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Water Quality Insurance Syndicate v. United States

United States District Court, District of Columbia

December 22, 2016



          BERYL A. HOWELL Chief Judge

         The plaintiff Water Quality Insurance Syndicate (“WQIS”) brings this action against the defendant United States of America challenging a decision by the National Pollution Funds Center (“NPFC”) of the United States Coast Guard (“USCG”), under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq. The challenged NPFC decision, issued on June 30, 2014, pursuant to the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. § 2701, et seq., denied plaintiff's claim for reimbursement of the costs for cleaning up an oil spill in Cook Inlet, Alaska, that resulted from a supply vessel, the MONARCH, colliding with an offshore oil and gas production platform. See Administrative Record (“AR”) US003494 (Letter from NPFC Claims Manager to plaintiff (June 30, 2014) (“First Denial Decision”)).[1] The NPFC's denial decision turned on a finding that the oil discharge was proximately caused by the MONARCH Captain's gross negligence, which is a statutory ground for denial of reimbursement.[2] Id.

         Pending before the Court are the parties' cross-motions for summary judgment. See Pl.'s Mot. Summ. J. (“Pl.'s Mot.”), ECF No. 19; Def.'s Cross-Mot. Summ. J. & Opp'n Pl.'s Mot. Summ. J. Cross-Mot. (“Def.'s Opp'n”), ECF No. 20. For the reasons set out below, the plaintiff's motion is granted in part and denied in part, and the defendant's cross-motion is denied.[3]

         I. BACKGROUND

         Following review of the applicable statutory framework under the OPA, the relevant factual and procedural background is summarized below.


         The policy of the United States, as expressly articulated by the Congress, is “that there should be no discharges of oil . . . into or upon the navigable waters of the United States” or other waters under federal jurisdiction. 33 U.S.C. § 1321(b)(1). In the wake of the massive spill in 1989 of eleven million gallons of oil from supertanker EXXON VALDEZ into the Prince William Sound in Alaska, Congress determined that then-existing laws provided inadequate remedies for addressing the damage caused by oil spills and therefore enacted, in 1990, the OPA. See Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 511 (D.C. Cir. 2009); Water Quality Ins. Syndicate v. United States, 522 F.Supp.2d 220, 226 (D.D.C. 2007); United States v. Bodenger, 2003 WL 22228517, at *2 (E.D. La. Sept. 25, 2003); Apex Oil Co. V. United States, 208 F.Supp.2d 642, 651-652 (E.D. La. 2002). The “OPA was designed ‘to streamline federal law so as to provide quick and efficient cleanup of oil spills, compensate victims of such spills, and internalize the costs of spills within the petroleum industry.'” Hornbeck Offshore Transp., 569 F.3d at 511 (quoting Rice v. Harken Expl. Co., 250 F.3d 264, 266 (5th Cir. 2001)).

         To meet these goals, the OPA established a comprehensive system of strict liability for the removal of oil discharges, subject to liability caps and funding support paid for by the oil industry. Specifically, under the OPA, a “responsible party” for a vessel or a facility that discharges oil into the navigable waters of the United States is strictly “liable for the removal costs and damages . . . that result from such incident.” 33 U.S.C. § 2702(a). The OPA defines a “responsible party” to include vessel owners, operators, and demise charterers. See 33 U.S.C. § 2701(32)(A).

         At the same time, the OPA limits liability and removal costs based on vessel type and tonnage.[4] See 33 U.S.C. § 2704(a). Responsible parties for vessels “from which oil is discharged” are authorized to submit a claim with supporting documentation to the NPFC to recover costs beyond the prescribed limits by demonstrating that the party “is entitled to a limitation of liability under section [33 U.S.C. § 2704].” 33 U.S.C. § 2708(a)(2); see United States v. Locke, 529 U.S. 89, 101-02 (2000) (noting that OPA “imposes liability (for both removal costs and damages) on parties responsible for an oil spill” and “[o]ther provisions provide defenses to, and limitations on, this liability”).

