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CLAIM SUMMARY / DETERMINATION FORM

Date : 6/24/2008 

Claim Number : P05005-028 (Reconsideration) 

Claimant : Creative Waste Management, Inc.

Type of Claimant : Corporate (US)

Type of Claim : Loss of Profits and Earning Capacity 

Claim Manager : 

Amount Requested : $202,298.53 

I. Background: 

Oil Spill Incident: 

On November 26, 2004, between 2100 and 2115 hours, the T/V ATHOS I struck a submerged 

anchor within Federal Anchorage #9 on the Delaware River (also known as the “Mantua Creek 

Anchorage”). The incident occurred when two tugboats began maneuvering the ATHOS I 

(pushing from the vessel’s starboard side) toward the dock at the CITGO Asphalt Refinery 

Company terminal in Paulsboro, NJ. The anchor punctured the vessel’s hull, causing an 

estimated 263,371 gallons of “Bachaquero crude oil” to discharge into the Delaware River, a 

navigable waterway of the United States. 

As a result of the ATHOS I incident, the flood tide carried the oil up the Delaware River, past the 

Philadelphia Marine Center (PMC), to the Tacony-Palmyra Bridge. The Coast Guard Captain of 

the Port, Captain Sarubbi, established a Safety Zone that extended upriver to the TaconyPalmyra Bridge and downriver below the Athos spill site to Commodore Barry Bridge (See 

Marine Safety Information Bulletin (MSIB) #46-04 dated November 27, 2004). On November 

30, 2004, the Coast Guard enlarged the Safety Zone to include the area from the Tacony-Palmyra 

Bridge downriver to the intersection of the Marcus Hook Range and the Bellevue Range (Exhibit 

2, MSIB #47-04) 

Claimant: 

Creative Waste Management, Inc. (CWM) is a dredging contractor whose business includes the 

dredging of the bottom of marinas for sediments due to shoaling from the Delaware River and its 

tributaries; and dredging sediments from sediment lagoons using in various mining operations. 

(See letter dated July 20, 2007). CWM was under contract with Philadelphia 

Marine Center (PMC) to complete a dredging project that started on November 2, 2004. 

In addition to this loss of profits claim, CWM also submitted a removal cost claim for cleaning 

the dredge and other equipment used in dredging, and a property damage claim for oil-damaged 

dredging equipment. The removal cost claim (P05005-027) was paid in the amount of $9,396.01 

and the property damage claim (P05005-028) was paid in the amount of $19,369.98 

Claim Description: 

The claimant alleges that, as a result of the ATHOS I spill, the tide carried the oil up the 

Delaware River past the Philadelphia Marine Center, which resulted in heavy oil in the marina 

area. CWM is seeking reimbursement for lost profits for operations downtime, extra costs of 

(b) (6) (b) (6)
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hiring a second shift crew, extra costs for holiday shifts, loss of dredging efficiency, loss of 

subsequent business, claim preparation fees, administration fees, and interest - all allegedly 

directly resulting from the oil spill incident. These claimed losses were detailed in the NPFC’s 

initial Claim Summary/Determination dated March 26, 2008 attached to the NPFC’s letter dated 

April 2, 2008. The NPFC denied the majority of the claimed damages because the claimant 

failed to meet its burden of proving them, but offered to pay $21,760.00 for the claimed dredging 

inefficiencies. On June 2, 2008, the NPFC received the claimant’s request for reconsideration 

dated May 29, 2008. 

II. APPLICABLE LAW:

In general, claims for removal costs or damages must first be presented to the responsible party. 

33 USC §2713(a). If the responsible party denies the claim or does not settle the claim within 90 

days, the claimant may commence an action in court against the responsible party or present the 

claim to the Oil Spill Liability Trust Fund (Fund). 33 USC §2713(c). 

Claims may be presented first to the Fund if the President or his delegated representative has 

advertised or notified claimants that the Fund is accepting claims resulting from an oil discharge. 

