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 22 December 2011, Henry Vicknair, (the Claimant), presented an Optional Oil Spill Liability 

Trust Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking $15,000.00 

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

Horizon oil spill.

The Claimant is employed by Fire Boss of LA, Inc. (Fire Boss),1 based in New Iberia, LA, as a 

repairman for equipment used for rigs and drilling in the Gulf of Mexico.

2

 The Claimant asserted

that he lost overtime hours and commission payments due to the Deepwater Horizon oil spill.

3

 The 

Claimant explained that, once the spill occurred, the rigs couldn’t work and his hours were cut.4

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 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).

1 Copies of various 2010 paystubs from Fire Boss of LA, Inc. 2 Letter of claim explanation, dated 9 December 2011.

3 Optional OSTLF Claim Form, dated 9 December 2011; Letter of claim explanation, dated 9 December 2011. 4 Optional OSTLF Claim Form, dated 9 December 2011.

Claim Number N10036-1622

Claimant Henry Vicknair

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $15,000.00

 
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:

- Optional OSLTF Claim Form, dated 09 December 2011;

- Letter of claim explanation, dated 09 December 2011;

- Denial letter from the GCCF for Emergency Advance Payment, dated 18 November 2011;

- Copies of various 2010 paystubs from Fire Boss of LA, Inc.; and

- Copies of various commission statements from Fire Boss of LA, Inc. for 2009 and 2010. 
Prior to presenting this Claim to the NPFC, the Claimant filed an Emergency Advance Payment 

(EAP) claim with the GCCF for loss of earnings and was assigned Claimant ID # 7204111.

5

 The 

EAP claim was denied by the GCCF on 18 November 2011.6

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

Claimant’s GCCF claim regarding loss of earnings is the same as the subject matter of his claim 

before the NPFC, i.e., that due to the Deepwater Horizon oil spill, the Claimant experienced reduced 

earnings at Fire Safe. The NPFC deems that the Claimant’s GCCF claim was both properly 

presented to the RP and properly presented to the NPFC. Accordingly, this Claim Summary 

Determination for NPFC claim N10036-1622 considers and addresses the earnings claimed to the 

extent that the damages were presented to the responsible party; specifically, GCCF Claim # 

7204111 (EAP). 

NPFC Determination

The claim is denied. 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.

This claim is denied because the Claimant failed to prove he suffered a financial loss due to the 

Deepwater Horizon oil spill. In his submission to the NPFC, the Claimant stated that he experienced 

a reduction in hours and commissions at Fire Safe due to the Deepwater Horizon oil spill.

7

 The 

NPFC contacted Fire Safe to verify the Claimant’s assertions and to obtain information linking the 

Claimant’s alleged loss to the Deepwater Horizon oil spill. The NPFC was informed by Fire Safe 

that, the Claimant did experience a loss; however, the cause of the loss was the moratorium on 

drilling.8

 Consequently, the Claimant failed to prove that his alleged loss was a result of the 

Deepwater Horizon oil spill as opposed to other factors such as permitting delays and the drilling 

moratorium, which are considered intervening causes and thus not a consequence of the oil spill.

This claim is denied because 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.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 1/12/12

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

5 Denial letter from the GCCF for Emergency Advance Payment, dated 18 November 2011. 6 Denial letter from the GCCF for Emergency Advance Payment, dated 18 November 2011. 7 Letter of claim explanation, dated 09 December 2012. 

8 PHONECON between the NPFC and Fire Boss on 11 January 2012.