2

CLAIM DETERMINATION 

Claim Number: A17013-0001 

Claimant: Safe Harbor Pollution Insurance and Interested Underwriters 

Type of Claimant: RP

Type of Claim: Sole Cause Act of God/Limit of Liability

Claim Manager: 

Amount Requested: $1,929,684.17 

Action Taken: Denied on Reconsideration 

EXECUTIVE SUMMARY:

 On April 6, 2017, the deck barge VENGEANCE sank and discharged oil into the San 

Francisco Bay, a navigable waterway of the United States. U.S. Coast Guard Sector San 

Francisco (Sector San Francisco) notified the National Response Center (NRC) of the incident.1 

Unable to immediately contact the responsible party, Sector San Francisco personnel accessed 

the Oil Spill Liability Trust Fund (OSLTF) and hired NRC Environmental Services (NRCES) to 

conduct pollution response operations. Vortex Marine Construction, Inc. (Vortex) the owner and 

operator of the VENGEANCE, arrived on-scene shortly thereafter and assumed responsibility for 

the incident. Vortex hired Global Diving and Salvage, Inc. for dive operations and Patriot 

Environmental Services to conduct pollution response activities.2

 Sector San Francisco deemed 

the salvage operations and pollution removal activities complete on July 19, 2017.3 After 

incurring all of the pollution removal costs associated with the response, Vortex assigned all 

rights to Safe Harbor Pollution Insurance (SHPI) and interested underwriters.4 SHPI submitted 

an act of God third party defense claim, and in the alternative, an entitlement to limited liability 

claim to the National Pollution Funds Center (NPFC) for $1,929,684.17.5 The NPFC thoroughly 

reviewed all documentation submitted with the claim, analyzed the applicable law and 

regulations, and concluded that the Claimants failed to demonstrate an entitlement to an act of 

God defense or an entitlement to limited liability for their uncompensated removal costs and 

damages under the Oil Pollution Act (OPA) that exceed their limit of liability.6

 On May 31, 

2019, the Claimants timely sought reconsideration of the NPFC’s determination specific to their 

entitlement to a limitation of liability only and requested additional time to submit evidence in 

support of their request.7

 The NPFC responded by drafting and executing a Tolling Agreement 

with the Claimants that provided additional time as requested.8 On October 30, 2019, the 

Claimants timely submitted evidence in support of their request for reconsideration.9

 

1 National Response Center Report #1175062, reported on April 7, 2017.

2 Coast Guard Pollution Report Message (CG POLREP) 1 DTG R121957Z Apr 17.

3 CG POLREP 6 DTG R192010Z Jul 17.

4 Letter to the NPFC provided by Nicoletti Hornig & Sweeney, attorneys representing Safe Harbor Pollution 

Insurance executing assignment of Vortex claim for exoneration/limitation of liability under the OPA to Safe Harbor 

Pollution Insurance and interested underwriters Starr Indemnity and Liability Company, Argonaut Insurance 

Company and Berkshire Hathaway Specialty Insurance in the amount of $1,802,762.85 dated February 22, 2019. 

As such, the terms “claimant” or “claimants” herein refers to Vortex or SHPI, et al., as applicable. 

5 Original claim submission dated October 15, 2018, page 2. 

6 NPFC initial determination dated April 29, 2019. 7 Claimants letter to the NPFC dated May 31, 2019. 8 Tolling agreement between Safe Harbor Pollution Insurance (Requestor) and the NPFC dated June 27, 2019. 

9 Claimants letter dated October 30, 2019, with evidence in support of their request for reconsideration.

(b) (6), (b)
3

Requests for reconsideration are considered de novo. The NPFC has thoroughly reviewed the 

original claim, the request for reconsideration, all information provided by the Claimants, 

information it obtained independently, and the applicable law and regulations. Upon 

reconsideration, the NPFC concludes that the facts established by the administrative record 

support denying this claim under the Oil Pollution Act (OPA). For the reasons outlined in the 

original determination and the reasons below, this claim must be denied. 

I. CLAIM HISTORY 

On October 15, 2018, the Claimants submitted an act of God third party defense claim, and 

in the alternative, an entitlement to limited liability claim to the National Pollution Funds Center 

(NPFC) for $1,929,684.17.10 The NPFC thoroughly reviewed all documentation submitted with 

the claim, analyzed the applicable law and regulations, and concluded that the Claimants failed 

to demonstrate an entitlement to an act of God defense or an entitlement to limited liability for 

their uncompensated removal costs and damages under the Oil Pollution Act (OPA) that exceed 

their limit of liability.11 The NPFC’s initial determination is hereby incorporated by reference. 

II. REQUEST FOR RECONSIDERATION

The regulations implementing OPA require requests for reconsideration of an initial 

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim.12 The claimant has the burden of providing all 

evidence, information, and documentation deemed necessary by NPFC’s Director to support the 

claim.13 When analyzing a request for reconsideration, the NPFC performs a de novo review of 

the entire claim submission, including any new information provided by the Claimant in support 

of its request for reconsideration. The written decision by the NPFC is final.14

On May 31, 2019, Claimants timely requested reconsideration of the NPFC’s initial 

determination specific to their entitlement to a limitation of liability only and requested 

additional time to submit evidence in support of their request.

15 In response, the NPFC drafted 

and executed a Tolling Agreement with the Claimants that provided additional time as 

requested.16 On October 30, 2019, the Claimants timely submitted evidence in support of their 

request for reconsideration.17 In their request for reconsideration, the Claimants assert that under 

the OPA, the “general rule” is that a responsible party is entitled to limit its liability to 

compensable removal and damages that exceed its statutory limit of liability and that once the 

Claimants have demonstrated that they incurred removal costs on behalf of the responsible party 

 10 Original claim submission, page 2. 11 NPFC initial determination dated April 29, 2019. 12 33 C.F.R. 136.115(d). 13 33 C.F.R. 136.105(a). 14 Id. 15 Claimants letter dated May 31, 2019. 16 Tolling agreement between Safe Harbor Pollution Insurance and the NPFC dated June 27, 2019. 17 Claimants letter dated October 30, 2019. The exhibits provided in support of the Claimant’s request for 

reconsideration included Exhibit A - Dooley SeaWeather Analysis dated October 25, 2019; Exhibit B- Fisher 

Maritime Consulting Group Report dated October 29, 2019; and Exhibit C - Martin Ottoway Marine Consultants 

Report dated October 25, 2019 (hereinafter “Exhibit A”, “Exhibit B” and “Exhibit C”, accordingly).
4

in excess of the statutory limit, OPA places the burden on the NPFC to establish that an 

exception to limitation of liability applies.

18 Additionally, the Claimants assert that the NPFC’s 

definition of gross negligence under the OPA is in error as the NPFC’s definition fails to capture 

the notion of deliberateness and conscious disregard of apparent risks suggested by ‘misconduct’ 

that is ‘reckless, willful, or wanton.

19 Further, the Claimants assert that Vortex’s response to the 

forecasted weather was reasonable under the circumstances20 and that disagreements over 

pending weather between Vortex management and the Captain of the Tug LAGUNA and 

VENGEANCE crew were not negligent.

21 The Claimants also assert that the condition of the 

VENGEANCE was not the cause of the sinking22 and assert that corrosion identified onboard the 

VENGEANCE was not significant.23 Lastly, the Claimants assert that anchor roll with water 

washing onto the deck of the barge caused the VENGEANCE to sink24 and that flooding into 

starboard void 10-38 and adjoining spaces was not sufficient to sink the VENGEANCE.25

III. LEGAL ANALYSIS:

A. Adjudication of Claims Against the OSLTF

When adjudicating claims against the OSLTF, the NPFC utilizes an informal process 

controlled by 5 U.S.C. § 555.26 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining the basis for a denial. This determination is issued to satisfy that 

requirement. 

The claims adjudication process is also subject to the regulations at 33 CFR Part 136. During 

the adjudication of claims against the OSLTF, the NPFC acts as the finder of fact. In this role, 

the NPFC considers all relevant evidence and weighs its probative value when determining the 

facts of the claim. If there is conflicting evidence in the record, the NPFC will make a 

determination as to what evidence is more credible or deserves greater weight, and finds facts 

based on the preponderance of the credible evidence.

The regulations implementing OPA require requests for reconsideration of an initial 

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim in accordance with the governing claims 

regulations at 33 CFR 136.115(d). In their request for reconsideration, Claimants did not contest 

 18 Claimants letters dated May 31, 2019, page 2, and October 30, 2019, page 2. 19 Claimants letters dated May 31, 2019, pages 5-6, and October 30, 2019, pages 2-4. 20 Claimants letters dated May 31, 2019, pages 3-4, and October 30, 2019, pages 4-5. 21 Claimants letter dated October 30, 2019, page 5. 22 Claimants letters dated May 31, 2019, pages 4-5, and October 30, 2019, pages 5-6. 23 Claimants letter dated October 30, 2019, page 6. 24 Id. 25 Claimants letter dated May 31, 2019, page 4. 26 The court in Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 75 (D.D.C. 2011), characterized the 

informal adjudication process for OSLTF claims with the following: “[W]hile the OPA allows responsible parties to 

present a claim for reimbursement to the NPFC, they do not confer upon such parties a right to a formal hearing, a 

right to present rebuttal evidence or argument, or really any procedural rights at all, see 33 U.S.C. §§ 2704, 2708, 

2713, an entirely unremarkable fact given that Congress’ overarching intent in enacting the OPA was to ‘streamline’ 

the claims adjudication process . . . .” 
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NPFC’s denial of the act of God defense in the original determination. Accordingly, this 

determination is focused on the application of the limitation of liability provision in OPA. 

B. Responsible Parties Bear the Burden of Proving Entitlement to OSLTF

 Reimbursement

Under the OPA, a responsible party is liable for all removal costs and damages resulting from 

either an oil discharge or a substantial threat of oil discharge into a navigable water of the United 

States.27 Further, a responsible party’s liability is strict, joint, and several.28 In the case of a 

vessel, the responsible party includes any person owning, operating or demise chartering the 

vessel.29 When enacting OPA, “Congress explicitly recognized that the existing federal and 

states laws provided inadequate cleanup and damage remedies, required large taxpayer subsidies 

for costly cleanup activities and presented substantial burdens to victim’s recoveries such as... 

burdens of proof unfairly favoring those responsible for the spills.”30 OPA was intended to cure 

these deficiencies in the law. 

Notwithstanding the above, under limited circumstances the OSLTF may reimburse a 

responsible party for its uncompensated removal costs and damages. In order to receive OSLTF 

reimbursement a responsible party must show an entitlement to either a defense or limited 

liability under the OPA. Specifically, 33 U.S.C. § 2708(a) (emphasis added) provides that: 

The 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 

under section 2713 of this title only if the responsible party demonstrates that--

(1) the responsible party is entitled to a defense to liability under section 2703 of this title; or 

(2) the responsible party is entitled to a limitation of liability under section 2704 of this title. 

Under the plain meaning of 33 U.S.C. § 2708(a), a responsible party must demonstrate that 

either a defense or limited liability applies before the OSLTF can reimburse removal costs or 

damages. Consistent with this statutory requirement, the OSLTF’s claims regulations also 

require all claimants to carry the burden of proving an entitlement to reimbursement. 31 

Therefore, just like any other claimant, a responsible party must carry its burden of proving an 

entitlement under the OPA before receiving reimbursement from the OSLTF.32 

 27 33 U.S.C. § 2702(a). 28 See, H.R. Conf. Rep. No. 101-653, 102, reprinted in 1990 U.S.C.C.A.N. 779 (August 1, 1990). 29 33 U.S.C. § 2701(32)(A). 30 Apex Oil Co., Inc. v. United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002)(citing S. Rep. No. 101-94 

(1989); reprinted in 1990 U.S.C.C.A.N. 722.). 31 See, 33 CFR 136.105(a)(“The claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim.”); and 33 CFR 136.105(e)(6) 

(requiring that each claim include evidence to support the claim).

32 OPA’s legislative history supports NPFC’s conclusion that a responsible party has the burden of showing an 

entitlement to OSLTF compensation under 33 U.S.C. § 2708. As explained in the House Conference Report on 

OPA:
6

In order to be entitled to OSLTF compensation udder 33 U.S.C. § 2708, a responsible party 

must first prove an entitlement to limited liability under 33 U.S.C. § 2704. Under 33 U.S.C. § 

2704 (c), the OPA does not permit limited liability when the incident was proximately caused by 

the gross negligence, willful misconduct, or violation of a federal regulation by the responsible 

party or its agent or employee. Consequently, a responsible party must show that these three 

exceptions to limited liability do not apply even though this burden of proof may require proof of 

a negative contention, (i.e., the incident was not proximately caused by the responsible party’s 

willful misconduct, gross negligence, or regulatory violation). “It is a familiar common-law rule 

that, where a right to relief is grounded on a negative assertion of a right, the burden of proving 

the negative rests on the party asserting the right.”33 This is not an impossible burden to carry. 34 

A responsible party will meet its burden by showing that its more likely than not that the incident 

was not proximately caused by willful misconduct, gross negligence, or a regulatory violation. 

The quantum of proof required from a responsible party seeking OSLTF reimbursement will 

vary depending upon the facts of the case. Nevertheless, a responsible party should not be 

required to conclusively disprove every possible contention supporting unlimited liability. 

Rather, a responsible party will generally satisfy its burden by showing that the exceptions to 

limited liability in 33 U.S.C. § 2704 (c) probably do not apply. For example, the NPFC does not 

require detailed proof of compliance with federal regulations that have no apparent connection to 

 Section 1008 of the House bill allows a responsible party or the owner of oil on a tank vessel, or a 

guarantor for that responsible party or owner of oil, to assert a claim for removal costs and 

damages only if the responsible party or owner can show that the responsible party or owner has 

a defense to liability, or is entitled to a limitation of liability. In the latter case, a claim may be 

submitted only to the extent amounts paid by the responsible party or owner, or by a guarantor on 

the responsible party's or owner's behalf, exceeds the applicable limit on liability. 

H.R. Conf. Rep. 101-653, 110, reprinted in 1990 U.S.C.C.A.N. 779 (August 1, 1990) (emphasis added). See also, 

Apex Oil Co., Inc. v. United States, 208 F.Supp.2d 642 (E.D. La., 2002)(claimant failed to carry its burden of proof 

with respect to the “act of God” defense); International Marine Carriers v. OSLTF, 903 F.Supp. 1097 (S.D. Tex. 

1994)(claimant must show elements of a “third party” defense by a preponderance of the evidence); Bean Dredging, 

LLC v. United States, 773 F.Supp.2d 63, 86 (D.D.C. 2011)(the responsible party “had the burden of proof of 

establishing its entitlement to reimbursement on the administrative level” ...); and Water Quality Ins. Syndicate v. 

United States, 632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(holding that it is the responsible party, not the NPFC, 

which has the burden to prove it [or in the case of an insurance company-claimant, its ensured] is entitled to a 

limitation of liability when making a claim against the OSLTF under 33 U.S.C. § 2708). 

33 United States v. Grogg, 9 F.2d 424, 426 (W.D. Va. 1925). 34 The treatise, Corpus Juris Secondum, explains how a party can prove a negative contention with the following:

The party whose contention requires proof of a negative fact generally has the burden of evidence 

to prove that fact, except as the rule may be modified by the fact that the evidence as to such issue 

is peculiarly within the adverse party’s knowledge or control. In deciding, however, what 

quantum of evidence shall be deemed sufficient, the practical limitations on proof imposed by the 

nature of the subject matter or the relative situation of the parties will be considered.

The court will more promptly discharge a litigant from the burden of evidence where the 

proposition is a negative one, and the burden of evidence is sustained by proof which renders 

probable the existence of the negative fact, nothing in the nature of a demonstration being 

required.

31A C.J.S. Evidence § 200 (2015)(internal footnotes omitted)(emphasis added).
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the oil spill. Therefore, in some cases a responsible party’s regulatory compliance could be 

shown by generalized evidence establishing a probability that no regulatory violation occurred. 

