default has not been executed within six months from its being pronounced, and it consequently becomes lapsed (non avenu: See Code de Procedure, sect. 156). Neither of the judgments before-mentioned has been executed either by the French or Italian tribunals. French and Italian law are the same upon these matters.

The remaining facts and dates are fully stated in the judgment.

Milward, Q.C. and E. C. Clarkson, for the Erminia Foscolo.-We ask for judgment notwithstanding the defence made by the owners of the Delta. As far as relates to the owners of the cargo of the Erminia Foscolo, they never were summoned, and had no notice of the foreign proceedings, and hence cannot be bound by them. The present action was commenced (18th Nov. 1871) before they obtained judgment in the French actions (22nd Dec. 1871), and they appeared in this action without protest (20th Nov. 1871) and gave bail and then they subsequently (15th Jan. 1872) commence a cross action in this court against the Erminia Foscolo. In none of their proceedings do they mention the French judgments until the answer in the action against the Delta. In the petition against the Erminia Foscolo there is no mention of those proceedings. These judg ments are a good answer to the action if they amount to an estoppel, and a judgment, to be an estoppel, must be a judgment on the merits of the case. There is no case which establishes that a judgment other than a judgment on the merits is an estoppel. Again, before a judgment can be pleaded by way of estoppel, such estoppel must have been operative at the time of the institution of the cause in which it is pleaded; it cannot become an estoppel during the process of the cause. There was no judgment in the French tribunals until after this cause was instituted in this court, and consequently there can be no estoppel. The owners of the Delta should have followed the course indicated in The Mali Ivo (L. Rep. 2 Adm. & Ecc. 356), and have put the owners to their election as to which action they would continue, and should have pleaded lis alibi pendens, not res judicata. There was no judgment in Italy until 4th June 1872, that is, after the defendants' answer was filed (22nd March 1872), and consequently at that time there was no judgment in Italy. An English court will examine into a foreign judgment before giving it effect: (Don v. Lippman, 5 C. & F. 1.)

The Admiralty Advocate (Dr. Deane, Q.C.) and R. E. Webster, for the Delta.-This is res udicata. There have been judgments by default against plaintiffs, and these are binding against them, and must be acted upon by English courts so long as they are in accordance with French law, and there is a duty upon the plaintiffs to obey those judgments: (Schibsby v. Westenholz, L. Rep. 6 Q. B. 155.) That they are binding upon the plaintiffs in accordance with French law is clear from the evidence laid before the court. There was a duty upon the plaintiffs to obey the judgments, because they themselves were suing the defendants in respect of this same collision, and were constructively present in Marseilles by their agent or advocate when the actions in the Tribunal of Commerce were commenced and judgment was given. Moreover, in consequence of the treaties existing between France and Italy, the judgments became Italian judgments, and the plaintiffs were Italian sub

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jects and resident in Italy, and hence there was a duty to obey those judgments. A judgment not appealed from, whether by default or not, pisses into res judicata, and when once it is res judicata it bars further proceedings between the same parties, and is a good plea to an action brought by the party who has been condemned.

Marten's Droit des Gens, vol. 1, s. 94;
Westlake's International Law, p. 376;
Story's Conflict of Laws, 88. 598. et seq.;

General Steam Navigation Company v. Guillou, 11
M. & W. 877;

Dig. c. 44, tit. I. II., De exceptionibus, De exceptione rei judicatæ.

A judgment by default in a foreign court cannot be questioned by the party against whom it has passed, where he has subjected himself to the jurisdiction and has had notice of the proceedings, and even in some cases where he has had no notice:

Tarleton v. Tarleton, 4 M. & S. 20.

Copin v. Adamson, L. Rep. 9 Ex. 345; L. Rep. 1_Ex.
Div. 17; 31 L. T. Rep. N.S. 242; 33 L. T. Rep.
N. S. 860;

Vallee v. Dumergue, 4 Exch. 290.

[Sir R. PHILLIMORE.-It seems clear that a foreign judgment on the merits of a case may be an estoppel, but how can that be the case where there has been no decision on the merits ?] Where there has been notice to the party in default he must answer for his own default.

Milward, QC., in reply.-No judgment can be an estoppel unless the case has been contested on the merits (Langmead v. Maple, 17 C. B., N.S., 255.)

Cur. adv. vult.

