The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NAUTICAL ASSIST, INC., :
:
Plaintiff, :
: MEMORANDUM & ORDER
-against- :
: 17-CV-5435 (ENV) (ARL)
BEVERLY ALLAN as EXECUTRIX for the :
ESTATE of MICHAEL J. ALLAN, PATCHOGUE :
SHORES MARINA, INC., RICK MARINO, JUAN :
C. RODRIGUEZ, UDO SCHNEIDER, DAVID :
TOMO, CHARLES VANEK, ERICK VANEK, :
and ELIZABETH GIUNTA, :
:
Defendants. :
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VITALIANO, D.J.
On September 15, 2017, plaintiff Nautical Assist, Inc. (“Nautical”) commenced this action
to recover costs associated with a clean-up operation at a marina in East Patchogue on Long Island,
asserting a variety of claims against a litany of defendants. Consistent with the ordinary
winnowing of parties and issues in the course of litigation, yet to be resolved are two of Nautical’s
claims: first, an Oil Pollution Act (“OPA”) claim against defendant Beverly Allan, acting as the
executrix for the estate of Michael J. Allan (the “Executrix”)1; and second, in the alternative, a
breach-of-contract claim against defendant Patchogue Shores Marina, Inc. (“Patchogue”).2
1 The target of the OPA claim was originally Allan himself. However, following Allan’s death,
the Executrix was substituted for Allan in accordance with Federal Rule of Civil Procedure 25 and
stands in his shoes for purposes of this litigation.
2 One other claim remains technically open. Defendant Juan C. Rodriguez has never appeared,
and the December 31, 2022 Memorandum & Order that dismissed all other similarly-situated
defendants did not formally dispose of Nautical’s claim against him. However, Nautical agreed
in the Joint Pre-Trial Order, so-ordered on July 30, 2024, that the third cause of action listed in its
amended complaint (i.e., the one asserted against Rodriguez) was “not to be tried” when all other
remaining issues were to be tried. Joint Pre-Trial Order (“JPTO”), Dkt. No. 185, at 3. By doing
Patchogue also maintains a cross-claim against the Executrix in the event that Nautical proves
successful on its contract claim.3
Trial in this case began before the Court, sitting without a jury, on September 17, 2024 and
concluded, following a year-long adjournment to allow for the substitution of Allan’s daughter as
executrix, on February 13, 2026. Having heard and considered the testimony of the witnesses,
reviewed the exhibits received in evidence, and considered the arguments of counsel, this
Memorandum & Order, pursuant to Federal Rule of Civil Procedure 52, constitutes the
Court's findings of fact and conclusions of law.4
The Facts
On August 16, 2016, one of the vessels docked at the Patchogue marina caught fire.5 JPTO
6; Tr. 711:20-712:1. That vessel was Michael Allan’s boat, a 40-foot-long Tollycraft known as
the “Allan’s Alley.” JPTO 6; Tr. 712:2-10. The Allan’s Alley, at the time of the fire, contained
approximately 180 gallons of diesel fuel in its fuel tank. JPTO 6; Tr. 270:10-12. The fire swept
through the marina, setting aflame and completely destroying, along with the Allan’s Alley, six
other gasoline-powered vessels anchored nearby. Tr. 84:16-17, 237:14-20. Upon noticing smoke
from the fire, Captain David Kazmark, the owner of Patchogue, called 911. Id. 711:11-13, 712:11-
so, Nautical withdrew its claim against Rodriguez, which has otherwise managed to sail on like a
ghost ship never finding port. See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 474 (2007).
3 The exact nature of this cross-claim is, even after trial, unclear, but that is, in any event, a moot
issue in light of the other post-trial dispositions.
4 The Court’s ruling on the parties’ motions for judgment as a matter of law, made pursuant to
Rule 52(c), is subsumed within this Memorandum & Order. See Wechsler v. Hunt Health Sys.,
Ltd., 330 F. Supp. 2d 383, 433 (S.D.N.Y. 2004).
5 The marina abuts a creek which leads into the Great South Bay. Tr. 183:2-3; Pl.’s Ex. 1C, Dkt.
No. 260-1, at 3.
12. News crews and firemen then descended on the scene. Id. 713:4.
Nautical also soon arrived. Tr. 61:3-9; Pl.’s Ex. 1WW, Dkt. No. 260-4, at 1-2. One of the
franchisees of a corporation called Sea Tow Services International, Inc., it provides salvage
assistance and other maritime services to boatowners in the Great South Bay off the coast of Long
Island. Tr. 28:4-10, 28:22-29:9. Following privatization of certain United States Coast Guard
(“USCG”) functions, Nautical can act as a substitute for USCG in non-emergency search and
rescue situations. Id. 35:15-21, 115:13-116:9.
Captain Ryan Bayley, the owner of Nautical, first learned of the fire after receiving a call
from Captain Alan Bregman, the head of a neighboring franchisee called Sea Tow Freeport. Tr.
27:25-28:3, 58:16-25. He sent his manager, Captain Joseph Haskell, to investigate around 9:15
p.m. on the night of the fire. Id. 61:1-9; Pl.’s Ex. 1WW at 1. Once Captain Bayley and his team
had made an assessment of the scene, Captain Haskell engaged in preliminary discussions with
Captain Kazmark about the possibility of Nautical responding. Tr. 175:18-176:5, 716:17-21; Pl.’s
Ex. 1WW at 3.
