PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARBARA PICKLE, Administrator for the

Estate of Roy L. Pickle, deceased, on

behalf of the Estate of Roy L. Pickle,

and on behalf of Barbara Pickle and

Joshua Pickle, beneficiaries of the

Estate of Roy L. Pickle; JOSHUA

PICKLE, individually and as beneficiary

of the Estate of Roy L. Pickle; VICTOR

LEE PICKLE, individually and as

beneficiary of the Estate of Roy L.

Pickle; ALEXANDER LLOYD PICKLE,

individually and as beneficiary of the

Estate of Roy L. Pickle; SUZANNE E.

WILLIAMS, Administrator for the Estate

of Jonathan Mason Williams, Jr.,

No. 98-2071

deceased, on behalf of the Estate of

Jonathan Mason Williams, Jr., and on

behalf of John M. Williams, III,

Ronald L. Williams, Wayne E.

Williams, and Suzanne E. Williams,

beneficiaries of the Estate of Jonathan

Mason Williams, Jr.; JOHN M.

WILLIAMS, III, Beneficiary of the Estate

of Jonathan M. Williams, Jr.; RONALD

L. WILLIAMS, Beneficiary of the Estate

of Jonathan M. Williams, Jr.; WAYNE

E. WILLIAMS, Beneficiary of the Estate

of Jonathan M. Williams, Jr.,

Plaintiffs-Appellees,

v.
CHAR LEE SEAFOOD, INCORPORATED, In

the matter of the complaint of Char

Lee Seafood, Incorporated as owner of

the F/V Char-Lee II, and Thomas

Leroy Bailey and Charlotte Bailey,

individually and as owners of the F/V

Char-Lee II, for exoneration from or

limitation of liability; THOMAS LEROY

BAILEY, Individually and as owner of

the F/V Char-Lee II; CHARLOTTE

BAILEY, Individually and as owner of

the F/V Char-Lee II,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CA-97-153-4-H, CA-97-154-4-H, CA-97-180-4-H)

Argued: March 4, 1999

Decided: April 19, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and

SMITH, United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Williams and Judge Smith joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Allen Jenkins, Peachtree City, Georgia, for Appellants. Robert John McAfee, MCCOTTER & MCAFEE, P.L.L.C.,

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New Bern, North Carolina, for Appellees. ON BRIEF: James M.

Walen, K. Lee McEniry, WALEN & MCENIRY, P.A., Fayetteville,

North Carolina, for Appellants. Charles Kennedy McCotter, Jr.,

MCCOTTER & MCAFEE, P.L.L.C., New Bern, North Carolina, for

Appellees.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

This consolidated admiralty case presents questions about the

proper court management of three constituent maritime actions, two

actions filed by the families of fishing boat crewmen who were lost

at sea and one limitation-of-liability action filed by the boat's owner

with respect to the other two actions. The district court consolidated

all three actions for trial, finding that to do so would "eliminate the

possibility of an inconsistent resolution on common issues and necessitate fewer judicial resources." The court also noted that through consolidation "a time savings would result . . . and witnesses would suffer

less inconvenience."

Even though we believe that the district court might be able,

through the entry of further procedural orders, to fulfill the essential

purposes of the limitation-of-liability action filed by the shipowner,

we are required to enforce the mechanism specified by the Shipowner's Limitations of Liability Act that all other actions against the

owner "with respect to the matter in question shall cease." 46 U.S.C.

app. § 185. Accordingly, we vacate the consolidation order and

remand this case with instructions that only the limitation-of-liability

action proceed until the limitation issues are determined.

