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By BECKY W. EVANS (reporter.evans@gmail.com)

The view of Buzzards Bay from Round Hill Beach in Dartmouth.

BOSTON– In the two weeks since new oil spill prevention rules went into effect, Massachusetts has dispatched four tugboats to shadow oil barges traveling through Buzzards Bay. A fifth so-called “tug escort” is scheduled for today, said Edmund Coletta, spokesman for the state Department of Environmental Protection.

“There is no indication that any ships are transiting without calling us at this point,” he said.

Coletta said the tug escorts, which were designed to protect the sensitive bay from oil spill disasters such as the Bouchard 120 spill, will continue as scheduled despite a lawsuit that members of the oil transport industry filed Wednesday against Massachusetts Governor Deval Patrick and DEP Commissioner Laurie Burt.

“We have gotten a copy of the lawsuit … and are still reviewing it,” Coletta said.

In the civil lawsuit, the plaintiffs argue that the state’s rules for tug escorts and state-licensed pilots, as described under the state’s 2009 Oil Spill Act, are “invalid” because they conflict with federal law. The five plaintiffs include American Waterways Operators, International Association of Independent Tanker Owners, Chamber of Shipping of America, International Chamber of Shipping, and International Group of P&I Clubs.

“The 2009 Oil Spill Act impermissibly seeks to establish an overlapping
and competing legal regime with its imposition of operating and manning requirements on foreign and domestic tank vessels operating in Massachusetts waters,” according to the complaint filed in U.S. District Court.

American Waterways Operators and the U.S. government used the same legal argument in 2005 when they challenged parts of Massachusetts’ 2004 Oil Spill Act, separate from the 2009 law. After more than five years of courtroom battles, the case ended a week ago when  federal judge Douglas P. Woodlock issued a permanent injunction preventing Massachusetts from enforcing the tug escort and state-licensed pilot provisions of the 2004 law.

“In the final analysis, the law of preemption … leaves the last word under Federal law regarding the formulation of regulations to control vessel
traffic, to enhance vessel safety and to decrease environmental
hazards in Buzzards Bay to the Coast Guard,” Woodlock wrote in his decision.

The Massachusetts Attorney General’s Office “is still reviewing the ruling and exploring all of our options, including whether to appeal the decision,” said spokeswoman Jill Butterworth.  She said an appeal would have to be filed within 60 days of the judgment.

The ruling has no impact on the state’s current rules for tug escorts and state-licensed pilots, Coletta said.

While the lawsuit pertaining to the 2004 act was being fought in court, Massachusetts legislators set to work crafting a new law that would provide the same protections for Buzzards Bay. The resulting law, known as “An Act Preventing Oil Spills in Buzzards Bay,” was signed by Gov. Patrick on Sept. 24, 2009.

The 2009 law differs from the 2004 act in that the provision and cost of tug escorts and state-licensed pilots falls to the state, rather than the oil transport companies. The system is designed to be voluntary, rather than mandatory. Companies are encouraged to give the state 24-hour notice that they will be sending a barge through Buzzards Bay. If they do not give notice, they will face triple the fines in the event of an oil spill.

The new rules have taken effect in recent weeks. On March 1, the DEP began dispatching state-licensed pilots, who have knowledge of the narrow bay, to operate tugs towing double-hulled oil barges. On March 29, the state began sending tug escorts to shadow double-hulled barges carrying 6,000 barrels or more of oil.

Tug escorts aim to provide a quick response in the event of an emergency. If a tug was nearby when the Bouchard 120 barge drifted out of the Buzzards Bay shipping lanes on April 27, 2003, it could have kept the barge from running aground and spilling up to 100,000 gallons of oil, said Mark Rasmussen, director of the Coalition for Buzzards Bay, an advocacy group.

On April 1, the state increased the Oil Spill Trust Fund’s per-barrel oil fee from 2 cents to 5 cents. The fee is charged to companies who offload oil in Massachusetts. The fund will pay for the $5,000 tug escorts and the state-licensed pilots, the cost of which Coletta did not know. McAllister Towing of Narragansett Bay won the tug escort contract through a competitive bid process. State pilots are assigned by a district pilot commissioner.

Rasmussen was not surprised when the new rules were met with a lawsuit brought by the oil transportation industry.

“Unfortunately, it seems to be general operating procedure for American Waterways Operators to challenge anything individual states do to try to protect their waters,” he said.

But Rasmussen, whose organization joined the state as a co-defendant in the 2004 Oil Spill Act lawsuit, doesn’t think oil transporters will win their case this time.

“All this law does is say, ‘Call ahead and tell us your coming,’” he said. “I think they will have a very hard case trying to convince a judge that that’s an unreasonable request by the state of Massachusetts, for an industry that poses so much risk to our coast.”

Rasmussen added that it is telling that the U.S. government has not joined the industry as a plaintiff as it did in the first lawsuit.