         The OPA created the Oil Spill Liability Trust Fund (“the Fund”) to pay such claims “for uncompensated removal costs determined by the President to be consistent with the National Contingency Plan [(“NCP”)] or uncompensated damages.” 33 U.S.C. § 2712(a)(4). The Fund is financed through a tax on the oil industry, see 33 U.S.C. § 2701(11); 26 U.S.C. § 9509, thereby “internaliz[ing] the cost of oil spills within the petroleum industry, ” Great Am. Ins. Co. v. United States, 55 F.Supp.3d 1053, 1064 (N.D. Ill. 2014). The NPFC is responsible for adjudicating claims to the Fund and determining whether the uncompensated removal costs are consistent with the NCP. A claimant “seeking recovery [from the fund] bears the burden of providing all evidence, information, and documentation deemed necessary by the Director[ ] [of the] NPFC, to support the claim.'” Smith Prop. Holdings, 4411 Conn. L.L.C. v. United States, 311 F.Supp.2d 69, 71 (D.D.C. 2004) (quoting 33 C.F.R. § 136.105) (alterations in original).

         The limitation on liability for removal costs is subject to statutory exceptions that remove the liability cap and the concomitant authority for the responsible party to obtain reimbursement from the Fund. The liability limitation does not apply, for example, when the responsible party fails to report the incident as required or to provide all reasonable cooperation and assistance with removal activities. See 33 U.S.C. § 2708(c)(2)(A) and (B). In addition, as relevant here, the liability limitation on removal costs does not apply when the incident was “proximately caused by (A) gross negligence or willful misconduct of or, (B) the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.” 33 U.S.C. § 2704(c)(1). Thus, “[r]esponsible parties may face unlimited liability for, inter alia, acts of gross negligence or willful misconduct.” Puerto Rico v. M/V Emily S. (In re Metlife Capital Corp.), 132 F.3d 818, 821 (1st Cir. 1997).


         The MONARCH is owned by Ocean Marine Services, Inc. (“OMSI”) and covered by an oil pollution insurance policy issued by plaintiff. AR US002603 (Letter from OMSI to USCG, Alaska Department of Natural Resources, and Alaska Department of Environmental Conservation (Feb. 26, 2010)); US000001-03 (Pl.'s Claim Letter to NPFC) (Jan. 10, 2012)). This vessel supplies oil and gasoline to offshore production platforms in Cook Inlet and provides backup oil spill response services. AR US002632 (Global Diving & Salvage Report & Recommendations (“GDS Report”)).[6] At the time of the incident, the MONARCH was seaworthy and suitable for service in the Gulf of Alaska. AR US002800-02 (Certificate of Inspection (May 16, 2005, amended Nov. 8, 2010)).

         In the winter, Cook Inlet has tidal fluctuations of 20 feet or more, with strong tidal currents that can reach estimated velocities of two to three knots at the entrance to the Inlet and increased velocities in particular areas, as well as ice packs that can reach up to 6.5 feet thick. AR US003764, 4095 (USCG's “Report of Investigation Into the Circumstances Surrounding the Incident Involving the Sinking of the OSV MONARCH” (“USCG Report”) (June 25, 2009)). Despite these treacherous conditions, oil platforms operate continuously through the winter months, and “there is great pressure from the platform owners to have these [resupply] vessels operate regardless of the conditions.” AR US003793 (USCG Report);[7] see also AR US002627 (GDS Report).

         On January 15, 2009, the MONARCH was under the command of Captain Jeremy Bucklin, “very experienced in Cook Inlet operations, having worked himself up from deckhand to mate to master.” AR US002627 (GDS Report); see also AR US002486 (USCG Interview of Captain Bucklin (Jan. 21, 2009) (“USCG Captain Interview”)). Captain Bucklin testified as part of the USCG's investigation that he has been operating in the Cook Inlet for eleven years: five years as a mate and then six years as Captain of the MONARCH. AR US002486 (USCG Captain Interview).

