CLAIM SUMMARY / DETERMINATION FORM 

Date: 4/7/2009 

Claim Number : P05005-135

Claimant: Star Reefers UK Limited 

Type of Claimant: Corporate (US) 

Type of Claim : Loss of Profits and Earning Capacity (Vessel Delay) 

Claim Manager: 

Amount Requested $233,494.00 

I. FACTS: 

A. Oil Pollution Incident: 

On 26 November 2004, the Cypriot-flagged tank vessel ATHOS I struck a submerged anchor as 

it approached the CITGO Asphalt Refining Company terminal at Paulsboro, New Jersey. The 

anchor punctured the hull and caused the release of Venezuelan crude oil into the Delaware 

River. The FOSC issued a Notice of Federal Interest designating the vessel’s owner, Frescati 

Shipping Company Limited, as the Responsible Party (RP). After it paid for costs exceeding its 

limit of liability, the RP denied all claims under the Oil Pollution Act of 1990 (OPA). As a 

result, the NPFC advertised for claims relating to the oil spill and claimants do not have to 

submit claims to the RP prior to submitting them to the National Pollution Funds Center (NPFC). 

During the oil spill, on 28 November 2004, the M/V SOUTHAMPTON STAR arrived at the 

Delaware River Sea Buoy on schedule to Penn Terminal in Philadelphia with its cargo of 

bananas and plantains. The Coast Guard FOSC granted permission to the SOUTHAMPTON 

STAR to proceed to Penn Terminal to discharge its perishable cargo.1 On the way to Penn 

Terminal, the SOUTHAMPTON STAR navigated through the oil spill area and its hull sides 

were contaminated. 

On 30 November, at approximately 0800, the SOUTHAMPTON STAR completed offloading 

and its representatives requested that the FOSC inspect it so it could depart Philadelphia. At 

1630, on 30 November 2004, the FOSC found residual oil on the SOUTHAMPTON STAR’s 

hull sides. 

Because of the oil spill, there were other vessels in port waiting to be decontaminated and there 

were too few cleaning crews qualified or available to decontaminate vessels that needed this 

service. This further delayed vessels from departing Philadelphia. Representatives of the 

SOUTHAMPTON STAR arranged for its vessel to be decontaminated but the 

SOUTHAMPTON STAR had to wait more than four days before it could be decontaminated.2

B. Claim Detail: 

Star Reefers presented its claim to the NPFC on 31 May 2007 alleging lost profits directly 

caused by the vessel delay of the SOUTHAMPTON STAR during the ATHOS oil spill incident. 

Star Reefers seeks compensation for lost profits in the sum certain of $233,494.00.3

 

1

 Vessel Log 

2

 See CG Vessel decontamination list and Vessel Port Log 

3

 See email outlining revised sum certain dated 10 December 2007 
The claimant outlined three components of lost profits as a direct consequence of the T/V Athos 

I oil spill:

1. Increased port costs while the SOUTHAMPTON STAR remained in port pending 

decontamination of its oiled hull sides: $10,408.00

2. Increased costs to charter hire M/V ATLAS MOUNTAINS: $61,249.00 

3. Increased costs of two vessels under charter but only one freight revenue: $161,837.00

C. Contractual Relationships:

Clio Marine, Inc. the owner of the SOUTHAMPTON STAR chartered its vessel to Star 

Reefers for a period extended by the December 22, 2003 Addendum No. 8 to the charter party 

dated 16th December 1999.4 The rate of hire under this addendum was 61.5 cents per cubic foot 

per 30 days. The maximum cubic capacity of the vessel is 485,000 cu. ft.5 This translates to a 

maximum daily hire rate of $9,942.50.

Star Reefers UK Limited (Star Reefers) is the claimant and long-term time charterer of 

the M/V SOUTHAMPTON STAR (SOUTHAMPTON STAR). As permitted, under its longterm time charter, Star Reefers entered into a voyage charter that earned the claimant a 

consistent stream of revenue based on the timely voyages of the SOUTHAMPTON STAR. 

Revenue was the same amount for each voyage and was agreed upon in the terms of the voyage 

contract. 

Altex Chartered Inc. (Altex) is the voyage charterer of the SOUTHAMPTON STAR and 

its charter party with Star Reefers committed the SOUTHAMPTON STAR to a continuous 14-

day round-trip schedule6delivering bananas and plantains from specific load-ports in South and 

Central America to a buyer in Philadelphia. The freight rate to be paid to Star Reefers is 

$206,000 per voyage.

Banacol owns and operates banana and plantain farms in Central and South America for 

sale in North America. Altex served as Banacol's charterer contracting vessel transport for 

Banacol's product from Banacol's load-ports in Turbo and Santa Marta Columbia, and Moin, 

Costa Rica to buyers in Philadelphia.

D. Claimant's Documentation:

The claimant provided documentation and summaries in support of their claim including the 

following applicable documents:

 SOUTHAMPTON STAR's port log;

 Time charter between Clio Marine and Star Reefers dated December 16, 1999 and 

reflecting Clio and Star Reefers as of December 22, 2003; 

 Voyage charter party agreement between Star Reefers and Altex Chartered, Inc., 

Contract of Affreightment dated 11 November 2003. Its most relevant clauses follow 

below.

 

4

See Charter Party Addendum No 8 Date: 22 December 2003. NOTE: Charter party between Clio Marine and Star 

Reefers is a charter transferred from previous owners (R Navigation S.A.) and previous charterer (Albion Reefers 

Limited). 

5

See Addendum No. 1 to charter party dated December 1999.

6

See Altex Rider to Contract of Affreightment Clauses 20 and 21
o Clauses 20 – 247

: specifies that the charterer will maintain its vessel on a 14-

day round-trip voyage no more than with specific load ports and one discharge 

port. Vessel is to perform 26 consecutive voyages beginning 1st week of 

January 2004. Laytime for loading and discharging will be totally 4.2 days, 

including Sundays and holidays.

o Clause 268: Freight is payable at the rate of USD 206,000 lump sum per 

voyage; freight to be paid one week after completion of loading

o Clause 369: In the event of a vessel's inability to perform the contracted 

schedule, due to loss, breakdown or crew strike in excess of 48 hours, Owners 

will substitute the vessel and will endeavor to do so within the scheduled time. 

If Owners are unable to find a replacement vessel, then Charterer can indicate 

such substitute vessel.

 Voyage Account Dry or financial summaries for ten voyages under the Altex charter. 

Eight voyages by the SOUTHAMPTON STAR precede the ATHOS oil spill incident 

- two others are same voyage with similar vessels. The financial summaries provide a 

record of a continuous series of voyages with dates, revenues, and costs. 

 Automated corporate accounting system print out for Voyage 1001 which shows the 

charge and the account charged for the hire of the M/V ATLAS MOUNTAINS 

voyage with charter hire costs totaling $211,040 as well as other costs.10

 Voyage charter of the M/V ATLAS MOUNTAINS, documenting the spot charter of 

this vessel.

 Claimant presented a spreadsheet of its voyage financial summaries showing 

claimant's direct costs associated with chartering two vessels but earning only one 

voyage revenue. 

II. 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. 

"Oil" is defined in relevant part, at 33 USC § 2701(23), to mean “oil of any kind or in any form, 

including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged 

spoil”.

The Oil Spill Liability Trust Fund (OSLTF), which is administered by the NPFC, is available, 

pursuant to 33 USC §§ 2712(a)(4) and 2713 and the OSLTF claims adjudication regulations at 

33 CFR Part 136, to pay claims for uncompensated removal costs that are determined to be 

consistent with the National Contingency Plan and uncompensated damages. 

Compensable damage types are natural resource damages, damage to real or personal property, 

loss of subsistence use of natural resources, lost government revenues, lost profits or impairment 

of earning capacity, and increased costs of public services. See 33 U.S.C. 2702(b)(2).

 

7

See Altex Rider to Contract of Affreightment Clauses 20-25, which specify the schedule between Banacol loadports and delivery to Philadelphia and speeds and route for chartered vessel.

8

See Altex Rider to Contract of Affreightment Clause 26 which shows fixed revenue under contract

9

See Altex Rider to Contract of Affreightment Clause 36

10 Claimant’s voyage account #1001 shows a loss of $61,249, which is likely a result of rounding.
The provisions of 33 CFR 136.231-136.235 provide the details for claims for profits and earning 

capacity. To substantiate a claim for lost profits, a claimant is required to 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 of 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, 

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 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)

Under 33 USC §2713(b)(2) and 33 CFR 136.103(d) no claim against the OSLTF may be 

approved or certified for payment during the pendency of an action by the claimant in court to 

recover the same costs that are the subject of the claim. See also, 33 USC §2713(c) and 33 CFR 

136.103(c)(2) [claimant election]. 

33 U.S.C. §2713(d) provides that “If a claim is presented in accordance with this section, 

including a claim for interim, short-term damages representing less than the full amount of 

damages to which the claimant ultimately may be entitled, and full and adequate compensation is 

unavailable, a claim for the uncompensated damages and removal costs may be presented to the 

Fund.” 

Under 33 CFR 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 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.

III. ANALYSIS & DETERMINATION:

Background

Star Reefers operated the SOUTHAMPTON STAR under a typical time charter. Under a time 

charter, the time charterer pays operational costs such as bunkers, stevedores and port charges, 

while the vessel owner pays fixed costs or vessel maintenance, crew and insurance. As the time 

charterer, Star Reefers can direct the vessel to load and discharge cargo at its port of choice, and 

carry whatever cargo it chooses subject to the terms of the charter party. Under this charter, Star 

reefers must pay Clio Marine $.50/cubic foot every 30 days for 485,000 cubic feet of cargo 

capacity unless delayed by “Owners” actions. (See Time Charter)

Under its time charter with Clio Marine, Star Reefers was authorized to sub-charter the vessel to 

a voyage charterer for one or more voyages. Star Reefers sub-chartered the vessel to Altex as 

discussed previously. The M/V SOUTHAMPTON STAR’s voyage charter with Altex required 

it to maintain a regular two-week round trip between Philadelphia, Pennsylvania; Turbo, 
Columbia; and Moin, Costa Rica.

11. These clauses in Altex's voyage charter with Star Reefers 

specifically require Star Reefers to run its voyage charter on 14-day round-trips to specific loadports. Under this charter schedule, the SOUTHAMPTON STAR is continuously utilized and is 

not available for any alternative hire.

Additionally, the Altex voyage charter Clause 36 requires that, if Star Reefers' vessel is delayed 

more than 48 hours while making its round-trip voyage, Star Reefers will provide another vessel 

to arrive on schedule at Banacol's load port. The rigid time schedule was necessary because of 

Altex’s contractual agreement with Banacol to subcharter vessels to carry Banacol's fruit to the 

U.S. - bananas and plantains are climate sensitive so Altex hires refrigerated vessels (reefers) to 

transport Banacol's bananas and plantains. Banacol cuts its fruit just before the vessel arrives at 

Banacol's load-port. Cutting and packing just before the vessel arrives assures that the fruit will 

not spoil during shipment. Requiring a strict voyage charter schedule assures minimum spoilage.

Analysis

To receive payment from the Fund for lost profits a claimant must prove that it lost profits and 

that those lost profits resulted from the oil spill. For example, decreased revenue and/or

increased expenses caused by the oil spill that reduce the profits the claimant would have 

otherwise earned would be compensable as lost profits damages from the Fund. 

For this claim, it is perhaps easier to address the asserted loss of profits more directly based upon 

the facts then as presented by the claimant, who has claimed damages based on two separate 

voyages.

It is clear from the evidence that the SOUTHAMPTON STAR was allowed to enter the 

Delaware Bay and deliver it’s cargo of perishables on 28 November 2004 and completed 

unloading their cargo on 30 November, thus completing the pickup and delivery associated with 

the voyage. Unfortunately, as the evidence including the ship’s log entries and the FOSC reports 

demonstrate, the SOUTHAMPTON STAR was not allowed to leave Philadelphia until the 

evening of 4 December because of oil response activities.12 This delay was well in excess of the 

48-hour clause within the Banacol contract and left Star Reefers no choice, but to contract for 

another vessel to make the next pick-up and delivery of perishables. 

To meet contractual commitments, M.V. ATLAS MOUNTAINS was chartered on 4 December 

2004 to commence loading of cargo in Moin Bay, Costa Rica on 5 December and Turbo, 

Colombia on 8 December and completing delivery in Philadelphia on 17 December. 13 

Unfortunately, having to spot charter another vessel to complete this voyage resulted in a direct 

increase in expenses of $211, 039.90 against the fixed revenue stream. The documentation 

demonstrates that the SOUTHAMPTON STAR expenses continued during the voyage of the 

ATLAS MOUNTAINS.

The claimant argues that it lost the profits of $161,837 that it otherwise expected to earn on the 

impacted voyage. It also claims that it lost additional profits of $61,249 because the voyage was 

actually operated at a net loss, instead of merely reduced earnings, due to the cost of chartering 

the ATLAS MOUNTAINS. In analyzing the claimant’s calculation of its total damages, the 

NPFC notes that there is some fluctuation in the profits for the ten voyages used to in calculating 

its expected profits for the voyage. Specifically, if instead of using the ten-voyage average of 

 

11 See Altex Voyage Charter, Rider to part 1, dated 11 November 2003, Clauses 20 through 25)

12 See CG Decon. List and Vessel Port Log

13 See Atlas Mountains voyage account #1001