     Case: 18-30798      Document: 00514914392         Page: 1    Date Filed: 04/12/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         April 12, 2019
                                      No. 18-30798
                                                                         Lyle W. Cayce
                                                                              Clerk
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,

               Requesting Parties - Appellees

v.

CLAIMANT ID 100188324,

               Objecting Party - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-5281


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
       The sole issue presented in this appeal is whether the claimant-
appellant, a cruise line operator, is entitled to membership in the class under
the Deepwater Horizon Economic and Property Damages Settlement
Agreement (“Settlement Agreement”).                The claimant-appellant is NCL
Corporation, Ltd., through its subsidiary Norwegian Spirit, Ltd. (collectively



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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“Norwegian”), and BP is the appellee. 1 Norwegian’s Business Economic Loss
claim under the Settlement Agreement is based on cancelled reservations on
one of its vessels, the Norwegian Spirit (“Spirit”), following the Deepwater
Horizon disaster.
      Norwegian’s entitlement to class membership turns on whether it was
“Home Ported” in the Gulf Coast Areas during the relevant time period. The
district court found that Norwegian failed to satisfy the Settlement
Agreement’s requirements and denied its claim.               As discussed below, we
conclude that the district court erred in its interpretation of the definition of
“Home Ported” under the Settlement Agreement. We therefore REVERSE and
RENDER judgment for the claimant, REMANDING this case to the Court
Supervised Settlement Program (“Program”) for the determination of the
proper award to the claimant.
                                            I.
      The Settlement Agreement’s class definition, in Section 1.2.3, includes
within the class “[a]ll Entities doing business or operating in the Gulf Coast
Areas or Specified Gulf Waters that . . . owned, operated, or leased a vessel
that . . . was Home Ported in the Gulf Coast Areas at any time from April 20,
2010 to April 16, 2012.” 2         The “definitions” section of the Settlement
Agreement, in turn, defines “Home Ported” as “the home port of a vessel as
documented by a 2009 or 2010 government-issued vessel registration.” 3




      1   We refer to BP Exploration & Production, Inc., BP America Production Company,
and BP, P.L.C. collectively as “BP.”
        2   Economic and Property Damages Settlement Agreement, Section 1.2.3,
http://www.deepwaterhorizoneconomicsettlement.com/docs/Amended_Settlement_Agreeme
nt_5.2.12_optimized.pdf#search [hereinafter Settlement Agreement].          The Settlement
Agreement defines the Gulf Coast Areas as the states of Louisiana, Mississippi, and
Alabama, as well as certain counties in Texas and Florida. Id. at Section 38.80.
        3 Id. at Section 38.82.

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       This court has previously found that a cruise line company seeking
membership in the Deepwater Horizon class may only join the class by
satisfying the requirements of Section 1.2.3. 4
                                              II.
       The Spirit’s vessel registration was issued by the Commonwealth of the
Bahamas in 2004. 5 It lists the Spirit’s “Port of Registry” as Nassau but does
not provide a space for the inclusion of the vessel’s Home Port. The only visit
the Spirit made to Nassau, according to the evidence in the record, was in
September 2010 to seek refuge from Hurricane Igor.
       Under a Berthing Agreement with the Port of New Orleans, Norwegian
committed the Spirit, or an equal or larger replacement vessel, to the Port of
New Orleans for seasonal “Homeported Operations” during six months of each
year for three years, beginning on October 31, 2008. 6




       4  Claimant ID 100218776 v. BP Expl. & Prod., Inc., 712 F. App’x 372, 373, 376 (5th
Cir. 2017) (per curiam) (unpublished). While our unpublished opinions are not controlling
precedent, they may be persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7
(5th Cir. 2006) (citation omitted). The claimant makes an alternative argument that the
Spirit was “primarily docked” in New Orleans under Claims Administrator’s Policy 467. That
policy defines “Facility” under the Settlement Agreement. Because this court has previously
held that cruise line companies are required to pursue class membership under Section 1.2.3
and cannot “sidestep” this requirement by seeking to enter the class as “physical facilities”
under Section 1.2.1, see Claimant ID 100218776, 712 F. App’x at 373, 375-76, we doubt that
the “primarily docked” analysis under Policy 467 applies to this claim. However, we need not
reach this issue, in light of our holding that the vessel at issue was Home Ported in New
Orleans during the relevant time period. Were we to consider the “primarily docked” issue,
the record evidence indicates that the subject vessel would also be considered “primarily
docked” in New Orleans.
        5 While the Settlement Agreement refers to a vessel registration from 2009 or 2010,

the Spirit’s registration is stamped October 2, 2012 and lists 2004 as the year of registry.
The parties seem to agree that this registration is the proper document for our consideration.
Therefore, we assume, for purposes of our analysis, that this registration is the Spirit’s “2009
or 2010 government-issued vessel registration.”
        6 Norwegian contends that this agreement was renewed for another three years but

provides no evidence to support this proposition.
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       The Spirit’s itineraries show that it embarked on cruises out of the
following cities, where it received supplies and fuel and embarked and
disembarked passengers:
       January 2009 - April 2009: New Orleans;
       May 2009 - October 2009: Boston (two days docked in Quebec City);
       November 2009 - April 2010: New Orleans;
       April 2010 - October 2010: Boston (two days docked in Quebec City); and
       November 2010 - April 2012: New Orleans.
       In total, during the time period referenced in the Settlement
Agreement’s class definition (April 20, 2010 to April 16, 2012), the Spirit
docked in New Orleans on seventy-five days, in Boston on twenty-seven days,
and in Quebec City on two days.
                                            III.
       In June 2013, Norwegian submitted its Business Economic Loss claim.
On September 14, 2016, the Program’s Claims Administrator denied the claim
based on its finding that the business was located outside the Gulf Coast Areas.
The Program apparently equated the Spirit’s Port of Registry with its Home
Port, as it concluded that the Spirit was not Home Ported in the Gulf Coast
Areas because its vessel registration did not require a Home Port to be stated
but listed Nassau as its Port of Registry.              The claimant next requested
Reconsideration by the Program. 7 Following Reconsideration, the Program
found that the claim remained denied for the same reasons previously given.
       On November 15, 2017, the claimant appealed the denial of its claim to
an administrative appeal panel. In the proceedings before the appeal panel,
the parties submitted expert reports on the meaning of the term “Home Port”


       7Reconsideration is available to claimants who believe the Program has “failed to take
into account relevant information or data or did not follow the Settlement Agreement’s
standards governing th[e] claim.”
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and whether it is synonymous with the term “Port of Registry.” BP’s expert
gave the opinion that the terms are synonymous and that the Spirit was
therefore Home Ported in Nassau. The claimant’s experts gave the opinions
that the terms are not synonymous; the Port of Registry identifies a vessel on
government documents and establishes a vessel’s nationality, while the Home
Port is the vessel’s operational base, where it begins and ends its itineraries.
One of the claimant’s experts gave the opinion that the Spirit was Home Ported
in New Orleans, based on its Berthing Agreement and itineraries.
      On April 18, 2018, the administrative appeal panel issued its decision,
which found that Norwegian had established class membership and remanded
the claim to the Program for a determination of the proper award. The appeal
panel agreed with the claimant’s argument that the Settlement Agreement’s
definition of “Home Ported” required an analysis of the particular vessel’s
registration document, but that the definition was ambiguous as applied to this
vessel because its registration “neither include[d] nor allow[ed] inclusion of a
vessel’s home port, as arguably envisioned by Section 38.82.” The panel found
that this ambiguity required the consideration of extrinsic evidence, and it
therefore considered the parties’ experts’ declarations and appeared to credit
the claimant’s experts.
      The administrative appeal panel stated that, during the time period
specified in the Settlement Agreement’s class definition (April 20, 2010 to April
16, 2012), the Spirit docked in New Orleans on 75 days and in Boston on 27
days. The panel also added that the Berthing Agreement provided for home
porting privileges and obligations during the relevant time period. The panel
ultimately found that the Spirit deserved membership in the class because it
“had a contract by which it embarked and returned passengers in New
Orleans, fueled, staffed and supplied itself in New Orleans, and otherwise
exhibited itself as primarily a New Orleans-based vessel.”
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      On May 3, 2018, BP requested discretionary review by the federal
district court supervising the Program, which the district court granted. The
district court concluded that Section 1.2.3 controls whether Norwegian is a
class member. The district court declined to decide the parties’ dispute over
whether the Spirit’s vessel registration document established that it was Home
Ported in the Bahamas, or whether the document was silent as to the vessel’s
Home Port and therefore irrelevant.
      The district court disagreed with the administrative appeal panel’s
finding that the Spirit was Home Ported in New Orleans. The court reasoned
that the Berthing Agreement was a contract, not “‘a 2009 or 2010 government-
issued vessel registration’ as required by the Settlement Agreement.” The
district court thus found that the claimant had “not submitted the
documentation necessary to establish Class Membership under Section 1.2.3,”
reversed    the    appeal    panel’s    decision,    and   reinstated     the   Claims
Administrator’s denial of the claim.            Norwegian timely filed this appeal
challenging the district court’s judgment.
                                          IV.
      While this court generally reviews the district court’s judgments in cases
arising from the Settlement Agreement for abuse of discretion, 8 it is well
settled that “[t]he interpretation of [the] settlement agreement is a question of
contract law that this Court reviews de novo.” 9 Therefore, this court reviews
de novo the district court’s legal conclusion in this case; that is, its
interpretation of the Settlement Agreement.




      8  BP Expl. & Prod., Inc. v. Claimant ID 100169608, 682 F. App’x 256, 259 (5th Cir.
2017) (per curiam) (unpublished).
       9 See In re Deepwater Horizon, 864 F.3d 360, 363 (5th Cir. 2017) (quoting In re

Deepwater Horizon, 785 F.3d 1003, 1011 (5th Cir. 2015)).
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       The Settlement Agreement, by its terms, is “interpreted in accordance
with General Maritime Law.” 10 “Under admiralty law, a contract ‘should be
read as a whole and its words given their plain meaning unless the provision
is ambiguous.’” 11 “A provision is not ambiguous if ‘its language as a whole is
clear, explicit, and leads to no absurd consequences, and as such it can be given
only one reasonable interpretation.’” 12 “If a provision is ambiguous, only then
should its meaning should [sic] be resolved ‘consistent with the intent of the
parties.’” 13 “A court may ‘look beyond the written language of the document to
determine the intent of the parties.’” 14
                                              V.
       This court has previously found that a claimant making a vessel-based
claim under the Settlement Agreement may only join the class by satisfying
the requirements of Section 1.2.3. 15 Therefore, Norwegian must establish that
its vessel was “Home Ported” in the Gulf Coast Areas during the relevant time
period, which is supplied by the Settlement Agreement’s class definition: “at
any time from April 20, 2010 to April 16, 2012.” 16


       10  Settlement Agreement, supra note 2, at Section 36.1.
       11  Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016)
(quoting Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009)).
        12 BP Expl. & Prod., Inc. v. Claimant ID 100262795, No. 18-30273, 2019 WL 113684,

at *2 (5th Cir. Jan. 4, 2019) (per curiam) (unpublished) (quoting Chembulk Trading LLC v.
Chemex Ltd., 393 F.3d 550, 555 n.6 (5th Cir. 2004)).
        13 Id. (quoting In re Deepwater Horizon, 858 F.3d 298, 303 (5th Cir. 2017)).
        14 Id. (quoting Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 332-33 (5th Cir. Unit

A Aug. 1981)).
        15 Claimant ID 100218776, 712 F. App’x at 376.
        16 Settlement Agreement, supra note 2, at Section 1.2.3. BP argues that the Home

Port must be established by 2009 or 2010, based the Settlement Agreement’s definition of
“Home Ported,” which references the vessel’s government-issued registration from those
years. Id. at Section 38.82. In light of the different, specific date range in the Settlement
Agreement’s class definition, and in accordance with our prior caselaw on the “Home Ported”
requirement, we disagree. Claimant ID 100218776, 712 F. App’x at 374 (“[Claimant] is a
cruise-line company that operated ten foreign-flagged cruise ships throughout the Gulf of
Mexico between April 2010 and April 2012—the relevant period for determining Class
eligibility.”).
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                                   No. 18-30798
      The Settlement Agreement’s definition of “Home Ported” directs the
reader to the subject vessel’s registration document, which, in this case,
includes no space for listing the vessel’s Home Port. We would agree with the
district court’s conclusion if the certificate of registry for the vessel in this case
had listed a Home Port. Because the certificate did not list a Home Port or
provide a space for listing one, we conclude that the “Home Ported” provision
is ambiguous as applied to the facts of this case, and the administrative appeal
panel correctly considered evidence beyond the language of the Settlement
Agreement to resolve the ambiguity. The appeal panel made a thorough review
of the record evidence, including the experts’ reports, and resolved the
ambiguity, exercising its discretion to credit the claimant’s experts’ reports and
finding that New Orleans was the Spirit’s Home Port during the relevant time
period.
      After reviewing the evidence, we agree with the appeal panel’s resolution
of this ambiguity and its finding that the Spirit was Home Ported in New
Orleans during the relevant time period.
      Pursuant to the Berthing Agreement, the Spirit docked in New Orleans
seventy-two percent of the time during the relevant time period. It docked in
Boston only twenty-six percent of the time, and in Quebec City only two percent
of the time, during that period. The Spirit never operated from Nassau, the
Port of Registry listed on its vessel registration. In fact, the only evidence in
the record of the Spirit ever visiting the Bahamas is a single unexpected stop
made to avoid Hurricane Igor in September 2010.
      The appeal panel’s interpretation of the “Home Port” definition is
supported by the International Maritime Dictionary, which defines Home Port
as “[t]he terminal port of a vessel; not necessarily the port of registry. The port




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                                    No. 18-30798
from which a ship operates.” 17 Also, this understanding of a vessel’s Home
Port, as its operational base, makes sense in light of the Settlement
Agreement’s purpose—to compensate individuals and entities affected by the
spill. This interpretation is further supported by the language of the class
definition (“a vessel that . . . was Home Ported in the Gulf Coast Areas at any
time from April 20, 2010 to April 16, 2012”), which suggests that the parties
understood a vessel could have more than one Home Port during a given
period. Because of the thorough review of the record evidence by the appeal
panel, we see no reason to remand this issue to the district court for further
consideration.
      Therefore, we reverse the district court’s judgment and render judgment
for the claimant, remanding this case to the Settlement Program for a
determination of the proper award to the claimant.
                                          VI.
      For these reasons, we conclude that the district court erred in its
interpretation of the Settlement Agreement’s definition of “Home Ported.”
Accordingly, we REVERSE and RENDER judgment for the claimant,
REMANDING this case to the Settlement Program for the determination of
the proper award to the claimant.




      17   RENÉ DE KERCHOVE, INTERNATIONAL MARITIME DICTIONARY 376-77 (2d ed. 1961).
                                           9