I

Roy L. Pickle and Jonathan M. Williams, Jr., were two crewmen

on the F/V Char-Lee II, a fishing boat owned by Char Lee Seafood,

Inc. Jesse Lee Dempsey was hired by the owner to serve as captain

of the F/V Char-Lee II. While Pickle, Williams, and Dempsey were

fishing on the vessel approximately 30 miles southeast of Cape Look-

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out, North Carolina, in late March and early April 1997, gale-force

winds and rough seas erupted. On March 31 and April 1, Captain

Dempsey had his last radio contacts with other vessels in the fishing

fleet, discussing the deteriorating weather conditions. Allegedly, he

told other captains that "he was staying out to catch fish." While the

other boats in the fishing fleet returned to port on April 1, 1997, the

F/V Char-Lee II never returned. Following a massive Coast Guard

search, only unidentified debris was found. Several weeks later, the

boat's "electronic position indicator radio beacon" was found 300

miles east of Cape Henry, Virginia, attached to a three-by-six foot

piece of board with the words "F/V Char-Lee II" painted on it. The

F/V Char-Lee II was presumed to have sunk between April 1 and

April 4, 1997, resulting in the deaths of Pickle, Williams, and Captain

Dempsey.

The estates and families of Pickle and Williams filed separate

actions in admiralty in the district court against Char Lee Seafood and

its primary officers, directors, and shareholders (collectively "Char

Lee Seafood"), alleging negligence under the Jones Act, negligence

and unseaworthiness under general maritime law, negligence and

unseaworthiness under the Death on the High Seas Act, and wrongful

death under North Carolina law. In addition to alleging the owner's

failure to train the crew and to equip the F/V Char-Lee II properly,

the plaintiffs alleged negligence of the owners as follows:

 Upon information and belief, [Char Lee Seafood] pressured Captain Dempsey to keep the F/V Char-Lee II at sea

during severe storms in order to catch more fish and make

more money. As a result of this constant pressure, Captain

Dempsey habitually kept the F/V Char-Lee II and her crew

out at sea during severe storms. Captain Dempsey gained a

reputation for keeping the F/V Char-Lee II out at sea when

other fishing boats headed for port, and he became known

as "Hurricane Jesse."

Confronting these two actions, Char Lee Seafood filed a separate

action in the district court invoking the Shipowner's Limitation of

Liability Act, 46 U.S.C. app. § 183 et seq ., and alleging that its liability in any and all suits relating to the disappearance of the F/V CharLee II was limited to the value of the ship after the accident, amount-

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ing to the estimated $250 value of the radio beacon that had been

found. The district court issued an order in that action requiring public

notice of the action and enjoining the filing and prosecution of all

other actions relating to the disappearance of the F/V Char-Lee II

until determination of the limitation action. The court also required

Char Lee Seafood to post a bond in the amount of $1,000.

On April 1, 1998, six months after the district court entered its

injunction in the limitation-of-liability action, the district court sua

sponte entered an order consolidating for trial the two individual

actions brought by the estates and families of Pickle and Williams

with the limitation-of-liability action. Acting pursuant to Federal Rule

of Civil Procedure 42, the court stated that consolidation would eliminate the possibility of inconsistent resolutions and would reduce the

expenditure of judicial and litigant resources. The court concluded by

noting that it could foresee "no prejudice to any of the parties by consolidating these cases." Char Lee Seafood, which had never had the

opportunity to present its position on the propriety of consolidation,

filed a motion for reconsideration and requested that the limitation-ofliability action be severed from the other two actions. When the court

denied its motion by order dated June 15, 1998, Char Lee Seafood

filed this interlocutory appeal.

II

Pickle and Williams contend as a threshold matter that the district

court's June 15, 1998 order denying Char Lee Seafood's motion for

reconsideration of the district court's sua sponte consolidation order

and for severance of the limitation-of-liability action from the other

two actions is not an order from which an interlocutory appeal may

be taken. They also contend that Char Lee Seafood's notice of appeal

was in any event filed untimely because the time should be counted

from the district court's consolidation order and not from the order

denying the motion to reconsider and for severance. In response, Char

Lee Seafood relies on 28 U.S.C. § 1292(a)(1) (permitting interlocutory appeals from orders "granting, continuing, modifying, refusing or

dissolving injunctions, or refusing to dissolve or modify injunctions"),

and 28 U.S.C. § 1292(a)(3) (permitting interlocutory appeals from

decrees "determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed").