33 USC §2713(b)(1)(A). 

The uses of the OSLTF are described at 33 USC §2712(a). It provides in relevant part that: 

“The Fund shall be available to the President for – 

(4) the payment of claims in accordance with section 2713 of this title for uncompensated 

removal costs determined by the President to be consistent with the National Contingency 

Plan or uncompensated damages;”

“The Fund shall not be available to pay any claim for removal costs or damages to a particular 

claimant, to the extent that the incident, removal costs, or damages are caused by the gross 

negligence or willful misconduct of the claimant.” 33 USC §2712(b) 

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 USC §2702(b). 

Damages are further defined to include the costs of assessing the damages.

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

the cost of assessing these damages;” 33 USC §2701(5). 

Removal cost claims must be presented within 6 years after the date of completion of all removal 

actions for the relevant incident. 33 USC §2712(h)(1). 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 USC §2712(h)(2). 
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In any case in which the President has paid an amount from the Fund for any removal costs or 

damages specified under subsection (a), no other claim may be paid from the Fund for the same 

removal costs or damages. 33 USC §2712(i). 

The applicable regulations “for the presentation, filing, processing, settlement, and adjudication 

of claims...” are found at 33 CFR Part 136. 

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: 

“the 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). The 

provisions of 33 CFR 136.231-136.235 provide the details for claims for profits and earning 

capacity. To substantiate a claim for lost profits, 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 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(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident. 

III. DETERMINATION OF LOSS: 

A. Statement of Loss 

The claimant seeks $202,298.53 for loss of profits as itemized below: 
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Item Description Amount Claimed

Downtime $38,080.00

Extraordinary 2nd Crew Costs $5,702.13

Holiday Pay $3,529.00

Loss of Efficiency $21,760.00

Loss of Inversand Business $40,000.00

Acquisition and Admin. Fees (15%) $20,675.57

Interest 22,551.83

Claim Preparation Costs $50,000.00

Total $202,298.53

The NPFC previously only found the claimed loss of efficiency compensable and offered 

$21,760.00 for it.

B. Reconsideration Determination: 

1. NPFC Findings of Fact: 

Philadelphia Marine Center (PMC) is located on the Delaware River, immediately north of the 

Benjamin Franklin Bridge, which spans the Delaware River between Philadelphia, PA and 

Camden, NJ, within the spill-affected area. (See Claimant’s exhibit 5, Annotated Map). On 

November 2, 2004, Creative Waste Management began work under a contract for a maintenance 

dredging project for Philadelphia Marine Center (See contract between CWM and PMC). 

The dredging was set to commence on October 27, 2004, however, the dredge scow to be 

provided by PMC, via Weeks Marine, was unavailable until November 2, 2004. (See claim 

letter from Palmer, Biezup & Henderson dated July 20, 2007). Under the contract, the estimated 

length of time to complete the dredging project was 60 dredging days. The claimant stated that 

the project started on November 2 and we find that dredging daily put the expected project 

completion date around the beginning of January 2005. The terms of the contract required that 

CWM dredge continuously without interruption to complete the project on time and before the 

river froze for the winter, usually in mid-January. (See claim letter from Palmer, Biezup & 

Henderson dated July 20, 2007). According to the claimant’s July 20, 2007 letter and exhibit #9, 

the crews did not dredge November 7, November 14, and between November 20 and 22, 2004. 

The dredging project was actually completed on 10 January 2005. 

During the project, the 4,000 cubic yard dredge barge became filled with dredge spoils on 

November 27, 2004 and the Coast Guard did not allow it to be towed past the spill site until 

December 3, 2004. Because of this, the dredge spoils could not be dumped as planned. 

