Claim Documentation Required
The key to the successful recovery of costs and expenses from the SOPF is good record keeping. The claim documentation should clearly set out what was done and why, where and when it was done, by whom, with what resources and for how much. In general, invoices, receipts and worksheets provide useful evidence of expenditure, but sometimes they are insufficient by themselves. It is always beneficial to have a comprehensive narrative describing the response activities. Linking these with expenses will greatly facilitate the assessment of claims. Each on scene coordinator and technical services contractor should maintain a daily log of activities, including details of the activities, the number of personnel engaged, the type and quantity of equipment and materials used, and the type of shoreline cleaned. When a claim is not supported with all appropriate documentation, an investigation and assessment is usually delayed. As a consequence, the Administrator will have to request that the claimant provide further documentation. Like insurance claims, adequate documentation is essential for cost recovery from the shipowner for the oil spill response.
Submission of Claims
All claims should be made in writing and signed by the claimant or a legal representative. A claim must be presented clearly and with sufficient information and supporting documentation to enable the amount of expenditure to be investigated and assessed. It is the responsibility of claimants to submit sufficient documentary evidence to support their claims. Substantiating documentation and a comprehensive chronology of events will add credence to the claim and help to reduce the volume of further questions. In the event of prosecutions or court proceedings, which seldom occur, it will speed up the resolution of discussions, since many obvious questions will already have been answered in the documentation package. The quality of the detailed information is extremely important. All costs must be fully substantiated. Therefore, it is essential at the commencement of an incident that the responder establish procedures to safeguard the documentation to help ensure the integrity of the costing process.
Depending upon the complexity of the clean up response to an oil spill occurrence, the Administrator may appoint marine surveyors and technical advisors to investigate the technical merits of the claims. This sort of claims can be settled promptly only if the claimants and service contractors provide all information relevant to the assessment of the claims.
Although the MLA prescribes specific time limits for the submission of claims, in particular see ss. 103(2) of the Act, they should be submitted as soon as possible, given that the Administrator cannot commence investigation and assessment of a claim until it has been submitted. Timely submission of claims may speed up investigation and assessment and result in quicker payment of established claims. Speedy submission of claims may also be beneficial for any subsequent recourse action to recover the amount paid out of the SOPF from owners of ships or other responsible parties.
Contents of Each Claim
It is important that the original claim documentation be complete and accurate. Each claim filed with the SOPF should contain the following information – to the extent that this information is available and applicable to the subject claim:
a) The name, postal address, telephone number and e-mail address of the claimant and any appointed representative;
b) The identity of the ship involved in the incident and the type of ship – that is, oil tanker, general cargo vessel, fishing vessel or pleasure craft. In addition, if known, the types of vessels transiting in the vicinity before and at the time of the oil spill;
c) The time, date, location and specific details of the occurrence including the type of oil released, if known;
d) Description of the area affected, indicating the extent of the pollution and the area most heavily contaminated (use maps or nautical charts supported by photographs or video recordings);
e) Analytical and other documentary evidence linking the oil pollution with the suspect ship involved, such as the collection and chemical analysis of oil samples. With respect to collecting oil samples, it is important to document various aspects of the sampling process, such as container type, container cleanliness, handling procedures, preservation and chain of custody;
f) The sea state conditions, relevant weather, tide and current data, observation and direction of the floating oil, including the length and breadth of the oil sheen;
g) Results of the claimant’s investigation into the possible source of the oil spill – for example, was spill source from a ship, land based or a mystery spill;
h) When known, the name, address and telephone number of the shipowner;
i) Comprehensive written records of decisions and statements of what work that was actually performed by the lead government agency and by commercial contractors. These records should include detailed logs and notes recorded by the on-scene commander, and all field notes and observations taken by response personnel;
j) Records of decision by expert technical marine surveyors and other advisors – for example, Regional Environmental Emergency Team (REET) personnel and copies of the minutes of REET operational meetings, and technical survey reports;
k) Copies of standing offer agreements, written contracts, and tendering documents with commercial contractors;
l) The total monetary amount of the claim filed for compensation.
