Murphy Oil Company USA Inc. v. United States of America et al
Filing
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ORDER AND REASONS granting Defendants' 18 Motion for Summary Judgment and denying Plaintiff's 19 Motion for Summary Judgment. This matter is DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MURPHY OIL USA INC
CIVIL ACTION
VERSUS
NO: 12‐2756
UNITED STATES OF AMERICA, ET AL
SECTION: “H”(2)
ORDER AND REASONS
Before the Court are Cross‐Motions for Summary Judgment filed by both parties (Plaintiff:
Doc. 19, Defendants: Doc. 18). For the following reasons, Defendants' Motion is GRANTED,
Plaintiff's Motion is DENIED, and this matter is DISMISSED WITH PREJUDICE.
BACKGROUND
On July 23, 2008, the M/V TINTOMARA and the barge DM‐932 collided on the Mississippi
River near New Orleans. The barge DM‐932 was carrying a large supply of oil, which spilled into
the Mississippi River as a result of the collision. As part of its efforts to contain the spill, the United
States Coast Guard closed a portion of the Mississippi River for several days. Plaintiff, Murphy Oil
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USA, Inc. ("Murphy"), operates an oil refinery and dock downriver from the location where the spill
occurred. At the time of the spill, there were several vessels moored to Murphy's dock. Due to the
river closure, these vessels were compelled to remain at Murphy's dock for several days. Shortly
following the spill, Murphy presented a claim for its alleged damages to the party responsible for
the spill. Specifically, Murphy claimed that it sustained damages in the form of cleanup costs
associated with oil contamination of the vessels and the dock and damages for lost profits. After
receiving no response from the responsible party, Murphy filed a claim for recovery from the
National Oil Spill Liability Trust Fund pursuant to 33 U.S.C. § 2702. During the course of the claim
process, the United States Coast Guard's National Pollution Funds Center ("NPFC") split Murphy's
original claim into two separate claims: (1) a property damage claim; and, (2) a claim for lost
profits. The property damage claim was settled. As to the lost profits claim, the NPFC requested
additional information from Murphy. Murphy answered this request, and the claim was eventually
denied. After the NPFC denied Murphy's request for reconsideration, Murphy filed the instant
action seeking judicial review of the administrative action. Currently before the Court are cross‐
motions for summary judgment. Murphy seeks an order reversing the NPFC's decision and
remanding for an award of damages. Defendants seek an order affirming the NPFC's decision and
dismissing the suit.
LEGAL STANDARD
District courts review the final decisions of the NPFC pursuant to the Administrative
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Procedure Act, 5 U.S.C. § 701, et seq ("APA"). Buffalo Marine Servs. Inc. v. U.S., 663 F.3d 750, 753
(5th Cir. 2011). "The [APA] allows a federal court to overturn an agency's ruling only if it is arbitrary,
capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial
evidence on the record taken as a whole." Id. The Court begins with the "presumption that the
agency's decision is valid, and the plaintiff has the burden to overcome that presumption by
showing that the decision was erroneous." Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th
Cir. 2010). The agency's factual findings will be upheld so long as they are supported by substantial
evidence. Buffalo Marine Servs. Inc., 663 F.3d at 753. "The agency's legal conclusions are reviewed
de novo, except for questions of statutory interpretation, where the court owes substantial
deference to an agency's construction of a statute that it administers.” Id.
LAW AND ANALYSIS
The Oil Pollution Act of 1990 ("OPA") creates a regulatory scheme which governs the
cleanup of oil spills. 33 U.S.C. § 2702. Specifically, the OPA creates a system for identifying the
party responsible for the oil spill and places certain restrictions on that party's liability. Buffalo
Marine Servs. Inc., 663 F.3d at 752. The OPA also sets forth the procedure with which injured
parties must comply in order to recover their damages. An injured party must first submit their
claim to the party responsible for the oil spill. In the event that the responsible party does not pay
the claim, injuried parties may submit their claims to the NPFC. The NPFC has promulgated
regulations which describe the type of evidence required to make a claim. According to those
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regulations, in order for an injured party, i.e. Murphy, to recover on a claim for lost profits, it must
show:
(a) That real or personal property or natural resources have been
injured, destroyed, or lost.
(b) That [Murphy'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 [Murphy'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 [Murphy] 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.
