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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : B13013-0052 

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

 York/The American Steamship Owners Mutual Protection and Indemnity 

 Association

Type of Claimant : Corporate 

Type of Claim : Third Party Property damage claim #50089 Flag Container 

 Services c/o 

Claim Manager : 

Amount Requested: $5,467.13 

INCIDENT DETAILS

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

BOSTON 30.3

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

investigation. 

THE CLAIMANTS AND THE CLAIM:

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

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

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

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

the BOSTON 30. On December 11, 2015, the RP/Claimants submitted to the Oil Spill Liability 

Trust Fund (OSLTF or the Fund) a claim based on an assertion of entitlement to an act of God 

 

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

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

See tug logs submitted with claim dated December 9, 2015. 3 See Clean Waters of New York Invoice 01419 dated December 31, 2012.
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and sole fault of a third party defense or, in the alternative, entitlement to their applicable limit of 

liability. On March 23, 2017, the NPFC determined that the RP/Claimants were entitled to their 

limit of liability, but not entitled to either of the asserted defenses. Therefore, RP/Claimants will 

be reimbursed compensable costs exceeding their applicable liability limit and incurred as a 

result of the oil-pollution incident under the Oil Pollution Act of 1990 (OPA).

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The RP/Claimants seek reimbursement for amounts paid to third party claimants for property 

damages sustained. This determination pertains to the property damage claim payment made by 

the RP/Claimants to the Claimant listed in the Determination section below.

The RP/Claimants and the third party claimant named below executed a release dated March 25, 

2013, whereby the third party damage claimant acknowledged receipt of compensation and 

released the RP/Claimants from all further liability. Thus, in compensating the third party 

damage claimant for his losses due to the incident, the RP/Claimants are subrogated to the claim 

for damages and are eligible to present this claim for damages to the Fund for reimbursement, 

following the same standards as required for any third party damage claimant.

APPLICABLE LAW:

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

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

described in Section 2702(b) of OPA 90. 

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.

33 USC 2713 allows a responsible party to submit a claim directly to the Oil Spill Liability Trust 

Fund.

Under 33 USC 2708, a responsible party who is entitled to a limitation of liability may assert a 

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

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

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

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

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

section 2704 of this title.

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

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

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

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

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

33 U.S.C. §2701(5).

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

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

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

$3,200.00 per gross ton ($5,228,800.00) or $6,408,000.00 whichever is greater. 33 C.F.R. 138.230(a)(3).
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Damage claims must be presented within 3 years after the date on which the injury and its 

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

care. 33 U.S.C. §2712(h)(2).

Under 33 CFR 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing all 

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

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

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

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

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

136.105(e)(8).

The pertinent provisions of the regulations relating to property damage claims follow:

33 CFR §136.213 Authorized claimants.

(a) A claim for injury to, or economic losses resulting from the destruction of, real or 

personal property may be presented only by a claimant either owning or leasing the property.

(b) Any claim for loss of profits or impairment of earning capacity due to injury to, 

destruction of, or loss of real or personal property must be included as subpart of the claim under 

this section and must include the proof required under §136.233.

33 CFR §136.215 Proof.

(a) In addition to the requirements of subparts A and B of this part, a claimant must 

establish—

(1) An ownership or leasehold interest in the property;

(2) That the property was injured or destroyed;

(3) The cost of repair or replacement; and

(4) The value of the property both before and after injury occurred.

33 CFR §136.217 Compensation allowable.

(a) The amount of compensation allowable for damaged property is the lesser of—

(1) Actual or estimated net cost of repairs necessary to restore the property to substantially 

the same condition which existed immediately before the damage;

(2) The difference between value of the property before and after the damage; or

(3) The replacement value.

