Judgment of the Court
J--This is an appeal from a judgment of the Supreme Court of Nova Scotia in favour of the plaintiff, the present respondent.
The action was brought for damages occasioned by a collision on the high seas between respondent's ship " Rolf," and the appellants' barque " Emilie C. Boyd," which resulted in the total loss of " The Boyd " and in considerable damage to " The Rolf."
The appellants are domiciled in the province of Nova Scotia and the respondent in Norway.
Prior to the commencement of this action the defendants in it began proceedings in the District Court of the United States for the Eastern District of New York, against " The Rolf" in respect of the collision. The vessel was arrested and afterwards released on bail, the owner of "The Rolf" appearing and defending the action. The libel charged generally that the collision was not due to any fault or negligence on the part of the owners of "The Boyd," or of those in charge of her, but was wholly due to the negligence of those in charge of " The Rolf " specifying various negligent acts and omissions. To this the owner of The Rolf" replied, admitting the jurisdiction of the court, but denying that the collision was due to the fault or negligence of those in charge of '
" The Rolf," and charging that it was wholly due to the fault or negligence of those in charge of The Boyd." J
The cause came on for trial before Bqnedict J., and on the 5th August, 1891, it was adjudged and decreed that the collision was due solely to the fault of those navigating " The Boyd," and that the libel should be dismissed with costs. This judgment was, on the 5th March, 1892, affirmed on appeal by the United States Circuit Court of Appeal, the court of final resort. Prior to the judgment of the I)istrict Court a statement of claim had been delivered by the owner of " The Rolf," and a statement of defence and also a counter claim had been filed by the owners of " The Boyd," but nothing further was done until the conclusion of the action in New York when the defendant in that action, and the plaintiff in this, filed a reply and answer to the statement of defence and counter-claim respectively setting up the foreign judgment as a conclusive answer. Upon trial before Mr. Justice Townshend the defendants were held to be precluded from again contesting the question of their negligence and judgment was rendered against them, although the learned judge expressed the opinion that, if free to do so,he should have arrived at a different conclusion upon the merits. This judgment was affirmed by the Supreme Court of Nova Scotia, Mr. Justice Weatherbe dissenting.
It is now established in English law that a judgment of a foreign court of competent jurisdiction having the force of resjudicata in the foreign country has the like force in England. Bank of Australasia v. Nias (1);
Bank of Australasia v. Harding (2); De Cosse Brissac v. Rathbone (3); Godard v. Gray
. Before the conclusive character of foreign judgments in proceedings actively brought for the enforcement of their obligations was definitely settled, it was established that a judgment for the defendant in the Kh-J foreign court was a conclusive bar to any attempt to ' re-open the matter in the English courts.
The rei judicatae under such circumstances, says Story (1), is entitled to universal conclusiveness and respect.
This distinction has been very frequently recognized having a just foundation in international justice *
* think it clear upon principle that if a person selected, plaintiff, the tribunal of a foreign country as the one in which he would sue, he could not afterwards say that the judgment of that tribunal was not binding upon him.
Schibsby v. Westen-. hols
Next, as to the extent to which the judgment concludes. Judgments in rem are conclusive against all the world, not only as to the rem itself but also as to the ground on which the tribunal professes to decide, or may be presumed to have decided. As to what constitutes proceedings in rem see Castrique v. Imrie (3). Judgments in personam bind parties and privies, and. generally speaking, are conclusive at least upon the material issues tendered by the plaintiff's complaint. The doctrine of estoppel by former judgment between the same parties is one of the most beneficial principles of our jurisprudence, and has been less affected by legislation than almost any other. Per Miller J. in Aurora City v. West (4).
The very object of instituting courts of justice is that litigation should be decided, and decided finally. That has been felt all jurists. Per Willes J. in Great Northern Railroad Co v. Mossop (5).
In the present case the appellants, as the plaintiffs in the District Court of the United States, distinctly ten- (1) Conflict of Laws 578.
Wall.
L.R.
C.B.
L.R. H.L., per Blackburn
J. p. 429.
dered the material issue that "The Rolf " was solely, and "The Boyd" not at all, to blame. Issue wasjoined upon this, and it was decided against the then plaintiffs. b In the present action they raise the precise issue again K by their statement of defence and counter-claim. The evidence is, that by the law of New York the decision upon the issue in the first action is deemed resjudicata in the second.
