(concurring in the result).
Immediate decision requires only that we hold the amended answer sufficient, and I do not wish to be understood as going further. But the complete reliance herein had upon Stevens v. The White City, supra, would seem to say that here, too, there would be no presumption or prima facie case for the petitioner to meet — not even when it was in sole charge of the catamarans with the pilings thereon for two days, during which time the loss occurred. Actually that case does not go so far; and the pains the Court takes to . emphasize the lack of surrender of control in the ordinary towage contract and to rely on that very fact as showing no presumption of negligence seem to me significant, as Professor Robinson points out, Admiralty, 1939, 666, 667. This significance is heightened by the fact that L. Hand, J., had suggested below, The White City, 2 Cir., 48 F.2d 557, that, under the precedents in this circuit, the full burden of showing negligence remained on the owner, even if he had not retained control. Moreover, we have held that a prima facie case, calling for explanation, was established by showing the grounding of a scow in tow to a tug, The Stirling Tomkins, 2 Cir., 56 F.2d 740, certiorari denied 286 U.S. 556, 52 S.Ct. 580, 76 L.Ed. 1290; The Reichert Line, 2 Cir., 64 F.2d 13; and just a few days ago we carefully refrained from working out the relation between those cases and The White City. Waldie v. The Peter C. Gallagher, 2 Cir., Jan. 27, 1942, 125 F.2a 568.
Here the craft seem of the type where control is naturally given up, and the contract should be interpreted with that in mind. Indeed, the original answer alleged that the craft were in the “sole charge” of petitioner, having been delivered to it as “bailee”; and this might well have been held a sufficient allegation to raise the problem — though we need not stop on that now, since the amended answer covers the point of control with precise averments. Where the tug has the only control and custody there is and turns up after two days with craft injured and cargo lost, it would seem not unreasonable to say that there was something to explain. That was not The White City case; and we should not permit it to be foreclosed in advance of trial on a narrow pleading issue.