However, if the facts of an OPA incident raise the issue of whether the incident was proximately 

caused by a regulatory violation, then a responsible party must carry its burden of proving 

compliance with the specific regulation at issue.35

Placing the burden of proof on a responsible party claimant seeking compensation under 33 

U.S.C. § 2708 is consistent with the general rule that a party seeking relief bears the burden of 

proving an entitlement to that relief. Requiring a responsible party claimant to prove its 

entitlement to OSLTF compensation is also consistent with the general rule that a party with 

particular knowledge of the facts ought to bear the burden of proving those facts. As the owner 

and operator of VENGEANCE, Vortex had unique access to the facts surrounding this incident 

because it was in control of the operations resulting in the discharge and had dominion and 

control over the discharging vessel. This unique access to the vessel makes Claimants 

particularly well-positioned to actually know or discover the facts surrounding the incident. 

Placing the burden of proof on a responsible party and its insurers seeking compensation under 

33 U.S.C. § 2708 incentivizes full disclosure of all relevant facts by Claimants who should be in 

the best position to know or learn what happened during an OPA incident. 

In this case, Claimants argue that all responsible parties are generally entitled to 

compensation under 33 U.S.C. § 2708 (a) upon proving that their total removal costs exceed the 

liability limits in 33 U.S.C. § 2704. For all the reasons described above, the NPFC respectfully 

disagrees with Claimants’ characterization of how OPA allocates the burden of proving an 

OSLTF claim by a responsible party. In order to receive OSLTF reimbursement, a responsible 

party must carry its burden of proving an entitlement to limited liability. 

Notwithstanding any disagreement between NPFC and Claimants, OPA’s allocation of the 

burden of proof for responsible party claims does not control the outcome of this determination. 

OPA’s allocation of the burden of proof for OSLTF claims will only be controlling when the 

evidence is in equipoise or fails to establish an element of the claim by a preponderance of the 

evidence.36 In support of their argument, Claimants rely on Great American Ins. Co. v. U.S., 55 

Supp. 3d 1053 (N.D. Ill. 2014). However, that decision is distinguishable from this claim 

because the proximate cause of the incident in Great American was unknown. NPFC denied the 

Great American claim under the theory the claimants failed to carry their burden of proving the 

incident’s proximate cause, not because the known facts established gross negligence or willful 

 35 Bean Dredging, LLC v. United States, 773 F.Supp.2d 63, (D. D.C. 2011)(affirming NPFC’s determination 

denying limited liability based upon the responsible party’s failure to show compliance with a specific regulation). 36 Medina v. California, 505 U.S. 437, 449 (1992)(“... the allocation of the burden of proof to the defendant will 

affect competency determinations only in a narrow class of cases where the evidence is in equipoise; that is, where 

the evidence that a defendant is competent is just as strong as the evidence that he is incompetent.”). See also, 

Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997)(“Well-settled principles guide the fact-finding process, 

including the rule that when the scales are evenly balanced and the relevant evidence leaves a trier of fact in 

‘equipoise,’ the party with the burden of proof loses.”); Maher Terminals, Inc. v. Director, Office of Workers, 992 

F.2d 1277, 1284 (3rd Cir. 1993)(‘The ALJ found that the evidence was in equipoise, which by definition, means that 

the claimant did not carry her burden of proof by a preponderance of the evidence.”); Ford Motor Co. v. Coleman, 

402 F.Supp. 475 (D.D.C. 1975)(“By ‘evidence in equipoise’ we mean that on some item that is material for the 

Government to establish, as the party with the burden of proof, the court cannot fairly say whether the item or its 

contrary is the more probable.”).
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misconduct on behalf of the responsible party. In contrast to Great American, as explained in 

more detail below, the NPFC determines that the preponderance of credible evidence in this 

claim establishes that Vortex’s gross negligence proximately caused this incident. Because the 

administrative record for this claim affirmatively shows gross negligence by a responsible party 

or its employee, this claim must be denied regardless of how OPA allocates the burden of 

proving a responsible party’s entitlement to OSLTF compensation. 

C. Limitation of Liability

Claimants on reconsideration continue to assert that they are entitled to limited liability under 

33 U.S.C. §§ 2708 and 2704(a). If successful, Claimants would be reimbursed from the OSLTF 

their compensable removal costs that exceed the OPA limit of liability.37 As the insurers for the 

responsible party, Claimants are subrogated to the responsible party’s rights and can only recover 

if Vortex is entitled to limited liability. Having reviewed the applicable law and the information 

provided by Claimants in support of their initial claim, their request for reconsideration as well 

as information independently obtained, NPFC determines that the incident was proximately 

caused by the gross negligence38 of the responsible party or an employee of the responsible 

party. As a result, the requirements of 33 U.S.C. §§ 2708 (a), 2704(c)(1), and 2712(b) have not 

been met and the claim for limited liability must be denied.

As previously noted, OPA’s liability limits will not apply when the OPA incident was 

proximately caused by a responsible party’s “willful misconduct” or “gross negligence”.39

Similarly, the OSLTF cannot reimburse any claim if the incident, removal costs, or damages 

were caused by the “gross negligence” or “willful misconduct” of the claimant. The NPFC 

defines those terms as follows: 

Gross Negligence: Negligence is a failure to exercise the degree of care which a person of 

ordinary caution and prudence would exercise under the circumstances. A greater degree of 

care is required when the circumstances present a greater apparent risk. Negligence is “gross” 

when there is an extreme departure from the care required under the circumstances or a 

failure to exercise even slight care.

 37 33 U.S.C. §2708 (b) 38 A series of negligent acts can constitute gross negligence. See e.g., In re Oil Spill by Oil Rig Deepwater Horizon, 

21 F.Supp.3d 657, 742 (E.D. La. 2014)(“[S]everal connected or successive acts of simple negligence may support a 

finding of gross negligence, due to their compounding effect.”); see also, In re Oil Spill by Oil Rig Deepwater 

Horizon, 2014 WL 12773902 (November 13, 2014)(Order denying plaintiff’s motion to amend and alter the court’s 

finding “that BP committed a series of negligent acts that, together, amounted to gross negligence.”). See also, 

McPhearson v. Sullivan, 463 S.W.2d 174 (Tex.1971). (Several connected acts of simple negligence may support a 

... finding of gross negligence ); accord, Burk Royalty v. Wells, 616 S.W. 2d 911, 922 (Tex. 1981)(“The existence 

of gross negligence need not rest upon a single act or omission but may result from a combination of negligent acts 

or omissions, and many circumstances and elements may be considered in determining whether an act constitutes 

gross negligence.”); Maddelena v. Southern Bell Tel. 382 So. 2d 1246 (Fla. 4th DCA 1980)(“The compounding 

effect of the successive acts may, in fact, amount to gross negligence.”. For completeness, the NPFC also reviewed 

this claim under the analysis provided in a recent Administrative Procedure Act case. Even under the interpretation 

of gross negligence suggested by the court in that case, this claim still fails. Water Quality Insurance Syndicate v. 

United States, 225 F. Supp. 3d 41, 75 (D.D.C. 2016). 39 33 U.S.C. § 2704 (c)(1)(A).
9

Willful Misconduct: An act, intentionally done, with knowledge that the performance will 

probably result in injury, or done in such a way as to allow an inference of a reckless 

disregard of the probable consequences. 40

The structure of OPA’s liability and compensation regime supports giving distinct meanings 

to the terms “gross negligence” and “willful misconduct”. Under 33 U.S.C. § 2712(b) a claimant 

may not receive OSLTF reimbursement for removal costs or damages caused by the claimant’s 

“gross negligence or willful misconduct”. Also, 33 U.S.C. § 2704(c)(1) precludes limited 

liability for oil spills caused by the “gross negligence or willful misconduct of” the responsible 

party. If Congress had intended for “gross negligence” to have the same meaning as “willful 

misconduct” under the OPA, there would have been no reason to deny OSLTF reimbursement 

and limited liability for both types of conduct. Moreover, the use of the disjunctive term “or” in 

both 33 U.S.C. §§ 2704 (c)(1) and 2712(b) further suggests that “gross negligence” is a separate 

and distinct type of wrongdoing from “willful misconduct”.41 

The statutory language used by Congress to impose liability on an OPA guarantor also 

supports giving “gross negligence” a different meaning from “willful misconduct” Under 33 

U.S.C. § 2716(f)(1)(C), a guarantor can only avoid liability when “the incident was caused by 

the willful misconduct of the responsible party.” In contrast, a claimant will be denied OSLTF 

reimbursement and unlimited OPA liability will be imposed on a responsible party for either 

“gross negligence” or “willful misconduct”. The fact that OPA only provides guarantors with a 

defense for “willful misconduct”, but not “gross negligence” shows that Congress intended for 

the two phrases to have separate meanings. If it were otherwise, an OPA guarantor would be 

exonerated from liability for either “gross negligence” or “willful misconduct” just like 33 

U.S.C. §§ 2704(c)(1) and 2712(b).42

Gross negligence is less culpable behavior than recklessness or willful misconduct. In Saba 

v. Compagnie Nationale Air France, 78 F.3d 664, 668 (D.C. Cir. 1996) the court instructed 

“[t]here is a continuum that runs from simple negligence to intentional misconduct. 