         At the time of the incident, the MONARCH had on board seven crew members, including the Captain and Chief Mate Walter Mitchell Hebb III. AR US002471 (USCG Interview of Chief Mate Walter Mitchell Hebb (Jan. 21, 2009) (“USCG Hebb Interview”)). After servicing five platforms, with three more to go, the ship set out from the Monopod platform towards its sixth stop, approximately eight nautical miles north, to the Granite Point platform. AR US002466 (USCG Interview of crewmember Russell Tomlinson (Jan. 21, 2009) (“USCG Tomlinson Interview”)). The Granite Point platform is a fixed production platform, currently owned by Chevron, and located on the west side of northern Cook Inlet. AR US003764 (USCG Report); AR US003827 (USCG Witness Statement)[8]; AR US002635 (GDS Report). While the platforms already serviced by the MONARCH were in open water, the Granite Point platform was located further north where there was a “bigger accumulation of ice.” AR US002452 (USCG Interview of crewmember William James Kelley (Jan. 21, 2009) (“USCG Kelley Interview”). The platform is supported by four seventeen-foot diameter legs, which break up ice pans such that maneuvering around the platform is easier by approaching it against the current. AR US002635, 2638 (GDS Report). Given the ice, wind, and tidal current circumstances on January 15, 2009, the crew planned to head north to Granite Point with the tidal current, pass the platform on the west side, then make a 180-degree turn toward the south and move against the current toward the platform. AR US002627 (GDS Report).

         On the morning of the incident, Chief Mate Hebb held the 12:00 a.m. navigational watch, with each watch scheduled for six hours. AR US002471-72 (USCG Hebb Interview). At 5:00 a.m., Captain Bucklin awoke and went to the main cabin to replace Chief Mate Hebb early at approximately 5:20 a.m.[9] AR US003764 (USCG Report finding that “[t]he Master of the MONARCH had awoken at 0500 due to the noise from the breaking ice and subsequently relieved the Mate at approximately 0515 instead of the scheduled 0600.”); AR US002466 (USCG Tomlinson Interview, stating “[a]t about 5:20, the captain came up with his cup of coffee, you know, getting ready to go to work the three rigs up north”); AR US003831 (USCG Report, Supplemental Statement by Chief Mate Hebb (“Chief Mate Supp. Statement”) that “[a]round 5:20 . . . [the Captain] came up top with coffee.”); AR US002486 (USCG Captain Interview, stating that he woke up at approximately 5:00 a.m. and “probably arrived at the wheel house at 20 after, 5:30, perhaps. Somewhere in there. I can't give you more - this is my best guess on times. It was either 5:20 to 5:30.”).

         During the hand-off, Chief Mate Hebb reported to Captain Bucklin “about how [his] evening had gone and how much work [he] had done, and . . . told him that [he] had called Granite Point platform.” AR US002474 (USCG Hebb Interview); AR US003831 (Chief Mate Supp. Statement that “Captain and Mate discussed what we had done and what we were going to do next.”). Chief Mate Hebb told Captain Bucklin that the MONARCH was forty-five minutes away from the next destination at Granite Point platform. AR US002486-87 (USCG Captain Interview). Captain Bucklin soon assessed, however, that the MONARCH was only about ten minutes away from the platform. Id. Since Chief Mate Hebb had previously called Granite Platform at 5:13 a.m., and given the incorrect expected arrival time, Captain Bucklin called back at 5:20 a.m., to correct Chief Mate Hebb's prior estimation. AR US002474 (USCG Hebb Interview); AR US002486-87 (USCG Captain Interview); AR US002524 (MONARCH Phone Log).

         When Captain Bucklin relieved the Chief Mate, the MONARCH was moving in the dark through heavy ice, “with some ice pans as thick as 3 feet.” AR US003774 (USCG Report); AR US002254 (Chief Mate Supp. Statement); AR US002486 (USCG Captain Interview). Consequently, the MONARCH was not able to “follow[] a straight line” to the next platform. AR US002487 (USCG Captain Interview). Navigating through heavy ice requires the selection of “ice leads, ”[10] or cracks in the sea ice, to allow the vessel to move, but typically on an indirect trajectory toward the intended destination. See AR US002479 (USCG Hebb Interview, explaining that when operating in heavy ice, “[t]here are places where two pans meet, where you can cut through” and thus “you can't just go on like a nice straight course[, ] . . . you're spending time going left, going right, going left, going right, . . . so it's not a standard course”). This is what Captain Bucklin did: he maneuvered the MONARCH into ice leads of open water or thinner ice, using “standard ice procedures” requiring the vessel to “follow the path of least resistance, which is not necessarily directly towards your destination.” AR US002487 (USCG Captain Interview). Captain Bucklin described this maneuvering as follows:

