3

CLAIM DETERMINATION 

Claim Number: UCGPJ22004-RPL001

Claimant: Western Towboat Company with its Subrogated Insurers 

Type of Claimant: RP

Type of Claim: Limit of Liability

Claim Manager: 

Amount Requested: $647,449.13 

Action Taken: Offer in the Amount of $ 548,219.95 

EXECUTIVE SUMMARY:

On March 21, 2022, the tug WESTERN MARINER (WESTERN MARINER) was towing 

the deck barge CHICHAGOF PROVIDER (CHICHAGOF PROVIDER) within the Neva Strait, 

AK,1

 when the tug experienced a steering casualty resulting in the CHICHAGOF PROVIDER

colliding with the WESTERN MARINER and the WESTERN MARINER grounding onto the 

shoreline.2 The Neva Strait is a navigable waterway of the United States. The WESTERN 

MARINER sustained damage to its forward port fuel tank and engine room and released oil into 

the Neva Strait.

3

 The discharge of oil was reported to the U.S. Coast Guard (CG) National 

Response Center.4

 Western Towboat Company (WTB) was the owner and operator of the 

WESTERN MARINER.

5 A representative of WTB arrived on-scene and contracted assets 

necessary to address the casualty.6 Specifically, WTB hired Southeast Alaska Petroleum 

Research Organization (SEAPRO), Global Diving and Salvage (Global Diving), and Hanson 

Maritime to respond to the incident.7 Oil spill response activities continued through March 28, 

2022.8 On March 29, 2022, the WESTERN MARINER was successfully removed from the 

shoreline and refloated within the Neva Strait.9 Once afloat and secured to the recovery tug, the 

CG Federal On-Scene Coordinator (FOSC) determined that the WESTERN MARINER no 

longer posed a substantial threat to discharge oil into a navigable waterway of the U.S. as the 

vessel was stabilized, its fuel tanks empty, and was under control of the recovery tug.10 The 

WESTERN MARINER was then towed to the Samson Tug and Barge facility in Sitka, AK, in 

preparation for its planned trip to a shipyard for permanent repairs.11 Steamship Insurance 

Management Services, Ltd.12 provided oil pollution insurance while other underwriters provided 

1 Limit of Liability Claim Submission Western Towboat Company and its subrogated insurers dated April 4, 2023 

(“Claim Submission”), page 3.

2 Claim Submission, page 4.

3 CG-SITREP-POL ONE DTG R 222352Z Mar 22. 4 CG National Response Center Report # 1331571 dated March 21, 2022.

5 CG National Vessel Documentation Center Certificate of Documentation issued to Western Towboat Company 

dated February 10, 2022. See also, 33 U.S.C. § 2701(32)(A). 6 CG-SITREP-POL ONE DTG R 222352Z Mar 22. 7 Id. 8 See, multiple CG pollution reports covering this period. 9 CG-SITREP-POL EIGHT DTG R 300043Z Mar 22. See also, Global Diving & Salvage Daily Operation Brief 

dated March 29, 2022.

10 Email from FOSC to NPFC dated June 15, 2023. 11 Global Diving & Salvage Daily Operation Brief dated March 29, 2022. 12 Steamship Insurance Management Services, Ltd. Certificate of Entry and Acceptance # 126307/1 issued to 

Western Towboat Company on February 20, 2022. The per occurrence limit as set forth in the policy for an oil spill 

(b) (6)
4

protection & indemnity insurance for the vessel.13 WTB and their subrogated insurers 

(Claimants) submitted a claim for entitlement to limited liability14 to the CG National Pollution 

Funds Center (NPFC). Claimants seek reimbursement of removal costs incurred in excess of the 

limit of liability under 33 U.S.C. § 2704. Under the Oil Pollution Act of 1990 (OPA), the limit 

of liability applicable to the WESTERN MARINER was $997,100.00. Claimants contend that 

they incurred $1,644,549.13 in removal costs. As a result, Claimants seek a total of $647,449.13 

as compensation for their removal costs incurred in excess of the limit.15 The NPFC has 

thoroughly reviewed all documentation submitted with the claim, analyzed the applicable law 

and regulations, and concluded that Claimants have demonstrated an entitlement to limited 

liability. Additionally, the NPFC has determined that removal costs totaling $548,219.95 in 

removal costs in excess of the limit of liability are compensable and offers this amount as full 

and final compensation of this claim under the Oil Pollution Act (OPA). The remaining removal 

costs are denied as explained below.

I. INCIDENT, RESPONSE OPERATIONS, AND THE RESPONSIBLE PARTY: 

Incident and Response Operations 

On March 20, 2022, the WESTERN MARINER departed Petersburg, AK, enroute Sitka, 

AK, with the CHICHAGOF PROVIDER in a stern tow.16 The purpose of the voyage was to 

deliver supplies in Sitka via the Neva Strait which was a regularly scheduled delivery occurring 

four times a week year-round.17 The captain of the WESTERN MARINER maintained a CG 

issued license18 and had transited the Neva Strait hundreds of times in the position of either 

Chief Mate or Captain of the vessel.19 The WESTERN MARINER was carrying approximately 

43,500 gallons of diesel fuel within its integral fuel tanks.20 The CHICHAGOF PROVIDER was 

not carrying any petroleum products as cargo.21

incident was $1,000,000,000.00. 13 Atlantic Specialty Insurance Company, as the lead underwriter for Subscription Hull Policies HDB-53226 (60%) 

issued by Atlantic Specialty Insurance Co (20%), Navigators Insurance Co (12.5%), US Specialty Insurance Co 

(10%), Aspen American Insurance Co (10%), Endurance American Insurance Co (7.5%), to Western Towboat 

Company effective October 20, 2021, with a hull insured amount as set forth in the policy for protection and 

indemnity of $1,120,000.00. See also, CN-53227 (40%) issued by Price Forbes (40%) to Western Towboat 

Company effective August 20, 2021, with a hull insured amount as set forth in this policy for protection and 

indemnity of $1,120,000.00.

14 See, 33 U.S.C. § 2704. 15 Claim Submission, page 19 with a sum certain of $568,549.13. See also, letter from Claimants to the NPFC dated 

May 23, 2023, page 12 acknowledging that the WESTERN MARINER’s limit of liability on March 21, 2022, was 

$997,100.00 and not $1,076,000.00 as originally stated within their claim submission dated April 4, 2023. As a 

result, Claimants amended their sum certain to $647,449.13 after applying the vessel’s correct limit of liability to 

their total claimed costs of $1,644,549.13.

16 Letter from Claimants to NPFC dated May 23, 2023, page 1. 17 Letter from Claimants to NPFC dated May 23, 2023, page 3. 18 Signed declaration of Captain , dated February 24, 2023, provided as Appendix 8 within the 

Claimant’s limit of liability claim submission dated April 4, 2023.

19 Letter from Claimants to NPFC dated May 23, 2023, page 3. 20 Claim Submission, page 3. 21 Id. 

(b) (6)
5

On March 21, 2022, the WESTERN MARINER was transiting southeast within the Neva 

Strait with the CHICAGOF PROVIDER in a stern tow.22 The vessel was traveling at 

approximately 9.5 knots23 with the vessel’s autopilot engaged.24 As the vessel approached buoy 

#22 within the Neva Strait’s navigational channel, the captain attempted to adjust the vessel’s 

heading to port, but the vessel’s steering failed to respond.25 The captain responded by switching 

the vessel’s steering to jog mode in high-speed26 which disengaged the vessel’s autopilot.27 The 

captain then made a manual course correction to port and ordered the release of the 

CHICHAGOF PROVIDER to free the WESTERN MARINER from the restrictions of the 

barge28 in an effort to prevent the barge from colliding with the tug.29 The WESTERN 

MARINER began to respond to the captain’s course correction to port but was struck on its port 

quarter by the CHICHAGOF PROVIDER as the barge maintained its steady course after being 

released.30 The WESTERN MARINER grounded on the western side of the Neva Strait as a 

result of the collision31 and sustained damage to its forward port fuel tank32 and engine room.33

Diesel fuel and oil were discharged into the Neva Strait, a navigable waterway of the United 

States.34

A representative from WTB responded and contracted assets necessary to address the 

casualty.35 Specifically, WTB hired SEAPRO to respond to the ongoing discharge of diesel fuel 

from the WESTERN MARINER’s damaged fuel tank.36 Pollution removal activities included 

the deploying and tending of boom, deploying and replacing sorbent pads, handling waste 

management, conducting shoreline assessments, and deploying skimmers.37 WTB also hired

Global Diving to prepare and execute a salvage plan to remove the WESTERN MARINER from 

the shoreline38 and Hanson Maritime to provide support services related to oil removal and 

salvage operations.39 CG Sector Juneau, the Alaska Department of Environmental Conservation 

(ADEC) and WTB established a Unified Command (UC) to oversee all response operations.40

CG Sector Juneau also issued an Administrative Order to WTB which required them to 

continuously monitor any discharge of oil from the WESTERN MARINER and to take measures 

22 Id. 23 A knot is approximately 1.15 miles per hour. 24 Letter from Claimants to NPFC dated May 23, 2023, page 3. 25 Claim Submission, page 4. 26 Id. 27 Letter from Claimants to NPFC dated May 23, 2023, page 4. 28 Claim Submission, page 4. 29 Letter from Claimants to NPFC dated May 23, 2023, page 5. 30 Letter from Claimants to NPFC dated May 23, 2023, pages 4-5. See also, Claim Submission, page 4. 31 Claim Submission, page 4. 32 The WESTERN MARINER’s forward port fuel tank had a maximum capacity of 13,000 gallons. 33 Claim Submission, page 4. See also, CG-SITREP-POL ONE DTG R 222352Z Mar 22. 34 CG-SITREP-POL ONE DTG R 222352Z Mar 22. 35 Id. 36 Id. 37 Signed declaration of , WTB President of Operations, dated March 7, 2023, provided as 

Appendix 16 within the Claimant’s limit of liability claim submission dated April 4, 2023, page 12. 38 Signed declaration of WTB President of Operations, dated March 7, 2023, provided as 

Appendix 16 within the Claimant’s limit of liability claim submission dated April 4, 2023, page 7.

39 Signed declaration of , WTB President of Operations, dated March 7, 2023, provided as 

Appendix 16 within the Claimant’s limit of liability claim submission dated April 4, 2023, page 8.

40 CG-SITREP-POL ONE DTG R 222352Z Mar 22.

(b) (6) (b) (6) (b) (6)
6

to remove any discharge and to mitigate or prevent the threat of any discharge from the 

WESTERN MARINER, including the removal of all fuel, hydraulic, waste, and lubricating oils 

in the vessel and vessel bilges prior to moving the vessel from its current location.41

On March 22, 2022, oil pollution removal activities were suspended due to weather42 but 

Global personnel were able to access the WESTERN MARINER to conduct a damage 

assessment of the vessel’s hull.43

On March 23, 2022, oil pollution responders resumed their on-water pollution removal 

activities.44 Additionally, Global personnel discovered a crack in the vessel’s aft port fuel tank45

that was discharging diesel fuel into the vessel’s engine room.46 Multiple patches were placed on 

the vessel’s hull47 and a water-tight door was sealed in the engine room to prevent the continued 

discharge of oil into the Neva Strait.

48 

On March 24, 2022, oil pollution responders continued their on-water pollution removal 

activities.49 Additionally, Global personal were able to seal the port aft diesel fuel tank internal 

fractures that opened into the engine room.50 Temporary repairs to the vessel’s hull continued51

and lightering of the vessel’s internal fuel tanks commenced.52

On March 25, 2022, oil pollution responders continued their on-water pollution removal 

activities53 and shoreline cleanup, and assessment (SCAT) activities were initiated.54 Global 

personnel continued to make temporary repairs to the vessel’s hull.55 

On March 26, 2022, oil pollution responders continued their on-water pollution removal 

activities and SCAT surveys.56 Additionally, Hanson personnel were able to complete their 

vessel lightering operations and reported that all fuel tanks onboard the WESTERN MARINER 

had been opened, inspected and were now free of oil.57 A total of 32,080 gallons of clean diesel 

fuel and 11,625 gallons of diesel fuel/oil mixed with water were recovered from the vessel.58 

41 CG-SITREP-POL THREE DTG R 250102Z Mar 22. See also, CG Sector Juneau Administrative Order issued to 

Western Towboat Company dated March 24, 2022.

