United States Court of Appeals

for the Fifth Circuit

No. 21-30573

In re: Deepwater Horizon

__________________________________

Loggerhead Holdings, Incorporated, 

Plaintiff—Appellant,

versus

BP, P.L.C.; BP America, Incorporated; BP Products 

North America, Incorporated; BP America Production 

Company; BP Exploration & Production, Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Eastern District of Louisiana

 USDC No. 2:10-MD-2179

USDC No. 2:16-CV-5952

Before King, Elrod, and Southwick, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Loggerhead Holdings, Inc., a holding company that owned a scuba 

diving cruise business, was one of many plaintiffs who brought suit against an 

oil company because of the explosion of an offshore drilling rig and the 

United States Court of Appeals

Fifth Circuit

FILED

September 2, 2022

Lyle W. Cayce

Clerk

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resulting discharge of a massive quantity of oil into the Gulf of Mexico. 

Loggerhead’s claims were dismissed on summary judgment. We AFFIRM

in part, REVERSE in part, and REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

Loggerhead Holdings, Inc. began operating a scuba diving cruise 

business in 1986. The business relied on two special-purpose vessels named 

the Nekton Pilot and Nekton Rorqual that facilitated scuba expeditions. 

Beginning sometime after 2010, Loggerhead operated out of Fort Lauderdale 

on Florida’s Atlantic shore and offered scuba-diving cruises for tourists in 

and around the Caribbean through its subsidiary, “Nekton Diving Cruises.” 

Loggerhead does not dispute that it suffered business setbacks in the 

late 2000s. Nekton’s bookings declined significantly from 2008 to 2010.

Loggerhead reported declining receipts and mounting net income losses from 

2007 to 2009. Further, even though Loggerhead calculated positive earnings 

before interest, taxes, depreciation, and amortization (“EBITDA”)

throughout this period, it is apparent that its cruise business was

encountering significant problems. In September 2009, Loggerhead put one 

of its vessels, the Pilot, into dry dock at Port St. Joe, Florida, for a refit of the 

vessel. Loggerhead’s president, John Dixon, testified that the vessel was to 

be returned to service in June 2010. Despite that testimony, by April 2010,

Loggerhead was not accepting bookings. Dixon testified that only $30,000 

out of a projected $180,000 had been spent on parts for the Pilot.

About the same time, the Rorqual experienced problems of its own. 

Around April 10, 2010, the Rorqual’s starboard generator “had a casualty 

that was quickly fixed by installing a replacement generator.” That same 

week, though, the replacement generator “had a low-oil pressure warning 

indication,” and “Loggerhead limited its operation as a protective measure 

until the low-oil pressure condition could be diagnosed at Loggerhead’s Port 

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St. Joe facility.” Loggerhead thus planned to return the Rorqual to Port St. 

Joe at the completion of its final winter itinerary on April 24, 2010. To 

facilitate the generator warranty check, Loggerhead canceled and allegedly 

rescheduled two weeks of summer cruises that were planned to depart on 

May 8 and May 15.

On April 20, 2010, Deepwater Horizon, a mobile offshore drilling unit 

hired by BP to drill the Macondo Well in the Gulf of Mexico, suffered a 

blowout, causing what would become an 87-day discharge of oil into the Gulf. 

Not long thereafter, the Rorqual went from the Turks and Caicos Islands to 

Port St. Joe on Florida’s Gulf Coast. Dixon, in an affidavit, alleged that on 

the evening of May 2, 2010 — one day before arriving at Port St. Joe — the 

Rorqual encountered oil from the Macondo Well. The oil damaged the 

vessel’s main engines, generators, reverse osmosis water makers, HVAC,

grey, sanitary, and ballast water systems. Dixon asserted he “personally 

observed Macondo oil on the vessel.” He acknowledged, though, that he did 

not have the oil tested to determine if it could be matched to the oil from the 

Macondo Well. BP asserted in district court, and Loggerhead did not 

contest, that “it is possible to ‘fingerprint’ petroleum through the use of gas 

chromatography in order to determine the source of the crude oil.” Dixon’s 

response was that he was unaware of any other wells that were leaking, and 

thus his “deduction” was that the oil must have come from BP’s well. 

On May 17, 2010, Loggerhead announced on its website it was ceasing 

cruising operations, giving several reasons but making no reference to the 

Deepwater Horizon disaster. Loggerhead did not return the $417,000 in 

deposits paid by its customers, and its Nekton Diving Cruisessubsidiary soon 

filed an assignment for the benefit of its creditors. Shortly after, other diving 

companies offered credit to Nekton’s customers for diving trips with them.

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On August 10, 2010, the Judicial Panel on Multidistrict Litigation 

centralized all federal actions in the United States District Court for the 

Eastern District of Louisiana. In re Oil Spill by Oil Rig “Deepwater Horizon,” 

910 F. Supp. 2d 891, 900 (E.D. La. 2012); see 28 U.S.C. § 1407. In 2012, BP 

entered two class settlements: one for medical claims and another for 

economic claims. See In re Deepwater Horizon, 723 F. App’x 247, 248 (5th 

Cir. 2018). Under the terms of the settlement for economic damages, class

members released their claims in exchange for payment through a court 

supervised settlement program. In re Oil Spill, 910 F. Supp. 2d at 903. 

Loggerhead opted out of the settlement on September 19, 2012. 

In 2013, Loggerhead sued a variety of BP entities in the United States

District Court for the Southern District of Texas for claims arising from the 

Deepwater Horizon disaster. The suit was transferred to the Eastern District 

of Louisiana to join the others in that multidistrict litigation (“MDL”).

Complying with a pretrial order, Loggerhead filed a new complaint in May 

2016, asserting claims under the Oil Pollution Act (“OPA”) for economic 

and physical damages. See 33 U.S.C. § 2702(b)(2)(B), (E). It also asserted a 

claim for compensatory and punitive damages under maritime law.

Following the close of the limited discovery allowed, BP moved for 

summary judgment. BP argued that Loggerhead failed to create a genuine 

factual issue that the Deepwater Horizon disaster caused it economic injury; 

thus, no reasonable jury could rule in Loggerhead’s favor under the OPA or 

maritime law. BP also argued that Loggerhead’s claim for damages due to 

physical injury failed because there was no evidence that the Rorqual had 

encountered oil discharged from the Macondo Well. Loggerhead’s response 

included its tax returns from 2007-2014, along with a new declaration from 

Dixon. Loggerhead argued its economic losses were caused by the oil from 

the Deepwater Horizon and it could prove its economic losses with reasonable 

certainty through its financial statements. Regarding the claim for damages 

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due to physical injury, Loggerhead responded that Dixon’s deposition and 

affidavit established a genuine dispute of material fact as to whether oil from 

BP’s well was what fouled the Rorqual’s engines and other systems.

The district court granted BP’s motion for summary judgment on all 

claims. On the Section 2702(b)(2)(E) claim, the district court found that no 

jury could find Loggerhead’s business failed because of the Deepwater 

Horizon disaster: “The evidence all points in one direction: that 

Loggerhead’s business was going to fail in the Summer of 2010 regardless of 

whether the oil spill happened.” The district court also held that no evidence 

supported Loggerhead suffered any loss in earnings resulting from “the 

injury, destruction, or loss of real property, personal property, or natural 

resources” as required by Section 2702(b)(2)(E). The court granted

summary judgment on the claim. On the Section 2702(b)(2)(B) claim for 

“[d]amages for injury to, or economic losses resulting from destruction of, 

real or personal property,” the district court assumed for summary judgment 

purposes that there may be a question of material fact regarding whether the 

Rorqual had been damaged from encountering BP’s oil in the water. Still, the 

district court granted summary judgment on the claim because the only 

damages Loggerhead could recover under the statute would be “the cost of 

repairing the vessel’s oil-damaged components, if any” and Loggerhead had 

not set out “such repair costs among its itemized list of damages.”1

Loggerhead timely appealed. 

1 The district court also granted summary judgment for BP on Loggerhead’s claims 

under general maritime law “for the same reasons” discussed in the remainder of the 

opinion. Loggerhead does not raise any issue here as to the dismissal. 

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DISCUSSION

In reviewing an award of summary judgment de novo, we apply the 

same standard used by the district court. Rogers v. Bromac Title Servs., 

L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). With a motion for summary 

judgment, we ask whether, construing the facts in the light most favorable to 

the nonmoving party, the evidence is sufficient for a reasonable jury to find 

for the nonmovant. Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 

F.3d 134, 138 (5th Cir. 2010); Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 

808, 812 (5th Cir. 2010). Summary judgment is appropriate “if the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An 

issue is material if its resolution could affect the outcome of the action.” 

Sierra Club, Inc., 627 F.3d at 138 (quotation marks and citation omitted). 

Summary judgment should be granted “where critical evidence is so weak or 

tenuous on an essential fact that it could not support a judgment in favor of 

the nonmovant.” McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th 

Cir. 2017) (quotation marks and citations omitted). 

A party can present critical evidence, though, in many forms, even 

self-serving affidavits: “‘[S]elf-serving’ affidavits and depositions may create 

fact issues even if not supported by the rest of the record.” Guzman v. 

Allstate Assurance Co., 18 F.4th 157, 160 (5th Cir. 2021). It is unremarkable 

that evidence submitted by one side at the summary judgment stage will be 

“self-serving”; the question is whether that self-serving evidence is 

“conclusory, vague, or not based on personal knowledge.” Id. at 161.

I. 33 U.S.C. § 2702(b)(2)(E) claim for economic damages

We first address the district court’s grant of summary judgment on 

the Section 2702(b)(2)(E) claim. Loggerhead argues the district court erred 

by: (1) applying the incorrect causation standard to the claim; (2) not finding 

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that Dixon’s declaration created a question of material fact regarding the 

cause of Loggerhead’s economic damages; (3) making impermissible 

credibility determinations regarding Dixon’s testimony; and (4) stepping 

outside the bounds of the Rule 56 inquiry by considering the meaning of 

Loggerhead’s statements regarding EBITDA.

We consider Loggerhead’s arguments together. Section 

2702(b)(2)(E) allows for recovery of economic losses without requiring a 

plaintiff to show any physical damage to the plaintiff’s property. 33 U.S.C. 

§ 2702(b)(2)(E). “The only restriction on such recovery is that the loss must 

be due to the injury, destruction, or loss of real property, personal property, 

or natural resources.” In re Settoon Towing, L.L.C., 859 F.3d 340, 345 (5th 

Cir. 2017) (quotation marks omitted) (emphasis added). 

The parties dispute the precise causal standard applying to claims 

under Section 2702(b)(2)(E). A reasonable approach would be to apply the 

substantial-nexus test employed by the Supreme Court in Pacific Operators 

Offshore, LLP v. Valladolid, 565 U.S. 207 (2012). In that case, the Court 

addressed a federal statute providing remedies for injuries “occurring as the 

result of operations” on the Outer Continental Shelf, and it endorsed a 

“‘substantial-nexus’ test” requiring a “significant causal link” between the 

employee’s injury and the employer’s conduct. Id. at 221-222. Accordingly,

under the substantial-nexus test, a plaintiff seeking to recover damages under 

Section 2702(b)(2)(E) must demonstrate a significant causal connection 

between operations on the Outer Continental Shelf and its alleged loss of 

profits or impairment of earning capacity.

In a previous opinion in this MDL, the district court applied the 

substantial-nexus test to determine causation. In re Oil Spill by Oil Rig 

“Deepwater Horizon,” 558 F. Supp. 3d 331, 339 (E.D. La. 2021). The district 

court utilized a sliding scale approach:

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[T]he test [for causation] will vary with the circumstances —

e.g., what qualifies as a “significant causal link” in a massive 

oil spill may not qualify in a much smaller oil spill. As applied 

here, if a fact-finder determined that the oil spill’s injury to 

water and/or beaches caused fewer tourists to travel to Panama 

City Beach and further determined that Classy Cycles lost 

profits because of the decline in tourists, then this Court would 

hold that the “substantial-nexus” test is satisfied.

Id. We are not certain how this sliding scale concept works in different 

circumstances. Without endorsing that variant, we conclude a substantialnexus test should be applied to the Section 2702(b)(2)(E) claims. 

The district court considered the following undisputed facts in 

holding that no reasonable jury could find Loggerhead’s cruise business 

would have survived even without the Deepwater Horizon disaster. 

Loggerhead’s revenues, bookings, and reported profits had been in decline 

for years, with Loggerhead reporting net losses on its tax returnsfor the years 

2007–2009. In the years prior to 2010, the Loggerhead subsidiary operating 

the diving cruises had accrued millions of dollars of debt, against which it 

sometimes made timely payments but sometimes did not. By April 2010,

when the oil rig exploded, the Pilot had been drydocked for months for an 

extended refit, only limited work had been done, and reservations were not 

yet being taken for summer cruises on the vessel. Instead, Loggerhead asserts 

it was depending on revenue from the Rorqual to pay for the repairs to the 

Pilot; indeed, it “needed the Rorqual to be in service” to finish the refit of the 

Pilot. 

The Rorqual suffered two mechanical failures between April 10 and 

24, 2010, causing Loggerhead to cancel two weeks of cruises from May 8

through May 22. Loggerhead had already planned off-charter weeks of 

April 24 through May 8. Then on April 24, four days after the Deepwater 

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Horizon blowout, the Rorqual completed its scheduled itinerary and traveled 

to Port St. Joe, Florida.

Some additional facts are said to be disputed. First, BP contends that 

Loggerhead canceled — ratherthan rescheduled — the May 8 and 15 cruises. 

Certainly, Dixon stated in his February 2021 deposition that the May 8 and 

15 cruises were “cancel[ed].” Dixon’s May 2021 declaration, though, asserts that the May 8 and 15 cruises were “reschedule[d].” Loggerhead argues that canceling and rescheduling are not mutually exclusive; it asserts 

that the cruise operations for the weeks of May 8 and 15 were canceled and

that the passengers who booked for those two weeks were rescheduled to future cruise weeks. Loggerhead contends that by canceling and rescheduling 

the cruises to a later date, this suggests Loggerhead’s business would have 

survived but for the Deepwater Horizon explosion. The district court determined the cruises were “de facto cancelled,” relying on the fact Loggerhead 

“does not say what dates these cruises were rescheduled or provide any documentary proof that they were rescheduled.” As previously stated, though, 

a party’s affidavits and depositions may create fact issues even without corroborating evidence. See Guzman, 18 F.4th at 160. We conclude that cancelling and rescheduling may simply be different points in time for the same 

event. A genuine dispute of material fact exists here.

Second, relying on Dixon’s declaration, Loggerhead asserts the Rorqual was still fully operational prior to the Deepwater Horizon explosion, although it was experiencing a starboard generator problem for which it traveled 

to Port St. Joe. We are not certain BP actually disputes this, but regardless, 

Dixon’s declaration is sufficient factual support for his version of the story.

Third, Dixon stated that on May 2, 2010, on the way to Port St. Joe,

the Rorqual traveled through waters containing oil from the Deepwater Horizon explosion. That oil damaged the vessel’s main engines, generators, 

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reverse osmosis water makers, air-conditioning, grey, sanitary, and ballast 

water systems. Dixon described his assertion about the source of the oil as a 

“deduction,” one based on being unaware of any other wells that were leaking oil. He also argues that on summary judgment that is enough; the oil that

had coated some of the Rorqual had been preserved and could now be tested. 

At least part of that argument is incorrect. Once it is time for a court 

to make a ruling on summary judgment, its grant or denial turns on whether 

there is a genuine dispute of material fact based on evidence before the court

— not evidence that might be developed later. It is true that the evidence 

offered for summary judgment purposes need not yet be in a form admissible 

at trial, but the party offering the evidence needs to be able to demonstrate 

that it can be put into an admissible form by the time of a trial. See Lee v. 

Offshore Logistical & Transport, L.L.C., 859 F.3d 353, 355 (5th Cir. 2017). The 

question of sufficiency of the evidence to create a fact issue as to the source 

of the oil is not that Dixon’s assertions are in the wrong form, but that they 

are supported only by Dixon’s “deduction.”

What did BP offer? It presented contemporaneous estimates from 

that National Oceanic and Atmospheric Administration that on May 2 and 

May 3, the eastern advance of the oil slick was considerably west of where the 

Rorqual allegedly encountered oil in the water on those dates. Loggerhead 

does not direct us to any evidence it offered to the contrary, so we are left 

only with the deduction. We will say, that even though it was Loggerhead’s 

burden to produce some competent evidence that the oil it encountered was 

from the Macondo Well, BP did not attempt to offer another source as a possibility. Instead, BP disputes that the Rorqual encountered any oil. 

The district court did not decide whether there was any genuine dispute of fact, which certainly would be material, as to whether the Rorqual was 

damaged by oil from the Macondo Well. After identifying the dispute, the 

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court concluded that “no reasonable jury could conclude that the oil” from 

the Deepwater Horizon disaster “caused Loggerhead’s business to fail. The 

evidence all points in one direction,” that Loggerhead’s business was collapsing at that time independently of anything for which BP was responsible. 

Because we have the discretion to affirm on any basis supported by the 

record, Rutila v. Dept. of Transp., 12 F.4th 509, 511 n.3 (5th Cir. 2021), we 

consider as an alternative ground that Loggerhead offered no competent 

summary judgment evidence identifying the source of any oil that the Rorqual 

encountered. Again, Loggerhead offered Dixon’s deduction that it was the 

only possible source. Another way to put the argument is that based on the 

direct evidence that an oil slick for which BP was responsible was moving east 

in the Gulf, on the uncertainties that could be accepted as applying to governmental forecasts of how far this oil spread, and on the absence of evidence 

of any other well leaking oil that could explain the Rorqual’s encountering it, 

there was circumstantial evidence from which jurors could themselves deduce that the Macondo Well provided the oil that fouled the Rorqual. Jurors, 

of course, would first need to accept that the Rorqual encountered any oil.

BP is certainly correct that Loggerhead’s evidence is exceedingly 

weak that any oil in the water that damaged the Rorqual came from the Macondo Well. Nonetheless, the district court, whose familiarity with the Deepwater Horizon disaster and any factual questions that exist about its effects 

has been hard earned, decided not to determine whether there was a genuine 

dispute of material fact about damage to the Rorqual. We thus decline to exercise our discretion to consider affirming on the basis that no genuine factual 

dispute exists about the cause of damage to the Rorqual.

Fourth, Dixon’s declaration asserts that after the disaster, 

Loggerhead had trouble attracting and retaining future customers because of 

the ongoing Gulf of Mexico clean-up effort, water closures, and presence of 

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oil on the water which caused guests to cancel their reservations. BP insists 

these explanations are contrary to Loggerhead’s announcement of cessation 

of operations on May 17, in which it did not refer to the Deepwater Horizon 

disaster: “Due to the continually increasing cost of operations, decreased 

discretionary income of consumers, and overall economic difficulty, Nekton 

is unable to restart cruise operations at this time.”

Certainly, it is undisputed that Loggerhead had millions of dollars in 

debt and limited assets at the time of the assignment for the benefit of 

creditors. Loggerhead asserts, though, that its demise was not a certainty 

prior to the Deepwater Horizon disaster. The firm had positive EBITDA for 

the years prior to 2010 and then diminished bookings after Deepwater 

Horizon. Of course, Nekton suffered serious business setbacks before the 

Rorqual’s mechanical problems, had canceled all its May itineraries after 

sending the vessel to be repaired, shut down operations, and then completed 

an assignment for the benefit of creditors. Dixon’s declaration, though, 

states the Rorqual was “fully operational” and yielding revenue at the time 

of the Deepwater Horizon explosion. 

As we stated earlier,summary judgment is appropriate “where critical 

evidence is so weak or tenuous on an essential fact that it could not support a 

judgment in favor of the nonmovant.” McCarty, 864 F.3d at 358. The district 

court’s placing this evidence in that category is understandable. The 

company was in significant financial distress, its survival subject to serious 

question even without the Deepwater Horizon disaster. Nonetheless, 

Loggerhead had been able to continue operations for several years despite its 

fraught financial condition, and indeed despite reporting net losses on its 

taxes for the three years preceding the disastrous events of April 2010 in the 

Gulf. Whether it could have continued to survive, if not thrive, had the April 

events not occurred presents a fact question. 

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We conclude that a reasonable factfinder could find the requisite 

causal link between the Deepwater Horizon disaster and Loggerhead’s demise. 

Summary judgment should not have been granted.

II. 33 U.S.C. § 2702(b)(2)(B) claim for physical damages

Loggerhead also appeals the district court’s holding that BP was 

entitled to summary judgment regarding Loggerhead’s OPA Section 

2702(b)(2)(B) claim. Section 2702(b)(2)(B) permits recovery for 

“[d]amages for injury to, or economic losses resulting from destruction of, 

real or personal property.” 33 U.S.C. § 2702(b)(2)(B). Subsection (B) 

requires physical injury to the plaintiff’s property before a plaintiff can 

recover. See In re: Oil Spill by Oil Rig “Deepwater Horizon,” 902 F. Supp. 2d 

808, 817 (E.D. La. 2012).

The district court determined “[t]here is perhaps a genuine dispute 

of material fact over whether the RORQUAL was oiled,” yet still dismissed 

the claim. That is because the district court understood “Loggerhead’s 

entire argument concerning the purported oiling of the RORQUAL” to be 

“designed to establish a lost profits/impaired earning capacity claim.” The 

district court was correct that “[t]he most Loggerhead could hope to recover 

under § 2702(b)(2)(B) in this circumstance would be the cost of repairing the 

vessel’s oil-damaged components, if any” and that the list of damages 

provided in Dixon’s declaration and the economic expert’s opinion did not 

include repair costs for oil-damaged components. Seeing a mismatch 

between the remedy sought and the one available under the statute, the 

district court dismissed the Section 2702(b)(2)(B) claim.

Loggerhead argues this was error because the district court failed to 

consider Dixon’s declaration along with a previously submitted “expert 

evaluation” for the “repairs required for Nekton Rorqual after the May 2, 

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2010 oiling” which Loggerhead claims were just shy of $7 million. 

Loggerhead asserts that it offered “a detailed damage report” which listed 

“all the supporting documents” reviewed by the damage expert. Together, 

Loggerhead contends the district court overlooked these documents which 

Loggerhead believes create a genuine issue of material fact regarding its claim 

for Section 2702(b)(2)(B) damages.

BP responds that Loggerhead has failed to provide competent 

evidence of physical damage. Although Dixon’s declaration mentioned

“restart cost,” it did not identify a claim for costs to repair physical damage 

to the Rorqual. BP also argues that because Loggerhead only referred to the 

expert materials in its opposition to summary judgment regarding claims 

under Section 2702(b)(2)(E), reliance on those materials is forfeited. Finally, 

BP is correct that the only evidence for physical damages to the Rorqual in 

the report is a line item under “vessel repairs” titled “Nekton Rorqual” citing 

a sum of just over $6.8 million. 

We agree with BP that this is not enough to create a genuine dispute 

of material fact. Although the expert report catalogues the sources allegedly 

supporting its findings, the supporting documents are not included in what 

was submitted to the district court on summary judgment, and they were not 

referred to in relation to either the Section 2702(b)(2)(E) or Section 

2702(b)(2)(B) claims. Because Loggerhead was not able to offer more than 

Dixon’s allegations and an unsupported estimate — evidence “so weak or 

tenuous on an essential fact that it could not support a judgment in favor of 

the nonmovant” — the district court properly granted BP’s motion for 

summary judgment on the Section 2702(b)(2)(B) claim. See McCarty, 864 

F.3d at 358.

The district court’s judgment is AFFIRMED in part, REVERSED 

in part, and REMANDED.

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