IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30798

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 claimantappellant, 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.

United States Court of Appeals

Fifth Circuit

FILED

April 12, 2019

Lyle W. Cayce

Clerk

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No. 18-30798

2

“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” 

 

7 Reconsideration 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 governmentissued 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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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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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).

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