N08057-078

CLAIM SUMMARY / DETERMINATION FORM

Date : 5/06/2011 

Claim Number : N08057-078 

Claimant : Pacific Basin Shipping HK, LTD. (Agents & Operators) for Pacific 

 Basin IHK, LTD (Charterer)

Type of Claimant : Foreign

Type of Claim : Loss of Profits and Earning Capacity 

Claim Manager :

Amount Requested : $1,101,632.16 

I. FACTS 

A. Oil Pollution Incident:

In the early morning hours of July 23, 2008, at approximately at 01301

, the tank barge DM 

932, an unmanned, non-self propelled, double hull, steel tank barge, bearing official number 

546058, measuring 195 feet in length and 35 feet in breadth2, sank as a result of a collision 

and discharged oil into the Mississippi River, a navigable waterway of the United States. 

Approximately 282,828 gallons of oil3

 were released into the Mississippi River and the 

resulting spill response, coordinated by the FOSC Unified Command (FOSC/UC), initially 

closed the river to vessel traffic and later, when reopened, managed traffic through August 

10, 2008. 

B. RESPONSIBLE PARTY

American Commercial Lines LLC (ACL) owned the DM 932 barge at the time of the 

incident and is a responsible party (RP) under the Oil Pollution Act. On 24 July 2008 the 

NPFC designated ACL as responsible party (RP). 

C. The Claimant and the Claim

This claim is presented by Pacific Basin Shipping (HK) Ltd. as agent and operator for Pacific 

Basin IHX Ltd., Hong Kong (collectively “Pacific Basin”) and represented by Chaffe McCall 

(Chaffe McCall) LLP. Claimant initially asserted in its claim dated March 17, 2008, that it 

suffered a loss of profits or impairment of earning capacity in the amount of $877,233.88. 

Claimant executed two charter parties and asserts that the oil-spill incident caused it to lose 

schedule time and incur additional expenses on both charters. On 13 August 2010 Claimant 

amended its sum certain to $1,101,632.16 to reflect the following: 

1 SITREP-POL ONE dated 23 July 2008. 2 Complaint for Declaratory Judgment – filed 05/20/2009 - Factual Background (Pg 8) – US District Court – Eastern 

District of Louisiana – Civil Action No. 09-3657. 3 House Subcommittee Hearing on DM 932 Oil Spill, dated 9/15/2008

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N08057-078

Table #1 

Item Description Amount Claimed

Reduction in Charter Profits $984,960.00

Increased Berth Fees $77,087.96

Additional Bunkers Consumed $34,427.70

Increased Harbor Fees $866.50

Increased Communication Costs $90.00

Increased Agency Fees $4,200.00

TOTAL LOSS (Claimed) $1,101,632.16

Pacific Basin chartered the Serpentine through a New York Produce Exchange time charter 

with Thoresen Shipping Singapore PTE LTD4 that provided for a “one time charter trip via 

safe port(s)...with an intended cargo of non hazardous/non appendix B/harmless 

cokebreeze...”.5 The charter was dated 9 July 2008 at a daily hire rate of $82,000.00, with 

charterer being responsible for bunkers ($738.00 /MT of IFO and $1,285.00/MT of MDO), 

all taxes and dues on the vessel and/or cargo. 

The Claimant sub-chartered the vessel to Vitol S.A., Geneva pursuant to an Americanized 

Welsh Coal Charter dated 18 June 2008 for a single voyage to transport approximately 

39,750 (+/- 10%) metric tons6 of harmless coke breeze to Ghent, Belgium.7

 The charter 

called out a freight rate of $76.00 per metric ton, with the cargo to be loaded into the vessel 

at the average rate of 15,000 metric tons per weather working day of 24 consecutive hours, 

with Sundays and holidays included, commencing 12 hours after Notice of Readiness (NOR) 

is given by the Master to Charterers (Agents/Shipper or Receiver) after reaching the port. 

The applicable demurrage rate was $85,000.00 per day/pro rata and a dispatch rate of 

$43,500.00 per day/pro rata. 