Costs and Expenses Incurred
The costs of all materials and supplies that were purchased for use during the oil spill clean-up operation must be supported with copies of the acquisition invoices. The invoices should indicate details of the materials, such as: types of materials used, rate of hire or cost of purchase, quantity used, unit price and total cost, including GST/HST/PST if paid for materials and supplies used on the incident. Costs for materials that were not fully used and can be used at another time should be excluded from charges or pro-rated.
All contracted commercial services acquired for the response operations are to be documented by the contractors’ original invoices, and proof of payment. Contractors’ invoices must clearly indicate that the work performed or services rendered were to support the response operations. Furthermore, the claim should contain copies of all contractual agreements clearly indicating the type of service being purchased and, where appropriate, the cost effectiveness and other reasons for engaging a particular contractor. For example, was the contractor selected as the lowest bidder or because the contractor was near the location of the spill occurrence and in a position to avoid unnecessary response delay?
In addition, the invoice should clearly show the unit cost of special equipment deployed and, also, the hourly rate and time period of operation. The costs and expenses for mobilization and demobilization should be set out clearly separate from the actual costs of equipment used on the site of the oil pollution incident. All contract services, including sub-contractors, are to be substantiated with the contractor’s personnel time sheet indicating details of work assignments.
The travel claims for all personnel assigned for response operations should clearly identify the name of the individual travelling as well as the period covered by the travel claim. Additional details indicating the mode of transportation, location and other related expenses, such as airfares, ferry charges and vehicle mileage should be included with the claim documentation. The travel records should include expenses, meal cost allowances, and hotel accommodations with all appropriate receipts. For Government claims, properly authorized travel authority and travel expense claims must be completed to support meals and travel expenditures.
Salaries and Overtime
Response supervisors should complete daily field reports indicating the name of each worker engaged and their role in the response operations. The dates on which work was carried out and the hourly rates for salaries and overtime must be noted. The regular hours and overtime hours worked should be recorded for each day engaged. The employee’s role in the response operation should be stated. Copies of company records as evidence of proof of payment of wages and overtime must be provided with the claim documentation.
Vehicle and Boat Costs
Logs should be maintained to support the use of all vehicles and support vessels. The logs should describe the type of vehicle used, distance travelled, the purpose for its use and the duration of deployment during the response to the incident. The hourly and daily charge-out rates for vehicles and boats should be clearly noted in the claim documentation.
Pollution Counter Measures and Other Equipment
The claim documentation should identify all the equipment deployed during the response to an oil pollution occurrence and brief notes on what the equipment was used for. The information provided should include the dates of assignment, the equipment category and type, rate of hire, standby rates and periods of usage. All mobilization and demobilization costs and expenses should be noted.
Claims for Loss of Income
The Marine Liability Act prescribes that compensation is payable to claimants in the fisheries, marine culture and fish processing sector who suffer loss of fishing income resulting from a discharge of oil from a ship. A claim for loss of income is only allowable if such loss is not recoverable under the general provisions of Part 6.
The completeness of the documentary evidence, including all receipts, photographs of damage and so forth, will assist in expediting the investigation and assessment of the claim. Depending on the circumstances surrounding the claim, the following information, among other questions that may arise, are essential when filing a claim for loss of income with the Administrator:
a) The identity of the ship involved in the incident;
b) The kind of, or description of, pollution damage to the fishing vessel, fishing gear and other property belonging to the claimant, as well as the location where the damage was sustained;
c) Particulars of the commercial fishing license held, including the name and address of the registered license owner;
d) The fishing area named in the fishing license, so that it may be identified on a nautical chart or geographical map;
e) Records of catches, kinds of fish normally caught and marketed and the sale price of the various species of fish marketed, and the buyer’s name and address;
f) Particulars of the repairs and cleaning of contaminated fishing gear and work required to clean the fishing vessel as a result of the oil pollution;
g) The costs and age of property damaged or replaced with copies of invoices or vouchers for all items purchased.
Appointment of Assessors
If the Administrator and a fisheries claimant cannot agree on the amount of compensation of the claim, the matter will be referred to the Minister of Transport. Consequently, an assessor will be appointed to report on the amount at which the claim is assessed and must be paid by the Administrator to the fishery claimant.