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CLAIM SUMMARY / DETERMINATION FORM

Claim Number : B13013-0048 

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 50066 

Claim Manager : 

Amount Requested: $8,315.66 

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 

 

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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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 June 21, 

2014, 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 National Automobile 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, four boat fenders and five 

boat lines. Based upon the assessment of vessel and dockside personal property damage by Mr. 

, a GRS field agent, on January 13, 2013 and March 02, 2013, the RP/Claimants 

paid Mr. a total of $8,315.66, which included $8,039.26 as vessel settlement and 

$276.40 as dockside property settlement for the replacement of three boat fenders (1 Fender: 10” 

x 26”), (1 Fender: 6.5” x 23”), (1 Fender: 15” Round) and three boat lines (3 Lines: 20’ x 1⁄2”) 

that collectively totaled sixty feet in length.

 

For this vessel, the valuation methodology produced a composite estimate of $6,309.00 for 

hauling and blocking, decal replacement, hull painting, bottom painting and cleaning, waxing 

and buffing; which was more than the marine surveyor’s estimate for repairs. Specifically, the 

marine surveyor assessed the vessel and estimated the repair cost to be $1,850.00, which 

included recommendations for the removal of oil staining from the starboard side, portside and 

transom of the vessel, lifting and blocking, sanding and bottom painting.7

 GRS used his repair 

recommendation, but valued the repair based on their composite estimate methodology. The 

NPFC accepts the use of the marine surveyor for obtaining an opinion as to the condition of the 

boat and recommendation for repair. Further, the fact that GRS used their own methodology for 

 

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See survey conducted by Capt. , A.M.S. dated February 20, 2013, supplied with Claimant’s file. 6 See the 05/17/2016 email from . 7 See survey conducted by Capt. , A.M.S. dated February 20, 2013, supplied with Claimant’s file.
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calculating repair costs with a contemporaneous objective composite estimate rather than using 

the marine surveyor’s estimate is more reliable because it is backed up by documentation of 

actual prices for the work in that area. 

The RP/Claimants disregarded the costs supported by the GRS composite estimate, and accepted 

and paid $8,039.268 in repair costs based on a January 18, 2014, auto body shop estimate 

obtained and provided by Mr. , but they did not explain or justify their decision. The 

RP/Claimants provided no explanation for why this second estimate was prepared.9 Mr. 

 estimate does not provide sufficient details of the work performed for the NPFC to 

be able to determine which costs are for oil-stain repairs or other work. Although GRS reduced 

the estimate for fiberglass repair costs, their 1/3 reduction for fiberglass and epoxy materials was 

arbitrary. Further, there is no justification for costs such as the tent and “R/I”. The repairs and 

costs recommended by the second estimate are not supported by the composite estimate. For 

these reasons, the NPFC finds that the GRS composite estimate is the more appropriate repair 

valuation. 

 The RP/Claimants state that the value of the boat before the incident was $33,950.0010 and 

because of their repair estimate of $8,039.26 the value after the incident was $25,910.74,11

resulting in the $8,039.2612 difference in value. The RP/Claimants based their post-incident 

valuation on the second estimate. NPFC accepts the pre-incident valuation of the boat of 

$33,950.00, as this information is supported by NADA values, but NPFC does not accept the 

post incident valuation of the boat of $25,910.74, as the RP/Claimants provided no justification 

for using Mr. estimate to determine the valuation. Because the NPFC accepts the 

GRS composite estimate as the appropriate repair value, the NPFC finds the pre- and postincident difference in value of the boat to be $6,309.00, based on the value the boat before the 

incident at $33,950.00, and $27,641.00 after the incident. The RP/Claimant paid Mr. 

more than the difference between the value of the property before and after the injury, which 

they determined was $8,039.26. NPFC finds that the supported and appropriate compensable 

amount for the damage to the boat is $6,309.00. 

Mr. was also paid $276.40 for the dockside property which included the replacement 

of three boat fenders and three boat lines with applicable sales tax. 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 approximately two year old boat fenders as “average” or 

“good”, and the general condition of the approximately two year old boat lines as “good” 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 

 

8 GRS adjusted the body shop’s estimate by subtracting costs related to fiberglass and epoxy, and then reducing the 

remaining costs 30% for condition of the vessel.

9 See comparative analysis document prepared by and , supplied with Claimant’s 

file; Bates #50066.000025

10 Based on the NADA values provided via email November 17, 2016. 11 The residual value was based on deducting the repair cost from the pre-incident value of the boat. Objectively, 

the boat loses value in an amount equal to what it costs to bring it back to its condition prior to the incident. See 

Vessel and Dockside Property Valuation spreadsheet 2.0 obtained from Mr. on November 9, 2016. 12 It appears GRS rounded the pre- and post-damage values. 
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clear about allowable compensable costs.13 Specific to this claim, the RP/Claimant never 

attempted to clean or repair the three boat fenders and three boat lines but argued that repair 

costs were not cost effective and instead provided full replacement value for used equipment.14 

They also did not calculate a value to 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 condition15, 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 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.16 The NPFC denies 

$1,730.26 of the $8,039.26 costs RP/Claimants paid for the vessel repairs, which was determined 

to be more than the difference in value before and after the injury. As supported by the GRS 

composite estimate provided by the RP/Claimants, the NPFC approves $6,309.00 of the 

$8,039.26 costs the RP/Claimants paid for the vessel repairs, which was the difference in value 

before and after the injury, but still less than the replacement value of the vessel. As such, the 

OSLTF may compensate the RP/Claimants for $6,309.00 of the amount paid in accordance with 

the OPA claims regulations. 

The NPFC determines that the RP/Claimants should be paid $6,309.00 for the payment made to 

Mr. for damage to his vessel. 

Claim Supervisor: 

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

Supervisor Action: Approved 

Supervisor’s Comments: 

 

13 See May 17, 2016 email from . 14 See RP/Claimants submission claim tab 50066. 15 See May 17, 2016 email from . 16 33 C.F.R. §136.217