July 25, 1876.-Sir R. PHILLIMORE.—These are cross causes of collision, brought originally in the High Court of Admiralty; the first by the owners of the barque Erminia Foscolo, and the owners of the cargo, against the steamship Delta; the second by the owners of the Delta against the Erminia Foscolo.

In the suit against the Delta the proceedings, besides narrating in the ordinary form the incidents of the collision, raise a further issue, or further issues, in the following manner. Articles 7 to 15, inclusive, of the answer as amended, are as follows: (The learned judge then read those articles of the answer as given above.) Articles 3 to 7, inclusive, of the reply, as also amended, are as follows: The truth of the allegations of the answer is denied, and it is further stated: (the learned judge then read the reply as given above.) A rejoinder was put in, which was as follows: (as given in the rejoinder set out above.) The pleadings in the Erminia Foscolo merely raise the issue as to the blameworthiness of the two vessels.

When the causes came on for hearing, by arrangement, the last question was determined first, and in the result I then found the Delta alone to blame for the collision. The point, however, remains-on which opinions of foreign jurists and others have been since taken, and which was finally argued on the 10th of this month-whether the question in dispute between the parties had not previously been determined by another competent court, so that the matter was in the category of res judicata.

The collision occurred on 11th Aug. 1870, off Gibraltar. On 9th Sept. 1871, the captain and

owners of the Delta instituted a suit in the Court of Commerce at Marseilles against the captain and owners of the Erminia Foscolo. On 12th Sept. a suit was instituted in the same court by the owner of the Erminia Foscolo against the owners of the Delta. Some adjournments of the two suits were had, and on the 22nd Dec. the tribunal, in the suit brought against the captain and owners of the Erminia Foscolo, pronounced judgment against the defendants, for default of appearance, condemning them in the plaintiffs' damages and costs, On the same day the tribunal, in the suit brought against the owners of the Delta, pronounced judgment against the plaintiff for default of prosecution, condemning him in costs. By a treaty of 1760, between France and the kingdom of Sardinia, the Supreme Commercial Courts of either country were to execute the decrees of each other. A petition was presented by the owners of the Delta to the Court of Appeal at Aix, praying that court to put in force the provisions of this treaty by sending letters of request (requisitiones-lettres rogatoires) to the Court of Appeal at Genoa. Such letters were accordingly decreed by the court at Aix on 12th Feb. 1872. On 24th Feb. a citation out of the Court at Genoa was served on the owners of the Erminia Foscolo; a further citation seems to have been served on the 12th of the month, and on the 4th June the Court at Genoa, having heard arguments on both sides, decreed that executive justice must be given to the judgment of the Court of Commerce, and condemned the owners of the Erminia Foscolo in costs. Some attempt seems to have been made to execute this judgment, but ultimately it remained nnexecuted. In the meantime the suits in the High Court of Admiralty had already been instituted. That against the Delta was instituted on the 18th Nov. 1871, and an appearance was entered by the owners of the Delta on the 20th, that appearance not being under protest, but absolute. The suit against the Erminia Foscolo was insti tuted on the 13th Jan. 1872, and an appearance was entered on the same day. The judgments in the Court of Commerce were not rendered till the 22nd Dec. 1871, so that at the time of the institution of the suit against the Delta and of the appearance of the owners of the Delta the suit in the Court of Commerce had not passed into res judicata, but was only a lis alibi pendens. After the judgment in the Court of Commerce the owners of the Delta instituted this suit here against the Erminia Foscolo, and filed pleadings in their suit, in which no mention is made of the judgment of the Court of Commerce.

On the question of foreign law, both French and Italian advocates were examined. Their evidence left it at last doubtful whether the judgment of the Court of Commerce, rendered as it was in default of appearance, never having been executed, would now have in France or Italy the force of a res judicata. But I think it unnecessary to go into their evidence in detail, as I am of opinion that this defence must fail for two reasons. The first is, that at the time when the suit against the Delta was begun here there was confessedly no res judi cata, there was only a lis alibi pendens. If the owners of the Delta had wished to escape from having two suits against them for the same matter brought to a hearing, they should have put the

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owners of the Erminia Foscolo to their election, compelling them to abandon one or either of the suits, according to the rule laid down by me in The Mali Ivo (L. Rep. 2 Adm. & Ecc. 356), and quite recently applied in The Cattarina Chiazzaro: (L. Rep. 1 P. D. & A. 368; 34 L. T. Rep. N. S. 312; ante p. 170.) As regards the suit against the Erminia Foscolo, it was brought by the owner of the Delta while a foreign lis was pending. They cannot be heard, therefore, to object that that lis is a bar to the decision on the merits of the suit. The second reason is, that the foreign judgment not having been rendered on the merits of the case, but on matter of form only, cannot be set up as a bar to a decision on the merits. It is, however, upon the former ground that this judgment is principally founded.