Recklessness, or reckless disregard, lies between gross negligence and intentional harm.” 

Similarly, after determining that “gross negligence” and “willful misconduct” should be 

interpreted the same under the OPA as under the FWPCA, the court in In re Oil Spill, 21 

F.Supp.3d 657, 734 (E.D. La. 2014) concluded that the “prevailing notion is that gross 

negligence differs from ordinary negligence in terms of degree, and both are different in kind 

 40 See, In re Kuroshima Shipping S.A., 2003 AMC 1681, 1693. See also, Water Quality Insurance Syndicate v. 

United States, 632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(relying on NPFC’s definition of “gross negligence”); 

and Water Quality Insurance Syndicate v. United States, 522 F.Supp.2d 220, 228-29 (D.D.C. 2007)(holding that 

“willful” misconduct under the OPA could also be established by a series of negligent acts that amount to 

recklessness). 

41 See, 1A N. Singer, Statutes and Statutory Construction § 21:14, p. 189-190 (7th ed.2007)(“The disjunctive ‘or’ 

usually, but not always, separates words or phrases in the alternate relationship, indicating that either of the 

separated words or phrases may be employed without the other. The use of the disjunctive usually indicates 

alternatives and requires that those alternatives be treated separately.”).

42 See, In re Oil Spill by Oil Rig Deepwater Horizon, 21 F.Supp.3d 657, 734 (E.D. La. 2014)(“Because only ‘willful 

misconduct’ creates this [guarantor’s] defense, OPA treats ‘willful misconduct’ as distinct from, and more egregious 

than, ‘gross negligence.’”). See also, 2A N. Singer, Statutes and Statutory Construction § 46:6, p. 249-252 (7th 

ed.2007)(“The same words used twice in the same act are presumed to have the same meaning. Likewise, courts do 

not construe different terms within a statute to embody the same meaning. ... In like manner, where the legislature 

has employed a term in one place and excluded it in another, it should not be implied where excluded.”). 
10

from reckless, wanton, and willful misconduct.” One well-respected legal encyclopedia 

describes the distinction between gross negligence and willful misconduct with the following:

A distinction is frequently made between gross negligence and willful, wanton, or 

reckless conduct. While the jurisdictions adopting this distinction consider gross 

negligence substantially and appreciably higher in magnitude than ordinary 

negligence, it is still not equivalent to wanton or willful conduct, and it does 

not encompass reckless behavior. Gross negligence involves a failure to act under 

circumstances that indicates a passive and indifferent attitude toward the welfare of 

others. Negative in nature, it implies an absence of care. Willful misconduct, on the 

other hand, requires an intentional act or an intentional failure to act, either with 

knowledge that serious injury is a probable result, or with a positive and active 

disregard for the consequences. Similarly, willful and wanton negligence is acting 

consciously in disregard of another person’s rights or acting with reckless 

indifference to the consequences, with the defendant aware, from his or her 

knowledge of the existing circumstances and conditions, that his or her conduct 

probably will cause injury to another. Accordingly, willful or wanton negligence 

has been said to involve a greater degree of negligence than gross negligence, 

particularly in the sense that in the former an actual or constructive 

consciousness of the danger involved is an essential ingredient of the act or 

omission.43

 

Because OPA does not define the terms “gross negligence” or “willful misconduct”, they 

should be given their plain and ordinary meaning. “Gross negligence” should be distinguished 

from “willful misconduct” in that “gross negligence” is a lesser standard that does not require 

recklessness and “willful misconduct” generally refers to intentional misconduct that can 

sometimes be established with proof of recklessness.44 A finding of “gross negligence” requires 

proof of a departure from the standard of care beyond what would constitute ordinary negligence 

because simple negligence is established by showing a failure to exercise the degree of care that 

someone of ordinary prudence would exercise in the same circumstance. 45 Gross negligence 

should be determined based upon the same objective reasonable-person standard as ordinary 

negligence, and therefore requires no showing of any mental state or scienter. The facts of each 

 43 57A Am.Jur. Negligence §231 (2nd ed. Supp. 2020)(footnotes omitted)(emphasis added). 44 See, Restatement (Third) of Torts: Phys. & Emotional Harm § 2 Recklessness, cmt. a (2010). See also, W. Page 

Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984)(“’gross negligence’ falls short of a 

reckless disregard”). 45 See generally, United States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005). “Taken at face value, [gross 

negligence] simply means negligence that is especially bad.” Restatement (Third) of Torts (Physical and Emotional 

Harm) § 2 Recklessness, cmt. a (2010). “[M]ost courts consider that ‘gross negligence’ ... differs from ordinary 

negligence only in degree, and not in kind.” W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 

212 (5th ed. 1984). See also, Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489, 495 (1875)(“’Gross negligence’ is a

relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term 

‘ordinary negligence;’ but, after all, it means the absence of the care that was necessary under the 

circumstances...”); Judicial Council of California Civil Jury Instructions (CACI), 425 “Gross Negligence” 

Explained (December 2015)(“Gross negligence is the lack of any care or an extreme departure from what a 

reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be 

grossly negligent by acting or failing to act.”).
11

case must control the degree of care required to prevent an oil spill. As a result, a greater degree 

of care will be required when the facts of a case establish an increased risk.

46

 

When deciding whether “willful misconduct” has been established under the OPA, courts 

have relied upon FWPCA cases analyzing the same issue.47 Relying on FWPCA authorities 

when interpreting the OPA is consistent with Congress’ legislative intent that OPA’s definitions 

should have the same meaning as those same terms have been given under the FWPCA.48 Under 

both OPA and the FWPCA, proof of recklessness will establish “willful misconduct”. For 

example, in Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162-63 (2nd Cir. 1978), the 

court considered whether the vessel owner’s willful misconduct precluded limited liability for an 

oil spill under the FWPCA. In its analysis, the court defined “willful misconduct” as follows:

[A]n act intentionally done, with knowledge that the performance will probably 

result in injury, or done in such a way as to allow an inference of reckless 

disregard of the probably consequences. [citation omitted]. If the harm results 

from an omission, the omission must be intentional, and the actor must either know 

the omission will result in damage or the circumstances surrounding the failure 

to act must allow an implication of a reckless disregard of the probable 

consequences. [citation omitted]. The knowledge required for a finding of willful 

misconduct is that there must be either actual knowledge that the act, or the failure 

to act, is necessary in order to avoid danger, or if there is no actual knowledge, the 

probability of harm must be so great that failure to take the require action 

constitutes recklessness.

49 Id. (emphasis added).

The test for determining “willful misconduct” under the OPA is an objective test as opposed 

to a subjective test. A determination of “willful misconduct” does not always require proof of 

specific intent to harm. Rather, “willful misconduct” can be established with facts showing 

recklessness. These concepts are illustrated in Safeco v. Burr, 551 U.S. 47, 57 (2007) where the 

Court analyzed how a statute should be construed when its standard for liability turns on a 

finding of willfulness. In that case, the Court concluded that “where willfulness is a statutory 

condition to civil liability, we have generally taken it to cover not only knowing violations of a 

standard, but reckless ones as well, [citations omitted]. This construction reflects common law 

usage, which treated actions in ‘reckless disregard’ of the law as ‘willful’ violations.”50

In their Request for Reconsideration, Claimants argue that NPFC incorrectly interprets the 

term “gross negligence” by not requiring proof of recklessness or willful indifference to the 

safety of others. In support of this contention, Claimants rely on the decision in Water Quality 

Ins. Syndicate v. U.S., 225 F.Supp.3d 41 (D.D.C. 2016). After carefully considering that case, 

 46 See e.g., Water Quality Ins. Syndicate v. United States, 632 F.Supp.2d 108, 112 (D. Mass. 2009). See also, W. 

Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 208-09 (“As the danger becomes greater, the 

actor is required to exercise caution commensurate with it.”).

