PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: LOCKHEED MARTIN
CORPORATION, No. 06-1344
Petitioner.
On Petition for Writ of Mandamus.
(8:05-cv-01992-AW)
Argued: January 31, 2007
Decided: September 27, 2007
Before TRAXLER and GREGORY, Circuit Judges, and
WIDENER,1 Senior Circuit Judge.
Petition granted by published opinion. Judge Traxler wrote the opin-
ion, in which Judge Gregory joined.
COUNSEL
Stanley McDermott, III, DLA PIPER US, L.L.P., New York, New
York, for Petitioner. James Wilson Bartlett, III, SEMMES, BOWEN
& SEMMES, Baltimore, Maryland, for Respondent.
1
Judge Widener heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
2 In Re: LOCKHEED MARTIN CORP.
OPINION
TRAXLER, Circuit Judge:
At issue in this case is the right to a jury trial in an admiralty case.
Lockheed Martin owns a ship that was damaged at sea, and a dispute
over insurance coverage arose between Lockheed and its insurer,
National Casualty Company. National filed a declaratory judgment
action in district court, designating the action as one proceeding under
the court’s admiralty jurisdiction and thus without a jury. Lockheed
asserted compulsory counterclaims and requested a jury trial. The dis-
trict court struck Lockheed’s request for a jury trial, and Lockheed
filed this petition for writ of mandamus, arguing that it has a Seventh
Amendment right to a jury trial. We grant the petition, issue the writ,
and remand with directions that the district court grant Lockheed’s
jury demand.
I.
The relevant facts of this case are fairly simple. Lockheed owned
a ship that was damaged at sea in June 2001. The ship was insured
by National Casualty Company. In April 2005, Lockheed submitted
a claim for more than $2,600,000 in damages. Lockheed informed
National that it intended to file suit by July 29, 2005, unless National
acknowledged that the policy established a six-year statute of limita-
tions.
On July 22, 2005, National preemptively filed a declaratory judg-
ment action seeking a declaration that Lockheed’s claims were time-
barred under the policy. In accordance with the rules governing admi-
ralty claims, National designated its action as a non-jury admiralty
claim. National later amended its complaint, seeking in the alternative
a declaration of Lockheed’s amount of loss. Lockheed filed an answer
and asserted a counterclaim seeking payment for the damage to the
ship. Lockheed requested a jury trial on its counterclaim.
Lockheed later filed a motion for judgment on the pleadings. Lock-
heed asserted that National’s first request for declaratory relief (that
the claims were untimely) should be dismissed because Lockheed’s
In Re: LOCKHEED MARTIN CORP. 3
claim was timely under the policy. Lockheed then argued that the dis-
trict court should exercise its discretion and dismiss National’s second
request for declaratory relief (for a determination of the amount of
loss), so that Lockheed’s counterclaim (which raised the same issue)
could be tried by a jury.
The district court concluded that the policy established a six-year
limitations period, and the court therefore dismissed National’s first
request for declaratory relief. The district court, however, concluded
that Lockheed did not have a right to a jury trial. The court therefore
declined to dismiss National’s second request for declaratory relief,
and the court struck Lockheed’s jury demand. Lockheed then filed
this petition for a writ of mandamus, arguing that the district court’s
ruling improperly deprived it of its right to a jury trial.
II.
Before considering the merits of Lockheed’s claims, we pause to
address a threshold issue raised by National. It is well established that
mandamus is a drastic remedy that should only be used in extraordi-
nary circumstances and may not be used as a substitute for appeal.
See, e.g., Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976);
In re Catawba Indian Tribe of South Carolina, 973 F.2d 1133, 1136
(4th Cir. 1992). National contends that Lockheed could raise the jury
trial issue on appeal from a final judgment, see First Nat’l Bank of
Waukesha v. Warren, 796 F.2d 999, 1006 (7th Cir. 1986), and that
Lockheed’s resort to mandamus is therefore improper. We disagree.
In this circuit, a petition for a writ of mandamus is the proper way
to challenge the denial of a jury trial. See General Tire & Rubber Co.
v. Watkins, 331 F.2d 192, 194 (4th Cir. 1964) ("We are inclined to the
view that General’s petition for Writ of Mandamus is properly before
us for consideration since the question presented pertains to a denial
of the constitutional right to trial by jury."); see also Beacon Theatres,
Inc. v. Westover, 359 U.S. 500, 511 (1959) ("[T]he right to grant man-
damus to require jury trial where it has been improperly denied is set-
tled."). Because Lockheed’s petition for a writ of mandamus is a
proper vehicle for challenging the district court’s decision, we now
turn to the merits of Lockheed’s claims.
4 In Re: LOCKHEED MARTIN CORP.
III.
Lockheed contends that it has a Seventh Amendment right to a jury
trial of its breach of contract claims asserted against National. Before
we consider the specifics of Lockheed’s claims, it is helpful to outline
the legal framework under which the claims must be analyzed.
A.
The Seventh Amendment preserves the right to a jury trial "[i]n
suits at common law." U.S. Const. amend. VII. The Seventh Amend-
ment’s guarantee of a jury trial, however, applies only to cases at law,
a category that does not include maritime cases. See Waring v.
Clarke, 46 U.S. (5 How.) 441, 460 (1847). Thus, in general terms, the
Seventh Amendment creates no constitutional right to a jury trial of
maritime claims.2 See Fitzgerald v. United States Lines Co., 374 U.S.
16, 20 (1963); see also Vodusek v. Bayliner Marine Corp., 71 F.3d
148, 152-53 (4th Cir. 1995) ("While the Seventh Amendment guaran-
tees a jury trial in cases ‘at common law,’ no constitutional provision
guarantees, or indeed prohibits, jury trials for cases tried in equity or
in admiralty.").
The role of a jury trial in admiralty cases, however, is complicated
by the "saving to suitors" clause of 28 U.S.C.A. § 1333 (West 2006).
Section 1333 states that "district courts shall have original jurisdic-
tion, exclusive of the courts of the States, of: (1) Any civil case of
admiralty or maritime jurisdiction, saving to suitors in all cases all
other remedies to which they are otherwise entitled." 28 U.S.C.A.
§ 1333(1) (emphasis added).
The Supreme Court has explained that the saving-to-suitors clause
preserves a plaintiff’s right to a common law remedy "in all cases
where the common law is competent to give it." Leon v. Galceran, 78
U.S. (11 Wall.) 185, 191 (1870) (internal quotation marks omitted).
2
Congress has created a statutory right to jury trial in certain admiralty
cases. See 28 U.S.C.A. § 1873 (establishing right to jury trial for admi-
ralty tort or contract cases involving certain Great Lakes shipping and
coasting trade vessels); 46 U.S.C.A. § 30104(a) (giving injured seamen
a right to a jury trial in Jones Act cases).
In Re: LOCKHEED MARTIN CORP. 5
The common law is "competent" in cases proceeding in personam,
but not those proceeding in rem. See id.; Madruga v. Superior Court
of California, 346 U.S. 556, 560-61 (1954). Accordingly, while "fed-
eral courts have exclusive jurisdiction over in rem actions, federal and
state courts have concurrent jurisdiction over in personam actions,
and the effect of the clause is to give an in personam plaintiff the
choice of proceeding in an ordinary civil action, rather than bringing
a libel in admiralty." In re: Chimenti, 79 F.3d 534, 537 (6th Cir.
1996) (citation and internal quotation marks omitted).
The effect of the saving-to-suitors clause as interpreted by the
Supreme Court is to give a maritime plaintiff several options when
bringing suit:
First, the claimant may invoke federal admiralty jurisdiction
under the grant of original subject matter jurisdiction over
admiralty, maritime, and prize cases set out in Section 1333.
Neither diversity of citizenship nor a minimum amount in
controversy need be shown under the statute. On the other
hand, most plaintiffs have no right to a trial by jury if they
invoke the federal court’s general admiralty jurisdiction.
Second, by virtue of the "saving clause," plaintiff also may
sue at law in a state court or in a United States district court.
However, to pursue the latter choice, the requirements of
diversity of citizenship and jurisdictional amount must be
satisfied.
Id. (quoting 14 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure: Jurisdiction § 3672, at 431-
33 (1985)); see also Concordia Co. v. Panek, 115 F.3d 67, 70 (1st
Cir. 1997); Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1054
(9th Cir. 1997).
