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CLAIM DETERMINATION 

Claim Number: 919011-0001 

Claimant: Above and Below Marine Services

Type of Claimant: Private

Type of Claim: Removal Costs 

Claim Manager: 

Amount Requested: $21,980.00 

Action Taken: Denial

EXECUTIVE SUMMARY: 

On September 29, 2017, the vessel PICOCAT while docked at the National Park Service 

dock in St. Thomas, Virgin Islands is reported to have discharged oil into Red Hook Bay, a 

navigable waterway of the US. The incident was discovered in the aftermath of Hurricane 

Maria.1

 d/b/a Above and Below Marine Services (“Above and Below” or “claimant”) 

raised the vessel and deployed boom in order to contain the spill.2 Dolphin Water Taxi 

(“Dolphin” or “RP”), is the listed owner of the vessel and responsible party (RP) as defined by 

the Oil Pollution Act of 1990.3 Above and Below presented its uncompensated removal costs to 

the RP. Having not received payment from the RP after ninety days,4 Above and Below 

presented its uncompensated removal cost claim to the National Pollution Funds Center (NPFC) 

for $21,980.00.5 The NPFC has thoroughly reviewed all documentation submitted with the 

claim, analyzed the applicable law and regulations, and after careful consideration has 

determined that this claim must be denied in full because no Federal On Scene Coordination or 

oversight and monitoring of the salvage and removal actions undertaken by the Claimant 

provided by the claimant could be substantiated.6

 

 

I. INCIDENT, RESPONSIBLE PARTY AND RECOVERY OPERATIONS: 

Incident 

On September 6, 2017, Hurricane Irma made official landfall in the U.S. Virgin Islands as a 

Category 5. Extreme winds and heavy rainfall ravaged parts of the U.S. Virgin Islands, 

particularly St. Thomas and St. John.7 On September 20, 2017, as the U.S. Virgin Islands 

continued to recover from Hurricane Irma, the core of Hurricane Maria passed just south of the 

U.S. Virgin Islands on its way to Puerto Rico. Maria's outer eyewall devastated St. Croix with 

 

1 Above and Below Marine Services claim submission dated December 12, 2018.

2 OSLTF Claim Form under Description of Actions taken to minimize or avoid damage.

3 33 U.S.C. § 2701(32). 

4 33 CFR 136.103(c). 5 Above and Below Marine Services claim submission received January 18, 2019.

6 33 CFR 136.203.

7 Written testimony of FEMA Federal Coordinating Officer for a House Committee on Oversight 

and Government Reform, Subcommittee on Interior, Energy and Environment hearing titled “The Historic 2017 

Hurricane Season: Impacts on the U.S. Virgin Islands” dated March 12, 2018.
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powerful winds and heavy rainfall, damaging the communications and power grid, destroying 

homes, and downing trees.8

On September 29, 2017, Claimant states the vessel, PICOCAT, was at the docks of the 

National Park Service in St. Thomas, US Virgin Islands when Hurricane Maria struck. The 

claimant asserts that in the confusion after the storm, the vessel rolled to port and was mostly 

submerged and the vessel was leaking oil from the tanks, engine and battery into Red Hook Bay, 

a navigable waterway of the United States.9 

Responsible Party 

The owner and operator of the vessel PICOCAT is Dolphin Water Taxi, which has Mr 

 listed as the company owner. As such, it is the responsible party for the incident. 

