CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1676 

Claimant Canton Dockside

Type of Claimant Private (US)

Type of Claim Loss of Profits or Impairment of Earning Capacity

Amount Requested $838,734.00 

FACTS

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

certain individual and business claims on behalf of BP.

On 08 March 2012, the United States District Court, Eastern District of Louisiana issued a 

"Transition Order" (TO) limiting the GCCF's ability to accept, process, or pay claims except as 

provided in that order. The TO created a Transition Process (TP) to facilitate the transition of the 

claims process from the GCCF to a proposed Court Supervised Settlement Program (CSSP). The 

Court granted Preliminary Approval of the proposed settlement agreement on 02 May 2012, and 

the CSSP began processing claims on 04 June 2012.

CLAIM AND CLAIMANT

On 8 February 2012, Charles Abbott, esq., on behalf of Canton Dockside, LLC. (collectively, 

“the Claimant”) submitted a claim to the NPFC, seeking to recover $838,743.00 in loss of profits 

or impairment of earning capacity damages allegedly resulting from the Deepwater Horizon oil 

spill.

1

 

The Claimant is a restaurant and crab house located in Baltimore, Maryland. According to the 

restaurant’s website, the Claimant “deals directly with Baltimore’s fishermen in order to serve . . 

. the biggest, freshest crabs.”2 However, a copy of the Claimant’s menu at the time of the oil 

spill indicates that “watermen in the gulf region work year round to provide our restaurant with 

the largest crabs available . . .”3

 The Claimant also provided evidence indicating that signs 

posted at the entrance of the restaurant advertise Louisiana shrimp and crab. Records of crab 

sales submitted in support of this claim indicate that from at least 2007 through 2010, the 

Claimant purchased the vast majority of its crab from suppliers selling Gulf of Mexico blue crab.

The Claimant alleged that the oil spill caused the restaurant to sustain $838,743.00 in losses from 

May through December 2010. Prior to the oil spill, the Claimant had anticipated May to 

December 2010 sales to increase by 100% over sales for the same period of 2009. Restaurant 

management anticipated this high level of growth due to the addition of 170 deck seats as well as 

the planned expansion of the interior dining area to include 150 additional seats. However, the 

Claimant alleged that “due to the oil spill and the supply of crabs, they chose to defer the 

1 Optional OSLTF Claim Form dated 5 January 2012. 2 http://www.cantondockside.com/crabs html, Accessed on 28 March 2013. 3 Canton Dockside Menu.

 
expansion until the uncertainty of the tainted crabs had been rectified.”4 Furthermore, the 

Claimant “has had to keep its large expanded dock closed for quite some time because of the 

lack of product and customers.”5

 As a result of the deferral of the interior expansion and the 

closure of the deck, the restaurant did not experience growth from May to December 2010 as 

anticipated. As such, the Claimant seeks to recover the difference in actual and anticipated sales 

for 2010.

In addition to lost sales, the Claimant alleged that they sustained a loss of profits due to the 

increase in costs of crab and other Gulf of Mexico seafood. Specifically, increased costs of 

goods account for$55,614.00 of the Claimant’s $838,743.00 in alleged losses.

APPLICABLE LAW 

Under the Oil Pollution Act of 1990 (OPA), at 33 U.S.C. § 2702(a), responsible parties are liable 

for removal costs and damages resulting from the discharge of oil into or upon the navigable 

water, adjoining shorelines, or the exclusive economic zone of the United States, as described in 

§ 2702(b) of OPA. 

The OSLTF is available to pay claims for uncompensated damages pursuant to 33 U.S.C. § 

2712(a)(4) and § 2713 and the OSLTF claims adjudication regulations at 33 C.F.R. Part 136. 

One type of damages available pursuant to 33 C.F.R. § 136.231 is a claim for loss of profits or 

impairment of earning capacity due to injury to or destruction of natural resources.

Under 33 C.F.R. § 136.233 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 of injury to, destruction of, or 

loss of 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; and

(d) Whether alternative employment or business was available and undertaken and, if so, the 

amount of income received. All income that a claimant received 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.

Under 33 C.F.R. § 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 C.F.R. § 136.235, the amount of compensation allowable for a claim involving loss of 

profits or impairment of earning capacity is limited to the actual net reduction or loss of earnings 

or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments 

for—

(a) All income resulting from the incident;

4 Claim cover letter, Part VI.

5 Claim Cover Letter, Part VII, 1.

 
(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertaken, but reasonably 

available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and 

(e) State, local, and Federal taxes.

Under 33 U.S.C. § 2712(f), payment of any claim or obligation by the Fund under OPA shall be 

subject to the United States Government acquiring, by subrogation, all rights of the claimant or 

State to recover from the responsible party.

DETERMINATION OF LOSS 

Claimant’s Submission to the NPFC

The Claimant submitted the following documentation in support of this claim:

See, Enclosure (2).

On 9 February 2012, the Claimant submitted this claim to the NPFC seeking $838,743.00 in loss 

of profits or impairment of earning capacity damages allegedly resulting from the Deepwater 

Horizon oil spill.

6

 Prior to submitting this claim to the NPFC, the Claimant submitted an 

Emergency Advance Payment (EAP) Claim to the RP/GCCF. According to the Claimant, the 

RP/GCCF denied payment on the claim.7 

Because this claim was first presented to and denied by the Responsible Party through the 

GCCF, the NPFC deems OPA presentment requirements to have been met. The NPFC may

therefore properly adjudicate this claim to the extent that all damages now presented were 

included in this claim as first presented to the GCCF.8

Furthermore, evidence in this claim submission indicates that the location of the Claimant’s 

business excludes them from the Economic and Property Damage and Class Action Settlement 

(the E&PD Settlement).

NPFC Determination

Under 33 U.S.C. § 2702(b)(2)(E) and 33 C.F.R. Part 136, a claimant must prove that any loss of 

income was due to injury, destruction or loss of real or personal property or of a natural resource 

as a result of a discharge or substantial threat of a discharge of oil. Under 33 C.F.R. § 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.

In order to prove a claim for loss of profits or impairment of earning capacity damages, a 

claimant must first prove “that the claimant’s income was reduced . . .”9 A reduction in income

under OPA is evidenced by “[t]he amount of the claimant’s profits or earnings in comparable 

periods and during the period when the claimed loss or impairment was suffered.”10 

Furthermore, the amount of compensation potentially available to a claimant must be limited by 

certain factors, including successful attempts by the claimant to mitigate its losses.

11 

6 Claim Cover Letter, 26 January 2012.. 7 Claim Cover Letter, 26 January 2012.

8 33 C.F.R. § 136.103(a).

9 33 C.F.R. § 136.233(b).

10 33 C.F.R. § 136. 11 33 C.F.R. § 136.235.

 
Here, the Claimant alleged to have sustained lost profits from May to December of 2010 totaling 

$838,743.00. This includes losses in the amount of $55,614.00 for increased costs of goods as 

well as $1,508,706.00 in actual lost sales before saved expenses.

In establishing a baseline by which to measure their losses, the Claimant placed significant 

weight on a plan to increase the restaurant’s seating capacity in 2010. As of May 2010, the 

Claimant expanded their deck to include 170 additional seats and had also begun planning to 

expand their interior dining space to seat an additional 150 patrons. The Claimant estimated that 

because of the planned expansions, the restaurant would have experienced revenue growth of 

100% from May to December of 2010 as compared to the same period of 2009. However, 

following the oil spill, the Claimant did not expand the restaurant’s interior and chose to keep the 

newly expanded deck closed. The Claimant cited the possibility of “tainted crab” as well as

“lack of product and customers” as the reasons for their decision not to proceed with expansions 

and to keep the deck closed.12 

Because the Claimant did not utilize additional deck seating and did not expand the interior of 

their restaurant in 2010, it did not experience anticipated growth. The Claimant further alleged 

that not only did the business fail to grow as expected, but that it “saw a drastic decrease in its 

restaurant and carryout business” due to a lack of seafood availability as well as a decrease in 

customer counts.13 However, financial documentation submitted in support of this claim fails to 

indicate either (1) that customer counts or sales decreased, or (2) that crabs were unavailable 

from May to December of 2010. Rather, the Claimant’s profit and loss statements indicate that 

for every month from May to December of 2010, restaurant sales increased over corresponding

monthly sales in 2009. This is true for restaurant sales generally and crab sales specifically. 

