CLAIM SUMMARY/DETERMINATION FORM

FACTS

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

was discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT

On 25 January 2012, Larry Powell (the Claimant), presented an optional Oil Spill Liability Trust 

Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking $138,774.00 

in loss of profits and impairment of earnings capacity damages that allegedly resulted from the 

Deepwater Horizon oil spill.

The Claimant is a travelling seafood vendor for S & L Seafood in Lafayette, Louisiana.1

 The 

Claimant asserted that, due to the Deepwater Horizon oil spill, he was unable to obtain seafood 

of good quality at an affordable price.2 The Claimant asserted that he would have made 

$54,500.00 in 2010 had it not been for the Deepwater Horizon oil spill.3

APPLICABLE LAW

The Oil Pollution Act of 1990 (OPA) provides that each responsible party for a vessel or facility 

from which oil is discharged into or upon the navigable waters or adjoining shorelines or 

exclusive economic zone is liable for removal costs and damages. 33 U.S.C. § 2702(a). 

Damages include 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).

The OSLTF, which is administered by the NPFC, is available to pay claims for uncompensated 

damages pursuant to 33 U.S.C. § 2712(a)(4) and § 2713 and the OSLTF claims adjudication 

regulations at 33 C.F.R. Part 136. With certain exceptions a claim must first be presented to the 

responsible party. 33 U.S.C. § 2713(a). If the claim is either denied or not settled by any person 

1 GCCF Full Review Final Payment Claim Form, dated 14 June 2011.

2 Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form, dated 26 January 2012.

3 GCCF Full Review Final Payment Claim Form, dated 14 June 2011.

Claim Number N10036-1652

Claimant Larry Powell 

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $138,774.00

 
by payment within 90 days after the date on which it was presented, the claimant may elect to 

commence an action in court or present the claim to the OSLTF. 33 U.S.C. § 2713(c).

Pursuant to the claims regulations, 33 C.F.R. § 136.233, a claimant must establish the following 

to prove loss of profits or impairment of earning capacity:

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

(b) That the claimant’s income was reduced as a consequence of injury to, destruction of, or 

loss of 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 received 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.

Under 33 U.S.C. § 2702(b)(2)(E) and 33 C.F.R. Part 136, a claimant must prove that any loss of 

income was due to injury, destruction or loss of real or personal property or of a natural resource 

as a result of a discharge or substantial threat of a discharge of oil. Under 33 C.F.R. § 136.105(a) 

and § 136.105(e)(6), the claimant bears the burden of providing to the NPFC all evidence, 

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

Under 33 C.F.R. § 136.235, the amount of compensation allowable for a claim involving loss of 

profits or impairment of earning capacity is limited to the actual net reduction or loss of earnings 

or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments for:

(a) All income resulting from the incident;

(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertaken, but reasonably 

available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and

(e) State, local, and Federal taxes.

DETERMINATION OF LOSS

The Claimant’s Submission to the OSLTF

In support of his claim, the Claimant presented the following documentation to the NPFC: 

- Fax clarifying the Claimant’s sum certain, dated 25 January 2012;

- Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form, dated 26 January 2012; 

- Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form, received 17 January 2012;

- GCCF Full Review Final Payment Claim Form, dated 14 June 2011; 

- 2009 Federal Tax Return Transcript, (without Schedule C information); 

- Printout from The New York Times online entitled “Tracking the Oil Spill in the Gulf”; 
- NPFC Incident Report and Transmittal; 

- Retail Food Permit Renewal Notice from Louisiana Department of Health, dated 4 May 

2011; 

- Scale License from Louisiana Department of Agriculture, dated 16 January 2009; 

- Copy of application for the USDA Supplemental Nutrition Assistance Program; 

- Receipts for Food Stamp Purchases from Michaels Seafood;

- Copy of Application for Permit to Louisiana Department of Health and Hospitals, dated 

21 July 2009; 

- Blank Trip Ticket from S & L Seafood, dated 21 January 2011; 

- Retail Food Inspection Report, dated 08 July 2010; 

- Offline Food Benefit Vouchers; 

- Various Receipts from Gulf South Inc.; 

- Flyer with shrimp prices entitled “Fresh Louisiana Shrimp”; 

- Receipt from Unlimited Shrimp #1; 

- Letter from S & L Seafood to the GCCF, dated 31 October 2010; 

- Blank Louisiana Dealer’s tickets; 

- Printout of online article entitled “Troubled Waters”; 

- Letter from S & L Seafood, A & P Seafood, and Unlimited Shrimp#1 to “Seafood 

Vendors and Creditors, et al,” dated 18 August 2011; and 

- Letter from S & L Seafood to GCCF, dated 27 June 2011. 

