The Wreck Statute, if read literally, would require the owner of a craft sunk in a navigable channel “to immediately mark it” in the manner specified, but, as the majority opinion points out with citation of authorities, the courts have construed the statute not to be violated if the owner marks his sunken vessel within a reasonable time after receiving notice of the sinking. The trial court found that the Cape Erwin sank within ten. minutes after 1 p. m. and that libel-lant’s barge fetched up on it at 2:30 p. m.1 Judge Clancy also found as a fact that at what hour Tracy learned of the sinking of the Cape Erwin does not appear.
The court says that Tracy’s answer, filed on June 9, 1959, which was nearly nine months after February 27, 1958, is an admission that Tracy received notice of the sinking. But it is no evidence whatever as to the time notice was received. Without such evidence I fail to see how it can be held that failure to mark the wreck before 2:30 p. m. was proof of an unreasonable “delay” in marking it.
My brothers affirm the interlocutory decree on the theory that “once a substantial delay in placing suitable markers *84has been proved, the owner should have the burden of going forward with evidence to establish the discharge of his statutory duty to mark his sunken vessel.” This seems to me a wide departure from the admitted rule that the statutory duty is violated only when the owner fails to mark his sunken vessel within a reasonable time after receiving notice of the sinking. It presupposes the period of an hour and twenty minutes was so substantial a “delay” as to be unreasonable, without any proof as to when in fact the owner received notice of the sinking. With this assumption I disagree. The libellant had to prove that its barge was damaged by Tracy’s negligence. Without any proof as to when Tracy received notice of the sinking I do not think that a prima facie case of negligence was established.
My brothers cite two cases in support of the contention that Tracy should have the burden of going forward with evidence as to when it received notice of the sinking of the Cape Erwin. Neither of them is in point in my opinion. The first is Berwind-White Coal Mining Co. v. Pitney, 2 Cir., 187 F.2d 665. In this case, the appellant’s barge became a wreck in a navigable channel at about 10 p. m. Before the barge was marked several vessels struck the wreck, the first at about 12:35 a. m. The opinion states, at p. 669, “as early as two hours before the first accident at the wreck [the owner’s] general foreman Nelson had notice that the barge had sunk in the navigable channel. In the absence of evidence that Nelson couldn’t reasonable [sic] have had time to have the wreck marked before the vessels struck it, we accept the trial judge’s holding that the appellant violated the wreck statute as to all of them.” It will be observed that in that case the owner, through Nelson, did have notice two hours before the first accident, and it was held that Nelson’s knowledge was as a matter of law that of the corporate appellant. No such situation exists with respect to Tracy.
The second case cited by my brothers, The Chambers, 298 F. 194 (S.D.N.Y.) aff’d, sub nom. Director General of Railroads v. Molyneaux, 2 Cir., 13 F.2d 1021, is also inapposite. In this case the wreck was marked the day after it occurred, so obviously the owner had notice of the wreck. Thereafter the buoy carried away, and a new one was not substituted, the owner not having kept a constant watch over the wreck, after it was once marked. All that District Judge Hand’s opinion holds, 298 F. at 195 is that the statute “imposes a continuous duty” and that the “owner should show why he did not watch the buoy, what efforts he made, and what prevented him, when it carried away, from substituting a new one. The respondent did not do any of these things; * *
For the foregoing reasons it appears to me that libellant failed to prove a prima facie case of negligence and that the interlocutory decree should be reversed.
. Tracy’s answer to Interrogatory No. 6 ai i. e. 2:30 p. m. nits that the time was “approximately 1430,”