I have already pronounced the Delta to be alone to blame for the collision. I must now pronounce that the further defence raised on behalf of the owners of the Delta is not sustained, and that they must be condemned in the damages occasioned by the collision, and in the costs of the suit, and I must dismiss the suit against the Erminia Foscolo with costs.

Solicitor for the owners of the Erminia Foscolo, Thomas Cooper.

Solicitors for the owners of the Delta, Gellatly, Son, and Warton.

Tuesday, May. 16, 1876. Re SMITH AND OTHERS.

Practice-Collision upon high_seas-British and foreign ship-Jurisdiction-Service out of the jurisdiction-Rules of the Supreme Court, Order II. r. 4; Order XI. r. 1.

Where an English ship is damaged in collision upon the high seas, outside any territorial jurisdiction, by a ship owned by a foreign company established abroad, there is no power to issue a writ for service out of the jurisdiction upon, or of which notice is to be given out of the jurisdiction to, the foreign company, and claiming damage in respect of the collision.

Semble, that "within the jurisdiction "in Orders II. and XI. of the Supreme Court Rules, means within the territorial jurisdiction.

IN Jan. 1876 the British steamship City of Mecca, being about nine miles from the mouth of the river Tagus, and upon the high seas, came into collision with the steamship Insulana, belonging to the Empreza Insulana Company-a company owning steamships and carrying on their business at Lisbon. Considerable damage was done to the City of Mecca.

An application was made by summons in chambers, on behalf of the owners of the City of Mecca (Smith and others), under the Rules of the Supreme Court, Order II., rule 4, and Order XI., rule 1, that a writ endorsed with a claim for compensation for the damage so done might be issued for service out of the jurisdiction upon, or of which notice might be given out of the jurisdiction to, the Empreza Insulana Company.

In an affidavit used in support of the summons, it was stated that the Empreza Insulana Company carried on business at Lisbon, that the members of the company were not British subjects, and that the Insulana was registered at Lisbon as belonging to the directors of the company.

E. C. Clarkson, on behalf of the owners of the City of Mecca, contended that the collision having occurred on the high seas, which is within the jurisdiction of the Admiralty, the act done was done within the jurisdiction. Hence, under Order XI., rule 1, and Order II., rule 4, of the rules of the Supreme Court, the court has power to order the writ to issue, and can direct service of notice of the writ out of the jurisdiction.

Sir R. PHILLIMORE.-In this case the court would, if the Insulana could have been arrested within the territorial jurisdiction, have exercised jurisdiction so far as the res was concerned, but it would under the old law, have possessed no jurisdiction in personam over the owners of the vessel, unless they could have been served with a citation within the territorial jurisdiction, I do not think that the Legislature, in enacting the 1st rule of the 11th order in the schedule to the Judicature Act, contemplated any alteration of the law in cases similar to the present, and, in the circumstances, I am not satisfied that I can grant the leave asked for. If I acceded to the application I should be exercising a jurisdiction in personam over persons for doing an act at a time when they were without the territorial jurisdiction of this country. Motion refused.

Solicitors for the owners of the City of Mecca, Gellately, Sons, and Wharton.

Thursday, Aug. 3, 1876.

THE THOMAS LEA.

Sailing rules-Regulations for preventing collisions at sea-Rule 20.

When a vessel is aground in a place where her ordinary riding light cannot be distinguished by approaching vessels, and where vessels are not expected to lie, it is her duty to exhibit a light on a mast or some elevated position, and to have a

lookout to give warning to approaching vessels of her position by the best means in her power. THIS was a cause of damage instituted by the owners of the screw steamer Belmont against the screw steamer Thomas Lea.

There was no cross cause.

The Belmont was a vessel of 576]tons register, belonging to the port of Sunderland, and the Thomas Lea was a vessel of 486 tons register, belonging to the port of London.

The collision occurred on the 19th Jan. 1876, about 8.15 p.m. The Belmont was then lying on the ground at the entrance of the tidal basin of the Sunderland Docks, and the Thomas Lea was about to enter the basin, inward bound from London.

