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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : B13013-0080 

Claimants : Boston Marine Transport/Great American Insurance Company of New 

York/The American Steamship Owners Mutual Protection and 

Indemnity Association 

Type of Claimant : Corporate 

Type of Claim : RP Costs Paid for Claims- Global Risk Solutions, Inc. 

Claim Manager :

Amount Requested : $2,680,611.19 

INCIDENT DETAILS

On December 13, 2012, at 2055, the tank barge BOSTON No. 30 (BOSTON 30) arrived at the 

New York Terminal, Elizabeth, NJ, to load 20,164.93 barrels of No. 6 fuel oil. Loading from the 

facility began at 2310 and was completed on December 14, 2012, at 1115. At 1330, the 

BOSTON 30 departed New York Terminal under tow of the Tug QUENAMES through the 

Arthur Kill and Kill Van Kull along the south side of Shooter’s Island to the Mayship Repair in

Staten Island, NY. The BOSTON 30 arrived at the Mayship Repair at 1525.1

 

At 2000, the Kirby tank barge DBL 25 (DBL 25) arrived alongside the BOSTON 30 to lighter 

the barge. Lightering of the BOSTON 30 began at 2035.2 At 2215, the tankerman onboard the 

DBL 25 noticed oil in the water between the BOSTON 30 and DBL 25. Transfer of oil was 

stopped and sorbent boom was placed around both barges. The National Response Center was 

notified and Miller’s Launch was contacted to respond to the oil spill. Tank soundings onboard 

the BOSTON 30 and DBL 25 didn’t immediately reveal the source of the spill so the transfer of 

oil from the BOSTON 30 to the DBL 25 resumed on December 15, 2012, at 0001. This transfer 

continued until 0120 when it was stopped for a second time as more oil was discovered in the 

water between the two barges. Approximately 30,000 gallons of oil were released from the 

BOSTON 30.3

CG Sector New York provided oversight of the pollution removal activities and conducted the 

investigation. 

THE CLAIMANTS AND THE CLAIM:

The Claimants are Boston Marine Transport as the owner, operator and responsible party (RP) of 

the BOSTON 30; Great American Insurance Company of New York (Great American) as the 

subrogated primary insurer of the BOSTON 30 and the American Steamship Owners Mutual 

Protection and Indemnity Association (The American Club) as the subrogated excess insurer of 

the BOSTON 30 (collectively referred to as the RP/Claimants). On December 11, 2015, the 

RP/Claimants submitted to the Oil Spill Liability Trust Fund (OSLTF or the Fund) a claim based 

on an assertion of entitlement to an act of God and sole fault of a third party defense or, in the 

 

1 See tug logs submitted with claim dated December 9, 2015. See also CG Sector NY VTS clip submitted with 

claim dated December 9, 2015. See page 3 of claim submission dated December 9, 2015. 2

See tug logs submitted with claim dated December 9, 2015. 3 See Clean Waters of New York Invoice 01419 dated December 31, 2012.

(b) (6)
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alternative, entitlement to their applicable limit of liability. On March 23, 2017, the NPFC 

determined that the RP/Claimants were entitled to their limit of liability, but not entitled to either 

of the asserted defenses. Therefore, RP/Claimants will be reimbursed compensable costs 

exceeding their applicable liability limit and incurred as a result of the oil-pollution incident 

under the Oil Pollution Act of 1990 (OPA).4 The applicable liability limit for the RP/Claimants 

is $6,408,000.00 

This claim is for $2,680,611.19 of which the RP/Claimants paid $1,296,924.325

 to Global Risk 

Solutions, Inc. (GRS) to manage and handle third party claims, but also claimed the same 

$1,296,924.32 within their removal costs portion of their overall claim. This amounts to 

duplicative claims for the same amounts.6 The claim for GRS costs should have been presented 

as only $1,296,924.32. 

APPLICABLE LAW: 

Under OPA 90, at 33 U.S.C. § 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. 

Under 33 C.F.R. §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. 

33 U.S.C. § 2713 allows a responsible party to submit a claim directly to the Oil Spill Liability 

Trust Fund. 

33 U.S.C. § 2715 provides that any person who pays compensation, pursuant to OPA, to any 

claimant for removal costs or damages is subrogated to all the claimant’s rights.

