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 CLAIM SUMMARY / DETERMINATION 

Claim Number: N10036-1837 

Claimant: Martin Operating Partnership LP and Martin Marine Inc. 

Type of Claimant: Private (US)

Type of Claim: Real or Personal Property 

Claim Manager: 

Amount Requested: $2,135,614.24 

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. 

On 8 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 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 2 May 2012, 

and the CSSP began processing claims on 4 June, 2012. 

CLAIM AND CLAIMANT: 

On 10 May 2012, Mr. , on behalf of Marton Operating Partnership LP and Martin 

Marine, Inc. (collectively, “the Claimant”) submitted a claim to the Oil Spill Liability Trust Fund 

(OSLTF) seeking $1,353,678.91 in real property damages, $733,929.18 in loss of profits and 

earning capacity, $48,006.15 in damage assessment costs. The Claimant alleged to have 

incurred damages to the Martin Orion and Poseidon as a result of the Deepwater Horizon oil 

spill.1

Following the Deepwater Horizon oil spill, BP contracted with certain companies to provide 

services to assist in the spill response. Cal Dive Offshore Contractors Inc. (Cal Dive) was one of 

these primary contractors, hired under the terms of an 8 May 2010 Master Service Contract. 

Pursuant to that contract, Cal Dive hired the Claimant to provide a tug and barge unit “for BP 

spill cleanup.”2 

Email correspondence on 2 June 2010 indicates that the Claimant contacted Cal Dive to offer the 

tug/barge unit for service in the spill response. In the email, a representative of the Claimant 

stated that they “[could] offer his Tug/Barge unit the “Orion/Poseidon.”” The Claimant specified 

 

1 Claim Submission letter dated May 10, 2012.

2 RE: Proposal for offshore unit Tug Orion, Barge Poseidon, 3 June 2010.
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that “[t]he Barge has Screw Pumps which would make her ideal to pump skimmed oil/slops.” 

The Claimant offered to charter the unit to Cal Dive “at USD $22,000/Day ++.”3 

The offer was accepted by Cal Dive, as evidenced by a contract between Cal Dive and the 

Claimant, also dated 3 June 2010. The contract indicates that the Claimant would be 

compensated $22,000.00 per day, plus “fuel, lube oil and other applicable charges.”4 

Furthermore, as stipulated between the parties, 

upon completion of this contract, the barge must be cleaned and made gas free 

and suitable for loading of No. 6 Fuel Oil, at Charterer’s expense. The time spent 

to clean the barge shall be billable at the current date rate(s). Acceptance of the 

barge cleaning shall be at discretion of the owner.5 

The tug/barge unit was chartered by Cal Dive from approximately 5 June 2010 until it was 

demobilized and redelivered to the Claimant on approximately 22 December 2010. However, 

the unit was not cleaned and repaired to the Claimant’s satisfaction and the Claimant was unable 

to attain a gas free certificate to allow the barge to carry future oil cargoes. The Claimant 

incurred costs to return the unit to the condition specified in the contract, which included 

replacement of certain parts and equipment. In sum, the Claimant alleged to have sustained costs 

to clean and repair the unit, totaling $1,353,678.91. 

Furthermore, during the period between the demobilization of the unit and it being cleaned and 

repaired to the Claimant’s standards, the Claimant was unable to charter the unit. As such, the 

Claimant seeks to recover approximately $22,000.00 per day that the unit was being cleaned and 

repaired, from about 16 January 2011 through 09 February 2011, totaling $733,929.18. 

At the time of original submission, the Claimant had not directly presented this claim to the 

Responsible Party or an agent acting on its behalf. Instead, the Claimant sought reimbursement 

for these costs from Cal Dive, who the Claimant alleged was obligated to pay the Claimant under 

the terms of the contract between the parties. The Claimant was also present at mediations 

between Cal Dive and BP concerning costs that are subject of this claim. However, the parties 

failed to reach a settlement agreement. According to the Claimant, Cal Dive was continuing to 

pursue a claim against BP for various costs and damages, including those that are subject of this 

claim.

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. A responsible party’s liability will include “removal 

costs incurred by any person for acts taken by the person which are consistent with the National 

Contingency Plan”. 33 USC § 2702(b)(1)(B). 

 

3 Email from OFFSHORE to

4 RE: Proposal for offshore unit Tug Orion, Barge Poseidon, 3 June 2010.

5 RE: Proposal for offshore unit Tug Orion, Barge Poseidon, 3 June 2010.
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"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. Removal costs are 

defined as “the costs of removal that are incurred after a discharge of oil has occurred or, in any 

case in which there is a substantial threat of a discharge of oil, the costs to prevent, minimize, or 

mitigate oil pollution from an incident”.

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]. 

33 U.S.C. §2713(d) provides that “If a claim is presented in accordance with this section, 

including a claim for interim, short-term damages representing less than the full amount of 

damages to which the claimant ultimately may be entitled, and full and adequate compensation is 

unavailable, a claim for the uncompensated damages and removal costs may be presented to the 

Fund.” 

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. In addition, under 33 CFR 

136, the claimant bears the burden to prove the removal actions were reasonable in response to 

the scope of the oil spill incident, and the NPFC has the authority and responsibility to perform a 

reasonableness determination. Specifically, under 33 CFR 136.203, “a claimant must establish -

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects of the 

incident;

(b) That the removal costs were incurred as a result of these actions;

(c) That the actions taken were determined by the FOSC to be consistent with the National 

Contingency Plan or were directed by the FOSC.”

Under 33 CFR 136.205 “the amount of compensation allowable is the total of uncompensated 

reasonable removal costs of actions taken that were determined by the FOSC to be consistent 

with the National Contingency Plan or were directed by the FOSC. Except in exceptional 

circumstances, removal activities for which costs are being claimed must have been coordinated 

with the FOSC.” [Emphasis added]. 
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DETERMINATION OF LOSS

Claimant’s Submission to the OSLTF

On 24 February 2012, the Claimant presented this claim to the Fund, asserting that failed 

mediation attempts between Cal Dive and BP, at which the Claimant’s representatives were 

present, constitute presentment of the claim to the responsible party under the law and 

regulations. 

Under 33 U.S.C. § 2713 (a) and 33 C.F.R. § 136.103(a), all claims for removal costs, or damages 

must be presented first to the responsible party (RP). Under 33 U.S.C. § 2713 (c) and 33 C.F.R. 

§ 136.103 (c)(2), if the claim is not settled within 90 days of presentment to the RP then the 

claimant may file a claim in court and/or submit their claim to the OSLTF. 

The Claimant has not provided the NPFC with a copy of the contract between Cal Dive and BP, 

but asserts that the contract required mediation of all disputes. Cal Dive and BP went to 

mediation on 13 January 2012, with the Claimant present as a subcontractor to Cal Dive. 

However, Cal Dive refused to accept the settlement offer resulting from the negotiation, due to 

its alleged failure to provide adequate compensation to the Claimant.6

 In response to an NPFC 

request that the Claimant provide proof of presentment to the RP, the Claimant stated that they 

“had no contract for services with BP” and “due to many previous discussions and the 

unsuccessful mediation process with BP, [the Claimant] feels that it has exhausted its options 

with BP and that submission to the GCCF would be fruitless.”7 

Evidence presented in this claim submission indicates that the Claimant may be a member of the 

economic damages class of the Deepwater Horizon oil spill economic and property damages 

class action settlement (E&PD Settlement). The NPFC sent the Claimant a letter, dated 11 July 

2012, regarding the Claimant’s possible status as a member of the settlement class. In response 

to the letter, the Claimant stated “we feel that our claim may not be covered ... as such we are 

researching this further and preparing to opt out of the program given our current understanding 

as well as contractual issues.”8

NPFC Determination

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 or destruction or loss of real or personal property or 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. 

The NPFC considered all the documentation submitted by the Claimant. 

 

6 Strasburger Attorneys at Law letter to dated 21 February 2012. 

7 Strasburger Attrorneys at Law letter for NPFC regarding presentment dated 11 May 2012. 

8 Email from to the NPFC dated 20 July 2012. 
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a. Presentment to the Responsible Party

The Claimant attended mediation between the RP and Cal Dive, on 13 January 2012, regarding 

damages that are the subject of this claim.9 However, the Claimant did not present this claim to 

the RP/GCCF prior to its presentment to the NPFC, as is required by 33 U.S.C. § 2713 and 33 

C.F.R. § 136.103. 