It was alleged by the plaintiffs that those on board the Thomas Lea did not keep a proper lookout, and by the Thomas Lea that the Belmont neglected to give proper warning of her peculiar position, and that a light alleged to have been shown over her stern was either not exhibited at all or of insufficient power, and obscured and reddened by smoke on the glass of it.

Webster and Phillimore, for the plaintiffs. Butt, Q.C. and Myburgh, for the defendants. Sir R. PHILLIMORE.-This is a case of collision between two steamships near the tidal basin in

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the river Wear, at the entrance of the Sunderland South Dock. The plaintiffs in this case, the owners of the Belmont, had finished loading her cargo, on the morning of the 19th Jan., and she drew 16ft. and 3 or 4 inches of water. She seems to have had two courses before her either to have gone through the South Dock, or to have at once straightened down the river over the bar-she elected the former. It was a neap tide, and as the vessel was entering the basin she took the ground upon the eastern side of it; she remained fast, lying a little on her side, her head towards the dock gates, and her stern projecting into the river. She took the ground at 10 a.m., and remained fast till 10 p.m. The collision took place at 8.15 p.m. At this time a steamship, the Thomas Lea, was entering the river and going into the South Dock. The wind was blowing very hard from the S.W., and the night was dark and cloudy, though lights could be seen at some distance. The Thomas Lea had her proper lights up and burning, but there is a dispute as to whether she had a good lookout. Her own account is, that "whilst rounding to out of the river into the harbour, her engines were going easy astern, and they had but little headway on her," about half a knot, and she ran into the Belmont, striking her about 20ft. from the stern upon the port side.

Now, on the one hand, it is urged by the Belmont that the collision was in consequence of the want of a proper lookout on board the Thomas Lea; and, on the other, it is contended by the Thomas Lea that it was caused by the want of due notice being given, by proper signals, to vessels entering the harbour, of the position of the Belmont.

There can be no doubt that it was the duty of the Belmont, whilst she remained in this position at the entrance of the dock, to take every precaution in her power to warn other vessels entering of that position. She says she satisfied put up two lights, one in her starboard fore rigthat requirement in the following way: she ging, and the other 3ft. above the wheel at the stern, the wheel itself standing 2ft. from the deck. It is admitted that the light in the fore rigging conld have no effect in apprising vessels entering of the position of the Belmont; as it could objects on shore; it may, therefore, be left out of not be seen by them in consequence of intervening consideration. The only question then is, whether, if she had a light over the wheel or the stern, and if that light was of sufficient power in itself, and at the time in a proper condition, and if so, whether that was a sufficient precaution. Now the first duty of the Belmont, in the circumstances, was to have a good lookout. The mind of the court, assisted by the attention of the Elder Brethren, has been anxiously directed to an examination of that point. The mate was on shore, and his orders were to put up two lights, one aft and one in the starboard fore rigging; the anchor watch was kept by a sailor who has not been examined, and who is said to be on a foreign voyage. Where was the second mate ? It seems that common prudence would have suggested that he should be at the stern looking out. He was not there. He was walking up and down the deck, forward and aft, and he gives this extraordinary evidence, that before he had taken a walk forward he saw the masthead light of a steamer coming up the river, five or six

miles off; and when he returned from his walk he found the masthead light of a vessel pretty close, coming right into his port quarter. What did he do? Did he take any steps when he first saw the vessel coming up, and knew he was in an anomalous position where no one could expect a vessel to be? He did nothing whatever. In my judgment -and the Elder Brethren are of the same opinion -he ought to have blown the whistle, and taken every precaution to announce his position, instead of which, the converse is the case, and hence the result. What measures were taken to avoid the collision? None whatever; the only precaution alleged was the placing of the light aft, and it becomes important to consider the evidence with regard to that light. Assuming, in favour of the Belmont, that the light was there, it is extremely doubtful to me whether it was of sufficient quality and proper colour for the purposes for which it was intended. We are, moreover, of opinion that it was not placed in a proper position, as it ought to have been on a mast, or in some way elevated much higher above the deck than it was; and I have already said that even if the light were properly placed, there ought to have been a better lookout, and other modes adopted of warning an approaching vessel of the position in which the Belmont was lying.

The result at which I have arrived, with the advice and assistance of the Elder Brethren, is, that the Belmont has not shown that she used the precautions it was incumbent on her to adopt in her peculiar position, and that unquestionably she had a bad lookout, and, therefore, she cannot recover in this suit. I dismiss her petition with

costs.

Solicitors for the plaintiffs, Lowless and Co. Solicitors for the defendants, Gellatly and Co.

June 13, July 20, and Aug. 1, 1876.
THE STAR OF INDIA.

Damage by collision-Measure of-Damages-
Loss of charter party.

In estimating the loss sustained by a ship in a collision, a charter-party previously entered into contingent on the arrival of the ship at a fixed date at another place and cancelled by the charterers by reason of the delay occasioned by the collision should be taken into consideration, the amount recoverable being the freight that would have been earned under the charter-party, less deductions for freight actually earned after repairs and for expenses and saving of wear and tear, &c., which would have been incurred in the performance of the charter party.

In addition to such damages the shipowner is entitled to demurrage during the time he is detained for repairs at the usual rate allowed to ships. A CAUSE of damage was instituted by the owners of the Cheviot against the Star of India, for damages sustained by the former vessel in a collision which took place in Madras Roads on the 1st May 1875, between the two vessels whilst the Cheviot was shortening in her cable to proceed to ports on the Coromandel Coast, from which she was chartered to London.

The defendants, the Merchant Shipping Com. pany (Limited), the owners of the Star of India, admitted their liability for the damage sustained

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by the Cheviot, and on the 31st Dec. 1875, the amount thereof was referred to the registrar and merchants.

The registrar, after examination of witnesses on both sides, and hearing counsel, reported cn the 27th March 1876, as follows:

I find there is due to the plaintiffs in respect of their said claim the sum of 5771. 19s. 10d., together with interest thereon, as stated in the schedule hereto annexed. And I am also of opinion that each party ought to be left to pay his own costs of the reference, the reference fees to be paid by the plaintiffs.

The following schedule is that referred to: Claimed. Allowed.

1. Demurrage of the barque Cheviot, of 494 tons, at 4d. per day from 1st May to 4th July 1875, viz., 65 days..

2. Loss of charter-party

3. Surveyor's fees at Madras 4. Telegrams from Madras

535 3 4 583 18 9

8. d.

£ s. d.

535 3 4 000

15 16 3

16 15 3

15 16 3 16 15 3

With interest at 4 per cent. per annum from the 4th July 1875, until paid."

The plaintiffs, on the 12th April 1876, filed a petition in objection to this report, in so far as it disallowed the second item in the schedule and made the above order as to costs, for these reasons (among others):

(A.) At the time of collision the Cheviot, which was in Madras Roads, was under charter to take a cargo from the Coromandel Coasts to London, at the rate of 558. per ton nett weight, delivered, and was heaving short in order to proceed to Gopalpore, the first or only port under the charter. The cargo which she would have carried would have been a dead weight cargo.

(B.) The collision occurred on the 1st May 1875, and as the Cheviot was so damaged that she could not possibly reach Gopalpore by the 10th May, the charterers, in accordance with a power given to them to that effect, cancelled the charter.

(C.) By the time the Cheviot was repaired, the season had nearly closed and freights had fallen.

(D.) The Cheviot was not sufficiently repaired to take in cargo till the 4th July, nor sufficiently repaired to proceed to sea till the 13th July.

(E.) On the 4th July, the Cheviot could have been chartered for a similar voyage to that which she had been chartered at the rate of 45s. per ton, but she could not have sailed for the ports of loading till on or after the 13th; instead thereof she was loaded at Madras on and after the 4th July, at the rate of 45s. per ton of measurement goods.

(F.) The plaintiffs' claim is for the difference between the freight of which the Cheviot would have earned under the cancelled charter-party and that which she earned under the loading at Madras.

The plaintiffs have not claimed or received demurrage for the detention of the Cheviot after the 4th July. (G.) If the plaintiffs succeed wholly or partially in their claim, the cost of the reference ought to be awarded to them.

and prayed the court to order the report to be reformed by allowing to the plaintiffs the said sum of 5831. 188. 9d., or such part thereof as to the court may seem just, and by condemning the defendants in the costs of the reference, and that the defendants might be condemned in the costs of the appeal.

On the 2nd May 1876, the defendants answered as follows:

1. They say that the respective reasons alleged in the said petition were not borne out by the charter-party and evidence produced before the registrar and merchants, and they crave leave to refer to such charter-party and evidence.