Potential Claimant Recovery for Lost Profits and Economic Damages Resulting from the Gulf Oil Spill
Commercial
Fishermen,
Shrimpers,
Oystermen, etc.
Charter Fishing
Captains, Boat
Rentals, Dive
operators, etc.
GCCF
Emergency
Claims
(governed by
OPA) –
Emergency
Advance
payments are
available for
one month or
six months at
a time
Yes – See
Emergency Advance
Payment Protocol
(EAPP) at Section
II-C-1. All claimants
will need to provide
the information
listed in Exhibit A –
III of the GCCF
claims form.
Likely Yes – These
claimants can
identify damage to
specific natural
resources as the
cause of their
losses. See
Emergency
Advance Payment
Protocol (EAPP) at
Section II-C-1. All
claimants will need
to provide the
information listed in
Exhibit A – III of
the GCCF claims
form.
Gulf Coast
Claims
Facility
(GCCF)
Feinberg
Protocol
Yes – Must have
proof of lost profits
and earning capacity
as set forth in
Claims Protocol
section II-C-2.
Recovery will be
offset by money
received from BP to
charter boats or hire
crews for cleanup
work.
Likely Yes, based
on lost profits and
earning capacity.
Must have proof as
set forth in Claims
Protocol section IIC-2. Recovery will
be offset by money
received from BP to
charter boats or hire
crews for cleanup
work.
Suppliers and
Customers of
Businesses
affected by oil
spill (seafood
wholesalers,
restaurant and
hotel suppliers)
Likely No See EAPP at
Section II-F.
These
businesses are
unlikely to be
able to prove
that the oil spill
was the
proximate
cause of their
losses.
No – see
Claims
Protocol
section II-F
(specifically
prohibiting
recovery for
customers and
suppliers of oilinjured parties).
Hotels, Restaurants,
and other businesses
located directly on
the water and with
oil appearing on
the beach
Hotels,
Restaurants, and
other businesses
not directly on
the water but
with oil on the
beach
Hotels, Restaurants,
and other
businesses located
directly on the
water but without
oil appearing on the
beach
Tourist
Attractions, Golf
Courses,
Restuarants, etc.
located inland of
a coastal
community
State
government
for loss or
diminution of
natural
resources
State government
for loss of tax
revenues and
fees
State government
for the cost of
providing
additional public
services
Local
government
for loss or
diminution
of natural
resources
Local government
for loss of tax
revenues and
fees
Local government
for the cost of
providing
additional public
services
Yes - See
Emergency
Advance Payment
Protocol (EAPP) at
Section II-C-1. All
claimants will need
to provide the
information listed in
Exhibit A – III of
the GCCF claims
form.
Likely Yes, if
claimants can
show specific
damage to
natural resources
that caused their
loss. See
Emergency
Advance
Payment
Protocol (EAPP)
at Section II-C-1.
All claimants
will need to
provide the
information
listed in Exhibit
A – III of the
GCCF claims
form.
Likely No,
unless the
claimant can
show proof that
they have a right
to use a specific
natural resource
which has been
damaged by oil.
See Claims
Protocol section
II-C-2.
Likely No –
Without oil
appearing on the
beach, these
businesses are
unlikely to prove
that the oil spill was
the proximate cause
of their losses. See
EAPP at Section IIF (explaining that
geographic
proximity, among
other things, will be
used in determining
causation).
Likely No – See
EAPP at Section
II-F (explaining
that geographic
proximity, among
other things, will
be used in
determining
causation). These
businesses are
unlikely to be able
to prove that the
oil spill was the
proximate cause
of their losses.
No – The
EAPP does
not address
recovery by
state
governments,
only recovery
by individuals
and
businesses.
No – The EAPP
does not address
recovery by state
or local
governments,
only recovery by
individuals and
businesses.
No – The EAPP
does not address
recovery by state
or local
governments,
only recovery by
individuals and
businesses.
No – The
EAPP does
not address
recovery by
local
governments,
only recovery
by
individuals
and
businesses.
No – The EAPP
does not address
recovery by local
governments,
only recovery by
individuals and
businesses.
No – The EAPP
does not address
recovery by local
governments,
only recovery by
individuals and
businesses.
Likely No, unless
the claimant can
show proof that
they have a right to
use a specific
natural resource
which has been
damaged by oil.
Must have proof as
set forth in Claims
Protocol section IIC-2.
No – These claims
are too remote in
place to the oil
spill damage. See
Claims Protocol
section II-F.
No – The
Claims
Protocol does
not address
recovery by
state
governments,
only recovery
by individuals
and
businesses.
No – The Claims
Protocol does not
address recovery
by state
governments,
only recovery by
individuals and
businesses.
No – The Claims
Protocol does not
address recovery
by state
governments,
only recovery by
individuals and
businesses.
No – The
Claims
Protocol does
not address
recovery by
local
governments,
only recovery
by
individuals
and
businesses.
No – The Claims
Protocol does not
address recovery
by local
governments,
only recovery by
individuals and
businesses.
No – The Claims
Protocol does not
address recovery
by local
governments,
only recovery by
individuals and
businesses.
Yes, based on lost
profits and earning
capacity. The
Claims Protocol
uses a hotel whose
beach was oiled as
an example where
recovery will be
allowed. Must have
proof as set forth in
Claims Protocol
section II-C-2.
Office of Chief Financial Officer Alex Sink – August 26, 2010
Page 1
Federal Oil
Spill
Protection Act
(OPA)
Florida
Pollution
Discharge
Prevention
and Removal
Act - Chapter
376, F.S.
Commercial
Fishermen,
Shrimpers,
Oystermen, etc.
Charter Fishing
Captains, Boat
Rentals, Dive
operators, etc.
Suppliers and
Customers of
Businesses
affected by oil
spill (seafood
wholesalers,
restaurant and
hotel suppliers)
Yes – see 33 U.S.C.
2702 (b)(2)(E). Must
have proof of lost
earnings from
natural resource
destruction as set
forth in 33 C.F.R
136.233
Likely Yes – see
33 U.S.C. 2702
(b)(2)(E). Must
have proof of lost
earnings from
natural resource
destruction as set
forth in 33 C.F.R
136.233.
Likely No –
Claimants must
prove the
amount of their
loss, including
comparative
figures for
similar
businesses
outside the oilaffected area.
Hotels, Restaurants,
and other businesses
located directly on
the water and with
oil appearing on
the beach
Hotels,
Restaurants, and
other businesses
not directly on
the water but
with oil on the
beach
Hotels, Restaurants,
and other
businesses located
directly on the
water but without
oil appearing on
the beach
Likely Yes, if
claimants can
prove that their
business has
declined more
than similar
businesses
located in areas
not affected by
the presence of
oil on the
beaches. See 33
C.F.R 136.233.
No – The Curd No – The Curd
Likely Yes – The
Yes – see Curd v.
No – The Curd
Mosaic Fertilizer.
decision did not decision did not
decision did not
Curd case dealt
Must be able to
strictly with
address these
address these
address these
show actual
commercial
businesses, and businesses, and the businesses, and
damages such as lost fishermen, but the
the statutory
statutory language
the statutory
profits
reasoning of Curd
language in
in Section 376.031, language in
would apply to
Section
F.S., limits damages Section 376.031,
anyone who has a
376.031, F.S., to “destruction or
F.S., limits
“special interest…to limits damages loss of real or
damages to
use public waters to to “destruction personal property”. “destruction or
earn their
or loss of real
loss of real or
livelihood.” Curd at or personal
personal
10.
property”.
property”.
Likely Yes, if
claimants can prove
that their business
has declined more
than similar
businesses located
in areas not affected
by the presence of
oil on the beaches.
See 33 C.F.R
136.233.
Yes – see 33
U.S.C. 2702
(b)(2)(E). Must
have proof of lost
earnings from
natural resource
destruction as set
forth in 33 C.F.R
136.233.
Office of Chief Financial Officer Alex Sink – August 26, 2010
Tourist
Attractions, Golf
Courses,
Restuarants, etc.
located inland of
a coastal
community
Likely No Claimants must
prove the amount
of their loss,
including
comparative
figures for similar
businesses outside
the oil-affected
area, which these
businesses are
unlikely to be able
to prove.
No – The Curd
No – The Curd
decision did not
decision did not
address these
address these
businesses, and the businesses, and
statutory language
the statutory
in Section 376.031, language in
F.S., limits damages Section 376.031,
to “destruction or
F.S., limits
loss of real or
damages to
personal property”. “destruction or
loss of real or
personal
property”.