The next morning, Nautical’s crew returned to the marina and surveyed the damage
inflicted by the fire. Tr. 192:11-14; Pl.’s Ex. 1WW at 6. Many of the fire-damaged vessels had
burned completely to the waterline. Tr. 79:21-23; see Pl.’s Ex. 1Z, Dkt. No. 260-2, at 10. Some
had sunk, in part due to the amount of water sprayed on the vessels while the firemen were
attempting to extinguish the fire. Tr. 179:5-11; see Pl.’s Ex. 1Y, Dkt. No. 260-2, at 9. Wreckage
from the fire-damaged vessels had drifted away from the dock. Tr. 179:13-16. In addition, long
stretches of the dock had turned black from the flames, and entire planks were missing. Pl.’s Ex.
1FF, Dkt. No. 260-2, at 16.
While the gasoline from the six gasoline-powered vessels had burned off during the fire, a
small amount of diesel fuel, which is typically dyed red and does not burn off like gasoline, had
leaked from the fuel tank of the Allan’s Alley. See JPTO 6; Tr. 84:16-19, 85:21-87:9. Hydraulic,
steering, and transmission fluids and oil from the engine blocks of each of the seven boats may
have also escaped after the plastic caps and fittings on the boats’ internal systems had melted. Tr.
179:23-180:13, 251:6-22. No measurement of the total amount of oil discharged was ever made.
Id. 557:16-19.
Before providing any remedial services, Captain Bayley met with Captain Kazmark to
discuss the services that Nautical could provide. Tr. 487:3-20; Pl.’s Ex. 1WW at 6. That afternoon,
or the next day, the two continued their conversations and orally came to an agreement as to how
Nautical would be compensated for its work. Tr. 489:3-7, 713:5-714:1. Under that agreement,
rather than charging the marina, Nautical was to bill the boatowners’ insurance companies directly;
in addition, as with all other outside vendors, Nautical had to tender 10% of whatever it received
to the marina. Id. 489:15-22, 713:17-714:9. Captain Bayley claimed that Captain Kazmark had
also agreed that, to the extent that any of the insurance companies refused to pay, the marina would
make up the resulting shortfall in Nautical’s bill-collection efforts. Id. 489:23-25. In his testimony
at trial, however, Captain Kazmark flatly denied Captain Bayley’s claims. Id. 720:14-17.
But, the first round of discussions between the two captains was not the only round.
Captain Kazmark followed up with Captain Bayley on August 18, 2016, handing him a letter
claiming to confirm their prior conversations. Tr. 492:4-9; Def.’s Ex. 1, Dkt. No. 260-18. That
document, while reiterating that Nautical was to invoice the boatowners and their insurers directly,
did not mention any other aspect of the agreement between Patchogue and Nautical. See Def.’s
Ex. 1. Over the next few days, Nautical did contact the individual boatowners’ insurance
representatives and obtain their approval to remove the wreckage of the burned vessels. Tr. 440:4-
441:5, 493:3-16. In line with the captains’ earlier discussions, Nautical also later sent Patchogue
a check for 10% of the payment it had received from three of the boatowners, Giunta, Tomo, and
Marino, for its wreck removal services. Id. 496:12-21, 717:14-19; Pl.’s Ex. 14, Dkt. No. 260-13.
The morning after the fire, August 17, 2016, clean-up activities would kick into high gear.
A key component in the clean-up plan, Nautical launched its remedial services after Captain
Bayley had wrapped up his initial conversation with Captain Kazmark. Pl.’s Ex. 1WW at 6. By
then, USCG and New York’s Department of Environmental Conservation (“DEC”) had also
arrived to oversee the containment and removal of any pollution caused by the fire. JPTO 6; Tr.
180:22-181:6, 191:23-192:18, 696:16-697:4. To that end, USCG personnel handed out “Notices
of Federal Interest” (“NOFIs”) to each of the boatowners involved in the fire, alerting them to the
fact that an oil pollution incident had occurred or threatened to and that they may face penalties if
they fail to take action. Tr. 484:13-21; Pl.’s Ex. 9, Dkt. No. 260-10. USCG did not ever, in the
words of Captain Bayley, “federalize[] the job” though and, consequently, did not issue to Nautical
any authorization to proceed under the authority of the National Contingency Plan (“NCP”), which
is the federal government’s regulatory blueprint for responding to discharges of oil and other
pollutants. Tr. 558:17-21, 694:10-20; 40 C.F.R. § 300.1.
In coordination with USCG and DEC, Nautical established four containment zones around
the debris and miscellaneous contaminants in the water and two land-based waste disposal areas.
Tr. 181:17-183:6, 223:14-20; Pl.’s Ex. 1WW at 7-8; see Pl.’s Ex. 1GG, Dkt. No. 260-2, at 17; Pl.’s
Ex. 1QQ, Dkt. No. 260-3, at 10. To do so, Nautical deployed hard and soft boom around the
perimeter of the containment zones and deposited sorbent pads throughout.6 Tr. 190:11-191:19;
6 Hard boom acts as a barrier; it is made out of plastic and has a skirt that descends 12 inches to
trap pollutants. Tr. 89:18-90:1, 194:10-15. Soft boom, also known as “sausage boom,” on the
see Pl.’s Ex. 1J, Dkt. No. 260-1, at 10. It also built out the waste disposal areas using plastic tarp,
sorbent mats, and sorbent pads and enclosed each with soft boom. Tr. 225:18-228:10; see Pl.’s
Ex. 1I, Dkt. No. 260-1, at 9.
On the same day, Nautical started to sweep the harbor for floating pieces of charred debris
and to haul vessel wreckage out of the water. Tr. 236:8-14; Pl.’s Ex. 1WW at 8. Some of the
removed wreckage was no bigger than a nickel or a dime; these small pieces of fiberglass, wood,
and plastic—referred to as “popcorn”—were covered in pollutants. Tr. 245:24-246:1, 256:22-
257:5; see Pl.’s Ex. 1E, Dkt. No. 260-1, at 5. Wreck removal efforts continued apace on August
18, 2016, along with the replacement of sorbent materials as needed. Tr. 240:6-241:8; Pl.’s Ex.
1WW at 13-15. Once on land, at least one of the vessels had to be drained of its oil by the marina,
which pumped an unknown quantity of oil from the vessel into a large oil drum. Tr. 391:13-
392:25; Pl.’s Ex. 1W, Dkt. No. 260-2, at 7. By the end of the day on August 19, 2016, only the
Allan’s Alley was left in the water, and three of the four containment zones had been fully
decontaminated and secured. Tr. 246:21-25, 258:1-259:14; Pl.’s Ex. 1WW at 21-23.
Separately, the parties began to address financial responsibility for the damage caused by
the fire, and the boatowners’ insurance representatives started to trickle in. Tr. 440:22-441:5. On
behalf of the boatowners, they entered into negotiations with Nautical regarding the removal of
the destroyed vessels. Id. None of the resulting agreements was in writing. Id. 441:21-22. One
of the first to arrive was Ken Weinbrecht, a marine surveyor hired by the insurance company
BoatUS on behalf of Allan.7 Id. 440:11-17, 629:5-7. Captain Bayley and Weinbrecht settled on
other hand, absorbs oils while repelling water. Id. 194:16-18. Sorbent pads function like soft
boom and soak up oils. Id. 194:19-22.
7 Like insurance adjusters, marine surveyors investigate insurance claims for marine insurers. Tr.
659:3-660:10.
a price of $24,000 for the removal of the Allan’s Alley. Id. 443:23-444:3; see Pl.’s Ex. 3, Dkt. No.
260-6, at 3. Unlike the other vessels, this price was not calculated on a “per-foot” basis; instead,
it was simply one both parties were “comfortable” with.8 Tr. 444:2-7.
With an investigation by the insurance companies and Suffolk County arson squad into the
origin of the fire on the Allan’s Alley underway, Nautical was told not to take the Allan’s Alley
out of the water at the same time as the other vessels. Tr. 239:4-20, 438:7-25. The inspection of
the boat was delayed several times, but finally, four days after the fire, Nautical was notified that
the inspection would move forward on August 22, 2016. Id. 263:7-15; Pl.’s Ex. 1WW at 31.
On that day, fire investigators and marine surveyors gathered at the marina. See Tr. 624:10-
629:11. One of the attendees was Joseph Federici, Allan’s attorney. Id. 623:19-21, 633:3-10.
Using two cranes operated by a subcontractor, one on land and one on a barge, Nautical moved
the Allan’s Alley around the corner of the dock and lifted it partially out of the water so that the
investigators could observe it more closely. Id. 286:23-289:1, 293:2-8, 296:4-13. The assembled
investigators concluded that a more thorough assessment of the Allan’s Alley was impractical, if
not impossible, given the fragile condition of the vessel and reached an agreement, memorialized
in a writing prepared by Federici, to extract the submerged remains of the Allan’s Alley piece by
piece with an excavator. Id. 635:25-636:22; Pl.’s Ex. 12, Dkt. No. 260-11. No other removal
method was deemed feasible, and the fuel tank could not otherwise be safely accessed according
to Nautical’s licensed divers. Tr. 300:15-302:10. When the excavator began to break up the
Allan’s Alley, the fuel tank ruptured, releasing approximately 180 gallons of diesel fuel. JPTO 6;
Tr. 640:7-17; Pl.’s Ex. 15-3, Dkt. No. 260-14, at 3. No diesel fuel escaped the containment area,
8 Typically, wreck removal fees are computed on a “per-foot” basis, meaning that the price for the
removal and disposal of the wreck depends on the length of the ship from bow to stern. Tr. 444:8-
25.
and the removal of the Allan’s Alley carried on for the rest of the day. Pl.’s Ex. 1WW at 38-39.
Over the next two days, Nautical fished out the remaining debris and dismantled the land-
based waste disposal areas. Pl.’s Ex. 1WW at 42-43, 46-47. Nautical also arranged for the pick-
up of the 17 55-gallon drums that it had filled with debris and various contaminants. Tr. 241:19-
23; Pl.’s Ex. 1WW at 46-47. Eastern Environmental Solutions, Inc. (“Eastern Environmental”), a
company doing business in the field of hazardous waste disposal, collected the drums on
September 2, 2016. Tr. 323:1-324:1; Pl.’s Ex. 13, Dkt. No. 260-12. The pick-up on September 2,
2016 was the last time that any drums filled with oil-soaked materials, gathered as part of the clean-
up operation at the marina, were hauled away by any company. See generally Pl.’s Ex. 1WW; see
also Pl.’s Ex. 13.
