Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.
Petitioner, Samuel G. Rautbord, as the owner of a certain motor boat, filed a petition under Title 46 U.S.C.A. § 183, for exoneration from, or in the alternative for limitation of liability for damages resulting from an injury sustained by the claimant, Henry E. Ehmann, Jr., a minor, when the latter was struck by petitioner's boat operated by petitioner's minor son, Robert Rautboard. Henry E. Ehmann, Jr., the minor claimant, and Henry E. Ehmann, Sr., his father, had previously filed in the State Court of Cook County, Illinois, an action against petitioner and his son, Robert, the former for damages resulting from his injuries and the latter to recover monies expended in treating and caring for the former. Claimants answered the petition, a hearing was had and the court entered findings of fact and conclusions of law, and on September 11, 1950, entered a decree dismissing the petition. It is from this order the appeal comes to this court.
The accident giving rise to the controversy occurred while the boat was being driven on the Fox River in McHenry Township, Illinois. Preliminary to a discussion of the case on its merits, we are confronted with claimants' contention that the District Court was without jurisdiction and consequently this court is without jurisdiction to entertain the appeal. This contention rests upon the premise that there was neither allegation nor competent proof that the Fox River at the point where the accident occurred was part of the navigable waters of the United States. Claimants excepted to the petition for this reason, which exception was denied without prejudice to the right of the claimants to raise the issue in their answer. This was done, and it was specifically averred that the court lacked jurisdiction "without an allegation and proof on the part of the petitioner that the Fox River * * * was part of the navigable waters of the United States." This jurisdictional issue thus raised was recognized by all parties and the court, after making extensive findings relevant thereto, decided the issue against the claimants. After petitioner's appeal to this court, claimants moved for a dismissal on the same jurisdictional issue, which motion was denied without prejudice to the right to renew the motion at a hearing on the merits, and this has been done.
Petitioner contends, we think without merit, that claimants as appellees are not entitled to raise this issue because no cross appeal was taken from the court's adverse findings and decision thereon.It is a general rule that the question of the court's jurisdiction can be raised at any stage of the proceeding, and we know of no case which has held and we discern no reason why the same rule is not applicable in an admiralty proceeding. Claimants contend, also we think without merit, that the jurisdictional issue must be determined solely from the allegations of the petition. Assuming, without deciding, that the allegations of the petition were deficient in this respect, the fact is that the issue was recognized by all parties, was thoroughly explored, considered and decided by the court.
A more troublesome question arises from claimants' contention that there is no competent proof in support of the jurisdictional findings. This is dependent mainly upon the treatment to be accorded petitioner's request, twice made on the claimants pursuant to the provisions of Rules 32B and 32C of the General Admiralty Rules, 28 U.S.C.A., calling upon them to admit certain facts for the purpose of this cause only. The first request was made March 11, 1949, and claimants' response thereto was stricken by the court upon motion of the petitioner as being ambiguous and indefinite. Thereupon, claimants were given leave to file another response, which was likewise stricken for the same reasons. No further response was made by claimants and no leave was sought to so do. Thus, when the case went to trial, petitioner's request stood without response, and the court under the rules evidently treated the facts stated therein as admitted.
The facts which the claimants were called upon to admit pertained in the main to the historical navigability of the Fox River and claimants were apprised of the source materials wherein said facts could be verified. No good purpose could be served in a detailed discussion of the facts which claimants were called upon to admit, particularly in view of claimants' contention in the District Court that they were not required to respond on the ground that the request involved hearsay. That the facts which claimants were called upon to admit could have been properly introduced is hardly open to question. See Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S. Ct. 409, 65 L. Ed. 847; The Daniel Ball, 10 Wall. 557, 563, 77 U.S. 557, 563, 19 L. Ed. 999; Waterford Electric Light, Heat & Power Co. v. State, 208 App.Div. 273, 203 N.Y.S. 858. Such being the case, we see no reason why the rule requiring admission should not be given effect even though hearsay matter was involved. Historical documents and like matters are not ordinarily within the personal knowledge or recollection of the living and, even though they constitute hearsay, are, as the cited authorities show, properly admissible on an issue of the instant character. We cannot say that the court erroneously struck claimants' response in the form in which it was made. This left the claimants without any response, and under the rule both petitioner and the court had a right to treat the request as admitted. See Water Hammer Arrester Corp. v. Tower, 7 Cir., 171 F.2d 877, 879. And it follows that the findings of the court of evidentiary facts as a basis for its jurisdiction must be accepted and that claimants' contention as to a lack of jurisdiction must be and is denied.