47 See generally, Water Quality Ins. Syndicate v. United States, 522 F.Supp.2d 220, 229-30 (D.D.C. 2007). 48 See, H.R. Conf. Rep. 101-653, reprinted in 1990 U.S.C.C.A.N. 779. 49 Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1162-63 (2nd Cir. 1978)(emphasis added). 50 Safeco v. Burr, 551 U.S. 47, 57 (2007) . See also, Fryer v. A.S.A.P., 658 F.3d 85, 91 (1st Cir. 2011), quoting 

Safeco, 551 U.S. 47, 57 (2007)(“In a series of decisions beginning in 1985, the Supreme Court has repeatedly held 

that, ‘where willfulness is a statutory condition of civil liability, ... [the term] cover[s] not only knowing violations 

of a standard, but reckless ones as well.”). 
12

the NPFC respectfully disagrees with the decision. When defining “gross negligence” under the 

OPA, Water Quality Ins. Syndicate relied on a statutory definition in the Comprehensive 

Environmental Response, Compensation and Liability Act (CERCLA) at 42 U.S.C. § 9607 

(d)(2). That statute provides state and local governments immunity from CERCLA liability 

when responding to releases of hazardous substances from facilities owned by others unless the 

damages resulted from the defendants gross negligence or willful misconduct. The law was 

intended to eliminate a disincentive for governments to respond to emergencies.51 In contrast, 

OPA was intended to expand the scope of a responsible party’s liability and to increase liability 

limits.52 Given the disparity between the purposes for these laws, gross negligence under 42 

U.S.C. § 9607 (d)(2) should not control whether a responsible party can receive reimbursement 

from the OSLTF under the OPA.

Consistent with the above, the standard of care owed by a state or local government 

responding to hazardous substances released from another person’s facility should be very 

different from the standard of care owed by a responsible party seeking limited liability. This 

conclusion is reinforced by the placement of the phrase “[f]or the purpose of the preceding 

sentence” immediately before language defining “gross negligence” in 42 U.S.C. § 9607 (d)(2). 

The wording and placement of this phrase suggests that the definition was meant to only address 

states and local governments relying on the statute to avoid CERCLA liability. Furthermore, 42 

U.S.C. § 9607 (d)(3) makes it clear that nothing in 42 U.S.C. § 9607 (d)(2) should be construed 

as altering a responsible party’s CERCLA liability. If the definition of gross negligence in 42 

U.S.C. § 9607 (d)(2) does not alter a responsible party’s CERCLA liability, then the definition 

should likewise not affect a responsible party’s liability under OPA by controlling whether 

liability will be limited. 

Based upon the above, NPFC concludes that establishing “gross negligence” under the OPA 

does not require proof of recklessness. Instead, proof of recklessness will establish “willful 

misconduct”. NPFC’s interpretation recognizes that “gross negligence” and “willful 

misconduct” are separate terms with distinct meanings. NPFC’s interpretation is consistent with 

judicial interpretations of “willful misconduct” under both the OPA and the FWPCA. “Willful 

misconduct” does not always require specific intent to harm and can be shown with proof of 

recklessness. NPFC’s interpretation is also consistent with the weight of authority holding that 

“gross negligence” is a type of behavior that is less culpable than both recklessness and willful 

misconduct.

IV. ANALYSIS OF CLAIMANTS REQUEST FOR RECONSIDERATION

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

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

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

the facts of the claim. If there is conflicting evidence in the record, the NPFC makes a 

determination as to what evidence is more credible or deserves greater weight, and finds facts 

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

 51 H.R. REP. 99-253, 73, reprinted in 1986 U.S.C.C.A.N. 2835, 2855. 52 Apex Oil Co., Inc. v. United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002)(citing S. Rep. No. 101-94 

(1989); reprinted in 1990 U.S.C.C.A.N. 722.).
13

In addition to its analysis in the original determination, NPFC specifically analyzes and 

addresses the following assertions by the claimants upon reconsideration. 

a. Claimants assert that disagreements over pending weather between Vortex management 

and the Captain of the Tug LAGUNA and VENGEANCE crew were not negligent and 

that Vortex’s response to the forecasted weather was reasonable under the circumstances

The Claimants assert that while the original determination highlights a difference of opinion 

between Captain and Vortex personnel regarding leaving the VENGEANCE at 

anchor given the impending weather forecast, a mere difference of opinion between members of 

a vessel's crew regarding impending weather does not, by itself, establish negligence. Further, 

Captain admitted that his source for the weather forecast was a local TV news station, 

which is not the appropriate or prudent source to obtain weather information for the San 

Francisco Bay.

53 

Claimants further assert that the National Weather Service (NWS) forecast for the night of 

April 6, 2017, did not adequately advise Vortex of the impending weather, and, in fact, severely 

under-forecasted actual conditions in San Francisco Bay. Specifically, the official NWS forecast 

in effect for San Francisco Bay at the time the crew left the barge at 3:30 p.m. on April 6, 2017, 

was a small craft advisory which forecasted sustained winds of 15 to 25 knots and that it wasn’t 

until 5:49 p.m., that the NWS revised its forecast to advise that gale force conditions were 

imminent or occurring and that sustained winds could reach 15 to 25 knots with wind gusts 

reaching 35 to 40 knots. And by 6:58 p.m., sustained winds had reached 30 knots and those 

winds steadily climbed to reach a peak sustained wind speed of nearly 44 knots at 9:30 p.m.54

Lastly, the Claimants state that NWS forecast issued at 2:26 p.m. on April 6, 2017, was the 

latest information available to Vortex at the time it made the decision to leave the barge at 

anchor; and the forecast in effect was not sufficient to advise Vortex of impending gale force 

conditions in San Francisco Bay. They further state that the 2:26 p.m. forecast was a relatively 

benign forecast which downgraded expected conditions. The claimants assert that although the 

NWS upgraded the forecast to a gale warning at 5:49 p.m., that forecast indicated that gale 

conditions were imminent or already occurring. Assuming Vortex was able to mobilize the 

necessary equipment to address this gale warning at 5:49 p.m., it would have taken at least 2 

hours to reach the VENGEANCE and begin the de-anchoring process. At that point, weather 

conditions had already severely deteriorated, wind speeds had already exceeded the 5:49 p.m. 

forecast and it would have been far too dangerous to both life and property to perform a deanchoring operation.55 Given the weather forecast and actions of other contractors on site, 

Vortex's decision to leave the VENGEANCE in place was a reasonable decision at the time in 

consideration of the forecasted weather. Gale conditions are highly rare in San Francisco Bay, 

and Vortex's reliance on the available NWS weather forecast was reasonable and prudent.56

NPFC’s Response

 

53 Claimants letter dated October 30, 2019, page 5. 54 Claimants letter dated October 30, 2019, page 4; Exhibit A pages 10-15. 55 Claimants letter dated October 30, 2019, page 5; Exhibit B pages 7-10. 56 Claimants letter dated October 30, 2019, page 5. 

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

(b)

15

VENGEANCE to shore. However, their concerns over the weather and recommendations to 

bring the barge into shore were dismissed.62

The Claimants were asked who made the decision to leave the VENGEANCE anchored over 

the BART on April 6, 2017. The Claimants stated that it was the decision of Mr. to leave 

the VENGEANCE anchored in place,63 after consultations with “skilled mariners and Vortex 

employees.”64 A review of the Vortex Marine Construction Health, Safety and Environment 

Program Manual (HSE) reveals that upon receipt of deteriorating weather conditions, the Barge 

Superintendent and Barge Captain will follow their procedures for down weather criteria. Those 

procedures state that in accordance with international marine custom and for the purpose of 

indemnity, the decision to take measures for the safety of the barge or vessel must normally be 

issued by the Barge Superintendent and after arriving at the decision, the Barge Superintendent 

will consult with the Barge Captain, taking into account all of the factors presented by the Barge 

Captain in relation to the operations of the barge.65 

The Claimants state that the VENGEANCE did not have a Barge Superintendent on April 6, 

2017, as its operations over the BART did not involve dredging.66 If Mr. was the 

Barge Captain onboard the VENGEANCE on April 6, 2017, he either failed to recall or 

purposely ignored the weather warnings and recommendation of Captain and other 

members of the VENGEANCE all of whom met Mr. s criteria of “skilled mariners and 

Vortex employees.” It is difficult to discern what factors or recommendations were considered 

by Mr. and later presented to Mr. . In the end, it is apparent that Mr. s 

decision to leave the VENGEANCE anchored in place went against the very advice of some of 

skilled mariners, including a licensed Captain, and Vortex employees upon whom he said he 

relied.