Sometimes you just got a lead that this goes this [w]ay, let's take this, and then you have to make it up because you had to go around a big pan, or just, you know, you would see a way off the port, for example, to go around a pan. You go around the pan and then you make your way back to starboard.


         During this maneuvering, if the vessel hit “a pan of [thick] ice, [the ice would] break[] and knock[]” the vessel in another unintended direction. Id. According to Captain Bucklin, due to the presence of ice, the vessel might have to be up to ninety degrees off course for an extended period of time before the course could be corrected, “partly on purpose, partly by circumstances.” Id.; see also AR US002450 (USCG Interview of Deck Hand Steven Shangin (Jan. 21, 2009) (“USCG's Shangin Interview”), stating that because of the thick ice, the MONARCH had to “back up” at least “[a] couple of times”). Chief Mate Hebb explained that while “navigating . . . on a straight course” a vessel operator might “look[] farther, maybe out in the distance or something, ” but, by contrast, “[w]hen we're operating [in] the ice, we're operating under sodium lights, so we can light up the ice so we can see.” AR US002479 (USCG Hebb Interview). For this reason, a vessel operator has to “balance . . . time by looking farther and looking right up in front of your boat because you're constantly change course to find the, quote, ‘easier way' through the ice.” Id.

         The necessity of using these standard ice procedures resulted in the MONARCH being “gradually steered off the intended course” by Captain Bucklin into the direction of the flood tide, which was producing a 5.5 knot current in the northerly direction. AR US003764, 3775 (USCG Report). Nevertheless, the USCG found that Captain Bucklin was “correct in maneuvering the vessel through the ice as he did.” AR US003793 (USCG Report). Yet, by focusing his attention on maneuvering the vessel in this manner, the USCG also determined that Captain Bucklin “lost focus on the large situation he was placing the vessel in and assumed he was on the correct course when in fact, because of the variation in course directions to avoid ice, the vessel was on the wrong approach towards the platform.” Id. In other words, Captain Bucklin “lost situational awareness” due to the navigational necessities of moving the MONARCH in the extant conditions of heavy ice. AR US003792. The USCG Report stressed multiple times that “immediately prior to the casualty the Master was struggling to keep the vessel clear of heavy ice and lost situational awareness of the course the vessel was heading as he maneuvered around the ice.” Id.; see also, e.g., AR US003764 (“The Master was fatigued that morning and unable to properly maintain the level of situational awareness necessary to ensure the MONARCH's correct navigational approach to the GRANITE POINT Platform.”); AR US003792 (“In effect, the Master lost situational awareness by having tunnel vision concerning the thick ice instead of assuring the correct course the vessel should have been transiting in order to approach the Platform from the correct direction.”); AR US003793 (“[T]he master lost focus on the large situation he was placing the vessel in and assumed he was on the correct course when in fact, because of the variation in course directions to avoid ice, the vessel was on the wrong approach towards the platform.”).

         As the MONARCH approached the platform, Captain Bucklin explained that the vessel “[b]usted through heavy ice” and hit “bands of heavy ice interspersed with moderate ice and slush and slushy goo.” AR US002487 (USCG Captain Interview). After five to ten minutes “beating through the heavy ice, ” the vessel emerged from the heavy ice and was “through into the moderate stuff” but Captain Bucklin then “realized [the vessel was] close to the platform.” Id. Further complicating the situation, rather than passing the Granite Point platform on the west side as intended, the MONARCH was positioned so that the current, then at the height of the flood tide, along with the force of the ice, pushed the port stern of the MONARCH into the southwest corner leg of the Granite Point platform, breaching the MONARCH's hull at 5:46 AM. AR US003775-76, US003792 (USCG Report). With the port stern forced against the southwest corner of the platform, the current and ice then also forced the port bow against the southeast leg of the platform, “pinning” the vessel to the platform perpendicular to the strong flood tide. Id. at AR US003764 (“[T]he current pinned the vessel against 2 legs of the GRANITE POINT Platform and subsequently pushed ice on deck.”).

