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CLAIM SUMMARY / DETERMINATION FORM 

Date : 4/15/2010 

Claim Number : N08057-038

Claimant : United Maritime Group, LLC 

Type of Claimant : Corporate (US) 

Type of Claim : Removal Costs 

Claim Manager : 

Amount Requested : $169,842.03 

I. Facts

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

M/T TINTOMARA 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 (OPA). 

III. The Claimant and the Claim

United Maritime Group, LLC (UMG) (Claimant) owns a riverside terminal approximately 44 

miles downstream from the source of the tank barge DM 932’s discharge of oil. Claimant 

submitted a claim in the amount of $1,415,293.03, representing $1,184,032.00 in lost profits and 

earning capacity and $231,261.03 for uncompensated removal costs for itself and its subsidiaries: 

(1) U.S. United Barge Line, LLC (and its wholly owned subsidiary, U.S. United Inland Services, 

LLC); (2) United Bulk Terminal, LLC and (3) U.S. United Ocean Services, LLC, resulting from 

the discharge of oil from the tank barge DM 932. 

The UMG Group is located along three miles of riverfront at Mile Post 55. United Bulk Terminal 

(UBT) is the nation’s largest dry bulk, full-service blending and storage and transfer terminal 

located in Davant, LA, servicing both import and export customers. It handles petroleum coke, 

phosphate, grain and other various bulk commodities. It provides coal fuel to a large number of 

electrical generating facilities in the southeastern United States. United Barge Line (UBT), a 

marine inland transportation company operates a fleet of line haul vessels and barges, providing 

transportation services on the Mississippi, Illinois and Ohio Rivers and, through its subsidiary, 

United Inland Services, provides fleeting and shift tug services to UBT. United Ocean Services 

(UOS) is UMG’s U.S.-flag ocean going fleet transporting dry bulk commodities internationally 

and domestically between all U.S. deep-water ports and other parts of the world. 

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V. Applicable Law 

The Oil Spill Liability Trust Fund (OSLTF), which is administered by the NPFC, is available, 

pursuant to 33 USC §§ 2712(a)(4) and 2713 of OPA and the OSLTF claims adjudication 

regulations at 33 CFR Part 136, to pay claims for uncompensated removal costs that are 

determined to be consistent with the National Contingency Plan (NCP) and uncompensated 

damages. Removal costs are defined as “the costs of removal that are incurred after a discharge

of oil has occurred or, in any case in which there is a substantial threat of a discharge of oil, the 

costs to prevent, minimize, or mitigate oil pollution from such an incident.” 33 USC § 2701(31).

Under 33 CFR § 136.105(b) each claim must be in writing, for a sum certain for each category of 

uncompensated damages or removal costs resulting from an incident. In addition, under 33 CFR 

Part 136, the claimant bears the burden to prove the removal actions were reasonable in response 

to the scope of the oil spill incident, and the NPFC has the authority and responsibility to 

perform a reasonableness determination. Specifically, under 33 CFR § 136.203, “a claimant 

must establish -

(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 determined by the FOSC [Federal On-Scene Coordinator] to be 

consistent with the National Contingency Plan or were directed by the FOSC.”

Under 33 CFR § 136.205, “the amount of compensation allowable is the total of uncompensated 

reasonable removal costs of actions taken that were determined by the FOSC to be consistent 

with the National Contingency Plan or were directed by the FOSC. Except in exceptional 

circumstances, removal activities for which costs are being claimed must have been coordinated 

with the FOSC.” (Emphasis added). 

DETERMINATION OF LOSS:

A. Overview:

1. The FOSC coordination has been established under the Federal Project and SWS’s statement 

of same in Daily Report Logs.

2. The incident involved the discharge and continuing substantial threat of the discharge of 

“oil” as defined in OPA 90, 33 U.S.C. § 2701(23), to navigable waters.

3. In accordance with 33 CFR § 136.105(e)(12), the claimant has certified no suit is in court for 

the claimed uncompensated removal costs.3

 

3 On or about May 26, 2009, ACL filed a Complaint for Declaratory Judgment against numerous defendants that had 

filed claims with its claims administrator, Worley Catastrophe Response LLC. The action was filed in the U.S. 

District Court for the Eastern District of Louisiana. Named Defendants included United Maritime Group LLC, 

United Ocean Services, LLC, United Barge Line LLC and United Bulk Terminal LLC. By filing the complaint 

Plaintiff ACL denied all claims associated with the tank barge DM 932 incident. Plaintiff sought judgment declaring 

it was not liable to all defendants. The District Court ordered stay of the declaratory action until defendants had 

exhausted their administrative remedies, namely presentment of claims to the Plaintiff and, if not settled within 90 
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4. The claim was submitted on time. 

5. Presentment of costs to the RP was made by the Claimant, UMG, prior to the submission of 

the claim. The NPFC also made presentment of costs to the RP and the RP has provided a 

complete copy of their Audit of the SWS response costs presented. 

