BP, the Oil Protection Act and Claims for Lost Wages/Property Damage

In the face of the looming oil slick many estuaries and fishing grounds are being closed, leaving hundreds of Louisiana fishermen out of work. As the oil pours into the Gulf, many fishermen are wondering what’s next. While many questions are still up in the air there are a number of issues that fishermen need to be aware of.

The Oil Pollution Act of 1990
The Oil Pollution Act is a federal law that, among other things, allows an affected fisherman to file a claim against BP for his lost profits caused by the oil spill in addition to any other claims he has (i.e. property damage).

For example, if you are a shrimper, and your grounds have been closed off because of the oil spill, you can submit a claim for profits that you lost during the time the grounds were closed. To be clear, this remedy is only for profits and not total revenue. When trying to figure out how much you have lost subtract what you normally bring in during this season minus whatever costs you normally have.

In order to recover for your wages the spill must be the reason why you haven’t worked. If this is the case then you can complete a claim. The claim will have to include a specific sum (your lost profits during the time the estuaries were closed), it must be presented to BP, and it must be submitted within three years.

In order to best ensure recovery you will need documentation. The Act requires that parties: document damaged property, make a showing of lost profits, show the amount of earnings in similar seasons, list any alternative employment, and list any savings to overhead as a result of the spill.

The best methods of doing all of this are:
– photographs
– tax returns, income statements, balance sheets, and cash flow statements from the past three years
– your expected profits from this year
– Newspaper reports that describe the spill
– Reports from emergency respondersópolice, fire department, etc
Submitting your claims involves three steps:
1) Write the claim. You can develop your own document, utilize the appropriate form at http://www.uscg.mil/npfc/Claims/claims_docs.asp#claim_guide, or contact a lawyer.
2) When the claim is complete attach proof of your losses to it (the photographs, tax returns, etc from the list above).
3) Mail it all to the National Pollutions Funds Center, Suite 1000, 4200 Wilson Blvd, Arlington, VA 20598-7100.

A successful claim will grant a fishermen his expected revenue substracted from his typical costs during the time in which he is unable to work due to the oil spill.

The $75 million cap
The OPA seems like a blessing, but it also limits liability in lost profits situations. While there is no limit to what BP will have to pay regarding oil clean-up, the current state of the Act caps economic damage pay outs at $75 million. The expected impact is likely to be far greater than $75 million given how many people are going to be affected by the spill. Anyone who lost profits or income because of the spill will qualify under the OPA, which means an almost unlimited number of hands reaching into a limited fund. While the OPA also created the Oil Spill Liability Trust Fund in anticipation of such an event, it is unclear how the Fund will be utilized in this spill.

Congress and the White House noticed this cap problem and, as of Monday of last week, are working on legislation that will increase the cap to $10 billion; however, it is unclear if the new proposed bill will act retroactively.

Your Legal Rights
It is important that people making claims to BP be careful and not sign or agree to anything until speaking with an attorney. It is possible that, by accepting money from the oil conglomerate, individuals affected by the spill may be signing off their right to pursue more damages in the future. Further, by speaking with an attorney, you may find out you are entitled to more than you had previously assessed. If you have any questions regarding the spill please contact the oil spill experts at Berniard Law Firm.

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