Moreover, the Vortex HSE contains procedures that require copies of all weather reports and 

forecasts to be passed to the Barge Superintendent and Barge Captain immediately upon receipt 

and to post those weather reports and forecasts in the control tower, bridge or equivalent on the 

barge. The HSE also states that upon receipt of deteriorating weather conditions, the Barge 

Superintendent and Barge Captain will follow their procedures for down weather criteria. Those 

procedures state that in accordance with international marine custom and for the purpose of 

indemnity, the decision to take measures for the safety of the barge or vessel must normally be 

issued by the Barge Superintendent and after arriving at the decision, the Barge Superintendent 

will consult with the Barge Captain, taking into account all of the factors presented by the Barge 

Captain in relation to the operations of the barge.67 

When reviewing the actions of Vortex personnel specific to weather and down weather 

criteria and procedure for this incident, it is apparent that many of the procedures identified 

 

62 Telephone conversation between Mr. , Vortex diver and NPFC. 63 Claimants letter dated February 26, 2019, response to question 3. 64 Claimants letter dated January 15, 2019, response to question 21. 65 Vortex Marine Construction Health, Safety and Environment Program Manual (revised August 6, 2018), Section 

3.0 and 3.1, page 8.

66 Claimants letter dated February 26, 2019, response to questions 1 and 2. 67 Vortex Marine Construction Health, Safety and Environment Program Manual (revised August 6, 2018), Section 

3.0 and 3.1, page 8.

(b) 

(6) 

(b) (6), 

(b)

(b) (6), 

(b)

(b) (6), 

(b)

(b) (6), 

(b)

(b) 

(6) 

(b) (6), 

(b)

(b) (6), (b)
16

within the Vortex HSE were either ignored or disregarded. Specifically, if Mr. was the 

Barge Captain onboard the VENGEANCE on April 6, 2017, he failed to perform the duties of a 

Barge Captain for weather and down weather criteria as described within the Vortex HSE as he 

relied upon alternate applications to monitor weather reports as crew members were allowed to 

monitor weather conditions by methods of their choice. In addition, Mr. failed to post 

the 2:32 a.m. or 8:59 a.m. SCAs which warned mariners of winds later that evening originating 

from the south and ranging from 20 to 30 knots (23-35 mph) with occasional gusts up to 45 knots 

(52 mph) in the barge’s control tower, bridge or equivalent on the barge which may have better 

informed Mr. when making decisions about the VENGEANCE specific to the weather. 

Conversely, if Mr. was actually not the Barge Captain onboard the VENGEANCE 

on April 6, 2017, then two issues are immediately apparent. The first is that the VENGEANCE 

did not have an assigned Barge Captain that day as required by the HSE. The second is that Mr. 

 exceeded his authority in his discussions with Mr. regarding the movement of 

the VENGEANCE in accordance with the HSE. 

As to the weather conditions on April 6, 2017, the NWS issued small craft advisories (SCAs) 

to the mariners in the San Francisco Bay for areas south of the Bay Bridge in 6-hour intervals 

throughout the day for projected high winds. The first SCA issued at 2:32 a.m. warned mariners 

of winds later that evening originating from the south and ranging from 20 to 30 knots (23 to 35 

mph)68 with occasional gusts up to 45 knots (52 mph). The second SCA was issued at 8:59 a.m. 

and warned mariners of winds later that evening originating from the south and ranging from 20 

to 30 knots (23-35 mph) with occasional gusts up to 45 knots (52 mph).69 Such conditions are 

not rare to the San Francisco Bay as the NWS had previously issued a total of 39 SCAs on 14 

separate dates that warned mariners in the San Francisco Bay area of high winds originating 

from a southerly direction during the months of March and April for calendar years 2015, 2016, 

and 2017.70 

Additionally, as stated above, the Vortex HSE contains detailed procedures about incoming 

weather. When the Claimants were questioned about Vortex’s compliance with their HSE in 

regards to weather and down weather criteria and procedure for this incident, they stated that the 

section of HSE regarding weather procedures “was written at a time when technology and human 

interaction with technology was not as advanced as it was in April 2017”.71 Vortex stated that 

[given the advances since the HSE was written] it became the practice of Vortex and its 

employees to monitor weather reports through cell phone based applications....”72 NPFC 

expresses doubt about the accuracy of this response. The procedures that formed the basis of the 

NPFC questions to Vortex came directly out of Vortex’s HSE in which each page contains a 

revision date of August 6, 2018, which is over a year after the sinking of VENGEANCE.73 On 

Page 2 of the HSE, Vortex’s owner, Mr. signed a statement as to the importance of 

following the guidance in the manual. In it he states, “[t]he management of Vortex embraces its 

 

68 A knot of speed is converted to miles per hour (mph) by multiplying the measurement by 1.15078. 69 Information confirmed by Mr , Senior Meteorologist, Weather Flow, Inc. Weather Flow works with 

CG Sector San Francisco to provide weather information for the region.

70 Spreadsheet of weather data provided by WeatherFlow. 71 Claimants letter dated February 26, 2019, response to question 1. 72 Id. 73 Id. 

(b) (6), 

(b)

(b) (6), 

(b)

(b) (6), 

(b)

(b) (6), 

(b)

(b) (6), 

(b)

(b) 

(6) 

(b) (6), (b) (b) (6), (b)
17

health and safety responsibilities, and agrees to be held accountable for incorporating the 

program contained herein into their operations.”74 While as Vortex admits, it may have become 

the practice of Vortex and its employees to monitor the storm through cell-phone based 

applications, doing so violated the very terms of the company’s Manual to which the owner 

himself agrees to be held accountable. 

b. Claimants assert that the condition of the VENGEANCE was not the cause of the sinking

The Claimants assert that the VENGEANCE was used as a work barge for a project 

reconstructing the tunnel for the BART system and as such, it is not unusual for these work 

barges to suffer some type of damage during transit or during operations and for there to be some 

minor leakage due to small cracks in steel plating. As such, the use of a submersible pump to 

address a small leak is not unusual nor does it affect the fitness or efficiency of the vessel.75

Additionally, general maritime law does not require that Vortex maintain a work barge that is

perfect in all respects but rather a work barge that is reasonably fit for her intended service. The 

use of a small submersible pump to remedy an inflow of a minor amount of water does render a 

vessel unseaworthy. Nor is the use of a pump to treat a "trickle" into a void a negligent act. Most 

vessels take on water in some capacity and there is no indication that the VENGEANCE had 

difficulty making the journey from Vortex's facility to the BART Tunnel nor is there any 

indication that the VENGEANCE was not reasonably fit to withstand the normal, forecasted 

weather conditions on April 6, 2017.76

NPFC’s Response

Contrary to what is being asserted by the Claimants in their request for reconsideration, the 

NPFC’s identification of a trickle of water within starboard void 10-38 was not done in an 

attempt to classify the VENGEANCE as unseaworthy. Rather, the NPFC identified the trickle of 

water into starboard void 10-38 to substantiate the existence of a submersible pump equipped 

with an extension cord that lead out of the void and onto the deck of the barge which prevented 

the closure of starboard hatch 10-38 on April 6, 2017.77 And it now appears that the Claimants, 

who had previously denied the existence of a leak within starboard void 10-38 and the existence 

of a pump to remedy the leak, are portraying the leak and need for a pump to address the leak as 

common practice for a work barge similar to the VENGEANCE. This admission by the 

Claimants substantiates the NPFC’s findings that a pump was in place and the pump’s extension 

cord prevented the closure of starboard hatch 10-38. In further support of these findings, the 