On January 29, 2019, the NPFC issued a Responsible Party Notification Letter to Dolphin 

Water Taxi.10 On February 8, 2019, the RP had a phone conversation with the NPFC affirming 

its status as the owner of the vessel and asserting that the claimant, Above and Below, removed 

the PICOCAT without its permission or authorization and is guilty of stealing the vessel and 

relocating it without the RP’s consent.11

Recovery Operations

Claimant asserts that on September 29, 2017, it was advised by National Park Service 

personnel to remove the vessel from the water. It further states it raised and removed the

PICOCAT from the dock of the National Park Service in preparation to haul the vessel to safe 

storage on land.12

II. CLAIMANT AND RP: 

Absent limited circumstances, the federal regulations implementing the Oil Pollution Act of 

1990 (OPA)13 require all claims for removal costs or damages must be presented to the 

responsible party before seeking compensation from the NPFC.14 

On March 12, 2018, the legal representatives for Above and Below cited as Feuerstein & 

Smith, LLP, submitted the Claimants request for compensation to the RP for $21,980.00.15 This 

submission included receipts for UCC filing charges, invoices for salvage costs associated with 

PICOCAT, invoices for salvage costs associated with a vessel named SPONGE BOB, and 

receipts for vessel inspection costs charged by the Albano Marine Survey. 

 

8 Preliminary Damage Assessment Report, FEMA-4340-DR-VI (Expedited) dated September 20, 2017. 9 OSLTF claim form, item #4 explanation of how the oil impacted the water.

10 NPFC RP Notification Letter to Dolphin Water Taxi dated January 29, 2019. 11 Phone Conversation with dated February 13, 2019. 12 OSLTF Claim Form under Description of Actions taken to minimize or avoid damage. 13 33 U.S.C. § 2701 et seq. 14 33 CFR 136.103. 15 Feuerstein & Smith, LLP letter to Mr. and Dolphin Water Taxi dated March 12, 2018.
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The RP stated to the NPFC that no request or approval of the raising, removal or relocation 

of PICOCAT was made or given and has denied payment of the costs submitted by Above and 

Below.16

III. CLAIMANT AND NPFC:

On January 18, 2019, the NPFC received a claim for uncompensated removal costs from 

Above and Below dated December 12, 2018. The costs presented to the NPFC in the amount of 

$21,980.00 matched those submitted to the RP and could be substantiated using the information 

submitted with the claim. As such, on January 29, 2019, the NPFC issued a letter to Above and 

Below notifying them that the submission was received and identified as a claim, #919011-0001 

and assigned to a Claims Manager for review.

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IV. DETERMINATION PROCESS: 

The NPFC utilizes an informal process when adjudicating claims against the Oil Spill 

Liability Trust Fund (OSLTF).18 As a result, 5 U.S.C. § 555 (e) requires the NPFC to provide a 

brief statement explaining its determinations. This determination is issued to satisfy that 

requirement for the Claimant’s claim against the OSLTF.

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim.19 The NPFC may rely upon, is not bound by the findings of fact, opinions, 

or conclusions reached by other entities.

20 If there is conflicting evidence in the record, the 

NPFC makes a determination as to what evidence is more credible or deserves greater weight, 

and finds facts and makes its determination based on the preponderance of the credible evidence. 

V. DISCUSSION: 

A responsible party is liable for all removal costs and damages resulting from either an oil 

discharge or a substantial threat of oil discharge into a navigable water of the United States.21 A 

responsible party’s liability is strict, joint, and several.22 When enacting OPA, Congress 

“explicitly recognized that the existing federal and states laws provided inadequate cleanup and 

damage remedies, required large taxpayer subsidies for costly cleanup activities and presented 

substantial burdens to victim’s recoveries such as legal defenses, corporate forms, and burdens of 

 

16 Phone Conversation with dated February 13, 2019. 17 Above and Below acknowledgement letter dated January 29, 2019. 18 33 CFR Part 136. 19 See, e.g., Boquet Oyster House, Inc. v. United States, 74 ERC 2004, 2011 WL 5187292, (E.D. La. 2011), “[T]he 

Fifth Circuit specifically recognized that an agency has discretion to credit one expert's report over another when 

experts express conflicting views.” citing Medina County v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010). 20 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them). 21 33 U.S.C. § 2702(a). 22 See, H.R. Rep. No. 101-653, at 102 (1990), reprinted in 1990 U.S.C.C.A.N. 779, 780.