Under 33 U.S.C. § 2708, a responsible party who is entitled to a limitation of liability may assert 

a claim under section 2713 of this title only to the extent that the sum of the removal costs and 

damages incurred by the responsible party plus the amounts paid by the responsible party, or by 

the guarantor on behalf of the responsible party, for claims asserted under section 2713 of this 

title exceeds the amount to which the total of the liability under section 2702 of this title and 

removal costs and damages incurred by, or on behalf of, the responsible party is limited under 

section 2704 of this title. 

Damages include damages for injury to natural resources, injury to or economic losses from the 

destruction of real or personal property, loss of subsistence use of natural resources, Government 

loss of revenues, loss of profits or earning capacity as a result of loss or destruction of real or 

personal property or natural resources, and costs of increased public services. 33 U.S.C. 

§2702(b). Damages are further defined in OPA to include the costs of assessing the damages. 

33 U.S.C. §2701(5). 

 

4 See OSLTF Claim Form dated December 9, 2015. Total removal/damage costs paid by claimant was 

$18,626,072.35 (CG costs of $305,618.01 are not included in this figure as they were never billed to the Claimant). 

The vessel’s gross tonnage is 1634. At the time of the incident the statutory limit on liability for this vessel was 

$3,200.00 per gross ton ($5,228,800.00) or $6,408,000.00, whichever is greater. 33 C.F.R. 138.230(a)(3).

5 See Invoice Control sheet at Bates #2608-025.000002 6 Via letter dated February 8, 2017, the RP/Claimants acknowledged the error in its submission.
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Damage claims must be presented within 3 years after the date on which the injury and its 

connection with the discharge in question were reasonably discoverable with the exercise of due 

care. 33 U.S.C. §2712(h)(2). 

Under 33 CFR 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. Further, a claim presented to the Fund should include, as applicable: 

“[T]he reasonable costs incurred by the claimant in assessing the damages claimed. This 

includes the reasonable costs of estimating the damages claimed, but not attorney’s fees 

or other administrative costs associated with preparation of the claim.” 33 CFR 

136.105(e)(8).

DETERMINATION:

OPA provides that a responsible party for a vessel or facility from which oil is discharged or 

which poses the substantial threat of a discharge of oil, may assert a claim for removal costs and 

damages only if the responsible party demonstrates that it is entitled to a defense to liability 

under section 2703 of this title or demonstrates that it is entitled to a limitation on liability under 

section 2704 of this title. 33 U.S.C. § 2708(a)(1) and (2). As a responsible party who has 

demonstrated entitlement to a limit of liability under OPA, the RP/Claimants are also entitled to 

reimbursement of amounts paid for claims for damages to third party claimants.7

 The 

RP/Claimants seek reimbursement of the costs associated with handling claims for damages. 

The RP/Claimants provided no explanation or argument as to why these administrative and 

adjudicative costs would be compensable from the Fund. 

The NPFC separately adjudicated the third party damage claims, determining that a majority of 

the claims for damages to boats were compensable under OPA, but that none of the claims for 

damages to dockside personal property were compensable and that the claim for lost profits of a 

third party was not compensable. 

““Damages” means damages specified in section 2702(b) of this title, and includes the costs of 

assessing these damages.” 33 U.S.C. § 2701(5).8

 Under OPA, the assessment costs are the 

reasonable costs of estimating the damages claimed.9

 

The RP/Claimants hired GRS to “[p]rovide personnel, equipment and materials to administer 

third-party claims as directed by [the] Meredith/GA-ERT and the American Club.”10 Their 

responsibilities were further clarified to include, “[p]rovide personnel, equipment and materials 

to handle third-party damage claims and management as directed by [the] Meredith/GA-ERT 

representative and to [the] satisfaction of vessel representatives and federal, state and local 

 

7 33 U.S.C. § 2708

8 OPA damages include damage to: natural resources, real or personal property, profits and earning capacity, 

subsistence use, government revenues, and public services. 33 U.S.C. §2702(b)(2)(A)-(F). 9 See 33 CFR 136.105(e)(8) 10 See Purchase Order at Bates #2608-025.000003.
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agency representatives.”11 These descriptions do not support reimbursement of the 

RP/Claimants’ claimed costs. 

For the reasons discussed below this claim is denied. 

Administrative costs are not a damage that is payable from the Fund. 