At 2048 on 22 July 2008, the evening before the oil-spill incident, the Serpentine anchored at 

the Point Celeste Anchorage on the Mississippi River (Mile Marker (MM) 52.0-49.8) to 

begin cleaning her holds in preparation for receiving cargo. At 1245 on 23 July 2008 

Serpentine tendered a Notice of Readiness (NOR) to load devolatised coal and North 

American coke breeze at the United Bulk Terminal (UBT) in Davant, Louisiana (MM 55.4).8

At 1338 on 23 July 2008 the river restrictions put in place by the Coast Guard to minimize 

damage were extended from Mile 90 to Mile 50. This river closure encompassed both the 

UBT and Point Celeste Anchorage and prevented the Serpentine from commencing cargo 

operations or making any maneuvers not expressly authorized by the Coast Guard. 

According to Claimant, the time lost because of the oil spill and consequent movement 

restriction on Serpentine encompasses the time when the NOR was tendered to the time she 

was allowed to sail at 0253 on 8 August 2008.9

1 Claimant’s Additional information submission of 25 May 2010 – via email to from 5 Ibid. Line 28. 6 Americanized Welsh Coal Charter dated 18 June 2008, between Pacific Basin IHX Limited, Hong Kong (Owner) 

and Vitol S.A., Geneva (Charterer)

7 Ibid. Line 11. 8 Claimant’s Submission – dated 26 February 2010 – page 2 9 Ibid.

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N08057-078

poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining 

shorelines or the exclusive economic zone is liable for the removal costs and damages specified 

in subsection (b) of this section that result from such incident. 33 USC 2702(a).

Damages equal to the loss of profits or impairment of earning capacity due to the injury, 

destruction, or loss of real property, personal property, or natural resources, which shall be 

recoverable by any claimant. 33 U.S.C. § 2702(b)(2)(E). 

Congress directed the President to promulgate regulations “for the presentation, filing, 

processing, settlement, and adjudication of claims...” 33 U.S.C. 2713 (e). Those regulations are 

found at 33 CFR Part 136.

The Oil Spill Liability Trust Fund, which is administered by the NPFC, is available to pay claims 

for uncompensated removal costs consistent with the National Contingency Plan and 

uncompensated damages pursuant to 33 U.S.C. § 2712(a)(4) and the OSLTF claims regulations 

at 33 CFR Part 136. 

In general, claims for removal costs or damages must first be presented to the RP per 33 U.S.C. 

2713(a). If the claim is not settled by any person by payment within ninety days, the claimant 

may commence an action in court against the RP or present the claim to the Fund. 33 U.S.C. § 

2713(c).

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).

Each claim must include at least the following, as applicable:

(12) A statement by the claimant that no action has been commenced in court against 

the responsible party or guarantor of the source designated under – 136.305 or, if 

any action has been commenced, a statement identifying the claimant’s attorney 

and the attorney’s address and phone number, the civil action number, and the 

court in which the action is pending. 33 CFR § 105(e)(12)

Each claim must be in writing for a sum certain for compensation for each category of 

uncompensated damages or removal costs (as described in Subpart C of this part) resulting from 

an incident. If at any time during the pendency of a claim against the Fund the claimant receives 

any compensation for the claimed amounts, the claimant shall immediately amend the claim. 33 

CFR § 136.105(b)

Claims for the loss of profits or impairment of earning capacity due to injury to, destruction of, 

or loss of real or personal property or natural resources may be presented to the Fund by a 

claimant sustaining the loss or impairment. The claimant need not be the owner of the damaged 

property or resources to recover for lost profits or income.

“In addition, a claimant must establish the following-

(a) That real or personal property or natural resources have been injured, destroyed, or lost.

