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CLAIM SUMMARY / DETERMINATION FORM 

Date : 10/12/2010 

Claim Number : N08057-080

Claimant : Mabanaft, Inc. 

Type of Claimant : Corporate (US) 

Type of Claim : Loss of Profits and Earning Capacity 

Claim Manager : 

Amount Requested : $81,312.63

I. Facts

On the morning of July 23, 2008, the tank barge DM 932 sank as a result of a collision and 

discharged oil into the Mississippi River, a navigable waterway of the United States. 

II. Responsible Party

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

responsible party (RP) under the Oil Pollution Act. 

III. Claimant

The claimant is the charterer and operator of the M/V TRADER and her tow, consisting of three 

tank barges chartered from Kirby Inland Marine, under a one-year time charter that began on 

January 1, 2008. The claimant engages in the transport of clean petroleum products between 

various facilities along the Gulf Coast Intracoastal Waterway and the Mississippi River south of 

Baton Rouge, Louisiana. 

IV. Claim Description 

The claimant seeks payment for charter hire paid to Kirby under the charter for the time the 

vessel tow was delayed by the oil spill and oil spill response. The claimant presented its claim to 

the RP prior to presenting it to the Oil Spill Liability Trust Fund. (See claimant’s 

correspondence in exhibits 8 and 9 evidencing the presentation to Worley Catastrophe Response, 

the claims administrator for ACL). The claimant states that it submitted its claim to the RP on 

October 1, 2009. After receiving no resolution within 90 days, the claimant submitted its claim 

to the NPFC on May 12, 1010. 

V. APPLICABLE LAW

All claims for removal costs or damages shall be presented first to the responsible party or 

guarantor of the source designated under section 2714(a) of this title. 33 U.S.C. §2713(a).

If a claim is presented in accordance with subsection (a) of this section and

(1) each person to whom the claim is presented denies all liability for the claim, or 
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(2) the claim is not settled by any person by payment within 90 days after the date upon 

which

(A) the claim was presented, or 

(B) advertising was begun pursuant to section 2714 (b) of this title, whichever is later, 

the claimant may elect to commence an action in court against the responsible party or 

guarantor or to present the claim to the Fund. 33 U.S.C. §2713(c).

The uses of the OSLTF are described at 33 U.S.C. §2712. It provides in relevant part that: 

“(a) Uses generally

The Fund shall be available to the President for –

(4) [T]he payment of claims in accordance with section 2713 of this title for 

uncompensated removal costs determined by the President to be consistent with the 

National Contingency Plan or uncompensated damages; . . .

Damages include damages for injury to natural resources, injury to or economic losses from the 

destruction of real or personal property, loss of subsistence use of natural resources, Government 

loss of revenues, loss of profits or earning capacity as a result of loss or destruction of real or 

personal property or natural resources, and costs of increased public services. 33 U.S.C. 

§2702(b). Damages are further defined in OPA to include the costs of assessing the damages. 

33 U.S.C. §2701(5).

Damage claims must be presented within 3 years after the date on which the injury and its 

connection with the discharge in question were reasonably discoverable with the exercise of due 

care. 33 U.S.C. §2712(h)(2).

In any case in which the President has paid an amount from the OSLTF for any removal costs or 

damages specified under 33 U.S.C. §2712(a), no other claim may be paid from the Fund for the 

same removal costs or damages. 33 U.S.C. §2712(i).

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

processing, settlement, and adjudication of claims...” 33 U.S.C. §2713(e). Those regulations are 

found at 33 CFR Part 136. 

Under 33 CFR 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. Further, a claim presented to the Fund should include, as applicable:

“[T]he reasonable costs incurred by the claimant in assessing the damages claimed. This 

includes the reasonable costs of estimating the damages claimed, but not attorney’s fees or 

other administrative costs associated with preparation of the claim.” 33 CFR 136.105(e)(8).

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

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

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

requirements for loss of profits and earning capacity claims in Subpart C, 33 CFR 136.231, et 

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

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

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

“In addition to the requirements of Subparts A and B of this part, a claimant must establish the 

following—

(a) That real or personal property or natural resources have been injured, destroyed, or lost. 