Overall, 2010 sales revenue increased by 11% over 2009 and 2008 levels, even without 

utilization of the new deck seating or the expanded interior seating capacity. Based on the 

foregoing, the Claimant has not demonstrated that restaurant sales decreased during the claimed 

loss period.

Furthermore, the Claimant has not provided evidence sufficient to prove that increased crab costs 

in 2010 caused the restaurant to sustain a loss of profits. Profit and loss statements indicate that 

income from crab sales in 2010 remained consistent with 2009 levels. Furthermore, the 

Claimant’s Federal Tax Returns indicate that the Claimant’s cost of goods sold as a percentage

of gross sales remained steady in 2009 and 2010 after improving slightly from 2008. In 2008, 

2009 and 2010, the Claimant’s cost of goods sold accounted for 53.71%, 48.04% and 48.89% of 

gross sales. The Claimant’s total income for each of those years was reported at $1,121,620.00, 

$1,259,824.00 and $1,383,484.00.14 This sales data fails to support the Claimant’s assertion that 

the restaurant sustained uncompensated losses due to increased cost of crabs or other seafood 

products after the oil spill.

In sum, the Claimant has not proven that they have sustained an uncompensated loss of profits as 

a result of the Deepwater Horizon oil spill. Although the Claimant failed to meet anticipated 

growth levels in 2010, it does not appear that they were unable to do so as a result of either (1) 

product unavailability (2) decreased sales or (3) increased cost of seafood caused by the 

Deepwater Horizon oil spill. 

12 Claim Cover Letter, Part VI. 13 Claim Cover Letter, Part VII, 1. 14 2008, 2009, 2010 Federal Tax Returns.

 
Based on the foregoing, this claim is denied because the Claimant has failed to provide evidence 

sufficient to prove that they sustained a financial loss in the amount of $838,743.00 as a result of 

the discharge or substantial threat of discharge of oil resulting from the Deepwater Horizon oil 

spill. 

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 4/08/13

Supervisor’s Action: Denial approved

Supervisor’s Comments: 
Enclosure (2)

Evidence Presented in Support of

NPFC Claim # N10036-1678

1) Optional OSLTF claim for dated 05 January 2012

2) Cotton Schmidt & Abbott LLP Cover Letter 

3) Cotton Schmidt & Abbott LLP Introduction Letter (claim explanation) 

4) Emails between Claimant and GCCF personnel from 18 February 2011 through 29 

December 2011.

5) BP Oil Spill Interim Claim Form 

6) Lost Profits Assessment of Canton’s Pearls LLC dba Canton Dockside Resulting from 

the Deepwater Horizon Oil Spill prepared by Bourgeois Bennett, LLC CPAs dated 19 

November 2010 and updated 28 January 2011

7) Advertising expenses for 2010

8) LA Blue Crab Co Inc Sales by Customer Detail for 01 January 2010 through 08

November 2010

9) Architectural services for Canton Dockside Restaurant bill for $7,077.00

10) Articles of Organization of Canton’s Pearls, LLC

11) 1st Mariner Bank Payoff Statement

12) 2007 Form 1065 US Return of Partnership Income

13) 2008 Form 1065 US Return of Partnership Income

14) 2009 Form 1065 US Return of Partnership Income

15) Third Amendment to Canton Pearls, LLC signed 07 June 2010

16) Second Amendment to Canton Pearls, LLC signed 01 April 2009 

17) State of MD Department of Assessments and Taxes 

18) Employee payment history from 14 March 2010 through 24 October 2010

19) Pictures of electric signs, store, and deck

20) Copy of Menu

21) Canton Pearls LLC Profit and Loss January through December 2007 and by month

22) Canton Pearls LLC Profit and Loss January through December 2008 and by month

23) Canton Pearls LLC Profit and Loss January through December 2009 and by month

24) Canton Pearls LLC Profit and Loss January through December 2010 and by month

25) Canton Pearls LLC All Transactions for Crabs Companies (K&L Crabs, Cajun Crab 

Connection, White Marsh Transport, Tino Mones SFD, Southwest Airline Cargo, Shell 

Beach Co, Premium Packing LLC, Pomes Seafood, John Sturgill, J&T Seafood, Crabs 

LLC, Carolina Crab Co) January through December 2010

26) Expenses by Vendor detailed reports

27) Invoices for purchases for 2008 through 2010

28) Six pictures of crabs 

29) Article from Bloomberg Businessweek titled “Oil Spill Imperils Gulf Coast Fishing 

Industry (Update 1) dated 29 April 2010 – 

30) Article from Gulflive.com Harlan Kirgan MS press titled “Researchers find evidence of 

oil spill in Gulf’s food chain” dated 30 June 2010 

31) Article from Los Angeles Times titled “Gulf oil spill: Undersea oil masses confirmed in 

tests” dated 21 June 2010 

32) Article from LA Seafood Newsroom titled “Fishermen fear the Economic Worst” dated 

17 June 2010 

33) Article from Gulflive.com Harlan Kirgan MS press titled “Shrimpers opting for cleaning 

Gulf of Mexico oil over shrimping” dated 16 June 2010 

34) Article from Daily Finance.com titled “For Food Business, BP Oil Spill is a Recipe for 

Disaster” dated 09 June 2010 
35) Article from e360yale.edu titled “The BP Spill’s Growing Toll on the Sea Life of the 

Gulf” dated 09 June 2010 

36) Article from suite.com titled “BP Gulf oil spill – Impact on Americas Environment and 

Economy” dated 07 June 2010 

37) Article from the dailygreen.com titled “Gauging the Long-Term Impacts of the BP Oil 

Spill” dated 06 June 2010 

38) Article from NOLA.com titled “Crab-Crazy MD finds itself a victim of BP’s Gulf oil 

spill” dated 26 September 2010 

39) Article from bpoilslick.blogspot.com titled “Oil spill waters contain carcinogens” dated 

30 September 2010 

40) Article from leanweb.org titled “BP oil spill Seafood Sampling Project Results 

Overview” dated 03 January 2011 

41) Article from ABC News titled “BP Oil Spill: Oil Hits Louisiana Wetlands, Causes Spike 

in Seafood Prices” dated 19 May 2010 

42) Article from The Times Picayune titled “A mixed message in spill’s aftermath” dated 07 

January 2011 

43) Article from The Times Picayune titled “With so little being done to clean this up, were 

never going to win this battle” dated 08 January 2011 

44) Article from AP titled “Spill report kindles Democratic push for reform” dated 11 

January 2011 

45) Article from Nola.com titled Scientists wary of BP oil spill’s long-term effects on species 

dated 10 November 2010 

46) Article from Newsinferno.com titled “Scientist Studying BP Oil Spill Finds Crude on 

Gulf of Mexico Floor” dated 30 November 2010 

47) Article from Ehow.com titled “Risks associated with eating blue crabs” dated 14 October 

2010 

48) Article from USA Today titled Obama goes to LA to address oil spill” dated 04 May 

2010 

49) Article from beforeitsnews.com titled “Numerous Lab BP Gulf Oil Spill Results 

Contradict Feds Sample-Find Widespread Contamination of Water and Seafood” dated 

15 November 2010 

50) Article from evostc.state.ak.us titled Pacific Herring undated 

51) Article from NOLA.com titled “MD is hungry for LA crabs, but LA can’t deliver” dated 

26 September 2010 

52) Article from WLF.louisiana.gov/news/32931 titled “LDWF Secretary Again Asks GBP 

to Fund an Extensive Seafood Testing, Certification and Marketing Plan” dated 15 

September 2010 

53) Article from NOLA.com titled Is it really safe to eat gulf seafood dated 19 December 

2010 

54) Article from The State titled “Gulf oil spill hurt SC businesses dated 11 December 2010 

55) Article from The Christian Monitor titled “New Gulf oil spill mystery: How much 

dispersant did BP use?” dated 01 August 2010 

56) Article from BBC News titled “Gulf of Mexico oil leak worst US environment disaster” 

dated 30 May 2010 

57) Article from Slashfood.com titled LA Blue Crabs Show Signs of Oil Contamination 

dated 10 August 2010 

58) Article from Louisianaseafoodnews.com titled “From Oil to Red Tape, The BP Mess 

Continues” dated 03 October 2010 

59) Article from Southernstudies.org titled “Independent tests find oil spill contamination in 

LA oysters and crabs” dated 31 August 2010 

60) Article from The Christian Monitor titled “Gulf oil spill to blame for oily blobs in vital 

Gulf sea life?” dated 24 August 2010 
61) Article from al.com titled “Gulf Seafood/BP image” dated 20 August 2010 

