Central Transport Inc. v. Package Printing Co.3/9/1999
Hampden.
January 8, 1999
Constitutional Law, Federal preemption, Interstate commerce.
Jurisdiction, Federal preemption. Interstate Commerce. Waiver.
Civil action commenced in the Springfield Division of the District Court Department on July 3, 1991.
On removal to the Superior Court Department, the defendant's counterclaim was heard by William H. Welch, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
This appeal raises the question whether a claim of preemption based on the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. Sect. 11707 (1994), presents an issue of subject matter jurisdiction which may be raised at any time, or alternatively, one of choice of law which may be waived. The action was tried first in the District Court and, after a judgment for Central Transport, Inc. (Central), on its main claim and a judgment for Package Printing Co., Inc. (Package), on its counterclaim, Central sought a retrial in the Superior Court on the counterclaim. See G. L. c. 231, Sects. 102, 103, & 104. After a jury-waived trial, a Superior Court Judge found for Package and Central appeals. We transferred the matter here on our own motion. For the reasons set forth below, we affirm.
Facts. The Superior Court Judge found the following: On February 5, 1988, Central agreed to deliver rolls of cellulose made by Package from Massachusetts to Krisp Pak Co. (Krisp Pak), a Package customer in Virginia. On receipt of the shipment, Central signed a bill of lading indicating that the product was received in good condition. When Krisp Pak received the shipment on February 9, 1988, forty-six of the sixty-two rolls of cellulose were damaged.
Despite efforts made by Package, Central refused to give Package credit to cover the damage caused during shipment. Package, however, continued to use Central to ship its product while the present damage claim was pending. Package refused to pay the shipping charges for shipments made after February 5, 1988. As a result, Central initiated suit in the District Court to recover $4,213 from Package, which the District Court Judge found, and Package did not dispute, was due to Central for these shipments. Package counterclaimed for damages to its goods, asserting causes of action for breach of contract and violation of G. L. c. 93A. The District Court Judge found Central liable on both counts, awarding $6,890 for the breach of contract claim, and $13,780 plus attorney's fees on the c. 93A claim.
Central transferred this matter pursuant to G. L. c. 231, Sect. 104, to the Superior Court, and there a Superior Court Judge sitting without a jury entered judgment for Package. Central did not raise the issue of preemption by the Carmack Amendment either during the District Court proceedings, or in the Superior Court. Central argues for the first time on appeal that Package's State law claims should be dismissed because they are preempted by Federal law.
Central concedes that it has raised the issue of Federal preemption for the first time on appeal. Ordinarily, a non-jurisdictional issue not presented below is precluded from being asserted on appeal. See Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977), and cases cited. However, Central asserts that its claim is jurisdictional and thus non-waivable. Central primarily relies on two of our prior decisions, Chestnut-Adams Ltd. Partnership v. Bricklayers & Masons Trust Funds of Boston, 415 Mass. 87 (1993), and Barry v. Dymo Graphic Sys., Inc., 394 Mass. 830 (1985), where we concluded that a preemption claim under the Employment Retirement Income Sec
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