While the costs of damage assessment may be reimbursable for valid, paid claims under OPA, 

there is no authority for reimbursing costs associated with administering a claims process and 

adjudicating claims. The term “damage assessment” does not include administrative costs and is 

not so broad as to include collective costs related to all claims presented to the responsible party 

or costs for administering a claims program. 

The costs for administering a third-party claims program, including travel and living expenses 

for employees to manage the claims process are administrative costs. Administrative costs and 

expenses are not OPA-compensable damages. 33 U.S.C. § 2702(b)(A)-(F). 33 CFR 

136.105(d)(8). The claimed costs are expenses incurred by the responsible parties when they 

retained GRS for establishing a claims program. They are not a damage that is reimbursable from 

the Fund. To the extent that the claimed costs are for administrative and adjudication costs, they 

must be denied. 

Even if GRS employees had performed some form of damage assessment in estimating the 

damages in the reimbursable claims, the NPFC has not been able to determine what costs would 

have been reasonable damage assessment. The GRS project team included 10 employees.12 

Their job titles include Home Office Executive, Project Manager, Office Supervisor, Business 

Interruption Expert, Technical/IT Supervisor, 3 Adjusters/Assessors, and 2 hotline Operators. 

While it is possible that the adjusters/assessors and the business interruption expert could have 

performed damage assessments, the other positions clearly did not. The costs must be the 

“reasonable” costs of assessing the damages claimed. This means the reasonable costs to value 

the damages. The NPFC does not find the costs related to running an entire program to assess 

potential liability for an RP and handle all potential claims and actual claims to be the reasonable 

costs of assessing “claimed” damages. 

As stated in the Damage Claim Report provided in each third party Property Damage Claim File, 

two GRS adjusters personally visited local marinas to inspect claimants’ boats and dockside 

personal property.13 In visiting and inspecting the property, the adjusters were verifying the 

existence or non-existence of damages already assessed by the Accredited Marine Surveyor hired 

by the RP.1415 They were collecting evidence and information to document their files in support 

 

11 See Payment Recommendation Form for Invoice TBB-12-001 at Bates #2608-025.000010. 12 See GRS invoices; and Affidavit of attached to April 27, 2017 email from 13 The affidavit of states that s was another adjuster/assessor who participated in damage 

assessment. His name did appear as a signature having verified the checklist of file documents in damage claim 

files. The documents did not show him as having been on site inspecting property or assessing damage. 

14 Most of the oiled equipment and some non-vessel types of structures etc. were not assessed by Captain . 

However, all of the vessel damages found compensable by the NPFC were assessed by Captain . None of the 

vessels, structures or equipment assessed solely by GRS adjusters was found compensable by the NPFC. Therefore, 

the assessment costs relating to those damages are also not compensable.

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
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of paying or denying claims. The surveyor actually performed the damage assessments to assist 

GRS in valuing the claims. GRS took his assessment into consideration when settling claims. 

GRS also produced composite estimates for repairing vessels, researched fair market values of 

the vessels, and prepared replacement value estimates for dockside property based on a 

composite average. 

The record also indicates that a business interruption expert worked on the lost profits claim of 

Mayship Repair, but his activity is not fully detailed. Even without details, the daily activity 

report descriptions of his duties performed clearly show that he was handling and analyzing 

claims. The affidavit of Office Supervisor for GRS, stated that the business 

interruption expert was responsible for all business interruption claims submitted due to the spill. 

His job was to adjudicate lost profits claims by businesses. Furthermore, the RP/Claimants only 

submitted one single business lost profits claim to the Fund, which was denied by the NPFC. 

The RP/Claimants provided GRS employee daily activity reports that accompanied the invoices 

in the claim. They are very general and provide few details of the work performed. Some 

examples of the work descriptions follow. For the property damage adjusters, they state the 

following as the description of work: “Resume Assessment of Potential Liability exposure in the 

vicinity as a result of the Oil Spill. Report to Command Post located at Marriott – Newark 

Airport;” followed by the daily hours worked.16 Or, for the lost profits claims adjuster, the 

following is an example description: “Business Interruption claims handling and analysis, use of 

TrackVia system, business interruption model review & file organization, review and analysis of 

property damage claims summary and reconciliation of payment status summaries;” followed by 

the daily hours worked.17 

The NPFC requested additional information detailing hours worked such as field notes for the 

two property damage adjusters. In return, via email from on April 27, 2017, the 

NPFC received partial Daily Activity Reports, identified as field notes, for and 

, Adjusters, and an affidavit of , the Office Supervisor, with a 

spreadsheet of activities attached. The RP/Claimants admit that the field notes are incomplete, 

but the NPFC was able glean some information from them. The notes describe work that did not 

appear to be damage assessment. Some examples of the content of notes 

include: meeting with claimants, taking photos, explaining the claims process, running reports, 

printing documents, helping in a boardroom move, verifying claims, discussing procedures for 

documenting and conversing with claimants (stressing not saying the wrong thing, to avoid 

litigation), documenting oil on shacks18, and statements discussing oil removal operations for 

boats and piers.19 Some examples of the content of notes include: creating 

folders for pictures, scanning boat questionnaire, meeting with claimants, attending meeting with 

supervisor, inspecting property, performing TrackVia entries and verification, establishing 

 15 The NPFC offered the RP/Claimants some reimbursement of Captain s costs as assessment costs incurred 

as a component of damages, as defined under OPA. The NPFC only offered his costs relating to damage claims that 

the NPFC determined were reimbursable. 

16 Invoice TBB-12-003, Daily Activity Report, Bates #2608-025.000112. 17 Invoice TBB-12-027, Daily Activity Report, Bates #2608-025.001124 18 NPFC points out that only one claim for an oiled shack was submitted to the NPFC, but none were determined to 

be reimbursable to the RP/Claimants. 

19 Daily Activity Logs for random dates between 1/13/13 and 2/7/13, attached to email from 

 on April 27, 2017. 

(b) (6) (b) (6) (b) (6) (b) (6) (b) (6) (b) (6) (b) (6)(b) (6) (b) (6) (b) (6) (b) (6) (b) (6)
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reserves for property claims, meeting with boat repair companies to get paint repair costs, 

completing boat matrix, meetings regarding claims procedures, inspecting shanties, and 

statements discussing oil removal operations.20 The documents do not show how much time was 

spent on each activity, and most of the notes represent work related to claims administration or 

reports of oil removal operations. Some notes represent work related to potential claims that 

were not submitted to the NPFC for reimbursement. 

Further, though the spreadsheet provides better details of work performed, it does not provide 

time spent on each activity. It also shows that GRS employees performed predominantly claims 

administration activities. The NPFC cannot determine at what point this spreadsheet was created 

or from what source the contents were derived. 

Based on the foregoing discussion and the broad statements that GRS was hired for claims 

management services, the record indicates to the NPFC that the vast majority, if not all, of the 

GRS costs were claims administration costs. They were scoping the RPs’ potential liability, 

dealing with claimants and adjudicating claims.

Even if any of the GRS costs were to qualify as damage assessment within the definition of 

damages, the record is insufficient for the NPFC to determine to what extent the GRS services 

were attributable to damage assessment for properly paid claims versus other non-compensable 

activities, such as claims administration, adjudication, management and settlement, which are not 

compensable. 

OPA does not provide that all assessment costs associated with all claims are payable from the 

Fund. 

Even though it appears that the GRS costs are claims administration costs and are not 

compensable, assessment of damages related to reimbursable damage claims could be 

compensable under OPA, if demonstrated. While GRS adjusters may have assessed damages 

there is no specific information about the specific costs to assess the damages for each claim. 

The record also indicates that the GRS business interruption expert analyzed business 

interruption claims.21 Further, it is not clear which of the claimed GRS costs were related to

claims that were denied or closed without adjudication. Additionally, if the NPFC denies a thirdparty claim, even though the RP paid it, the assessment costs associated with that claim would 

not be compensable from the Fund. The definition of damages under OPA section 2701(5) 

implies a presumption that assessment costs are only included for valid, compensable damage 

claims. Because the definition of damages includes the costs of assessing the damages, if there 

are no compensable damages, by deduction, there are no reasonable costs of assessing them. So, 

when a claimant cannot be paid for damages for one reason or another, the assessment costs 

related to that claim also cannot be paid. If the damages do not exist or if they were the result of 

some other cause, such as a storm, there is nothing to assess under OPA, and thus, nothing to be 

reimbursed. 

 

20 Daily Activity Logs for random dates between 1/21/13 and 2/10/13, attached to email from 

 on April 27, 2017. 21 As the NPFC denied the only business interruption claim submitted to the Fund, the Mayship Repair lost profit 

claim, the issue regarding assessment costs related to the claim is moot. 

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