Therefore, on November 27, 2004, the productivity of the dredging operations deteriorated due 

to oil response activities and the need to frequently decant1

 the full barge. Dredging operations 

halted on 1 December 2004 since additional dredge materials could not fit in the barge, even 

with decanting efforts. (See claimant’s letters of July 20, 2007 and May 29, 2008, along with 

The Levermans Daily Log). 

 

1 Decanting is the process of taking the water/liquid out of the barge leaving only the dredged material.
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2. Dredging Inefficiency: 

The NPFC previously found that causation had been proven for certain losses in efficiency of 

dredging for Creative Waste Management. The inability to dredge under normal conditions and 

the fact that PMC’s marina was used as a staging and boat fueling area for the various 

contractors hired to complete the cleanup caused slowdowns in the dredging operation because 

of an increase in wake activity from the vessels refueling at the marina. (See claimant’s exhibit 

25, Letter from PMC dated 12//20/04). CWM stated that dredging efficiency dropped 

significantly after the oil contaminated the marina. The NPFC agreed. 

The dredging operations could not be carried out at the normal speed. Based upon the 

information submitted by CWM, 87 shifts were required to complete the project, but if the 

incident had not occurred, a total of 79 shifts would have accomplished the work. (See letter 

dated 07/20/2007). The NPFC agreed with this contention shown by the claimant’s loss of 

efficiency calculations based on the Post-Dredge Volume Calculations letter from S.T. Hudson 

Engineering, Inc., dated January 27, 2005. The NPFC affirms its previous findings with respect 

to dredging inefficiency. The calculation of the resulting loss using a dredge efficiency equation 

is outlined below. 

Calculation

The calculations that follow show how many shifts it took to complete the post-spill dredging 

versus how many shifts it would have taken absent the spill. The calculations show that the spill 

caused the claimant to run an extra 8 shifts. 

The Post-Dredge volume calculations indicate that approximately 33,357 cubic yards of 

materials were removed from the areas within the marina. An additional 309 cubic yards of 

materials were removed below the 2’ over-dredge limits, for a total of 33,666 cubic yards of 

materials removed. 11,632 cubic yards were removed from the North Basin in 28 shifts, and 

22,034 cubic yards were removed from the South Basin in 59 shifts. 

All 59 dredging shifts in the South Basin took place after the spill. For the North Basin, 23 shifts 

took place pre-spill, and 5 took place post-spill. The post-spill dredging rate in the South Basin 

is calculated by dividing the 22,034 cubic yards dredged by the 59 shifts, to get a rate of 373.5 

cubic yards dredged per shift.

As mentioned, 23 dredging shifts were completed in the North Basin before the spill and 5 

dredging shifts were completed in the North Basin after the spill, and 11,632 cubic yards were 

dredged in total. Thus, letting X = the rate of dredging pre-spill (in cubic yards), and letting Y = 

the rate of dredging post-spill (in cubic yards), the problem resolves itself to the following 

equation: 

23X + 5Y = 11,632 
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The variable Y, representing the post-spill dredging rate, was already found to be 373.5 cubic 

yards per shift. Substituting Y into the equation allows us to solve for X, representing the prespill dredging rate. Thus: 

23X +5 (373.5) = 11,632 

X = 424.5 

Pre-spill, the claimant was able to dredge at a rate of 424.5 cubic yards per shift, compared to the 

(previously-calculated) post-spill dredging rate of 373.5 cubic yards per shift. 

Dividing the total amount dredged (33,666) by the pre-spill (i.e., usual) dredge rate reveals that, 

but for the spill, it would have taken 79.3 shifts to complete the dredging operation (33,666 yd3 ÷ 

424.5 yd3/ shift = 79.3 shifts). However, it took 87 shifts to complete the dredging operation2

(28 shifts in the North Basin + 59 shifts in the South Basin = 87 total shifts). Thus, the NPFC 

concludes that the spill caused the dredging operation to take an additional 8 shifts (87 actual 

shifts vs. 79 “but for” shifts).

The NPFC maintains its initial determination on inefficiency and concludes that the cost of the 

eight additional shifts is compensable. At the $340 per hour standby rate, these extra 8 shifts (at 

8 hours each for a total of 64 hours at the standby rate) are valued at $21,760.00. 

3. Downtime:

The NPFC originally denied the claimed $38,080.00 for alleged downtime costs at the end of 

November and one day in December. CWM states that dredging downtime spanned six days 

from November 27 to December 3 with an additional one-day delay on 8 December 2004. The 

claimant alleges that the barge was filled with spoils at the end of the day on November 26 and 

that it requested an empty barge, but that the Coast Guard prevented the full barge from moving 

to the dumping area and no empty barge replaced it.3 The claimant alleges that no effective 

dredging could be done from November 27 through December 3. The claimant also alleges that 

due to oil recovery activity in the South Basin the Coast Guard denied CWM’s request to move 

the dredge and dredge pipe from the North Basin to the South Basin of PMC on December 8, 

causing another delay. CWM states that it was granted permission to move the equipment on 9 

December 2004. Because of this, CWM requests a total of 7 days at 16 hours per day at the $340 

per hour standby rate (for a total of $38,080) for downtime that was allegedly a direct result of 

the incident. (See claimant’s letters dated July 20, 2007 and May 29, 2008). 

PMC’s refusal to pay CWM the claimed downtime is a contractual issue and not a result of the 

spill. PMC was obligated to pay under the contract with CWM. Specifically, Exhibit A to the 

contract states “The standby rate applies to delays that are no fault of CWM. Such delays may 

include requests from PMC or the unavailability of transportation and disposal. Charges will 

not apply to delays caused by weather or other acts of nature that are beyond anyone’s control.” 

(See Clarification #8 of Dredging Contract Exhibit A). The situation with the oil spill allegedly 

causing the unavailability of transportation and disposal, falls squarely within this term of the 

 

2 See Claimant’s spreadsheet in exhibit 9 and claimant’s calculation in exhibit 12.

3 The CG Marine Safety Information Bulletin provides documentary evidence that vessel movements within the 

safety zone (PMC’s marina was within this zone) were severely limited. See MSIB #47-04 dtd November 30, 2004.
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contract. Any standby pay for alleged downtime is clearly contractual in nature and not a result 

of the oil spill because if the oil spill had not occurred then no standby would have been owed

for downtime. If the oil spill caused standby pay to be due, it would be a windfall gain because 

of the spill, and not being paid for it is not a loss caused by the spill. 

In its May 29, 2008 letter, the claimant asserts that it was incurring costs throughout the alleged 

downtime. These costs include leasing of equipment not being used and employee pay while 

dredging was halted. Though the claimant does not claim these costs for downtime, the NPFC 

believes that these are the appropriate measure of losses during downtime and not the contractual 

standby rate. The NPFC also finds that, contrary to the claimant’s assertion that downtime 

totaled seven days, it actually amounted to two days. (See Levermans Daily Log for November 

27-December 3, and December 8). Though the claimant states that its downtime started when 

dredging became ineffective, this is not accurate. In actuality, ineffective dredging equates to 

inefficient dredging, which is included in the inefficiency damages addressed in the previous 

section above. So, the days where dredging continued, but inefficiently (i.e. November 27-

November 30), have already been accounted for in the previous section. As for the alleged 

December 8 delay, we found insufficient evidence that the downtime was related to the spill. 

Though CWM offers a letter from PMC which states that the oil spill caused certain downtime 

that correlates to the downtime claimed by CWM, we don’t find it persuasive given other 

evidence; such as the claimant’s own statements regarding dredging (though ineffective) via its 

attorney’s letters and the Levermans Daily Log. The Levermans Daily Log for that date 

describes repairs being made to the dredge, the Sea Tow boat being out of service, and unsafe 

tidal conditions, but does not mention any Coast Guard actions to prevent movement of the 

dredge and barge. Therefore, the NPFC finds that CWM’s dredging was halted for two days 

only, December 1 and 2. (See Levermans Daily Log dated 12/1/04 covering 12/1-12/3/04). The 

claimant continued to incur expenses during these two days for which the claimant can be 

compensated. 

