UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-2142

CATERPILLAR FINANCIAL SERVICES CORPORATION,

Plaintiff - Appellee,

ATLANTIC CAPES FISHERIES, INCORPORATED,

Intervenor/Plaintiff - Appellee,

v.

THE F/V SITE CLEARANCE I, her engines, tackle, appurtenances,

equipment, cables, apparel, fishing permits, furniture, and

necessaries appertaining thereto, in rem (Official Number

1052907); SITE CLEARANCE I, L.L.C.; MASSIE TOWING,

INCORPORATED; ROBERT J. THOMASSIE, JR.; MICHAEL P. DANIELS,

Defendants,

and

F/V CAPTAIN DYLAN, INCORPORATED,

Intervenor/Defendant - Appellant.

No. 06-2222

ATLANTIC CAPES FISHERIES, INCORPORATED,

Plaintiff - Appellee,

v.
2

F/V CAPTAIN DYLAN, INCORPORATED,

Defendant - Appellant,

and

CARLOS M. GUTIERREZ, Secretary of Commerce; PATRICIA A.

KURKUL, Regional Administrator for the National Marine

Fisheries Service,

Defendants.

Appeals from the United States District Court for the Eastern

District of North Carolina, at Raleigh and Elizabeth City.

Terrence W. Boyle, District Judge. (2:05-cv-00010-BO; 2:06-cv00024-BO)

Argued: November 2, 2007 Decided: April 25, 2008

Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr.,

Chief United States District Judge for the Middle District of North

Carolina, sitting by designation.

No. 06-2142 affirmed; No. 06-2222 dismissed by unpublished per

curiam opinion.

Thomas J. Muzyka, CLINTON & MUZYKA, P.C., Boston, Massachusetts,

for Appellant. Stephen M. Ouellette, OUELLETTE & SMITH,

Gloucester, Massachusetts, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

These appeals arise from proceedings in the Eastern District

of North Carolina, in which F/V Capt. Dylan, Incorporated,

unsuccessfully sought ownership of certain fishing permits assigned

to a vessel owned by Atlantic Capes Fisheries, Incorporated, but

used by The F/V Site Clearance I. Capt. Dylan’s claim to the

fishing permits stems from its September 2005 purchase of Site

Clearance I from Caterpillar Financial Services Corporation, which,

in turn, had obtained Site Clearance I by virtue of a July 2005

foreclosure sale ordered by the district court. During this same

time period, the fishing permits were first transferred from Site

Clearance I back to the Atlantic Capes vessel, and then restored to

Site Clearance I. To resolve their ensuing dispute over ownership

of the fishing permits, Atlantic Capes and Capt. Dylan intervened

in the original foreclosure action, and Atlantic Capes also brought

its own lawsuit against Capt. Dylan.

Capt. Dylan appeals from two decisions of the district court

in favor of Atlantic Capes. In No. 06-2142, Capt. Dylan contests

the court’s September 28, 2006 order in the original foreclosure

action, by which the court clarified that its prior foreclosurerelated orders excluded the disputed fishing permits from the sale

of Site Clearance I to Caterpillar, and thus mandated that the

permits be returned from Site Clearance I to the Atlantic Capes

vessel. See Caterpillar Fin. Servs. Corp. v. The F/V Site
1

The September 2006 Clarification Order is found at J.A. 263-

72. (Our citations to “J.A. ” refer to the contents of the Joint

Appendix filed by the parties in this appeal.)

2

The October 2006 Atlantic Capes Order is found at J.A. 295-

97.

4

Clearance I, No. 2:05-cv-00010 (E.D.N.C. Sept. 28, 2006) (the

“September 2006 Clarification Order”).1 In No. 06-2222, Capt.

Dylan challenges the court’s October 20, 2006 order in Atlantic

Capes’s lawsuit, recognizing that the central issue in that matter

— the ownership of the fishing permits — was resolved by the

September 2006 Clarification Order in the original foreclosure

action. See Atl. Capes Fisheries, Inc. v. Gutierrez, No. 2:06-cv00024 (E.D.N.C. Oct. 20, 2006) (the “October 2006 Atlantic Capes

Order”).2 As explained below, we affirm in No. 06-2142 and dismiss

No. 06-2222.

I.

A.

