                              UNPUBLISHED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.
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-cv-
00024-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No. 06-2142 affirmed; No. 06-2222 dismissed by unpublished per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Unpublished opinions are not binding precedent in this circuit.




                                   2
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 foreclosure-

related 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


                                        3
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-cv-

00024 (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.;



      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
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


                                        5
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




     3
      The 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
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.


     5
      The June 2005 Order to Sell is found at J.A. 89-90.

                                               7
     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




     6
      The August 2005 Order Confirming Sale is found at J.A. 96-97.

                                    8
“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


                                         9
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




                                10
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


                                           11
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.

                                       12
      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


                                       13
§ 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


       7
      Notably, 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
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 foreclosure-

related 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

     8
      Rule 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
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




     9
      Capt. 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 foreclosure-
related 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
                            IV.

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

dismiss No. 06-2222.

                                         No. 06-2142 AFFIRMED
                                        No. 06-2222 DISMISSED




                             17
