with whom GEE; Circuit Judge, joins, dissenting:
The opinion for the Court has stated the procedural posture of this case. It hás also carefully defined the single issue which is before us. The opinion’s assumption, however, of the facts upon which the issue is to be resolved and the legal conclusion to be drawn from those facts is faulty and leads to an incorrect result.
In this opinion I do not undertake to spell out the full legal support for my views. This was done in my dissenting opinion to the panel decision in this case. Nunley v. M/V DAUNTLESS COLOCOTRONIS, 696 F.2d 1141, 1147 (5th Cir.1983).
We properly assume in the decision of this case that the upriver defendants, enumerated in note 2 of the opinion for the Court, p. 457, supra, were guilty of negligence in causing the original maritime accident in 1974. In that accident, the barge owned by COMBI sank when the barges upriver broke loose and in floating down the Mississippi River hit the COMBI barge, tore it loose from its moorings, and sank it. We also must assume that neither the owner of the barge, COMBI, nor the United States Government were negligent in the original maritime accident leading to the wreck of the COMBI barge.
The opinion for the Court is correct as well in recognizing that the resolution of the issue in dispute is dependent upon the application of the Wreck Act, §§ 15, 16,19, *468and 20 of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 409, 411, 412, 414, 415). It is the Court’s interpretation of the Act and its application to the maritime events involved in this case which compels this dissent. The opinion for the Court interprets the Act in a way which is contrary to every single case which has litigated the issue which is before this Court.
While the text of the critical statutory provision, § 15 of the Act, 33 U.S.C. § 409, is not a model of clarity in draftsmanship, it yields the proper interpretation that the responsibility for eliminating the hazard to navigation created by a sunken vessel lies wholly upon the owner of the vessel or the United States Government regardless of whose negligence caused the sinking. Just eight years after the passage of the Wreck Act, the Second Circuit in THE ANNA M. FAHY, 153 F.2d 866 (2d Cir.1907), so interpreted the Act. It placed the full burden to mark and if necessary remove a sunken vessel on the owner of the vessel or on the United States Government. The law as to this issue was then developed in the Second Circuit through a series of decisions which have never been challenged by a court decision until this case. While it is true that all of the law interpreting the Wreck Act on this issue was developed in the Second Circuit, it remained as accepted law throughout the United States until the DAUNTLESS COLOCOTRONIS case which is before us.
The most commonly quoted statement of the rule is found in Judge Learned Hand’s decision in Red Star Towing and Transportation Co. v. Woodburn, 18 F.2d 77 (2d Cir.1927). This was a case just as the case sub judice in which the issue was whether a tugboat which negligently caused a sinking could still be held liable by the vessel that hit the submerged wreck as opposed to the sole liability flowing from the owner of the submerged wreck or the United States Government. As a remarkable factual strengthening to the ruling of the Court, the tugboat company which caused the negligent sinking is the same one that successfully achieved recovery against the owner when another one of its tugboats ran into the submerged wreck just a few days later. Yet the Court applied the rule of statutory liability on the owner without liability on the perpetrator of the negligent sinking.
In the course of the opinion Judge Learned 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. Id. at 79.
The opinion for the Court is correct in stressing that the negligent upriver defendants were liable for the costs of marking and removing. And this is all that Wyan-dotte Transportation Co. v. United States, 383 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), held which is relevant to this case. Obviously this holding follows the statutory scheme and is consistent with the established rule. 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 this view taken by the Court. All of the detailed reasoning of the opinion of the court skirts around this fundamental fact.
This case involves a judgment on the pleadings, but this does not restrict the application of the settled principles of the Wreck Act. We need not speculate what the situation might be if the collision with the submerged vessel took place shortly after the sinking. The pleadings establish that in this case the collision took place more than three years after the sinking. If either the owner or the United States Government had carried out its obligations under the Wreck Act, there would have *469been no collision of the DAUNTLESS CO-LOCOTRONIS with the sunken barge. It would have been marked or removed and at the expense of the negligent upriver defendants. But under the Wreck Act the obligation of the upriver defendants does not extend beyond that liability. It does not reach the consequent damage in a later collision with the sunken vessel because of the failure of the owner or the United States Government to carry out its statutory obligations.
The Wreck Act is obscure with respect to the right of the owner to abandon the wreck, thereby forcing the obligation upon the government to take over marking and removing if the sunken vessel is an obstruction to navigation. But the dispute between the owner and the United States Government as to their respective obligations under the statute is not before us. The upriver defendants in pleading their defense did not have to establish whether it was the owner or the United States Government which was liable. All they had to plead was that under the Wreck Act they were not.
The assumption by the opinion of the Court that the liability of the owner or the United States Government under the Wreck Act is based upon negligence is not correct. It is quite clearly not. based upon negligence as the statute itself reveals. The opinion of the Court rewrites the statute when it bases its interpretation on negligence and upon the later rationalization based upon the development of comparative negligence.
The Wreck Act creates a statutory obligation, as we held in Allied Chemical Corp. v. Hess TankShip Co., 661 F.2d 1044, 1061 (5th Cir.1981). Then as a matter of defense, and defense only, the owner (and it can be assumed the United States Government) can come in and prove that the location of the wreck was not known and that an attempt to locate the wreck was diligently pursued. Ibid. By way of analysis, it perhaps could be said that establishing this defense requires the proof of non-negligence in the attempt to locate the wreck. In any event, this defense of no statutory liability if the owner or the government cannot find the wreck is a proper gloss added to the Wreck Act by judicial interpretation. But it is far off target to claim it establishes that the obligation to mark or to remove the wreck placed upon the owner or the United States Government is an obligation grounded in negligence. It is strictly a statutory obligation regardless of negligence.
The opinion of the Court finds no justification for a holding of “strict liability” upon the owner and seems to view strict liability with distaste. One cannot read the Wreck Act without recognition that it calls for strict liability upon the owner to carry out its obligations without regard to its fault. Further, the opinion rests its conclusion in part upon a later development in the law — comparative negligence. Let it be said that an equally noteworthy development in the law is the broad acceptance of the concept of “strict liability”. The Wreck Act is an early example of a strict liability statute. But we can hardly view with dismay today the application of strict liability nor justify a novel and tortured statutory interpretation to avoid the application of strict liability.
If the owner and the government both could prove that they never knew of the location of the sunken barge and that they made diligent and necessary good faith efforts to locate it, they could not be held liable under the Wreck Act. In that narrow circumstance the holding of the majority of the Court would be correct. If it was impossible for the owner or the government to obey the Act, they could not be held liable for violating it. This possibility is not present in this case because the owner’s brief reveals the likelihood of some knowledge, and the government does not deny knowledge of the location of the sunken barge.
The majority opinion goes far beyond these narrow circumstances under which the owner or government would not be liable by introducing a concept of negligence into the requirements of marking and *470removal under the Wreck Act. Instead, escape from liability under that Act is limited wholly to the defense of proving a diligent and good faith attempt to comply with the Act by locating the wreck. That exception no more creates a base of negligence in the Wreck Act than would the defense of non-ownership by our alleged owner. Another analogy would be a failure to file an income tax return because of a disputed conclusion that there was no obligation to do so. The right to try to establish such a defense does not convert the basic filing obligation to an issue of negligence.
The Wreck Act has a significant public purpose. It places the full and total responsibility of protecting navigation from the hazards of sunken vessels on the owners of those vessels or the United States Government. These two entities wholly failed to carry out their responsibility under the statute. They now undertake to shift that responsibility to the upstream defendants. To allow them to do so is a negation of important congressional policy designed to eliminate such collisions. Allowing the owner or the government to shift liability back to the upstream defendants undercuts the statutory purpose, wholly independent of negligence, of forcing the owner or the government to carry out the obligation to abate navigational hazards.
I cannot accept the judicial legerdemain which creates this new rule of law and overturns an established statutory interpretation. The district court was applying not only the established law but also the manifest congressional policy in holding that the collision of the DAUNTLESS COLOCO-TRONIS with the submerged COMBI barge was caused solely by the failure of the owner or the United States Government to carry out statutory obligations recognized for over three-quarters of a century. The decision of the district court should be affirmed.