“This time it is the industry by themselves,” he said.

The Coalition for Buzzards Bay will consider in the coming weeks whether it will join the lawsuit as a co-defendant, Rasmussen said.

Court documents show that the case has been assigned to the same judge who issued the ruling in the first lawsuit.

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This story was also published on the front pages of Saturday’s The Cape Cod Times and The Standard Times. For a list of damages, see the chart at the end of this post.

By BECKY W. EVANS (reporter.evans@gmail.com)

Justice Raymond J. Brassard reads the eight verdict slips.

PLYMOUTH, Mass.— In a precedent-setting environmental case, jurors agreed Friday that Bouchard must pay eight Mattapoisett property owners varying amounts in damages for oil that polluted their beaches for months or years following the April 27, 2003 Buzzards Bay oil spill.

After 10 hours of deliberations, the 13-member jury rendered eight verdicts, one for each of the eight plaintiffs in the case. The trial was part of a broader class-action lawsuit involving 1,100 Mattapoisett property owners.

The awarded damages, which range from $1,575 to $22,650 per property, will be doubled in accordance with state law, said Judge Raymond J. Brassard. In addition, the plaintiffs will receive 12 percent annual interest going back to the filing date of the lawsuit in September 2004.

After the trial, plaintiffs’ lawyer Martin E. Levin of Stern, Shapiro, Weissberg & Garin LLP said the case was “definitely” precedent setting.

“This is the first environmental class action to be certified and go forward in Massachusetts,” he said, noting that by “certified” he meant the court had approved of pursuing the claims on a class action basis.

Levin said he was “happy” with the verdicts, even though the damages were smaller than those calculated by the plaintiffs’ real estate appraiser who testified during the 10-day trial at Plymouth County Superior Court. The appraiser’s estimates ranged from about $5,000 to $60,000 per property.

Defense lawyer Ronald W. Zdrojeski of Robinson & Cole LLP said the verdicts were “much closer to our end of the spectrum.” During his closing statements, Zdrojeski had suggested that jurors consider awarding damages in the range of $200 to $3,000 per property.

Zdrojeski said he plans to visit his client and “consider our options.” The defense disagrees with some of the legal rulings in the case, he said.

Levin said he hopes Bouchard will take “full responsibility for the damages it caused and step forward to compensate the rest of the class.”

Lawyers from both sides must agree on how to proceed with the more than 1,000 plaintiffs who remain in the lawsuit.

“We now have some good benchmarks that I hope will be of help to all of you as you determine how best to resolve your cases,” Judge Brassard said.

Potential options include a “series of trials over a series of years” or “some form of negotiation among you,” Brassard said.

Jurors met in the courtroom at 9 a.m. Friday to begin their third day of deliberations. By 9:40 a.m., they had decided on eight verdicts involving 11 Mattapoisett properties, some with the same owners.

In addition to determining damages, the jury was asked to decide the length of time plaintiffs’ beaches were polluted with Bouchard oil. During the trial, the defense argued that most of the beaches were clean by Memorial Day of 2003, just a month after the spill. The plaintiffs’ real estate appraiser said the pollution lingered for 1.1 to 6 years, depending on the property.

For nine of the 11 properties, the jury found that beaches were polluted until the fall of 2003. Francis and Natalie Haggerty’s property at 126 Brandt Island Road near Leisure Shores beach was considered polluted until October 2007. W. Bradford Chase’s property at 15 Seamarsh Way was considered polluted until September 2009.

Haggerty and his wife, who attended all but one day of the trial, were awarded $11,880 in damages, considerably less than the plaintiffs’ request for $50,800.

“We’re glad the jury stood up for the residents of Mattapoisett against the Bouchard oil company,” Haggerty said.

Kim DeLeo, who is the class representative, was not among the eight plaintiffs involved in the trial.

“This gives us a starting point in moving forward with the rest of the class-action lawsuit,” she said. “I think the jury awarded us a fair amount.”

Levin said the eight plaintiffs in the trial were selected at random. They represented beaches with four different levels of oil pollution, ranging from “very lightly” oiled to “heavily” oiled, he said.

A second class-action lawsuit against Bouchard is pending in federal court. The lawsuit was filed by property owners outside of Mattapoisett who are seeking damages from the oil spill.

On April 27, 2003, the Bouchard No. 120 struck an underwater reef in Buzzards Bay after drifting outside a marked channel. The punctured barge, which was on its way to a Cape Cod power plant, leaked up to 98,000 gallons of No. 6 fuel oil. The oil polluted more than 90 miles of coastline, killed 450 federally-protected birds and temporarily shut down about 180,000 acres of shellfish beds.

Both Bouchard and the mate of the Tug Evening Tide, which was pulling the barge, pleaded guilty to violating the Clean Water Act and killing 450 birds. Bouchard paid the federal government $9 million in criminal fines, while mate Franklin Robert Hill served six months in federal prison. Bouchard spent $36 million in cleanup activities as required under federal oil pollution law.

