Ambraco, Inc. v. Project Europa MV , 119 F. App'x 676 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 19, 2005
Charles R. Fulbruge III
Clerk
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.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-227
USDC No. 01-CV-3189
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No. 04-30192
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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
*
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this opinion should not be published and is not precedent except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.
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.