Before LUMBARD, Chief Judge, and SWAN and WATERMAN, Circuit Judges.
This is an appeal from an interlocutory decree in the admiralty holding appellant, M. & J. Tracy, Inc., liable for damages sustained by libellant's tank barge, Morania No. 140, when it fetched up on a sunken coal barge owned by Tracy. Liability was predicated upon Tracy's alleged negligence in failing to mark its sunken barge, Cape Erwin, as required by 33 U.S.C. § 409. Various impleading petitions were served, but all of these actions have been dismissed and none is involved in the present appeal.
The record on appeal contains little more than the pleadings, as amplified by answers which Tracy made to interrogatories filed by the libellant, and a stipulation as to uncontested facts. No witnesses were called, and Tracy offered no evidence at trial. The sole question presented is whether the libellant, Morania Barge No. 140, Inc., established a prima facie case of negligence on the part of Tracy sufficient to support the decree of the trial court. We hold that such a prima facie case was established and therefore we affirm the decree below.
The facts, as stipulated by the parties, were as follows:
"At approximately 1300 hours of February 27, 1958, a collision occurred between the tanker P.W. Thirtle and the loaded coal barge Cape Erwin in the navigable channel of the Arthur Kill south of the Goethals Bridge. * * * The Cape Erwin was owned by M & J Tracy, Inc.
"Approximately five to 10 minutes after the collision the Cape Erwin sank in the navigable waters of the channel. When the Cape Erwin sank she submerged completely under the surface of the water.
"It is further stipulated * * * that after the Cape Erwin had sunk, the Morania Barge No. 140, while in tow of the tug Morania No. 8 fetched up and stranded on the Cape Erwin. At the time the Morania No. 140 fetched up on the sunken Cape Erwin, no wreck marker or wreck buoy had been placed on the site."
The libellant alleged that the collision between Morania No. 140 and the submerged Cape Erwin occurred shortly after 2:30 P.M. on February 27. Tracy's answer to the libel fixed the time at shortly after 3:30 P.M. The interval of time between the sinking of the Cape Erwin and the collision here at issue, therefore, was from one hour and twenty minutes, as found by the trial court, to approximately two hours and one half, as admitted in appellant's pleadings.
Although 33 U.S.C. § 409 is a criminal statute, it reflects a legislative judgment of the standard of care to which owners of sunken vessels should be held in civil actions. Sullivan v. P. Sanford Ross, 263 F. 348 (2 Cir., 1920). The statute provides as follows:
"* * * And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; * * *."
If the statute were interpreted literally, it would be undeniable that Tracy was in violation of its provisions because of failure to mark the Cape Erwin after its sinking in a navigable channel. From such a statutory violation, Tracy's negligence in causing the subsequent collision of Morania No. 140 with the wreck would be presumed. Sullivan v. P. Sanford Ross, supra; Reading Co. v. Pope & Talbot, Inc., 192 F.Supp. 663 (E.D.Pa.), aff'd 295 F.2d 40 (3 Cir., 1961). Section 409 has not been interpreted literally, however. Although it has been described as a "drastic statute," The Chambers, 298 F. 194, 196 (S.D.N.Y. 1924), aff'd Director General of Railroads v. Molyneaux, 13 F.2d 1021 (2 Cir., 1926), and one which imposes a "very high degree of care * * * upon the owners of wrecks," Sullivan v. P. Sanford Ross, Inc., supra 263 F. at 350 (dissenting opinion), the courts have found no violation of its provisions where owners have taken steps to mark their sunken vessels within a reasonable time after receiving notice of the sinking. Petition of Anthony O'Boyle, Inc., 161 F.2d 966 (2 Cir., 1947); The Anna M. Fahy, 153 F. 866 (2 Cir., 1907).
From these authorities, appellant argues that to establish a prima facie case of dereliction of statutory duty under § 409, a libellant must affirmatively plead and prove, in the first instance, the failure of the owner to mark a sunken vessel (1) within a reasonable time (2) after he has received notice of the sinking. Although appellant in this case admittedly received notice of the sinking of its barge, no evidence has been offered as to the time the notice was received. Libellant failed, thus, to establish, it is contended, that Tracy neglected to mark the wreck within a reasonable time after the notice was received.
There have been brought to our attention, however, no cases in which so heavy a burden of going forward with the evidence was imposed upon a libellant claiming negligence for failure to comply with § 409. Indeed, our decision in Berwind-White Coal Mining Co. v. Pitney, 187 F.2d 665 (2 Cir., 1951) suggests a different allocation of the burden of proof. There, the first of several ships collided with appellant's wrecked coal barge approximately two and one half hours ...