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Central Transport Inc. v. Package Printing Co.3/9/1999
ut ERISA than individual plaintiffs, to sit on their hands and not claim the defense until the last minute." See Violette v. Smith & Nephew Dyonics, Inc., supra at 10.
There is strength to this reasoning, and therefore we now adopt the rule favored by Federal courts and conclude that, where the Federal statutes involve a choice of law rather than a choice of forum, parties do not have an absolute right to raise a preemption argument for the first time on appeal.
The Carmack Amendment imposes regulations on the liability of carriers for lost or damaged goods. Although enacted without Discussion or debate, it is uniformly accepted that Congress intended the Carmack Amendment to eliminate the confusion resulting from conflicting State laws and provide for the uniform application of Federal law. Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir.), cert. denied, 118 S. Ct. 51 (1997), quoting Adams Express Co. v. Croninger, 226 U.S. 491, 506 (1913).
Carmack preemption is therefore a choice of law statute, and as such, does not affect a court's power to adjudicate the matter. The statute itself explicitly grants State courts concurrent jurisdiction over such controversies. Specifically, Sect. 11707(d) provides in relevant part: "A civil action under this section may be brought against a delivering carrier in a district court of the United States or in a State court" (emphasis added).
Accordingly, we conclude that, because Central has not raised the issue of preemption below, it has waived its preemption defense under Federal law principles of waiver. See GSA, Inc. v. Strong, 719 A.2d 1256, 1258-1259 (Me. 1998) (noting that State law waiver may not apply to defeat ERISA claim because State law is preempted, but Federal law may), citing Matter of HECI Exploration Co., 862 F.2d 513, 523 & n.18 (5th Cir. 1988) ("waiver argument should have been framed in terms of federal common law rather than Texas state law"); Wolf v. Reliance Standard Life Ins. Co., supra at 449 (ERISA preemption in benefits-due action is affirmative defense and thus waived where party raised it one week prior to trial); Sweeney v. Westvaco Co., supra at 40-41 (party waived right to assert defense of LMRA preemption where not timely raised). We note that this is also true under State law principles of waiver. "Our cases hold consistently that a non-jurisdictional issue not presented at the trial level need not be considered on appeal." Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977), and cases cited.
Moreover, there can be little doubt that Central's ten-year delay in asserting this defense would create substantial prejudice to Package. See id., and cases cited ("Such a rule has particular force where the other party may be prejudiced by the failure to raise the point below"). Central itself initiated their complaint in State court alleging State law claims. It cannot now complain that Federal law should have been applied to this controversy. "The theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review . . . ." Santa Maria v. Trotto, 297 Mass. 442, 447 (1937). See Budish v. Daniel, 417 Mass. 574, 577 n.5 (1994); Donahue v. Dal, Inc., 314 Mass. 460, 463 (1943).
Because we conclude that Central's preemption claim has been waived, we need not reach the merits of its preemption arguments. Therefore, we do not decide whether Package's State law claims (breach of contract and unfair or deceptive practices under G. L. c. 93A) are preempted by the Carmack Amendment. For the reasons stated above, the judgment of the Superior Court is affirmed.
So ordered.
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