United States Court of Appeals

Fifth Circuit

FILED

January 19, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-30192

Summary Calendar

 

AMBRACO, INC.,

Plaintiff-Counter Defendant-Appellant,

versus

PROJECT EUROPA MV, Etc.; ET AL.,

Defendants,

MAMMOET GOEDKOOP BV, in personam; 

MAMMOET SHIPPING BV, in personam,

Defendants-Counter Claimants-Appellees.

--------------------

TWINE MASTER USA INC.,

Plaintiff-Appellant,

versus

PROJECT EUROPA MV, Etc.; ET AL.,

Defendants,

MAMMOET GOEDKOOP BV; MAMMOET SHIPPING BV, in personam,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 01-CV-227

USDC No. 01-CV-3189

--------------------
No. 04-30192

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* 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this opinion should not be published and is not precedent except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.

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

This is the appeal of a denial of a maritime claim for

damage to a cargo of sisal twine made by the cargo owners,

Ambraco, Inc. (Ambraco), and Twine Master USA, Inc. (Twine

Maser), against the vessel, the M/V PROJECT EUROPA, the vessel

owner, Mammoet Goedkoop B.V., and the carrier, Mammoet Shipping

B.V. 

In denying relief to the cargo owners, the district court

found that the vessel owner and carrier had shown that the cargo

had been damaged as the result of fire and were entitled to

the assert the fire defense, as set out in the Fire Statute,

46 U.S.C. § 182, and extended to carriers by the Carriage of

Goods by Sea Act (COGSA), 46 U.S.C. § 1304(2)(b). The fire

defense shifts the burden to the shipper to identify “the cause

of the fire, and also to establish that the cause was due to the

‘actual fault or privity’ of the [c]arrier.” Westinghouse Elec.

Corp. v. M/V LESLIE LYKES, 734 F.2d 199, 206 (5th Cir. 1984). 

As a preliminary matter, Ambraco invites the court to

reconsider the holding of M/V LESLIE LYKES, regarding the burden

of proof under the Fire Statute and COGSA. It is the firm rule

of this circuit that one panel may not overrule the decisions of

another without en banc consideration or an intervening Supreme
No. 04-30192

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Court opinion. Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.

1997). Accordingly, we decline the invitation to revisit the

holding of M/V LESLIE LYKES. 

Ambraco argues that the district court erred in finding that

it had failed to meet the burden of proving that the vessel owner

and carrier caused the fire or were at fault in failing to

extinguish the fire. In admiralty cases tried before the bench,

we review the district court’s conclusions of law de novo and

findings of fact for clear error. Steel Coils, Inc. v. M/V LAKE

MARION, 331 F.3d 422, 426 (5th Cir. 2003). Questions of

proximate cause and negligence, in admiralty cases, are questions

of fact subject to review under the clearly erroneous standard. 

Consolidated Grain & Barge Co. v. Marcona Conveyor Corp., 716

F.2d 1077, 1082 (5th Cir. 1983).

As noted above, the fire defense shifts the burden of proof

to the shipper to identify “the cause of the fire, and also to

establish that the cause was due to the ‘actual fault or privity’

of the [c]arrier.” M/V LESLIE LYKES, 734 F.2d at 206. In

finding that Ambraco and Twine Master had failed to establish any

specific cause of the fire by a preponderance of the evidence,

the district court noted that the evidence presented by both the

plaintiffs and the defendants was inconclusive. Ambraco has

cited to no evidence produced at trial to show that the district

court was clearly erroneous in finding that the preponderance of
No. 04-30192

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the evidence did not show that the design or neglect of the owner

or carrier caused the fire. 

Ambraco argues that the M/V PROJECT EUROPA, as a roll

on/roll off vessel was inherently inadequate to carry a cargo of

pallets of sisal twine. Specifically, Ambraco asserts that the

stowage methods and fire systems of the M/V PROJECT EUROPA were

inappropriate to carry the cargo of sisal and that the defendants

were negligent by using the vessel to transport the cargo. The

district court found that Ambraco and Twine Master produced no

evidence that the fire detection and extinguishing systems on the

vessel were inadequate. The district court found that there was

no evidence that the vessel was inappropriate to carry the sisal

cargo. Although Ambraco argues that the M/V PROJECT EUROPA was

not in compliance with the Safety of Life at Sea (SOLAS)

regulations, Ambraco cites to no evidence or testimony at trial

supporting the opinion regarding the application of the SOLAS

regulations argued on appeal. Ambraco has not shown that the

district court was clearly erroneous in finding no negligence by

the owner or carrier in equipping the vessel or in accepting the

sisal as cargo.

 The judgment of the district court is AFFIRMED.