable waters and adjoining shorelines, as 

described in Section 2702(b) of OPA 90. 

"Oil" is defined in relevant part, at 33 USC § 2701(23), to mean “oil of any kind or in any form, 

including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged 

spoil”.

The Oil Spill Liability Trust Fund (OSLTF), which is administered by the NPFC, is available, 

pursuant to 33 USC §§ 2712(a)(4) and 2713 and the OSLTF claims adjudication regulations at 

33 CFR Part 136, to pay claims for uncompensated removal costs that are determined to be 

consistent with the National Contingency Plan and uncompensated damages. 

Compensable damage types are natural resource damages, damage to real or personal property, 

loss of subsistence use of natural resources, lost government revenues, lost profits or impairment 

of earning capacity, and increased costs of public services. See 33 U.S.C. 2702(b)(2)(A)-(E).

The provisions of 33 CFR 136.231-136.235 provide the details for claims for loss of profits or 

impairment of earning capacity due the injury, destruction of, or loss of real or personal property 

or natural resources. The claimant need not be the owner of the damaged property or resources 

to recover for lost profits or income. 33 CFR 136.231(a). 

To substantiate a claim for lost profits or impairment of earning capacity, a claimant is required 

to 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 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 

 

1

See Nicoletti Hornig & Sweeney letter to the NPFC dated August 20, 2009.

2

See United States District Court, Eastern District of Louisiana order dated September 2, 2009.
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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. 33 CFR 136.233 (a) – (d)

Under 33 USC §2713(b)(2) and 33 CFR 136.103(d) no claim against the OSLTF may be 

approved or certified for payment during the pendency of an action by the claimant in court to 

recover the same costs that are the subject of the claim. See also, 33 USC §2713(c) and 33 CFR 

136.103(c)(2) [claimant election]. 

Under 33 CFR 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 CFR 136.105(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident.

VI. DETERMINATION OF LOSS: 

The tank barge DM 932 oil-spill incident and response disrupted shipping in and out of the 

Mississippi River. On July 23, 2008, the Captain of the Port New Orleans (COPT) issued a 

Marine Safety Bulletin establishing a Safety Zone on the Lower Mississippi River from the 

Southwest Pass Buoy to Mile Marker 98. The NPFC reviewed the Coast Guard Pollution Reports 

(POLREPS) which clearly state that vessels transiting the Safety Zone were delayed from July 

23, 2008 until well after July 28, 2008. POLREP eight, issued on July 28, 2008, stated that the 

Safety Zone from Mile Marker 97 through mile marker 60 would be maintained for the indefinite 

future to ensure integrity of boom systems and safety of pollution-response workers. The 

Maritime Transportation System Recovery Unit (MTSRU) coordinated vessel movements during 

the oil-spill response based on immediate facility operational impact and potential future 

economic impact.3

As mentioned above, the Claimant seeks $343,646.27 for demurrage, pilotage costs, launch 

services, fuel costs, and agency fees. The claimant was unable to mitigate these losses through 

alternative employment or business because the charter was for a single trip to pick up cargo in 

Myrtle Grove up the Mississippi River and deliver it to its destination. Since the river was 

closed, the vessel was delayed in this single purpose voyage. The claimed costs are discussed 

below.

1. Additional Charter Hire

A. Claim: Claimant states that it incurred 5.193 days of total additional time waiting 

to enter the Mississippi River due to closure of the river by Captain of the Port order. 

 

3

See POLREP 7 paragraph 3.E.4
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Claimant’s charter-agreement rate-of-hire cost is $60,000.00 a day.4The Claimant 

calculated the “demurrage loss,” the liquidated costs due to the delay as: $60,000.00 x 

5.193 = $311,583.33.5 The NPFC recognizes that this was a charter obligation 

requiring the Claimant to pay when the vessel was delayed as the direct result of this 

oil-spill incident.

B. Documentation: Claimant provided a Port Log and Statement of Facts, which 

were signed by the Master of the M/V CARGO ENDURANCE and the General 

Maritime Transportation Services, as port agents. The Notice of Readiness (NOR) 

was issued at 0822 on July 23, 2008. The logs show that the vessel was navigating 

upriver on July 23, 2008 at 1355 hours when, due to the oil spill incident, the Coast 

Guard ordered the pilot to return the vessel to the Southwest Pass Fairway Anchorage. 

The logs further indicate that the charter vessel was idle until July 28, 2008, at 

approximately 1300 when the vessel heaved anchors and departed Southwest Pass 

Fairway Anchorage. At approximately 16:09 the vessel resumed its northbound transit. 

The logs do not document the time on July 28, 2008, when this vessel reached the 

turnaround location on its second transit (i.e. that point in the Mississippi River where 

the vessel had received CG orders on its first transit to turn around). The Claimant also 

provided a Charter Hire Statement from the vessel owner, Atlas Trading and Shipping,

from July 20, 2008 through August 28, 2008. This statement shows that payment was 

made at the $60,000.00 day rate without any credits for the delays.

C. NPFC Findings: The NPFC finds that the vessel time delay started on July 23, 

2008 at 1355 instead of 0822 when the NOR was tendered as claimed, because the 

vessel delay began when the Coast Guard ordered the vessel to turn around and 

proceed to Southwest Pass Fairway Anchorage. The logs do not document the precise 

moment the vessel reached the original “turnaround” point in the Mississippi River on 

its second transit. However, to make the Claimant whole, the NPFC estimated that the 

vessel returned to this same point at approximately 19:09 on July 28, 2008.6 This 

more accurately represents the end of the delay period versus the Claimant’s 

representation that the “demurrage” ended at 1300 when the vessel weighed anchor 

and began its transit without further delay.

Accordingly, the delay from July 23, 2008 at 1355 until July 28, 2008 at about 19:09 

equals 5.2181 days. To calculate the “extra charter hire” due to the oil-spill incident 

delay, the 5.2181 days is multiplied by the $60,000.00 a day charter rate for a total of 

$313,086.00, which is slightly higher than the claimed amount.

The NPFC finds that this “additional charter hire” amount due to the tank barge DM 

932 oil spill incident delay is compensable as a reduction in profit of the voyage with 

 

4

See Claimant Charter Clause 61

5 Actually, it equals $311,580.00. The difference is likely attributable to rounding.

6 The NPFC estimated that on the second transit the vessel reached the point where it had been ordered to turn 

around about 3 hours after changing pilots passing Pilottown, since it was about 3 hours past this point on the first 

transit when it received the CG orders to turn around.
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fixed revenue. Further, the Charter Hire Statement from vessel owner reflects that the 

Claimant did not receive credit for the delays caused by the oil spill incident. 

2. Additional Fuel Costs

A. Claim: Claimant states that it incurred extra marine diesel oil (MDO) fuel costs 

due to the closure of the Mississippi River by the Captain of the Port order as the 

direct result of the DM 932 oil-spill incident. The additional fuel costs represent the 

MDO consumed by the M/V CARGO ENDURANCE from the time it received orders 

to return to the Southwest Pass Fairway Anchorage through the period the vessel 

remained at anchorage until July 30, 2008 at 1300. All bunkers are paid for by the 

Claimant according to the Charter in place with the vessel’s owner.7 Total extra fuel 

consumed due to the delay was 15.2 metric tons at a claimed cost of $19,777.48 as 

detailed below. 

B. Documentation: Claimant provided a Port Log and Statement of Facts that were 

signed by the Master of the M/V CARGO ENDURANCE and the port agent. They 

also provided a Doubleight, Ltd. bunkering invoice dated August 13, 2008, which 

provides bunker costs per metric ton (pmt) and a lump-sum barging cost. The table 

below shows the claimed additional bunker consumption:

SW Pass MDO

Arrive SW Pass

23 Jul 08 0822 92.8

Weigh Anchor

28 Jul 08 1240 77.6

Consumed 15.2

Total Additional Bunkers 15.2

Unit Price PMT $1,282.00

Delivery Charge PMT $19.15

Total Cost PMT $1,301.15

Total Cost of Additional 

Bunkers Consumed 

$19,777.48

C. NPFC Findings: The NPFC finds the fuel consumption number to be a reasonable 

representation of the fuel spent during the M/V CARGO ENDURANCE delay of its 

upriver trip as the result of this oil-spill incident, and is supported by the Port Log / 

Statement of Facts. However, the NPFC questions the barging cost, which is a lumpsum cost. In this particular case, the Claimant would have had to pay the barging cost 

no matter how much bunkers it required. Because this cost has not been linked to the 

 

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See Claimant Charter clause 51
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delay caused by this incident, this barging cost is denied. The NPFC recalculation of 

the bunker cost is as follows:

Total Additional Bunkers 

Consumed Due to the 

Delay

15.2

Unit Price PMT $1,282.00

Delivery Charge PMT N/A

Total Cost PMT $1,282.00

Total Cost of Additional 

Bunkers Consumed 

$19,486.40

The NPFC finds the total extra bunkers consumed due to the delay were 15.2 metric 

tons of MDO. The NPFC finds the total compensable additional bunker costs to be 

$19,486.40. This increased consumption was the result of the DM 932 oil-spill 

incident and the consequent river closure by the Coast Guard Captain of the Port.

3. Additional Pilotage Costs

A. Claim: Claimant states that there were additional Associated Branch Pilots’ and 

Crescent River Port Pilots’ Association charges because of the delay to the vessel as the 

result of the DM 932 oil-spill incident and the river closure.

Total extra pilotage costs claimed due to the vessel delay are $11,152.86. They include 

Associated Branch Pilots inbound on July 23 for $2,021.64 and outbound for 

$2,025.30; and Crescent River Pilots inbound on July 23 for $3,552.96 and outbound 

for $3,552.96.