NPFC refers to the post casualty photographs of a blue submersible pump shackled to a ladder 

within starboard void 10-38 with a heavy gauge extension cord extending out of the void and 

onto the deck of the barge;78 pictures of starboard void 10-38 with a heavy gauge extension cord 

 74 Vortex Marine Construction Health, Safety and Environment Program Manual (revised August 6, 2018), page 2. 75 Claimants letter dated October 30, 2019, page 5; Exhibit B, page 11. 76 Claimants letter dated October 30, 2019, pages 6-7. 77 As documented within the NPFC’s initial determination dated April 29, 2019, Vortex employees were aware of a 

trickle of water into starboard void 10-38 but failed to report the leak to Vortex management. The failure of the 

VENGEANCE crew to inform their management of a leak into starboard void 10-38 violates the Vortex Marine 

Construction Health, Safety and Environment Program Manual, which requires all Vortex employees to report any 

material damage affecting the seaworthiness or efficiency of the vessel. 78 Photograph Images 1431 and 1432 of a small blue submersible pump with an orange discharge hose shackled to 

the bulkhead near the ladder in starboard void 10-38 dated July 19, 2017.
18

leading from the void and onto the deck and missing its weathertight deck hatch;

79 and

interviews of response personnel, VENGEANCE crewmembers and salvors who were involved 

in the operation and salvage of the vessel and attest to the absence of weathertight hatches.

80 

Lastly, photographs of the VENGEANCE taken at low tide and during par buckling operations 

documenting several weathertight deck hatches missing from other voids on the aft side of the 

VENGEANCE,81 indicating that weathertight deck hatches other than the weathertight deck 

hatch covering starboard void 10-38 were also missing or not properly secured on April 6, 2017. 

c. Claimants assert that the corrosion identified onboard the VENGEANCE was not 

significant

The Claimants also assert that the NPFC's finding that there was significant corrosion in 

starboard void 10- 38 and adjoining areas is not supported by the evidence. As detailed in an 

expert report provided by the Claimants, the photographs utilized by the NPFC, as well as 

photographs provided by Vortex only show localized corrosion to the bulkheads.82 Photographs 

and ultrasonic measurements taken post-casualty show a lack of any significant corrosion and 

sufficient steel in the barge's hull and bulkhead stiffeners.83 In summary, the Claimants assert 

that there is no evidence to suggest that significant corrosion existed which allowed water to 

migrate through the barge and ultimately sink.84

NPFC’s Response

The Claimants again misconstrue the findings of the NPFC in its original determination. 

Specifically, the NPFC finds that the localized corrosion in watertight bulkheads as identified in 

post casualty photographic evidence85 and acknowledged by the Claimants within their request 

for reconsideration was contributory to the sinking of the VENGEANCE. In making this 

finding, the NPFC relied upon a photograph that documented wastage to a watertight bulkhead 

that separated starboard void 10-38 from the forepeak. This photograph documents a hole at the 

base of the bulkhead separating the starboard void 10-38 and the forepeak that compromised the 

integrity of the void and enabled water to flow freely from the void and into the forepeak.86 The 

NPFC also relied upon a photograph documenting wastage to a watertight bulkhead located 

 

79Photograph Image 1433 and 1438 of a heavy gauge extension cord leading from starboard void 10-38 onto the 

main deck of the VENGEANCE dated July 19, 2017. See also photograph Image 1435 of starboard void 10-38 with 

its hatch missing dated July 19, 2017.

80 Telephone conversations with Warden , California Fish and Wildlife and other individuals. See, 

supra, notes 42, 43, 45, and 46. 81 Photograph of the VENGEANCE partially submerged with a weathertight hatch missing from a void on the port 

aft portion of the barge dated April 17, 2017. See also photograph of the VENGEANCE during par buckling 

operations that show three weathertight deck hatches missing from voids on the port side of barge dated May 7, 

2017. 82 Exhibit C, page 3. 83 Exhibit B, page 13. 84 Claimants letter dated October 30, 2019, page 6. 85 Photograph of corrosion (wastage) on a watertight bulkhead located within the forepeak that separated another 

watertight void within the forepeak of the VENGEANCE dated July 20, 2017. See also, photograph of corrosion 

(wastage) to the watertight bulkhead separating starboard void 10-38 and the forepeak of the VENGEANCE dated 

July 20, 2017. 86 Photograph of corrosion (wastage) to the watertight bulkhead separating starboard void 10-38 and the forepeak of 

the VENGEANCE dated July 20, 2017.

(b) (6), (b)
19

within the forepeak that separated watertight voids within the forepeak. This photograph 

documents a separation of the bulkhead from the deck in a watertight bulkhead separating a void 

within the forepeak that compromised the integrity of the void and enabled water to flow freely 

within the forepeak.87 As a matter of explanation, vessels are designed with watertight 

compartments to create buoyancy and keep the vessel afloat. Removing the watertight integrity 

of a compartment allows for multi-compartment flooding during a casualty and compromises the 

ability of the vessel to remain afloat. To be clear, the NPFC doesn’t contest the results of the 

ultrasonic measurements taken post-casualty documenting sufficient steel in the barge’s hull and 

bulkhead stiffeners but refers instead to the loss of watertight integrity within starboard void 10-

38 and the forepeak due to the localized corrosion as documented in photographic evidence and

acknowledged by the Claimants upon reconsideration. The Claimants were asked if the 

watertight compartments within the VENGEANCE were ever checked and if so, could they 

provide a copy of those inspections. The Claimants responded that before any voyage and again 

upon arrival to their destination, Vortex personnel would inspect all compartments and voids for 

leaks and to check watertight integrity. However, their inspection records were never provided 

to the NPFC.88 The localized corrosion to the watertight bulkhead between starboard void 10-38 

and the forepeak and the localized corrosion to the watertight bulkheads within the forepeak 

should have been observed, documented and repaired by Vortex personnel prior to the casualty 

in an effort to maintain watertight integrity of the VENGEANCE. 

d. Claimants assert that flooding into starboard void 10-38 and adjoining spaces was not 

sufficient to sink the VENGEANCE

The Claimants assert that while the NPFC’s determination indicates that it was “likely” that 

flooding into open void 10-38 spread to other areas which may have caused the sinking, this 

analysis does not take into account the design of the VENGEANCE and its ability to withstand 

such an event.89

NPFC’s Response

The NPFC disagrees and relies upon the post-sinking analyses of the VENGEANCE done by 

the Marine Safety Center (MSC) - Salvage Engineering Response Team (SERT).

On November 12, 2018, MSC provided an evaluation of the sinking of the VENGEANCE, 

considering the barge’s initial condition, most notably initial drafts, list and trim. Additionally, 

their analysis incorporated specific down flooding points (openings in the watertight envelope) 

through which water could enter the hull, and openings in bulkheads providing progressive 

flooding paths between compartments.90 The analysis concluded that, for the range of specified 

initial drafts, trim and list, and with given openings in the hull and between compartments, in 

conjunction with wind-driven waves, initial flooding into Starboard Void 10-38 through the open 

deck access would likely have resulted in progressive flooding into the forepeak. Subsequent 

additional flooding through the unprotected deck opening into the Crew Work Area and 

 87 Photograph of corrosion (wastage) on a watertight bulkhead located within the forepeak that separated another 

watertight void within the forepeak of the VENGEANCE dated July 20, 2017. 88 Claimants letter dated January 15, 2019, pages 4-5. 89 Claimants letter dated May 31, 2019, page 4. 90 USCG Marine Safety Center Analysis dated November 12, 2018, page 1. 
20

progressive flooding to the adjacent voids (Starboard Void 38-62 and Void 62-90) would likely 

have resulted in the barge rolling onto her starboard side and sinking.91

 As additional information specific to the salvage of the VENGEANCE was provided by the 

Claimants or obtained independently, it was noted that MSC’s original evaluation identified two 

main deck openings that served as potential down flooding points, specifically starboard 10-38 

and the crew work area now exposed due to the loss of its covering (doghouse) during the storm. 