Its effect, therefore, would be to preclude defendants from again agitating the matter. This conclusion, however, is as yet premature, for the defendants have several contentions remaining. First, that as the foreign judgment was obtained after the present action was began it has not the force of resjudicata. The Delta is cited in support. One of the grounds of decision in that case was that the foreign judgments not having been given on the merits of the case, but on matters of form only, they could not be set up as a bar to a decision on the merits. It was also expressed to be doubtful whether the evidence showed that the judgments would have the force of resjudicata in the foreign countries.
In these circumstances,although the principal ground of the judgment was expressed to be that at the time of action brought there was no resjudicata but only a lis alibi pendens, there was no foundation for the application at all.
The case was one of collision between " The Delta" and " The Foscolo."
An action and a cross action were first begun in the foreign country. Afterwards an action and a cross action were brought in England. Subsequent to the bringing of the English action by " The Foscolo " against " The Delta," judgment was rendered in both the foreign actions against " The Foscolo," in the one suit for want of appearance, and in the other for want of prosecution. Then " The Delta " sought to set up these judgments as conclusive against The Foscolo" in the English actions.
Assuming that the foreign judgments had been on the merits, and had the force of res judicata abroad, the reasons of the learned judge are as follows:
J. That is a rule of procedure entirely inapplicable in the case before us, where there are not two suits against the respondent and therefore no case for election at all.
The next reason is as follows:
As a matter of fact the cross suit brought in England by " The Delta " against " The Foscolo " was not brought until after the judgments were obtained in the foreign suits; (see p. 403 near foot).
It was, as to the cross action, a case, therefore, of waiver of the foreign judgment and of suing on the original cause of action. Apart from technical rules of pleading there would not seem to be satisfactory reason, upon principle, for declining to give effect to a foreign judgment merely because it was obtained after the beginning of the action in which it is sought to be made available. The considerations ofjustice and public policy which dictate the rule of res judicata as applied to foreign judgments operate to prevent the defeat of the rule by technical considerations.
Why should a plaintiff in a foreign action, by commencing fresh proceedings in another country on the eve of judgment rendered, become entitled to litigate the matter anew?
Again, a person in the position of respondent, by ' ' discontinuing his suit and beginning again, may avail himself of the effect of the foreign judgment. It would result merely in a question of costs.
No substantial J.objection therefore can be said to lie against the bringing forward of a defence based upon a judgment recovered after action brought.
In the United States courts it is held that when a matter is once adjudicated it' is conclusively determined as between the parties and privies, and this determination is binding as an estoppel in all other actions whether commenced before or after the action in which the adjudication was made.
Finley v. Hanbest ; Schuler v. Israel
If the judgment is conclusive in its character in an action to be begun to-morrow, it ought to be possible, upon appropriate terms, to make it available in an action for the identical matter begun yesterday.
It is said that the rules of pleading do not admit this being done, but I agree with the learned judges forming the majority of the Nova Scotia Court that the combined effect of orders 24 and 7 rule and see. 12, subsec. of ch. 104 R.S. N.S., is sufficient to enable the essential rights of the parties to be brought in course of adjudication.
It is, however, further urged for the appellant, that by virtue of the provisions of ch. 104, order rule 38 of R.S. N.S., the foreign judgment in this case cannot be relied upon as an estoppel.
The enactment is as follows:judgment may the suit judgment could fully if suit brought for the original of
This is an enactment available only by persons domiciled in Nova Scotia.
It is intended as a weapon King J. of defence, and not of offence.
It is not lightly to be supposed that the legislature, whileleaving the foreign subject to be proceeded against in Nova Scotia upon the judgment obtained abroad by the person of Nova Scotia domicile, intended that the latter should be protected against the consequences of his own unsuccessful incursions into the foreign field.
The closing words of the clause seem to show that nothing of this kind was intended.
The domiciled defendant in the Nova Scotia action is to be free to open up the foreign judgment sought to be enforced against him " as fully as if such suit (in Nova Scotia) had been brought for the original cause of action."
The defendant in the foreign suit cannot be said to have had an original cause of action in the proceedings abroad.
I therefore think the Act cannot be invoked for the appellant.
Further, it appears to me that the judgment should be sustained upon the merits.
The reasons of the District Court of the United States seem satisfactory to my mind.
The result is that the appeal should be dismissed. Appeal dzsnissed with costs.