The Claimant states that “the claim was not presented to BP as a responsible party or the GCCF 

because [the Claimant’s] contract was with Cal Dive, however, Cal Dive in turn presented the 

claim to BP.”10 However, mediation or any other negotiated settlement process pursuant to the 

contract between Cal Dive and BP is not the valid presentment of the Claimant’s claim under 

OPA and associated federal regulations. Further, the Claimant has not provided evidence that 

might support its contention that submitting a claim to the GCCF would be “fruitless.” Even had 

the Claimant presented such evidence, the Claimant’s assumption that the RP would deny 

payment on the claim, does not obviate claim presentment requirements under OPA. 

OPA requires that a claim be first presented to the RP or the RP’s agent, here the GCCF. 

Because the Claimant has failed to meet claim presentment requirements, this claim has been 

improperly presented to the NPFC under 33 U.S.C. § 2713 and 33 C.F.R. § 136.103, and is 

therefore denied.

b. Loss of Profits and Impairment of Earning Capacity Damages $1,353,678.91

In accordance with 33 C.F.R. § 136.231-35, certain proof requirements must be met in order to 

prove a claim for loss of profits or impairment of earning capacity damages under OPA. In 

addition to proving that the alleged financial loss was due to an oil spill, the claimant must prove 

that they have sustained a net loss of profits during the period in which they are alleging to have 

been affected by an oil spill.

In order to determine the extent of a claimant’s financial loss, OPA’s implementing regulations 

require that certain mitigating factors be accounted for. 

33 C.F.R. § 136.235 clearly states that the amount of compensation potentially available to a 

claimant is “limited to the actual net reduction or loss of earnings or profits suffered,” taking into 

account various limiting factors, specifically including, “all income resulting from an incident.”11 

Therefore, in order to prove that the Claimant has sustained a net financial loss, the Claimant’s 

lost income must exceed income earned as a result of the incident. A copy of the contract 

proposal between the Claimant and Cal Dive indicates that the Claimant was to be compensated 

“$22,000.00 per day plus fuel, lube oil and other applicable charges.”12 If the Claimant earned 

this daily rate from about 5 June 2010 through 22 December 2010, the Claimant would have 

earned approximately $4,400,000.00 for the use of this particular tug/barge unit. However, the 

Claimant failed to provide evidence to document its income earned as a result of the oil spill. The 

 

9 Strasburger Attorneys at Law letter to dated 21 February 2012.

10 Strasburger Attrorneys at Law letter for NPFC regarding presentment dated 11 May 2012. 11 33 C.F.R. § 136.235. 12 Proposal for offshore unit Tab Orion, Barge Poseidon, 3 June 2010.
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Claimant has failed to present sufficient evidence to prove that they sustained an actual financial 

loss under OPA. Contrary to Claimant’s assertions that they lost profits or earnings as a result of 

the Deepwater Horizon oil spill, the Claimant actually to earned income as a result of the spill by 

employing their vessels in oil spill response operations. 

The Claimant has alleged to have sustained lost profits damages in the amount of $1,353,678.91, 

which does not appear to exceed the amount earned as a result of the spill. Therefore, the 

Claimant has not demonstrated that they experienced a net loss due to alleged unpaid charter fees 

for the period from 16 January 2011 through 9 February 2011. As such, the Claimant is not 

entitled to recover loss of profits or impairment of earning capacity damages in any amount.

c. Destruction of Real or Personal Property Damages $733,929.18

The OSLTF is available to pay uncompensated removal costs or damages, including certain real 

or personal property damages, incurred as a result of the oil spill. In this instance, however, the 

alleged property damages to the Claimant’s vessel are not “uncompensated,” as they were 

incurred as a result of the Claimant voluntarily conducting for profit oil spill response operations 

at an agreed upon contractual rate. Accordingly, while the Claimant may be dissatisfied at the 

amount of compensation they received for the work performed, the damages are not considered 

uncompensated and are not OPA compensable. 

Claimant voluntarily engaged in oil spill response operations, thereby subjecting his vessels to 

the harm for which they now seeks compensation. To evidence that his vessel’s under coatings 

were damaged by Deepwater Horizon oil, the Claimant has submitted information relating to the 

dry-docking and repair of the undercoatings of Coast Guard vessels engaged in oil spill 

operations. The Claimant’s evidence is misplaced, however, because of the difference in the 

nature of the response operations in which the two types of vessels were engaged. Coast Guard 

cutters respond to oil spills as part of a Congressionally mandated pollution response mission. 

While certain costs are associated with the “burn rate” charged for that Coast Guard asset, RP’s 

remain liable for real or personal property damages resulting from the oil spill as opposed to 

other factors incorporated in the “burn rate” such as a mechanical malfunction unrelated to 

physical oiling. 