State
government
for loss or
diminution of
natural
resources
State government
for loss of tax
revenues and
fees
State government
for the cost of
providing
additional public
services
Local
government
for loss or
diminution
of natural
resources
Local government
for loss of tax
revenues and
fees
Local government
for the cost of
providing
additional public
services
Yes – see 33
U.S.C. 2702
(b)(2)(A) –
allowing
recovery by a
state trustee
Yes – see 33
U.S.C. 2702
(b)(2)(D) –
allowing recovery
by a state
government or
political
subdivision of a
state
Yes – see 33
U.S.C. 2702
(b)(2)(F) allowing recovery
by a state
government or
political
subdivision of a
state
No – see 33
U.S.C. 2702
(b)(2)(A) –
allowing
recovery by a
state trustee
Yes – see 33
U.S.C. 2702
(b)(2)(D) –
allowing recovery
by a state
government or
political
subdivision of a
state
Yes – see 33
U.S.C. 2702
(b)(2)(F) allowing recovery
by a state
government or
political
subdivision of a
state
Yes – See
Section
376.121,
Florida
Statues.
No – Chapter 376
only allows for
damages to real or
personal property,
or destruction and
loss of natural
resources. See
Section
376.031(5),
Florida Statues.
No – Chapter 376
only allows for
damages to real or
personal property,
or destruction and
loss of natural
resources. See
Section
376.031(5),
Florida Statues.
No – Chapter
376 only
allows for
recovery by
the state,
with damages
paid out
according to
§376.121(11)
See Section
376.121,
Florida
Statues.
No – Chapter 376
only allows for
damages to real or
personal property,
or destruction and
loss of natural
resources. See
Section
376.031(5),
Florida Statues.
No – Chapter 376
only allows for
damages to real or
personal property,
or destruction and
loss of natural
resources. See
Section
376.031(5),
Florida Statues.
Page 2
Commercial
Fishermen,
Shrimpers,
Oystermen, etc.
Potential
Yes
Florida
legislation to
provide for
broader
economic
recovery by
Floridians and
Florida
businesses
impacted by
an oil spill
if applied
retroactively
from April
20, 2010
Potential
Yes
Florida
legislation to
provide for
broader
economic
recovery by
Floridians and
Florida
businesses
impacted by
an oil spill
if applied
prospectively
from effective
date
Charter Fishing
Captains, Boat
Rentals, Dive
operators, etc.
Suppliers and
Customers of
Businesses
affected by oil
spill (seafood
wholesalers,
restaurant and
hotel suppliers)
Hotels, Restaurants,
and other businesses
located directly on
the water and with
oil appearing on
the beach
Hotels,
Restaurants, and
other businesses
not directly on
the water but
with oil on the
beach
Hotels, Restaurants,
and other
businesses located
directly on the
water but without
oil appearing on
the beach
Tourist
Attractions, Golf
Courses,
Restuarants, etc.
located inland of
a coastal
community
State
government
for loss or
diminution of
natural
resources
State government
for loss of tax
revenues and
fees
State government
for the cost of
providing
additional public
services
Local
government
for loss or
diminution
of natural
resources
Local government
for loss of tax
revenues and
fees
Local
government for
the cost of
providing
additional public
services
Yes
Yes
Yes
Yes
Yes
Likely Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes, but only to the
extent that business
owners can prove
that any current lost
profits are a result
of the oil spill and
not the general
economic downturn.
Yes, but only if
the losses are
due to the
continued
presence of oil
affecting the
Gulf seafood
industry.
Yes, but only to the
extent that the
businesses can
prove that any lost
profits are due to the
lingering effects of
the oil spill on
Florida tourism.
Yes, but only to
the extent that
the businesses
can prove that
any lost profits
are due to the
lingering effects
of the oil spill on
Florida tourism.
Yes, but only to the
extent that the
businesses can
prove that any lost
profits are due to
the lingering effects
of the oil spill on
Florida tourism.
Likely No – If the
bill is applied
from its effective
date, it is unlikely
that these business
owners will be
able to prove that
any current
economic loss is
due to the oil spill
specifically, and
not a result of the
general economic
downturn
Yes, but
recovery
would be
much greater
under OPA or
Chapter 376,
F.S., both of
which were in
effect when
the oil spill
occurred
Yes, but recovery
would be much
greater under the
OPA, which was
in effect when the
oil spill occurred
and would allow
for recovery from
the date of the
spill.