Meanwhile, on August 25, 2016, Nautical informed USCG that the clean-up operation had
been completed but that, due to the damage sustained by the marina’s dock and bulkhead, the hard
boom would stay in the water and a containment watch schedule would be implemented. Tr.
326:4-11, 327:8-12; Pl.’s Ex. 1WW at 49-50. Captain Bayley claimed, during his testimony, that
Nautical had to take these steps because pollutants were continuing to emanate from the dock and
bulkhead, which had allegedly become saturated with oil following the fire. Tr. 318:1-11. Starting
on August 26, 2016, Nautical instituted a bi-daily watch schedule, whereby its employees would
visit the marina twice a day to monitor and adjust the hard boom. Tr. 600:1-3; Pl.’s Ex. 1WW at
52-125. That timetable was tweaked, as necessary, to account for extreme weather and variations
in tidal patterns. Tr. 329:1-331:16. Nautical scaled back its watch schedule to bi-monthly
inspections after October 1, 2016; that set-up lasted until March 31, 2017. Id. 600:6-11; Pl.’s Ex.
1WW at 126-155.
In the middle of March 2017, Patchogue obtained the government permits needed to
reconstruct the dock and bulkhead. Tr. 723:17-25, 724:15-17. Due to a timing issue, construction
could not begin immediately. Id. 724:17-18. But, once that hiccup was over and the old dock had
at last been replaced, Nautical pulled the hard boom out of the water and ceased operations at the
marina on April 24, 2017. Id. 93:3-9, 349:18-350:16; Pl.’s Ex. 1WW at 157-58.
Nautical sent Allan, and the other boatowners, a series of bills. The first of Allan’s bills
showed up on September 1, 2016 for the “Wreck Removal Project of the M/V ‘Allan’s Alley.’”
Pl.’s Ex. 3, at 2-3. This invoice demanded $24,000 for the services rendered by Nautical, which
matched the price agreed upon by Captain Bayley and Weinbrecht, along with $2,070 in sales tax.
Id. It was promptly paid. Tr. 447:5-17. Between then and December 2016, Captain Bayley had
no contact with Allan or anyone at BoatUS and was not aware of his then-retained counsel
engaging in any communications with them either. Id. 591:24-592:18.
Three environmental remediation bills then followed, beginning on December 12, 2016.
See Def.’s Ex. A-1, Dkt. No. 260-15; Def.’s Ex. A-2, Dkt. No. 260-16; Def.’s Ex. A-3, Dkt. No.
260-17. Nautical’s attorney at the time issued the bills to Allan on behalf of Nautical. Tr. 449:9-
450:20. The first invoice, charged on a time-and-material basis9 and ostensibly covering the period
of August 16, 2016 to September 30, 2016, demanded $282,627.30. Def.’s Ex. A-2, at 1-2. Later,
without any explanation, it was revised on April 17, 2017; this updated invoice reduced the price
listed for certain materials but applied a General & Administrative (“G&A”) rate of 15%10 to the
amount charged for materials. See Def.’s Ex. B, Dkt. No. 260-21, at 3-5. The second invoice,
9 Nautical’s time-and-material bill charged for not only single-use materials but also reusable
equipment. Tr. 219:9-18.
10 G&A usually stands in for any indirect costs incurred during a job, such as rent, utilities, and
insurance. Tr. 461:3-9. Nautical’s rate sheet indicates that it charges 15% for G&A; it does not
suggest that G&A can be higher than 15%. Id. 463:9-12, 464:8-10; Def.’s Ex. 4, Dkt. No. 260-20,
at 3.
encompassing the period of the containment watch schedule (October 1, 2016 to March 31, 2017),
added $54,062.66 to the tally. Def.’s Ex. A-2, at 3. The third, issued by Nautical on April 28,
2017, finished out the count with an additional $6,210 for the period of April 1, 2017 to April 24,
2017. Def.’s Ex. A-3.
When Allan refused to pay the three environmental bills, Nautical brought this lawsuit on
September 15, 2017, originally against Allan alone. Tr. 452:9-12; Compl., Dkt. No. 1. It then sent
out a “final” invoice to Allan, the other boatowners, and Patchogue on May 17, 2018. Tr. 454:11-
18, 456:1-6. This invoice stated that each of the recipients owed Nautical $436,712.15—
$335,947.81 for the environmental services and equipment provided from August 16, 2016 to
April 24, 2017 and $100,784.34 for Nautical’s general and administrative costs, calculated at a
30% G&A rate. See Pl.’s Ex. 4, Dkt. No. 260-7. Nautical amended its complaint on November
13, 2018 to reflect this change in the sum demanded and to join Patchogue and the other
boatowners as defendants. Am. Compl., Dkt. No. 25. On the stand during trial, Captain Bayley
made further corrections to the billing. See Tr. 345:23-346:23.
Discussion
I. OPA
OPA, enacted in the aftermath of the Exxon Valdez oil spill as an amendment to the Clean
Water Act, “is the primary federal legislation addressing oil spills into [the] navigable waters of
the United States and onto its shorelines.” Am. S.S. Owners Mut. Prot. & Indem. Ass’n, Inc. v.