To the contrary, the Claimant’s vessels were voluntarily operating in oiled waters pursuant to a 

profit making venture under the defined terms of a contract. Oil Spill Response Organizations 

and other commercial tradesmen who engage in oil spill response operations are expected to 

negotiate favorable contractual terms to cover the costs associated with responding in the 

environment in which they operate. 

Further, pursuant to the contractual agreement between Cal Dive and the Claimant dated 03 June 

2010, it appears that the Claimant (owner) indemnified all parties from “any property damage 

suffered.”13 Here, the Claimant knew that they would be operating in oiled waters from the 

Deepwater Horizon incident and willingly assumed the risk to take the vessel from its off-hire 

status in Groves, Texas to operate for Cal Dive in Mobile, Alabama on 08 June 2010.

14 For the 

 13 Charter Contract dated 02 June 2010 at section 11. 14 Enclosure 1 at pages 1-4. 
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foregoing reasons, this claim for real or personal damages in the amount of $733,929.18 is 

likewise denied.

d. Claim Assessment Costs $48,006.15 

Under 33 U.S.C. § 2701(5) “damages” means damages specified in section 2702 (b) of this title, 

and includes damage assessment costs. Section 2702(b) lists damage categories provided for by 

OPA, including, loss of profits or impairment of earning capacity, and real or personal property. 

If a claimant is unable to prove that they have indeed sustained OPA-compensable damages 

within one of the categories listed in the statute, then any assessment costs associated with these 

unproven damages, would likewise be denied compensation under OPA.

In this instance, because the Claimant’s alleged damages are not OPA-compensable it follows 

that the assessment of non-compensable damages are likewise not compensable. 

e. Evidence suggests that costs that are the subject of this claim are being pursued through 

judicial action.

In accordance with OPA’s implementing regulations, the NPFC may not make payment on a 

claim “during the pendency of an action by the person in court to recover costs which are the 

subject of the claim.”15 The Claimant has stated that its parent company, Martin Midstream 

Partners, is currently attempting to recover these costs in an action against BP. Publicly 

available evidence indicates that Martin Midstream Partners is likely pursuing these same costs 

through litigation against BP in the U.S. District Court for the Eastern District of Louisiana.16 

As such, the NPFC would be precluded from making any payment on this claim. 

According to 33 U.S.C. § 2712 (f), 

[p]ayment of any claim or obligation by the Fund under this Act shall be subject 

to the United States Government acquiring by subrogation all rights of the 

claimant or State to recover from the responsible party.

In addition to pursuing these damages in court, the Claimant has indicated that Cal Dive is likely 

pursuing the same costs in a claim against BP. Specifically, the Claimant stated that they believe 

that “Cal Dive’s claim [to BP] includes not only Martin Marine’s invoices plus mark-up, but also 

other claims. . .”17 The NPFC does not have any information to determine whether or not these 

claims, as presented by Cal Dive, have been compensated either in court or through the claims 

process. According to 33 C.F.R. § 136.1, the OLSTF is only available to pay claims for “certain 

uncompensated removal costs or uncompensated damages [emphasis added].” Because the 

NPFC cannot determine whether or not these damages have been compensated by the RP, 

possibly through a claim by Cal Dive, the NPFC cannot make a payment to the Claimant.

 15 33 C.F.R. § 136.103(d). 16 See, e.g., Cal Dive International Inc. v. BP Exploration and Production Inc, Case No. 2:2013cv01254, E.D. La, 

filed on 18 April 2013; Action under Oil Pollution Act of 1990.

17 Response to NPFC request for additional information, 15 April 2013.
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Finally, it is important to note that the NPFC has made several requests for update from the 

Claimant’s Counsel with respect to the Claimant’s litigation status and as of the date of this 

writing, the NPFC has received no response from the Claimant. On May 11, 2017, the NPFC 

again formally requested an update on the Claimant’s litigation status. In the letter, the NPFC 

stated that on Wednesday, September 28, 2016, Ms. , NPFC Claims Manager 

who had been working the subject claim, emailed Claimant Counsel requesting the status of the 

Martin Midstream Partners, LP (Martin Marine) v. BP Exploration and Production, Inc. et al 

case, as well as an update regarding the Martin Operating Partnership, LP vs. Cal Dive Offshore 

Contractors, Inc. in Texas. The letter further stated that on Friday, October 21, 2016, Claimant 

Counsel responded to Ms. stating that they were not ignoring Ms. 

and that they would have a response to the NPFC by the following week.18

Upon receiving no further communications from Claimant Counsel, Mr. , Ms. 

 reached out again on Friday, February 10, 2017, requesting another status update on 

the litigation cases for which Mr. represents. The NPFC’s letter further stated that as a 

refresher, on September 29, 2015, Mr. issed a letter to Mr. Chief of the Claims 

Adjudication, advising the litigation cases were consolidated to MDL No. 2179. 

The NPFC’s letter of May 11, 2017 informed Claimant Counsel that since the NPFC has not 

received a reply from him, the NPFC has followed the MDL No. 2179 and advised Claimant 

Counsel that Judge issued Pretrial Order No. 63 on or about February 22, 2017 which 

states in relevant part ...”[F]or purposes of this Pretrial Order No. 63, the Court makes clear that 

the B3 Pleading Bundle includes contract claims related to response efforts, including Vessels of 

Opportunity (“VoO”) Program contract claims in which Plaintiffs seek compensation that might 

be owed by BP or another defendant under a VoO or other similar charter agreement or other 

contract, relating to the Plaintiff’s vessel charter and/or other clean-up efforts.” This Pretrial 

Order further states that any Plaintiff who has timely filed a claim in the B3 pleading bundle and 

who have not released their claim(s) to date, those Plaintiffs are further ordered to complete a 

Sworn Statement and must be filed into the record of the plaintiff’s individual lawsuit no later 

than April 12, 2017. 

The NPFC then requested that Claimant Counsel provide a copy of any and all pleadings along 

with a detailed status update on all of the litigation filed no later than Thursday, May 25, 2017. 

The NPFC furthered advised Claimant Counsel that if the NPFC does not receive a reply by the 

May 25, 2017 deadline, the NPFC will continue adjudicating the referenced claims using only 

the documentation previously submitted by the Claimant, Martin Marine. 

On June 12, 2017, and in one last attempt to determine the Claimant’s litigation status, the NPFC 

contacted Mr. , of Kirkland & Ellis LLP, who is identified in Judge 

Pretrail Order No. 63 associated with MDL No. 2179 dated February 22, 2017,19 as Counsel for 

BP. The NPFC received an email response from Mr. on behalf of Mr. 

dated June 13, 2017, stating that Martin Midstream Partners, LP and any of its affiliated 

 

18 Email response from to NPFC request for litigation update status 21 Oct 2016.

19 See, Pretrial order No. 63 dated February 22, 2017, in the United States District court, Eastern District of 

Louisiana.
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companies settled and voluntarily dismissed with prejudice its claims against BP via a Notice of 

Voluntary Dismissal(s) With Prejudice dated April13, 2016.20

Additionally, Mr. also provided the NPFC with a copy of a Notice of Voluntary 

Dismissal(s) With Prejudice for Cal Dive International, Inc. dated May 6, 2016.21 The 

significance of this information pertains to the Claimant’s evidence that demonstrates it was in a 

contractual relationship with Cal Dive and the Claimant has indicated that Cal Dive is likely 

pursuing the same costs in a claim against BP. Specifically, the Claimant stated that they believe 

that “Cal Dive’s claim [to BP] includes not only Martin Marine’s invoices plus mark-up, but also 

other claims. . .”22

Based on the foregoing, this claim is denied because the Claimant has failed to meet their burden 

to prove (1) that the Claimant sustained a net loss of profits (2) that that the Claimant’s alleged 

losses are due to injury or destruction or loss of real or personal property or a natural resource as 

a result of a discharge or a substantial threat of a discharge of oil (i.e., the Deepwater Horizon oil 

spill), and (3) that the U.S. Government could obtain, by subrogation, rights to recover these 

damages against the Responsible Party. 

 

Claim Supervisor: 

Date of Supervisor’s review: 06/14/17 

Supervisor Action: Denial on reconsideration approved

 

20 See, Notice of Voluntary Dissmissal(s) With Prejudice dated April 13, 2016 in the United States District Court 

Eastern District of Louisiana. 21 See, Notice of Voluntary Dissmissal(s) With Prejudice dated May 6, 2016 in the United States District Court 

Eastern District of Louisiana.

22 Response to NPFC request for additional information, 15 April 2013.