6. The NPFC Claims Manager thoroughly reviewed all documentation submitted with the claim 

and determined that the majority of all removal costs presented were for actions in 

accordance with the NCP and that the costs for these actions were indeed reasonable and 

allowable under OPA and 33 CFR § 136.205 with the exception of denied costs itemized in 

the attached Summary spreadsheets: (See, ACL audit which incorporates NPFC audit). 

B. Analysis: 

SWS Invoices

The Claimant, UMG, stated that all costs itemized in the SWS invoices are for uncompensated 

removal costs incurred by the Claimant for this incident for the time period of July 28, 2008 

through August 8, 2008, when SWS worked to clean vessels and piers at UMG’s terminal. The 

Claimant represents that all costs paid by the Claimant are compensable removal costs, payable 

by the OSLTF as presented by the Claimant. 

The Claims Manager reviewed the actual cost invoices, daily reports and proof of payment 

records to verify that the Claimant had incurred all costs claimed. The review focused on: (1) 

whether the actions taken were compensable “removal actions” under OPA and the claims 

regulations at 33 CFR Part 136 (e.g., actions to prevent, minimize, mitigate the effects of the 

incident); (2) whether the costs were incurred as a result of these actions; (3) whether the actions 

taken were determined by the FOSC to be consistent with the NCP, or directed by the FOSC, and 

(4) whether the costs were adequately documented and reasonable. 

Two months after Claimant submitted its claim to the NPFC, on September 1, 2009, ACL’s 

attorney submitted a letter to the NPFC outlining ACL’s objections to the payment of the 

removal costs claim. ACL argues that the costs for both invoices were not reasonable because the 

costs were higher than Oil Mop, Inc., a cleanup contractor hired by ACL to conduct removal 

actions for cleanup of the discharge from the tank barge DM 932. For instance, for Invoice 

58123, submitted to the NPFC in the amount of $109,403.12, ACL argues that a reasonable costs 

for services performed would be $80,048.07. As to Invoice 58446, submitted to the NPFC in the 

amount of $57,300.41, ACL argues that reasonable costs are only $40,909.06. 

On March 18, 2010, Mr. of Maritime Alliance Group, Inc. (MAGI), which is part of 

the ACL audit team, provided the NPFC with its audit of the SWS invoices that are the subject of 

this claim. The NPFC Claims Manager verified that the response activities performed by SWS 

were generally confirmed in the ACL Financial Audit. As detailed in the enclosed spreadsheets, 

the NPFC reviewed the detailed comments in the Financial Audit performed by ACL’s auditor. 

ACL auditors cited several reasons for denying or reducing certain SWS costs. First, the auditors 

 

days, submission of their claims to the NPFC. Subsequently, ACL appealed this decision and, on November 24, 

2009, voluntarily dismissed its appeal. Thus, at the time that this claim was adjudicated there was no action in court 

for the claimed uncompensated removal costs. 
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cited a rate reduction agreement as a basis for reducing some costs. However, SWS was not 

under contract with ACL for the cleanup; therefore, any rate reduction agreement does not apply 

to SWS. Second, the auditors reduced some rates to equal rates charged by Oil Mop, Inc., whose 

rates were mid-range rates and who had a contract with ACL to conduct removal activities. 

Again, SWS was not under contract to ACL; therefore, the Oil Mop rates are not applicable. 

Finally, ACL’s auditors questioned billing periods for straight-time and overtime stating that the 

first eight hours of any shift is straight-time and overtime doesn’t start until that period is 

surpassed. SWS had a published rate sheet (dated January 1, 2007) addressing how hours and 

time are allocated between straight-time and overtime. After reviewing the SWS rate sheet and 

the SWS invoices, the Claims Manager determined that SWS followed its rate sheet for most

labor, materials and equipment costs. 

Despite the various amounts denied by ACL’s auditors for several reasons, the NPFC approved 

most of those costs. ACL had more than one opportunity to review, approve or disapprove the 

SWS removal costs. First, Claimant believed that ACL would directly pay the SWS invoices 

upon receipt. At that time ACL could have negotiated the costs. Second, when ACL did not pay 

the costs directly, the Claimant submitted the removal costs to ACL four months after the tank 

barge DM 932 incident. ACL had access to these invoices nearly six months before the Claimant 

submitted the claim to the NPFC. ACL had ample time to negotiate and settle the costs with the 

Claimant. Not until the Claimant submitted its claim to the NPFC for reimbursement did ACL 

object to the costs. 

Further, upon its own analysis the Claims Manager determined that the SWS costs were 

reasonable for two reasons. First, under the circumstances – the spill was large and the Claimant 

felt urgency in getting its vessels, facility and piers cleaned as quickly as possible to minimize its 

lost profits – SWS was available to provide the needed services quickly. Claimant researched 

several cleanup contractors to ensure that SWS costs were reasonable. Second, because the 

services and materials/equipment listed on the daily sheets were provided pursuant to a verbal 

contract between UMG and SWS with specified rates, NPFC finds that UMG satisfied its burden 

of showing that the amounts claimed were reasonable and necessary. As a result, NPFC finds 

that these costs are eligible for payment under OPA. (See enclosure 1, ACL audit spreadsheets 

with NPFC supplementation for details). 

