_______________________________________________ November 6, 1997 _______________________________________________ GSBCA 13877-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. Jeffrey J. Thurston, Director, Office of Transportation Audits, General Services Administration, Washington, DC, appearing for General Services Administration. Col. James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. BORWICK, Board Judge. When the Department of Defense (DoD) disguises on a Government Bill of Lading (GBL) a shipment of missile guidance and control systems as radio transmitting and receiving sets, is the carrier, Tri-State Motor Transit Company, entitled to payment of an extra $78.65 for the shipping the former instead of the latter? We conclude it is so entitled. The facts are as follows. On December 22, 1992, the Government prepared Government bill of lading (GBL) C-7,572,793 for transportation of goods between the Letterkenny Army Depot, Chambersberg, Pennsylvania, and a military facility at China Lake, California. The GBL specified dromedary service, constant surveillance, and specified that "flame or heat-producing tools will not be used to remove security devices." The GBL required the "shipper to load and the consignee to unload." The GBL identified the item as "radio transmitting and receiving sets." Directly above the item identification, the following notation appears: "UN:PSN:HELIUM, COMPRESSED, 2.2, UN31046,7.6OZ, EXPLOSIVE 2.2S" The GBL referenced a national motor freight classification (NMFC) code: 062820. That code refers to: "Radio, Radio-telephone or Television Transmitting or Transmitting and Receiving Sets, or Other Radio Impulse or Wireless Audio (Sound) Impulse Transmitting or Transmitting and Receiving Sets." On January 4, 1993, claimant submitted an invoice for $4,115.20 for the shipment. The payment was based on the freight-all-kinds (FAK) rate for the commodity as stated in the GBL. On December 21, 1995, claimant submitted to the transportation officer of the Letterkenny Army Depot a request pursuant to the Freedom of Information Act (FOIA) seeking, for this GBL and others, copies of DD Form 1348-1 (DOD Single Line Item Release/Receipt Document) and the DD Form 250 (Material Inspection and Receiving Report), trying to learn whether the items listed on the GBLs were the items actually shipped. On July 9, 1996, the Defense Logistics Agency (DLA) advised claimant that the documentation for C-7,572,793 was not available because the agency had destroyed records from 1992. Claimant did obtain receiving reports on two other GBLs for shipments originating at the Letterkenny Army Depot. GBL C-7,968,973 described the item shipped as a radio transmitting and receiving set, but the receiving report recorded the item received as a "Guidance and Control" system (in type) with those typed words crossed out and the words "classified item" penned in. Similarly, GBL C-7,969,118 described the item shipped as a radio transmitting and receiving set, but the receiving report described that item as "guidance control system, missile" and "classified item" typed over that description. Both GBLs specified constant surveillance and noted the presence of explosives. On January 5, 1996, claimant submitted a claim for $78.65 for the shipment covered by GBL C-7,572,793. Claimant maintained that the item shipped was covered by Department of Defense Unique Classification (DODUC) Code 14255 as "missile guidance control systems or electronic guidance control apparatus," and subject to an increased rate, which, when applied, resulted in the additional payment of $78.65 due. Claimant also noted that DODUC 14255 items were not subject to FAK rates. On May 10, 1996, acting through its Office of Transportation Audits (OTA), the General Services Administration (GSA) denied the claim: YOUR CLAIM FOR 78.65 . . . AS AN ALLOWANCE FOR TRANSPORTATION FURNISHED THE UNITED STATES GOVERNMENT UNDER DOCUMENT REFERENCE NUMBER C7572793 HAS BEEN EXAMINED AND DISALLOWED FOR THE FOLLOWING REASONS: YOU STATED THAT 605 NAMING RATES ON DODUC 999913 (FAK) WILL NOT APPLY ON THE FOLLOWING ARTICLES. WE DO NOT AGREE. THE APPLIED TENDER 605 APPLIES ACCORDING TO THE SHIPMENT STATED ON [THE] GBL. Army Regulation 55-355,  32-2 makes the Military Traffic Management Command (MTMC) responsible for prescribing administrative procedures regarding the use of bills of lading. The Transportation Officer or the Acting Transportation Officer is appointed in writing as the responsible GBL issuing official and held accountable for GBL control, safekeeping and disposition. AR55-355,  32-5. Transportation Officers determine when shipments are to be made by GBL. AR55-355,  32- 7. Transportation Officers or Acting Transportation Officers issue GBLs, AR55-355,  32-13; persons furnishing supporting documentation or other information are responsible for its accuracy, with Transportation Officers responsible for the accurate copying of the information on the GBL. AR55-355,  32- 15. When shipments are tendered to a carrier for transportation, the original shipping order, the two waybill copies and the required number of memorandum copies (as required by regulation) will be presented to the carrier for receipt purposes. AR55-355,  32-25. Army Regulation 55-355,  30-4g. provides: (1) Under no circumstances will the GBL be marked or stamped "SECRET" or "CONFIDENTIAL." When the proper freight classification description adequately disguises the nature of the material for security purposes, such description will be used. However, when it is considered that the proper freight classification description does not adequately disguise the nature of the material to satisfy security considerations, [Transportation Officers] will use a general description such as "Electrical appliances or instruments, NOIBN" or the description of an analogous article or material with similar transportation characteristics. When a general or analogous description is used, the [Transportation Officer] will, within 30 days after the shipment has been tendered to the carrier, furnish the following information to the disbursing officer responsible for payment of the transportation charges: (a) GBL number. (b) Name of origin carrier. (c) Proper freight classification description (d) Reason for the change in [the] freight classification description. (2) Proper security provisions will be observed when furnishing the information specified in (a) through (d) above. The information received by the disbursing officers in this manner will be matched with the appropriate voucher number and transmitted to the General Services Administration [GSA] to enable final settlement of the freight charges. Both MTMC and OTA maintain that claimant has not established that the Government shipped any goods under GBL C-7,572,793 other than what was stated on the face of the GBL--radio receiving and transmitting sets. GBL C-7,572,793, however, contained provisions suggesting the presence of security or hazardous material other than radio transmitting and receiving sets: the requirement for constant surveillance, the listed presence of explosives, and the notation on the GBL that the shipper was to load and the consignee was to unload. Claimant correctly notes that GBLs C-7,968,973 and C-7,969,118, containing the same security provisions and prepared by the Letterkenny Army Depot, listed goods shipped as radio transmitting and receiving sets. The receiving reports for those GBLs, however, established that Letterkenny Army Depot shipped missile guidance and control systems. Claimant also complains about the agency's "violation" of FOIA in its destruction of the receiving report that would have established the identity of the shipped item. Normally, the bill of lading description of the shipped article is prima facie evidence of the identity thereof and entitled to great weight. Southern Pacific Transportation Co. v. United States, 454 F.2d 740, 744 (Ct. Cl. 1972). That does not mean, however, that we must accept at face value the identity stated in the GBL in the face of other persuasive, albeit circumstantial, contrary evidence. Claimant has introduced such evidence--receiving reports for two GBLs issued by Letterkenny Army Depot. These receiving reports point to the conclusion that, when Letterkenny Army Depot identifies items in GBLs as radio transmitting and receiving sets and combines that identification with provisions associated with shipment of security items, it is shipping missile guidance and control systems. Army regulation allows the agency to disguise the nature of the material for security purposes. The Government might have rebutted claimant's evidence with the receiving report for GBL C-7,572,793, but that report was destroyed by the agency. The record does not reveal precisely when the receiving report was destroyed, but it must have taken place either before the claim was filed with the Administrator of General Services in January of 1996 or between the filing of the claim and July 9, 1996, the date the agency informed claimant of the destruction. The agency, however, was required to preserve the receiving report. Statute provides that the Administrator of General Services may make deductions on amounts due carriers not later than three years after a bill is paid and provides for the filing of claims by carriers not later than three years after payment for transportation is made. 31 U.S.C.  3726(a),(b) (West Supp. 1997). Statute also provides that "records pertaining to claims and demands by or against the Government of the United States . . . may not be disposed of by the head of an agency under authorization granted under this chapter, until the claims demands and accounts have been settled and adjusted in the General Accounting Office, except upon the written approval of the Comptroller General of the United States." 44 U.S.C.  3309 (1994). Army regulation requires the agency, when it uses security classifications in GBLs, to provide GSA with the actual identity of the item shipped. For these claims, "the burden is on the claimant to establish . . . the liability of the agency, and the claimant's right to payment." Rule 301(b) (62 Fed. Reg. 25,867 (1997) (to be codified at 48 CFR 6103.1(b))). Here, the claimant has presented evidence--the other GBLs--that suggest that the identification of GBL C-7,572,793 may have been disguised. The Government rests on the identity of the GBL and presents no contrary evidence rebutting claimant's proof. The receiving report that would have established the identity of the shipment was in the Government's control but was destroyed by the Government, even though the Government was required by statute and regulation to retain it. In support of its position, claimant has presented all of the information available to it. Our choice is to allow the Government to prevail on the claim where it has destroyed the document that would have settled the issue, or to accept claimant's unrebutted proof. We accept claimant's proof and conclude that under C-7,572,793, the agency shipped missile guidance and control systems. We now examine the legal significance of this finding. The Government argues that, as a matter of law, the carrier is responsible for any inconsistencies in the bill of lading, and that if it did not agree to the terms of the GBL it could have rejected the shipment. We have held, consistent with precedent of the Interstate Commerce Commission and the General Accounting Office, that "if a shipper prepared a bill of lading which obviously contained conflicting terms or terms with which a carrier could not lawfully comply, the carrier had a duty to ask the shipper for clarification before executing the bill." C.I. Whitten Transfer Co., GSBCA 13893-RATE, 97-1 BCA  29,060. The terms of GBL C-7,572,793 are consistent; the items to be shipped are identified as radio transmitting and receiving sets and the applicable