CLAIM SUMMARY/DETERMINATION FORM

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 was 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. 

CLAIM AND CLAIMANT

On 19 September 2011, Anthony Tulli, on behalf of Mardi Gras Decorators, LLC (collectively the 

Claimant) presented an Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form to the National 

Pollution Funds Center (NPFC) seeking $130,000.00 in loss of profits and impairment of earnings 

capacity that allegedly resulted from the Deepwater Horizon oil spill.

The Claimant is a business in New Orleans, Louisiana that specializes in float building and decorating for 

carnivals and parades.1

 The Claimant asserted that, due to the Deepwater Horizon oil spill, carnival 

krewe members lost earnings and thus were unable to fund and host carnivals and parades.2

 This 

decrease in carnivals and parades resulted in a reduced demand for the Claimant’s float building and 

decorating services.3

The Claimant provided the following explanation regarding the calculation of his sum certain: the 

Claimant subtracted his 2010 revenue ($440,977.00) from his 2009 revenue ($573,700.00) for a 

difference of $132,723.00.4 

APPLICABLE LAW

The Oil Pollution Act of 1990 (OPA) provides that each responsible party for a vessel or facility from 

which oil is discharged into or upon the navigable waters or adjoining shorelines or exclusive economic 

zone is liable for removal costs and damages. 33 U.S.C. § 2702(a). Damages include the loss of profits 

or impairment of earning capacity due to the injury, destruction or loss of real property, personal property, 

or natural resources, which shall be recoverable by any claimant. 33 U.S.C. §2702(b)(2)(E). 

The OSLTF, which is administered by the NPFC, 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. With certain exceptions a claim must first be presented to the responsible party. 33 

U.S.C. § 2713(a). If the claim is either denied or not settled by any person by payment within 90 days 

1 http://www.mardigrasdecorators.com/about us main.html. 2 Optional OSLTF Claim Form, dated 08 September 2011.

3 Optional OSLTF Claim Form, dated 08 September 2011.

4 Document titled ‘Mardi Gras Decorators, LLC BP Trend Analysis’.

Claim Number N10036-1426

Claimant Mardi Gras Decorators, LLC 

Type of Claimant Business 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $130,000.00 

 
after the date on which it was presented, the claimant may elect to commence an action in court or present 

the claim to the OSLTF. 33 U.S.C. § 2713(c).

Pursuant to the claims regulations, 33 C.F.R. § 136.233, a claimant must establish the following to prove 

loss of profits or impairment of earning capacity:

(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.

(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 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 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;

(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.

DETERMINATION OF LOSS

The Claimant’s Submission to the OSLTF

In support of his claim, the Claimant presented the following documentation to the NPFC:

- Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form, dated 8 September 2011;

- Document titled ‘Mardi Gras Decorators, LLC BP Trend Analysis’;

- Letter dated 28 June 2011 with Anthony Tulli Tax Consultant letterhead;

- GCCF Denial Letter dated 03 August 2011;

- 2008 Form 1120S Federal Income Tax Return for an S Corporation;

- 2009 Form 1120S Federal Income Tax Return for an S Corporation;

- 2010 Form 1120S Federal Income Tax Return for an S Corporation;

- Spreadsheet titled ‘Mardi Gras Decorators, LLC Comparative Income Statements for period: 

January 2008-December 2010.
Prior to presenting his claim to the NPFC, the Claimant filed an Emergency Advance Payment (EAP) 

claim with the GCCF for loss of earnings on 13 October 2010 in the amount of $95,085.85.5

 The 

Claimant was assigned Claimant ID # 3163444 and Claim # 218520. The EAP Claim was denied by the 

GCCF on 03 December 2010.6

 Additionally, the Claimant filed a Full Review Final Payment (FRF) 

claim with the GCCF for loss of earnings on 06 December 2010 in the amount of $96,000.00.7

 The 

Claimant was assigned Claim # 9040167. This claim was denied by the GCCF on 03 August 2011.8

Based upon the evidence provided by the Claimant, it appears that the subject matter for the GCCF claims 

is the same as the subject matter of his claim before the NPFC, i.e., that due to the Deepwater Horizon oil 

spill, the demand for the Claimant’s Mardi Gras parade floats and decorations decreased resulting in a 

loss of income . The NPFC deems the Claimant’s denied GCCF claims to be properly presented to the 

RP and properly presented to the NPFC. Accordingly, this Claim Summary Determination for NPFC 

Claim N10036-1426 considers and addresses the lost earnings claimed in the Claimant’s submission

presented to the responsible party up to $96,000.009

, specifically; GCCF Claim #’s 218520 (EAP) and 

9040167 (FRF).

NPFC Determination

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. The NPFC considered all documentation presented by the Claimant.

Under 33 C.F.R. § 136.103(a), all claims for removal costs or damages must be presented first to the 

responsible party (RP). The Claimant presented an EAP Six Month Claim in the amount of $95,085.85 to 

the GCCF.10 The Claimant then presented a FRF Claim in the amount of $96,000.00 to the GCCF.11 The 

Claimant then presented a claim for loss of profits and impairment of earnings capacity in the amount of 

$130,000.00 to the NPFC.12 Any claimed amount of damages exceeding $96,000.00 was not properly 

presented to the RP/GCCF pursuant to 33 C.F.R. § 136.103(a) and is therefore denied.

The remainder of this claim is denied because the Claimant failed to prove it suffered a financial loss due 

to the Deepwater Horizon oil spill. The Claimant’s submitted financial documentation indicated that the 

business was in the midst of a dramatic decrease in revenue prior to the Deepwater Horizon oil spill. The 

Claimant’s earnings decreased from $1,006,761.0013 in 2008 to $572,909.0014 in 2009. This downward 

trend in earnings continued into 2010. In January through April of 2009, the Claimant had cumulative 

earnings of $232,848.00, compared to cumulative earnings of $145,499.00 for the same period in 2010.15 

Consequently, the Claimant failed to isolate the Deepwater Horizon oil spill as the reason for any 

reduction in earnings experienced by the business. 

Furthermore, the Claimant failed to provide any documentation evidencing a reduction in business due to 

the Deepwater Horizon oil spill. Even though the Claimant stated that that there were carnival and parade 

cancellations, the Claimant did not provide the NPFC with information of any specific contracts or events 

5 Report from the GCCF dated 06 October 2011. 6 GCCF Denial Letter dated 03 December 2010.

7 Report from the GCCF dated 06 October 2011.

8 GCCF Denial Letter dated 03 August 2011.

9 See discussion in NPFC Determination regarding the presentment of damages to the NPFC.

10 Report from the GCCF dated 06 October 2011. 11 Report from the GCCF dated 06 October 2011. 12 Optional OSLTF Claim Form received 19 September 2011. 13 2008 Form 1120S Federal Income Tax Return for an S Corporation. 14 2009 Form 1120S Federal Income Tax Return for an S Corporation. 15 Document titled ‘Mardi Gras Decorators, LLC BP Trend Analysis’

 
that were cancelled due to the Deepwater Horizon oil spill. Consequently, the Claimant failed to prove 

that the Deepwater Horizon oil spill was the cause of any specific loss allegedly incurred by the Claimant. 

This claim is denied because the Claimant failed to meet his burden to demonstrate (1) that there was an 

alleged loss in the amount claimed, and (2) that the alleged loss is due to the injury, destruction or loss of 

property or natural resources as a result of a discharge or substantial threat of a discharge of oil.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 11/3/11

Supervisor’s Action: Denial approved

Supervisor’s Comments: