March 31, 1997 GSBCA 13886-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, Washington, DC, appearing for General Services Administration. Colonel David A. Shull, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. DANIELS, Board Judge (Chairman). Tri-State Motor Transit Co. challenges the General Services Administration's (GSA's) determination as to the correct charges for the carriage of a Department of the Navy shipment of goods from the Naval Weapons Station in Yorktown, Virginia, to General Dynamics in Pomona, California. The principal issue is whether the charges should be assessed on the basis of Tri-State's tender number 653 or the company's tariffs ICC TSM 100 and ICC TSM 4001. A subsidiary question is whether the charges should be calculated as if the Navy requested exclusive use of the vehicle in which the shipment was transported. To resolve the principal issue, we must first determine the nature of the goods which were shipped. The Government bill of lading (GBL) that the Navy prepared for this shipment, in January 1993, described the goods as "radio transmitting and receiving sets." Tri-State explains that in response to a Freedom of Information Act request, the Navy provided documents which show that the goods were actually missile guidance control systems or electronic guidance control apparatus. GSA agrees that the goods were as Tri-State describes them, and the Military Traffic Management Command (MTMC), which is representing the Navy in this proceeding, does not deny it. (MTMC argues instead that the goods may have been radio set components of guidance control systems. MTMC offers no proof as to the specific identity of the items, however.) We have no basis for concluding that the goods were anything other than what Tri-State and GSA say they were: missile guidance control systems or electronic guidance control apparatus. At the time of this shipment, statute generally required a carrier to charge a shipper, including the United States Government, the filed commercial tariff rate for transportation services. A transportation company could, however, by filing a quoted or tendered rate, carry goods for the Government or a part of it without charge or at reduced rates. C. I. Whitten Transfer Co., GSBCA 13911-RATE, slip op. at 7 (Feb. 21, 1997). All parties agree that if the goods shipped had been radio transmitting and receiving sets, the transportation cost would have been as established under Tri-State's tender 653 for "freight all kinds." This was the basis for the charge that Tri-State originally billed, and the Navy paid, for the carriage of the goods. Under rules established by MTMC, however, any commodity for which a Department of Defense Unique Commodity (DODUC) Code has been assigned by MTMC headquarters may not be included as "freight all kinds." MTMC Freight Traffic Rules Publication No. 1A, Item 115.2.r (1992). "Missile guidance control systems" fall within DODUC Code 14255. Department of Defense Standard Tender of Freight Services at 11 (1991). This Code is not included in Tri-State's tender 653. Shipping charges for these systems must therefore be ascertained with reference to Tri-State's applicable commercial tariffs. These are tariffs ICC TSM 100 and ICC TSM 4001. Tri-State and GSA agree that the charge for this shipment should have three components: a basic charge with supplements for dual driver protective service and motor surveillance service. As to the supplementary charges, although Tri-State and GSA took varying positions earlier, they now concur that Tri-State should be paid $319.20 for dual driver protective service (2,660 miles times twelve cents per mile) and $798 for motor surveillance service (2,660 miles times thirty cents per mile). The dispute has been narrowed to the basic charge. Tri-State and GSA agree that this charge should be calculated from the entries in Item 31000 of tariff ICC TSM 4100, which pertain to shipments of dromedaries without stop-offs. For the distance in question, 2,660 miles, this item (as in effect on the date of the shipment) shows the appropriate charge to be 5034 cents per one hundred pounds for 2,500 pounds, or 7351 cents per one hundred pounds for 5,000 pounds. Although the goods weighed only 225 pounds, under the terms of the tariff, the charge for the shipment must be for a minimum of one of the much larger weights. Tri-State maintains that it is entitled to be paid for a minimum shipment of 5,000 pounds. It bases this claim on Item 470-1 of tariff ICC TSM 4001, which states: 1) When a shipper requests exclusive use of an entire Dromedary for a less-than-truckload shipment, charges will be assessed subject to a minimum weight of 5,000 pounds or actual weight, if greater, at the 5,000 pound rate. . . . 4) The use of any method of sealing a dromedary box . . . , ie: bolt seals, padlocks, cable locks, ball type locks, wire twists, etc., which require the use of mechanical means to break that seal will be considered as a request for exclusive use irregardless [regardless] of any notation on the bill of lading and the charges named in paragraph 1 will be assessed. The GBL shows, under the heading "seal numbers," the annotation, "U.S. DISC: 0813808, 809." Tri-State maintains that "U.S. DISC" is the prefix for a cable lock seal used by the Department of Defense. A Tri-State scheduler informs us, through an affidavit, that in more than three years of examining this agency's shipments, he has never seen the prefix on any other kind of seal. Tri-State has also sent for our inspection a sample cable lock; this lock, when sealed, clearly can be broken only with the use of mechanical means. GSA notes that the Navy, as shipper, did not in so many words request exclusive use of an entire dromedary. GSA therefore maintains that the carrier should be paid at the rate for a minimum shipment of 2,500, rather than 5,000, pounds. GSA is willing to accept the higher rate only if Tri-State provides convincing proof as to the nature of the seal in this particular shipment. We think Tri-State has provided sufficient proof. Given the explicit language of the relevant tariff, a requirement for the use of cable locks on the dromedary in question clearly constituted a requirement for exclusive use. If the seal number annotation on the GBL did not establish a specification for such a lock, as Tri- State maintains, we are confident that MTMC would have explained this to us. That command has not done so. Neither GSA nor MTMC contends that Tri-State did not provide exclusive use in carrying this shipment. We therefore accept Tri-State's position that the charge for the shipment should be made at the 5,000-pound rate. At 7351 cents per one hundred pounds, the minimum charge for a 5,000- pound shipment, and thus the appropriate charge here, is $3,675.50. In resolving this claim, we reject various arguments made by MTMC. The command's substantive contentions all pertain to the theory that the charges for the shipment should be calculated from entries on Tri-State's tender 653, rather than the carrier's commercial tariffs. Because the tender is not relevant to this shipment, the contentions are not, either. For reasons explained in C. I. Whitten, slip op. at 4-7, 10-11, we reject MTMC's generalized assertions of laches and estoppel. The command has not shown any prejudice suffered by the Government as a result of Tri- State's not having filed the claim more quickly than it did, and the fact that the carrier originally billed at lower amounts than it now seeks does not preclude the company from proceeding now with its claim. _________________________ STEPHEN M. DANIELS Board Judge