As discussed in the previous paragraph, the NPFC is already offering compensation for 

inefficiency in dredging. Inefficient dredging encompasses part of the claimed downtime period. 

To pay downtime standby costs on top of that would be paying for the same costs, which is not 

allowed under OPA’s prohibition on double recovery. (See OPA section 1012(i)). 

Therefore, we are not offering the $38,080.00 requested for downtime. However, we agree with 

the claimant that costs were incurred during the downtime; but for only two days as discussed 

above. They are compensable as follows:

Item Cost/Day Dec. 1&2 (#days) Total Costs

Dredge Lease $775.00 2 $1550.00

Forklift Lease $102.38 2 $204.76

Boat Lease $75.00 2 $150.00

Vehicle Lease $34.00 2 $68.00

Pump Lease $76.24 2 $152.48

Adapter Lease $1.70 2 $3.40

Portable Toilet Rental $2.95 2 $5.90 

Subtotal $2134.54

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operate the dredge. The NPFC does not pass judgment on the propriety of hiring a second crew. 

The NPFC merely finds that the claimant has not met its burden of showing that the oil spill 

required it to seek the services of a non-local dredge operator and incur the expense of getting 

him to Philadelphia and paying for his expenses while he was there. The decision was a business 

decision and may have been the reasonable/logical decision, but its connection to the oil spill has 

not been shown. 

Therefore, the extraordinary 2nd crew costs of $5,702.13 are again denied. 

5. Holiday Pay Costs: 

The NPFC originally denied the claimed holiday pay of $3,529.00 paid to its employees for 

dredge operations. According to the 20 July letter, the employees were paid normal holiday pay 

at the regular rate plus double time for working the holidays, which consisted of 12/24/04, 

12/25/04, 12/31/04, and 01/01/05. The claimant merely alleges, without support, that these costs 

resulted from the spill. 

In its reconsideration request letter the claimant states that the job would have been done on 

December 24 if the crew had worked double shifts every day had the spill not occurred. The 

claimant asserts that double shifts would not have been worked every single day, but enough 

double shifts would have been worked to ensure that the crew had Christmas and New Year’s 

off. The claimant bases these assertions on the inefficiencies created by the oil spill requiring 

extra shifts to complete the job. While we agree that extra shifts may have been the best choice, 

we do not agree that the holidays would not have been worked but for the oil spill. The 

agreement between PMC and CWM estimated the project to last 60 dredging days.4

 It did not 

specify that holidays were excluded or double shifts would be worked to avoid working holidays. 

In fact, it specifically contemplated “near-continuous operation.” (See Exhibit A to the dredging 

contract). 60 dredging days beyond the actual start date of November 2nd runs through the 

holiday period regardless of the spill. According to the claimant’s July 20, 2007 letter and 

exhibit #9, the crews did not dredge November 7, November 14, and between November 20 and 

22, 2004. This put the earliest end date at January 5, 2005, if CWM dredged for 60 days straight 

from the start date. The fact that the crew would have done what it took to avoid working on the 

holidays is not proven, since prior to the spill the crew specifically negotiated other time off in 

exchange for working on Thanksgiving. 

The claimant has not met its burden of proving that the holiday hours worked resulted from the 

incident. And, the NPFC believes CWM would have dredged through the holidays with or 

without the spill given the amount of material dredged and the estimated amount of time 

expressed in exhibit A of the contract with PMC. Therefore, the claimed holiday pay costs 

totaling $3,529.00 are again denied. 

6. Inversand Business:

The NPFC originally denied the claimed $40,000 for lost subsequent dredging business, which it 

claims was caused by the spill. This portion of the claim is based on the project that was to 

 

4 The contract estimated that it would take about 35 dredging days to dredge 13,000 cubic yards of material and 

about 60 dredging days to dredge 22,000 cubic yards of material. In fact, the CWM dredged 33,666 cubic yards of 

material, which presumably would be expected to take substantially more than 60 days. 
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begin upon completion of the PMC project. On 13 January 2005, CWM submitted a dredging 

proposal to Inversand Company for dredging manganese greensand that is used to filter potable 

water. The proposal was accepted by Inversand and the work was to commence on 17 January 

2005. Creative Waste states that the contract was cancelled because their dredging equipment 

was contaminated by the oil and could not be sufficiently cleaned for use on this contract. 

According to the claimant, it attempted to clean its dredge pipe, but was unsuccessful. (See 

claimant’s July 20, 2007 letter). 

As evidence to support reconsideration, the claimant provided the same documents as before, 

with the addition of an affidavit from , a senior project manager at CWM 

discussing the contract and its cancellation. We find this document self-serving to CWM and not 

persuasive. The January 15, 2005 cancellation notice from Inversand to CWM does not mention 

the reasons for the cancellation, or whether it was related to the oil spill. The agreement with 

Inversand was not executed until January 13, 2005, two days after the claimant knew that the 

pipe could not be cleaned and might not be useable for subsequent projects (See CWM Letter 

dated January 13, 2005, Inversand email of January 14, 2005, and January 15, 2005 Inversand 

purchase order cancellation between CWM and Inversand). The contamination of the pipe, the 

attempts to clean the pipe, and the realization that the pipe could not be cleaned all occurred prior 

to CWM entering into the contract with Inversand. There is no documentation of Inversand’s 

reasons for cancellation. The NPFC previously informed the claimant of the need to provide 

documentation that the contract was cancelled because of oil contamination, but CWM still 

provided no such documentation. 

For the foregoing reasons, the NPFC finds that the claimant has failed to meet its burden of 

proving this alleged loss and any connection to the oil spill. The cost of $40,000.00 for the loss 

of subsequent business with Inversand Company (See letter from Palmer, Biezup & Henderson 

on behalf of Creative Waste dated 7/20/2007) is again denied.

7. Spill-Related Administrative Costs:

The NPFC originally denied the claimed administrative costs because it found that these costs 

were claim preparation costs. On reconsideration the claimant states that the costs were actually 

“extraordinary costs that CWM incurred while trying to manage the dredging project at the PMC 

marina during the oil spill.” The claimant seeks $20,675.57 in fees allegedly relating to 

administrative overhead costs related to the spill. These fees are based upon the dollar value of 

the three claims presented to NPFC and are calculated at 15% of the $9,396.01 removal claim 

paid, 15% of the $19,369.98 property damage claim paid and 15% of the $109,071.13 loss of 

profits claim currently pending. 

First, the claimant has already executed releases of all removal costs and property damages, so 

any costs relating to these are denied as already released/waived. Second, the claimant states in 

its May 29, 2008 letter that, “[n]o commercial dredging company maintains detailed time records 

of activities that its administrative and management personnel undertake. Further, it was not 

reasonable for CWM to maintain such records for the sole purpose of submitting a claim to the 

NPFC.” We pass no judgment on the validity of this statement. However, we do require 

evidence to support the claimed damages. The claimant’s business decision not to maintain 

(b) (6)
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records to support its claim represents an assumed risk that the claim may not be paid. Merely 

alleging that the oil spill caused additional administrative expenses equal to 15% of the claimed 

amounts without providing evidence of causation and the actual damages is not sufficient, as it 

provides the NPFC no basis upon which to pay the claimant as required by OPA. The claims 

regulations require proof before a claim may be paid. 

CWM provided no evidence that it actually incurred administrative costs of 15% of the amounts 

claimed. Merely alleging that administrative costs were incurred because of the oil spill with no 

evidence that the amount claimed was actually lost/expended as a result of the spill is not 

sufficient for payment from the Fund. The claimant’s attorney references court decisions to 

support the reasonableness of paying administrative costs and the reasonableness of the 15% 

calculation as a reason for the NPFC to pay the claimed amount. In response, we must explain 

that courts are not bound by the same rules that the Fund is. The cited decisions were not 

applying OPA, its implementing regulations and they were not referring to a federal trust fund. 

The cited decisions also are not relevant to CWM’s claimed damages based on an arbitrary 

assignment of a percentage to the claimed amounts. We make no decision regarding whether 

15% is reasonable as a percentage of the claimed damages. We do find that the claimant’s 

alleged loss and its use of 15% of the amount claimed have no evidentiary basis. Therefore, the 

NPFC again denies the claimed administrative costs because the claimant has not met its burden 

of proving the costs or their connection to the oil spill. 

8. Payment of Interest:

The NPFC originally denied the claimed interest on the claimed amounts. In its reconsideration 

request the claimant seeks payment of interest based on each of its different claims as follow:

a. Interest of $886.88 on Removal Costs paid of $9,396.01 

b. Interest of $2,624.63 on Property Damages paid of $19,369.98 

c. Interest of $19,040.32 on Lost Profits claimed at $129,746.67 

The claimant argues that not having the claimed removal costs, property damage and profits 

resulted in an impairment of earning capacity and CWM could have invested its money 

elsewhere. CWM argues that an RP is liable to the claimant for interest under 33 U.S.C. §2705 

and so the Fund should pay it as well. 

The language of section 2705(a) specifies that an RP or the RP’s guarantor is liable to a claimant 

for interest. This section only applies to liability of RPs, not the Oil Spill Liability Trust Fund 

(Fund). Only losses directly resulting from an oil spill and specifically listed in section 2702 of 

OPA are compensable by the Fund. Interest on claimed losses is not impairment of earning 

capacity and is not included in section 2702. Additionally, the claimant has already executed 

releases of all removal costs and property damages, so any costs relating to these must be denied 

as already released/waived. Therefore, the claim for interest is again denied. 

9. Claim Preparation Costs:

The NPFC originally denied claim preparation costs as being specifically excluded pursuant to 

the claims regulations at 33 CFR 136.105(e)(8). Damages are defined under 33 U.S.C. §2701(5) 

and include the damages listed in section 1002(b) and the costs of assessing the damages listed. 
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Referring to the compensability of damage assessment costs, 33 CFR 136.105(e)(8) states that 

assessment costs are:

“the 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.” [emphasis added] 

In its reconsideration request the claimant admits that the regulations do not allow recovery of 

these costs, but argues that we should pay the costs because the regulations do not accurately 

reflect the provisions of OPA 90 and not paying them does not keep with the spirit of OPA 90. 

We do not judge the spirit of OPA 90 and are bound by the regulations which, as the claimant 

admits, do not allow claim preparation costs to be paid from the Fund. Therefore, we again deny

these costs in accordance with the specific exclusion of 33 CFR 136.105(e)(8). 

Conclusion 

In its reconsideration request submission, the claimant provides arguments with little to no 

evidence supporting the claimed damages. The NPFC understands that CWM was impacted by 

the oil spill. However, even after attempting to assist the claimant’s attorney in understanding 

what is necessary to support the claim, the NPFC finds that the attorney either refused or is 

unable to provide the documentary evidence required to support causation and proof of damages 

beyond what is being offered. 

IV. RECOMMENDATION: 

I recommend that the NPFC offer the claimant $24,216.54 as full compensation for the losses 

it has proven resulted from the ATHOS I oil spill. All other claimed amounts are denied as 

not being proven compensable. 

Claim Supervisor: Thomas S. Morrison 

Date of Supervisor’s Review: 

Supervisor Action: 

Supervisor’s Comments: