                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                    December 14, 2006
                                 FOR THE FIFTH CIRCUIT                            Charles R. Fulbruge III
                                                                                          Clerk
                                 _______________________

                                       No. 05-20907
                                 _______________________


               CONTINENTAL INSURANCE COMPANY,

                                                            Plaintiff-Appellee,

                                             versus

               SAIA MOTOR FREIGHT LINE, INC.,

                                                            Defendant-Appellant.

            __________________________________________________________

                        Appeal from the United States District Court
                            for the Southern District of Texas
                            (USDC No. 4:03–CV–4350–EW)
            __________________________________________________________


Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

       SAIA Motor Freight Line, Inc. (“SAIA”), a freight carrier, appeals the district court’s

judgment following a bench trial, in which the district court awarded Plaintiff Continental

Insurance Company (“Continental”) damages on its subrogation claim under the Carmack

       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                                1
Amendment, 49 U.S.C. § 14706. We affirm for the following reasons:

       1.     There is no jurisdictional defect in this case. This case was filed making a

claim under federal law, and that “alone is sufficient to empower the district court to assume

jurisdiction. . . .” Gonzalez v. S. Pac. Transp. Co., 773 F.2d 637, 645 (5th Cir. 1985)

(quoting Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 359 (1959)). In its closing

argument at trial, SAIA argued for the first time that the Carmack Amendment has no

extraterritorial application, despite the fact that the joint pre-trial order stipulated that the

Carmack Amendment governed the lawsuit. SAIA did not request an amendment of that

order, and SAIA therefore waived the argument and did not preserve the issue for appeal.

See Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir. 1982).

       2.     There is no express waiver of Carmack Amendment liability under 49 U.S.C.

§ 14101(b) in the contract. The language in SAIA’s tariff, which it argues is incorporated

by reference into the contract of carriage, does not refer to the Carmack Amendment in any

way. SAIA cites Kevin Bryant’s deposition testimony, in which he appears to agree that

SAIA’s tariff was incorporated into the bill of lading and waived SAIA’s liability for damage

that occurred in Mexico, but this testimony is irrelevant to the construction of the contract,

which is a matter of law.

       3.     The district court’s factual findings regarding damages are not clearly

erroneous. See Torch, Inc. v. Alesich, 148 F.3d 424, 426 (5th Cir. 1998) (“The factual

findings of the trial court in a bench trial may not be set aside unless clearly erroneous and

due regard must be given to its credibility evaluations.”)

                                               2
AFFIRMED.




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