dissenting:
The facts of the case are fully and accurately set out in the majority opinion and need not be repeated in detail here. The motor vessel DAUNTLESS COLOCO-TRONIS collided with the sunken barge, owned by Combi Lines, over three years after the barge had sunk. It is not disputed that for purposes of this case the so-called “upriver” defendants, various operators of fleeting facilities for barges, were negligent in causing the sinking of the Combi-owned barge. It is also assumed for purposes of this decision, as the majority did assume, that either Combi Lines or the United States Government or both are negligent because of violation of 33 U.S.C. § 409 (the statute popularly known as the Wreck Act) for having failed to mark or remove the sunken barge when it had sunk “in such a manner as to obstruct, impede, or endanger navigation.”1
It is this failure to act by the owner of the barge or the United States Government which compels my dissent to the holding of the majority. Succinctly stated, if the owner of the barge and the United States *1148Government had carried out their clear obligations under the Wreck Act, the DAUNTLESS would not have collided with the barge. Under the Wreck Act, the negligence of the upriver defendants did not play any role under the law, therefore, in “causing” the collision of the DAUNTLESS with the barge.
It is clear in the law that the upriver defendants because of their negligence were responsible for the costs of marking or removing the sunken barge. This is conceded, and these claims have been settled with Combi and others. The issue is whether they continue to be liable after more than three years for damage to the DAUNTLESS caused by the collision, because, and solely because, of the failure of Combi and the United States Government to carry out their obligations under the statute.
The majority opinion insists that because this was a motion for summary judgment to absolve the upriver defendants, we must assume the same rule if the hazard created by the negligence caused the collision “three years, thirty months, three months, thirty days, three days, or (possibly) even three minutes” before the collision. And as supporting this sweeping view, I read the opinion of the district court to rely upon a firm and flat rule that the upstream defendants could never be responsible for damages in the case of a subsequent collision no matter how quickly it followed after the negligent sinking. I do not agree with this extreme application of the statute. Nor do I agree with the majority of this Court holding that the negligent actors may be liable throughout history for the results of their negligence when the Wreck Act requires the owner or United States Government to obviate the hazard. Under the well-pleaded facts of this case, allegations to which there is no dispute, this collision occurred more than three years after the negligent act caused the sinking.
A sensible interpretation and application of the Wreck Act requires that the owner and the government have a reasonable time to carry out their duties of marking and removal under the statute before their failure to do so would become the sole cause of a subsequent collision. But the issue of whether there was a reasonable time does not arise in this case.2 Perhaps, it might be argued the case should be returned for trial if such a pragmatic rather than absolute rule is applied. The trouble with doing so is that we already know the critical fact — the long delay in clear and overt violation of the Wreck Act on the part of Combi and the United States Government. Under these circumstances, a trial would be without purpose. Whatever the result of an interpretation and application of a reasonable rule, and a reasonable opportunity for Combi and the United States Government to act, they were in clear statutory default under the known facts of this case.
In my view Judge Learned Hand in the United States Court of Appeals for the Second Circuit confirmed the correct law in this kind of case many years ago. In Red Star Towing and Transportation Co. v. Woodburn, 18 F.2d 77, 79 (2nd Cir.1927), Judge Hand in referring to the Wreck Act said:
The statute establishes a new duty arising after the sinking, and demanding as its condition nothing but the fact and notice of it to the wreck owner. Though the tug be a guilty party to the original mishap, the duty is not ordinarily upon her to provide against further loss; the statute imposes the duty upon the owner alone, and absolves the tug from subsequent consequences, which conceivably might otherwise be thought to be the proximate result of her original fault.
And then, if the owner does not carry out its obligations, the duty under the Wreck Act falls squarely on the United States Government.
This rule has been consistently followed.3 It must be stressed that no case to the contrary is cited in the majority opinion or in the briefs, and none has been found in *1149any circuit court. The case upon which the majority of the Court relies, Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), holds only that those who negligently cause the sinking of a vessel are financially responsible for the costs of removal. This is obviously a holding which follows the statutory scheme, as the upriver defendants concede. It is consistent with the established rule as the quotation from the opinion in Red Star Towing, supra, shows. The fallacy is in going beyond the sinking to make the negligent non-owners responsible for damage to the vessel which later collides with the sunken barge. For this there is no authority in the law. No prior holding exists which supports the majority opinion. I cannot concur in abandoning all prior precedent and creating a wholly new interpretation of the Wreck Act after 84 years.
The Second Circuit also has developed a rule that the owner under the Wreck Act has a positive obligation to remove the sunken vessel rather than abandon it. I agree with the majority opinion that this rule is not correct. It does not follow the wording of the statute. But I do not agree that this rule is the underpinning of the Red Star Towing rule. The two rules are not directly related. It is not necessary in this case to consider at all the relative responsibilities of Combi and the United States Government under the Wreck Act. It is clear from the Act that one or the other has the obligation to mark or remove, but in any event to eliminate the hazard to navigation caused by the sunken vessel.
The Wreck Act has an important purpose. It places the full and total responsibility of protecting navigation from the hazards of sunken vessels on the shoulders of the owners and the United States Government. These two entities, having totally failed in their responsibilities under the statute, now undertake to shift that responsibility to the upstream defendants. I can read this only as an escape not authorized by the statute and as a negation of important congressional policy designed to eliminate such collisions.
While I do not agree in full with the reasoning of the district court, because it established a rule which does not yield to reasonableness, its awarding of a summary judgment holding the upstream defendants not liable in this case was in my view clearly correct and should be affirmed by this Court.
. The text of the applicable section of the Act, § 409, is printed in full in footnote 6 of the majority opinion.
. Also not arising in this case is the freedom of the owner from application of the rule when the sunken vessel cannot be located after a full and faithful search. It is properly held in such a case that the non-negligent owner is not liable for failure to carry out the duties required by the Wreck Act. Allied Chemical Corp. v. Hess Tankship Co. of Del., 661 F.2d 1044, 1061 (5th Cir.1981).
. The interpretation which I urge was first established only a few years after the Act was passed in 1899, The Anna M. Fahy, 153 F. 866 (2nd Cir.1907), and has been consistently followed in the Second Circuit. In addition to Red Star Towing, see, e.g., Lowery v. The Tug Ellen S. Bouchard, 128 F.Supp. 16 (N.D.N.Y. 1955), aff’d on opinion of trial court, 229 F.2d 436 (2nd Cir.1956).