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N08057-078

(b) That the claimant’s income was reduced as a consequence or 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)

In addition to 33 CFR 136.105, claims for loss of profits and impairment of earning capacity 

must meet the specific requirements for loss of profits and earning capacity claims in Subpart C, 

33 CFR 136.231, et seq. 233 & 235.

If a claimant is able to establish an entitlement to a loss of profits, then compensation may be 

provided from the OSLTF, but the compensable amount is limited to the actual net reduction or 

loss of earnings and profits suffered. Calculations for the net reductions or losses must clearly 

reflect adjustments for the following: all income resulting from the incident, all income from 

alternative employment or business undertaken, potential income from alternative employment 

or business not undertaken but reasonably available, and saved overhead or normal business 

expenses not incurred as a result of the incident, and State, local, and Federal tax savings. 33 

CFR 136.235(a-e)

IV. CLAIMANT’S ANALYSIS 

The Barge DM 932 oil spill released oil into and caused damage and injury to the Mississippi 

River, a natural resource of the United States. The resulting damage, injury and removal 

response disrupted shipping in and out of the Mississippi River from July 23, 2008 through 

August 10, 2008.

10 SERPENTINE had tendered its Notice of Readiness (NOR)11 at 1245 on 23 

July 2008, while anchored at Point Celeste Anchorage waiting the availability of a load berth. At 

1338 on 23 July 2008 the river restrictions put in place by the Coast Guard to minimize the 

damage caused by the ACL oil spill were extended from Mile 90 to Mile 50. This river closure 

encompassed both the United Bulk Terminal and Point Celeste Anchorage and prevented 

Serpentine from commencing cargo operations or making any maneuvers not expressly 

authorized by the Coast Guard.12 

In its May 21, 2010 letter, claimant discusses the “Recovery of Lost Profit Damages” and its 

quantification of the Additional Expenses claimed – Berth Fees, Bunkers, Harbor Fee, Launch 

Expenses, Customs Fees, Communications and Agents Overtime and Agency Fee On August 

13, 2010 Claimant amends its sum certain to $1,101,632.16.

10 SITREP-POLs 1-20; documenting river closures and traffic management through 10 August 2008. 11 Claimant’s Exhibit B – Port Log / Statement of Facts by General Maritime Transportation Services, Inc. 12 Claimant’s Letter dated 26 February 2010, page 2.

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N08057-078

Claimant, after various e-mail exchanges, modified the amount claimed and valued this 

component as $948.960.00, based on a daily hire rate of $78,925.00 that subtracts the 3.75% 

address commission ($82,000 – 3.75% = $78,985.00)13. Simply stated, Claimant argues that it 

lost profits because it had to pay for 12.48 days of delay at a daily rate of $78,925 for a total of 

$984,960.00. It expected to realize a profit of $1,378,350.00 but instead only netted profits of 

$393,366.00. Thus it asserts that it lost profits of $984,960.00.

Also included in the claim are the following costs:

- Increased Berth Fees $77,087.96

Serpentine was to load a cargo of devolatised coal at the United Bulk Terminal (UBT) in 

Davant, LA, and was charged berthing fees based on her tonnage and the length of her 

stay at the dock. When Serpentine tendered her NOR to the terminal, the estimated 

berthing fee was $21,796.56, based on a $0.36/ton charge. Due to the oil spill, 

Serpentine wasn’t able to berth at UBT until 8 August 2008. On 1 August 2008 the fees 

charged by UBT tripled, with Serpentine being charged $98,084.52 for an increase of 

$77,087.96.

- Additional Bunkers Consumed $34,427.70

Serpentine burns 3.0 MT of IFO fuel per 24-hour period while idle in port. Because the 

vessel was delayed a period of 15 days, 13 hours, 15 minutes, or 15.55 days, Serpentine 

burned 46.65 tons of additional fuel that cost $738.00 per ton and results in an additional 

expense of $34,427.70.14

- Increased Harbor Fees $866.50

Because the oil spill forced Serpentine to remain in port for an additional sixteen (16) 

days, she became responsible for total harbor dues of $3,446.56. The amount claimed is 

the difference between her anticipated dues and the actual dues incurred by her prolonged 

port call.15

- Increased Communication Costs $90.00

This is for two marine satellite calls made from 23-24 July 2008 when the Master 

reported to Pacific Basin the predicament following the 23 July oil spill.16

- Increased Agency Fees $4,200.00

As a result of the oil spill, Serpentine’s call in New Orleans lasted not five (5) but twentyone (21) days. In light of the extraordinary circumstances, its agent, General Maritime 

Transportation Services, charged for the additional sixteen (16) days at a discounted daily 

rate (25% off); 16 days x $350/day x 0.75 (75%) = $4,200.00.17

In summary Claimant itemizes its loss of profits and increased expenditures as follows: 

13 Claimant’s Letter dated 21 May 2010, page 6. 14 Claimant’s Letter dated 21 May 2010, page 7. 15 Ibid. 16 Ibid. Page 8. 17 Ibid.

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N08057-078

LA. To perform the contract, Pacific Basin chartered21 the Serpentine from Thoresen Shipping 

Singapore PTE LTD (Thoresen) for a single trip at a daily hire rate of $82,000.00, which is 

reduced to $78,925.00 after deducting the address commission (3.75%).

The NPFC confirmed that Serpentine was delayed due to the oil-spill incident for a period that 

totaled 374 hours and 8 minutes (Start: 7/23/2008 @ 12:45 – End: 08/08/2008 @ 02:53 hours), 

which when converted to days totals 15.588889 days. After subtracting the time claimant saved 

(3.88 days)22 the net delay that was confirmed by the NPFC is 11.708889 days. In accordance 

with the contract with Thoresen, Pacific Basin paid a fixed daily rate per day pro rata and when it 

settled the contract for the voyage, it paid $1,196,920.55. This amount is reflected in the Hire 

Statement (1st)

23 bottom line.

As a result of this voyage, Pacific Basin billed and received $3,323,062.23, which reflects the 

full amount that it was due from its customer, Vitol, S.A, after delivering 43,724.503 metric 

tons.

24 The contract25 stipulated that Vitol was to pay Pacific Basin a fixed price of $76.00 per 

metric ton delivered to Ghent, Belgium. 

The oil-spill delays Pacific Basin’s vessel, M/V Serpentine, experienced were not offset by the 

fees it collected from its customer Vitol, as the contract governing the transaction was for a firmfixed price. A review of the contract26 did not reveal a mechanism or method for Pacific Basin 

to offset the additional costs it experienced. 

Having established that the oil spill incident affected Pacific Basin’s lost profits by increasing its 

expenses and consequently its profits, the NPFC proceeds with the adjudication of the individual 

items claimed.

1. Reduction in Charter Profits

• This item refers to the additional hire that claimant had to incur for the oil 

spill. As stated above, Serpentine incurred 15.58889 days of delay, which 

were partially mitigated by claimant to net a total delay of 11.70889 days. 

By multiplying the net total delay by the net27 hire rate of $78,925.00, the 

NPFC arrives at:

11.70889 days x $78,925.00/day = $924,124.14

2. Increased Berth Fees

• This item refers to the additional fees that claimant had to incur when 

calling at the United Bulk Terminal (UBT). The additional fees stem from 

a rate change (increase) that was effective 1 August 2008, and would have 

been avoided, but for the oil spill. 

21 Time Charter – New York Produce Exchange Form – dated 9 July 2008 between Thoresen Shipping Singapore 

PTE Ltd and Pacific Basin IHX Ltd.

22 Claimant’s letter dated 21 May 2010. Page 6 23 Hanjin Shipping Hire Statement (Final) to Pacific Basin IHC Limited - dated 13th April 2009. 24 This amount includes $41,538.28 in Broker’s commission and $84,553.77 in Dispatch earned. 25 Americanized Welsh Coal Charter dated 18 June 2008, between Pacific Basin IHX Limited, Hong Kong (Owner) 

and Vitol S.A., Geneva (Charterer)

26 Ibid. 27 After deducting the address commission of 3.75%.

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N08057-078

• Prior to August 1st , the fees to be charged would have been as follows:

$0.36 x 30,273 GRT28 x 3 prorated days = $32,694.84.