However, as the salvage reports documented the removal of the doghouse during salvage 

operations, the NPFC asked the MSC to re-evaluate its initial analysis assuming, this time, that 

the doghouse that covered the crew work area on the VENGEANCE was in place during sinking 

and weathertight; conditions that would have been the most favorable based on the claimants’ 

position.92 The second MSC analysis concluded that even if the doghouse was in place and was 

weathertight, the VENGEANCE still would have sunk as the initial evaluation outlined given the 

weather conditions, and conditions of the barge.93 

e. Claimants assert that anchor roll with water washing onto the deck of the barge caused 

the VENGEANCE to sink

In its reconsideration request, the claimants posit an explanation of how VENGEANCE sank 

on April 6, 2017, based on an expert’s report. The report explained that the ingress of water into 

the VENGEANCE resulted from the barge listing and rolling on its anchor due to unanticipated, 

unusual and severe weather conditions on the night of April 6, 2017.94 The report asserts that the

same storm that sank the VENGEANCE also caused substantial damage to the Bay Area95 and 

that given the fact that the VENGEANCE was only partially submerged on the morning on April 

7, 2017, (which suggested a very slow below-deck water ingress), it is more likely than not that 

the barge was caused to roll on its anchor, which allowed water to enter weathertight but not 

watertight compartments which caused the VENGEANCE to sink.96

NPFC’s Response

The NPFC disagrees and relies upon the post-sinking analyses of the VENGEANCE done by 

the MSC-SERT.

NPFC provided the MSC-SERT the Claimants’ explanation of how the VENGEANCE sank 

on April 6, 2017, and was asked to comment on the validity of its explanation. MSC disagreed 

with the claimant’s position, stating:

that the forces applied from 45 knots of wind from the port side of VENGEANCE 

would only result in small additional heel angles of 0.5 to 1 degree which 

corresponds to a freeboard change of two to six inches. This change in freeboard 

has a negligible effect on the amount of water running up on deck from waves. In 

 91 USCG Marine Safety Center Analysis dated November 12, 2018, page 11. 92 Claimants assert that all hatches onboard the VENGEANCE were weathertight. See Claimant’s letter dated 

October 30, 2019, page 6; Exhibit B, page 13 and Exhibit C page 5. 93 Email from USCG Marine Safety Center to the NPFC dated April 26, 2019. 94 Exhibit B, page 13; Exhibit C, page 5. 95 Exhibit A, page 21. 96 Claimants letter dated October 30, 2019, page 6; Exhibit B, page 14; Exhibit C, page 5.
21

fact, the direction of the wind and wind-driven waves would be the same causing 

the vessel to heel away from the wind and actually increasing freeboard on the 

side encountering wind driven waves. Additionally, weathertight openings 

prevent water from penetrating into the hull as long as the openings are not 

exposed to a static head pressure of water. In all conditions analyzed, the 

minimum freeboard of the VENGEANCE was between 2 to 4.5 feet. While it is 

possible that wind-driven waves could wash over the deck, it is unlikely that any 

significant static head pressure from these waves would be encountered by the 

deck fittings; weathertight fittings should prevent water from entering the hull. 

As such, it is [our] opinion that VENGEANCE would have remained afloat if all 

openings were closed and weathertight while the vessel encountered a 45 knot 

wind.”97

The NPFC also disagrees with the Claimants’ statement that the VENGEANCE was only 

partially submerged on the morning on April 7, 2017, suggesting a very slow ingress of water 

below-decks. Global Diving personnel responded at first light, during low tide, and obtained a 

photograph of the VENGEANCE which showed the port side of the barge exposed 

approximately 2’ above the waterline. Notably, based on the estimated water depths, Global 

personnel determined that the barge was sitting on her starboard side and resting on the 

seafloor.98

V. FINDINGS

The NPFC has carefully analyzed and weighed the materials provided by the Claimants 

along with the information it obtained independently. Based on that information and as discussed 

in detail above, determines the following finding of fact: 

1. Vortex relied upon alternate applications to monitor weather reports which was a 

violation of Vortex’s HSE. 

2. Vortex failed to post the 2:32 a.m. or 8:59 a.m. SCAs in the barge’s control tower, bridge 

or equivalent on the barge which was a violation of Vortex’s HSE. 

3. Vortex ignored the weather warnings and recommendations of Captain and some 

of the members of the VENGEANCE crew, all of whom were “skilled mariners and 

Vortex employees” and should have been relied upon according to Mr. , regarding 

the decision to move or leave the VENGEANCE at anchor.

4. The crew of the VENGEANCE failed to properly secure weathertight deck hatches prior 

to leaving the barge unattended. 

5. The failure of the crew to properly secure the hatches violated the Vortex Marine 

Construction Health, Safety and Environment Program Manual that requires all Vortex 

employees to ensure that all watertight compartments and tanks are secure in the event of 

heavy weather.

6. There was a submersible pump located within starboard void 10-38 that was permanently 

shackled to a ladder within the void and equipped with a heavy duty extension cord that 

extended outside of the void and onto the deck of the VENGEANCE. 

 

97 Email from USCG Marine Safety Center to NPFC dated January 23, 2020. 98 Global Diving Salvage Plan – Par buckling Phase dated April 17, 2017, page 3. 

(b) (6), 

(b)

(b) (6), 

(b)
22

7. The heavy duty extension cord extending from starboard void 10-38 and onto the deck of 

the VENGEANCE prevented the proper closure of the void’s weathertight hatch on April 

6, 2017. 

8. Localized corrosion to the watertight bulkhead between starboard void 10-38 and the 

forepeak and the localized corrosion to the watertight bulkheads within the forepeak 

allowed water to flow freely from starboard void 10-38 and the forepeak. 

9. That given the specifications of the barge and the given openings in the hull and between 

compartments, in conjunction with wind-driven waves, the initial flooding into Starboard 

Void 10-38 through the open deck access would likely have resulted in progressive 

flooding into the forepeak; and that subsequent additional flooding through the 

weathertight doghouse deck opening into the Crew Work Area and progressive flooding 

to the adjacent voids (Starboard Void 38-62 and Void 62-90) would likely have resulted 

in the barge rolling onto her starboard side and sinking. 

10. That the results about the cause of the flooding and sinking of the VENGEANCE are not 

altered even assuming the doghouse was in place and weathertight.

11. The ingress of water into VENGEANCE did not result from the barge listing and rolling 

on its anchor due to unanticipated, unusual and severe weather conditions on the night of 

April 6, 2017. 

Notwithstanding the fact the NPFC was not provided sufficient information to determine 

whether or nor Mr. was actually the Barge Captain on the day of the incident, as stated 

by the claimants and denied by Mr. , it finds in the alternative, the following: 

1. If Mr. was the Barge Captain onboard the VENGEANCE on April 6, 2017, he 

either failed to recall or purposely ignored the weather warnings and recommendation of 

Captain and other members of the VENGEANCE. He also failed to post the 2:32 

a.m. or 8:59 a.m. SCAs which warned mariners of winds later that evening originating 

from the south and ranging from 20 to 30 knots (23-35 mph) with occasional gusts up to 

45 knots (52 mph) in the barge’s control tower, bridge or equivalent on the barge which 

was a violation of Vortex’s HSE. 

2. If Mr. was not the Barge Captain onboard the VENGEANCE on April 6, 2017, 

the VENGEANCE did not have an assigned Barge Captain that day as required by the 

HSE. Additionally, Mr. would have exceeded his authority in his discussions 

with Mr. regarding the movement of the VENGEANCE.

V. CONCLUSION

Perhaps one could argue, that taken individually, each of the errors above amount to no more 

than an act of negligence. However, each of them contributed to the sinking of the barge and as a 

collective, they constitute gross negligence.99 The failure of Vortex and/or its employees to take 

the necessary precautions against the forecasted weather (or to staff their barges with qualified 

personnel); the failure to follow the weather procedures identified within their operating manual; 

and the failure to listen to Vortex skilled mariners and employees who were concerned about the 

 

99 Because the facts of this case establish that the incident was proximately caused by Vortex’s gross negligence and 

OPA does not require proof of recklessness to establish gross negligence, the NPFC does not reach the issue of 

whether Vortex’s misconduct also amounts to recklessness.

(b) (6), 

(b)

(b) (6), 

(b)

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

(b)

(b) (6), 

(b)

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

(6)