42 CG-SITREP-POL TWO DTG R 240111Z Mar 22. 43 Global Daily Operations Brief dated March 22, 2022, page 2. 44 CG-SITREP-POL TWO DTG R 240111Z Mar 22. 45 The WESTERN MARINER’s aft port fuel tank had a maximum capacity of 8,000 gallons. 46 Global Daily Operations Brief dated March 23, 2022. 47 CG-SITREP-POL TWO DTG R 240111Z Mar 22. 48 Id. 49 CG-SITREP-POL THREE DTG R 250102Z Mar 22. 50 Global Daily Operations Brief dated March 24, 2022, page 3. 51 Id. 52 Id. 53 CG-SITREP-POL FOUR DTG R 260035Z Mar 22. 54 Id. 55 Global Daily Operations Brief dated March 25, 2022, page 3. 56 Global Daily Operations Brief dated March 26, 2022, page 3. 57 Global Daily Operations Brief dated March 26, 2022, page 2. 58 Alaska Department of Environmental Conservation SITREP 5 dated March 29, 2022.
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Global personnel continued to make temporary repairs to the vessel’s hull59 and a draft salvage 

plan was submitted to the UC for review.60

On March 27, 2022, oil pollution responders continued their on-water pollution removal 

activities and SCAT surveys.61 Global personnel positioned lift bags around the hull of the 

WESTERN MARINER in preparation of re-floating the vessel.62

On March 28, 2022, oil pollution responders continued their on-water pollution removal 

activities and SCAT surveys.63 Additionally, the UC approved the vessel salvage plan64 and a 

salvage tug arrived in Sitka with intentions of removing the WESTERN MARINER from the 

shoreline of the Neva Strait on March 29, 2022.65 Global personnel continued their preparations 

to re-float the vessel.66

On March 29, 2022, the WESTERN MARINER was successfully removed from the 

shoreline and refloated within the Neva Strait.67 Once afloat and secured to the recovery tug, the 

CG FOSC determined that the WESTERN MARINER no longer posed a substantial threat to 

discharge oil into a navigable waterway of the U.S. as the vessel was stabilized, its fuel tanks 

empty, and was under control of the recovery tug.68 The WESTERN MARINER was then towed 

to the Samson Tug and Barge facility in Sitka, AK, in preparation for its planned trip to a 

shipyard for permanent repairs.69 

From March 30, 2022, - April 3, 2022, oil contaminated shoreline flushing continued in and 

around the area of the WESTERN MARINER grounding site.70 SCAT surveys of impacted 

shorelines continued occasionally through March 19, 2023.71

Responsible Party 

 WTB owned and operated the WESTERN MARINER at the time of the incident72 and is the 

responsible party (RP).73 

 Steamship Insurance Management Services, Ltd. (Steamship) provided oil pollution 

insurance provided oil to WTB.74 Additionally, Atlantic Specialty Insurance Company, 

59 Global Daily Operations Brief dated March 26, 2022, page 3. 60 CG-SITREP-POL SIX DTG R 271923Z Mar 22. 61 Global Daily Operations Brief dated March 27, 2022, page 2. 62 Id. 63 CG-SITREP-POL SEVEN DTG R 290028Z Mar 22. 64 Id. 65 Id. 66 Global Daily Operations Brief dated March 28, 2022. 67 CG-SITREP-POL EIGHT DTG R 300043Z Mar 22. See also, Global Diving & Salvage Daily Operation Brief 

dated March 29, 2022.

68 Email from FOSC to the NPFC dated June 15, 2023. 69 Global Diving & Salvage Daily Operation Brief dated March 29, 2022. 70 See, associated CG Pollution Reports. 71 Id. 72 CG National Vessel Documentation Center Certificate of Documentation issued to Western Towboat Company 

dated February 10, 2022. 

73 33 U.S.C. § 2701(32)(A). 
8

Navigators Insurance Company, US Specialty Insurance Company, Aspen American Insurance 

Company, Endurance American Insurance Company, and Price Forbes (interested underwriters), 

provided protection & indemnity insurance to WTB.75 WTB, Steamship, and interested 

underwriters provided proof that they incurred removal costs pursuant to this claim. As such, 

WTB as the RP and Steamship and the interested underwriters through subrogation have 

submitted a claim for entitlement to limited liability with the NPFC.

II. DISCUSSION 

A. Adjudication of Claims Against the OSLTF

When adjudicating claims against the OSLTF, the NPFC utilizes an informal process 

controlled by 5 U.S.C. § 555.76 As a result, 5 U.S.C. § 555(e) requires the NPFC to provide a 

brief statement explaining the basis for a denial. This determination is issued to satisfy that 

requirement. 

The claims adjudication process is also subject to the regulations at 33 CFR Part 136. During 

the adjudication of claims against the OSLTF, the NPFC acts as the finder of fact. In this role, 

the NPFC considers all relevant evidence and weighs its probative value when determining the 

facts of the claim. If there is conflicting evidence in the record, the NPFC will make a 

determination as to what evidence is more credible or deserves greater weight, and finds facts 

based on the preponderance of the credible evidence. 

B. Claims Against the OSLTF by Responsible Parties

Under OPA, 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.77 Further, a responsible party’s liability is strict, joint, and several.78 In the case of a 

vessel, the responsible party includes any person owning, operating or demise chartering the 

vessel.79 When enacting OPA, “Congress explicitly recognized that the existing federal and 

74 Steamship Insurance Management Services, Ltd. Certificate of Entry and Acceptance # 126307/1 issued to 

Western Towboat Company on February 20, 2022. The per occurrence limit as set forth in the policy for an oil spill 

incident was $1,000,000,000.00. 

75 Atlantic Specialty Insurance Company, as the lead underwriter for Subscription Hull Policies HDB-53226 (60%) 

issued by Atlantic Specialty Insurance Co (20%), Navigators Insurance Co (12.5%), US Specialty Insurance Co 

(10%), Aspen American Insurance Co (10%), Endurance American Insurance Co (7.5%), to Western Towboat 

Company effective October 20, 2021, with a hull insured amount as set forth in the policy for protection and 

indemnity of $1,120,000.00. See also CN-53227 (40%) issued by Price Forbes (40%) to Western Towboat 

Company effective August 20, 2021, with a hull insured amount as set forth in this policy for protection and 

indemnity of $1,120,000.00.

76 The court in Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 75 (D.D.C. 2011), characterized the 

informal adjudication process for OSLTF claims with the following: “[W]hile the OPA allows responsible parties to 

present a claim for reimbursement to the NPFC, they do not confer upon such parties a right to a formal hearing, a 

right to present rebuttal evidence or argument, or really any procedural rights at all, see 33 U.S.C. §§ 2704, 2708, 

2713, an entirely unremarkable fact given that Congress’ overarching intent in enacting the OPA was to ‘streamline’ 

the claims adjudication process . . . .” 

77 33 U.S.C. § 2702(a). 78 See, H.R. Conf. Rep. No. 101-653, 102, reprinted in 1990 U.S.C.C.A.N. 779 (August 1, 1990). 79 33 U.S.C. § 2701(32)(A). 
9

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... 

burdens of proof unfairly favoring those responsible for the spills.”80 OPA was intended to cure 

these deficiencies in the law. 

Notwithstanding the above, under limited circumstances the OSLTF may reimburse a 

responsible party for its uncompensated removal costs and damages. In order to receive OSLTF 

reimbursement a responsible party must show an entitlement to either a defense or limited 

liability under the OPA. Specifically, 33 U.S.C. § 2708(a) (emphasis added) provides that: 

The responsible party for a vessel or facility from which oil is discharged, or 

which poses the substantial threat of a discharge of oil, may assert a claim for 

removal costs and damages under section 2713 of this title only if the responsible 

party demonstrates that--

(1) the responsible party is entitled to a defense to liability under section 2703 of 

this title; or 

(2) the responsible party is entitled to a limitation of liability under section 2704 

of this title. 

 Under the plain meaning of 33 U.S.C. § 2708(a), a responsible party must demonstrate that 

either a defense or limited liability applies before the OSLTF can reimburse removal costs or 

damages. Consistent with this statutory requirement, the OSLTF’s claims regulations also 

require all claimants to carry the burden of proving an entitlement to reimbursement. 81 

Therefore, just like any other claimant, a responsible party must prove an entitlement under the 

OPA before receiving reimbursement from the OSLTF. If a responsible party fails to establish 

an entitlement to compensation from the OSLTF or fails to establish the elements by a 

preponderance of the credible evidence, the NPFC must deny the claim.82 

80 Apex Oil Co., Inc. v. United States, 208 F. Supp. 2d 642, 651-52 (E.D. La. 2002)(citing S. Rep. No. 101-94 

(1989); reprinted in 1990 U.S.C.C.A.N. 722.). 81 See, 33 CFR 136.105(a)(“The claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim.”); and 33 CFR 136.105(e)(6) 

(requiring that each claim include evidence to support the claim). 82 OPA’s legislative history supports NPFC’s conclusion that a responsible party has the burden of showing an 

entitlement to OSLTF compensation under 33 U.S.C. § 2708. As explained in the House Conference Report on 

OPA:

Section 1008 of the House bill allows a responsible party or the owner of oil on a tank vessel, or a 

guarantor for that responsible party or owner of oil, to assert a claim for removal costs and 

damages only if the responsible party or owner can show that the responsible party or owner has 

a defense to liability or is entitled to a limitation of liability. In the latter case, a claim may be 

submitted only to the extent amounts paid by the responsible party or owner, or by a guarantor on 

the responsible party's or owner's behalf, exceeds the applicable limit on liability. 

H.R. Conf. Rep. 101-653, 110, reprinted in 1990 U.S.C.C.A.N. 779 (August 1, 1990) (emphasis added). See also, 

Apex Oil Co., Inc. v. United States, 208 F.Supp.2d 642 (E.D. La., 2002)(claimant failed to carry its burden of proof 

with respect to the “act of God” defense); International Marine Carriers v. OSLTF, 903 F.Supp. 1097 (S.D. Tex. 

1994)(claimant must show elements of a “third party” defense by a preponderance of the evidence); Bean Dredging, 

LLC v. United States, 773 F.Supp.2d 63, 86 (D.D.C. 2011)(the responsible party “had the burden of proof of 
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C. Limitation of Liability

 Under 33 U.S.C. § 2704 (a), a responsible party may limit its liability for removal costs and 

damages. However, OPA’s limited liability will not apply if the incident was proximately 

caused by the responsible party’s willful misconduct, gross negligence, or violation of a federal 

regulation.83 Also, under 33 U.S.C. § 2704 (c)(2), limited liability will not apply when the 

responsible party fails:

(A) to report the incident as required by law and the responsible party knows or 

has reason to know of the incident; 

(B) to provide all reasonable cooperation and assistance requested by a 

responsible official in connection with removal activities; or

(C) without sufficient cause, to comply with an order issued under subsection (c) 

or (e) of section 1321 of this title or the Intervention on the High Seas Act (33 

U.S.C. § 1471 et seq.). 

Claimants assert that they are entitled to limited liability under 33 U.S.C. § 2704 (a). If 

successful, Claimants would be permitted under 33 U.S.C. § 2708 to recover from the OSLTF 

their compensable removal costs and damages that exceed the applicable OPA limit of liability. 

Before the OSLTF can reimburse any costs or damages, Claimants must carry their burden of 

proving an entitlement to limited liability.84

 When submitting a limit of liability claim against the OSLTF, a responsible party must show 

that the exceptions to limited liability in 33 U.S.C. § 2704 (c) do not apply even though this 

burden of proof may require proof of a negative contention, (i.e., the incident was not 

proximately caused by the responsible party’s willful misconduct, gross negligence, or 

regulatory violation). “It is a familiar common-law rule that, where a right to relief is grounded 

on a negative assertion of a right, the burden of proving the negative rests on the party asserting 

the right.”85 This is not an impossible burden to carry. 86 A responsible party will meet its 

establishing its entitlement to reimbursement on the administrative level” ...); and Water Quality Ins. Syndicate v. 

United States, 632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(holding that it is the responsible party, not the NPFC, 

which has the burden to prove it [or in the case of an insurance company-claimant, its insured] is entitled to a 

limitation of liability when making a claim against the OSLTF under 33 U.S.C. § 2708). 

Placing the burden of proof on a responsible party claimant seeking compensation under 33 U.S.C. § 2708 is 

consistent with the general rule that a party seeking relief bears the burden of proving an entitlement to that relief. 

Requiring a responsible party claimant to prove its entitlement to OSLTF compensation is also consistent with the 

general rule that a party with particular knowledge of the facts ought to bear the burden of proving those facts. As 

the owner and operator of the tug WESTERN MARINER, Western Towboat Company had unique access to the 

facts surrounding this incident because it was in control of the operations resulting in the discharge and had 

dominion and control over the discharging vessel. This unique access to the discharging vessel makes Claimants 

particularly well-positioned to actually know or discover the facts surrounding the incident. Placing the burden of 

proof on a responsible party and its insurers seeking compensation under 33 U.S.C. § 2708 incentivizes full 

disclosure of all relevant facts by Claimants who are well-positioned to know or learn what happened during an 

OPA incident. 

83 33 U.S.C. § 2704 (c)(1). 84 See, 33 U.S.C. § 2708. 85 United States v. Grogg, 9 F.2d 424, 426 (W.D. Va. 1925).
11

burden by showing that its more likely than not that the incident was not proximately caused by 

willful misconduct, gross negligence, or a regulatory violation. 

 

 The quantum of proof required from a responsible party seeking OSLTF reimbursement will 

vary depending upon the facts of the case. Nevertheless, a responsible party should not be 

required to conclusively disprove every possible contention supporting unlimited liability. 

Rather, a responsible party will generally satisfy its burden by showing that OPA’s exceptions to 

limited liability probably do not apply. For example, the NPFC does not require detailed proof 

of compliance with federal regulations that have no apparent connection to the oil spill. 

Therefore, in some cases a responsible party’s regulatory compliance could be shown by 

generalized evidence establishing a probability that no regulatory violation occurred. However, 

if the facts of an OPA incident raise the issue of whether the incident was proximately caused by 

a regulatory violation, then a responsible party must carry its burden of proving compliance with 

the specific regulation at issue. If a responsible party fails to carry its burden of proof, then the 

claim should be denied.87 When analyzing whether a responsible party has met its burden of 

proof, it is important to note that the terms “gross negligence” and “willful misconduct” have 

distinct meanings under the OPA.88 

86 The treatise, Corpus Juris Secondum, explains how a party can prove a negative contention with the following:

The party whose contention requires proof of a negative fact generally has the burden of evidence to prove that fact, 

except as the rule may be modified by the fact that the evidence as to such issue is peculiarly within the adverse 

party’s knowledge or control. In deciding, however, what quantum of evidence shall be deemed sufficient, the

practical limitations on proof imposed by the nature of the subject matter or the relative situation of the parties will 

be considered. The court will more promptly discharge a litigant from the burden of evidence where the proposition 

is a negative one, and the burden of evidence is sustained by proof which renders probable the existence of the 

negative fact, nothing in the nature of a demonstration being required. 

31A C.J.S. Evidence § 200 (2015)(internal footnotes omitted)(emphasis added). 87 Bean Dredging, LLC v. United States, 773 F.Supp.2d 63 (D.D.C. 2011)(affirming NPFC’s determination denying 

limited liability based upon the responsible party’s failure to show compliance with a specific regulation).

88 Because OPA does not define the terms “gross negligence” or “willful misconduct”, these terms should be given 

their plain and ordinary meaning. “Gross negligence” is ordinarily distinguished from “willful misconduct” in that 

“gross negligence” is a lesser standard that does not require recklessness and “willful misconduct” generally refers 

to intentional misconduct that can sometimes be established with proof of recklessness. See, Restatement (Third) of 

Torts: Phys. & Emotional Harm § 2 Recklessness, cmt. a (2010). See also, W. Page Keeton, et al., Prosser and 

Keeton on the Law of Torts § 34, at 212 (5th ed. 1984)(“’gross negligence’ falls short of a reckless disregard”); 57a 

Am. Jur. 2d Negligence § 231 (2016)(“A distinction is frequently made between gross negligence and willful, 

wanton, or reckless conduct. While the jurisdictions adopting this distinction consider gross negligence substantially 

and appreciably higher in magnitude than ordinary negligence, it is still not equivalent to wanton or willful conduct, 

and it does not encompass reckless behavior.”)(footnotes omitted).

The structure of OPA’s liability and compensation regime supports giving different meanings to the terms 

“gross negligence” and “willful misconduct”. As discussed above, under 33 U.S.C. § 2712(b) a claimant may not 

receive OSLTF reimbursement for removal costs or damages caused by the claimant’s “gross negligence or willful 

misconduct”. Also, 33 U.S.C. § 2704(c)(1) precludes limited liability for oil spills caused by the “gross negligence 

or willful misconduct of” the responsible party. If Congress had intended for “gross negligence” to have the same 

meaning as “willful misconduct” under the OPA, there would have been no reason to deny OSLTF reimbursement 

and limited liability for both types of conduct. Moreover, the use of the disjunctive term “or” in both 33 U.S.C. § § 

2704 (c)(1) and 2712(b) further suggests that “gross negligence” is a separate and distinct type of wrongdoing from 

“willful misconduct”. See, 1A N. Singer, Statutes and Statutory Construction § 21:14, p. 189-190 (7th 

ed.2007)(“The disjunctive ‘or’ usually, but not always, separates words or phrases in the alternate relationship, 

indicating that either of the separated words or phrases may be employed without the other. The use of the 
12

The NPFC defines those terms as follows:89 

Gross Negligence: Negligence is a failure to exercise the degree of care which a person of 

ordinary caution and prudence would exercise under the circumstances. A greater degree of 

care is required when the circumstances present a greater apparent risk. Negligence is “gross” 

when there is an extreme departure from the care required under the circumstances or a 

failure to exercise even slight care.90

 

Willful Misconduct: An act, intentionally done, with knowledge that the performance will 

probably result in injury or done in such a way as to allow an inference of a reckless 

disregard of the probable consequences.91

disjunctive usually indicates alternatives and requires that those alternatives be treated separately.”).

The statutory language used by Congress to impose liability on an OPA guarantor also supports giving “gross 

negligence” a different meaning from “willful misconduct” Under 33 U.S.C. § 2716 (f)(1)(C), a guarantor can only 

avoid liability when “the incident was caused by the willful misconduct of the responsible party.” In contrast, a 

claimant will be denied OSLTF reimbursement and unlimited OPA liability will be imposed on a responsible party 

for either “gross negligence” or “willful misconduct”. The fact that OPA only provides guarantors with a defense 

for “willful misconduct”, but not “gross negligence” shows that Congress intended for the two phrases to have 

separate meanings. If it were otherwise, an OPA guarantor would be exonerated from liability for either “gross 

negligence” or “willful misconduct” just like 33 U.S.C. § § 2704 (c)(1) and 2712(b). See, In re Oil Spill by Oil Rig 

Deepwater Horizon, 21 F.Supp.3d 657, 734 (E.D. La. 2014)(“Because only ‘willful misconduct’ creates this 

[guarantor’s] defense, OPA treats ‘willful misconduct’ as distinct from, and more egregious than, ‘gross 

negligence.’”). See also, 2A N. Singer, Statutes and Statutory Construction § 46:6, p. 249-252 (7th ed.2007)(“The 

same words used twice in the same act are presumed to have the same meaning. Likewise, courts do not construe 

different terms within a statute to embody the same meaning. ... In like manner, where the legislature has employed 

a term in one place and excluded it in another, it should not be implied where excluded.”). 89 See, In re Kuroshima Shipping S.A., 2003 AMC 1681, 1693. See also, Water Quality Insurance Syndicate v. 

United States, 632 F.Supp.2d 108, 113-114 (D. Mass. 2009)(relying on NPFC’s definition of “gross negligence”); 

and Water Quality Insurance Syndicate v. United States, 522 F.Supp.2d 220, 228-29 (D.D.C. 2007)(holding that 

“willful” misconduct under the OPA could also be established by a series of negligent acts that amount to 

recklessness). 90 Under the OPA, a finding of “gross negligence” requires proof of a departure from the standard of care beyond 

what would constitute ordinary negligence because simple negligence is established by showing a failure to exercise 

the degree of care that someone of ordinary prudence would exercise in the same circumstance. See generally, 

United States v. Ortiz, 427 F.3d 1278, 1283 (10th Cir. 2005). “Taken at face value, [gross negligence] simply means 

negligence that is especially bad.” Restatement (Third) of Torts (Physical and Emotional Harm) § 2 Recklessness, 

cmt. a (2010). “[M]ost courts consider that ‘gross negligence’ ... differs from ordinary negligence only in degree, 

and not in kind.” W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984). See 

also, Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489, 495 (1875)(“’Gross negligence’ is a relative term. It is 

doubtless to be understood as meaning a greater want of care than is implied by the term ‘ordinary negligence;’ but, 

after all, it means the absence of the care that was necessary under the circumstances...”). 

Gross negligence should be determined based upon the same objective reasonable-person standard as ordinary 

negligence, and therefore requires no showing of any mental state or scienter. The facts of each case must control 

the degree of care required to prevent an oil spill. As a result, a greater degree of care will be required when the 

facts of a case establish an increased risk. See e.g., Water Quality Ins. Syndicate v. United States, 632 F.Supp.2d 

108, 112 (D. Mass. 2009). See also, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at 208-09 

(“As the danger becomes greater, the actor is required to exercise caution commensurate with it.”). 91 When deciding whether “willful misconduct” has been established under the OPA, courts have relied upon 

FWPCA cases analyzing the same issue. See generally, Water Quality Ins. Syndicate v. United States, 522 

F.Supp.2d 220, 229-30 (D.D.C. 2007). Relying on FWPCA authorities when interpreting the OPA is consistent 

with Congress’ legislative intent that OPA’s definitions should have the same meaning as those same terms have 
13

In this case, Claimants satisfied their burden of proving an entitlement to limited liability. For 

the purposes of this claim determination, the NPFC finds that the incident was not proximately 

caused by the gross negligence or willful misconduct of WTB.92 Further, there is no evidence in 

the administrative record that indicates the incident was proximately caused by a violation of an 

applicable federal safety, construction, or operating regulation by WTB.93 Additionally, WTB 

timely accepted responsibility for the incident and provided appropriate cooperation and 

assistance with respect to the removal actions. Accordingly, NPFC finds that none of the 

exceptions to the limitation of liability found at 33 U.S.C. § 2704(c) apply based on the 

administrative record of this incident. 

 D. OSLTF Compensable Removal Costs

been given under the FWPCA. See, H.R. Conf. Rep. 101-653, reprinted in 1990 U.S.C.C.A.N. 779. Under both 

OPA and the FWPCA, proof of recklessness will establish “willful misconduct”. For example, in Tug Ocean 

Prince, Inc. v. United States, 584 F.2d 1151, 1162-63 (2nd Cir. 1978), the court considered whether the vessel 

owner’s willful misconduct precluded limited liability for an oil spill under the FWPCA. In its analysis, the court 

defined “willful misconduct” as follows:

[A]n act intentionally done, with knowledge that the performance will probably result in injury or done in such a 

way as to allow an inference of reckless disregard of the probable consequences. [citation omitted]. If the harm 

results from an omission, the omission must be intentional, and the actor must either know the omission will result 

in damage or the circumstances surrounding the failure to act must allow an implication of a reckless disregard 

of the probable consequences. [citation omitted]. The knowledge required for a finding of willful misconduct is 

that there must be either actual knowledge that the act, or the failure to act, is necessary in order to avoid danger, or 

if there is no actual knowledge, the probability of harm must be so great that failure to take the require action 

constitutes recklessness. Id. (emphasis added).

The test for determining “willful misconduct” under the OPA is an objective test, not a subjective test. Thus, a 

determination of “willful misconduct” under the OPA does not always require proof of specific intent to harm. 

Rather, “willful misconduct” can be established with facts showing recklessness. These concepts are illustrated in 

Safeco v. Burr, 551 U.S. 47 (2007) where the Court analyzed how a statute should be construed when its standard 

for liability turns on a finding of willfulness. In that case, the Court concluded that “where willfulness is a statutory 

condition to civil liability, we have generally taken it to cover not only knowing violations of a standard, but 

reckless ones as well, [citations omitted]. This construction reflects common law usage, which treated actions in 

‘reckless disregard’ of the law as ‘willful’ violations.” Id. See also, Fryer v. A.S.A.P., 658 F.3d 85, 91 (1st Cir. 

2011), quoting Safeco, 551 U.S. 47, 57 (2007)(“In a series of decisions beginning in 1985, the Supreme Court has 

repeatedly held that, ‘where willfulness is a statutory condition of civil liability, ... [the term] cover[s] not only 

knowing violations of a standard, but reckless ones as well.”). 

92 As part of the claim adjudication process, the NPFC reviewed the actions of the WESTERN MARINER’s Captain 

and crew leading up to and during the vessel’s grounding and subsequent oil spill along with the material and 

operating condition of the WESTERN MARINER immediately before and during the casualty and did not find any 

evidence that the incident was proximately caused by the gross negligence or willful misconduct of WTB personnel.

93 As part of the claim adjudication process, the NPFC considered applicable regulations specific to the operation of 

the WESTERN MARINER (93GT towing vessel) in Alaskan waters to include Navigation Rules – International and 

Inland COLREGs, 33 CFR Part 164 – Navigation Safety Regulations, and 46 CFR Parts 136-144 – Subchapter M / 

Towing Vessels Regulations as well as information provided by the Claimants (e.g., CG licensing information for 

the vessel’s Captain and crew, post casualty drug testing results, and the crew’s 96 hour work/rest history) and did 

not find any evidence that the incident was proximately caused by a violation of an applicable federal safety, 

construction, or operating regulation.
14

The NPFC is authorized to pay claims for uncompensated removal costs that are consistent 

with the National Contingency Plan (NCP).94 The NPFC has promulgated a comprehensive set 

of regulations governing the presentment, filing, processing, settling, and adjudicating such 

claims.95 The claimant bears the burden of providing all evidence, information, and 

documentation deemed relevant and necessary by the Director of the NPFC, to support and 

properly process the claim.96

 Before reimbursement can be authorized for uncompensated removal costs, the claimant must 

demonstrate by a preponderance of the evidence: 

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects of the 

incident;

(b) That the removal costs were incurred as a result of these actions;

(c) That the actions taken were directed by the FOSC or determined by the FOSC to be 

consistent with the National Contingency Plan.

(d) That the removal costs were uncompensated and reasonable.97

In this case, Claimants seek reimbursement of removal costs incurred in excess of the limit of 

liability under 33 U.S.C. § 2704. Under the OPA, the limit of liability applicable to the 

WESTERN MARINER was $997,100.00. Claimants contend that they incurred $1,644,549.13 in 

removal costs. As a result, Claimants seek a total of $647,449.13 as compensation for their 

removal costs incurred in excess of the limit. The NPFC reviewed the documentation submitted 

by Claimants to adjudicate whether the claimants had incurred all costs claimed and each of the 

four factors above were met.

 

The NPFC analyzed each of these factors and determined most of the removal costs incurred 

by the claimants and submitted herein are compensable removal costs based on the supporting 

documentation provided. The NPFC determined all approved costs invoiced at the appropriate 

rate sheet pricing were billed in accordance with the rate schedule provided. All approved costs 

were supported by adequate documentation which included invoices, proofs of payment, and/or 

FOSC statements.

The amount of compensable removal costs totals $548,219.95, while $99,229.18 of the 

claimed removal costs were deemed not compensable for the following reasons:98 

1. Charges in the amount of $73,981.41 for activities (e.g., vessel survey, vessel 

fabrication and repair, and vessel tank cleaning) that occurred on-board the 

WESTERN MARINER after the vessel was refloated on March 29, 2022, secured to 

a recovery tug, and declared by the CG FOSC to no longer pose a substantial threat to 

discharge oil into a navigable waterway of the United States.99

94 See generally, 33 U.S.C. § 2712 (a)(4); 33 U.S.C. § 2713; and 33 CFR Part 136. 95 33 CFR Part 136. 96 33 CFR 136.105. 97 33 CFR 136.203; 33 CFR 136.205. 98 Enclosure 3 provides a detailed accounting of the amounts denied. 99 See, email from FOSC to NPFC dated June 15, 2023. Specifically, charges in the amount of $3,340.43 for 

American Bureau of Shipping (ABS) vessel survey costs incurred on March 30, 2022; charges in the amount of 
15

2. Charges in the amount of $3,025.62 for Charles Taylor, via Bowditch Marine, for 

costs incurred between March 22 – April 1, 2022. According to the Claimants, 

Charles Taylor, via Bowditch Marine, provided a survey of the barge, CHICHAGOF 

PROVIDER, to ensure it was also not a pollution threat. This ensured the pollution 

incident was limited to the tug itself, and not the barge, as well.100 However, the 

CHICHAGOF PROVIDER was not carrying any petroleum products as cargo and 

there was no indication that at any time the barge discharged any petroleum product 

that contributed to the pollution event.101 The NPFC inquired with the CG FOSC as 

to whether the CHICHAGOF PROVIDER posed a substantial threat to discharge oil 

into a navigable waterway of the U.S. after its collision with the WESTERN 

MARINER. The FOSC responded that it was aware that the barge was carrying 

containerized cargo and cargo handling equipment that contained oil. However, the 

FOSC did not believe the barge posed a substantial threat to discharge oil into a 

navigable waterway.102

3. Charges in the amount of $5,204.50 for MR & Associates, LLC, (MR) for the 

management of the claims process associated with the response. According to the 

Claimants, MR is an environmental cleanup and auditing company. MR was hired to 

assess, address, and evaluate any claims made by local interest to WTB in WTB' s 

role as RP. MR also assessed losses and damage to local Sitka-area fisheries as a 

result of the pollution incident.103 The NPFC asked the Claimants to better support 

MR’s costs by providing MR daily reports and an explanation of MR’s primary 

purpose and nature of worked performed.104 The Claimants responded that MR’s 

primary purpose and nature of work was related to providing claim services to 

respond to any person or entity alleging that they may have been impacted or 

otherwise sustained a loss relative to the spill at issue in this matter. They also 

provided 51 emails generated by or addressed to MR that documented MR's 

involvement in the generation and publication of an advertisement for claims, the 

payment for that advertisement, and news articles/advisories specific to the oil spill or 

potential closure resulting from the oil spill.105 As presented, the costs incurred by 

MR resulted from their generation of a claims advertisement and third-party claims 

$5,718.06 for Coastal Transport SE, LLC, vessel fabrication/repair costs incurred between March 30 – March 31, 

2022; charges in the amount of $32,254.67 for Marine Fluid Systems, Inc. vessel fabrication/repair costs incurred 

between May 16 - May 30, 2022; charges in the amount of $3,725.40 for Marine Vacuum Service, Inc. vessel tank 

cleaning costs incurred on April 26, 2022; Global Diving personnel charges, equipment charges, and purchases 

totaling $26,822.85 for fabrication and repair work incurred between March 30 – April 2, 2022; and Hanson 

Maritime personnel and equipment charges totaling $2,120.00 for fabrication and repair work incurred on March 30, 

2022.

100 Signed declaration of , WTB President of Operations, dated March 7, 2023, provided as 

Appendix 16 within the Claimant’s limit of liability claim submission dated April 4, 2023, page 6.

101 Claim Submission, page 3. 102 Email from FOSC to NPFC dated June 15, 2023. 103 Signed declaration of , WTB President of Operations, dated March 7, 2023, provided as 

Appendix 16 within the Claimant’s limit of liability claim submission dated April 4, 2023, page 10.

104 NPFC request for additional information to the Claimants dated June 16, 2023. 105 Letter from Claimants to NPFC dated July 13, 2023, page 12. See also Appendix 28 containing 51 emails 

generated by or addressed to MR Associates, LLC, provided in support of Claimants letter dated July 13, 2023.

(b) (6) (b) (6)
16

process and not a damage that is reimbursable from the Oil Spill Liability Trust Fund 

(Fund).106 The NPFC determines that these claimed costs are administrative and 

dedicated to the advertisement for claims and management of WTB’s claims process; 

as such they are denied.107 

4. Charges in the amount of $4,550.00 for the services provided by Polaris Applied 

Sciences, Inc, specific to the costs incurred under Polaris invoices #4791, 4801, and 

4809. According to the Claimants, Polaris provided environmental planning, 

shoreline assessments, daily reports, and on-scene coordination. It also monitored 

impacts to the local fishing population and effects on the local fisheries. Polaris 

regularly took part in Incident Command meetings, participated in overflights of the 

scene, and assessed the potential damage resulting from the pollution incident.108

However, the Polaris activities documented within invoices #4791, 4801, and 4809 as 

presented are not uncompensated removal costs necessary to prevent, minimize, or 

mitigate the effects of the incident and are therefore not reimbursable from the 

Fund.109 The NPFC determines that these are not uncompensated removal costs; as 

such they are denied. 

5. Personnel charges in the amount of $5,452.29 for State oversight provided by Alaska 

Department of Natural Resources (ADNR) from March 21 – May 15, 2022. The 

NPFC notified the Claimants that they needed to support these charges by providing 

straight time and over-time pay rates for ADNR personnel involved in the 

response.110 The Claimants responded but only provided the hours worked by ADNR 

personnel and not their straight time and over-time pay rates. These costs are denied 

as unsupported by the administrative record. 

6. Charges in the amount of $7,015.36 for miscellaneous charges to include replacement 

of equipment damaged during the response without an explanation of how the 

equipment was damaged, expenditures that lacked supporting documentation, 

duplicate billings, travel costs for personnel who were not part of the pollution 

response, drug & alcohol testing, public notices, and excessive travel upgrades. 

III. CONCLUSION

Based on a comprehensive review of the record, the applicable law, and regulations, and for 

the reasons outlined above, Claimants’ request to limit liability is approved. Claimants’ request 

for uncompensated removal costs is approved in the amount of $548,219.95. The amount 

remaining totaling $99,229.18 in claimed removal costs are denied.111

106 33 U.S.C. § 2702(b)(A)-(F). 107 33 CFR 136.105(d)(8) 108 Signed declaration of , WTB President of Operations, dated March 7, 2023, provided as 

Appendix 16 within the Claimant’s limit of liability claim submission dated April 4, 2023, page 11.

109 33 CFR 136.203(a) 110 See, email from NPFC to Claimants dated August 3, 2023 requesting additional information. 111 Enclosure 3 provides a detailed accounting of the amounts denied.

(b) (6)