 

Prior to presenting his claim to the NPFC, and before the formation of the GCCF, the Claimant 

received $15,500.00 from BP in damages.4

 After the formation of the GCCF, the Claimant filed 

three claims for loss of profits and earnings to the GCCF, all under Claimant ID # 1058518. 

Claim # 116079 was an Emergency Advance Payment (EAP) claim filed on 01 October 2010 in 

the amount of $18,000.00, Claim # 9394154 was an Interim II (ICQ22011) filed on 02 June 2011 

in the amount of $120,000.00, and Claim # 9399659 was a Full Review Final (FRF) claim filed 

on 14 June 2011 in the amount of $109,000.00.5

 These claims were all denied by the GCCF.6 

Based upon the evidence provided by the Claimant, it appears that the subject matter for the 

Claimant’s GCCF claims is the same as the subject matter of the claim before the NPFC, i.e., 

that due to the Deepwater Horizon oil spill, the Claimant’s lost earnings as a seafood salesman. 

The NPFC deems that the Claimant’s GCCF claims were properly presented to the responsible 

party and properly presented to the NPFC up to $120,000.00. Accordingly, this Claim Summary 

Determination for NPFC Claim N10036-1652 considers and addresses the earnings claimed in 

the claims presented to the responsible party, specifically; GCCF Claim #’s 116079 (EAP), 

9394154 (ICQ22011) and 9399659 (FRF). 

NPFC Determination

Under 33 C.F.R. § 136.105(a) and 136.105(e)(6), the claimant bears the burden of providing to 

the NPFC all evidence, information and documentation deemed necessary by the Director, 

NPFC, to support the claim. The NPFC considered all documentation presented by the Claimant.

4 Report from the BP Settlement Transition Program, dated 01 May 2012. 

5 Report from the BP Settlement Transition Program, dated 01 May 2012.

6 Report from the BP Settlement Transition Program, dated 01 May 2012.

 
This claim is denied because (1) the Claimant failed to make proper presentment of some of the 

damages claimed to the NPFC pursuant to 33 C.F.R. § 136.103(a), (2) the Claimant failed to 

prove the alleged loss was due to the Deepwater Horizon oil spill; and (3) the Claimant failed to 

provide 

Failure to Make Proper Presentment

Under 33 C.F.R. § 136.103(a), all claims for removal costs or damages must be presented first to 

the responsible party (RP). The Claimant presented an EAP claim for $18,000.00, an Interim 2 

claim for $120,000.00, and a Full Review Final claim for $109,000.000.7

 The Claimant then 

presented a loss of profits and impairment of earnings capacity claim to the NPFC for 

$138,774.00. Any claimed amount of damages exceeding $120,000.00 was not properly 

presented to the RP/GCCF pursuant to 33 C.F.R. § 136.103(a) and is therefore denied. 

Failure to Prove Causation 

The Claimant asserted that he lost earnings as a travelling seafood vendor.8

 However, despite 

the large amount of information submitted, including assorted tax information, the Claimant 

failed to provide any paystubs or other financial documentation evidencing any earnings from 

the sale of seafood. On 23 March 2012, the NPFC requested that the Claimant provide 

additional information to document his alleged loss and establish a connection between his 

alleged loss and the Deepwater Horizon oil spill. The NPFC requested that the Claimant 

provide, among other things, full and complete tax returns from 2008 through 2010, paystubs 

from S & L Seafood for 2008 through 2010, and sales records for seafood sales from S & L 

Seafood.9 To date, the NPFC has not received any additional information from the Claimant. 

Consequently, the Claimant failed to prove he experienced a financial loss due to the Deepwater 

Horizon oil spill. 

This claim is denied because (1) the Claimant failed to make proper presentment of some of the 

damages were not properly presented to the responsible party and (2) the Claimant failed to meet 

his burden to demonstrate that the alleged loss is due to the injury, destruction or loss of property 

or natural resources as a result of a discharge or substantial threat of a discharge of oil, and (3) 

the Claimant failed to provide the NPFC with all evidence, information and documentation 

deemed necessary under 33 C.F.R. § 136.105(a) and 136.105(e)(6).

Claims Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: May 11, 2012

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

7 Report from the BP Settlement Transition Program, dated 01 May 2012. 8 GCCF Full Review Final Payment Claim Form, dated 14 June 2011.

9 Letter from the NPFC to the Claimant, dated 23 March 2012.