CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/21/2010 

Claim Number : N08057-041

Claimant : Weeks Marine, Inc. 

Type of Claimant : Corporate 

Type of Claim : Loss of Profits 

Claim Manager : 

Amount Requested : $20,711.60 

I. Facts

On the morning of July 23, 2008, the tank barge DM 932 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 oil1 were released into the Mississippi River. As a result of 

this of this incident, oil released and river currents caused a vast geographical area to be 

impacted by oil. The resulting spill response, which included the booming of extensive portions 

of the river and was coordinated by the FOSC Unified Command, initially closed the river to 

vessel traffic and later, when reopened, managed traffic. The United States Coast Guard 

(USCG) implemented a safety zone between mile markers 97 and 60 on the Mississippi River 

and restricted vessel traffic to a safe speed outside of this area as well. 

II. Responsible Party

American Commercial Lines LLC (ACL) owned the barge at the time of the incident and is a 

responsible party under the Oil Pollution Act. 

III. The Claimant and the Claim

Mouledoux, Bland, LeGrand & Brackett (MBLB) has submitted a claim into the National 

Pollution Funds Center (NPFC) for their client, Weeks Marine, Inc. (Weeks). At the time of the 

incident Weeks had ongoing operations in the affected geographic area. One of Weeks’ vessels, 

the Dredge Tom James, was performing dredging operations for the Unites States Army Corps of 

Engineers’ (USACE) Plaquemines Parish Pass A’Loutre Sediment Mining Project.2

 As a 

consequence of the spill, the USACE chose to discontinue operations because they worried the 

materials being excavated from the site contained oil. 

Weeks competed for-- and was awarded-- the USACE contract for the Plaquemines Parish Pass 

A’Loutre Sediment Mining Project. Under this contract, Weeks was to excavate materials 

dumped by hopper dredges and pump the materials via pipeline to an upland marsh restoration 

site.3 The USACE discontinued the project after the spill on July 29, 2008 due to environmental 

concerns.

4

 Weeks had originally been contracted out to pump a quantity of 4,000,000 cubic 

 

1

 See House Subcommittee Hearing on DM 932 Oil Spill, dated 9/15/2008 

2

 See USACE Contract No. W912P-8-C-0039, submitted with the claim by Weeks Marine on 6/29/2009 

3

 See USACE Contract No. W912P-8-C-0039, submitted with the claim by Weeks Marine on 6/29/2009 

4

 See emails between USACE and Weeks Marine, submitted with the claim by Weeks Marine on 6/29/2009 
yards, but had only dredged approximately 3,704,120 cubic yards when the project was 

discontinued.5 

On June 29, 2009, Weeks Marine, Inc. submitted a damages claim to the National Pollution 

Funds Center (NPFC), in the amount of $20,711.60. This claim is for lost profits based on the 

USACE contract in place at the time of the oil spill, from July 23, 2008 through July 28, 2008. 

IV. APPLICABLE LAW

In general, claims for the removal costs or damages must first be presented to the RP per 33 USC 

2713(a). If the RP denies the claim or does not settle the claim within ninety days, the claimant 

may commence an action in court against the RP or present the claim to the Fund. 33 USC 

2713(c)

The uses of the OSTLF are described at 33 USC 2712(a). It provides in relevant part that:

“The Fund shall be available to the President for the payment of claims in accordance with 

section 2713 of this title for uncompensated removal costs determined by the President to 

consistent with the National Contingency Plan or uncompensated damages.”

Damages include damages for loss of profits or earnings capacity as a result of loss or 

destruction or real or personal property or natural resources. 33 USC 2702(b)(E) Damages are 

further defined to include the costs of assessing the damages. 33 USC 2701(5)

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 USC 2717 (h)(2)

In any case in which the president has paid an amount from the Fund for any removal costs or 

damages specified under subsection (a), no other claim may be paid from the Fund for the same 

removal costs or damages. 33 USC 2712 (i)

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

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

found at 33 CFR part 136.

Under 33 CFR 136.105(a) & 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:

“the 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 the preparation of the claim.” 33 CFR 

136.105(e)(8).”

With regard to claims for loss profits and impairment of earning capacity, the NPFC must 

independently determine that the proof criteria in OPA and the implementing regulations, at 33 

CFR part 136 are met, including the general provisions of 33 CFR 136.105, and the specific 

 

5

See USACE Contract No. W912P-8-C-0039 and Daily Dredge Report for July 29, 2008, submitted with the claim 

by Weeks Marine on 6/29/2009
requirements for loss of profits and earning capacity claims in Subpart C, 33 CFR 136.231, et 

seq.

Pursuant to the provisions of 33 CFR 136.231, claims for the loss of profits or impairment of 

earning capacity due to injury to, destruction or, or loss or real or personal property or natural 

resources may be presented to the Fund by the claimant sustaining the loss or impairment.

“In addition to the requirements of subparts A & B or this part, a claimant must establish the 

following-

(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 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, comparable 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)

If a third party claimant or RP is able to establish an entitlement to lost 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)

V. DETERMINATION OF LOSS: 

A. Overview:

1. The incident involved the discharge and continuing substantial threat of discharge 

of “oil” as defined in OPA 90, 33 U.S.C. § 2701(23), to navigable waters.

2. Real or personal property or natural resources have been injured, destroyed, or 

lost; specifically oil was released into and injured the Mississippi River, a natural 

resource of the United States.

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit 

has been filed in court for the claimed uncompensated removal costs.

4. The claim was submitted on time.

5. The claimant seeks $20,711.60 in loss of profits, as a consequence of the M/V 

Dredge Tom James being unable to finish out its contract.

6. The claimant asserts that if not for the oil spill, the contract would have been 

completed in full.

7. Presentment of costs to the RP was made by Weeks, prior to the submission of the 

claim. The NPFC also made presentment of costs to the RP for which the RP 

responded denying responsibility for these costs.

excavated contained oil, the contract was discontinued 295,880 cubic yards short. As shown 

above, 295,880 cubic yards multiplied by the gross margin per cubic yard totals $20,711.60. 

On that basis, the Claims Manager hereby determines that the claimant incurred $20,711.60 

of uncompensated removal costs and that that amount is properly payable by the OSLTF as 

full compensation for the reimbursable removal costs incurred by the claimant and submitted 

to the NPFC under claim # N08057-041. The claimant states that all costs claimed are for 

damages incurred by the claimant for this incident beginning on July 29, 2008. The claimant 

represents that all costs paid by the claimant are compensable removal costs, payable by the 

OSLTF as presented by the claimant. 

D. Determined Amount: 

The NPFC hereby determines that the OSLTF will pay $20,711.60 as full compensation for 

the reimbursable removal costs incurred by the Claimant and submitted to the NPFC under 

claim # N08057-041. All costs claimed are for charges paid for by the Claimant for removal 

actions as that term is defined in OPA and, are compensable removal costs, payable by the 

OSLTF as presented by the Claimant. 

VI. DETERMINED AMOUNT: $20,711.60 

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: