*

Honorable Anthony A. Alaimo, Senior U.S. District Judge for

the Southern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2214.

BANANA SERVICES, INC., Plaintiff-Counter-Defendant-AppellantCross-Appellee,

v.

M/V TASMAN STAR, her engines, tackle, furnishings, etc., in rem,

Defendant-Cross-Defendant-Appellee-Cross-Appellant,

Star Reefers, Ltd., a foreign business entity, in personam,

Defendant-Cross-Claimant-Appellee,

Navegantes Del Oriente, S.A., a foreign business entity, in

personam, Defendant-Claimant-Cross-Defendant-Counter-ClaimantAppellee-Cross-Appellant.

Nov. 3, 1995.

Appeals from the United States District Court for the Middle

District of Florida. (No. 91-772-CIV-T-21A), Ralph W. Nimmons, Jr.,

Judge.

Before BLACK, Circuit Judge, HILL, Senior Circuit Judge, and

ALAIMO*

, Senior District Judge.

BLACK, Circuit Judge:

Plaintiff-Appellant Banana Services, Inc. (Banana Services)

appeals the district court's entry of judgment in favor of

Defendants-Appellees Star Reefers, Ltd. (Star Reefers), Navegantes

Del Oriente, S.A. (Navegantes) and the M/V TASMAN STAR on

Appellant's claim for damages due to the spoilation of a cargo of

bananas. This appeal requires us to decide whether a carrier,

under the Carriage of Goods by Sea Act, 46 U.S.C.App. §§ 1300-1315

(COGSA), must first demonstrate it acted with due diligence to

provide a seaworthy vessel for transport before the carrier may
 1

Banana Services also argues the district court erred: (1)

in concluding Banana Services was not a third-party beneficiary

of the charter contract between Navegantes and Star Reefers; (2)

in not applying the rule of The Pennsylvania, 86 U.S. (19 Wall.)

125, 22 L.Ed. 148 (1873), to find certain violations of

international safety conventions were a contributing cause of the

cargo loss; (3) in not finding the carriers' failure to comply

with Banana Services' carrying instructions was a contributing

factor in the cargo's spoilation; (4) in not granting Banana

Services a rebuttable presumption the refrigeration control

panels were unseaworthy; and (5) in requiring Plaintiff to prove

the "exact cause" of the fire in order to overcome the

Defendants' fire defense. We affirm the district court's

resolution of these issues. See 11th Cir. R. 36-1.

Navegantes cross-appeals the denial of its counterclaim

against Banana Services for the costs Navegantes incurred in

disposing of the rotten bananas and plantains. We affirm

the district court's denial of this claim. 

invoke the "fire defense" of COGSA and the Fire Statute, 46

U.S.C.App. § 182.1

 We conclude that a carrier does not bear this

burden, and therefore affirm the district court's judgment.

I. BACKGROUND

Navegantes is the owner and operator of the M/V TASMAN STAR.

Prior to the events at issue, Navegantes time-chartered the TASMAN

STAR to Star Reefers. In September 1990, Star Reefers contracted

with Banana Services to transport a cargo of fruit from South

America to Florida aboard the TASMAN STAR. The contract between

Banana Services and Star Reefers stated Star Reefers accepted

"liability for any cargo carried in accordance with the U.S.

Carriage of Goods by Sea Act."

In early June 1991, Banana Services delivered boxes of bananas

and plantains to the vessel at Puerto Bolivar, Ecuador, and Turbo,

Colombia. At both locations, the cargo was accepted, and the crew

of the TASMAN STAR issued clean bills of lading. On June 9, 1991,

the vessel departed from Turbo en route to Port Manatee, Florida.
That same day, approximately 21/2 hours into the voyage, a fire

broke out in the engine room of the vessel. Although the crew

extinguished the fire approximately an hour after it started, the

fire damaged the ship's refrigeration control panels. As a result,

the vessel was unable to properly refrigerate its cargo of bananas

and plantains. The ship's chief engineer determined he could not

temporarily repair the refrigeration panels, so the ship's officers

decided to return to Turbo, Colombia.

The TASMAN STAR arrived back in Turbo on June 10, and

representatives of Star Reefers and Navegantes met to discuss what

options were available to protect the perishable cargo. Banana

Services participated in these discussions by telephone. Based

upon the advice of engineers and technical managers, the parties

determined they could not repair the refrigeration system in time

given Turbo's limited repair facilities and the need for particular

replacement parts. The parties considered transferring the cargo

to another vessel chartered by Star Reefers, but this option

involved considerable delays and risked damaging the cargo.

Moreover, Banana Services indicated that it would not make a final

decision regarding transshipment. Navegantes and Star Reefers

eventually decided to proceed to Port Manatee with the cargo aboard

the TASMAN STAR. The ship departed Turbo approximately 22 hours

after returning to port.

The ship arrived at Port Manatee on June 13, 1991. Surveyors

for each party inspected the cargo, and they unanimously agreed the

fruit was unmarketable because the pulp temperature of the fruit

exceeded industry standards. Banana Services refused to take
delivery of the fruit, and Navegantes bore the costs of disposing

of the cargo.

Banana Services brought suit against Navegantes and Star

Reefers for more than $1.1 million in damages resulting from the

loss of the cargo. After a lengthy bench trial, the district court

entered judgment against Banana Services. Banana Services appeals,

contending the district court misapplied the governing law of

COGSA.

II. DISCUSSION

 Under COGSA, a shipper seeking recovery from a carrier for

damages to its cargo bears the initial burden of proving a prima

facie case. Terman Foods, Inc. v. Omega Lines, 707 F.2d 1225, 1227

(11th Cir.1983); Blasser Bros. v. Northern Pan-American Line, 628

F.2d 376, 381 (5th Cir.1980). The shipper establishes a prima

facie case by demonstrating the cargo was loaded in an undamaged

condition, and discharged in a damaged condition. Banana Services,

Inc. v. M/V FLEETWAVE, 911 F.2d 519, 521 (11th Cir.1990); Blasser

Bros., 628 F.2d at 381. A clean bill of lading creates a

rebuttable presumption the goods were delivered to the carrier in

good condition and thus satisfies this element of the plaintiff's

prima facie case. Terman Foods, 707 F.2d at 1227; Emmco Ins. Co.

v. Wallenius Caribbean Line, S.A., 492 F.2d 508, 513 (5th

Cir.1974). The parties do not contest Banana Services established

its prima facie case.

 Once a shipper establishes a prima facie case, the burden of

proof shifts to the carrier to demonstrate either (1) it exercised

due diligence to prevent the cargo damage or (2) the damage was
caused by an "excepted cause" listed in 46 U.S.C.App. § 1304(2).

Banana Services, 911 F.2d at 521; Blasser Bros., 628 F.2d at 381.

This section provides a carrier is not responsible for cargo damage

resulting from a fire unless the damage is "caused by the actual

fault or privity of the carrier." 46 U.S.C.App. § 1304(2)(b). In

addition to the excepted cause for fire, COGSA also preserves a

carrier's defense under the Fire Statute, 46 U.S.C. § 182. See 46

U.S.C. § 1308. The Fire Statute exonerates carriers from liability

for fire damage to cargo unless the fire was caused by the "design

or neglect" of the owner. 46 U.S.C. § 182. Though the "actual

fault or privity" language of section 1304(2)(b) differs from the

"design or neglect" language of the Fire Statute, the phrases are

functionally equivalent. See In re Complaint of Damodar Bulk

Carriers, 903 F.2d 675, 686 n. 14 (9th Cir.1990); In re Complaint

of Ta Chi Navigation (Panama) Corp., S.A., 677 F.2d 225, 228 (2d

Cir.1982); Asbestos Corp. v. Compagnie de Navigation Fraissinet et

Cyprien Fabre, 480 F.2d 669, 672 (2d Cir.1973).

 The district court correctly concluded that the cargo was

destroyed by fire because the fire in the TASMAN STAR's

refrigeration panels prevented the ship from refrigerating the

fruit. As a result, the cargo spoiled during the trip from Turbo

to Port Manatee. A fire need not directly ignite the cargo to be

the cause of damage under COGSA. See Westinghouse Electric Corp.

v. M/V LESLIE LYKES, 734 F.2d 199, 206 (5th Cir.) (reasoning the

loss resulted from fire when the damage was caused by salt water

used to extinguish the fire), cert. denied, 469 U.S. 1077, 105

S.Ct. 577, 83 L.Ed.2d 516 (1984).
 2

Subsequently, the Ninth Circuit limited Sunkist 's

application in a manner that brings that circuit closer to the

positions of the Second and Fifth circuits. See Damodar Bulk

Carriers, 903 F.2d at 686-87. 

 3In a case binding upon us, see Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the former Fifth

Circuit reasoned that under the Fire Statute:

It is well settled that a shipowner is not liable for

damages resulting from fire unless libellant [the

 Star Reefers and Navegantes invoke both the Fire Statute and

section 1304(2)(b) in defense of Banana Services' claim. Banana

Services argues they cannot invoke this defense without first

demonstrating they acted with due diligence in providing a

seaworthy vessel. The district court disagreed with Banana

Services' position and concluded that COGSA does not limit the fire

defense in this fashion.

There is conflicting authority as to whether carriers must

demonstrate due diligence as a prerequisite to invoking the fire

defense of COGSA or the Fire Statute. The Ninth Circuit has

reasoned carriers must overcome this initial burden before they may

raise the defense and shift the burden of proof back to the

shipper. Sunkist Growers, Inc. v. Adelaide Shipping Lines, 603

F.2d 1327, 1335-36 (9th Cir.1979), cert. denied, 444 U.S. 1012, 100

S.Ct. 659, 62 L.Ed.2d 640 (1980).2

 The Second and Fifth Circuits,

disagreeing with the Ninth Circuit's reasoning in Sunkist, have

concluded COGSA does not condition a carrier's right to invoke the

fire defense on his proving due diligence. Westinghouse, 734 F.2d

at 206; Ta Chi Navigation, 677 F.2d at 229.

The holding in Westinghouse is consistent with this Court's

precedent.3

 We find the reasoning of the Second and Fifth circuits
shipper] proves that the cause of the fire was due to

the "design or neglect" of the owner, the burden being

upon libellant [the shipper].

Fidelity-Phenix Fire Ins. Co. v. Flota Mercante Del Estado,

205 F.2d 886, 887 (5th Cir.), cert. denied, 346 U.S. 915, 74

S.Ct. 275, 98 L.Ed. 411 (1953). Banana Services' position

is simply incompatible with Fidelity-Phenix, and the

district court properly rejected it in favor of the approach

outlined by the Fifth and Second circuits. 

to be persuasive, and hold that COGSA does not require carriers to

demonstrate due diligence as a condition precedent to invoking the

fire defense of § 1304(2)(b) and the Fire Statute.

III. CONCLUSION

To invoke the fire defense, Star Reefers and Navegantes only

had to demonstrate the cargo was destroyed by fire. Westinghouse,

734 F.2d at 206; Ta Chi Navigation, 677 F.2d at 229. The district

court correctly refused to impose upon Star Reefers and Navegantes

the burden of demonstrating they acted with due diligence as a

condition precedent to invoking the fire defense of COGSA and the

Fire Statute.

AFFIRMED.