corporation and what this case involves originally as did in the complaint was to international shipments of computer modules that were coming from hong kong right here in the pasadena as a matter of fact and the parties it was found in state court and we removed the matter for a stretcher move in a matter of federal court the party of each made their initial disclosures of documents and in the in the motion we argued that this matter was governed by either montral protocol for or the hague convention or if neither of those applied to an amended zone in the opposition brief of course the other side argued that and before did not apply that hey did not apply that the only treaty that applied was an amended war so they raised on the evidence that was submitted in opposition to our brief just to simplify the matter we stated in our reply brief for the purposes of this motion only federal express concedes that this matter is governed soley by the warsaw convention the judge granted summary judgment with regard partial summary judgment with regard to the two shipments originally stated in the complaint but because national submitted evidence in their opposition to other shipments and had copies of their way those that did not contain the weight of the shipment which is an article eight requirement judge denied the motion with regard to those two shipments in effect seem to do more than my the motion because in the way the the law the case doctor was applied later it wasn't simply the nile of your motion it was ok this is the law for the case and i think i think it has a grievance you're trying to raise that that's correct your honor and it really a second motion was filed with regard to those shipments three and four similar arguments were made again and we are versions of our way those with the weight and the judge and in our reply we began and we said we believe based on our evidence that we should after some mediation sessions where the dispute can move out was later in july of two thousand and three in conferences with the judge with the district court judge the judge said where are we now and federal stresses position as well we still have the courtroom of course we are free to come in the ninth circuit and and here we are so our position on the war shipments total about two hundred thousand dollars the way the judgment was entered our liability for us of liability was limited for the first two shipments so that was only a few hundred dollars and judgment center for about one hundred and one thousand dollars on shipments three and four  when did you bring up the fact that they the hague and the marker all amendments would apply well then the next briefing with the court was in july of two thousand and two there was a joint identified in the complaint and that's what you were making your motion about but then continental brought up two more and what was your position at that time and that in the first motion our position was that those two shipments were not the subject in this case we had received in this will disclose or is that nothing about those shipments the complaint said nothing about those shipments so our initial position at the time of the first motion in august of two thousand and one was that the shipments have nothing to do with this case we'd never heard of these shipments were an issue but once we were informed that these shipments were now too much the judge said ok i'm going to allow these judgments to be part of the ca's that's when we did our research found our copies of airway bills for those two shipments and filed the second motion for summary judgment which was heard in november of two thousand and one and now was the first one actually heard where they present the extra two were so that our hearing our work that on paper it was on paper was on paper over so there's no transcript of the hearing because it was it was taken on the papers continental has argued that taking the scenario is described that fed ex never went back to district court and said now wait a minute this is all based on a mistaken premise here and saw by way of motion for reconsideration or otherwise to bring that attention back to the attention of the of the district court do our own research to find out if we have copies of those or when those and it wasn't so much a question of what law applied we believe that if we could find their way bills that have the weight on them we would prevail just under even under an amended  we believe satisfied article eight and we expected the judge to grant the motion this is she did in the beginning it was only after the most the second motion was denied mediations occurred join a status report was filed and then we had the conference with the court in july that we realized this is now july of zero three that's when we first realized that the district court judge was not going to allow us to make an argument as to which law applies to  that was made at that point to persuade the district judge that you had not made the concession that she apparently thought you had made that's that was made we did make that statement in july two thousand and two joint status report but the first telephone conference with the i'm sorry that well that the order i'm sorry you're right on the order was issued in august of two thousand and one the declaration that they submitted was gated june twenty second two thousand and one and the documents that were lot seems to me that this is really more a question rather than a lot of the case or for waiver because i don't think you presented that argument well we presented it as part of that motion and these two wave bills were part here she had ruled on it here but but continental is arguing that it's part of the motion and you're saying in your reply brief that for the purposes of this motion we agree that the original warsaw applies a problem for me our position on that would be that we were taking a chance on this motion that if the judge didn't accept our evidence or found that there was issues of fact that we would lose that motion but we did not respond certainly did not intend to waive that issue for purposes of trial that was in our tents this judge obviously disagreed but even under the city of l awfully good and to me it's amazing what they can get from point a to point b there's just the inevitable reality of maybe human error i don't know what it is it's a tiny percentage of the packages that don't make it where they're supposed to be the next day but it does out it never found those packets you know there was a security department the reason there was a security department file that was produced the kind that it was because that was just your department did look into it they went to question the employees who might have touched that packaged they went to the hands of these location to talk to them and it was just one of those situations where unfortunately nobody knew what was the one thing that i had with regard to that motion thing but what you're saying as i understand that you lose your motion for summary judgment on that basis but that doesn't mean because you lose that motion that for  previously decided the judge never made it and it was no hearing on it there was no discussion of what law applies it was just she took our concession our reply brief for the purposes of the motion and then decided later on  briefed regarding the after ability of which case law federal express aside until one year previously they had briefed the case again in a status report they had talked about the issues in the case but again it doesn't bring up mind what fed ex is argument is its argument is that it's not a matter of discretion the law the case dr never properly applied in the first place because they made no such concession i think that's the mystery her purposes they haven't shown us where they didn't we have a two year gap here we have we don't have a hearing on the record we don't have let's not bear false the judge decides when she's going to have her and when she's not certainly but they could have reached the issue they could have done something to judgment continental still take the position that in fact it is the original warsaw convention that's supposed to apply under the hague and montreal protocols do not properly apply as a matter of law  address the issues here on these you can find that out with jasmine i only have and out before her now the only issue is federal express taking a chance you know arguing in the alternative and what happened between and attempts to clarify that in her july thirtieth minute order we just don't know what happened we just don't have not we don't need to get to how we've made our way back to the argument which i think i've already told you in my mind is a complete loser so i'm not sure you're answering my question my question is with regard to the warsaw convention and the montreal and hague protocols is a continental spears ition that if we were simply to apply the law which is our our prerogative that is the original warsaw the united kingdom and china and then when we come along it and and we signed the montreal protocol which then means we pick up the others protocol makes specific reference and incorporates by reference the amendments made at the hague which is a believe what article fifteen of the montreal protocol says and as i understand it article seventeen makes the point that if you if you're not a party to the worse off convention or for that matter to the hague protocol but you sign on to this one because this when creates a single instrument you sign on to the whole  of the parties included languages that each party expressively reserves its respective rights to appeal from this judgment because both parties knew at that point that these appeals would be file  elation the idea for that stipulation really came about in talking with the judge the judge told us that she was going to address the legal issues anymore so that really all that seemed to be left in the case was an issue of damages with regard to shipments three and four and and alluded the fact is it really worth going to trial on that issue but certainly invited us if we wanted to appeal our respective issues to go ahead and she'd be happy to follow whatever guidance the ninth circuit you know could provide and so right both parties together drafted the stipulations didn't seem like the most expeditious way to move forward not to waste the judges time was some on the claim under air bill and in three or four five and so forth so out of thirty four dollars and shipment number to fifty five thousand dollars approximately and shipment number three and then fifty two thousand and ship the number for this year on the story is contained under c r eighty four of the continental us excerpts of records where you can see the problem i have is that judgment your honor was that we found our only choice was either to go to trial just on the issue of damages because the judge told us she was not going to allow us to argue what law applied we could have gone to trial on the damages and then filed an appeal or because i was in on the phone conversations with the judge and i think our judge wanted us to do it this way i think she wanted it resolved and then to have us go up the ninth circuit well you know we had a judge around this town that used to tell you how to try to your case  her courtroom for a long time there was a delay because one of the other attorneys passed away and a you know i understand what you're saying and certainly would have made more sense and probably would been the right way to go about this but the way the federal  there in two thousand and three and our argument in opposition to that is simply continental knew these two shipments were an issue these were the two shipments that were stated in the complaint these were the shipments that were discussed and i documents with related to in their initial disclosures for whatever reason their attorney didn't file them in opposition to our initial first summary judgment motion and judgment granted our motion with regard to no no they counsel in california southern california he didn't submit them and i think if they're trying to argue that this is newly discovered evidence i think there's one a case on the ninth circuit that failure to file a document at the time  motion doesn't become newly discovered evidence later down the road and there's one case on the fourth circuit which is instructive which basically says that in turn a mistake if any failure to file evidence the in opposition to a motion doesn't give grounds down the line at all  we don't know and he's not before us but the final point i'd like to make is that there are issues regarding the warsaw convention in there may be a case that needs to be written about and if this is not that kate it is a case about procedural error and there is there