Awarded Damages (prior to being doubled, without interest):

Verdict 1:

$3,180, 14 Harbor Rd., Harbor Beach (Armen and Pauline Barooshian)

$3,210, 15 North Rd., Harbor Beach (Armen and Pauline Barooshian)

$1,575, 18 Centre Dr., Harbor Beach (Armen and Pauline Barooshian)

All three properties polluted until Sept. ’03.

Verdict 2:

$2,820, 37 Silver Shell Ave., Crescent Beach (Ronald and Daniele Bick)

Polluted until Nov. ’03

Verdict 3:

$22,650, 15 Seamarsh Way (W. Bradford Chase)

Polluted until Sept. ’09.

Verdict 4:

$2,070, 6 Avenue A, Pease’s Point (Margaret Churchill)

Polluted until Sept. ’03.

Verdict 5:

$13,800, 16 Water St. (Anne Downey)

Polluted until Sept. ’03.

Verdict 6:

$1,845, 19 Noyes Ave., Shell Beach (Thomas and Georgia Glick)

$2,910, 21 Noyes Ave., Shell Beach (Thomas and Georgia Glick)

Both properties polluted until Sept ’03.

Verdict 7:

$11,880, 126 Brandt Island Rd., Leisure Shores (Francis and Natalie Haggerty)

Polluted until October ’07.

Verdict 8:

$1,823, 11 Highland Ave., Brandt Beach (John and Maureen Mullen)

Polluted until October ’03.

By Becky W. Evans (reporter.evans@gmail.com)

PLYMOUTH, Mass.— After nearly 10 hours of deliberations, jurors agreed Friday morning that Bouchard must pay eight Mattapoisett property owners varying amounts in damages for oil that polluted their beaches for months or years following the April 27, 2003 Buzzards Bay oil spill.

The 13-member jury rendered eight verdicts, one for each of the plaintiffs in the trial, which is part of a broader class-action lawsuit involving 1,100 Mattapoisett property owners.

The awarded damages, which range from $1,575 to $22,650 per property, will be doubled in accordance with state law, said Judge Raymond J. Brassard. In addition, the plaintiffs will receive 12 percent annual interest going back to the filing date of the lawsuit in September 2004.

Read more about the verdicts tomorrow on ThreeBeats and in The Standard-Times.

By Becky W. Evans (reporter.evans@gmail.com)

Lawyers wait for the verdict that never came on Thursday.

PLYMOUTH, Mass.– The brilliant blue waters of Cape Cod Bay were visible from the courtroom windows, but jurors remained hidden behind closed doors Thursday as they deliberated eight verdicts in the April 2003 Buzzards Bay oil spill case.

Attorneys and a handful of SouthCoast residents waited seven hours in the Plymouth Trial Court building. They passed the time talking, working on their laptops and taking in views of the bay offered by the third-floor windows.

At 4 p.m., it appeared the jury had rendered a verdict, and the lawyers took their places in the courtroom. Then, the clerk announced that the jury had requested additional time Friday morning to deliberate the case. Afterward, a lawyer joked that given the date, the false appearance of a verdict must have been an April Fool’s Day prank.

Thursday marked the ninth day of civil proceedings in a class-action lawsuit involving eight Mattapoisett property owners who are seeking damages from Bouchard due to oil contamination from the Bouchard 120 oil spill. The eight plaintiffs are part of a 1,100-member class who filed the lawsuit against Bouchard in September 2004.

The jury must make eight verdicts involving 11 properties. They must decide how much, if any, in damages Bouchard owes the eight plaintiffs.

Outside the courtroom, Kim and Joseph DeLeo of Mattapoisett appeared content to return to the courthouse Friday.

“We waited seven years, what’s a couple days more?” Mr. DeLeo said.

The jury is “really thinking about the verdict,” said Mrs. DeLeo, the class representative. “They’ll make the right decision.”

Jurors will return to court Friday at 9 a.m.

By Becky W. Evans (reporter.evans@gmail.com)

Defense attorney Ronald W. Zdrojeski makes closing remarks to the jury.

PLYMOUTH—  Capping off six days of testimony, lawyers made closing statements to jurors Wednesday during a class-action trial involving eight Mattapoisett property owners whose beaches were polluted when a Bouchard barge spilled up to 98,000 gallons of oil in Buzzards Bay on April 27, 2003.

The 13-member jury, which began deliberating the case Wednesday afternoon, must decide how much, if any, in damages Bouchard must award to each of the eight plaintiffs.

The trial at Plymouth County Superior Court is likely the first of many trials in a class-action lawsuit that 1,100 Mattapoisett property owners filed against Bouchard in September 2004.

Jurors will issue eight verdicts, one for each property owner. Each verdict will require an agreement by 11 out of the 13 jurors, Justice Raymond J. Brassard said.

During his closing remarks, plaintiffs’ attorney Martin E. Levin told jurors that the case “is really about the right to use and enjoy one’s property.”

“The defendant took something special away from the homeowners, their right to use and enjoy their beach without interference from oil that should never have been there and would not be there if not for the defendant’s negligent grounding of that barge,” said Levin, who works for Boston law-firm of Stern, Shapiro, Weissberg & Garin LLP.

To measure compensation for Bouchard’s interference, Levin said plaintiffs hired a real estate appraiser who used comparable rental data to calculate the lost rental value for each property. He said the concept was a “practical,” though “imperfect,” way to measure lost beach enjoyment, such as “taking pleasure in the company of one’s friends and family, the peace and quiet of a contemplative walk along the shoreline, the small challenge of finding just the right seashell … or just enjoying the sun on your skin.”

Levin said the jury should decide how long the beaches were polluted based on evidence from property owners who testified during the trial. He suggested jurors consider awarding damages greater than or equal to the appraiser’s “conservative” findings for lost rental value, which ranged from about $5,000 to $60,000 per property.

Defense attorney Ronald W. Zdrojeski, who was the first to deliver closing remarks, told jurors that the case is “about damages and how much money do we owe these people.”

He asked the jury to consider whether “a reasonable person” could have used the plaintiffs’ beaches following oil spill cleanups that were overseen and approved by government agencies. He said all the beaches were open for public use by Memorial Day weekend in 2003.

“The reality is the beaches were never closed,” said Zdrojeski, who works for Robinson & Cole LLP of Hartford, Conn.

Zdrojeski advised jurors to use their “God-given common sense” to decide whether the plaintiffs’ figures for lost rental value “make any sense.”

In place of those figures, he suggested that jurors award $200 to six of the eight plaintiffs who were “inconvenienced” by the spill. For the remaining two plaintiffs, he suggested that Bradford Chase of 15 Seamarsh Way receive $500 in damages for “traces of oil on his property.” He suggested awarding $3,000 in damages to Francis Haggerty of 126 Brandt Island Road near Leisure Shores beach. He said that amount would give Haggerty $500 for each of the six years that residual oil affected his use of the beach.

Following the closing statements, Brassard gave instructions to the jury to guide their deliberations.

“Your duty is to return the right verdict, the truthful verdict,” Brassard told the 13 jurors. Two of the original 15 appointed jurors dropped out during the trial due to personal reasons.

On April 27, 2003, the Bouchard No. 120 struck an underwater reef in Buzzards Bay after drifting outside a marked channel. The punctured barge, which was on its way to a Cape Cod power plant, leaked up to 98,000 gallons of No. 6 fuel oil. The oil polluted more than 90 miles of coastline, killed 450 federally-protected birds and temporarily shut down about 180,000 acres of shellfish beds.

Both Bouchard and the mate of the Tug Evening Tide, which was pulling the barge, pleaded guilty to violating the Clean Water Act and killing 450 birds. Bouchard paid the federal government $9 million in criminal fines, while mate Franklin Robert Hill served six months in federal prison.

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By Becky W. Evans (reporter.evans@gmail.com)

Lawyers consult with Justice Raymond J. Brassard during a civil trial at Plymouth County Superior Court.

PLYMOUTH, Mass.— The final witness called by defense lawyers in the Bouchard 120 oil spill trial testified Tuesday that damages sought by eight Mattapoisett property owners total as much as $1,280— far less than the $245,300 figure cited by the plaintiffs’ real estate appraiser.

William H. Desvousges, a natural resource economist, told jurors Bouchard paid him to analyze damage estimates calculated by real estate appraiser Jonathan H. Avery, who was hired by the plaintiff’s attorneys.

Last week, Avery testified that his analysis showed the eight plaintiffs lost between $5,000 to $60,000 per property in potential rental value due to contamination of their beaches from the April 27, 2003 oil spill.

The eight plaintiffs are among 1,100 Mattapoisett property owners who filed a class-action lawsuit against Bouchard in September 2004. The class is seeking damages for the lost use and enjoyment of their private beaches, which were polluted in the oil spill.

Desvousges challenged Avery’s methodology for calculating damages, saying his approach— that property owners lost a “beach premium,” worth 30 percent of their potential annual rental value, for as many years as the state considered their beach to be contaminated — was based on speculation.

“He simply assumed his conclusion, that this entire beach premium was lost as a result of the spill,” Desvousges said.

As an economist, Desvousges said he took a different approach to calculating potential damages from the oil spill. First, he examined whether property owners had rented their properties and if they had, whether there was a change in rent after the oil spill. Next, he considered “objective evidence” related to oil contamination at beaches, the pace and scope of the cleanup, weather conditions and people’s use of the beach. Finally, he researched whether substitute beaches were available.

He concluded that five of the eight property owners incurred zero economic damage. For the other three, his analysis showed some damages. He calculated $30 in damages for cleaning supplies bought by Ronald and Daniele Bick, who own 37 Silver Shell Ave. near Crescent Beach. For Bradford Chase’s property at 15 Seamarsh Way, he said damages ranged between $0 and $250, the cost of a membership at Mattapoisett YMCA, which he considered a substitute beach. “Pepper flecks” of oil at Leisure Shores beach contributed to damages of between $250 to $1,000 for Francis Haggerty’s property at 126 Brandt Island Rd, he said.

During cross examination, plaintiffs’ attorney Max D. Stern questioned Desvousges’ analysis, saying he excluded certain factors such as whether there was subsurface oil at beaches or whether the smell of oil affected people’s enjoyment of their beaches. Stern also told the the economist that the Mattapoisett YMCA beach is closed to the public when summer camp is in session.

The defense rested after Desvousges’ testimony. Judge Raymond J. Brassard dismissed the jury for the remainder of the afternoon. The trial continues Wednesday morning with closing arguments from the lawyers.

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Environmental consultant John W. McTigue identifies blue-green algae on a rock.

PLYMOUTH, Mass.–  When proceedings in the Bouchard oil spill trial resumed Monday, defense lawyers called two experts who challenged earlier testimony from plaintiffs’ witnesses regarding oil contamination at Mattapoisett beaches and its impact on the rental value of coastal properties.

Bouchard’s environmental consultant John W. McTigue used a memorandum from the state Department of Environmental Protection to explain why subsurface oil that remains at Leisure Shores beach poses “no significant risk to public welfare,” meaning it does not create a nuisance condition or a loss of property value as defined by state cleanup laws.

About 1,100 Mattapoisett property owners are seeking damages from Bouchard for the loss of enjoyment and use of their beaches due to contamination from the April 27, 2003 oil spill.

Last week during the civil trial, the plaintiffs’ environmental consultant Richard J. Hughto testified that he believes Leisure Shores and a beach at 15 Seamarsh Way pose a significant risk to public welfare due to oil that appeared when he dug test holes in the sand. He said the oil at 15 Seamarsh Way stuck to his fingers and had a strong odor.

McTigue told jurors that state cleanup laws “allow for some level of residual oil, acknowledging that it is not always feasible” to clean up all the oil from a spill.

He also testified that some people have mistaken asphalt, seaweed and algae for remnants of No. 6 fuel oil, which spilled into Buzzards Bay when the Bouchard B. No. 120 barge drifted off course and struck an underwater ledge.

“Oil can be confused with other things that look like B. 120 oil but are not,” he said.

During questioning, defense lawyer Ronald W. Zdrojeski lifted some objects out of a cardboard box and handed them individually to McTigue: two large rocks, a tub of seaweed and some chunks of asphalt. He asked McTigue to identify each object.

McTigue said the larger, melon-sized rock was covered with “dry, hardened oil.” He identified the substance on the smaller, banana-shaped rock as a blue-green algae typically found on rocks “here in New England.”

“When it’s wet, it is blacker and could be mistaken for oil,” he said.

Zdrojeski then asked Judge Raymond J. Brassard if the court officer could pass the evidence around the jury. Brassard agreed despite protests from plaintiffs’ attorney Martin E. Levin.

During cross examination, Levin asked McTigue if he knew when and where the objects were collected. McTigue said he did not know.

Levin then asked the witness if he knew if any of the plaintiffs’ had ever seen the rocks, the seaweed or the asphalt. McTigue said he did not know.

The defense called real estate appraiser Michael J. Hart as its second witness of the day.

Hart said he was hired by Bouchard to analyze a study conducted by the plaintiffs’ real estate appraiser Jonathan H. Avery, who testified last week that property owners had lost between $5,000 and $60,000 in rental value due to the oil spill.

Hart testified that Avery’s analysis was flawed because it did not compare actual rental data from before and after the spill. He said he conducted his own analysis using this data and found that “rental rates for coastal Mattapoisett properties did not change subsequent to the oil spill.”

The defense is expected to call its final witnesses on Tuesday, when the trial continues at Plymouth County Superior Court. Follow the proceedings live with ThreeBeats on Twitter. It’s easy, just visit http://twitter.com/threebeats and read the postings. No need to be signed up for Twitter. You can also read the tweets here on ThreeBeats in the box at the right, top of the page.

By Becky W. Evans (reporter.evans@gmail.com)

Dave Barry, an oil spill response trainer, gives testimony during a civil trial at Bristol County Superior Court.

PLYMOUTH, Mass.— The defendant in a class-action lawsuit involving Mattapoisett property owners opened its case Friday with testimony from an oil spill response trainer who helped manage the cleanup of up to 98,000 gallons of Bouchard oil that polluted Buzzards Bay on April 27, 2003.