On the merits of the case, a further statement of the facts is required, even though they are not seriously in dispute. The essential controversy revolves around the effect to be given such facts. As already shown, the involved boat was owned by petitioner and at the time of the accident was operated by Robert, a minor son, 13 1/2 years of age. The boat was known as a 1940 Garwood Runabout #59-A-176, with a 75-horsepower motor, having a maximum speed of thirty miles per hour. The boat was maintained and operated on a stretch of the Fox River between McHenry Dam in Illinois and Wilmot Dam in Wisconsin. About the hour of eight o'clock on the evening of August 30, 1947, it was with petitioner's consent being operated by Robert, who was accompanied by a neighbor girl of about the same age. While the boat was thus being operated, the claimant, Henry E. Ehmann, Jr., a minor of about the age of 16 years, walked into the river at a point known as Shalimar Subdivision. At that point there was a pier which projected ten or twelve yards into the river, and when claimant was in the river twenty or twenty-five yards beyond the pier he saw the boat coming toward him when it was twenty-five yards away. At that time, claimant dived under the water, evidently in an attempt to avoid being struck. The operator of the boat, so he testified, did not see the claimant at any time until he heard a thud against the boat and looking back saw someone in the water. Claimant's left foot had been struck, which caused a fracture of several small bones and the laceration of tendons. The personal injuries thus sustained give rise to the damages sought to be recovered. The value of the boat was $1,300.00.
The facts thus related are as found by the court. At this point and prior to a consideration of other findings, it appears pertinent to note the legal principles to be applied in determining whether the petition was properly dismissed.
Title 46 U.S.C.A.§ 183 provides in part as follows:
"(a) The liability of the owner of any vessel * * * for any loss, damage, or injury by collision * * * occasioned, or incurred, without the privity or knowledge of such owner * * * shall not * * * exceed the amount or value of the interest of such owner in such vessel * * *."
Referring to this provision, the court in Just v. Chambers, Executrix, 312 U.S. 383, 385, 668, 61 S. Ct. 687, 690, 85 L. Ed. 903, stated: "The statutory provision for limitation of liability, enacted in the light of the maritime law of modern Europe and of legislation in England, has been broadly and liberally construed in order to achieve its purpose to encourage investments in shipbuilding and to afford an opportunity for the determination of claims against the vessel and its owner."
And on the following page the court stated: "It looks to a complete disposition of what may be a 'many cornered controversy', thus applying to proceedings in rem against the ship as well as to proceedings in personam against the owner, the limitation extending to the owner's property as well as to his person. (Citing cases.) It applies to cases of personal injury and death as well as to cases of injury to property."
And it appears to be rather firmly established that the owner of a boat operated by another party is entitled to exoneration from all liability for damages occasioned without fault or negligence on the part of the operator, and to a limitation of liability even though the damages were occasioned by the fault or negligence of the operator, providing the incident giving rise thereto was "without the privity or knowledge of such owner." This was the effect of the holding in The 84-H, 2 Cir., 296 F. 427, certiorari denied 264 U.S. 596, 44 S. Ct. 454, 68 L. Ed. 867. On page 431 of 296 F., the court stated: "The whole doctrine of limitations of liability presupposes that a liability exists which is to be limited. If no liability exists there is nothing to limit.And in a proceeding to limit liability two duties are imposed upon the court. The first is to ascertain whether any liability exists. If it is found to exist the second duty arises, which is to ascertain whether the loss or damage was occasioned or incurred without the "privity or knowledge' of the owner of the ship. If no liability is found to exist, the ...