Albingia Versicherungs A.G., a Foreign Corporation Siemens Components Pte. Ltd., a Foreign Corporation v. Schenker International Inc., a Corporation ( 2003 )

350 F.3d 916

ALBINGIA VERSICHERUNGS A.G., a foreign corporation; Siemens Components Pte. Ltd., a foreign corporation, Plaintiffs-Appellants,
v.
SCHENKER INTERNATIONAL INC., a corporation, Defendant-Appellee.

No. 01-16558.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 10, 2002 — San Francisco, California.

Filed September 15, 2003.

Amended December 3, 2003.

1

Michael W. Lodwick, Haight Brown & Bonesteel LLP, Santa Ana, California, for the appellants.

2

James B. Nebel (briefed) and Jeanine S. Tede (argued), Flynn, Delich & Wise, San Francisco, California, for the appellee.

3

Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, District Judge, Presiding. D.C. No. CV-99-02989-MHP.

4

Before: Andrew J. KLEINFELD and Johnnie B. RAWLINSON, Circuit Judges, and Justin L. QUACKENBUSH,* District Judge.

5

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING EN BANC AND AMENDED OPINION

ORDER

6

The Opinion filed on September 15, 2003, and appearing at 344 F.3d 931 (9th Cir.2003), is amended as follows:

7

At page 934, paragraph beginning "After discovery, the case was settled," delete the last sentence and replace it with the following:

8

Schenker and Albingia stipulated to facts strongly supporting the conclusion that the chips had probably been stolen by Schenker employees while in Schenker's warehouse.

9

At page 934, last paragraph, beginning "The parties filed cross motions," delete the first two sentences and replace them with the following:

10

Schenker filed a motion for summary adjudication on the applicability of the Warsaw Convention and the monetary limitations in the waybill. The district court noted that Albingia, in its response to the summary adjudication motion, did not argue for remand in the event the Warsaw Convention did not apply.

11

At page 935, last paragraph, beginning "Thus by the time the district court entered judgment," second sentence, replace "and the parties stipulated" with the following:

12

based on spoliation of evidence

13

At page 936, paragraph beginning "The district court, in a single ruling," delete the first sentence and replace it with the following:

14

The district court, in a single ruling on the motion for summary adjudication, held that because the chips were stolen in Schenker's off-airport warehouse, the Warsaw Convention did not apply, and the contractual limitation to $20 per kilogram was valid under federal common law.

15

With these amendments, Judges Kleinfeld and Rawlinson have voted to deny the petition for rehearing en banc, and Judge Quackenbush so recommended. The full court has been advised of the petition for rehearing en banc, and no judge of the court has called for a vote to rehear this matter en banc. No further petitions for panel rehearing or rehearing en banc will be entertained.

16

The petition for rehearing en banc is denied.

Notes:

*

The Honorable Justin L. Quackenbush, Senior United States District Judge for Eastern Washington, sitting by designation