Res judicata: effect of foreign judgment. ship to another foreign ship in foreign waters, the Admiralty Court refused to entertain the action (d). The judgment of a competent foreign Court (and for this purpose Irish, Scotch, and Colonial Courts are foreign Courts) delivered before action brought in this country (e) upon the merits (f) of a collision, given in the presence of both parties, is, if final and conclusive (g), a bar to an action in this country between the same parties (h) for the same collision (). The Courts of this country will not entertain an action in such a case, although fresh evidence may have been discovered, and although all the facts were not before the foreign tribunal (j); nor because the foreign Court was misinformed as to English law (). If the parties are not the same, as where the ship-owners sue in one country and the cargo-owners in the other (); or if the foreign tribunal had not jurisdiction (m); or if the plaintiffs in this country were not subjects of, nor resident, nor present in the foreign country, and did not as plaintiffs abroad select the foreign tribunal (): or if the foreign judgment went by default (o); or was against natural justice, as where the foreign judges were interested (d) The Ida, Lush. 6. It has been pointed out that this case was decided before 24 Vict. c. 10, came into force. (e) The Delta, P. D. 393. See Houstoun v. Marquis of Sligo, 29 Ch. D. 448. (f) The Delta, ubi supra; Harris v. Quine, L. R. 4 Q. B. 653. (g) Henderson v. Henderson, 3 Ha. 117; Plummer v. Woodburn, 4 B. & C. 625, 637; Frayes v. Worms, 10 C. B. N. S. 149; Nourion v. Freeman. 15 App. Cas. 1; (decision on collateral points not binding) Concha v. Concha, 11 App. Cas. 541. (h) As to what is a judgment between the same parties, Arnison V. Smith, 40 Ch. D. 567. (i) See Phillimore's Internat. Law, 2nd ed. IV. 733 seq.; West lake's Priv. Internat. Law, 376; (k) Godard v. Gray, L. R. 6 Q. B. 139. (1) Cf. The Pennsylvania, 19 Wall. 125; The Pennsylvania, 3 Mar. Law Cas. O. S. 477. As to the effect of a foreign judgment in rem, see Castrique v. Imrie, L. R. 4 H. L. 414. (m) The Griefswald, Swab. 430; Havelock v. Rockwood, 8 T. R. 268. (n) General Steam Navigatian Co. v. Gillou, 11 M. & W. 877, 894. See also The Griefswald, ubi supra. (0) The Delta, The Erminia Foxolo, 1 P. D. 393. parties (p); or where the defendant had never been summoned (q); or was in defiance of the comity of nations, as where the foreign court refuses to recognise title acquired by the law of England (); or if the foreign judgment was obtained by fraud (s),—it is not a bar to an action in this country, and in an action here the foreign judgment in such cases is not admissible in evidence (t). A judgment in personam is, it seems, a bar to an action by the same plaintiff in rem (u). A foreign judgment may be pleaded in bar, so long as it remains unreversed, and notwithstanding that an appeal is pending (a). whether it can ship here. The City of Mecca, a British steamship, was in collision Foreign judgon the high seas with a Portuguese ship. The City of Mecca ment in rem; was arrested in Portugal and found by the Portuguese be enforced by arrest of Court to be in fault for the collision. Owing to some irregularity in the proceedings she was released from arrest by the Portuguese authorities, and came to England, the foreign judgment remaining unsatisfied. She was arrested in England by the plaintiffs in the Portuguese action; and it was held by Sir R. Phillimore that international comity required that the English Admiralty Court should enforce the decree of the Portuguese Court (y). In the Court of Appeal it appeared, for the first time, that the Portuguese action was in personam and not in rem; and it was held, in consequence, that the foreign judgment, not having created Criminal liability of foreigner. a maritime lien, the vessel had been wrongly arrested in the Admiralty action in this country (≈). The criminal liability in the courts of this country of a foreigner, in respect of a collision whereby a British subject or a foreigner is killed or injured, is considered in another chapter (infra, p. 299). betwe. (*) 6 P. D. 106. CHAPTER X. COMPULSORY PILOTAGE. A PILOT whom the owner or master of a ship voluntarily Pilot volunemploys to navigate the ship is the servant of the owner tarily employed is the for that purpose; the owner is answerable for a collision owner's sercaused by his fault or negligence (a), and his ship is liable in Admiralty. In some waters and under certain circumstances the law requires a ship to be placed in charge of, and navigated by, a qualified or licensed pilot; and in such cases it is a statutory offence (b) on the part of the owner or person in charge of the ship not to take a pilot on board. A pilot taken under these circumstances, called a "compulsory pilot, is held to be placed in charge of the ship by the law, and to supersede the master in the conduct of the ship so long as she is in pilotage waters. He is not the servant or agent of the owner; and for a collision caused entirely by his negligence neither is the owner answerable at law nor the ship in Admiralty. In such a case the remedy of the injured person is against the pilot alone (c). vant. Aliter where the pilot is placed in charge by the law. Pilotage is held to be compulsory, so as to exempt What constiowners from liability for the acts of the pilot, in all British tutes compulsory pilotage. waters, and for all ships, in and for which the employment of the pilot is enforced by (a) See The Maria, 1 W. Rob. 95, 108; The Eden, 2 W. Rob. 442. (b) See note (d), infra. (c) See Stort v. Clements, Peake, 107, as to the liability of the pilot; see also The Octavia Stella, 6 Asp. M. C. 182, where the damage was occasioned to an oyster bed. penalty (d), or where the (d) Usually double the amount of the pilotage charge, or in some cases a sum not exceeding 1007.; 17 & 18 Vict. c. 104, ss. 353, 354. Under 6 Geo. 4, c. 125, s. 59, there was in some cases an additional penalty. The pilotage authority is not liable. H.M. ships not subject to compulsory pilotage. Owner liable for collision by fault of master hold ing pilotage certificate. pilotage charge can be recovered against the ship or her owners, whether the pilot is employed or not (e). In some foreign waters pilotage is compulsory in the sense that payment of pilotage charges is compulsory, but the shipowner is nevertheless liable for the pilot's negligence. This difference in the owner's liability, due to the different position and authority of the foreign pilot, is explained below (pp. 231, 232). Attempts have in some cases been made to recover from the pilotage authority damages for a collision caused by the fault of a licensed pilot, but with little success (ƒ). In one (Scotch) case, however, where the circumstances. were peculiar, a harbour authority was held liable for the negligence of a person acting as pilot, on the ground that he was their servant. The harbour authority, having power to license pilots under the Merchant Shipping Act, 1854 (ss. 330-388), was held liable for injury to a steamer entering the harbour, caused by the fault of a boatman, not licensed as a pilot, who was acting in charge of the steamer as pilot, and was employed by the defendants, the harbour authority (g). Queen's ships are not subject to compulsory pilotage (1). Masters and mates of home-trade passenger ships may obtain from pilotage authorities certificates enabling them to pilot a specified ship or ships within the waters over which the pilotage authority has jurisdiction (). By the London Trinity House these certificates are granted to masters and mates, enabling them to pilot any ship belonging to the same owner (). For a collision caused by the negligence of a master or mate holding such a certificate the owner is liable. (e) Carruthers v. Sidebotham, 4 M. & S. 77; The Maria, 1 W. Rob. 95, 109; The Arbutus, 2 Mar. Law Cas. O. S. 136; The Hibernian, L. R. 4 P. C. 511. (f) See supra, p. 102. (g) Holman v. Irvine Harbour Trustees, 4 Sess. Cas. 4th ser. 406. (h) 17 & 18 Vict. c. 104, ss. 4, 353; Geo. 4, c. 125, s. 86. (i) 17 & 18 Vict. c. 104, ss. 340344, 355; The Killarney, Lush. 202; The Earl of Auckland, Lush. 161, 387. (k) See Order in Council of 16th July, 1857. |