 

B. Documentation: Claimant provided invoices from the Associated Branch Pilots 

and the Crescent River Port Pilots’ Association showing that it had to pay for the 

upriver transit twice and the extra downriver transit when it was ordered to return to the 

Southwest Pass Fairway Anchorage. These invoices provide total costs incurred for the 

vessel being piloted downriver after the vessel was ordered to return to the Southwest 

Pass Fairway Anchorage and back upriver for the second transit necessitated by the 

river closure. The Claimant requested only the amounts for the first transit up and 

downriver on July 23, 2008. 

C. NPFC Findings: Only the costs incurred because of the oil spill incident are 

compensable. The NPFC finds that the charges paid by the Claimant for the delay 

resulting from the tank barge DM 932 oil-spill incident constitute a reduction of 

Claimant’s profit for the charter of this vessel. The NPFC finds all pilotage costs 

incurred for the first roundtrip transit on July 23, 2008, necessitated by the river closure 

to be compensable in the amount claimed, because the first transit was interrupted by 

the tank barge DM 932 oil-spill incident, necessitating a second transit. The Claimant 
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will be made whole by reimbursing it for the unnecessary partial transit. The Claimant 

normally would only have to pay for one complete roundtrip transit, not a partial 

roundtrip transit plus a complete roundtrip transit. Therefore, since the Claimant 

should only be responsible for one complete roundtrip transit, the Fund will reimburse 

it for the $11,152.86 extra expense of the partial river transit as the result of the delay 

due to this incident.

4. Additional Launch Services Expenses

A. Claim: Claimant states that it incurred $1,062.60 in launch service expenses for 

the river pilots due to the closure of the river by Captain of the Port order. This 

amount represents the expenses paid to get the pilots to and from the ship during the 

partial transit of the ship on July 23, when the ship was forced to return to the 

Southwest Pass Fairway Anchorage.

B. Documentation: Claimant provided invoices and launch service tickets from 

Delta Launch Services, LLC demonstrating that the services were for transporting the 

pilots to the vessel over one partial roundtrip transit on July 23 and the subsequent 

transit on July 28. The Claimant requested only the amounts for transporting pilots to 

the vessel for the first transit up and downriver on July 23, 2008, which are $531.30 

for the upriver transit and $531.30 for the downriver transit. 

C. NPFC Findings: Only the costs incurred because of the spill are compensable. 

The NPFC finds that the charges paid by the Claimant for the partial transit are extra 

expenses caused by the spill, which reduced the Claimant’s profit. Because this 

expense is contingent on the pilotage, and the pilotage for the first partial transit was 

found to be compensable, the related launch services are also compensable. The 

NPFC finds all launch services costs incurred for the first roundtrip transit on July 23, 

2008, necessitated by the river closure due to this incident are compensable in the 

amount claimed. Accordingly, the NPFC will reimburse the Claimant for the 

$1,062.60 which amounted to the extra expense and thus lost profits resulting from the 

partial river transit incurred by the Claimant on July 23, 2008, as the result of this 

incident.

5. Additional New Orleans Board of Trade Expenses

A. Claim: Claimant states that it spent an additional $70.00 in fees paid to the New 

Orleans Board of Trade. According to the Claimant, the New Orleans Board of Trade 

keeps records of vessel ETAs, actual arrivals, schedules, load/discharge ports etc. and 

works with local agents to provide this information. The Claimant was forced to pay 

this fee twice since it had to travel up the river to New Orleans twice.

B. Documentation: The Claimant provided a copy of the two New Orleans Board of 

Trade invoices for the two upriver transits. These invoices correspond to the two dates 

of the vessel’s upriver transits.
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C. NPFC Findings: Only the costs incurred because of the spill are compensable. 

The NPFC finds that the Board of Trade charges paid by the Claimant are extra 

expenses incurred for the partial transit that resulted from the oil-spill incident. The 

NPFC finds the Claimant should be reimbursed $70 for the additional New Orleans 

Board of Trade expense. 

Conclusion: 

The NPFC finds that the Claimant suffered economic losses as additional expenses directly 

caused by the tank barge DM 932 oil-spill incident. The expenses in this claim represent 

increased expenses for this type of voyage with fixed revenues. The additional expenses 

incurred by Claimant’s vessel, the M/V CARGO ENDURANCE, without a commensurate 

increase in revenue translate into a net loss of profits to Claimant. Therefore, additional charter 

hire expenses of $313,086.00, $19,486.40 in additional fuel expenses, $11,152.86 in additional 

pilotage, $1,062.60 in additional launch services and $70.00 in additional agency fees are 

compensable to Claimant under OPA as lost profits. 

AMOUNT: $344,857.86

RECOMMENDATION: 

The claimant should be paid it proven loss of profit in the amount of $344,857.86, which it lost 

in the form of additional expenses that reduced its profits on the voyage. 

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: