sure had a fair opportunity to do quite clear on who value the question of whether and therefore get a higher limitation of liability the question is whether or not the limitation of making that analysis is to cite what it is the fear of any bill provided about the legal rights and obligations to be applied there is a provision in there were a bill called the road transport notice  employees who worked at that warehouse whether they were assigned a particular cargo or not we're all responsible for all of trusted with the safety of the cargo that is at  that's the test your honor the words if obviously if the pointers had feelings to stuff he would be but i think that the acting in the scope of his appointment in this context means that if stealing something with which he came into contact by virtue of the fact that he was employed and handling this this cargo and the i think that the brinks case which ago you were answering judge fletcher's question about the m r and provision acting within the scope of their employment which is ultimately and you gave the definition what marmie relying upon to england ultimately we're looking at the law of england but in order to arrive at the law of law first you have to look at the law of either leaving or for california and the of the caves in other words the forum court now in this case we actually have a choice or two possible forms one's new york and what it is help for you because this case was transferred from the southern district of new york say that when you make this kind of decision you have to decide you have to apply the choice of law rules of the form of state and the choice of long rules in both insurance company of north america case which relied on the brings case both of them say you apply the choice of a lot of rules and in deciding how you're going to judge whether or not particular conduct is willful misconduct you look to the be considered work in this conduct and attributed to the employer that's not the case in california if this was strictly a california case that would not happen ever not be done the same is true in the your in new york of the not the attributed to the reason is that we are we are asking you to apply california law but in this case we're asking are saying that the california law which is supposed to be applied is the choice florals on that led to the lawsuit question and that's the test that the that this circuit applied in the interest companies north america case it's also the that the test that was applied in the in the briggs case and in damaged by this particular conduct was a party express in england are subject to the jurisdiction of the english course in england is the country which would have the greatest interest in and regulating the behavior of the companies which operate within he's not trusted with refraining from on that activity and that's part part of being any employee who is trusted with home or work for a company that carries goods is that you refrain from engaging in behavior which would  liability now in and england is the country in which these commercial activities are carried out and england has an interest in seeing or in laying be processing them the loss allocation i think is also in terms of the of the equities ultimately just lost it's borne by the insurance company for one or the other of the parties and by the by under an equitable analysis the loss should be borne by the insurance company for the party who's in the best position to prevent this from occurring to england there's going to get passed on to the english consumers the english are saying no in this case in this little narrow slice of reality we don't want this cost get pushed onto our consumers in england morning many place the court finds one condiment worth i represent in federal prison listening to the questions that the court is asking i i would like to tell you what i would like to do in my presentation i would like to address briefly the portion in england certainly wasn't into the country by truck because the goods were already there you must to accept their argument go back to the trucking in california i understand so to accept that you have two  was that this was an urn transportation it was an airway bill and the one thing transportation was incidental to the air transportation contract the transportation by air the subject to the c r that means you have to look at all of the terms of the stadium are to see if it applies and how does the c m r apply it applies to contracts for transportation by road this was not a contract for transportation by road it was a contract for transportation by air with pickup and delivery by broke number one number two c m r according to its own terms applies only when vehicle which is carrying it by road then put on some other form of transportation and then it's taken off so it never leaves that road vehicle and it defines vehicle as trucks trailers semi trailers and the like so that and this is a european treaty so if you're transporting a shipment from rome to london and you have a tractor trailer pulling a trailer and you get it across europe and you get  to the channel and then that trailer is let's go off and put on a train under the channel or if you put it on a ferry across and then put on another truck that's where it applies it does not apply by its own terms and by the expert that we've cited in our brief it does not apply in cases such as this where a truck delivers a consignment you take it off the truck you put it on an airplane you travel ok you take it by  you take it off an airplane which took it into the country and put it on a truck what's more is that what the plaintiffs would have you believe is that the federal express intended this entire transportation to be a contract by rote which is the only time that the c m are applies by its terms now again it is if you would step there are you would have to accept it is subject to the terms and conditions of the cme are which requires a contract by road which we do not have and it requires that the vehicle in which the goods are contained which is a road vehicle by definition and there's bee apply here finally international air transportation by their is clearly governed by the warsaw convention we know that it's all over the way bill it's all over the airwaves  a contract by road which is what this c m are it's all about and again even if you accept their argument on the notice they doesn't say it will apply it says it will be subject to we're talking about here is terms of the contract and whether or not those contract terms whether or not the c m are applies whether there's a limit of liability how the limit of liability will fly the contract is made in california a california resident defendant with a california corporation for transportation originating in california the interpretation of that contract and how those limits of liability apply must be to apply foreign law the determination of foreign law is essentially under rule forty four i believe a factual issue that the trial court would have to determine i think it seems to me that if you don't if you accept all of their arguments this has to go back to the trial court the choice of law if they decide to english law applies what that will ensue and then the whether there's evidence to support a finding a willful misconduct but it seems to me absolutely clear  the parties in california who are putting this shipment on an airplane on an air waves well governed by the warsaw convention were not considering it a contract by roque which is the only time that this is a market apply whether it's incorporated by