Page:United States Statutes at Large Volume 92 Part 1.djvu/742

 92 STAT. 688

PUBLIC LAW 95-372—SEPT. 18, 1978 (B) to the extent that damages were caused by the negligence or fault of the commercial fisherman making the claim; (C) if the damage set forth in the claim was sustained prior to the date of enactment of this title; (D) in the case of a claim for damage to, or loss of, fishing gear, in an amount in excess of the replacement value of the fishing gear with respect to which the claim is filed; (E) in the case of a claim for loss of profits (i) for any period in excess of 6 months, and (ii) unless such claim is supported by records with respect to the claimant's profits during the previous 12-month period; and (F) for any portion of the damages claimed with respect to which the claimant has or will receive compensation from insurance. BURDEN OF PROOF

43 USC 1844.

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SEC. 404. With respect to any claim for damages filed pursuant to this title, there shall be a presumption that such claim is valid if the claimant establishes that— (1) the commercial fishing vessel was being used for fishing and was located in an area affected by Outer Continental Shelf activities; (2) a report on the location of the material, equipment, tool, container, or other item which caused such damages and the nature of such damages was made within five days after the date on which such damages were discovered; (3) there was no record on nautical charts or the Notice to Mariners on the date such damages were sustained that such material, equipment, tool, container, or other item existed in such area; and (4) there was no proper surface marker or lighted buoy which was attached or closely anchored to such material, equipment, tool, container, or other item. •I

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CLAIM PROCEDURES AND SUBROGATION OF RIGHTS

43 USC 1845.

Hearing,

SEC. 405. (a) Any commercial fisherman suffering damages compensable under this title may file a claim for compensation with the Secretary, except that no such claim may be filed more than 60 days after the date of discovery of the damages with respect to which such claim is made. (b) Upon receipt of any claim under this section, the Secretary shall— (1) transmit a copy of the claim to the Secretary of the Interior; and (2) refer such matter to a hearing examiner appointed under section 3105 of title 5, United States Code. (c) The Secretary of the Interior shall make reasonable efforts to notify all persons known to have engaged in activities associated with Outer Continental Shelf energy activity in the vicinity. Each such person shall promptly notify the Secretary and the 'Secretary of the Interior as to whether he admits or denies responsibility for the damages claimed. Any such person, including lessees or permittees or their contractors or subcontractors, may submit evidence at any hearing conducted with respect to such claim. '

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