CONTINENTAL INSURANCE COMPANY,  a corporation, Plaintiff-Appellee, No. 03-57162 v.  D.C. No. FEDERAL EXPRESS CORPORATION, a CV-00-00696-NMM corporation, Defendant-Appellant.  CONTINENTAL INSURANCE COMPANY,  a corporation, No. 03-57214 Plaintiff-Appellant, v.  D.C. No. CV-00-00696-NMM FEDERAL EXPRESS CORPORATION, a OPINION corporation, Defendant-Appellee.  Appeal from the United States District Court for the Central District of California Nora M. Manella, District Judge, Presiding

Argued and Submitted October 17, 2005—Pasadena, California

Filed June 29, 2006

Before: Procter Hug, Jr., Harry Pregerson, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Hug

7153 7156 CONTINENTAL INSURANCE v. FEDERAL EXPRESS

COUNSEL Robert J. Taitz and David R. Shane, Shane & Taitz, Green- brae, California, for the defendant-appellant/appellee. Timothy R. Lord and Bernadette M. Chala, Lewis Brisbois Bisgaard & Smith, LLP, Costa Mesa, California, for the plaintiff-appellee/appellant.

OPINION HUG, Circuit Judge:

This appeal is from a stipulated judgment for $109,023.24 in favor of Continental Insurance Company (“Continental”) for goods lost in shipment by Federal Express Corporation (“FedEx”). We have jurisdiction because the parties reserved the right to appeal the district court’s rulings on the applica- bility of the Original Warsaw Convention and its subsequent amending agreements, the Hague Protocol and the Montreal Protocol No. 4.

I. BACKGROUND

On March 31 and April 15, 1999, FedEx and Comet Elec- tronics Co., Ltd., entered into a contract of carriage, whereby FedEx agreed to ship by air packages containing integrated circuits and memory modules from Hong Kong to Pasadena, CONTINENTAL INSURANCE v. FEDERAL EXPRESS 7157 California, with delivery to Viken Electronics. Four packages never arrived. The insurer of these cargoes, Continental, was subrogated to the rights of Viken Electronics, the consignee and owner of the goods. Continental filed an action against FedEx in the California Superior Court, alleging causes of action for loss of cargoes under the Warsaw Convention, neg- ligence, breach of contract, breach of the duty to care for property and bailment, and conversion. Continental alleged the losses of shipments “including, but not necessarily limited to, air waybill number[s] 8101 8095 3045 . . . [and] 8101 8095 3137” (“3045” and “3137”). FedEx removed the case to the United States District Court for the Central District of Cal- ifornia. It is undisputed that the Warsaw Convention preempts the state law causes of action. A. First Motion for Partial Summary Judgment.

FedEx sought partial summary judgment that its liability was limited as to waybills 3045 and 3137 under the amended version of the Warsaw Convention presently in force between Hong Kong and the United States, which it alleged either to be The Hague Protocol of 1955 (“The Hague Protocol”)1 or the Montreal Protocol No. 4 (1975).2 Compared to the Origi- nal Warsaw Convention, both versions substantially relax pre- conditions to limited liability.

The Original Warsaw Convention presumes liability of the carrier for goods lost or destroyed while entrusted to the car- rier, but limits permissible recovery unless a special declara- 1 Protocol to Amend the Convention for the Unification of Certain Rules Re