         Prior to impact, Captain Bucklin realized his mistake and tried to correct it. He explained that he “jammed the throttles forward and put the jog stick hard right, ” but the response from the vessel was “minimal.” AR US002488 (USCG Captain Interview). He attributes the minimal response to the fact that the MONARCH was in “slushy gooey broken ice” that prevented the stern from moving. Id. The USCG Report noted that had Captain Bucklin “realized his situation sooner he would have called off the approach and tried again or . . . waited until the ice coverage abated or tide changed.” AR US003793. Unfortunately, however, “by maneuvering through heavy ice by trying to find open or lighter ice, ” in the view of the USCG, Captain Bucklin had lost “situational awareness” by focusing on his maneuvers through the thick ice. Id. at AR US003792.

         Captain Bucklin confirmed that he “misread the orientation of the platform, ” and added that “when [he] realized [his] mistake, the ice slowed the response of the vessel and [he] was unable to maneuver clear prior to hitting the granite [point] platform.” AR US003847 (USCG Report, Supplemental Statement by Captain Bucklin). Other crew members familiar with the conditions in Cook Inlet corroborate the USCG's finding regarding the loss of situational awareness. Chief Mate Hebb explained that when “navigating in ice . . . it could be easy to get yourself” in the incorrect position because the vessel is forced to follow available ice leads. AR US002479-80 (USCG Hebb Interview). He expressed the “utmost sympathy, as other drivers do, for our captain because we all feel it could happen to us.” Id. at US002480. Other crewmembers echoed Chief Mate Hebb's assessment of Captain Bucklin's handling of the incident. See, e.g., AR US002484 (USCG Hebb Interview, stating that “every one of the [crewmembers] said [they] would sail with [Captain Bucklin] again” and told him to tell Captain Bucklin that they didn't “hold him responsible [and] . . . it could have happened to anybody”); AR US002450 (USCG Shangin Interview, stating “I would sail with [Captain Bucklin] any time again. He knew what he was doing. He was a good boat operator, if you ask me. He was doing everything. I think he did everything right.”); AR US002464-65 (USCG Sisson Interview, characterizing Captain Bucklin as “a good captain. I wouldn't hesitate to get back on a boat with him in a minute” and opining that Captain Bucklin “did everything he could to save” the MONARCH, that “[h]e never put us in harm's way on purpose, ” but that the allision was “beyond his control”).

         At 5:44 a.m. and 5:45 a.m., shortly before the allision, Captain Bucklin placed two unanswered calls to the ANNA platform, which was the next stop after Granite Point, to advise that the MONARCH was approximately thirty minutes away. AR US003776 (USCG Report); AR US002524 (MONARCH Phone Log). Such calls between supply vessels and platforms are routine to keep the platform apprised of the vessels' estimated time of arrival so that the platform is adequately and timely prepared. See AR US002524 (MONARCH Phone Log showing regular calls made from the MONARCH to the Anna, Granite Point, Monopod, Dolly Varden, and Steelhead platforms); AR US002473 (USCG Hebb Interview, explaining that “[w]e always call the platforms on the telephone before we get up there and start to work.”). For example, when Captain Bucklin called the Granite Point platform at 5:20 a.m., the platform responded by noting that the crane operator was getting in “the crane right then.” AR US002486 (USCG Captain Interview).

         The allision with the platform pierced the MONARCH's hull, damaging the vessel's fuel tanks and allowing water to pour into the vessel. AR US003761, 3779-83 (USCG Report). Given the frigid conditions, ice began piling up on the stern. Id. at AR US003782-83. All seven crew members evacuated to the platform before ice caused the MONARCH to capsize, and eventually sink. Id. at AR US003782. Approximately 38, 000 gallons of fuel, lube, and generator oil were released into Cook Inlet. Id. at AR at ¶ 003761-62; AR US002644 (GDS Report). OMSI subsequently began an oil spill response, which included recovering 12, 445 gallons of oil. AR US000169 (Pl.'s Pollution Response Incident Report). The plaintiff, as OMSI's insurer, incurred $2, 698, 159.59 in expenses in removal costs and expenses, and issued a claim for $1, 898, 159.59 (the total expenses “less [the] $800, 000 limit” on liability as set forth in 33 U.S.C. § 2704(a)(2)). AR US000002 (Pl.'s Claim Letter to NPFC).

         C. Coast Guard Investigation

         Regional USCG units are tasked with undertaking marine casualty investigations to determine measures to promote safety at sea. See 46 U.S.C. § 6305; 46 C.F.R. §§ 4.01-1, 4.07- 10. Here, the USCG unit stationed at the Gulf of Alaska and familiar with the local conditions undertook an “informal” investigation. AR US003761 (USCG Report). Although the incident met “the criteria for a formal investigation, the Officer In Charge, Marine Inspection for Western Alaska[, ] down-grade[d] the level of investigative effort to that of an informal investigation . . . .” Id.

         The USCG's investigation was initiated immediately following the incident in January 2009 and involved a thorough review of the circumstances leading up and occurring at the time of the allision. As part of its investigation, the USCG conducted interviews of and obtained statements from crewmembers within the month after the incident. AR US03795 (USCG Report). The USCG also reviewed crewmember drug tests and work/rest history for at least ninety-six hours prior to the incident, with the results of this review documented in the USCG Report. AR US003769-70, 3796-99, 3818-33, 4007-60, 3770-73, 3806-07. In addition, the USCG collected and examined relevant documentation, such as: (1) drawings and photographs of the MONARCH prior to the incident and as it sank, and photographs of the Granite Platform the day following the incident, AR US003803-05; (2) MONARCH log book entries for January 2009, AR US003806; (3) Tide and Current Data for the area where the MONARCH sank, AR US003803; (4) the MONARCH's phone records for January 14 and 15, AR US003808; (6) review of extracts of 2009 Coast Pilot navigational information for the Cook Inlet, including the Ice Guidelines and information regarding significant tides and current, AR US003808, 4090-96; and (7) Charts of the MONARCH's time, position, and course information recorded every five minutes on January 15, 2009, AR US003808.

         Based on this investigation, the USCG identified two factors as “the primary contributors to the sinking of the OSV MONARCH”: “(1) the Cook Inlet environmental conditions, ” which had strong current and ice conditions, and “(2) crew fatigue, ” stemming from the crew's difficulty getting sufficient rest during their 6 hours off-watch because “when the vessel operated in ice, sleep was often unobtainable or interrupted.” AR US003764 (USCG Report); see also AR US002464 (USCG Sisson Interview, stating that he did not get much sleep the night before the incident “[b]ecause of the ice” and that “normal[ly], in the ice when you're working, if you can get two to three hours of sleep a night, you're doing good. You had a good night”); AR US002466 (USCG Tomlinson Interview, stating that on the way to the Granite Point platform, the MONARCH “hit some more heavy ice” which “woke the rest of the crew, except for the engineer”). While acknowledging that “[m]ost casualties cannot be attributed only to one causal factor, ” the USCG commented on the inter-relationship of these two primary factors, stating that “in the OSV MONARCH case, the master's fatigue played a role as significant as the environmental conditions.” AR US003764 (USCG Report).

         The USCG noted that the “Master was using the vessel's phone to contact the ANNA Platform at 0544 and 0545 to give the ANNA Platform 30 minute notice before delivery supplies” but “was not able to contact the Platform with the first call at 0544 nor with the second attempt at 0545.” AR US003776. The USCG, however, did not cite these brief calls as contributing in any way to the allision.