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The district court initially entered an injunction in the limitation-ofliability action, staying any court proceedings relating to the disappearance of the F/V Char-Lee II, other than the limitation-of-liability

proceeding. But thereafter, it implicitly modified that injunction when

it entered an order, sua sponte, consolidating for trial the actions filed

by Pickle and Williams with the limitation-of-liability action, thus

permitting all three actions to continue to trial.

While Char Lee Seafood did not appeal the consolidation order

dated April 1, 1998, it did file a motion for reconsideration and for

severance, explaining why the district court should not have sua

sponte entered the consolidation order. Through its motion for reconsideration and for severance, Char Lee Seafood was seeking to return

to the status under the original injunction. Thus, when the court

denied Char Lee Seafood's motion for reconsideration and for severance on June 15, 1998, it was denying a request for a modification of

the court's consolidation order which in turn modified its original

injunction. It is, of course, well established that an order denying a

request to modify an injunction is subject to interlocutory appeal

under 28 U.S.C. § 1292(a)(1). See In re Bowoon Sangsa Co., 720

F.2d 595, 597 (9th Cir. 1983) (holding that the"denial, modification,

or dissolution of an injunction in a limitation proceeding is appealable

as a matter of right under 29 U.S.C. § 1292(a)(1)"); see also Gorman

v. Cerasia, 2 F.3d 519, 523 (3d Cir. 1993) (same); In re Mucho K,

Inc., 578 F.2d 1156, 1157 (5th Cir. 1978) (same).1 Accordingly, we

conclude that we have jurisdiction to consider this appeal.

III

Char Lee Seafood challenges the district court's consolidation

order, arguing that it compromises the exclusivity of its limitation-ofliability action provided for by the Shipowner's Limitation of Liability Act. It maintains that the effect of the court's order is to deny it

_________________________________________________________________

1 While Char Lee Seafood also relies on 28 U.S.C. § 1292(a)(3) to justify its interlocutory appeal, we note that that section does not apply to

procedural determinations such as the one under review in this case. See

Miskiewicz v. Goodman, 341 F.2d 828, 830-31 (4th Cir. 1965); see also

Evergreen Int'l Corp. v. Standard Warehouse, 33 F.3d 420, 424-25 (4th

Cir. 1994).

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a "concursus of all claims" in the one action and the right to have its

Jones Act liability, a question on which a jury trial is ordinarily

afforded, tried to the court in the limitation-of-liability case. Both of

these consequences would be avoided, Char Lee Seafood argues, if

the district court honored the Limitation Act's statutory mandate that

all other actions "cease." 46 U.S.C. app.§ 185.

The Shipowner's Limitation of Liability Act, enacted in 1851 to

assist shipowners by placing them in parity with European (and particularly English) shipowners who had long enjoyed the benefits of

limiting their liability for marine disasters, provides that a shipowner's liability for a maritime loss or mishap is limited to the value of

the ship and her pending freight if the mishap occurred "without the

privity or knowledge" of the owner. 46 U.S.C. app. § 183(a). Congress designed the Limitation Act "to induce the heavy financial commitments the shipping industry requires by mitigating the threat of a

multitude of suits and the hazards of vast, unlimited liability as the

result of a maritime disaster." Maryland Casualty Co. v. Cushing, 347

U.S. 409, 414 (1954).

This American limitation statute is particularly beneficial to shipowners. Unlike under the English statute on which it was modeled,

under the American statute, the fund against which the claimants must

make their claim is equal to the value of the ship after the voyage on

which the incident occurred. See Norwich Co. v. Wright, 80 U.S. 104,

120-22 (1871). "Thus if the ship is lost, the value is zero; if a few

strippings from the wreck and a life boat or two are saved, those may

be solemnly handed over to a trustee or their value ascertained and

a bond posted." Grant Gilmore & Charles L. Black, Jr., The Law of

Admiralty § 10-29, at 907 (2d ed. 1975).

Under the procedures established both by statute and rule, when the

shipowner files a complaint in admiralty to limit its liability for

claims arising in connection with its ship and deposits with the court

an amount equal to its "interest in the vessel and freight," all claims,

except the limitation action, shall "cease," and claimants are required

to file their claims in the limitation action. See 46 U.S.C. app. § 185;

Fed. R. Civ. P. Supp. R. F(1)-(3), (5). The proceeding is conducted

before a court in admiralty without a jury. Through this limitation

mechanism, all claims are marshaled and brought into one action --

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establishing a "concursus" of all claims, Cushing, 347 U.S. at 415 --

and if it is determined that limitation applies, the one action allocates

to claimants pro rata the limited funds equaling the value of the ship

and its freight pending. See 46 U.S.C. app.§ 184; Fed. R. Civ. P.

Supp. R. F(8). As the Court in Cushing noted, "the concursus is not

solely for the benefit of the shipowner. The elaborate notice provisions of the Admiralty Rules . . . ensure that all claimants, not just a

favored few, will come in on an equal footing to obtain a pro rata

share of their damages." 347 U.S. at 417.

If the shipowner fails to establish its right under the Limitation Act

and limitation is therefore denied, the claimants are released to pursue

their original claims in full. They may do this through a continuation

of the limitation proceeding, or they may return to their original

forums and prosecute their original claims which had been enjoined

by the order entered in the limitation action. See Wheeler v. Marine

Navigation Sulphur Carriers, Inc., 764 F.2d 1008, 1011 (4th Cir.

1985); see also Fecht v. Makowski, 406 F.2d 721, 722-23 (5th Cir.

1969); Moore-McCormack Lines, Inc. v. Richardson , 295 F.2d 583,

595-96 (2d Cir. 1961); Pershing Auto Rentals, Inc. v. Gaffney, 279

F.2d 546, 552 (5th Cir. 1960); In re Wood, 230 F.2d 197, 199 (2d Cir.

1956); The Silver Palm, 94 F.2d 776, 780 (9th Cir. 1937).2

_________________________________________________________________

2 The Shipowner's Limitation of Liability Act provides that all claims

and proceedings, other than the limitation action,"shall cease," 46 U.S.C.

app. § 185, possibly suggesting out of context that those claims and proceedings shall come to a permanent end. But in the context of the contingency as to the success, or not, of the limitation action, the word "cease"

must be given the meaning of "to forebear" or"to suspend" in order to

preserve the rights of claimants to their original actions, including the

rights of forum-selection and jury trial, in the event that the limitation

action is found to be without merit. See Complete and Universal Dictionary of the English Language 167 (1851) (defining "to cease" as "to forebear or discontinue an action"); see also 2C The Oxford English

Dictionary 207 (1978) (defining "to cease" as "to come to the end or to

an intermission"); Black's Law Dictionary 223 (6th ed. 1990) (stating

that alternative definitions of "cease" include "to bring to an end" and "to

suspend"). This conclusion is mandated by our decision in Wheeler, 764

F.2d at 1011, and is consistent with the decisions from the other circuits

cited in the text.

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IV

The estates and families of Pickle and Williams have alleged Jones

Act violations which would entitle them to a trial by jury. See 46

U.S.C. app. § 688(a). Because these plaintiffs have demanded a jury

trial, the parties to this appeal have expressed differing views about

whether and how the right to jury trial is impacted by the district

court's consolidation order.

Char Lee Seafood argues that because all claims must be marshaled

into the limitation-of-liability action which is tried to the court, the

claimants have no rights to a jury trial on those claims. While the

claimants acknowledge that the limitation-of-liability action must be

determined first without a jury, they argue for a joint trial before the

court and a jury, arguing that "there is no prejudice to the petitioners

to proceed with parallel, joined suits in admiralty and at law." They

then propose a model under which the claimants would begin the consolidated trial by presenting their evidence before both the court and

a jury on their claim against the owner for negligence and unseaworthiness. The shipowner would follow with its evidence with

respect to a lack of fault, privity, and knowledge. The court would

then determine the limitation-of-liability issues. If the court did not

limit liability, the claimants would present their evidence of damages

to the jury. They argue that this model would preserve Char Lee Seafood's Limitation Act rights as well as their jury trial right.

We have previously noted that when general maritime claims for

negligence and products liability are alleged in a single complaint

together with common law claims for negligence and products liability, all of which arise out of the same incident, the entire case is tried

to the jury. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 153-

54 (4th Cir. 1995) (citing Fitzgerald v. United States Lines Co., 374

U.S. 16, 21 (1963) (combining for jury trial a maintenance and cure

claim with a Jones Act claim)). But the very language of the Shipowner's Limitation of Liability Act precludes the simultaneous trial

of a limitation action and a Jones Act action, by providing explicitly

that actions other than the limitation-of-liability action must "cease."

See 46 U.S.C. app. § 185. Moreover, the claimants must, if they wish

to present their claims, reassert them in the limitation-of-liability

action apart from their original actions. See Fed. R. Civ. P. Supp. R.

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F(5). Thus, insofar as claimants proceed in a limitation-of-liability

action, they are not entitled to a trial by jury, even if the basis of their

claim for fault is made under the Jones Act. But if the limitation-ofliability is denied, then the claimants may elect to proceed with their

original actions before any jury authorized and demanded in those

actions. See Wheeler, 764 F.2d at 1011; In re Wood, 230 F.2d at 199.

While the district court's consolidation order does not preclude the

court from later entering procedural orders which would arrange the

order of proof in a way that might be sufficient to protect the parties'

interests, the process could become unduly complex. Moreover, while

the proofs in the various actions might overlap, it might also turn out

that in a limitation action, fault would be conceded in view of the

small amount ($1,000) deposited in the district court, thereby obviating the complex process. Even though we can foresee that an experienced judge, such as the district judge in this case, could steer the

parties through the process in the circumstances where he has all the

cases before him with satisfaction to all, prudence dictates that we

heed the Supreme Court's statement in The San Pedro:

[A]fter [limitation] proceedings have been commenced in

the proper district court in pursuance thereof, the prosecution pari passu of distinct suits in different courts, or even

in the same court by separate claimants, against the shipowners, is, and must necessarily be, utterly repugnant to

such proceedings, and subversive of their object and purpose.

223 U.S. 365, 373 (1912) (citation and quotation marks omitted)

(emphasis added).

Accordingly, we conclude that during the pendency of the

limitation-of-liability proceeding, the claimants' original actions must

remain stayed. If, however,

the district court denie[s] limitation of liability, the reason

for concursus disappear[s], since the district court no longer

need[s] to ensure the fair distribution among claimants of

the limitation fund. With the reason for concursus and

restraint of other proceedings removed, no reason[would]

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remain[ ] to deprive [the claimants] of their choice of forum

or of their statutory right to jury trials.

Wheeler, 764 F.2d at 1011. This process is the same as that articulated

some 30 years earlier by the Second Circuit:

[T]he issue of the owner's privity or knowledge must be litigated in the admiralty court, which has exclusive jurisdiction over that issue. . . . In the interim, the owner is entitled

to a restraining order against prosecution of any other suits

on claims subject to limitation. If, however, the owner shall

be found not to be entitled to a limitation, his liability will

be unlimited and there will be no need for a concourse to

marshal the various claims. In that event the claims will no

longer be "subject to limitation" within the meaning of [Supplemental Rule F(3) to the Federal Rules of Civil Procedure]

and, therefore, any order denying the owner's right to limitation should contain provisions for lifting the restraining

order. At that time the claimants may elect to pursue their

claims to judgment in the admiralty court or pursue their

rights under the Jones Act.

In re Wood, 230 F.2d at 199 (footnotes omitted).

V

For the foregoing reasons, we remand this case with instructions to

the district court to sever the limitation-of-liability action from the

other actions and to determine it first while staying the other actions.

In the event that the limitation of liability is denied, the court should

lift the stay and provide the claimants a choice to pursue their claims

in the limitation-of-liability action or to revive their original actions

wherein they have demanded trials by jury.

IT IS SO ORDERED

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