NMFC code for radio transmitting and receiving sets is stated. The GBL also included the correct rate for shipping those items. The GBL does not contain inconsistent or illegal terms that would have put claimant on notice that missile guidance and control systems were being transported instead of radio transmitting and receiving sets. Tri-State Motor Transit Co., GSBCA 13763-RATE, 97-2 BCA  29,098. The Government argues that paying claimant for what it shipped would be applying the "filed rate" doctrine to the sovereign when that doctrine does not apply to the sovereign. We do not agree. The Act to Regulate Interstate Commerce provided in pertinent part: (a) Except as provided in this subtitle, a carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title . . . shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter. . . . A carrier subject to this subsection may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff. 49 U.S.C.  10761 (1988). The purpose of this provision, explained the Supreme Court, examining an earlier, but similar, version of the Act, was "to provide one rate for all shipments of like character, and to make the only legal charge for the transportation of goods in interstate commerce the rate duly filed with the Commission." Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. 577, 581 (1919) (emphasis supplied). Of course, the United States is not necessarily bound by this "filed rate doctrine," for statute allowed common carriers and the Government to agree on rates that differ from the filed tariffs: A common carrier providing transportation or service subject to the jurisdiction of the Commission under chapter 105 of this title . . . may transport property for the United States Government . . . without charge or at reduced rates. 49 U.S.C.  10721(b)(1); see ABF Freight System Inc., B-218694 (Nov. 25, 1985). Based on an earlier version of the Act to Regulate Interstate Commerce, these special rates have been traditionally referred to as "Section 22 tenders." Jetco Inc. v. United States, 11 Cl. Ct. 837, 840 and n. 4 (1987). When carriers seek recovery in excess of their Section 22 tender rates, the courts have held the carriers are estopped from such recovery. These cases apply when there is a dispute concerning the proper rates to apply to a shipment, not when the dispute concerns what goods were shipped. For example, in Chicago, Burlington & Quincy Railroad Co. v. United States, 439 F.2d 1224 (Ct. Cl. 1971), the Government and the carrier agreed to demurrage at a track near the GSA depot every Tuesday and Thursday for a certain period of time. The Government paid the demurrage at the Section 22 tender rate, and the carrier sued for the difference between the tender and tariff rates. The court held the carrier was estopped from recovery based on the tariff rate, because in agreeing to the demurrage, the Government had relied on the lower rate, id. at 1227, but there was no issue in that case as to the type or quality of the services provided. Similarly, in Jetco, the carrier tried to recover for unspecified transportation services based on a revised Section 22 tender rate of dollars and cents per hundred pound instead of the original Section 22 tender rate of cents per hundred pound. The court found that the revised rate was a mistake and that the course of dealing between the parties indicated their mutual intent to apply the original Section 22 tender rate of cents per hundred pound to the shipments. 11 Cl. Ct. 847. As in the Quincy Railroad case, there was no dispute concerning which goods were shipped. Here, the controversy is not about what rates apply to shipment of particular goods, but rather, about what items were shipped. Claimant seeks the additional $78.65 based on its applicable tender rate for the goods it actually carried--missile guidance and control systems. When there is a dispute about the goods that were shipped, the Interstate Commerce Commission (ICC) held that what is determinative is what is shipped, not what was on the GBL. For example, in United Welding Co. v. Baltimore & Ohio Railroad Co., No. 25494, 196 I.C.C. 79 (1933), the dispute concerned whether the item shipped was steel plates (carrying a rate of 38› per hundred pounds) or kelp steel, carrying a different rate. The ICC ruled that "the bill of lading description is not controlling. The important fact is what is moved, not what was billed." Id. at 80. The ICC ordered payment at the rate applicable to the goods shipped. Southern Traffic & Audit Association v. International-Great Northern Railroad Co., 160 I.C.C. 212 (1929), is to the same effect. There, the bill of lading described the item shipped as a complete machine, which carried one rate, while machine parts which carried a lower rate, were actually shipped. The I.C.C. ordered payment at the lower applicable rate. The same rule applies to Government shipments. When there is a dispute about what is shipped, the Court of Claims stated that "in order to determine the applicable freight rate, the first step is to ascertain the actual identity of the shipped article." Southern Pacific Transportation Co., 454 F.2d at 744. This principle controls here. Where the goods that were shipped were other than as stated in the GBL, claimant is entitled to payment at the rate applicable to the goods shipped. Tri-State Motor Transit Co., GSBCA 13886-RATE, 97-1 BCA  28,941. For national security items, at least, that principle is adopted in DoD's regulations. When goods are mis-labeled on GBLs for security reasons, AR55-355,  30-4g, requires the disbursing officer to notify GSA of the (a) GBL number, (b) name of origin carrier, (c) proper freight classification description, and (d) reason for the change in the freight classification description, so that GSA can make final settlement of the freight charges. For the reasons above, claimant is entitled to payment of $78.65. _________________________ ANTHONY S. BORWICK Board Judge