DETERMINATION:

The RP/Claimants argue that they are entitled to reimbursement of amounts paid for damages to 

boats and other personal property of third party claimants. They provided individual files 

records for each of the claims paid. The files contain information reported by the damage 

adjuster, photographs of the damaged property, the marine surveyor’s estimate, statement of loss 

by each third party claimant, proof of identity and ownership, details of the amount paid and 

proof of payment. 
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The RP/Claimants hired Global Risk Solutions (GRS) to assess the damages and settle the 

damage claims. The GRS adjusters personally visited local marinas to inspect each claimant’s 

property. After visually inspecting the claimed damaged property, the GRS representatives 

valued each claimant’s damages using a standardized methodology for boats and separate 

standardized methodology for dockside personal property. 

The RP/Claimants calculated a replacement value for dockside personal property using a 

comparative average of prices from three cordage companies. They determined that the dockside 

property could not be cleaned or repaired5

 and made no attempt to do so. GRS concluded that 

these items were worthless post incident. They also specifically stated that they didn’t feel it was 

necessary to determine the value of the property before and after the injury occurred because the 

difference between the pre and post-incident values was reasonably approximated by the repair 

costs and was not practical or cost-effective to evaluate. They state that they factored in the age 

and condition of the property when settling the claims.6

The RP/Claimants argue that their methodology is sufficient to satisfy the requirements set forth 

in 33 CFR §136.215 of the regulations. 

This determination applies to the property damage claim of Flag Container Services c/o Mr. 

. Mr. sought compensation for damages to thirteen boat lines and one 

rubber hose cover. Based upon the assessment of dockside personal property damage by Mr. 

, GRS field agent, on January 4, 2013, and January 28, 2013, the RP/Claimants 

paid Mr. a total of $5,467.13 as the dockside property settlement. 

Specifically, Mr. was paid $5,467.13 for the dockside property, which included the “as 

new” replacement of thirteen boat lines (1 Line: 200’ x 1 5/8”), (7 Lines: 75’ x 1 5/8”), (5 Lines: 

200’ x 2”), and one rubber hose cover (Cover: 40’ x 6”). RP/Claimants state that their settlement 

was based upon a comparable average and condition of the dockside property at the time of the 

assessment but replaced the property “as new” even though Mr. assessed the general 

condition of the property as “good” during his assessment.7

 When reviewing this claim, the 

NPFC questioned the RP/Claimant’s rationale for paying full value for dockside property which 

was not new, as the applicable regulations are very clear about allowable compensable costs.8 

RP/Claimants did not prove their conclusion that the property was “worthless” post incident. 

Specific to this claim, the RP/Claimants never attempted to clean or repair the boat lines or 

rubber hose cover, but argued that repair costs were not cost effective and instead provided full 

replacement value for used equipment.9

 They also did not calculate a value for the dockside 

property before and after the incident citing that in most cases, those costs were equal to the 

repair costs and were not practical nor cost effective to evaluate. Lastly, they argue that their 

dockside property valuations accounted for age and condition,10 but did not provide the 

calculations showing any adjustments for age and condition when determining the payment 

amounts. The RP/Claimants did not provide the proper valuations of the dockside personal 

 

5 See May 17, 2016 email from . 6 See May 17, 2016 email from . 7 See vessel and dockside valuations spreadsheet 2.0 submitted by Claimant on November 9, 2016.

8 See May 17, 2016 email from . 9 See RP/Claimants submission claim tab 50089. 10 See May 17, 2016 email from .
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property as required by the regulations and as such, their dockside property costs are not OPA 

compensable. 

The OSLTF may only reimburse the lesser of the cost of repair (in this case cleaning), 

replacement value, or the difference between the depreciated value of the property before and the 

value after the damage.11 As the RP/Claimants failed to provide both a cost for cleaning and the 

depreciated value of the dockside property before and value after the spill, the NPFC cannot 

confirm if the replacement value of the boat lines or rubber hose cover were appropriate for 

reimbursement. For this reason and for other reasons as stated above, this claim is denied. 

Claim Supervisor: 

Date of Supervisor’s Review: 4/17/2017

Supervisor Action: Denial Approved

Supervisor’s Comments:

 

11 33 C.F.R. §136.217