The original foreclosure action, referenced in the Eastern

District of North Carolina as No. 2:05-cv-00010, was initiated by

Caterpillar under the Maritime Commercial Instruments and Liens Act

(specifically, 46 U.S.C. § 31325), to foreclose on The F/V Site

Clearance I. Caterpillar had made a $1.6 million loan in February

2004 to the vessel’s owner, Site Clearance I, L.L.C., with three

guarantors (Massie Towing, Incorporated; Robert J. Thomassie, Jr.;
5

and Michael P. Daniels) executing three separate guarantees. As

security for its promissory note, Caterpillar was granted a

“Preferred Ship Mortgage,” which gave Caterpillar a first-priority

security interest in Site Clearance I. At that time, the only

fishing permits appurtenant to Site Clearance I were open access

fishing permits (the “Open Access Permits”).

Five months later, in July 2004, Site Clearance I, L.L.C.,

entered into a “Seafood Marketing Agreement” with Atlantic Capes,

whereby Atlantic Capes allowed The F/V Site Clearance I to make use

of certain limited access fishing permits (the “Limited Access

Permits”) that were then assigned to Atlantic Capes’s fishing

vessel The F/V Maelstrom. Caterpillar executed a written

“Acknowledgment” by which it consented to the Seafood Marketing

Agreement and agreed that the Limited Access Permits were not

considered appurtenant to Site Clearance I, were not part of

Caterpillar’s security interest in the vessel, and would not be

sought in any potential foreclosure action. Site Clearance I,

L.L.C., subsequently defaulted on its repayment obligations to

Caterpillar.

On February 22, 2005, Caterpillar initiated the foreclosure

action by filing a Verified Complaint, naming as a defendant the

“Vessel SITE CLEARANCE I, . . . her engines, anchors, cables,

rigging, tackle, apparel, furniture, equipment, its fishing

permits, including all renewals, wherever found, and all other
3The other defendants named in the Verified Complaint were

Site Clearance I, L.L.C., and the three loan guarantors (Massie

Towing, Thomassie, and Daniels).

4

The February 2005 Order to Arrest is found at J.A. 63-64.

6

appurtenances and necessaries therewith appertaining.” J.A. 11

(emphasis added).3 The Complaint requested “[t]hat Process in rem

and a Warrant of Arrest be issued . . . against the Defendant

Vessel SITE CLEARANCE I, her engines, anchors, cables, rigging,

tackle, apparel, fishing permits, furniture, and all the other

necessaries therewith appertaining.” Id. at 20 (emphasis added).

Of significance, a copy of the Open Access Permits — but not the

Limited Access Permits — was attached to the Complaint. See id.

at 44.

The following day, February 23, 2005, the district court

entered an order authorizing the Clerk of Court “to issue a warrant

for the arrest of the F/V SITE CLEARANCE I[,] her engines, boats,

tackle, apparel, furniture, equipment, and appurtenances, etc.”

Caterpillar Fin. Servs. Corp. v. The F/V Site Clearance I, No.

2:05-cv-00010 (E.D.N.C. Feb. 23, 2005) (the “February 2005 Order to

Arrest”).4 Pursuant to the warrant, Site Clearance I was seized by

the United States Marshal in March 2005. Thereafter, Atlantic

Capes applied to the National Marine Fisheries Service (the “NMFS”)

to have the Limited Access Permits transferred back to The F/V
5

The June 2005 Order to Sell is found at J.A. 89-90.

7

Maelstrom. On May 4, 2005, the NMFS approved the requested

transfer.

On June 22, 2005, the district court issued an order directing

the Marshal to sell “the ‘SITE CLEARANCE I’, . . . engines, tackle,

appurtenances, equipment, cables, apparel, fishing permits,

furniture, and necessaries appertaining thereto, etc.” See

Caterpillar Fin. Servs. Corp. v. The F/V Site Clearance I, No.

2:05-cv-00010 (E.D.N.C. June 22, 2005) (the “June 2005 Order to

Sell”) (emphasis added).5

 On July 15, 2005, the vessel was sold at

auction to Caterpillar for $350,000. On August 2, 2005, a

“Memorandum of Agreement” was executed under which Caterpillar was

to sell Site Clearance I to Capt. Dylan for $700,000 on an “AS IS,

WHERE IS” basis. See J.A. 444-46. In subsequent communications,

Caterpillar and Capt. Dylan acknowledged and discussed the issue of

whether the Limited Access Permits were appurtenant to Site

Clearance I and would be part of the purchase of the vessel. The

Caterpillar representatives involved in these discussions were

aware that Caterpillar may have previously agreed that the Limited

Access Permits would not be considered appurtenant to Site

Clearance I, but they apparently did not have knowledge or

possession of Caterpillar’s written Acknowledgment of the Seafood

Marketing Agreement by which it promised not to seek the Limited

Access Permits in any foreclosure action.
6

The August 2005 Order Confirming Sale is found at J.A. 96-97.

8

On August 23, 2005, the district court entered an order

recognizing the sale to Caterpillar of “the vessel and all her

related equipment, tackle, appurtenances, fishing permits, etc.,”

and approving and confirming “the sale of the Vessel SITE CLEARANCE

I, and all her engines, tackle, appurtenances, fishing permits,

equipment, necessaries, etc.” for the sum of $350,000. See

Caterpillar Fin. Servs. Corp. v. The F/V Site Clearance I, No.

2:05-cv-00010 (E.D.N.C. Aug. 23, 2005) (the “August 2005 Order

Confirming Sale”) (emphasis added).6

 In a September 1, 2005 e-mail

message, Capt. Dylan assured Caterpillar that “[w]e are simply

requesting that Caterpillar convey to us, exactly what was granted

to [it] by the Marshal through the foreclosure.” J.A. 150. The

following day, September 2, 2005, Caterpillar closed its private

sale of Site Clearance I to Capt. Dylan for $700,000.

Around that same time, the NMFS informed Atlantic Capes that,

on September 9, 2005, it would be rescinding the transfer of the

Limited Access Permits from Site Clearance I to The F/V Maelstrom.

The NMFS cited newly discovered information that Site Clearance I

had been seized by the United States Marshal prior to the date that

Atlantic Capes requested the return of the permits — a seizure

that, in the view of the NMFS, had deprived it of the power to

authorize the transfer. Accordingly, the NMFS deemed the transfer
9

“void” and declared the Limited Access Permits “restored” to Site

Clearance I. See J.A. 125.

On September 15, 2005, however, Caterpillar alerted Capt.

Dylan by facsimile message, with a copy of its written

Acknowledgment of the Seafood Marketing Agreement attached, that

“Caterpillar was placed on notice several months after the mortgage

was filed that the [Limited Access Permits were] not to be

considered an appurtenance of the vessel or collateral for the

mortgage,” and that, “[a]s such, Caterpillar would likely be

estopped from claiming that they were among those permits arrested

with the subject vessel.” J.A. 157. Caterpillar offered to

discuss alternative arrangements if that news affected Capt.

Dylan’s desire to own Site Clearance I, but Capt. Dylan did not

attempt to relinquish the vessel. Thereafter, on October 7, 2005,

the NMFS officially transferred the Limited Access Permits to Site

Clearance I (now owned by Capt. Dylan).

On October 25, 2005, Atlantic Capes filed a motion to

intervene as a plaintiff in the foreclosure action, a complaint

against Site Clearance I, a cross-claim against Caterpillar, and a

“Motion to Clarify Confirmation of Sale” — all asserting Atlantic

Capes’s rights to the Limited Access Permits. On December 14,

2005, Capt. Dylan filed a motion to intervene, as well as an

opposition to Atlantic Capes’s Motion to Clarify Confirmation of

Sale. On April 14, 2006, the district court granted the motions to
10

intervene pursuant to Federal Rule of Civil Procedure 24, deeming

both Atlantic Capes and Capt. Dylan to be proper intervenors.

During a June 28, 2006 hearing on the pending issues, Caterpillar

indicated that, consistent with Atlantic Capes’s view, the Limited

Access Permits were not among the rights it obtained by purchasing

Site Clearance I.

Thereafter, in its September 2006 Clarification Order, the

district court observed that the dispute between Atlantic Capes and

Capt. Dylan “turns on an ambiguity seized upon by both parties:

whether [the term] ‘fishing permits’” — as used in the Verified

Complaint, the June 2005 Order to Sell, and the August 2005 Order

Confirming Sale — “encompassed the ‘Limited Access Permits.’”

September 2006 Clarification Order 5. The court explained that any

ambiguity in its orders “was inadvertent, since from the outset

neither Caterpillar, nor [Site Clearance I, L.L.C.], nor the Court

intended for the Limited Access Permits to be seized or sold along

with Site Clearance I.” Id. at 6. The court acknowledged that

“[t]he Verified Complaint did not specify whether the Limited

Access Permits were included among” those items against which

Caterpillar sought foreclosure, but observed that “Caterpillar

acknowledged in July 2004 [in its written Acknowledgment of the

Seafood Marketing Agreement] that the Limited Access Permits would

not form part of its security interest in Site Clearance I, and
11

that Caterpillar would not seek those permits as part of any

foreclosure action.” Id.

The district court thus determined that “the ‘fishing permits’

described in Caterpillar’s Verified Complaint included the Open

Access and other permits appurtenant to Site Clearance I, but

excluded the Limited Access Permits at issue here.” September 2006

Clarification Order 6-7. And, the court explained that its

February 2005 Order to Arrest, June 2005 Order to Sell, and August

2005 Order Confirming Sale “were meant only to enable Caterpillar

to obtain the relief sought by its Verified Complaint —

foreclosure upon Site Clearance I and all the items Caterpillar

understood as legally connected to the vessel.” Id. at 7.

According to the court,

[i]n ordering the seizure and eventual sale of Site

Clearance I, the Court did not intend “fishing permits”

to reach beyond the scope of the relief requested by

Caterpillar in its Verified Complaint. The broader, more

literal view of “fishing permits,” which NMFS

understandably adopted in rescinding the transfer of the

permits back to F/V MAELSTROM, and which Capt. Dylan

argues for here, was incorrect.

Id. The court also noted that fishing permits are generally

treated as appurtenant to commercial fishing vessels — a point

supported by a case relied on by Capt. Dylan, Gowen, Inc. v. F/V

Quality One, 244 F.3d 64 (1st Cir. 2001) — but that the Limited

Access Permits at issue here (unlike the permits in Gowen) had been

specifically excluded from foreclosure by the lender. See id. at
12

7 n.5. For these reasons, the court granted Atlantic Capes’s

Motion to Clarify Confirmation of Sale, and, pursuant to Federal

Rule of Civil Procedure 60(a), clarified its prior February 2005

Order to Arrest, June 2005 Order to Sell, and August 2005 Order

Confirming Sale “to reflect the exclusion of the Limited Access

Permits from the foreclosure and sale of Site Clearance I.” Id. at

7. The court further ordered the NMFS “to restore the transfer of

the Limited Access Permits from Site Clearance I to Atlantic

Capes.” Id. On October 24, 2006, Capt. Dylan noted an appeal from

the interlocutory September 2006 Clarification Order.

B.

Meanwhile, on October 11, 2005, in the District of

Massachusetts, Atlantic Capes initiated its own lawsuit, seeking

rescission of the NMFS’s actions and restoration of the Limited

Access Permits. Atlantic Capes named as defendants — in addition

to Capt. Dylan — the Secretary of Commerce and a Regional

Administrator for the NMFS. In the operative complaint (an Amended

Complaint filed on October 31, 2005), Atlantic Capes alleged

violations of the Fishery Conservation and Management Act, 16

U.S.C. §§ 1801-1891d, invoking the district court’s jurisdiction

under, inter alia, 16 U.S.C. § 1855(f). On July 13, 2006, the

Massachusetts district court ordered the case transferred to the

Eastern District of North Carolina, where it was referenced as No.

2:06-cv-00024.
13

By its October 2006 Atlantic Capes Order, the district court

in North Carolina disposed of three pending motions that

“ultimately turn[ed] upon a single issue: the legal status of the

Limited Access Permits.” October 2006 Atlantic Capes Order 4. In

so doing, the court recognized that, by its September 2006

Clarification Order in the original foreclosure action, it had

“decided this issue already, . . . holding that the [Limited Access

Permits] were not among the legal rights targeted by Caterpillar[]”

in the original foreclosure action and, thus, should have remained

with Atlantic Capes. Id. Accordingly, the court dismissed as moot

the three pending motions, and reiterated its directive to the NMFS

“to restore the transfer of the Limited Access Permits from Site

Clearance I to Atlantic Capes.” Id. On November 17, 2006, Capt.

Dylan noted an appeal from the interlocutory October 2006 Atlantic

Capes Order.

II.

We consolidated these appeals by order of January 3, 2007.

Capt. Dylan maintains that we possess jurisdiction under both 28

U.S.C. § 1291 (jurisdiction over appeals from “final decisions of

the district courts”) and 28 U.S.C. § 1292(a)(3) (jurisdiction over

appeals from “[i]nterlocutory decrees . . . determining the rights

and liabilities of the parties to admiralty cases in which appeals

from final decrees are allowed”). We recognize that we possess
7Notably, both Atlantic Capes and Caterpillar are designated

as appellees, but Caterpillar has waived the filing of a brief and

adopted the brief of Atlantic Capes.

14

§ 1292(a)(3) jurisdiction in No. 06-2142 (concerning the September

2006 Clarification Order in the original foreclosure action). Our

jurisdiction is in doubt, however, with respect to No. 06-2222

(relating to the October 2006 Atlantic Capes Order). That is, it

does not appear that the October 2006 Atlantic Capes Order

constitutes an appealable “final decision[]” under § 1291 or an

appealable “[i]nterlocutory decree[]” in an “admiralty case[]”

within the meaning of § 1292(a)(3). In any event, in light of our

affirmance in No. 06-2142 (which we explain below), No. 06-2222 is

moot and dismissed for that reason.

III.

Relevant to No. 06-2142, Capt. Dylan challenges the September

2006 Clarification Order on several grounds.7 The key issue before

us is whether the district court was authorized under Federal Rule

of Civil Procedure 60(a) to clarify its prior foreclosure-related

orders as it did. Our review of the Rule 60(a) issue is for abuse

of discretion. See Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229

(8th Cir. 1997). Under the version of Rule 60(a) in effect at the

time of the September 2006 Clarification Order, “[c]lerical

mistakes in judgments, orders or other parts of the record and

errors therein arising from oversight or omission may be corrected
8Rule 60(a) was amended as part of the general restyling of

the Civil Rules, effective December 1, 2007, and now provides in

pertinent part as follows: “The court may correct a clerical

mistake or a mistake arising from oversight or omission whenever

one is found in a judgment, order, or other part of the record.

The court may do so on motion or on its own, with or without

notice.”

15

by the court at any time of its own initiative or on the motion of

any party and after such notice, if any, as the court orders.”8 As

we have recognized, Rule 60(a) is properly utilized “to perform a

completely ministerial task” (such as “making a judgment more

specific in the face of an original omission”), but not to “revisit

the merits of the question” or “reconsider[] the matter.” Kosnoski

v. Howley, 33 F.3d 376, 379 (4th Cir. 1994) (internal quotation

marks omitted).

By its September 2006 Clarification Order, the district court

relied on Rule 60(a) simply to specify that its prior foreclosurerelated orders excluded the Limited Access Permits from the arrest

and sale of The F/V Site Clearance I — a necessary clarification

in view of the NMFS’s misinterpretation of the prior orders and

consequent decision that the Limited Access Permits belonged with

Site Clearance I. The court’s exclusion of the Limited Access

Permits from the arrest and sale of Site Clearance I was entirely

consistent with the understanding of Caterpillar and the defendants

in the foreclosure action at the time the prior orders were

entered. Accordingly, it was perfectly within the court’s

authority to perform the “ministerial task” of clarifying its prior
9Capt. Dylan further maintains on appeal that the district

court lacked jurisdiction in the foreclosure action to issue the

September 2006 Clarification Order, that Atlantic Capes had no

standing to seek clarification of the court’s prior foreclosurerelated orders, and that Atlantic Capes’s clarification request was

time-barred. We have carefully considered these contentions, and

conclude that they are without merit. We also find it unnecessary

to reach any additional issues raised by Atlantic Capes in its

response brief, e.g., whether Capt. Dylan is estopped from pursuing

rights to the Limited Access Permits and whether Capt. Dylan’s

conduct risked a fraud on the court.

16

orders to reflect that shared understanding. Cf. Kosnoski, 33 F.3d

at 379 (affirming court’s use of Rule 60(a) to specify amount of

interest previously awarded, where “both parties understood that

interest had been awarded” and the rate and time frame for

computation, leaving as “[t]he court’s only task . . . to do the

calculation and make the amount official”). Indeed, it would have

been impossible for the court to “revisit” or “reconsider” the

status of the Limited Access Permits in its September 2006

Clarification Order, because that issue first came before the court

only after Capt. Dylan latched onto the use of the general term

“fishing permits” in the court’s prior orders to argue that the

Limited Access Permits were seized and sold with Site Clearance I

(despite having notice from Caterpillar that the Limited Access

Permits were never appurtenant to or part of its security interest

in the vessel). We therefore reject any notion that the court

abused its discretion by relying on Rule 60(a) for its September

2006 Clarification Order.9
17

IV.

Pursuant to the foregoing, we affirm in No. 06-2142 and

dismiss No. 06-2222.

No. 06-2142 AFFIRMED

No. 06-2222 DISMISSED