         Following the investigation, the USCG filed administrative enforcement proceedings against Captain Bucklin, alleging “misconduct” because he “allowed one or more watertight doors to remain open” and “negligence” because, after he assumed navigational duties of the MONARCH, the vessel “struck a fixed object, the oil platform, ” and then “overturned and eventually sank next to the oil platform” with diesel fuel and lube oil onboard. AR US003222 (USCG Suspension & Revocation (“S&R”) Complaint filed in August, 2009). Without admitting any liability, Captain Bucklin agreed, in September 2009, to settle this administrative matter with “a mitigated sanction of 4 months suspension on 24 months [sic] probation.” AR US003245 (Settlement Agreement between Captain Bucklin and USCG).

         D. Agency Proceedings

         In January, 2012, the plaintiff submitted to the NPFC a reimbursement claim totaling $1, 898, 159.59 for uncompensated oil removal costs. AR US000001-2 (Pl.'s Claim Letter to NPFC). In response to NPFC's request, the plaintiff subsequently supplemented its claim with roughly 300 pages of additional information. AR US002230 (Pl.'s Letter to NPFC Claims Manager (Mar. 23, 2012)). In the plaintiff's view, the documentation “clearly demonstrates that the loss was not in any way caused by gross negligence, willful misconduct or violation of regulation.” Id. The NPFC disagreed with the plaintiff's assessment in two denial decisions summarized below.

         1. The First Denial Decision

         Over one year after submission of the plaintiff's claim, the NPFC requested, on March 27, 2013, that the plaintiff produce an engineering report and other documentation to determine whether the plaintiff met the prerequisites to limit its liability for removal costs. AR US002539- 40 (Letter from NPFC Claims Manager to plaintiff (Mar. 27, 2013)). In response, the plaintiff provided the GDS engineering report; detailed answers to NPFC's questions; a case study prepared by Aasgard Summit Management Services; and a CD-ROM containing a PowerPoint presentation, photographs, and computerized video of the MONARCH making its approach to the Granite Point Platform. AR US002543-2546 (Pl.'s Letter to NPFC Claims Manager (Aug. 5, 2013)). The plaintiff also submitted to the NPFC the USCG investigative file on the incident that the plaintiff had obtained through a Freedom of Information Act (“FOIA”) request. AR US003210-3488 (Pl.'s Letter to NPFC Claims Manager (Sept. 30, 2013)).

         Over six months after the last submission by the plaintiff, the NPFC denied the plaintiff's claim on June 30, 2014, finding that the plaintiff was not entitled to the limitation on liability because Captain Bucklin had been grossly negligent. AR US003489-95 (First Denial Decision). In a six-page “Claim Summary/Determination, ” the NPFC highlighted the treacherous or “extreme” conditions in which the MONARCH was traveling on the day of the allision: “the vessel was traveling on a flood tide from the south [with] ¶ 5.5 knot current in heavy pack ice with thickness reported as between 16-24 inches covering most of the waterway, . . . in the dark, [and] [w]ind was 20 knots . . . .” AR US003491-2. The NPFC credited Captain Bucklin with having “the normal or intended approach under the prevailing conditions” to the Granite Point platform, AR US003493, but concluded this intended approach “did not happen because Captain Bucklin did not begin maneuvers until the vessel was only a couple of hundred yards from the platform and there was insufficient time and distance under the conditions to come about for a controlled approach, ” AR US003492. The maneuvers attempted by Captain Bucklin were unsuccessful because he “got minimal response” from the vessel's controls and “the vessel was pushed towards the platform abeam the current.” Id. The NPFC also remarked that “[i]explicably . . . in the midst of the last minute attempts to maneuver the vessel and avoid the allision Captain Bucklin made or attempted to make phone calls to the Anna Platform which was next in line for deliveries after the Granite Point Platform.” Id.

         The NPFC's analysis of the facts is entirely silent about the USCG's findings regarding the Captain's lack of situational awareness due to navigating the MONARCH through heavy ice in the dark, despite the USCG's repeated description of this critical context for both the otherwise “inexplicable” phone calls and belated maneuvers. In a brief one-paragraph section discussing the USCG's report, the NPFC acknowledged the USCG's contrary conclusion that the “causes of the allision were lack of situational awareness and fatigue.” AR US003494. Without any specific response or critique, however, the NPFC summarily noted that the USCG report is “[n]ot dispositive” and that “the NPFC ...

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