33 C.F.R. § 136.233.
As will be explained below, Murphy's submission to the NPFC, its response to the NPFC's
request for additional information, and its briefing before this Court, reveal a fundamental
misunderstanding regarding the type of evidence required to substantiate a claim for lost profits
under the OPA. Because Murphy failed to submit the type of evidence require to substantiate its
claim, this Court must affirm the decision of the NPFC.
Murphy asserts that it is entitled to $306,921.13 in profits lost as a result of the oil spill.
Murphy claims that the five vessels moored to its dock were delayed as a result of the oil spill and
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that it was forced to pay demurrage charges as a result. Murphy submitted copies of the charter
contracts for the vessels as well as proof that it made timely payments under the contracts.1 The
contracts for the five vessels are, for the purposes of this case, essentially the same. All of the
vessels were chartered to Murphy on a long‐term basis. Each vessel was chartered by Murphy for
a minimum of one year. Several of the vessels were the subject of multiple successive one‐year
contracts. In order to calculate the purported demurrage charges, Murphy calculated the hourly
charter rate for each vessel. This was done by dividing the daily charter rate by 24. Murphy then
calculated the number of hours each vessel was required to remain docked due to the oil spill. The
hourly charter rate for each vessel was multiplied by the number of hours the vessel was delayed
to produce the purported demurrage rate. Curiously, the alleged demurrage rates claimed by
Murphy do not appear in the charter contracts for the vessels. Indeed, the charter contracts are
devoid of any mention of demurrage. A brief description of the term demurrage is helpful to
understanding this discrepancy.
Demurrage is a term commonly found in voyage charters. 2 Thomas J. Schoenbaum,
Admiralty & Mar. Law § 11‐15 (5th ed.). A voyage charter is a contract whereby the charterer
purchases the right to use the vessel on a single, specific voyage. Id. at § 11‐1. Voyage charters
generally allow a set period of time for the loading and unloading of the vessel, referred to as
laytime. Id. at § 11‐15. Demurrage charges result when a vessel on a voyage charter exceeds the
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The evidence differs slightly in that Murphy did not submit the charter contracts for some vessels,
or proof of payment for others. However, notwithstanding these minor differences in the type of evidence
submitted, the damages claimed by Murphy for each vessel are, for all practical purposes, the same.
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allotted laytime. Thus, demurrage is a charge which is required, pursuant to contract, to be paid
to the owner of a vessel when the vessel is delayed beyond the term of the charter.
In light of this explanation, it becomes clear why the charter contracts for the five vessels
are silent as to demurrage. Murphy was not bound to pay demurrage fees to the owners of the
vessels. Indeed, one would not expect demurrage charges to be imposed on the type of charter
contracts entered into by Murphy. Instead, the demurrage charges claimed by Murphy represent
an attempt on the part of Murphy to quantify its damages as a result of the oil spill. Unfortunately
for Murphy, this method of damages calculation is not endorsed by the NPFC regulations. Simply
put, payment of demurrage amounts, standing alone, is not sufficient to establish a claim for lost
profits. Stated another way, even accepting Murphy's purported "demurrage rates" as actual
expenses, Murphy has still failed to meet its burden to prove lost profits under 33 C.F.R. § 136.233.
Pursuant to 33 C.F.R. § 136.233, Murphy must establish that its "income was reduced as a
consequence of" the oil spill. Next, Murphy must establish "the amount of that reduction." Id.
Murphy must then submit evidence from which the NPFC can compare Murphy's profits from
similar periods in prior years with Murphy's profits during the period of the oil spill. 33 C.F.R. §
136.233. However, Murphy submitted absolutely no evidence of its income or profits, and the only
evidence Murphy submitted from prior years was an accounting of "demurrage rates" from two
previous years.
Herein lies Murphy's misunderstanding of the regulations. The NPFC regulations permit an
injured party to recover "the actual net reduction or loss of earnings or profits suffered." 33 C.F.R.
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§ 136.235. Thus, pursuant to the regulations, Murphy's recovery may not be determined by simply
calculating increased expenses associated with an oil spill. Instead, Murphy must submit evidence
to the NPFC from which the NPFC can determine the "net reduction" in Murphy's profits as a result
of the oil spill. Because Murphy did not submit the type of evidence which would enable the NPFC
to make the calculation required by the regulations, the Court cannot find that the NPFC's decision
was arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. To the
contrary, the Court's review of the record reveals that the NPFC was required to deny Murphy's
claim based on the evidence before it.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is DENIED, Defendants'
Motion for Summary Judgment is GRANTED, and this matter is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 27th day of February, 2014.
____________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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