United States, 489 F. Supp. 3d 106, 110 (E.D.N.Y. 2020). Under OPA, “each responsible party
for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a
discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive
economic zone is liable for the removal costs and damages . . . that result from such incident.” 33
U.S.C. § 2702(a). The statute imposes a strict liability standard; moreover, when there are multiple
responsible parties, liability is joint and several. In re Petition of Settoon Towing LLC, 722 F.
Supp. 2d 710, 714 (E.D. La. 2010). To recover against an alleged responsible party under OPA, a
claimant must meet the preponderance-of-the-evidence standard. See Hoffer v. Tellone, 128 F.4th
433, 439 (2d Cir. 2025) (“[W]e presume that [the preponderance-of-the-evidence] standard is
applicable in civil actions between private litigants unless particularly important individual
interests or rights are at stake.” (quoting Grogan v. Garner, 498 U.S. 279, 286 (1991)) (internal
quotation marks omitted)).
Though the parties have engaged in prolonged argument regarding the liability of Allan’s
estate and his executrix under OPA for Nautical’s oil spill remediation billing, the Court finds the
argument academic. The Court concludes that whether or not the estate would be subject to OPA
liability for the oil spilled due to the fire on August 16, 2016, any right to recovery is foreclosed
because Nautical was compensated in full for all costs related to the removal of the wreckage of
Allan’s vessel from the water, as part of the fixed-price wreck removal agreement that it had
entered into with the marine surveyor Weinbrecht, who had been hired by BoatUS to represent
Allan.
The Court’s conclusion that Nautical’s claim against Allan’s estate is foreclosed by
contract does not end the inquiry. It simply engenders further inquiry. Specifically, it is necessary
to determine whether the wreck removal agreement qualifies as a “maritime contract.” If it does,
and the dispute is not inherently local, then general maritime law, a form of federal common law,
applies when interpreting its terms. Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 22-23 (2004). In
order to decide whether a contract is a maritime one, courts take a “conceptual approach”; the
inquiry focuses on whether the contract has “reference to maritime service or maritime
transactions” and whether its “principal objective” is “maritime commerce.” Id. at 24-25 (quoting
N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125 (1919)) (internal
quotation marks omitted).
In the words of Justice Harlan, the contract here clearly has a “genuinely salty flavor” to
it. Kossick v. United Fruit Co., 365 U.S. 731, 742 (1961). What could be more “maritime” than
an agreement to remove the wreckage of a sea-faring vessel from the waters of an active marina?
The fact that the Allan’s Alley burned in its slip, mere feet from land, or that it functioned only as
a pleasure yacht, never transporting any goods between ports, does not make this agreement any
less “maritime.” Nor does it make this dispute an “inherently local” one, thus requiring the
application of New York state law. “[W]hen state interests cannot be accommodated without
defeating a federal interest, . . . then federal substantive law should govern.” Norfolk, 543 U.S. at
27. This agreement implicates, and in fact directly affects, the core of OPA’s federal liability
regime; as such, the interpretation of this agreement, and others like it, cannot be left to the states
to manage. Uniformity of meaning is key, and federal common law must therefore control, to the
extent that it exists. In the absence of an established maritime rule, however, state law can be used
to fill the ensuing gap. See Great Lakes Ins. SE v. Raiders Retreat Realty Co., 601 U.S. 65, 70
(2024).
General maritime law, thankfully, is not as alien as some of the creatures that dwell in the
depths of the sea. Indeed, “[m]aritime contracts ‘must be construed like any other contracts: by
their terms and consistent with the intent of the parties.’” CITGO Asphalt Refin. Co. v. Frescati
Shipping Co., 589 U.S. 348, 355 (2020) (quoting Norfolk, 543 U.S. at 31). “Where the words of
a contract . . . are clear and unambiguous, its meaning is to be ascertained in accordance with its
plainly expressed intent.” Id. (quoting M&G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435
(2015)) (internal quotation marks omitted). “But [w]hen a . . . contract is ambiguous, its meaning
is a question of fact, requiring a determination of the intent of [the] parties in entering the contract;
that may involve examining relevant extrinsic evidence of the parties' intent and the meaning of
the words that they used.” Id. (quoting 11 Williston on Contracts § 30:7 (4th ed.)) (internal
quotation marks omitted).
Very little is known about the terms of this oral agreement, other than the fact that it
concerns “wreck removal.” See Tr. 441:16-22. But that only begs the question: what exactly is
“wreck removal”? The term is not one found in common parlance, though Nautical and
Weinbrecht evidently understood what it meant when they came to their agreement. That suggests
that the expression derives its origin from the jargon of the maritime industry. In such
circumstances, courts construing the terms of these arrangements can turn to extrinsic evidence of
custom and usage to interpret the provisions of ambiguous maritime contracts. Stolt-Nielsen S.A.
v. AnimalFeeds Int’l Corp., 559 U.S. 662, 674 n.6 (2010).
Within the maritime industry, according to the uncontested and highly credible testimony
of expert witness John C. Lane,11 it is customary for wreck removal agreements to cover the clean-
up of small quantities of oil discharged by the wreck.12 Tr. 691:25-692:11. “Wreck removal,”
11 In formulating his testimony, Lane drew on his decades-long experience in the field of maritime
pollution and oil spill response. See Tr. 655:23-658:18, 661:12-663:8.
12 Lane’s testimony does suffer at times from inexact wording, but that minor defect alone does
not impact the Court’s assessment of his otherwise-credible testimony. The haziness stems from
the overlap between two distinct, but related, issues: (1) the legal trigger for liability under OPA;
and (2) the threshold at which USCG would direct a more substantial oil pollution response above
and beyond ordinary wreck removal services. See Tr. 697:15-21. OPA’s liability standard is strict,
and as a result, there is no “de minimis” exception to its reach. See United States v. Kilroy &
Assocs., Inc., No. C08-1019-JCC, 2009 WL 3633891, at *4 (W.D. Wash. Oct. 30, 2009). Lane’s
testimony that a “de minimis” spill would not prompt an oil pollution response by USCG is not to
the contrary. See Tr. 682:14-20, 697:15-21. Under the relevant regulations, USCG enjoys wide-
ranging discretion on how to best handle a reported discharge and, where USCG officers have
according to Lane, encompasses the extraction and disposal of all debris. Id. 686:4-18. When
only a minimal amount of oil has spilled, and USCG has not seen fit to direct a more expansive oil
spill response, that includes oil-saturated materials and even oil fluids themselves. Id. 682:14-20,
686:19-687:20, 743:2-24.
Grounded in the actions of the parties, those employed by them and working in consort
with them, the representatives of those insuring them, and USCG and DEC officials, the Court
finds the testimony of Lane material and credible. This evidence, along with the opinion offered
by Lane, supports the Court’s conclusion that, as a result of the fire aboard the Allan’s Alley, only
a marginal quantity of oil spilled and the price agreed upon in the contract for wreck removal
subsumed the oil clean-up costs made recoverable under OPA.13 See Tr. 691:15-21, 743:2-24,
752:11-20.
Drilling further down on that evidence, even accounting for the rupture of the fuel tank on
the Allan’s Alley on August 22, 2016, the actual quantity of oil discharged due to the fire was
negligible, and it would have been functionally impossible for what little oil was spilled to have
been removed independently from the wreckage of the vessels. That goes for both the larger pieces
identified only a “minor discharge,” can opt to simply “monitor the situation to ensure that proper
removal action is being taken.” 40 C.F.R. § 300.320. OPA’s benchmark for liability therefore
differs from the threshold at which USCG may order a more significant oil pollution response—
and the latter, according to Lane, is what is important for determining the scope of a wreck removal
contract. OPA, after all, says nothing as to how such contracts ought to be interpreted. See
generally 33 U.S.C. § 2701 et seq.; see also Tr. 751:20-23.
13 The Southern District of Georgia case that Nautical relies upon as a counter is not binding on
this Court, and its holding that a claimant can recover, through OPA, for both wreck removal and
oil clean-up has been challenged by other authorities. Compare Glynn Cnty., Ga. v. GL NV24
Shipping Inc., No. 2:22-CV-28, 2023 WL 5671934, at *18-20 (S.D. Ga. Sep. 1, 2023), with In re
Taira Lynn Marine Ltd. No. 5, LLC, 444 F.3d 371, 383 (5th Cir. 2006). At any rate, that disputable
holding is immaterial because Nautical has been paid by decedent Allan as a matter of contract.
See Pl.’s Ex. 3, at 1-3.
of the vessels’ hulls as well as the smaller charred debris coating the surface of the marina’s waters.
The gasoline from the six gasoline-powered vessels would have, first of all, likely burned off
before the commencement of the clean-up operation. Tr. 84:16-19. That leaves only the 180
gallons of diesel fuel that spilled from the Allan’s Alley and an indeterminate amount of engine
oil that may or may not have leaked from the seven fire-damaged vessels’ internal systems—the
latter of which could not have been much given that the wreckage of at least one boat still had to
be drained of oil after being hauled ashore. JPTO 6; Tr. 179:23-180:13, 251:6-22, 391:13-392:25.
It bears repeating that, having made its own observations of the wreckage, the spilled oil,
and the potential for additional spillage, USCG evidently did not deem a response beyond wreck
removal and containment and removal of the limited spill that could be associated with the wrecked
vessels needed. Outside of monitoring the clean-up efforts and giving guidance on the appropriate
actions to take, USCG seems to have been content to step back and let Nautical take the lead. See
Tr. 255:19-256:9; Pl.’s Ex. 1WW at 22. Once at the helm, moreover, Nautical apparently did not
believe that this incident warranted any special treatment either. Rather, Nautical ended up largely
conducting its conventional wreck removal services and pollution remediation work
simultaneously. See Tr. 562:4-564:7.
In light of this evidence, Nautical’s September 1, 2016 invoice to Allan should, in fact, be
read as covering both types of services. Unlike the other invoices, it does not contain any line-
item billing that could shed light on what is being charged. While the others all cabin themselves
to the removal and disposal of specific vessels, Allan’s invoice does not provide any description
of the services covered by the charged fee. Compare Pl.’s Ex. 3, at 3, with id. at 5, 9, 13-15. That
tracks Captain Bayley’s testimony at trial that the agreed-upon price of $24,000 for the removal of
the Allan’s Alley was not calculated on a “per-foot” basis like the others but instead was simply
an amount that both sides were “comfortable” with. Tr. 443:24-444:7. One other invoice even
explicitly excludes from its purview any “environmental impact” costs; Allan’s, on the other hand,
does nothing of the sort. Compare Pl.’s Ex. 3 at 2-3, with id. at 14-15. Allan’s invoice also dates
to the time of the clean-up operation itself, not long after USCG concluded its involvement in the
situation and only a day before Eastern Environmental retrieved the 17 55-gallon drums containing
the waste Nautical had gathered. Pl.’s Ex. 1WW at 49-50; Pl.’s Ex. 13. Meanwhile, the first of
the three initial environmental remediation bills would not arrive for another three months, and
when that bill did show up, it came not as a run-of-the-mill invoice like the one sent out on
September 1, 2016 but rather as a demand for payment issued straight from Nautical’s lawyer. Tr.
449:9-450:20.
In its environmental bills, Nautical does lay claim to costs for actions taken after the date
of Allan’s September 1, 2016 invoice, primarily with respect to its containment watch schedule.
But even if the Executrix were liable generally for Nautical’s removal costs, that liability would
not extend to those charges. The standard for assessing causation under OPA is murky, to say the
least, and it is far from clear that the statute imported traditional notions of proximate cause. See,
e.g., In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mex., on Apr. 20, 2010, 808
F. Supp. 2d 943, 965-66 (E.D. La. 2011) (citing CSX Transp., Inc. v. McBride, 564 U.S. 685, 702-
03 (2011)). Even under the looser test adopted by certain courts, however, the costs that Nautical
claims to have incurred after August 25, 2016 are far too remote, attenuated, and unforeseeable to
be recoverable. On that day, Nautical told USCG that the job was finished and that only the hard
boom would be left in the water, and USCG departed from the scene, effectively confirming that
the incident was over.14 Pl.’s Ex. 1WW at 49-50; see Tr. 692:20-693:7; cf. 40 C.F.R. § 300.320(b)
(dictating that funding from the Oil Spill Liability Trust Fund shall end when job completion is
announced by USCG’s on-scene coordinator). Indeed, the record is barren of any evidence that
Nautical removed even a quart of oil from the marina waters after August 25, 2016. See Pl.’s Ex.
1WW at 52-158. No one could have reasonably anticipated, moreover, that the work to replace
the dock would drag on for eight months due to an obscenely sluggish permitting process. It also
boggles the imagination that the dock, no matter how fire-damaged, could have absorbed so much
oil, after the 17 55-gallon drums, all of the sorbent pads and booms used, and the drainage of the
wrecks, that it would continue to release oil spilled by the seven fire-damaged vessels for months
on end, especially when there is no evidence of Nautical ever needing to call Eastern
Environmental, or any other company for that matter, back to pick up more oil-related waste after
September 2, 2016. See Pl.’s Ex. 13.
Indeed, Nautical’s environmental billing is ridden with indicia of unreliability overall,
making it an unsuitable basis for discrediting Lane’s testimony and providing an entirely different
ground for denying Nautical any recovery. Revisions were made without any explanation, for
example, to the first environmental bill, the one from December 12, 2016, four months after it was
issued, adjusting the rate charged for select materials and inserting a 15% G&A charge. Compare
Def.’s Ex. A-2, at 1, with Def.’s Ex. B at 3. In addition, the charges contained in the original set
of environmental bills sent out between December 2016 and April 2017, Def.’s Exs. A-1, A-2, A-
3, B, are frequently not commensurate with those in the “final” compiled version from May 2018,
Pl.’s Exs. 1WW, 4. The May 2018 invoice, for instance, adds a 30% G&A rate, despite the 15%
14 Nor does it appear in the record that DEC took any further action after August 2016. See Pl.’s
Ex. 1WW at 15, 17 (last recorded mention of DEC in Nautical’s status reports occurring on August
18, 2016).
G&A rate already charged in the earlier billing. Pl.’s Ex. 4. It also mysteriously drops charges for
bi-weekly inspections allegedly made during the month of April 2017 that had been included in
the initial trio of bills. Compare Def.’s Ex. A-3, with Pl.’s Ex. 1WW at 154-56. To top it all off,
the May 2018 invoice is littered with unsupported fees, including charges for Nautical’s van when
it was parked at the marina and not being driven by any of Nautical’s employees. Compare Pl.’s
Ex. 1WW at 1-4, with Tr. 207:24-208:9. Even if there had been no wreck removal contract,
Nautical could never have recovered on the basis of this flagrantly preposterous billing. It would
have been impossible for the Court to discern the reasonable value of the services rendered, and
Nautical accordingly would have failed in its obligation to prove that it was entitled to recover the
amount of damages it claims in its amended complaint.
At bottom, the Court is drawn back to the sage analysis and opinion offered by Lane that,
while Nautical may have been entitled to recover under OPA for the reasonable value of its oil
spill remediation services, as is typical in the maritime industry and circumstances like the
evidence shows existed here, the contract between Nautical and Allan, negotiated through Allan’s
insurer, included the cost of that remediation in the payment for the removal of the wreck of Allan’s
Alley. Stated differently, Nautical has already been compensated in full for its pollution
remediation efforts on behalf of Allan and is entitled to recover nothing further against his estate.
The fact that the contract also covered matters other than oil spill remediation is immaterial.
II. Breach of Contract
Sandwiched between Nautical’s OPA claim against the Executrix and Patchogue’s cross-
claim against the Executrix is Nautical’s contract claim against Patchogue. The contract claim
Nautical asserts against Patchogue is based upon Captain Kazmark’s alleged promise that
Patchogue would make up the shortfall for any remediation work performed at the marina and its
waters that was not paid by the owners of the fire-damaged vessels Nautical was retained to remove
from the water.15 Nautical’s alleged agreement with Patchogue qualifies as a “maritime contract.”
Its subject-matter, the clean-up of an active marina, is no different from that of the wreck removal
contract, and its enforceability accordingly depends on the tenets of general maritime law. Norfolk,
543 U.S. at 24-25, 27. Under general maritime law, as with state-law actions, “[a] plaintiff seeking
to recover for breach of contract must prove, ‘by a preponderance of the evidence[:] (1) the
existence of a contract between itself and that defendant; (2) performance of the plaintiff's
obligations under the contract; (3) breach of the contract by the defendant; and (4) damages to the
plaintiff caused by that defendant's breach.’” Interglobo Customs Broker, Inc. v. Sunderland Bros.
Co., No. 19-CV-5723 (GBD) (JLC), 2019 WL 5996281, at *5 (S.D.N.Y. Nov. 14, 2019) (quoting
Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011)).
Even assuming that the agreement is valid, it is far from clear that Patchogue’s end of the
bargain has even been triggered yet. Under Nautical’s version of events, Patchogue promised to
pay for Nautical’s clean-up costs only to the extent that Nautical could not recover them from the
individual boatowners’ insurance companies. See Tr. 489:15-25, 490:7-13. At best, therefore, it
was an obligation premised upon a condition precedent requiring the triggering contingency to
have occurred before it had to be performed. See Bank of N.Y. Mellon Tr. Co., N.A. v. Morgan
Stanley Mortg. Cap., Inc., 821 F.3d 297, 305 (2d Cir. 2016) (applying New York law). But that
eventuality had not yet come to pass when Nautical first brought suit against Patchogue in
15 In the context of Patchogue’s potential liability, there are two housekeeping matters ripe for
disposition. First, no matter how much the parties emphasize it, the Court’s statement in its
December 31, 2022 Memorandum & Order that Nautical “must look to Patchogue for its recovery”
is irrelevant, as it was made in the context of a quasi-contract claim which Nautical abandoned in
the Joint Pre-Trial Order. Dkt. No. 171, at 19; see JPTO 3. Second, because this claim can be
resolved on other grounds, the Court declines to address Patchogue’s arguments regarding the
releases issued by Nautical to some of the boatowners.
November 2018, as Nautical’s efforts to collect from Allan, via this lawsuit, were still ongoing at
the time. See Tr. 494:2-7. Only now, with the final resolution of the claims against Allan and his
successor the executrix of his estate, has Patchogue’s alleged covenant at last come due. In
addition, even if this condition precedent had already been triggered, Captain Bayley’s testimony
suggests that Patchogue at most agreed, in the event of a shortfall in the payment of Nautical’s
remedial charges, to present a claim to its liability insurer and then, only if the claim was paid by
the insurer, to turn those proceeds over to Nautical. See Tr. 489:23-25. In short, there would have
in fact been a double contingency embedded in the agreement, entitling Nautical to nothing unless
and until the second contingency, that is, receipt of claim payment from Patchogue’s insurer, came
to pass.
In any event, Nautical’s breach-of-contract claim falls short elsewhere as well. Indeed,
Nautical cannot even meet its burden of demonstrating, by a preponderance of the evidence, that
Captain Kazmark actually agreed, as Nautical claims, that Patchogue would pick up the shortfall
for any remedial work performed at the marina that was not covered by the respective insurers of
the wrecked vessels. It is a promise, unlike Nautical’s agreement to rebate to the marina 10% of
the payments it received from the insurers in connection with the remedial work, for which there
is no writing or other extrinsic evidence attesting to its existence.16 Compare Pl.’s Ex. 14, with
Tr. 489:15-25. All that Nautical offers to substantiate Captain Kazmark’s alleged shortfall promise
is Captain Bayley’s testimony that he did actually assent to this claimed shortfall promise in the
first place. Especially backlit by Nautical’s billing for the remedial OPA work it claims to have
16 The stipulation in the Joint Pre-Trial Order that Patchogue “entered into an agreement [with
Nautical] for its [marina’s] environmental remediation” cannot be relied upon to shore up
Nautical’s position. JPTO 6. It only reinforces the uncontested fact that an agreement of some
sort was made; it does not speak at all to the specific contours of the agreement.
performed at the marina and in its waters which, with charity, may be best described as dubious,
the Court finds Captain Bayley’s testimony on this point incredible. What is much more believable
is Captain Kazmark’s version of Patchogue’s agreement with Nautical. With Nautical having
failed to establish its version of Captain Kazmark’s promise by a preponderance of the evidence,
therefore, its contract claim against Patchogue fails.
Conclusion
In accordance with the foregoing findings of fact and conclusions of law, judgment is for
the executrix of Allan’s estate and Patchogue on all claims asserted against them by Nautical.
Patchogue’s cross-claim against the Executrix is dismissed as moot. Nautical’s claim against
Rodriguez is dismissed, having been withdrawn in the Joint Pre-Trial Order. Nautical’s claims
against all other defendants and Patchogue’s third-party complaint against third-party defendant
International Marine Underwriters were all dismissed as a result of the Memorandum & Order
entered on December 31, 2022.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
So Ordered.
Dated: Brooklyn, New York
August 5, 2026
/s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge