Opinion
October 20, 1934.
Martin Conboy, U.S. Atty., of New York City (Mary R. Towle, Asst. U.S. Atty., of New York City, of counsel), for the United States.
Thomas A. McDonald, of New York City, for defendant.
Action by the United States of America against the Bouchard Transportation Company, Incorporated. On motion to dismiss complaint.
Motion denied.
Under section 409 of title 33, U.S. Code ( 33 USCA § 409), the owner of a sunken craft is under a positive duty "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 it has been held in construing this section that the word "immediately" means "within a reasonable time." The Anna M. Fahy (C.C.A.) 153 F. 866, 867; The Macy (C.C.A.) 170 F. 930. In the complaint it is alleged that the defendant was the owner of the sunken oil barge, and wholly failed to mark the wreck; that on September 13, 1931, the Lighthouse Service marked the wreck with a buoy, which was maintained until the wreck was abandoned on September 19, 1931; and that the expense incurred by the Lighthouse Service in so doing was $257.40. Manifestly, this states a cause of action, and the motion to dismiss is accordingly denied.