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§ 47.


Au mois de février 1922 la Cour d'appel a finalement décide qu'il n'était pas nécessaire, dans 1'espèce, de trancher la question de Teffet de la „clause de solidarité", pour le motif que, en tout cas, la Couronne anglaise avait renonce, rebus ipsis et factis a 1'mvoqu^

Blonde, Prospm and Hercules (i395):..The sixth article oftheSoth Convention of 1907 declares that „the provisions of the present Convention do not apply7except between contracting Powers, «dtt^J if all the belhgerents are parties to the Convention. Of the Powers beÜteerent in lome theatre or other and against one combmation of oppSs or another during the late war, Serbia and.Montenegro never ratified the Convention. The United States were not parties to rt at afl. At the time when the ships now under discussion were first detamed, êermLvTad no^declaredwar on Serbia, nor had Serbiabecome f ormaUvtheX of Great Britain, and, so far as their Lordships are aware, actual hoÏL action by Germany against Serbia and actual rmlitary SpptttoSe^

1 mee question arises, therefore, whether Serbia was a beihgerent in such a slnse that her failure to ratify the Convention prevents its being appheabri between Germany and Great Britain in the matter of these E It is very hard to credit that the operation ot an agreement, so eaTestiVtoSed to the attainment of the highest practical ends in war should have been dehberately made to depend on the accidents or the Procritinltions of diplomatic procedure in time ^ P-, -n ^n no real relation existed between the condition and the cof ^ue™*' "twïn the ratification of all the parties and the detention of the of one of them. Their Lordships, however, have not found it necessary to give a final answer to these questions. Whether in the encumstancesof nSJ^theConventionwasapphcableorwhe^ fully objected that it had never become applicable, the resuk is^the same for the obiection is clearly one that can be waived, and m their Lord sS^oSoTSTwas waived by His Majesty's Government. ahke by the Se Kr o the correspondence and by the whole attitude of the clowntn matters of prize affecting such cases as these throughout the wïr. De facto as well as de jure the position of Serbia and thotiiet Powers as regards both the Convention and the conduct of the war wal well knotn to His Majesty's ^^^J^£SSk Vp+ rlavs of erace were allowed to Austnan ships by prodamation dated IÏS5 iW, 2 to which see the Turul (1067). The CM. order (1) waï wholïv Xept if the Convention had and could have no apphcation, ttSShould have apphed to tbe ^urt not f or leave to reqmsition but for decrees of condemnation. The fact that, m spite ot tne doubt expressed by Sir Samuel Evans, the President, ito the Mowe (14). SroTS Jed in numerous orders in that f orrn^and never ^ or cond^nation of these detained ships so long as e* is conclusive to show that any right to rely on the non-Mfdment <* ArticïeVI was waived The arguments of the Attorney-General on behalf