Perhaps the most important aspect of an admiralty plaintiff’s right
to proceed "at law" in state or federal court is the right to demand a
jury trial. See Ghotra, 113 F.3d at 1054 ("The difference between
[proceeding in admiralty or at law in state or federal court] is mostly
procedural; of greatest significance is that there is no right to jury trial
if general admiralty jurisdiction is invoked, while it is preserved for
claims based in diversity or brought in state court."). An admiralty
6 In Re: LOCKHEED MARTIN CORP.
plaintiff who chooses to proceed "at law," whether in state or federal
court, thus has the right under the saving-to-suitors clause to demand
a jury trial.
The procedures for invoking the federal court’s admiralty jurisdic-
tion are governed by Rule 9(h) of the Federal Rules of Civil Proce-
dure. Rule 9(h) provides that:
A pleading or count setting forth a claim for relief within the
admiralty and maritime jurisdiction that is also within the
jurisdiction of the district court on some other ground may
contain a statement identifying the claim as an admiralty or
maritime claim for the purposes of Rules 14(c), 38(e), 82,
and the Supplemental Rules for Certain Admiralty and Mar-
itime Claims. If the claim is cognizable only in admiralty,
it is an admiralty or maritime claim for those purposes
whether so identified or not. . . .
Fed. R. Civ. P. 9(h). In this case, National designated its declaratory
judgment action as one proceeding in admiralty.
B.
We turn now to Lockheed’s claim that it is entitled to a jury trial.
Lockheed argues that because it asserted an in personam counterclaim
against National, the parties are diverse and the amount-in-
controversy requirement is satisfied, it has the right under the saving-
to-suitors clause to demand a jury trial on the counterclaim. Lockheed
also contends that it has a right to a jury trial under Beacon Theatres,
Inc. v. Westover, 359 U.S. 500 (1959), in which the Supreme Court
held that the right to a jury trial in a declaratory judgment action
depends on whether there would have been a right to a jury trial had
the action proceeded without the declaratory judgment vehicle. See id.
at 504.
As to Lockheed’s counterclaim argument, National contends that
Lockheed’s counterclaim is not a true counterclaim, but is merely the
flip side of National’s declaratory judgment claim. National seeks a
declaration that there is no coverage and a declaration of the amount
In Re: LOCKHEED MARTIN CORP. 7
owed if there is coverage, and Lockheed asserts in the counterclaim
that there is coverage and that the loss amount is more than National
will admit. National argues that if this kind of in-name-only counter-
claim is enough to require a jury trial in an admiralty case, then the
plaintiff’s historic right to decide whether to proceed in admiralty will
be eviscerated. And even if Lockheed’s counterclaim is a true coun-
terclaim, National argues that its Rule 9(h) admiralty designation is
controlling and prevents Lockheed from obtaining a jury trial. As to
Lockheed’s Beacon Theatres argument, National contends that Bea-
con Theatres involved common law claims for which there is a Sev-
enth Amendment right to a jury trial and that the Supreme Court’s
decision in that case was driven by a need to protect the defendant’s
constitutional right to a jury trial. See Beacon Theatres, 359 U.S. at
510-11. This case, by contrast, involves admiralty claims, for which
there is no constitutional right to a jury trial. National thus contends
that Beacon Theatres is simply inapplicable to this case.
At the heart of National’s position is its view that the Seventh
Amendment is inapplicable to admiralty claims. While it is correct
that the Seventh Amendment does not create a right to a jury trial on
maritime claims, we believe that National’s position oversimplifies
the matter.
As discussed above, the effect of the saving-to-suitors clause is to
permit maritime in personam claims to be pursued in federal court as
maritime (and thus non-jury) claims, in state court as legal claims, or
in federal court as legal claims (for which a jury trial is available) if
an independent basis for federal court jurisdiction exists. If an admi-
ralty claim is tried "at law," the claim nonetheless remains an admi-
ralty claim, and substantive admiralty law governs the disposition of
the claim. See, e.g., Zych v. Unidentified, Wrecked & Abandoned Ves-
sel, 941 F.2d 525, 533 n.12 (7th Cir. 1991) (explaining that the
saving-to-suitors clause creates "an area of concurrent jurisdiction for
admiralty cases which can be pursued in personam in state court.
However, federal law must be applied to these state court suits
because they remain admiralty cases."). That such claims remain
admiralty claims, however, does not mean that the Seventh Amend-
ment is inapplicable.
In Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369
U.S. 355 (1962), a longshoreman injured while unloading cargo
8 In Re: LOCKHEED MARTIN CORP.
brought suit against the owners of the ship carrying the cargo. Diver-
sity jurisdiction existed, and the plaintiff designated the action as one
at law and demanded a jury trial. The vessel owners impleaded the
stevedore for whom the longshoreman worked, arguing that the steve-
dore was negligent as to the manner in which the vessel was unloaded
and that the stevedore should indemnify the vessel owners if they
were found liable to the longshoreman. Answering special interroga-
tories, the jury found the vessel owners liable but found no fault on
the part of the stevedore. On appeal, the circuit court affirmed the
jury’s verdict against the vessel owners but reversed the judgment in
favor of the stevedore, concluding that the stevedore was negligent as
a matter of law. See id. at 357-58.
The Supreme Court reversed the decision of the circuit court. The
Court explained that "[t]he requirements of the Seventh Amendment
were brought into play in this case, even though a stevedoring con-
tract is a maritime contract." Id. at 359. The Court held that "[t]his
suit being in the federal courts by reason of diversity of citizenship
carried with it, of course, the right to trial by jury," id. at 360, and that
the manner in which the circuit court rejected the jury verdict violated
the Seventh Amendment’s prohibition against the re-examination of
facts found by a jury.3 See id. at 364.
In our view, Ellerman makes it clear that the Seventh Amendment
applies to admiralty claims that are tried "at law" by way of the
saving-to-suitors clause. See id. at 359-60; see also Vodusek, 71 F.3d
at 152-53 (recognizing that the Seventh Amendment applies to admi-
ralty claim that is cognizable at law); Koch Fuels, Inc. v. Cargo of
13,000 Barrels of No. 2 Oil, 704 F.2d 1038, 1041 (8th Cir. 1983)
(same). There is an important difference, however, between Ellerman
and the case at bar. Whereas in Ellerman the plaintiff elected to pro-
ceed at law, the plaintiff here elected to proceed in admiralty. We do
not believe, at least in this case, that this factual difference is relevant.
Generally speaking, the right to determine whether a claim will
proceed as an admiralty claim (without a jury) or as a common law
3
See U.S. Const. amend. VII ("[N]o fact tried by a jury, shall be other-
wise reexamined in any Court of the United States, than according to the
rules of common law.").
In Re: LOCKHEED MARTIN CORP. 9
claim (with a jury) belongs strictly to the plaintiff. That is, if a plain-
tiff designates his claim as a Rule 9(h) maritime claim, the saving-to-
suitors clause does not permit a defendant to trump that designation
and demand a jury trial. See Waring, 46 U.S. at 461 ("The saving is
for the benefit of suitors, plaintiff and defendant, when the plaintiff
in a case of concurrent jurisdiction chooses to sue in the common law
courts, so giving to himself and the defendant all the advantages
which such tribunals can give to suitors in them. It certainly could not
have been intended more for the benefit of the defendant than for the
plaintiff, which would be the case if he could at his will force the
plaintiff into a common law court . . . ." (emphasis added)); see also
Becker v. Tidewater, Inc., 405 F.3d 257, 259 (5th Cir. 2005) (conclud-
ing that defendant had no right to a jury trial even though parties were
diverse because plaintiff elected to proceed in admiralty). While this
principle governs simple proceedings—e.g., proceedings where the
defendant does not assert any counterclaims or implead third parties
—there is some dispute about its application to more complex cases.
In cases involving counterclaims or cross-claims that could proceed
at law, courts are divided on the question of whether the plaintiff’s
Rule 9(h) admiralty designation prevents the defendant from obtain-
ing a jury trial. Some courts have concluded that the plaintiff’s Rule
9(h) designation is controlling and that no jury trial is permitted. See,
e.g., Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d
968, 987 (5th Cir. 1978) (concluding that the plaintiff’s Rule 9(h)
election prohibited a jury trial of legal claims raised in third-party
complaint: "[W]e refuse to permit a third-party defendant to emascu-
late the election given to the plaintiff by Rule 9(h) by exercising the
simple expedient of bringing in a fourth-party defendant."); Windsor
Mount Joy Mut. Ins. Co. v. Johnson, 264 F. Supp. 2d 158, 162 (D.N.J.
2003) (concluding that plaintiff’s Rule 9(h) election to proceed in
admiralty jurisdiction could not be "undone . . . through the assertion
of a counterclaim that might have been subject to the Court’s jurisdic-
tion under Section 1332 and a jury trial if brought in a separate
action"); Camrex (Holdings) Ltd. v. Camrex Reliance Paint Co., 90
F.R.D. 313, 317 (E.D.N.Y. 1981) (concluding that a "plaintiff’s elec-
tion to sue on an admiralty or maritime claim as the basis for federal
jurisdiction binds the parties in the lawsuit to the inevitable proce-
dural consequence of a court trial, . . . even where a ‘legal’ counter-
claim has been interposed" (citation omitted)).
10 In Re: LOCKHEED MARTIN CORP.
Other courts, however, have concluded that a plaintiff’s Rule 9(h)
designation cannot trump the defendant’s Seventh Amendment right
to a jury trial on a legal counter- or cross-claim. See, e.g., Wilmington
Trust v. United States Dist. Court, 934 F.2d 1026, 1032 (9th Cir.
1991) (concluding that the plaintiff’s "election to proceed in admiralty
does not deprive the Union of a jury trial on the Union’s properly
joined [counter]claims"); Koch Fuels, Inc. v. Cargo of 13,000 Barrels
of No. 2 Oil, 704 F.2d 1038, 1041-42 (8th Cir. 1983) (concluding that
intervenor-defendant had the right to a jury trial on its breach of con-
tract counterclaim notwithstanding the fact that the plaintiff elected
under Rule 9(h) to proceed on its claims in admiralty); Sphere Drake
Ins. PLC v. J. Shree Corp., 184 F.R.D. 258, 261 (S.D.N.Y. 1999)
(concluding that defendant asserting compulsory legal counterclaims
was entitled to a jury trial even though plaintiff had elected to proceed
in admiralty).
In our view, allowing a plaintiff’s Rule 9(h) designation to pre-
clude a jury trial on compulsory legal counter- or cross-claims effec-
tively and improperly elevates the traditional mode of trial in
admiralty (a bench trial) to a right not to proceed before a jury. While
the Constitution does not give an admiralty plaintiff the right to a jury
trial, it likewise does not give the plaintiff a right to a bench trial. See
Fitzgerald, 374 U.S. at 20 ("While this Court has held that the Sev-
enth Amendment does not require jury trials in admiralty cases, nei-
ther that Amendment nor any other provision of the Constitution
forbids them. Nor does any statute of Congress or Rule of Procedure,
Civil or Admiralty, forbid jury trials in maritime cases." (footnotes
omitted)); Vodusek, 71 F.3d at 152-53. To permit the plaintiff’s
choice of a customary but not constitutionally required mode of trial
to prevent a defendant from taking advantage of his constitutionally
guaranteed mode of trial is inconsistent with the Supreme Court’s
admonition that the Seventh Amendment right to a jury trial must be
preserved "wherever possible." Beacon Theatres, 359 U.S. at 510.
As noted above, however, National contends that the counterclaims
asserted by Lockheed are not true counterclaims. National contends
that Lockheed’s claims are simply the flip side of National’s own
claims and add no new issue to the litigation. National argues that
permitting a jury trial on the basis of such claims would eviscerate the
admiralty plaintiff’s traditional right to control the manner in which
In Re: LOCKHEED MARTIN CORP. 11
his claims will be tried. We agree with National that permitting such
counterclaims to effectively undo the plaintiff’s Rule 9(h) designation
would be inconsistent with the historic admiralty practice of giving
the plaintiff the power to determine the manner in which his claims
would be tried. We need not decide, however, whether the counter-
claims asserted by Lockheed are "true" counterclaims, nor need we
decide how a defendant’s jury demand would be resolved if his coun-
terclaims were not true counterclaims. We need not consider these
issues because we agree with Lockheed that Beacon Theatres requires
a jury trial in this case, even if no counterclaims had been filed.
In Beacon Theatres, Beacon notified Fox West Coast Theatres that
it believed Fox was violating the Sherman Act. Fox thereafter brought
a declaratory judgment action seeking a declaration that its conduct
did not violate the Sherman Act. Beacon answered and counter-
claimed, seeking treble damages under the Sherman Act and demand-
ing a jury trial. The district court concluded that Fox’s declaratory
judgment claims were equitable in nature and that a bench trial on the
issues raised in Fox’s complaint would be held before a jury consid-
ered Beacon’s treble-damages claim. See id. at 502-04. The Supreme
Court held that the district court erred by viewing Fox’s claims as
equitable. The Court explained that the Declaratory Judgment Act,
while allowing prospective defendants to sue to establish
their nonliability, specifically preserves the right to jury trial
for both parties. It follows that if Beacon would have been
entitled to a jury trial in a treble damage suit against Fox
it cannot be deprived of that right merely because Fox took
advantage of the availability of declaratory relief to sue
Beacon first. Since the right to trial by jury applies to treble
damage suits under the antitrust laws, and is, in fact, an
essential part of the congressional plan for making competi-
tion rather than monopoly the rule of trade, the Sherman and
Clayton Act issues on which Fox sought a declaration were
essentially jury questions.
Id. at 504 (emphasis added; footnote and internal citation omitted).
This case, like Beacon Theatres, involves a declaratory judgment
action commenced by the party that, but for the existence of the
12 In Re: LOCKHEED MARTIN CORP.
declaratory judgment procedure, would have been the defendant.
Although the action sounds in admiralty, that is only because National
won the race to the courthouse door and made the Rule 9(h) designa-
tion first. Beacon Theatres, however, requires us to ignore National’s
status as the declaratory judgment plaintiff and to instead look to how
the action otherwise would have proceeded. Without the declaratory
judgment vehicle, Lockheed would have sued National for breach of
the insurance policy, a claim over which admiralty and "law" courts
have concurrent jurisdiction. As the plaintiff, Lockheed would have
been entitled under the saving-to-suitors clause to designate its claim
as a legal one as to which there is a Seventh Amendment right to jury
trial.
Contrary to National’s contention, we do not believe that Beacon
Theatres can be distinguished on the ground that it involved legal
claims to which the Seventh Amendment applies, while this case
involves admiralty claims as to which there is no Seventh Amend-
ment right to a jury trial. Preliminarily, we note that, as explained
above, it is an oversimplification to say that the Seventh Amendment
does not apply in admiralty. While the Seventh Amendment is not
applicable to an admiralty claim, it can be applicable to certain claims
—those over which the "law" court has concurrent jurisdiction.
Moreover, it is rather circular to contend, as National effectively
does, that Beacon Theatres’ method for determining whether there is
a right to a jury trial applies only in cases where there in fact is a right
to a jury trial. "Actions for declaratory judgments are neither legal nor
equitable, and courts have therefore had to look to the kind of action
that would have been brought had Congress not provided the declara-
tory judgment remedy." Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 284 (1988)); see also Marseilles Hydro Power,
LLC v. Marseilles Land & Water Co., 299 F.3d 643, 649 (7th Cir.
2002) ("If the declaratory judgment action does not fit into one of the
existing equitable patterns but is essentially an inverted law suit—an
action brought by one who would have been a defendant at common
law—then the parties have a right to a jury." (internal quotation marks
omitted)). There is nothing in Beacon Theatres that suggests that this
inquiry does not apply when the declaratory judgment action is
brought in an admiralty case. The Court’s decision in Beacon The-
atres was driven by the need to protect Seventh Amendment rights.
In Re: LOCKHEED MARTIN CORP. 13
Because the Seventh Amendment is implicated in some admiralty
cases (cases where there are claims that may be at law), we believe
that the Beacon Theatres approach must be applied to such cases. See,
e.g., Wilmington Trust, 934 F.2d at 1031-32 (applying Beacon The-
atres to conclude that admiralty cross-claimant was entitled to a jury
trial notwithstanding plaintiff’s Rule 9(h) designation); Sphere Drake,
184 F.R.D. at 261 (same).
At issue in this case is a dispute over whether an insurer is obli-
gated to indemnify its insured for damage sustained by an insured
vessel. In the usual course of events—that is, without the declaratory
judgment vehicle—Lockheed would have sued National for breach of
the insurance contract. And under the saving-to-suitors clause, Lock-
heed would have been entitled to a jury trial on that claim. Accord-
ingly, under Beacon Theatres, Lockheed cannot lose its right to a jury
trial simply because National initiated the declaratory judgment
action.
IV.
Because Lockheed is entitled to a jury trial, the district court erred
by striking Lockheed’s jury demand. We therefore grant Lockheed’s
petition for the issuance of a writ of mandamus and we direct the dis-
trict court on remand to try the case before a jury.
PETITION FOR WRIT OF MANDAMUS GRANTED