In Re Lockheed Martin Corp.

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