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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : B13013-0006 

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 #50005

Claim Manager : 

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 

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 

 

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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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 April 13, 

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. 

For vessels, an accredited marine surveyor appraised the condition of the vessel and provided an 

estimate for restoring the boat to its condition prior to the spill.5 GRS states that the repair 

estimates from seven local repair facilities were used to corroborate the repair estimates. They 

supplied the repair cost estimate, replacement value, and pre- and post-spill values for the 

vessels. They utilized the National Automobiles Dealers Association (NADA) guidelines for 

valuing the vessels. They state that the repair costs equaled the difference between the vessel 

before and after the injury; meaning that the vessel lost value in the amount equal to the repair 

cost. If the vessel was worth less than the repair estimate, the value of the boat was the 

compensation paid. 

For dockside personal property, they calculated a value using a comparative average of prices 

from four different marine suppliers. They assumed the dockside property could not be cleaned 

or repaired. They specifically stated that they didn’t feel it was necessary to make the valuation 

because they state that the difference between the pre and post-incident values in most cases was 

“necessarily equal to the repair costs”6 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.

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 Mr. . Mr. 

sought compensation for damages to his fiberglass vessel and outboard motor; two fenders; two 

nylon slings; three eel traps; one propane igniter; one crab rake; two aluminum ladders; four crab 

traps and a storage box. Based upon the assessment of vessel and dockside personal property 

damage by Mr. , GRS field agent on March 3 and March 9, 2013, the 

RP/Claimants paid Mr. Ponik a total of $1,099.00, which included $350.00 as vessel settlement 

and $749.00 as dockside property settlement. 

For this vessel, the valuation methodology produced a composite estimate of $684.00 for haul 

out and block; bottom painting; and clean, wax and buff; which exceeded the marine surveyor’s 

estimate for repairs. The marine surveyor noted that that the boat was in very, very poor 

condition and had little or no value.7

 Based upon the marine surveyor’s report and assessment of 

the vessel by the GRS adjuster, it was determined that the vessel repairs exceeded the value of 

the vessel and therefore the vessel settlement was based upon the value of the vessel as 

determined by the assessment of Mr. and estimates provided by the marine surveyor.8 

The claimed damage to Mr. outboard motor was also evaluated by Mr. but it was 

unclear if the damage was a result of subsequent use of the vessel by Mr. after the date of 

 

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See survey conducted by Capt. , A.M.S. dated March 4, 2013, supplied with Claimant’s file.

6 See the 05/17/2016 email from 7 See survey conducted by Capt. A.M.S. dated March 4, 2013, supplied with Claimant’s file.

8 See NADA value provided in November 17, 2016 email from .
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the oil spill. Mr. failure of taking precautionary measures to reduce or avoid further 

damage to his outboard motor following the oil spill precluded him from receiving a settlement 

offer for the damage to his outboard motor. 

Mr. was also paid $749.00 for the dockside property which included the replacement of 

the damaged items and applicable sales tax with the exception of the storage box as the damages 

to the storage box didn’t appear to have been a result of the oil spill. 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 “average” during his assessment. When reviewing this 

claim, the NPFC questioned the RP/Claimants rationale for paying full value for dockside 

property that was not new, as the applicable regulations are very clear about allowable 

compensable costs.9 Specific to this claim, the RP/Claimant never attempted to clean or repair 

stained boat fenders, crab traps, eel traps, crab rake or aluminum ladders but argued that repair 

costs were not cost effective and instead provided full replacement value for used equipment.10 

They also did not calculate a value to the dockside property before and after the incident damage 

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 condition11, 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 property as required by the regulation and as such, their 

dockside property costs are not a valid for compensation under OPA. 

The OSLTF may only reimburse the lesser of the cost of repair, replacement value, or the 

difference between the value of the property before and after the damage.12 As calculated and 

paid by the RP/Claimants, the NPFC approves $350.00 as the replacement value of the vessel, 

which was the value of the vessel before the spill but still less than cost of repair or difference in 

value before and after the injury. As such, the OSLTF may compensate the RP/Claimants for the 

amount paid in accordance with the OPA claims regulations.

The NPFC determines that the RP/Claimants should be paid $350.00 for the payment made to 

Mr. for damage to his vessel. 

Claim Supervisor: 

Date of Supervisor’s Review: April 5, 2017

Supervisor Action: Determination Approved. 

Supervisor’s Comments: 

 

9 See May 17, 2016 email from 10 See RP/Claimants submission claim tab 50005. 11 See May 17, 2016 email from . 12 33 C.F.R. §136.217