(b) That the claimant’s income was reduced as a consequence 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) 

If a third party claimant or an RP is able to establish an entitlement to lost profits, then 

compensation may be provided from the OSLTF. But the compensable amount is limited to the 

actual net reduction or loss of earnings and profits suffered. Calculations for net reductions or 

losses must clearly reflect adjustments for the following: all income resulting from the incident; 

all income from alternative employment or business undertaken; potential income from 

alternative employment or business not undertaken, but reasonably available; any saved 

overhead or normal business expenses not incurred as a result of the incident; and state, local, 

and Federal tax savings. 33 CFR 136.235 (a) – (e). 

Under 33 CFR 136.115(d), the Director, NPFC, will, upon written request of the claimant or the 

claimant's representative, reconsider any claim denied. The request for reconsideration must be 

in writing and include the factual or legal grounds for the relief requested, providing any 

additional support for the claim. The request for reconsideration must be received by the NPFC 

within 60 days after the date the denial was mailed to the claimant or within 30 days after receipt 

of the denial by the claimant, whichever date is earlier. 

VI. DETERMINATION

River Closure 

The barge 932 oil spill disrupted shipping in and out of the Mississippi River. The NPFC 

reviewed the Coast Guard situation report-pollution (SITREP-POL) reports, which clearly state 

that vessels were delayed from 7/23/2008 until well after 7/28/2008. SITREP-POL Eight, stated 

the Mississippi was closed from mile marker 98 to the sea buoy.1

 SITREP-POL Nine identified 

a safety zone from mile marker 98 through mile marker 11 in place and that all clean tows 

 

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See, MST1 email dated July 28, 2008 with inserted SITREP-POL Eight, para. 1.H. 
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outside the safety zone would be given permission to transit after notifying the Vessel Traffic 

Service.2 On August 10, 2008, Coast Guard Sector New Orleans issued SITREP-POL Twenty, 

still maintaining a safety zone from mile marker 97 through mile marker 40.3

Claimant’s Allegations 

The claimant alleges that it sustained damages in the form of lost profits and loss of earning 

capacity for a cumulative delay of seven days, one hour and fifteen minutes following the oil 

spill. Via claimant’s Exhibit 6 entitled, “Statement of Claim of Mabanaft, Inc. for Delay and 

Expenses of M/V TRADER and KIRBY Barges,” claimant alleges four separate delays totaling 

7.99 days. According to the claimant, the four delays were as follow: 

1. 0630 on 23 July 2008 to 1400 on 23 July 2008 = 0.313 days 

2. 0435 on 24 July 2008 to 1535 on 29 July 2008 = 5.458 days 

3. 0800 on 30 July 2008 to 1200 on 31 July 2008 = 1.167 days 

4. 1045 on 1 August 2008 to 1200 on 2 August 2008 = 1.052 days 

The claimant provided evidence that its vessels had to be cleaned twice because they were oiled 

twice during the incident. (See See the Vessel Decontamination Log for the DM932 Incident 

Response and a CG spreadsheet of decontaminated vessels and Mabanaft’s own Daily Inland 

Traffic Report, Kirby vessel Trip Logs, and the Kirby Inland Division “Traffic by Boat 

Report.”). 

The claimant states that the vessel restrictions imposed and the required hull decontaminations 

following the spill prevented the vessel tow from proceeding on its intended voyage, thereby 

depriving the claimant of profit and earning capacity during the delays. The claimant argues that 

the daily hire amount it paid to Kirby for the charter during the delay periods represents a loss of 

profits. The asserted loss is calculated using the claimed daily charter hire rate of $10,176.80 for 

a total of $81,343.16. 

NPFC’s Analysis 

The NPFC must deny the claim for loss of profits and impairment of earning capacity. 

Delays

The NPFC finds that the claimant’s tow was delayed. The SITREP-POL statements show that 

the Coast Guard restricted traffic on the river. There is Coast Guard documentation showing 

decontamination of vessels in the tow. (See the Vessel Decontamination Log for the DM932 

Incident Response and a CG spreadsheet of decontaminated vessels). The NPFC verified delays 

during a review of claimant’s documentation (i.e. Mabanaft’s own Daily Inland Traffic Report, 

Kirby vessel Trip Logs, Kirby Inland Division “Traffic by Boat Report,” and Murphy Oil email 

correspondence with dock schedule updates). However, the NPFC finds that the cumulative 

delay is slightly different than that calculated by claimant. The NPFC found that the delay on 23 

 

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See, MST1 email dated July 29, 2008 with inserted SITREP-POL Nine, para. 2.M. 

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See, MSTC email dated August 12, 2008 with inserted SITREP-POL Twenty, para. 1.H. 
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July actually ended at 1330, when the trip logs stated “Finished Waiting on River Condit[ons]” 

and/or “Reconnected Crossover Hose,” rather than 1400 as alleged. We were unable to 

determine how the claimant arrived at 1400 for the end of the first delay. Aside from the one 

discrepancy, the NPFC verified the other delays as alleged by the claimant. This results in a total 

determined delay of 7.9688 days. 

Burden to Show Loss and Causation Not Met

In a letter dated September 10, 2010, Claimant explains that it is entitled to reimbursement for 

lost profits because there is a “reasonable certainty” that the delays resulted in lost profits. 

Claimant cites 1 Robert L. Dunn, RECOVERY OF DAMAGES FOR LOST PROFITS, which states that if the fact 

of damages is proven with “reasonable certainty,” the plaintiff is entitled to recover the value of 

his contract as measured by the value of his profits. Dunn notes, and Claimant acknowledges, 

that case law recognizes that while the reasonable certainty test is a flexible one, “at a minimum, 

opinions or estimates of lost profits must be based on objective facts, figures or data from which 

the amount of lost profits can be ascertained.” Atlas Copco Tools, Inc. v. Air Power Tool & 

Hoist, Inc., 131 S.W. 3d 203 (Tex. App. 2004).

The NPFC agrees with, and the OPA regulations comport with, this theory. The regulations 

require financial reports or income tax returns – objective facts or figures - to evidence a 

reasonable certainty of the fact of damages. Once the fact of damages is established, there are 

several methodologies that may be used to quantify the damage, including the demurrage 

provided in the applicable charter. Demurrage - loss of profits resulting from the loss of use of a 

vessel - has traditionally been an item of damages in admiralty. Skou v. United States, 478 F.2d 

343, 345 (5th Cir. 1973) However, courts sitting in admiralty agree with the requirement that 

damages must first be established. The mere stipulation of a liquidated sum for demurrage in a 

charter agreement does not obviate the need to show actual damages. Trans-Asiatic Oil Ltd. S.A. 

v Apex Oil Co., 804 F. 2d 773, 782 (P.R. 1986).

Referring to the requirement to prove damages, the claimant has not met its burden of showing 

reduced profits, increased expenses, or even a change in either one due to the spill. The claimant 

demonstrated that the oil was purchased at a price fixed by contract prior to the spill. (See 

7/14/08 oil purchase agreement). The claimant then stated that the cargo was transferred to a 

shore side tank for later distribution from the tank in smaller consignments into a number of 

vessels, so there are no documents to show resale of the product (i.e. no evidence of sale price). 

(See 10/5/10 Alan Davis email). Based on claimant’s statement, it appears that the operation is 

of an inventory-stock-piling type where profits and expenses are not directly related to individual 

voyages. Therefore, the claimant has not shown that it had fixed revenue for the cargo in the 

voyage at issue. 

The vessel tow operated under a one-year time charter. The claimant states that the vessel tow 

operates constantly to shift cargo as needed between ports on the lower Mississippi River, but 

does not operate on a pre-determined or fixed schedule. The charter hire was payable under the 

charter over the year of the charter whether the vessel was delayed by an oil spill or not, unless 

the vessel was taken off hire. Therefore, the claimant has not shown that it paid hire that it 
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would not have paid had the oil spill not occurred. This means that the claimant has not shown 

the alleged increase in transportation expenses resulting from the spill. 

Though the claimant argues that it had a fixed sale price and a fixed purchase price, and the 

transportation costs increased, thereby resulting in a net loss of profit on the voyage, the claimant 

has not demonstrated an actual net loss of profit. The claimant may have increased incidental 

expenses directly resulting from the oil spill delays, but it has not presented those costs nor has it 

provided the details or supporting documentation of those potential increased expenses. Since 

the claimant has not proven a reduction in revenue or an increase in expenses, it has not 

demonstrated a loss of profit. 

Conclusion 

To be compensated, a claimant must demonstrate by a preponderance of evidence that it 

sustained lost profits before we can quantify them. Because the claimant has not shown the fact 

of damages in the form of lost profits, it has not met its burden of proving that the oil spill caused 

it to lose profits. The claim must be denied. 

VII. AMOUNT: $0.00 

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: