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 Appel-
lants. Robert John McAfee, MCCOTTER & MCAFEE, P.L.L.C.,

                    2
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 neces-
sitate fewer judicial resources." The court also noted that through con-
solidation "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 Shipown-
er'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-

                     3
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] pres-
          sured 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 liabil-
ity in any and all suits relating to the disappearance of the F/V Char-
Lee II was limited to the value of the ship after the accident, amount-

                     4
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 elimi-
nate 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 con-
solidating 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-of-
liability 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 interlocu-
tory 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 admi-
ralty cases in which appeals from final decrees are allowed").

                    5
The district court initially entered an injunction in the limitation-of-
liability action, staying any court proceedings relating to the disap-
pearance 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 recon-
sideration 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 sever-
ance 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-of-
liability action provided for by the Shipowner's Limitation of Liabil-
ity 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 jus-
tify 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).

                     6
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 par-
ticularly English) shipowners who had long enjoyed the benefits of
limiting their liability for marine disasters, provides that a shipown-
er'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). Con-
gress designed the Limitation Act "to induce the heavy financial com-
mitments 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 ship-
owners. 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 --

                     7
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 provi-
sions 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 pro-
ceedings shall come to a permanent end. But in the context of the contin-
gency 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 Dictio-
nary of the English Language 167 (1851) (defining "to cease" as "to fore-
bear 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.

                     8
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 con-
solidated trial by presenting their evidence before both the court and
a jury on their claim against the owner for negligence and unsea-
worthiness. 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 Sea-
food'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 liabil-
ity, 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 Ship-
owner'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.

                     9
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-of-
liability 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 obviat-
ing the complex process. Even though we can foresee that an experi-
enced 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 prosecu-
          tion pari passu of distinct suits in different courts, or even
          in the same court by separate claimants, against the ship-
          owners, is, and must necessarily be, utterly repugnant to
          such proceedings, and subversive of their object and pur-
          pose.

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]

                      10
          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 liti-
          gated in the admiralty court, which has exclusive jurisdic-
          tion 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 [Sup-
          plemental Rule F(3) to the Federal Rules of Civil Procedure]
          and, therefore, any order denying the owner's right to limi-
          tation 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

                     11