• On August 1st when the rate increase became effective, the rate charged 

changed from a uniform rate across the board, to one that was based on an 

sliding scale that started at $0.36 per gross ton for the first 39,000 tons, 

and moved up to $1.08 after it reached 90,000 tons. Based on this, the 

charge should have been as follows: $1.08 x 30,273 GRT29 x 3 prorated 

days = $98,084.52. This figure matches the invoice from UBT.

To arrive at the compensable amount, due to the increased expense that 

resulted from the oil spill, the estimated charge is subtracted from the billed 

amount; $98,084.52 - $32,694.84 = $65,389.68

3. Additional Bunkers Consumed

This item refers to the additional bunkers consumed and which claimant had to incur 

during the time the vessel was prevented by the oil spill from calling at the United 

Bulk Terminal (UBT). As stated above, the vessel was delayed for a total of 

15.588889 days. During that time it burned IFO fuel, which costs $738.00 per ton 

and is consumed at a rate of 3.0 MT per 24-hour period. Based on this consumption 

rate and the time delayed, the oil spill caused in additional fuel expenses. 15.588889 

days x 3.0 (MT/Day) x $738.00 (per Ton) = $34,513.80

4. Increased Harbor Fees

This item refers to the additional fees that Serpentine incurred, due to the oil spill, and 

involved harbor fees ($825.00.50) and security charges ($41.25) when its call to New 

Orleans, which was to last four (4) days was extended by an additional sixteen (15.

588889 days) in port.30 General Maritime Transportation’s (GMT) invoice to Pacific 

Basin for this particular item shows a Proforma and a Final amount, with these being 

$2,835.00 and $3,346.56 respectively. The latter matches the Plaquemines Port, 

Harbor & Terminal District.31 The first five days are included in the standard fee 

with the invoice showing that the extra days due to the oils spill, 11 days, are charged 

$75.00 day for $825.00. The security fee is based on 5% of this amount $41.25. The 

calculations match the NPFC calculation of the compensable amount for this item: 

$825.00 + $41.25 = $866.25

5. Increased Communication Costs

Claimant states that the claimed additional communication costs, $90.00, are 

attributed to two marine satellite calls made by the Serpentine’s Master between July 

23-24, to report the vessel’s predicament after the July 23 oil spill. Claimant was 

asked for evidence to prove this item and replied that the only information available 

was this statement32 and the MARISAT Telex Log33. For claimant failing to meet its 

burden of proving this portion of the claim, there is no compensation for this item.

28 GRT is a measure of volume and is a register tonne.

29 GRT is a measure of volume and is a register tonne. 30 Chafee McCall Letter dated 21 May 2010. 31 Plaquemines Port, Harbor & Terminal District 32 Chafee McCall Letter dated 21 May 2010. 33 Claimants Exhibit F

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N08057-078

6. Agency Fee

This item refers to the additional expenses incurred by Serpentine, when its call to 

New Orleans, initially estimated to last no more than 5 days, was extended by an 

additional sixteen (16) days. The period was billed at $262.5034 per day. The 

compensable amount is 16 days x $262.50 = $4,200.00. 

The following table summarizes the determination of all the items above:

Item Description Amount 

Claimed Determined Denied

Reduction in Charter Profits $984,960.00 $924,124.14 $60,835.86

Increased Berth Fees $77,087.96 $65,389.68 $11,698.28

Additional Bunkers 

Consumed

$34,427.70 $34,513.80 ($86.10)

Increased Harbor Fees $866.50 $866.25 $0.25

Increased Communication 

Costs

$90.00 $0.00 $90.00

Increased Agency Fees $4,200.00 $4,200.00 $0.00

TOTALS $1,101,632.16 $1,029,093.87 $72,538.29

DETERMINED AMOUNT: $1,029,093.87

Claim Supervisor: 

Date of Supervisor’s Review: 

Supervisor Action: 

Supervisor’s Comments: 

34 Daily Rate is $350.00, but was discounted by 25%.

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