Yes, but recovery
would be much
greater under the
OPA, which was
in effect when the
oil spill occurred
and would allow
for recovery from
the date of the
spill.
Yes, but
recovery
would be
much greater
under OPA
or Chapter
376, F.S.,
both of which
were in effect
when the oil
spill occurred
Yes, but recovery
would be much
greater under the
OPA, which was
in effect when the
oil spill occurred
and would allow
for recovery from
the date of the
spill.
Yes, but recovery
would be much
greater under the
OPA, which was
in effect when the
oil spill occurred
and would allow
for recovery from
the date of the
spill.
Office of Chief Financial Officer Alex Sink – August 26, 2010
Page 3
Commercial
Fishermen,
Shrimpers,
Oystermen, etc.
Charter Fishing
Captains, Boat
Rentals, Dive
operators, etc.
Louisiana Oil
Spill
Prevention
and Response
Act of 2003
(LOSPRA)
No – LOSPRA does No – See Section
not allow recovery
30:2454(5)(b),
for lost profits, only Louisiana Statutes.
for damage to real or
personal property.
See Section
30:2454(5)(b),
Louisiana Statutes.
Texas Oil
Spill
Prevention
and Response
Act of 1991
(TOSPRA)
Yes – see Section
40.003(7)(A)(iii),
Texas Statutes
Likely Yes, if the
lost profit is
directly related to
the claimant’s
inability to use oilpolluted waters.
See Section
40.003(7)(A)(iii),
Texas Statutes
Suppliers and
Customers of
Businesses
affected by oil
spill (seafood
wholesalers,
restaurant and
hotel suppliers)
No –See
Section
30:2454(5)(b),
Louisiana
Statutes.
Hotels, Restaurants,
and other businesses
located directly on
the water and with
oil appearing on
the beach
Hotels,
Restaurants, and
other businesses
not directly on
the water but
with oil on the
beach
No – See Section
30:2454(5)(b),
Louisiana Statutes.
No – See Section No – See Section
30:2454(5)(b),
30:2454(5)(b),
Louisiana
Louisiana Statutes.
Statutes.
No – The
TOSPRA
definition of
damages only
includes direct
damages.
No – TOSPRA does
not allow lost
income claims for
hotels and other
businesses.
No - TOSPRA
does not allow
lost income
claims for hotels
and other
businesses.
Office of Chief Financial Officer Alex Sink – August 26, 2010
Hotels, Restaurants,
and other
businesses located
directly on the
water but without
oil appearing on
the beach
Tourist
Attractions, Golf
Courses,
Restuarants, etc.
located inland of
a coastal
community
No – See Section
30:2454(5)(b),
Louisiana
Statutes.
State
government
for loss or
diminution of
natural
resources
Yes –
LOSPRA
mirrors the
OPA in
allowing the
state
government
to recover
damages. See
Section
30:2454(5)(a),
Louisiana
Statutes.
No – TOSPRA does No - TOSPRA
Yes –
not allow lost
does not allow lost TOSPRA also
income claims for
income claims for mirrors the
hotels and other
hotels and other
OPA in
businesses.
businesses.
allowing state
government
recovery. See
Section
40.003(7)(B)
Texas Statutes
State government
for loss of tax
revenues and
fees
State government
for the cost of
providing
additional public
services
Yes – LOSPRA
mirrors the OPA
in allowing the
state government
to recover
damages. See
Section
30:2454(5)(c),
Louisiana
Statutes.
Yes – LOSPRA
mirrors the OPA
in allowing the
state government
to recover
damages. See
Section
30:2454(5)(d),
Louisiana
Statutes.
Local
government
for loss or
diminution
of natural
resources
No –
LOSPRA
mirrors the
OPA in
allowing only
the state
government
to recover
damages. See
Section
30:2454(5)(a)
, Louisiana
Statutes.
Yes – TOSPRA Yes – TOSPRA No –
also mirrors the
also mirrors the
TOSPRA
OPA in allowing OPA in allowing only allows
state government state government the state
recovery. See
recovery. See
government
Section
Section
to recover.
40.003(7)(A)(ii)
40.003(7)(A)(ii)
See Section
Texas Statutes
Texas Statutes
40.003(7)(B)
Texas
Statutes
Page 4
Local government
for loss of tax
revenues and
fees
Local government
for the cost of
providing
additional public
services
No – LOSPRA
only allows the
state government
to recover
damages for loss
of revenues. See
Section
30:2454(5)(c),
Louisiana
Statutes.
Yes – LOSPRA
mirrors the OPA
in allowing the
local government
to recover
damages. See
Section
30:2454(5)(d),
Louisiana
Statutes.
Yes – TOSPRA
also mirrors the
OPA in allowing
local government
recovery. See
Section
40.003(7)(A)(ii)
Texas Statutes
Yes – TOSPRA
also mirrors the
OPA in allowing
local government
recovery. See
Section
40.003(7)(A)(ii)
Texas Statutes
Commercial
Fishermen,
Shrimpers,
Oystermen, etc.
Charter Fishing
Captains, Boat
Rentals, Dive
operators, etc.
Suppliers and
Customers of
Businesses
affected by oil
spill (seafood
wholesalers,
restaurant and
hotel suppliers)
Alaska
Yes – See Section
Yes – See Section
Likely Yes Environmental 46.03.824, Alaska
46.03.824, Alaska
See Section
Conservation Statutes (including
Statutes (including 46.03.824,
Statutes
Alaska Statutes
“loss of income, loss “loss of income,
of the means of
loss of the means of (including
producing income,
producing income, “loss of
income, loss of
or the loss of an
or the loss of an
the means of
economic benefit” in economic benefit”
the definition of
in the definition of producing
income, or the
recoverable damages recoverable
loss of an
from oil spills).
damages from oil
economic
spills).
benefit” in the
definition of
recoverable
damages from
oil spills).
Hotels, Restaurants,
and other businesses
located directly on
the water and with
oil appearing on
the beach
Hotels,
Restaurants, and
other businesses
not directly on
the water but
with oil on the
beach
Hotels, Restaurants,
and other
businesses located
directly on the
water but without
oil appearing on
the beach
Tourist
Attractions, Golf
Courses,
Restuarants, etc.
located inland of
a coastal
community
State
government
for loss or
diminution of
natural
resources
State government
for loss of tax
revenues and
fees
State government
for the cost of
providing
additional public
services
Local
government
for loss or
diminution
of natural
resources
Local
government for
loss of tax
revenues and
fees
Yes – See Section
46.03.824, Alaska
Statutes (including
“loss of income,
loss of the means of
producing income,
or the loss of an
economic benefit”
in the definition of
recoverable
damages from oil
spills)
Yes – See
Section
46.03.824,
Alaska Statutes
(including “loss
of income, loss
of the means of
producing
income, or the
loss of an
economic
benefit” in the
definition of
recoverable
damages from oil
spills)
Likely Yes – See
Section 46.03.824,
Alaska Statutes
(including “loss of
income, loss of the
means of producing
income, or the loss
of an economic
benefit” in the
definition of
recoverable
damages from oil
spills)
Likely Yes – See
Section 46.03.824,
Alaska Statutes
(including “loss of
income, loss of
the means of
producing income,
or the loss of an
economic benefit”
in the definition of
recoverable
damages from oil
spills)
Yes – See
Section
46.03.822(m)
(1), Alaska
Statutes
(“damage to
the natural
resources of
the state or a
municipality”
is recoverable
by the state
government).
No –The Alaska
Environmental
Conservation law
does not permit
recovery of lost
tax revenue. See
Section
46.03.822(a),
Alaska Statutes
(describing the
types of damages
recoverable by
state
governments).
Yes – See Section
46.03.822(a),
Alaska Statutes
(“the additional
costs of a function
or service,
including
administrative
expenses for the
incremental costs
of providing the
function or
service” is
recoverable by
the state or
municipal
government).
No – See
Section
46.03.822(m)
(1), Alaska
Statutes
(“damage to
the natural
resources of
the state or a
municipality”
is
recoverable,
but only by
the state
government).
No –The Alaska
Environmental
Conservation law
does not permit
recovery of lost
tax revenue. See
Section
46.03.822(a),
Alaska Statutes
(describing the
types of damages
recoverable by
state
governments).
Office of Chief Financial Officer Alex Sink – August 26, 2010
Page 5
Local
government for
the cost of
providing
additional public
services
Yes – See Section
46.03.822(a),
Alaska Statutes
(“the additional
costs of a function
or service,
including
administrative
expenses for the
incremental costs
of providing the
function or
service” is
recoverable by
the state or
municipal
government).