Dave Barry, president of Gallagher Marine Systems, told the jury he represented Bouchard as one of three members of the Unified Command team, which was charged with managing spill response and cleanup activities under the Oil Pollution Act of 1990. The team included a representative from the U.S. Coast Guard and another from the Massachusetts Department of Environmental Protection.

Barry said his duties began the day of the oil spill when he received a phone call while driving across the Bourne Bridge with his wife and mother-in-law. He drove to the nearby Massachusetts Maritime Academy, where he had conducted oil spill response training workshops. At the academy, he hopped on a boat that carried him out to the Bouchard No. 120 barge, which had drifted off course and struck a submerged reef while transiting the narrow bay.

Out at the barge, Barry learned that a father-and-son dive team had seen a gash in the vessel’s hull measuring about 3- to 4- feet wide and 12- to 15- feet long.

“It was clear to me at that point that we had a real problem,” he said.

For the next four months, Unified Command orchestrated cleanup activities along 90 miles of contaminated Buzzards Bay shoreline, including the Mattapoisett beaches for which plaintiffs in the 1,100-member class-action suit are seeking millions of dollars in damages from Bouchard.

Using photographs, Barry described various cleanup activities performed at contaminated beaches, such as mopping up the thick, No. 6 fuel oil with towels, collecting and disposing oil-soaked rocks and washing oil off rocky beaches with high-pressure hoses. He said the cleanup work cost Bouchard about $36 million.

Barry testified that Unified Command met its goal of making public and community beaches “available for the public to use” over the 2003 Memorial Day weekend, about a month after the spill. The team continued to manage oil cleanup activities through the summer, responding to hotline calls from residents who reported finding oil on their beaches.

“You (can) have a beach that looks beautiful, but you can always go out and you might be able to find a rock that is oiled, or flecks of oil that get into crevices … It’s impossible to get every last bit of oil off the beach,” he said.

Unified Command disbanded around Labor Day weekend in 2003, after beaches were inspected and reported to comply with cleanup standards, called the Immediate Response Action Treatment and Completion criteria.

“We were very proud of the job we had done,” said Barry, who received a Coast Guard commendation for his work.

Management of the site was turned over to a Bouchard-hired environmental consultant who facilitated additional cleanup activities as required under stricter state standards, Barry said.

During cross examination, plaintiffs’ attorney Martin E. Levin asked Barry about the criteria inspectors used for cleaning semi-public beaches such as Leisure Shores and Brandt Beach in Mattapoisett. Barry confirmed that such beaches could pass inspection even if there was oil below the surface, a smell of oil and/or a “discontinuous” oil sheen appeared when a hole was dug in the sand.

Earlier in the day, plaintiffs’ attorneys wrapped up their case with testimony from Kim DeLeo of 2 Marina Drive. DeLeo, who lives near Leisure Shores, is the class representative in the lawsuit.

Prior to arguing its case, the defendant asked the judge to rule in its favor by making a motion for a directed verdict due to a lack of evidence by the plaintiffs against Bouchard. The motion was denied by Justice Raymond J. Brassard and the trial continued.

The defendant will call additional witnesses when the trial resumes Monday at Plymouth County Superior Court.

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By Becky W. Evans (reporter.evans@gmail.com)

Prosecutor Martin Levin questions witness Jonathan H. Avery, a real estate appraiser.

PLYMOUTH, Mass.— A real estate appraiser told jurors Thursday that eight Mattapoisett property owners lost between $5,000 and $60,000 in rental value due to oil contamination of their beaches caused by the April 2003 Bouchard Transportation oil spill in Buzzards Bay.

Jonathan H. Avery, who testified during a civil trial at Plymouth County Superior Court, said he was hired by the plaintiffs’ attorneys to estimate the impact of the oil spill on the market rent of eleven Mattapoisett properties. The eight owners of those properties are part of a 1,100-member class-action lawsuit filed against Bouchard in September 2004. The class is seeking millions of dollars in damages from the spill.

For each property, Avery said he “made an estimate of what the rent would have been and how it would have been affected as a result of the oil contamination.”

He started by researching the market rent of properties in Mattapoisett that are within walking distance of a beach. He compared that with the market rent for properties that require a drive to the beach. Through this analysis, he determined a 30 percent “beach premium,” which he defined as the amount of additional rent a property brings because it is in close proximity to the beach.

Due to the oil spill, Avery concluded that the plaintiffs lost 30 percent of their potential annual rental value for as many years as the state considered their beach to be contaminated.

For example, since it took six years for the state to declare Leisure Shores beach clean, Frank Haggerty’s property at 126 Brandt Island Road lost 30 percent of its potential annual rental value for six years, amounting to a total loss of $50,800, according to Avery’s calculations.

During cross examination, defense lawyer David G. Hetzel questioned the accuracy and methodology of Avery’s estimates for rental value. He noted that in some cases, the estimates were higher than the actual rent that property owners had received from their tenants. Hetzel also used witness statements to show the jury at least one example where a plaintiff had charged their tenants the same rent both before and after the oil spill, with no loss in rental value.

Also on Thursday, the plaintiffs’ attorneys called as witnesses: Richard J. Hughto, a consulting environmental engineer; Margaret Churchill of 6 Avenue A (Pease’s Point); Georgia S. Glick of 19 Noyes Ave. (Shell Beach); Jeanne Schwamb of 4 Dyar Rd. (Shell Beach); and Daniele Bick of 37 Silver Shell Ave. (Crescent Beach).

The trial resumes Friday, when the defense is expected to call its first witness.

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By Becky W. Evans (reporter.evans@gmail.com)

PLYMOUTH, Mass.—Two Mattapoisett residents with deeded rights to Leisure Shores beach told jurors Wednesday their families had lost recreational use of the sandy beach after Bouchard oil washed ashore in April 2003 and lingered for years despite extensive cleanup efforts by the oil transport company.

Theresa Cormier, who purchased her house on Marina Drive a year before the oil spill, recalled visiting the beach a few days after a Bouchard barge leaked up to 98,000 gallons of fuel oil into Buzzards Bay.

“The oil was all over the beach and the rocks,” she said. “It was very, very thick and caked on the rocks as well as on the sand.”

Frank Haggerty, who has lived on Brandt Island Road since 1989, also testified about conditions in the neighborhood in the immediate aftermath of the spill.

“You could smell the oil,” he said. “It was so strong it went down your throat.”

He compared the oil to “molasses or maple syrup” that “was mixing” with the rocks on the beach.

Both Cormier and Haggerty are plaintiffs in a class-action lawsuit filed against Bouchard by 1,100 Mattapoisett property owners who are seeking damages related to the oil spill. Eight property owners, including Haggerty but not Cormier, are the subject of a civil trial this week at Plymouth County Superior Court.

The summer prior to the spill, Cormier said her family would walk to the beach on Saturdays with a picnic lunch and an appetite for waterfront recreation, from swimming to collecting shells to building sandcastles.

Plaintiffs’ attorneys showed the jury photographs of Cormier’s young daughter walking on the beach and splashing at the water’s edge that first summer.

“The main reason for choosing our property was that it came with deeded beach rights, it was a dream of ours to live near a beach,” Cormier said.

But the summer after the oil spill, the family stopped going to Leisure Shores on account of the contamination and cleanup work, she said.

Haggerty testified that the spill “ended” his activities at the beach, including swimming, walking and kayaking.

“My wife stopped going to the beach,” he said. “She took up golf rather than going to the beach.”

During cross examination, defense lawyer David G. Hetzel showed Cormier and Haggerty photographs of a crowd of people gathered at Leisure Shores for a beach cookout on Labor Day weekend of 2003, the same year as the oil spill.

When asked if they could identify any of the people, the witnesses acknowledged a few as neighbors who they knew casually.

When Haggerty was asked if he attended the cookout, he answered, “I probably didn’t go to it…I might have walked by it.”

Hetzel then zoomed in on one of the photographs to show Haggerty in a blue T-shirt sitting with some of the neighbors. The lawyer next zoomed in on some kayaks sitting on the shoreline and asked Haggerty if he owned them.

The witness said it was possible.

During her testimony, Cormier said a few years after the oil spill, her family began to enjoy the beach again.

“It appeared clean, but only later we found out they were still finding oil on the beach,” she said. “One day my husband and I took a walk to the beach with our daughter. … We noticed all these indentations and could see a sheen. They had dug test holes and had found more oil. Now if I go to the beach, I bring a lawn chair and a book. I’ll sit above the high tide mark, but there are no more family days at this beach.”

The trial continues today with presiding Justice Raymond J. Brassard.

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Defense attornery Ronald W. Zdrojeski, center, makes opening statements to the jury, while prosecutor Martin E. Levin, left, and Justice Raymond J. Brassard, right, listen.

PLYMOUTH — A lawyer representing Mattapoisett property owners opened his case against Bouchard Transportation Co. on Tuesday by arguing that his clients lost the special privilege of swimming, strolling and sunbathing at their private beaches when a barge owned by the oil transport company negligently ran aground and spilled up to 98,000 gallons of oil into Buzzards Bay in April 2003.

“That specialness came to a screeching halt when the defendant’s oil came ashore,” said Martin E. Levin of Stern, Shapiro, Weissberg & Garin LLP of Boston.

In his opening statement, Levin told the Plymouth County jury that, despite cleanup activities, his clients “all experienced lingering effects of the pollution. … The oil was always on their minds because you could never tell when it was there.”

Levin promised to show why Bouchard should compensate property owners for lost rental value, even if some of them never rented their homes.

“It’s an objective way to measure that damage done by oil that should have never polluted those Mattapoisett shores,” he said.

Ronald W. Zdrojeski, a defense lawyer with Robinson & Cole LLP of Hartford, Conn., told the jury that Levin’s method for calculating damages would cause “eye-rubbing and head-scratching.”

“We shouldn’t have to pay for damages that don’t exist or are exaggerated,” he said.

Bouchard spent “upwards of $36 million” on a comprehensive cleanup of the Buzzards Bay shoreline that was overseen and approved by federal, state and local officials, Zdrojeski said.

“We relentlessly and arduously went out and found where the oil was and we cleaned it up,” he said.

None of the property owners was forced to leave their homes on account of the oil spill, Zdrojeski said.

“This case is ultimately about use,” he said. “They could still sleep in their beds and cook in the kitchen.”

The lawyers’ opening statements launched the second day of civil trial proceedings at Plymouth County Superior Court. The trial is part of a class-action lawsuit filed against Bouchard by 1,100 Mattapoisett property owners who are seeking millions of dollars in damages related to thick fuel oil that leaked from the B. No. 120 barge after it drifted off course and ruptured its hull on submerged rocks identified in nautical charts.

Both Bouchard and the mate of the Tug Evening Tide, which was pulling the barge, pleaded guilty to violating the Clean Water Act and killing 450 federally protected birds. Bouchard paid the federal government $9 million in fines, while mate Franklin Robert Hill served six months in federal prison.

Zdrojeski showed the nine-woman, six-man jury a handful of black seaweed that he said some Mattapoisett residents had mistaken for oil. He also displayed two melon-sized rocks, one covered with black oil splatter and the other with what he called “plain old black algae.”

“Not everything they were seeing was oil,” he said.

Levin shared an overhead slide featuring a Geographic Information System map developed from Bouchard data that depicted varying degrees of oil pollution along the Mattapoisett shoreline.

“Some of the beaches were more heavily polluted than others, but all of the properties were contaminated with some of that oil,” he said.

Following opening statements, prosecutors called four witnesses to testify before the jury. The witnesses included Erich Gundlach, a coastal earth scientist with E-Tech International Inc.; retired Mattapoisett Fire Chief Ronald Scott; Mark Maguire, a GIS development manager with Tetra Tech Inc.; and Bradford Chase, a Natick resident whose Mattapoisett property at 15 Seamarsh Way was contaminated by oil from the Bouchard spill.

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By BECKY W. EVANS (reporter.evans@gmail.com)

PLYMOUTH — Fifteen jurors were selected Monday at the opening of a trial involving Mattapoisett property owners who claim their shoreline properties were damaged by home heating oil that spilled from a Bouchard tank barge when it ran aground in Buzzards Bay nearly seven years ago.

The civil trial continues today at Plymouth County Superior Court, where prosecution and defense lawyers will make opening statements.

Justice Raymond J. Brassard told about 100 potential jurors that a good trial juror must possess “a particular state of mind,” which includes “being willing to judge this case based only on the evidence and law described to you” and “the willingness to keep your mind open.”

During the nearly five-hour jury selection, Brassard and the lawyers vetted more than 50 people to determine the 15-member jury. Brassard instructed the jurors to abstain from reading, listening or watching media coverage of the trial.

The trial, which is expected to last two weeks, will feature testimony from eight property owners who have real estate near or on Harbor Beach, Crescent Beach, Pease’s Point, Shell Beach, Leisure Shores and Brandt Beach in Mattapoisett.

The owners are part of a 1,100-member class that filed a lawsuit against defendants Bouchard Transportation Co. Inc., Tug Evening Tide Corp. and B. No. 120 Corp. in Plymouth Superior Court on Sept. 29, 2004. The class is seeking millions of dollars in damages to their property from the oil spill.

On April 27, 2003, the B. No. 120 barge leaked nearly 100,000 gallons of No. 6 fuel oil into Buzzards Bay after rupturing its hull on rocks off Gooseberry Neck in Westport. The tug Evening Tide, which was towing the barge, drifted off course, causing the barge to run aground on a rocky ledge outside the marked channel.

The oil spill polluted 100 miles of shoreline, killed 450 federally protected birds and temporarily closed 178,000 acres of shellfish beds. Bouchard paid a $10 million fine to the federal government after pleading guilty to violating the Clean Water Act. The company also spent more than $40 million cleaning up the oil-soaked shoreline.

After the jury selection, class members Joseph DeLeo and his wife, Kim, told The Standard-Times that they were happy to see the trial begin after years of anguish related to the cleanup of Leisure Shores beach, which they contend is still polluted with oil from the Bouchard spill.

The couple bought their Marina Drive home in September 2001 and enjoyed only one summer with a “pristine” beach, DeLeo said.

He does not let their two children, who were born after the oil spill, play or swim at the beach.

“They say it’s OK, but what kind of parent would I be if I let them?” DeLeo asked. “When I moved here the beach was pristine, and I want it back the way it was.”

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