62) Article from houmatoday.com titled “Major Study charts lasting oil plume in Gulf” dated 

19 August 2010 

63) Article from wwltv.com titled “State pushes for more money from BP for seafood 

testing” dated 19 August 2010 

64) Article from McClatchydc.com titled “Gulf oil spill still a threat to seafood, JMA study 

indicates” dated 17 August 2010 

65) Article from nola.com titled Blue Crabs provide evidence of oil tainting Gulf food web” 

dated 10 August 2010 

66) Article from nowpublic.com titled “Environmental & Health Impacts of BP oil spill by 

Dr Tom Termotto (handwritten date 05 August 2010) 

67) Article from Nola.com titled “LA blue crabs are tough, but Gulf oil spill might be 

tougher” dated 20 July 2010 

68) Article from Scientific Research into Gulf Seafood Survival dated 13 July 2010 

69) Article from associatedcontent.com titled “Environmental Effects of the BP Oil Spill” 

dated 10 July 2010 

70) Article from usatoday.com titled Food Safety concerns mount as oil found in Gulf crabs” 

dated 02 July 2010 – oil droplets in crab larvae 

71) Article from foodsafetynews.com titled “Will Oil-Eating Bacteria Plague the Gulf?” 

dated 01 July 2010 

72) Article from McClatchydc.com titled “Oil found in Gulf crabs raises new food chain 

fears” dated -01 July 2010 

73) Article from environmentamerica.org titled BP’s Oil Spill Disaster Hurts LA Fisherman 

& Seafood Businesses dated 07 May 2010 

74) Since May 6 LA officials have lab tested more than 6930 finfish crab shrimp and oysters 

none have tested positive for hydrocarbons even close to levels that NOA or the FDA say 

reach a level of concern, MDMR tested shrimp and crab and found them to be fine (Dale 

Diaz), NOAA has done testing, FDA has sent a mobile lab to the region and is increasing 

inspections of Gulf Seafood processors

75) Abstract from American Society of Zoologists 1992 titled “effects of pollutants on 

Molting and Regeneration in Crustacea” 

76) Deepwater Report to the President dated January 2011 

77) Study reviewed in Fisheries Science 16(1-3):24-34, 2008 “The Chesapeake Bay Blue 

Crab: A Multidisciplinary Approach to Responsible Stock Replenishment 

78) ALS Laboratory Group 06 August 2010 for Boston Chemical Data Group 

79) Proposal for Fed Grant: Research report on the effect of dispersants on blue crab larvae 

dated 02 July 2010 

80) Study titled Polychlorinated Biphenyls in Blue Crabs from South Carolina dated 1987 

81) Oil spill sampling project results from St. Bernard parish from leanweb.org dated 26 

October 2010 

82) NOAA Technical Memorandum NMFS-AFSC-3 “Impact of Oil Pollution and Prince 

William Sound Studies: Bibliography of 1960-91 Publications and Reports, Auke Bay 

Laboratory dated August 1992 

83) University of Colorado Study titled “Health Effects of the Gulf Oil Spill dated 08 

September 2008 

84) Topical Field Courses – Western Program – Miami University titled “Final Paper: Nonpoint Source Pollution and its impact on the Chesapeake Bay: ecosystem and human 

health dated 03 June 2002

85) Oxfordjournals.org/content/32/3/495.abstract dated 1992 

86) Exxon Valdez Oil Spill Restoration Project Final Report dated December 1998 
Documents submitted in response to Additional Information Request:

- Cover Letter, 12 July 2012;

- 2010 Federal Tax Returns;

- 2011 Monthly Profit and Loss Statements;

- 2011 Federal Tax Returns;

- 2012 Monthly Profit and Loss Statements (Jan – May);

- Affidavit of Eric Hamilton;

- Response by Bourgeois Bennett, 30 June 2012;

- Letter from Casey LeBlanc in support of claim, 29 June 2012;

- Letter from Chris Pomes in support of claim, 6 July 2012;

- Letter from L.A. McKnight in support of claim, undated;

- Letter from Michael Robin in support of claim, 6 July 2012;

- Letter from Sara Shrewsberry in support of claim, 6 July 2012;

- Letter from Tim Demsky in support of claim, 6 July 2012;

- Letter from Tim Foltz in support of claim, 6 July 2012;

- Copy of restaurant menu.