While the NPFC allowed most of the invoiced charges denied in the ACL Financial Audit, the 

Claims Manager reduced or denied some costs on the basis that the Claimant failed to justify a 

rate or to justify the expense. The main reduction was in per diem rates. SWS charged $170 per 

person per day even though its rate sheet allows $125 per day. SWS explained that it raised the 

per diem because hotel rooms alone were $125 per day and SWS added $45 to account for meals 

and stress relief (liquids). NPFC finds that an increase in per diem is reasonable, but not to the 

extent SWS charged (especially given the ambiguousness of “stress relief (liquids).” Therefore, 

the NPFC has allowed per diem to be paid according to the GSA government rate for the area 

and time period, which was $158 per day. Other than per diem, the other denials were for 

expenses that could not be readily connected to the oil spill response. 

The total allowed amount of compensable removal costs invoiced by SWS and paid by UMG is 

$164,978.35. 
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UMG Personnel Expenses

Due to a miscalculation, UMG claimed $3,138.00, but submitted evidence of personnel expenses 

in the amount of $3,258.05. The NPFC adjudicated the documented amount instead of the 

claimed amount. The expenses related to travel and housing for , UMG's Director of 

Compliance and Safety, and , UMG's Director of Risk Management and Safety, to 

be on-site from July 28, 2008 through August 2, 2008. The Claims Manager requested a detailed 

explanation and justification for their services during the removal actions. Claimant asserts that 

the spill and shutdown of the river affected nearly all aspects of UMG’s business and operations. 

According to the records provided by the Claimant, UMG facilities included more than 60 barges 

and tugs used for river transport and large piers, at least three of which could simultaneously 

accommodate ocean-going vessels. The spill contaminated most of its barges.4

 It disrupted the 

availability of UBL’s empty barges that made up northbound tows. The Mississippi River was 

not impacted in these northbound routes; thus, it was important to decontaminate these barges as 

quickly as possible. The constant moving of barges maintained the positioning of vessels, 

Claimant’s logistics patterns and coal delivery schedules. 

In order to reduce the interruption of vessel movement and mitigate lost revenues, UMG 

mobilized a variety of internal and external resources, including Mr. and Mr. 

who both understood the impact of the spill on UMG’s logistics pattern. They were charged with 

ensuring compliance with laws, regulations, and risk management practices. Their assignment 

included the following responsibilities: 

1. Expediting the cleaning of barges for turnaround to northbound tows; 

2. Coordinating the efforts of the various cleaning contractors and company vessels 

with regard to vessel priority in the cleaning queue and placement of barges in the 

fleet; 

3. Ensuring that the site safety plan was implemented and monitored for 

effectiveness;

4. Coordinating with the Coast Guard regarding cleaning and inspection of barges; 

and 

5. Tracking expenses related to the clean-up efforts.

In its September 1, 2009, letter to the NPFC ACL argues that these expenses were not necessary 

because two other UMG personnel, l and , were reviewing SWS 

activities. Further, ACL argues that SWS, like other OSROs, was performing to the satisfaction 

of the U.S. Coast Guard under guidelines jointly established by the Coast Guard and the LA 

Department of Environmental Quality. . 

The NPFC disagrees with ACL and finds that the presence of Mr. and Mr. were 

necessary and reasonable under the circumstances. Their responsibilities were not duplicative of 

Mr. and Mr. because they were also coordinating the priority of decontaminating 

the barges and vessels for turnaround to northbound tows where the Mississippi River was not 

 

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 Invoices submitted to the NPFC reflect that SWS decontaminated 62 barges and tugs at the UMG facility between 

July 28, 2008, and August 1, 2008. 
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closed. Also, the records reflect that they were not on scene during the entire SWS cleanup 

period, July 23-August 8, 2008. The Claims Manager reviewed the costs and found most of them 

to be supported and within reason, with the exception of one meal expense that appeared to be a 

duplicate expense amounting to $4.42. Therefore, $3,253.63 for travel-related expenses is 

compensable to the claimant. 

AMOUNT: $168,231.98

RECOMMENDATION: 

The NPFC determines that the OSLTF will pay $168,231.98 as full compensation for the 

reimbursable removal costs incurred by the Claimant and submitted to the NPFC under claim # 

N08057-038. All costs claimed are for charges paid by the Claimant for removal actions as that 

term is defined in OPA and, are compensable removal costs, payable by the OSLTF as presented 

by the Claimant. 

Claim Supervisor: 

Date of Supervisor’s review: 

Supervisor Action: 

Supervisor’s Comments: